[Federal Register Volume 68, Number 89 (Thursday, May 8, 2003)]
[Notices]
[Pages 24737-24740]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-11476]


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ENVIRONMENTAL PROTECTION AGENCY

[FRL-7495-7]


Protection of Stratospheric Ozone: Process for Exempting Critical 
Uses of Methyl Bromide

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice of solicitation of applications and information on 
alternatives.

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SUMMARY: EPA is soliciting applications for the Critical Use Exemption 
from the phaseout of methyl bromide. This application process offers 
users of methyl bromide the opportunity to provide technical and 
economic information to support a ``critical use'' claim.
    Methyl bromide is a chemical pesticide that has been identified 
under the Montreal Protocol on Substances that Deplete the Ozone Layer 
and the Clean Air Act, as an ozone-depleting substance. It is scheduled 
for complete phaseout by January 1, 2005. The Critical Use Exemption is 
designed to allow continued production and import of methyl bromide 
after the phaseout for those uses that have no technically and 
economically feasible alternatives. Because Critical Use Exemptions are 
exemptions from the January 1, 2005, methyl bromide phaseout, they will 
become effective after that date.
    Applicants for the exemption are requested to submit technical and 
economic information to EPA for U.S. review. The U.S. will then create 
a national nomination for review by the Parties to the Montreal 
Protocol. EPA encourages users with similar circumstances of use to 
submit a single application. Please contact your state regulatory 
agency to receive information about their involvement in the process.

DATES: Applications for the Critical Use Exemption must be postmarked 
on or before August 6, 2003. The response period is now 90 days 
reflecting the clarifications and reduction of burden in the 
application.

ADDRESSES: Applications for the methyl bromide Critical Use Exemption 
should be submitted in duplicate (two copies) by mail to: U.S. 
Environmental Protection Agency, Office of Pesticide Programs, 
Biological and Economic Analysis Division, Attention Methyl Bromide 
Review Team, Mail Code 7503C, 1200 Pennsylvania Ave, NW., Washington, 
DC 20460 or by courier delivery (other than U.S. Post Office overnight) 
to: U.S. Environmental Protection Agency, Office of Pesticide Programs, 
Biological and Economic Analysis Division, Attention Methyl Bromide 
Review Team, Crystal Mall II, 1921 Jefferson Davis Highway, Arlington, 
VA 22202. Applicants are encouraged to send an electronic version of 
their application and/or attached documents along with their paper 
submission or sent via electronic mail to [email protected].

FOR FURTHER INFORMATION CONTACT: General Information: U.S. EPA 
Stratospheric Ozone Information Hotline, 1-800-296-1996.
    Technical Information: Bill Chism, U.S. Environmental Protection 
Agency, Office of Pesticide Programs (7503C), 1200 Pennsylvania Ave., 
NW., Washington, DC 20460, 703-308-8136.
    Economic Information: David Widawsky, U.S. Environmental Protection 
Agency, Office of Pesticide Programs (7503C), 1200 Pennsylvania Ave., 
NW., Washington, DC 20460, 703-308-8150.
    Regulatory Information: Hodayah Finman, U.S. Environmental 
Protection Agency, Global Programs Division (6205J), 1200 Pennsylvania 
Ave., NW., Washington, DC 20460, 202-564-2651.

SUPPLEMENTARY INFORMATION:

Table of Contents

I. What do I need to know to respond to this request for 
applications?
    A. Who can respond to this request for information?
    B. Who can I contact to find out if a consortium is submitting 
an Application Form for my methyl bromide use?
    C. How do I obtain an Application Form for the Methyl Bromide 
Critical Use Exemption?

