[Federal Register Volume 63, Number 83 (Thursday, April 30, 1998)]
[Rules and Regulations]
[Pages 23678-23680]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-11474]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 721

[OPPTS-50622D; FRL-5782-5]
RIN 2070-AB27


Substituted Phenol; Significant New Use Rule

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is issuing a significant new use rule (SNUR) under section 
5(a)(2) of the Toxic Substances Control Act (TSCA) for the chemical 
substance described as substituted phenol, which is the subject of 
several premanufacture notices (PMN) P-89-1125, P-91-87, P-92-41, P-92-
511, P-94-1527, and P-94-1755. This rule would require persons who 
intend to manufacture, import, or process this substance for a 
significant new use to notify EPA at least 90 days before commencing 
any manufacturing, importing, or processing activities for a use 
designated by this SNUR as a significant new use. The required notice 
would provide EPA with the opportunity to evaluate the intended use 
and, if necessary, to prohibit or limit that activity before it can 
occur.

DATES: This rule is effective June 1, 1998.
FOR FURTHER INFORMATION CONTACT: Susan B. Hazen, Director, 
Environmental Assistance Division (7408), Office of Pollution 
Prevention and Toxics, Environmental Protection Agency, Rm. E-543B, 401 
M St., SW., Washington, DC 20460, telephone: (202) 554-1404, TDD: (202) 
554-0551; e-mail: TSCA-H[email protected].

SUPPLEMENTARY INFORMATION:
    Electronic Availability: Electronic copies of this document are 
available from the EPA Home Page at the Federal Register-Environmental 
Documents entry for this document under ``Laws and Regulations'' 
(http://www.epa.gov/fedrgstr/).
    This SNUR would require persons to notify EPA at least 90 days 
before commencing the manufacture, import, or processing of substituted 
phenol for the significant new uses designated herein. The required 
notice would provide EPA with information with which to evaluate an 
intended use and associated activities.

I. Authority

    Section 5(a)(2) of TSCA (15 U.S.C. 2604(a)(2)) authorizes EPA to 
determine that a use of a chemical substance is a ``significant new 
use.'' EPA must make this determination by rule after considering all 
relevant factors, including those listed in section 5(a)(2) of TSCA. 
Once EPA determines that a use of a chemical substance is a significant 
new use, section 5(a)(1)(B) of TSCA requires persons to submit a notice 
to EPA at least 90 days before they manufacture, import, or process the 
chemical substance for that use. Section 26(c) of TSCA authorizes EPA 
to take action under section 5(a)(2) of TSCA with respect to a category 
of chemical substances.
    Persons subject to this SNUR would comply with the same notice 
requirements and EPA regulatory procedures as submitters of 
premanufacture notices under section 5(a)(1) of TSCA. In particular, 
these requirements include the information submission requirements of 
section 5(b) and (d)(1), the exemptions authorized by section 5(h)(1), 
(h)(2), (h)(3), and (h)(5) and the regulations at 40 CFR part 720. Once 
EPA receives a SNUR notice, EPA may take regulatory action under 
section 5(e), 5(f), 6, or 7 to control the activities for which it has 
received a SNUR notice. If EPA does not take action, section 5(g) of 
TSCA requires EPA to explain in the Federal Register its reasons for 
not taking action.
    Persons who intend to export a substance identified in a proposed 
or final SNUR are subject to the export notification provisions of TSCA 
section 12(b). The regulations that interpret TSCA section 12(b) appear 
at 40 CFR part 707.

II. Applicability of General Provisions

    General regulatory provisions applicable to SNURs are codified at 
40 CFR part 721, subpart A. On July 27, 1988 (53 FR 28354) and July 27, 
1989 (54 FR 31298), EPA promulgated amendments to the general 
provisions which apply to this SNUR. In the Federal Register of August 
17, 1988 (53 FR 31252), EPA promulgated a ``User Fee Rule'' (40 CFR 
part 700) under the authority of TSCA section 26(b). Provisions 
requiring persons submitting SNUR notices to submit certain fees to EPA 
are discussed in detail in that Federal Register document. Interested 
persons should refer to these documents for further information.

