31728 Federal Register / Vol. 77, No. 104 / Wednesday, May 30, 2012 / Rules and Regulations 

Dated: May 14, 2012. 

Susan Hedman, 

Regional Administrator, Region 5. 

PART 52—[AMENDED] 

■ Accordingly, the amendment to 40 

CFR 52.720 published in the Federal 

Register on April 16, 2012 (77 FR 

22497) on page 22500 is withdrawn as 

of May 30, 2012. 

[FR Doc. 2012–12507 Filed 5–29–12; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 721 

[EPA–HQ–OPPT–2010–0630; FRL–9345–9] 

RIN 2070–AJ71 

Elemental Mercury Used in 

Barometers, Manometers, 

Hygrometers, and Psychrometers; 

Significant New Use Rule 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule. 

SUMMARY: EPA is promulgating a 

significant new use rule (SNUR) under 

the Toxic Substances Control Act 

(TSCA) for elemental mercury use in 

barometers, manometers, hygrometers, 

and psychrometers. This action will 

require persons who intend to 

manufacture (including import) or 

process elemental mercury for an 

activity that is designated as a 

significant new use by this final rule to 

notify EPA at least 90 days before 

commencing that activity. The required 

notification will provide EPA with the 

opportunity to evaluate the intended 

use and, if necessary, to prohibit or limit 

that activity before it occurs. 

DATES: This final rule is effective June 

29, 2012. 

ADDRESSES: EPA has established a 

docket for this action under docket 

identification (ID) number EPA–HQ– 

OPPT–2010–0630. All documents in the 

docket are listed in the docket index 

available at http://www.regulations.gov. 

Although listed in the index, some 

information is not publicly available, 

e.g., Confidential Business Information 

(CBI) or other information whose 

disclosure is restricted by statute. 

Certain other material, such as 

copyrighted material, is not placed on 

the Internet and will be publicly 

available only in hard copy form. 

Publicly available docket materials are 

available in the electronic docket at 

http://www.regulations.gov, or, if only 

available in hard copy, at the OPPT 

Docket. The OPPT Docket is located in 

the EPA Docket Center (EPA/DC) at Rm. 

3334, EPA West Bldg., 1301 

Constitution Ave. NW., Washington, 

DC. The EPA/DC Public Reading Room 

hours of operation are 8:30 a.m. to 4:30 

p.m., Monday through Friday, excluding 

legal holidays. The telephone number of 

the EPA/DC Public Reading Room is 

(202) 566–1744, and the telephone 

number for the OPPT Docket is (202) 

566–0280. Docket visitors are required 

to show photographic identification, 

pass through a metal detector, and sign 

the EPA visitor log. All visitor bags are 

processed through an X-ray machine 

and subject to search. Visitors will be 

provided an EPA/DC badge that must be 

visible at all times in the building and 

returned upon departure. 

FOR FURTHER INFORMATION CONTACT: For 

technical information contact: Sue 

Slotnick, 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) 566–1973; 

email address: slotnick.sue@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: TSCAHotline@epa.gov. 

SUPPLEMENTARY INFORMATION: 

I. 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 used in barometers, 

manometers, or hygrometers or 

psychrometers. Potentially affected 

entities may include, but are not limited 

to: 

• Manufacturers, of instruments and 

related products for measuring, 

displaying, and controlling industrial 

process variables (North American 

Industrial Classification System NAICS 

code 334513). 

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. 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. 

This action may also affect certain 

entities through pre-existing import 

certification and export notification 

rules under TSCA. Persons who import 

any chemical substance governed by a 

final SNUR are subject to the TSCA 

section 13 (15 U.S.C. 2612) import 

certification requirements and the 

corresponding regulations at 19 CFR 

12.118 through 12.127; see also 19 CFR 

127.28. Chemical importers must certify 

that shipments of the chemical 

substance comply with all applicable 

rules and orders under TSCA, including 

any SNURs. The EPA policy in support 

of import certification appears at 40 CFR 

part 707, subpart B. In addition, TSCA 

section 12(b) (15 U.S.C. 2611(b)) export 

notification requirements are triggered 

by publication of a proposed SNUR. 

Therefore, on or after June 6, 2011, any 

persons who export or intend to export 

elemental mercury are subject to the 

export notification provisions of TSCA 

section 12(b) (see § 721.20) and must 

comply with the export notification 

requirements in 40 CFR part 707, 

subpart D. Note that as of January 1, 

2013, the Mercury Export Ban Act of 

2008 prohibits the export of elemental 

mercury from the United States (see 

TSCA section 12(c) (15 U.S.C. 2611(c)). 

II. Background 

A. What action is the agency taking? 

EPA proposed a SNUR for elemental 

mercury used in barometers, 

manometers, hygrometers, and 

pyrometers in the Federal Register of 

May 6, 2011 (Ref. 1). EPA’s response to 

the public comment received on the 

proposed rule appears in Unit III.C. 

This final SNUR will require persons 

to notify EPA at least 90 days before 

commencing the manufacture, import, 

or processing of elemental mercury for 

any of the following significant new 

uses: Use in barometers, manometers, 

hygrometers, and psychrometers, except 

for use in barometers, manometers, 

hygrometers, and psychrometers that 

were in service prior to May 6, 2011, the 

publication date of the proposed rule 

(Ref. 1). Also not included, because the 

activity is ongoing, is the use of 

elemental mercury in portable batterypowered motor-aspirated psychrometers 

that contain fewer than seven grams of 

elemental mercury. 

