[Federal Register Volume 78, Number 105 (Friday, May 31, 2013)]
[Notices]
[Pages 32646-32650]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-12968]


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ENVIRONMENTAL PROTECTION AGENCY

[EPA-HQ-OAR-2013-0369, FRL-9816-9]


Protection of Stratospheric Ozone: Request for Methyl Bromide 
Critical Use Exemption Applications for 2016

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 2016. Critical use exemptions 
last only one year. All entities interested in obtaining a critical use 
exemption for 2016 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 applied for an 
exemption in previous years. 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 2016 critical use exemption must be 
submitted on or before August 29, 2013.

ADDRESSES: EPA 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 202-343-2338 by the 
application deadline. Applications for the methyl bromide critical use 
exemption can also be submitted by U.S. 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 
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.

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. Email: [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. Email: 
[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. How do I obtain an application form for the methyl bromide 
critical use exemption?
    C. What must applicants address when applying for a critical use 
exemption?
    D. What if I applied for a critical use exemption in a previous 
year?
    E. What portions of the applications will be considered 
confidential business information?
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?
    C. What is the timing for applications for the 2016 control 
period?

[[Page 32647]]

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/cueinfo.html. The application may be submitted by a consortium 
representing multiple users who have similar circumstances or by 
individual users. EPA encourages groups of users with similar 
circumstances to submit a single application.
    While anyone interested in obtaining a critical use exemption may 
apply, EPA notes that in January, 2013, the United States government 
submitted its nomination for critical use exemption during 2015, and 
that nomination included only three uses (strawberries, fresh dates and 
dry cured ham). Since information about alternatives, economic impacts, 
and other factors relevant to the critical use criteria change from 
year to year, applicants must provide all of the necessary technical 
and economic information, whether or not a use has been nominated for a 
critical use exemption in the past.
    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 or economic feasibility 
research).

B. How do I obtain an application form for the methyl bromide critical 
use exemption?

    Application forms for the methyl bromide critical use exemption can 
be obtained in PDF, Microsoft Word, and Microsoft Excel formats at 
EPA's Web site http://www.epa.gov/ozone/mbr/cueinfo.html or at Docket 
ID No. EPA-HQ-OAR-2013-0369 at http://www.regulations.gov.

C. What must applicants address when applying for a critical use 
exemption?

    To support the assertion that a specific use of methyl bromide 
meets the requirements of the critical use exemption, applicants must 
demonstrate that there are no technically and economically feasible 
alternatives available for that use. EPA's Web site contains a list of 
available and potential alternatives at http://www.epa.gov/ozone/mbr/alts.html. Applicants must show that they are taking steps to minimize 
their critical use of methyl bromide and any associated emissions. In 
addition, applicants must describe research plans which includes the 
pest(s), chemical(s), or management practice(s) they will be testing to 
support their transition from methyl bromide.
    Below, EPA is providing information on how it evaluated specific 
uses in considering nominations for critical uses for 2015, as well as 
specific information needed for the U.S. to successfully defend its 
nominations for critical uses.
Commodities Such as Dried Fruit and Nuts
    Data reviewed by EPA as part of the 2015 nomination process 
indicate that sulfuryl fluoride is effective against key pests. The 
industry has mostly converted to sulfuryl fluoride and no market 
disruption has occurred. For this sector, rapid fumigation is not a 
critical condition. Therefore, products can be treated with sulfuryl 
fluoride or phosphine and be held for relatively long periods of time 
without a significant economic impact. To support a nomination, 
applicants must address potential economic losses due to pest 
pressures, changes in quality, changes in timing, and any other 
economic implications for producers when converting to alternatives. 
Alternatives for which such information is needed are: Sulfuryl 
fluoride, propylene oxide (PPO), phosphine, and controlled atmosphere/
temperature treatment system. Applicants should include the costs to 
retrofit equipment or design and construct new fumigation chambers for 
these alternatives. For the economic assessment applicants must 
provide: The amount of fumigant gas used (both methyl bromide and 
alternatives, which may include heat), price per pound of the fumigant 
gas from the most recent use season, application rates, differences in 
time required for fumigation, differences in labor inputs (i.e., hours 
and wages) associated with alternatives, the amount of commodity 
treated with each fumigant/treatment and the value of the commodity 
being treated/produced. Also provide information on changes in costs 
for any other practices or equipment used (e.g. sanitation and IPM) 
that are not needed when methyl bromide is used for fumigation. Include 
information on the size of fumigation chambers where methyl bromide is 
used, the percent of commodity fumigated under tarps, the length of the 
harvest season, peak of the harvest season and duration, and volume of 
commodity treated daily at the harvest peak.
    Where applicable, also provide examples of specific customer 
requests regarding pest infestation and examples of any phytosanitary 
requirements of foreign markets (e.g., import requirements of other 
countries) that may necessitate use of methyl bromide accompanied by 
explanation of why the methyl bromide quarantine and preshipment (QPS) 
exemption is not applicable for this purpose. Also include information 
on what pest control practices organic producers are using for their 
commodity.
Structures and Facilities (flour mills, rice mills, pet food)
    Published data reviewed by EPA during the 2015 nomination process 
did not show a statistically significant difference in control 
effectiveness between methyl bromide and sulfuryl fluoride or heat 
treatments. The cost of alternatives is also generally less than cost 
of methyl bromide except for heat alone. To support a nomination, 
applicants must address potential economic losses due to pest 
pressures, changes in quality, changes in timing, and any other 
economic implications for producers when converting to alternatives. 
Alternatives for which such information is needed are: Sulfuryl 
fluoride, micro-sanitation, and heat. Applicants should include the 
costs to retrofit equipment for these pest control methods. For the 
economic assessment applicants must provide the following: Price per 
pound of fumigant gas used (both methyl bromide and alternatives) from 
the most recent use season, application rates, differences in time 
required for fumigation, differences in labor inputs (i.e., hours and 
wages) associated with alternatives, and value of the commodity being 
treated/produced. List how many mills have been fumigated with methyl 
bromide over the last three years; the rate, volume, and target CT of 
methyl bromide at each location; volume of each facility; number of 
fumigations per year; and date the facility was constructed.
    Where applicable, also provide examples of specific customer 
requests regarding pest infestation and examples of any phytosanitary 
requirements of foreign markets (e.g., import requirements of other 
countries) that may necessitate use of methyl bromide accompanied by 
explanation of why the QPS exemption is not applicable for this 
purpose. Also include information on what pest control practices 
organic producers are using for their facilities.
Dried Cured Pork
    Applicants must list how many facilities have been fumigated with 
methyl bromide over the last three

