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[Federal Register Volume 76, Number 88 (Friday, May 6, 2011)]
[Proposed Rules]
[Pages 26225-26232]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-11025]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 721

[EPA-HQ-OPPT-2010-0630; FRL-8871-7]
RIN 2070-AJ71

Elemental Mercury Used in Barometers, Manometers, Hygrometers/
Psychrometers; Significant New Use Rule

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: EPA is proposing a significant new use rule (SNUR) under 
section 5(a)(2) of the Toxic Substances Control Act (TSCA) for 
elemental mercury for use in barometers, manometers, and hygrometers/
psychrometers. This action would 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 proposed 
rule to notify EPA at least 90 days before commencing that activity. 
The required notification would provide EPA with the opportunity to 
evaluate the intended use and, if necessary, to prohibit or limit that 
activity before it occurs. Not included in this proposed SNUR is 
mercury use in barometers, manometers, and hygrometers/psychrometers 
when they are in service as of the publication date of this proposed 
rule and mercury use in portable battery-powered motor-aspirated 
psychrometers that contain fewer than seven grams of elemental mercury 
because they are currently manufactured. For this proposed rule, the 
general SNUR exemption for persons that import or process chemical 
substances as part of an article at Sec.  721.45(f) would not apply.

DATES: Comments must be received on or before July 5, 2011.

ADDRESSES: Submit your comments, identified by docket identification 
(ID) number EPA-HQ-OPPT-2010-0630, by one of the following methods:
     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the on-line instructions for submitting comments.
     Mail: Document Control Office (7407M), Office of Pollution 
Prevention and Toxics (OPPT), Environmental Protection Agency, 1200 
Pennsylvania Ave., NW., Washington, DC 20460-0001.
     Hand Delivery: OPPT Document Control Office (DCO), EPA 
East Bldg., Rm. 6428, 1201 Constitution Ave., NW., Washington, DC. 
Attention: Docket ID Number EPA-HQ-OPPT-2010-0630. The DCO is open from 
8 a.m. to 4 p.m., Monday through Friday, excluding legal holidays. The 
telephone number for the DCO is (202) 564-8930. Such deliveries are 
only accepted during the DCO's normal hours of operation, and special 
arrangements should be made for deliveries of boxed information.
    Instructions: Direct your comments to docket ID number EPA-HQ-OPPT-
2010-0630. EPA's policy is that all comments received will be included 
in the docket without change and may be made available on-line at 
http://www.regulations.gov, including any personal information 
provided, unless the comment includes information claimed to be 
Confidential Business Information (CBI) or other information whose 
disclosure is restricted by statute. Do not submit information that you 
consider to be CBI or otherwise protected through regulations.gov or e-
mail. The regulations.gov Web site is an ``anonymous access'' system, 
which means EPA will not know your identity or contact information 
unless you provide it in the body of your comment. If you send an e-
mail comment directly to EPA without going through regulations.gov, 
your e-mail address will be automatically captured and included as part 
of the comment that is placed in the docket and made available on the 
Internet. If you submit an electronic comment, EPA recommends that you 
include your name and other contact information in the body of your 
comment and with any disk or CD-ROM you submit. If EPA cannot read your 
comment due to technical difficulties and cannot contact you for 
clarification, EPA may not be able to consider your comment. Electronic 
files should avoid the use of special characters, any form of 
encryption, and be free of any defects or viruses.
    Docket: 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., CBI or other 
information whose disclosure is restricted by statute. Certain other 
material, such as copyrighted material, will be publicly available only 
in hard copy. Publicly available docket materials are available 
electronically 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) 556-1973; e-mail 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; e-mail address: TSCA-Hotline@epa.gov.

SUPPLEMENTARY INFORMATION:

I. General Information

A. Does this action apply to me?

    You may be potentially affected by this action if you manufacture 
(defined by statute to include import) or process elemental mercury 
used in barometers, manometers, or hygrometers/

[[Page 26226]]

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 
(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. 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, any persons who export or intend to export a chemical 
substance that is the subject of this proposed rule on or after June 6, 
2011 are subject to the export notification provisions of TSCA section 
12(b) (15 U.S.C. 2611(b)), (see Sec.  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))).

