Chemical Data Reporting; Requirements for Inorganic Byproduct Chemical Substances; Notice of Establishment of Negotiated Rulemaking Committee; Notice of Public Meetings, 25790-25794 [2017-11570]
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Federal Register / Vol. 82, No. 106 / Monday, June 5, 2017 / Notices
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Dated: May 30, 2017.
Kimberly D. Bose,
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[FR Doc. 2017–11534 Filed 6–2–17; 8:45 am]
BILLING CODE 6717–01–P
ENVIRONMENTAL PROTECTION
AGENCY
[EPA–HQ–OPPT–2016–0597; FRL–9961–92]
Chemical Data Reporting;
Requirements for Inorganic Byproduct
Chemical Substances; Notice of
Establishment of Negotiated
Rulemaking Committee; Notice of
Public Meetings
Environmental Protection
Agency (EPA).
ACTION: Notice of establishment of
Negotiated Rulemaking Committee and
notice of public meetings.
AGENCY:
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Federal Register / Vol. 82, No. 106 / Monday, June 5, 2017 / Notices
EPA is giving notice that it is
establishing a Negotiated Rulemaking
Committee (Committee) under the
Negotiated Rulemaking Act (NRA). The
objective of the Committee is to
negotiate a proposed rule that would
limit chemical data reporting
requirements under section 8(a) of the
Toxic Substances Control Act (TSCA),
as amended by the Frank R. Lautenberg
Chemical Safety for the 21st Century
Act, for manufacturers of any inorganic
byproduct chemical substances when
such byproduct chemical substances are
subsequently recycled, reused, or
reprocessed. The purpose of the
Committee is to conduct discussions in
a good faith attempt to reach consensus
on proposed regulatory language. This
negotiation process is required by
section 8(a)(6) of TSCA. This notice lists
the stakeholder groups from which EPA
plans to invite representatives to
participate as members of the
Committee, all of whom have been
identified as having a definable stake in
the outcome of the proposed
requirements. This notice also
announces the first two meetings of the
Committee, which are open to the
public.
SUMMARY:
The first of the Committee
meetings, which are both open to the
public, will be held on June 8, 2017,
from 9 a.m. to 5 p.m. and on June 9,
2017, from 9 a.m. to 3:00 p.m. The
second Committee meeting will be held
on August 16, 2017, from 9 a.m. to 5
p.m. and on August 17, 2017, from 9
a.m. to 3:00 p.m.
ADDRESSES: Both meetings will be held
at William Jefferson Clinton East
Building, Room 1153, 1201 Constitution
Avenue NW., Washington, DC 20004.
FOR FURTHER INFORMATION CONTACT: Any
member of the public wishing to obtain
information concerning the public
meetings may contact Jonah Richmond,
Designated Federal Officer (DFO),
Conflict Prevention and Resolution
Center, Office of General Counsel, 1200
Pennsylvania Ave. NW., Washington,
DC 20460–0001; telephone number:
(202) 564–0210; email address:
Richmond.jonah@epa.gov. General
information about the Committee, as
well as any updates concerning the
meetings announced in this notice, may
be found at https://www.epa.gov/
chemical-data-reporting/negotiatedrulemaking-committee-chemical-datareporting-requirements.
For information on access or services
for individuals with disabilities, or to
request accommodation for a disability,
please contact the DFO, preferably at
least ten days prior to the meetings to
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DATES:
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give EPA as much time as possible to
process your request.
For technical information contact:
Susan Sharkey, Chemical Control
Division (7405M), Office of Pollution
Prevention and Toxics, Environmental
Protection Agency, 1200 Pennsylvania
Ave. NW., Washington, DC 20460–0001;
telephone number: (202) 564–8789;
email address: Sharkey.susan@epa.gov.
For general information contact: The
TSCA-Hotline, ABVI-Goodwill, 422
South Clinton Ave., Rochester, NY
14620; telephone number: (202) 554–
1404; email address: TSCA-Hotline@
epa.gov.
SUPPLEMENTARY INFORMATION:
25791
and the telephone number for the OPPT
Docket is (202) 566–0280. Please review
the visitor instructions and additional
information about the docket available
at https://www.epa.gov/dockets.
II. Background
A. What action is the agency taking?
As required by the Negotiated
Rulemaking Act of 1996 (NRA), EPA is
giving notice that the agency is
establishing a Negotiated Rulemaking
Committee. The objective of this
Committee is to develop a proposed rule
providing for limiting chemical data
reporting requirements, under TSCA
section 8(a), for manufacturers of any
inorganic byproduct chemical
I. General Information
substances when such byproduct
A. Does this action apply to me?
chemical substances are subsequently
recycled, reused, or reprocessed. This
You may be potentially affected by
negotiation process, which includes the
this action if you manufacture
establishment of a federal advisory
(including manufacture as a byproduct
committee, is required by TSCA section
chemical substance and including
8(a)(6), as amended by the Frank. R.
import) chemical substances listed on
Lautenberg Chemical Safety for the 21st
the TSCA Inventory. The following list
Century Act (Lautenberg Act).
of North American Industrial
This Committee will be a statutory
Classification System (NAICS) codes are
advisory committee under the Federal
not intended to be exhaustive, but rather
Advisory Committee Act, 5 U.S.C. App.
provides a guide to help readers
2 § 9(a)(1). In accordance with Section
determine whether this action may
9(c) of the Federal Advisory Committee
apply to them:
Act, 5 U.S.C. App. I § 9(c), EPA
1. Chemical manufacturers and
prepared a charter for the establishment
importers (NAICS codes 325 and
of the Negotiated Rulemaking
324110; e.g., chemical manufacturing
Committee. Copies of the Committee’s
and processing and petroleum
charter will be filed with the
refineries).
