Response to Vacatur of Certain Provisions of the Mercury Inventory Reporting Rule
The Environmental Protection Agency (EPA) is revising regulations associated with persons who must report data to the Agency's mercury inventory established under the Toxic Subs...
The Environmental Protection Agency (EPA) is revising regulations associated with persons who must report data to the Agency's mercury inventory established under the Toxic Substances Control Act (TSCA). Those reporting requirements were set forth in a final rule entitled “Reporting Requirements for TSCA Mercury Inventory: Mercury” (hereafter “mercury inventory reporting rule”). These revisions implement an order issued by the United States Court of Appeals for the Second Circuit (Second Circuit), on June 5, 2020.
DATES:
This final rule is effective on December 8, 2021.
ADDRESSES:
The docket for this action, identified by docket identification (ID) number EPA-HQ-OPPT-2017-0421, is available at
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 telephone number for the Public Reading Room is (202) 566-1744, and the telephone number for the OPPT Docket is (202) 566-0280.
Due to the public health concerns related to COVID-19, the EPA Docket Center (EPA/DC) and Reading Room is closed to visitors with limited exceptions. The staff continues to provide remote customer service via email, phone, and webform. For the latest status information on EPA/DC services and docket access, visit
www.epa.gov/dockets.
FOR FURTHER INFORMATION CONTACT:
For technical information contact:
Thomas Groeneveld, Existing Chemicals Resource Management Division, Office of Pollution Prevention and Toxics, Environmental Protection Agency, 1200 Pennsylvania Ave. NW, Washington, DC 20460-0001; telephone number: (202) 566-1188; email address:
groeneveld.thomas@epa.gov.
For general information contact:
The TSCA-Hotline, ABVI-Goodwill, 422 South Clinton Ave., Rochester, NY 14620; telephone number: (202) 554-1404; email address:
TSCA-Hotline@epa.gov.
SUPPLEMENTARY INFORMATION:
I. Executive Summary
A. Does this action apply to me?
You may be potentially affected by this action if you import mercury-added products. The following list of North American Industrial Classification System (NAICS) codes is not intended to be exhaustive, but rather provides a guide to help readers determine whether this document applies to them. Potentially affected entities may include the following:
Gold ore mining (NAICS code 212221).
Lead ore and zinc ore mining (NAICS code 212231).
All other metal ore mining (NAICS code 212299).
Asphalt shingle and coating materials manufacturing (NAICS code 324122).
Synthetic dye and pigment manufacturing (NAICS code 325130).
Other basic inorganic chemical manufacturing (NAICS code 325180).
All other basic organic chemical manufacturing (NAICS code 325199).
Plastics material and resin manufacturing (NAICS code 325211).
Pesticide and other agricultural chemical manufacturing (NAICS code 325320).
Medicinal and botanical manufacturing (NAICS code 325411).
In June 2018, EPA finalized a rule to require reporting from persons who manufacture (including import) mercury or mercury-added products, or otherwise intentionally use mercury in a manufacturing process (Ref. 1). That rule was challenged in the Second Circuit by the Natural Resources Defense Council and several state attorneys general in July 2018. Oral arguments were held on November 20, 2019, and the court issued its decision on June 5, 2020. The petitioners argued that three exemptions to the reporting requirements violated the statutory mandate within TSCA section 8(b)(10). The Agency argued that the three exemptions were lawful because EPA determined certain reporting to be duplicative or burdensome per existing EPA or other mercury-related reporting requirements. Duplicative or overly burdensome reporting requirements are prohibited under TSCA section 8(a)(5). The Agency prevailed on two issues, but the Second Circuit vacated the exemption at 40 CFR 713.7(b)(2) for persons who import pre-assembled products that contain a mercury-added component (Ref. 2). As a result, such persons are now required to report pursuant to 40 CFR 713.7(b). This rule is effectuating the vacatur ordered by the Second Circuit by making necessary amendments to the corresponding text in 40 CFR 713.7(b).
C. What is the Agency's authority for taking this action?
EPA is issuing this final rule pursuant to TSCA section 8(b)(10)(D) (15 U.S.C. 2607(b)(10)(D)), which authorizes EPA to require reporting in order to assist in preparing the inventory of mercury supply, use and trade in the United States. In addition, section 553 of the Administrative Procedure Act (APA), 5 U.S.C. 553(b)(3)(B), provides that, when an agency for good cause finds that notice and public procedures are impracticable, unnecessary, or contrary to the public interest, the agency may issue a rule without providing notice and an opportunity for public comment.
