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59-006

109TH CONGRESS

REPORT

HOUSE OF REPRESENTATIVES

2d Session

109-714

--STOCKHOLM AND ROTTERDAM TOXICS TREATY ACT OF 2006

NOVEMBER 15, 2006- Committed to the Committee of the Whole House on the State of the Union and ordered to be printed

Mr. BARTON of Texas, from the Committee on Energy and Commerce, submitted the following

R E P O R T

together with

DISSENTING VIEWS

[To accompany H.R. 4591]

[Including cost estimate of the Congressional Budget Office]

CONTENTS Page
Amendment 2
Purpose and Summary 17
Background and Need for Legislation 17
Hearings 20
Committee Consideration 20
Committee Votes 20
Committee Oversight Findings 24
Statement of General Performance Goals and Objectives 24
New Budget Authority, Entitlement Authority, and Tax Expenditures 24
Committee Cost Estimate 24
Congressional Budget Office Estimate 24
Federal Mandates Statement 25
Advisory Committee Statement 26
Constitutional Authority Statement 26
Applicability to Legislative Branch 26
Section-by-Section Analysis of the Legislation 26
Changes in Existing Law Made by the Bill, as Reported 32
Dissenting Views 58

AMENDMENT

SECTION 1. SHORT TITLE.

SEC. 2. IMPLEMENTATION OF INTERNATIONAL AGREEMENTS.

`TITLE V--IMPLEMENTATION OF INTERNATIONAL AGREEMENTS

`SEC. 501. DEFINITIONS.

`SEC. 502. IMPLEMENTATION OF POPS CONVENTION AND LRTAP POPS PROTOCOL.

`SEC. 503. NOTICE, INFORMATION, RULEMAKING, AND EXEMPTIONS.

`SEC. 504. AMENDMENTS AND CONSULTATION.

`SEC. 505. INTERNATIONAL COOPERATION AND NOTICE OF MEETINGS.

`SEC. 506. EFFECT OF REQUIREMENTS.

`SEC. 507. RULES OF CONSTRUCTION.

SEC. 3. POLYCHLORINATED BIPHENYLS (PCBS).

SEC. 4. JUDICIAL REVIEW.

SEC. 5. EXPORTS.

SEC. 6. CONFORMING AMENDMENTS.

`TITLE V--IMPLEMENTATION OF INTERNATIONAL AGREEMENTS
`Sec. 501. Definitions
`Sec. 502. Implementation of POPs Convention and LRTAP POPs Protocol
`Sec. 503. Notice, information, rulemaking, and exemptions
`Sec. 504. Amendments and consultation
`Sec. 505. International cooperation and notice of meetings
`Sec. 506. Effect of requirements
`Sec. 507. Rules of construction'.

PURPOSE AND SUMMARY

The purpose of H.R. 4591, the Stockholm and Rotterdam Toxics Treaty Act of 2005, is to implement the Stockholm Convention on Persistent Organic Pollutants (POPs), the Protocol on Persistent Organic Pollutants to the Convention on Long-Range Transboundary Air Pollution (LRTAP), and the Rotterdam Convention on the Prior Informed Consent Procedure for Certain Hazardous Chemicals and Pesticides in International Trade (PIC).

BACKGROUND AND NEED FOR LEGISLATION

Persistent organic pollutants (POPs) are toxic chemicals that adversely affect human health and the environment around the world. Because they can be transported by wind and water, most POPs generated in one country can affect people and wildlife far from where they are used and released. They persist for long periods of time in the environment and can accumulate and pass from one species to the next through the food chain. To address this global concern, the U.S. negotiated and signed onto three international agreements to address POPs in the last decade: (1) the 2001 Stockholm Convention on Persistent Organic Pollutants; (2) the 1998 Aarhus Protocol on Persistent Organic Pollutants (POPs Protocol) to the 1979 Geneva Convention on Long-Range Transboundary Air Pollution (LRTAP); and (3) the 1998 Rotterdam Convention on the Prior Informed Consent Procedure for Certain Hazardous Chemicals and Pesticides in International Trade (PIC Convention).

Currently, the U.S. is a signatory on all three agreements. However, in order for the U.S. to become a binding and full partner to these treaties and play a meaningful role and secure its interests in future meetings, especially as control measures for additional chemicals are proposed, the Senate must give its advice and consent on the POPs and PIC Conventions, and Congress must enact enabling (also known as `implementing') legislation so that current law can be amended to be in full compliance with the agreements. Since the LRTAP POPs Protocol is considered to be an executive agreement and amends a broader treaty to which the U.S. is already a party, the POPs Protocol does not require Senate approval.

