42330 Federal Register / Vol. 75, No. 139 / Wednesday, July 21, 2010 / Rules and Regulations 

Commodity Parts per 

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[FR Doc. 2010–17793 Filed 7–20–10; 8:45 am] 

BILLING CODE 6560–50–S 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 721 

[EPA–HQ–OPPT–2008–0483; FRL–8832–2] 

RIN 2070–AJ36 

Elemental Mercury Used in Flow 

Meters, Natural Gas Manometers, and 

Pyrometers; Significant New Use Rule 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule. 

SUMMARY: EPA is promulgating a 

significant new use rule (SNUR) under 

section 5(a)(2) of the Toxic Substances 

Control Act (TSCA) for elemental 

mercury (CAS No. 7439–97–6) for use in 

flow meters, natural gas manometers, 

and pyrometers, except for use in these 

articles when they are in service as of 

September 11, 2009. 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 rule to notify 

EPA at least 90 days before commencing 

that activity. Persons subject to the 

provisions of this rule will not be 

exempt from significant new use 

reporting if they import into the United 

States or process elemental mercury as 

part of an article. 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 August 

20, 2010. 

ADDRESSES: EPA has established a 

docket for this action under docket 

identification (ID) number EPA–HQ– 

OPPT–2008–0483. 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: Peter 

Gimlin, 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– 

0515; e-mail address: 

gimlin.peter@epa.gov. 

For general information contact: The 

TSCA-Hotline, ABVI-Goodwill, 422 

South Clinton Ave., Rochester, NY 

14620; telephone number: (202) 554– 

1404; e-mail 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 flow meters, 

natural gas manometers, or pyrometers. 

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 

NAICS codes have been provided to 

assist you and others in determining 

whether this action might apply to 

certain entities. To determine whether 

you or your business may be affected by 

this action, you should carefully 

examine the applicability provisions in 

40 CFR 721.5 for SNUR-related 

obligations. 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 and 19 CFR 

127.28. Those persons must certify that 

the shipment of the chemical substance 

complies with all applicable rules and 

orders under TSCA, including any 

SNUR requirements. 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 October 11, 2009, 

any persons who export or intend to 

export elemental mercury are subject to 

the export notification provisions of 

TSCA section 12(b) (see 40 CFR 721.20) 

and must comply with the export 

notification requirements in 40 CFR part 

707, subpart D. EPA also notes that, 

pursuant to the Mercury Export Ban Act 

of 2008 (Pub. L. 110–414), the export of 

elemental mercury from the United 

States will be prohibited as of January 

1, 2013, unless an exemption is 

obtained under TSCA section 12(c)(4). 

II. Background 

A. What Action is the Agency Taking? 

EPA proposed this SNUR for 

elemental mercury used in flow meters, 

natural gas manometers, and pyrometers 

on September 11, 2009 (74 FR 46707) 

(FRL–8432–3). EPA’s response to public 

comments received on the proposed 

rule appear in Unit III.C. Please consult 

the September 11, 2009, Federal 

Register document for further 

background information for this final 

rule. 

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: Flow meters, natural gas 

manometers, or pyrometers. This rule 

does not affect the manufacturing and 

processing of elemental mercury for use 

in these articles when they are in 

service as of September 11, 2009. EPA 


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believes this SNUR is necessary because 

manufacturing, processing, use, or 

disposal of mercury associated with 

these uses may produce significant 

changes in human and environmental 

exposures. The rationale and objectives 

for this SNUR are explained in Unit IV. 

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 those listed in TSCA section 

5(a)(2). 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 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, 

40 CFR 721.45(f) does not apply to this 

SNUR. 

As a result, persons subject to the 

provisions of this rule are not exempt 

from significant new use reporting if 

they import or process elemental 

mercury as part of an article (see 40 CFR 

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 40 CFR 

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 the Federal Register 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 and 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 

SNUR requirements. The EPA policy in 

support of import certification appears 

at 40 CFR part 707, subpart B. 

III. Summary of Rule 

A. Overview of Mercury and Mercury 

Uses 

1. Mercury. This rule applies to 

elemental mercury (CAS No. 7439–97– 

6), which 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, length, 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 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 to methylmercury’s 

neurological effects than adults. 

