Document kmbNVo1raynqQgDjRQQywGmOJ

FILE NAME: Kentile (KEN) DATE: 1992 Apr 2 DOC#: KEN009 DOCUMENT DESCRIPTION: Memo RE Asbestos Tile, Etc. with Attached EPA Proposal April 2, 1992 TO: D. Hudson, D/766 J. Pepper, D/766 G. Zelazny, D/817 RE: ASBESTOS TILE, ETC. Attached is the EPA's proposed interpretation that vinyl/asbestos floor tile and other products continue to be subject to EPA's ban. Comments are due May 4, 1992. TD/er Tall^dzenitis Legislative Counsel Corporate Governmental Atfairs Sears. Roebuck and Co. 633 Pennsylvania Avenue, N.W. Washington, D C. 20004 202/639-3971 FAX 202/347-7127 A - 6 (No 63) REGULATION, ECONOMICS AND LAW (DER) 4-1-92 of low-yield livestock, bringing average milk yield The bill, which recently was cleared by his subcom down from 3.544 liters per cow in 1990 to 2.879 liters mittee on a 16-1 vote, would require the Environmen in 1991. he noted. Over the next year, the system of tal Protection Agency to develop standards for agricultural subsidies will be directed toward stopping manufacturers which want to make claims that their overproduction and promoting selected crops and live products are beneficial to the environment. stock output. Krsek said. Foreign investment in food HR 3865 would allow the states to continue to make processing has been cautious, and "not in accordance their own rules on green marketing in the two years with our needs and desires." he explained.-- after enactment of the Legislation but before the EP.A rules are promulgated. Consum er Protection After the EPA rules are finalized, the states may promulgate their own rules as long as they use defini FDA COMMISSIONER TELLS STATES OF DESIRE FOR JOINT EFFORTS OF CONSUMER PROTECTION tions identical to those in the EPA rules if the states wish to develop a rule about an issue that is not contained in the EPA rules, they may do so. The head of the Food and Drug Administration on Swift added that he hopes the bill will be considered March 31 told state attorneys general that his agency by the House before the congressional recess for Inde must work with them and other federal agencies to pendence Day. protect consumers. On another issue, he expressed optimism that his FDA Commissioner David A. Kessler, addressing bill on telemarketing enforcement (HR 3203), which the Spring Meeting of the National Association of would allow the states to file suits on an FTC rule in Attorneys General, noted that many states during the federal court, would be_considered by the House be 1980s stepped into the breach left by the FDA, which fore the Easter recess.-- spent much energy on writing letters but little on enforcement activities. As he took charge of the FDA. industry officials expected "business as usual," he observed. However, H azardous Su b sta n ce s ' ----- they have since learned the "error of such thinking." ) VINYL/ASBESTOS FLOOR TILE, FELT PRODUCTS It now takes 80 days before a case is turned over SHOULD BE EXEMPT FROM BAN, GROUP SAYS - from the FDA to the Justice Department, down frortr-- , as many as 300 days, Kessler advised NAAG. The president of the Asbestos Information Associ Prosecutions numbered 43 in 1991, up from 25 in ation charged March 31 that the Environmental Pro 1990: and the number of injunctions increased from 9 tection Agency^cannot continue to ban vinvl/asbestosT to 21. he said. 'fR5oTfIIe"'ah3 flooring felt products under Section 6 of Kessler also pointed out that he has initiated a new ' the Toxic'SubifancerCoiiUul Act because those prpd-- office of criminal investigations. -"OCTs"were Jiing_imported. a.t_the time the ban took However, "we can't do it alone," he told the attor ~ ettect.'__ - ` neys general and their staffs. The FDA needs to c IrTa notice expected to be published April 2, EPA strengthen its ties to both the attorneys general and said vinvl/asbestos floor tile and asbestos flooring felt state regulators. nrofllTcts still are subject to the agency's ban on As part of this cooperative effort, he announced a '"'asbestos producter-The agency evaluated which asbes- joint campaign with NAAG and the Federal Trade ' tos products still could be made and sold in the United Commission to focus on false claims on weight loss products. Many of these products claim a "quick fix," States after an appeals court overturned most of the 1989 ban and phase-out rule (Corrosion Proof Fit but the public needs to know that there is no "magic tings v. EPA, CA5, No. 89-4596). bullet" to weight loss. "This is the first such joint effort to combat health fraud." Kessler declared. But, he stressed his expecta The court ruled that EPA could continue to ban new uses of asbestos and any specific asbestos-containing products that were not being manufactured, imported, tion that this will be the first of many. or processed on July 12. 