At present, U.S. environmental laws, primarily the Toxic Substances Control Act (TSCA) and the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) authorize most Environmental Protection Agency (EPA) activities that are necessary to fulfill commitments under these three international agreements. Therefore, the U.S. is, in large part, already fulfilling many of the obligations of these three international agreements, either because it has taken the legal and administrative measures necessary to eliminate production and use of the listed chemicals, or because nearly all production and use of these chemicals have otherwise ceased. New legislation is needed, however, to authorize EPA implementation of a few treaty provisions.

The Administration and most other stakeholders have suggested that it is important to have implementing legislation in place as soon as possible. Ratification and U.S. compliance with these international treaties will allow the U.S. to participate as a full party to these treaties. Absent ratification, the U.S. is relegated to participation as an observer, not as a party, in formal meetings that discuss additional substances or mixtures to be proposed for listing.

H.R. 4591 seeks to address certain limitations to existing statutes and regulations of chemicals for the U.S. to be in full compliance with the terms of these international agreements. While there is virtual agreement on treatment of the initial chemical substances under the treaties, there are questions concerning the addition of new chemicals in the future.

For the listing of new chemicals under the POPs Convention and LRTAP POPs Protocol, it is difficult to know what domestic implementing regulations or laws might be necessary based on a future addition of a chemical or other amendment to these treaties to which the United States might `opt-in.' How a given party determines its positions on amendments is fully a matter of domestic law. While nothing in the POPs or LRTAP POPs agreements dictate that compliance be through regulations issued from an agency as opposed to action by Congress, H.R. 4591 nonetheless sets out additional rulemaking authority that the EPA Administrator may use with respect to chemicals added to the treaty lists in the future. The international body under POPs and LRTAP POPs would propose such chemicals or other new amendments and decisions through an international process intended to be consensus in nature of which the U.S. would be a participant. During this process, these proposals would not automatically impose any new restrictions in the U.S. on new chemicals. Once the international body has voted to add a new chemical, this proposal would also not automatically impose any new restrictions in the U.S. on that chemical without U.S. consent, also known as the `opt-in.' Additionally, the agreements do not prevent the U.S. from acting to regulate these substances (or not) using its own authority.

Currently, TSCA Section 6 details the rule-making procedure for chemicals found to present an unreasonable risk. The procedure combines notice and opportunity for public comment consistent with the Administrative Procedure Act (5 U.S.C. Sec. 553), and an opportunity for an informal hearing. In addition, the TSCA regulatory procedure requires that EPA consider and publish a statement with respect to the health and environmental effects of the chemical, the magnitude of human and environmental exposure to the chemical, the benefits of the chemical for various uses, the availability of substitutes, and `reasonably ascertainable economic consequences of the rule, after consideration of the effect on the national economy, small business, technological innovation, the environment, and public health.'

The final chemical rule must be based on `the matter in the rulemaking record (as defined in section 19(a)),' which includes the rule, the EPA Administrator's finding that the chemical presents an unreasonable risk, the cost-benefit statement, the hearing transcript, any written submission of interested parties, and other relevant material.

Below is a brief discussion of each of the agreements that H.R. 4591 seeks to implement:

Stockholm Convention on Persistent Organic Pollutants (POPs treaty): Under the auspices of the United Nations (U.N.), the U.S. began negotiating this treaty in 1995 and officially signed onto this agreement with 90 other countries and the European Union in May 2001. Under the POPs treaty, countries agree to reduce or eliminate the production, use, and release of 12 key POPs, which include nine pesticides (aldrin, chlordane, DDT, dieldrin, endrin, heptachlor, hexachlorobenzene, mirex, and toxaphene), and three industrial chemicals, (PCBs and unintentional by-products (dioxins and furans) of industrial and combustion processes). The Stockholm POPs Convention entered into force on May 17, 2004, and the first meeting of the Parties to the POPs Convention, at which the composition of the POPs Review Committee and the rules of procedure were established, took place in May 2005. One hundred thirty countries have now ratified the Convention.