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 fifty 

states had issued fish consumption 

advisories for fish from certain water 

bodies known to be contaminated by 

methylmercury (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 release of mercury to the air, 

particularly in warm or poorlyventilated indoor spaces. 

For additional detailed 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 proposing this rule, please refer 

to EPA’s proposed SNUR for mercury 

switches in motor vehicles, issued in 

the Federal Register of July 11, 2006 (71 

FR 39035) (FRL–7733–9), or in the 

docket for the 2006 proposal under 

docket identification 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 two 

decades, there has been a dramatic drop 

in elemental mercury use by industries 

in the United States. In response to 

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 (see http:// 

www.epa.gov/epawaste/hazard/tsd/ 


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mercury/laws.htm). 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 (72 

FR 56903) (FRL–8110–5). 

In the past, elemental mercury was 

used in the manufacture of flow meters, 

natural gas manometers, and 

pyrometers. The latest information 

available to EPA indicates that the 

manufacture of these mercurycontaining articles has ceased (Ref. 1). 

In proposing this rule, EPA asked for 

public comment on ongoing processing 

or availability of these articles and 

received no comments indicating that 

the manufacturing, import, processing, 

sale, or use of these articles occurs. 

i. Flow meters containing elemental 

mercury. Flow meters are instruments 

which measure the flow rate of liquids 

or gases. Historically, they have been 

used in civil engineering applications, 

e.g., water treatment plants, sewage 

plants, and power stations. Flow meters 

contained up to 5 kilograms (kg) of 

elemental mercury. At present, the sale 

of mercury-containing flow meters is 

banned in six states: California, Maine, 

Massachusetts, New Hampshire, New 

York, and Vermont (Ref. 4). Many 

mercury-free alternatives exist, 

including differential pressure meters, 

positive displacement meters, velocity 

meters, and mass meters. EPA found 

sufficient information to conclude that 

mercury-containing flow meters are no 

longer manufactured in or imported into 

the United States (Ref. 1). 

ii. Natural gas manometers containing 

elemental mercury. A manometer is an 

instrument used to measure the pressure 

of gases or liquids. For purposes of this 

rule, a natural gas manometer means a 

mercury-containing instrument used in 

the natural gas industry to measure the 

pressure differential of natural gas in a 

pipeline. Mercury manometers have 

been used in the natural gas industry on 

individual wells, pipeline junctions, 

pipeline manifolds, compressor stations, 

and distribution points. The 

manometers contain between 3.2 and 

54.5 kg of mercury. A common design 

for manometers is a U-shaped tube with 

one end opened to the atmosphere and 

the other connected to a process. 

Contained in the tube is a liquid 

(mercury, in the past). Pressure 

differential is measured by comparing 

the liquid levels in each of the two 

vertical sections of the tube. Seven 

states have enacted broad bans on the 

sale of mercury manometers (Ref. 4), 

and Louisiana prohibits the sale of 

mercury-containing natural gas 

manometers (Ref. 2). Available 

information indicates that bellows 

orifice meters have replaced mercury 

meters in the natural gas industry. EPA 

found sufficient information to 

conclude that mercury-containing 

manometers are no longer manufactured 

in or imported into the United States 

(Ref. 1). 

iii. Pyrometers containing elemental 

mercury. A pyrometer is an instrument 

that is similar to a thermometer but is 

typically used to measure extremely 

high temperatures in industrial 

processes such as in foundries, for 

pottery and ceramic kiln work, and in 

automotive applications. Historically, 

pyrometers contained mercury in 

sensing units in amounts ranging 

between 5 and 10 grams of mercury. In 

recent years, California, Maine, 

Massachusetts, New Hampshire, New 

York, and Vermont have banned the sale 

of mercury-containing pyrometers (Ref. 

4). EPA found sufficient information to 

conclude that mercury-containing 

pyrometers are no longer manufactured, 

or imported into the United States (Ref. 

1). 

