E8-9743. Protection of Stratospheric Ozone: Request for Critical Use Exemption Applications for the Years 2010 and 2011

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Notice of Solicitation of Applications and Information on Alternatives.

SUMMARY:

EPA is soliciting applications for the critical use exemption from the phaseout of methyl bromide for 2011 and beyond. In addition, applicants who missed last year's deadline to submit a critical use application for an exemption in the year 2010 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 31, 2008. 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 1047E, Washington, DC 20005. EPA also encourages users to submit their applications electronically to Jeremy Arling, Stratospheric Protection Division, at [e-mail]. If the application is submitted electronically, applicants must fax a signed copy of Worksheet 1 to Jeremy Arling 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: Colwell Cook, U.S. Environmental Protection Agency, Office of Pesticide Programs (7503P), 1200 Pennsylvania Ave., NW., Washington, DC 20460, 703-308-8146, E-mail: [e-mail].

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: [e-mail].

Regulatory Information: Jeremy Arling, U.S. Environmental Protection Agency, Stratospheric Protection Division (6205J), 1200 Pennsylvania Ave., NW., Washington, DC 20460, 202-343-9055, E-mail: [e-mail].

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?

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 complete 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 2011 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). Given that this is the seventh round of the critical use exemption process, EPA will take a skeptical view regarding supporting new nominations (meaning, specific applicants who have not previously been nominated by the USG for an exemption) unless the applicant demonstrates that an unforeseeable change in circumstances (e.g., withdrawal or significant change in registration status of an alternative) justifies the need.

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 in order for EPA to process the application, is on Worksheet 1 of the application. Applicants submitting electronically must also fax a signed copy of Worksheet 1 to Jeremy Arling 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://npic.orst.edu/​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/​record/​mbr.html;​;

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-2008-0321. 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.

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 2008, 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_​2008.pdf). More information about alternatives is available in the 2007 Evaluations of 2007 Critical Use Nominations for Methyl Bromide and Related Matters (http://ozone.unep.org/​teap/​Reports/​MBTOC/​MBCUN-Aug2007.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 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 Jeremy Arling via e-mail at [e-mail] 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 1047E, Washington, DC 20005.

G. What If I Submit an Incomplete Application?

EPA will not accept any applications postmarked after July 1, 2008. 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 (2007) 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 November 2004, the Parties to the Montreal Protocol 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 2007, 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 2007: 1, 2B, 2C, 2D, 4, 5, and 6. The remaining worksheets must only be completed if any information has changed since 2007. If a user has previously submitted a critical use exemption application to EPA in 2002, 2003, 2004, 2005, or 2006 (first, second, third, fourth, or fifth rounds) but did not submit an application in 2007 (sixth 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 alternatives 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 Technology and Economic Assessment Panel (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 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.

May 2, 2008: Solicit applications for the methyl bromide critical use exemption for 2010 and 2011.

July 31, 2008: Deadline for submitting critical use exemption applications to EPA.

Fall 2008: 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, 2009: Deadline for U.S. government to submit U.S. nomination package to the Protocol Parties.

Early 2009: 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 2009: Parties consider TEAP/MBTOC recommendations.

November 2009: Parties authorize critical use exemptions for methyl bromide for production and consumption in 2010 (supplemental request) and 2011.

Early-Mid 2010: EPA publishes proposal and final rule for 2010 supplemental request, if applicable.

Mid 2010: EPA publishes proposed rule for allocating critical use exemptions in the U.S. for 2011.

Late 2010: EPA publishes final rule allocating critical use exemptions in the U.S. for the 2011 control period.

January 1, 2011: Critical use exemption permits the limited production and import of methyl bromide beyond the phaseout date for specific uses for the 2011 control period.

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

Dated: April 24, 2008.

Brian J. McLean,

Director, Office of Atmospheric Programs.