Long-Range Transboundary Air Pollution (LRTAP) POPs Protocol: Not a treaty, this accord was completed in Aarhus, Denmark in February 1998, and is a regional agreement that seeks `to control, reduce or eliminate discharge, emissions and losses of persistent organic pollutants' in Europe, some former Soviet Union countries, and the U.S. This agreement is a legally binding protocol on POPs under the Geneva Convention on Long-Range Transboundary Air Pollution, the objective of which is to control, reduce, or eliminate discharges, emissions, and losses of persistent organic pollutants. The LRTAP POPs Protocol regulates 16 compounds, banning the production and use of 8 (aldrin, chlordane, dieldrin, endrin, hexabromobiphenyl, kepone (chlordecone), mirex, and toxaphene), banning or significantly restricting production and use of hexachlorobenzene, heptachlor, PCBs, DDT, and lindane, and applying limits to air emissions from major stationary sources of dioxins (polychlorinated dibenzo-p-dioxins), furans (polychlorinated dibenzofurans), hexachlorobenzene, and polycyclic aromatic hydrocarbons.

The LRTAP POPs Protocol went into force on October 23, 2003. The LRTAP Executive Body met in December 2003, and issued a number of framework decisions for the operation of the LRTAP POPs Protocol that are now in force. The LRTAP POPs Protocol will not require Senate advice and consent, only implementing legislation. Once that legislation is enacted, the U.S. will be able to join the Protocol.

Rotterdam Convention on Prior Informed Consent (PIC): In 1998, under the auspices of the United Nations, the U.S. negotiated with 100 other countries at a conference in Rotterdam on an agreement that turned a voluntary international program into a legally binding procedure known as the `Prior Informed Consent procedure for certain hazardous chemicals and pesticides in international trade.' Under PIC, importing countries should receive shipments of banned or severely restricted substances, such as pesticides, only after they have had an opportunity to make an informed decision about them.

The PIC Convention entered into force on February 24, 2004. Entry into force triggered a required meeting of the Conference of the Parties (COP). The PIC Conference of the Parties took on a number of important decisions at the first meeting on issues including the Convention's non-compliance regime, the rules of procedure (including which COP decisions need to be taken by consensus, which is significant for the U.S.), and the organization of the Chemical Review Committee that will consider chemicals for addition to the Convention's Annex III.

HEARINGS

The Subcommittee on Environment and Hazardous Materials held a hearing on `Legislation to Implement the POPs, PIC, and LRTAP POPs Agreements' on March 2, 2006. The Subcommittee received testimony from: The Honorable Claudia A. McMurray, Assistant Secretary for Oceans and International Environmental and Scientific Affairs, U.S. Department of State; Mrs. Susan B. Hazen, Principal Deputy Assistant Administrator, Office of Prevention, Pesticides, and Toxic Substances, U.S. Environmental Protection Agency; Mr. Michael P. Walls, Managing Director, Regulatory and Technical Affairs Department, American Chemistry Council; Mr. Steven Goldberg, Vice President and Associate General Counsel, Regulatory Law & Government Affairs, Crop Life America; Mr. Jim Roewer, Executive Director, the Utility Solid Waste Activities Group; Mr. E. Donald Elliott, Partner, Wilkie and Gallagher, LLP; Dr. Lynn R. Goldman, Professor, Environmental Health Sciences, Bloomberg School of Public Health, Johns Hopkins University; Ms. Claudia Polsky, Deputy Attorney General, Environmental Section, California Department of Justice; Mr. Brooks B. Yeager, Visiting Fellow, H. John Heinz III Center for Science, Economics, and the Environment; and Mr. Glenn M. Wiser, Senior Attorney, Center for International Environmental Law.

COMMITTEE CONSIDERATION

On Thursday, May 18, 2006, the Subcommittee on Environment and Hazardous Materials met in open markup session and approved H.R. 4591 for full Committee consideration, amended, by a record vote of 15 yeas to 10 nays, a quorum being present. On Wednesday, July 12, 2006, the Committee on Energy and Commerce met in open markup session and ordered H.R. 4591 favorably reported to the House, amended, by a recorded vote of 28 yeas and 15 nays, a quorum being present.

COMMITTEE VOTES

Clause 3(b) of rule XIII of the Rules of the House of Representatives requires the Committee to list the record votes on the motion to report legislation and amendments thereto. A motion by Mr. Barton to order H.R. 4591 reported favorably to the House, amended, was agreed to by a record vote of 28 yeas and 15 nays.

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COMMITTEE OVERSIGHT FINDINGS

Pursuant to clause 3(c)(1) of rule XIII of the Rules of the House of Representatives, the Subcommittee on Environment and Hazardous Materials held a legislative hearing and made findings that are reflected in this report.