[[Page 24738]]

    D. What alternatives must applicants address when applying for a 
Critical Use Exemption?
    E. What portions of the applications will be considered 
confidential business information?
    F. Must I submit a ``Notice of Intent to Apply?''
    G. What if I submit an incomplete application?
    H. What if I already applied in 2002?
II. What is the legal authority for the Critical Use Exemption?
    A. What is the Clean Air Act (CAA) authority for implementing 
the Critical Use Exemption to the methyl bromide phaseout?
    B. What is the Montreal Protocol authority for granting a 
Critical Use Exemption after the methyl bromide phaseout?
III. How will the U.S. implement the Critical Use Exemption?
    A. When will the exemption become available to U.S. users of 
methyl bromide?
    B. What is the projected timeline for the Critical Use Exemption 
application process?

I. What Do I Need To Know To Respond To This Request for Applications?

A. Who Can Respond to this Request for Information?

    The Application Form may be submitted either by a consortium 
representing multiple users or by individual users who anticipate 
needing methyl bromide in 2005 and believe there are no technically and 
economically feasible alternatives. EPA encourages users with similar 
circumstances of use to submit a single application (for example, any 
number of pre-plant users with similar soil, pest, and climactic 
conditions can join together to submit a single application). In some 
instances, State agencies will assist users with the application 
process (see discussion of voluntary State involvement in part I.B. 
below).
    In addition to requesting information from applicants for the 
Critical Use Exemption, this solicitation for information provides an 
opportunity for any interested party to provide EPA with information on 
methyl bromide alternatives (e.g. technical and/or economic feasibility 
research). The Application Form for the methyl bromide Critical Use 
Exemption and other information on research relevant to alternatives 
must be sent to the addresses specified above.

B. Who Can I Contact To Find Out if a Consortium Is Submitting an 
Application Form for My Methyl Bromide Use?

    Please contact your local, State, regional or national commodity 
association to find out if they plan on submitting an application on 
behalf of your commodity group.
    Additionally, you should contact your State regulatory agency 
(generally this will be the State Department of Agriculture or State 
Environmental Protection Agency) to receive information about their 
involvement in the process. If your State agency has chosen to 
participate, EPA encourages all applicants to first submit their 
applications to the State regulatory agency, which will then forward 
them to EPA. The National Pesticide Information Center Web site is one 
resource available for identifying the lead pesticide agency in your 
State (http://ace.orst.edu/info/npic/state1.htm).

C. How Do I Obtain an Application Form for the Methyl Bromide Critical 
Use Exemption?

    An Application Form for the methyl bromide Critical Use Exemption 
can be obtained either in electronic or hard-copy form. EPA encourages 
use of the electronic form. Applications can be obtained in the 
following ways:
    1. PDF format at EPA Web site: www.epa.gov/ozone/mbr;
    2. Microsoft Excel and other electronic spreadsheet formats at EPA 
Web site: www.epa.gov/ozone/mbr;
    3. Mailed hard-copy ordered through the Stratospheric Ozone 
Protection Hotline at 1-800-296-1996;
    4. Hard-copy format at Air Docket No. OAR-A2000-24. The docket is 
located in room B-102, EPA West Building, U.S. Environmental Protection 
Agency, 1301 Constitution Ave., NW., Washington DC, 20460. The Docket 
Office is open from 8:30 a.m. until 4:30 p.m. Monday through Friday. A 
reasonable fee may be charged by EPA for copying docket materials.

