CHEMICAL PROCESSING UNDER TSCA
                   (August 26, 1992)
            Background Information Document
       Office of  Pollution Prevention and Toxics
 Office of Prevention, Pesticides and Toxic Substances
         U.S. Environmental  Protection  Agency
                Washington,  D.C.  20460
NOTE: In creating this compilation,  EPA has attempted to
locate and include all relevant documents prepared by the
Agency since January 1, 1977, the effective date of TSCA.
EPA acknowledges the  possibility that  there may  be some
relevant materials  inadvertently overlooked by  EPA staff
and welcomes  the submission of such missing documents.

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                   DEFINITIONS




                       OF




CHEMICAL "PROCESS," "PROCESSOR" MUD  "PROCESSING"




         UNDER TSCA AND TSCA REGULATIONS
    BACKGROUND DOCUMENT  (1/77 THROUGH 10/90)

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                              INDEX





TSCA Legislative History  	    3



§2  Statutory Findings, Policy and Intent   	    9



§3  Definitions  	   10



§4  Testing  	   12



§5  PMNs	   19



    SNURs	.,,   29



§6  Regulation  	   31



    PCBs  	   33



    CFCS	^ . . .   41



    Asbestos  	   43



§7  Imminent Hazard	   48



§8  Recordkeeping and Reporting  	   49



   §8(a) Chemical Specific   	   51



   §8 (a) CAIR   	   55



   §8 (a) Inventory   	   91



   §8 (a) PAIR   			.,	   95



   §8 (a) Asbestos  	 154



   §8 (b) Inventory   	 159



   §8 (c) Allegations   	 160



   §8 (d) Health & Safety Studies   	 170



   §8(d) Asbestos	 176



   §8 (e) Substantial Risk   	 182



   §8(f) Definitions   	 183



8/92 Supplement to 10/90 Background Document  	 184



   Contents  	 185

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THE LEGISTLATIVE HISTORY OF TSCA

     The  Legislative History  of  TSCA  contains practically  no
discussion of  what constitutes  "processing"  under  section  3  of
TSCA.   In an  effort to  be  inclusive,  the  following are  a few
passages that vaguely relate to  the  definition,  but none of them
are more clear than the  statutory definition itself.  They are not
presented in any particular order.

The Conference Report discussion of TSCA section 8 states:

     "... The conference substitute  provides an illustrative
     list of the kinds of activities for which recordkeeping
     and reporting may  be required.   The list includes such
     information as the identity of the chemical, categories
     of use,  amounts manufactured or processed, by products,
     existing  data,  employees  exposed,  and  the manner  or
     method of  disposal.   The information specified may be
     required by the Administrator  'insofar  as known to the
     person  making  the  report  or   insofar  as  reasonably
     ascertainable'.  The conferees  intend that 'reasonably
     ascertainable1 standard be  an objective,  rather than a
     subjective one. Thus, the manufacturer or processor must
     provide information of which a reasonable person  similar-
     ly situated might  be expected to have knowledge.   The
     conference substitute retains the exemptions in the House
     amendment relating to reporting by small businesses.  The
     intent of the  conferees is to protect small manufacturers
     and  processors from  unreasonably  burdensome reporting
     requirements.  However, the conferees do not intend to
     deny the Administrator access to information which may be
     necessary  either  to enforce a final  rule or order.
     Therefore, the conferees have specifically authorized the
     Administrator to obtain reports  from small manufacturers
     and processors of  a chemical  substance  or mixture with
     respect to which a rule has  been proposed or promulgated
     under section 4, 5(b)(4),  or 6,  or with respect  to which
     an order or rule is in effect under section 5(e)  or 5(f) .
     Thus, once  a  rule  has been proposed,  the Administrator
     may,  by  rule, issued in  accordance  with  the   informal
     rulemaking procedures of section 553 of Title 5, United
     States Code,  require reporting from small manufacturers
     and processors  . .  .  ."

 [H.R. Rep. No. 1679, 94th Cong.,  2d Sess.  (1976), at  80, reprinted
 in.  Environmental  and  Natural  Resources Policy Division  of the
 Library of Congress, 94th Cong.  2d  Sess., A Legislative History of
 the Toxic Substances Control Act. (Com. Print  1976)  ("Leg. Hist.")
 at 693.]

 As  part of  the Senate  Consideration of  the  Conference Report,
 Senator Magnuson stated:

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     "A  vital  provision of  the  conference  substitute  is
     section  8,  which describes the authority  of  the [EPA]
     Administrator to require recordkeeping and reports from
     manufacturers and  processors,  and in  some cases other
     persons, with respect to  information concerning chemical
     substances.  The authority will be vital in determining
     what substances are being produced, what they are being
     produced  for,  and  other  information.    The  general
     reporting requirements generally reach manufacturers or
     processors of chemical substances. ..."