[[Page 32648]]

years; the rate, volume, and target CT of methyl bromide at each 
location; volume of each facility; number of fumigations per year; and 
the materials from which the facility was constructed. It is also 
important for this sector to specify research plans into alternatives 
and alternative practices to support the transition from methyl 
bromide.
Cucurbits, Eggplant, Pepper, and Tomato
    In reviewing data for the 2015 CUE nomination, EPA found that 
although no single alternative is effective for all pest problems, a 
review of multiple year data indicates that the alternatives in various 
combinations provide control equal or superior to methyl bromide plus 
chloropicrin. Several research studies show that the three way mixture 
of 1,3-dichloropene plus chloropicrin plus metam sodium can effectively 
suppress pathogens (P. capsici, F. oxysporum) and nematodes. To support 
a nomination, applicants must address potential changes to yield, 
quality, and timing when converting to alternatives, including: The 
mixture of 1,3-dichloropropene plus chloropicrin, the University of 
Georgia three way mixture of 1,3-dichloropropene plus chloropicrin plus 
metam (sodium or potassium), dimethyl disulfide (DMDS), and any 
fumigationless system (if data are available). Applications must 
address regulatory and economic implications for growers and your 
region's production of these crops using these alternatives, including 
the costs to retrofit equipment and the differential impact of buffers 
for methyl bromide plus chloropicrin compared to the alternatives. For 
the economic assessment applicants must provide the following: Price 
per pound of fumigant gas used (both methyl bromide and alternatives) 
from the most recent use season; application rates; value of the crop 
being produced; differences in labor inputs (i.e., hours and wages); 
and any differences in equipment costs or time needed to operate 
equipment associated with alternatives.
Strawberry Fruit
    Based on EPA's review of information as part of the 2015 nomination 
process, EPA believes there will continue to be a reduced critical need 
for methyl bromide in the near future as advances are made (1) In 
safely applying 100% chloropicrin, (2) in strategies to improve 
efficacy in applying 1,3-dichloropropene, and (3) in transitioning from 
experimental to commercial use of non-chemical tools, such as steam, 
anaerobic soil disinfestations, and substrate production. To support a 
nomination, applicants must address potential changes to yield, 
quality, and timing when converting to alternatives, including: the 
mixture of 1,3-dichloropropene plus chloropicrin, the University of 
Georgia three way mixture of 1,3-dichloropropene plus chloropicrin plus 
metam (sodium or potassium), or dimethyl disulfide (DMDS) in states 
other than California, and any fumigationless system (if data are 
available). Applications must address regulatory and economic 
implications for growers and your region's production of these crops 
using these alternatives, including the costs to retrofit equipment and 
the differential impact of buffers for methyl bromide plus chloropicrin 
compared to the alternatives. For the economic assessment applicants 
must provide the following: price per pound of fumigant gas used (both 
methyl bromide and alternatives) from the most recent use season; 
application rates; value of the crop being produced; differences in 
labor inputs (i.e., hours and wages); and any differences in equipment 
costs or time needed to operate equipment associated with alternatives.
Orchard Replant
    EPA's review of data in the 2015 nomination process indicated that 
while no single alternative is effective for all pest problems, 
numerous field trials indicate alternatives to methyl bromide are 
effective. Therefore, EPA concluded that transitioning to the 
alternatives was feasible without substantial losses. Registered 
alternatives are available for individual-hole treatments and soil 
preparation procedures are available to enable effective treatment with 
alternatives even in soils with high moisture content. To support a 
nomination, applicants must address potential changes to yield, 
quality, and timing when converting to alternatives, including: the 
mixture of 1,3-dichloropropene plus chloropicrin, the University of 
Georgia three way mixture of 1,3-dichloropropene plus chloropicrin plus 
metam (sodium or potassium), dimethyl disulfide (DMDS), and steam. 
Applications must address regulatory and economic implications for 
growers and your region's production of these crops using these 
alternatives, including the costs to retrofit equipment and the 
differential impact of buffers for methyl bromide plus chloropicrin 