B. What should I consider as I prepare my comments for EPA?

    1. Submitting CBI. Do not submit this information to EPA through 
regulations.gov or e-mail. Clearly mark the part or all of the 
information that you claim to be CBI. For CBI information in a disk or 
CD-ROM that you mail to EPA, mark the outside of the disk or CD-ROM as 
CBI and then identify electronically within the disk or CD-ROM the 
specific information that is claimed as CBI. In addition to one 
complete version of the comment that includes information claimed as 
CBI, a copy of the comment that does not contain the information 
claimed as CBI must be submitted for inclusion in the public docket. 
Information so marked will not be disclosed except in accordance with 
procedures set forth in 40 CFR part 2.
    2. Tips for preparing your comments. When submitting comments, 
remember to:
    i. Identify the document by docket ID number and other identifying 
information (subject heading, Federal Register date and page number).
    ii. Follow directions. The Agency may ask you to respond to 
specific questions or organize comments by referencing a Code of 
Federal Regulations (CFR) part or section number.
    iii. Explain why you agree or disagree; suggest alternatives and 
substitute language for your requested changes.
    iv. Describe any assumptions and provide any technical information 
and/or data that you used.
    v. If you estimate potential costs or burdens, explain how you 
arrived at your estimate in sufficient detail to allow for it to be 
reproduced.
    vi. Provide specific examples to illustrate your concerns and 
suggest alternatives.
    vii. Explain your views as clearly as possible, avoiding the use of 
profanity or personal threats.
    viii. Make sure to submit your comments by the comment period 
deadline identified.

II. Background

A. What action is the agency taking?

    This proposed SNUR would 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: 
Barometers, manometers, and hygrometers/psychrometers. Not included in 
this proposed rule are barometers, manometers, and hygrometers/
psychrometers when they are in service as of the publication date of 
this proposed rule. Also not included in this proposal is the ongoing 
use of mercury in the manufacture, import, or processing of portable 
battery-powered motor-aspirated psychrometers that contain fewer than 
seven grams of elemental mercury because they are currently 
manufactured. Sphygmomanometers and other ``devices'' as defined under 
section 201 of the Federal Food, Drug, and Cosmetics Act (FFDCA) would 
not be affected by this proposed rule when manufactured, imported, or 
processed for use as a device (see TSCA 3(2)(B)(vi)). Finally, 
manometers used in the natural gas industry would not be affected by 
this proposed rule because they were included in a previous SNUR (75 FR 
42330, July 21, 2010) (FRL-8832-2).

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, and
     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 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) would not apply to this proposed SNUR. 
As a result, persons subject to the provisions of this proposed rule 
would not be exempt from significant new use reporting if they import 
or process elemental mercury as part of an article (see Sec.  721.5). 
Conversely, the exemption from notification requirements for exported 
articles (see Sec.  707.60(b)) would remain in force. Thus, persons who 
export elemental mercury as part of an

[[Page 26227]]

article would not be 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, the Agency 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, the Agency 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; 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 
SNUR requirements. The EPA policy in support of import certification 
appears at 40 CFR part 707, subpart B.

III. Summary of Proposed Rule

A. Overview of Mercury and Mercury Uses

    1. Mercury. This proposed 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, 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 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 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 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. While this is not 
the rationale for this proposed rule, it does indicate that the 
transition to cost-effective non-mercury containing alternatives is 
already established (see http://www.epa.gov/epawaste/hazard/tsd/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, October 5, 2007) (FRL-8110-5). EPA promulgated another SNUR 
for flow meters, natural gas manometers, and pyrometers on July 21, 
2010 (75 FR 42330). 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, and hygrometers/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 three products subject to the proposed SNUR 
currently have effective and economically feasible substitutes (Ref. 
1). EPA requests comments on whether elemental mercury continues to be 
used in manufacturing (including importing into the U.S.) barometers, 
manometers, or hygrometers/psychrometers. EPA also requests comment on 
whether elemental mercury is being used in the remanufacturing of any 
of these articles that remain in use.
    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

[[Page 26228]]