3. Potential exposure and release from 

these uses. The typical lifecycle of flow 

meters, natural gas manometers, and 

pyrometers 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 flow 

meters, manometers, and pyrometers are 

in use, the mercury can vaporize or spill 

due to breakage during transport, 

installation, maintenance, refilling, or 

repair. For example, beginning in the 

1920s, mercury-containing manometers 

were used in the Louisiana natural gas 

industry, and mercury releases to the 

environment have been attributed to 

these manometers. (Ref. 3). Other 

opportunities for release can occur at 

the end of the lifecycle of flow meters, 

manometers, and pyrometers, as the 

devices are removed from equipment 

and facilities and handled during waste 

management. 

B. Today’s Action 

EPA is designating as significant new 

uses, use of elemental mercury in flow 

meters, natural gas manometers, or 

pyrometers. However, use of elemental 

mercury in these articles when they are 

in service as of September 11, 2009, will 

not be covered as a significant new use 

under this SNUR. Definitions of ‘‘flow 

meter,’’ ‘‘natural gas manometer,’’ and 

‘‘pyrometer’’ can be found at 40 CFR 

721.10068 of the regulatory text for this 

final rule. 

This action will amend 40 CFR 

721.10068 and require persons who 

intend to manufacture or process 

elemental mercury for a use designated 

by this 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 40 

CFR 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 40 CFR 

721.25. EPA is not including this 

exemption because flow meters, natural 

gas manometers, and pyrometers are 

articles, and a primary concern 

associated with this SNUR is potential 

exposures associated with the lifecycle 

of these uses. Further, it is possible to 

reclaim elemental mercury from certain 

articles, which could be used to produce 

flow meters, natural gas manometers, 

and pyrometers. EPA notes that, in 

accordance with TSCA section 12(a) and 

40 CFR 721.45(g), persons who 

manufacture or process elemental 

mercury solely for export will be 

exempt from the notification 

requirements of 40 CFR 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)) remains 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 flow meters, 

natural gas manometers, or pyrometers, 

but some of these articles may remain in 

service in the United States (no public 

comments were received in response to 

the proposed rule indicating the 

ongoing use of such articles). The 

ongoing use of such articles, including 

maintenance and servicing activities, 

falls outside the scope of this significant 

new use rule. Thus, the manufacturing 

and processing of elemental mercury for 

use in these articles, provided they are 

in service as of September 11, 2009, will 

not be covered by the rule. For example, 

if an article that is in service as of 

September 11, 2009, is removed from 

service for maintenance or servicing, 


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including the addition of new mercury, 

and then placed back into service, any 

manufacturing or processing of mercury 

associated with that maintenance or 

servicing will not be covered by the 

rule. Otherwise, the addition of new 

mercury to these existing articles after 

September 11, 2009, could potentially 

trigger a significant new use notice 

under this rule (e.g., if it involved 

processing of the mercury), which is not 

EPA’s intent. 

C. Response to Public Comments 

EPA received three comments on the 

proposed rule that was issued in the 

Federal Register of September 11, 2009 

(74 FR 46707). Copies of all comments 

received are in the public docket for this 

rule. All three commenters expressed 

general support for the proposed rule. 

No comments provided any data or 

made any assertions that manufacture, 

import, processing, distribution, or use 

of elemental mercury in these articles is 

ongoing. A discussion of specific 

comments suggesting changes to the 

proposal and EPA’s response follows: 

1. Comment. One commenter believed 

the language on the requirement to 

notify EPA ‘‘at least 90 days’’ before 

commencing a subject activity created 

ambiguities, and should be changed to 

‘‘within 90 days.’’ The commenter also 

thought the factors used to determine a 

significant new use should be more 

specific, perhaps by establishing a 

quantity determination. Finally, the 

commenter thought the proposed SNUR 

should be expanded to include mercurycontaining products currently in use. 

Response. The requirement to notify 

EPA at least 90 days before (≥ 90 days) 

commencement is specified by TSCA 

section 5(a)(1); EPA does not see any 

ambiguity. Similarly, the factors used to 

determine a significant new use noted 

by the commenter are those specified by 

TSCA section 5(a)(2). EPA notes these 

are the factors EPA uses when it makes 

a determination on a significant new 

use; chemical manufacturers and 

processors are subject to the new 

regulations at 40 CFR 721.10068. The 

commenter’s recommended regulation 

of current uses (if any) of these mercurycontaining articles is outside the scope 

of this TSCA section 5(a) regulation. As 

discussed in the proposed rule, EPA 

considered and rejected regulating 

elemental mercury in these articles 

under TSCA section 6(a). 

