[Federal Register Volume 71, Number 132 (Tuesday, July 11, 2006)]
[Proposed Rules]
[Pages 39035-39046]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E6-10858]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 721

[EPA-HQ-OPPT-2005-0036; FRL-7733-9]
RIN 2070-AJ19


Mercury Switches in Motor Vehicles; Proposed Significant New Use 
Rule

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: EPA is proposing a significant new use rule (SNUR) under 
section 5(a)(2) of the Toxic Substances Control Act (TSCA) for 
elemental mercury (CAS No. 7439-97-6) used in convenience light 
switches, anti-lock braking system (ABS) switches, and active ride 
control system switches in certain motor vehicles. This action would 
require persons who intend to manufacture (including import) or process 
mercury for these uses, including when mercury is imported or processed 
as part of an article, to notify EPA at least 90 days before commencing 
such activity. EPA believes that this action is necessary because 
manufacturing, processing, use, or disposal of mercury switches may 
produce significant changes in human and environmental exposures. The 
required notice would provide EPA with the opportunity to evaluate the 
use of mercury in these switches, and, if necessary, to prohibit or 
limit such activity before it occurs to prevent unreasonable risk of 
injury to human health or the environment.

DATES: Comments must be received on or before September 11, 2006.

ADDRESSES: Submit your comments, identified by docket identification 
(ID) number EPA-HQ-OPPT-2005-0036, by one of the following methods:
     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the on-line instructions for submitting comments.
     Mail: Document Control Office (7407M), Office of Pollution 
Prevention and Toxics (OPPT), Environmental Protection Agency, 1200 
Pennsylvania Ave., NW., Washington, DC 20460-0001.
     Hand Delivery: OPPT Document Control Office (DCO), EPA 
East, Rm. 6428, 1201 Constitution Ave., NW., Washington, DC. Attention: 
Docket ID number EPA-HQ-OPPT-2005-0036. The DCO is open from 8 a.m. to 
4 p.m., Monday through Friday, excluding legal holidays. The telephone 
number for the DCO is (202) 564-8930. Such deliveries are only accepted 
during the DCO's normal hours of operation, and special

[[Page 39036]]

arrangements should be made for deliveries of boxed information.
    Instructions: Direct your comments to docket ID number EPA-HQ-OPPT-
2005-0036. EPA's policy is that all comments received will be included 
in the public docket without change and may be made available on-line 
at http://www.regulations.gov, including any personal information 
provided, unless the comment includes information claimed to be 
Confidential Business Information (CBI) or other information whose 
disclosure is restricted by statute. Do not submit information that you 
consider to be CBI or otherwise protected through regulations.gov or e-
mail. The regulations.gov website is an ``anonymous access'' system, 
which means EPA will not know your identity or contact information 
unless you provide it in the body of your comment. If you send an e-
mail comment directly to EPA without going through regulations.gov, 
your e-mail address will be automatically captured and included as part 
of the comment that is placed in the public docket and made available 
on the Internet. If you submit an electronic comment, EPA recommends 
that you include your name and other contact information in the body of 
your comment and with any disk or CD ROM you submit. If EPA cannot read 
your comment due to technical difficulties and cannot contact you for 
clarification, EPA may not be able to consider your comment. Electronic 
files should avoid the use of special characters, any form of 
encryption, and be free of any defects or viruses. For additional 
information about EPA's public docket, visit the EPA Docket Center 
homepage at http://www.epa.gov/epahome/dockets.htm.
    Docket: All documents in the docket are listed in the 
regulations.gov index. Although listed in the index, some information 
is not publicly available, e.g., CBI or other information whose 
disclosure is restricted by statute. Certain other material, such as 
copyrighted material, will be publicly available only in hard copy. 
Publicly available docket materials are available either electronically 
at http://www.regulations.gov or in hard copy at the OPPT Docket, EPA 
Docket Center (EPA/DC), EPA West, Rm. B102, 1301 Constitution Ave., 
NW., Washington, DC. The EPA Docket Center 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.

FOR FURTHER INFORMATION CONTACT: For general information contact: Colby 
Lintner, Regulatory Coordinator, Environmental Assistance Division 
(7408M), Office of Pollution Prevention and Toxics, Environmental 
Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460-
0001; telephone number: (202) 554-1404; e-mail address: [email protected].
    For technical information contact: Benjamin Lim, National Program 
Chemicals Division (7404T), Office of Pollution Prevention and Toxics, 
Environmental Protection Agency, 1200 Pennsylvania Ave., NW., 
Washington, DC 20460-0001; telephone number: (202) 566-0481; e-mail 
address: [email protected].

SUPPLEMENTARY INFORMATION:

I. General Information

A. Does this Action Apply to Me?

    You may be potentially affected by this action if you manufacture, 
(defined by statute to include import) or process elemental mercury for 
use in certain motor vehicle switches. Persons who intend to import any 
chemical substance subject to TSCA must comply with the TSCA section 13 
(15 U.S.C. 2612) import certification requirements, and the regulations 
codified at 19 CFR 12.118 through 12.127 and 127.28. Those persons must 
certify that they are in compliance with applicable rules or orders 
under TSCA including any SNUR. The EPA policy in support of import 
certification appears at 40 CFR part 707, subpart B. In addition, any 
persons who export or intend to export a chemical substance that is the 
subject of this proposed rule on or after August 10, 2006 are subject 
to the export notification provisions of TSCA section 12(b) (15 U.S.C. 
2611(b)) (see 40 CFR 721.20), and must comply with the export 
notification requirements in 40 CFR part 707, subpart D. Potentially 
affected entities may include, but are not limited to:
     Manufacturers and processors of automotive electrical 
switches (NAICS 335931), e.g., manufacturers and processors of mercury 
switches in convenience lights, ABS acceleration sensors, and ride 
control sensors.
     Manufacturers and processors of transportation equipment 
(NAICS 336), e.g., manufacturers of motor vehicles and motor vehicle 
parts containing mercury switches.
     Automotive repair and maintenance (NAICS 8111), e.g., auto 
mechanics who replace or install new mercury switches as part of repair 
and maintenance of vehicles.
     Motor vehicle part (used) wholesalers (NAICS 4211), e.g., 
auto dismantlers who dismantle motor vehicles and sell used parts.
    This listing is not intended to be exhaustive, but rather provides 
a guide for readers regarding entities likely to be affected by this 
action. Other types of entities not listed in this unit could also be 
affected. The North American Industrial Classification System (NAICS) 
codes have been provided to assist you and others in determining 
whether this action might apply to certain entities. To determine 
whether you or your business may be affected by this action, you should 
carefully examine the applicability provisions in 40 CFR 721.5 for 
SNUR-related obligations. 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. What Should I Consider as I Prepare My Comments for EPA?

    1. Submitting CBI. Do not submit this information to EPA through 
regulations.gov or e-mail. Clearly mark the part or all of the 
information that you claim to be CBI. For CBI information in a disk or 
CD ROM that you mail to EPA, mark the outside of the disk or CD ROM as 
CBI and then identify electronically within the disk or CD ROM the 
specific information that is claimed as CBI. In addition to one 
complete version of the comment that includes information claimed as 
CBI, a copy of the comment that does not contain the information 
claimed as CBI must be submitted for inclusion in the public docket. 
Information so marked will not be disclosed except in accordance with 
procedures set forth in 40 CFR part 2.
    2. Tips for preparing your comments. When submitting comments, 
remember to:
    i. Identify the document by docket number and other identifying 
information (subject heading, Federal Register date, and page number).
    ii. Follow directions. The Agency may ask you to respond to 
specific questions or organize comments by referencing a Code of 
Federal Regulations (CFR) part or section number.
    iii. Explain why you agree or disagree; suggest alternatives and 
substitute language for your requested changes.
    iv. Describe any assumptions and provide any technical information 
and/or data that you used.
    v. If you estimate potential costs or burdens, explain how you 
arrived at the estimate.

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    vi. Provide specific examples to illustrate your concerns and 
suggested alternatives.
    vii. Explain your views as clearly as possible, avoiding the use of 
profanity or personal threats.
    viii. Make sure to submit your comments by the comment period 
deadline identified.

II. Background

A. What Action is the Agency Taking?

    This proposed SNUR would require persons to notify EPA at least 90 
days before commencing the manufacture or processing of elemental 
mercury for use in convenience light switches, ABS switches, and ride 
control switches in certain motor vehicles, including when mercury is 
imported or processed as part of such an article. EPA believes this 
action is necessary because manufacturing, processing, use, or disposal 
of mercury in these switches may produce significant changes in human 
and environmental exposures.

