Lenexa, Kan. – The U.S. Environmental Protection Agency (EPA) plans to consider a proposed rule that would look at potential exemptions to the TSCA Fees Rule in response to stakeholder concerns about implementation challenges. By considering a proposal to narrow the broad scope of the current requirements, the agency could significantly reduce burden on potentially thousands of businesses across the country while maintaining the ability to successfully implement the Lautenberg Act amendments to the Toxic Substances Control Act (TSCA) to protect human health and the environment.
“Stakeholders are important partners in the work we do to ensure the safety of chemicals and seeking feedback from the public is a standard and valuable part of all our processes,” said EPA Assistant Administrator for the Office of Chemical Safety and Pollution Prevention Alexandra Dapolito Dunn. “After reviewing their input and concerns regarding the TSCA Fees Rule, we are taking action to continue evaluating potential risks from chemicals while ensuring our requirements are practical and realistic.”
The agency plans to initiate a new rulemaking process to consider proposing exemptions to the current rule’s self-identification requirements associated with EPA-initiated risk evaluations for manufacturers that:
- Import the chemical substance in an article;
- Produce the chemical substance as a byproduct; and
- Produce or import the chemical substance as an impurity.
The agency may also consider proposing other changes to the rule during this process consistent with TSCA’s requirement to reevaluate the Fees Rule every three years.
EPA believes that considering exempting certain entities from self-identification requirements will not impede the ability to fully collect the necessary fees and will still allow the agency to achieve the ultimate objective of the TSCA Fees Rule and the statute – to defray a portion of EPA’s TSCA implementation costs. EPA intends to issue proposed amendments to the current fees rule later this year and with the goal of finalizing the amendments in 2021.
Additionally, in light of the extremely unusual circumstances of this situation and the undue hardship imposed on certain businesses who would be required to collect and report information under the TSCA Fees Rule, EPA issued a “no action assurance” for the three categories of manufacturers at this time. More specifically, EPA will exercise its enforcement discretion regarding the self-identification requirement for the three categories of manufacturers that the agency intends to propose an exemption from certain requirements in the TSCA Fee Rule.
For businesses that are erroneously on the preliminary lists of fee payers or fall into one of the three categories discussed above, see the agency’s FAQs for more information about how to certify as such to EPA and to avoid fee obligations.
More information on the announcement, as well as a copy of the no-action assurance, can be found at https://www.epa.gov/tsca-fees/information-plan-reduce-tsca-fees-burden-and-no-action-assurance.
Background
In January, the agency published preliminary lists of businesses that manufacture (including import) the 20 chemicals designated as high-priority substances for risk evaluation in December of 2019 in docket EPA-HQ-OPPT-2019-0677. Following the release of these lists, many stakeholders raised questions and concerns about the scope of the TSCA Fees Rule requirements for self-identifying and paying fees. Importers of articles have noted challenges in knowing with certainty whether high-priority substances are present in their imported articles and components. Manufacturers of chemicals as byproducts or impurities have noted similar challenges in knowing whether they are subject to the rule, given the coincidental or unintentional nature of these types of production. The lack of exemptions in the current rule makes both the tracking of information and the obligation to self-identify very difficult, if not impossible for some stakeholders.
Earlier this month, the agency extended the comment period by 60 days for the preliminary lists of manufacturers (including importers) subject to fees associated with EPA-initiated risk evaluations under TSCA. As the agency continues to work through implementation issues associated with the current rule, stakeholders can expect more guidance on reporting requirements and expectations during this period.
Learn more about TSCA fees.