III. Background

    EPA published a direct final SNUR for the chemical substance, which 
was the subject of PMNs P-89-1125, P-91-87, P-92-41, P-92-511, P-94-
1527, and P-94-1755 in the Federal Register of August 30, 1995 (60 FR 
45072) (FRL-4926-2). EPA received notice of intent to submit adverse 
comments following publication for this chemical substance. Therefore, 
as required by Sec. 721.160, the final SNUR for P-89-1125 et al. was 
withdrawn on June 26, 1997 (62 FR 34414) (FRL-5723-5) and a proposed 
rule on the substance was issued on June 26, 1997 (62 FR 34427) (FRL-
5723-6).
    The background and reasons for the SNUR are set forth in the 
preamble to the proposed rule. EPA received comments concerning the 
designated significant new uses in the proposed rule. The commenter 
proposed alternative significant new uses that would achieve the same 
result of eliminating environmental releases to surface waters. EPA's 
response to the comments is discussed in this document and EPA is 
issuing a modified final rule.
    The commenter stated that the recordkeeping involved to ensure 
compliance with the proposed SNUR would hinder the commercial 
development of the substance. The commenter proposed several 
alternatives. One was a SNUR limiting use to an ingredient in a 
photoresist formulation. The second was a SNUR limiting use and 
production volume (a 10,000 kilogram (kg) per year production volume 
limit was one possibility). The third alternative was a modified PMN 
choosing the binding box option for use in part I, section C(2)(a)(3) 
of the PMN form with the use designated as ``ingredient in photoresist 
formulation.'' The commenter also stated that TSCA section 12(b) export 
notification, especially for a formulated product ingredient which will 
probably remain confidential, is expected to become a significant 
commercial barrier.
    EPA rejected the binding box option as the binding box on a PMN 
form is not a legally enforceable requirement. While the Agency prefers 
to issue performance based regulations that directly address the 
potential hazard to human health or the environment such as the release 
to surface water designations in the proposed SNUR, EPA can and does 
issue SNURs that indirectly limit

[[Page 23679]]

releases based on information in the PMN as well as public comment.
    EPA's analysis of uses in photoresist formulations found no 
significant releases to surface waters. In addition, the SNUR is 
consistent with the existing use of the PMN substance and addresses the 
commenter's concerns of customer compliance with the SNUR. Based on 
these reasons, EPA is issuing a final SNUR limiting the use of the PMN 
substance to an ingredient in a photoresist formulation. Further, 
export notification will still apply as TSCA section 12(b) clearly 
states that any substance or any formulation containing that substance, 
subject to a rule under TSCA section 5 is subject to export 
notification.

IV. Applicability of SNUR to Uses Occurring Before Effective Date 
of the Final SNUR

    EPA has decided that the intent of section 5(a)(1)(B) of TSCA is 
best served by designating a use as a significant new use as of the 
date of proposal rather than as of the effective date of the rule. 
Because this SNUR was first published on August 30, 1995, as a direct 
final rule, that date will serve as the date after which uses would be 
considered to be new uses. If uses which had commenced between that 
date and the effective date of this rulemaking were considered ongoing, 
rather than new, any person could defeat the SNUR by initiating a 
significant new use before the effective date. This would make it 
difficult for EPA to establish SNUR notice requirements. Thus, persons 
who begin commercial manufacture, import, or processing of the 
substance for uses that would be regulated through this SNUR after 
August 30, 1995, would have to cease any such activity before the 
effective date of this rule. To resume their activities, such persons 
would have to comply with all applicable SNUR notice requirements and 
wait until the notice review period, including all extensions, expires. 
EPA, not wishing to unnecessarily disrupt the activities of persons who 
begin commercial manufacture, import, or processing for a significant 
new use before the effective date of the SNUR, has promulgated 
provisions to allow such persons to comply with this SNUR before it is 
promulgated. If a person were to meet the conditions of advance 
compliance as codified at Sec. 721.45(h) (53 FR 28354, July 17, 1988), 
the person would be considered to have met the requirements of the 
final SNUR for those activities. If persons who begin commercial 
manufacture, import, or processing of the substance between proposal 
and the effective date of the SNUR do not meet the conditions of 
advance compliance, they must cease that activity before the effective 
date of the rule. To resume their activities, these persons would have 
to comply with all applicable SNUR notice requirements and wait until 
the notice review period, including all extensions, expires.

V. Economic Analysis

    EPA has evaluated the potential costs of establishing significant 
new use notice requirements for potential manufacturers, importers, and 
processors of the chemical substance at the time of the direct final 
rule. The analysis is unchanged for the substance in this rule. The 
Agency's complete economic analysis is available in the public record 
for this rule (OPPTS-50622D).