B. What is the Agency's Authority for Taking this Action?

    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 and a SNUR is effective, TSCA section 5(a)(1)(B) requires 
persons to submit a significant new use notice (SNUN) to EPA at least 
90 days before they manufacture or process the substance for that use.

C. Applicability of General Provisions

    General provisions for SNURs appear in 40 CFR part 721, subpart A. 
These provisions describe persons subject to the rule, recordkeeping 
requirements, exemptions to reporting requirements, and applicability 
of the rule to uses occurring before the effective date of the final 
rule. However, Sec.  721.45(f) would not apply to this proposed SNUR. 
As a result, persons subject to the provisions of this rule would not 
be exempt from significant new use reporting if they imported or 
processed elemental mercury as part of an article (see Sec.  721.5).
    Provisions relating to user fees appear at 40 CFR part 700. Persons 
subject to this proposed SNUR are required to comply with the same 
notice requirements and EPA regulatory procedures as submitters of 
premanufacture notices (PMNs) under section 5(a)(1)(A) of TSCA. Those 
requirements include the information submission requirements of TSCA 
sections 5(b) and 5(d)(1), the exemptions authorized by TSCA section 
5(h)(1), (2), (3), and (5) and the regulations at 40 CFR part 720 (see 
40 CFR 721.1(c)). Once EPA receives a significant new use notice 
(SNUN), EPA may take regulatory action under TSCA sections 5(e), 5(f), 
6 or 7, as appropriate, to control the activities described in the 
SNUN. If EPA does not take action after receipt of a SNUN, EPA is 
required under TSCA section 5(g) to explain in the Federal Register its 
reasons for not taking action.
    Persons who intend to export a chemical substance identified in a 
proposed or final SNUR are subject to the export notification 
provisions of TSCA section 12(b). The regulations that implement TSCA 
section 12(b) appear at 40 CFR part 707, subpart D. Persons who intend 
to import a chemical substance identified in a final SNUR are subject 
to the TSCA section 13 import certification requirements, which appear 
at 19 CFR 12.118 through 12.127 and 127.28. Such persons must certify 
that they are in compliance with TSCA requirements. The EPA policy on 
import certification appears at 40 CFR part 707, subpart B.

III. Summary of Proposed Rule

A. Background

    Because of its unique properties, elemental mercury has been used 
in many industrial processes and consumer products. Mercury switches 
exploit the ability of small quantities of mercury to conduct 
electricity and remain one of the largest categories of mercury product 
uses. In addition to its unique properties, mercury also may cause 
adverse effects in humans and wildlife under certain conditions. These 
effects can vary depending on the form of mercury to which a person is 
exposed and the severity, level, and length of exposure. Most human and 
wildlife exposure to mercury comes from eating fish contaminated with 
methylmercury, an organic mercury compound that is formed when certain 
microorganisms and other natural processes convert mercury to 
methylmercury, which can accumulate in fish. Methylmercury is a highly 
toxic organic form of mercury and can cause neurological impairment. 
Fetuses, infants, and young children are more sensitive to mercury than 
adults.
    Mercury switches were used for many years in motor vehicles in hood 
and trunk convenience lights, ABS, and ride control systems. In the 
U.S., most motor vehicles that reach the end of their useful life are 
dismantled, so that the useful parts can be reused, and steel and other 
materials can be recycled. During the recycling process, the vehicles 
are dismantled, crushed, shredded, and vehicle scrap is separated into 
the ferrous, nonferrous, and auto shredder residue fractions. All of 
these fractions have the potential to be contaminated with mercury 
released when switches are ruptured during processing. The steel 
fractions are sent to electric arc furnaces (EAFs) and other scrap 
consumers to be melted and refined for use in steel products. These 
processes use intense heat which can vaporize mercury. Mercury can then 
be released in air emissions from these facilities. Motor vehicles are 
believed to be the largest single source of mercury in EAF emissions. 
EAFs are the largest manufacturing source of mercury air emissions in 
the U.S. and the fourth largest of all U.S. sources.
    Mercury in the air eventually settles into water or onto land where 
it can be washed into water. Once mercury is deposited in sediment, 
certain microorganisms and other processes in the environment can 
convert some of it into methylmercury. Methylmercury persists in the 
environment and can build up in fish, shellfish, and animals that eat 
fish. The primary way that people and wildlife are exposed to mercury 
is by eating methylmercury-contaminated fish. By 2004, forty-four 
states, one territory, and two Indian tribes had issued fish 
consumption advisories recommending that some people limit their 
consumption of fish from certain waterbodies as a result of 
methylmercury found in fish. The nervous system is particularly 
sensitive to the adverse effects of methylmercury, with the developing 
fetus and young child among those particularly at risk from exposure to 
high amounts of methylmercury. For this reason, in 2004, EPA and the 
Food and Drug Administration (FDA) jointly issued a national advisory 
providing advice to women of childbearing age and young children on 
mercury in fish and shellfish.
    Because of increasing concerns about exposure to man-made sources 
of mercury and the availability of suitable mercury-free alternatives, 
attempts have been made at the Federal and state level to limit the use 
of mercury in certain products. American automakers voluntarily 
eliminated use of mercury switches in automobiles as of January 1, 
2003. Those foreign auto manufacturers that had used mercury switches 
have also eliminated this use. Over the next 20 years, most of the 
automobiles containing mercury switches will reach

[[Page 39038]]

the end of their life and be recycled, ultimately passing through EAFs 
and other scrap consumers. Many states and non-governmental 
organizations have taken actions to remove or encourage the removal of 
mercury switches from automobiles before they are recycled. For these 
reasons, the potential for mercury emissions being released from scrap 
consumption will decrease as fewer automobiles containing mercury 
switches remain to be processed into scrap.
    While new automobiles are no longer being manufactured containing 
mercury switches, some mercury switches are still available as 
aftermarket replacement parts. Mercury switches generally last the 
lifetime of the automobile; however, replacement is needed if a 
collision or other action damages the component containing the switch. 
Mercury switches are not still available for replacement in hood and 
trunk convenience lights, because mercury-free switches can be easily 
substituted as replacement parts. However, there is no existing 
mercury-free alternative for mid-life replacement of ABS and ride 
control switches. Therefore, a limited number of mercury ABS and ride 
control switches will remain available as replacement parts for pre-
2003 automobiles. EPA is proposing to exclude from this proposed SNUR 
mercury switches manufactured as aftermarket replacement parts for ABS 
and ride control systems in vehicles manufactured before January 1, 
2003. In addition to the fact that there are no feasible mercury-free 
alternatives, EPA is aware that the demand for mercury switches as 
aftermarket replacement parts is currently low and will become 
negligible when most pre-2003 vehicles containing mercury switches in 
ABS and ride control systems have reached the end of their lives.