1989, the date the ban rule He noted that he met in October with Iowa Attorney was made final. General Bonnie J. Campbell, who chairs NAAG's FDA AIA President Robert Pigg told BNA that vinyl/ Working Group, to discuss the exchange of informa asbestos floor tile and asbestos flooring felt products tion and a public education campaign on health fraud. NAAG's FDA Working Group has combined efforts on three prosecutions, one dealing with a weight loss prod uct and the other two with AIDS cures, Kessler reported. were being imported into the United States from Canada, Mexico, and possibly other countries at the time the rule was issued. While he conceded the imports are not a large market. Pigg said EPA cannot continue to ban those products under the 1989 ban and Environmental Marketing Claims phase-out rule because the court overturned and re manded the entire rule to the agency. Rep A1 Swift (D-Wash), who chairs the House Energy and Commerce Committee's Transportation and Haz ardous Materials Subcommittee, also addressed NAAG. Swift, whose subcommittee has jurisdiction over FTC-related matters, declared that his bill (HR 3865) on environmental marketing claims only preempts the states in a limited capacity. "That doesn't mean the EPA could not revisit those products," Pigg explained. If the agency wants to ban those products, AIA believes EPA would have to do so under a new rule-making, he said. In a new rule making, EPA would have to consider less burdensome alternatives to a ban. which the appeals court ruled EPA did not do for the 1989 ban rule. Copyright $ 1992 by THE BUREAU OF NATIONAL AFFAIRS. INC . Washington. 0 C 20037 0148-8155/92/S00 50 A - 6 (No 63) REGULATION, ECONOM ICS AND LAW (DER) 4-1-92 of low-yield livestock, bringing average milk yield down from 3.544 liters per cow in 1990 to 2,879 liters in 1991. he noted. Over the next year, the system of agricultural subsidies will be directed toward stopping overproduction and promoting selected crops and live stock output. Krsek said. Foreign investment in food processing has been cautious, and "not in accordance with our needs and desires." he explained.-- Consum er Protection FDA COMMISSIONER TELLS STATES OF DESIRE FOR JOINT EFFORTS OF CONSUMER PROTECTION The head of the Food and Drug Administration on March 31 told state attorneys general that his agency must work with them and other federal agencies to protect consumers. FDA Commissioner David A. Kessler, addressing the Spring Meeting of the National Association of Attorneys General, noted that many states during the 1980s stepped into the breach left by the FDA, which spent much energy on writing letters but little on enforcement activities. As he took charge of the FDA. industry officials expected "business as usual," he observed. However, C they have since learned the "error of such thinking." ) It now takes 80 days before a case is turned over ' from the FDA to the Justice Department, down frorti-- as many as 300 days, Kessler advised NAAG. Prosecutions numbered 43 in 1991, up from 25 in 1990-, and the number of injunctions increased from 9 to 21. he said. Kessler also pointed out that he has initiated a new office of criminal investigations. However, "we can t do it alone," he told the attor neys general and their staffs. The FDA needs to strengthen its ties to both the attorneys general and state regulators. As part of this cooperative effort, he announced a joint campaign with NAAG and the Federal Trade Commission to focus on false claims on weight loss products. Many of these products claim a "quick fix," but the public needs to know that there is no "magic bullet" to weight loss. "This is the first such joint effort to combat health fraud." Kessler declared. But, he stressed his expecta tion that this will be the first of many. He noted that he met in October with Iowa Attorney General Bonnie J. Campbell, who chairs NAAG's FDA Working Group, to discuss the exchange of informa tion and a public education campaign on health fraud. NAAG s FDA Working Group has combined efforts on three prosecutions, one dealing with a weight loss prod uct and the other two with AIDS cures, Kessler reported. Environmental Marketing