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. 
1).
    Alternatives to mercury-containing barometers include aneroid, 
electronic, and other liquid-based (water or eco-celli) barometers. At 
least eight states have banned the sale of mercury-containing 
barometers. EPA found sufficient information to conclude that mercury-
containing barometers are no longer manufactured in or imported into 
the U.S. (Ref. 1).
    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 
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. 1).
    Alternatives to mercury 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 
mercury-containing manometers, and four additional states have banned 
the sale of mercury-containing dairy manometers (Ref. 1). EPA found 
sufficient information to conclude that mercury-containing manometers 
are no longer manufactured in or imported into the U.S. (Ref. 1).
    5. Hygrometers/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.
    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.
    Seven states have banned the sale and distribution of mercury-
containing hygrometers and psychrometers and three additional states 
have general phase-outs of mercury-added products. EPA found sufficient 
information to conclude that only one type of mercury-containing 
hygrometer/psychrometer is manufactured in or imported into the U.S. 
That one type is a portable battery-powered motor-aspirated 
psychrometer containing fewer than seven grams of elemental mercury 
(Ref. 1).
    6. Potential exposure and release. The typical lifecycle of 
barometers, manometers, and hygrometers/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, and 
hygrometers/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, and hygrometers/psychrometers as 
these devices are removed from equipment and facilities and handled 
during waste management.

B. Proposed Action

    EPA is proposing to designate as significant new uses the use of 
elemental mercury in barometers, manometers, and hygrometers/
psychrometers. However, use of elemental mercury in these articles when 
they are in service as of the publication date of this proposed rule 
would not be covered as a significant new use under this proposed 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 would 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 is 
considering whether risk management or other actions would be 
appropriate. Use of mercury in manometers used in the natural gas 
industry would not be affected by this proposed SNUR because they are 
included in a previous SNUR (75 FR 42330, July 21, 2010). Proposed 
definitions of barometer, manometer, hygrometer and psychrometer can be 
found in Sec.  721.10068 of the regulatory text in this proposed rule.
    This action would amend Sec.  721.10068 and require persons who 
intend to manufacture or process elemental mercury for a use designated 
by this proposed 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 would 
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 proposing not to include the general 
``article'' exemption at Sec.  721.45(f). Thus, persons importing or 
processing elemental mercury (including when part of an article) for a 
significant new use would be subject to the notification requirements 
of Sec.  721.25. EPA proposes not to include this exemption because 
barometers, manometers, and hygrometers/psychrometers 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 barometers, manometers, or hygrometers/psychrometers. EPA notes 
that, in accordance with TSCA section 12(a) and Sec.  721.45(g), 
persons who manufacture or process elemental mercury solely for export 
would be exempt from the notification requirements of Sec.  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 Sec.  707.60(b)) would remain in force. Thus, 
persons who export elemental mercury as part of an article would not be 
required to provide export notification.

[[Page 26229]]

    EPA believes elemental mercury is no longer used to manufacture 
barometers, manometers, and hygrometers/psychrometers (with one 
exception as discussed), but some of these articles may remain in 
service in the U.S. The ongoing use of such articles, including some 
maintenance and servicing activities, falls outside of 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 the publication date of this proposed rule, would not be 
covered by the rule. For example, if an article that is in service as 
of the publication date of this proposed rule 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 would not be 
covered by the rule. Otherwise, the addition of new mercury to these 
existing articles after the effective date of this proposed rule could 
potentially trigger a significant new use notice under this proposed 
rule (e.g., if it involved processing of the mercury), which is not 
EPA's intent.

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 
mercury-contaminated fish by humans and wildlife. EPA is encouraged by 
the general discontinuation of the use of elemental mercury in the 
manufacturing of barometers, manometers, and hygrometers/psychrometers. 
However, EPA is concerned that the manufacturing or processing of 
elemental mercury for the proposed 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 remanufacturing were to occur 
again. The required notification provided by a SNUN would 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 propose 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 under 
TSCA 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 EPA 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 proposed rule:
    1. EPA would 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 would 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 would 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.

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 preliminarily determined that manufacturing or processing 
of elemental mercury for use in barometers, manometers, or hygrometers/
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, or hygrometers/
psychrometers. Increases in mercury releases could lead to increases in 
mercury concentrations in the environment and reduction in overall 
ecosystem and 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. Thus, EPA has 
preliminarily determined that any manufacturing or processing of 
elemental mercury for use in barometers, manometers, or hygrometers/
psychrometers is a significant new use, except for mercury use in 
barometers, manometers, and hygrometers/psychrometers when they are in 
service as of the effective date of this proposed rule; and in portable 
battery-powered motor-aspirated psychrometers that contain less than 
seven grams of elemental mercury.

D. Request for Comment

    EPA welcomes comment on all aspects of this proposed rule, 
including comments on the basis for the significant new use 
determinations presented for this proposed rule.

