Document 2qZqnDXpD7E80wy05OE6wRb4L

I NORTH AMERICA ASBESTOS INFORMATION ASSOCIATION 1745 Jefferson Davis Highway. Crystal Square 4. Suite 509 Arlington, Virginia 22202 (703) 979-1150 July 30, 1981 Memorandum For: Members SUBJECT: EPA Clarification of Asbestos Export Notification Rule In the Federal Register of July 21, 1981, the Environmental Protection Agency published a statement of clarification on the applicability to asbestos of the export notification rule required by section 12(b) of the Toxic Substances Control Act. The statement was issued in response to AIA/NA's efforts this past January to obtain a more precise delineation of the scope \ of the rule. As originally published in the December 16, 1980'} Federal Register, the rule was not clear in-distinguishing ; between asbestos "mixtures," which are subject to the rule, and j asbestos "products," which are not. According to the statement, EPA considers three categories of asbestos exports to be reportable: 1) Bulk shipments of raw fiber, 2) An asbestos-containing mixture which assumes the shape of its container, for example, asbestos-containing paints, and 3) An asbestos-containing mixture which is formed to a shape that must be fundamentally changed before use. Given as examples of types of produrfe not subject to_______ the rule are asbestos-cement pipe. brake linings, sheet gasketing, untmistieci asbestos textiles, floor tiling, and rolls of asbestos paper. For your convenience, a copy of the statement of clarification is attached along with a copy of the original rule. If you have any ques tions please feel free to call me. Nicholas J. Hluc^jrj , Esq. Ass't for Governme^ Affairs NJH/dlc Enclosures CAP CO JEN 0013059 Tuesday December 16, 1980 --______________ Part IV 1 f Environmental Protection Agency Chemical Imports and Exports; Notification of Export- CAP CO JEN 0013060 82844 V Federal Register / Vol. 45. No. 243 / Tuesday, December 16,1980 / Rules and Regulations I; e I ' ENVIRONMENTAL PROTECTION October 2,1979 (44 FR 56858). Ths . Rep. No. 1341, S4th Cong. 2nd Sets. 82 (107e)t AGENCY comment period for this proposal ended .. reprintedin Legislative History of the Toxic December 31,1979. -------- ... Substances Control Act at 4S9 (1978)). 40 CFR Part 707 tOPIS 12C001A; TSH-FRL185251 .Thisruleapplies-to PCBs. CFCs. 2,3,7,8-TCDD (tetrachlorodibenzo-pdioxin), asbestos--the chemicals Scope ofthe Rule In foe proposed rule. EPA took ths Chemical. Notification^ presently subject to section 8 regulations--and any future substances or mixtures subject to appropriate position that section 12(b) is primarily intended to alert and inform foreign governments, in a general manner, of agency: Environmental Protection Agency (EPA). action: Final role. summary: This rule outlines procedures for exporters to submit notifications to EPA under section 12(b) of the Toxic Substances Control Act (TSCA)', IS U.S.C. 2611(b). Section 12(b) requires these notices whenever certain -* regulatory actions have been taken under TSCA with respect to a chemical substance or mixture. The nile alsooutlines the procedures EPA will use in notifying foreign governments of such actions as required by section 12(b). - section 4,5,6, or 7 actions. hazards that may be associated with a f Under this rule exporters are required ' chemical substance or mixture. The ' ;to submit, for each affected chemical- intended focus of the notice to foreign .'substance or mixture, a single notice governments Is the chemical substance - each year for each country to which the or mixture and what EPA has done or chemical substance or mixture is exported. Notice must be submitted to ' .EPA by letter and include the following: . The name and address of the exporter,. the name of the chemical substance or v mixture, the date of export or export the country of import section of TSCA under which intended. and the ` EPA baa -_;' found out about It, rather than specific . export shipments from the United States. Therefore, EPA-propoaedftat'exporters only submit a single notice .each calendar yea: for.each countryto which a regulated chemical substance-or mixture is exported-Foreign taken action. The Agency,'in turn, will .. governments would then be notified of advise the government-of the importing - the fact of export and foe nature of the . country about the U.S. regulatory action' ' TSCA action. EFFECTIVE DATE: January IS, 1981. concerning the substance or mixture. ' Industry comments favored this . FOR FURTHER INFORMATION CONTACT: John B. Ritch. jr,, Director, Industry n. Issues and Public Comments approach. However, a public interestgroup and a foreign government Assistance Office, Office of Pesticides EPA received twelve comments from disagreed Their comments favored\ and Toxic Substances (TS-799), exporters, industry trade organizations, notice of each shipment .-I Environmental Protection Agency, 401M public Interest groups, and a foreign - This rule adheres to foe approach! Street SW., Washington, D.C. 20460, toll government Although only one foreign proposed. Instead of foe "each , free: (600-424-9065), Washington, D.C: government formally commented on the' shipment" approach. As noted in the (554-1404). proposed rule, the United Nations proposed rule, foe language of section f- SUPPLEMENTARY INFORMATION: L Background Section 12(b) of TSCA requires that - any person who exports or intends to Environment Programme Governing Council decisions of 1977,1978, and 1980 reflect other government's desires for full disclosure of Information to importing nations. 12(b) simply indicates, that EPAls to notify foe foreign government-of domestic actions taken under.TSCA, anddoes not say to do so in conjunction with, each shipment. EPA believes that export a chemical substance or mixture Rulemaking Authority the purpose of foe notice is to inform for which submission of data is required under section 4 or S(b). for which an order has been issued under section 5, for which a rule has been proposed or promulgated under section 5 or 6, or with respect to which an action is pending, or relief has been granted under section 5 or 7, must so notify the Administrator. Upon receipt of such notification, section 12(b) requires EPA to furnish the government of the importing country with: ' 1. Notice of the availability of data received pursuant to action under section 4 or 5(b). or 2. Notice of such rule, order, action, or Two industry comments stated that EPA does not have specific rulemakingauthority under section 12(b) of TSCA. It is clear that EPA does not have substantive rulemaking authorityunder section 12(b) of TSCA. Howevetrfofeserules are not substantive rules. Rather they are procedural and interpretative rules. While Congress did not grant EPA genera! substantive rulemaking authority under TSCA, Congress did intend that EPA be able to issue such procedural and interpretative