[Federal Register: May 23, 2005 (Volume 70, Number 98)]
[Notices]
[Page 29494-29497]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr23my05-51]
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ENVIRONMENTAL PROTECTION AGENCY
[FRL-7916-3]
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 for 2007 and beyond. This
application process offers users of methyl bromide the opportunity to
provide technical and economic information to support a ``critical
use'' claim. Today's notice also invites interested parties to provide
information on the technical and economic feasibility of methyl bromide
alternatives.
[[Page 29495]]
Methyl bromide is a chemical pesticide that has been identified
under the Montreal Protocol on Substances that Deplete the Ozone Layer
and the Clean Air Act as an ozone-depleting substance. The complete
phaseout of methyl bromide took effect on 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. Critical Use
Exemptions are exemptions from the January 1, 2005 methyl bromide
phaseout.
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, 2005.
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 827L, Washington DC 20005. EPA also
encourages users to submit their applications electronically to Marta
Montoro, Stratospheric Protection Division, at montoro.marta@epa.gov.
If the application is submitted electronically, applicants are
requested to fax a signed copy of Worksheet 1 to Marta Montoro at (202)
343-2337 or (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: Colwell Cook, U.S. Environmental Protection
Agency, Office of Pesticide Programs (7503C), 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 (7503C), 1200 Pennsylvania Ave.,
NW., Washington, DC, 20460, 703-308-8123. E-mail: rim.elisa@epa.gov.
Regulatory Information: Marta Montoro, U.S. Environmental
Protection Agency, Stratospheric Protection Division (6205J), 1200
Pennsylvania Ave., NW., Washington, DC, 20460, 202-343-9321. E-mail:
montoro.marta@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 already applied in 2002 and/or 2003 and/or 2004?
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 will the U.S. implement the Critical Use Exemption?
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?
The application form may be submitted either by a consortium
representing multiple users or by individual users who anticipate
needing methyl bromide in 2007 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 emailed to the address specified above. The applicant's
signature, which is required for processing and is required on
Worksheet 1 of the application, may be faxed to Marta Montoro at
(202) 343-2337 or (202) 343-2338.
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 website: 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 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, 20004.
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/
[[Page 29496]]
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 (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 United States.
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 Five: Application Summary'' page of the application any
information that you wish to claim as confidential business
information. These application information summary sheets will be
posted on the EPA Web site (http://www.epa.gov/ozone/mbr) and included in
Air Docket No. OAR-2003-0017. Applications that are 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
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 827L,
Washington, DC 20005.
G. What if I submit an incomplete application?
EPA will not accept any applications postmarked after August 8,
2005. If the application is completed but postmarked after August 8,
2005, EPA will not accept the application. If the application is
postmarked by the deadline but is incomplete or missing any of the
following data elements listed in the ``Re-Application Information
Document'' available at http://www.epa.gov/ozone/mbr EPA will not
accept the application and will not include the application in the
U.S. nomination submitted for international consideration. These
required elements include Worksheets 1, 2B, 2C, 2D, 4, and 5.
However, the entire application (all Worksheets) must be submitted
and applicants must submit any new data or updated information that
is relevant. However, if the application is substantially complete
with only minor errors, corrections will be accepted. EPA reviewers
may also call applicants for further elaboration about their
application, even if it is complete. All consortia or users who have
not applied to EPA in the previous year (2004) must submit an entire
completed application with all Worksheets.
H. What if I already applied in 2002 and/or 2003 and/or 2004?
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 2004, the user is only required to submit revised copies of
the selected Worksheets listed above, though the entire application
with all Worksheets must be on file with EPA. A list of the
Worksheets is detailed above and is also available at http://www.epa.gov/ozone/mbr.
The remaining worksheets must only be
completed if any information has changed since 2004.
If a user has previously submitted a critical use exemption
application to EPA in 2002 or 2003 (first and second rounds) but did
not submit an application in 2004 (third round) then the all
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
[[Page 29497]]
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 + import -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 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 became available to approved users on
January 1, 2005. Allowances for subsequent years will be authorized
through regulations. Until that date, all production and import of
methyl bromide (except for those quantities that qualify for the
quarantine and preshipment exemption) were required to conform to
the phasedown schedule listed above (see Supplementary Information
Section II A). 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.
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May 23, 2005...................... Solicit applications for the methyl
bromide Critical Use Exemption for
2007 and beyond.
August 8, 2005.................... Deadline for submitting Critical Use
Exemption applications to EPA.
Fall 2005......................... 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, 2006.................. Deadline for U.S. government to
submit U.S. nomination package to
the Protocol Parties.
Early 2006........................ 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 2006.......................... Parties consider TEAP/MBTOC
recommendations.
Late 2006......................... Parties authorize Critical Use
Exemptions for methyl bromide for
production and consumption in 2007
(supplemental request) and 2008.
Early-Mid 2007.................... EPA publishes proposal and final
rule for 2007 supplemental request.
Mid 2007.......................... EPA publishes proposed rule for
allocating Critical Use Exemptions
in the U.S. for 2008.
Late 2007......................... EPA publishes final rule allocating
Critical Use Exemptions in the U.S.
for the 2008 control period.
January 1, 2008................... Critical Use Exemption permits the
limited production and import of
methyl bromide beyond the phaseout
date for specific uses for the 2008
control period.
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Authority: 42 U.S.C. 7414, 7601, 7671-7671q.
Dated: May 16, 2005.
Brian J. McLean,
Director, Office of Atmospheric Programs.
[FR Doc. 05-10195 Filed 5-20-05; 8:45 am]
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