[Federal Register Volume 85, Number 228 (Wednesday, November 25, 2020)]
[Rules and Regulations]
[Pages 75235-75238]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-25824]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 711

[EPA-HQ-OPPT-2018-0321; FRL-10016-96]
RIN 2070-AK33


Chemical Data Reporting; Final Extension of the 2020 Submission 
Period

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is amending the 
Toxic Substances Control Act (TSCA) Chemical Data Reporting (CDR) 
regulations by extending the submission deadline for 2020 reports to 
January 29, 2021. This is the final extension for the 2020 submission 
period only. The CDR regulations require manufacturers (including 
importers) of certain chemical substances included on the TSCA Chemical 
Substance Inventory (TSCA Inventory) to report data on the 
manufacturing, processing, and use of the chemical substances.

DATES: This final rule is effective November 25, 2020.

ADDRESSES: The docket for this action, identified by docket 
identification (ID) number EPA-HQ-OPPT-2018-0321, is available at 
http://www.regulations.gov or at the Office of Pollution Prevention and 
Toxics Docket (OPPT Docket), Environmental Protection Agency Docket 
Center (EPA/DC), West, William Jefferson Clinton Bldg., Rm. 3334, 1301 
Constitution Ave. NW, Washington, DC. The 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.
    Please note that due to the public health emergency the EPA Docket 
Center (EPA/DC) and Reading Room was closed to public visitors on March 
31, 2020. Our EPA/DC staff will continue to provide customer service 
via email, phone, and webform. For further information on EPA/DC 
services, docket contact information and the current status of the EPA/
DC and Reading Room, please visit https://www.epa.gov/dockets.

FOR FURTHER INFORMATION CONTACT: For technical information contact: 
Susan Sharkey, Data Gathering and Analysis Division (7406M), Office of 
Pollution Prevention and Toxics, Environmental Protection Agency, 1200 
Pennsylvania Ave. NW, Washington, DC 20460-0001; telephone number: 
(202) 564-8789; email address: sharkey.susan@epa.gov.
    For general information contact: The TSCA-Hotline, ABVI-Goodwill, 
422 South Clinton Ave., Rochester, NY 14620; telephone number: (202) 
554-1404; email address: TSCA-Hotline@epa.gov.

SUPPLEMENTARY INFORMATION: 

I. General Information

A. Does this action apply to me?

    You may be potentially affected by this action if you manufacture 
(including import) chemical substances listed on the TSCA Inventory. 
The following list of North American Industrial Classification System 
(NAICS) codes is not intended to be exhaustive, but rather provides a 
guide to help readers determine whether this document applies to them. 
Potentially affected entities may include but are not limited to:
     Chemical manufacturers (including importers) (NAICS codes 
325 and 324110, e.g., chemical manufacturing and processing and 
petroleum refineries).
     Chemical users and processors who may manufacture a 
byproduct chemical substance (NAICS codes 22, 322, 331, and 3344, e.g., 
utilities, paper manufacturing, primary metal manufacturing, and 
semiconductor and other electronic component manufacturing).

B. What action is the Agency taking?

    The current 2020 CDR submission period is from June 1 to November 
30, 2020 (on April 9, 2020, EPA extended the September 30, 2020 
deadline to November 30, 2020 (see 85 FR 19890)). EPA is issuing this 
amendment to extend the deadline for 2020 CDR submission reports until 
January 29, 2021. This is an extension for the 2020 submission period 
only: Subsequent submission periods (recurring every four years, next 
in 2024) are not being amended.
    The Agency is taking this action in response to concerns raised by 
the regulated community about their ability to submit the required 
information within the prescribed period. Written requests to extend 
the CDR submission period have been received by the Agency starting in 
late-September. Copies of these letters are included in the docket (see 
ADDRESSES), and, at the time of drafting this document, include the 
following specific communications:
     Air Products and Chemicals, Inc. 2020 CDR 90-day Extension 
Request [Letter]. September 25, 2020. Certain information needed to 
inform submissions is stored off-site and reviewing in-person presents 
a logistical challenge because of the COVID-19 pandemic (administrative 
staff is currently on business-critical or work from home status). 
(Ref. 1.)
     American Chemistry Council (ACC). Request for an Extension 
to the TSCA Chemical Data Reporting (CDR)