"Leg. Hist." at 726.


The Senate Report on the Senate version of TSCA states:

     "There are mixtures such as adhesives, paints and inks,
     which  can produce  chemical  substances  upon end use.
     Chemical  substances produced  upon  end use  of such mix-
     tures should  not be considered new chemical substances
     automatically  subject to  the premarket  notification
     provisions of this section.  Manufacture is  defined under
     section 3(a)(7)  to mean to 'import, produce, or manufac-
     ture for commercial purposes.'  These types  of substances
     would not be covered under the premarket  notification
     provisions  because  they  are not manufactured  for com-
     mercial  purpose,  per  se.   Similarly, minor  reactions
     occurring  incidental  to the  mixing  process  or  upon
     storage of such a mixture, such as the cross-linking of
     polymers,  would  not constitute a  basis  for subjecting
     such mixtures to the premarket notification provisions
     intended   for  new  chemical   substances  because  the
     resulting substances are  not manufactured for commercial
     purpose.

     "Such chemical substances arising during the formulation,
     storage  or use of such mixture should be considered as
     byproducts of the precursor substance or substances.  The
     responsibility for reporting and testing  such byproducts
     under the provisions of this legislation  would then fall
     upon the manufacturer  of the  precursor  substance.   Of
     course,  the  Administrator may specifically subject any
     mixture  to the premarket notification provisions."

H.R. Rep. No. 689,  94th Cong.  2d Sess., (1976)  at 19, reprinted in.
Legis. Hist,  at 175.


Regarding TSCA section 8:

     "This subsection also  contains an illustrative list of
     the  kind  of  information  which the  Administrator  may

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     require  of  manufacturers  or  processors  of  chemical
     substances.   Included  are  the identity  of substances,
     categories or proposed categories  of  use,  estimates of
     the amount to be produced, and estimates of the amount
     which will  be produced for  each of  its  categories or
     proposals  of use,  a  description  of byproducts,  all
     existing data concerning  the environmental  and health
     effects of the substance or mixture, and estimates of the
     number of  workers  who  will be exposed to  the chemical
     substance."

H.R. Rep.  No.  689,  94th Cong. 2d Sess., (1976)  at 22, reprinted inf
Leqis. Hist, at 178.
Additional Views of Mr. Baker:

     .  .  .  "This bill permits regulation of toxic chemicals-at
     points  in  the chain  of manufacture  and use  that are
     impossible to reach under existing laws."

H.R. Rep. No. 689,  94th Cong. 2d Sess.,  (1976)  at 89, reprinted in.
Leais.  Hist, at 205.


Senate Consideration of Senate Bill: .

     Mr.  Tunney:  "S.  3149  will close major gaps  in the law
     that leave the public  inadequately protected against the
     unregulated introduction of hazardous chemicals into the
     environment.   S.  3149 will assure that  chemicals will
     receive  careful  premarket scrutiny  before  they  are
     manufactured or distributed to the public."

H.R. Rep. No. 689,  94th Cong. 2d Sess.,  (1976)  at 91, reprinted in.
Legis.  Hist, at 207.

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     "... [The] Passage of S.  3149 would provide a means by
     which the public interest would be protected by assuring
     that safe and beneficial chemicals continue to be intro-
     duced  into the  marketplace  while insuring  that these
     chemical  substances that have unacceptable  health and
     environmental  costs associated  with them  are properly
     restricted. Existing Federal legislation simply does not
     provide  the means  by which  adverse  effects on human
     health  and  the  environment can  be   ascertained  and
     appropriate action  taken before chemical substances are
     first manufactured and introduced into the marketplace."

H.R. Rep. No.  689,  94th Cong. 2d Sess.,  (1976) at 99, reprinted in.
Legis. Hist, at 215.


The House Committee Report states in its discussion about the basis
for the legislation,

     . .  ."Further, tris 2,3-dibromopropyl phosphate, a fire
     retardant  widely  used  in  such  items as  children's
     pajamas,  has  been  shown to have mutagenic  effects  in
     microbial  systems.    And  there  are,  unfortunately,
     numerous  other  examples of  harm resulting from  the
     industrial uses  of  chemicals. .  ."

H.R. Rep.  No.  1341,  94th Cong.,  2d Sess.  (1976),  at 5, reprinted
in.  Environmental  and Natural  Resources  Policy Division  of the
Library of Congress, 94th Cong.  2d Sess., A Legislative History of
the Toxic Substances Control Act.  (Com. Print 1976) ("Leg.  Hist.")
at 413.
The House Committee Report says:

     "Although the term chemical substance excludes mixtures
     of chemical  substances,  mixtures  are not excluded from
     regulation under the bill.  However, mixtures are regu-
     lated  in  a  different  manner than chemical substances -
     they are not subject to the manufacturing and processing
     notices for  new chemical substances under section 5 and
     special findings are required before testing of them may
     be required  or before the  can be subject to rules under
     section 8 (a)  requiring recordkeeping and reporting for
     them."