2. Comment. Another commenter 

recommended that EPA use this rule to 

mandate all states to develop a mercury 

reduction plan. The commenter also 

asked EPA to work with the FDA to ban 

the use of mercury in all vaccines. 

Response. The actions recommended 

by the commenter are outside the scope 

of this regulation. 

3. Comment. The third commenter 

proposed EPA take three additional 

steps in this rulemaking: (1) Require 

that current owners of manometers and 

flowmeters disclose the number of 

meters and their location to EPA; (2) 

classify the sale of replacement parts as 

a significant new use; and (3) phase out 

the use of old manometers through an 

incentive program for removal. 

Response. The disclosure requirement 

proposed by the commenter is outside 

the scope of this regulation. As noted 

previously, EPA considered and rejected 

regulating elemental mercury in these 

articles under TSCA section 6(a). The 

disclosure requirement proposed by the 

commenter would require a separate 

rulemaking by EPA under TSCA section 

6(a) authority. EPA believes inventories 

of these articles in use are minimal or 

non-existent. Regarding the second 

recommendation, EPA is not aware of 

any large inventories of either mercurycontaining replacement parts or existing 

equipment that would be kept in service 

for prolonged periods by their use. EPA 

wishes to clarify that depending on the 

exact nature of these replacement parts, 

if any exist, and the circumstances of 

their eventual end use, they may or may 

not fall under the scope of this 

regulation. Only flow meters, natural 

gas manometers and pyrometers in 

service as of September 11, 2009, are 

specifically exempt. The commenter’s 

third proposal for a phase-out and waste 

recovery program is outside the scope of 

this significant new use regulation. 

IV. Rationale and Objectives 

A. Rationale 

As summarized in Unit III.A, EPA has 

concerns regarding the adverse health 

effects presented by mercury in humans 

and wildlife, as well as its 

environmental fate and the exposure 

pathways. EPA is encouraged by the 

discontinuation of the use of elemental 

mercury in the manufacturing of flow 

meters, natural gas manometers, and 

pyrometers. However, EPA is concerned 

that the manufacturing or processing of 

elemental mercury for use in flow 

meters, natural gas manometers, or 

pyrometers 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 remanufacturing 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. 

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 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 

regulation is warranted pursuant to 

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

V. Significant New Use Determination 

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 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. 

To determine what would constitute a 

significant new use of elemental 

mercury, EPA considered the four 

factors listed in section 5(a)(2) of TSCA. 

The latest information available to EPA 

indicates that there is no ongoing use of 

elemental mercury in the manufacture 

or remanufacture of flow meters, natural 

gas manometers, or pyrometers. 

Resumption of these uses of elemental 

mercury could result in a significant 

increase in the magnitude and duration 

of exposure to workers and the 

surrounding environment at facilities of 

all types in the lifecycle, as well as an 

increase in releases which could 


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42334 Federal Register / Vol. 75, No. 139 / Wednesday, July 21, 2010 / Rules and Regulations 

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 flow 

meters, natural gas manometers, or 

pyrometers. Increases in mercury 

releases could lead to increases in 

mercury concentrations in the 

environment, resulting in overall 

ecosystem degradation, as well as a 

deleterious effect on human health from 

consumption of mercury-contaminated 

fish. 

EPA believes that any of these 

renewed uses of elemental mercury 

would increase the magnitude and 

duration of exposure to humans and the 

environment over that which would 

otherwise exist. Based upon the relevant 

factors as discussed in this unit, EPA 

has determined that any manufacturing 

or processing of elemental mercury for 

use in flow meters, natural gas 

manometers, or pyrometers is a 

significant new use. 

VI. 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 section 

5(a)(1)(B) of TSCA 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 will have to cease any such activity 

before the effective date of this rule. To 

resume their activities, these persons 

would have to 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 

were to meet the conditions of advance 

compliance under § 721.45(h), that 

person would be considered to have met 

the requirements of the final SNUR for 

those activities. 

