[Federal Register Volume 82, Number 206 (Thursday, October 26, 2017)]
[Proposed Rules]
[Pages 49564-49585]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-23225]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 713
[EPA-HQ-OPPT-2017-0421; FRL-9970-07]
RIN 2070-AK22
Mercury; Reporting Requirements for the TSCA Mercury Inventory
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: As required under section 8(b)(10)(D) of the Toxic Substances
Control Act (TSCA), EPA is proposing reporting requirements for
applicable persons to provide information to assist in the preparation
of an ``inventory of mercury supply, use, and trade in the United
States,'' where ``mercury'' is defined as ``elemental mercury'' and ``a
mercury compound.'' The requirements would be applicable to any person
who manufactures (including imports) mercury or mercury-added products,
or otherwise intentionally uses mercury in a manufacturing process.
Based on the inventory of information collected, the Agency is directed
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.'' At this time, EPA is not making such
identifications or recommendations.
DATES: Comments must be received on or before December 26, 2017.
ADDRESSES: Submit your comments, identified by docket identification
(ID) number EPA-HQ-OPPT-2017-0421, by one of the following methods:
Federal eRulemaking Portal: http://www.regulations.gov.
Follow the online instructions for submitting comments. Do not submit
electronically any information you consider to be Confidential Business
Information (CBI) or other information whose disclosure is restricted
by statute.
Mail: Document Control Office (7407M), Office of Pollution
Prevention and Toxics (OPPT), Environmental Protection Agency, 1200
Pennsylvania Ave. NW., Washington, DC 20460-0001.
Hand Delivery: To make special arrangements for hand
delivery or delivery of boxed information, please follow the
instructions at http://www.epa.gov/dockets/contacts.html.
Additional instructions on commenting or visiting the docket, along
with more information about dockets generally, is available at http://www.epa.gov/dockets.
FOR FURTHER INFORMATION CONTACT:
For technical information contact: Thomas Groeneveld, National
Program Chemicals 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: [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. Executive Summary
A. Does this action apply to me?
You may be potentially affected by this action if you manufacture
(including import) mercury or mercury-added products, or if you
otherwise intentionally use mercury in a manufacturing process. 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:
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)
Pharmaceutical preparation manufacturing (NAICS code
325412)
Biological product (except diagnostic) manufacturing
(NAICS code 325414)
Paint and coating manufacturing (NAICS code 325510)
Adhesive manufacturing (NAICS code 325520)
Custom compounding of purchased resins (NAICS code 325991)
Photographic film, paper, plate, and chemical
manufacturing (NAICS code 325992)
All other miscellaneous chemical product and preparation
manufacturing (NAICS code 325998)
Unlaminated plastics film and sheet (except packaging)
manufacturing (NAICS code 326113)
Unlaminated plastics profile shape manufacturing (NAICS
code 326121)
Urethane and other foam product (except polystyrene)
manufacturing (NAICS code 326150)
[[Page 49565]]
All other plastics product manufacturing (NAICS code
326199)
Tire manufacturing (NAICS code 326211)
All other rubber product manufacturing (NAICS code 326299)
Iron and steel mills and ferroalloy manufacturing (NAICS
code 331110)
Rolled steel shape manufacturing (NAICS code 331221)
Alumina refining and primary aluminum production (NAICS
code 331313)
Secondary smelting and alloying of aluminum (NAICS code
331314)
Nonferrous metal (except aluminum) smelting and refining
(NAICS code 331410)
Secondary smelting, refining, and alloying of nonferrous
metal (except copper and aluminum) (NAICS code 331492)
Iron foundries (NAICS code 331511)
Steel foundries (except investment) (NAICS code 331513)
Fabricated structural metal manufacturing (NAICS code
332312)
Industrial valve manufacturing (NAICS code 332911)
Ammunition except small arms manufacturing (NAICS code
332993)
Small arms, ordnance, and ordnance accessories
manufacturing (NAICS code 332994)
All other miscellaneous fabricated metal product
manufacturing (NAICS code 332999)
Food product machinery manufacturing (NAICS code 333294)
Office machinery manufacturing (NAICS code 333313)
Other commercial and service industry machinery
manufacturing (NAICS code 333319)
Heating equipment (except warm air furnaces) manufacturing
(NAICS code 333414)
Air-conditioning and warm air heating equipment and
commercial and industrial refrigeration equipment manufacturing (NAICS
code 333415)
Pump and pumping equipment manufacturing (NAICS code
333911)
Bare printed circuit board manufacturing (NAICS code
334412)
Semiconductor and related device manufacturing (NAICS code
334413)
Other electronic component manufacturing (NAICS code
334419)
Electromedical and electrotherapeutic apparatus
manufacturing (NAICS code 334510)
Search, detection, navigation, guidance, aeronautical, and
nautical system and instrument manufacturing (NAICS code 334511)
Automatic environmental control manufacturing for
residential, commercial, and appliance use (NAICS code 334512)
Instruments and related products manufacturing for
measuring, displaying, and controlling industrial process variables
(NAICS code 334513)
Totalizing fluid meter and counting device manufacturing
(NAICS code 334514)
Instrument manufacturing for measuring and testing
electricity and electrical signals (NAICS code 334515)
Analytical laboratory instrument manufacturing (NAICS code
334516)
Watch, clock, and part manufacturing (NAICS code 334518)
Other measuring and controlling device manufacturing
(NAICS code 334519)
Electric lamp bulb and part manufacturing (NAICS code
335110)
Commercial, industrial, and institutional electric
lighting fixture manufacturing (NAICS code 335122)
Other lighting equipment manufacturing (NAICS code 335129)
Electric house wares and household fan manufacturing
(NAICS code 335211)
Household vacuum cleaner manufacturing (NAICS code 335212)
Household cooking appliance manufacturing (NAICS code
335221)
Household refrigerator and home freezer manufacturing
(NAICS code 335222)
Household laundry equipment manufacturing (NAICS code
335224)
Other major household appliance manufacturing (NAICS code
335228)
Switchgear and switchboard apparatus manufacturing (NAICS
code 335313)
Relay and industrial control manufacturing (NAICS code
335314)
Primary battery manufacturing (NAICS code 335912)
Current-carrying wiring device manufacturing (NAICS code
335931)
All other miscellaneous electrical equipment and component
manufacturing (NAICS code 335999)
Light truck and utility vehicle manufacturing (NAICS code
336112)
Heavy duty truck manufacturing (NAICS code 336120)
Motor home manufacturing (NAICS code 336213)
Travel trailer and camper manufacturing (NAICS code
336214)
Other aircraft parts and auxiliary equipment manufacturing
(NAICS code 336413)
Boat building (NAICS code 336612)
Motorcycles and parts manufacturing (NAICS code 336991)
Surgical and medical instrument manufacturing (NAICS code
339112)
Costume jewelry and novelty manufacturing (NAICS code
339914)
Game, toy, and children's vehicle manufacturing (NAICS
code 339932)
Sign manufacturing (NAICS code 339950)
Other chemical and allied products merchant wholesalers
(NAICS code 424690)
Research and development in the physical, engineering, and
life sciences (except biotechnology) (NAICS code 541712)
Hazardous waste treatment and disposal (NAICS code 562211)
Other nonhazardous waste treatment and disposal (NAICS
code 562219)
Materials recovery facilities (NAICS code 562920)
National security (NAICS code 928110)
B. What action is the Agency taking?
EPA is issuing a proposed rule under TSCA section 8(b)(10) to
require reporting to assist in the preparation of ``an inventory of
mercury supply, use, and trade in the United States,'' where
``mercury'' is defined as ``elemental mercury'' and ``a mercury
compound.'' Hereinafter ``mercury'' will refer to both elemental
mercury and mercury compounds collectively, except where separately
identified. This proposed rule would require reporting from any person
who manufactures (including imports) mercury or mercury-added products,
or otherwise intentionally uses mercury in a manufacturing process. EPA
published its initial inventory report in the Federal Register on March
29, 2017 (Ref. 1), which noted data gaps and limitations encountered by
the Agency in its historic reliance on publicly available data on the
mercury market in the United States. As stated in the initial inventory
report, ``[f]uture triennial inventories of mercury supply, use, and
trade are expected to include data collected directly from persons who
manufacture or import mercury or mercury-added products, or otherwise
intentionally use mercury in a manufacturing process'' (Ref. 1). These
proposed reporting requirements would help the Agency narrow such data
gaps, as well as to prepare subsequent, triennial publications of the
inventory, and to execute the mandate 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'' (15 U.S.C.
2607(b)(10)(C)).
In addition, this information could be used by the U.S. Government
to assist in its national reporting regarding its implementation of the
Minamata
[[Page 49566]]
Convention on Mercury (Minamata Convention), to which the United States
is a Party (Ref. 2). The Minamata Convention is an international
environmental agreement that has as its objective the protection of
human health and the environment from anthropogenic emissions and
releases of elemental mercury and mercury compounds. Article 21 of the
Convention requires Parties to include in their national reports, among
other information, information demonstrating that the Party has met the
requirements of Article 3 on Mercury Supply Sources and Trade and of
Article 5 on Manufacturing Processes in Which Mercury or Mercury
Compounds Are Used. As proposed, the reporting requirements of the
proposed rule will further enhance the understanding of the use of
mercury in the United States, in particular with respect to mercury
supply sources and trade, mercury-added products, and manufacturing
processes, thus providing a body of information that will assist the
United States in its implementation of the reporting requirements of
the Minamata Convention. EPA intends to use the collected information
to implement TSCA and shape the Agency's efforts to reduce the use of
mercury in commerce. In so doing, the Agency would conduct a timely
evaluation and refinement of these reporting requirements so that they
are efficient and non-duplicative for reporters.
EPA is proposing that supply, use, and trade of mercury include
reporting requirements for activities comparable to established TSCA
terms: Manufacture, import, distribution in commerce, storage, and
export. The reporting requirements also would apply to otherwise
intentional use of mercury in a manufacturing process. Persons who
manufacture (including import) mercury or mercury-added products, or
otherwise intentionally use mercury in a manufacturing process, would
report amounts of mercury in pounds (lbs.) used in such activities
during a designated reporting year. Reporters also would identify
specific mercury compounds, mercury-added products, manufacturing
processes, and how mercury is used in manufacturing processes, as
applicable, from pre-selected lists. For certain activities, reporters
would provide additional, contextual data (e.g., country(ies) of
origin/destination for imports/exports and NAICS codes for mercury or
mercury-added products distributed in commerce).
The proposed reporting requirements would not apply to persons
engaged in the generation, handling, or management of mercury-
containing waste, unless that person manufactures or recovers mercury
in the management of that waste with the intent to use the recovered
mercury or store it for use. In addition, persons engaged in trade
(e.g., brokering, selling wholesale, shipping, warehousing,
repackaging, or retail sale), but who do not first manufacture mercury
or mercury-added products, or otherwise intentionally use mercury in a
manufacturing process, are not required to report. Finally, in an
effort to avoid reporting that is unnecessary or duplicative, the
Agency is proposing certain exemptions for persons who already report
for mercury and mercury-added products to the TSCA section 8(a)
Chemical Data Reporting (CDR) rule and the Interstate Mercury Education
and Reduction Clearinghouse (IMERC).
In addition to topics where EPA notes that we are seeking specific
comment, the Agency also encourages comment on all aspects of this
proposal.
C. Why is the Agency taking this action?
EPA is issuing a proposed rule under TSCA section 8(b)(10) to
require reporting to assist in the preparation of the statutorily-
required inventory of mercury supply, use, and trade in the United
States. This proposed rule would require reporting from any person who
manufactures (including imports) mercury or mercury-added products, or
otherwise intentionally uses mercury in a manufacturing process. After
the publication of its initial inventory report in the Federal Register
on March 29, 2017 (Ref. 1), the Agency is proposing this rule to
support future, triennial publications of the mercury inventory. In
administering this mercury inventory, the Agency would ``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'' (15 U.S.C.
2607(b)(10)(C)).
D. What is the Agency's authority for taking this action?
EPA is issuing this proposed rule pursuant to TSCA section
8(b)(10)(D) to implement the direction at TSCA section 8(b)(10)(B) that
``[n]ot later than April 1, 2017, and every 3 years thereafter, the
Administrator shall carry out and publish in the Federal Register an
inventory of mercury supply, use, and trade in the United States'' (15
U.S.C. 2607(b)(10)(B)). TSCA section 8(b)(10)(D) requires EPA to
promulgate a final rule by June 22, 2018 that establishes reporting
requirements applicable to any person who manufactures mercury or
mercury-added products or otherwise intentionally uses mercury in a
manufacturing process to assist in the preparation of the inventory (15
U.S.C. 2607(b)(10)(D)). However, persons ``engaged in the generation,
handling, or management of mercury-containing waste, unless that person
manufactures or recovers mercury in the management of that waste'' are
not required to report to the mercury inventory (15 U.S.C.
2607(b)(10)(D)(iii)).
In addition, the Paperwork Reduction Act (PRA) requires Federal
agencies to manage information resources to reduce information
collection burdens on the public; increase program efficiency and
effectiveness; and improve the integrity, quality, and utility of
information to all users within and outside an agency, including
capabilities for ensuring dissemination of public information, public
access to Federal Government information, and protections for privacy
and security (44 U.S.C. 3506).
Section 2 of TSCA expresses the intent of Congress that EPA carry
out TSCA in a reasonable and prudent manner, and in consideration of
the impacts that any action taken under TSCA may have on the
environment, the economy, and society (15 U.S.C. 2601). EPA is
proposing to manage and leverage its information resources, including
information technology, to require the use of electronic reporting in
order to implement the mercury inventory reporting requirements of TSCA
section 8(b)(10)(D) in a reasonable and prudent manner.
E. What are the estimated incremental impacts of the proposed rule?
EPA has prepared an economic analysis of the potential impacts
associated with this rulemaking (Ref. 3). The chief benefit of the
proposed 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 proposed rule to
help the United States implement its obligations under the Minamata
Convention. There are no quantified benefits for the proposed rule. The
statutory mandate specifically calls for and authorizes a rule to
support an inventory of mercury supply, use, and trade in the United
States, in order to identify any manufacturing processes or products
that intentionally add mercury and recommend actions to achieve further
reductions in mercury use. As described in the Agency's economic
analysis, unquantified
[[Page 49567]]
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. EPA
seeks public comment on all aspects of the economic analysis.