STATEMENT OF GENERAL PERFORMANCE GOALS AND OBJECTIVES

The goal of H.R. 4591 is to implement the Stockholm Convention on Persistent Organic Pollutants, the Protocol on Persistent Organic Pollutants to the Convention on Long-Range Transboundary Air Pollution, and the Rotterdam Convention on the Prior Informed Consent Procedure for Certain Hazardous Chemicals and Pesticides in International Trade.

NEW BUDGET AUTHORITY, ENTITLEMENT AUTHORITY, AND TAX EXPENDITURES

In compliance with clause 3(c)(2) of rule XIII of the Rules of the House of Representatives, the Committee finds that H.R. 4591, the Stockholm and Rotterdam Toxics Treaty Act of 2005, would result in no new or increased budget authority, entitlement authority, or tax expenditures or revenues.

COMMITTEE COST ESTIMATE

The Committee adopts as its own the cost estimate prepared by the Director of the Congressional Budget Office pursuant to section 402 of the Congressional Budget Act of 1974.

CONGRESSIONAL BUDGET OFFICE ESTIMATE

Pursuant to clause 3(c)(3) of rule XIII of the Rules of the House of Representatives, the following is the cost estimate provided by the Congressional Budget Office pursuant to section 402 of the Congressional Budget Act of 1974:

U.S. Congress,

CONGRESSIONAL BUDGET OFFICE,

Washington, DC, August 3, 2006.

Hon. Joe Barton,
Chairman, Committee on Energy and Commerce,
House of Representatives, Washington, DC.

DEAR MR. CHAIRMAN: The Congressional Budget Office has prepared the enclosed cost estimate for H.R. 4591, the Stockholm and Rotterdam Toxics Treaty Act of 2006.

If you wish further details on this estimate, we will be pleased to provide them. The CBO staff contacts are Susanne S. Mehlman and Leigh Angres.

Sincerely,

Donald B. Marron,

Acting Director.

Enclosure.

H.R. 4591--Stockholm and Rotterdam Toxics Treaty Act of 2006

H.R. 4591 would amend the Toxic Substances Control Act to authorize the Environmental Protection Agency (EPA) to implement provisions of three international environmental agreements: the Stockholm Convention on Persistent Organic Pollutants (POPs Convention), the Protocol to the 1979 Convention on Long-Range Transboundary Air Pollution for POPs (POPs Protocol to LRTAP), and the Rotterdam Convention on the Prior Informed Consent Procedure for Certain Hazardous Chemicals and Pesticides in International Trade (PIC Convention). Those agreements are intended to help protect environmental and human health by eliminating or restricting the use of certain chemicals and to provide a means for participating countries to obtain and disseminate information about chemicals that may be imported and exported.

CBO estimates that implementing H.R. 4591 would cost $10 million over the next five years, assuming appropriation of the necessary amounts. Funds would support additional personnel that would be needed at EPA under this legislation. While EPA currently regulates many of the chemicals that would be affected by these agreements, implementing this legislation would result in additional responsibilities for EPA. Specifically, EPA would participate in the international process for determining whether additional chemicals should be prohibited or restricted from use under the agreements. The agency would then oversee the process necessary to meet any prohibitions or restrictions of the use of chemicals that the United States chooses to pursue. EPA's duties would include issuing public notices following decisions by the committees established under the agreements and developing and enforcing regulations when necessary. In establishing regulations, EPA would be required to conduct an analysis of the environmental and health benefits and risks, the economic consequences, and the national and international effects of regulating or banning certain chemicals.

Based on information from EPA, CBO estimates that these activities would cost about $2 million a year, subject to the availability of appropriated funds. Enacting H.R. 4591 would not affect direct spending or revenues.

Section 4 of the Unfunded Mandates Reform Act excludes from the application of that act any legislative provisions that are necessary for the ratification or implementation of international treaty obligations. H.R. 4591 would implement the following treaties: POPs Convention, PIC Convention, and POPs Protocol to LRTAP. CBO has determined that because this bill would implement three environmental treaties, it falls within that exclusion. CBO has thus not reviewed the bill for intergovernmental or private-sector mandates.

The CBO staff contacts for this estimate are Susanne S. Mehlman and Leigh Angres. This estimate was approved by Peter H. Fontaine, Deputy Assistant Director for Budget Analysis.

FEDERAL MANDATES STATEMENT

The Committee adopts as its own the estimate of Federal mandates prepared by the Director of the Congressional Budget Office pursuant to section 423 of the Unfunded Mandates Reform Act.

ADVISORY COMMITTEE STATEMENT

No advisory committees within the meaning of section 5(b) of the Federal Advisory Committee Act were created by this legislation.