compared to the alternatives. For the economic assessment applicants 
must provide the following: price per pound of fumigant gas used (both 
methyl bromide and alternatives) from the most recent use season; 
application rates; value of the crop being produced; differences in 
labor inputs (i.e., hours and wages); and any differences in equipment 
costs or time needed to operate equipment associated with alternatives.
Ornamentals
    In considering nominations for 2015, EPA found that while no single 
alternative is effective for all pest problems, a review of multiple 
year data indicates that the alternatives in various combinations 
provide control equal or superior to methyl bromide plus chloropicrin. 
Research demonstrates that 1,3-dichloropene plus chloropicrin, the 
three way mixture of 1,3-dichloropene plus chloropicrin plus metam 
sodium, and dimethyl disulfide plus chloropicrin all show excellent 
results. To support a nomination, applicants must address potential 
changes to yield, quality, and timing when converting to alternatives, 
including: the mixture of 1,3-dichloropropene plus chloropicrin, the 
University of Georgia three way mixture of 1,3-dichloropropene plus 
chloropicrin plus metam (sodium or potassium), dimethyl disulfide 
(DMDS), and steam. Applications must address regulatory and economic 
implications for growers and your region's production of these crops 
using these alternatives, including the costs to retrofit equipment and 
the differential impact of buffers for methyl bromide plus chloropicrin 
compared to the alternatives. For the economic assessment applicants 
must provide the following: price per pound of fumigant gas used (both 
methyl bromide and alternatives) from the most recent use season; 
application rates; value of the crop being produced; differences in 
labor inputs (i.e., hours and wages); and any differences in equipment 
costs or time needed to operate equipment associated with alternatives.
Nurseries
    In considering this sector in the 2015 nomination process, EPA 
noted that a Special Local Need label allows Telone II to be used in 
accordance with certification standards for propagative material.\1\ To 
support a nomination, applicants must address potential changes to 
yield, quality, and timing when converting to alternatives, including: 
the mixture of 1,3-dichloropropene plus chloropicrin, the University of 
Georgia three way mixture

[[Page 32649]]

of 1,3-dichloropropene plus chloropicrin plus metam (sodium or 
potassium), dimethyl disulfide (DMDS), and steam. Applications must 
address regulatory and economic implications for growers and your 
region's production of these crops using these alternatives, including 
the costs to retrofit equipment and the differential impact of buffers 
for methyl bromide plus chloropicrin compared to the alternatives. For 
the economic assessment applicants must provide the following: price 
per pound of fumigant gas used (both methyl bromide and alternatives) 
from the most recent use season; application rates; value of the crop 
being produced; differences in labor inputs (i.e., hours and wages); 
and any differences in equipment costs or time needed to operate 
equipment associated with alternatives.
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    \1\ EPA also noted that growers can use a combination of methyl 
bromide for quarantine situations and 1,3-D plus chloropicrin for 
non-quarantine situations to meet certification requirements.
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Golf Courses
    To date, EPA has not found that a significant market disruption 
would occur in the golf industry in the absence of methyl bromide. To 
support a nomination, applicants must address potential changes to 
yield, quality, and timing when converting to alternatives, including: 
Basamid, chloropicrin, 1,3-dichloropene, 1,3-dichloropene plus 
chloropicrin, metam sodium, and steam. Applications must address 
regulatory and economic implications for growers using these 
alternatives, including the costs to retrofit equipment and the 
differential impact of buffers for methyl bromide plus chloropicrin 
compared to the alternatives. For the economic assessment applicants 
must provide the following: price per pound of fumigant gas used (both 
methyl bromide and alternatives) from the most recent use season; 
application rates; economic impact for the golf course from a 
transition to alternatives (e.g. downtime when resurfacing); 
differences in labor inputs (i.e., hours and wages); and any 
differences in equipment costs or time needed to operate equipment 
associated with alternatives. Supporting evidence might be included 
that would demonstrate that alternatives lead to more frequent 
resurfacing and therefore, greater adverse economic impacts.