Table 1--Summary of Costs and Benefits of Proposal
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Category Description
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Benefits.......................... The proposed rule would 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
proposed rule is used to reduce
mercury use, benefits to society
will result from a reduction in
risk.
Costs............................. Estimated industry costs and burden
total $5.96 million and 74,000
hours (for up to 750 respondents)
for the first year of reporting,
with an individual estimate of
$7,900 and 99 hours. For future
triennial reporting cycles,
industry costs and burden would be
$4.37 million and 54,300 hours,
with an individual estimate of
$5,800 and 72 hours. These
estimates include compliance
determination, rule
familiarization, CBI
substantiation, electronic
reporting, and recordkeeping, in
addition to completing reporting
requirements.
Effects on State, Local, and Government entities are not expected
Tribal Governments. 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
proposed rule does not have a
significant intergovernmental
mandate, significant or unique
effect on small governments, or
have Federalism implications.
Small Entity Impacts.............. The proposed rule would impact 211
companies that meet the U.S. Small
Business Administration (SBA)
definitions for their respective
NAICS classifications: 4 small
entities (1.85%) are expected to
incur impacts of 1% percent or
greater, and 1 of the small
entities assessed is expected to
incur impacts of greater than 3%.
Furthermore, even if the entities
whose status is ``undetermined''
were assumed to be impacted small
entities, this would result in only
9 entities (4.17%). Therefore, EPA
certifies that this action will not
have a significant economic impact
on a substantial number of small
entities.
Environmental Justice and The information obtained from the
Protection of Children. reporting required by this proposed
rule would be used to inform the
Agency's decision-making process
regarding chemicals to which
minority or low-income populations
or children may be
disproportionately exposed. This
information would also assist the
Agency and others in determining
whether elemental mercury and
mercury compounds addressed in this
proposed rule present potential
risks, allowing the Agency and
others to take appropriate action
to investigate and mitigate those
risks.
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F. What should I consider as I prepare my comments for EPA?
1. Submitting CBI. Do not submit this information to EPA through
regulations.gov or email. Clearly mark the part or all of the
information that you claim to be CBI. For CBI information in a disk or
CD-ROM that you mail to EPA, mark the outside of the disk or CD-ROM as
CBI and then identify electronically within the disk or CD-ROM the
specific information that is claimed as CBI. In addition to one
complete version of the comment that includes information claimed as
CBI, a copy of the comment that does not contain the information
claimed as CBI must be submitted for inclusion in the public docket.
Information so marked will not be disclosed except in accordance with
procedures set forth in 40 CFR part 2.
2. Tips for preparing your comments. When preparing and submitting
your comments, see the commenting tips at http://www.epa.gov/dockets/comments.html.
II. Background
A. Background on Mercury
Mercury is a naturally occurring element that originates in the
earth's crust and can be found in air, water, fish, and other biota.
Mercury exists in three forms: Elemental, organic compounds, and
inorganic compounds.
Elemental mercury (Chemical Abstracts Service Registry Number
(CASRN) 7439-97-6) is a shiny, silver-white metal that is liquid at
room temperature. Mercury compounds are formed when elemental mercury
reacts with another substance, either in nature or intentionally by
humans. Organic mercury compounds are formed in the environment when
mercury combines with carbon. Inorganic mercury compounds take the form
of mercury salts. EPA's TSCA Chemical Substance Inventory lists 69
mercury compounds (Ref. 4).
In the United States, elemental mercury and mercury compounds are
used in the manufacture of mercury-added products and certain
manufacturing processes. The typical lifecycle of products includes
manufacture, distribution in commerce (including transport and
storage), use, and waste management (landfilling or recycling). At any
point in the product lifecycle, there is potential for mercury to be
released. Globally, the major anthropogenic sources of released
elemental mercury are the combustion of coal and use of elemental
mercury in artisanal gold mining (Ref. 5). Emitted elemental mercury
can be transported in the atmosphere on local, regional, and global
scales as it cycles through air, land, and water (Ref. 6). Some of the
emitted elemental mercury following deposition and transformation into
divalent mercury can be biotransformed into methylmercury (Ref. 6).
Methylmercury is a persistent and bioaccumulative neurotoxicant.
Exposure to methylmercury most commonly occurs when people eat kinds of
fish and shellfish that have high levels of methylmercury in their
tissues (Ref. 7). Almost all people have at least small amounts of
methylmercury in their bodies, reflecting the widespread presence of
methylmercury in the environment (Ref. 7). People exposed to high
levels of methylmercury may experience adverse health effects (Ref. 7).
Generally, the subtlest indicators of methylmercury toxicity are
neurological changes (Ref. 7). Neurotoxic effects at comparatively low
doses include subtle decrements in motor skills and sensory ability,
while extremely high exposures can cause tremors, inability to walk,
convulsions, and death (Ref. 7). Exposure to mercury can also cause
adverse ecological effects
[[Page 49568]]
in plants, birds, fish, and mammals (Ref. 6).
B. Recent Amendments to TSCA
The Frank R. Lautenberg Chemical Safety for the 21st Century Act
(Lautenberg Act) (Pub. L. 114-182, 130 Stat. 448), enacted on June 22,
2016, implemented reforms to TSCA. Among other changes to TSCA, the
Lautenberg Act amended TSCA section 8(b) to require EPA to establish:
(1) An inventory of mercury supply, use, and trade in the United
States; and (2) reporting requirements by rule applicable to any person
who manufactures mercury or mercury-added products or otherwise
intentionally uses mercury in a manufacturing process not later than
June 22, 2018. (15 U.S.C. 2607(b)(10)). Information collected per the
proposed reporting requirements would be used to periodically update
the mercury inventory; 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 (15 U.S.C. 2607(b)(10)). The Lautenberg Act
also added certain mercury compounds to the TSCA section 12(c) ban on
exporting of elemental mercury and authorized EPA to ban the export of
additional mercury compounds by rule (15 U.S.C. 2611(c)). The
Lautenberg Act also implemented other changes to the Mercury Export Ban
Act of 2008 (MEBA) (Pub. L. 110-414, 122 Stat. 4341). Additional
information on the Lautenberg Act is available on EPA's Web site at
https://www.epa.gov/assessing-and-managing-chemicals-under-tsca/frank-r-lautenberg-chemical-safety-21st-century-act.
C. Trends in Mercury Supply, Use, and Trade in the United States
Humans have mined, refined, and used mercury for a wide variety of
purposes over thousands of years. In the United States, mercury was
mined until 1991, but today is produced only as a byproduct of metals
mining or by recovering mercury from waste (Ref. 8). In recent decades,
mercury served as a catalyst in the chlor-alkali industry and in a
variety of industrial, commercial, and consumer products (Ref. 8). Due
to its toxicity and replacement by new technologies, many uses of
mercury have been discontinued in the United States, and the overall
quantity used has fallen dramatically in recent decades. For example,
over the past three decades there has been a strong downward trend of
more than 97 percent in the use of mercury in mercury-added products
sold in the United States. In 1980, the United States used more than
1,800 metric tons of mercury in mercury-added products annually (Ref.
8). As described in the initial inventory conducted by EPA in 2017, by
2013, only approximately 40 metric tons of mercury in products were
sold in the United States (Ref. 1). Many of these products sold have
cost-effective, non-mercury substitutes (Ref. 1). The United States
also has traded elemental mercury and mercury compounds worldwide,
although MEBA prohibited the export of elemental mercury as of January
1, 2013 and prohibits the export of certain mercury compounds as of
January 1, 2020.
Prior to developing its initial inventory, EPA reviewed federal and
state reports and databases, among other sources, in order to assemble
a collection of available information on mercury, mercury-added
products, and manufacturing processes involving mercury (Ref. 1). In
reviewing data obtained, the Agency found that its baseline of data
lacked the specificity and level of detail required to develop a
mercury inventory responsive to TSCA section 8(b)(10)(D) or to be
useful to inform mercury use reduction efforts for both the public and
private sectors (Ref. 1). For example, in 2015, to develop its
understanding of domestic mercury supply and trade, the Agency
collected information on the quantity of mercury sold in the United
States for the years 2010 and 2013 from five companies identified as
the primary recyclers and distributors of mercury in the United States
(Ref. 9). Comparing totals for mercury sold in products and the amount
of bulk mercury sold in the United States in 2013 revealed a
significant data gap of approximately 26 metric tons. IMERC data showed
approximately 40 metric tons of mercury in mercury-added products sold
in the United States in 2013. The information collected by the Agency
for bulk elemental mercury manufactured and processed in the United
States in the same year was approximately 66 metric tons. In this
instance, EPA determined that mercury may be used in manufacturing
processes, including as a reactant or formulation component, which may
not be reflected in the amount of mercury reported as sold in products.
An additional data gap identified was the amount of mercury in exported
mercury-added products. The Agency is also seeking to be able to
differentiate between the amount of mercury in imported mercury-added
products and the amount in mercury-added products manufactured in the
United States. For example, importation or domestic manufacture of
mercury-added products may or may not be reflected in data reported as
domestic sale of mercury-added products. EPA is committed to further
addressing such data gaps and considers the national mercury inventory
mandated by Congress to be an instrumental means to establish the
requisite body of information to support achievement of that goal.
D. Stakeholder Involvement
In developing the proposed rule, the agency coordinated with the
Northeast Waste Management Officials' Association, which administers
the IMERC database, as directed by TSCA section 8(b)(10)(D)(ii), to
avoid duplication.
III. Summary of Proposed Rule
This proposed rule, when finalized, would provide for the
collection of information that allows EPA to implement statutory
requirements at TSCA section 8(b)(10)(B), which directs that ``[n]ot
later than April 1, 2017, and every 3 years thereafter, the
Administrator shall carry out and publish in the Federal Register an
inventory of mercury supply, use, and trade in the United States'' (15
U.S.C. 2607(b)(10)(B)). TSCA section 8(b)(10)(D) directs the Agency to
promulgate this reporting rule no later than two years after the date
of enactment of the June 2016 TSCA amendments. Based on the inventory,
the Agency is directed 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.'' At this time, EPA is not making
such identifications or recommendations. EPA's proposal for fulfilling
specific statutory provisions and terms are set forth by topic as
follows.
A. Definition of Mercury
TSCA section 8(b)(10)(A) states ``notwithstanding [TSCA] section
3(2)(B), the term `mercury' means . . . elemental mercury; and . . . a
mercury compound'' (15 U.S.C. 2607(b)(10)(A)). As such, the definition
for mercury at TSCA section 8(b)(10)(A) supersedes the exclusions for
``chemical substances'' described in TSCA section 3(2)(B) that would
otherwise apply to mercury, mercury-added products, or otherwise
intentional uses of mercury in manufacturing processes. For example,
any ``drug, cosmetic, or device'' as described in TSCA section
3(2)(B)(vi),
[[Page 49569]]
should such items contain mercury, would not be excluded from reporting
under the proposed rule.
For purposes of the proposed rule, the Agency proposes that where
EPA distinguishes between elemental mercury and mercury compounds,
elemental mercury be limited to elemental mercury (CASRN 7439-97-6) and
mercury compounds be inclusive of all instances where elemental mercury
or a mercury compound is reacted with another chemical substance.
Examples of mercury compounds from the TSCA Chemical Substance
Inventory are listed in Table 2.
Table 2--List of Mercury Compounds
------------------------------------------------------------------------
Chemical Abstracts Registry No. Mercury compound
------------------------------------------------------------------------
10045-94-0........................ Nitric acid, mercury(2+) salt (2:1).
100-57-2.......................... Mercury, hydroxyphenyl-.
10112-91-1........................ Mercury chloride (Hg2Cl2).
10124-48-8........................ Mercury amide chloride (Hg(NH2)Cl).
103-27-5.......................... Mercury, phenyl(propanoato-
.kappa.O.)-.
10415-75-5........................ Nitric acid, mercury(1+) salt (1:1).
104-60-9.......................... Mercury, (9-octadecenoato-
.kappa.O)phenyl-.
1191-80-6......................... 9-Octadecenoic acid (9Z)-,
mercury(2+) salt (2:1).
12068-90-5........................ Mercury telluride (HgTe).
13170-76-8........................ Hexanoic acid, 2-ethyl-, mercury(2+)
salt (2:1).
13302-00-6........................ Mercury, (2-ethylhexanoato-
.kappa.O)phenyl-.
1335-31-5......................... Mercury cyanide oxide (Hg2(CN)2O).
1344-48-5......................... Mercury sulfide (HgS).
1345-09-1......................... Cadmium mercury sulfide.
13876-85-2........................ Mercurate(2-), tetraiodo-,
copper(1+) (1:2), (T-4)-.
138-85-2.......................... Mercurate(1-), (4-
carboxylatophenyl)hydroxy-, sodium
(1:1).
141-51-5.......................... Mercury, iodo(iodomethyl)-.
14783-59-6........................ Mercury, bis[(2-
phenyldiazenecarbothioic acid-
.kappa.S) 2-phenylhydrazidato-
.kappa.N2]-, (T-4)-.
15385-58-7........................ Mercury, dibromodi-, (Hg-Hg).
15785-93-0........................ Mercury, chloro[4-[(2,4-
dinitrophenyl)amino]phenyl]-.
15829-53-5........................ Mercury oxide (Hg2O).
1600-27-7......................... Acetic acid, mercury(2+) salt (2:1).
1785-43-9......................... Mercury, chloro(ethanethiolato)-.
19447-62-2........................ Mercury, (acetato-.kappa.O)[4-[2-[4-
(dimethylamino)phenyl]diazenyl]phen
yl]-.
20582-71-2........................ Mercurate(2-), tetrachloro-,
potassium (1:2), (T-4)-.
20601-83-6........................ Mercury selenide (HgSe).
21908-53-2........................ Mercury oxide (HgO).
22450-90-4........................ Mercury(1+), amminephenyl-, acetate
(1:1).
24579-90-6........................ Mercury, chloro(2-hydroxy-5-
nitrophenyl)-.
24806-32-4........................ Mercury, [.mu.-[2-
dodecylbutanedioato(2-)-
.kappa.O1:.kappa.O4]]diphenyldi-.
26545-49-3........................ Mercury, (neodecanoato-
.kappa.O)phenyl-.