V. Alternatives

    Before proposing this SNUR, EPA considered the following 
alternative regulatory actions.

A. Promulgate a TSCA Section 8(a) Reporting Rule

    Under a TSCA section 8(a) rule, EPA could, among other things, 
generally require persons to report information to the Agency when they 
intend to manufacture or process a listed chemical for a specific use 
or any use. However, for elemental mercury used in barometers, 
manometers, and

[[Page 26230]]

hygrometers/psychrometers, the use of TSCA section 8(a) rather than 
SNUR authority would have several limitations. First, if EPA were to 
require reporting under TSCA section 8(a) instead of TSCA section 5(a), 
EPA would not have the opportunity to review human and environmental 
hazards and exposures associated with the proposed significant new use 
and, if necessary, take immediate follow-up regulatory action under 
TSCA sections 5(e) or 5(f) to prohibit or limit the activity before it 
begins. In addition, EPA may not receive important information from 
small businesses, because such firms generally are exempt from TSCA 
section 8(a) reporting requirements. In view of the level of health and 
environmental concerns about elemental mercury, if used for the 
proposed significant new uses, EPA believes that a TSCA section 8(a) 
rule for this substance would not meet EPA's regulatory objectives.

B. Regulate Elemental Mercury for Use in Barometers, Manometers, and 
Hygrometers/Psychrometers Under TSCA Section 6

    EPA may regulate under TSCA section 6 if ``the Administrator finds 
that there is a reasonable basis to conclude that the manufacture, 
processing, distribution in commerce, use, or disposal of a chemical 
substance or mixture * * * presents or will present an unreasonable 
risk of injury to health or the environment'' (TSCA section 6(a)). 
Given that elemental mercury is no longer being used in the manufacture 
of barometers, manometers, or hygrometers/psychrometers (with the 
exception of one psychrometer), EPA concluded that risk management 
action under TSCA section 6 is not necessary at this time. This 
proposed SNUR would allow the Agency to address the potential risks 
associated with the proposed significant new use. Note that EPA is also 
considering whether risk management or other regulatory action may be 
appropriate for the one remaining psychrometer use.

C. Allow the Exemption for Persons That Import or Process Elemental 
Mercury as Part of Articles That Could Be Subject to the SNUR

    Under the SNUR exemption provision at Sec.  721.45(f), a person who 
imports or processes a substance covered by a SNUR identified in 
subpart E of part 721 as part of an article is not generally subject to 
the notification requirements of Sec.  721.25 for that substance. 
However, EPA is concerned that exempting articles would render the SNUR 
less effective because of the possibility that barometers, manometers, 
and hygrometers/psychrometers containing elemental mercury could be 
imported or processed for uses subject to this proposed SNUR without 
the submission of a SNUN. Because mercury-containing barometers, 
manometers, and hygrometers/psychrometers are the primary concerns in 
this SNUR, EPA wishes to include not only bulk elemental mercury but 
also these and other articles when they contain elemental mercury 
imported or processed for a significant new use. Thus, EPA is proposing 
to promulgate this rule without the exemption generally provided for in 
Sec.  721.45(f).

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 this 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 
begin commercial manufacture or processing of the chemical substance 
for a use that would be regulated through this proposed rule, if 
finalized, would have to cease any such activity before the effective 
date of the rule if and when finalized. 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 Sec.  721.45(h), that 
person would be considered to have met the requirements of the final 
SNUR for those activities.

VII. 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)); and (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 
section 4 test rule or a 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 (TSCA section 5(d); Sec.  721.25 and 
Sec.  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:
    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

    According to Sec.  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 Sec.  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 Sec. Sec.  
721.25 and 720.40. E-PMN software is available electronically at http://www.epa.gov/opptintr/newchems.

