EPA Extends Submission Deadline for Polymer Exemption Reports and Accompanying Claims

The U.S. Environmental Protection Agency (EPA) published a final rule on February 16, 2024, amending the Toxic Substances Control Act (TSCA) regulations for polymers manufactured under the terms of the polymer exemption by extending the submission deadline for reporting. 89 Fed. Reg. 12248. EPA notes that the regulations require that manufacturers (includes importers) of polymers manufactured under the terms of the exemption submit a report of manufacture or import by January 31 of the year subsequent to initial manufacture. EPA states that on June 7, 2023, it amended the exemption reporting requirement to require that the exemption report and accompanying confidentiality claims be submitted electronically. Because EPA experienced technical difficulties with the launch of the new electronic reporting tool, EPA is extending the reporting period for 2024 from January 31, 2024, to March 31, 2024, to allow manufacturers additional time to submit their reports and accompanying claims to EPA using the electronic reporting tool. The final rule was effective February 16, 2024. More information on EPA’s June 7, 2023, final rule with new and amended requirements concerning the assertion and treatment of confidential business information (CBI) claims for information reported to or otherwise obtained by EPA under TSCA is available in our June 12, 2023, memorandum.

EPA states that it believes extending the deadline to March 31, 2024, “will provide reporters with sufficient time to submit information using the electronic reporting tool and for EPA to fix any unanticipated glitches that may arise with the use of the new tool.” According to the final rule, pursuant to Section 553(b)(B) of the Administrative Procedure Act (APA), EPA “has determined that there is good cause for extending the reporting deadline for 2024 without prior proposal and opportunity for comment.” EPA determines that there is good cause to take this action without a prior proposal because it would be contrary to the public interest to retain the deadline of January 31 for the 2024 reports, where EPA’s electronic systems were not ready and available for use by regulated entities to allow them to comply with the electronic reporting requirements of the rule before the submission deadline of January 31, 2024.

Commentary

Bergeson & Campbell, P.C. (B&C^®) is pleased that EPA has offered this relief to submitters. We would be even more excited had the notice been published in January 2024 when it was clear that EPA would not have the Central Data Exchange (CDX) data flow operating in time. The relief should give submitters some comfort because if they did submit the polymer exemption notice after January 31, 2024 (nominally late according to the regulatory deadline at that time), EPA will not consider those submissions to be late. B&C understands that the Office of Pollution Prevention and Toxics (OPPT) and the Office of Chemical Safety and Pollution Prevention (OCSPP) had signed off on the deadline extension in January, but publication of the Federal Register notice has taken nearly a month, a regrettable delay.

B&C cautions submitters that the new polymer exemption data flow allows for substantially more information to be submitted than is required, but the appearance of the tool may give the false impression that the extra data are required. Submitters may elect to provide the details of the polymer in the submission; if they so choose, they should take care to ensure the information is properly protected as CBI. The possible upside to submitting those data with the polymer exemption notice is to store those data in EPA’s cloud so it may be easier for the submitter to retrieve it in the future. B&C urges submitters to review the pros and cons of submitting voluntarily more information than is required.