[[Page 75236]]

2020 Submission Period [Letter]. October 26, 2020. ACC members reported 
a wide variety of technical issues that have impeded their ability to 
upload, validate, and submit electronic data submissions (including a 
Central Data Exchange (CDX) system crash for approximately two weeks on 
or about September 29, 2020, Confidential Business Information (CBI) 
substantiation issues, Authorized Official/Facility/Sites/Parent 
Company inaccuracies, Issues with inexact entries, and General form 
completion issues). (Ref. 2.)
     Household & Commercial Products Association (HCPA). 
Request for an Extension to the TSCA Chemical Data Reporting (CDR) 2020 
Submission Period [Letter]. October 27, 2020. The pandemic has required 
the dedication of significant resources that would normally be 
compiling and developing the data for CDR and additional time is 
necessary to complete submissions. HCPA member companies are also 
reporting a number of significant issues with accessing and using the 
CDX system that has further impeded the submission process. (Ref. 3.)
     National Association of Chemical Distributors (NACD). 
Request for an Extension to the TSCA CDR 2020 Submission Period 
[Letter]. October 30, 2020. NACD members have reported ongoing problems 
within CDX, including system crashes, freezes, and sluggishness, 
difficulty loading pages, and an inability to display a preview of the 
final data before submission. There is also concern that the reported 
issues will continue and worsen as more users are logged into CDX and 
attempting to submit information. (Ref. 4.)
     Society of Chemical Manufacturers & Affiliates (SOCMA). 
Extension Request for the 2020 TSCA CDR Submission Period [Letter]. 
October 30, 2020. SOCMA members have reported a wide variety of 
technical problems with EPA's Chemical Data Exchange (CDX) system that 
have negatively impacted their ability to complete data submissions. 
This includes system-wide outages, slowdowns, inability to access and 
validate forms, and practical difficulties with completing joint co-
manufacturing submissions. With only a month remaining before the 
submission deadline, the CDR reporting system continues to experience 
significant technical problems impeding the timely and thorough 
reporting of information on the production and use of chemicals in U.S. 
commerce. (Ref. 5.)
     American Coatings Association (ACA). Request for an 
Extension to the TSCA Chemical Data Reporting (CDR) 2020 Submission 
Period [Letter]. November 13, 2020. ACA member companies cited 
significant problems with bulk uploads under the CDX system in stating 
that an extension would ease difficulty in reporting while improving 
overall accuracy and quality of information submitted. In particular, 
ACA members have noted difficulties with bulk uploads under the CDX 
system, whereby system errors have not allowed members to submit files 
or the system improperly aligns data upon submission. ACA members also 
note that uploaded information fails to save, thereby requiring 
submitters to resubmit all information. Problems with bulk uploads have 
also extended to data required for CBI substantiation, where the CDX 
systems fails to capture all data submitted, jeopardizing claims of 
CBI. ACA recognizes that EPA and its contractor CGI have been working 
diligently to resolve these issues. (Ref. 6.)
    The compelling concerns raised by industry involve restrictions on 
their ability to report as a result of issues with several aspects of 
electronic reporting. The issues are experienced by a number of 
submitters and have not been limited to any specific submitter or type 
of submitter. Using the test application, EPA confirmed the existence 
of these problems and the impact they had on the ability to report. 