D. What Alternatives Must Applicants Address When Applying for a 
Critical Use Exemption?

    To support the assertion that a specific use of methyl bromide is 
``critical,'' applicants are expected to demonstrate that there are no 
technically and economically feasible alternatives available to the 
user of methyl bromide. The Parties to the Montreal Protocol have 
developed an ``International Index'' of Methyl Bromide Alternatives 
which lists chemical and non-chemical alternatives, by crop (http://www.epa.gov/ozone/mbr/alt_in.html). The chemicals and non-chemical 
practices included on this index were identified by the international 
technical advisory groups under the Montreal Protocol: the Methyl 
Bromide Technical Options Committee (MBTOC) and the Technical and 
Economic Assessment Panel (TEAP). The MBTOC and the TEAP determined 
that alternatives in the International Index have the ``technical 
potential'' to replace methyl bromide in at least one circumstance of 
use on the identified crop (Report of the Technical and Economic 
Assessment Panel, 1997) (http://www.teap.org/html/teap_reports.html). 
A corresponding U.S. Index of Alternatives (also listed by crop) has 
been developed by the U.S. government regarding chemical alternatives 
(http://www.epa.gov/ozone/mbr). This U.S. Index reflects whether 
chemical alternatives included in the International Index have been 
registered for use in the United States.
    Applicants must address technical, regulatory, and economic issues 
that limit the adoption of ``chemical alternatives'' and combinations 
of ``chemical'' and ``non-chemical alternatives'' listed for their crop 
within the ``U.S. Index'' of Methyl Bromide Alternatives. Applicants 
must also address technical, regulatory, and economic issues that limit 
the adoption of ``non-chemical alternatives'' and combinations of 
``chemical'' and ``non-chemical alternatives'' listed for their crop in 
the ``International Index.''

E. What Portions of the Applications Will Be Considered Confidential 
Business Information?

    The person submitting information to EPA in response to this notice 
may assert a business confidentiality claim covering part or all of the 
information by placing on (or attaching to) the application, at the 
time it is submitted to EPA, a cover sheet, or a stamped or typed 
legend placed at the front of the application, employing language such 
as trade secret, proprietary, or company confidential. Allegedly 
confidential portions of otherwise non-confidential documents should be 
clearly identified by the applicant, and may be submitted separately to 
facilitate identification and handling by EPA. If the applicant desires 
confidential treatment only until a certain date or until the 
occurrence of a certain event, the notice should so state. Information 
covered by a claim of confidentiality will be disclosed by EPA only to 
the extent, and by means of the procedures, set forth under 40 CFR part 
2, subpart B; 41 FR 36902, 43 FR 40000, 50 FR 51661. If no claim of 
confidentiality accompanies the information when it is received by EPA, 
it may be made available to the public by EPA without further notice to 
the applicant.
    If you are asserting a business confidentiality claim covering part 
or all

[[Page 24739]]

of the information in the application, you must submit a non-
confidential version that EPA can circulate to technical reviewers and 
can place in the public docket for reference by other interested 
parties. Under no circumstances shall the applicants claim 
confidentiality for the ``Worksheet Six: Application Summary'' portion 
of the application. These application information summary sheets will 
be posted on the EPA Web site (www.epa.gov/ozone/mbr) and included in 
Air Docket No. OAR-A2000-24. Please note, providing CBI may delay the 
ability of EPA to review your application.

F. Must I Submit a ``Notice of Intent To Apply?''

    EPA requests that people who plan to submit an application send a 
``notice of intent to apply'' to the location listed in ADDRESSES 
above. EPA asks that you submit the ``notice of intent to apply'' as 
soon as you decide if you will be applying in 2003, but no later than 
30 days before the application deadline. The ``notice of intent to 
apply'' can be a simple letter (or an email in the form 
[email protected] to one of the people listed under the 
section FOR FURTHER INFORMATION CONTACT). The Agency is not requiring a 
``notice of intent to apply'', but believes it will facilitate the 
organization of the application review process, and improve the U.S. 
government's ability to make arguments on behalf of sectors that 
demonstrate a critical need for methyl bromide.

G. What if I Submit an Incomplete Application?

    If the EPA determines that an application is lacking sufficient 
information needed in order to be processed by the technical reviewers, 
applicants will be notified by telephone or in writing. If the required 
information is not submitted 30 days after the request, the application 
will not be processed. Reviewers may also call applicants for further 
elaboration about their application, even if it is complete.