27685-51-4........................ Cobaltate(2-), tetrakis(thiocyanato-
.kappa.N)-, mercury(2+) (1:1), (T-
4)-.
29870-72-2........................ Cadmium mercury telluride
((Cd,Hg)Te).
3294-57-3......................... Mercury, phenyl(trichloromethyl)-.
33770-60-4........................ Mercury, [3,6-dichloro-4,5-
di(hydroxy-.kappa.O)-3,5-
cyclohexadiene-1,2-dionato(2-)]-.
3570-80-7......................... Mercury, bis(acetato-.kappa.O)[.mu.-
(3',6'-dihydroxy-3-
oxospiro[isobenzofuran-1(3H),9'-
[9H]xanthene]-2',7'-diyl)]di-.
537-64-4.......................... Mercury, bis(4-methylphenyl)-.
539-43-5.......................... Mercury, chloro(4-methylphenyl)-.
54-64-8........................... Mercurate(1-), ethyl[2-(mercapto-
.kappa.S)benzoato(2-)-.kappa.O]-,
sodium (1:1).
55-68-5........................... Mercury, (nitrato-.kappa.O)phenyl-.
56724-82-4........................ Mercury, phenyl[(2-
phenyldiazenecarbothioic acid-
.kappa.S) 2-phenylhydrazidato-
.kappa.N2]-.
587-85-9.......................... Mercury, diphenyl-.
592-04-1.......................... Mercury cyanide (Hg(CN)2).
592-85-8.......................... Thiocyanic acid, mercury(2+) salt
(2:1).
593-74-8.......................... Mercury, dimethyl-.
59-85-8........................... Mercurate(1-), (4-
carboxylatophenyl)chloro-,
hydrogen.
623-07-4.......................... Mercury, chloro(4-hydroxyphenyl)-.
62-38-4........................... Mercury, (acetato-.kappa.O)phenyl-.
62638-02-2........................ Cyclohexanebutanoic acid,
mercury(2+) salt (2:1).
627-44-1.......................... Mercury, diethyl-.
6283-24-5......................... Mercury, (acetato-.kappa.O)(4-
aminophenyl)-.
628-86-4.......................... Mercury, bis(fulminato-.kappa.C)-.
629-35-6.......................... Mercury, dibutyl-.
63325-16-6........................ Mercurate(2-), tetraiodo-, (T-4)-,
hydrogen, compd. with 5-iodo-2-
pyridinamine (1:2:2).
63468-53-1........................ Mercury, (acetato-.kappa.O)(2-
hydroxy-5-nitrophenyl)-.
63549-47-3........................ Mercury, bis(acetato-
.kappa.O)(benzenamine)-.
68201-97-8........................ Mercury, (acetato-
.kappa.O)diamminephenyl-, (T-4)-.
72379-35-2........................ Mercurate(1-), triiodo-, hydrogen,
compd. with 3-methyl-2(3H)-
benzothiazolimine (1:1:1).
7439-97-6......................... Mercury.
7487-94-7......................... Mercury chloride (HgCl2).
7546-30-7......................... Mercury chloride (HgCl).
7616-83-3......................... Perchloric acid, mercury(2+) salt
(2:1).
7774-29-0......................... Mercury iodide (HgI2).
7783-33-7......................... Mercurate(2-), tetraiodo-, potassium
(1:2), (T-4)-.
[[Page 49570]]
7783-35-9......................... Sulfuric acid, mercury(2+) salt
(1:1).
7783-39-3......................... Mercury fluoride (HgF2).
7789-47-1......................... Mercury bromide (HgBr2).
90-03-9........................... Mercury, chloro(2-hydroxyphenyl)-.
94070-93-6........................ Mercury, [.mu.-[(oxydi-2,1-
ethanediyl 1,2-benzenedicarboxylato-
.kappa.O2)(2-)]]diphenyldi-.
------------------------------------------------------------------------
B. Explanation of Supply, Use, and Trade
Pursuant to TSCA section 8(b)(10)(B), EPA interprets the scope of
the mercury inventory to include activities within the domestic and
global commodity mercury market that would fall under ``supply, use,
and trade of mercury in the United States.'' An inventory that
adequately accounts for mercury in supply, use, and trade includes
activities of persons who must report as described in TSCA section
8(b)(10)(d)(i): Manufacture, import, and otherwise intentionally use
mercury in a manufacturing process. In addition, the Agency proposes
that persons required to report to the mercury inventory also include
information on distribution in commerce, storage, and export in order
to provide for the requisite inventory of mercury supply, use, and
trade in the United States. EPA proposes that reporting to cover
``supply'' include manufacture and storage of mercury, reporting to
cover ``use'' include use of mercury to manufacture a mercury-added
product or otherwise intentional use of mercury in a manufacturing
process, and reporting to cover ``trade'' include import, export, and
distribution in commerce of mercury or mercury-added products. EPA
proposes that obtaining information related to such activities,
including reporting quantities of mercury, as well as qualitative
information related to supply, use, and trade, is necessary to create
the inventory described at TSCA section 8(b)(10)(B). Examples of such
qualitative information include: Country of origin (for imports of
mercury or mercury-added products), destination country (for exported
mercury-added products or certain mercury compounds), and
identification of purchasing or receiving industry sectors via NAICS
codes (for mercury or mercury-added products distributed in domestic
commerce).
In addition to using this information for the mercury inventory,
this information would be used by the U.S. Government to assist in its
implementation of the Minamata Convention (Ref. 2), in particular with
respect to mercury supply sources and trade, mercury-added products,
manufacturing processes in which mercury is used, and reporting. The
United States is a Party to the Minamata Convention, which is a
multilateral environmental agreement that addresses the supply, use,
and trade in mercury by, among other actions, not allowing the
introduction of new mercury mines and the phasing out of existing ones,
phasing out and phasing down the use of mercury in a number of products
and industrial processes, placing control measures on emissions to air
and on releases to land and water, and taking action to reduce the use
of mercury in the informal sector of artisanal and small-scale gold
mining. EPA seeks comment on the proposed limited data collection
requirements, such as the identification of countries that manufacture,
import, or export mercury-added products (i.e., countries of origin and
destination), as well as the identification of purchasing or receiving
industry sectors via NAICS codes, to inform activities under the
Minamata Convention.
In regard to certain exports of mercury, the Agency notes that the
export of elemental mercury has been prohibited since January 1, 2013
(15 U.S.C. 2611(c)(1)) and therefore the Agency is not proposing to
require reporting on the export of elemental mercury from the United
States. TSCA, as of January 1, 2020, will also prohibit the export of
certain mercury compounds: Mercury (I) chloride or calomel; mercury
(II) oxide; mercury (II) sulfate; mercury (II) nitrate; and cinnabar or
mercury sulphide (the statute uses the term ``mercury sulphide'' which
is an alternative spelling of ``mercury sulfide'' as found in the table
above) (15 U.S.C. 2611(c)(7)). EPA recognizes that a complete inventory
would include at least one cycle of reporting prior to the effective
date of the prohibition for export of the five mercury compounds
subject to 15 U.S.C. 2611(c)(7). As such, the inventory would benefit
from the recent totals of at least one cycle of reporting prior to the
effective date of the prohibition for export of mercury compounds
subject to 15 U.S.C. 2611(c)(7) to (1) measure trends in supply, use,
and trade; and (2) provide a baseline for comparison of the changes in
the amounts of other mercury compounds exported after the 2020
effective date. The Agency also recognizes that the 2020 effective date
of 15 U.S.C. 2611(c)(7) is such that any reporting on those five
compounds will not assist the Agency in recommending further actions to
achieve further reductions in mercury use because the export ban will
be in effect as of 2020. Therefore, EPA requests public comment on
whether to require one-time reporting for exports of the mercury
compounds prohibited from export by 15 U.S.C. 2611(c)(7). It should be
noted that reporting for exports of mercury compounds that are not
prohibited from export by 15 U.S.C. 2611(c)(7), as well as products
that contain intentionally-added elemental mercury and/or any mercury
compounds (including the compounds prohibited from export) will be
required.
In order to obtain information for the mercury inventory with the
necessary level of detail, EPA is proposing to require reporting on
activities that are subsets of defined terms. For example,
``manufacture'' is defined in TSCA section 3(9) to mean: ``import into
the customs territory of the United States (as defined in general note
2 of the Harmonized Tariff Schedule of the United States), produce, or
manufacture'' (15 U.S.C. 2602(9)). While both manufacture and import
are described in the statutory definition of ``manufacture,'' the
Agency proposes to separate reporting for these activities of the
mercury market in order to capture distinct actions by persons who
handle and trade mercury. As such, EPA is proposing that persons
required to report specify distinct amounts, if any, of imported or
otherwise manufactured mercury, as well as amounts of mercury in
imported or otherwise manufactured mercury-added products.
Conversely, the activity ``otherwise intentionally uses mercury in
a manufacturing process'' is not defined under TSCA. The Agency
considers this activity to be similar, but not identical to the
definition for ``process'' at TSCA section 3(13): ``preparation of a
chemical substance or mixture, after its
[[Page 49571]]
manufacture, for distribution in commerce . . . in the same form or
physical state as, or in a different form or physical state from, that
in which it was received by the person so preparing such substance or
mixture, or . . . as part of an article containing the chemical
substance or mixture'' (15 U.S.C. 2602(13)). EPA proposes to require
reporting on both the otherwise intentional use of mercury in a
manufacturing process, as well as manufacture of mercury or a mercury-
added product, distinguished by focusing on how the mercury came to be
present in a final product. For manufacture of mercury or a mercury-
added product, the Agency views such activities to be the intentional
addition of mercury where mercury remains present in the final product
for a particular purpose. For otherwise intentional use of mercury in a
manufacturing process, the Agency views such activities to be the
intentional use of mercury, but where no mercury remains or any mercury
present in the final product exists only as an impurity.
Finally, TSCA section 8(f) states ``[f]or purposes of [TSCA section
8], the terms `manufacture' and `process' mean manufacture or process
for commercial purposes'' (15 U.S.C. 2607(f)). Under a TSCA section
8(a) reporting rule, EPA has previously defined ``manufacture for
commercial purposes'' for the purposes of other information gathering
rules to include ``import, produce, or manufacture with the purpose of
obtaining an immediate or eventual commercial advantage for the
manufacturer'' and ``substances that are produced coincidentally during
the manufacture, processing, use, or disposal of another substance or
mixture, including both byproducts that are separated from that other
substance or mixture and impurities that remain in that substance or
mixture . . . [that] may, or may not, in themselves have commercial
value'' (40 CFR 704.3). In the same rule, similarly, EPA has defined
``process for commercial purposes'' as ``the preparation of a chemical
substance or mixture after its manufacture for distribution in commerce
with the purpose of obtaining an immediate or eventual commercial
advantage for the processor. Processing of any amount of a chemical
substance or mixture is included in this definition. If a chemical
substance or mixture containing impurities is processed for commercial
purposes, then the impurities also are processed for commercial
purposes'' (40 CFR 704.3). EPA notes that there is a separate
definition for ``import for commercial purposes'' at 40 CFR 704.3, but
finds it to be substantially similar to germane portions of
``manufacture for commercial purposes.''
EPA is proposing that the terms ``manufacture,'' ``import,'' and
``otherwise intentional use of mercury in a manufacturing process'' be
interpreted for the purposes of mercury inventory reporting based on
the aforementioned definitions in 40 CFR 704.3 and the statutory text
at TSCA section 8(f). In regard to the manufacture (including import)
of mercury as a byproduct, impurity, or similar occurrence, EPA
considered whether such chemical substances are intentionally generated
and whether such substances are used for commercial purposes. To
synthesize these concepts, EPA is proposing to require reporting on
mercury or mercury-containing byproducts manufactured for commercial
purposes. Mercury generated as a byproduct not used for commercial
purposes would not be subject to the proposed rule.
In addition, EPA is proposing that mercury that exists as an
impurity would not be subject to the proposed rule, except where such
impurities are present in a final product produced by persons who
otherwise intentionally use mercury in a manufacturing process. EPA is
distinguishing between the manufacture of mercury-added products versus
the final products containing mercury that result from the intentional
use of mercury in a manufacturing process. First, EPA considers the
addition and presence of mercury in the final products of the former
process to be intentional and, therefore, not an impurity. Conversely,
EPA considers the presence of mercury in the final product resulting
from the intentional use of mercury during the manufacturing processes
identified in this proposed rule (see Unit III.D.5.) to be
unintentional (i.e., present as an impurity). Second, the Agency has
less detailed institutional knowledge of this category of uses and is
proposing to collect information on mercury that exists as an
unintended impurity in products in such cases to better identify
mercury use in manufacturing processes, as directed in TSCA section
8(b)(10)(C).
EPA determined that actions described in the definition of
``distribution in commerce'' at TSCA section 3(5): ``to sell, or the
sale of, the substance, mixture, or article in commerce; to introduce
or deliver for introduction into commerce, or the introduction or
delivery for introduction into commerce of, the substance, mixture, or
article; or to hold, or the holding of, the substance, mixture, or
article after its introduction into commerce'' (15 U.S.C. 2602(5)), are
adequate to describe both distribution in commerce and storage for the
proposed rule. In particular, the Agency is interested in quantities of
mercury sold or transferred between facilities in the United States. As
such, EPA is proposing to incorporate the concept of ``domestic'' as
defined at 40 CFR 704.3 to activities considered to be distribution in
commerce, as opposed to international import and export, which would be
covered separately. Where ``to hold'' or ``holding of'' (i.e., storage)
is concerned, EPA is proposing to require reporting for quantities of
mercury stored, if any, by persons who manufacture (including import)
mercury, as well as those who otherwise intentionally use mercury in a
manufacturing process. Mercury stored by persons who only produce
mercury-added products would not be required to be reported. Moreover,
the Agency is not proposing to require reporting for quantities of
mercury within mercury-added products that are stored after manufacture
and prior to distribution in commerce. EPA assumes the quantity of
mercury that manufacturers of mercury-added products store for later
use or keep within product inventories is likely to be too small to
help explain the information gap between sold and used mercury. The
expected value of the information is likely to be low considering the
burden and cost on reporters.
