Derek D. Swick

Senior Policy Advisor

Regulatory and Scientific Affairs

1220 L Street, NW Washington, DC 20005

- 4070

USA Telephone 202

- 682

- 8341

Email swickd@api.org www.api.org

June 15, 2012

VIA REGULATIONS.GOV

D ocument Control Office (7407M) Office of Pollution Prevention and Toxics (OPPT)
U.S. Environmental Protection Agency 1200 Pennsylvania Ave., NW Washington, DC 20460

Attn: Docket ID Number EPA

- HQ

- OPPT

- 2012

- 0258

Re: IC R for Notification of Chemical Exports

— TSCA Section 12(b)

Dear Sir or Madam:

The American Petroleum Institute (API) appreciates the opportunity to comment on the
U.S. Environmen tal Protection Agency’s (EPA’s) Information Collection Request (ICR)

Notific ation of Chemical Exports

— TSCA Section 12(b)

, EPA ICR No. 0795.14 and OMB
Control No. 2070

- 0030 [ 77 F ederal R egister 26750

- 26751 , May 7 , 2012 ] . API is a national trade association representing more than 5 00 member companies involved in all aspects of t he oil and gas industry, including exploration, production, refining, transportation, distribution, and marketing of petroleum and petroleum products. Our member companies hav e been stakeholders in numerous Toxic Substances Control Act (TSCA) rulemakings and have submitted export notifications to EPA for the over three decades that the requirement has been in effect

.

With these comments, API would like to raise two issues for EPA and the Office of Management and Budget (OMB) to address . First, we request serious consideration of

retiri ng the TSCA export notification requirement s because they are obsolete, have no practical utility, and are burdensome and costly to industry and EPA. S econd, if the requirements are to continue for any significant time, we support EPA ’s suggestion of

establish ing an optional electronic reporting system for export notification. Each of these topics is discussed below.

The TSCA export notification requirements should be retired.

The main purpose of the I CR process is to ensu re that information requirements are reviewed on a regular basis and evaluated regarding whether they are necessary for the functions of the collecting government agency an d will have practical utility. TheDocket ID Number EPA

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Paperwork Reduction Act requires EPA to solicit comment on w hether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whe ther the information has practical utility

. 1 It also requires EPA to certify that the collection under review is necessary for the proper performance of the functions of the agency, including that the information has practical utility

. 2

The TSCA se ction 12(b) export notification requirements under review with this ICR

have no practical utility. The only purpose of TSCA export notification is to enable EPA

to notify a receiving country that a chemical being exported to the country from the U.S. is subject to a TSCA action. EPA has not provided any current information on the

usefulness to re ceiving countries of the information EPA provides them , and there are no apparent benefits to the U.S. public interest . Even assuming EPA's communication is of use to a receiving foreign country, no benefit is derived when multiple companies

submit export notifications for a give n chemical/country combination to EP A on an ongoing basis . The export notifications that EPA receives from companies are many tim es greater than the notice s it sends to foreign countries, thus many of the export notifications companies send to EPA are com pletely extraneous.

Moreover, the current state of com munication and technology has made EPA’s notice s to foreign countries obsolete. When TSCA was enacted in 1976, it would have been difficult for foreign governments to know what chemicals EPA regulated under TSCA.

Now this information is readily available on the I nternet. Through websites and other

communication forums

, there is an extensive f ramework through which foreign governments can easily know the regulatory actions of the U.S. government in ge neral, and its TSCA regulations for specific chemicals in particular

.

API acknowledges that in November 2006, EPA published a final rule changing e xport notification requirements in a manner that reduced burden. 3 This was a step in the right direction, b ut we think EPA can now eliminate the requirement in its current form

. We understand that EPA finds elimination of this rule difficult due to the statutory language of TSCA section 12(b), which states that a p erson who exports or intends to export to a

fo reign country a “12(b)” chemical substance or mixture shall notify EPA of the export or intent to export, and EPA shall then notify the foreign government

. We strongly urge

EPA to consider how the statute could be implemented without requiring the ongoing notifications that the regulations at 40 CFR Part 707 Subpart D currently mandate

.

While TSCA section 12(b) does mandate that exporters notify EPA of exports and that EPA provide receiving countries with notices, it does not specifically mandate that E PA carry out its statutory obligation in the manner that it currently does. For instance, there

1 44 U.S.C. 3506(c)(2)(A).

2 44 U.S.C. 3506(c)(3)(A).

3 71 FR 66244, November 24, 2006. The changes included changing the export notification requirement f rom annual to one time (per country) for some chemicals. The rule also established a de minimis concentration level for export notification, and contained several oth er changes and clarifications.Docket ID Number EPA

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is no timing requirement (or even mention of timeliness) in the statute for either the notification from exporters or the n otifications to foreign government s.

