Toxic Substance Control Act Fees Raise Unexpected Questions

Builders, developers, trades and retailers could be considered an importer of High Priority Substances under the Toxic Substances Control Act (TSCA).

The Environmental Protection Agency (EPA) published a notice in the Federal Register on Jan. 27, which lists manufacturers (including importers) of 20 chemical substances that have been designated as a High Priority Substance for risk evaluation under the TSCA.

The TSCA requires that manufacturers, including importers, pay fees to cover a portion of the risk evaluation cost if they manufacture or import these High Priority Substances.

While builders, developers, trades and retailers are not considered chemical manufacturers under the rule, they could be considered an importer under the rule if they import products containing High Priority Substances directly. Product importers are also required to comply with the fees rule and must self-identify under the rule as well.

The lists of manufacturers and importers subject to the TSCA Fees Rule is broken out by chemicals undergoing risk evaluation. Certain chemicals — such as formaldehyde, which is one of the 20 designated a High Priority Substance — may be found in imported building products. The presence of the chemical could trigger responsibilities for builders and remodelers under the rule.

Because of the implementation issues raised by affected stakeholders regarding the list of manufacturers and importers subject to the TSCA, EPA is extending its comment period for an additional 60 days until May 27, 2020.

Although most NAHB builder and developer members are unlikely to be impacted by the TSCA Fees Rule, it is important to note that it is still possible for builders and remodelers to be considered importers based on their activity. If a covered product is purchased directly from a foreign source (manufacturer or distributor), then you may be required to self-identify. Associate members who are retailers, distributors or wholesalers of potentially covered products may be the most likely to be affected.

Additionally, as EPA continues to work through implementation issues with the final rule, more guidance will be coming on reporting requirements and expectations during this period. This is also a time when businesses can certify as a "small business concern" and receive a reduced fee, or to make certain other certifications and avoid fee obligations.

For more information on implementation of the TSCA Fees Rule, contact Tamra Spielvogel at 800-368-5242 x8327.