Importers Of Mercury-Containing Articles Face Reporting Requirements

• Published date: 18 November 2021
• Subject Matter: Environment, Energy and Natural Resources, Environmental Law, Chemicals
• Law Firm: Beveridge & Diamond
• Author: Mr Ryan J. Carra, Mark N. Duvall and Sarah A. Kettenmann

More than four years after finalizing reporting requirements for the manufacture, import, export, processing, and distribution in commerce of elemental mercury and mercury-added products, EPA has eliminated an exemption for certain importers. This response to a 2020 court decision broadens the scope of companies required to report to include importers of articles qualifying as a mercury-added products. 86 Fed. Reg. 61708 (Nov. 8, 2021); 40 C.F.R. ' 713.7(b)(2).

The amendment to the mercury reporting rule eliminates an existing exemption for companies that manufacture (including import) a mercury-added product where that company is "engaged only in the import of a product that contains a component that is a mercury-added product." Now, importers of a pre-assembled product that contains a component that is a mercury-added product will be subject to reporting requirements under TSCA section 8(b)(10).

EPA explained in the preamble to the original mercury reporting rule that "the manufacture (other than import) of a mercury-added product is the 'intentional addition of mercury where mercury remains present in the final product for a particular purpose'." 83 Fed. Reg. 30061 (June 27, 2018). EPA's amendment essentially eliminates the parenthetical so that imports of mercury-added products, including assembled products, are subject to reporting requirements. Per EPA's Compliance Guide for the mercury reporting rule, an "assembled product" is a product that is "manufactured with the inclusion of a component that is a mercury-added product. An example is a vehicle containing a mercury-added fluorescent light bulb." In turn, a "component" refers to a "mercury-added product that is installed as part of the manufacture of an assembled product."

Importers of mercury-added products subject to the amended rule will be required to report as follows:

• General requirements
  • Amount of mercury in manufactured products;
  • Amount of mercury in imported products;
  • Amount of mercury in exported products; and
  • Amount of mercury in products distributed in commerce (only for non-IMERC reporters);
• Contextual requirements
  • Countries of origin for imported products;
  • Countries of destination for exported products; and
  • NAICS codes for products distributed in commerce; and
• Specific requirements: the company should specify in reporting as applicable, the specific categories or the subcategories of mercury-added products.

The amended rule includes examples of dozens of entities that may...