B. Proposed Action

    EPA believes that any resumption of manufacture or processing of 
mercury for the significant new use would lead to an increase in 
mercury emissions at EAFs and other facilities involved in scrap 
recycling and consumption. Therefore, EPA is proposing to designate as 
significant new uses manufacture or processing of elemental mercury for 
the following:
     Use in convenience light switches in new motor vehicles.
     Use in convenience light switches as new aftermarket 
replacement parts for motor vehicles.
     Use in switches in ABS in new motor vehicles.
     Use in switches in ABS as new aftermarket replacement 
parts for motor vehicles that were manufactured after January 1, 2003.
     Use in switches in active ride control systems in new 
motor vehicles.
     Use in switches in active ride control systems as new 
aftermarket replacement parts for motor vehicles that were manufactured 
after January 1, 2003.
    EPA defines motor vehicle for this proposed SNUR by referencing the 
definition used in the emissions control regulations developed under 
the Clean Air Act (CAA). That definition, which is found at 40 CFR 
85.1703, is as follows:
    (a) For the purpose of determining the applicability of section 
216(2), a vehicle which is self-propelled and capable of transporting a 
person or persons or any material or any permanently or temporarily 
affixed apparatus shall be deemed a motor vehicle, unless any one or 
more of the criteria set forth below are met, in which case the vehicle 
shall be deemed not a motor vehicle and excluded from the operation of 
the Act:
    (1) The vehicle cannot exceed a maximum speed of 25 miles per hour 
over level, paved surfaces; or
    (2) The vehicle lacks features customarily associated with safe and 
practical street or highway use, such features including, but not being 
limited to, a reverse gear (except in the case of motorcycles), a 
differential, or safety features required by state and/or federal law; 
or
    (3) The vehicle exhibits features which render its use on a street 
or highway unsafe, impractical, or highly unlikely, such features 
including, but not being limited to, tracked road contact means, an 
inordinate size, or features ordinarily associated with military combat 
or tactical vehicles such as armor and/or weaponry.
    (b) The Administrator will, from time to time, publish in the 
Federal Register a list of vehicles which have been determined to be 
excluded. This list will be in appendix VI of 40 CFR part 85.
    This definition, which includes passenger cars, light duty trucks, 
heavy duty vehicles, and motorcycles, encompasses most motor vehicles 
intended for highway use. In addition to typical passenger cars such as 
sedans and station wagons, the motor vehicle definition also includes 
categories such as pickups, passenger and cargo vans, minivans, and 
sport utility vehicles. The larger passenger carrying vehicles such as 
buses as well as the larger freight carrying vehicles such as semi 
trucks are also included. EPA believes that it is important to take 
advantage of the regulated community's familiarity with the Air 
Program's interpretation of ``motor vehicles.'' Should the current 
definition of motor vehicle at 40 CFR 85.1703 be amended, the 
definition used for this SNUR would change as a result. Should that 
occur, and should EPA determine that the definition is no longer 
appropriate for use in this SNUR, EPA could take appropriate action to 
amend the regulatory text at Sec.  721.10068.
    The Alliance of Automobile Manufacturers (AAM) is a trade 
association representing nine new car and light truck manufacturers. 
The AAM reports that all cars and light trucks built since 2003 are 
free of mercury switches (Ref. 1). Foreign automobile manufacturers not 
represented by the AAM discontinued the use of mercury auto switches in 
the 1990s. The Truck Manufacturers Association has also indicated that 
trucks have discontinued their use of all types of mercury switches 
(Ref. 2). Passenger cars and light trucks account for about 96% of the 
vehicles on the road and have been the primary focus of most efforts to 
remove mercury switches from vehicles (Ref. 2). Although the other 
types of motor vehicles have received less attention, EPA believes that 
mercury switches are not being used in convenience lights, ABS, or ride 
control systems in any new motor vehicles and that it is appropriate to 
include them in this proposed SNUR. EPA requests comment on whether 
there are mercury switches being used for convenience lights, ABS, or 
ride control systems in any new vehicles that would be covered by the 
proposed motor vehicle definition.
    For this SNUR, EPA is proposing to lift the exemption at Sec.  
721.45(f) so that persons importing or processing mercury as part of an 
article would be subject to Sec.  721.5. EPA believes this exemption is 
not appropriate to this SNUR because mercury-containing switches are 
articles and should be covered by the SNUR. Furthermore, it is possible 
to reclaim mercury from certain articles and use that mercury to 
produce automotive switches. EPA is asking for comments on this 
proposed approach. See Unit VII.D.
    This proposed rule, when finalized, would require persons who 
intend to manufacture or process elemental mercury for the significant 
new uses identified in this action to submit a SNUN at least 90 days 
before commencing such activity. The required notice would provide EPA 
with the opportunity to evaluate the intended use, and if necessary, to 
prohibit or limit that use before it occurs. Given that

[[Page 39039]]

mercury switches are no longer being used in new motor vehicles and 
given the availability of effective mercury-free alternatives, the 
declining use of mercury in products, and the growing number of states 
that have banned the use of mercury automotive switches, EPA believes 
it is unlikely that companies would resume the use of automotive 
mercury switches (Ref. 3). In the event that the decline in the use of 
mercury switches as replacement parts in ABS and ride control systems 
of pre-2003 motor vehicles does not progress as described in this 
proposed rule, EPA may pursue additional regulatory action as 
appropriate under TSCA sections 4, 6, and 8.

IV. Overview of Mercury and Mercury Auto Switches

    There are several documents available which summarize the extensive 
literature that exists on mercury. EPA's Mercury Report to Congress 
(Ref. 4) provides a complete discussion of mercury as it was understood 
in 1997. A ``Toxicological Profile for Mercury,'' which covers all 
forms of mercury, is available from the Agency for Toxic Substances and 
Disease Registry (ATSDR) (Ref. 5). EPA's Integrated Risk Information 
System (IRIS), an electronic database of computer files containing 
descriptive and quantitative information, peer-reviewed summaries, and 
toxicological reviews, includes an entry for methylmercury (Ref. 6). A 
thorough review of the human health effects of methylmercury can be 
found in the National Research Council (NRC) of the National Academies 
of Science report titled ``Toxicological Effects of Methylmercury'' 
(Ref. 7). More recently, the Regulatory Impact Analysis (RIA) of the 
Clean Air Mercury Rule (CAMR) (Ref. 8), published in March 2005, 
provides an update of much of the science as it relates to the effects 
of mercury emissions. These documents are the major sources of the 
information summarized in this unit.

A. Chemistry

    This proposed rule applies to elemental mercury, which is a 
naturally occurring element, CAS registry number 7439-97-6. The 
properties and behavior of mercury are related to its three forms: 
Elemental or metallic mercury, inorganic mercury compounds, and organic 
mercury compounds. Elemental or metallic mercury, which is a silver-
white metal, is the pure form of mercury, not combined with any other 
elements. Although elemental mercury is liquid at room temperature and 
pressure, it vaporizes readily when exposed to air. Most of the mercury 
in the atmosphere is elemental mercury vapor. Inorganic mercury 
compounds take the form of mercury salts and are generally white powder 
or crystals, with the exception of mercuric sulfide (cinnabar), which 
is red. Organic mercury compounds, such as methylmercury, are formed 
when mercury combines with carbon. In the air, elemental mercury vapor 
can be transported, changed into other forms of mercury, and deposited 
in water or soils in rain or snow. Most of the mercury in water, soil, 
sediments, or biota are in the forms of inorganic mercury salts and 
organic forms of mercury. Microscopic organisms convert inorganic 
mercury into methylmercury, which is the most common organic mercury 
compound found in the environment. Methylmercury is the form of mercury 
that accumulates in the food chain. It can reach levels in fish that 
can be toxic to people and wildlife who consume mercury-contaminated 
fish (Ref. 5).

B. Environmental Fate

    Mercury is well known as a highly persistent, bioaccumulative, 
toxic pollutant that is widespread in the environment. Because it is a 
naturally occurring element, it is present in the environment from 
natural sources, such as weathering of rocks, as well as from 
anthropogenic (human) activities, such as industrial combustion. 
Mercury in the air eventually settles into water or onto land where it 
can be washed into water. Once mercury is deposited in sediments, 
certain microorganisms and other natural processes can convert some 
portion of it into methylmercury, a highly toxic organic form of 
mercury. While all forms of mercury can bioaccumulate, methylmercury 
generally accumulates to a greater extent then other forms of mercury. 
Methylmercury can build up (bioconcentrate) in fish, shellfish, and 
animals that eat fish. The concentrations of methylmercury in organisms 
higher in the food chain can be 10\4\ - 10\6\ times higher than the 
original concentration of methylmercury in the water (Ref. 8). The 
primary way people in the U.S. are exposed to mercury is by eating fish 
containing methylmercury. By 2004, forty-four states, one territory, 
and two Indian tribes had issued fish consumption advisories 
recommending that some people limit their consumption of fish from 
certain water bodies as a result of methylmercury found in fish (Ref. 
9).
    Studies have indicated that because mercury persists in the 
environment and methylmercury biomagnifies up the foodchain, a wide 
variety of species and ecosystems may be exposed to excessive levels of 
mercury in the environment. Because of the complexity of the mercury 
cycle, it is difficult to predict the original source of mercury found 
at a given location. Mercury levels may be due to contributions from a 
mix of local, regional, and long range mercury sources. Mercury from 
all of these sources will be from both natural and anthropogenic 
emissions. Although there is uncertainty as to the exact amount, EPA 
has estimated that about 17% of U.S. mercury deposition is from U.S. 
and Canadian man-made sources and about 83% is from global sources, 
including natural, re-emitted, and international man-made sources (Ref. 
10). A large anthropogenic source of mercury emissions is EAFs, which 
release mercury vapor when they process scrap from old cars containing 
mercury switches, among other items.
    Mercury cycles through the atmosphere and ends up in watersheds, in 
water bodies and sediment, and ultimately can accumulate in fish. 
Mercury-contaminated fish may potentially be consumed by humans and 
wildlife. Despite recent advances, current understanding does not allow 
the prediction of specific ecosystem responses to mercury emissions. 
The analyses conducted for the CAMR are based on the best available 
information and are applicable here. Both the CAMR and this proposed 
rule are concerned with the effects of mercury emissions from 
anthropogenic sources. The CAMR RIA developed estimates for its 
benefits analysis based on three elements:
     Results from an ecosystem scale exposure model.
     Results from an analysis of U.S. fishing activity.
     Results from a study of mercury concentrations in consumer 
fish species.
    One of the conclusions of the ecosystem scale modeling was that the 
best available science suggests that over the long term, changes in 
mercury concentrations in freshwater fish will be proportional to 
changes in mercury inputs. In water bodies where atmospheric deposition 
of inorganic mercury is the major source of mercury, it is expected 
that long term reductions in fish mercury concentrations will be 
proportional to declines in atmospheric mercury deposition (Ref. 8). 
While it is not currently possible to quantify ecological benefits, it 
can be qualitatively stated that reduction in mercury emissions from 
various sources could lead to improvements in overall ecosystem health 
(Ref. 8). Applying similar logic, it can be qualitatively stated that 
increases in mercury emissions could lead to increases in mercury 
concentrations in the

[[Page 39040]]

environment and reduction in overall ecosystem health.