Claims Rep. A1 Swift (D-Wash). who chairs the House Energy and Commerce Committee's Transportation and Haz ardous Materials Subcommittee, also addressed NAAG. Swift, whose subcommittee has jurisdiction over FTC-related matters, declared that his bill (HR 3865) on environmental marketing claims only preempts the states in a limited capacity. The bill, which recently was cleared by his subcom mittee on a 16-1 vote, would require the Environmen tal Protection Agency to develop standards for manufacturers which want to make claims that their products are beneficial to the environment. HR 3865 would allow the states to continue to make their own rules on green marketing in the two years after enactment of the legislation but before the EPA rules are promulgated. After the EPA rules are finalized, the states may promulgate their own rules as long as they use defini tions identical to those in the EPA rules. If the states wish to develop a rule about an issue that is not contained in the EPA rules, they may do so. Swift added that he hopes the bill will be considered by the House before the congressional recess for Inde pendence Day. On another issue, he expressed optimism that his bill on telemarketing enforcement (HR 3203), which would allow the states to file suits on an FTC rule in federal court, would be_considered by the House be fore the Easter recess.-- Hazardous Substances VINYL/ASBESTOS FLOOR TILE, FELT PRODUCTS SHOULD BE EXEMPT FROM BAN, GROUP SAYS The president of the Asbestos Information Associ ation charged March 31 that the Environmental Pro tection Agency cannot continue to ban vinvl/asbestos. ttSoTflleand flooring felt products under Section 6 of the Toxic' -nets'were_bing_imported. a.tjhe.tim e the ban took eTIectr__ ... * IrTa notice expected to be published April 2, EPA said vinyl/asbestos floor tile and asbestos flooring felt products still are subiecr~to the agency's ban on ^"asbestos product&r-The agency evaluated which asbes tos products still could be made and sold in the United States after an appeals court overturned most of the 1989 ban and phase-out rule (Corrosion Proof Fit tings v. EPA, CA5, No. 89-4596). The court ruled that EPA could continue to ban new uses of asbestos and any specific asbestos-containing products that were not being manufactured, imported, or processed on July 12. 1989, the date the ban rule was made final. AIA President Robert Pigg told BNA that vinyl/ asbestos floor tile and asbestos flooring felt products were being imported into the United States from Canada, Mexico, and possibly other countries at the time the rule was issued. While he conceded the imports are not a large market. Pigg said EPA cannot continue to ban those products under the 1989 ban and phase-out rule because the court overturned and re manded the entire rule to the agency. "That doesn't mean the EPA could not revisit those products," Pigg explained. If the agency wants to ban those products, AIA believes EPA would have to do so under a new rule-making, he said. In a new rule making, EPA would have to consider less burdensome alternatives to a ban, which the appeals court ruled EPA did not do for the 1989 ban rule. Copyright * 1992 by THE BUREAU OF NATIONAL AFFAIRS. INC.. Washington. O C 20037 OU8-8155/92/SOO SO '-92 4-1-92 (DER) REGULATION, ECONOMICS ANO LAW (No 63) A - 7 om- Walter Anderson of the Resilient Floor Covering Only 30 people will be allowed to make presenta ien- Institute was not available March 31 to confirm Pigg's tions.'the agency said. for statement and provide documentation about the im Anyone interested in making an oral presentation on ie ir port status of the floor tile and flooring felt products. EPA's reassessment of the risks associated with diox An EPA official told BNA March 31 the agency does ins should contact Environmental Management Sup 3ke not have proof that asbestos floor tile and flooring felt port Inc.. (301) 589-0885. ars products were being imported at the time the rule was Written comments may be sent to Environmental PA issued. Management Support Inc.. 1010 Wayne Ave.. Suite The agency said in the notice, however, that while 200. Silver Spring, Md. 20910. lav AlA and the Asbestos Institute substantiated that vinyl/' :ni- asbestos floor tile and flooring felt products were not tes being produced in the United States, "recent commu New Issues lot nications . . raise some questions about the status of The agency said comments should be limited to ed these products." issues that were