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

    Critical use exemptions are valid for only one year and do not 
automatically renew. All users desiring to obtain an exemption for 2016 
must apply to EPA even if they have applied for critical uses in prior 
years. Because of the latest changes in registrations, costs, and 
economic aspects for producing critical use crops and commodities, 
applicants must fill out the application form completely.

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.
    Do not include on the ``Worksheet 6: 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. Please note, 
claiming business confidentiality may delay EPA's ability to review 
your application.

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?

    In October 1998, Congress amended the Clean Air Act to require EPA 
to conform the U.S. phaseout schedule for methyl bromide to the 
provisions of the Montreal Protocol on Substances that Deplete the 
Ozone Layer for industrialized countries and to allow EPA to provide a 
critical use exemption. These amendments were codified in Section 604 
of the Clean Air Act, 42 U.S.C. 7671c. Under EPA implementing 
regulations, the production and consumption of methyl bromide was 
phased out as of January 1, 2005. Section 604(d)(6), as added in 1998, 
allows EPA to exempt the production and import of methyl bromide from 
the phaseout for critical uses, to the extent consistent with the 
Montreal Protocol. EPA has defined ``critical use'' at 40 CFR 82.3.
    EPA regulations at 40 CFR 82.4 prohibit the production and import 
of methyl bromide in excess of the amount of unexpended critical use 
allowances held by the producer or importer, unless authorized under a 
separate exemption. Methyl bromide produced or imported by expending 
critical use allowances may be used only for the appropriate category 
of approved critical uses as listed in Appendix L to the regulations 
(40 CFR 82.4(p)(2)). The use of methyl bromide that was produced or 
imported through the expenditure of production or consumption 
allowances prior to 2005, while not confined to critical uses under 
EPA's phaseout regulations, are subject to the labeling restrictions 
under FIFRA.

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

    The Montreal Protocol provides that the Parties may exempt ``the 
level of production or consumption that is necessary to satisfy uses 
agreed by them to be critical uses'' (Art. 2H para 5). The Parties to 
the Protocol included this language in the treaty's methyl bromide 
phaseout provisions 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 and an exemption from the production and 
consumption phaseout:

    (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;

[[Page 32650]]

    (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., developed countries, including the U.S.] must 
demonstrate that research programs are in place to develop and 
deploy alternatives and substitutes. . . .
    The term ``significant market disruption'' is left to the 
discretion of each Party to the Protocol to interpret. EPA's 
interpretation of this term has several dimensions, including looking 
at potential effects on both demand and supply for a commodity, 
evaluating potential losses at both an individual level and at an 
aggregate level, and evaluating potential losses in both relative and 
absolute terms. EPA refers readers to the preamble for the 2006 CUE 
rule (71 FR 5989) as well as to the memo in the docket titled 
``Development of 2003 Nomination for a Critical Use Exemption for 
Methyl Bromide for the United States of America'' for further 
elaboration.

C. What is the timing for applications for the 2015 control period?

    There is both a domestic and international component to the 
critical use exemption process. The projected timeline for the process 
for the 2016 critical use exemption is below. A more detailed schedule 
is on EPA's Web site at http://www.epa.gov/ozone/mbr/cueinfo.html.
    May 31, 2013: Solicit applications for the methyl bromide critical 
use exemption for 2016.
    August 29, 2013: Deadline for submitting critical use exemption 
applications to EPA.
    Fall 2013: U.S. Government (EPA, Department of State, U.S. 
Department of Agriculture, and other interested Federal agencies) 
prepares U.S. Critical Use Nomination package.
    January 24, 2014: Deadline for U.S. Government to submit U.S. 
nomination package to the Protocol Parties.
    Early 2014: Technical and Economic Assessment Panel (TEAP) and 
Methyl Bromide Technical Options Committee (MBTOC) review the 
nominations for critical use exemptions.
    Mid 2014: Parties consider TEAP/MBTOC recommendations.
    November 2014: Parties decide whether to authorize critical use 
exemptions for methyl bromide for production and consumption in 2016.
    Mid 2015: EPA publishes proposed rule for allocating critical use 
exemptions in the U.S. for 2016.
    Late 2015: EPA publishes final rule allocating critical use 
exemptions in the U.S. for 2016.
    January 1, 2016: Critical use exemption permits the limited 
production and import of methyl bromide for specified uses for the 2016 
control period.

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

    Dated: May 16, 2013.
Sarah Dunham,
Director, Office of Atmospheric Programs.
[FR Doc. 2013-12968 Filed 5-30-13; 8:45 am]
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