rules in order to implement the statute. This Is made clear in the Report of the House reSef under section 5,8, or 7. . Committee on Interstate and Foreign EPA issued interim guidance . ~ Commerce reporting H.R. 14032 in which published in the Federal Register of June the following comments were made: foreign governments of U.S. findings rather than to provide the basis for stopping individual shipments. The focus of foe notice should therefore be to provide information to foe foreign governments so that they may impose their own regulatory controls if appropriate. In addition. seqtiotrT2(b)-^v appears to limit foe Information that can^ be required from exporters. It is doubtful that foe Agency can require from exporters foe foil scope of information necessary to make each-shipment notices useful. It Is also questionable how useful such notices would be to foe foreign government without similar export notices and data from other countries. However, EPA will provide. If .2.1978 (43 FR 24818) for submitting The bill contains specific grants of requested any information it possesses notice cf export for chlorofiuorocarbons (CFCs) and polychlorinated biphenyls (PCBs). the two chemicals regulated at that time under section 6. EPA proposed ,, Jfets rule to implement section lz(bj in general) and to immediately supersede foe interim guidance for CFCs and PCBs, published in the Federal Register of substantive rulemaking authority to the on individual shipments, including Administrator and the Committee does not exporter Identity, unless such intend that foe Administrator have any substantive rulemaking authority which is not specifically granted. A general rulemaking authority is not needed to authorize the issue of procedural, interpretative, or similar information is claimed confidential. If foe exporter's name is not confidential, foe foreign government could then contact foe exporter to obtain more administrative rules, consequently, such S specific information on a given provision is not included in the bill. (H.R. _ shipment | I i 1 CAP CO JEN 0013061 V '5 Federal Register / Vol. 45. No. 243 / Tuesday, December'16. I960 / Rules and Regulations 82045 latent To Export inconsistent with what section 12(b) Such a cutoff is not included in the The proposed rule'defined 'intent" to export as having a definite contractualobligation to export An industry comment asserted that this definition is not adequate for exports to foreign distribution centers owned by the exporting company. In such cases, there is no specific contractual obligation to export as there would be between two separate business entities. They suggest that, in such cases, the exporter file a single notice at the beginning of each calendar year. The notice would be based on the history of past shipments or their own business planning and could cover all projected exports of affected substances to all affected countries. Ef>A believes that the definition of intent can be clarified to cover the case of exports to a company's foreign" * distribution center. Section 707.65(a)(3) (proposed 707.3(a)(3)) has been ` changed to read "a definite contractual obligation to export or an equivalent intra-company agreement". Anon* specific intention to export based on past business practices or a general expectation of continued demand for a substance is not an acceptable trigger for a notice. EPA is attempting to ensure that notices to foreign governments are meaningful by reflecting an actual export to that country, rather than Only a potential export that may never occur. Timing ofNotice Submittal provides and would potentially, rule. EPA does not believe that such an needlessly disrupt normal.business exemption would be wise given that ' transactions and trade patterns. . some substances may retain their toxic . The Agency shares the commenter's or hazardous properties below a IX desire to receive timely export notices, level in a mixture. However, exporters and thus notify foreign governments as need not test their export products for early as possible. The final language of impurities in order to comply with these i 707.65 (proposed 5 7073) has been regulations. The requirement for notice changed to emphasize reporting intent to covers only substances known to be in export Exporters mustsubmit notices the exported material. no later than seven days after accepting' a definite contractual obligation to* Exportsfor Uses Not Regulated export or equivalent intracompany- In the proposal, EPA took the position agreement In cases where actual export that the export notification requirement takes place less than seven days after for a chemical Is not contingent on . ' the intent to export is formed, the notice whether the intended use of the must be submitted to EPA no later than chemical has been regulated. This final the same day as export rule adopts the proposed approach. This change will allow more timely N0tice-mu3t.be given-to EPA even notice to the importing country. The though the chemical iabeing exported requirement should not be btirdensome for a uss^orin.a manner, that is not' to exporters since the nofice can be .. regulated domestically under the ' ' prepared simultaneously with the relevant section 5,6,-or 7 action.rule, or Bureau of Census Shipper's Export order. An exporter of CFCs stated that if Declaration Form which must be filed in use of a chemical is allowed in domestic connection with the shipment commerce, then, "industry should not be Quantities Exported burdened with unreasonable reporting requirements for their exporting Another Issue raised hi the proposed business." They cite as support the rule was whether notices should include Trade Agreements Act of 1979 (Title l\ , some estimate of the quantity of a Standards Agreement of PL 96-39) chemical being exported. The proposed which states thatno Federal agency rule did not require reporting of quantity may engage in any standards-related data. Therefore, no quantity data would activity that creates unnecessary be included in the notice to a foreign obstacles to foreign commerce of the government A foreign government United States. commented that quantity data should be EPA does not agree that the reporting The proposed rule allowed for a included in the notice. Apparently such requirements of section 12(b) represent notice of either actual export or intent information has been usefiil to them in an obstacle to foreign commerce. to export to be submitted no later than reaching agreement with U.S. exporters Further, these regulations are not a seven days after export. A public concerning PCB-containing organic . standards-related activity. The reporting interest group disagreed with thip pigments. requirements themselves contain no approach. They objected to allowing This rule does not require such restrictions on exports and do not export reporting after the