[Federal Register Volume 80, Number 126 (Wednesday, July 1, 2015)]
[Notices]
[Pages 37611-37615]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-16044]


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ENVIRONMENTAL PROTECTION AGENCY

[FRL-9929-86-OAR]


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

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice.

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SUMMARY: The Environmental Protection Agency (EPA) is providing notice 
of the process for submitting applications for critical use exemptions 
for 2018 and subsequent years. Critical use exemptions are exceptions 
to the phaseout of production and import of methyl bromide, a 
controlled class I ozone-depleting substance. Critical use exemptions 
must be permitted by the Parties to the Montreal Protocol on Substances 
that Deplete the Ozone Layer and must also be in accordance with the 
Clean Air Act and EPA regulations. Applications received in response to 
this notice will be considered as the basis for submitting potential 
nominations for critical use exemptions to future Meetings of the 
Parties to the Montreal Protocol. Critical use exemptions allow 
production, import, and use of methyl bromide in the specific year for 
which the Parties to the Montreal Protocol permit the use. All entities 
interested in obtaining a critical use exemption must provide EPA with 
the technical and economic information outlined in this notice to 
support a ``critical use'' claim by the deadline specified in this 
notice, even if they have applied for an exemption in previous years.

DATES: Applications for critical use exemptions must be submitted to 
EPA no later than September 15 of the calendar year three years prior 
to the calendar year for which the exemption is sought. An application 
for a critical use exemption for calendar year 2018, for example, must 
be submitted by September 15, 2015.

ADDRESSES: Application forms are available at www.epa.gov/ozone/mbr/cueinfo.html. EPA encourages users to submit applications 
electronically to [email protected]. Users can also submit 
applications 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.
    Confidentiality: Application materials that are confidential should 
be submitted under separate cover and be clearly identified as 
``confidential business information.'' Information covered by a claim 
of business confidentiality will be treated in accordance with the 
procedures for handling such information under 40 CFR part 2, subpart 
B, and will be disclosed only to the extent and by means of the 
procedures set forth in that subpart. If no claim of confidentiality 
accompanies the information when it is received by EPA, the information 
may be made available to the public by EPA without further notice to 
the submitter (40 CFR 2.203). EPA may place a copy of Worksheet 6 from 
the application in the public domain. Any information on Worksheet 6 
shall not be considered confidential and will not be treated as such by 
the Agency.

FOR FURTHER INFORMATION CONTACT: 
    General Information: U.S. EPA Stratospheric Ozone Information 
inbox, [email protected]; also 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 (6205T), 1200 
Pennsylvania

[[Page 37612]]

Ave. NW., Washington, DC 20460, 202-343-9055. EPA encourages users to 
submit their applications electronically to [email protected].

SUPPLEMENTARY INFORMATION: 

I. Background on the Critical Use Exemption

    The Montreal Protocol on Substances that Deplete the Ozone Layer is 
the international agreement aimed at protecting the ozone layer by 
reducing and eliminating the production and consumption of 
stratospheric ozone-depleting substances. Methyl bromide was added to 
the Protocol as an ozone-depleting substance in 1992 through the 
Copenhagen Amendment.
    While the Protocol requires developed countries like the United 
States to phase out the production and consumption of Methyl Bromide in 
2005, it also states that the Parties may exempt from that phaseout 
``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 the 2005 phaseout date for certain uses agreed by the 
Parties to be ``critical uses.''
    In their Ninth Meeting (1997), the Parties 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;
    (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 
[which includes the U.S.] must demonstrate that research programs are 
in place to develop and deploy alternatives and substitutes.
    In 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 Protocol 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 were 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 based on the criteria in 
paragraph (a) of Decision IX/6.
    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. 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, is subject to the labeling restrictions 
under FIFRA as specified in the product labeling.

II. Critical Use Nomination Process

    Entities requesting critical use exemptions should send a completed 
application to EPA on the candidate use by September 15, three years 
prior to the year of the intended use. This timing is necessary for the 
U.S. Government to complete its consideration for nomination to the 
United Nations Environment Programme and the Parties to the Montreal 
Protocol in a timely manner; for the Parties to reach a decision on the 
nomination; and for EPA to undertake notice-and-comment rulemaking. For 
example, applications for the 2018 growing season must be submitted by 
September 15, 2015. Critical use exemptions are valid for only one year 
and do not automatically renew. All users wanting to obtain an 
exemption must apply to EPA annually even if they have applied for 
critical uses in prior years. Because of the potential for changes to 
registration status, costs, and economic aspects of producing critical 
use crops and commodities, applicants must fill out the application 
form completely.
    Upon receipt of applications, EPA will review the information and 
work with other interested Federal agencies as required in section 604 
of the Clean Air Act to determine whether the candidate use satisfies 
Clean Air Act requirements, and whether it meets the critical use 
criteria adopted by the Parties to the Montreal Protocol and warrants 
nomination by the United States for an exemption.
    All Parties, including the United States, choosing to submit 
nominations to the UNEP Ozone Secretariat must do so by January 24 to 
be considered by the Parties at their annual meeting later that year. 
The UNEP Ozone Secretariat forwards nominations to the Montreal 
Protocol's Technical and Economic Assessment Panel (TEAP) and the 
Methyl Bromide Technical Options Committee (MBTOC). The MBTOC and the 
TEAP review the nominations to determine whether they meet the criteria 
for a critical use established by Decision IX/6, and to make 
recommendations to the Parties for critical use exemptions. The Parties 
then consider those recommendations at their annual meeting before 
making a final decision. If the Parties determine that a specified use 
of methyl bromide is critical and permit an exemption from the 
Protocol's production and consumption phaseout for that year, EPA may 
then take domestic action to allow the production and consumption to 
the extent consistent with the Clean Air Act.