C. Exposure Pathways

    Mercury exists in various forms and people are exposed to each in 
different ways. Consumption of methylmercury-contaminated fish is the 
most important nonoccupational source of mercury exposure to people in 
the U.S. Episodes of severe methylmercury poisoning in Japan and Iraq 
indicated that consumption of food contaminated with methylmercury 
could be highly toxic to adults, children, and developing fetuses. 
Mothers showing few if any signs of nervous system damage gave birth to 
infants with severe disabilities, confirming that developing fetuses 
were more sensitive to methylmercury than adults. Although these 
situations described exposures to methylmercury far greater than those 
from typical dietary consumption in the U.S., data from those episodes 
as well as epidemiological studies have been used by EPA to support its 
concerns about potential methylmercury exposures (Ref. 7).
    In 2001, EPA confirmed its 1995 oral Reference Dose (RfD) for 
methylmercury of 0.1 micrograms/kilogram ([mu]g/kg) body weight-day 
(bw/d) as an exposure without recognized adverse effects (Ref. 6). 
Consumption of fish with higher methylmercury levels can lead to 
elevated mercury levels in the bloodstream and hair. Mercury in blood 
and hair was measured as part of the 1999-2002 National Health and 
Nutrition Examination Survey (NHANES). The 1999-2002 NHANES data showed 
that about 6% of women of childbearing age (16-49 years of age) had 
blood mercury concentrations greater than 5.8 [mu]g/L (which is a blood 
mercury level equivalent to the current RfD) (Ref. 11).
    Another less common human exposure pathway for mercury is breathing 
elemental mercury vapor. This exposure can occur when elemental mercury 
is released or when products that contain elemental mercury break and 
release mercury to the air, particularly in warm or poorly-ventilated 
indoor spaces. Inhalation of elemental mercury vapor is the main source 
of occupational exposure to mercury. Industries that use elemental 
mercury in their processes have had the largest occupational mercury 
exposure; however, the imposition of workplace exposure limits on 
mercury is expected to reduce worker exposure (Ref. 5). Workers may 
also transport mercury home on contaminated clothing and shoes. There 
have been reports of increased mercury exposure to children of workers 
who are exposed in the workplace. Persons living near mercury 
production, use, and disposal sites may be exposed to mercury that has 
been released from these sites to the surrounding air, water, and soil 
(Ref. 5).
    Bioaccumulation of methylmercury up through the food chain is also 
the most important exposure pathway for both aquatic and terrestrial 
wildlife; although methylmercury bioaccumulates more strongly in 
aquatic than in terrestrial ecosystems. In fish, methylmercury tissue 
concentrations increase with increasing age and size of the fish. 
Methylmercury-contaminated fish are then consumed by fish-eating 
wildlife, which accumulate methylmercury to levels above those in the 
original prey items. The methylmercury continues to concentrate as 
fish-eating wildlife are consumed by larger predators. A well known 
example of bioaccumulation through the food chain is the endangered 
Florida panther, which was found to have elevated methylmercury levels 
due to consumption of raccoons that were contaminated with 
methylmercury from eating methylmercury-contaminated fish and shellfish 
(Ref. 4).
    Birds, particularly coastal species or those eating prey that feed 
in estuaries, are most impacted by mercury contamination (Ref. 12). In 
birds, tissue mercury concentrations associated with toxicity have been 
found to be relatively similar, regardless of bird species, dietary 
exposure level, and length of exposure. Frank neurological signs are 
generally associated with brain mercury concentrations of 15 [mu]g/gram 
(g) (wet weight) or higher and 30 [mu]g/g or more in liver and kidney 
(Ref. 4). In mammals, levels of exposure that induce mercury poisoning 
vary among species. Death occurs in sensitive land mammal species at 
0.1-0.5 [mu]g/g bw/d, or 1.0-5.0 [mu]g/g in the diet (Ref. 4).

D. Health and Environmental Effects

    The factors that determine how severe the health effects are from 
mercury exposure include the chemical form of mercury, the dose, the 
duration of exposure, the route of exposure (e.g., breathing, eating) 
and the age and health of the person exposed. Both dietary and non-
dietary exposure to mercury can result in a variety of health effects. 
In the extreme cases of methylmercury poisoning that occurred in Japan 
and Iraq, some people who consumed methylmercury-contaminated food 
developed permanent damage to the brain and kidneys (Ref. 5). 
Nondietary exposure to elemental mercury vapors also affects the 
nervous system. Different forms of mercury have different effects on 
the nervous system, because they move through the body in different 
ways. However, both ingestion of methylmercury and inhalation of 
elemental mercury vapors can cause a variety of symptoms, including 
personality changes (irritability, nervousness), tremors, changes in 
vision, deafness, muscle incoordination, loss of sensation, and 
difficulties with memory (Ref. 5). The nervous system of the developing 
fetus appears to be the most sensitive target for adverse effects of 
methylmercury. Prenatal mercury exposure may cause children to perform 
poorly on neurobehavioral tests that measure attention, fine motor 
function, language skills, visual-spatial abilities, and verbal memory 
(Ref. 7).
    Recent epidemiological studies exploring the relationship between 
methylmercury and cardiovascular impacts in men have yielded 
conflicting conclusions; however, there is enough information to 
justify additional research on this topic. Some research also suggests 
that exposure to methylmercury may lessen the beneficial effects of 
fish consumption. Methylmercury has been classified as a ``possible'' 
human carcinogen, based on limited human and animal data. Additional 
research is needed to corroborate studies that have suggested that 
methylmercury exposure could result in genetic, reproductive, renal, 
hematologic or immune system impacts (Ref. 4).
    Both short-term exposure to high levels or long-term exposure to 
lower levels of elemental mercury vapor can irritate the lining of the 
mouth and the lungs. Other effects from exposure to elemental mercury 
vapor include nausea, vomiting, diarrhea, increase in blood pressure or 
heart rate, skin rashes, and eye irritation (Ref. 5).
    In wildlife, mercury contamination has been shown to cause death as 
well as sublethal effects. Although mercury consumption can result in 
bird death, a variety of sublethal effects on reproduction and behavior 
have been found to occur in birds at dietary concentrations well below 
those that can cause overt toxicity (Ref. 4). Methylmercury 
contamination in birds can adversely affect breeding by causing 
reduction in the number of eggs laid and increased embryo mortality 
(Ref. 12). Methylmercury attacks the central nervous system in 
mammalian wildlife as well as in humans. Methylmercury ingestion can 
also cause reduced food intake, weight loss, muscular atrophy and 
damage to an animal's heart, lungs, liver, kidneys and stomach (Ref. 
4). Mercury contamination has been documented in endangered species,

[[Page 39041]]

such as the Florida panther and the wood stork, as well as in 
populations of loons, eagles, and furbearers such as mink and otters. 
Recent assessments have concluded that mercury exposures may have 
contributed to the decline in the endangered Florida panther in the 
Florida Everglades, most likely from decreased reproductive success in 
addition to death (Ref. 4).