2. Chemical users and processors who appropriate congressional committees,
may manufacture a byproduct chemical the Library of Congress, and available
online at https://www.epa.gov/
substance (NAICS codes 22, 322, 331,
chemical-data-reporting/negotiatedand 3344; e.g., utilities, paper
rulemaking-committee-chemical-datamanufacturing, primary metal
reporting-requirements. On December
manufacturing, and semiconductor and
15, 2016, EPA announced its intent to
other electronic component
negotiate and establish this Committee
manufacturing).
(81 FR 90843). More information on this
If you have any questions regarding
notice and comments received in
the applicability of this action to a
response are in Unit VII.
particular entity, consult the technical
This notice announces the
person listed under FOR FURTHER
stakeholder groups from which EPA
INFORMATION CONTACT.
intends to invite individuals as
B. How can I get copies of this document members of the Committee, all of whom
and other related information?
will have been identified as having a
definable stake in the outcome of the
The docket for this action, identified
proposed requirements. EPA is also
by docket identification (ID) number
EPA–HQ–OPPT–2016–0597, is available announcing the first two meetings of the
Committee. These meetings have been
at https://www.regulations.gov or at the
scheduled for the dates indicated under
Office of Pollution Prevention and
Toxics Docket (OPPT Docket),
DATES, and are open to the public.
Environmental Protection Agency
Under normal circumstances, a notice of
Docket Center (EPA/DC), West William
the Committee meeting must be
Jefferson Clinton Bldg., Rm. 3334, 1301
published no later than 15 days before
Constitution Ave. NW., Washington,
the date of that meeting. Due to
DC. The Public Reading Room is open
unavoidable administrative
from 8:30 a.m. to 4:30 p.m., Monday
circumstances, we are publishing this
through Friday, excluding legal
notice with less than 15 days’ advance
holidays. The telephone number for the notice for the first Committee meeting
Public Reading Room is (202) 566–1744, on June 8 and 9, 2017.
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Federal Register / Vol. 82, No. 106 / Monday, June 5, 2017 / Notices
B. What is the agency’s authority for this
action?
gain a better understanding of the
industry.
This notice announcing EPA’s
establishment of a Negotiated
Rulemaking Committee to negotiate a
proposed regulation was developed
under the authority of NRA sections 563
and 564 (5 U.S.C. 561, Pub. L. 104–320).
Any proposed regulation resulting from
the negotiation process would be
developed under the authority of TSCA
section 8 (15 U.S.C. 2607), as amended
by the Lautenberg Act (Pub. L. 114–
182).
D. Inorganic Byproduct Chemical
Substances Under CDR
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C. Chemical Data Reporting (CDR)
Framework
Under TSCA, EPA regulates the
manufacture (including import),
processing, distribution, use, and
disposal of chemical substances in the
United States. Information submitted by
manufacturers (including importers) as
required by CDR provides exposurerelated data for chemical substances in
U.S. commerce that are subject to TSCA.
This information supports agency risk
evaluation, risk management, and other
programs; it is made publicly available,
to the extent possible, while protecting
information claimed as confidential
business information.
Prior to 2011, CDR was known as the
Inventory Update Reporting (IUR)
regulation. In 1986, EPA promulgated
IUR regulations under the authority of
TSCA section 8(a) to collect limited
information on the manufacture
(including import) of organic chemical
substances listed on the TSCA
Inventory, thereby providing more upto-date production volume information
on the chemical substances in U.S.
commerce. In 2005, EPA amended IUR
regulations to require the reporting of
information on inorganic chemical
substances and to collect additional
manufacturing, processing, and use
information. EPA has since made
additional changes to the reporting
requirements, and in 2011 changed the
name of the reporting rule to Chemical
Data Reporting. CDR regulations are
currently codified at 40 CFR part 711.
EPA believes CDR is the only current
reporting obligation under TSCA section
8(a) that is likely to affect the
manufacturers of inorganic byproduct
chemical substances.
Manufacturers of inorganic chemical
substances first reported this
information in 2006, with subsequent
reporting in 2012 and 2016. Specific
reporting requirements for these
manufacturers were phased in, to allow
for the industry to better understand the
reporting requirements and for EPA to
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A byproduct chemical substance is a
chemical substance produced without a
separate commercial intent during the
manufacture, processing, use, or
disposal of another chemical substance
or mixture. 40 CFR 704.3, definition of
byproduct. Such byproduct chemical
substances may, or may not, in
themselves have commercial value, but
they are nonetheless produced for the
purpose of obtaining a commercial
advantage. 40 CFR 704.3, definition of
manufacture for commercial purposes.
Because byproduct chemical substances
are manufactured for a commercial
purpose, this manufacturing is
reportable under CDR unless covered by
a specific reporting exemption. CDR
contains a specific reporting exemption
for the manufacture of byproduct
chemical substances limited to cases
where those byproduct chemical
substances are not used for any
commercial purposes (or are only used
for certain limited commercial
purposes) after they are manufactured.
40 CFR 711.10(c). Inorganic byproduct
chemical substances are often recycled.
The recycling of a byproduct chemical
substance may qualify as a commercial
purpose beyond the limited commercial
purposes encompassed by 40 CFR
711.10(c). If so, the exemption from a
manufacturer of a byproduct chemical
substance from reporting this to CDR is
not applicable.
On June 22, 2016, TSCA was
amended by the Lautenberg Act. TSCA
now includes a requirement that EPA
enter into a negotiated rulemaking,
pursuant to the NRA, to develop and
publish a proposed rule to limit the
reporting requirements under TSCA
section 8(a), for manufacturers of any
inorganic byproduct chemical
substances when such byproduct
chemical substances, whether by the
byproduct chemical substance
manufacturer or by any other person,
are subsequently recycled, reused, or
reprocessed. The objective of the
negotiated rulemaking process is to
develop and publish a proposed rule by
June 22, 2019. In the event the
Committee reaches a consensus and a
proposed rule is developed through the
negotiated rulemaking process, a final
rule ‘‘resulting from such negotiated
rulemaking’’ must be issued by
December 22, 2019. 15 U.S.C.