The Agency considered ``export'' in the context of ``exporter'' as
defined in the TSCA section 12(b) export notification rule at 40 CFR
part 707 Subpart D: ``determining and controlling the sending of the
chemical substance or mixture to a destination out of the customs
territory of the United States'' 40 CFR 707.63(b). For purposes of the
proposed rule, however, the Agency believes that it is necessary to
collect export data not only on certain mercury compounds, but also
mercury-added products that are exported from the United States. As
such, EPA would include articles in the reporting required for export.
Therefore, in summary, the Agency proposes to require reporting for
the following activities:
Import of mercury or a mercury-added product with the
purpose of obtaining an immediate or eventual commercial advantage for
the importer, except where such mercury is generated as a byproduct not
used for commercial purposes or an impurity.
[[Page 49572]]
Manufacture (other than import) of mercury or a mercury-
added product with the purpose of obtaining an immediate or eventual
commercial advantage for the manufacturer, except where such mercury is
generated as a byproduct not used for commercial purposes or an
impurity. In this context, EPA considers manufacture to be the
intentional production of mercury, a mercury compound, or a mercury-
added product, as opposed to the uses described for ``otherwise
intentionally uses mercury in a manufacturing process.'' Incidental
manufacture of mercury (e.g., burning of coal or similar) would not be
subject to the proposed rule.
Otherwise intentional use of mercury in a manufacturing
process, other than the manufacture of a mercury compound or a mercury-
added product, with the purpose of obtaining an immediate or eventual
commercial advantage for the user, except where such mercury is
generated as a byproduct not used for commercial purposes.
Distribution in commerce, including domestic sale or
transfer, of mercury or a mercury-added product.
Storage of mercury after manufacture (including import).
Export of mercury or a mercury-added product, including
the determining and controlling the sending of mercury (unless
specifically prohibited) or a mercury-added product to a destination
out of the customs territory of the United States.
These proposed interpretations of terms are intended to align with
the structure and logical flow of reporting requirements described in
Unit III.E. Nonetheless, EPA requests comment on the proposed
interpretations of activities to be considered as part of supply, use,
and trade of mercury in the United States.
C. Coordination With Existing Reporting Programs
TSCA section 8(b)(10)(D)(ii) directs the Agency to ``coordinate the
reporting . . . with the Interstate Mercury Education and Reduction
Clearinghouse'' to avoid duplication (15 U.S.C. 2607(b)(10)(D)(ii)).
Furthermore, TSCA section 8(a)(5)(a) states ``[i]n carrying out [TSCA
section 8], the Administrator shall, to the extent feasible . . . not
require reporting which is unnecessary or duplicative'' (15 U.S.C.
2607(a)(5)(a)). The Agency seeks to avoid collecting data on mercury
that would duplicate information already reported to existing state and
federal programs, and to coordinate with and complement those reporting
programs as much as possible. While developing this proposed rule, EPA
reviewed four data collection systems applicable to supply, use, and
trade of mercury (including mercury-added products and mercury used in
manufacturing processes): IMERC, the TSCA section 8(a) Chemical Data
Reporting rule, the Toxics Release Inventory (TRI) program, and the
U.S. International Trade Commission Interactive Trade DataWeb (USITC
DataWeb).
1. IMERC. IMERC is an online reporting database managed by the
Northeast Waste Management Officials' Association (NEWMOA), which
provides publicly available, national data on mercury used in products.
Laws in certain states (Connecticut, Louisiana, Maine, Massachusetts,
New Hampshire, New York, North Carolina, Rhode Island, and Vermont--
hereinafter ``IMERC Notification states'') require companies that
manufacture, distribute, or import mercury-added products to identify
the mercury-added products they sell and the volume of mercury in them.
The volume information is reported at a national level, although only
companies selling mercury products within those states need to report.
The IMERC database houses the information that is reported to IMERC
Notification states on a triennial basis and provides a detailed
picture of some aspects of the mercury product market. There are,
however, some concerns about whether all nationwide sales are captured
(i.e., no reporting requirement for a company that sells mercury-added
products exclusively outside of IMERC Notification states). Despite
such concerns and given the statutory direction to coordinate both
programs, EPA recognizes that the proposed rule and IMERC reporting
requirements for mercury-added products should be harmonized to the
greatest extent practicable.
While developing this proposed rule, the Agency coordinated with
IMERC and NEWMOA to ensure that data collected in accordance with the
proposed reporting requirements and existing IMERC reporting
requirements would not be duplicative and that information collected
would be shared to the greatest extent practicable. The Agency is
designing the electronic reporting application for the mercury
inventory that would automatically skip certain reporting requirement
fields when users indicate they report to the IMERC Mercury-Added
Products Database. Such users would automatically bypass mercury
inventory reporting requirements that are comparable to those reported
to IMERC. Specifically, those that report to IMERC would not be
required to report the amount of mercury distributed in commerce under
this proposed rule because EPA believes that information is captured by
IMERC as national sales data. However, those that report to IMERC would
still be required to provide qualitative data--NAICS codes related to
sales data--as part of the distribution in commerce reporting
requirement (see Table 4--Information to Report--Mercury-Added
Products).
2. TSCA Chemical Data Reporting Rule. EPA also sought to avoid
duplicating the mercury reporting requirements of its own CDR rule
(Ref. 10) and reporting to the TRI program (Ref. 11). The CDR rule
collects manufacturing, processing, and use information on certain
chemical substances manufactured (including imported) in the United
States. Persons required to report include those that manufacture
(including import) for commercial purposes in excess of 2,500 lbs. for
a specific reporting year for substances meeting certain criteria,
which include elemental mercury; or in excess of 25,000 lbs. for a
specific reporting year for most other substances, which include
mercury compounds.
In general, CDR reporters do not report information on chemical
substances in articles, unless they first import or domestically
manufacture the chemical substance that they then incorporate into an
article or product (Ref. 12). As discussed in regard to coordinating
with IMERC to avoid duplicative reporting, the Agency's intended design
for the reporting application for the mercury inventory would allow a
CDR reporter to automatically skip certain reporting requirement fields
that would be considered duplicative. As an example, those that report
to CDR would not be required to provide the amount of mercury imported,
however, they would be required to provide qualitative information--in
this example the country of origin--as part of the reporting
requirement (see Table 3--Information to Report--Mercury).
3. Toxics Release Inventory. The TRI program collects data on toxic
chemical releases to air, water and land from industrial facilities and
pollution prevention activities in the United States. The TRI program
requires reporting when covered facilities in covered industrial
sectors manufacture, process, or otherwise use more than 10 lbs. of
elemental mercury and/or mercury compounds per year. However, while the
TRI program requires reporters to specify whether mercury is
manufactured, processed, or otherwise
[[Page 49573]]
used in activities comparable to the proposed rule (e.g., article
component, formulation component, reactant, chemical processing aid,
manufacturing aid), it does not require reporting of quantitative data
on amounts of mercury used for such activities or the kind of article
involved.
4. USITC DataWeb. Additionally, EPA reviewed the USITC DataWeb,
which provides U.S. international trade statistics and U.S. tariff data
to the public (Ref. 13). All trade data are compiled from official data
retrieved from the U.S. Bureau of the Census (Census). Data on U.S.
exports of merchandise from the United States to all countries, except
Canada, are compiled from the Electronic Export Information filed by
the U.S. Principal Party in Interest or their agents through the
Automated Export System. Published data on U.S. imports of merchandise
are compiled primarily from automated data submitted through the
Automated Commercial System of U.S. Customs and Border Protection
(CBP). Data are also compiled from import entry summary forms,
warehouse withdrawal forms and Foreign Trade Zone documents as required
by law to be filed with CBP.
After reviewing these reporting programs, EPA has sought to design
the proposed reporting requirements to be least burdensome for
reporters already familiar with IMERC, CDR, TRI, and USITC DataWeb
protocol. Therefore, the Agency is proposing to incorporate comparable
reporting concepts and tools from each program, as well as propose some
exemptions, in an attempt to increase the efficacy of while decreasing
the burden to the greatest extent practicable for reporting to a
national mercury inventory. EPA is seeking comment on the incorporation
of the reporting concepts and tools from each program, as well as the
proposed exemptions.
D. Persons Who Must Report
TSCA section 8(b)(10)(D)(i) states ``any person who manufactures
mercury or mercury-added products or otherwise intentionally uses
mercury in a manufacturing process shall make periodic reports to the
Administrator'' (15 U.S.C. 2607(b)(10)(D)(i)). As explained in Unit
III.B., EPA interprets the statutory text at TSCA sections 8(b)(10)(B),
8(b)(10)(D)(i), and 8(b)(10)(D)(iii) as applying to intentional acts
that introduce mercury into supply, use, and trade in the United
States. Furthermore, EPA reads TSCA section 8(b)(10)(D)(i) to narrow
potential reporters to persons who first manufacture mercury or
mercury-added products or otherwise intentionally use mercury in a
manufacturing process. As such, EPA determined that persons who merely
trade (e.g., brokering, selling wholesale, shipping, warehousing,
repackaging, or retail sale), but do not manufacture or import mercury
or mercury-added products, should not be subject to the proposed
reporting requirements. Aside from its reading of TSCA section
8(b)(10)(D)(i), the Agency is concerned that requiring reporting from
such entities risks: (1) Double-counting of mercury as it moves through
supply chains; and (2) undue burden or liability on entities that are
not likely to be aware if or how mercury is present in products that
they trade.
1. Exemption for Persons Who Generate, Handle, or Manage Mercury-
containing Waste. Persons ``engaged in the generation, handling, or
management of mercury-containing waste, unless that person manufactures
or recovers mercury in the management of that waste'' are not required
to report to the mercury inventory (15 U.S.C. 2607(b)(10)(D)(iii)).
There are generally four sources of mercury-containing waste: (1)
Industrial processes, which often generate a mixture of elemental
mercury or mercury compounds combined with other substances; (2) the
discard of mercury-added products such as fluorescent lamps; (3) the
discard of elemental mercury (e.g. surplus commodity mercury); and (4)
mercury-contaminated environmental media that are excavated as part of
a contaminated site clean-up. Mercury-containing waste that is
hazardous is regulated by the Resource Conservation and Recovery Act
(RCRA).
EPA considers the following examples of persons and waste types to
be exempt from reporting to the proposed rule:
Hazardous waste treatment facilities that stabilize and
landfill low-concentration mercury-containing waste.
Manufacturing facilities that:
--Generate a mercury-containing waste and send it to a waste management
facility.
--Use mercury to manufacture products or otherwise intentionally use
mercury in a manufacturing process, and also generate a mercury-
containing waste from that use or another process. The exemption
applies to the mercury in the facility's waste but not to the quantity
it uses. Under the proposed rule, the facility would report on the
quantity it uses.
--Discard mercury-added products, such as fluorescent light bulbs,
switches, and thermometers, unless the facility also intentionally uses
mercury in a manufacturing process. In that case, the facility would
report the mercury it uses, but not the mercury in the products it
discards because the products and the mercury within them are waste.
A person who uses a mercury-added product but does not
manufacture mercury or mercury-added products and does not
intentionally use mercury in a manufacturing process.
Hazardous waste treatment facilities that recover
elemental mercury from mercury-containing waste and manage that
elemental mercury as a waste. There are currently two primary ways in
which recovered elemental mercury can be managed as a waste: Placed in
long-term storage at a facility with a RCRA permit as allowed under
Section 5(g) of MEBA, or converted to mercury sulfide and exported for
disposal.
A generator producing mercury incidentally from the
beneficiation or processing of ore or related pollution control
activities, who accumulates this mercury on-site.
A generator who temporarily stores waste elemental mercury
for up to 90 or 180 days pending shipment for long-term storage or for
treatment and disposal. The elemental mercury in all of these cases is
not subject to the proposed rule.
EPA seeks comments on the examples provided and requests input on
other relevant examples that may be useful.
The exemption at 15 U.S.C. 2607(b)(10)(D)(iii) does not apply to
persons who manufacture or recover elemental mercury in the management
of mercury-containing waste with the intent to use it or store it for
use. For example, if a waste treatment facility retorts or distills
mercury-containing waste to recover elemental mercury and then sells or
stores the mercury for later sale, that person is considered to be a
manufacturer of mercury and must report to the proposed rule for the
amount of elemental mercury it sells or stores. If any manufacturer
covered by the proposed rule decides at any time to manage the
elemental mercury as a waste, that mercury is subject to the RCRA, but
not to the proposed rule. Elemental mercury that is stored under MEBA
or converted to a mercury compound and disposed of remains a waste,
that is, its status cannot change from waste to commodity mercury.
2. Reporting Threshold. As discussed in Unit III.C., the Agency
compared existing state and federal reporting databases applicable to
the supply, use, and trade of mercury. EPA conducted this review in an
attempt not only to eliminate duplicative reporting
[[Page 49574]]
requirements, but also to incorporate applicable features of such
programs, including the consideration of respective reporting
thresholds.
The statutory text at TSCA section 8(b)(10) is silent on a
reporting threshold; however, TSCA section 8(b)(10)(C) directs the
Agency to ``identify any manufacturing processes or products that
intentionally add mercury'' (15 U.S.C. 2607(10)(b)(C)). The Agency
interprets the direction to ``identify any'' to apply to any amount of
mercury in a manufacturing process or product. When considered in light
of the statutory text at TSCA section 8(b)(10)(C), as well as concerns
related to the potential adverse effects on human health and the
environment resulting from releases of mercury, the Agency finds that
it would be inappropriate to propose a threshold under which reporting
would not be required. Therefore, EPA proposes to apply the proposed
reporting requirements to any person who manufactures (including
imports) mercury, mercury-added products or otherwise intentionally
uses mercury in a manufacturing process regardless of the amount of
mercury at issue. EPA seeks comment on this approach.
The absence of a reporting threshold is consistent with IMERC
reporting requirements, which apply to the intentional addition of
mercury to a product, including where ``mercury is intentionally added
for any reason or that incorporates a component to which mercury was
intentionally added'' (Ref. 14). Because of the similarities in the
intentional addition of mercury to manufacture a product and otherwise
intentional use of mercury in a manufacturing process, EPA determined
that all quantities of mercury used in both activities should be
reported without a reporting threshold. EPA seeks comment on this
approach.
By comparison, the CDR rule contains reporting thresholds for
chemical substances, including elemental mercury and mercury compounds.