CONSTITUTIONAL AUTHORITY STATEMENT

Pursuant to clause 3(d)(1) of rule XIII of the Rules of the House of Representatives, the Committee finds that the Constitutional authority for this legislation is provided in Article I, section 8, clause 3, which grants Congress the power to regulate commerce with foreign nations, among the several States, and with the Indian tribes.

APPLICABILITY TO LEGISLATIVE BRANCH

The Committee finds that the legislation does not relate to the terms and conditions of employment or access to public services or accommodations within the meaning of section 102(b)(3) of the Congressional Accountability Act.

SECTION-BY-SECTION ANALYSIS OF THE LEGISLATION

Section 1. Short title

Section 1 establishes the short title of the legislation as the `Stockholm and Rotterdam Toxics Treaty Act of 2006.'

Section 2. Implementation of international agreements

Section 2 amends the Toxic Substances Control Act by adding a new Title V, Implementation of International Agreements in TSCA.

Section 501. Definitions

New Section 501 containing definitions for newly introduced terms for Title V under TSCA.

Section 502. Implementation of POPS Convention and LRTAP POPS Protocol

New Section 502 prohibits the manufacture, process, distribution in commerce for export, use, or disposal of defined POPs (aldrin, chlordane, dichlorodiphenyltrichloroethane (DDT), dieldrin, endrin, heptachlor, hexachlorobenzene, mirex, and toxaphene) or LRTAP POPs (aldrin, chlordane, chlordecone, dichlorodiphenyltrichloroethane (DDT), dieldrin, endrin, hexachlorocyclohexane, heptachlor, hexachlorobenzene, hexabromobiphenyl, mirex, and toxaphene) chemical substance or mixtures.

New section 502(c) addresses PCBs, also a defined POPs and LRTAP POPs chemical substance. H.R. 4591 authorizes the Administrator of EPA to issue or amend rules under TSCA section 6(e), the current regulatory regime for PCBs, or other applicable law, for the purpose of complying with PCB provisions of the POPs Convention or LRTAP POPs Protocol.

Section 503. Notice, information, rulemaking, and exemptions

New Section 503 sets up a mandatory notice and comment procedure triggered by the formal actions of the international body (POPs Review Committee or Executive Body under LRTAP) regarding a new chemical substance or mixture that has been proposed to be added, as outlined in the respective international agreement. Each notice and comment procedure corresponds with various, established stages in the international process, (first round is triggered after screening criteria is met or risk profile submitted, second after further consideration of chemical substance or mixture is warranted, and third after a conference recommendation concerning a listing or completion of a technical review).

New Section 503 requires that for each required round of notice and public comment, the Administrator has 60 days to publish a notice and sets out various information pieces to be included in the notice as well as the types of information to be requested.

New Section 503(d) also grants to the Administrator discretionary information gathering authority relating to any of the newly proposed POPs or LRTAP POPs chemical substances or mixtures subject to the notice and comment provisions, including for collection of information on annual quantities of the proposed chemical produced, the uses of such chemical, and the approximate releases into the environment. Section 503(d)(3), however, requires updates of information if the Administrator determines that an update of previously submitted information is necessary.

Upon a vote of the international body to add a new chemical substance or mixture to the list of chemical substances or mixtures that are to be banned or severely restricted under either the POPs Convention or LRTAP POPs Protocol, new Section 503(e) establishes a domestic rulemaking framework that is intended to allow the Administrator to issue regulations to bring the United States into compliance with its obligations under these agreements. The Administrator may issue rules to protect human health and the environment in a manner that achieves a reasonable balance of social, environmental, and economic costs and benefits, only to the extent necessary to meet the obligations of the U.S. under the Conventions. The Committee intends to set the legal authority of `protecting human health and the environment,' but choosing means of such protection that reasonably balance costs and benefits is reserved to the Administrator. The Administrator should make every effort under this standard to ensure that the protection of human health and the environment is satisfied when attempting to balance social, environmental, and economic costs and benefits for purposes of meeting its obligations under the Conventions. The language is clear that the Administrator can use both qualitative and quantitative considerations in making evaluations. The standard asks the Administrator to choose a manner of protecting human health and the environment that `achieves a reasonable balance of social, environmental, and economic costs and benefits.' The Committee believes there is a distinction between the basic goal of the Stockholm Convention--protection of human health and the environment--and the assessment of appropriate means or measures to address this goal, specifically reflected in Annex F of the POPs Convention. This rulemaking standard reflects that distinction.

