[Federal Register Volume 59, Number 123 (Tuesday, June 28, 1994)]
[Unknown Section]
[Page ]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-15676]
[Federal Register: June 28, 1994]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 763
[OPPTS-62114B; FRL-4776-7]
Technical Amendment in Response to Court Decision on Asbestos;
Manufacture, Importation, Processing and Distribution Prohibitions
AGENCY: Environmental Protection Agency (EPA).
ACTION: Technical amendment.
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SUMMARY: EPA is revising the language of the Prohibition of the
Manufacture, Importation, Processing, and Distribution in Commerce of
Certain Asbestos-containing Products; Labeling Requirements Rule (also
known as the Asbestos Ban and Phase Out or ABPO Rule) in the Code of
Federal Regulations (CFR) to conform to a court decision that vacated
and remanded part of the ABPO Rule and to an EPA factfinding conducted
in accordance with the court's decision. The ABPO Rule prohibited the
manufacture, importation, processing, and distribution in commerce of
most asbestos-containing products in three stages over 7 years
beginning in 1990. On October 18, 1991, the United States Court of
Appeals for the Fifth Circuit (the court) vacated and remanded most of
the ABPO Rule. In a subsequent clarification, the court said the rule
continued to govern asbestos-containing products that were not being
manufactured, imported, or processed on July 12, 1989. EPA conducted a
factfinding and concluded that six asbestos-containing product
categories in the ABPO Rule were not being manufactured, processed, or
imported on July 12, 1989, and thus are still subject to the rule. This
document revises the CFR to conform to the findings of EPA in
accordance with the court decision, and requires no notice and public
comment.
EFFECTIVE DATE: This document is effective on June 28, 1994.
FOR FURTHER INFORMATION CONTACT: Susan B. Hazen, Director,
Environmental Assistance Division (7408), Office of Pollution
Prevention and Toxics, Environmental Protection Agency, 401 M St., SW.,
Washington, DC 20460, Telephone: (202) 554-1404, TDD: (202) 554-0551.
SUPPLEMENTARY INFORMATION: In the Federal Register of July 12, 1989 (54
FR 29460), EPA issued a final rule under section 6 of the Toxic
Substances Control Act (TSCA)(15 U.S.C. 2605) that prohibited the
manufacture, importation, processing, and distribution in commerce of
most asbestos-containing products in three stages over 7 years (40 CFR
763.160 through 763.179). Stage 1 of the ban went into effect in August
1990. Stages 2 and 3 were scheduled to go into effect in 1993 and 1996
respectively.
On October 18, 1991, the United States Court of Appeals for the
Fifth Circuit vacated and remanded most of the ABPO Rule. Corrosion
Proof Fittings v. EPA, 947 F.2d 1201 (5th Cir., 1991). In a latter
clarification, the court stated that product categories in the ABPO
Rule that were no longer being manufactured, imported, or processed on
July 12, 1989, when the ABPO Rule was issued were still subject to the
rule. Id. at 1230. The court left it to EPA to resolve any factual
disputes about which product categories in the ABPO Rule were no longer
in commerce on July 12, 1989.
As a result, in order to determine which product categories in the
ABPO Rule were still subject to the rule, EPA published a document in
the Federal Register of April 2, 1992 (57 FR 11364), that requested
information on the commercial status on July 12, 1989, of 14 product
categories in the rule that may no longer have been manufactured,
processed, or imported when the rule was published on July 12, 1989. In
addition, EPA solicited information on the commercial status of any
other product category in the ABPO Rule that also may no longer have
been manufactured, processed, or imported on July 12, 1989. EPA
supplemented the original information in the RIA with the comments
received in response to the Federal Register notice and with additional
research.
EPA published a document in the Federal Register of November 5,
1993 (58 FR 58964), that announced its findings concerning the
regulatory status of the product categories in the ABPO Rule. EPA
concluded that six asbestos-containing product categories were not
being manufactured, processed, or imported on July 12, 1989, and thus
are still subject to the rule. The remaining product categories were
being manufactured, processed, or imported on July 12, 1989, and are no
longer subject to the rule.
Accordingly, EPA is issuing this document to revise the language of
the ABPO Rule in the CFR to conform to the October 1991 court decision
that remanded the rule and to the November 1992 factual findings of
EPA, in accordance with the court decision.
List of Subjects in 40 CFR Part 763
Environmental protection, Asbestos, Hazardous substances.
Dated: June 21, 1994.