III. Information Required for Critical Use Applications

    In prior years, EPA issued an annual notice requesting applications 
for critical use exemptions. Through this action, EPA provides the 
information necessary to enable applications to be submitted for 
critical use exemptions for methyl bromide for all future control 
periods (calendar years). Entities interested in obtaining a critical 
use exemption must complete the application form available at 
www.epa.gov/ozone/mbr/cueinfo.html.
    Applications requesting critical use allowances should include 
information that U.S. Government agencies and the Parties to the 
Protocol can use to evaluate the candidate use according to the 
criteria in Decision IX/6 described above. Applications that fail to 
include sufficient information may not be nominated.
    Specifically, applications should include the information requested 
in the current version of the TEAP Handbook

[[Page 37613]]

on Critical Use Nominations. The handbook is available electronically 
at http://ozone.unep.org/Assessment_Panels/TEAP/Reports/MBTOC/Handbook%20CUN-version5-27Nov06.pdf. EPA requests that applications 
contain the following information, as described in the handbook, in 
order for the U.S. to provide sufficient information to the Montreal 
Protocol's technical review bodies within the nomination:
     A clear statement on the specific circumstances of the 
nomination which describe the critical need for methyl bromide and 
quantity of methyl bromide requested;
     Data on the availability and technical and economic 
feasibility of alternatives to the proposed methyl bromide use;
     A review of the comparative performance of methyl bromide 
and alternatives including control of target pests in research and 
commercial scale up studies; \1\
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    \1\ Where an alternative is not registered for use in a 
particular jurisdiction, growers in that jurisdiction need not 
address the performance of that particular alternative.
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     A description of all technically and economically feasible 
steps taken by the applicant to minimize methyl bromide use and 
emissions;
     Data on the use and availability of stockpiled methyl 
bromide;
     A description of efforts made to test, register, and 
commercially adopt alternatives;
     Plans for phase-out of critical uses of methyl bromide; 
and
     The methodology used to provide economic comparisons.
    EPA's Web site (www.epa.gov/ozone/mbr/alts.html) contains a list of 
current and potential alternatives. To support the assertion that a 
specific use of methyl bromide meets the requirements of the critical 
use exemption, applicants must demonstrate that none of the listed 
alternatives are technically and economically feasible for that use. In 
addition, applicants should describe research plans which include the 
pest(s), chemical(s), or management practice(s) they will be testing to 
support their transition from methyl bromide.
    The Office of Management and Budget (OMB) has approved the 
information collection requirements contained in this notice under the 
provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. and 
has assigned OMB control number 2060-0482.
    Since neither the Protocol nor the Clean Air Act establish a 
specific end date for Critical Use Exemptions, anyone interested in 
obtaining a critical use exemption may apply. However, the language and 
spirit of controls on ozone depleting substances under the Montreal 
Protocol envision a phaseout of methyl bromide and for the critical use 
exemption to be a ``temporary derogation'' from that phaseout. Over the 
last decade, the research, registration, and adoption of alternatives 
has allowed many sectors to successfully transition from methyl 
bromide. The number of sectors nominated has declined from seventeen 
for 2006 to one for 2017. Below is information on how the agency 
evaluated recent applications for specific uses when considering 
nominations for critical uses, as well as specific information needed 
for the United States to successfully defend any future nominations for 
critical uses.

Commodities Such as Dried Fruit and Nuts

    Data reviewed by EPA for commodities such as dried fruit and nuts 
indicate that sulfuryl fluoride is effective against key pests. The 
industry has mostly converted to sulfuryl fluoride and no market 
disruption has occurred. Rapid fumigation is not a critical condition 
for this sector and 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 should 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 systems.
    Applicants should include the costs to retrofit equipment or design 
and construct new fumigation chambers for these alternatives. For the 
economic assessment applicants should provide: The amount of fumigant 
gas used (for 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. 
Applicants should 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, including 
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 may not be applicable for this purpose. In addition, include 
information on what pest control practices organic producers are using 
for their commodity. Applicants should also address their efforts to 
secure and use stockpiled methyl bromide.

Dried Cured Pork

    Applicants should list how many facilities have been fumigated with 
methyl bromide over the last three years; the rate, volume, and target 
concentration over time [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 important for applicants 
in this sector to specify research plans into alternatives and 
alternative practices that support the transition from methyl bromide, 
as well as information on the technical and economic feasibility of 
using recapture technologies. Applicants should also address their 
efforts to secure and use stockpiled methyl bromide. This is 
particularly important for this sector given the low volume of methyl 
bromide usage.