Accordingly, this final rule specifies 

that uses after the date of publication of 

the proposed rule, September 11, 2009, 

are subject to this rule. Although the 

September 11, 2009, date was correctly 

specified in the regulatory text of the 

proposed rule document, in several 

instances in the preamble text to the 

proposed rule document, the effective 

date of the final rule was incorrectly 

given as the applicable date of the 

SNUR provisions of this rule. No 

comment was received on the issue. 

VII. Test Data and Other Information 

EPA recognizes that TSCA section 5 

does not require developing any 

particular test data before submission of 

a SNUN. 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); 40 CFR 

721.25). 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: 

1. Human exposure and 

environmental releases that may result 

from the significant new uses of the 

chemical substance. 

2. Potential benefits of the chemical 

substance. 

3. Information on risks posed by the 

chemical substances compared to risks 

posed by potential substitutes. 

VIII. SNUN Submissions 

As stated in Unit II.C., 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 § 720.50. SNUNs must be 

submitted to EPA, on EPA Form No. 

7710–25 in accordance with the 

procedures set forth in §§ 721.25 and 

720.40. This form is available from the 

Environmental Assistance Division 

(7408M), 1200 Pennsylvania Ave., NW., 

Washington, DC 20460–0001. Forms 

and information are also available 

electronically at http://www.epa.gov/ 

opptintr/newchems. 

IX. Economic Analysis 

EPA evaluated the potential costs of 

establishing SNUR reporting 

requirements for potential 

manufacturers and processors of the 

chemical substance included in this 

rule. EPA’s economic analysis, which is 

briefly summarized here, is available in 

the public docket (Ref. 1). 

The costs of submission of a SNUN 

will not be incurred by any company 

until a company decides to pursue a 

significant new use as defined in this 

SNUR. In the event that a SNUN is 

submitted, costs are estimated at 

approximately $8,000 per SNUN 

submission, and includes the cost for 

preparing and submitting the SNUN, 

and the payment of a user fee. 

Businesses that submit a SNUN are 

either subject to 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 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. 

X. References 

The following documents are 

specifically referenced in the preamble 

for this rulemaking. In addition to these 

documents, other materials may be 

available in the docket established for 

this rulemaking under Docket ID No. 

EPA–HQ–OPPT–2008–0483, which you 

can access through http:// 

www.regulations.gov. Those interested 

in the information considered by EPA in 

developing this 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, 2009. Economic Analysis for 

the Proposed Significant New Use Rule 

for Mercury-Containing Flow Meters, 

Nanometers, and Pyrometers. 

Washington, D.C. OPPT/EETD/EPAB, 

July 21, 2009. 

2. La. Rev. Stat. Ann. section 2575 

(2006). 


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Federal Register / Vol. 75, No. 139 / Wednesday, July 21, 2010 / Rules and Regulations 42335 

3. State of Louisiana Mercury Risk 

Reduction Plan, prepared by the 

Louisiana Department of Environmental 

Quality, 2007. Available as of May 13, 

2010 at http://www.ldeq.org/portal/ 

Portals/0/organization/ 

MercuryReportforweb.pdf. 

4. Mercury Reduction and Education 

Legislation in the IMERC-Member 

States, prepared by Terri Goldberg and 

Adam Wienert, NEWMOA, June 2008. 

Available as of May 13, 2010 at http:// 

www.newmoa.org/prevention/mercury/ 

imerc/legislation-2008.htm. 

XI. Statutory and Executive Order 

Reviews 

A. Executive Order 12866: Regulatory 

Planning and Review 

Under Executive Order 12866, 

entitled Regulatory Planning and 

Review (58 FR 51735, October 4, 1993), 

the Office of Management and Budget 

(OMB) has determined that this final 

SNUR is not a ‘‘significant regulatory 

action,’’ because it does not meet the 

criteria in section 3(f) of the Executive 

Order. Accordingly, this action was not 

submitted to OMB for review under 

Executive Order 12866. 