IX. 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 proposed rule. EPA's economic 
analysis (Ref. 1), which is briefly summarized

[[Page 26231]]

here, is available in the docket for this proposed rule.
    Because the use of elemental mercury for manufacturing the 
specified mercury-containing products in the U.S. appears to have 
ceased, EPA expects very few, if any, entities will submit a SNUN. As a 
result, the economic impact of this rule is anticipated to be either 
zero or very low.
    The costs of submission of a SNUN would not be incurred by any 
company until a company decides to pursue a significant new use as 
defined in this proposed SNUR. In the event that a SNUN is submitted, 
costs are estimated at approximately $8,100 per SNUN submission, and 
include the cost to prepare and submit the SNUN, and the payment of a 
user fee. Businesses that submit a SNUN would be subject to either a 
$2,500 user fee required by Sec.  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 
(Sec.  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 document is specifically referenced in the preamble 
for this rulemaking. In addition to this document, other materials may 
be available in the docket established for this rulemaking 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 proposed 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, 2010. Economic Analysis of the Proposed Significant New Use 
Rule for Mercury-Containing Barometers, Manometers, Hygrometers, and 
Psychrometers, Washington, DC OPPT/EETD/EPAB, July 16, 2010.

XI. Statutory and Executive Order Reviews

A. 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 action is a ``significant 
regulatory action.'' Accordingly, EPA submitted this action to OMB for 
review under Executive Order 12866 and any changes made in response to 
OMB recommendations have been documented in the docket for this action 
as required by section 6(a)(3)(E) of the Executive Order.

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 
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 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 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.
    Send any comments about the accuracy of the burden estimate, and 
any suggested methods for minimizing respondent burden to the Director, 
Collection Strategies Division, Office of Environmental Information 
(2822T), Environmental Protection Agency, 1200 Pennsylvania Ave., NW., 
Washington, DC 20460-0001. Please remember to include the OMB control 
number in any correspondence, but do not submit any completed forms to 
this address.

C. Small Entity Impacts

    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 would not have a significant adverse economic impact on a 
substantial number of small entities. The rationale supporting this 
conclusion is as follows.
    Under the RFA, small entities include small businesses, small 
organizations, and small governmental jurisdictions. Small entity is 
defined in accordance with section 601 of the RFA as: A small business 
as defined by the Small Business Administration's (SBA) regulations at 
13 CFR 121.201; A small governmental jurisdiction that 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 that 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 proposed rule on small entities, EPA has determined that this 
proposed rule is not expected to impact any small not-for-profit 
organizations or small governmental jurisdictions. As such, the Agency 
estimated potential impacts on small business.
    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 this 
proposed SNUR would 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 over 1,000 SNURs, the 
Agency receives on average only five 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

    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 would be impacted by this 
rulemaking. As such, EPA has determined that this regulatory action

[[Page 26232]]

would 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. Federalism

    This action would not have federalism implications 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, as specified in Executive Order 13132, entitled Federalism 
(64 FR 43255, August 10, 1999).

F. Indian Tribal Governments

    This action would 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, 
would not significantly or uniquely affect the communities of Indian 
Tribal governments, and would not involve or impose any requirements 
that affect Indian Tribes. Thus, Executive Order 13175 does not apply 
to this action.

G. Protection of Children

    EPA interprets Executive Order 13045, entitled Protection of 
Children from Environmental Health Risks and Safety Risks (62 FR 19885, 
April 23, 1997), as applying only to those regulatory actions that 
concern health or safety risks, such that the analysis required under 
section 5-501 of the Executive Order has the potential to influence the 
regulation. This action is not subject to Executive Order 13045 because 
it would not establish an environmental standard intended to mitigate 
health or safety risks.

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 would not involve any technical standards, 
section 12(d) of the National Technology Transfer and Advancement Act 
of 1995 (NTTAA), Public Law 104-113, section 12(d) (15 U.S.C. 272 
note), does not apply to this action.

J. Environmental Justice

    This action would 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).

List of Subjects in 40 CFR Part 721

    Environmental protection, Chemicals, Hazardous substances, 
Reporting and recordkeeping requirements.

    Dated: April 29, 2011.
Wendy C. Hamnett,
Director, Office of Pollution Prevention and Toxics.

    Therefore, it is proposed that 40 CFR part 721 be 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 Sec.  721.10068, add the following definitions in 
alphabetical order to paragraph (a) and add a new paragraph 
(b)(2)(viii) to read as follows:

Sec.  721.10068  Elemental mercury.

    (a) * * *
    Barometer means an instrument used in various applications to 
measure atmospheric pressure.
    Hygrometer or psychrometer 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.
    (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 when 
these articles are in service as of May 6, 2011; and portable battery 
powered and motor-aspirated psychrometers that contain fewer than seven 
grams of elemental mercury.

[FR Doc. 2011-11025 Filed 5-5-11; 8:45 am]
BILLING CODE 6560-50-P
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