Cucurbits, Eggplant, Pepper, and Tomato

    EPA found in its review of applications for cucurbits, eggplant, 
pepper, and tomato that although no single alternative is effective for 
all pest problems, 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 should address potential 
changes to yield, quality, and timing when

[[Page 37614]]

converting to alternatives, including: The mixture of 1,3-
dichloropropene plus chloropicrin, the three-way mixture of 1,3-
dichloropropene plus chloropicrin plus metam (sodium or potassium) or 
allyl isothiocyanate (DominusTM) used in place of metam, 
dimethyl disulfide (DMDS), and any fumigationless system (if data are 
available).
    Applications should 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 
should 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. 
Applicants should also address their efforts to secure and use 
stockpiled methyl bromide.

Strawberry Fruit

    Based on EPA's review of information as part of the 2016 nomination 
process, EPA believes alternatives are available as advances have been 
made: (1) In safely applying 100% chloropicrin, (2) in strategies to 
improve efficacy in applying 1,3-dichloropropene, or mixtures of 1,3-
dichloropropene plus chloropicrin, (3) in using the three-way mixture 
of 1,3-dichloropropene plus chloropicrin plus metam (sodium or 
potassium) or allyl isothiocyanate (DominusTM) used in place 
of metam in states other than California, and (4) 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 should address potential 
changes to yield, quality, and timing when converting to alternatives, 
including: Straight chloropicrin, the mixture of 1,3-dichloropropene 
plus chloropicrin, the three-way mixture of 1,3-dichloropropene plus 
chloropicrin plus metam (sodium or potassium) or allyl isothiocyanate 
(DominusTM) used in place of metam in states other than 
California, or dimethyl disulfide (DMDS), and any fumigationless system 
(if data are available).
    Applications should address regulatory and economic implications 
for growers and their 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 
should 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. 
Applicants should also address their efforts to secure and use 
stockpiled methyl bromide.

Orchard Replant

    Data reviewed by EPA for orchard replant indicate that while no 
single alternative is effective for all pest problems, numerous field 
trials indicate alternatives to methyl bromide are effective. 
Therefore, EPA has concluded that transitioning to the alternatives is 
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 should address potential 
changes to yield, quality, and timing when converting to alternatives, 
including: The mixture of 1,3-dichloropropene plus chloropicrin, the 
three way-mixture of 1,3-dichloropropene plus chloropicrin plus metam 
(sodium or potassium), dimethyl disulfide (DMDS), and steam.
    Applications should 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 
should provide the following: Price per pound of fumigant gas used (for 
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. 
Applicants should also address their efforts to secure and use 
stockpiled methyl bromide.

Ornamentals

    EPA found in its review of applications for ornamentals that while 
no single alternative is effective for all pest problems, multiple-year 
data indicate 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 should address potential changes to 
yield, quality, and timing when converting to alternatives, including: 
The mixture of 1,3-dichloropropene plus chloropicrin, the three way 
mixture of 1,3-dichloropropene plus chloropicrin plus metam (sodium or 
potassium) or allyl isothiocyanate (DominusTM) used in place 
of metam, dimethyl disulfide (DMDS), and steam.
    Applications should address regulatory and economic implications 
for growers and their 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 
should 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. 
Applicants should also address their efforts to secure and use 
stockpiled methyl bromide.

Nurseries

    In considering this sector in the 2016 nomination process, EPA 
noted that a Special Local Need label allows Telone II to be used in 
accordance with certification standards for propagative material.\2\
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    \2\ 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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    To support a nomination, applicants should address potential 
changes to yield, quality, and timing when converting to alternatives, 
including: The mixture of 1,3-dichloropropene plus chloropicrin, the 
three-way mixture of 1,3-dichloropropene plus

[[Page 37615]]

chloropicrin plus metam (sodium or potassium) or allyl isothiocyanate 
(DominusTM) used in place of metam in states other than 
California, dimethyl disulfide (DMDS), and steam.
    Applications should 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 
should provide the following: Price per pound of fumigant gas used (for 
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. 
Applicants should also address their efforts to secure and use 
stockpiled methyl bromide.

Golf Courses

    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 should address potential changes to quality when 
converting to alternatives, including: Basamid, chloropicrin, 1,3-
dichloropene, 1,3-dichloropene plus chloropicrin, metam sodium, or 
allyl isothiocyanate (DominusTM), and steam. Non-fumigant 
alternatives currently in use (e.g., additional pesticides, 
fertilizers, different cultural practices, and increased management) 
should also be described.
    Applications should 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 
compared to the alternatives. For the economic assessment, applicants 
should 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, years 
between fumigations); 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 
could be included that would demonstrate that alternatives lead to more 
frequent resurfacing and therefore, greater adverse economic impacts. 
Applicants should also address their efforts to secure and use 
stockpiled methyl bromide.

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

    Dated: June 23, 2015.
Sarah Dunham,
Director, Office of Atmospheric Programs.
[FR Doc. 2015-16044 Filed 6-30-15; 8:45 am]
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