

[Federal Register: April 17, 2007 (Volume 72, Number 73)]
[Notices]               
[Page 19197-19200]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr17ap07-48]                         

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ENVIRONMENTAL PROTECTION AGENCY

[EPA-HQ-OAR-2007-0262; FRL-8300-9]

 
Protection of Stratospheric Ozone: Request for Critical Use 
Exemption Applications for the Years 2009 and 2010

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 2010 and beyond. In addition, 
those applicants who missed last year's deadline to submit a critical 
use application for an exemption in the year 2009 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 10, 2007. 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 1047D, Washington DC 20005. EPA also 
encourages users to submit their applications electronically to Aaron 
Levy, Stratospheric Protection Division, at levy.aaron@epa.gov. If the 
application is submitted electronically, applicants must fax a signed 
copy of Worksheet 1 to Aaron Levy 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: Pre-plant Information: Nikhil Mallampalli, 
U.S. Environmental Protection Agency, Office of Pesticide Programs 
(7503P), 1200 Pennsylvania Ave., NW., Washington, DC 20460, 703-308-
1924. E-mail: mallampalli.nikhil@epa.gov. Post Harvest 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: cook.colwell@epa.gov.
    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: rim.elisa@epa.gov.
    Regulatory Information: Aaron Levy, U.S. Environmental Protection 
Agency, Stratospheric Protection Division (6205J), 1200 Pennsylvania 
Ave., NW., Washington, DC 20460, 202-343-9215. E-mail: 
levy.aaron@epa.gov.


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?

[[Page 19198]]

    A. When will the exemption become available to U.S. users of 
methyl bromide?
    B. What is the projected timeline for the critical use exemption 
application process?

I. What do I need to know to respond to this request for applications?

A. Who can respond to this request for information?

    Entities interested in obtaining a critical use exemption must fill 
out the application form available at http://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 2010 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).
    In addition to requesting information from applicants for the 
critical use exemption, this solicitation for information provides an 
opportunity for any interested party to provide EPA with information on 
methyl bromide alternatives (e.g. technical and/or economic feasibility 
research). The application form for the methyl bromide critical use 
exemption and other information on research relevant to alternatives 
must be sent to the addresses specified above or e-mailed to the 
address specified above. The applicant's signature, which is required 
in order for EPA to process your application, is on Worksheet 1 of the 
application. If the application is submitted electronically, applicants 
must fax a signed copy of Worksheet 1 to Aaron Levy 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://ace.orst.edu/info/npic/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
;

    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-2007-0262. 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, 
[OPP1].

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 2007, 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--
2007.pdf). [OPP2] More information about alternatives is 
available in the 2006 Report of the Methyl Bromide Technical Options 
Committee ([OPP3] http://ozone.unep.org/ teap/Reports/MBTOC/

MBTOC-2006-Assessment%20Report.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

[[Page 19199]]

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 Aaron Levy 
via e-mail at levy.aaron@epa.gov 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 1047D, Washington, DC 20005.

G. What if I submit an incomplete application?

    EPA will not accept any applications postmarked after July 10, 
2007. 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 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 (2006) 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 in November 2004, the Parties decided that 
critical use exemptions would be granted for one year. As a result, 
users must apply to EPA for critical use exemptions on an annual basis. 
However, if a user group submitted a complete application to EPA in 
2006, 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 
2006: 1, 2B, 2C, 2D, 4, 5 and 6. The remaining worksheets must only be 
completed if any information has changed since 2006. If a user has 
previously submitted a critical use exemption application to EPA in 
2002, 2003, 2004 or 2005 (first, second, third or fourth rounds) but 
did not submit an application in 2006 (fifth 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 substitutes for methyl bromide may not be available by 
2005 for certain uses of methyl bromide agreed by the Parties to be 
``critical uses''.
    In their Ninth Meeting (1997), the Parties to the Protocol agreed 
to Decision IX/6, setting forth the following criteria for a ``critical 
use'' determination:
    (a) That a use of methyl bromide should qualify as ``critical'' 
only if the nominating Party [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 TEAP to review nominations and make 
recommendations for approval based on the criteria

[[Page 19200]]

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.

------------------------------------------------------------------------

------------------------------------------------------------------------
April 17, 2007...............  Solicit applications for the methyl
                                bromide critical use exemption for 2009
                                and 2010.
July 10, 2007................  Deadline for submitting critical use
                                exemption applications to EPA.
Fall 2007....................  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, 2008.............  Deadline for U.S. government to submit
                                U.S. nomination package to the Protocol
                                Parties.
Early 2008...................  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 2008.....................  Parties consider TEAP/MBTOC
                                recommendations.
November 2008................  Parties authorize critical use exemptions
                                for methyl bromide for production and
                                consumption in 2009 (supplemental
                                request) and 2010.
Early-Mid 2009...............  EPA publishes proposal and final rule for
                                2009 supplemental request, if
                                applicable.
Mid 2009.....................  EPA publishes proposed rule for
                                allocating critical use exemptions in
                                the U.S. for 2010.
Late 2009....................  EPA publishes final rule allocating
                                critical use exemptions in the U.S. for
                                the 2010 control period.
January 1, 2010..............  Critical use exemption permits the
                                limited production and import of methyl
                                bromide beyond the phaseout date for
                                specific uses for the 2010 control
                                period.
------------------------------------------------------------------------


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

    Dated: April 9, 2007.
Brian J. McLean,
Director, Office of Atmospheric Programs.
 [FR Doc. E7-7279 Filed 4-16-07; 8:45 am]

BILLING CODE 6560-50-P