not discussed at the first public meeting on the dioxin reassessment, held Nov 15. Je Other Asbestos Products 1991. At that meeting, several industry representa tives explained that some polychlorinated biphenyls ns ch Other asbestos products the agency is considering to that exhibit "dioxin-like" attributes in their biologic in keep under the ban include asbestos-cement shingle; commercial, corrugated and specialty paper; and roll process and toxic effect are being reviewed by EPA in the dioxin reassessment. ie- board and millboard, according to the EPA notice. EPA said it was interested in receiving comment These products were subject to the third phase of the on: new scientific data; any ongoing or recently pub ban, which had not gone into effect when the court lished research; any scientific or technical interpreta overturned the ban. Because Phase 3 of the ban was tion of and analysis of data relevant to the dioxin not yet in effect when the court invalidated the rule, reassessment; and suggestions for additional public the industry association will question whether EPA participation and involvement in EPA's reassessment still can ban those products, Pigg said. As for asbestos-cement shingles, "there is no ques project. The agency also seeks comment on the five ele tion they've been manufactured in the United States and continue to be," and so the court decision requires ments that comprise the reassessment: Development of a new biologically-based, dose- the agency to discontinue banning them, Pigg said. response model for dioxin to estimate health risks: s The association will send documentation to support Support(ing) of laboratory research relevant to f its position on the status of these products with com development of a new dose-response model; ments after the notice is published in the Federal Update and revision of the health assessment doc Register, Pigg said.Z ^ ument for dioxin: Update and revision of the exposure assessment Hazardous Substances document for dioxin; and Supporting research to characterize ecological SECOND PUBLIC MEETING ON REASSESSM EN T SET FOR APRIL 28; EPA REQ UESTS COM M ENTS risks of dioxin in aquatic ecosystems, and develop ment of an ecological risk characterization report. For further information contact David Cleverly, A second public meeting has been scheduled by the Office of Technology Transfer and Regulatory Sup Environmental Protection Agency for April 28 to dis port (H-8I05). EPA, ORD, 401 M St. S.W., Washington. cuss EPA's scientific reassessment of dioxin, the agen D.C. 20460, (202) 260-7891._ cy announced March 30. The public is invited to hear presentations by offi cials from EPA's Office of Research and Development International Trade on the status of agency reassessment research projects (57 FR 10761). Each presentation will be followed by a short ques tion and answer period, EPA said. The rest of the meeting will be devoted to oral comments presented by preregistered attendees, the agency explained. The meeting will be held April 28 from 8:45 a.m. to U.S. TO ASK JAPANESE GOVERNMENT TO HORSE-TRADE ON THOROUGHBRED RACING TOKYO--(By a BNA Special Correspondent)--The U.S. government is asking that Japan relax regula tions on U.S. race horses in Japan, U.S. and Japanese officials said March 30. 5 p.m.. at EPA's Education Center Auditorium, Water side Mall. 401 M St. S.W.. Washington, D.C. "We are asking the Japanese government' to take action on the race horse trade, said a U.S. embassy In April 1991, EPA Administrator William Reilly official who declined to be named. initiated a re-evaluation of the agency's risk assess The United States is asking for lifting of the existing ment for dioxins. The reassessment has five elements 4 million yen ($30,769) a head import tariff, as well as and is focused on the risks associated with TCDD, also relaxation of Japanese regulations on foreign horses known as 2.3.7.8-tetrachlorodibenzo-P-dioxin. Oral comments will be limited to five minutes each, being able to run in high-stakes Japanese races, the official said. He said the United States may take up EPA said. The deadline for registering to present the issue in bilateral trade meetings. comments at the meeting is April 27, according to the The demand was lodged against the Ministry of announcement. Agriculture. Forestry and Fisheries by Sen. Mitch Copyright C 1992 by THE BUREAU OF NATIONAL AFFAIRS. INC . Washington D C. 20037 0148-8155/92/S00 50 Thursday April 2, 1992 Part III Environmental Protection Agency 4*CFRPart763 _ A sb e sto s; M anufacture, Im portation, ' Processing and Dt*trtt>utk>n Prohibitions; A Effect of Court Decision 11364 Federal Register / Vol. 57. No. 64 / T hursday. April 2. 