E. Use Information

    Mercury has been widely used in industry and consumer products 
because of its diverse properties, such as conducting electricity, 
responding to temperature and pressure changes, and forming alloys with 
almost all other metals. Use of mercury has declined because its 
toxicity has resulted in state and Federal limits on its use in various 
products and safe, mercury-free alternatives are available for many 
products. One of the larger remaining product uses is in switches. 
Mercury tilt switches are small tubes with electrical contacts at one 
end of the tube. As the tube tilts, the mercury collects at one end, 
providing a conductive path to complete the circuit. When the switch is 
tilted back, the circuit is broken. Tilt switches have been used in 
automobiles for convenience lights in the trunk and hood, in ABS and 
ride control systems. While convenience lights were used in all types 
of automobiles, ABS and ride control systems were primarily used in 
higher end, four-wheel drive vehicles. As of 1996, convenience light 
switches, ABS system switches, and ride control system switches 
accounted for 87, 12, and 1 percent, respectively, of mercury switch 
usage in automobiles (Ref. 2). The mercury content of mercury switches 
varied from 0.7 to 1.5 grams, with an average of 0.8 grams per switch. 
Automakers used mercury light switches in convenience lighting (one 
switch per light), such as underhood and trunk lighting. Mercury ABS 
switches were usually made up of three individual switches, containing 
about one gram of mercury each. For ride control systems, most commonly 
two and up to four mercury switches were used, containing approximately 
one gram of mercury per switch (Ref. 13).
    There are two general categories for use of mercury switches in 
motor vehicles:
     Installed in new motor vehicles.
     Available as an aftermarket replacement part.
    While these switches normally last the lifetime of a vehicle, it is 
possible that they could be damaged, for example in a collision, and 
need to be replaced. In general, replacement parts can be purchased 
through a dealer, auto service shop, or auto parts retailer. In the 
case of mercury switches, which are unlikely to need replacement, the 
original equipment manufacturer usually agrees to supply the 
replacement part for about seven years after the vehicle is sold (Ref. 
2).
    American automobile manufacturers voluntarily discontinued the use 
of mercury switches in new models as of January 1, 2003 (Ref. 1). Those 
foreign automobile manufacturers that had used mercury switches 
discontinued their use of mercury switches in new models in the 1990s. 
Since mercury-free switches can be used as aftermarket parts to replace 
mercury switches in convenience lights, mercury convenience light 
switches are no longer available as aftermarket replacement parts. EPA 
believes that there are no feasible non-mercury alternatives for mid-
life replacement in ABS and ride control systems that contain mercury 
switches. EPA solicits comment on this issue.
    Mercury switches are still being manufactured as replacement parts 
for pre-2003 cars containing ABS and ride control systems with mercury 
switches. Because ABS and ride control systems containing mercury 
switches are only found on a few models of pre-2003 vehicles, and the 
mercury switches would likely only need to be replaced if they were 
damaged in a collision, there is a very small market for replacement 
mercury switches for ABS and ride control systems. Available 
information indicates that mercury switches needed as replacement parts 
are not being regularly manufactured but must be specially ordered 
(Ref. 2). This market should continue to decline as the pre-2003 
vehicles reach the end of their lives. Automobiles have a life 
expectancy of about ten to fifteen years. Once those vehicles are no 
longer in use, there will be only a very minimal market for mercury 
switches for ABS and ride control systems.
    It is unlikely that auto manufacturers would resume the use of 
automotive mercury switches. The ability to use mercury switches in new 
vehicles would be limited to vehicles for sale in certain states. There 
are a number of states that have banned the use of automotive mercury 
switches, which prompted auto manufacturers to discontinue their use. 
As evidenced by their nationwide discontinuation of mercury switch use 
following the Maine state ban, it is not generally cost effective for 
auto manufacturers to make vehicles with one set of components for sale 
in some states and another set of components for vehicles for sale in a 
different state (Ref. 3).

V. Significant New Use Determination

    Section 5(a)(2) of TSCA provides that EPA's determination that a 
use of a chemical substance is a significant new use must be made after 
consideration of all relevant factors including:
     The projected volume of manufacturing and processing of a 
chemical substance.
     The extent to which a use changes the type or form of 
exposure of human beings or the environment to a chemical substance.
     The extent to which a use increases the magnitude and 
duration of exposure of human beings or the environment to a chemical 
substance.
     The reasonably anticipated manner and methods of 
manufacturing, processing, distribution in commerce, and disposal of a 
chemical substance. 15 U.S.C. 2604(2)(A)-(D).
    EPA construes the statute to allow consideration of any other 
relevant factors, in addition to those enumerated in section 5(a)(2)(A) 
through (D) of TSCA.
    To determine what would constitute a significant new use of 
elemental mercury, EPA has considered relevant information about the 
toxicity of mercury, the likely exposures and releases associated with 
the life cycle of elemental mercury manufactured for use in automotive 
switches, and the four factors listed in section 5(a)(2) of TSCA. The 
life cycle steps include the following:
     Mercury switch manufacturing.
     Automobile manufacturing.
     Automobile collision, repair, and maintenance.
     End-of-life vehicle recycling.
    U.S. auto manufacturers discontinued the use of mercury switches in 
convenience lights, ABS and ride control systems in new automobiles as 
of January 1, 2003. Those foreign automobile manufacturers that had 
used mercury switches discontinued their use of mercury switches in new 
models in the 1990s. New mercury switches are still available as mid-
life replacement parts only for pre-2003 ABS and ride control systems 
that originally contained mercury switches. However, available 
information indicates these replacement parts are not being regularly 
manufactured, but must be specially ordered. Therefore, this market is 
very small and will continue to decline as vehicles containing these 
switches reach the end of their useful life.
    Given that few mercury switches are being manufactured and none are 
being installed in new automobiles as part of convenience lights, ABS 
and ride

[[Page 39042]]

control systems, the resumption of use of mercury switches for these 
uses in new automobiles would require a significant increase in the 
manufacture and processing of mercury switches. This would result in an 
increase in the magnitude and duration of exposure to workers and the 
surrounding environment at facilities of all types in the life cycle, 
as well as an increase in releases which could contribute additional 
mercury to the atmosphere for long range transport. This could also 
result in exposures to workers at automobile manufacturing and 
automobile collision, repair and maintenance facilities who had not 
previously worked in these facilities when mercury switches were 
commonly used in automobiles, as well as exposures to workers who are 
not currently being exposed to mercury switches.
    Over the next twenty years, mercury emissions due to mercury 
switches in automotive scrap will decrease, because automobile 
manufacturers stopped installing mercury switches for convenience 
lights, ABS, and ride control systems as of January 1, 2003. 
Automobiles have a life expectancy of about ten to fifteen years. 
Reintroduction of mercury switches for automotive uses would thus 
result in future increases of mercury emissions at EAFs, if most end of 
life vehicles would continue to be recycled as scrap in the future as 
they are today. Once again, increases in mercury emissions could lead 
to increases in mercury concentrations in the environment and reduction 
in overall ecosystem and human health from consumption of mercury-
contaminated fish. Based on these considerations, EPA has determined 
that any manufacturing or processing of elemental mercury for the uses 
designated in this proposed rule is a significant new use.

VI. Effects and Objectives of this Proposed Rule

    In determining what would constitute significant new uses for 
mercury auto switches, EPA considered relevant information on the 
toxicity of mercury, likely exposures associated with the uses, and the 
four factors listed in TSCA section 5(a)(2) and discussed in Unit V.
    If this proposed rule is finalized, it will allow EPA to provide 
the following assurances:
     EPA would receive a SNUN indicating a person's intent to 
manufacture or process elemental mercury for a designated significant 
new use before that activity begins.
     EPA would have an opportunity to review and evaluate data 
and information submitted in a SNUN before the notice submitter begins 
manufacturing or processing elemental mercury for a designated 
significant new use.
     EPA would have an opportunity to regulate prospective 
manufacturers and processors of elemental mercury before a significant 
new use occurs, provided such regulation is warranted pursuant to TSCA 
section 5(e) or (f).
    As summarized in Unit IV., EPA has concerns regarding the 
environmental fate and the exposure pathways that lead to the presence 
of methylmercury in fish and the consumption of mercury-contaminated 
fish by humans and wildlife. American automakers voluntarily 
discontinued use of mercury switches in new vehicles by January 1, 
2003. Although production of ABS and ride control systems containing 
mercury switches will continue as long as pre-2003 models containing 
them need mid-life replacement parts, that market is very limited. It 
should cease once pre-2003 vehicles containing mercury switches are no 
longer available. However, EPA is concerned that manufacture or 
processing of mercury for use in auto switches in new vehicles could be 
reinitiated in the future and wants the opportunity to evaluate and 
control, if appropriate, occupational and other exposures associated 
with those activities. The notice that would be provided by the SNUN 
would provide EPA with the opportunity to evaluate activities 
associated with a significant new use as proposed herein and an 
opportunity to protect against unreasonable risks, if any, from 
exposure to mercury.
    In the event the decline in the use of mercury switches as 
replacement parts in ABS and ride control systems of pre-2003 motor 
vehicles does not proceed as described in this proposed rule, EPA may 
pursue additional regulatory action as appropriate under TSCA sections 
4, 6, and 8.

