Important Update Regarding the TSCA Fees Rule and Your Company

By Kelly Scanlon, director, environment, health and safety policy and research, IPC

Over the past month, IPC has brought to your attention that the TSCA Fees Rule may apply to your company beginning in 2020 and that there could be several challenges for those who need to comply. Challenges include the requirement to self-identify as a manufacturer that imports articles containing high-priority substances and the subsequent requirement to form consortia with other manufacturers in order to make fee payments to the U.S. EPA for risk evaluations. IPC has worked with the EPA to bring awareness to these challenges via meetings with senior officials and through comments to the public docket. Those comments include both a request for an extension to the comment period as well as a collaboration with the Consumer Technology Association (CTA) and Information Technology Industry Council (ITI) to address concerns regarding burdens to the electronics industry around the requirement to self-identify as an importer of an article containing a TSCA High-Priority Substance.

We are glad to report that on March 25, the EPA confirmed that it is exploring potential exemptions to the TSCA Fees Rule for manufacturers that:
– import articles containing high-priority substances;
– produce the chemical substance as a byproduct; and
– produce or import the chemical substance as an impurity.

This announcement means that the EPA is no longer expecting manufacturers in this category to self-identify under the TSCA Fees Rule. This potential regulatory relief could reduce long-term administrative and financial burdens for those manufacturers that fall into this category.

Also, the EPA is providing a No Action Assurance to these manufacturers with respect to the self-identification requirements; the No Action Assurance establishes that the EPA will exercise its enforcement discretion to not pursue enforcement action for violations of the self-identification reporting obligations.

Regardless of this proposed regulatory and enforcement relief, companies that were already erroneously identified by the EPA on their preliminary list of fee payers should still plan to certify in the EPA’s Chemical Data Exchange (CDX) system if they fall into this category.

For all potentially affected stakeholders, IPC recommends that you:
1. Determine whether you are a manufacturer or importer of any of the HP substances or if you are an importer of articles containing HP substances, produce the chemical substance as a byproduct or as an impurity.
2. Review the preliminary lists of manufacturers and importers of HP substances as compiled by the EPA. Your company belongs on the list if it manufacturers or imports any of the substances.
3. If your company is listed incorrectly, then a correction notice must be submitted during the open comment period. Corrections are submitted through the Chemical Data Exchange (CDX) system. The EPA has modified the CDX to facilitate responses for those who fall into the potentially exempt category of manufacturers. Here are instructions for reporting to the CDX.
4. If you believe that your company needs to be listed, then you are required to self-identify through the CDX system.

Please contact me with your questions regarding this update on the TSCA Fees Rule and its applicability (or lack of applicability) to your company.

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