fact and said estimates of quantity. The language of prevent or delay the export process. that intent to export obviously precedes section 12(b) does not appear to give Also, as discussed earlier, EPA does not actual export. They argued that EPA authority to require quantity believe that these regulations place an notification will be more valuable to the information. In addition, under this rule, undue burden on exporters. This opinion receiving country if it is received prior to the foreign government will only receive was also shared by most of the other export and asserted that the proposed notice of the first annual export of any commenters. approach would not yield such early given substance or mixture. The As for the intended-use issue itself, notification to the receiving country. inclusion of quantity data for just the . the Agency is responsible for informing EPA believes that this comment has first shipment (from the U.S. only) would the importing country about actions merit and the rule will now generally be of questionable value in their overall taken or data gathered with respect to a require notification early in the export assessment of the substance or in regulated chemical. This notice will process. However, the Agency has not making regulatory decisions concerning include information about any exempt excluded reporting of actual domestic manufacture and continued uses of such substance or mixture within exportation. Instances could arise where importation from other countries. the U.S. However, it is up to the foreign it would be impossible for exporters to comply, in a practical sense, with an Export ofMixtures government to determine whit action, if any. it will take with respect to the exclusive requirement for advance An industry comment asks EPA to substance or mixture, including notice. For example, exporters may establish a minimum cutoff point for the exempted uses. Moreover, in many i receive orders for a substance with such percentage of a regulated substance in a' cases the exporter will not know the a short turnaround time that shipment mixture that would require notice to intended use of the substance or would need to be held up in order to EPA. The suggestion is that if a mixture mixture. To require the exporter to make submit notice of intent to export. contains less than 1 percent of a. such a use determination would be- Therefore, to require only advance regulated substance, the export of that unnecessarily burdensoyie, and in some notice of shipment would be mixture need not be reported. cases. Impossible. CAP CO JEN 0013062 82846 Federal Register / Vol. 45, No. 243 / Tuesday, December 16, 1980 / Rules and Regulations Country to Which Exported the general difficulty in determining that The Agency does not believe that this ' An exporter commented that when a chemical i> (hipped to a foreign distribution center, the exporter may have limited or no knowledge of the final destination of the substance. The exporter requested that EPA clarify whether the country of initial destination is considered to be the country "to which exported." The Agency's primary concern is providing information to the government of the country In which the regulated substance will be used. However, the Agency realizes that there may be limits to an exporter's knowledge of die ultimate destination of the substance. EPA believes that the term "country to . which exported" means the same as tire Bureau of the Census definition of "country of destination" used for its export statistics requirements (US. Bureau of the Census. Schedule B, "Statistical Classification of Domestic and Foreign Commodities Exported from the United States"). The country of destination is defined as the country ' where the goods are to be consumed, further processed, or manufactured, as known to the shipperat the time of exportation. If the exporter does not know the country of ultimate destination, the shipment is credited to the last country to which the exporter knows that the merchandise will be shipped. , specific chemical substance or mixture Is present is the article. In the future, if export notices are required for articles containing regulated substances, the section 12(b) regulations will be amended. Such an amendment will be made in the context of specific section 5, 6, or 7 rulemakings or actions. In such a context, the Agency will entertain public comments and be able to clarify which articles are of concern. This comment also raises the Issue of export notices about regulated substances or mixtures for which an export exemption has been granted. Under section 5 and 6 regulations, manufacture, processing, and- _ distribution, including for export (aa provided in section 12(a)(2) of TSCA) of a chemical may be prohibited unless a . specific exemption has been granted. The PCB Manufacturing, Processing, ' Distribution in Commercc/and Use Prohibitions regulations (40 CFR 761) contain such a provision. After May 1, 1380 no person may manufacture, process, or distribute PCBs, including for export, without a specific exemption from these regulations. Ifsuch an exemption is granted for PCBs (in articles or otherwise) or for substances : under future section 5 or 6 actions, exporters must submit a section 12(b) notice for any such export The language of S 707.60(b) (proposed f 707.1(b)) of this rule has been modified accordingly. section is an unnecessary or burdensome requirement. Exporters will already know which EPA regulation triggered an export notice. In addition. Inclusion of this information will aid in . the timely processsing of the notice, especially in such cases where a substance is a member of a regulated category, but is not specifically named In the rule, .^ Notices-Prompted by Proposed Rules One chemical company suggested that section 12(b) notices should not be submitted as a result of proposed rules. They want clarification of when, tiler a proposal, reports need to be submitted. Section 12(b) clearly requires notice of export for chemicals proposed to be regulated under sections 5 and 6.