EPA contended when promulgating the original export notification regulations that it has the authority to issue procedural and interpretative r ules to implement the statute. 4 One

idea for an alternative to the current regulations is to rely on informati on collected under the new Chemical Data Reporting (CDR) rule. In the recent final rule for CDR , EPA added a field for reporting the volume directly exported of each reportable chemical substance domestically manufactured or imported at each site

. 5 This data reported to the CDR could serve as the notification of export from companies

.

The current regulations are burdensome on businesses that export chemical substances, including products c ontaining chemicals. To comply with TSCA export notification requ irements, businesses must develop and maintain compliance systems to track all chemical substance exports, check chemicals (including product ingredients) against the 12(b) list, determine if annual or one

- time notification is require d, and submit

letters to EPA. The current regulations require that export notification letters be sent to EPA within seven days of forming the intent to export or on the date of export, whichever is earlier. Compliance with this timeframe essentially requires an ongoing syste m of identifying exports, checking them for potential 12(b) components, and generating letters almost immediately.

Businesses affected by this requirement are of all sizes and are in many different industry sectors. Chemical e xporting is common in variou s forms, above and beyond bulk export of chemicals. For example, "exports" may occur through intracompany transfer of supplies, exchange of small R&D shipments, quick

- turnaround orders from customers, and so forth. Exporting is a vital part of the U.S. e conomy and is incre asing as global trade expands.

In addition, as EPA describes in its Supporting Statement , implementation of the requirements at the Agency involves a complex “handling and tracking” process that includes receiving documents in a Confide nt ial Business Information Center , processing

them in a contractor

- run TSCA Assistance and Information Service (TAIS ), and maintaining an Export Notification Tracking System (ENTS) which houses 162,000 records dating back to 1989. 6 We do not think the val ue in what is accomplished warrants the continued operation of this program.

In summary, t he export notification requirement s at 40 CFR Part 707 Subpart D are of

no health or envi ronmental benefit, and are a prime example of a bureaucratic program

that sh ould be eliminated. T hree decades of experience with the requirements have

shown th em to have little or no value, and they are now obsolete given the current state

4 45 FR 82844, December 16, 1980.

5 76 FR 50816

- 50879, A ugust 16, 2011 . Regulations at 711.15(b)(3) (iv).

6 U.S. EPA, Supporting Statement for a Request for OMB Review Under the Paperwork Reduction Act , EPA ICR No. 0795.14, OMB Control No. 2070

- 0030, p. 6.Docket ID Number EPA

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of information technology. The cost and burden of these requirements on industry and

gover nment are no longer justifiable.

As long as the export notification requirement continues, API supports an electronic reporting option

. EPA states i n its Supporting Statement that:

EPA is continuing to explore the feasibility of developi ng and implementi ng an optional electronic data reporting system for the ease of respondents, which could result in a significant burden reduction. The projected reporting system is designed to be a user

- friendly interface for parties engaged in reporting under TSCA sectio ns 4, 5, 8, and 12(b). Thus, the

submission of i nformation to EPA will be less expensive, faster, and more efficient once this technology is fully applied. 7

API would support an electronic option as long as it is voluntary (as EPA says, “optional”). API recently submitted comments on the EPA ’s Proposed Rule for Electronic Reporting Under th e Toxic Substances Control Act

. 8 In our comments, we

noted that the proposed rule for electronic reporting does not mention submissions under requirements impl ementing TSCA section 12(b), and requested that EPA explain its plans for electronic reporting under these requirements

.

EPA would need to implement electronic submission for TSCA export notification with care, considering the short timefr ames associated with sub mission under the current regulations, which require that export notifications to EPA must be postmarked within seven days of forming the intent to export or on the date o f export, whichever is earlier. A new user of the system (e.g., a company exporting a 12(b) chemical for the first time) might not have a time to register and learn the system in time to notify in the required

timeframe . Also, s ome companies that routinely export have programmed internal systems to automatically generate export notificat ion letters to EPA if and when the requirements are triggered. These systems would need to be fully redesigned if EPA were to implement mandatory electronic reporting for export notification , thus such companies might not use electronic reporting (or at l east not in the short run). For these and other reasons, i t is important that electronic reporting for TSCA section 12(b) be optional and not mandatory.

API appreciates the opportunity to comment on this ICR

. Feel free to contact me with any questions o r should you require additional information from API.

7 Supporting Statement , page 6.

8 77 FR 22707

- 22719, Ap ril 17, 2012

.Docket ID Number EPA

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Sincerely,

cc: API TSCA Task Force