( printed page 61710)
EPA has determined that there is good cause for revising these provisions without prior proposal and opportunity for comment, because these revisions simply undertake the ministerial task of implementing the court order vacating an exemption at 40 CFR 713.7(b)(2) and making the necessary amendments to corresponding text in 40 CFR 713.7(b). As a matter of law, the order issued by the Second Circuit on June 5, 2020 vacated the reporting exemption for persons who manufacture (including import) a mercury-added product where that person is “engaged only in the import of a product that contains a component that is a mercury-added product.” It is, therefore, unnecessary to provide notice and an opportunity for comment on this action, which merely carries out the court's order.
D. Which regulations is EPA removing and replacing?
EPA is effectuating the Second Circuit vacatur of the exemption for persons who manufacture (including import) a mercury-added product where that person is “engaged only in the import of a product that contains a component that is a mercury-added product.” Therefore, the current text at 40 CFR 713.7(b)(2) will be removed and replaced (with appropriate textual and numbering updates) with the text currently found at 40 CFR 713.7(b)(3).
E. What are the estimated burdens associated with the removed and replaced regulations?
EPA has prepared an economic analysis of the potential impacts associated with this rulemaking (Ref. 3). This economic analysis estimates and evaluates the total costs and benefits for additional reporters to the mercury inventory reporting rule due to this rulemaking (
i.e.,
those that import products that contain a component that is a mercury-added product). EPA is considering an estimate of 756 as the number of sites potentially subject to the amended rule, which, under the revised requirements, is now applicable to imports of products that contain a component that is a mercury-added product. EPA estimates that as many as 657 sites will submit reports due to the revised requirements. This is the incremental difference between the number of actual reporters to the mercury inventory reporting rule during the 2019 submission period, and the expected number of total reporters based on the number of entities that report to the Interstate Mercury Education & Reduction Clearinghouse (IMERC) or to EPA's Chemical Data Reporting (CDR) or Toxics Release Inventory (TRI). More details on the methodology used can be found in the Agency's economic analysis (Ref. 3).
The chief benefit of the final rule is the collection of detailed data on mercury, which will serve as a basis to recommend actions to further reduce mercury use in the United States, as required at TSCA section 8(b)(10)(C). Another benefit is the use of information collected under the final rule to help the United States implement its obligations under the Minamata Convention, a multilateral environmental agreement that addresses specific human activities that are contributing to widespread mercury pollution. While there are no quantified benefits for the final rule, the statutory mandates at TSCA sections 8(b)(10)(C) and (D) (15 U.S.C. 2607(b)(10)(C) and (D)), specifically call for and authorizes a rule to support an inventory of mercury supply, use, and trade in the United States, to identify any manufacturing processes or products that intentionally add mercury, and to recommend actions to achieve further reductions in mercury use. As described in the Agency's economic analysis, unquantified benefits include providing increased information on mercury and assisting in the reduction of mercury use (Ref. 3). To the extent that the information gathered through this rule is used to reduce mercury use, benefits to society will result from a reduction in exposure.
Benefits:
The final rule will provide information on mercury and mercury-added products to which the Agency (and the public) does not currently have access. To the extent that the information gathered through this final rule is used to reduce mercury use, benefits to society will result from a reduction in risk.
Costs:
Total reporter (industry) costs the first year were estimated in 2020$ at $5.1 million, and $3.6 million in subsequent reporting years. Annualized over 10 years, the reporter costs are $1.5 million at both 3% and 7% discount rates. Agency costs are $729 per report per year, for an annualized cost of $177,000 and $181,000 at 3% and 7% discount rates, respectively. Therefore, the total annualized costs are expected to be approximately $1.7 million at both 3% and 7% discount rates. The total burden of the rule is expected to be approximately 212,000 hours over the 10-year analysis period. These estimates include compliance determination, rule familiarization, CBI substantiation, electronic reporting, and recordkeeping, in addition to completing reporting requirements.
Small Entity Impacts:
The final rule will impact 203 companies that meet the U.S. Small Business Administration (SBA) definitions for their respective NAICS classifications. Among the total 657 sites regulated under the rule, EPA found that the costs of the rule exceed 3 percent of the value of sales for 2 small businesses, and an additional 3 small businesses may incur costs at between 1 and 3 percent of the value of sales. EPA is unable to determine whether these 5 small businesses actually import products that contain a component that is a mercury-added product.
