82 FR 25790 - Chemical Data Reporting; Requirements for Inorganic Byproduct Chemical Substances; Notice of Establishment of Negotiated Rulemaking Committee; Notice of Public Meetings

ENVIRONMENTAL PROTECTION AGENCY

Federal Register Volume 82, Issue 106 (June 5, 2017)

EPA is giving notice that it is establishing a Negotiated Rulemaking Committee (Committee) under the Negotiated Rulemaking Act (NRA). The objective of the Committee is to negotiate a proposed rule that would limit chemical data reporting requirements under section 8(a) of the Toxic Substances Control Act (TSCA), as amended by the Frank R. Lautenberg Chemical Safety for the 21st Century Act, for manufacturers of any inorganic byproduct chemical substances when such byproduct chemical substances are subsequently recycled, reused, or reprocessed. The purpose of the Committee is to conduct discussions in a good faith attempt to reach consensus on proposed regulatory language. This negotiation process is required by section 8(a)(6) of TSCA. This notice lists the stakeholder groups from which EPA plans to invite representatives to participate as members of the Committee, all of whom have been identified as having a definable stake in the outcome of the proposed requirements. This notice also announces the first two meetings of the Committee, which are open to the public.

[Federal Register Volume 82, Number 106 (Monday, June 5, 2017)]
[Notices]
[Pages 25790-25794]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2017-11570]


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ENVIRONMENTAL PROTECTION AGENCY

[EPA-HQ-OPPT-2016-0597; FRL-9961-92]


Chemical Data Reporting; Requirements for Inorganic Byproduct 
Chemical Substances; Notice of Establishment of Negotiated Rulemaking 
Committee; Notice of Public Meetings

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice of establishment of Negotiated Rulemaking Committee and 
notice of public meetings.

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[[Page 25791]]

SUMMARY: EPA is giving notice that it is establishing a Negotiated 
Rulemaking Committee (Committee) under the Negotiated Rulemaking Act 
(NRA). The objective of the Committee is to negotiate a proposed rule 
that would limit chemical data reporting requirements under section 
8(a) of the Toxic Substances Control Act (TSCA), as amended by the 
Frank R. Lautenberg Chemical Safety for the 21st Century Act, for 
manufacturers of any inorganic byproduct chemical substances when such 
byproduct chemical substances are subsequently recycled, reused, or 
reprocessed. The purpose of the Committee is to conduct discussions in 
a good faith attempt to reach consensus on proposed regulatory 
language. This negotiation process is required by section 8(a)(6) of 
TSCA. This notice lists the stakeholder groups from which EPA plans to 
invite representatives to participate as members of the Committee, all 
of whom have been identified as having a definable stake in the outcome 
of the proposed requirements. This notice also announces the first two 
meetings of the Committee, which are open to the public.

DATES: The first of the Committee meetings, which are both open to the 
public, will be held on June 8, 2017, from 9 a.m. to 5 p.m. and on June 
9, 2017, from 9 a.m. to 3:00 p.m. The second Committee meeting will be 
held on August 16, 2017, from 9 a.m. to 5 p.m. and on August 17, 2017, 
from 9 a.m. to 3:00 p.m.

ADDRESSES: Both meetings will be held at William Jefferson Clinton East 
Building, Room 1153, 1201 Constitution Avenue NW., Washington, DC 
20004.

FOR FURTHER INFORMATION CONTACT: Any member of the public wishing to 
obtain information concerning the public meetings may contact Jonah 
Richmond, Designated Federal Officer (DFO), Conflict Prevention and 
Resolution Center, Office of General Counsel, 1200 Pennsylvania Ave. 
NW., Washington, DC 20460-0001; telephone number: (202) 564-0210; email 
address: [email protected]. General information about the 
Committee, as well as any updates concerning the meetings announced in 
this notice, may be found at https://www.epa.gov/chemical-data-reporting/negotiated-rulemaking-committee-chemical-data-reporting-requirements.
    For information on access or services for individuals with 
disabilities, or to request accommodation for a disability, please 
contact the DFO, preferably at least ten days prior to the meetings to 
give EPA as much time as possible to process your request.
    For technical information contact: Susan Sharkey, Chemical Control 
Division (7405M), Office of Pollution Prevention and Toxics, 
Environmental Protection Agency, 1200 Pennsylvania Ave. NW., 
Washington, DC 20460-0001; telephone number: (202) 564-8789; email 
address: [email protected].
    For general information contact: The TSCA-Hotline, ABVI-Goodwill, 
422 South Clinton Ave., Rochester, NY 14620; telephone number: (202) 
554-1404; email address: [email protected].

