EPA Releases Supplemental Proposed Rulemaking to Modify TSCA Fees Rule

On November 16, 2022, EPA published a supplemental notice of proposed rulemaking (SNPRM) (87 FR 68647) addressing fees for the administration of TSCA. The SNPRM modifies and supplements the Agency’s proposed TSCA fees rule issued on January 11, 2021. The 2021 proposed rule was released pursuant to TSCA section 26(b)(4)(F), which requires EPA to review and, if necessary, adjust fees every three years. EPA determined this SNPRM was necessary based on comments on the proposed rule, adjustments to EPA’s cost estimates, and additional experience in implementing the 2018 Fee Rule. Modifications include:

• Increasing fee amounts and the estimates of EPA’s costs for TSCA administration.
• Expansion of the fee requirements to companies required to submit information for test orders.
• Narrowing the proposed exemptions for the test rule fee activities to only: (1) importers of articles containing a chemical substance; (2) producers of a chemical substance as a byproduct; (3) manufacturers (including importers) of a chemical substance as an impurity; (4) producers of a chemical as a non-isolated intermediate; (5) manufacturers (including importers) of small quantities of a chemical substance solely for research and development and; (6) manufacturers (including importers) of chemical substances with production volume less than 1,100 lbs of a chemical subject to a TSCA section 4 test rule.
• Adjustments to the self-identification and reporting requirements of EPA-initiated risk evaluation and test rule fees to reduce the burden of calculating and reporting production volumes to comply with the 2021 proposed recordkeeping requirements. EPA is considering using ranking methodologies and reporting production volume ranges instead of averages.
• The proposal of a partial refund of fees for PMNs withdrawn any time after the first 10 business days during the assessment period for the chemical.
• Adjustment of the fee payment obligations to require payment by processors subject to test orders and enforceable consent agreements.
• Extending the time frame for test orders and test rule payments.

The proposed fee increases are as follows:

Fee Category	2018 Fee Rule	Current Fees*	2022 Supplemental Proposed Rule
Test order	$9,800	$11,650	$25,000
Test rule	$29,500	$35,080	$50,000
Enforceable consent agreement	$22,800	$27,110	$50,000
PMN and consolidated PMN, SNUN, MCAN, and consolidated MCAN	$16,000	$19,020	$45,000
LoRex, LVE, TME, Tier II exemption, TERA, Film Articles	$4,700	$5,590	$13,200
EPA-initiated risk evaluation	$1,350,000	Two payments totaling $2,560,000	Two payments totaling $5,081,000
Manufacturer-requested risk evaluation on a chemical included in the TSCA Work Plan	Initial payment of $1.25M with final invoice to recover 50% of actual costs	Two payments of $945,000, with final invoice to recover 50% of actual costs	Two payments of $1,497,000, with final invoice to recover 50% of actual costs
Manufacturer-requested risk evaluation on a chemical not included in the TSCA Work Plan	Initial payment of $2.5M, with final invoice to recover 100% of actual costs	Two payments of $1.89M, with final invoice to recover 100% of actual costs	Two payments of $2,993,000, with final invoice to recover 100% of actual costs

*The current fees reflect an adjustment for inflation required by TSCA and went into effect on January 1, 2022.

EPA states that increased fees will ensure recovery of 25% of implementation costs, consistent with the direction of the Fiscal Year 2022 appropriations bill. The Agency also states that the fee increases will strengthen its ability to successfully implement TSCA in a manner that is both protective and sustainable.  Furthermore, EPA asserts that the fee increases will improve on-time performance and quality significantly.

EPA officials have repeatedly argued that the 2016 Lautenberg Amendments tasked the Agency with many new responsibilities but did not increase the TSCA budget accordingly. According to the Agency, while there was a fee increase in 2018, EPA was only able to collect about half of the 25% target fees since the 2018 rule’s finalization. Assistant Administrator for the Office of Chemical Safety and Pollution Prevention Michal Freedhoff commented, “[f]or the last six years, we’ve lacked the needed resources to build a sustainable chemical safety program that’s grounded in science, protects communities from dangerous chemicals, and supports innovation; with today’s action, we’re continuing to adjust TSCA fees to account for the full costs of running the program the way that Congress intended.”

EPA will hold a webinar on December 6, 2022, from 1:00 PM to 2:30 PM to provide stakeholders with an overview of the SNPRM and accept public comments. Registration closes on December 1, 2022; you can register for the webinar here.