Notice of Proposed Rulemaking, BPA Warnings, Title 27, Proposed Repeal of Sections 25607.30 and 25607.31

NOTICE IS HEREBY GIVEN that the Office of Environmental Health Hazard Assessment (OEHHA) proposes to repeal Sections 25607.30 and 25607.31 from Title 27 of the California Code of Regulations.^[1]  Subsequent to the May 11, 2015 addition of bisphenol A (BPA) to the Proposition 65 list of chemicals,^[2] OEHHA proposed an emergency rulemaking to amend Article 6 of Title 27, California Code of Regs, section 25603.3.  The emergency rulemaking temporarily added provisions related to the responsibility to provide warnings for exposures to BPA from canned and bottled foods and beverages, and added safe harbor warning methods and content that have been deemed “clear and reasonable” by OEHHA for these types of exposures.  These provisions were added to Section 25603.3 as subsections (f) and (g) in April 2016.  OEHHA additionally included these emergency provisions as Sections 25607.30 and 25607.31 in a separate regulatory action to repeal and reenact Article 6 that was adopted in August 2016.  OEHHA then completed a regular (non-emergency) rulemaking that placed updated BPA warning provisions into Section 25603.3 effective January 1, 2017.  The final regulatory text of Section 25603.3 includes operative and sunset provisions that vary from comparable provisions in Sections 25607.30 and 25607.31.  OEHHA proposes to repeal Sections 25607.30 and 25607.31 to ensure consistency with the provisions of Section 25603.3, subsections (f) and (g) that reflect OEHHA’s intent concerning the BPA warning responsibility, methods and content provisions and an inoperative date of December 30, 2017.  This rulemaking will repeal Sections 25607.30 and 25607.31 but not Section 25603.3, subsections (f) and (g), related to warnings for BPA exposures from canned and bottled foods and beverages.

PUBLIC PROCEEDINGS

Any written comments concerning this proposed regulatory action, regardless of the form or method of transmission, must be received by OEHHA by 5:00 p.m. on April 3, 2017, the designated close of the written comment period.  All comments will be posted on the OEHHA website at the close of the public comment period.

The public is encouraged to submit written information via e-mail, rather than in paper form.  Send e-mail comments to P65Public.Comments@oehha.ca.gov.  Please include “Article 6 Repeal BPA Warnings” in the subject line.  Hard-copy comments may be mailed, faxed, or delivered in person to the appropriate address below.

          Monet Vela

Office of Environmental Health Hazard Assessment

          P. O. Box 4010

          Sacramento, California 95812-4010

          Telephone: 916-323-2517

          E-mail: P65Public.Comments@oehha.ca.gov

Please be aware that OEHHA is subject to the California Public Records Act and other laws that require the release of certain information upon request.  If you provide comments, please be aware that your name, address and e-mail may be available to third parties.

A public hearing on this proposed regulatory amendment will be scheduled on request. To request a hearing, send an e-mail to Monet Vela at monet.vela@oehha.ca.gov or to the address listed above by no later than March 20, 2017, which is at least 15 days before the close of the comment period.  OEHHA will mail a notice of the hearing to the requester and interested parties on the Proposition 65 mailing list for regulatory public hearings.  The notice will also be posted on the OEHHA web site at least ten days before the public hearing date.  The notice will provide the date, time, and location of the hearing. 

If a hearing is scheduled and you have special accommodation or language needs, please contact Monet Vela at (916) 323-2517 or monet.vela@oehha.ca.gov at least one week in advance of the hearing.  TTY/TDD/Speech-to-Speech users may dial 7-1-1 for the California Relay Service. 

CONTACT

Please direct inquiries concerning the proposed regulatory action described in this notice to Monet Vela at (916) 323-2517, or by e-mail to monet.vela@oehha.ca.gov.  Mario Fernandez is a back‑up contact person for inquiries concerning processing of this action and is available at (916) 323‑2635 or mario.fernandez@oehha.ca.gov.

AUTHORITY

Health and Safety Code section 25249.12 and Health and Safety Code section 25249.8(a).

REFERENCE

Health and Safety Code sections 25249.5, 25249.6, 25249.8(a), 25249.10, 25249.11 and 25249.12

INFORMATIVE DIGEST/POLICY STATEMENT OVERVIEW

BACKGROUND

OEHHA is the state entity responsible for the implementation of Proposition 65.^[3]  OEHHA has the authority to adopt and amend regulations to make specific and further the purposes of Proposition 65.  OEHHA maintains a list of chemicals known to cause cancer or reproductive toxicity.  Proposition 65 requires businesses to provide a warning when they knowingly and intentionally cause an exposure to a listed chemical, and prohibits the discharge of listed chemicals into sources of drinking water.  Article 6 contains provisions addressing the responsibility to provide warnings, and “safe harbor” warning methods and content that OEHHA has determined to be “clear and reasonable” under the Act.

The BPA safe harbor warnings were proposed to further the purposes of the Act by providing interim guidance on the methods for providing warnings and a standard warning message for BPA exposures from canned and bottled foods and beverages that can be posted at the retail point of sale.  OEHHA has completed emergency and regular rulemakings for BPA warning provisions regarding the responsibility to provide warnings and safe harbor methods and content.  This rulemaking will not add new provisions to Article 6, but rather will repeal outdated Sections 25607.30 and 25607.31 that are in conflict with the operative and sunset provisions of subsections (f) and (g) of Section 25603.3. Subsections (f) and (g) of 25603.3 are currently effective and accurately reflect OEHHA’s intent concerning the BPA warning responsibility, methods and content provisions, and the inoperative date of December 30, 2017. 