Specifically, these issues include difficulties with making bulk 
uploads (i.e., batch submissions), lack of access to the reporting tool 
due to a CDX system crash, and issues with certain reporting tool 
features associated with previewing the submissions, copying and 
pasting text information (such as for substantiating confidentiality 
claims), making claims of confidentiality, and data validations.
    The Agency has worked to resolve reporting issues since learning of 
these issues. On November 6, 2020, EPA made the following updates to 
CDX: Updated validations to correct functionality, updated the 
functionality for co-manufactured chemicals, and updated the ability to 
preview the submission before submitting the report. On November 13, 
2020, EPA made the following updates to CDX: Enabling reporting zero 
for the 2019 Production Volume when the chemical is reported as co-
manufactured, and updating validations associated with not needing to 
report processing and use information when all of the 2019 volume is 
directly exported. EPA plans to deploy additional updates on November 
20, 2020, including updated CBI substantiation validation and processes 
for co-manufactured chemicals. EPA is monitoring the implementation of 
these updates and will, if necessary, deploy additional updates to 
ensure full functionality of the reporting tool. The Agency continues 
to assist CDR reporters encountering issues and has been and will 
continue to develop rapid solutions to such issues via weekly patches 
to the eCDRweb reporting tool.
    Because the electronic issues have been widespread, have prevented 
access to the reporting tool, have restricted the ability for companies 
to identify information that the company considers confidential, and 
have ultimately resulted in a reduction in the amount of time the 
Agency had alloted for the completion and submission of the report, EPA 
believes it is appropriate to extend the reporting period to provide 
the regulated community the time needed to complete and submit their 
reports. With respect to the timing of this action, the need for the 
Agency to extend the deadline arose as a result of issues experienced 
by the regulated community with several aspects of electronic reporting 
that were brought to the Agency's attention recently. The collective 
significance of these issues was not apparent until the Agency 
completed review of letters from Air Products and Chemicals, Inc.; the 
American Chemistry Council; the Household & Commercial Products 
Association; the National Association of Chemical Distributors; the 
Society of Chemical Manufacturers & Affiliates; and the American 
Coatings Association; dated September 25, 2020, October 26, 2020, 
October 27, 2020, October 30, 2020, October 30, 2020, and November 13, 
2020 respectively (Refs. 1, 2, 3, 4, 5 and 6).
    The Agency has quickly responded to reporting issues as they have 
arisen and has gained experience with the reporting tool and 
troubleshooting that will enable EPA to quickly and effectively respond 
to any additional problems that may arise following full implementation 
of the reporting tool fixes. While the Agency endeavors to ensure full 
functionality of the tool, glitches may arise, including in response to 
reporting tool patches or updates. EPA believes that the additional 
two-month extension period will help provide a buffer for any 
additional updates to the tool that may be needed. This extension will 
also provide reporters with sufficient time to carefully review and 
submit information through CDX, especially following any prior problems 
using the reporting tool. As a result, EPA believes that extending the 
reporting period to January 29, 2021 will provide sufficient time for 
reporting problems to be addressed and for reporters to timely submit 
information.