H.R. Rep. No.  1341, 94th Cong.,  2d Sess.  (1976), at 12, reprinted
in. "Leg. Hist.") at 420.

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There is also some discussion of  "end  user"  v.  "manufacturer" in
the House Report:

     "For example, there are certain substances or mixtures,
     such as adhesives, paints,  inks, and drying oils, which
     during storage or upon end use, when exposed to environ-
     mental  factors  such  as  air,   moisture,  or  sunlight,
     undergo a chemical reaction  which produces  a different
     substance or mixture.  .  .  .In  such cases,  the chemical
     reaction is merely incidental to the end use or storage
     of the original substance or mixture.  The substance or
     mixture produced is not used as a chemical substance or
     mixture, per se.  It is not the Committee's intent that
     a person, such  as a painter, who  is engaged in the end
     use or storage activity in which such a chemical reaction
     occurs is to be considered a manufacturer because of the
     reaction.  Thus,  such  a  person would not be subject to
     the notification requirements of section 5 even though a
     chemical substances resulting  from the  reaction is not
     included in the inventory under section 8(b)."

H.R. Rep. No. 1341, 94th Cong.,  2d Sess. (1976),  at 13, reprinted
in, "Leg. Hist.") at 421.
The House Committee Report states that:

     "Subsection (j) provides that for purposes of section 5,
     the  terms "manufacture" and "process" means  to manu-
     facture or process  for  commercial purposes.   Since the
     term  "manufacture"  is   defined  to  include  "import",
     persons who intend  to import substances for commercial
     purposes  will  be  treated  the  same  as  a  domestic
     manufacturer under section 5.

     "By  the  use  of the term "for commercial  purposes" the
     Committee  does  not  intend  to  restrict  coverage  to
     substances manufactured or processed  "for  sale".   Any
     commercial purpose,  such as  use as a chemical inter-
     mediate  in a  manufacturing  process,  is  sufficient to
     bring  the manufacturing or  processing of  a substance
     within the ambit  of section  5.   The committee realizes
     that  there   are   certain   minor  reactions  occurring
     incidental to  the mixing process or upon  storage of a
     mixture,  such as the cross-linking of polymers.  Such a
     minor reaction may result in what would technically be

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     considered a  "new"  chemical  substance.   However, since
     the "new" substance is  not manufactured for commercial
     purposes per  se  it  would  not be subject to the notifi-
     cation provisions of the section."

H.R.  Rep.   No.  1341,  94th  Cong.,   2d  Sess.  (1976),  at  30-31,
reprinted in. Environmental and Natural Resources Policy Division
of  the  Library of  Congress, 94th Cong.  2d  Sess.,  A Legislative
History of  the Toxic  Substances  Control Act.  (Com.  Print 1976)
("Leg. Hist.'M at  437-438.
     U.S. SUPREME COURT RULING

     In Chevron U.S.A. Inc. v. Natural Resources Defense Council.
the  Supreme  Court  stated   that  in  reviewing   an  agency's
interpretation of a statute, the court's first task is to determine
"whether Congress  has directly spoken  to the precise question at
issue.   Chevron U.S.A. Inc. v. Natural Resources Defense Council.
467 U.S. 837, 842  (1984).  If  it has, the agency must give effect
to Congress1 intent.  Chevron at  842-43.   If  it has not, the Court
must defer to the agency interpretation if that interpretation is
a  reasonable  accommodation  of  conflicting  policies  that  were
committed to the agency's  care by the statute.'"  Chevron at 845
(citation omitted).

     Therefore, as the language of TSCA is very broad, EPA has the
ability to interpret the definition broadly.  If there are policy
reasons to  interpret  the definition  more narrowly, including but
not  limited to the need to  recognize  the cost  of regulation on
small business,  EPA may as a matter of  policy,  rather than as a
legal interpretation  of the statutory definition,  choose not to
apply the definition to  certain processors.  To do so, however, may
result in inconsistency among  programs.

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S2 ("FINDINGS. POLICY. AND INTENT.")

     TSCA (THE ACT)

     TSCA §2(a)(2)  states that the U.S. Congress found that "among
the many  chemical  substances and  mixtures which  are constantly
being developed  and  produced, there are some  whose manufacture,
processing,  distribution in commerce, use,  or disposal may present
an unreasonable risk of injury to health or the environment.  . ."
Further,  §2(b)(l)  of TSCA  states  that it  is  the policy  of the
United States that  "adequate data should be developed with respect
to the effect of  chemical substances and mixtures on health and the
environment and  that the development of such data should  be the
responsibility of those who manufacture and those who process  such
chemical substances and mixtures."