EPA interprets the mandate in TSCA section 8(b)(10)(B) to call for a
comprehensive inventory such that existing data gaps would be
eliminated, where feasible. The Agency also seeks as much as possible
to complement amounts of quantitative mercury data already collected
by, but without overlapping with, reporting requirements of the CDR
rule. In general, the Agency seeks to require reporting for persons who
manufacture (including import) mercury in quantities less than the CDR
thresholds for elemental mercury (2,500 lbs.) and mercury compounds
(25,000 lbs.). The coordination between additional, proposed reporting
requirements and the CDR rule are discussed in ``Persons Who
Manufacture (Including Import) Mercury.''
3. Persons Who Manufacture (Including Import) Mercury. As described
in Unit III.B., manufacture and import for the purpose of the proposed
rule would include the manufacture (including import) of mercury.
Although not exhaustive, persons who engage in the following activities
would be required to report under the proposed rule (see Table 3.
Information to Report--Mercury):
Mining (including extraction and beneficiation processes)
mercury;
Generating or isolating mercury during ore, petroleum, or
natural gas refining;
Retorting, recovering, or recycling (including purifying)
mercury from waste streams;
Chemical manufacturing of mercury;
Importing mercury; or
Capturing mercury using methods to reduce emissions of
hazardous air pollutants, unless the captured mercury is generated,
handled, or managed as a waste or is identified as an impurity.
As described in Unit III.C., the Agency is seeking to decrease the
burden of reporting to the greatest extent practicable by, among other
things, complementing without overlapping existing reporting
requirements related to mercury and mercury-added products. As such,
EPA proposes that persons who manufacture (including import) for
commercial purposes in excess of 2,500 lbs. for elemental mercury or in
excess of 25,000 lbs. for mercury compounds for a specific reporting
year would not be required to report amounts manufactured (including
imported) or exported that are already reported per the CDR rule. Such
persons would, however, be required to provide quantitative data on
storage and distribution in commerce, as well as qualitative and
contextual information related to all applicable data elements under
the proposed rule. In further efforts to decrease reporting burdens,
the Agency intends to provide pre-selected lists of mercury compounds
to streamline reporting requirements as much as possible.
Table 3--Information to Report--Mercury
------------------------------------------------------------------------
Potential reporting
Persons who must report requirements
------------------------------------------------------------------------
Persons who manufacture (including --Country(ies) of origin for
import) mercury in amounts greater imported mercury.
than or equal to 2,500 lbs. for --Country(ies) of destination
elemental mercury or greater than or for exported mercury.
equal to 25,000 lbs. for mercury --Amount of mercury stored
compounds for a specific reporting (lbs.).
year (i.e., current CDR reporters). --Amount of mercury distributed
in commerce (lbs.).
--NAICS code(s) for mercury
distributed in commerce.
--As applicable, specific
mercury compound(s) from pre-
selected list.
All other persons who manufacture --Amount of mercury
(including import) mercury. manufactured (lbs.).
--Amount of mercury imported
(lbs.).
--Country(ies) of origin for
imported mercury.
--Amount of mercury exported
(lbs.), except mercury
prohibited from export at 15
U.S.C. 2611(c)(1) and (7).
--Country(ies) of destination
for exported mercury.
--Amount of mercury stored
(lbs.).
--Amount of mercury distributed
in commerce (lbs.).
--NAICS code(s) for mercury
distributed in commerce.
--As applicable, specific
mercury compound(s) from pre-
selected list.
------------------------------------------------------------------------
4. Persons Who Manufacture or Import Mercury-added Products. As
described in Unit III.B., EPA is proposing to require reporting for
manufacture (including import) mercury-added products, except import of
a product that contains mercury solely as a component that is a
mercury-added product. The Agency proposes that a person who imports a
product that contains a component that is a mercury-added product
(e.g., toy or
[[Page 49575]]
novelty item containing a mercury-added battery) would not be required
to report under the proposed rule. EPA determined that this distinction
was appropriate after reviewing the data reported to the IMERC Mercury-
Added Products Database and comparing the companies that reported
national sales data for individual mercury-added products (including
components), as well as items that would be considered to contain a
component that is a mercury-added product (Ref. 15). For example,
companies that report to IMERC for sales of appliances and vehicles
list lamps as a mercury-added component. The Agency is interested in
collecting data on original manufacturers (including importers) and
users of mercury and believes that requiring certain contextual data
(e.g., NAICS codes) would sufficiently describe the use of mercury-
added components by companies who do not first manufacture, import, or
otherwise intentionally use mercury. Based on its review of the
companies who report to IMERC and the types of mercury-added products
reported, the Agency is concerned that requiring reporting for products
where mercury is present solely within a previously manufactured
component poses risks of double-counting and thereby could negatively
affect the reliability of future mercury inventory updates.
EPA also is concerned that requiring reporting for a product that
contains a mercury-added component could create undue burden for
certain importers. For example, the Agency concluded that it is more
likely that an importer of batteries would know if the specific kind of
battery contained mercury, as opposed to an importer of toys that may
or may not contain a mercury-added battery. However, EPA requests
comment on whether persons who manufacture (including import) items
that contain components that are mercury-added products should also
report under the proposed rule.
In addition, the Agency is aware of transactions where a consumer
directly orders mercury-added drugs (e.g., hemorrhoid ointments,
lotions, contact-lens solutions, and nasal sprays) and medical devices
(e.g., thermometers and blood pressure devices) from foreign vendors.
These parcels typically enter the United States via international mail
and are processed at international mail facilities by the U.S. Postal
Service, U.S. Customs and Border Protection, or the U.S. Food and Drug
Administration. The addressee on the parcel is considered to be the
importer of record. If an express courier is used, the express courier
may assume the role of the importer of record. In the case where an
individual consumer is purchasing and importing a mercury-added product
for personal use, the Agency believes that the proposed rule does not
apply to such persons. Furthermore, the proposed rule would not apply
to persons engaged in the delivery of such mercury-added products to an
individual consumer, even if the delivery service constitutes import
and distribution in commerce. In both scenarios, the persons who are
importing the mercury-added product are not doing so ``with the purpose
of obtaining an immediate or eventual commercial advantage for the
importer.'' However, if a delivery service intentionally specialized in
part or whole in the import and distribution in commerce of mercury-
added products, then that person (or company) would be required to
report to the mercury inventory.
Although not exhaustive, persons who engage in the following
activities would be required to report under the proposed rule (see
Table 4. Information to Report--Mercury-Added Products):
Importing mercury-added products (except the import of a
product that contains a component that is a mercury-added product); or
Producing mercury-added products (e.g., inserting mercury
into a switch or battery, or mixing a mercury compound with other
substances to formulate a topical antiseptic).
Examples of persons who would not be required to report to this
proposed rule include:
Manufacturers of concrete made from coal ash that contains
mercury, but where such mercury originated from coal burned as a fuel
source (i.e., mercury was not intentionally added to the coal ash or
the concrete);
Fuel blenders who combine materials that might contain
mercury, but are not chosen for blending because they contain mercury;
Consumers who purchase and import mercury-added products
for personal use from a foreign vendor; or,
Persons engaged in the delivery of mercury-added products
to an individual consumer, unless the delivery service intentionally
specializes in part or whole in the import and distribution in commerce
of mercury-added products.
For mercury-added products, the Agency seeks not only to balance
efforts to increase the efficacy of reporting while decreasing the
burden to the greatest extent practicable, but also to fully describe
applicable sectors of the mercury market. As described in Unit III.C.,
persons who report to IMERC identify the amount of mercury sold in
mercury-added products that may be manufactured, distributed, or
imported. The Agency considers the amount of mercury reported to IMERC
as sold to be comparable to the amount of mercury to be reported under
the proposed rule as distributed in commerce. As such, EPA proposes
that persons reporting to IMERC would not need to report amounts of
mercury distributed in commerce under the proposed rule. However, those
persons would need to report quantitative and qualitative information
for other applicable data elements. Under the proposed rule, such
persons also would be required to report contextual information
applicable to amounts, if any, of mercury manufactured, imported,
distributed in commerce, or exported. In further efforts to decrease
reporting burdens, the Agency intends to provide pre-selected lists of
mercury-added product categories to streamline reporting requirements
as much as possible.
Table 4--Information to Report--Mercury-Added Products
------------------------------------------------------------------------
Potential reporting
Persons who must report requirements
------------------------------------------------------------------------
Persons who manufacture (including --Amount of mercury in
import) mercury-added products, except manufactured products (lbs.).
a product that contains a component --Amount of mercury in imported
that is a mercury-added product, who products (lbs.).
currently report to IMERC. --Country(ies) of origin for
imported products.
--Amount of mercury in exported
products (lbs.).
--Country(ies) of destination
for exported products.
--NAICS code(s) for products
distributed in commerce.
--As applicable, specific
product category(ies) and
subcategory(ies) from pre-
selected list.
[[Page 49576]]
All other persons who manufacture --Amount of mercury in
(including import) mercury-added manufactured products (lbs.).
products, except a product that --Amount of mercury in imported
contains a component that is a mercury- products (lbs.).
added product. --Country(ies) of origin for
imported products.
--Amount of mercury in exported
products (lbs.).
--Country(ies) of destination
for exported products.
--Amount of mercury in products
distributed in commerce
(lbs.).
--NAICS code(s) for products
distributed in commerce.
--As applicable, specific
product category(ies) and
subcategory(ies) from pre-
selected list.
------------------------------------------------------------------------
5. Persons Who Otherwise Intentionally Use Mercury in a
Manufacturing Process. As described in Unit III.B., TSCA section
8(b)(10)(d)(i) includes persons who intentionally use mercury in a
manufacturing process amongst those who must report. Examples of
persons who otherwise intentionally use mercury in a manufacturing
process that would be required to report under the proposed rule
include, but are not limited to (see Table 5. Information to Report--
Otherwise Intentional Use of Mercury in a Manufacturing Process):
Producers of chlorine (e.g., mercury-cell chlor-alkali
process);
Producers of polyurethane elastomer; or
Producers of other commercial chemicals (except mercury
compounds).
Unlike manufacturers (including importers) of mercury and mercury-
added products, the Agency believes that persons who otherwise
intentionally use mercury in a manufacturing process may currently
report to existing data collection programs in the United States;
however, the reporting requirements for those programs cover only some
of the data elements that would be required of EPA for the mercury
inventory. As such, the general, specific, and contextual reporting
requirements proposed by EPA are intended to provide a complete picture
of uses for which little information is currently available. In further
efforts to decrease reporting burdens, the Agency intends to provide
pre-selected lists of manufacturing processes and attendant uses of
mercury to streamline reporting requirements as much as possible.
Table 5--Information to Report--Otherwise Intentional Use of Mercury in
a Manufacturing Process
------------------------------------------------------------------------
Potential reporting
Persons who must report requirements
------------------------------------------------------------------------
Persons who otherwise intentionally use --Amount of mercury
mercury in a manufacturing process, intentionally used (lbs.) in
other than the manufacture of a pre-selected list of
mercury compound or a mercury-added manufacturing processes.
product. --Amount of mercury stored
(lbs.).
--Amount of mercury in exported
final product(s) (lbs.).
--Country(ies) of destination
for exported final product(s).
--Amount of mercury in final
product(s) distributed in
commerce (lbs.).
--NAICS code(s) for mercury in
final product(s) distributed
in commerce.
--As applicable, specific
manufacturing process from pre-
selected list.
--As applicable, specific use
of mercury in manufacturing
process from pre-selected
list.
------------------------------------------------------------------------
To the extent that the proposed persons who must report and
descriptions and examples of the kinds of information to be reported
can be clarified, the Agency welcomes comment on the aforementioned
discussion and tables. In addition, the Agency requests comment on
whether other persons should be required to report or, in the
alternative, if any of the proposed persons should not report.
6. Consideration of Small Entities. Based on EPA's economic
assessment of the proposed rule (Ref. 3), approximately 40 percent of
the respondents will be small entities. However, small businesses are
not exempt from reporting requirements because, unlike the exemption
for small manufacturers and processors provided under TSCA 8(a)(1)(A)
and (B), reporting and recordkeeping requirements associated with TSCA
section 8(b) are applicable to all affected entities. EPA is striving
to minimize the burden on all respondents, including small entities, as
much as possible by developing the reporting application and database
to be user-friendly and dynamic, consisting of straightforward
questions that are to include fill-in-the-blank (numbers) fields, check
boxes, and drop down menus.
In addition, the Agency is considering the development of
compliance guides tailored to small entities that will be required to
comply with the reporting requirements. EPA requests public comment on
what kinds of information would be particularly important to address
for small entities in such compliance guides. EPA expects to conduct
outreach and webinars for small businesses to introduce the reporting
database, explain requirements, and offer Q&A and other support. Under
TSCA section 26(d), EPA also provides specialized assistance to
respondents, particularly to small entities, including technical and
other non-financial assistance to manufacturers and processors of
chemical substances. EPA's TSCA Hotline assists small businesses
complying with TSCA rules and provides various materials such as copies
of Federal Register notices, advisories, and other information upon
request. Contact information for the TSCA Hotline is listed under FOR
FURTHER INFORMATION CONTACT.
E. Reporting Requirements
TSCA section 8(b)(10)(B) sets the general scope of the inventory as
the ``mercury supply, use, and trade in the
[[Page 49577]]
United States'' (15 U.S.C. 2607(b)(10)(B)). EPA interprets the core
elements to be covered in the mercury inventory to be the amount of
mercury used in the activities within the mercury market described in
Unit III.B. (i.e., manufacture, import, export, storage, distribution
in commerce, and otherwise intentional use of mercury in a
manufacturing process). EPA also determined that, for certain elements,
requiring reporting of more specific information would help to better
contextualize reported quantities of mercury used in domestic and,
where appropriate, global supply, use, and trade. The proposed general,
specific, and contextual reporting requirements are described in this
section.