Sphygmomanometers, a type of 

manometer, as well as other ‘‘devices’’ 

as defined under section 201 of the 

Federal Food, Drug, and Cosmetics Act 

(FFDCA), will not be affected by this 

final rule when manufactured, 

imported, or processed for use as a 

device, per TSCA section 3(2)(B)(vi). 

Finally, manometers used in the natural 


erowe on DSK2VPTVN1PROD with RULES
Federal Register / Vol. 77, No. 104 / Wednesday, May 30, 2012 / Rules and Regulations 31729 

gas industry will not be affected by this 

final rule because they are included in 

a previous SNUR (Ref. 2). 

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: 

• 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. 

In addition to these factors enumerated 

in TSCA section 5(a)(2), the statute 

authorizes EPA to consider any other 

relevant factors. 

Once EPA determines that a use of a 

chemical substance is a significant new 

use, 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, import, or 

process the chemical substance for that 

use (15 U.S.C. 2604(a)(1)(B)). As 

described in Unit II.C., the general 

SNUR provisions are found at 40 CFR 

part 721, subpart A. 

C. Applicability of General Provisions 

General provisions for SNURs appear 

under 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, 

§ 721.45(f) does not apply to this SNUR. 

As a result, persons subject to the 

provisions of this final rule are not 

exempt from significant new use 

reporting if they import or process 

elemental mercury as part of an article 

(see § 721.5). Conversely, the exemption 

from notification requirements for 

exported articles (see 40 CFR 707.60(b)) 

remains in force. Thus, persons who 

export elemental mercury as part of an 

article are not required to provide 

export notification. 

Provisions relating to user fees appear 

at 40 CFR part 700. According to 

§ 721.1(c), persons subject to SNURs 

must comply with the same notice 

requirements and EPA regulatory 

procedures as submitters of 

Premanufacture Notices (PMNs) under 

TSCA section 5(a)(1)(A). In particular, 

these requirements include the 

information submission requirements of 

TSCA section 5(b) and 5(d)(1), the 

exemptions authorized by TSCA section 

5(h)(1), (h)(2), (h)(3), and (h)(5), and the 

regulations at 40 CFR part 720. Once 

EPA receives a SNUN, EPA may take 

regulatory action under TSCA section 

5(e), 5(f), 6, or 7 to control the activities 

on which it has received the SNUN. If 

EPA does not take action, EPA is 

required under TSCA section 5(g) to 

explain in a Federal Register document 

its reasons for not taking action. 

Persons who export or 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 

interpret TSCA section 12(b) appear at 

40 CFR part 707, subpart D. Persons 

who import a chemical substance 

identified in a final SNUR are subject to 

the TSCA section 13 import certification 

requirements, codified at 19 CFR 12.118 

through 12.127; see also 19 CFR 127.28. 

Such persons must certify that the 

shipment of the chemical substance 

complies with all applicable rules and 

orders under TSCA, including any 

SNURs. The EPA policy in support of 

import certification appears at 40 CFR 

part 707, subpart B. 

III. Summary of Final Rule 

A. Overview of Mercury and Mercury 

Uses 

1. Mercury. This final rule applies to 

elemental mercury (CAS No. 7439–97– 

6). Mercury is a naturally occurring 

element. Because of its unique 

properties (e.g., exists as a liquid at 

room temperature and forms amalgams 

with many metals), elemental mercury 

has been used in many industrial 

processes and consumer products. In 

addition to its useful characteristics, 

mercury also is known to cause adverse 

health effects in humans and wildlife. 

These effects can vary depending on the 

form of mercury to which a person or 

animal is exposed, as well as the 

magnitude, duration, and frequency of 

exposure. The most prevalent human 

and wildlife exposure to mercury results 

from ingesting fish contaminated with 

methylmercury. Methylmercury is an 

organo-metallic compound that is 

formed via the conversion of elemental 

or inorganic mercury compounds by 

certain microorganisms and other 

natural processes. For example, 

elemental mercury may evaporate and 

be emitted into the atmosphere. 

Atmospheric mercury can then be 

deposited directly into water bodies or 

watersheds, where it can be washed into 

surface waters via overland run-off. 

Once deposited in sediments, certain 

microorganisms and other natural 

processes can convert elemental 

mercury into methylmercury. 

Methylmercury bioaccumulates, 

which means that it is taken up and 

concentrated in the tissues of aquatic, 

mammalian, avian, and other wildlife. 

Methylmercury is a highly toxic 

substance; a number of adverse health 

effects associated with exposure to it 

have been identified in humans and in 

animal studies. Most extensive are the 

data on neurotoxicity, particularly in 

developing organisms. Fetuses, infants, 

and young children generally are more 

sensitive than adults to the neurological 

effects of methylmercury. 

In 2004, EPA and the Food and Drug 

Administration (FDA) issued a national 

consumption advisory concerning 

mercury in fish. The advisory contains 

recommended limits on the amount of 

certain types of fish and shellfish that 

pregnant women and young children 

can safely consume. By 2005, all 50 

States had issued fish consumption 

advisories for fish from certain water 

bodies known to be contaminated by 

methylmercury. See http:// 

www.epa.gov/mercury/advisories.htm. 