2607(a)(6).
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III. Facilitators
In its Notice of Intent to Establish a
Negotiated Rulemaking Committee and
Negotiate a Proposed Rule (81 FR 90843,
December 15, 2016), EPA stated that it
was seeking a facilitator to conduct the
negotiations. Christopher Moore, Ph.D.,
of Collaborative Decision Resources
Associates, and Laura Sneeringer, of the
Consensus Building Institute, have been
retained for this purpose.
IV. Committee Membership
A. Qualifications for Stakeholder
Representatives
The facilitators conducted extensive
interviews with interested stakeholders,
asking for recommendations for
potential Committee members. To
facilitate representative selection, the
facilitators suggested qualifications,
knowledge, and skills that should be
possessed by representatives, which
would help promote productive
deliberations. These included:
• Knowledge of technical issues
related to inorganic byproducts;
• Experience with CDR and inorganic
byproduct reporting;
• Direct representation of a
constituency or a stakeholder group as
a whole, such as an industry, or as
component parts, such as large or small
companies;
• Not serving as external technical
consultants or legal counsel without
constituents;
• Authority to reach agreements and
make commitments for their stakeholder
group;
• Willingness and flexibility to
discuss issues that will be the focus of
the dialogue with parties that may have
different views or interests;
• Willingness to engage in productive
interest-based negotiations and avoid
adversarial or legal argumentation; and
• A commitment to negotiate in good
faith and strive to find solutions that
will meet all parties’ interests to the
greatest extent possible.
B. Represented Stakeholders
EPA is planning to invite
representatives from the following
stakeholder groups to serve on the
Committee:
• Inorganic chemical manufacturers
and processors, including metal mining
and related activities;
• Recyclers, including scrap
recyclers;
• Industry advocacy groups;
• Environmental advocacy groups;
and
• Federal, State, and Tribal
governments.
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V. Participation by Non-Members
A. Attending Meetings
EPA values public input during this
process. The meetings announced in
this notice will be open to the public,
so interested parties may observe the
meetings and communicate their views
in the appropriate time and manner, as
defined in each meeting’s agenda.
Consistent with the requirements of
FACA, formal meeting materials and
summaries will be available online.
B. Oral Statements
In general, individuals or groups
requesting an oral presentation at a
public meeting will be limited to five
minutes. Each person making an oral
statement should consider providing
written comments as well as their oral
statement so that the points presented
orally can be expanded upon in writing.
Interested parties should submit
requests by email to ecdrweb@epa.gov
one week prior to the meeting dates, in
order to be placed on the list of public
speakers.
C. Written Statements
Written statements will be accepted
throughout the advisory process;
however, for timely consideration,
statements should be supplied by email
to ecdrweb@epa.gov one week prior to
the meeting dates. Members of the
public should be aware that written
comments, including personal contact
information, if included, may be posted
to the Committee Web site as well as
placed in the EPA docket supporting
this activity. Copyrighted material will
not be posted without explicit
permission of the copyright holder.
Additionally, EPA will invite public
comment on any proposed rule resulting
from the Committee’s deliberations.
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VI. Meeting Schedule and Agenda
A. Meeting Schedule
EPA anticipates up to five Committee
meetings will be held between June and
October 2017, including the Committee
meetings that EPA is announcing in this
Notice. Committee meetings will be one
and a half days each, and held in
Washington, DC, unless the Committee
decides otherwise. The Committee will
separately announce those meetings
subsequent to the meetings being
announced in this notice.
B. The First Committee Meeting
The first Committee meeting will be
held on June 8, 2017, from 9 a.m. to 5
p.m. and on June 9, 2017, from 9 a.m.
to 3:00 p.m. The second Committee
meeting will be held on August 16,
2017, from 9 a.m. to 5 p.m. and on
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August 17, 2017, from 9 a.m. to 3:00
p.m. Both meetings will be open to the
public. Meeting details and agenda
information will be available online at
https://www.epa.gov/chemical-datareporting/negotiated-rulemakingcommittee-chemical-data-reportingrequirements, as well as in the EPA
docket supporting this activity.
VII. Notice of Intent To Negotiate and
Response to Public Comments
On December 15, 2016, EPA
published a notice of intent to establish
a Committee to negotiate a proposed
rule that would limit chemical data
reporting requirements under section
8(a) of TSCA, for manufacturers of any
inorganic byproduct chemical
substances, when such byproduct
chemical substances are subsequently
recycled, reused, or reprocessed (81 FR
90843). The notice requested comment
on membership, the interests affected by
the rulemaking, the issues the
Committee should address, and the
procedures it should follow.
EPA received 18 comments on the
notice of intent, which can all be found
in the docket for this Notice. None of
the comments opposed using regulatory
negotiation for this rulemaking; most
endorsed the process and included
requests to serve on the Committee.
However, one commenter raised four
substantive issues, which EPA is
responding to here.
A. EPA Should Commit Staff With
Appropriate Seniority and the Authority
To Negotiate for the Agency
The commenter encouraged EPA to
select representatives that are
knowledgeable about the issue and have
the authority to make commitments for
the agency. EPA agrees. EPA will have
two representatives at the table—one
technical expert on CDR, and the other
an EPA manager with the authority to,
in consultation with other EPA officials
as needed, make commitments for the
agency. EPA will also have other
technical experts available to answer
questions about other EPA programs, as
recommended by the commenter.