SUPPLEMENTARY INFORMATION:

I. General Information

A. Does this action apply to me?

    You may be potentially affected by this action if you manufacture 
(including manufacture as a byproduct chemical substance and including 
import) chemical substances listed on the TSCA Inventory. The following 
list of North American Industrial Classification System (NAICS) codes 
are not intended to be exhaustive, but rather provides a guide to help 
readers determine whether this action may apply to them:
    1. Chemical manufacturers and importers (NAICS codes 325 and 
324110; e.g., chemical manufacturing and processing and petroleum 
refineries).
    2. Chemical users and processors who may manufacture a byproduct 
chemical substance (NAICS codes 22, 322, 331, and 3344; e.g., 
utilities, paper manufacturing, primary metal manufacturing, and 
semiconductor and other electronic component manufacturing).
    If you have any questions regarding the applicability of this 
action to a particular entity, consult the technical person listed 
under FOR FURTHER INFORMATION CONTACT.

B. How can I get copies of this document and other related information?

    The docket for this action, identified by docket identification 
(ID) number EPA-HQ-OPPT-2016-0597, is available at http://www.regulations.gov or at the Office of Pollution Prevention and Toxics 
Docket (OPPT Docket), Environmental Protection Agency Docket Center 
(EPA/DC), West William Jefferson Clinton Bldg., Rm. 3334, 1301 
Constitution Ave. NW., Washington, DC. The Public Reading Room is open 
from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal 
holidays. The telephone number for the Public Reading Room is (202) 
566-1744, and the telephone number for the OPPT Docket is (202) 566-
0280. Please review the visitor instructions and additional information 
about the docket available at http://www.epa.gov/dockets.

II. Background

A. What action is the agency taking?

    As required by the Negotiated Rulemaking Act of 1996 (NRA), EPA is 
giving notice that the agency is establishing a Negotiated Rulemaking 
Committee. The objective of this Committee is to develop a proposed 
rule providing for limiting chemical data reporting requirements, under 
TSCA section 8(a), for manufacturers of any inorganic byproduct 
chemical substances when such byproduct chemical substances are 
subsequently recycled, reused, or reprocessed. This negotiation 
process, which includes the establishment of a federal advisory 
committee, is required by TSCA section 8(a)(6), as amended by the 
Frank. R. Lautenberg Chemical Safety for the 21st Century Act 
(Lautenberg Act).
    This Committee will be a statutory advisory committee under the 
Federal Advisory Committee Act, 5 U.S.C. App. 2 Sec.  9(a)(1). In 
accordance with Section 9(c) of the Federal Advisory Committee Act, 5 
U.S.C. App. I Sec.  9(c), EPA prepared a charter for the establishment 
of the Negotiated Rulemaking Committee. Copies of the Committee's 
charter will be filed with the appropriate congressional committees, 
the Library of Congress, and available online at https://www.epa.gov/chemical-data-reporting/negotiated-rulemaking-committee-chemical-data-reporting-requirements. On December 15, 2016, EPA announced its intent 
to negotiate and establish this Committee (81 FR 90843). More 
information on this notice and comments received in response are in 
Unit VII.
    This notice announces the stakeholder groups from which EPA intends 
to invite individuals as members of the Committee, all of whom will 
have been identified as having a definable stake in the outcome of the 
proposed requirements. EPA is also announcing the first two meetings of 
the Committee. These meetings have been scheduled for the dates 
indicated under DATES, and are open to the public. Under normal 
circumstances, a notice of the Committee meeting must be published no 
later than 15 days before the date of that meeting. Due to unavoidable 
administrative circumstances, we are publishing this notice with less 
than 15 days' advance notice for the first Committee meeting on June 8 
and 9, 2017.

[[Page 25792]]

B. What is the agency's authority for this action?

    This notice announcing EPA's establishment of a Negotiated 
Rulemaking Committee to negotiate a proposed regulation was developed 
under the authority of NRA sections 563 and 564 (5 U.S.C. 561, Pub. L. 
104-320). Any proposed regulation resulting from the negotiation 
process would be developed under the authority of TSCA section 8 (15 
U.S.C. 2607), as amended by the Lautenberg Act (Pub. L. 114-182).