- - Ideally, an export notice on a substance' covered by a proposed or Bnal.rulir .would be submitted lmmediate'ly. However, it is unrealistic to expect exporters to obtain copies of suds a proposed rule, understand it, and comply with the section 12(b) requirements In such a timeframe^'': / Therefore, notice of export will be] required only for exports beginning thirty days following Federal Rtgifer publication of the proposal. - J Company Reports Another company wanted to know who specifically is responsible for PCB Items One company objected to including PCB-containing items in the rule. They feel it is inappropriate and goes beyond the statutory authority of section 12(b). Also, they believe it would be a redundant requirement since section 8 PCB regulations already ban manufacture and distribution in Chemicals Accompanying Equipment Two exporters suggested that shipments of regulated chemicals'that accompany articles or equipment in which they ara intended to be used, or which are included in maintenance kits for such articles or equipment should be exempt from section 12(b) reporting. For example, shipments of electronic reporting, i.e-each plant site, company subsidiary, or corporate headquarters. In their opinion, the decision should be left up to the company. The Agency agrees and will accept notices from plant sites, subsidiaries, or corporate headquarters. ' Form of. Notice A company stated that a requirement commerce,, including exports of PCB equipment service kits which contain to file a separate notice for each items. For the purposes of section 12(b), the Agency's authority applies to the cans of CFC aerosol cleaner, or separate chemical shipped to one location is!!, containers of CFC refrigerant packed in overly burdensome. shipments of air-conditioning equipment With regard to the format of the . chemical substance or mixture, and does should not require export notices! notice, EPA has never stated that an not distinguish as to the form of the The Agency disagrees. Both examples individual notice would be required for substance or mixture, e.g, whether it is' involve shipments of regulated . each substance exported to the same in bulk form or contained in an article. - chemicals subject to section 12(b) country. Information on several Therefore, notice of export for "PCB Articles," except PCB equipment, as requirements. Simply because a regulated chemical accompanies a substances going to several countries may be combined into one notice to EPA defined at 40 CFR 781.2(f). is required. As a general policy, EPA will not shipment of articles or equipment does not alter the fact that the regulated as long as the content of that notice meets all the requirements of 707.65 require notice of export for articles chemical perse is being exported. '. and 707.67. Notice by letter will suffice. unless the Agency specifically so requires in the context of individual section 5,6. or 7 rulemakings or actions. Noticej>f export for "PCB Articles" was Therefore, notice of export is required tor such exports. Citing Regulations . specifically required in section 6 PCB - . A company requested that EPA delete The Agency does notbelieve it is . necessary to create aform for such notices. , l;- , ' . ...... Notice to the Foreign Government' ban regulations and in the proposed 707.67 (proposed 707.4(e)) in which . A public interest group urged EPA to section 12(b) rule. an exporter must cite the EPA action reduce the turnaround time for sending a The decision not to routinely'require that triggered their report on the notice to a foreign government from notice of exports for articles is based on.' substance. seven days to three days. This CAP CO JEN 0013063 Federal Register / Vol. 45. No. 243 / Tuesday, December 16. 1980 / Rules and Regulations 82847 commenter also wanted EPA to tend government, such as by protecting a the foreign government even when ' notices directly to EPA'a counterpart confidential chemical identity by information in the notice is confidential rather than the country's embassy in substituting a generic class description. but to prohibit disclosure to other Washington. . .. A confidentiality section has been persons of such confidential EPA plans to achieve as short a notice added to this rule. The new $ 707.75 information. turnaround time as possible, but allows the exporter to assert a Section 12(b) requires exporters of believes that a three-day maximum Is confidentiality claim for any information chemical substances for which unworkable. However, $ 7<37JO contained in the notice. It provides that submission of data is required under (proposed 707.5(a)) has been changed the exporter must assert any claims of section 4 and 5(b) or which have been to reduce this time from seven to five confidentiality at the time of submission subjected to certain regulatory actions working days. Foreign governments may by clearly marking those portions of the under section 5,6 and 7 to notify EPA of designate any official or agency as their notice that are considered confidential the export of those substances. The sole proper recipient of section 12(b) notices. Absent any special designation, EPA will continue to notify the appropriate embassy in Washington. EPA believes this provides ample opportunity for direct notification. In addition to direct' notification, EPA will inform the Department of State. EPA will, of course, keep a current file of appropriate notice recipients. Any information claimed as confidential in the notice will be treated by EPA as confidential and will only be disclosed to the public through the procedures set forth in 40 CFR Part 2. With respect to the notice to die foreign government, the rule provides that EPA will include the specific chemical name of the substance to be exported, as well as the other Possible PrejudicialNotice information set forth in $ 707.70, in each A company stated that EPA should be aware that the notice it sends to a foreign government could be misleading and cause undue alarm. The notice may, they assert, be inappropriate to the other government's assessment of the risk involved. . EPA's notice to foreign governments will be as objective as possible. The notice will summarize EPA's action or notice notwithstanding any claims of confidentiality for the information. This may result in disclosure of some . confidential information to a foreign' government I.e, that a particular chemical substance is being exported to that country. In recognition of this possibility. EPA will tell the foreign government that there is confidential information in the notice and request findings with respect to a substance or mixture. The foreign government's response to the.notice or the applicability of this information to their own risk assessment process is something the Agency cannot foresee or control. that they take appropriate measures to safeguard the information. In addition, even though confidential information may be disclosed to a foreign government as part of the notice set forth in 707.70, the rule provides that EPA will treat any such information as confidential with respect to other EPA Contact persons in accordance with section 14 of An exporter suggested that 707.70(b)(2) (proposed ! 