[Federal Register Volume 71, Number 80 (Wednesday, April 26, 2006)]
[Notices]
[Pages 24698-24701]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E6-6256]


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ENVIRONMENTAL PROTECTION AGENCY

[EPA-HQ-OAR-2003-0017; FRL-8162-2]


Protection of Stratospheric Ozone: Request for Critical Use 
Exemption Applications for the Years 2008 and 2009

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 for 2009 and beyond. In addition, 
those applicants who missed last year's deadline to apply for a 
critical use exemption for the year 2008 may file a supplemental 
application in response to the notice. This exemption is an annual 
exemption and all entities interested in obtaining a critical use 
exemption must provide EPA with technical and economic information to 
support a ``critical use'' claim, and must do so by the deadline 
specified in this notice even if they have previously applied for an 
exemption. This notice also invites interested parties to provide EPA 
with new data on the technical and economic feasibility of methyl 
bromide alternatives.

DATES: Applications for the critical use exemption must be postmarked 
on or before July 10, 2006. Applications for an exemption are due one 
month earlier to EPA this year to reflect the compressed schedule for 
review of applications in 2007.

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 Air and Radiation, 
Stratospheric Protection Division, Attention: Marta Montoro/Methyl 
Bromide Review Team, Mail Code 6205J, 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 
Air and Radiation, Stratospheric Protection Division, Attention: Marta 
Montoro/Methyl Bromide Review Team, 1310 L St., NW., Room 827L, 
Washington, DC 20005. EPA also encourages users to submit their 
applications electronically to Marta Montoro, Stratospheric Protection 
Division, at [email protected]. If the application is submitted 
electronically, applicants are requested to fax a signed copy of 
Worksheet 1 to Marta Montoro at (202) 343-2338 by the application 
deadline.

FOR FURTHER INFORMATION CONTACT: 
    General Information: U.S. EPA Stratospheric Ozone Information 
Hotline, 1-800-296-1996; also http://www.epa.gov/ozone/mbr.
    Technical Information: Colwell Cook, U.S. Environmental Protection 
Agency, Office of Pesticide Programs (7503C), 1200 Pennsylvania Ave., 
NW., Washington, DC 20460, (703) 308-8146. E-mail: 
[email protected].
    Economic Information: Elisa Rim, U.S. Environmental Protection 
Agency, Office of Pesticide Programs (7503C), 1200 Pennsylvania Ave., 
NW., Washington, DC 20460, (703) 308-8123. E-mail: [email protected].
    Regulatory Information: Marta Montoro, U.S. Environmental 
Protection Agency, Stratospheric Protection Division (6205J), 1200 
Pennsylvania Ave., NW., Washington, DC 20460, (202) 343-9321. E-mail: 
[email protected].

SUPPLEMENTARY INFORMATION: Applications are due one month earlier to 
EPA due to the compressed review schedule for critical use exemptions 
in the year 2007. The 19th Meeting of the Parties is scheduled to be 
held in September 2007, almost two months earlier than previous 
meetings of the parties which typically occur in November or December. 
The EPA will submit a nomination for critical uses earlier than the end 
of January and will shorten its own review process by one month. In 
addition, in this notice, EPA is notifying applicants that their 
application process is being shortened by one month with July 10th as 
the deadline for applications. EPA also renewed the Information 
Collection Request (ICR) for the applications on August 31, 2005. The 
ICR is now valid through August 31, 2008. As a result of the ICR 
renewal, the format and numbering of the application worksheets changed 
minimally.

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?
    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 and/or 2003 and/or 2004?
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 is the U.S. implementing 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?

    Entities interested in obtaining a critical use exemption must fill 
out the application form available at http://

[[Page 24699]]

www.epa.gov/ozone/mbr. The application form may be submitted either by 
a consortium representing multiple users who have similar circumstances 
or by individual users who anticipate needing methyl bromide in 2009 
and beyond and believe there are no technically and economically 
feasible alternatives. EPA encourages groups of users with similar 
circumstances of use to submit a single application (for example, any 
number of pre-plant users with similar soil, pest, and climatic 
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 or e-mailed 
to the address specified above. The applicant's signature, which is 
required in order for EPA to process your application, is on Worksheet 
1 of the application. If you submit your application electronically, 
you must fax a signed copy of worksheet 1 to Marta Montoro at (202) 
343-2338.

B. Whom 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 determine whether they plan to submit 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 (http://ace.orst.edu/info/npic/state1.htm) provides information on identifying 
the lead pesticide agency in each state.