1. General Reporting Requirements. EPA considers ``supply'' to
include manufacture and storage, ``use'' to include otherwise
intentional use of mercury in a manufacturing process, and ``trade'' to
include import, export, and distribution in commerce. The Agency is
proposing that accounting for such activities is necessary to fulfill
statutory mandates at TSCA sections 8(b)(10)(B) and (C). Therefore, for
persons required to report (as described in Unit III.D.), EPA proposes
reporting quantitative data for mercury, mercury-added products, and
otherwise intentional use of mercury in a manufacturing process (as
qualified from existing terms as discussed in Unit III.B.) as follows:
a. Importers of mercury: Amount of mercury imported per year
(lbs.); Amount of mercury stored per year (lbs.); Amount of mercury
distributed in commerce per year (lbs.); Amount of mercury exported per
year (lbs.).
b. Manufacturers (other than importers) of mercury: Amount of
mercury manufactured (other than imported) per year (lbs.); Amount of
mercury stored per year (lbs.); Amount of mercury distributed in
commerce per year (lbs.).
c. Importers of any mercury-added product other than a product that
contains a component that is a mercury-added product (NOTE--see Unit
III.D.): Amount of mercury in imported products per year (lbs.); Amount
of mercury in products distributed in domestic commerce per year
(lbs.); Amount of mercury in exported products per year (lbs.).
d. Manufacturers (other than importers) of any mercury-added
product other than a product that contains a component that is a
mercury-added product (NOTE--see Unit III.D.): Amount of mercury in
manufactured (other than imported) products per year (lbs.); Amount of
mercury in products distributed in commerce per year (lbs.); Amount of
mercury in exported products per year (lbs.).
e. Persons who intentionally use mercury in manufacturing
processes, other than the manufacture of a mercury compound or a
mercury-added product: Amount of mercury used in a manufacturing
process per year (lbs.); Amount of mercury stored per year (lbs.);
Amount of mercury distributed in commerce in final product(s) of
manufacturing process per year (lbs.); Amount of mercury exported in
final product(s) of manufacturing process per year (lbs.).
EPA understands that certain persons may report for multiple
activities associated with supply, use, and trade of mercury. For
example, a person may import mercury and manufacture mercury-added
products. As such, the Agency attempted to design the proposed
quantitative data elements for reporting requirements such that a
person could report both as an ``importer of mercury'' and
``manufacturer of mercury-added products,'' but only report for the
specific activity in which they engage. The Agency expects there may be
certain persons engaged in the supply, use, and trade of mercury who
might not be accounted for in the inventory, but EPA views this
omission of prospective reporters as an opportunity to limit undue
burden and avoid double-counting. Thus, the Agency is proposing to
limit the persons who must report at TSCA section 8(b)(10)(D)(i) to
only those persons described in Unit III.D. However, EPA requests
comment on whether the proposed reporting requirements should apply to
persons who do not manufacture or import mercury or mercury-added
products, or otherwise intentionally use mercury in a manufacturing
process, but engage in the supply, use, and trade of mercury in the
United States.
2. Specific Reporting Requirements. To better understand the
categories of mercury-added products and otherwise intentional use of
mercury in a manufacturing process, the Agency also proposes to require
reporters to identify the specific categories and subcategories of
products and functional uses for which quantitative data is reported.
The Agency believes this is an appropriate interpretation of the
direction to ``identify any manufacturing processes or products that
intentionally add mercury,'' which, in turn, could inform how to
``recommend actions, including proposed revisions of Federal law or
regulations, to achieve further reductions in mercury use'' (15 U.S.C.
2607(b)(10)(C)). Persons required to report would provide the total
amount of mercury used during the reporting year in pounds for general
reporting activities associated with supply, use, and trade, rather
than per category and subcategory. EPA based this decision on issues
concerning burden and confidential business information that could be
created by reporting quantitative information for increasingly specific
categories and subcategories. Nonetheless, EPA requests comment on
whether quantitative information should be required for such specific
reporting categories and subcategories, as well as on the reporting
categories and subcategories.
a. Mercury-added products. Based on the current knowledge of
mercury-added products available in the marketplace, including skin
products manufactured abroad and sold illegally in the United States
(Ref. 16), EPA proposes the following list of categories and
subcategories of mercury-added products:
Batteries: Button cell, silver; Button cell, zinc-air;
Button cell, alkaline; Stacked button cell batteries; Manganese oxide;
Silver oxide; Mercuric oxide, non-button cell; Button cell, mercuric
oxide; Button cell, zinc carbon; Other (specify).
Dental amalgam.
Formulated products (includes uses in cosmetics,
pesticides, and laboratory chemicals): Skin-lightening creams; Lotions;
Soaps and sanitizers; Topical antiseptics; Bath oils and salts;
Preservatives (e.g., for use in vaccines and eye-area cosmetics when no
preservative alternatives are available); Pharmaceuticals (including
prescription and over-the-counter drug products); Cleaning products
(not registered as pesticides under the Federal Insecticide, Fungicide,
and Rodenticide Act); Pesticides; Paints; Dyes; Reagents (e.g.,
catalysts, buffers, fixatives); Other (specify).
Lighting, lamps, bulbs: Linear fluorescent; Compact
fluorescent; U-tube and circular fluorescent; Cold cathode fluorescent;
External electrode fluorescent; Mercury vapor; Metal halide; High
pressure sodium; Mercury short arc; Neon; Other (specify).
Measuring instruments: Barometer; Fever thermometer; Flow
meter; Hydrometer; Hygrometer/psychrometer; Manometer; Non-fever
thermometer; Pyrometer; Sphygmomanometer; Other (specify).
Pump seals.
Switches, relays, sensors, valves: Tilt switch; Vibration
switch; Float switch; Pressure switch; Temperature switch; Displacement
relay; Wetted reed
[[Page 49578]]
relay; Contact relay; Flame sensor; Thermostat; Other (specify).
Miscellaneous mercury-added products: Wheel weights; Wheel
rotation balancers/stabilizers; Firearm recoil suppressors; Carburetor
synchronizers; Joint support/shock absorption bands; Other (specify).
b. Intentional mercury use in manufacturing processes. Based on the
current knowledge of manufacturing processes involving the otherwise
intentional use of mercury, EPA proposes the following manufacturing
processes for which mercury may be intentionally used: Chlorine
production (e.g., mercury-cell chlor-alkali process); Acetaldehyde
production; Vinyl chloride monomer production; Sodium/potassium
methylate/ethylate production; Polyurethane/plastic production; Other
(specify).
EPA proposes the following list of uses of mercury in the
aforementioned manufacturing processes: Catalyst; Reactant; Reagent;
Other (specify).
3. Contextual Reporting Requirements. Within certain sectors of the
mercury market, the Agency determined that additional data requirements
are important to provide context to the quantitative data reported.
While the individual quantities and overarching, categorical sums can
help to fulfill the statutory mandate to identify manufacturing
processes or products that intentionally add mercury, EPA seeks to
collect information to more thoroughly describe such activities and
enhance efforts to recommend actions to achieve further reductions in
mercury use, as mandated in TSCA section 8(b)(10)(C). Examples of such
data requirements include descriptions of countries of origin or
destination for reported import and export quantities, as well as NAICS
codes for purchasing or receiving industries for mercury or mercury-
added products distributed in commerce. In order to fully understand
the supply, use, and trade or mercury in the United States, EPA
proposes the following reporting requirements:
a. For imports of mercury or mercury-added products: Country of
origin.
b. For mercury or mercury-added products distributed in commerce:
Identify the applicable purchasing or receiving industry sectors via
NAICS codes.
c. For exported mercury or mercury-added products: Destination
country.
The Agency determined that the combination of general, specific,
and contextual reporting requirements provides for the body of
information required to fulfill statutory mandates of TSCA sections
8(b)(10)(B) and (C). As much as possible, the Agency would design all
requirements to be answered only where a reporter engages in the
specific activity from the inclusive list of options. In fact, EPA
believes that it is unlikely that the typical reporter would be engaged
in and, as a result, be required to answer all, or even many, of the
proposed reporting requirements. Nonetheless, to the extent that the
proposed reporting process can be streamlined, the Agency welcomes
comment on the proposed general, specific, and contextual reporting
requirements. In addition, the Agency requests comment on whether such
reporting requirements should be added or eliminated.
F. Frequency of Inventory Publication
TSCA section 8(b)(10)(B) sets the date for publication of initial
and subsequent, triennial iterations of the mercury inventory to
commence on April 1, 2017 (15 U.S.C. 8(b)(10)(B)). Therefore, EPA
expects to publish the first mercury inventory supported by the
proposed reporting requirements by April 1, 2020 and every three years
thereafter.
G. Frequency of Data Collection and Reporting Deadline
TSCA section 8(b)(10)(D) provides the authority to promulgate the
rule being proposed here to assist in the preparation of the triennial
inventory publication (15 U.S.C. 8(b)(10)(D)), but TSCA offers no
guidance on the frequency of collection or reporting deadline. To
attempt to minimize reporting obligations, the Agency compared the
respective collection frequencies and reporting deadlines for IMERC,
the CDR rule, and the TRI program to when EPA is required to publish
the mercury inventory. TSCA section 8(b)(10)(B), (15 U.S.C.
8(b)(10)(B)), sets a publication date for the mercury inventory that
falls on the reporting deadline for IMERC: April 1 in a triennial cycle
starting in April 2017. Data collected under the CDR rule is submitted
to the Agency on a quadrennial cycle; the next reporting cycle will
occur in 2020, with a reporting deadline of September 2020. The TRI
program collects and publishes data on an annual cycle with a reporting
deadline of July 1 of each year.
EPA recognizes that the mercury inventory reporting deadline would
need to allow for an appropriate amount of time for quality control and
assurance to be performed by EPA staff before the inventory is
published. As such, the Agency concluded that the proposed reporting
deadline would need to occur at least several months in advance of the
publication deadline (April 1). The Agency then considered whether it
was feasible to select a date and reporting frequency that would
coincide with the IMERC, CDR rule, and TRI program reporting deadlines,
so as not to impose an additional date for those that might be required
to report to multiple systems. Due to the incongruities of frequency of
collection among the proposed rule (triennial cycle--publication date
of April 1), IMERC (triennial cycle--reporting deadline of April 1),
the CDR rule (quadrennial cycle--reporting deadline of September 30),
and TRI program (annual cycle--reporting deadline of July 1), the
Agency determined that attempting to coordinate with each program would
be more confusing for reporters, would not allow for ample time to
review and coordinate similar data (e.g., mismatched dates for
reporting deadline and inventory publication between CDR rule and the
proposed rule), and could result in gaps of up to several years between
the availability of most applicable information (e.g., principal
reporting year data for the CDR rule).
Based on such considerations, the Agency determined that coinciding
with the triennial IMERC frequency of collection is appropriate given
the mercury inventory publication schedule is also triennial. In
addition, the Agency is proposing to set the mercury inventory
reporting deadline to coincide with the TRI program deadline in an
effort to align with a date with which certain, potential reporters
might already be familiar. Therefore, EPA proposes to establish a July
1st reporting deadline for 2019 and every three years thereafter. Data
submitted should cover only the calendar year preceding the year in
which the reporting deadline occurs (e.g., data for calendar year
January 1 to December 31, 2018 reported on or before July 1, 2019). The
Agency notes that IMERC ``Product Notification'' requirements are
intended to inform consumers, recyclers, policy makers, and others
about the total amount of mercury in the specific products that were
sold in the United States in a given year. EPA seeks comment on the
proposed timelines and reporting deadlines proposed.
EPA notes that there would be some discrepancies between the
proposed rule and IMERC deadlines (e.g., the Agency's inventory
publishing deadline is the same day as IMERC reporting deadline).
However, the Agency would look to statutory provisions calling for
coordination with IMERC to reconcile such concerns. In addition, the
Agency's intent to avoid duplicative reporting of quantitative data
could result in reliance
[[Page 49579]]
on information reported to other data collection systems in differing
reporting years (i.e., current reporters to IMERC and the CDR rule).
For the reasons described above, EPA believes the proposed reporting
parameters would provide for the most convenience and least burden to
potential reporters and the Agency. Nonetheless, EPA requests comment
on the proposed frequency of data collection, reporting deadline, and
timeline.
H. Recordkeeping
Consistent with the proposed triennial reporting and publication
cycle for the mercury inventory, EPA proposes that each person who is
subject to the reporting requirements must retain records that document
any information reported to EPA. Records relevant to reporting during a
submission period must be retained for a period of 3 years beginning on
the last day of the submission period. Submitters are encouraged to
retain their records longer than 3 years to ensure that past records
are available as a reference when new submissions are being generated.
I. Reporting Requirements and Confidential Business Information
Reporters to the information collection of the proposed rule may
claim that their submitted information is CBI. The statutory provisions
for CBI under TSCA are at Section 14 of the law (15 U.S.C. 2613).
J. Electronic Reporting
EPA is proposing to require electronic reporting of the mercury
inventory data, using an Agency-provided, web-based reporting software
to submit mercury inventory reports through the Internet to EPA's
Central Data Exchange (CDX). CDX provides the capability for submitters
to access their data through the use of web services. For more
information about CDX, go to http://epa.gov/cdx.
Should EPA adopt a mandatory electronic reporting requirement,
submitters would be required to register with EPA's CDX, complete an
electronic signature agreement, and to prepare a data file for
submission. To submit electronically to EPA via CDX, individuals must
first register with that system at http://cdx.epa.gov/epa_home.asp. To
register in CDX, the CDX registrant agrees to the Terms and Conditions,
provides information about the submitter and organization, selects a
user name and password, and follows the procedures outlined in the
guidance document for CDX available at https://cdx.epa.gov/TSCA/eTSCA-RegistrationGuide.pdf. The registrant would also select a role and
complete an electronic signature agreement either through electronic
validation using the LexisNexis services or through wet ink signature.
Once registration and the electronic signature agreement are complete,
the user would prepare a submission. EPA is proposing mandatory
electronic reporting because such a requirement would streamline the
reporting process and reduce the administrative costs associated with
information submission and recordkeeping. The effort to eliminate
paper-based submissions in favor of CDX reporting is part of broader
government efforts to move to modern, electronic methods of information
gathering. Electronic reporting allows for more efficient data
transmittal and a reduction in errors with the built-in validation
procedures. EPA determined the adoption of electronic reporting reduces
the reporting burden for submitters by reducing the cost and time
required to review. Nonetheless, the Agency requests comment on its
proposal to require mandatory electronic reporting.
IV. Request for Comment
In addition to the areas where EPA has specifically requested
comment, EPA requests comment on all other aspects of this proposed
rule.
V. 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 the
technical person listed under FOR FURTHER INFORMATION CONTACT.
1. EPA. Mercury; Initial Inventory Report of Supply, Use, and Trade.
(82 FR. 15522; March 29, 2017).
2. UNEP. Minamata Convention on Mercury. (No date). Available at
http://www.mercuryconvention.org. [Accessed August 4, 2017].