VII. Alternatives/Other Options Considered

    Before proposing this SNUR, EPA considered the following 
alternative regulatory actions for elemental mercury.

A. Promulgate a Regulation Under the Clean Air Act

    Section 112(d) of the CAA requires EPA to establish emission 
standards for all categories and subcategories of major sources of 
hazardous air pollutant (HAP) emissions and for area sources listed for 
regulation under section 112(c). Mercury compounds are metal HAPs. In 
terms of industries that consume scrap, EPA has promulgated national 
emissions standards for hazardous air pollutants (NESHAPs) for iron and 
steel foundries in the Federal Register of April 22, 2004 (69 FR 21905) 
(FRL-7554-5) and integrated iron and steel mills in the Federal 
Register of May 20, 2003 (68 FR 27645) (FRL-7460-2) and is in the 
process of developing an area source rule for EAFs. The industry for 
these source categories melts steel scrap that can contain automotive 
mercury switches. EPA believes that removing mercury switches from 
scrap before it is melted is the most effective way for most EAF 
facilities to reduce mercury emissions resulting from automotive 
mercury switches. Under the CAA, EPA may regulate only the listed 
source category, such as EAFs used in producing steel and, therefore, 
EPA does not regulate the manufacture, use, or disposal of mercury 
switches per se. The iron and steel foundries NESHAP addresses mercury 
emissions by requiring scrap selection and inspection programs to 
remove mercury switches from automotive scrap. However, under TSCA, EPA 
can regulate mercury switches earlier in their life cycle, by using the 
authorities of TSCA section 5 to consider human and environmental 
hazards during the manufacturing, processing, and use, as well as the 
disposal of mercury switches and to take immediate regulatory action 
under TSCA section 5(e) or 5(f) to prohibit or limit the manufacture, 
processing, or distribution in commerce of mercury switches before it 
begins. If the elimination of the use of mercury switches in ABS and 
ride control replacement parts does not occur as anticipated, EPA may 
reevaluate its options for addressing automotive scrap under the CAA 
and pursue additional regulatory action as appropriate.

B. Promulgate a TSCA section 8(a) Reporting Rule

    Under a TSCA section 8(a) rule, EPA could generally require 
manufacturers and processors to report information to the Agency when 
they intend to manufacture or process elemental mercury. However, the 
use of TSCA section 8(a) rather than the SNUR authority, would not 
provide the opportunity for EPA to review human and environmental 
hazards and exposures associated with the new use of elemental mercury 
and, if necessary, to take immediate regulatory action under TSCA 
section 5(e) or section 5(f) to prohibit or limit the activity before 
it begins. In addition, EPA may not receive important information from 
small businesses, because those firms are generally exempt from TSCA 
section

[[Page 39043]]

8(a) reporting requirements. In view of EPA's concerns about elemental 
mercury and the uses subject to this proposed rule and EPA's interest 
in having the opportunity to review these uses and regulate them as 
appropriate, pending the development of exposure and/or hazard 
information should a significant new use be initiated, the Agency 
believes that a TSCA section 8(a) rule for elemental mercury would not 
meet all of EPA's regulatory objectives.

C. Regulate Elemental Mercury Used in Certain Automotive Switches Under 
TSCA section 6

    EPA must regulate under TSCA section 6 if ``there is a reasonable 
basis to conclude that the manufacture, processing, distribution in 
commerce, use, or disposal of a chemical substance or 
mixture...presents or will present an unreasonable risk of injury to 
health or the environment'' (TSCA section 6(a)). Given that mercury 
switches are no longer being used in convenience lights, ABS, and ride 
control systems installed in new automobiles, are no longer used in 
convenience light replacement parts, and are of very limited 
availability in ABS and ride control replacement parts for some pre-
2003 models, EPA concluded that risk management action under TSCA 
section 6 is not necessary at this time. This proposed SNUR would allow 
the Agency to address the potential risks associated with the 
significant new uses of elemental mercury. If the elimination of the 
use of mercury switches in ABS and ride control replacement parts does 
not occur as anticipated, EPA may reconsider this decision and pursue 
additional regulatory action as appropriate.

D. Allow the Exemption for Persons that Import or Process Elemental 
Mercury as Part of Articles that Could be Subject to the SNUR

    Under the SNUR exemption provision at 40 CFR 721.45(f), a person 
that imports or processes a substance covered by a SNUR identified in 
subpart E of part 721 as part of an article is not generally subject to 
the notification requirements of Sec.  721.25 for that substance. 
However, EPA is concerned that exempting articles would render the SNUR 
less effective because of the possibility that switches containing 
elemental mercury could be imported or processed for uses subject to 
this proposed SNUR without the submission of a SNUN. Because mercury-
containing automotive switches are the primary concern in this SNUR, 
EPA wishes to include not only elemental mercury but also articles 
containing elemental mercury. Thus, EPA is proposing to promulgate this 
rule without the exemption generally provided for in Sec.  721.45(f).
    Alternatively, EPA could lift the exemption provisions of 40 CFR 
721.45(f) solely for articles containing automotive switches; however, 
EPA believes it is appropriate to include all articles within the scope 
of this SNUR, because it is possible to reclaim mercury from articles 
containing elemental mercury and use that mercury to produce automotive 
switches. Furthermore, a limited lifting of the exemption could be 
confusing and of limited benefit, because persons importing or 
processing mercury-containing articles would not be required to submit 
a SNUN if they can meet the requirements of Sec.  721.5(a)(2) or Sec.  
721.5(c). Therefore, EPA is proposing to promulgate this SNUR without 
the exemption provided in Sec.  721.45(f). EPA is specifically seeking 
comments on the issue of whether the exemption under Sec.  721.45(f) 
should be lifted in whole or in part, or whether the exemption should 
remain. EPA would particularly like to hear from persons that import or 
process elemental mercury as part of articles on how the proposed 
alternative will affect them.

E. Define a Narrower Scope of Motor Vehicles

    EPA is considering narrowing the scope of motor vehicles subject to 
the SNUR. A narrower definition might limit the SNUR to vehicles 
intended primarily for noncommercial transport of passengers, such as 
passenger cars, pickup trucks, sport-utility vehicles, minivans, and 
passenger vans. These types of passenger automobiles comprise an 
estimated 96% of the vehicles on the road, and it is well known that 
the use of mercury switches in convenience lights, ABS, and ride 
control systems in new passenger automobiles was voluntarily 
discontinued as of January 1, 2003. Passenger automobiles have been the 
primary focus of most efforts to remove mercury switches from vehicles. 
There is less certainty about the status of mercury switch usage in 
some of the larger passenger and freight carrying vehicles, such as 
buses and semi trucks. Nevertheless, EPA believes that mercury switches 
are not currently being used for convenience lights, ABS, or ride 
control systems in all types of new motor vehicles, and that the 
broader definition encompassing all motor vehicles more appropriately 
addresses EPA's concerns about elemental mercury and the uses subject 
to this proposed rule. EPA requests comments on narrowing the scope of 
vehicles covered to limit it to passenger automobiles and on whether 
mercury switches are being installed in any types of new motor 
vehicles.

VIII. Applicability of Rule to Uses Occurring Before Effective Date of 
the Final Rule

    To establish a significant ``new'' use, EPA determines that the use 
is not ongoing. 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 publication of the proposed rule, rather than as of the 
effective date of the final rule. Thus, persons who begin commercial 
manufacture, import, or processing of elemental mercury for the 
significant new use described by this SNUR will have to cease any such 
activity before the effective date of the final rule. To resume their 
activities, these persons would have to comply with all applicable SNUN 
requirements and wait until the notice review period, including all 
extensions, expires.
    EPA has promulgated provisions to allow persons to comply with this 
SNUR before the effective date. If a person were to meet the conditions 
of advance compliance under Sec.  721.45(h), 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 publication 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 final rule. To 
resume their activities, these persons would have to comply with all 
applicable SNUN requirements and wait until the notice review period, 
including all extensions, expires.

IX. Risk and Market Information

    EPA recognizes that section 5 of TSCA does not require the 
development of any particular test data or information before 
submission of a SNUN. Persons are required only to submit test data and 
information in their possession or control and to describe any other 
data known to or reasonably ascertainable by them (15 U.S.C. 2604(d); 
40 CFR 721.25).
    However, SNUN submitters should be aware that EPA will be better 
able to evaluate SNUNs which provide detailed information on:
     Human exposure and environmental releases that may result 
from the significant new uses of elemental mercury.