H. What if I Already Applied in 2002?

    The Parties to the Montreal Protocol will decide at the end of 
calendar year 2003 whether exemptions will be authorized for 2005 alone 
or for more than one year. If methyl bromide is only authorized by the 
Parties for 2005 alone, then EPA is requiring those who submitted 
applications in 2002 to provide updated data by filling out only those 
very limited portions of the application necessary to furnish any 
updated information to EPA. The data required for updating applications 
will be noted is the following:
    [sbull] Provide the 2002 price of methyl bromide (worksheet 2D-
amount and price of methyl bromide alone);
    [sbull] Provide quantity of methyl bromide used in 2002 (worksheet 
2B regarding 2002 information);
    [sbull] Address the technical and economic feasibility of using 
newly registered alternatives (provide information in worksheets 3A 
through 3C regarding alternatives newly registered/available since 
submission of application during 2002);
    [sbull] Update research information about alternatives (update 
worksheet 4 as necessary, based on new studies);
    [sbull] Update details in research plan to identify and test 
alternatives (follow new format and provide details in worksheet 4, as 
necessary); and
    [sbull] Provide update on new techniques to minimize emissions 
(worksheet 4).

II. What Is the Legal Authority for the Critical Use Exemption?

A. What Is the Clean Air Act (CAA) Authority for Implementing the 
Critical Use Exemption to the Methyl Bromide Phaseout?

    In October 1998, the U.S. Congress amended the Clean Air Act by 
adding CAA sections 604(d)(6), 604(e)(3), and 604(h) (section 764 of 
the 1999 Omnibus Consolidated and Emergency Supplemental Appropriations 
Act (Pub. L. 105-277; October 21, 1998)). The amendment requires EPA to 
conform the U.S. phaseout schedule for methyl bromide to the provisions 
of the Montreal Protocol for industrialized countries. Specifically, 
the amendment requires EPA to make regulatory changes to implement the 
following phaseout schedule:
    25% reduction (from 1991 baseline) in 1999;
    50% reduction in 2001;
    70% reduction in 2003;
    100% reduction in 2005.
    EPA published regulations in the Federal Register on June 1, 1999 
(64 FR 29240), and November 28, 2000 (65 FR 70795), instituting the 
phaseout reductions in the production and import of methyl bromide in 
accordance with the schedule listed above. Additionally, the 1998 
amendment allowed EPA to exempt the production and import of methyl 
bromide from the phaseout for critical uses starting January 1, 2005, 
``to the extent consistent with the Montreal Protocol'' (section 764 of 
the 1999 Omnibus Consolidated and Emergency Supplemental Appropriations 
Act (Pub. L. 105-277, October 21, 1998)(section 604(d)(6) of the Clean 
Air Act).

B. What Is the Montreal Protocol Authority for Granting a Critical Use 
Exemption After the Methyl Bromide Phaseout?

    The Montreal Protocol provides an exemption to the phaseout of 
methyl bromide for critical uses in Article 2H, paragraph 5. The 
Parties to the Protocol included provisions for such an exemption in 
recognition that substitutes for methyl bromide may not be available by 
2005 for certain uses of methyl bromide agreed by the Parties to be 
``critical uses''.
    In their Ninth Meeting (1997), the Parties to the Protocol agreed 
to Decision IX/6, setting forth the following criteria for a ``critical 
use'' determination:

    (a) That a use of methyl bromide should qualify as ``critical'' 
only if the nominating Party [e.g. U.S.] determines that:
    (i) The specific use is critical because the lack of 
availability of methyl bromide for that use would result in a 
significant market disruption; and
    (ii) There are no technically and economically feasible 
alternatives or substitutes available to the user that are 
acceptable from the standpoint of environment and health and are 
suitable to the crops and circumstances of the nomination.
    (b) That production and consumption, if any, of methyl bromide 
for a critical use should be permitted only if:
    (i) All technically and economically feasible steps have been 
taken to minimize the critical use and any associated emission of 
methyl bromide;
    (ii) Methyl bromide is not available in sufficient quantity and 
quality from existing stocks of banked or recycled methyl bromide, 
also bearing in mind the developing countries need for methyl 
bromide;
    (iii) It is demonstrated that an appropriate effort is being 
made to evaluate, commercialize and secure national regulatory 
approval of alternatives and substitutes, taking into consideration 
the circumstances of the particular nomination * * * Non-Article 5 
Parties [e.g., the U.S.] must demonstrate that research programmes 
are in place to develop and deploy alternatives and substitutes. * * 
*