[[Page 75237]]

C. What is the Agency's authority for taking this action?

    The CDR rule was issued pursuant to the authority of TSCA section 
8(a), 15 U.S.C. 2607(a). In addition, section 553(b)(B) of the 
Administrative Procedure Act (APA), 5 U.S.C. 553(b)(B), provides that, 
when an agency for good cause finds that public notice and comment 
procedures are impracticable, unnecessary, or contrary to the public 
interest, the agency may issue a rule without providing notice and an 
opportunity for public comment. The EPA has determined that there is 
good cause for making this rule final, extending the reporting period, 
without prior proposal and opportunity for comment because such notice 
and opportunity for comment is impracticable and unnecessary for the 
reasons explained in this section.
    As explained in the prior section, the extent of the electronic 
reporting issues has unexpectedly resulted in a reduction in the amount 
of time the Agency had alloted under the regulations for the completion 
and submission of the report. The extent of the electronic reporting 
issues was unforeseen, given that EPA conducted a beta test with 
expected users of the reporting tool prior to the beginning of the 
submission period. Further, most sites submit CDR data during the final 
month of the reporting period, having collected and prepared data 
earlier in the submission period. Thus, the extent and magnitude of 
these reporting issues did not become fully manifest prior to the close 
of October. Given that the current reporting deadline is November 30, 
2020, notice and comment procedures are impracticable to extend that 
deadline to address these unforeseen circumstances because the typical 
notice and comment rulemaking process would not allow a rule to be 
finalized before the current reporting deadline. Additionally, notice 
and comment procedures are unnecessary because this extension of the 
deadline merely provides the time and opportunity to submit the report 
as was intended under the current regulations, absent these unforeseen 
circumstances, and does not impact the substance of the collection or 
other regulatory requirements.
    As indicated above, the Agency recently learned that the regulated 
community was having difficulty related to the required electronic 
reporting mechanism. Individual entities provided information about 
technical issues, reporting difficulties, and complications resulting 
from the COVID-19 pandemic. EPA is including requests for extension in 
the docket. Given ongoing improvements to the functionality of the 
electronic reporting application, EPA is extending the reporting period 
until January 29, 2021.
    This action does not alter the substantive CDR reporting 
requirements in any way. The Agency also believes this extension will 
not result in a significant delay in the processing and availability of 
CDR information to potential users. This extension will not 
significantly impact the Agency's ability to carry out actions and 
activities that rely upon CDR, including work on the TSCA risk 
evaluations. EPA will consider CDR information as soon as it becomes 
available and work on risk evaluations remains ongoing. Further, this 
action is consistent with the public interest because it is designed to 
facilitate compliance with the CDR rule and to ensure that the 2020 
collection includes accurate data on chemical manufacturing, 
processing, and use in the United States. Any impact on the regulated 
community is expected to be beneficial given that the extension 
provides additional time to submit accurate CDR reports to EPA.
    Finally, section 553(d)(3) of the APA, 5 U.S.C. 553(d), provides 
that final rules shall not become effective until 30 days after 
publication in the Federal Register ``except [. . .] as otherwise 
provided by the agency for good cause.'' The purpose of this provision 
is to ``give affected parties a reasonable time to adjust their 
behavior before the final rule takes effect.'' Omnipoint Corp. v. Fed. 
Commc'n Comm'n, 78 F.3d 620, 630 (D.C. Cir. 1996); see also United 
States v. Gavrilovic, 551 F.2d 1099, 1104 (8th Cir. 1977) (quoting 
legislative history). Thus, in determining whether good cause exists to 
waive the 30-day delay, an agency should ``balance the necessity for 
immediate implementation against principles of fundamental fairness 
which require that all affected persons be afforded a reasonable amount 
of time to prepare for the effective date of its ruling.'' Gavrilovic, 
551 F.2d at 1105. EPA has determined that there is good cause for 
making this final rule effective immediately because the current 
deadline for reporting is imminent and the regulated community does not 
need time to prepare for this change in the reporting deadline; rather, 
the reporting deadline extension provides the needed time for the 
regulated community to meet the existing requirements.
    For these reasons, the agency finds that good cause exists under 
APA section 553(d)(3) to make this rule effective immediately upon 
publication in the Federal Register.

II. References

    The following is a listing of the documents that are specifically 
referenced in this document. The docket includes these documents and 
other information considered by EPA, including documents that are 
referenced within the documents that are included in the docket, even 
if the referenced document is not physically located in the docket. For 
assistance in locating these other documents, please consult the 
technical person listed under FOR FURTHER INFORMATION CONTACT.
    1. Air Products and Chemicals, Inc. 2020 CDR 90-day Extension 
Request [Letter]. September 25, 2020.
    2. American Chemistry Council. Request for an Extension to the TSCA 
Chemical Data Reporting (CDR) 2020 Submission Period [Letter]. October 
26, 2020.
    3. Household & Commercial Products Association. Request for an 
Extension to the TSCA Chemical Data Reporting (CDR) 2020 Submission 
Period [Letter]. October 27, 2020.
    4. National Association of Chemical Distributors. Request for an 
Extension to the TSCA CDR 2020 Submission Period [Letter]. October 30, 
2020.
    5. Society of Chemical Manufacturers & Affiliates (SOCMA). 
Extension Request for the 2020 TSCA CDR Submission Period [Letter]. 
October 30, 2020.
    6. American Coatings Association (ACA). Request for an Extension to 
the TSCA Chemical Data Reporting (CDR) 2020 Submission Period [Letter]. 
November 13, 2020.

III. Statutory and Executive Order Reviews

    Additional information about these statutes and Executive Orders 
can be found at http://www2.epa.gov/laws-regulations/laws-and-executive-orders.

