[Federal Register Volume 69, Number 89 (Friday, May 7, 2004)]
[Notices]
[Pages 25570-25573]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-10474]


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ENVIRONMENTAL PROTECTION AGENCY

[OAR-2003-0017; FRL-7359-9]


Protection of Stratospheric Ozone; Process for Exempting Critical 
Uses of Methyl Bromide

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. This application process offers 
users of methyl bromide the opportunity to provide technical and 
economic information to support a ``critical use'' claim. Methyl 
bromide is a chemical pesticide that has been identified under 
theMontreal Protocol on Substances that Deplete the Ozone Layer and the 
Clean Air Act, as an ozone-depleting substance. It is scheduled for 
complete phaseout by January 1, 2005. The Critical Use Exemption is 
designed to allow continued production and import of methyl bromide 
after the phaseout for those uses that have no technically and 
economically feasible alternatives. Today's solicitation is for the 
third round of applications for Critical Use Exemptions beyond the 
January 1, 2005 methyl bromide phaseout, specifically for 2006 and 2007 
calendar years. Applicants for the exemption are requested to submit 
technical and economic information to EPA for U.S. review. The U.S. 
will then create a national nomination for review by the Parties to the 
Montreal Protocol. EPA encourages users with similar circumstances of 
use to submit a single application. Please contact your state 
regulatory agency to receive information about their involvement in the 
process.

DATES: Applications for the Critical Use Exemption must be postmarked 
on or before August 8, 2004. The response period is now 90 days 
reflecting the clarifications and reduction of burden in the 
application.

ADDRESSES: Applications for the methyl bromide Critical Use Exemption 
should be submitted in triplicate (three copies):
    1. By mail: U.S. Environmental Protection Agency, Office of Air and 
Radiation, Global Programs Division (6205J), Attention: Methyl Bromide 
Review Team, 1200 Pennsylvania Ave., NW., Washington, DC 20460, or
    2. By courier delivery (other than U.S. Post Office overnight): 
U.S. Environmental Protection Agency, Office of Air and Radiation, 
Global Programs Division, Attention: Methyl Bromide Review Team, 1310 L 
St., NW., Washington, DC 20005.

FOR FURTHER INFORMATION CONTACT: General information: U.S. EPA 
Stratospheric Ozone Information Hotline, 1-800-296-1996.
    Technical information: Bill Chism, U.S. Environmental Protection 
Agency, Office of Pesticide Programs, Biological and Economic Analysis 
Division (7503C), 1200 Pennsylvania Ave., NW., Washington, DC 20460; 
telephone number: 703-308-8136.
    Economic information: Jin Kim, U.S. Environmental Protection 
Agency, Office of Pesticide Programs, Biological and Economic Analysis 
Division (7503C), 1200 Pennsylvania Ave., NW., Washington, DC 20460; 
telephone number: 703-308-8134.
    Regulatory information: Marta Montoro, U.S. Environmental 
Protection Agency, Office of Atmospheric Programs, Global Programs 
Division (6205J), 1200 Pennsylvania Ave., NW., Washington, DC 20460; 
telephone number: 202-343-9321.

SUPPLEMENTARY INFORMATION:

I. What Do I Need to Know to Respond to this Request for Applications?

A. Who Can Respond to this Request for Information?

    The Application Form may be submitted either by a consortium 
representing multiple users or by individual users who anticipate 
needing methyl bromide in 2005 and believe there are no technically and 
economically feasible alternatives. EPA encourages users with similar 
circumstances of use to submit a single application (e.g., 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 Unit I.B.).
    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

[[Page 25571]]

bromide Critical Use Exemption and other information on research 
relevant to alternatives must be sent to the addresses listed under 
ADDRESSES.

B. Who 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 website is one 
resource available for identifying the lead pesticide agency in your 
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 at EPA website: http://www.epa.gov/ozone/mbr.
    2. Microsoft Excel and other electronic spreadsheet formats at EPA 
website: http://www.epa.gov/ozone/mbr.
    3. Mailed hard-copy ordered through the Stratospheric Ozone 
Protection Hotline at 1-800-296-1996.
    4. Hard-copy format at Air Docket No. OAR-2003-0017. The docket is 
located in room B-102, EPA West Building, U.S. Environmental Protection 
Agency, 1301 Constitution Ave., NW., Washington, DC 20460. The Docket 
Office is open from 8:30 a.m. until 4:30 p.m., Monday through Friday. A 
reasonable fee may be charged by EPA for copying docket materials.

