2024-03064. Toxic Substances Control Act (TSCA) Requirements for Polymer Exemption Reports and Accompanying Claims; Extension of the Reporting Deadline for 2024

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Final rule.

SUMMARY:

The Environmental Protection Agency (EPA) is amending the Toxic Substances Control Act (TSCA) regulations for polymers manufactured under the terms of the polymer exemption by extending the submission deadline for reporting. The regulations require that manufacturers (includes importers) of polymers manufactured under the terms of the exemption submit a report of manufacture or import by January 31 of the year subsequent to initial manufacture. On June 7, 2023, EPA amended the exemption reporting requirement to require that the exemption report and accompanying confidentiality claims be submitted electronically. Because EPA experienced technical difficulties with the launch of the new electronic reporting tool, EPA is extending the reporting period for 2024 from January 31 to March 31 to allow manufacturers additional time to submit their reports and accompanying claims to EPA using the electronic reporting tool.

DATES:

This final rule is effective on February 16, 2024.

ADDRESSES:

The docket for this action, identified by docket identification (ID) number EPA–HQ–OPPT–2021–0419, is available online at https://www.regulations.gov. Additional information about dockets generally, along with instructions for visiting the docket in-person, is available at https://www.epa.gov/​dockets.

FOR FURTHER INFORMATION CONTACT:

 

For technical information contact: Loraine Passe, New Chemicals Division (7405M), Office of Pollution Prevention and Toxics, Environmental Protection Agency, 1200 Pennsylvania Ave. NW, Washington, DC 20460–0001; telephone number: (202) 564–9064; email address: [e-mail].

For general information contact: The TSCA-Hotline, ABVI-Goodwill, 422 South Clinton Ave., Rochester, NY 14620; telephone number: (202) 554–1404; email address: [e-mail].

SUPPLEMENTARY INFORMATION:

I. Executive Summary

A. Does this action apply to me?

You may be potentially affected by this action if you were a manufacturer or importer of a polymer under the terms of the polymer exemption in 2023. 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:

• Chemical Manufacturers (NAICS code 325).
• Petroleum and Coal Products (NAICS code 324).
• Merchant Wholesalers, Nondurable Goods (NAICS code 424).

This list details the types of entities that EPA is aware could potentially be regulated by this action. Other types of entities not listed could also be regulated. To determine whether your entity is regulated by this action, you should carefully examine the applicability criteria found in 40 CFR 723.250. If you have questions regarding the applicability of this action, please consult the technical person listed under FOR FURTHER INFORMATION CONTACT .

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

EPA is promulgating this rule pursuant to its authority in TSCA section 5 (15 U.S.C. 2604). In addition, section 553(b)(B) of the Administrative Procedure Act (APA), 5 U.S.C. 553(b)(B), provides that an agency may issue a final rule without a prior proposal if it finds for good cause that notice and public procedure are impracticable, unnecessary, or contrary to the public interest.

C. What action is the Agency taking?

EPA is extending the reporting deadline for polymer exemption reports under 40 CFR 723.250 for this year for exemption reports and accompanying claims from January 31 to March 31. EPA believes this extension will provide reporters with sufficient time to submit information using the electronic reporting tool and for EPA to fix any unanticipated glitches that may arise with the use of the new tool.

D. Why is this issued as a final rule?

Pursuant to section 553(b)(B) of the APA (5 U.S.C. 553(b)(B)), EPA has determined that there is good cause for extending the reporting deadline for 2024 without prior proposal and opportunity for comment. EPA encountered technical issues when launching a new polymer exemption electronic reporting tool and the time to fix those issues took longer than expected. As a result, it was not possible for manufacturers to submit their required reports and accompanying claims electronically until January 29, 2024, three business days before the January 31st regulatory due date for 2024. EPA determines that there is good cause to take this action without a prior proposal because it would be contrary to the public interest to retain the deadline of January 31 for the 2024 reports, where EPA's electronic systems were not ready and available for use by regulated entities to allow them to comply with the electronic reporting requirements of the rule before the submission deadline of January 31, 2024.

Moreover, EPA previously provided notice that if technical issues with electronic reporting of polymer exemption reports occurred, it would make appropriate accommodations such as extending reporting deadlines. The issue was discussed in the preamble to the final rule establishing the electronic reporting deadline in question (88 FR 37155, June 7, 2023 (FRL–8223–02–OCSPP)), which became effective on August 7, 2023, and required the use of a new electronic reporting tool for submitting annual polymer exemption reports and accompanying claims. That rule amended the regulations in 40 CFR 723.250(f) to state, “. . . The report and accompanying claims must be submitted via CDX ( https://cdx.epa.gov/​), using the TSCA Section 5 Notices and Supports—ePMN application.” In that rule, EPA responded to several commenters that expressed concern over reliance on electronic reporting, citing past incidences of technical difficulties with providing electronic submissions via CDX. Specifically, EPA responded in that final rule that it did not expect issues with electronic reporting of polymer exemption reports, but if such issues did occur the Agency would continue its practice of promptly addressing problems and, “. . . making appropriate accommodations (such as extending reporting deadlines)” (88 FR 37155, June 7, 2023 (FRL–8223–02–OCSPP)). EPA did not anticipate the technical issues it had with launching the tool and expected the new reporting tool to be fully functional well ahead of the January 31st reporting deadline. Unfortunately, the tool only became functional three business days before the January 31, 2024, deadline. As EPA had already acknowledged that it could extend reporting deadlines if technical issues with the reporting tool arose, providing further notice and public procedure would serve no purpose and is unnecessary.

