On Friday, December 14th, the United States Environmental Protection Agency (EPA) announced that it will withdraw its recently-published final rule requiring the reporting of unpublished health and safety studies for cadmium and cadmium compounds used in consumer products, such as cordless power tools or electronic devices with an on-board cadmium-containing battery.

The final rule was issued pursuant to Section 8(d) of the Toxic Substances Control Act (TSCA) and appeared in the December 3, 2012 Federal Register (77 Fed. Reg. 71,561). The Agency is withdrawing the rule based on certain comments and questions it received raising concerns about the scope and interpretation of the immediate final rule. As noted in Arnold & Porter’s recent advisory, the final rule had a broad scope and would have affected many companies within industry sectors not typically subject to TSCA section 8(d) reporting requirements, such as companies that import children’s products with low levels of cadmium or consumer electronics with on-board components likely containing cadmium compounds.

Citing “significant confusion and uncertainty about the final rule in certain industrial sectors,” EPA has issued a pre-publication copy of a Federal Register notice that will announce there is “good cause” to withdraw the rule.  It is expected that the Agency will publish the official notice no later than January 2, 2013. EPA’s path forward is unclear. The Agency is expected to review the  questions and comments it has received, but did not specifically commit to issuing an updated Section 8(d) rule. EPA plans to continue to collaborate with the Consumer Product Safety Commission to address safety concerns related to cadmium in consumer products.