C. Chemical Data Reporting (CDR) Framework

    Under TSCA, EPA regulates the manufacture (including import), 
processing, distribution, use, and disposal of chemical substances in 
the United States. Information submitted by manufacturers (including 
importers) as required by CDR provides exposure-related data for 
chemical substances in U.S. commerce that are subject to TSCA. This 
information supports agency risk evaluation, risk management, and other 
programs; it is made publicly available, to the extent possible, while 
protecting information claimed as confidential business information.
    Prior to 2011, CDR was known as the Inventory Update Reporting 
(IUR) regulation. In 1986, EPA promulgated IUR regulations under the 
authority of TSCA section 8(a) to collect limited information on the 
manufacture (including import) of organic chemical substances listed on 
the TSCA Inventory, thereby providing more up-to-date production volume 
information on the chemical substances in U.S. commerce. In 2005, EPA 
amended IUR regulations to require the reporting of information on 
inorganic chemical substances and to collect additional manufacturing, 
processing, and use information. EPA has since made additional changes 
to the reporting requirements, and in 2011 changed the name of the 
reporting rule to Chemical Data Reporting. CDR regulations are 
currently codified at 40 CFR part 711. EPA believes CDR is the only 
current reporting obligation under TSCA section 8(a) that is likely to 
affect the manufacturers of inorganic byproduct chemical substances.
    Manufacturers of inorganic chemical substances first reported this 
information in 2006, with subsequent reporting in 2012 and 2016. 
Specific reporting requirements for these manufacturers were phased in, 
to allow for the industry to better understand the reporting 
requirements and for EPA to gain a better understanding of the 
industry.

D. Inorganic Byproduct Chemical Substances Under CDR

    A byproduct chemical substance is a chemical substance produced 
without a separate commercial intent during the manufacture, 
processing, use, or disposal of another chemical substance or mixture. 
40 CFR 704.3, definition of byproduct. Such byproduct chemical 
substances may, or may not, in themselves have commercial value, but 
they are nonetheless produced for the purpose of obtaining a commercial 
advantage. 40 CFR 704.3, definition of manufacture for commercial 
purposes. Because byproduct chemical substances are manufactured for a 
commercial purpose, this manufacturing is reportable under CDR unless 
covered by a specific reporting exemption. CDR contains a specific 
reporting exemption for the manufacture of byproduct chemical 
substances limited to cases where those byproduct chemical substances 
are not used for any commercial purposes (or are only used for certain 
limited commercial purposes) after they are manufactured. 40 CFR 
711.10(c). Inorganic byproduct chemical substances are often recycled. 
The recycling of a byproduct chemical substance may qualify as a 
commercial purpose beyond the limited commercial purposes encompassed 
by 40 CFR 711.10(c). If so, the exemption from a manufacturer of a 
byproduct chemical substance from reporting this to CDR is not 
applicable.
    On June 22, 2016, TSCA was amended by the Lautenberg Act. TSCA now 
includes a requirement that EPA enter into a negotiated rulemaking, 
pursuant to the NRA, to develop and publish a proposed rule to limit 
the reporting requirements under TSCA section 8(a), for manufacturers 
of any inorganic byproduct chemical substances when such byproduct 
chemical substances, whether by the byproduct chemical substance 
manufacturer or by any other person, are subsequently recycled, reused, 
or reprocessed. The objective of the negotiated rulemaking process is 
to develop and publish a proposed rule by June 22, 2019. In the event 
the Committee reaches a consensus and a proposed rule is developed 
through the negotiated rulemaking process, a final rule ``resulting 
from such negotiated rulemaking'' must be issued by December 22, 2019. 
15 U.S.C. 2607(a)(6).

III. Facilitators

    In its Notice of Intent to Establish a Negotiated Rulemaking 
Committee and Negotiate a Proposed Rule (81 FR 90843, December 15, 
2016), EPA stated that it was seeking a facilitator to conduct the 
negotiations. Christopher Moore, Ph.D., of Collaborative Decision 
Resources Associates, and Laura Sneeringer, of the Consensus Building 
Institute, have been retained for this purpose.

IV. Committee Membership

A. Qualifications for Stakeholder Representatives

    The facilitators conducted extensive interviews with interested 
stakeholders, asking for recommendations for potential Committee 
members. To facilitate representative selection, the facilitators 
suggested qualifications, knowledge, and skills that should be 
possessed by representatives, which would help promote productive 
deliberations. These included:
     Knowledge of technical issues related to inorganic 
byproducts;
     Experience with CDR and inorganic byproduct reporting;
     Direct representation of a constituency or a stakeholder 
group as a whole, such as an industry, or as component parts, such as 
large or small companies;
     Not serving as external technical consultants or legal 
counsel without constituents;
     Authority to reach agreements and make commitments for 
their stakeholder group;
     Willingness and flexibility to discuss issues that will be 
the focus of the dialogue with parties that may have different views or 
interests;
     Willingness to engage in productive interest-based 
negotiations and avoid adversarial or legal argumentation; and
     A commitment to negotiate in good faith and strive to find 
solutions that will meet all parties' interests to the greatest extent 
possible.