707.5(b)(2)) be clarified to indicate whether the individual to contact for further information is an EPA or foreign official. The final language specifies that the person a foreign government can contact TSCA and EPA's confidentiality regulations in 40 CFR Part 2. Further, EPA expects that in some cases foreign governments will ask EPA for additional information or data beyond that contained in the notice set'forth in 707.70. In responding to those requests for further information will be an EPA for additional information or data, EPA official. Confidentiality will provide the information or data to the foreign governments only if that information can be disclosed under No specific confidentiality provision section 14 and 40 CFR Part 2. was included in the proposal. A ' This approach to the confidentiality of company and a trade association section 12(b) notices is based upon strongly urged EPA to Include such a EPA's interpretation of TSCA. There is . section in the final rule. They assert that an apparent conflict on the face of the purpose of this notice to EPA is to enable EPA to notify the government of the importing country that a chemical substance subject to those actions under TSCA is being exported to that country. In the case of substances subject to data submission requirements under sections 4 or 5(b), EPA is required to notify the foreign government of the availability of the data. In the base of substances , regulated under sections S, 6, or 7, EPA is required to notify the foreign government of the nature of the regulatory action. Upon receipt of the notice, the foreign government can consider its own actions. There is no statutory purpose for Efy to receive notices under section 12(b) from exporters unless-EPA can give - notice to the importing governments.- Therefore, in order to fulfill the purpose of section 12(b) it is necessary to give the foreign government notice even if the notice contains some confidential information. If this provision were interpreted otherwise, EPA would be unable to provide the foreign government with a notice that would have any meaning and that would carry out the purpose of section 12(b). At the same time, to give full effect to the purpose of section 12(b), EPA does not have to disclose the information in an export notice to anyone other than the specific foreign government. The purpose of section 12(b) is served by disclosure to the foreign government - Disclosure to others would not further this purpose and would contradict the purpose of section 14(a) which is to limit unnecessary public disclosure of confidential information. Consequently, it is only necessary to interpret section 12(b) to require disclosure of confidential information to the foreign government not to require further. disclosure. an exporter should be allowed to claim statute betweensection 12(b) and This interpretation of the notices confidential to protect trade section 14(a). Section 14(a) could be requirements of section 12(b) is secret information and the exporter's read as prohibiting all disclosure . supported by a review of the legislative business.and trade investments. They beyond that set forth in section 14. history of section 12(b). The provision also stated that this information should However, this reading would contradict that became section 12(b) appeared in not be put in a public file or released to the mandate of section 12(b). Because both the House and Senate versions of the public in any manner. One company the statute must be interpreted to give TSCA. The language of each was stated that information claimed the fullest possible effect to both section virtually identical. Neither the House confidential should be protected in the 12(b) and section 14(a), EPA interprets bill, nor the committee reports notice provided to the foreign section 12(b) to require notification of accompanying the House and Senate CAP CO JEN 0013064 S2848 Federal Register / Vol. 45, No. 243 / Tuesday. bills, addressed the question of reasonable to conclude that Congress . their own authority to control the entry confidentiality. However, the language intended the limitations of section 14 tc ofgoods Into their countries. The other of the Senate bill (S.3149) as reported apply to tha availability ofdata to the information In the notice specifies that March IS, 1978 le instructive as to how- foreign government, not to the notice. the substance in question has been confidentiality would bear oh the notice EPA would give'to the foreign subjected to a testing requirement and to the'foreign government. Section 12(b) government. describes the availability ofdata or that of the bill reads as follows: This conclusion is further supported the substance has been subjected to a (b) Notice--11) If any person exports or intends to export to a foreign country a by examining the Intent of section 12(b) specified regulatory action under TSCA. as discussed in the legislative history. ,, EPA recognizes that the fact of export chemical substance or mixture/or which the As stated by the Conference Committee of a particular chemical substance to a submission of data is required under section in the language referenced above, the particular country may in tome case* be 4 or S. such person shall notify the Administrator of such exportation or intent to export and the Administrator shell furnish to the government ofsuch country notice of thr availability of the data (subject to section 14) submitted to the Administrator under section 4 or 5 for such substance or mixture. clear intent ofsection 12(b) is to provide a foreign government with notice that a chemical substance which has been subjected to either testing requirements or regulation under certain provisions of TSCA is being exported to that country a commercial secret to the exporter. EPA believes that, while Congress * Intended that this basic information be provided to the government of the country of import. Congress did not ' Intend that this information be disclosed (2) If any person exports or intendsto . from the VS. This notice Is to enable the to others. There is no indication in the. export to a foreign country a chemical - substance or mixture for.which a rule baa. been proposed or promulgated under section 5 or 8, or with respect to which an action la pending, or relief has been granted,'under "1 section 7, such person shall notify the - Administrator ofsuch exportation or intent to export and the Administrator shall famish to foreign government to protect its own legislative history that Congress citizens. If the notice were not sent: intended to treat section 12(b) notices as because some of the information available to the public. Rather the contained in the notice was claimed as ' - language of section 14 would control confidential, the purpose ofsection 12(b) disclosure other than to the foreign ' would not be. served '* government It is clear from the House and Senate' As to the disclosure of additional.. the government of such country notice of such rule, action or relief. .. committee reports that both houses intended that EPA send a notice to the information to the foreign government it is clear from the legislative history Paragraph (b)(1) uses the phrase "(subject to section 14)" when referring to the availability to the foreign government of the data under section 4 or 5. This phrase ia not used either In ' reference to the notice to the foreign government In paragraph (b)(1) or to the notice to the government-ln paragraph (b)(2). Thia indicates that the Senate intended the limits of section 14 to apply to the disclosure to the foreign government of data submitted under " section 4 or 5 but not to the actual export notice to the foreign government under (b)(1) or (2). The House btU does not contain any reference to section 14. However, in discussing the differences between the House and Senate bills, the Conference Committee stated: Except for minor differences in language, the House amendment follows the Senate provision. [HR. Conference Rep. No-. 