[[Page 39044]]

     Potential benefits of the use of the elemental mercury.
     Information on risks posed by the use of elemental mercury 
in automotive switches relative to risks posed by mercury-free 
substitutes.
     Information on how the concerns about mercury emissions 
during disposal of end-of-life vehicles could be mitigated (e.g., 
rebates for switches removed before shredding).
    Submitters should consider including with a SNUN any other 
available studies on elemental mercury or studies on analogous 
substances which may demonstrate that the significant new uses being 
reported are unlikely to present an unreasonable risk.
    In view of the potential risks posed by manufacture, processing, 
distribution, and disposal of elemental mercury for use in automotive 
switches, EPA would recommend in the final rule that potential SNUN 
submitters include data and other information that would permit a 
reasoned evaluation of risks posed by elemental mercury. EPA encourages 
persons to consult with the Agency before submitting a SNUN for these 
uses. As part of this optional pre-notice consultation, EPA would 
discuss specific data and information it believes are necessary to 
evaluate a significant new use. A SNUN submitted without sufficient 
data and information to reasonably evaluate risks posed by a 
significant new use of elemental mercury may increase the likelihood 
that EPA will take action under TSCA section 5(e) to prohibit or limit 
activities associated with elemental mercury and these uses. EPA 
recommends that potential SNUN submitters contact the Agency early 
enough that they will be able to conduct any appropriate tests and 
develop any appropriate information.

X. SNUN Submissions

    SNUNs should be mailed to the Environmental Protection Agency, OPPT 
Document Control Office (7407M), 1200 Pennsylvania Avenue, N.W., 
Washington, DC 20460-0001. Information must be submitted in the form 
and manner set forth in EPA Form No. 7710-25. This form is available 
from the Environmental Assistance Division (7408M), OPPT, Environmental 
Protection Agency, 1200 Pennsylvania Avenue, N.W., Washington, DC 
20460-0001 (see 40 CFR 721.25(a) and 720.40(a)(2)(i)).

XI. Economic Considerations

A. SNUNS

    EPA has evaluated the potential costs of establishing SNUR 
reporting requirements for potential manufacturers and processors of 
the chemical substances included in this proposed rule. While there is 
no precise way to calculate the total annual cost of compliance with 
the final rule, given the uncertainties related to predicting the 
number of SNUN's that would be submitted as a result of this SNUR, EPA 
estimates that the cost for preparing and submitting a SNUN is $7,302, 
including a $2,500 user fee required by 40 CFR 700.45(b)(2)(iii) (Ref. 
3). Small businesses with annual sales of less than $40 million when 
combined with those of the parent company (if any) are subject to a 
reduced user fee of $100 (40 CFR 700.45(b)(1)). Based on past 
experience with SNURs and the low number of SNUNs which are submitted 
on an annual basis, EPA believes that there will be few, if any, SNUNs 
submitted as a result of this SNUR. In this case, it is unlikely that a 
SNUN would be submitted, because there are a number of states that have 
banned the use of mercury in vehicle switches, thus the ability to use 
mercury switches in new motor vehicles would be limited to vehicles for 
sale only in certain states. The costs of submission of SNUNs will not 
be incurred by any company unless a company decides to pursue a 
significant new use as defined in this SNUR. Furthermore, while the 
expense of a notice and the uncertainty of possible EPA regulation may 
discourage certain innovations, that impact would be limited because 
such factors are unlikely to discourage an innovation that has high 
potential value. EPA's complete economic analysis is available in the 
public docket for this proposed rule (Ref. 3).

B. Export Notification

    As noted in Unit II.C., persons who intend to export a chemical 
substance identified in a proposed or final SNUR are subject to the 
export notification provisions of TSCA section 12(b) (15 U.S.C. 
2611(b)). These provisions require that, for chemicals subject to a 
proposed or final SNUR, a company notify EPA of the first shipment to a 
particular country in a calendar year of an affected chemical 
substance. EPA estimated that the one-time cost of preparing and 
submitting an export notification to be $93.02. The total costs of 
export notification will vary per chemical, depending on the number of 
required notifications (i.e., number of countries to which the chemical 
is exported).
    EPA is unable to estimate the total number of TSCA section 12(b) 
notifications that will be received as a result of this SNUR, or the 
total number of companies that will file these notices. However, EPA 
expects that the total cost of complying with the export notification 
provisions of TSCA section 12(b) will be limited based on historical 
experience with TSCA section 12(b) notifications and the fact that no 
companies have currently been identified that currently market any of 
the chemical substances that are the subject of this rule commercially. 
If companies were to manufacture for export only any of the chemical 
substances covered by this SNUR, such companies would incur the minimal 
costs associated with export notification despite the fact they would 
not be subject to the SNUR notification requirements. See TSCA section 
12(a) and 40 CFR 721.45(g). EPA is not aware of any companies in this 
situation.

XII. References

    The public docket for this action, EPA-HQ-OPPT-2005-0036, currently 
includes the following documents:
    1. Alliance of Automobile Manufacturers, 2003. Facts About Mercury 
Switches, December, 2003. Accessible online at: http://www.autoalliance.org/archives/Mercury.pdf.
    2. EPA, 2005a. Market Study: Mercury Use in Automotive Switches. 
Washington, D.C. EPA/OPPTS/EETD/EPAB, August, 2005.
    3. EPA, 2005b. Economic Analysis of the Significant New Use Rule 
for Mercury Containing Automotive Switches. Washington, D.C. EPA/OPPTS/
EETD/EPAB, January 12, 2006.
    4. EPA, 1997. U.S. Environmental Protection Agency. Mercury Study 
Report to Congress. EPA-452/R-97-003, December 1997. Accessible at: 
http://www.epa.gov/ttn/oarpg/t3/reports/volume1.pdf.
    5. ATSDR, 1999. Agency for Toxic Substances and Disease Registry, 
Public Health Service, U.S. Department of Health and Human Services. 
Toxicological Profile for Mercury (update). Accessible online at: 
http://www.atsdr.cdc.gov/toxprofiles/tp46.html.
    6. EPA, 2002. U.S. Environmental Protection Agency. Integrated Risk 
Information System (IRIS). Methylmercury. Oral RfD and inhalation RfC 
assessments last revised 7/27/01; Carcinogenicity assessment last 
revised 5/1/95; most recent revision of on-line materials, 2002; 
website accessed May 2005. Accessible online at: http://www.epa.gov/iris/subst/0073.htm.
    7. NRC, 2000. National Research Council. Toxicological Effects of 
Methylmercury. Committee on the Toxicological Effects of Methylmercury,

[[Page 39045]]

Board on Environmental Studies and Toxicology, Commission on Life 
Sciences, National Research Council. National Academy Press, 
Washington, D.C. Accessible online at: http://books.nap.edu/books/0309071402/html/1.html.
    8. EPA, 2005c. U.S. Environmental Protection Agency. Regulatory 
Impact Analysis of the Clean Air Mercury Rule, Final Report. EPA-452/R-
05-003, March 2005. Accessible online at: http://www.epa.gov/ttn/atw/utility/ria_final.pdf.
    9. EPA, 2005d. 2004 National Listing of Fish Advisories. Fact 
Sheet, Sept. 2005. EPA-823-F-05-004. Accessible at: http://epa.gov/waterscience/fish/advisories/fs2004.pdf.
    10. EPA, 2005e. Technical Support Document, Revision of December 
2000 Finding on the Emissions of Hazardous Air Pollutants from Electric 
Steam Generating Units and the Removal of Coal- and Oil-Fired Electric 
Utility Steam Generating Units From the Section 112 (c) List: 
Reconsideration, October 21, 2005. Accessible online at http://www.epa.gov/ttn/atw/utility/TSD-112-final.pdf.
    11. CDC, 2004. Centers for Disease Control and Prevention. Blood 
Mercury Levels in Young Children and Childbearing Aged-Women - United 
States, 1999-2002. Morbidity and Mortality Weekly Report, November 5, 
2004/53(43):1018-1020. Accessible online at: http://www.cdc.gov/mmwr/preview/mmwrhtml/mm5343a5.htm.
    12. Boening, D.W. 2000. Ecological effects, transport, and fate of 
mercury: A general review. Chemosphere 40: 1335-1351.
    13. EPA, 2005f. Screening Level Workplace Release and Exposure 
Assessment for Mercury Switches in New Automobiles. Washington, D.C. 
EPA/OPPTS/EETD/CEB, September 6, 2005.