B. Represented Stakeholders

    EPA is planning to invite representatives from the following 
stakeholder groups to serve on the Committee:
     Inorganic chemical manufacturers and processors, including 
metal mining and related activities;
     Recyclers, including scrap recyclers;
     Industry advocacy groups;
     Environmental advocacy groups; and
     Federal, State, and Tribal governments.

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V. Participation by Non-Members

A. Attending Meetings

    EPA values public input during this process. The meetings announced 
in this notice will be open to the public, so interested parties may 
observe the meetings and communicate their views in the appropriate 
time and manner, as defined in each meeting's agenda. Consistent with 
the requirements of FACA, formal meeting materials and summaries will 
be available online.

B. Oral Statements

    In general, individuals or groups requesting an oral presentation 
at a public meeting will be limited to five minutes. Each person making 
an oral statement should consider providing written comments as well as 
their oral statement so that the points presented orally can be 
expanded upon in writing. Interested parties should submit requests by 
email to [email protected] one week prior to the meeting dates, in order 
to be placed on the list of public speakers.

C. Written Statements

    Written statements will be accepted throughout the advisory 
process; however, for timely consideration, statements should be 
supplied by email to [email protected] one week prior to the meeting 
dates. Members of the public should be aware that written comments, 
including personal contact information, if included, may be posted to 
the Committee Web site as well as placed in the EPA docket supporting 
this activity. Copyrighted material will not be posted without explicit 
permission of the copyright holder. Additionally, EPA will invite 
public comment on any proposed rule resulting from the Committee's 
deliberations.

VI. Meeting Schedule and Agenda

A. Meeting Schedule

    EPA anticipates up to five Committee meetings will be held between 
June and October 2017, including the Committee meetings that EPA is 
announcing in this Notice. Committee meetings will be one and a half 
days each, and held in Washington, DC, unless the Committee decides 
otherwise. The Committee will separately announce those meetings 
subsequent to the meetings being announced in this notice.

B. The First Committee Meeting

    The first Committee meeting will be held on June 8, 2017, from 9 
a.m. to 5 p.m. and on June 9, 2017, from 9 a.m. to 3:00 p.m. The second 
Committee meeting will be held on August 16, 2017, from 9 a.m. to 5 
p.m. and on August 17, 2017, from 9 a.m. to 3:00 p.m. Both meetings 
will be open to the public. Meeting details and agenda information will 
be available online at https://www.epa.gov/chemical-data-reporting/negotiated-rulemaking-committee-chemical-data-reporting-requirements, 
as well as in the EPA docket supporting this activity.

VII. Notice of Intent To Negotiate and Response to Public Comments

    On December 15, 2016, EPA published a notice of intent to establish 
a Committee to negotiate a proposed rule that would limit chemical data 
reporting requirements under section 8(a) of TSCA, for manufacturers of 
any inorganic byproduct chemical substances, when such byproduct 
chemical substances are subsequently recycled, reused, or reprocessed 
(81 FR 90843). The notice requested comment on membership, the 
interests affected by the rulemaking, the issues the Committee should 
address, and the procedures it should follow.
    EPA received 18 comments on the notice of intent, which can all be 
found in the docket for this Notice. None of the comments opposed using 
regulatory negotiation for this rulemaking; most endorsed the process 
and included requests to serve on the Committee. However, one commenter 
raised four substantive issues, which EPA is responding to here.

A. EPA Should Commit Staff With Appropriate Seniority and the Authority 
To Negotiate for the Agency

    The commenter encouraged EPA to select representatives that are 
knowledgeable about the issue and have the authority to make 
commitments for the agency. EPA agrees. EPA will have two 
representatives at the table--one technical expert on CDR, and the 
other an EPA manager with the authority to, in consultation with other 
EPA officials as needed, make commitments for the agency. EPA will also 
have other technical experts available to answer questions about other 
EPA programs, as recommended by the commenter.

