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Headlines regarding the U.S. Environmental Protection Agency's (EPA) most recent proposed update to the one-time per- and polyfluoroalkyl substances (PFAS) reporting rule under Toxic Substances Control Act (TSCA) Section 8(a)(7) have been dominated by the rule's new exemptions and the significant narrowing of responsibility and burden that industry stakeholders will face if the rule becomes final. But, buried in the preambular text — Unit III.A.2 to be precise — are a few paragraphs that caught our attention: a proposed interpretation that EPA lacks statutory authority to require reporting by those who import PFAS in articles.
EPA now states that the law is "best read as excluding articles and targeting the reporting requirement to manufacturers of the PFAS themselves." EPA rationalizes that Congress "could have said so" if it desired the reporting requirements to extend to those who import articles containing PFAS. In EPA's words: "[w]here Congress omits expansive modifiers, they should not be inferred." It is worth mentioning that the argument itself is not new; EPA received some public comment to this effect on the original 2021 proposed rule. In the 2023 final rule and response to comments document, EPA disagreed and defended its authority, citing the decades-long interpretation that "manufacture of a chemical substance" under TSCA includes import of an article containing the chemical substance.
More than five years of regulatory development activity have transpired since Congress enacted the 2020 National Defense Authorization Act (NDAA) that added TSCA Section 8(a)(7) and directed EPA to undertake rulemaking to collect more information on PFAS. EPA's estimated burdens with respect to articles importers in the 2021 proposed rule drew significant criticism, prompting EPA to convene a Small Business Advocacy Review (SBAR) panel in 2022, update its economic analysis to inform the 2023 final rule, and develop numerous guidance materials to assist articles importers with compliance responsibilities. Stakeholders were correct to note that EPA has excluded articles from various other regulatory contexts, including chemical data reporting (CDR) under TSCA Section 8(a) and premanufacture notice review of new chemicals. When EPA Administrator Zeldin announced in 2025 that EPA would implement the TSCA PFAS reporting requirements "smartly" and "without overburdening small businesses and article importers," many in the TSCA community expected some regulatory relief. The proposed rule, however, takes it even one step further.
As indicated in Bergeson & Campbell, P.C.'s recent analysis of the proposed rule, we found EPA's new position — that it previously exceeded its own statutory authority in requiring articles importers to report under TSCA — to be quite notable. And while EPA requested feedback on the argument, it also concurrently proposed to exempt articles importers, citing TSCA Section 8(a)(5) and arguing that such entities are less likely to have responsive information, effectively doubling down on its effort to exclude articles importers from scope. We remind readers that in the 2023 final rule, EPA estimated that only 10 percent of small articles importers would have information to report on PFAS in imported articles; the remaining 90 percent would undergo due diligence and compliance burdens only to determine they lack responsive information. Whether the data that might be reported justify the (likely futile) effort of the 90 percent is a legitimate area of disagreement and one that this Administration has decided is not worth the burden on small businesses.
At a minimum, EPA's posture here suggests a particularly firm resolve in this Administration to keep articles importers out of the final PFAS reporting rule. Future would-be challengers to this rule will have to convince a court both that (1) EPA has statutory authority to require reporting from articles importers, and (2) EPA's application of discretion under TSCA Section 8(a)(5) to exempt articles importers was inappropriate. Considering this, we would not expect EPA to collect information on how PFAS might be entering the United States through imported articles any time soon. Similarly, given the data-driven nature of rulemaking, any future regulatory efforts on PFAS under TSCA are not likely to focus on exposures from imported articles either.
Beyond PFAS, there are also some potentially broader implications regarding EPA's new statements on its authority over articles importers. Although the discussion in the proposed rule is framed narrowly (i.e., only in the context of the specific language in TSCA Section 8(a)(7)), the underlying rationale used by EPA could be applied to other instances in TSCA that refer to "manufacture of a chemical substance" without a corresponding reference to "articles." Applying EPA's new reasoning, for example, one could argue that Congress never intended EPA's existing chemical risk evaluations to consider import of articles containing a chemical as a "condition of use." Congress could have mentioned "articles" — but did not — when it defined "conditions of use" in the 2016 amendments to govern the scope of existing chemical reviews. Congress also did not include expansive modifiers like "contain" or "including imported articles" when it charged EPA to regulate "manufacture...of a chemical substance" that presents an unreasonable risk under TSCA Section 6(a). Although there are specific mentions of "article" in TSCA Section 3 definitions of "process" and "distribute in commerce," and in specific other aspects of TSCA Sections 5 and 6, the word "article" does not appear in TSCA's definition of "manufacture" — the statutory term encompassing import of chemical substances into the United States.
Of course, such a position would not be without controversy. Stakeholders supporting EPA's authority over articles importers made a number of arguments in public comments on the 2021 proposed PFAS reporting rule. For example, the statutory definition of "chemical substance" in Section 3 does not generally exclude articles, and the specific exclusion for some articles in that definition (e.g., firearms) could imply that Congress contemplated the term "chemical substance" otherwise to be inclusive of chemicals contained in articles. Likewise, other provisions in the law, e.g., TSCA Sections 5(a)(5) and 6(a)(3), give EPA explicit authority to protect against risk and require warnings (respectively) for chemicals in articles. TSCA Section 6(c) includes some specific limitations on regulation of chemicals in articles (e.g., replacement parts), which arguably would not be necessary if Congress did not intend to convey statutory authority to address chemicals in articles in different ways in different sections of the statute.
Time will tell whether EPA "sticks" with the interpretation it has taken in the proposed PFAS reporting rule and how closely EPA will hew to the statutory language in other sections. In any case, the rationale EPA has offered on the PFAS reporting rule certainly opens the door to a closer read of TSCA statutory authorities over articles. Any changes in EPA's statutory interpretations are worth keeping an eye on and could have profound implications regarding the scope and reach of future TSCA actions.
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