I 

111TH CONGRESS 

1ST SESSION H. R. 4394 

To provide for a phased ban on decabrominated diphenylether and mixtures 

or products containing that chemical, and for other purposes. 

IN THE HOUSE OF REPRESENTATIVES 

DECEMBER 16, 2009 

Ms. PINGREE of Maine introduced the following bill; which was referred to the 

Committee on Energy and Commerce, and in addition to the Committees 

on Foreign Affairs and Ways and Means, for a period to be subsequently 

determined by the Speaker, in each case for consideration of such provisions as fall within the jurisdiction of the committee concerned 

A BILL 

To provide for a phased ban on decabrominated 

diphenylether and mixtures or products containing that 

chemical, and for other purposes. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 

3 SECTION 1. SHORT TITLE. 

4 This Act may be cited as the ‘‘Decabromine Elimi5 nation and Control Act of 2009’’. 


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1 SEC. 2. BAN ON DECABDE, DECABDE MIXTURES, AND 

2 DECABDE PRODUCTS. 

3 Beginning January 1, 2013, it shall be unlawful for 

4 any entity to produce for distribution in commerce, dis5 tribute in commerce, import, or export— 

6 (1) decaBDE; 

7 (2) decaBDE mixtures; or 

8 (3) decaBDE products. 

9 SEC. 3. PHASING IN OF BAN. 

10 (a) REPORT OF DECABDE ACTIVITY DURING

11 2009.—Not later than 90 days after the date of enactment 

12 of this Act, each entity who, during 2009, engaged in any 

13 activity that will be prohibited under paragraph (1) or (2) 

14 of section 2 shall report to the Administrator of the Envi15 ronmental Protection Agency (hereinafter in this Act re16 ferred to as the ‘‘Administrator’’), in such form and detail 

17 as the Administrator requires in order to carry out this 

18 Act, the following: 

19 (1) Each such activity engaged in with regard 

20 to decaBDE, including the amount of decaBDE 

21 used in that activity. 

22 (2) Each such activity engaged in with regard 

23 to decaBDE mixtures, including the amount of such 

24 mixtures used in that activity. 

25 (b) ESTABLISHMENT OF QUOTAS FOR EACH ENTI26 TY.—Not later than 15 days after receiving a report from 


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1 an entity under subsection (a), the Administrator shall es2 tablish an annual quota for that entity for each activity 

3 that entity reports, in accordance with the following: 

4 (1) For activities with regard to decaBDE, each 

5 such annual quota shall be equal to the amount of 

6 decaBDE reported to have been used in that activ7 ity. 

8 (2) For activities with regard to decaBDE mix9 tures, each such annual quota shall be equal to the 

10 amount of such mixtures reported to have been used 

11 in that activity. 

12 (c) ONLY ENTITIES WITH QUOTAS ABLE TO EN13 GAGE IN ACTIVITIES.—Not later than 90 days after the 

14 date of enactment of this Act, it shall be unlawful for any 

15 entity to engage in an activity that will be prohibited 

16 under paragraph (1) or (2) of section 2 if the Adminis17 trator has not established an annual quota for that entity 

18 for that activity. 

19 (d) ANNUAL QUOTAS.—During each year shown on 

20 the left column of the table below, it shall be unlawful 

21 for any entity to engage in an activity with regard to an 

22 amount of decaBDE or decaBDE mixture that exceeds 

23 the percentage, shown on the right column of the table 

24 below, of the annual quota established for that entity for 

25 that activity: 


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2010 ....................................................................... 100 percent 

2011 ....................................................................... 66 percent 

2012 ....................................................................... 33 percent. 

1 SEC. 4. REPORTING DURING PHASE OUT. 

2 Beginning on the date that is 1 year after the date 

3 on which an entity reports an activity under section 3(a), 

4 that entity shall submit to the Administrator an annual 

5 report on that activity, in such manner as the Adminis6 trator determines appropriate. 

7 SEC. 5. DISCLOSURE OF INFORMATION REGARDING 

8 DECABDE PRODUCTS. 

9 (a) IN GENERAL.—Beginning on the date of enact10 ment of this Act, any entity that produces for distribution 

11 in commerce, distributes in commerce, imports, or exports 

12 decaBDE, decaBDE mixtures, or decaBDE products shall 

13 disclose to any entity that receives such decaBDE, 

14 decaBDE mixtures, or decaBDE products that such 

15 decaBDE, decaBDE mixtures, or decaBDE products con16 tain decaBDE. 

17 (b) DECABDE PRODUCTS.—Not later than 1 year 

18 after the date of enactment of this Act, any entity that 

19 produces for distribution in commerce, distributes in com20 merce, imports, or exports decaBDE products shall dis21 close to the Administrator any articles that contain 

22 decaBDE. 


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1 SEC. 6. ENFORCEMENT RELATING TO VIOLATIONS. 

2 (a) SAME ENFORCEMENT MECHANISM AS USED FOR

3 VIOLATIONS OF SECTION 15 OF THE TOXIC SUBSTANCES

4 CONTROL ACT.—The same enforcement procedures as 

5 would apply to a violation of section 15 of the Toxic Sub6 stances Control Act shall apply to each violation of this 

7 Act. 

8 (b) RULES.— 

9 (1) The Administrator shall make rules to en10 force the annual quotas and ban of this Act on the 

11 production for distribution in commerce, distribution 

12 in commerce, or importation of decaBDE, decaBDE 

13 mixtures, or decaBDE products. 