    In the context of the phaseout program, the use of the term 
consumption may be misleading. Consumption does not mean the ``use'' of 
a controlled substance, but rather is defined as the formula: 
consumption = production + imports - exports, of controlled substances 
(Article 1 of the Protocol and section 601 of the CAA). Class I 
controlled substances that were produced or imported through the 
expenditure of allowances prior to their phaseout date can continue to 
be used by industry and the public after that specific chemical's 
phaseout under EPA's phaseout regulations, unless

[[Page 24740]]

otherwise precluded under separate regulations.
    In addition to the language quoted above, the Parties further 
agreed to request the TEAP to review nominations and make 
recommendations for approval based on the criteria established in 
paragraphs (a)(ii) and (b) of Decision IX/6.

III. How Will the U.S. Implement the Critical Use Exemption?

A. When Will the Exemption Become Available to U.S. Users of Methyl 
Bromide?

    Under the provisions of both the CAA and the Montreal Protocol, the 
Critical Use Exemption will be available to approved uses on January 1, 
2005. Until that date, all production and import of methyl bromide 
(except for those quantities that qualify for the quarantine and 
preshipment exemption) must conform to the phasedown schedule listed 
above (see SUPPLEMENTARY INFORMATION section II A). For more 
information on the quarantine and preshipment exemption, please refer 
to 68 FR 238 (January 2, 2003).

B. What Is the Projected Timeline for the Critical Use Exemption 
Application Process?

    There is both a domestic and international component to the 
Critical Use Exemption process. The following outline represents a 
projected timeline for the process:

------------------------------------------------------------------------
 
------------------------------------------------------------------------
May 8, 2003..................................  Solicit applications for
                                                the methyl bromide
                                                Critical Use.
August 6, 2003...............................  Deadline for submitting
                                                Critical Use Exemption
                                                applications to EPA.
Late 2003....................................  U.S. government (EPA,
                                                Department of State,
                                                U.S. Department of
                                                Agriculture, and other
                                                interested federal
                                                agencies) create U.S.
                                                Critical Use nomination
                                                package.
January 31, 2004.............................  Deadline for U.S.
                                                government to submit
                                                U.S. nomination package
                                                to the Protocol Parties.
Early 2004...................................  Review of the nominations
                                                packages for Critical
                                                Use Exemptions by the
                                                Technical and Economic
                                                Assessment Panel (TEAP)
                                                and Methyl Bromide
                                                Technical Options
                                                Committee (MBTOC).
Early 2004...................................  EPA publishes proposed
                                                rule for allocating
                                                Critical Use Exemptions
                                                in the U.S.
Mid 2004.....................................  Parties consider TEAP/
                                                MBTOC recommendations.
Late 2004....................................  Parties authorize
                                                Critical Use Exemptions
                                                for methyl bromide.
Late 2004....................................  EPA publishes final rule
                                                allocating Critical Use
                                                Exemptions in the U.S.
January 1, 2005..............................  Critical Use Exemption
                                                permits the limited
                                                production and import of
                                                methyl bromide beyond
                                                the phaseout date for
                                                specific uses.
------------------------------------------------------------------------


    Authority: 42 U.S.C. 7414, 7601, 7671-7671q.

    Dated: April 30, 2003.
Robert Brenner,
Acting Assistant Administrator, Office of Air and Radiation.
[FR Doc. 03-11476 Filed 5-7-03; 8:45 am]
BILLING CODE 6560-50-P