In addition to methylmercury, 

exposure to elemental mercury can also 

pose health risks. Elemental mercury 

primarily causes health effects when it 

is breathed as a vapor that can be 

absorbed through the lungs. These 

exposures can occur when elemental 

mercury is spilled, or products that 

contain elemental mercury break, 

resulting in releases of mercury to the 

air, particularly in warm or poorly 

ventilated indoor spaces. 

For a more detailed summary of 

background information (e.g., chemistry, 

environmental fate, exposure pathways, 

and health and environmental effects), 

as well as references pertaining to 

elemental mercury that EPA considered 

before promulgating this final rule, 

please refer to EPA’s proposed SNUR for 

mercury switches in motor vehicles 

(Ref. 3), or see the docket for that 

proposed rule under docket ID number 

EPA–HQ–OPPT–2005–0036. All 

documents in the docket are listed in 

the docket’s index, which is available at 

http://www.regulations.gov. 

2. Mercury uses. Elemental mercury 

has been used in thousands of products 

and applications. Over the past 2 

decades, there has been a dramatic drop 

in elemental mercury use by industries 

in the United States. In response to 


erowe on DSK2VPTVN1PROD with RULES
31730 Federal Register / Vol. 77, No. 104 / Wednesday, May 30, 2012 / Rules and Regulations 

increased concerns about exposure to 

anthropogenic sources of mercury in the 

environment and also because of the 

availability of suitable mercury-free 

products, Federal and State 

governments have made efforts to limit 

the use of elemental mercury in certain 

products. Various States have banned or 

restricted the manufacture or sale of 

products containing mercury. While this 

is not the rationale for this final rule, it 

does indicate that the transition to costeffective non-mercury alternatives is 

already established. See http:// 

www.epa.gov/mercury/regs.htm#states. 

On October 5, 2007, EPA issued a 

final SNUR for elemental mercury used 

in convenience light switches, anti-lock 

braking system switches, and active ride 

control system switches in certain motor 

vehicles (Ref. 4). EPA promulgated 

another SNUR for flow meters, natural 

gas manometers, and pyrometers on July 

21, 2010 (Ref. 2). For more information 

on EPA activities on mercury in 

products and other areas; see http:// 

www.epa.gov/hg. 

In the past, elemental mercury was 

used in the manufacture of barometers, 

manometers, hygrometers, and 

psychrometers. The latest information 

available to EPA indicates that the 

manufacture (including import) of these 

mercury-containing articles has ceased 

(with the exception of one psychrometer 

as described at Unit III.A.5.). EPA also 

has found that all four products subject 

to this SNUR currently have effective 

and economically feasible substitutes 

(Ref. 5). 

3. Barometers containing elemental 

mercury. Barometers are instruments 

which measure atmospheric pressure. 

Mercury barometers were manufactured 

as a long cylindrical tube, typically 

closed at one end, with a mercury-filled 

reservoir at the base. The weight of 

mercury created a vacuum at the top of 

the tube, and the mercury adjusted until 

the pressure inside the reservoir equaled 

the atmospheric pressure. Rising 

mercury indicated increasing air 

pressure while dropping mercury 

indicated decreasing air pressure. 

Historically, mercury barometers were 

used in applications where measuring 

and monitoring changes in air pressure 

are important, such as weather stations, 

airports, and ships. Additional uses 

include scientific demonstration in 

schools and non-mercury device 

calibration. A mercury barometer 

contains between 400 and 620 grams of 

mercury (Ref. 5). 

Alternatives to mercury-containing 

barometers include aneroid, electronic, 

and other liquid-based (water or ecocelli) barometers. At least eight States 

have banned the sale of mercurycontaining barometers. Three additional 

States have general phase-outs of 

mercury-added products. EPA found 

sufficient information to conclude that 

mercury-containing barometers are no 

longer manufactured in or imported into 

the United States (Ref. 5). 

4. Manometers containing elemental 

mercury. A manometer is an instrument 

used to measure pressure of gases or 

liquids. Mercury-containing 

manometers were manufactured for use 

in sectors such as dairy farms; heating, 

ventilation, and air conditioning/ 

plumbing (HVAC) installation and 

repair; auto/motorcycle industry; 

laboratories; and in general industrial 

uses. The amount of mercury used in a 

single manometer ranged between 

approximately 30 grams and 525 grams 

(Ref. 5). 

Alternatives to mercury-containing 

manometers include hydrostatic gauges 

using mercury-free liquid, aneroid 

manometers, needle-bourdon gauges, 

and digital manometers. At least five 

States have banned the sale of mercurycontaining manometers, and four 

additional States have banned the sale 

of mercury-containing dairy 

manometers. The general phase-outs of 

mercury products in three States apply 

to manometers. EPA found sufficient 

information to conclude that mercurycontaining manometers are no longer 

manufactured in or imported into the 

United States (Ref. 5). 

5. Hygrometers and psychrometers 

containing elemental mercury. 

Hygrometers are instruments used to 

measure relative humidity (i.e., the 

moisture content of the air). 

Psychrometers, which are the most 

common type of hygrometer, use two 

mercury-added thermometers, one with 

a wetted base, and one with a dry base. 

Hygrometers and psychrometers 

function similarly; however, they are 

used in different applications. 

Historically, mercury-containing 

hygrometers were used for cigar and 

tobacco humidors, or in residential 

settings, while mercury-containing 

psychrometers were used by 

atmospheric scientists and weather 

enthusiasts. The amount of mercury in 

a single hygrometer or psychrometer 

was between three and seven grams 

(Ref. 5). 

