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

Document 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: ICR 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. Environmental Protection Agency’s (EPA’s) Information Collection Request (ICR) 

Notification of Chemical Exports—TSCA Section 12(b), EPA ICR No. 0795.14 and OMB 

Control No. 2070-0030 [77 Federal Register 26750 - 26751, May 7, 2012]. API is a 

national trade association representing more than 500 member companies involved in 

all aspects of the oil and gas industry, including exploration, production, refining, 

transportation, distribution, and marketing of petroleum and petroleum products. Our 

member companies have 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 

retiring the TSCA export notification requirements because they are obsolete, have no 

practical utility, and are burdensome and costly to industry and EPA. Second, if the 

requirements are to continue for any significant time, we support EPA’s suggestion of

establishing 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 ICR process is to ensure that information requirements are 

reviewed on a regular basis and evaluated regarding whether they are necessary for the 

functions of the collecting government agency and will have practical utility. The 
Docket ID Number EPA–HQ–OPPT-2012-0258

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Paperwork Reduction Act requires EPA to solicit comment on whether the proposed 

collection of information is necessary for the proper performance of the functions of the 

agency, including whether 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 section 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 receiving 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 given chemical/country combination to EPA on an 

ongoing basis. The export notifications that EPA receives from companies are many 

times greater than the notices it sends to foreign countries, thus many of the export 

notifications companies send to EPA are completely extraneous.

Moreover, the current state of communication and technology has made EPA’s notices 

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 Internet. Through websites and other 

communication forums, there is an extensive framework through which foreign 

governments can easily know the regulatory actions of the U.S. government in general, 

and its TSCA regulations for specific chemicals in particular.

API acknowledges that in November 2006, EPA published a final rule changing export 

notification requirements in a manner that reduced burden.3

 This was a step in the right 

direction, but 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 person who exports or intends to export to a 

foreign 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 EPA 

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 from 

annual to one time (per country) for some chemicals. The rule also established a de minimis concentration level for 

export notification, and contained several other changes and clarifications.
Docket ID Number EPA–HQ–OPPT-2012-0258

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is no timing requirement (or even mention of timeliness) in the statute for either the 

notification from exporters or the notifications to foreign governments.

EPA contended when promulgating the original export notification regulations that it has 

the authority to issue procedural and interpretative rules to implement the statute.4 One 

idea for an alternative to the current regulations is to rely on information 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 containing chemicals. To comply with TSCA export 

notification requirements, 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 required, 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 

system 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 exporting is common in various 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. economy and is increasing 

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 Confidential 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 value in what is accomplished 

warrants the continued operation of this program.

In summary, the export notification requirements at 40 CFR Part 707 Subpart D are of 

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

that should be eliminated. Three decades of experience with the requirements have

shown them 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, August 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–HQ–OPPT-2012-0258

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

government are no longer justifiable.

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

electronic reporting option.

EPA states in its Supporting Statement that:

EPA is continuing to explore the feasibility of developing and implementing 

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 sections 4, 5, 8, and 12(b). Thus, the 

submission of information 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 the Toxic Substances Control Act.

8

 In our comments, we 

noted that the proposed rule for electronic reporting does not mention submissions 

under requirements implementing 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 timeframes associated with submission 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 of 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, some companies that routinely export have programmed internal 

systems to automatically generate export notification 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 least not in the short run). For these 

and other reasons, it 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 or should you require additional information from API.

 7 Supporting Statement, page 6. 8 77 FR 22707-22719, April 17, 2012.
Docket ID Number EPA–HQ–OPPT-2012-0258

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Sincerely,

cc:

API TSCA Task Force