More than four years after finalizing the reporting requirements for the manufacture, import, export, processing and commercial distribution of elemental mercury and products containing added mercury, the EPA removed an exemption for some importers. This response to a 2020 court ruling expands the scope of companies required to report to include importers of qualifying mercury-added products. 86 Fed. Reg. 61708 (November 8, 2021); 40 CFR § 713.7 (b) (2).

The amendment to the mercury reporting rule eliminates an existing exemption for companies that manufacture (including import) a product containing mercury added where that company is “engaged only in the importation of a product that contains a component that is a product containing added mercury ”. Henceforth, importers of a pre-assembled product containing a mercury-added component will be subject to the reporting requirements under section 8 (b) (10) of the TSCA.

The EPA explained in the preamble to the original mercury reporting rule that “the manufacture (other than import) of a mercury-added product is” the intentional addition of mercury when mercury remains in the product. end product for a particular use. “83 Fed. Reg. 30061 (June 27, 2018). The EPA amendment essentially removes the parenthesis so that imports of mercury-added products, including assembled products, are subject to reporting requirements.By EPA Compliance guide for the mercury reporting rule, an “assembled product” is a product that is “manufactured with the inclusion of a component that is a mercury-added product. An example is a vehicle containing a mercury-added fluorescent bulb. In turn, a “component” refers to a “mercury-added product that is installed as part of the manufacture of an assembled product”.

Importers of mercury-added products subject to the amended rule will be required to report the following:

• General requirements:
  • Amount of mercury in manufactured products;
  • Amount of mercury in imported products;
  • Amount of mercury in exported products; and
  • Amount of mercury in products distributed in commerce (only for non-IMERC registrants);
• Contextual requirements:
  • Country of origin of imported products;
  • Country of destination of the exported products; and
  • NAICS codes for products distributed in commerce; and
• Specific requirements: the company must specify in the report, as the case may be, the specific categories or sub-categories of products containing added mercury.

The amended rule includes examples of dozens of entities that may be affected by the rule and is consistent with those listed in the original rule, ranging from those engaged in the manufacture of photographic films, papers, plates and from chemicals to games, toys and children’s items. vehicle manufacturing. The EPA estimated that more than 750 sites would potentially be subject to the amended rule, of which more than 650 would submit reports due to the revised requirements.

The amendment does not remove existing exemptions for (1) a company that does not manufacture (including import) a product containing mercury added for the purpose of obtaining an immediate or potential commercial advantage; or (2) a business engaged only in the manufacture (other than importation) of a product that contains a component that is a mercury-added product that has not first manufactured (including importation) the component that is a mercury-added product.

The original mercury reporting rule required an initial reporting by July 1, 2019, with subsequent reporting at three-year intervals. Companies are then required to report data from January 1 to December 31, 2021 by July 1, 2022.

Background

The amendment is a modification of the EPA June 2018 final regulations, which requires manufacturers and importers of mercury or mercury-added products, or companies that intentionally use mercury in a manufacturing process, to report certain activities under Article 8 (b). Section 8 (b) (10) was added by Congress to the TSCA as part of the Frank R. Lautenberg Chemical Safety for the 21^st Law of the Century (CBCA). He commissioned the EPA to “complete and publish in the Federal Register an inventory of the supply, use and trade of mercury in the United States.” The 2018 Final Rule established new regulations covering the manufacture, import, commercial distribution and export of elemental mercury, mercury compounds or products containing added mercury. 40 CFR part 713.

The 2018 Final Rule exempted three groups of entities from the obligation to report:

(1) A person who does not manufacture (including import) a product containing mercury added for the purpose of obtaining an immediate or potential commercial advantage;

(2) A person engaged only in the importation of a product that contains a component that is a mercury-added product; Where

(3) A person engaged only in the manufacture (other than importation) of a product that contains a component that is a mercury-added product that has not first manufactured (including importation) the component that is a product containing added mercury[.]

40 CFR § 713.7 (a).

Almost immediately after its publication, the rule was challenged in the Second Circuit by the Natural Resources Defense Council and several state attorneys general. The petitioners argued that the three exemptions found in 40 CFR § 713.7 violated the statutory mandate that Congress adopted in section 8 (b) (10) of the TSCA. The EPA argued that the exemptions were legal because they minimized redundant reporting or added to the burden compared to existing EPA or other mercury-related reporting requirements. The EPA argued that duplicative or overly burdensome reporting requirements are prohibited under section 8 (a) (5) of the TSCA. Ultimately, the Second Circuit rescinded the 40 CFR § 713.7 (b) (2) exemption for companies that import pre-assembled products containing a mercury-added component, but did not order the ‘EPA to modify other exemptions. Natural Resources Defense Council, Inc. v. EPA, 961 F.3d 160 (2d. Cir. 2020).

Since the EPA is implementing the Second Circuit order rescinding the reporting exemption, it has not provided a notice or an opportunity to comment on the amendment. The final rule is in effect December 8, 2021.