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(http://www.epa.gov/ozone/mbr/in_alt_in.html). The chemicals and non-chemical 
practices included on this index were identified by the international 
technical advisory groups under the Montreal Protocol: the Methyl 
Bromide Technical Options Committee (MBTOC) and the Technical and 
Economic Assessment Panel (TEAP). The MBTOC and the TEAP determined 
that alternatives in the International Index have the ``technical 
potential'' to replace methyl bromide in at least one circumstance of 
use on the identified crop (Report of the Technical and Economic 
Assessment Panel, 1997)(http://www.teap.org/html/teap_reports.html). A 
corresponding U.S. Index of alternatives (also listed by crop) has been 
developed by the U.S. government regarding chemical alternatives(http://www.epa.gov/ozone/mbr/us_alt_in.html). This U.S. Index reflects 
whether chemical alternatives included in the International Index have 
been registered for use in the U.S.
    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 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 otherwisenon-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 36902, 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 
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 (CBI). These application 
information summary sheets will be posted on the EPA website (http://www.epa.gov/ozone/mbr) and included in Air Docket No. OAR-2003-0017. 
Applications that are not CBI will be placed in the Docket in their 
entirety. Please note, providing CBI 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 Marta 
Montoro via e-mail at [email protected]. or via mail at U.S. 
Environmental Protection Agency, Office of Air and Radiation, Global 
Programs Division (6205J), 1200 Pennsylvania Ave., NW., Washington, DC 
20460 or by courier at U.S. Environmental Protection Agency, Office of 
Air and Radiation, Global Programs Division, 1310 L St., NW., 
Washington, DC 20005; telephone number: 202-343-9321.

G. What if I Submit an Incomplete Application?

    If EPA determines that an application is lacking sufficient 
information needed in order to be processed by the technical reviewers, 
applicants will be notified by telephone or in writing. If the required 
information is not submitted 30 days after the request, the application 
will not be processed. However, reviewers may also call applicants for 
further

[[Page 25572]]

elaboration about their application, even if it is complete.

H. What if I Already Applied in 2002 and/or 2003?

    In March 2004, the Parties decided that exemptions would be granted 
for 1 year. As a result, anyone wishing to obtain a CUE to use methyl 
bromide in 2007 must re-apply. The data required for updating 
applications will be noted in the 2004 CUE application. Additional 
guidance will be available at http://www.EPA.gov/ozone/mbr.

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 (Public Law No. 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 of June 1, 1999 
(64 FR 29240) (FRL-6351-6), and November 28, 2000 (65 FR 70795) (FRL-
6906-4), 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 (Public Law 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). 
Class I controlled substances that were produced or imported through 
the expenditure of allowances prior to their 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 established in 
paragraphs (a)(ii) and (b) of Decision IX/6.

III. How Will the U.S. Implement 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 will be available to approved uses 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) must conform to the phasedown schedule listed 
above (see Unit II.A.). For more information on the quarantine and 
preshipment exemption, please refer to 68 FR 238 (January 2, 2003) 
(FRL-7434-1).

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 table represents a 
projected timeline for the process; note that this year's application 
and nomination cycle overlaps with the beginning of the phaseout:

 
------------------------------------------------------------------------
 
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May 7, 2004                                 Solicit applications for the
                                             methyl bromide Critical Use
                                             Exemption for 2006 and 2007
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August 8, 2004                              Deadline for submitting
                                             Critical Use Exemption
                                             applications to EPA
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[[Page 25573]]

 
Late 2004                                   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 31, 2005                            Deadline for U.S. government
                                             to submit U.S. nomination
                                             package to the Protocol
                                             Parties
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Early 2005                                  Review of the nominations
                                             packages for Critical Use
                                             Exemptions by the Technical
                                             and Economic Assessment
                                             Panel (TEAP) and Methyl
                                             Bromide Technical Options
                                             Committee (MBTOC)
------------------------------------------------------------------------
Mid 2005                                    Parties consider TEAP/MBTOC
                                             recommendations
------------------------------------------------------------------------
Late 2005                                   Parties authorize Critical
                                             Use Exemptions for methyl
                                             bromide for production and
                                             consumption in 2007
------------------------------------------------------------------------
Mid 2004                                    EPA publishes proposed rule
                                             for allocating Critical Use
                                             Exemptions in the U.S.
------------------------------------------------------------------------
Late 2004                                   EPA publishes final rule
                                             allocating Critical Use
                                             Exemptions in the U.S.
------------------------------------------------------------------------
January 1, 2005                             Critical Use Exemption
                                             permits the limited
                                             production and import of
                                             methyl bromide beyond the
                                             phaseout date for specific
                                             uses
------------------------------------------------------------------------

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

List of Subjects

    Environmental protection, Critical Use Exemption, Methyl bromide, 
Pesticide.


    Dated: May 4, 2004.
Brian J. McLean,
Director, Office of Atmospheric Programs.

[FR Doc. 04-10474 Filed 5-6-04; 8:45 am]
BILLING CODE 6560-50-S