Potential SBAR Panel: Regulation of Persistent, Bioaccumulative and Toxic Chemicals under Section 6 of the Toxic Substances Control Act (TSCA)
What is the Implication of the Proposed Rulemaking on Small Entities?
Section 6 of the Toxic Substances Control Act (TSCA) requires EPA to address unreasonable risks resulting from the manufacture (including import), processing, distribution in commerce, and use of chemicals, as well as any manner or method of disposal of chemicals. TSCA section 6(h) requires EPA to take expedited regulatory action for certain persistent, bioaccumulative and toxic (PBT) chemicals from the 2014 update of the TSCA Work Plan for Chemical Assessments that meet a specific set of criteria.
Five PBT chemicals were identified for action by EPA according to statutory criteria. Entities potentially regulated by this rulemaking include: those who manufacture, process, distribute in commerce, use or dispose of any of the five PBT chemicals identified for expedited action. The five PBT chemicals are:
- Decabromodiphenyl ethers (DecaBDE), used as a flame retardant in textiles, plastics, wiring insulation, and building and construction materials;
- Hexachlorobutadiene (HCBD), used as a solvent in the manufacture of rubber compounds and as hydraulic, heat transfer or transformer fluid;
- Pentachlorothiophenol (PCTP), used as a mercaptan (sulfur) cross-linking agent to make rubber more pliable in industrial uses;
- Phenol, isopropylated, phosphate (3:1), used as a flame retardant in consumer products and as lubricant, hydraulic fluid, and other industrial uses; and
- 2,4,6-Tris(tert-butyl) phenol, an antioxidant that can be used as a fuel, oil, gasoline or lubricant additive.
The EPA is requesting small businesses, small governments, and small not-for-profit organizations nominate themselves as small entity representatives to provide input to a federal panel. After collecting input from the small entities the Panel will make recommendations to the Agency on the development of a proposed rule to regulate these PBT chemicals.
What is a Small Business Advocacy Review Panel?
The EPA expects to conduct a Small Business Advocacy Review (SBAR) Panel for the development of a proposed rulemaking for the PBT chemicals identified for expedited action under TSCA section 6(h).
The Regulatory Flexibility Act as amended by the Small Business Regulatory Enforcement Fairness Act (RFA/SBREFA) requires the EPA to convene a SBAR Panel for a proposed rule unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. The Panel process offers an opportunity for small businesses, small governments and small not-for-profit organizations (collectively referred to as small entities) to provide advice and recommendations to ensure that the EPA carefully considers small entity concerns regarding the impact of the potential rule on their organizations.
The Panel itself is comprised of federal employees from EPA, the Office of Management and Budget (OMB), and the Office of Advocacy in the Small Business Administration (SBA). Small Entity Representatives (SERs) provide advice and recommendations to the Panel. Typically, the EPA prefers that SERs be owners or operators of small businesses, small organization officials or small government officials. Other representatives, such as trade associations that exclusively or at least primarily represent potentially regulated small entities, also may serve as SERs. These other representatives are evaluated on a case by case basis.
Information about what constitutes a "small business" is available at the SBA’s web page on size standards. A "small government" is defined as a jurisdiction serving a population of 50,000 residents or fewer. A “small organization” is defined as any “not-for-profit enterprise which is independently owned and operated and is not dominant in its field.” To learn more, please review EPA’s Small Entities and Rulemaking – Frequent Questions web page.
How Can I Get Involved?
You are eligible to serve as a SER if you are a small entity that manufactures, processes, distributes in commerce, uses, or disposes any of the five PBT chemicals that may be directly subject to this proposed rule. As mentioned above, other representatives, such as trade associations, that exclusively or at least primarily represent potentially regulated small entities may also serve as SERs. The role of a SER is to provide advice and recommendations to ensure that the Panel carefully considers small entity concerns regarding the impact of the potential rule on their organizations and to communicate with other small entities within their sector who do not serve as SERs.
You may nominate yourself to serve as a SER by following the directions in the next section. Depending on the volume of responses, the EPA may not be able to invite all eligible candidates to participate as SERs. Generally, SERs will be asked to review background information on the topic, listen to informational briefings, and provide oral and written advice and recommendations to the Panel. At least one face-to-face meeting is typically held with the SERs in Washington, DC; a toll-free conference line is provided for this meeting.
Who Should I Contact?
- Qualify as “small” under SBA’s definition and expect to be directly subject to requirements of the proposed rule; or
- Exclusively represent or at least primarily represent potentially regulated small entities (e.g., a trade association that exclusively or primarily represents small entities). Nominees such as these will be evaluated on a case by case basis.
Individuals who are interested in potentially serving as a SER should send a message to RFA-SBREFA@epa.gov or call 202-564-0301 no later than March 22, 2018. USE THE FOLLOWING AS THE SUBJECT LINE OF YOUR EMAIL: SER Self-Nomination for TSCA Section 6(h) Rulemaking for Persistent, Bioaccumulative, and Toxic (PBT) Chemicals (RIN 2070-AK34).
In the message, please provide:
- Your name
- Name of your company, governmental jurisdiction, or not-for-profit organization
- Size of your company, governmental jurisdiction, or not-for-profit organization
- If you are representing a business, you may confirm that your business meets the definition of “small” by consulting SBA’s web page on size standards.
- If you are with a group such as a trade association that does not qualify as a small entity but represents small entities, provide a list of your members, the size of your members (if possible), and a qualitative statement describing how your group can represent the unique interests of your members that qualify as small entities.
- Contact information (preferably, a minimum of a phone number and email address)
Please remember: Depending on the volume of responses, EPA may not be able to invite all qualified candidates to participate as SERs.