[Federal Register Volume 74, Number 96 (Wednesday, May 20, 2009)]
[Notices]
[Pages 23705-23707]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-11742]


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ENVIRONMENTAL PROTECTION AGENCY

[EPA-HQ-OAR-2009-0277; FRL-8904-6]


Protection of Stratospheric Ozone: Request for Critical Use 
Exemption Applications for 2012

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 2012 and beyond. 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 20, 2009. 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 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 1040, Washington DC 20005. EPA also 
encourages users to submit their applications electronically to Robert 
Burchard, Stratospheric Protection Division, at 
[email protected]. If the application is submitted 
electronically, applicants must fax a signed copy of Worksheet 1 to 
Robert Burchard 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: Bill Chism, U.S. Environmental Protection 
Agency, Office of Pesticide Programs (7503P), 1200 Pennsylvania Ave., 
NW., Washington, DC, 20460, 703-308-8136. 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: Robert Burchard, U.S. Environmental 
Protection Agency, Stratospheric Protection Division (6205J), 1200 
Pennsylvania Ave., NW., Washington, DC, 20460, 202-343-9126. 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 whether a consortium is 
submitting an application 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 the critical 
use exemption?
    B. What is the Montreal Protocol authority for the critical use 
exemption?
III. How is the U.S. implementing the critical use exemption?

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 2012 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 eighth 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 U.S. 
Government 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

[[Page 23706]]

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 the application, is on Worksheet 1 of the application. 
Applicants submitting electronically must also fax a signed copy of 
Worksheet 1 to Robert Burchard at 202-343-2338 by the application 
deadline.

B. Whom can I contact to find out whether a consortium is submitting an 
application for my methyl bromide use?

    You should contact your local, state, regional, or national 
commodity association to find out whether it plans to submit an 
application on behalf of your commodity group.
    Additionally, you should contact your state regulatory agency 
(generally this will be the state's agriculture or environmental 
protection agency) to receive information about its involvement in the 
process. If your state agency has chosen to participate, EPA recommends 
that you first submit your application to the state agency, which will 
then forward applications to EPA. The National Pesticide Information 
Center Web site identifies 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/mbr/cueinfo.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-2009-0277. The 
docket can be accessed at the http://www.regulations.gov site. To 
obtain copies of materials in hard copy, please e-mail the EPA Docket 
Center: [email protected].

D. Which 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 for that 
use. 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 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-Alternatives-Ex4-1-2008.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?

    You 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.'' You 
should clearly identify the allegedly confidential portions of 
otherwise non-confidential documents, and you may submit them 
separately to facilitate identification and handling by EPA. If you 
desire confidential treatment only until a certain date or until the 
occurrence of a certain event, your notice should state that. 
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 EPA receives 
it, EPA may make it available to the public without further notice.
    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. EPA will 
place a copy of Worksheet 6 in the public domain. Applications that are 
not confidential business information will be placed in the Docket in 
their entirety. Please note, claiming business confidentiality may 
delay EPA's ability 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 Robert 
Burchard 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 1040, Washington, DC 20005.

G. What if I submit an incomplete application?

    EPA will not accept any applications postmarked after July 20, 
2009. 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 
substantially complete with only minor errors, corrections will be 
accepted. EPA reviewers may also call an applicant for further 
clarification of an application, even if it is complete.
    All consortia or users who did not apply to EPA for the 2008 
control period (calendar year) must submit an entire completed 
application with all Worksheets.

H. What if I applied for a critical use exemption in a previous year?

    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 2008, the user is only required to submit revised copies of the 
certain Worksheets listed below, though the entire

[[Page 23707]]

application with all Worksheets must be on file with EPA. You must 
submit Worksheets 1, 2B, 2C, 2D, 4, 5, and 6 in full regardless of 
whether you submitted an application in 2008. You need only complete 
the remaining worksheets if any information has changed since 2008. If 
you submitted a critical use exemption application to EPA in 2002, 
2003, 2004, 2005, 2006, or 2007 but did not submit an application in 
2008, then you must submit all of the worksheets in the application 
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 the critical use 
exemption?

    The October 1998 amendments to the Clean Air Act added sections 
604(d)(6), 604(e)(3), and 604(h), requiring EPA to conform the U.S. 
phaseout schedule for methyl bromide to the provisions of the Montreal 
Protocol for industrialized countries. Under this schedule methyl 
bromide was phased out starting in 2005. 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.

B. What is the Montreal Protocol authority for the critical use 
exemption?

    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 such an exemption in recognition that 
alternatives might 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 programs are in 
place to develop and deploy alternatives and substitutes. * * *
    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.

III. How is the U.S. implementing the critical use exemption?

    Under the provisions of both the CAA and the Montreal Protocol, the 
critical use exemption became available to approved users on January 1, 
2005. 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 20, 2009: Solicit applications for the methyl bromide critical 
use exemption for 2012.
    July 20, 2009: Deadline for submitting critical use exemption 
applications to EPA.
    Fall 2009: U.S. Government (through EPA, Department of State, U.S. 
Department of Agriculture, and other interested federal agencies) 
prepares U.S. Critical Use Nomination package.
    January 24, 2010: Deadline for U.S. Government to submit U.S. 
nomination package to the Protocol Parties.
    Early 2010: Technical and Economic Assessment Panel (TEAP) and 
Methyl Bromide Technical Options Committee (MBTOC) reviews Parties' 
nominations for critical use exemptions.
    Mid 2010: Parties consider TEAP/MBTOC recommendations.
    November 2010: Parties authorize critical use exemptions for methyl 
bromide for production and consumption in 2012.
    Mid 2011: EPA publishes proposed rule for allocating critical use 
exemptions in the U.S. for 2012.
    Late 2011: EPA publishes final rule allocating critical use 
exemptions in the U.S. for 2012.
    January 1, 2012: Critical use exemption permits the limited 
production and import of methyl bromide for specified uses for the 2012 
control period.

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

    Dated: May 4, 2009.
Brian J. McLean,
Director, Office of Atmospheric Programs.
[FR Doc. E9-11742 Filed 5-19-09; 8:45 am]
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