3. EPA. Economic Analysis for the Proposed Reporting Requirements
for the TSCA Mercury Inventory. August 2, 2017.
4. EPA. TSCA Chemical Substance Inventory. (No date). Available at
https://www.epa.gov/tsca-inventory. [Accessed August 4, 2017].
5. AMAP/UNEP. Technical Background Report for the Global Mercury
Assessment 2013. 2013. Arctic Monitoring and Assessment Programme,
Oslo, Norway/UNEP Chemicals Branch, Geneva, Switzerland. vi + 263
pp. Available at http://apps.unep.org/piwik/download.php?file=/publications/pmtdocuments/-Technical%20background%20report%20for%20the%20global%20mercury%20assessment%20-2013TechBackRepGMA2013.pdf.
6. EPA. Basic Information about Mercury. (No date). Available at
https://www.epa.gov/mercury/basic-information-about-mercury.
[Accessed August 4, 2017].
7. EPA. Health Effects of Exposures to Mercury. (No date). Available
at https://www.epa.gov/mercury/health-effects-exposures-mercury.
[Accessed August 4, 2017].
8. EPA. EPA's Roadmap for Mercury, EPA-747R-06-001. July 2006.
Available at http://www.epa.gov/hg/roadmap.htm.
9. EPA. Subpoena and Information Request. March 20, 2015. Available
at https://www.epa.gov/mercury/2015-subpoena-and-information-request-epa-mercury-recyclers.
10. EPA. Chemical Data Reporting under the Toxic Substances Control
Act. (No date). Available at https://www.epa.gov/chemical-data-reporting. [Accessed August 4, 2017].
11. EPA. Toxics Release Inventory (TRI) Program. (No date).
Available at https://www.epa.gov/toxics-release-inventory-tri-program. [Accessed August 4, 2017].
12. EPA. TSCA Chemical Data Reporting Fact Sheet: Articles. 2012.
Available at https://www.epa.gov/sites/production/files/documents/articlesfactsheetforcdr_reporting_080312.pdf.
13. USITC. Guide to Foreign Trade Statistics--Description of the
Foreign Trade Statistical Program. (No date). Available at https://www.census.gov/foreign-trade/guide/sec2.html. [Accessed August 4,
2017].
14. NEWMOA. Instructions--Mercury-added Product Notification Form,
Version for Use by a Single Manufacturer, Distributor/Wholesaler, or
Importer. August 2011. Available at www.newmoa.org/prevention/mercury/imerc/InstructionsMultiple.doc.
15. NEWMOA. Mercury-Added Products Database. (No date). Available at
http://www.newmoa.org/prevention/mercury/imerc/notification/.
[Accessed August 4, 2017].
16. U.S. Food and Drug Administration. Mercury Poisoning Linked to
Skin Products. (July 26, 2016). Available at https://www.fda.gov/forconsumers/consumerupdates/ucm294849.htm. [Accessed October 3,
2017].
17. EPA. Collection of Information for Mercury Inventory Reporting
Rule; EPA ICR No. 2567.01; OMB Control No.: 2070-NEW. [Month DD],
2017.
[[Page 49580]]
VI. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory Planning and Review and Executive
Order 13563: Improving Regulation and Regulatory Review
This action is a significant regulatory action that was 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). Any changes made in response to OMB recommendations
have been documented in the docket for this action.
B. Executive Order 13771: Reducing Regulations and Controlling
Regulatory Costs
This action is expected to be subject to the requirements for
regulatory actions specified in Executive Order 13771 (82 FR 9339,
February 3, 2017). EPA prepared an analysis of the estimated costs and
benefits associated with this action. This analysis, ``Economic
Analysis for the Proposed Reporting Requirements for the TSCA Mercury
Inventory'' (Economic Analysis, Ref. 3) is available in the docket and
is summarized in Unit I.E.
C. Paperwork Reduction Act (PRA)
The information collection activities in this proposed rule have
been submitted for approval to the Office of Management and Budget
(OMB) under the PRA, 44 U.S.C. 3501 et seq. The Information Collection
Request (ICR) document that the EPA prepared has been assigned EPA ICR
number 2567.01 (Ref. 17). You can find a copy of the ICR in the docket
for this rule, and it is briefly summarized here.
The reporting requirements identified in the proposed rule would
provide EPA with 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 proposed
reporting requirements would 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
proposed 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.
EPA estimated total burden and costs to industry associated with
the proposed rule over the first three years of its promulgation (Ref.
3). For the 750 companies anticipated to be subject to the proposed
reporting requirements, the average per respondent burden hours for
Year 1 (of a triennial cycle for submitting information) was estimated
to be 98.94 hours (Ref. 3). Years 2 and 3 are not data collection
years, so there is no cost associated with the proposed rule during
these years (Ref. 3). Therefore, the average for total burden hours per
the three-year reporting cycle is 32.94 hours per year (Ref. 3).
Respondents/affected entities: Manufacturers, importers, and
processors of mercury.
Respondent's obligation to respond: Mandatory (15 U.S.C.
2607(b)(10)(D)).
Estimated number of respondents: 750.
Frequency of response: Triennially.
Total estimated annual burden: 24,734 hours (averaged over 3
years). Burden is defined at 5 CFR 1320.3(b).
Total estimated annual cost: $1,985,446 (averaged over 3 years),
includes $0 annualized capital or operation and maintenance costs.
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's regulations in 40 CFR are listed in 40 CFR part 9.
Submit your comments on the Agency's need for this information, the
accuracy of the provided burden estimates and any suggested methods for
minimizing respondent burden to the EPA using the docket identified at
the beginning of this rule. You may also send your ICR-related comments
to OMB's Office of Information and Regulatory Affairs via email to
[email protected], Attention: Desk Officer for the EPA.
Since OMB is required to make a decision concerning the ICR between 30
and 60 days after receipt, OMB must receive comments no later than
November 27, 2017. The EPA will respond to any ICR-related comments in
the final rule.
D. Regulatory Flexibility Act (RFA)
Pursuant to section 605(b) of the RFA, 5 U.S.C. 601 et seq., I
certify that this action will not have a significant economic impact on
a substantial number of small entities under the RFA. The small
entities subject to the requirements of this action include those that
manufactures, including imports, mercury or mercury-added products
(manufacturers), or otherwise intentionally uses mercury in a
manufacturing process (processors). To identify the number of firms
that are subject to the rule and considered small under SBA size
standards, EPA compared the appropriate SBA size definition to the
company's revenue or number of employees, as identified using Dun and
Bradstreet or other market research Web sites. Of the 506 parent
companies that are subject to the rule, 211 companies (42 percent) meet
the SBA small business definitions for their respective NAICS
classifications.
The small entity analysis estimated that 1 parent company (0.46
percent of total entities) would incur an impact of 3 percent or
greater, and 3 parent companies (1.39 percent of total entities) would
incur an impact of 1 to 3 percent. Details of this analysis are
included in the accompanying Economic Analysis for this Rule (Ref. 3).
E. 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.
F. Executive Order 13132: Federalism
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.
G. 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, EO 13175 does not apply to
this action.
[[Page 49581]]
H. 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, nor is this action
economically significant as the impact of this action will be less than
$100 million.
I. Executive Order 13211: Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use
This proposed 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.
J. National Technology Transfer and Advancement Act (NTTAA)
Since this action does not involve any technical standards, section
12(d) of NTTAA, 15 U.S.C. 272 note, does not apply to this section.
K. 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.
List of Subjects in 40 CFR Part 713
Environmental protection, Mercury, Elemental mercury, Mercury
compounds, Inventory, Supply, Use, Trade, Manufacture, Import, Export.
Dated: October 19, 2017.
E. Scott Pruitt,
Administrator.
Therefore, it is proposed that 40 CFR chapter I, subchapter R, be
amended by adding a new part 713 to read as follows:
PART 713--REPORTING REQUIREMENTS FOR THE TSCA INVENTORY OF MERCURY
SUPPLY, USE, AND TRADE
Sec.
713.1 Purpose, scope, and compliance.
713.5 Mercury for which information must be reported.
713.7 Mercury for which reporting is not required.
713.9 General requirements for which information must be reported.
713.11 Specific requirements for which information must be reported.
713.13 Contextual requirements for which information must be
reported.
713.15 Persons who must report.
713.17 Persons not subject to this part.
713.19 Reporting information to EPA.
713.21 When to report.
713.23 Recordkeeping requirements.
713.25 Electronic filing.
Authority: 15 U.S.C. 2607(b)(10)(D).
Sec. 713.1 Purpose, scope, and compliance.
(a) This part specifies reporting and recordkeeping procedures
under section 8(b)(10) of the Toxic Substances Control Act (TSCA) (15
U.S.C. 2607(b)(10)) for certain manufacturers (including importers) and
processers of mercury as defined in section 8(b)(10)(A) to include
elemental mercury and mercury compounds. Section 8(b)(10)(D) of TSCA
authorizes the EPA Administrator to require reporting from any person
who manufactures mercury or mercury-added products or otherwise
intentionally uses mercury in a manufacturing process to carry out and
publish in the Federal Register an inventory of mercury supply, use,
and trade in the United States. In administering this mercury
inventory, EPA will 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 the collected information
to implement TSCA and shape the Agency's efforts to recommend actions,
both voluntary and regulatory, to reduce the use of mercury in
commerce. In so doing, the Agency will conduct timely evaluation and
refinement of these reporting requirements so that they are efficient
and non-duplicative for reporters.
(b) This part applies to the activities associated with the
periodic publication of information on mercury supply, use, and trade
in the United States.
(c) For purposes of this part, the reporting for mercury supply,
use, and trade includes the following activities:
(1) Import of mercury or a mercury-added product with the purpose
of obtaining an immediate or eventual commercial advantage for the
importer, except:
(A) Mercury generated as a byproduct not used for commercial
purposes or an impurity; or
(B) A product that contains a component that is a mercury-added
product.
(2) Manufacture (other than import) of mercury or a mercury-added
product with the purpose of obtaining an immediate or eventual
commercial advantage for the manufacturer, except a product that
contains a component that is a mercury-added product.
(3) Intentional use of mercury in a manufacturing process, other
than the manufacture of a mercury compound or a mercury-added product,
with the purpose of obtaining an immediate or eventual commercial
advantage for the processor, except mercury generated as a byproduct
not used for commercial purposes.
(4) Distribution in commerce, including domestic sale or transfer,
of mercury or a mercury-added product.
(5) Storage of mercury after manufacture (including import).
(6) Export of mercury or a mercury-added product, including the
determining and controlling the sending of mercury (unless specifically
prohibited) or a mercury-added product to a destination out of the
customs territory of the United States.
(d) Section 15(3) of TSCA makes it unlawful for any person to fail
or refuse to submit information required under this part. In addition,
TSCA section 15(3) makes it unlawful for any person to fail to keep,
and permit access to, records required by this part. Section 16 of TSCA
provides that any person who violates a provision of TSCA section 15 is
liable to the United States for a civil penalty and may be criminally
prosecuted. Pursuant to TSCA section 17, the Federal Government may
seek judicial relief to compel submission of TSCA section 8 information
and to otherwise restrain any violation of TSCA section 15.
(e) Each person who reports under this part must certify the
accuracy of its information and maintain records that document
information reported under this part and, in accordance with TSCA,
permit access to, and the copying of, such records by EPA officials.
Sec. 713.5 Mercury for which information must be reported.
(a) Elemental mercury (Chemical Abstracts Registry Number 7439-97-
6); or
(b) A mercury compound, including but not limited to the mercury
[[Page 49582]]
compounds listed in Table 1 of this part by Chemical Abstracts Registry
Number:
Table 1--Mercury Compounds
------------------------------------------------------------------------
Chemical abstracts registry No. Mercury compound
------------------------------------------------------------------------
10045-94-0........................ Nitric acid, mercury(2+) salt (2:1).
100-57-2.......................... Mercury, hydroxyphenyl-.
10112-91-1........................ Mercury chloride (Hg2Cl2).
10124-48-8........................ Mercury amide chloride (Hg(NH2)Cl).
103-27-5.......................... Mercury, phenyl(propanoato-.kappa.O)-
.
10415-75-5........................ Nitric acid, mercury(1+) salt (1:1).
104-60-9.......................... Mercury, (9-octadecenoato-
.kappa.O)phenyl-.
1191-80-6......................... 9-Octadecenoic acid (9Z)-,
mercury(2+) salt (2:1).
12068-90-5........................ Mercury telluride (HgTe).
13170-76-8........................ Hexanoic acid, 2-ethyl-, mercury(2+)
salt (2:1).
13302-00-6........................ Mercury, (2-ethylhexanoato-
.kappa.O)phenyl-.
1335-31-5......................... Mercury cyanide oxide (Hg2(CN)2O).
1344-48-5......................... Mercury sulfide (HgS).
1345-09-1......................... Cadmium mercury sulfide.
13876-85-2........................ Mercurate(2-), tetraiodo-,
copper(1+) (1:2), (T-4)-.
138-85-2.......................... Mercurate(1-), (4-
carboxylatophenyl)hydroxy-, sodium
(1:1).
141-51-5.......................... Mercury, iodo(iodomethyl)-.
14783-59-6........................ Mercury, bis[(2-
phenyldiazenecarbothioic acid-
.kappa.S) 2-phenylhydrazidato-
.kappa.N2]-, (T-4)-.
15385-58-7........................ Mercury, dibromodi-, (Hg-Hg).
15785-93-0........................ Mercury, chloro[4-[(2,4-
dinitrophenyl)amino]phenyl]-.
15829-53-5........................ Mercury oxide (Hg2O).
1600-27-7......................... Acetic acid, mercury(2+) salt (2:1).
1785-43-9......................... Mercury, chloro(ethanethiolato)-.
19447-62-2........................ Mercury, (acetato-.kappa.O)[4-[2-[4-
(dimethylamino)phenyl]diazenyl]phen
yl]-.
20582-71-2........................ Mercurate(2-), tetrachloro-,
potassium (1:2), (T-4)-.
20601-83-6........................ Mercury selenide (HgSe).
21908-53-2........................ Mercury oxide (HgO).
22450-90-4........................ Mercury(1+), amminephenyl-, acetate
(1:1).
24579-90-6........................ Mercury, chloro(2-hydroxy-5-
nitrophenyl)-.
