Review - EPA Publishes TSCA Fees Final Rule

Today, the EPA published a final rule in the Federal Register (89 FR 12961-12979) for “Fees for the Administration of the Toxic Substances Control Act (TSCA)”. The notice of proposed rulemaking for this action was published on January 11^th, 2021. A supplemental NPRM was published on November 16^th, 2022. The effective date for today’s rule is April 22nd, 2024. This makes the required periodic adjustment of fees collected to support the EPA’s TSCA program.

 

For more details about the fee changes and the supporting TSCA cost data, see my article at CFSN Detailed Analysis - https://patrickcoyle.substack.com/p/epa-publishes-tsca-fees-final-rule - subscription required.

EPA Sends TSCA Fee Final Rule to OMB

On Friday the EPA sent a final rule to the OMB’s Office of Information and Regulatory Affairs (OIRA) for review. The final rule addresses the EPA’s Service Fees for the Administration of the Toxic Substances Control Act. The NPRM for this rulemaking was published in February.

EPA Publishes TSCA Fee NPRM

The Environmental Protection Agency (EPA) is publishing a notice of proposed rulemaking in the Monday edition of the Federal Register (83 FR 8212-8235) proposing user fees for the administration of the Toxic Substances Control Act. In accordance with 15 USC 2625(b) the rule proposes to establish fees to defray some of the Agency costs related to activities under TSCA sections 2604, 2605, 2606 and 2613 and establish a definition of ‘small business concern’ to be used for establishing lower fees as directed by Congress.

Agency TSCA Costs

Since under the revised 15 USC 2625(b)(4)(F) the EPA is required to set fees so as to defray the costs of administering the TSCA program, it must first establish those costs. The preamble discusses how the Agency came up with their annual program cost estimate of $80.2 million. Details are provided for how the cost estimates were made for §2604, §2605, §2606, and §2613.

It is interesting to note that the EPA is not considering in this NPRM to assess greater fees for submissions containing CBI claims.

Setting Fees

While the EPA is required to collect fees to defray not more than 25 percent of the costs to the Administrator for the administration of these four sections, the Administrator does have some leeway in establishing the specific fees for each section to reach that goal. In this NPRM the Agency is proposing to set specific fee levels for each of the covered activities with the aggregate amount collected reaching the total allowed 25%.

The table below shows the fees established by the revised 40 CFR 700.45 proposed in this NPRM.

Activity (40 CFR §)	Small Business	All Others
Premanufacturing Notice (§720)	$2,800	$16,000
Significant New Use (§721)	$2,800	$16,000
Exemption Application (§723.50 and §725)	$940	$4,700
Instant photographic film article exemption notice (§723.175)	$940	$4.700
Microbial commercial activity notice (§725)	$2,800	$16,000
Test rule	$1,960	$9,800
Test order	$5,900	$29,500
Enforceable Consent Agreement	$4,560	$22,800
EPA-initiated chemical risk evaluation	$270,000	$1,350,000
Manufacturer-requested risk evaluation of a Work Plan Chemical	NA	$1,300,000
Manufacturer-requested risk evaluation of a Non-Work Plan Chemical	NA	$2,600,000

Small Business Definition

In this NPRM the EPA is also proposing to update the definition of a ‘small business concern’ found at 40 CFR 700.43. They are adjusting the annual sales figure limit in the definition by applying an inflation correction to the current sales figure and using a three-year sales average instead of the latest sales figure. The new definition sets that average sales figure at $91 million.

Public Comment

The EPA is soliciting public comments on this NPRM. Comments may be submitted via the Federal eRulemaking Portal (www.Regulations.gov; Docket # EPA-HQ-OPPT-2016-0401). Comments should be submitted before April 27^th, 2018.