Victor J. Kimm,
Acting Assistant Administrator for Prevention, Pesticides and Toxic
Substances.
Therefore, 40 CFR part 763 is amended as follows:
PART 763--[AMENDED]
1. The authority citation for part 763 continues to read as
follows:
Authority: 15 U.S.C. 2605 and 2607(c).
2. By revising Sec. 763.163 to read as follows.
Sec. 763.163 Definitions.
For purposes of this subpart:
Act means the Toxic Substances Control Act, 15 U.S.C. 2601 et seq.
Agency means the United States Environmental Protection Agency.
Asbestos means the asbestiform varieties of: chrysotile
(serpentine); crocidolite (riebeckite); amosite (cummingtonite-
grunerite); tremolite; anthophyllite; and actinolite.
Asbestos-containing product means any product to which asbestos is
deliberately added in any concentration or which contains more than 1.0
percent asbestos by weight or area.
Chemical substance, has the same meaning as in section 3 of the
Act.
Commerce has the same meaning as in section 3 of the Act.
Commercial paper means an asbestos-containing product which is made
of paper intended for use as general insulation paper or muffler paper.
Major applications of commercial papers are insulation against fire,
heat transfer, and corrosion in circumstances that require a thin, but
durable, barrier.
Corrugated paper means an asbestos-containing product made of
corrugated paper, which is often cemented to a flat backing, may be
laminated with foils or other materials, and has a corrugated surface.
Major applications of asbestos corrugated paper include: thermal
insulation for pipe coverings; block insulation; panel insulation in
elevators; insulation in appliances; and insulation in low-pressure
steam, hot water, and process lines.
Customs territory of the United States means the 50 States, Puerto
Rico, and the District of Columbia.
Distribute in commerce has the same meaning as in section 3 of the
Act, but the term does not include actions taken with respect to an
asbestos-containing product (to sell, resale, deliver, or hold) in
connection with the end use of the product by persons who are users
(persons who use the product for its intended purpose after it is
manufactured or processed). The term also does not include distribution
by manufacturers, importers, and processors, and other persons solely
for purposes of disposal of an asbestos-containing product.
Flooring felt means an asbestos-containing product which is made of
paper felt intended for use as an underlayer for floor coverings, or to
be bonded to the underside of vinyl sheet flooring.
Import means to bring into the customs territory of the United
States, except for: (1) Shipment through the customs territory of the
United States for export without any use, processing, or disposal
within the customs territory of the United States; or (2) entering the
customs territory of the United States as a component of a product
during normal personal or business activities involving use of the
product.
Importer means anyone who imports a chemical substance, including a
chemical substance as part of a mixture or article, into the customs
territory of the United States. Importer includes the person primarily
liable for the payment of any duties on the merchandise or an
authorized agent acting on his or her behalf. The term includes as
appropriate:
(1) The consignee.
(2) The importer of record.
(3) The actual owner if an actual owner's declaration and
superseding bond has been filed in accordance with 19 CFR 141.20.
(4) The transferee, if the right to withdraw merchandise in a
bonded warehouse has been transferred in accordance with subpart C of
19 CFR Part 144.
Manufacture means to produce or manufacture in the United States.
Manufacturer means a person who produces or manufactures in the
United States.
New uses of asbestos means commercial uses of asbestos not
identified in Sec. 763.165 the manufacture, importation or processing
of which would be initiated for the first time after August 25, 1989.
Person means any natural person, firm, company, corporation, joint-
venture, partnership, sole proprietorship, association, or any other
business entity; any State or political subdivision thereof, or any
municipality; any interstate body and any department, agency, or
instrumentality of the Federal Government.
Process has the same meaning as in section 3 of the Act.
Processor has the same meaning as in section 3 of the Act.
Rollboard means an asbestos-containing product made of paper that
is produced in a continuous sheet, is flexible, and is rolled to
achieve a desired thickness. Asbestos rollboard consists of two sheets
of asbestos paper laminated together. Major applications of this
product include: office partitioning; garage paneling; linings for
stoves and electric switch boxes; and fire-proofing agent for security
boxes, safes, and files.
Specialty paper means an asbestos-containing product that is made
of paper intended for use as filters for beverages or other fluids or
as paper fill for cooling towers. Cooling tower fill consists of
asbestos paper that is used as a cooling agent for liquids from
industrial processes and air conditioning systems.
State has the same meaning as in section 3 of the Act.