SPECIFIC BENEFITS OF THE PROPOSED REGULATIONS

The proposed regulatory action will facilitate businesses’ compliance with the Act by removing the internal conflict within the regulations concerning the BPA warning provisions. 

NO INCONSISTENCY OR INCOMPATIBILITY WITH EXISTING REGULATIONS

OEHHA has conducted an evaluation and has determined that Article 6 is the only regulation concerning Proposition 65 warnings.  Therefore, the proposed regulatory action is neither inconsistent nor incompatible with any other existing state regulations.  The regulatory action does not change the existing mandatory requirements on businesses subject to Proposition 65, state or local agencies and does not address compliance with any other law or regulation.

LOCAL MANDATE/FISCAL IMPACT

Because Proposition 65 by its terms^[4] does not apply to local agencies or school districts, OEHHA has determined the proposed regulatory action would not impose a mandate on local agencies or school districts. There are also no costs to any local agency or school district requiring reimbursement under Part 7 (commencing with Section 17500) of Division 4 of the Government Code.  OEHHA has also determined that no nondiscretionary costs or savings to local agencies or school districts will result from the proposed regulatory action, nor will there be any costs or savings to the state because of the proposed regulatory action. There are also no costs or savings in federal funding to the state.

EFFECT ON HOUSING COSTS

OEHHA has initially determined that the proposed regulatory action will have no effect on housing costs because it does not impose any new mandatory requirements on any business.

SIGNIFICANT STATEWIDE ADVERSE ECONOMIC IMPACT DIRECTLY AFFECTING BUSINESS, INCLUDING ABILITY TO COMPETE

The proposed regulatory action provides compliance assistance to businesses subject to the Act by clarifying an existing regulation and does not impose any mandatory requirements on those businesses. OEHHA has therefore made an initial determination that the adoption of the regulation will not have a significant statewide adverse economic impact directly affecting businesses, including the ability of California businesses to compete with businesses in other states. 

RESULTS OF ECONOMIC IMPACT ANALYSIS (Gov. Code section 11346.3(b))

Creation or Elimination of Jobs within the State of California

This regulatory action will not impact the creation or elimination of jobs within the State of California.  The repeal of Sections 25607.30 and 25607.31 will remove regulations that are now inconsistent with the recently adopted regulations in Section 25603.3, subsections (f) and (g).

Creation of New Businesses or Elimination of Existing Businesses within the State of California

This regulatory action will not impact the creation of new businesses or the elimination of existing businesses within the State of California.  The repeal will simply ensure consistency with the provisions of Section 25603.3, subsections (f) and (g).

The Expansion of Businesses Currently Doing Business within the State

OEHHA does not anticipate any major impact on the expansion of businesses currently doing business within the state because the proposed regulation will not change whether businesses must provide BPA warnings.  The regulatory action simply clarifies existing procedures relating to BPA warnings for canned and bottled foods and beverages.

Benefits of the Proposed Regulation

Repealing Sections 25607.30 and 25607.31 would benefit the public by reducing confusion that could result from inconsistent regulatory provisions concerning the responsibility to provide warnings for certain exposures to BPA.  Affected businesses would benefit because the repeal of the now-unnecessary sections would increase the ability to understand and correctly use the safe harbor provisions in Article 6. 

CONSIDERATION OF ALTERNATIVES

OEHHA must determine that no reasonable alternative it considered or that has otherwise been identified and brought to its attention would be more effective in carrying out the purpose for which the action is proposed, would be as effective and less burdensome to affected private persons than the proposed action, or would be more cost-effective to affected private persons and equally effective in implementing the statutory policy or other provision of law.”

EFFECT ON SMALL BUSINESSES

The proposed regulatory action will not adversely impact very small businesses because Proposition 65 is limited by its terms to businesses with 10 or more employees (Health and Safety Code Sections 25249.5, 25249.6, and 25249.11(b)). 

COST IMPACTS ON REPRESENTATIVE PERSON OR BUSINESS

OEHHA is not aware of any cost impacts that a representative private person or business would necessarily incur in reasonable compliance with the proposed action. The proposed repeal does not impose any new requirements upon private persons or business because it removes regulatory provisions that are inconsistent with similar, more recently adopted regulations.

AVAILABILITY OF STATEMENT OF REASONS AND TEXT OF PROPOSED REGULATIONS

OEHHA has prepared and has available for public review an Initial Statement of Reasons for the proposed regulation, all the information upon which the regulation is based, and the text of the proposed regulation.  These documents are available on OEHHA’s web site at www.oehha.ca.gov.

AVAILABILITY OF CHANGED OR MODIFIED TEXT

The full text of any proposed regulation that is changed or modified from the express terms of this proposed action will be made available at least 15 days prior to the date on which OEHHA adopts the resulting regulation.  Notice of the comment period on the revised proposed regulation and the full text will be mailed to individuals who testified or submitted oral or written comments at the public hearing, whose comments were received by OEHHA during the public comment period, and anyone who requests notification from OEHHA of the availability of such change.  Copies of the notice and the changed regulation will also be available on the OEHHA Web site at www.oehha.ca.gov.

AVAILABILITY OF THE FINAL STATEMENT OF REASONS

A copy of the Final Statement of Reasons may be obtained, when it becomes available, from Monet Vela at the e-mail or telephone number indicated above.  The Final Statement of Reasons will also be available on OEHHA’s web site at www.oehha.ca.gov.

OFFICE OF ENVIRONMENTAL

HEALTH HAZARD ASSESSMENT

                                                          Allan Hirsch

                                                          Chief Deputy Director

Dated: February 17, 2017