APA section 553(d) (5 U.S.C. 553(d)), in turn, allows an agency to make a rule immediately effective “for good cause found and published with the rule.” For the reasons discussed in this unit, EPA believes that there is good cause to make this amendment to codify the extension to the 2024 reporting deadline effective upon publication in the Federal Register .

Extending the reporting deadline for 2024 is beneficial to regulated entities that need to comply with the regulations because it provides them with more time to complete the submission using the new electronic reporting tool. This final rule has no adverse impact and does not otherwise alter the reporting and recordkeeping requirements contained in the rule.

II. Statutory and Executive Order Reviews

Additional information about these statutes and Executive orders can be found at https://www.epa.gov/​laws-regulations/​laws-and-executive-orders#influence.

A. Executive Order 12866: Regulatory Planning and Review and Executive Order 13563: Improving Regulation and Regulatory Review

This action is not a significant regulatory action and was therefore not submitted to the Office of Management and Budget (OMB) for review under Executive Orders 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011).

B. Paperwork Reduction Act (PRA)

This action does not contain any new information collection burden under the PRA, 44 U.S.C. 3501 et seq. OMB has previously approved the information collection activities contained in the existing new chemical regulations under OMB Control No. 2070–0038 (EPA ICR No. 1188.14), which was updated with the CBI revisions and electronic submission approved under OMB Control No. 2070–0223 (EPA ICR No. 2707.02). This action only delays the reporting deadline for 2024 and does not otherwise change any of the information collection activities.

C. Regulatory Flexibility Act (RFA)

This action is not subject to the RFA, 5 U.S.C. 601 et seq. The RFA applies only to rules subject to notice and comment rulemaking requirements under the APA, 5 U.S.C. 553, or any other statute. This final rule action is not subject to notice and comment requirements under the APA because the Agency has invoked the APA “good cause” exemption.

D. Unfunded Mandates Reform Act (UMRA)

This action does not impose any enforceable duty or contain any unfunded mandate as described under Title II of UMRA, 2 U.S.C. 1531–1538 et seq.

E. Executive Order 13132: Federalism

This action does not have federalism implications, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999) because it will not have substantial direct effects on States, on the relationship between the National Government and the States, or on the distribution of power and responsibilities among the various levels of government.

F. Executive Order 13175: Consultation and Coordination With Indian Tribal Governments

This action does not have Tribal implications, as specified in Executive Order 13175 (65 FR 67249, November 9, 2000) because it will not have substantial direct effects 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.

G. Executive Order 13045: Protection of Children From Environmental Health Risks and Safety Risks

This action is not subject to Executive Order 13045 (62 FR 19885, April 23, 1997), because it does not concern an environmental health or safety risk. Since this action does not concern human health, EPA's 2021 Policy on Children's Health does not apply.

H. Executive Order 13211: Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use

This action is not a “significant energy action” as defined in Executive Order 13211 (66 FR 28355, May 22, 2001), because it is not likely to have a significant adverse effect on the supply, distribution or use of energy.

I. National Technology Transfer and Advancement Act (NTTAA)

This action does not involve technical standards. As such, NTTAA section 12(d), 15 U.S.C. 272.

J. Executive Order 12898: Federal Actions To Address Environmental Justice in Minority Populations and Low-Income Populations and Executive Order 14096: Revitalizing Our Nation's Commitment to Environmental Justice for All

This action does not concern human health or environmental conditions and therefore cannot be evaluated with respect to the potential for disproportionate impacts on non-white and low-income populations in accordance with Executive Order 12898 (59 FR 7629, February 16, 1994) and Executive Order 14096 (88 FR 25251, April 26, 2023).

K. Congressional Review Act (CRA)

This action is subject to the CRA, 5 U.S.C. 801 et seq., and EPA will submit a rule report to each House of the Congress and to the Comptroller General of the United States. The CRA allows the issuing agency to make a rule effective sooner than otherwise provided by the CRA if the agency makes a good cause finding that notice and comment rulemaking procedures are impracticable, unnecessary or contrary to the public interest (5 U.S.C. 808(2)). The EPA has made a good cause finding for this rule as discussed in Unit I.D., including the basis for that finding.

List of Subjects in 40 CFR Part 723

• Environmental protection
• Chemicals
• Hazardous substances
• Reporting and recordkeeping requirements

Dated: February 9, 2024.

Michal Freedhoff,

Assistant Administrator, Office of Chemical Safety and Pollution Prevention.

Therefore, for the reasons set forth in the preamble, 40 CFR chapter I is amended as follows:

PART 723—PREMANUFACTURE NOTIFICATION EXEMPTIONS

1. The authority citation for part 723 continues to read as follows:

Authority: 15 U.S.C. 2604.

2. In § 723.250(f), revise the introductory text to read as follows:

§ 723.250

Polymers.

* * * * *

(f) Exemption report for polymers manufactured under the terms of this section. For substances exempt under paragraphs (e)(1) through (3) of this section a report of manufacture or import must be submitted by January 31 of the year subsequent to initial manufacture, except that for initial manufacture or import in 2023 the report must be submitted by March 31, 2024. The report and accompanying claims must be submitted via CDX ( https://cdx.epa.gov/​), using the TSCA Section 5 Notices and Supports—ePMN application. See § 720.40(a)(2)(ii) of this subchapter for information on how to access e-PMN software. The notice must include:

* * * * *