New Section 503(e) also establishes considerations for the Administrator to use when promulgating rules based on assessing the effects and the impact of exposure to the proposed chemical. The Committee is especially concerned about the application of scientific studies and practices in any rulemaking. The Committee believes that sound and objective scientific studies, regardless of source or origin, must be the basis by which any regulatory determinations are made. The use of sound and objective scientific practices is not new to Federal environmental law, including its application to Section 1412 of the Safe Drinking Water Act and Executive Order 12866, as issued by President Clinton.

New Section 503(e)(4) directs the Administrator to use sound and objective scientific practices in assessing risks and effects, and further directs the Administrator to determine the weight of the scientific evidence concerning such risks based on the best available scientific information, including peer-reviewed studies in the rulemaking record. The term `weight of the evidence' is expressly used in the 1997 Final Report of the Presidential/Congressional Commission on Risk Assessment and Risk Management. The language is based, in part, on the Commissions recommendations. On page 4 of that report the Commission states: `A good risk management decision . . . is based on a careful analysis of the weight of scientific evidence that supports conclusions about a problem's potential risks to human health and the environment.' On page 23 of that report the Commission states: `Making judgments about risk on the basis of scientific information is called `evaluating the weight of the evidence.' . . . It is important that risk assessors respect the objective scientific basis of risk and procedures for making inferences in the absence of adequate data.' On page 38 of that report the Commission states: `Risk assessors and economists are responsible for providing decision-makers with the best technical information available or reasonably attainable, including evaluations of the weight of the evidence that supports different assumptions and conclusions.'

New Section 503(f) lists POPs Convention-based and new Section 503(g) enumerates LRTAP POPs Protocol-based `use specific' or `acceptable purpose' exemptions, as well as other exemptions, for the prohibitions and restrictions identified in new Section 502, including exemptions for unintentional trace contaminants, research, constituent of article in use, and export exemptions. As will be pointed out later in this report, new Section 507 provides that nothing in the legislation shall be construed to mandate that the United States register for an exemption under the POPs Convention.

Of note, regarding the disposal of LRTAP substances, enactment of new Sections 503(g)(1)(H) and 503(g)(1)(I) of H.R. 4591, are able to be met utilizing existing authorities, including, as appropriate, the Resource Conservation and Recovery Act. The Committee wants to make clear that it does not want to create the impression that a new regulatory standard is being created or set for them.

In addition, regarding the prohibitions and exemptions afforded in new Section 503, the Committee is concerned that future ban or restriction of some Persistent Organic Pollutants could become an issue in the United States' ability to combat potential threats to public health. As is stated before, the Committee intends for the EPA Administrator to have maximum flexibility, including the ability under the Administrative Procedure Act to amend any regulation put into place under this statute restricting the use of a POP in the event that the ability to protect U.S. public health is severely threatened by this restriction.

New Section 503(h) creates a harmonization standard for treatment of exemptions for chemical substances or mixtures under the POPs Convention and LRTAP POPs Protocol. Under new Section 503(h), if there is a conflict between a specified exemption under POPs or LRATP POPs, the more stringent provision, as determined by the Administrator, with the concurrence of the Secretary of State, shall apply.

New Section 503(i) requires the Administrator to publish in the Federal Register a decision regarding the POPs Convention's treatment of any new source categories that are not already listed under Section 112(c) of the Clean Air Act.

New Section 503(j) requires the Administrator to publish a notice in the Federal Register within 90 days of developing an action plan under Article 5(a) of the POPs Convention.

New Section 503(k) requires the Administrator, within one year of a final decision to add a new chemical substance or mixture by the parties to the POPs Convention or LRTAP POPs Protocol, to publish a notice in the Federal Register of either: (1) a decision to initiate a rulemaking process regarding a newly listed POPs or LRTAP POPs chemical substance or mixture, (2) a decision not to initiate a rulemaking and the reasons for this decision, or (3) the status of the Administrator's considerations on a rulemaking and its timeframe, if the Administrator has not made a decision to regulate the POPs or LRTAP POPs chemical substance or mixture.

Importantly, the Committee wishes to make clear its position concerning H.R. 4591 and pharmaceuticals. H.R. 4591 is not intended to amend or affect any provision or application of the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 301 et seq.). H.R. 4591 applies only to those chemical substances or mixtures that are: (1) covered by the treaties and (2) within the scope of the Toxic Substances Control Act (15 U.S.C. 2601 et seq.).

