Forever Chemical Imports Lookback Reporting Rule

Stainmaster carpet, omelet pans and dental floss have a long regulatory tail, importers are finding.

The Environmental Protection Agency (EPA) is finalizing reporting and recordkeeping requirements for per- and polyfluoroalkyl substances (PFAS) under the Toxic Substances Control Act (TSCA).  

PFAS, known as "forever chemicals" for their persistance in the environment, are found in a broad range of industrial and consumer products and known by the brands ScotchGuard, Teflon and GoreTex.

In accordance with obligations under TSCA, as amended by the National Defense Authorization Act for Fiscal Year 2020, EPA is requiring persons that manufacture (including import) or have manufactured these chemical substances in any year since January 1, 2011, to submit information to EPA

[88 FR 70516]

Under TSCA section 8(a)(7), EPA must collect information on chemical substances manufactured (including imported) for commercial purposes, including chemical substances present in a mixture, that are “perfluoroalkyl or polyfluoroalkyl substances,” or PFAS.

The known universe of TSCA chemical substances meeting this rule's definition of PFAS includes  1,462  TSCA PFAS identified by the proposed definition.

This rule is limited to manufacturers (including importers) of PFAS that are considered a “chemical substance.”  Anyone who has manufactured (including imported) a PFAS for a commercial purpose in any year since January 1, 2011, is covered by this rule.

Persons who have only processed, distributed in commerce, used, and/or disposed of PFAS are not required to report under this rule, unless they also have manufactured PFAS for a commercial purpose. 

At the time of the proposed rule's publication, EPA did not have sufficient and reliable data to inform an estimate of the scope of article importers that may be affected by the proposed rule's requirements.

However, after receiving comments through the docket related to the scope of article importers (including estimates provided by companies and industry trade associations), and through the discovery of additional information and data sources related to the scope of potentially affected article importers, EPA determined the proposed rule could no longer support a certification under the Regulatory Flexibility Act (RFA), 5 U.S.C. 601 et seq., that there would be no significant economic impact on a substantial number of small entities.

Specifically, the number of small businesses who may be considered importers of PFAS-containing articles and therefore potentially affected by the proposed rule was estimated to be approximately 130,000