B. Additional Recommendations Regarding Committee Participation

    The commenter recommended that the Small Business Administration 
(SBA) Office of Advocacy be represented on the Committee. Because SBA's 
Office of Advocacy already has multiple established processes for 
providing input during rulemaking, such as serving on Small Business 
Advocacy Review Panels that are convened under the Regulatory 
Flexibility Act, as amended by the Small Business Regulatory 
Enforcement Fairness Act, 5 U.S.C. 609(b)(3) (1980), and participating 
in interagency review conducted under Executive Order 12866, 58 FR 
51735 (October 4, 1993), and because EPA believes it is important for 
the federal government to be represented as a singular entity at the 
table, SBA will not serve on the Committee. EPA will coordinate with 
SBA through the standard processes that apply to EPA rulemaking. In 
addition, SBA, as well as other federal agencies, will be invited to 
attend all Committee meetings as an observer.

C. EPA Is Required To Propose and Finalize a Rule Regardless of the 
Outcome of the Negotiated Rulemaking

    The commenter believes that the Lautenberg Act requires EPA to 
propose and finalize a rule lessening the reporting burdens for 
inorganic byproducts sent for recycling, regardless of whether 
consensus is reached by the Committee. As EPA explained in its December 
15, 2016, Notice, the agency construes its obligation to propose and 
finalize a rule under TSCA section 8(a)(6) as being contingent on the 
Committee reaching a consensus.
    EPA's obligation under TSCA section 8(a)(6)(B) is to finalize a 
rule ``resulting from such negotiated rulemaking.'' While EPA would 
have authority to issue an amendment to the CDR for inorganic 
byproducts even if negotiation failed to achieve any consensus, such a 
rule would not be a rule resulting from the negotiated rulemaking. 
Accordingly, TSCA section 8(a)(6)(B) presupposes that the negotiated 
rulemaking process reached consensus in directing EPA to issue a final 
rule.
    This reading is consistent with the structure of TSCA section 
8(a)(6) as a whole, requiring a proposed rule within three years of the 
Lautenberg Act's enactment and a final rule six months later. Under the 
commenter's reading, if the Negotiated Rulemaking Committee could not 
reach any consensus to limit the reporting requirements for inorganic 
byproducts, EPA would still be required to come up with its own 
approach by June 2019 without the benefit of agreement from the 
interested parties. EPA can reasonably assume that such an approach 
would draw adverse comment from the party or parties that blocked 
consensus in the Negotiated Rulemaking Committee, and thus the agency 
would only have six months to solicit, consider, and respond to those 
comments before the statutorily required deadline. EPA does not believe 
that Congress intended for this to occur because it did not direct the 
agency to limit reporting requirements in any

[[Page 25794]]

specific way that would require a rulemaking regardless of the outcome 
of the negotiated rulemaking. On the contrary, Congress specifically 
directed that the final rule must result from the negotiated 
rulemaking, which will likely simplify the comment process enough to 
enable the agency to meet these relatively short deadlines.
    By establishing the Committee in today's Notice, EPA is fulfilling 
the Lautenberg Act's requirement to ``enter into a negotiated 
rulemaking pursuant to'' the NRA to develop and publish a proposed 
rule. 15 U.S.C. 2607(a)(6)(A). When viewed under the lens of the 
statutory structure, any requirement for EPA to actually ``develop and 
publish'' a proposed rule must necessarily also result from consensus 
being reached by the Committee.
    For these reasons, EPA respectfully disagrees with the commenter. 
If consensus cannot be reached, and there is no agreement upon which to 
base a proposal, then there is no further statutory obligation to issue 
a proposal or a final rule. However, as noted in the December 15, 2016, 
Notice, EPA commits to working in good faith to seek consensus on a 
proposal that is consistent with the legal mandate of TSCA.

D. Definition of Consensus Should Not Require Unanimous Concurrence of 
the Committee

    The commenter recommended that the Committee use a definition of 
consensus that does not require unanimous concurrence among the 
Committee, citing the potential for one Committee member's veto to 
result in no agreement. The NRA defines consensus as unanimous 
concurrence, unless the Committee agrees otherwise. 5 U.S.C. 562. A 
unanimous concurrence definition is important in ensuring no one 
interest or group of interests is able to control the process. While 
EPA believes that unanimous concurrence is not an unreasonably high 
bar, particularly with the assistance of a highly skilled neutral 
facilitator with expertise in building consensus, the Committee has the 
power under the NRA to agree to another definition of consensus.

    Authority:  15 U.S.C. 2601 et seq.

    Dated: May 24, 2017.
Wendy Cleland-Hamnett,
Acting Assistant Administrator, Office of Chemical Safety and Pollution 
Prevention.
[FR Doc. 2017-11570 Filed 5-31-17; 4:15 pm]
 BILLING CODE 6560-50-P