There are two types of alternatives to 

mercury-added hygrometers that are 

readily available and widely used: 

Spirit-filled devices, which use methyl 

alcohol or citrus oil thermometers and 

provide results with comparable 

accuracy to mercury-added 

thermometers; and digital devices, 

which use electronic sensors to measure 

humidity changes and, when calibrated 

properly, provide results that are as 

accurate as mercury devices (Ref. 5). 

Seven States have banned the sale and 

distribution of mercury-containing 

hygrometers and psychrometers and the 

devices are subject to the general phaseouts of mercury products in three States. 

EPA found sufficient information to 

conclude that only one type of mercurycontaining psychrometer is 

manufactured in or imported into the 

United States. That one type is a 

portable, battery-powered, motoraspirated psychrometer containing less 

than seven grams of elemental mercury 

(Ref. 5). 

6. Potential exposure and release. The 

typical lifecycle of barometers, 

manometers, hygrometers, and 

psychrometers includes several stages: 

Manufacture, distribution in commerce, 

use, and waste management (landfilling 

or recycling). At any point in the 

lifecycle, there is potential for mercury 

to be released as liquid or vapor. 

Workers and others can be exposed to 

the mercury and it can be released into 

water, air, or onto land as the mercury 

is transported, stored, and handled 

during manufacturing. While the 

barometers, manometers, hygrometers, 

and psychrometers are in use, the 

mercury can vaporize or spill due to 

breakage during transport, installation, 

maintenance, refilling, or repair. Other 

opportunities for release can occur at 

the end of the lifecycle of barometers, 

manometers, hygrometers, and 

psychrometers as these devices are 

removed from equipment and facilities, 

and handled during waste management. 

B. This Action 

EPA is designating as significant new 

uses the use of elemental mercury in 

barometers, manometers, hygrometers, 

and psychrometers. However, use of 

elemental mercury in these articles that 

were in service prior to May 6, 2011, 

will not be covered as a significant new 

use under this SNUR. Also, use of 

mercury in portable, battery-powered, 

motor-aspirated psychrometers that 

contain fewer than seven grams of 

mercury is an ongoing use and therefore 

will not be covered by this SNUR. Due 

to EPA’s concern about use of mercury 

in products, the Agency may take other 

action to facilitate the evaluation or 

control of ongoing uses, as appropriate. 

For the portable, battery-powered, 

motor-aspirated psychrometers that 

contain fewer than seven grams of 

mercury, EPA may consider whether 

risk management or other actions will 

be appropriate. Use of mercury in 

manometers used in the natural gas 

industry will not be affected by this 

SNUR because they are included in a 


erowe on DSK2VPTVN1PROD with RULES
Federal Register / Vol. 77, No. 104 / Wednesday, May 30, 2012 / Rules and Regulations 31731 

previous SNUR (Ref 2). Definitions of 

‘‘barometer,’’ ‘‘manometer,’’ 

‘‘hygrometer’’ and ‘‘psychrometer’’ can 

be found at § 721.10068 of the 

regulatory text. 

This action will amend § 721.10068 

and require persons who intend to 

manufacture or process elemental 

mercury for a use designated by this 

final rule as a significant new use to 

notify EPA at least 90 days before 

commencing the manufacturing or 

processing of elemental mercury for 

such significant new use. The required 

notification will provide EPA with the 

opportunity to evaluate the intended 

use and, if necessary, to prohibit or limit 

that activity before it occurs. 

For this SNUR, EPA is not including 

the general ‘‘article’’ exemption at 

§ 721.45(f). Thus, persons importing or 

processing elemental mercury 

(including when part of an article) for a 

significant new use will be subject to 

the notification requirements of 

§ 721.25. EPA is not including this 

exemption because barometers, 

manometers, hygrometers, and 

psychrometers are articles, and a 

primary concern associated with this 

SNUR is potential exposures associated 

with the lifecycle of these uses. EPA 

notes that, in accordance with TSCA 

section 12(a) and § 721.45(g), persons 

who manufacture or process elemental 

mercury solely for export will be 

exempt from the notification 

requirements of § 721.25, if when 

distributing the substance in commerce, 

it is labeled in accordance with TSCA 

section 12(a)(1)(B). Further, EPA notes 

that the exemption from the TSCA 

section 12(b) notification requirements 

for exported articles (see 40 CFR 

707.60(b)) will remain in force. Thus, 

persons who export elemental mercury 

as part of an article will not be required 

to provide export notification. 

EPA believes elemental mercury is no 

longer used to manufacture barometers, 

manometers, hygrometers, and 

psychrometers (with one exception as 

discussed), but some of these articles 

may remain in service in the United 

States. The ongoing use of such articles, 

including some maintenance and 

servicing activities, falls outside of the 

scope of this SNUR. Thus, the 

manufacturing and processing of 

elemental mercury for use in these 

articles, provided that they were in 

service prior to the May 6, 2011 

proposed rule (Ref. 1), will not be 

covered by the final rule. For example, 

if an article that was in service prior to 

May 6, 2011, is removed from service 

for maintenance or servicing, including 

the addition of new mercury, and then 

placed back into service, any 

manufacturing or processing of mercury 

associated with that maintenance or 

servicing is not covered by the final 

rule. Otherwise, the addition of mercury 

to these existing articles could 

potentially trigger a SNUN under this 

final rule (i.e., if it involved processing 

of the mercury), which is not EPA’s 

intent. 