94-1878, 94th Cong. 2nd Sees. 88 (1978)). The final language of section 12(b) also does not contain any reference to . section 14. However, the Conference . Report states: foreign government for each chemical ' subject to section 12(b) which would be exported to that country. The House Committee on Interstate and Foreign Commerce stated: The Administrator must furnish the . government of ths country of destination timely notice of the availability.of data submitted under section 4 or S of the rule, action, or reliefunder section 5,6, or 7. [HR. Rep. No. 94-1341,94th Cong. 2nd Sets. 49 (1978).) A simitar intent was expressed by the Senate Committee on Commerce: The Administrator shall furnish tha appropriate information pertaining to the application of this act to tha government of the foreign country for which the export is intended. (S. Rep. No. 84-698,94th Cong. 2nd Sess. 25 (1978)1 This language indicates that neither . the House nor the Senate Intended that the Administrator not give notice to the foreign government. Section 14(a) ofTSCA has the primary purpose of restricting public disclosure of trade secrets and other confidential commercial and financial information. discussed above that Congress intended the availability to the foreign * government of such information tope governed by section 14. The language of the Senate bill expresses this concept and the Conference Committee makes dear that the final language is riot4 substantive change from the Senate bill. Accordingly, if the foreign government" were to request further information concerning the spedfic export which triggered the section 12(b) notice, the - government would receive only that information which can be disclosed under section 14. Similarly, the data submitted under section 4 or 5(b) of . TSCA would only be available to the foreign government if itcan be disdosed under section 14. EPA expects that most of the section 12(b) submissions will not be confidential. A great deal of information about exports of chemical substances is already publidy available, for example, through statistics released by the Bureau of the Census. EPA also anticipates that exporters will not make overly broad claims of confidentiality. There are four key items of information that would be The conference substitute foilowt the EPA does not believe that disclosure to submitted ta EPA: the name of the policy set forth in both the Senate and House a foreign government of only the limited exporter, the name of the exported provisions * * * to provide information to foreign governments regarding chemical substances and mixtures, so that luch foreign governments can protect their own citizens. Supra it 88. amount of specific information required by section 12(b) contradicts the intent of- section 14(a). The minimal information in the notice, as set forth in 707JO of the regulation, contains onlytwo ' ' substance or mixture. the country of - . import, and the date of export EPA believes that for most situations where some aspect of an export transaction is .confidential, theconfidentiality can be . From this discussion it is clear that, potential commercial secrets^-thata protected by daiming only a single item the Conference Committee did not view specific chemical substance is of information confidential, usually the the absence of the reference "(subject to commercial and that it is being exported exporter's name. section 14}" in the House bill or in the to a specific country. EPA has decided not to require . final language of section 12(b) to be ar This is information which many substantiation of confidentiality daims - substantive difference. Accordingly, it is - foreign governments can obtain under at the time of submission. However, _. * CAP CO JEN 0013065 J* \* Federal Register / Vol. 45, No. 243 / Tuesday, December 18, 1380 / Rules and Regulations 82849 exporters will be required to ou claimed confidential substantially EPA will contim wto require reporting substantiate claims of confidentiality arm your competitive position? of the specific substance name as well under the procedure of40 CFR Part 2 if EPA receives requests for the information. Establishment ofa Sunset Provision EPA did not include a sunset as the substance category. The Agency believes this information will be valuable to the foreign government, If, for example, a section 12(b) provision in the proposal, but raised this especially with regard to specific test submission were requested under the issue for comment Seven comments results on that substance. The Agency Freedom of Information Act (FOIA), the addressed the question. Industry understands the Industry's concern exporter would be asked to substantiate comments favored a sunset provision the confidentiality claims. If the-exporter that would phase out reporting on a about the number of reports that may be involved. However, such a policy could were to claim more than a single item of regulated substance after three years, potentially work to the exporter's information confidential, the exporter would have to substantiate how but no later than five years. However, one of these companies qualified its advantage. For example, it is possible that while the category of substances disclosure of a given item, such as support for a sunset provision with a may be of concern, some specific chemical identity, would be harmful if another item, such as the exporter's recognition of the problems and difficulties of imposing such a member of a category could prove to have low or no toxic effects as a result identity were held confidential. requirement in this case. They suggested of testing--information which could Accordingly, EPA expects that, in most as an alternative that EPA annually- therefore help the exporter. cases, claiming only a single item of publish in the Federal Register a list of (3) One exporter proposed that, in lieu information in the submission as those substances for which section 12(b) of section 12(b) requirements, foreign confidential will adequately protect reporting is no longer required. Others governments could be notified under proprietary information. - that .commented opposed a sunset existing Trade Agreements Act of 1979 Submitters should carefully consider provision. They stated that such a provisions (Standards Agreement). the need for confidentiality claims. requirement would deny foreign . The Agency disagrees. First, section Accordingly, EPA advises that the governments necessary information and 12(b) requires that EPA notify any following questions will be among those would be contrary to Congressional country importing the TSCA regulated which submitters of section 12(b) intent substance. However, under the . notices will be required to answer In As stated In the proposal EPA is not Standards Agreement, notices would order to substantiate their claims: required to include a sunset provision in only be sent to those countries that \ . 