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 and Microsoft Excel at EPA Web site: http://www.epa.gov/ozone/mbr;
    2. Hard copy ordered through the Stratospheric Ozone Protection 
Hotline at 1-800-296-1996;
    3. Hard-copy format at Docket number EPA-HQ-OAR-2003-0017. The 
Docket is located in room B-102, EPA West Building, U.S. Environmental 
Protection Agency, 1301 Constitution Ave. NW., Washington, DC 20004. 
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/in_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). 
In addition, the U.S. Government has developed the U.S. Index of Methyl 
Bromide Alternatives, also listed by crop (http://www.epa.gov/ozone/mbr/us_alt_in.html). The 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 information, at the 
time it is submitted to EPA, a cover sheet, stamped or typed legend, or 
other suitable form of notice 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 36752, 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 of the information in the application, please submit a non-
confidential version that EPA can place in the public docket for 
reference by other interested parties. Do not include on Worksheet 6 
(formerly Worksheet 5, ``Application Summary'') any information that 
you wish to claim as confidential business information. Any information 
on Worksheet 5 is not considered confidential and will not be treated 
as such by the Agency. EPA will place a copy of Worksheet 6 in the 
public domain. EPA will place applications that are not confidential 
business information in the docket in their entirety. Please note that 
claiming business confidentiality may delay EPA's ability to review 
your application.

[[Page 24700]]

F. Must I submit a ``Notice of Intent to Apply?''

    A ``Notice of Intent to Apply'' is not required, but would 
facilitate the application review process. If EPA is aware of the 
consortia and the individuals who intend to submit applications 30 days 
before the application deadline, the technical experts will be better 
positioned to review the application. This notice may be submitted to 
Marta Montoro at the addresses above.

G. What if I submit an incomplete application?

    EPA will not accept any applications postmarked after July 10, 
2006. If the application is postmarked by the deadline but is 
incomplete or missing any of the following data elements listed in the 
``Re-Application Information Document'' available at http://www.epa.gov/ozone/mbr EPA will not accept the application and will not 
include the application in the U.S. nomination submitted for 
international consideration. These required elements include Worksheets 
1, 2B, 2C, 2D, 4, 5, and 6 (formerly Worksheet 5). EPA will accept 
applications that are substantially complete with only minor errors. 
EPA reviewers may also call applicants to further clarify their 
application, even if it is complete.
    All consortia or users who have not applied to EPA in the previous 
year (2005) must submit an entire completed application with all 
worksheets.

H. What if I already previously applied for a critical use exemption?

    In March 2004 and in November 2004, the Parties decided that 
critical use exemptions would be granted for one year. As a result, 
users must apply to EPA for critical use exemptions on an annual basis. 
However, if a user group submitted a complete application to EPA in 
2004, the user is only required to submit revised copies of the 
selected worksheets listed above, though the entire application with 
all worksheets must be on file with EPA. A list of the worksheets you 
must fill out each year is detailed above and is also available at 
http://www.epa.gov/ozone/mbr. The remaining worksheets must only be 
completed if any information has changed since 2005. If a user 
submitted a critical use exemption application to EPA in 2002, 2003, or 
2004 (first, second or third rounds) but did not submit an application 
in 2005 (fourth round) then all worksheets in the application must be 
submitted again in their entirety.

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. No. 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 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). A Class I 
controlled substance that was produced or imported through the 
expenditure of allowances prior to its phaseout date can continue to be 
used by industry and the public after that specific chemical's phaseout 
under EPA's phaseout regulations, unless 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.

[[Page 24701]]

III. How does the U.S. implement the critical use exemption?

B. Under the provisions of both the CAA and the Montreal Protocol, the 
critical use exemption became available to approved users on January 1, 
2005. Allowances for subsequent years are authorized through 
regulations. The critical use exemption process has an international 
component and a domestic component.

    The projected schedule for the next three years is as follows:

April 26, 2006--Solicit applications for the methyl bromide critical 
use exemption for 2009 and beyond.
July 10, 2006--Deadline for submitting critical use exemption 
applications to EPA.
Fall 2006--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, 2007 but earlier December 2006 deadline strongly encouraged 
for this year--Deadline for U.S. Government to submit U.S. nomination 
package to the Protocol Parties.
Early 2007--Review of critical use nomination packages by Technical and 
Economic Assessment Panel (TEAP) and Methyl Bromide Technical Options 
Committee (MBTOC).
Mid 2007--Parties consider TEAP/MBTOC recommendations.
September 2007--Parties authorize critical use exemptions for 
production and consumption in 2008 (supplemental request) and 2009.
Early-Mid 2008--EPA publishes proposed rule and final rule for 2008 
supplemental request, if applicable.
Mid 2008--EPA publishes proposed rule for allocating critical use 
exemptions in the U.S. for 2009.
Late 2008--EPA publishes final rule allocating critical use exemptions 
in the U.S. for the 2009 control period.
January 1, 2009--Critical use exemption permits limited production and 
import of methyl bromide for specific uses for the 2009 control period.

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

    Dated: April 11, 2006.
Brian J. McLean,
Director, Office of Atmospheric Programs.
 [FR Doc. E6-6256 Filed 4-25-06; 8:45 am]
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