C. Response to Public Comment 

EPA received one comment on the 

May 6, 2011 proposed rule (Ref. 1). A 

copy of the comment is in the docket for 

this final rule. The comment did not 

provide any data or make any assertions 

that manufacture, import, processing, 

distribution, or use of elemental 

mercury in barometers, manometers, or 

hygrometers, and pyrometers is ongoing. 

A summary of the comment and EPA’s 

response follow. 

The commenter suggested that the 

Federal Government take some form of 

regulatory action to address the mercury 

products excluded from the final rule. 

The products are portable, batterypowered, motor-aspirated 

psychrometers that contain fewer than 

seven grams of elemental mercury. The 

comment also expressed concern that 

issuance of the SNUR would still allow 

for future production of mercurycontaining barometers, manometers, 

hygrometers, and psychrometers, which 

could lead to ‘‘detrimental 

environmental impact and exposure.’’ 

The comment continues: ‘‘If any 

resurgence in interest in the production 

of such products occurs, the EPA should 

consider regulation under TSCA Section 

6.’’ EPA’s response is that the 

psychrometers were excluded because 

the use of mercury in such articles is an 

ongoing use and therefore not a new use 

that can be subject to a SNUR. As stated 

in Unit III.B., the Agency may take other 

action to facilitate the evaluation or 

control of ongoing uses of mercury, and 

may consider risk management actions 

for them, as appropriate. Second, the 

purpose of the SNUR is to provide an 

opportunity for EPA to evaluate and 

control, where appropriate, use of 

mercury in the four types of mercury 

products, if needed, before any of those 

uses occurs. The SNUR provides this 

opportunity by requiring that 

manufacturers and importers notify EPA 

90 days before commencing use of 

mercury in the products. 

IV. Significant New Use Determination 

A. Rationale 

As summarized in Unit III.A., EPA 

has concerns regarding the 

environmental fate and the exposure 

pathways of elemental mercury that 

lead to the presence of methylmercury 

in fish and the consumption of mercurycontaminated fish by humans and 

wildlife. EPA is encouraged by the 

general discontinuation of the use of 

elemental mercury in the manufacturing 

of barometers, manometers, 

hygrometers, and psychrometers. 

However, EPA is concerned that the 

manufacturing or processing of 

elemental mercury for these significant 

new uses could be reinitiated in the 

future. Accordingly, EPA wants the 

opportunity to evaluate and control, 

where appropriate, activities associated 

with those uses, if such manufacturing 

or processing were to occur again. The 

required notification provided by a 

SNUN will provide EPA with the 

opportunity to evaluate activities 

associated with a significant new use 

and an opportunity to protect against 

unreasonable risks, if any, from 

exposure to mercury. 

Consistent with EPA’s past practice 

for issuing SNURs under TSCA section 

5(a)(2), EPA’s decision to issue a SNUR 

for a particular chemical use need not 

be based on an extensive evaluation of 

the hazard, exposure, or potential risk 

associated with that use. Rather, the 

Agency’s action is based on EPA’s 

determination that if the use begins or 

resumes, it may present a risk that EPA 

should evaluate before the 

manufacturing or processing for that use 

begins. Since the new use does not 

currently exist, deferring a detailed 

consideration of potential risks or 

hazards related to that use is an effective 

use of resources. If a person decides to 

begin manufacturing or processing the 

chemical for the use, the notice to EPA 

allows the Agency to evaluate the use 

according to the specific parameters and 

circumstances surrounding that 

intended use. 

B. Objectives 

Based on the considerations in Unit 

IV.A., EPA has the following objectives 

with regard to the significant new uses 

that are designated in this final rule: 

1. EPA will receive notice of any 

person’s intent to manufacture or 

process elemental mercury for any of 

the described significant new uses 

before that activity begins. 

2. EPA will have an opportunity to 

review and evaluate data submitted in a 

SNUN before the notice submitter 

begins manufacturing or processing of 

elemental mercury for any of the 

described significant new uses. 

3. EPA will be able to regulate 

prospective manufacturers or processors 

of elemental mercury before the 

described significant new uses of the 

chemical substance occur, provided that 


erowe on DSK2VPTVN1PROD with RULES
31732 Federal Register / Vol. 77, No. 104 / Wednesday, May 30, 2012 / Rules and Regulations 

regulation is warranted pursuant to 

TSCA sections 5(e), 5(f), 6, or 7. 

C. Relevant Factors Considered for This 

SNUR 

Section 5(a)(2) of TSCA states 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 (see further detail at 

Unit II.B.). 

EPA has determined that 

manufacturing or processing of 

elemental mercury for use in 

barometers, manometers, or hygrometers 

or psychrometers is a significant new 

use. This determination is based on the 

following factor in TSCA section 5(a)(2): 

‘‘the extent to which a use increases the 

magnitude and duration of exposure of 

human beings or the environment to a 

chemical substance.’’ Increased 

exposure to mercury is significant 

because of the adverse health effects 

described at Unit III.A.1. The latest 

information available to EPA indicates 

that there is no ongoing use of elemental 

mercury in the manufacture or 

remanufacture of barometers, 

manometers, hygrometers, and all but 

one type of psychrometer. Resumption 

of these uses of elemental mercury 

could increase the magnitude and 

duration of exposure to workers and the 

surrounding environment at facilities of 

all types involved in the lifecycle of the 

products, as described in greater detail 

in Unit III.A.6. Increase in releases 

could contribute additional mercury to 

the atmosphere for long-range transport. 