14 (2) The President shall exercise the authorities 

15 set forth in section 203 of the International Emer16 gency Economic Powers Act, consistent with the re17 quirements of this Act, to enforce the annual quotas 

18 and ban of this Act on the exportation of decaBDE, 

19 decaBDE mixtures, or decaBDE products. 

20 (c) CITIZENS’ CIVIL ACTIONS.—Any entity may com21 mence a civil action against any other entity that is alleged 

22 to be in violation of this Act to restrain such violation. 

23 To the extent practicable, such an action shall be handled 

24 in the same way as a civil action under section 7002 of 

25 the Solid Waste Disposal Act. 


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1 SEC. 7. EXCEPTIONS. 

2 (a) CRITICAL USES.—A use of decaBDE, decaBDE 

3 mixtures, or decaBDE products by the Armed Forces or 

4 the aviation industry shall be exempt from the annual 

5 quotas or ban imposed by this Act if the Administrator 

6 determines that there is not a feasible alternative to such 

7 use. Such exemption shall be for a term of 5 years, and 

8 the Administrator may renew such exemption only if the 

9 Administrator determines that there is not a feasible alter10 native to such use at the time of such renewal. 

11 (b) RECYCLED ARTICLES.—A recycled article that 

12 contains decaBDE shall be exempt from the annual quotas 

13 and ban imposed by this Act, unless the Administrator de14 termines by rule that the article poses a threat to public 

15 health. 

16 (c) RESOLD ARTICLES.—This Act does not apply 

17 with regard to a decaBDE product subsequent to its first 

18 sale at retail. 

19 (d) LOW CONCENTRATION ARTICLES.—The Adminis20 trator may by rule make exemptions from this Act for arti21 cles that contain decaBDE in concentrations that the Ad22 ministrator determines to be unavoidable due to contami23 nation of the environment by decaBDE. 

24 SEC. 8. SAFER ALTERNATIVES. 

25 (a) POLICY.—DecaBDE shall be replaced by safer al26 ternatives. For the purposes of this section, a ‘‘safer alterVerDate Nov 24 2008 02:08 Dec 19, 2009 Jkt 089200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\H4394.IH H4394

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1 native’’ means a substitute process, product, material, 

2 chemical, strategy, or combination of these that serves a 

3 functionally equivalent purpose to decaBDE that, when 

4 compared to decaBDE, would reduce the potential for 

5 harm to human health or the environment. 

6 (b) REPLACEMENTS.—With regard to a use of 

7 decaBDE, decaBDE mixtures, or decaBDE products, no 

8 chemical substance (as defined in section 3(2) of the Toxic 

9 Substances Control Act), mixture (as defined in section 

10 3(8) of the Toxic Substances Control Act) containing that 

11 chemical substance, or article containing that chemical 

12 substance may be used in lieu thereof if the Administrator 

13 determines that such chemical substance is a persistent, 

14 bioaccumulative, and toxic chemical. 

15 (c) STUDIES AND NOTIFICATION.—The Adminis16 trator shall require any entity who produces for distribu17 tion in commerce a chemical substance that is a substitute 

18 for decaBDE to provide the Administrator with all exist19 ing information about the hazard and exposure character20 istics of the chemical substance that— 

21 (1) is known to, in the possession or control of, 

22 or reasonably ascertainable by the entity; and 

23 (2) has not previously been submitted to the 

24 Administrator. The Administrator shall require any 

25 such entity to notify the Administrator not less than 


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1 90 days before new or existing chemicals are intro2 duced into interstate commerce for significant new 

3 uses as substitutes for decaBDE. 

4 SEC. 9. REPORT TO CONGRESS. 

5 The Administrator shall monitor, and, not later than 

6 December 31, 2014, submit a report to Congress on, the 

7 production, use, and consumption of decaBDE. Such re8 port shall include data on production, use, and consump9 tion of decaBDE in the United States and on the environ10 mental and economic effects of decaBDE. 

11 SEC. 10. RELATION TO OTHER LAWS. 

12 Nothing in this Act affects the right of a State or 

13 local government to adopt or enforce any regulation, re14 quirement, or liability that is more stringent than a regu15 lation, requirement, or liability established by this Act. 

16 SEC. 11. DEFINITIONS. 

17 In this Act: 

18 (1) The term ‘‘decaBDE’’ means 

19 decabromodiphenyl ether, CAS No. 1163–19–5, ei20 ther pure or in commercial mixtures which are pre21 dominantly decabromodiphenyl ether. 

22 (2) The term ‘‘decaBDE mixture’’ means any 

23 mixture (as defined in section 3(8) of the Toxic Sub24 stances Control Act) containing decaBDE. 


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1 (3) The term ‘‘decaBDE product’’ means any 

2 article containing decaBDE. 

3 (4) The terms ‘‘distribute in commerce’’ and 

4 ‘‘distribution in commerce’’ have the meanings given 

5 such terms in section 3(4) of the Toxic Substances 

6 Control Act. 

7 (5) The term ‘‘export’’ means to engage in any 

8 of the actions that the President has authority over 

9 under section 203 of the International Emergency 

10 Economic Powers Act. 

11 (6) The term ‘‘first sale at retail’’ means, with 

12 regard to an article, the first occasion on which that 

13 article is sold to an end user. 

Æ 


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