[Federal Register Volume 73, Number 86 (Friday, May 2, 2008)]
[Notices]
[Pages 24282-24285]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-9743]


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ENVIRONMENTAL PROTECTION AGENCY

[EPA-HQ-OAR-2008-0321; FRL-8561-5]


Protection of Stratospheric Ozone: Request for Critical Use 
Exemption Applications for the Years 2010 and 2011

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 2011 and beyond. In addition, 
applicants who missed last year's deadline to submit a critical use 
application for an exemption in the year 2010 may file a supplemental 
application in response to this 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. Today's 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 31, 2008. The response period reflects 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 Air and Radiation, 
Stratospheric Protection Division, Attention 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 Methyl Bromide Review 
Team, 1310 L St., NW., Room 1047E, Washington, DC 20005. EPA also 
encourages users to submit their applications electronically to Jeremy 
Arling, Stratospheric Protection Division, at [email protected]. If 
the application is submitted electronically, applicants must fax a 
signed copy of Worksheet 1 to Jeremy Arling 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 (7503P), 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 (7503P), 1200 Pennsylvania Ave., 
NW., Washington, DC 20460, 703-308-8123, E-mail: [email protected].
    Regulatory Information: Jeremy Arling, U.S. Environmental 
Protection Agency, Stratospheric Protection Division (6205J), 1200 
Pennsylvania Ave., NW., Washington, DC 20460, 202-343-9055, E-mail: 
[email protected].

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. Whom 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 applied for a critical use exemption in a previous 
year?
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 
complete the application form available at http://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 2011 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 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). Given that this is 
the seventh round of the critical use exemption process, EPA will take 
a skeptical view regarding supporting new nominations (meaning, 
specific applicants who have not previously been nominated by the USG 
for an exemption) unless the applicant demonstrates that an 
unforeseeable change in circumstances (e.g., withdrawal or significant 
change in registration status of an alternative) justifies the need.
    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

[[Page 24283]]

addresses specified above or emailed to the address specified above. 
The applicant's signature, which is required in order for EPA to 
process the application, is on Worksheet 1 of the application. 
Applicants submitting electronically must also fax a signed copy of 
Worksheet 1 to Jeremy Arling at 202-343-2338 by the application 
deadline.

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 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 each 
state (http://npic.orst.edu/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 and Microsoft Excel at EPA's Web site: http://www.epa.gov/ozone/record/mbr.html;
    2. Hard copy ordered through the Stratospheric Ozone Protection 
Hotline at 1-800-296-1996;
    3. Hard-copy format at DOCKET ID No. EPA-HQ-OAR-2008-0321. The 
docket can be accessed at the http://www.regulations.gov site. To 
obtain copies of materials in hard copy, please call the EPA Docket 
Center at 202-564-1744 between the hours of 8:30 a.m.-4:30 p.m. E.S.T., 
Monday-Friday, excluding holidays, to schedule an appointment. The EPA 
Docket Center's Public Reading Room address is EPA/DC, EPA West, Room 
3334, 1301 Constitution Ave., NW., Washington, DC 20460.

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. In 
February 2008, the United States submitted an index of alternatives, 
which includes the current registration status of available and 
potential alternatives, that is available on the Ozone Secretariat Web 
site (http://ozone.unep.org/Exemption_Information/Critical_use_nominations_for_methyl_bromide/MeBr_Submissions/USA-ExI_4_1_2008.pdf). More information about alternatives is available in the 2007 
Evaluations of 2007 Critical Use Nominations for Methyl Bromide and 
Related Matters (http://ozone.unep.org/teap/Reports/MBTOC/MBCUN-Aug2007.pdf).
    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 the 
``Worksheet Six: Application Summary'' page of the application any 
information that you wish to claim as confidential business 
information. Any information on Worksheet 6 shall not be considered 
confidential and will not be treated as such by the Agency. A copy of 
Worksheet 6 will be placed in the public domain by EPA. Applications 
that are not confidential business information will be placed in the 
Docket in their entirety. Please note, claiming business 
confidentiality may delay the ability of EPA to review your 
application.

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

    A ``Notice of Intent to Apply'' is not required, but would 
facilitate the organization of the application review during the 
critical use exemption 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 Jeremy 
Arling via e-mail at [email protected] or via U.S. mail to U.S. 
Environmental Protection Agency, Office of Air and Radiation, 
Stratospheric Protection Division, 1200 Pennsylvania Ave., NW., 6205J, 
Washington, DC 20460 or by courier to U.S. Environmental Protection 
Agency, Office of Air and Radiation, Stratospheric Protection Division, 
1310 L St., NW., Room 1047E, Washington, DC 20005.

G. What If I Submit an Incomplete Application?

    EPA will not accept any applications postmarked after July 1, 2008. 
If the application is postmarked by the deadline but is incomplete or 
missing any data elements, EPA will not accept the application and will 
not include the application in the U.S. nomination submitted for 
international consideration. If the application is

[[Page 24284]]

substantially complete with only minor errors, corrections will be 
accepted. EPA reviewers may also call applicants for further 
clarification of their application, even if it is complete.
    All consortia or users who have not applied to EPA in the previous 
year (2007) must submit an entire completed application with all 
Worksheets.

H. What If I Applied for a Critical Use Exemption in a Previous Year?

    In March 2004 and November 2004, the Parties to the Montreal 
Protocol 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 2007, the user is only required to submit revised 
copies of the certain Worksheets listed below, though the entire 
application with all Worksheets must be on file with EPA. The following 
worksheets must be completed in full regardless of whether you 
submitted an application in 2007: 1, 2B, 2C, 2D, 4, 5, and 6. The 
remaining worksheets must only be completed if any information has 
changed since 2007. If a user has previously submitted a critical use 
exemption application to EPA in 2002, 2003, 2004, 2005, or 2006 (first, 
second, third, fourth, or fifth rounds) but did not submit an 
application in 2007 (sixth round) then all of the 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. 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 alternatives 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). 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 Technology and Economic Assessment Panel (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 is the U.S. implementing 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 became available to approved users 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) was required to conform to the phaseout schedule 
listed above (see SUPPLEMENTARY INFORMATION section II A). Allowances 
for subsequent years are authorized through regulations. 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 projects a 
timeline for the process for the next three years.
    May 2, 2008: Solicit applications for the methyl bromide critical 
use exemption for 2010 and 2011.

[[Page 24285]]

    July 31, 2008: Deadline for submitting critical use exemption 
applications to EPA.
    Fall 2008: 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 24, 2009: Deadline for U.S. government to submit U.S. 
nomination package to the Protocol Parties.
    Early 2009: Review of the nomination packages for critical use 
exemptions by the Technical and Economic Assessment Panel (TEAP) and 
Methyl Bromide Technical Options Committee (MBTOC).
    Mid 2009: Parties consider TEAP/MBTOC recommendations.
    November 2009: Parties authorize critical use exemptions for methyl 
bromide for production and consumption in 2010 (supplemental request) 
and 2011.
    Early-Mid 2010: EPA publishes proposal and final rule for 2010 
supplemental request, if applicable.
    Mid 2010: EPA publishes proposed rule for allocating critical use 
exemptions in the U.S. for 2011.
    Late 2010: EPA publishes final rule allocating critical use 
exemptions in the U.S. for the 2011 control period.
    January 1, 2011: Critical use exemption permits the limited 
production and import of methyl bromide beyond the phaseout date for 
specific uses for the 2011 control period.

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

    Dated: April 24, 2008.
Brian J. McLean,
Director, Office of Atmospheric Programs.
 [FR Doc. E8-9743 Filed 5-1-08; 8:45 am]
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