XIII. Statutory and Executive Order Reviews

A. Executive Order 12866: Regulatory Planning and Review

    Under Executive Order 12866, entitled Regulatory Planning and 
Review (58 FR 51735, October 4, 1993), the Office of Management and 
Budget (OMB) has determined that this proposed SNUR is not a 
``significant regulatory action'' because this rule does not meet the 
criteria in section 3(f) of the Executive Order.

B. Paperwork Reduction Act

    According to the Paperwork Reduction Act (PRA), 44 U.S.C. 3501 et 
seq., an Agency may not conduct or sponsor, and a person is not 
required to respond to a collection of information that requires OMB 
approval under the PRA, unless it has been approved by OMB and displays 
a currently valid OMB control number. The OMB control numbers for EPA's 
regulations in title 40 of the CFR, after appearing in the Federal 
Register, are listed in 40 CFR part 9, and included on the related 
collection instrument or form, if applicable.
    The information collection requirements related to this action have 
already been approved by OMB pursuant to the PRA under OMB control 
number 2070-0038 (EPA ICR No. 1188). This action would not impose any 
burden requiring additional OMB approval. If an entity were to submit a 
SNUN to the Agency, the annual burden is estimated to average 105 hours 
per submission. This burden estimate includes the time needed to review 
instructions, search existing data sources, gather and maintain the 
data needed, and complete, review, and submit the required SNUN.
    Send any comments about the accuracy of the burden estimate, and 
any suggested methods for minimizing respondent burden, including 
through the use of automated collection techniques, to the Director, 
Collection Strategies Division, Office of Environmental Information 
(2822T), Environmental Protection Agency, 1200 Pennsylvania Ave., NW., 
Washington, DC 20460-0001. Please remember to include the OMB control 
number in any correspondence, but do not submit any completed forms to 
this address.

C. Regulatory Flexibility Act

    Pursuant to section 605(b) of the Regulatory Flexibility Act (RFA) 
(5 U.S.C. 601 et seq.), the Agency hereby certifies that promulgation 
of this SNUR would not have a significant adverse economic impact on a 
substantial number of small entities. The rationale supporting this 
conclusion is as follows. A SNUR applies to any person (including small 
or large entities) who intends to engage in any activity described in 
the rule as a ``significant new use.'' By definition of the word 
``new,'' and based on all information currently available to EPA, it 
appears that no small or large entities presently engage in such 
activity. Since a SNUR only requires that any person who intends to 
engage in such activity in the future must first notify EPA by 
submitting a SNUN, no economic impact would even occur until someone 
decides to engage in those activities. Although some small entities may 
decide to conduct such activities in the future, EPA cannot presently 
determine how many, if any, there may be. However, EPA's experience to 
date is that, in response to the promulgation of over 1,000 SNURs, the 
Agency receives on average only 10 notices per year. Of those SNUNs 
submitted, none appear to be from small entities in response to any 
SNUR. In addition, the estimated reporting cost for submission of a 
SNUN (see Unit XI.), are minimal regardless of the size of the firm. 
Therefore, EPA believes that the potential economic impact of complying 
with this SNUR is not expected to be significant or adversely impact a 
substantial number of small entities. In a SNUR that published on June 
2, 1997 (62 FR 29684) (FRL-5597-1), the Agency presented its general 
determination that proposed and final SNURs are not expected to have a 
significant economic impact on a substantial number of small entities, 
which was provided to the Chief Counsel for Advocacy of the Small 
Business Administration.

D. Unfunded Mandates Reform Act

    Based on EPA's experience with proposing and finalizing SNURs, 
State, local, and Tribal governments have not been impacted by these 
rulemakings, and EPA does not have any reasons to believe that any 
State, local, or Tribal government would be impacted by this 
rulemaking. As such, EPA has determined that this regulatory action 
would not impose any enforceable duty, contain any unfunded mandate, or 
otherwise have any affect on small governments subject to the 
requirements of sections 202, 203, 204, or 205 of the Unfunded Mandates 
Reform Act of 1995 (UMRA) (Public Law 104-4).

E. Executive Order 13132: Federalism

    This action would not have a substantial direct effect on States, 
on the relationship between the national government and the States, or 
on the distribution of power and responsibilities among the various 
levels of government, as specified in Executive Order 13132, entitled 
Federalism (64 FR 43255, August 10, 1999).

F. Executive Order 13175: Consultation and Coordination with Indian 
Tribal Governments

    This proposed rule would not have Tribal implications because it is 
not expected to have substantial direct effects on Indian Tribes. This 
proposed rule would not significantly or uniquely affect the 
communities of Indian Tribal governments, nor would it involve or 
impose any requirements that affect Indian Tribes. Accordingly, the

[[Page 39046]]

requirements of Executive Order 13175, entitled Consultation and 
Coordination with Indian Tribal Governments (65 FR 67249, November 6, 
2000), do not apply to this proposed rule.

G. Executive Order 13045: Protection of Children from Environmental 
Health Risks and Safety Risks

    This action is not subject to Executive Order 13045, entitled 
Protection of Children from Environmental Health Risks and Safety Risks 
(62 FR 19885, April 23, 1997), because the impact of this SNUR will be 
less than $100 million. Executive Order 13045 only requires analysis of 
impacts on children for rules that will have an impact of $100 million 
or more.

H. Executive Order 13211: Actions that Significantly Affect Energy 
Supply, Distribution, or Use

    This proposed rule is not subject to Executive Order 13211, 
entitled Actions Concerning Regulations That Significantly Affect 
Energy Supply, Distribution, or Use (66 FR 28355, May 22, 2001), 
because this action is not expected to affect energy supply, 
distribution, or use.

I. National Technology Transfer Advancement Act

    This action does not involve any technical standards; therefore, 
section 12(d) of the National Technology Transfer and Advancement Act 
of 1995 (NTTAA), Public Law 104-113, section 12(d) (15 U.S.C. 272 
note), does not apply to this action.

J. Executive Order 12898: Federal Actions to Address Environmental 
Justice in Minority Populations and Low-Income Populations

    This action does not entail special considerations of environmental 
justice related issues as delineated by Executive Order 12898, entitled 
Federal Actions to Address Environmental Justice in Minority 
Populations and Low-Income Populations (59 FR 7629, February 16, 1994).

K. Executive Order 12988: Civil Justice Reform

    In issuing this proposed rule, EPA has taken the necessary steps to 
eliminate drafting errors and ambiguity, minimize potential litigation, 
and provide a clear legal standard for affected conduct, as required by 
section 3 of Executive Order 12988, entitled Civil Justice Reform (61 
FR 4729, February 7, 1996).

List of Subjects in 40 CFR Part 721

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


    Dated: July 5, 2006.
Charles M. Auer,
Director, Office of Pollution Prevention and Toxics.

    Therefore, it is proposed that 40 CFR part 721 be amended as 
follows:

PART 721--[AMENDED]

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

    Authority: 15 U.S.C. 2604, 2607, and 2625(c).
    2. By adding new Sec.  721.10068 to subpart E to read as follows:


Sec.  721.10068  Elemental mercury.

    (a) Definitions. The definitions in Sec.  721.3 apply to this 
section. In addition, the following definition applies: Motor vehicle 
has the meaning found at 40 CFR 85.1703.
    (b) Chemical substances and significant new uses subject to 
reporting. (1) The chemical substance elemental mercury (CAS. No. 7439-
97-6) is subject to reporting under this section for the significant 
new uses described in paragraph (b)(2) of this section.
    (2) The significant new uses are:
    (i) Manufacture or processing of elemental mercury for use in 
convenience light switches in new motor vehicles.
    (ii) Manufacture or processing of elemental mercury for use in 
convenience light switches as new aftermarket replacement parts for 
motor vehicles.
    (iii) Manufacture or processing of elemental mercury for use in 
switches in anti-lock brake systems (ABS) in new motor vehicles.
    (iv) Manufacture or processing of elemental mercury for use in 
switches in ABS as new aftermarket replacement parts for motor vehicles 
that were manufactured after January 1, 2003.
    (v) Manufacture or processing of elemental mercury for use in 
switches in active ride control systems in new motor vehicles.
    (vi) Manufacture or processing of elemental mercury for use in 
switches in active ride control systems as new aftermarket replacement 
parts for motor vehicles that were manufactured after January 1, 2003.
    (c) Specific requirements. The provisions of subpart A of this part 
apply to this section except as modified by this paragraph.
    (1) Revocation of article exemption. The provisions of Sec.  
721.45(f) do not apply to this section. A person who imports or 
processes the substance as part of an article for the significant new 
use must submit a significant new use notice.
    (2) [Reserved]

[FR Doc. E6-10858 Filed 7-10-06; 8:45 am]
BILLING CODE 6560-50-S