Resumption of these uses could also 

result in exposures to workers who had 

not previously worked in these facilities 

when elemental mercury was commonly 

used, as well as exposures to workers 

who are not currently being exposed to 

mercury in the manufacture of 

barometers, manometers, hygrometers, 

or psychrometers. Increases in mercury 

releases could lead to increases in 

mercury concentrations in the 

environment and reduction in overall 

human health from consumption of 

mercury-contaminated fish. 

EPA believes that any of these 

renewed uses of elemental mercury will 

increase the magnitude and duration of 

exposure to humans and the 

environment over that which will 

otherwise exist. Thus, EPA has 

determined that any manufacturing or 

processing of elemental mercury for use 

in barometers, manometers, or 

hygrometers or psychrometers is a 

significant new use, except for mercury 

use in barometers, manometers, 

hygrometers, and psychrometers that 

were in service prior to May 6, 2011; 

and in portable, battery-powered, motoraspirated psychrometers that contain 

less than seven grams of elemental 

mercury. 

V. Applicability of Rule to Uses 

Occurring Before Effective Date of the 

Final Rule 

As discussed in the Federal Register 

of April 24, 1990 (55 FR 17376), EPA 

has decided that the intent of TSCA 

section 5(a)(1)(B) 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. If uses 

begun after publication of the proposed 

rule were considered ongoing rather 

than new, it would be difficult for EPA 

to establish SNUR notice requirements, 

because a person could defeat the SNUR 

by initiating the proposed significant 

new use before the rule became final, 

and then argue that the use was ongoing 

as of the effective date of the final rule. 

Thus, persons who began or begin 

commercial manufacture or processing 

of the elemental mercury for a 

significant new use designated in this 

rule must cease any such activity before 

the effective date of the final rule. To 

resume their activities, these persons 

must comply with all applicable SNUR 

notice 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 

meets the conditions of advance 

compliance under § 721.45(h), that 

person is considered to have met the 

requirements of the final SNUR for 

those activities. 

VI. Test Data and Other Information 

EPA recognizes that TSCA section 5 

does not require the development of any 

particular test data before submission of 

a SNUN. There are two exceptions: 

1. Development of test data is 

required where the chemical substance 

subject to the SNUR is also subject to a 

test rule under TSCA section 4 (see 

TSCA section 5(b)(1)). 

2. Development of test data may be 

necessary where the chemical substance 

has been listed under TSCA section 

5(b)(4) (see TSCA section 5(b)(2)). 

In the absence of a TSCA section 4 

test rule or a TSCA section 5(b)(4) 

listing covering the chemical substance, 

persons are required only to submit test 

data in their possession or control and 

to describe any other data known to or 

reasonably ascertainable by them (15 

U.S.C. 2604(d); § 721.25, and 40 CFR 

720.50). However, as a general matter, 

EPA recommends that SNUN submitters 

include data that would permit a 

reasoned evaluation of risks posed by 

the chemical substance during its 

manufacture, processing, use, 

distribution in commerce, or disposal. 

EPA encourages persons to consult with 

the Agency before submitting a SNUN. 

As part of this optional pre-notice 

consultation, EPA would discuss 

specific data it believes may be useful 

in evaluating a significant new use. 

SNUNs submitted for significant new 

uses without any test data may increase 

the likelihood that EPA will take action 

under TSCA section 5(e) to prohibit or 

limit activities associated with this 

chemical. 

SNUN submitters should be aware 

that EPA will be better able to evaluate 

SNUNs that provide detailed 

information on: 

• Human exposure and 

environmental releases that may result 

from the significant new uses of the 

chemical substance. 

• Potential benefits of the chemical 

substance. 

• Information on risks posed by the 

chemical substances compared to risks 

posed by potential substitutes. 

VII. SNUN Submissions 

According to § 721.1(c), persons 

submitting a SNUN must comply with 

the same notice requirements and EPA 

regulatory procedures as persons 

submitting a PMN, including 

submission of test data on health and 

environmental effects as described in 40 

CFR 720.50. SNUNs must be on EPA 

Form No. 7710–25, generated using 

e-PMN software, and submitted to the 

Agency in accordance with the 

procedures set forth in 40 CFR 720.40 

and 721.25. The e-PMN software is 

available electronically at http:// 

www.epa.gov/opptintr/newchems. 

VIII. Economic Analysis 

EPA has evaluated the potential costs 

of establishing SNUR reporting 

requirements for potential 

manufacturers and processors of the 

chemical substance included in this 

final rule. EPA’s economic analysis (Ref. 

5), which is briefly summarized here, is 

available in the docket for this final 

rule. 

The use of elemental mercury for 

manufacturing the specified mercurycontaining products in the United States 

appears to have ceased and EPA expects 

very few, if any, entities will submit a 

SNUN. As a result, the economic impact 

of this final rule is anticipated to be 

either zero or very low. 

In the event that a SNUN is 

submitted, costs are estimated at 

approximately $8,300 per SNUN 

submission, and include the cost to 


erowe on DSK2VPTVN1PROD with RULES
Federal Register / Vol. 77, No. 104 / Wednesday, May 30, 2012 / Rules and Regulations 31733 

prepare and submit the SNUN, and the 

payment of a user fee. Businesses that 

submit a SNUN are subject to either a 

$2,500 user fee required by 40 CFR 

700.45(b)(2)(iii), or, if they are a small 

business with annual sales of less than 

$40 million when combined with those 

of the parent company (if any), a 

reduced user fee of $100 (40 CFR 

700.45(b)(1)). In its evaluation of this 

final rule, EPA also considered the 

potential costs a company might incur 

by avoiding or delaying the significant 

new use in the future, but these costs 

have not been quantified. 