1992 / Proposed Rules ENVIRONMENTAL PROTECTION I. Background no longer are being produced in or AGENCY On July 12.1989. EPA issued a final imported into the United S ta te s/ Id. at rule under section's of the Toxic 391. 40 C F R Part 763 Substances Control Act (TSCA). 15 EPA filed a Motion for Clarification U.S.C. 2505. The rule prohibitedL at with respect to the effect of the Court's (OPPTS-62114; FRL-4044-2I staged intervals, the tuture manufacture. decision on the portions of the rule that A sb e sto s; Manufacture, Im portation, importation, processing, and distribution regulate asbestos-containing products in commerce of almost all asbestos- that were no longer being produced or P ro c e ssin g and Distribution - containing products, and required imported. In response to the Motion, the P ro h ib itio n s; E ffe c t of C o u rt D e c is io n riapeiing ot such products [40 CFR Court stated that its earlier holding not AGENCY: Environmental Protection 763.160-763.179). The first stage of the to disturb EPA's decision to ban certain Agency (EPA). ban regulated any "new uses of products applies to "products that were ac tio n ; Continuing restrictions on asbestos," and certain specifically not being manufactured, imported, or identified asbestos-containing products. processed on July 12.1989," the date the certain asbestos-containing products. "New uses of asbestos" means those final rule was issued. Corrosion Proof s u m m a r y : On October 18,1991, the commercial uses of asbestos not Fittings, slip op. at 1007 (November 15. United States Court of Appeals for the identified in 40 CFR 763.163, and not excluded specifically by the definition, 1991). It also authorized EPA to resolve factual disputes with respect to the Fifth Circuit, in Corrosion Proof Fittings v. t f A . No. 89-4598, slip op. 556 (Oct. 16, the manufacture, importation, or particular products that may be in that 1991). vacated and"remanded most, of processing of which would be initiated category. Id. In light of this clarification, the rule which pmhihitad the- for the first time after Augtst 25,1969 it is clear that the Court did not disturb manufacture importation prnrnnniny (40 CFR 763.163). After Aagust 27,199a Tfiffrule witn respect to products that and distnbution in commerce of certain the rule banned the manufacture, w e originally covered bv the rule, and asbestos-containing products, and importation, and processing of *H stage SaT were not being manufactured? required the labeling of those products. one products, and required that those _an.port_e_d_-_n_r_p_rocessed on Jul_y__1_2._1_9_R_9._ Subsequently, the Court clarified the products be labeled while they l a n i n e d ^ Court did not require the Agency to decision and held that the rule in distribution (40 CFR 763.1651*1, 8 an entirely new rulemaking continued to govern asbestos-containing 763.167(a). 763.171(a)). After A ^ a a t 27. process for these products. It did products that were not being 1992, the rule also prohibited the however, recognize that there may be manufactured, imported, nr processed distribution in commerce of all stage one some disagreements regarding the status on July 12.1989. This document products (40 CFR 763.169(a)). Tfct of some products, and it authorized EPA identifies products that EPA believes secood and third stages of the to resolve such factual disputes on may remain subject to the prohibition regulated additional types of ai remand. and labeling requirements ot the ruler containing products. These two later EPA also filed a Request for and solicits comments on tlPA's stages of the rule contained provisions Rehearing, which the Fifth Circuit determinations with respect to the that were comparable to the first stage, denied on November 27,1991. The status of various other asbestos- but that were to take effect from 19911 Government has decided not to file a containing products as of Jaly 12,19891 through 1967 (40 CFR 763.165(bHV p*iKi far a Writ of Certiorari to the d a t e s ; Comments must b^juhm itted to 763.167(b) and (cj.763.169(b)-{dfc United States Supreme Court. EPA on or befo^TBy*4.1S8SL^) 78I3n.1C71o(r(rbo)saionnd Pferfoi.of Fittings, tha Court & Status of Products a d d r e s s e s ; Written comments that contain information claimed as agreed with