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 the 

PRA, unless it has been approved by 

OMB and displays a currently valid 

OMB control number. The OMB control 

numbers for EPA’s 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 the 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 110 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 adverse 

economic impact on a substantial 

number of small entities. The rationale 

supporting this conclusion is as follows. 

A SNUR applies to any person 

(including small or large entities) who 

intends to engage in any activity 

described in the rule as a ‘‘significant 

new use.’’ By definition of the word 

‘‘new,’’ and based on all information 

currently available to EPA, it appears 

that no small or large entities presently 

engage in such activity. Since a SNUR 

requires 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 over 1,000 SNURs, 

the Agency receives on average only 5 

notices per year. Of those SNUNs 

submitted, only one appears to be from 

a small entity in response to any SNUR. 

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 on 

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. 

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 

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 small 

governments subject to the requirements 

of sections 202, 203, 204, or 205 of the 

Unfunded Mandates Reform Act of 1995 

(UMRA) (2 U.S.C. 1531–1538). 

E. Executive Order 13132: Federalism 

This action will not 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, as specified in 

Executive Order 13132, entitled 

Federalism (64 FR 43255, August 10, 

1999). 

F. Executive Order 13175: Consultation 

and Coordination with Indian Tribal 

Governments 

This final rule will not have Tribal 

implications because it is not expected 

to have substantial direct effects on 

Indian Tribes. This rule will not 

significantly or uniquely affect the 

communities of Indian Tribal 

governments, nor will it involve or 

impose any requirements that affect 

Indian Tribes. Accordingly, the 

requirements of Executive Order 13175, 

entitled Consultation and Coordination 

with Indian Tribal Governments (65 FR 

67249, November 9, 2000), do not apply 

to this final rule. 

G. Executive Order 13045: Protection of 

Children from Environmental Health 

Risks and Safety Risks 

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. Executive Order 13211: Actions that 

Significantly Affect Energy Supply, 

Distribution, or Use 

This final rule is not subject to 

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 

expected to affect energy supply, 

distribution, or use. 

I. National Technology Transfer 

Advancement Act 

In addition, since this action does not 

involve any technical standards; section 

12(d) of the National Technology 

Transfer and Advancement Act of 1995 

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 


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42336 Federal Register / Vol. 75, No. 139 / Wednesday, July 21, 2010 / Rules and Regulations 

Executive Order 12898, entitled Federal 

Actions to Address Environmental 

Justice in Minority Populations and 

Low-Income Populations (59 FR 7629, 

February 16, 1994). 

XII. Congressional Review Act 

The Congressional Review Act, 5 

U.S.C. 801 et seq., generally provides 

that before a rule may take effect, the 

agency promulgating the rule must 

submit a rule report to each House of 

the Congress and the Comptroller 

General of the United States. 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 rule is not a ‘‘major rule’’ 

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

List of Subjects in 40 CFR Part 721 

Environmental protection, Chemicals, 

Hazardous substances, Reporting and 

recordkeeping requirements 

Dated: July 12, 2010. 

Wendy C. Hamnett, 

Director, Office of Pollution Prevention and 

Toxics. 

■ Therefore, 40 CFR part 721 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, revise paragraph (a) 

and add a new paragraph (b)(2)(vii) to 

read as follows: 

§ 721.10068 Elemental mercury. 

(a) Definitions. The definitions in 

§ 721.3 apply to this section. In 

addition, the following definitions 

apply: 

Flow meter means an instrument used 

in various applications to measure the 

flow rate of liquids or gases. 

Motor vehicle has the meaning found 

at 40 CFR 85.1703. 

Natural gas manometer means an 

instrument used in the natural gas 

industry to measure gas pressure. 

Pyrometer means an instrument used 

in various applications to measure 

extremely high temperatures. 

(b) * * * 

(2) * * * 

(vii) Manufacturing or processing of 

elemental mercury for use in flow 

meters, natural gas manometers, and 

pyrometers except for use in these 

articles when they are in service as of 

September 11, 2009. 