IX. References 

The following documents are 

specifically referenced in the preamble 

for this final rule. In addition to these 

documents, other materials may be 

available in the docket established for 

this final rule under Docket ID number 

EPA–HQ–OPPT–2010–0630, which you 

can access through http:// 

www.regulations.gov. Those interested 

in the information considered by EPA in 

developing this final rule should also 

consult documents that are referenced 

in the documents that EPA has placed 

in the docket, regardless of whether the 

other documents are physically located 

in the docket. 

1. EPA. Elemental Mercury Used in 

Barometers, Manometers, Hygrometers/ 

Psychrometers; Significant New Use 

Rule; Proposed Rule. Federal Register 

(76 FR 26225, May 6, 2011) (FRL–8871– 

7). 

2. EPA. Elemental Mercury Used in Flow 

Meters, Natural Gas Manometers, and 

Pyrometers; Significant New Use Rule; 

Final Rule. Federal Register (75 FR 

42330, July 21, 2010) (FRL–8832–2). 

3. EPA. Mercury Switches in Motor Vehicles; 

Proposed Significant New Use Rule; 

Proposed Rule. Federal Register (71 FR 

39035, July 11, 2006) (FRL–7733–9). 

4. EPA. Mercury Switches in Motor Vehicles; 

Significant New Use Rule; Final Rule. 

Federal Register (72 FR 56903, October 

5, 2007) (FRL–8110–5). 

5. EPA. 2012. Economic Analysis of the Final 

Significant New Use Rule for MercuryContaining Barometers, Manometers, 

Hygrometers, and Psychrometers. 

Washington, DC. OPPT/Economics, 

Exposure and Technology Division 

(EETD)/Economic and Policy Analysis 

Branch (EPAB). March 26, 2012. 

X. Statutory and Executive Order 

Reviews 

A. Regulatory Planning and Review 

Under Executive Order 12866, 

entitled ‘‘Regulatory Planning and 

Review’’ (58 FR 51783, October 4, 1993), 

this action is not a ‘‘significant 

regulatory action,’’ and was not 

reviewed by the Office of Management 

and Budget (OMB) under Executive 

Orders 12866 and 13563, entitled 

‘‘Improving Regulation and Regulatory 

Review’’ (76 FR 3821, January 21, 2011). 

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 PRA, 

unless it has been approved by OMB 

and displays a currently valid OMB 

control number. The OMB control 

numbers for certain EPA 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 PRA under OMB control 

number 2070–0038 (EPA ICR No. 1188). 

This action does 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 97 hours per response. 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. 

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 

will not have a significant economic 

impact on a substantial number of small 

entities. The rationale supporting this 

conclusion is as follows. 

Under RFA, small entities include 

small businesses, small organizations, 

and small governmental jurisdictions. 

Small entity is defined in accordance 

with section 601 of RFA as: A small 

business as defined by the Small 

Business Administration’s (SBA) 

regulations at 13 CFR 121.201; a small 

governmental jurisdiction is a 

government of a city, county, town, 

school district or special district with a 

population of less than 50,000; and a 

small organization is any not-for-profit 

enterprise which is independently 

owned and operated and is not 

dominant in its field. For purposes of 

assessing the impacts of this rule on 

small entities, EPA has determined that 

this final rule is not expected to impact 

any small not-for-profit organizations or 

small governmental jurisdictions. As 

such, the Agency estimated potential 

impacts are focused on small business. 

A SNUR applies to any person 

(including small or large entities) who 

intends to manufacture, import, or 

process a chemical substance for a use 

the EPA has designated as a ‘‘significant 

new use.’’ By definition of the word 

‘‘new,’’ and based on information 

currently available to EPA, it appears 

that no small or large entities presently 

engage in such activity. Since this 

SNUR will require a person who intends 

to engage in such activity in the future 

to first notify EPA by submitting a 

SNUN, no economic impact will occur 

unless someone files a SNUN to pursue 

a significant new use in the future or 

forgoes profits by avoiding or delaying 

the significant new use. 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 SNURs covering 

over 1,000 chemical substances, the 

Agency receives only a handful of 

notices per year. For example, the 

number of SNUNs was four in Federal 

fiscal year (FY) 2005, eight in FY2006, 

six in FY2007, eight in FY2008, and 

seven in FY2009. During this 5-year 

period, three small entities submitted a 

SNUN. Therefore, EPA believes that the 

potential economic impact of complying 

with a SNUR is not expected to be 

significant or adversely impact a 

substantial number of small entities. In 

a SNUR that published as a final rule in 

the Federal Register of August 8, 1997 

(62 FR 42690) (FRL–5735–4), 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. 

Although this final rule will not have 

a significant economic impact on a 

substantial number of small entities, 

EPA nonetheless has tried to reduce the 

impact of SNUR rulemakings on small 

entities. Businesses that submit a SNUN 

are subject to either a $2,500 user fee 

required by 40 CFR 700.45(b)(2)(iii), or, 

if they are a small business with annual 

sales of less than $40 million when 

combined with those of the parent 

company (if any), a reduced user fee of 

$100 (40 CFR 700.45(b)(1)). 