B. Additional Recommendations
Regarding Committee Participation
The commenter recommended that
the Small Business Administration
(SBA) Office of Advocacy be
represented on the Committee. Because
SBA’s Office of Advocacy already has
multiple established processes for
providing input during rulemaking,
such as serving on Small Business
Advocacy Review Panels that are
convened under the Regulatory
Flexibility Act, as amended by the
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Small Business Regulatory Enforcement
Fairness Act, 5 U.S.C. 609(b)(3) (1980),
and participating in interagency review
conducted under Executive Order
12866, 58 FR 51735 (October 4, 1993),
and because EPA believes it is
important for the federal government to
be represented as a singular entity at the
table, SBA will not serve on the
Committee. EPA will coordinate with
SBA through the standard processes that
apply to EPA rulemaking. In addition,
SBA, as well as other federal agencies,
will be invited to attend all Committee
meetings as an observer.
C. EPA Is Required To Propose and
Finalize a Rule Regardless of the
Outcome of the Negotiated Rulemaking
The commenter believes that the
Lautenberg Act requires EPA to propose
and finalize a rule lessening the
reporting burdens for inorganic
byproducts sent for recycling, regardless
of whether consensus is reached by the
Committee. As EPA explained in its
December 15, 2016, Notice, the agency
construes its obligation to propose and
finalize a rule under TSCA section
8(a)(6) as being contingent on the
Committee reaching a consensus.
EPA’s obligation under TSCA section
8(a)(6)(B) is to finalize a rule ‘‘resulting
from such negotiated rulemaking.’’
While EPA would have authority to
issue an amendment to the CDR for
inorganic byproducts even if negotiation
failed to achieve any consensus, such a
rule would not be a rule resulting from
the negotiated rulemaking. Accordingly,
TSCA section 8(a)(6)(B) presupposes
that the negotiated rulemaking process
reached consensus in directing EPA to
issue a final rule.
This reading is consistent with the
structure of TSCA section 8(a)(6) as a
whole, requiring a proposed rule within
three years of the Lautenberg Act’s
enactment and a final rule six months
later. Under the commenter’s reading, if
the Negotiated Rulemaking Committee
could not reach any consensus to limit
the reporting requirements for inorganic
byproducts, EPA would still be required
to come up with its own approach by
June 2019 without the benefit of
agreement from the interested parties.
EPA can reasonably assume that such an
approach would draw adverse comment
from the party or parties that blocked
consensus in the Negotiated Rulemaking
Committee, and thus the agency would
only have six months to solicit,
consider, and respond to those
comments before the statutorily
required deadline. EPA does not believe
that Congress intended for this to occur
because it did not direct the agency to
limit reporting requirements in any
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25794
Federal Register / Vol. 82, No. 106 / Monday, June 5, 2017 / Notices
specific way that would require a
rulemaking regardless of the outcome of
the negotiated rulemaking. On the
contrary, Congress specifically directed
that the final rule must result from the
negotiated rulemaking, which will
likely simplify the comment process
enough to enable the agency to meet
these relatively short deadlines.
By establishing the Committee in
today’s Notice, EPA is fulfilling the
Lautenberg Act’s requirement to ‘‘enter
into a negotiated rulemaking pursuant
to’’ the NRA to develop and publish a
proposed rule. 15 U.S.C. 2607(a)(6)(A).
When viewed under the lens of the
statutory structure, any requirement for
EPA to actually ‘‘develop and publish’’
a proposed rule must necessarily also
result from consensus being reached by
the Committee.
For these reasons, EPA respectfully
disagrees with the commenter. If
consensus cannot be reached, and there
is no agreement upon which to base a
proposal, then there is no further
statutory obligation to issue a proposal
or a final rule. However, as noted in the
December 15, 2016, Notice, EPA
commits to working in good faith to
seek consensus on a proposal that is
consistent with the legal mandate of
TSCA.
asabaliauskas on DSKBBXCHB2PROD with NOTICES
D. Definition of Consensus Should Not
Require Unanimous Concurrence of the
Committee
The commenter recommended that
the Committee use a definition of
consensus that does not require
unanimous concurrence among the
Committee, citing the potential for one
Committee member’s veto to result in no
agreement. The NRA defines consensus
as unanimous concurrence, unless the
Committee agrees otherwise. 5 U.S.C.
562. A unanimous concurrence
definition is important in ensuring no
one interest or group of interests is able
to control the process. While EPA
believes that unanimous concurrence is
not an unreasonably high bar,
particularly with the assistance of a
highly skilled neutral facilitator with
expertise in building consensus, the
Committee has the power under the
NRA to agree to another definition of
consensus.
Authority: 15 U.S.C. 2601 et seq.
Dated: May 24, 2017.
Wendy Cleland-Hamnett,
Acting Assistant Administrator, Office of
Chemical Safety and Pollution Prevention.
[FR Doc. 2017–11570 Filed 5–31–17; 4:15 pm]
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ENVIRONMENTAL PROTECTION
AGENCY
[9961–58–OEI]
Cross-Media Electronic Reporting:
Authorized Program Revision
Approval, State of Utah
Environmental Protection
Agency (EPA).
ACTION: Notice.
AGENCY:
This notice announces EPA’s
approval of the State of Utah’s request
to revise/modify certain of its EPAauthorized programs to allow electronic
reporting.
DATES: EPA’s approval is effective June
5, 2017.
FOR FURTHER INFORMATION CONTACT:
Karen Seeh, U.S. Environmental
Protection Agency, Office of
Environmental Information, Mail Stop
2823T, 1200 Pennsylvania Avenue NW.,
Washington, DC 20460, (202) 566–1175,
seeh.karen@epa.gov.
SUPPLEMENTARY INFORMATION: On
October 13, 2005, the final Cross-Media
Electronic Reporting Rule (CROMERR)
was published in the Federal Register
(70 FR 59848) and codified as part 3 of
title 40 of the CFR. CROMERR
establishes electronic reporting as an
acceptable regulatory alternative to
paper reporting and establishes
requirements to assure that electronic
documents are as legally dependable as
their paper counterparts. Subpart D of
CROMERR requires that state, tribal or
local government agencies that receive,
or wish to begin receiving, electronic
reports under their EPA-authorized
programs must apply to EPA for a
revision or modification of those
programs and obtain EPA approval.