Finally, the Committee notes that new Section 503, as well as other provisions of H.R. 4591, contains numerous requirements on the Administrator of the EPA to obtain the `concurrence of the Secretary of State' before taking necessary actions. The Committee views the use of the term `concurrence' merely to ensure that actions by the Administrator under Title V will allow the United States to be in compliance with the POPs Convention, LRTAP POPs Protocol, and the PIC Convention. In no way does the Committee intend the use of the word `concurrence' to confer any type of new legal or other regulatory authority over environmental law, or its enforcement, to the Secretary of State.

Section 504. Amendments and consultation

New Section 504(a) establishes a sense of the Congress that the U.S. shall consent to be bound to further amendments and additional chemical substances or mixtures only after depositing their instrument of ratification and utilizing the opt-in. The State Department and EPA have twice testified before the Subcommittee on Environment and Hazardous Materials that the White House, under the Clinton Administration, worked very hard to have the `opt-in' procedure added to Article 22(b) of the POPs Convention and the present White House wishes to utilize the `opt-in' feature for future chemical substances or mixtures. New Section 504 is meant to reinforce the importance of the `opt-in' process and to alert future White House's of Congress's clear desire at the time of the passage of implementing legislation.

New Section 504(b) also establishes consultation and reporting requirements with both Houses of Congress before the U.S. consents to be bound by any future amendment or additional chemical. Especially because of the potential impact of these treaties on the laws of the United States, new Section 504 is intended to ensure greater transparency by the Executive Branch in future efforts under these international agreements.

Section 505. International cooperation and notice of meetings

New Section 505 establishes that the Administrator and other appropriate Federal agencies, such as State, shall participate and cooperate in any international efforts to develop improved capacity building and technical cooperation in support of these treaties.

Section 506. Effect of requirements

New Section 506 establishes that any provision of TSCA that establishes a requirement to comply with, or is based on a provision of the POPs or PIC Convention or LRTAP POPs Protocol, shall be effective only to the extent that the U.S. has consented to be bound by that provision.

Section 507. Rules of construction

New Section 507 provides that nothing in the legislation shall be construed to mandate that the United States register for an exemption under the POPs Convention.

In addition, new Section 507 states that nothing in this title affects the authority of the Administrator to use TSCA or any Federal environmental law to regulate a chemical substance or mixture.

Section 3. Polychlorinated Biphenyls (PCBs)

Section 3 amends Section 6(e) of TSCA to add a requirement that the Administrator may not issue a rule authorizing activities that were not previously authorized under TSCA Section 6(e) unless the activities are consistent with the activities (exemptions) authorized under new Sections 503(f) and (g). Further, Section 3 closes the gaps in current TSCA Section 6 in order for the U.S. to be in compliance with the POPs Convention for its obligations as they relate to PCBs.

Section 4. Judicial review

Section 4 applies a `substantial evidence' standard of review for regulations issued under new Section 503(e). The application of a `substantial evidence' test for rulemaking under new Section 503(e) is wholly consistent with TSCA's current judicial review provisions for regulations issued under Sections 6(a) of TSCA, the other explicit regulatory authority provided in TSCA. In addition, the Committee does not wish to alter the provisions of existing law beyond what is essential to allow for full implementation of what the POPs, LRTAP POPs, and PIC Conventions requires. Since the other statute that must be amended for full implementation of these international agreements--the Federal Insecticide, Fungicide, and Rodenticide Act--also contains a `substantial evidence' test for judicial review, the Committee does not wish to have conflicting judicial review standards applied to the same domestic implementation legislation.

Section 5. Exports

Section 5 establishes conditions for the export regime of PIC chemical substances or mixtures. It sets up requirements for pre-export notices, timing requirements for first export and subsequent exports, labeling and document requirements, and it also contains a streamlining and consolidation of notices section. Section 5 also establishes an Administrator-determined alternate time frame for exporters to request.

Section 6. Conforming amendments

Section 6 makes five conforming amendments to harmonize its provisions with the existing provisions of TSCA. Section 6(a) amends TSCA Section 1, the Table of Contents to include the new Title V; Section 6(b) conforms TSCA Section 11, Inspections and Subpoenas, to include new Title V; Section 6(c) adds Title V to TSCA Section 15, Prohibited Acts; Section 6(d) applies new Title V to the provisions of TSCA Section 17, Specific Enforcement and Seizure; and Section 6(e) amends TSCA Section 18, Preemption, to have it conform to new Title V.