Environmental Justice and Protection of Children:
The Agency believes that the information collected under this rule, if finalized, will assist EPA and others in determining the potential hazards and risks associated with elemental mercury and mercury compounds. Although not directly impacting environmental justice-related concerns, this information will enable the Agency to better protect human health and the environment, including in low-income and minority communities. The rule is directed at all mercury-added products that are manufactured or imported into the United States. All consumers of these chemicals and the products made from them and all workers who come into contact with these chemicals could benefit if data regarding the chemicals' health and environmental effects were developed. Therefore, it does not appear that the costs and the benefits of the rule will be disproportionately distributed across different geographic regions or among different categories of individuals.
Effects on State, Local, and Tribal Governments:
Government entities are not expected to be subject to the rule's requirements, which apply to entities that manufacture (including import) mercury or mercury-added products, or otherwise intentionally use mercury in a manufacturing process. The final rule does not have a significant intergovernmental mandate, significant or unique effect on small governments, or have Federalism implications.
II. References
The following is a listing of the documents that are specifically referenced in this document. The docket includes these documents and other information considered by EPA, including documents that are referenced within the documents that are included in the docket, even if the referenced document is not physically located in the docket. For assistance in locating these other documents, please consult
( printed page 61711)
the technical person listed under
FOR FURTHER INFORMATION CONTACT
.
1. EPA. “Reporting Requirements for TSCA Mercury Inventory: Mercury;” Final Rule.
Federal Register
(83 FR 30054, June 27, 2018) (FRL-9979-74).
2. United States Court of Appeals for the Second Circuit.
Natural Resources Defense Council, Inc. and State of Vermont
v.
United States Environmental Protection Agency,
961 F.3d 160 (2d. Cir. 2020).
3. EPA. “Economic Analysis for the Final Rule on Revisions to the Reporting Requirements for the TSCA Mercury Inventory.”
This action is not a significant regulatory action and was therefore not submitted to the Office of Management and Budget (OMB) for review under Executive Orders 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011).
B. Paperwork Reduction Act (PRA)
The revised information collection activities in this rule have been submitted for approval to OMB under the PRA, 44 U.S.C. 3501et seq.,
as part of a request to renew the existing approval under OMB Control No. 2070-0207. The renewal Information Collection Request (ICR) document that EPA prepared has been assigned EPA ICR No. 2567.04. You can find a copy of the ICR in the docket for this rule, and it is briefly summarized here. The revised information collection requirements are not enforceable until OMB approves them.
The ICR renewal request explains the necessary adjustments related to the Second Circuit vacatur. Applying the reporting requirements identified in the 2018 final rule to persons who manufacture (including import) a mercury-added product will provide EPA with more complete information necessary to prepare and periodically update an inventory of mercury supply, use, and trade in the United States, as required by TSCA section 8(b)(10)(D). These reporting requirements will help the Agency to prepare subsequent, triennial publications of the inventory, as well as to carry out the requirement of TSCA section 8(b)(10)(C) to identify any manufacturing processes or products that intentionally add mercury and recommend actions, including proposed revisions of Federal law or regulations, to achieve further reductions in mercury use. EPA intends to use information collected under the rule to assist in efforts to reduce the use of mercury in products and processes and to facilitate reporting on implementation of the Minamata Convention by the United States. Respondents may claim some of the information reported to EPA under the final rule as CBI under TSCA section 14. TSCA section 14(c) requires a supporting statement and certification for confidentiality claims asserted after June 22, 2016.
Respondents/affected entities:
Manufacturers, importers, and processors of mercury and mercury-added products.
Total estimated annual burden:
17,348 hours (averaged over 3 years). Burden is defined at 5 CFR 1320.3(b).
Total estimated annual cost:
$1,384,999 (averaged over 3 years), includes $0 annualized capital or operation and maintenance costs.
Change in burden estimates:
Based on the numbers of reporters of mercury data to the IMERC Mercury-added Products Database, as well as EPA's TRI program and CDR rule, there will be a change in manufacturers (including importers) or processors that could respond to this information collection. The annual public burden for this collection of information is estimated about 23 hours per respondent. This request represents a decrease of 9 hours per respondent from that currently in the OMB inventory, or a total decrease of 20,522 hours (from 72,567 to 52,045 hours). This change reflects a decrease in rule familiarization burden, a decrease in form completion burden due to mercury export prohibitions, and changes in the number of estimated respondents.