Subpart D provides standards for such
approvals based on consideration of the
electronic document receiving systems
that the state, tribe, or local government
will use to implement the electronic
reporting. Additionally, § 3.1000(b)
through (e) of 40 CFR part 3, subpart D
provides special procedures for program
revisions and modifications to allow
electronic reporting, to be used at the
option of the state, tribe or local
government in place of procedures
available under existing programspecific authorization regulations. An
application submitted under the subpart
D procedures must show that the state,
tribe or local government has sufficient
legal authority to implement the
electronic reporting components of the
programs covered by the application
and will use electronic document
receiving systems that meet the
applicable subpart D requirements.
SUMMARY:
PO 00000
Frm 00040
Fmt 4703
Sfmt 4703
On March 28, 2017, the Utah
Department of Environmental Quality
(UT DEQ) submitted an application
titled ‘‘NPDES e-Reporting Tool’’ for
revisions/modifications to its EPAapproved programs under title 40 CFR
to allow new electronic reporting. EPA
reviewed UT DEQ’s request to revise/
modify its EPA-authorized programs
and, based on this review, EPA
determined that the application met the
standards for approval of authorized
program revisions/modifications set out
in 40 CFR part 3, subpart D. In
accordance with 40 CFR 3.1000(d), this
notice of EPA’s decision to approve
Utah’s request to revise/modify its
following EPA-authorized programs to
allow electronic reporting under 40 CFR
parts 122, 125, 403–471, 501, and 503,
is being published in the Federal
Register:
Part 123—EPA Administered Permit
Programs: The National Pollutant
Discharge Elimination System;
Part 403—General Pretreatment
Regulations for Existing and New
Sources of Pollution; and
Part 501—State Sludge Management
Program Regulations.
UT DEQ was notified of EPA’s
determination to approve its application
with respect to the authorized programs
listed above.
Matthew Leopard,
Director, Office of Information Management.
[FR Doc. 2017–11513 Filed 6–2–17; 8:45 am]
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FEDERAL COMMUNICATIONS
COMMISSION
[OMB 3060–xxxx and 3060–0029]
Information Collections Being
Submitted for Review and Approval to
the Office of Management and Budget
Federal Communications
Commission.
ACTION: Notice and request for
comments.
AGENCY:
As part of its continuing effort
to reduce paperwork burdens, and as
required by the Paperwork Reduction
Act (PRA) of 1995, the Federal
Communications Commission (FCC or
the Commission) invites the general
public and other Federal agencies to
take this opportunity to comment on the
following information collection.
Comments are requested concerning:
Whether the proposed collection of
information is necessary for the proper
performance of the functions of the
Commission, including whether the
information shall have practical utility;
SUMMARY:
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Agencies
[Federal Register Volume 82, Number 106 (Monday, June 5, 2017)]
[Notices]
[Pages 25790-25794]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-11570]
=======================================================================
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ENVIRONMENTAL PROTECTION AGENCY
[EPA-HQ-OPPT-2016-0597; FRL-9961-92]
Chemical Data Reporting; Requirements for Inorganic Byproduct
Chemical Substances; Notice of Establishment of Negotiated Rulemaking
Committee; Notice of Public Meetings
AGENCY: Environmental Protection Agency (EPA).
ACTION: Notice of establishment of Negotiated Rulemaking Committee and
notice of public meetings.
-----------------------------------------------------------------------
[[Page 25791]]
SUMMARY: EPA is giving notice that it is establishing a Negotiated
Rulemaking Committee (Committee) under the Negotiated Rulemaking Act
(NRA). The objective of the Committee is to negotiate a proposed rule
that would limit chemical data reporting requirements under section
8(a) of the Toxic Substances Control Act (TSCA), as amended by the
Frank R. Lautenberg Chemical Safety for the 21st Century Act, for
manufacturers of any inorganic byproduct chemical substances when such
byproduct chemical substances are subsequently recycled, reused, or
reprocessed. The purpose of the Committee is to conduct discussions in
a good faith attempt to reach consensus on proposed regulatory
language. This negotiation process is required by section 8(a)(6) of
TSCA. This notice lists the stakeholder groups from which EPA plans to
invite representatives to participate as members of the Committee, all
of whom have been identified as having a definable stake in the outcome
of the proposed requirements. This notice also announces the first two
meetings of the Committee, which are open to the public.
DATES: The first of the Committee meetings, which are both open to the
public, will be held on June 8, 2017, from 9 a.m. to 5 p.m. and on June
9, 2017, from 9 a.m. to 3:00 p.m. The second Committee meeting will be
held on August 16, 2017, from 9 a.m. to 5 p.m. and on August 17, 2017,
from 9 a.m. to 3:00 p.m.
ADDRESSES: Both meetings will be held at William Jefferson Clinton East
Building, Room 1153, 1201 Constitution Avenue NW., Washington, DC
20004.
FOR FURTHER INFORMATION CONTACT: Any member of the public wishing to
obtain information concerning the public meetings may contact Jonah
Richmond, Designated Federal Officer (DFO), Conflict Prevention and
Resolution Center, Office of General Counsel, 1200 Pennsylvania Ave.
NW., Washington, DC 20460-0001; telephone number: (202) 564-0210; email
address: Richmond.jonah@epa.gov. General information about the
Committee, as well as any updates concerning the meetings announced in
this notice, may be found at https://www.epa.gov/chemical-data-reporting/negotiated-rulemaking-committee-chemical-data-reporting-requirements.
For information on access or services for individuals with
disabilities, or to request accommodation for a disability, please
contact the DFO, preferably at least ten days prior to the meetings to
give EPA as much time as possible to process your request.
For technical information contact: Susan Sharkey, Chemical Control
Division (7405M), Office of Pollution Prevention and Toxics,
Environmental Protection Agency, 1200 Pennsylvania Ave. NW.,
Washington, DC 20460-0001; telephone number: (202) 564-8789; email
address: Sharkey.susan@epa.gov.