A. Executive Order 12866: Regulatory Planning and Review and Executive 
Order 13563: Improving Regulation and Regulatory Review

    This action is classified as a final rule because it makes an 
amendment to the Code of Federal Regulations (CFR). The amendment to 
the CFR is necessary to allow for an extension to the 2020 CDR 
reporting period. This action does not impose any new requirements or 
amend substantive requirements. As such, this action is not a 
``significant regulatory action'' under Executive Order 12866 (58 FR 
51735, October 4, 1993) and Executive Order 13563 (76 FR 3821, January 
21, 2011).

[[Page 75238]]

B. Paperwork Reduction Act (PRA)

    This action does not contain any new or revised information 
collections subject to OMB approval under the PRA, 44 U.S.C. 3501 et 
seq. Information collection activities contained in CDR are already 
approved by the Office of Management and Budget (OMB) under OMB Control 
No. 2070-0162 (EPA ICR No. 1884).

C. Regulatory Flexibility Act (RFA)

    This action is not subject to the RFA, 5 U.S.C. 601 et seq. The RFA 
applies only to rules subject to notice and comment rulemaking 
requirements under the APA, 5 U.S.C. 553, or any other statute. This 
rule is not subject to notice and comment requirements under the APA 
because the Agency has invoked the APA ``good cause'' exemption.

D. Unfunded Mandates Reform Act (UMRA)

    This action will not impose any enforceable duty or contain any 
unfunded mandate as described under Title II of UMRA, 2 U.S.C. 1531-
1538 et seq.

E. Executive Order 13132: Federalism

    This action will not have federalism impacts as defined in 
Executive Order 13132 (64 FR 43255, August 10, 1999) because this 
action will not have substantial direct effects on States, on the 
relationship between the Federal Government and States, or on the 
distribution of power and responsibilities between the Federal 
Government and States.

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

    This action will not have tribal implications as defined in 
Executive Order 13175 (65 FR 67249, November 9, 2000) because this 
action will not have substantial direct effects on tribal governments, 
on the relationship between the Federal Government and Indian tribes, 
or on the distribution of power and responsibilities between the 
Federal Government and Indian tribes.

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

    This action is not subject to Executive Order 13045 (62 FR 19885, 
April 23, 1997), because this is not an economically significant 
regulatory action as defined under Executive Order 12866, and it does 
not address environmental health or safety risks disproportionately 
affecting children.

H. Executive Order 13211: Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use

    This action is not subject to Executive Order 13211 (66 FR 28355, 
May 22, 2001), because this action is not expected to affect energy 
supply, distribution, or use and because this action is not a 
significant regulatory action under Executive Order 12866.

I. National Technology Transfer and Advancement Act (NTTAA)

    Since this action does not involve any technical standards, NTTAA 
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 (59 FR 
7629, February 16, 1994).

K. Congressional Review Act (CRA)

    This action is subject to the CRA, 5 U.S.C. 801 et seq., and EPA 
will submit a rule report to each House of the Congress and to the 
Comptroller General of the United States. This action is not a ``major 
rule'' as defined by 5 U.S.C. 804(2).

List of Subjects in 40 CFR Part 711

    Environmental protection, Chemicals, Confidential Business 
Information (CBI), Hazardous materials, Importer, Manufacturer, 
Reporting and recordkeeping requirements.

    Dated: November 17, 2020.
Alexandra Dapolito Dunn,
Assistant Administrator, Office of Chemical Safety and Pollution 
Prevention.

    Therefore, for the reasons stated in the preamble, EPA amends 40 
CFR chapter I as follows:

PART 711--TSCA CHEMICAL DATA REPORTING REQUIREMENTS

0
1. The authority citation for part 711 continues to read as follows:

    Authority:  15 U.S.C. 2607(a).


0
2. Revise Sec.  711.20 to read as follows:


Sec.  711.20  When to report.

    All information reported to EPA in response to the requirements of 
this part must be submitted during an applicable submission period. The 
2020 CDR submission period is from June 1, 2020, to January 29, 2021. 
Subsequent recurring submission periods are from June 1 to September 30 
at 4-year intervals, beginning in 2024. In each submission period, any 
person described in Sec.  711.8 must report as described in this part.

[FR Doc. 2020-25824 Filed 11-24-20; 8:45 am]
BILLING CODE 6560-50-P