Stock-on-hand means the products which are in the possession,
direction, or control of a person and are intended for distribution in
commerce.
United States has the same meaning as in section 3 of the Act.
3. By revising Sec. 763.165 to read as follows:
Sec. 763.165 Manufacture and importation prohibitions.
(a) After August 27, 1990, no person shall manufacture or import
the following asbestos-containing products, either for use in the
United States or for export: flooring felt and new uses of asbestos.
(b) After August 26, 1996, no person shall manufacture or import
the following asbestos-containing products, either for use in the
United States or for export: commercial paper, corrugated paper,
rollboard, and specialty paper.
(c) The import prohibitions of this subpart do not prohibit:
(1) The import into the customs territory of the United States of
products imported solely for shipment outside the customs territory of
the United States, unless further repackaging or processing of the
product is performed in the United States; or
(2) Activities involving purchases or acquisitions of small
quantities of products made outside the customs territory of the United
States for personal use in the United States.
4. By revising Sec. 763.167 to read as follows:
Sec. 763.167 Processing prohibitions.
(a) After August 27, 1990, no person shall process for any use,
either in the United States or for export, any of the asbestos-
containing products listed at Sec. 763.165(a).
(b) After August 26, 1996, no person shall process for any use,
either in the United States or for export, any of the asbestos-
containing products listed at Sec. 763.165(b).
5. By revising Sec. 763.169 to read as follows:
Sec. 763.169 Distribution in commerce prohibitions.
(a) After August 25, 1992, no person shall distribute in commerce,
either for use in the United States or for export, any of the asbestos-
containing products listed at Sec. 763.165(a).
(b) After August 25, 1997, no person shall distribute in commerce,
either for use in the United States or for export, any of the asbestos-
containing products listed at Sec. 763.165(b).
(c) A manufacturer, importer, processor, or any other person who is
subject to a ban on distribution in commerce in paragraph (a) or (b) of
this section must, within 6 months of the effective date of the ban of
a specific asbestos-containing product from distribution in commerce,
dispose of all their remaining stock-on-hand of that product, by means
that are in compliance with applicable local, State, and Federal
restrictions which are current at that time.
6. By revising Sec. 763.171 to read as follows:
Sec. 763.171 Labeling requirements.
(a) After August 27, 1990, manufacturers, importers, and processors
of all asbestos-containing products that are identified in
Sec. 763.165(a) shall label the products as specified in this subpart
at the time of manufacture, import, or processing. This requirement
includes labeling all manufacturers', importers', and processors'
stock-on-hand as of August 27, 1990.
(b) After August 25, 1995, manufacturers, importers, and processors
of all asbestos-containing products that are identified in
Sec. 763.165(b), shall label the products as specified in this subpart
at the time of manufacture, import, or processing. This requirement
includes labeling all manufacturers', importers', and processors'
stock-on-hand as of August 25, 1995.
(c) The label shall be placed directly on the visible exterior of
the wrappings and packaging in which the product is placed for sale,
shipment, or storage. If the product has more than one layer of
external wrapping or packaging, the label must be attached to the
innermost layer adjacent to the product. If the innermost layer of
product wrapping or packaging does not have a visible exterior surface
larger than 5 square inches, either a tag meeting the requirements of
paragraph (d) of this section must be securely attached to the
product's innermost layer of product wrapping or packaging, or a label
must be attached to the next outer layer of product packaging or
wrapping. Any products that are distributed in commerce to someone
other than the end user, shipped, or stored without packaging or
wrapping must be labeled or tagged directly on a visible exterior
surface of the product as described in paragraph (d) of this section.
(d)(1) Labels must be either printed directly on product packaging
or in the form of a sticker or tag made of plastic, paper, metal, or
other durable substances. Labels must be attached in such a manner that
they cannot be removed without defacing or destroying them. Product
labels shall appear as in paragraph (d)(2) of this section and consist
of block letters and numerals of color that contrasts with the
background of the label or tag. Labels shall be sufficiently durable to
equal or exceed the life, including storage and disposal, of the
product packaging or wrapping. The size of the label or tag must be at
least 15.25 cm (6 inches) on each side. If the product packaging is too
small to accommodate a label of this size, the label may be reduced in
size proportionately to the size of the product packaging or wrapping
down to a minimum 2.5 cm (1 inch) on each side if the product wrapping
or packaging has a visible exterior surface larger than 5 square
inches.