For general information contact: The TSCA-Hotline, ABVI-Goodwill,
422 South Clinton Ave., Rochester, NY 14620; telephone number: (202)
554-1404; email address: TSCA-Hotline@epa.gov.
SUPPLEMENTARY INFORMATION:
I. General Information
A. Does this action apply to me?
You may be potentially affected by this action if you manufacture
(including manufacture as a byproduct chemical substance and including
import) chemical substances listed on the TSCA Inventory. The following
list of North American Industrial Classification System (NAICS) codes
are not intended to be exhaustive, but rather provides a guide to help
readers determine whether this action may apply to them:
1. Chemical manufacturers and importers (NAICS codes 325 and
324110; e.g., chemical manufacturing and processing and petroleum
refineries).
2. Chemical users and processors who may manufacture a byproduct
chemical substance (NAICS codes 22, 322, 331, and 3344; e.g.,
utilities, paper manufacturing, primary metal manufacturing, and
semiconductor and other electronic component manufacturing).
If you have any questions regarding the applicability of this
action to a particular entity, consult the technical person listed
under FOR FURTHER INFORMATION CONTACT.
B. How can I get copies of this document and other related information?
The docket for this action, identified by docket identification
(ID) number EPA-HQ-OPPT-2016-0597, is available at https://www.regulations.gov or at the Office of Pollution Prevention and Toxics
Docket (OPPT Docket), Environmental Protection Agency Docket Center
(EPA/DC), West William Jefferson Clinton Bldg., Rm. 3334, 1301
Constitution Ave. NW., Washington, DC. The Public Reading Room is open
from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal
holidays. The telephone number for the Public Reading Room is (202)
566-1744, and the telephone number for the OPPT Docket is (202) 566-
0280. Please review the visitor instructions and additional information
about the docket available at https://www.epa.gov/dockets.
II. Background
A. What action is the agency taking?
As required by the Negotiated Rulemaking Act of 1996 (NRA), EPA is
giving notice that the agency is establishing a Negotiated Rulemaking
Committee. The objective of this Committee is to develop a proposed
rule providing for limiting chemical data reporting requirements, under
TSCA section 8(a), for manufacturers of any inorganic byproduct
chemical substances when such byproduct chemical substances are
subsequently recycled, reused, or reprocessed. This negotiation
process, which includes the establishment of a federal advisory
committee, is required by TSCA section 8(a)(6), as amended by the
Frank. R. Lautenberg Chemical Safety for the 21st Century Act
(Lautenberg Act).
This Committee will be a statutory advisory committee under the
Federal Advisory Committee Act, 5 U.S.C. App. 2 Sec. 9(a)(1). In
accordance with Section 9(c) of the Federal Advisory Committee Act, 5
U.S.C. App. I Sec. 9(c), EPA prepared a charter for the establishment
of the Negotiated Rulemaking Committee. Copies of the Committee's
charter will be filed with the appropriate congressional committees,
the Library of Congress, and available online at https://www.epa.gov/chemical-data-reporting/negotiated-rulemaking-committee-chemical-data-reporting-requirements. On December 15, 2016, EPA announced its intent
to negotiate and establish this Committee (81 FR 90843). More
information on this notice and comments received in response are in
Unit VII.
This notice announces the stakeholder groups from which EPA intends
to invite individuals as members of the Committee, all of whom will
have been identified as having a definable stake in the outcome of the
proposed requirements. EPA is also announcing the first two meetings of
the Committee. These meetings have been scheduled for the dates
indicated under DATES, and are open to the public. Under normal
circumstances, a notice of the Committee meeting must be published no
later than 15 days before the date of that meeting. Due to unavoidable
administrative circumstances, we are publishing this notice with less
than 15 days' advance notice for the first Committee meeting on June 8
and 9, 2017.
[[Page 25792]]
B. What is the agency's authority for this action?
This notice announcing EPA's establishment of a Negotiated
Rulemaking Committee to negotiate a proposed regulation was developed
under the authority of NRA sections 563 and 564 (5 U.S.C. 561, Pub. L.
104-320). Any proposed regulation resulting from the negotiation
process would be developed under the authority of TSCA section 8 (15
U.S.C. 2607), as amended by the Lautenberg Act (Pub. L. 114-182).
C. Chemical Data Reporting (CDR) Framework
Under TSCA, EPA regulates the manufacture (including import),
processing, distribution, use, and disposal of chemical substances in
the United States. Information submitted by manufacturers (including
importers) as required by CDR provides exposure-related data for
chemical substances in U.S. commerce that are subject to TSCA. This
information supports agency risk evaluation, risk management, and other
programs; it is made publicly available, to the extent possible, while
protecting information claimed as confidential business information.
Prior to 2011, CDR was known as the Inventory Update Reporting
(IUR) regulation. In 1986, EPA promulgated IUR regulations under the
authority of TSCA section 8(a) to collect limited information on the
manufacture (including import) of organic chemical substances listed on
the TSCA Inventory, thereby providing more up-to-date production volume
information on the chemical substances in U.S. commerce. In 2005, EPA
amended IUR regulations to require the reporting of information on
inorganic chemical substances and to collect additional manufacturing,
processing, and use information. EPA has since made additional changes
to the reporting requirements, and in 2011 changed the name of the
reporting rule to Chemical Data Reporting. CDR regulations are
currently codified at 40 CFR part 711. EPA believes CDR is the only
current reporting obligation under TSCA section 8(a) that is likely to
affect the manufacturers of inorganic byproduct chemical substances.
Manufacturers of inorganic chemical substances first reported this
information in 2006, with subsequent reporting in 2012 and 2016.
Specific reporting requirements for these manufacturers were phased in,
to allow for the industry to better understand the reporting
requirements and for EPA to gain a better understanding of the
industry.