EPA's determination that asbestos is bazardous and presents Based upon the Court's clarified decision. EPA believes that new uses of Confidential Business Information (CBI) similar risks throughout differeat asbestos, vinyl/asbestos floor tile, and should be identified by the docket industries. and affirmed the Agency's asbestos nooning fell products are still number [OPPTS-62114J and submitted in authority to issue rules that b aa 11 uses "sabject to the rule. By definition, any triplicate, together with one version of a toxic substance under TSCA. The product that constitutes a "new use of from which all claimed CBI has been Court, however, held that the asbestos asbestos" was not being manufactured, deleted, to; TSCA CBI Docket Office - ban rule was not supported by imported, or processed on July 12,1989. (TS-790), Office of Pollution Prevention and Toxics, rm. E201. 401 M St., SW,, substantial evidence because EPA h ifed A "new use of asbestos" is defined as a to sustain its burden under t5 CA am that is initiated for the first time Washington. DC. 20460. Written `section 6(a) of showing that the products after August 25,1989 (40 CFR 763.163). comments that contain no claimed CBI ~~banned by tiie rule present an -- Based upon this definition, qny product should be submitted to: TSCA Public unreasonapie risk, and that a lea that was being manufactured, imported. Docket Office (TS-793). Office of burdensuiiie regulation w ould!!, w premised on July 12,1969, ~ Pollution Prevention and Toxics, rm. adequately protect dKdlttsnHT r5 * _ Th automatically cannot be a "new use" of G004. NE Wall, Environmental Court also found that hPA failed to give itbesfos because it would have been Protection Agency, 401 M St.. SW.. adequate notice and opportunity to * ttWlaifed pnor to /Tugust 25,1989. Thus Washington. DC 20460. comment on the use of analogoas m y product that is a "new use of FOR FURTHER INFORMATION CONTACT: exposure data to support parts of the _ "asbestos" was not being manufactured, David Kling. Acting Director. TSCA rule. For products that "once were, but ~ sported, or processea on )uiy \z, 1969, Assistance Division (TS-799), Office of no longer are, being produced.'* --X rontinuesTo be governed dv the rule Pollution Prevention and Toxics, rm. E- however, the Court found that EPA owsuant tP tho rirmrt'a rUi-ified decision 545. Environmental Protection Agency, properly evaluated the risks. Id. at 580 JfS C FR 263-163). 401 M St.. SW.. Washington. DC 20460, 591. It held that TSCA authorizes EPA to The formation available to EPA as Telephone; (202) 260-1404, TDD; (202) ban future uses of asbestos, and pwt of tht rulemaking proceeding also 554--0551. specifically refused to "diatnrh rt>e estahtmfces that vinyl/asbestos floor tile I su pplem en tary information: "agency s decision to ban products that end Booring felt were not being Federal Register / Vol. 57; No. 64 / Thursday, April 2. 1992 / ProDOsed Rules 11365 manufactured, imported, or processed this document, were being when the final rule was issued. ETA manufactured, imported, or processed made such a determination in the preamble to the final rule (54 FR 29460, 29484. 29492. July 12.1989), and in the Regulatory Impact Analysis of Controls on Asbestos and Asbestos Products. That determination was later substantiated in part by statements made to the Fifth Circuit Court of Appeals by the Asbestos Information Association of North America (AIA) and the Asbestos Institute (AI). which represent members of the asbestos industry. The two organizations told the Court that vinyl/asbestos floor tile and flooring felt were no longer produced in the United States. Recent communications from AIA. AI. and other entities, however, raise some questions about the status of these products. Therefore. ETA is requesting comments with respect to whether these products were being manufactured, imported, or processed on July 12.1989. Based upon information currently available to the Agency. EPA also believes that the following products may be subject to the rule: asoestos-cement (A/C) corrugated andHaLsheet. A /c shingle, and asbestos clothing, flooring on July 12. 