1. Do you assert that disclosing the these regulations because export signed the standard Code portion of the information you have claimed reporting is mandated by statutory General Agreement on Tariffs and . I confidential would substantially harm ' language. EPA has decided that at Trade (GATT). Not all countries that-f your competitive position? If so, what' present it will not institute a sunset import chemical substances and .j are those harmful effects, and why provision. However, as the Agency mixtures from the U.S. signed this should they be regarded as substantial? gains more experience with agreement. Secondly, the Standards' What is the causal relationship between administering these regulatlons.it may Agreement requires notice to disclosure and the harmful effect? be appropriate to amend them to participating countries of a(/standards- 2. If you have previously exported this discontinue requiring notices on certain related activities, regardless of whether chemical in any form to the destination substances. As pointed out in the. they pertain to exports of chemicals. country, what precautions did you take proposal, it is possible that after a Such GATT notices would not specify to protect the information you now period of time the foreign government that a regulated substance was actually claim as confidential from disclosure? would gain no further benefit from such ' being exported bom the U.S. to that 3. To what extent hsrs it been, or will it notices if no new information is country. On the other hand, section be. revealed to others that this chemical included. 12(b) notices are export and chemical will be exported by you to the destination country? What precautions have you taken regarding undesired disclosure of the information you have claimed confidential? 4. Has EPA, another Federal agency, Other Comments (1) One company was concerned that sections 5(a) and (b) of TSCA might be read together to trigger export notice requirements on all new substances specific. Therefore, GATT notices would not fulfill the intent of section 12(b). Finally, the procedure for notifying foreign governments would be much Jess direct under the Standards Agreement than under section 12(b). EPA would or a Federal court made any subject to premanufacture notification have to notify the U.S. Trade determinations regarding the under section 5(a).. Representative and the Technical Office confidentiality of any item you have This is not a correct interpretation. claimed confidential? If so, please attach Export notice would be required for a (Department of Commerce), which in turn would notify GATT headquarters in copies. new chemical substance only if it is (1) Geneva. Switzerland, which would then 5. How long should confidential subject to a section 4 test rule; (2) notify.the foreign governments. Such a treatment be given the information you included on the section 5(b)(4) list; (3) procedure would delay section 12(b) have claimed confidential? subject to an order issued under section notification to the foreign government 6. If you have claimed exporter 5(e) or (f); or (4) is subject to a proposed (4) One company asked whether identity plus any other item of or final.significant new use rule. notice was required for exports or information confidential, and EPA keeps ' (2) Another company pointed out that regulated substances from Alaska to a exporter identity confidential, how notices of export for individual U.S. mainland destination. would disclosing the other information chemicals within a category of Shipments between points within the you claimed confidential substantially chemicals subject to a section 4 rule customs territory of the U.S. are not harm your competitive position? would also increase the reporting considered exports even though they 7. If you have claimed more than one burden. They suggest that the exporter may pass through a foreign country. item of information confidential, and only be required to say that they are _ Therefore, such shipments are not EPA keeps one item confidential, how - exporting a member of the regulated - subject to section 12(b) reporting. This . would disclosing the other information category. comment did, however, prompt a CAPCO JEN 0013066 82850 Federal Register / Vol. 45. No. 233 / Tuesday, December 16. 1980 / gules and Regulations clarifying'change in the definition of exporter. Thi* definition under { 707.83(b) now Include* the phrase "to a destination outside of the customs territory of the United States." OfficialRulemaking Record EPA established the official record for this rule (docket number OTS-120001) which is available for public inspection in the Office ofToxic Substances, Rm. E-447 from 8 ami. to 4 pm. Monday through Friday exceptlegal holidays. This record includes (1) the rule. (2) written comments, and (3) other information identified by the Administrator as pertinent to. promulgation of the rale. The record inlcudes the following - categories of information: 1. The proposed rale and comments received. 2. A draft of the proposed rale sent to the Manufacturing chemists Association (r.ow Chemical Manufactures Association). 3. Letters of transmittal sent with that draft (item 2), and written comment* - received on it 4. Minutes of informal meetings held . on September 13,14, and 19,1978, and October 27,1978, with industry and . - foreign government representatives.. - 5. A letter from the Natural Resources Defense Council, dated May 8,1978, concerning interim procedures under section 12(b). 6. Correspondence with the Bureau of the Census, da ted April 18, April 30, June 14. and June 28,1979, concerning possible use of Federal Trade Statistics Act data. 7. May 15,1980 report by the House Committee on Interstate and Foreign - Commerce on the Toxic Substances Control Act amendment of 1980. 