D. Inorganic Byproduct Chemical Substances Under CDR
A byproduct chemical substance is a chemical substance produced
without a separate commercial intent during the manufacture,
processing, use, or disposal of another chemical substance or mixture.
40 CFR 704.3, definition of byproduct. Such byproduct chemical
substances may, or may not, in themselves have commercial value, but
they are nonetheless produced for the purpose of obtaining a commercial
advantage. 40 CFR 704.3, definition of manufacture for commercial
purposes. Because byproduct chemical substances are manufactured for a
commercial purpose, this manufacturing is reportable under CDR unless
covered by a specific reporting exemption. CDR contains a specific
reporting exemption for the manufacture of byproduct chemical
substances limited to cases where those byproduct chemical substances
are not used for any commercial purposes (or are only used for certain
limited commercial purposes) after they are manufactured. 40 CFR
711.10(c). Inorganic byproduct chemical substances are often recycled.
The recycling of a byproduct chemical substance may qualify as a
commercial purpose beyond the limited commercial purposes encompassed
by 40 CFR 711.10(c). If so, the exemption from a manufacturer of a
byproduct chemical substance from reporting this to CDR is not
applicable.
On June 22, 2016, TSCA was amended by the Lautenberg Act. TSCA now
includes a requirement that EPA enter into a negotiated rulemaking,
pursuant to the NRA, to develop and publish a proposed rule to limit
the reporting requirements under TSCA section 8(a), for manufacturers
of any inorganic byproduct chemical substances when such byproduct
chemical substances, whether by the byproduct chemical substance
manufacturer or by any other person, are subsequently recycled, reused,
or reprocessed. The objective of the negotiated rulemaking process is
to develop and publish a proposed rule by June 22, 2019. In the event
the Committee reaches a consensus and a proposed rule is developed
through the negotiated rulemaking process, a final rule ``resulting
from such negotiated rulemaking'' must be issued by December 22, 2019.
15 U.S.C. 2607(a)(6).
III. Facilitators
In its Notice of Intent to Establish a Negotiated Rulemaking
Committee and Negotiate a Proposed Rule (81 FR 90843, December 15,
2016), EPA stated that it was seeking a facilitator to conduct the
negotiations. Christopher Moore, Ph.D., of Collaborative Decision
Resources Associates, and Laura Sneeringer, of the Consensus Building
Institute, have been retained for this purpose.
IV. Committee Membership
A. Qualifications for Stakeholder Representatives
The facilitators conducted extensive interviews with interested
stakeholders, asking for recommendations for potential Committee
members. To facilitate representative selection, the facilitators
suggested qualifications, knowledge, and skills that should be
possessed by representatives, which would help promote productive
deliberations. These included:
Knowledge of technical issues related to inorganic
byproducts;
Experience with CDR and inorganic byproduct reporting;
Direct representation of a constituency or a stakeholder
group as a whole, such as an industry, or as component parts, such as
large or small companies;
Not serving as external technical consultants or legal
counsel without constituents;
Authority to reach agreements and make commitments for
their stakeholder group;
Willingness and flexibility to discuss issues that will be
the focus of the dialogue with parties that may have different views or
interests;
Willingness to engage in productive interest-based
negotiations and avoid adversarial or legal argumentation; and
A commitment to negotiate in good faith and strive to find
solutions that will meet all parties' interests to the greatest extent
possible.
B. Represented Stakeholders
EPA is planning to invite representatives from the following
stakeholder groups to serve on the Committee:
Inorganic chemical manufacturers and processors, including
metal mining and related activities;
Recyclers, including scrap recyclers;
Industry advocacy groups;
Environmental advocacy groups; and
Federal, State, and Tribal governments.
[[Page 25793]]
V. Participation by Non-Members
A. Attending Meetings
EPA values public input during this process. The meetings announced
in this notice will be open to the public, so interested parties may
observe the meetings and communicate their views in the appropriate
time and manner, as defined in each meeting's agenda. Consistent with
the requirements of FACA, formal meeting materials and summaries will
be available online.
B. Oral Statements
In general, individuals or groups requesting an oral presentation
at a public meeting will be limited to five minutes. Each person making
an oral statement should consider providing written comments as well as
their oral statement so that the points presented orally can be
expanded upon in writing. Interested parties should submit requests by
email to ecdrweb@epa.gov one week prior to the meeting dates, in order
to be placed on the list of public speakers.
C. Written Statements
Written statements will be accepted throughout the advisory
process; however, for timely consideration, statements should be
supplied by email to ecdrweb@epa.gov one week prior to the meeting
dates. Members of the public should be aware that written comments,
including personal contact information, if included, may be posted to
the Committee Web site as well as placed in the EPA docket supporting
this activity. Copyrighted material will not be posted without explicit
permission of the copyright holder. Additionally, EPA will invite
public comment on any proposed rule resulting from the Committee's
deliberations.
VI. Meeting Schedule and Agenda
A. Meeting Schedule
EPA anticipates up to five Committee meetings will be held between
June and October 2017, including the Committee meetings that EPA is
announcing in this Notice. Committee meetings will be one and a half
days each, and held in Washington, DC, unless the Committee decides
otherwise. The Committee will separately announce those meetings
subsequent to the meetings being announced in this notice.
B. The First Committee Meeting
The first Committee meeting will be held on June 8, 2017, from 9
a.m. to 5 p.m. and on June 9, 2017, from 9 a.m. to 3:00 p.m. The second
Committee meeting will be held on August 16, 2017, from 9 a.m. to 5
p.m. and on August 17, 2017, from 9 a.m. to 3:00 p.m. Both meetings
will be open to the public. Meeting details and agenda information will
be available online at https://www.epa.gov/chemical-data-reporting/negotiated-rulemaking-committee-chemical-data-reporting-requirements,
as well as in the EPA docket supporting this activity.