1989. Commentators submitting information with respect to the July 12.1989. status of asbestos-containing products should provide supporting documentation for any claims of manufacturing, processing, or importing as of that date. Such documentation may include records of customs declarations, or evidence of manufacturing or processing on the pertinent date. As soon as possible after reviewing the comments. ETA will determine which asbestos-containing products were not being manufactured, imported, or processed as of July 12,1989. The Agency will issue its determination in the Federal Register, and identify the products, in addition to new uses of asbestos, that continue to be governed by the prohibition and labeling requirements of the rule. The second notice also will provide information, to the extent that it is available to the Agency, on products that are not subject to the rule, including a list of specific asbestos-containing products and of the companies that were manufacturing, importing, or processing the products on fait pipeline wrap, roofing felt, July 12.1989. commercial, corrugated and specialty paper, rollboard, and millboard. Both the AIA and the AI stated in their appeal to the Fifth Circuit that these products were not in production at the time the final rule was issued. Recent EPA efforts also indicate that these products probably were not being manufactured, imported, or processed when the final rule was issued, and the Agency is soliciting comments with respect to their status as of July 12,1989. Finally, there may be other asbestos- TO. Comments Containing Confidential Business Information All comments will be placed in the public record unless the commentator claims that they contain CBI, and the comments are clearly labeled as containing claimed CBI when they are submitted. Because of the need to expedite this process. CBI claims should be accompanied by comments substantiating the claim as described in 40 CFR 2.204(e)(4). While a part of the containing products identified in the rule record. CBI comments will be treated in that were not being manufactured, accordance with 40 CFR part 2. A imported, or processed on July 12,1989, sanitized version of all CBI comments and which therefore may continue to be should be submitted to EPA for the subject to the rule. In the original rulemaking proceeding, EPA did not public file. It is the responsibility of the identify the status of every asbestos- commentator to comply with 40 CFR containing product as of July 12,1989. part 2 so that all materials claimed as Accordingly, ETA seeks information confidential may be properly protected. concerning whether any of the other This includes, but is not limited to, asbestos-containing products, which clearly indicating on the face of the were identified in the rule but not comment (as well as on any associated discussed in the preceding paragraphs of correspondence) that information claimed to be CBI is included, or marking "CONFIDENTIAL'' "TSCA CBI. or a similar designation on the face of each document or attachment in the comment which contains the claimed CBI. EPA will consider the failure to clearly identify the claimed confidential status on the face of the comment as a waiver of any such claim and will make such information available to the public without further notice to the commentator or business. IV. Record ETA has established a record (docket number OPPTS-62114) for comments submitted pursuant to this document, and for other comments regarding the July 12.1989. status of asbestoscontaining products received by EPA before this document but after the Fifth Circuit decision. The Agency will supplement this record as necessary. A public version of the record, from which all CBI has been deleted, is available for inspection in the TSCA Public Docket Office, rm. G004, NE Mall. 401 M St.. SW.. Washington. DC. from 8 a.m. to noon and from 1 p.m. to 4 p.m., Monday through Friday, except legal holidays. ETA has placed copies of the Fifth Circuit Court's decision, dated October 18,1991. and Clarification of the decision, dated November 15.1991. in Docket OPPTS-62114 for public review. These documents are: 1. Decision of the U.S. Court of Appeals for the Fifth Circuit in Corrosion Proof Fittings, et a!.. petitioners, -vs- The Environmental Protection Agency and William K. Reilly, Administrator, respondents. No. 89-4596 (5th Cir., Oct. 18.1991). 2. U.S. Fifth Circuit Court of Appeals Clarification of its Decision in Corrosion Proof Fittings, et ah, petitioners, -vsThe Environmental Protection Agency and William K. Reilly. Administrator, respondents. No. 89-4596 (5th Cir.. Nov. 15.1991). Dated: February 28.1992. Linda J. Fisher, Assistant Administrator for Prevention. Pesticides and Toxic Substances. [FR Doc. 92-7238 Filed 4-1-92; 8:45 am) eajjNO cooc uao-w-e