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September 21, 2015

TSCA:  EPA Releases Final SNUR for HBCD, and EPA’s SNUR Reach Over Imported Article Continues

Bergeson & Campbell, P.C.

The U.S. Environmental Protection Agency (EPA) released on September 17, 2015, a signed final significant new use rule (SNUR) for hexabromocyclododecane or 1,2,5,6,9,10-hexabromocyclododecane (HBCD). Under the final rule, persons who intend to manufacture (including import) or process HBCD for use in consumer textiles (other than for use in motor vehicles) must notify EPA at least 90 days before commencing that activity. EPA notes that in this SNUR, the exemption for persons importing or processing a chemical substance as part of an article does not apply to importers and processors of HBCD as part of a textile article (e.g., as part of a bolt of cloth or part of an upholstered chair). The SNUR will be effective 60 days after publication in the Federal Register.

The final rule designates use of HBCD in consumer textiles (other than for use in motor vehicles) as a significant new use. EPA states that it concluded that the only current use of HBCD for consumer textiles is in motor vehicles. The SNUR does not cover that use or other current uses of HBCD (e.g., in nonconsumer textiles and in building insulation), “not because EPA has determined that these uses are not ‘significant,’ but because they are ongoing and thus not ‘new uses.'”

EPA promulgated the final SNUR as proposed with two important changes. The first change is the scope of the exemption for persons who import or process HBCD as part of an article. In its March 26, 2012, proposed rule, EPA proposed to make the exemption at 40 C.F.R. Section 721.45(f) completely inapplicable, meaning that importers and processors of HBCD as part of any article would be subject to the SNUR. In the final SNUR, the exemption is inapplicable only to importers and processors of HBCD as part of textile articles. The second change from the proposed rule is EPA’s clarification to the proposed definition of “consumer textile.” In the course of considering comments on the proposed rule, EPA revised the definition of consumer textile, reportedly to clarify it. The final definition, with redlining to show changes from the proposal, is:

Consumer textile means any cloth, fabric, or other item produced during a the milling process for textiles (including spinning, weaving, knitting, felting, or finishing), consisting in whole or as part of a product that is sold to or made available either as a product or as part of a product, to a private individual who uses it the product in or around a permanent or temporary household or residence, during recreation, or for any personal use or enjoyment. Consumer textiles can include, but are not limited to, bolts of cloth and draperies, as well as and textiles that are part of upholstered household furniture and mattresses.

According to EPA, because there are milling processes that do not relate to textiles, it clarified the final definition so that only items produced during milling processes for textiles are covered. Under the final definition, the textile itself can be a consumer textile, and the textile need not be part of a larger product like a mattress. Although EPA does not discuss the change, it also inserted “can” into the last sentence, which now reads “[c]onsumer textiles can include…”


The final SNUR is unremarkable except for its treatment of import or processing of HBCD textile articles. In response to comments, EPA narrowed the scope from the proposed “articles” to “textile articles” in the final rule. This scope is nonetheless broader than the SNUR’s domestic production and use scope of “consumer textiles, except for use in motor vehicles.” EPA attempts to explain the need for this difference by noting its concern that “undifferentiated textiles (e.g., the type of textiles that could be for a consumer use or a non-consumer use), could be imported or processed and distributed in commerce for consumer use without notification to the Agency.” While it seems clear based on the apparent absence of comments that HBCD is no longer used domestically in producing consumer textiles, it is used to produce such textiles used in motor vehicles. HBCD is also currently used to produce textiles for other uses, including, as discussed in the final rule preamble, for commercial, industrial, institutional, and military uses. Perhaps the absence of comments indicates that importation or processing of motor vehicle and non-consumer HBCD textiles is in fact not ongoing and thus appropriate for inclusion in the SNUR’s coverage. Then again one could wonder whether, given the complexities involved, the point was either overlooked or not clearly understood by commenters.

This is the third recent final rule that by our count applies to imported articles containing substances subject to a SNUR. The other SNURs concern long-chain perfluoroalkyl carboxylate (LCPFAC) chemical substances and benzidine-based chemicals. More information concerning these SNURs can be found in Bergeson & Campbell, P.C.’s earlier memoranda: “TSCA: EPA Proposes a Significant New Use Rule That Would Close a Chapter on Perfluorinated Chemicals“; “EPA Announces Final Rule Concerning Perfluoroalkyl Sulfonates and Long-Chain Perfluoroalkyl Carboxylate Chemical Substances“; and “TSCA – EPA Signs Final SNURs and Signals Narrowing of Article Exemption.” The current action on HBCD is limited to imported textile articles, while the LCPFAC SNUR is limited to imported carpet. In contrast, the benzidine-based chemicals SNUR is broader in that it is not limited to certain articles. Given EPA’s clear interest in more broadly applying SNURs to imported articles, this issue and EPA’s approach will continue to evolve.