8. A letter to Congressman Scheuer, Chairman of the House Consumer Protection and Finance Subcommittee dated October 17,1980. Under Executive Order 12044, EPA is required to judge whether a regulation is "significant" and therefore subject to the procedural requirements of the Order or whether it may follow other specialized development procedures. EPA labels these other regulations "specialize." I have reviewed this regulation and determined that it is a specialized regulation not subject to the procedural requirements of Executive Order 12044. Dated: December 8,1990. * Douglas M. Coil!*, Administrator. ' Therefore. Title 40 of the Code of Federal Regulations is amended by adding a new Part 707 as set forth below: PART 707--CHEMICAL IMPORTS AND abbreviations and definitions are EXPORTS provided for purposes of this rale: Subparts A-C--{Reserved] - (a) "EPA" means the Environmental Protection Agency.. Subpart D--Notices ot Export Under ' (b) "Exporter" means the p'erson who, Section 12(b) as the principal party in interest in the Sea 707.60 Applicability and compliance. . 707.63 Definition*. - 707.65 Submission to agtncy. export transaction, has the power and responsibility for determining and controlling the sending of the chemical substance or mixture to a destination . 707.67 Content* of node*. out of the customs territory of the United 707.70 EPA node* to foreign governments: 707.75 Confidentiality. ' __ . States. (c) "Regulated chemical" means any Authority: Sec. 12(b), Pub. L. 94-469,90 StaL 2033 (15 U3.C 2611(b)). ' chemical substance or mixture for which export notice is required under { 707.60.. $707.60 Applicability and compliance. (a) Section 12(b) of the Toxic (d) "TSCA" means the Toxic Substances Control Act. Substances Control Act requires any { 707.85 Submission to agency. person who exports or intends to export a chemical substance or mixture to notify the Environmental Protection Agency of such exportation to-a particular country if any of the following actions have been taken under the Act with respect to that chemical substance or mixture: (1) Data are required under section 4 or 5(b), (2) An order ha* been Issued under section 5, (3) A rale has been proposed or promulgated under section 5 or 8, or (4) An action is pending, or relief has been granted under section 5 or 7. (b) Nonotifce ofexport~njll.be required for articles, except PCB . - (a) Exporters must notify EPA of their export or intended export-of each regulated chemical in accordance with the following:' ' . . 1' (1) The notice must be In writing: (2) The notice must be for the first ' export or intended export to a particular country in a calendar yean (3) The-notierrnurtbe.postmarked within-sevea dayaofformingrthelptent to exportor.on.thrdatrofexport,) whichever is earlier. A notice of intent to export must be based on a definite contractual obligation, or an equivalent intra-company agreement, to pxport the 'regulated chemicaL (b) If the EPA action that prompts the articles, unless the Agency so requires - notice is a proposed rule, the in the context of individual section 5,6, or 7 actions. requirement to submit export notices to EPA shall begin thirty days after (c) Any person who exports or intends. publication of the action in the Federal to export polychlorinated biphenyls .Register.' (PCBs) or PCB articles, for any purpose (c) Notices shall be marked "Section other than disposal, shall notify EPA of 12(b) Notice" and sent to the Document * such intent or exportation under section Control Officer. Office of Pesticides and 12(b). PCBs and PCB articles have the Toxic Substances (TS-793), definitions published in $ $ 781.2(3) and Environmental Protection Agency, Rm. 761.2(f) of this title respectively. E-447,401M Street. SW, Washington. (d) Any person who would be DC 20460. prohibited by a section 5 or 6 regulation . { 707.67 Contents of notice. from exporting a chemical substance or mixture, but who is granted an exemption by EPA to export that chemical substance or mixture, shall The notice to EPA shall include: (a) The name of the regulated chemical as it appears in the section 4,5, notify EPA under section 12(b) of such 6, or 7 action. If a category is regulated intent to export'or exportation. (e) Failure to comply with section 12(b) as set forth in these rules will be considered a violation of section 15(3) of the Toxic Substances Control Act, and will subject the exporter to the penalty, the name of the individual regulated chemical within that category, as well as the category, must be given. The name shall be that which appears in . Volume I of the EPA Chemical Substance Inventory, or its supplements, enforcement and seizure provisions of sections 18 and 17 of the.Toxid if the chemical appears there.. (b) The name and address o'f the 'Substances Control Act - exporter. .- * - (c) The country (countries) of import {707.63 Definition*. (d) The date(s) of export or intended The definitions set forth In the Toxic export Substances Control Act, section 3, apply (e) The section (4,5.6, or 7) of TSCA for this Part In addition, the following under which EPA has taken action. CAP CO JEN 0013067 A. .. Federal Register / Vol. 45, No. 243 / Tuesday, December 16, 1980 / Rules and Regulations 82851 } 707.70 EPA notice to foreign governments. (a) Notice by EPA to the importing country shall be sent no later than five working days after receipt by the Document Control Officer of the first annual-notification for each regulated chemical. (b) Notices shall: (1) Identify the regulated chemical. (2) Summarize the regulatory action taken, or indicate the availability of data under section 4 or 5(b) of TSCA. (3) Identify an EPA official to contact for further information. (4) Include a copy of the pertinent Federal Register notice. (c) Notices shall be sent to the country's ambassador in Washington. DC, or other official designated by the foreign government, and to the United States Department of State. S 707.75 Confidentiality. (a) A person may assert a claim of confidentiality for any information which is submitted to EPA in a notice. [bj Any claim of confidentiality must accompany the information at the time it is submitted to EPA. In the notice, the submitter must clearly identify the information that is claimed confidential by marking the specific information on each page with a label such as "confidential business information", "proprietary", or "trade secret". (c) Notwithstanding any claim of confidentiality, information outlined in 707.70 wifi be included in the EPA notice to the foreign government With this exception, EPA wifi disclose information that is covered by a claim of confidentiality asserted in accordance with this section only to the extent permitted by, and in accordance with, the procedures set forth in TSCA and Part 2 of this chapter. (d) If a person does not assert a claim . of confidentiality for information at the time a notice is submitted to EPA. the Agency may make the information public, including placement in a public file, without further notice to the person. (FR Doc. Khuxa Filed 12-15-aa us 61UJWC coot 1SOS4I-U " f > CAPCO JEN 0013068