Regarding the changes to TSCA Section 18 called for in Section 6(e), States can still impose stricter standards for POPs or LRTAP POPs chemical substances or mixtures on top of the Federal standards issued under new Section 503(e) if the State or municipal law is adopted under the authority of the Clean Air Act or any other Federal law, if the State or municipality bans the POPs or LRTAP POPs chemical substance or mixture, or if the State or municipal law is the same as the Federal law. If a State or municipal law does not qualify under these direct exemptions, the State or municipality may petition the Administrator to continue its law. The Committee notes that in the last 30 years the only time EPA denied a petition under TSCA Section 18, EPA took the subject of the individual State's petition and made a national regulation out of it, thus public health protections have never been rejected by EPA under TSCA section 18. Of note, this petition is the only one that EPA has received under that Section.

The Committee notes that because TSCA's wide sweep regulates manufacturing and distribution of chemicals, a procedure has been in place for three decades that ensures State and local laws do not, through difficulties in marketing, distribution, or other factors, unduly burden interstate commerce when a Federal rule or order is in place. In addition, States remain able to impose their own standards and have `blank check' authority over non-POPs, non-LRTAP POPs, or non-TSCA chemical substances or mixtures.

Further, because H.R. 4591 is implementing legislation for the POPs Convention and the LRTAP POPs Protocol, the Savings Clause of Section 6(e) clarifies that this section does not authorize State actions that would place the United States out of compliance with these international environmental accords. This treaty implementation language is intended to ensure that State laws restricting manufacturing and distribution in commerce are in line with the minimum obligations that are required to for the United States to be in full compliance with these treaties. The Committee believes that altering the existing process in TSCA could possibly lead to a patch work set of laws that, according the Department of State, could lead to multiple interpretations of what is less stringent than federal regulations, resulting in states taking actions without notification to the Federal government.

CHANGES IN EXISTING LAW MADE BY THE BILL, AS REPORTED

TOXIC SUBSTANCES CONTROL ACT

TITLE I--CONTROL OF TOXIC SUBSTANCES

SECTION 1. SHORT TITLE AND TABLE OF CONTENTS.

This Act may be cited as the `Toxic Substances Control Act'.

TABLE OF CONTENTS
TITLE I--CONTROL OF TOXIC SUBSTANCES
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TITLE V--IMPLEMENTATION OF INTERNATIONAL AGREEMENTS
Sec. 501. Definitions
Sec. 502. Implementation of POPs Convention and LRTAP POPs Protocol
Sec. 503. Notice, information, rulemaking, and exemptions
Sec. 504. Amendments and consultation
Sec. 505. International cooperation and notice of meetings
Sec. 506. Effect of requirements
Sec. 507. Rules of construction

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SEC. 6. REGULATION OF HAZARDOUS CHEMICAL SUBSTANCES AND MIXTURES.

(a) * * *

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(e) POLYCHLORINATED BIPHENYLS- (1) * * *

(2)(A) * * *

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(3)(A) * * *

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SEC. 11. INSPECTIONS AND SUBPOENAS.

(a) IN GENERAL- For purposes of administering this Act, the Administrator, and any duly designated representative of the Administrator, may inspect any establishment, facility, or other premises in which chemical substances, mixtures, or products subject to [Struck out->][ title IV ][<-Struck out] title IV or title V are manufactured, processed, stored, or held before or after their distribution in commerce and any conveyance being used to transport chemical substances, mixtures, such products, or such articles in connection with distribution in commerce. Such an inspection may only be made upon the presentation of appropriate credentials and of a written notice to the owner, operator, or agent in charge of the premises or conveyance to be inspected. A separate notice shall be given for each such inspection, but a notice shall not be required for each entry made during the period covered by the inspection. Each such inspection shall be commenced and completed with reasonable promptness and shall be conducted at reasonable times, within reasonable limits, and in a reasonable manner.

(b) SCOPE- (1) Except as provided in paragraph (2), an inspection conducted under subsection (a) shall extend to all things within the premises or conveyance inspected (including records, files, papers, processes, controls, and facilities) bearing on whether the requirements of this Act applicable to the chemical substances, mixtures, or products subject to [Struck out->][ title IV ][<-Struck out] title IV or title V within such premises or conveyance have been complied with.

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SEC. 12. EXPORTS.

(a) IN GENERAL- (1) Except as provided in paragraph (2) and [Struck out->][ subsection (b), this Act (other than section 8) ][<-Struck out] subsections (b) and (c), this Act (other than section 8 and title V) shall not apply to any chemical substance, mixture, or to an article containing a chemical substance or mixture, if--

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