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 reason to 

believe that any State, local, or Tribal 


erowe on DSK2VPTVN1PROD with RULES
31734 Federal Register / Vol. 77, No. 104 / Wednesday, May 30, 2012 / Rules and Regulations 

government will be impacted by this 

rulemaking. As such, EPA has 

determined that this regulatory action 

will not impose any enforceable duty, 

contain any unfunded mandate, or 

otherwise have any effect on these 

governments or small governments such 

that it is subject to the requirements of 

sections 202, 203, 204, or 205 of the 

Unfunded Mandates Reform Act 

(UMRA), 2 U.S.C. 1531–1538. 

E. Federalism 

This action will not have federalism 

implications as specified in Executive 

Order 13132, entitled ‘‘Federalism’’ (64 

FR 43255, August 10, 1999) because it 

is not expected to 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. 

F. Indian Tribal Governments 

This action will not have tribal 

implications as specified in Executive 

Order 13175, entitled ‘‘Consultation and 

Coordination with Indian Tribal 

Governments’’ (65 FR 67249, November 

9, 2000). This action is not expected to 

have substantial direct effects on Indian 

Tribes, will not significantly or uniquely 

affect the communities of Indian Tribal 

governments, and will not involve or 

impose any requirements that affect 

Indian Tribes. 

G. Protection of Children 

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 this is not an 

economically significant regulatory 

action as defined by Executive Order 

12866, and this action does not address 

environmental health or safety risks 

disproportionately affecting children. 

H. Effect on Energy Supply, Distribution, 

or Use 

This action is not a ‘‘significant 

energy action’’ as defined in 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 

likely to have a significant adverse effect 

on the supply, distribution, or use of 

energy. 

I. Technical Standards 

Because this action will not involve 

any technical standards, section 12(d) of 

the National Technology Transfer and 

Advancement Act (NTTAA), 15 U.S.C. 

272 note, does not apply to this action. 

J. Environmental Justice 

This action will 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). 

XI. Congressional Review Act 

Pursuant to the Congressional Review 

Act, 5 U.S.C. 801 et seq., EPA will 

submit a report containing this rule and 

other required information to the U.S. 

Senate, the U.S. House of 

Representatives, and the Comptroller 

General of the United States prior to 

publication of the rule in the Federal 

Register. This action is not a ‘‘major 

rule’’ as defined by 5 U.S.C. 804(2). 

List of Subjects in 40 CFR Part 721 

Environmental protection, 

Barometers, Chemicals, Elemental 

mercury, Hazardous substances, 

Hygrometers, Manometers, 

Psychrometers, Reporting and 

recordkeeping requirements. 

Dated: May 3, 2012. 

Wendy C. Hamnett, 

Director, Office of Pollution Prevention and 

Toxics. 

Therefore, 40 CFR chapter I is 

amended as follows: 

PART 721—[AMENDED] 

■ 1. The authority citation for part 721 

continues to read as follows: 

Authority: 15 U.S.C. 2604, 2607, and 

2625(c). 

■ 2. In § 721.10068: 

■ a. Add the following definitions in 

alphabetical order to paragraph (a). 

■ b. Add paragraph (b)(2)(viii). 

The additions read as follows: 

§ 721.10068 Elemental mercury. 

(a) * * * 

Barometer means an instrument used 

in various applications to measure 

atmospheric pressure. 

* * * * * 

Hygrometer means an instrument 

used in various applications to measure 

humidity of gases. 

Manometer means an instrument used 

in various applications to measure 

pressure of gases or liquids. 

* * * * * 

Psychrometer means an instrument 

used in various applications to measure 

humidity of gases. 

* * * * * 

(b) * * * 

(2) * * * 

(viii) Manufacturing or processing of 

elemental mercury for use in 

barometers, manometers, hygrometers, 

and psychrometers except for: Natural 

gas manometers covered by paragraph 

(b)(2)(vii) of this section; barometers, 

manometers, hygrometers, and 

psychrometers that were in service prior 

to May 6, 2011; and portable battery 

powered and motor-aspirated 

psychrometers that contain fewer than 

seven grams of elemental mercury. 

* * * * * 

[FR Doc. 2012–13071 Filed 5–29–12; 8:45 am] 

BILLING CODE 6560–50–P 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 622 

[Docket No. 120213124–1066–02] 

RIN 0648–BB91 

Fisheries of the Caribbean, Gulf of 

Mexico, and South Atlantic; Reef Fish 

Fishery of the Gulf of Mexico; Red 

Snapper Management Measures 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Final rule. 

SUMMARY: NMFS issues this final rule to 

implement management measures 

described in a regulatory amendment to 

the Fishery Management Plan for the 

Reef Fish Resources of the Gulf of 

Mexico (FMP) prepared by the Gulf of 

Mexico Fishery Management Council 

(Council). This rule increases the 

commercial and recreational quotas for 

red snapper in the Gulf of Mexico (Gulf) 

reef fish fishery for the 2012 fishing 

year, and for the 2013 fishing year if 

NMFS determines the acceptable 

biological catch (ABC) is not exceeded 

in the 2012 fishing year; eliminates the 

October 1 closure date of the 

recreational fishing season; and 

announces the quota closure date of the 

2012 recreational fishing season. This 

final rule is intended to provide more 

flexibility in managing recreational red 

snapper and to help achieve optimum 

yield (OY) for the Gulf red snapper 

resource without increasing the risk of 

red snapper experiencing overfishing. 


erowe on DSK2VPTVN1PROD with RULES