(2) Products subject to this subpart shall be labeled in English as
follows:
NOTICE
This product contains ASBESTOS. The U.S. Environmental
Protection Agency has banned the distribution in U.S. commerce of
this product under section 6 of the Toxic Substances Control Act (15
U.S.C. 2605) as of (insert effective date of ban on distribution in
commerce). Distribution of this product in commerce after this date
and intentionally removing or tampering with this label are
violations of Federal law.
(e) No one may intentionally remove, deface, cover, or otherwise
obscure or tamper with a label or sticker that has been applied in
compliance with this section, except when the product is used or
disposed of.
7. In Sec. 763.173 by revising the section heading and paragraphs
(a), (b), (c), and (g) to read as follows:
Sec. 763.173 Exemptions.
(a) Persons who are subject to the prohibitions imposed by
Secs. 763.165, 763.167, or 763.169 may file an application for an
exemption. Persons whose exemption applications are approved by the
Agency may manufacture, import, process, or distribute in commerce the
banned product as specified in the Agency's approval of the
application. No applicant for an exemption may continue the banned
activity that is the subject of an exemption application after the
effective date of the ban unless the Agency has granted the exemption
or the applicant receives an extension under paragraph (b)(4) or (5) of
this section.
(b) Application filing dates. (1) Applications for products
affected by the prohibitions under Secs. 763.165(a) and 763.167(a) may
be submitted at any time and will be either granted or denied by EPA as
soon as is feasible.
(2) Applications for products affected by the ban under
Sec. 763.169(a) may be submitted at any time and will be either granted
or denied by EPA as soon as is feasible.
(3) Applications for products affected by the ban under
Secs. 763.165(b) and 763.167(b) may not be submitted prior to February
27, 1995. Complete applications received after that date, but before
August 25, 1995, will be either granted or denied by the Agency prior
to the effective date of the ban for the product. Applications received
after August 25, 1995, will be either granted or denied by EPA as soon
as is feasible.
(4) Applications for products affected by the ban under
Sec. 763.169(b) may not be submitted prior to February 26, 1996.
Complete applications received after that date, but before August 26,
1996, will be either granted or denied by the Agency prior to the
effective date of the ban for the product. Applications received after
August 26, 1996, will be either granted or denied by EPA as soon as is
feasible.
(5) The Agency will consider an application for an exemption from a
ban under Sec. 763.169 for a product at the same time the applicant
submits an application for an exemption from a ban under Sec. 763.165
or Sec. 763.167 for that product. EPA will grant an exemption at that
time from a ban under Sec. 763.169 if the Agency determines it
appropriate to do so.
(6) If the Agency denies an application less than 30 days before
the effective date of a ban for a product, the applicant can continue
the activity for 30 days after receipt of the denial from the Agency.
(7) If the Agency fails to meet the deadlines stated in paragraphs
(b)(3) and (b)(4) of this section for granting or denying a complete
application in instances in which the deadline is before the effective
date of the ban to which the application applies, the applicant will be
granted an extension of 1 year from the Agency's deadline date. During
this extension period the applicant may continue the activity that is
the subject of the exemption application. The Agency will either grant
or deny the application during the extension period. The extension
period will terminate either on the date the Agency grants the
application or 30 days after the applicant receives the Agency's denial
of the application. However, no extension will be granted if the Agency
is scheduled to grant or deny an application at some date after the
effective date of the ban, pursuant to the deadlines stated in
paragraphs (b)(3) and (b)(4) of this section.
(c) Where to file. All applications must be submitted to the
following location: TSCA Docket Receipts Office (7407), Office of
Pollution Prevention and Toxics, U.S. Environmental Protection Agency,
Rm E-G99, 401 M St., SW., Washington, DC 20460, ATTENTION: Asbestos
Exemption. For information regarding the submission of exemptions
containing information claimed as confidential business information
(CBI), see Sec. 763.179.
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(g) If the application does not include all of the information
required in paragraph (d) of this section, the Agency will return it to
the applicant as incomplete and any resubmission of the application
will be considered a new application for purposes of the availability
of any extension period. If the application is substantially inadequate
to allow the Agency to make a reasoned judgment on any of the
information required in paragraph (d) of this section and the Agency
chooses to request additional information from the applicant, the
Agency may also determine that an extension period provided for in
paragraph (b)(5) of this section is unavailable to the applicant.
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[FR Doc. 94-15676 Filed 6-27-94; 8:45 am]
BILLING CODE 6560-50-F