* * * * * 

[FR Doc. 2010–17718 Filed 7–20–10; 8:45 am] 

BILLING CODE 6560–50–S 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 679 

[Docket No. 0910131362–0087–02] 

RIN 0648–XX68 

Fisheries of the Exclusive Economic 

Zone Off Alaska; Northern Rockfish for 

Catcher/Processors Participating in 

the Rockfish Limited Access Fishery in 

the Central Regulatory Area of the Gulf 

of Alaska 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Temporary rule; closure. 

SUMMARY: NMFS is prohibiting directed 

fishing for northern rockfish by catcher/ 

processors participating in the rockfish 

limited access fishery in the Central 

Regulatory Area of the Gulf of Alaska 

(GOA). This action is necessary to 

prevent exceeding the 2010 total 

allowable catch (TAC) of northern 

rockfish allocated to catcher/processors 

participating in the rockfish limited 

access fishery in the Central Regulatory 

Area of the GOA. 

DATES: Effective 1200 hrs, Alaska local 

time (A.l.t.), July 16, 2010, through 2400 

hrs, A.l.t., December 31, 2010. 

FOR FURTHER INFORMATION CONTACT: 

Steve Whitney, 907–586–7269. 

SUPPLEMENTARY INFORMATION: NMFS 

manages the groundfish fishery in the 

GOA exclusive economic zone 

according to the Fishery Management 

Plan for Groundfish of the Gulf of 

Alaska (FMP) prepared by the North 

Pacific Fishery Management Council 

under authority of the MagnusonStevens Fishery Conservation and 

Management Act. Regulations governing 

fishing by U.S. vessels in accordance 

with the FMP appear at subpart H of 50 

CFR part 600 and 50 CFR part 679. 

The 2010 TAC of northern rockfish 

allocated to catcher/processors 

participating in the rockfish limited 

access fishery in the Central GOA is 152 

metric tons (mt) as established by the 

final 2010 and 2011 harvest 

specifications for groundfish of the GOA 

(75 FR 11749, March 12, 2010), and as 

posted as the 2010 Rockfish Program 

Allocations at http:// 

alaskafisheries.noaa.gov/ 

sustainablefisheries/goarat/default.htm. 

In accordance with § 679.20(d)(1)(i), 

the Administrator, Alaska Region, 

NMFS (Regional Administrator), has 

determined that the 2010 TAC of 

northern rockfish allocated to catcher/ 

processors participating in the rockfish 

limited access fishery in the Central 

Regulatory Area of the GOA will soon 

be reached. Therefore, the Regional 

Administrator is establishing a directed 

fishing allowance of 102 mt, and is 

setting aside the remaining 50 mt as 

bycatch to support other anticipated 

groundfish fisheries. In accordance with 

§ 679.20(d)(1)(iii), the Regional 

Administrator finds that this directed 

fishing allowance has been reached. 

Consequently, NMFS is prohibiting 

directed fishing for northern rockfish by 

catcher/processors participating in the 

rockfish limited access fishery in the 

Central Regulatory Area of the GOA. 

After the effective date of this closure 

the maximum retainable amounts at 

§ 679.20(e) and (f) apply at any time 

during a trip. 

Classification 

This action responds to the best 

available information recently obtained 

from the fishery. The Assistant 

Administrator for Fisheries, NOAA 

(AA), finds good cause to waive the 

requirement to provide prior notice and 

opportunity for public comment 

pursuant to the authority set forth at 5 

U.S.C. 553(b)(B) as such requirement is 

impracticable and contrary to the public 

interest. This requirement is 

impracticable and contrary to the public 

interest as it would prevent NMFS from 

responding to the most recent fisheries 

data in a timely fashion and would 

delay the closure of northern rockfish 

for catcher/processors participating in 

the rockfish limited access fishery in the 

Central Regulatory Area of the GOA. 

NMFS was unable to publish a notice 

providing time for public comment 

because the most recent, relevant data 

only became available as of July 15, 

2010. 

The AA also finds good cause to 

waive the 30–day delay in the effective 

date of this action under 5 U.S.C. 

553(d)(3). This finding is based upon 

the reasons provided above for waiver of 

prior notice and opportunity for public 

comment. 

This action is required by § 679.20 

and is exempt from review under 

Executive Order 12866. 

Authority: 16 U.S.C. 1801 et seq. 


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