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number. The OMB control numbers for the EPA regulations in 40 CFR are listed in 40 CFR part 9. When OMB approves the renewal ICR, the Agency will announce that approval in the
Federal Register
and publish a technical amendment to 40 CFR part 9 to display the OMB control number for the approved information collection activities contained in this final rule.
C. Regulatory Flexibility Act (RFA)
This action is not subject to the RFA, 5 U.S.C. 601et seq.
The RFA applies only to rules subject to notice and comment rulemaking requirements under the APA, 5 U.S.C. 553, or any other statute. This rule is not subject to notice and comment requirements because the Agency has invoked the APA “good cause” exemption under 5 U.S.C. 553(b).
D. Unfunded Mandates Reform Act (UMRA)
This action does not contain an unfunded mandate of $100 million or more as described in UMRA, 2 U.S.C. 1531 through 1538, and does not significantly or uniquely affect small governments. As such, the requirements of sections 202, 203, 204, or 205 of UMRA do not apply to this action.
This action does not have federalism implications, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999). It will not have substantial direct effects on the states, on the relationship between the National Government and the states, or on the distribution of power and responsibilities among the various levels of government.
F. Executive Order 13175: Consultation and Coordination With Indian Tribal Governments
This action does not have tribal implications as specified in Executive Order 13175 (65 FR 67249, November 9, 2000). It will not have any effect on tribal governments, on the relationship between the Federal government and the Indian tribes, or on the distribution of power and responsibilities between the Federal government and Indian tribes, as specified in the Order. Thus, Executive Order 13175 does not apply to this action.
G. Executive Order 13045: Protection of Children From Environmental Health Risks and Safety Risks
EPA interprets Executive Order 13045 (62 FR 19885, April 23, 1997) as applying only to those regulatory actions that concern environmental health or safety risks that EPA has reason to believe may disproportionately affect children, per the definition of “covered regulatory action” in section 2-202 of the Executive Order. This action is not subject to Executive Order 13045 because it does not concern an environmental health risk or safety risk.
( printed page 61712)
H. Executive Order 13211: Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use
This final rule is not subject to Executive Order 13211 (66 FR 28355, May 22, 2001) because it is not expected to affect energy supply, distribution, or use and has not otherwise been designated by the Administrator of the Office of Information and Regulatory Affairs as a significant energy action.
I. National Technology Transfer and Advancement Act (NTTAA)
This action does not involve any technical standards. Therefore, section 12(d) of NTTAA, 15 U.S.C. 272note,
does not apply to this action.
J. Executive Order 12898: Federal Actions To Address Environmental Justice in Minority Populations and Low-Income Populations
This action is not subject to Executive Order 12898 (59 FR 7629, February 16, 1994) because it does not establish an environmental health or safety standard. This action establishes an information requirement and does not affect the level of protection provided to human health or the environment.
K. Congressional Review Act (CRA)
This action is subject to the CRA, 5 U.S.C. 801et seq.,
and EPA will submit a rule report to each House of the Congress and to the Comptroller General of the United States. This action is not a major rule as defined by 5 U.S.C. 804(2).
(b) Any person who manufactures (including imports) a mercury-added product, except:
(1) A person who does not manufacture (including import) a mercury-added product with the purpose of obtaining an immediate or eventual commercial advantage; or
(2) A person engaged only in the manufacture (other than import) of a product that contains a component that is a mercury-added product who did not first manufacture (including import) the component that is a mercury-added product; and
Use this for formal legal and research references to the published document.
86 FR 61708
Web Citation
Suggested Web Citation
Use this when citing the archival web version of the document.
“Response to Vacatur of Certain Provisions of the Mercury Inventory Reporting Rule,” thefederalregister.org (November 8, 2021), https://thefederalregister.org/documents/2021-24209/response-to-vacatur-of-certain-provisions-of-the-mercury-inventory-reporting-rule.
www.regulations.gov
www.epa.gov/dockets
40 CFR 713.7(b)(2)
15 U.S.C. 2607(b)(10)(D)
www2.epa.gov/laws-regulations/laws-and-executive-orders