VI. Public Record

    The official record for this rulemaking, as well as the public 
version, has been established for this rulemaking under docket control 
number OPPTS-50622D (including comments and data submitted 
electronically). A public version of the record, including printed, 
paper versions of electronic comments, which does not include any 
information claimed as Confidential Business Information (CBI), is 
available for inspection from 12 noon to 4 p.m., Monday through Friday, 
excluding legal holidays. The official rulemaking record is located in 
the TSCA NonConfidential Information Center, Rm. NE-B607, 401 M St., 
SW., Washington, DC.

VII. Regulatory Assessment Requirements

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), this 
action is not a ``significant regulatory action'' subject to review by 
the Office of Management and Budget (OMB). In addition, this action 
does not impose any enforceable duty or contain any unfunded mandate as 
described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4), 
or require prior consultation with State officials as specified by 
Executive Order 12875 (58 FR 58093, October 28, 1993), or involve 
special considerations of environmental justice related issues as 
required by Executive Order 12898 (59 FR 7629, February 16, 1994).
    An agency may not conduct or sponsor, and a person is not required 
to respond to, an information collection request unless it displays a 
currently valid OMB control number. The information collection 
requirements related to this action have already been approved by OMB 
pursuant to the Paperwork Reduction Act (PRA), 44 U.S.C. 3501 et seq., 
under OMB control number 2070-0012 (EPA ICR No. 574). This action does 
not impose any burdens requiring additional OMB approval. The public 
reporting burden for this collection of information is estimated to 
average 100 hours per response. The burden estimate includes the time 
needed to review instructions, search existing data sources, gather and 
maintain the data needed, and complete and review the collection of 
information.
    In addition, pursuant to section 605(b) of the Regulatory 
Flexibility Act (RFA) (5 U.S.C. 601 et seq.), the Agency has previously 
certified, as a generic matter, that the promulgation of a SNUR does 
not have a significant adverse economic impact on a substantial number 
of small entities. The Agency's generic certification for promulgation 
of new SNURs appears on June 2, 1997 (62 FR 29684) (FRL-5597-1) and was 
provided to the Chief Counsel for Advocacy of the Small Business 
Administration.

VIII. Submission to Congress and the General Accounting Office

    Under 5 U.S.C. 801(a)(1)(A), as added by the Small Business 
Regulatory Enforcement Fairness Act of 1996, the Agency has submitted a 
report containing this rule and other required information to the U.S. 
Senate, the U.S. House of Representatives, and the Comptroller General 
of the General Accounting Office prior to publication of this rule in 
today's Federal Register. This is not a major rule as defined by 5 
U.S.C. 804(2).

List of Subjects in 40 CFR Part 721

    Environmental protection, Chemicals, Hazardous substances, 
Reporting and recordkeeping requirements.

    Dated: April 21, 1998.

Charles M. Auer,

Director, Chemical Control Division, Office of Pollution Prevention and 
Toxics.

    Therefore, 40 CFR part 721 is amended as follows:

PART 721--[AMENDED]

    1. The authority citation for part 721 continues to read as 
follows:

    Authority: 15 U.S.C. 2604, 2607, and 2625.

    2. By adding new Sec. 721.5867 to read as follows:


Sec. 721.5867   Substituted phenol.

    (a) Chemical substance and significant new uses subject to 
reporting. (1) The chemical substance generically

[[Page 23680]]

identified as substituted phenol (PMNs P-89-1125, P-91-87, P-92-41, P-
92-511, P-94-1527, and P-94-1755) is subject to reporting under this 
section for the significant new uses described in paragraph (a)(2) of 
this section.
    (2) The significant new uses are:
    (i) Industrial, commercial, and consumer activities. Requirements 
as specified in Sec. 721.80(j) (ingredient in a photoresist 
formulation).
    (ii) [Reserved]
    (b) Specific requirements. The provisions of subpart A of this part 
apply to this section except as modified by this paragraph.
    (1) Recordkeeping. Recordkeeping requirements as specified in 
Sec. 721.125 (a), (b), (c), and (i) are applicable to manufacturers, 
importers, and processors of this substance.
    (2) Limitations or revocation of certain notification requirements. 
The provisions of Sec. 721.185 apply to this section.

[FR Doc. 98-11474 Filed 4-29-98; 8:45 am]
BILLING CODE 6560-50-F