24806-32-4........................ Mercury, [.mu.-[2-
dodecylbutanedioato(2-)-
.kappa.O1:.kappa.O4]]diphenyldi-.
26545-49-3........................ Mercury, (neodecanoato-
.kappa.O)phenyl-.
27685-51-4........................ Cobaltate(2-), tetrakis(thiocyanato-
.kappa.N)-, mercury(2+) (1:1), (T-
4)-.
29870-72-2........................ Cadmium mercury telluride
((Cd,Hg)Te).
3294-57-3......................... Mercury, phenyl(trichloromethyl)-.
33770-60-4........................ Mercury, [3,6-dichloro-4,5-
di(hydroxy-.kappa.O)-3,5-
cyclohexadiene-1,2-dionato(2-)]-.
3570-80-7......................... Mercury, bis(acetato-.kappa.O)[.mu.-
(3',6'-dihydroxy-3-
oxospiro[isobenzofuran-1(3H),9'-
[9H]xanthene]-2',7'-diyl)]di-.
537-64-4.......................... Mercury, bis(4-methylphenyl)-.
539-43-5.......................... Mercury, chloro(4-methylphenyl)-.
54-64-8........................... Mercurate(1-), ethyl[2-(mercapto-
.kappa.S)benzoato(2-)-.kappa.O]-,
sodium (1:1).
55-68-5........................... Mercury, (nitrato-.kappa.O)phenyl-.
56724-82-4........................ Mercury, phenyl[(2-
phenyldiazenecarbothioic acid-
.kappa.S) 2-phenylhydrazidato-
.kappa.N2]-.
587-85-9.......................... Mercury, diphenyl-.
592-04-1.......................... Mercury cyanide (Hg(CN)2).
592-85-8.......................... Thiocyanic acid, mercury(2+) salt
(2:1).
593-74-8.......................... Mercury, dimethyl-.
59-85-8........................... Mercurate(1-), (4-
carboxylatophenyl)chloro-,
hydrogen.
623-07-4.......................... Mercury, chloro(4-hydroxyphenyl)-.
62-38-4........................... Mercury, (acetato-.kappa.O)phenyl-.
62638-02-2........................ Cyclohexanebutanoic acid,
mercury(2+) salt (2:1).
627-44-1.......................... Mercury, diethyl-.
6283-24-5......................... Mercury, (acetato-.kappa.O)(4-
aminophenyl)-.
628-86-4.......................... Mercury, bis(fulminato-.kappa.C)-.
629-35-6.......................... Mercury, dibutyl-.
63325-16-6........................ Mercurate(2-), tetraiodo-, (T-4)-,
hydrogen, compd. with 5-iodo-2-
pyridinamine (1:2:2).
63468-53-1........................ Mercury, (acetato-.kappa.O)(2-
hydroxy-5-nitrophenyl)-.
63549-47-3........................ Mercury, bis(acetato-
.kappa.O)(benzenamine)-.
68201-97-8........................ Mercury, (acetato-
.kappa.O)diamminephenyl-, (T-4)-.
72379-35-2........................ Mercurate(1-), triiodo-, hydrogen,
compd. with 3-methyl-2(3H)-
benzothiazolimine (1:1:1).
7439-97-6......................... Mercury.
7487-94-7......................... Mercury chloride (HgCl2).
7546-30-7......................... Mercury chloride (HgCl).
7616-83-3......................... Perchloric acid, mercury(2+) salt
(2:1).
7774-29-0......................... Mercury iodide (HgI2).
7783-33-7......................... Mercurate(2-), tetraiodo-, potassium
(1:2), (T-4)-.
7783-35-9......................... Sulfuric acid, mercury(2+) salt
(1:1).
7783-39-3......................... Mercury fluoride (HgF2).
7789-47-1......................... Mercury bromide (HgBr2).
[[Page 49583]]
90-03-9........................... Mercury, chloro(2-hydroxyphenyl)-.
94070-93-6........................ Mercury, [.mu.-[(oxydi-2,1-
ethanediyl 1,2-benzenedicarboxylato-
.kappa.O2)(2-)]]diphenyldi-.
------------------------------------------------------------------------
Sec. 713.7 Mercury for which reporting is not required.
(a) Mercury that is generated as a byproduct not used for
commercial purposes; or
(b) Mercury-containing waste.
Sec. 713.9 General requirements for which information must be
reported.
(a) Persons who manufacture (including import) mercury in amounts
greater than or equal to 2,500 pounds (lbs.) for elemental mercury or
greater than or equal to 25,000 lbs. for mercury compounds for a
specific reporting year shall report, as applicable:
(1) Amount of mercury stored (lbs.); or
(2) Amount of mercury distributed in commerce (lbs.)
(b) All other persons who manufacture (including import) mercury
shall report, as applicable:
(1) Amount of mercury manufactured (other than imported) (lbs.);
(2) Amount of mercury imported (lbs.);
(3) Amount of mercury exported (lbs.), except mercury prohibited
from export at 15 U.S.C. 2611(c)(1) and (7);
(4) Amount of mercury stored (lbs.); or
(5) Amount of mercury distributed in commerce (lbs.).
(c) Persons who sell mercury-added products, except a product that
contains a component that is a mercury-added product, in IMERC
Notification states shall report, as applicable:
(1) Amount of mercury in manufactured (other than imported)
products (lbs.);
(2) Amount of mercury in imported products (lbs.); or
(3) Amount of mercury in exported products (lbs.).
(d) All other persons who manufacture (including import) mercury-
added products, except a product that contains a component that is a
mercury-added product, shall report, as applicable:
(1) Amount of mercury in manufactured (other than imported)
products (lbs.);
(2) Amount of mercury in imported products (lbs.);
(3) Amount of mercury in exported products (lbs.);
(4) Amount of mercury in products distributed in commerce (lbs.);
or
(e) Persons who otherwise intentionally use mercury in a
manufacturing process, other than the manufacture of a mercury compound
or a mercury-added product, shall report, as applicable:
(1) Amount of mercury otherwise intentionally used (lbs.) in a
manufacturing process;
(2) Amount of mercury stored (lbs.);
(3) Amount of mercury in exported final product(s) (lbs.); or
(4) Amount of mercury in final product(s) distributed in commerce
(lbs.).
Sec. 713.11 Specific requirements for which information must be
reported.
(a) Any person who manufactures (including imports) mercury shall
specify, as applicable, the specific mercury compound(s) from a pre-
selected list (as listed in Table 1 of this part).
(b) Any person who manufactures (including imports) a mercury-added
product, except manufacture (including import) of a product that
contains a component that is a mercury-added product, shall specify as
applicable, the specific category(ies) and subcategory(ies) from a pre-
selected list, as listed in Table 2 of this part:
Table 2--Categories and Subcategories of Mercury-Added Products
------------------------------------------------------------------------
Category Subcategory
------------------------------------------------------------------------
Batteries.............................. --Button cell, silver.
--Button cell, zinc-air.
--Button cell, alkaline.
--Stacked button cell
batteries.
--Manganese oxide.
--Silver oxide.
--Mercuric oxide, non-button
cell.
--Button cell, mercuric oxide.
--Button cell, zinc carbon.
--Other (specify).
Dental amalgam......................... [No subcategories].
Formulated products (includes uses in --Skin-lightening creams.
cosmetics, pesticides, and laboratory --Lotions.
chemicals).
--Soaps and sanitizers.
--Bath oils and salts.
--Topical antiseptics.
--Preservatives (e.g., for use
in vaccines and eye-area
cosmetics when no preservative
alternatives are available).
--Pharmaceuticals (including
prescription and over-the-
counter drug products).
--Cleaning products (not
registered as pesticides under
the Federal Insecticide,
Fungicide, and Rodenticide
Act).
--Pesticides.
--Paints.
--Dyes.
--Reagents (e.g., catalysts,
buffers, fixatives).
[[Page 49584]]
--Other (specify).
Lighting, lamps, bulbs................. --Linear fluorescent.
--Compact fluorescent.
--U-tube and circular
fluorescent.
--Cold cathode fluorescent.
--External electrode
fluorescent.
--Mercury vapor.
--Metal halide.
--High pressure sodium.
--Mercury short arc.
--Neon.
--Other (specify).
Measuring instruments.................. --Barometer.
--Fever thermometer.
--Flow meter.
--Hydrometer.
--Hygrometer/psychrometer.
--Manometer.
--Non-fever thermometer.
--Pyrometer.
--Sphygmomanometer.
--Other (specify).
Pump seals............................. [No subcategories].
Switches, relays, sensors, valves...... --Tilt switch.
--Vibration switch.
--Float switch.
--Pressure switch.
--Temperature switch.
--Displacement relay.
--Wetted reed relay.
--Contact relay.
--Flame sensor.
--Thermostat.
--Other (specify).
Miscellaneous/novelty mercury-added --Wheel weights.
products.
--Wheel rotation balancers/
stabilizers.
--Firearm recoil suppressors.
--Carburetor synchronizers.
--Joint support/shock
absorption bands.
--Other (specify).
------------------------------------------------------------------------
(c) Any person who otherwise intentionally uses mercury in a
manufacturing process, other than the manufacture of a mercury compound
or a mercury-added product, shall specify, as applicable:
(1) The specific manufacturing process for which mercury is
otherwise intentionally added from a pre-selected list, as listed in
Table 3 of this part:
Table 3--Manufacturing Process for Which Mercury Is Otherwise
Intentionally Added
------------------------------------------------------------------------
-------------------------------------------------------------------------
Chlorine production (e.g., mercury-cell chlor-alkali process).
Acetaldehyde production.
Vinyl chloride monomer production.
Sodium/potassium methylate/ethylate production.
Polyurethane/plastic production.
Other (specify).
------------------------------------------------------------------------
(2) The specific use of mercury in a manufacturing process from a
pre-selected list, as listed in Table 4 of this part:
Table 4--Specific Use of Mercury in a Manufacturing Process
------------------------------------------------------------------------
-------------------------------------------------------------------------
Catalyst.
Reactant.
Reagent.
Other (specify).
------------------------------------------------------------------------
Sec. 713.13 Contextual requirements for which information must be
reported.
(a) Persons who manufacture (including import) mercury in amounts
greater than or equal to 2,500 lbs. for elemental mercury or greater
than or equal to 25,000 lbs. for mercury compounds for a specific
reporting year shall report, as applicable:
(1) Country(ies) of origin for imported mercury;
(2) Country(ies) of destination for exported mercury;
(3) NAICS code(s) for mercury distributed in commerce.
(b) All other persons who manufacture (including import) mercury
shall report, as applicable:
(1) Country(ies) of origin for imported mercury;
(2) Country(ies) of destination for exported mercury;
(3) NAICS code(s) for mercury distributed in commerce.
(c) Persons who sell mercury-added products, except a product that
contains a component that is a mercury-added product, in IMERC
Notification states shall report, as applicable:
(1) Country(ies) of origin for imported products;
(2) Country(ies) of destination for exported products; or
(3) NAICS code(s) for products distributed in commerce.
(d) All other persons who manufacture (including import) mercury-
added products, except a product that contains a component that is a
mercury-added product, shall report, as applicable:
[[Page 49585]]
(1) Country(ies) of origin for imported products;
(2) Country(ies) of destination for exported products; or
(3) NAICS code(s) for products distributed in commerce.
(e) Persons who otherwise intentionally use mercury in a
manufacturing process, other than the manufacture of a mercury compound
or a mercury-added product, shall report, as applicable:
(1) Country(ies) of destination for exported final product(s); or
(2) NAICS code(s) for mercury in final product(s) distributed in
commerce.
Sec. 713.15 Persons who must report.
(a) Any person who manufactures (including imports) mercury;
(b) Any person who manufactures (including imports) a mercury-added
product, except a product that contains a component that is a mercury-
added product; or
(c) Any person who otherwise intentionally uses mercury in a
manufacturing process, other than the manufacture of a mercury compound
or a mercury-added product.
Sec. 713.17 Persons not subject to this part.
(a) Any person engaged in the generation, handling, or management
of mercury-containing waste, unless that person manufactures or
recovers mercury in the management of that waste.
(b) Any person who engaged in trade (e.g., brokering, selling
wholesale, shipping, warehousing, repackaging, or retail sale), but
does not first manufacture (including import) mercury or mercury-added
products or otherwise intentionally use mercury in a manufacturing
process.
Sec. 713.19 Reporting information to EPA.
Any person who must report under this part shall report for the
submission period described at Sec. 713.21:
(a) Quantities of mercury in pounds per applicable activity listed
under the general requirements for which information must be reported
described at Sec. 713.9;
(b) Specific requirements for which information must be reported
described at Sec. 713.11;
(c) Contextual requirements for which information must be reported
described at Sec. 713.13; and
(d) According to the procedures described at Sec. 713.25.
Sec. 713.21 When to report.
(a) Any person who must report under this part shall report for the
reporting year described as follows. The 2020 reporting year is from
January 1 to December 31, 2018. Subsequent recurring reporting years
are from January 1 to December 31 at 3-year intervals, beginning in
2021.
(b) All information reported for an applicable reporting year must
be submitted on or before the first day of July following the reporting
year. The 2020 submission deadline is July 1, 2019. Subsequent
recurring submission deadlines are from July 1, in 3-year intervals,
beginning in 2022.
Sec. 713.23 Recordkeeping requirements.
Each person who is subject to the reporting requirements of this
part must retain records that document any information reported to EPA.
Records relevant to a reporting year must be retained for a period of 3
years beginning on the last day of the reporting year. Submitters are
encouraged to retain their records longer than 3 years to ensure that
past records are available as a reference when new submissions are
being generated.
Sec. 713.25 Electronic filing.
(a) You must use [xxx name of application xxx] to complete and
submit [xxx form? xxx]. Submissions may only be made as set forth in
this section.
(b) Submissions must be sent electronically to EPA via CDX.
(c) Access [xxx name of application xxx] and instructions, as
follows:
(1) By Web site. Go to the EPA [xxx name of application xxx]
homepage at http://www.epa.gov/[xxxURLxxx] and follow the appropriate
links.
(2) By phone or email. Contact the EPA TSCA Hotline at (202) 554-
1404 or [email protected] for a CD-ROM containing the instructions.
[FR Doc. 2017-23225 Filed 10-25-17; 8:45 am]
BILLING CODE 6560-50-P