VII. Notice of Intent To Negotiate and Response to Public Comments
On December 15, 2016, EPA published a notice of intent to establish
a Committee to negotiate a proposed rule that would limit chemical data
reporting requirements under section 8(a) of TSCA, for manufacturers of
any inorganic byproduct chemical substances, when such byproduct
chemical substances are subsequently recycled, reused, or reprocessed
(81 FR 90843). The notice requested comment on membership, the
interests affected by the rulemaking, the issues the Committee should
address, and the procedures it should follow.
EPA received 18 comments on the notice of intent, which can all be
found in the docket for this Notice. None of the comments opposed using
regulatory negotiation for this rulemaking; most endorsed the process
and included requests to serve on the Committee. However, one commenter
raised four substantive issues, which EPA is responding to here.
A. EPA Should Commit Staff With Appropriate Seniority and the Authority
To Negotiate for the Agency
The commenter encouraged EPA to select representatives that are
knowledgeable about the issue and have the authority to make
commitments for the agency. EPA agrees. EPA will have two
representatives at the table--one technical expert on CDR, and the
other an EPA manager with the authority to, in consultation with other
EPA officials as needed, make commitments for the agency. EPA will also
have other technical experts available to answer questions about other
EPA programs, as recommended by the commenter.
B. Additional Recommendations Regarding Committee Participation
The commenter recommended that the Small Business Administration
(SBA) Office of Advocacy be represented on the Committee. Because SBA's
Office of Advocacy already has multiple established processes for
providing input during rulemaking, such as serving on Small Business
Advocacy Review Panels that are convened under the Regulatory
Flexibility Act, as amended by the Small Business Regulatory
Enforcement Fairness Act, 5 U.S.C. 609(b)(3) (1980), and participating
in interagency review conducted under Executive Order 12866, 58 FR
51735 (October 4, 1993), and because EPA believes it is important for
the federal government to be represented as a singular entity at the
table, SBA will not serve on the Committee. EPA will coordinate with
SBA through the standard processes that apply to EPA rulemaking. In
addition, SBA, as well as other federal agencies, will be invited to
attend all Committee meetings as an observer.
C. EPA Is Required To Propose and Finalize a Rule Regardless of the
Outcome of the Negotiated Rulemaking
The commenter believes that the Lautenberg Act requires EPA to
propose and finalize a rule lessening the reporting burdens for
inorganic byproducts sent for recycling, regardless of whether
consensus is reached by the Committee. As EPA explained in its December
15, 2016, Notice, the agency construes its obligation to propose and
finalize a rule under TSCA section 8(a)(6) as being contingent on the
Committee reaching a consensus.
EPA's obligation under TSCA section 8(a)(6)(B) is to finalize a
rule ``resulting from such negotiated rulemaking.'' While EPA would
have authority to issue an amendment to the CDR for inorganic
byproducts even if negotiation failed to achieve any consensus, such a
rule would not be a rule resulting from the negotiated rulemaking.
Accordingly, TSCA section 8(a)(6)(B) presupposes that the negotiated
rulemaking process reached consensus in directing EPA to issue a final
rule.
This reading is consistent with the structure of TSCA section
8(a)(6) as a whole, requiring a proposed rule within three years of the
Lautenberg Act's enactment and a final rule six months later. Under the
commenter's reading, if the Negotiated Rulemaking Committee could not
reach any consensus to limit the reporting requirements for inorganic
byproducts, EPA would still be required to come up with its own
approach by June 2019 without the benefit of agreement from the
interested parties. EPA can reasonably assume that such an approach
would draw adverse comment from the party or parties that blocked
consensus in the Negotiated Rulemaking Committee, and thus the agency
would only have six months to solicit, consider, and respond to those
comments before the statutorily required deadline. EPA does not believe
that Congress intended for this to occur because it did not direct the
agency to limit reporting requirements in any
[[Page 25794]]
specific way that would require a rulemaking regardless of the outcome
of the negotiated rulemaking. On the contrary, Congress specifically
directed that the final rule must result from the negotiated
rulemaking, which will likely simplify the comment process enough to
enable the agency to meet these relatively short deadlines.
By establishing the Committee in today's Notice, EPA is fulfilling
the Lautenberg Act's requirement to ``enter into a negotiated
rulemaking pursuant to'' the NRA to develop and publish a proposed
rule. 15 U.S.C. 2607(a)(6)(A). When viewed under the lens of the
statutory structure, any requirement for EPA to actually ``develop and
publish'' a proposed rule must necessarily also result from consensus
being reached by the Committee.
For these reasons, EPA respectfully disagrees with the commenter.
If consensus cannot be reached, and there is no agreement upon which to
base a proposal, then there is no further statutory obligation to issue
a proposal or a final rule. However, as noted in the December 15, 2016,
Notice, EPA commits to working in good faith to seek consensus on a
proposal that is consistent with the legal mandate of TSCA.
D. Definition of Consensus Should Not Require Unanimous Concurrence of
the Committee
The commenter recommended that the Committee use a definition of
consensus that does not require unanimous concurrence among the
Committee, citing the potential for one Committee member's veto to
result in no agreement. The NRA defines consensus as unanimous
concurrence, unless the Committee agrees otherwise. 5 U.S.C. 562. A
unanimous concurrence definition is important in ensuring no one
interest or group of interests is able to control the process. While
EPA believes that unanimous concurrence is not an unreasonably high
bar, particularly with the assistance of a highly skilled neutral
facilitator with expertise in building consensus, the Committee has the
power under the NRA to agree to another definition of consensus.
Authority: 15 U.S.C. 2601 et seq.
Dated: May 24, 2017.
Wendy Cleland-Hamnett,
Acting Assistant Administrator, Office of Chemical Safety and Pollution
Prevention.
[FR Doc. 2017-11570 Filed 5-31-17; 4:15 pm]
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