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S3 ("DEFINITIONS.")


     T8CA  (THE ACT)

     According to  §3(10)  of TSCA, "The  term 'process'  means the
preparation of a chemical substance or  mixture,  after  its manu-
facture, for distribution in commerce-

     " (A)  in the same form or physical  state as, or in a
           different form or physical  state from, that in
           which  it was received by  the  person so pre-
           paring such substance or mixture, or

     "(B)  as part  of an article containing  the chemical
           substance of mixture."

     According to  §3(11) of TSCA, "The term 'processor'  means any
person who processes a chemical substance or mixture."

     According to §3(4)  of TSCA, "The term 'distribute in commerce1
and  'distribution  in commerce1 when used  to  describe  an action
taken with respect to  a chemical  substance or mixture or article
containing a [chemical] substance or  mixture,  mean to sell, or the
sale of, the substance, mixture,  or article in commerce; to intro-
duce or deliver for introduction into commerce, or  the introduction
or delivery for introduction into commerce of,  the substance, mix-
ture, or article;  or to hold, or the  holding of, the substance,
mixture, or article after its introduction  into commerce."

     It  is important to note that §3 of TSCA does not define the
term "article."
     QUESTION AND ANSWER DOCUMENTS

     A July 25, 1986 "Question and Answer Summary" prepared by EPA
following a June 10, 1986 Agency-sponsored seminar on the industry
obligations under TSCA presents the following with regard to the
term processor:

     "Question:  How are  'processors' of chemical substances
     defined? When  does a person become a processor and thus
     subject to reporting and recordkeeping requirements? What
     about a situation where a  person controls all distribu-
     tion of a  substance manufactured by another firm?

     "Answer:  Under TSCA,  a  processor prepared  a  chemical
     substance  or  mixture, after  the  substance has  been
     manufactured or imported,  for distribution in commerce in
     one  of  three  forms:  (1)  In the same  form  or physical
     state  as  that in which  the  substance  or  mixture was

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                                                               11

     received by the processing firm, (2) In a different form
     or physical state from  that  in which the  substance  or
     mixture was received by the processing  firm,  or  (3)  As
     part of an article containing the  chemical  substance  or
     mixture.   A  person  becomes a  processor of a chemical
     substance or mixture by undertaking that 'preparation1
     step.   The  definition of processing includes repackaging
     for commercial distribution, the manufacture of mixtures,
     and the production of  articles.

     "If a  person controls  all  distribution of  a  substance
     manufactured by another firm,  and  that company does not
     prepare, repackage,  or otherwise process the  substance
     prior to distribution, the firm is a distributor but not
     a processor of the substance.  If,any such preparation
     does occur, the  firm is considered by EPA to be [both] a
     processor and a distributor.

     "Persons should refer  to TSCA section  3 and the general
     definition sections  of specific regulatory  requirements
     for definitions of key regulatory  terms. The  following
     sections in Title 40 of the Code of Federal Regulations
     (CFR)  contain definitions for some of EPA's regulatory
     actions with regard to existing chemical substances:  §§
     704.3 and 712.3 (section 8 (a) reporting and recordkeeping
     rules);  §  716.3  (section 8(d)  health and  safety data
     rules);  §§ 721.3  and  (by reference)  720.3   (section
     5(a)(2)  significant  new use  rules  (SNURS)); §  717.3
     (section 8(c)  recordkeeping requirements);  and § 707.63
     (export notification requirements)."


     The OTS Existing Chemicals Program  (ECP) "QUESTION AND ANSWER
SUMMARY" prepared following the  May 5,  1987 Agency-sponsored TSCA
seminar on industry obligations  under TSCA  presents the following
information regarding process:

     "Q.29. Summarize small business exemptions  under TSCA.

     "A.29	The Agency has defined  'small processor'
     on a rule-by-rule basis  and intends to continue to do  so
     for the foreseeable  future	"

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S4 ("TESTING OF CHEMICAL SUBSTANCES AND MIXTURES.")


     T8CA  (THE ACT)

     According to §4(b) (3) (B) of TSCA, "The following persons shall
be required  to  conduct tests and submit  data  on a chemical sub-
stance or mixture subject to . . . [a §4 test rule]:  ...

     11 (ii) Each  person who processes or  intends to process
     such chemical substance or mixture if the Administrator
     makes a  [proscribed]  finding  .  .  .  with respect to the
     processing of such substance or mixture.

     "(iii) Each person who . . . processes or intends . . .
     to process such substance or mixture if the Administrator
     makes a  [proscribed]  finding  .  .  .  with respect to the
     distribution  in  commerce,  use,  or  disposal of  such
     chemical substance or mixture."


     PROPOSED S4 TEST RULES

     Part III E. ("Responsibility for Testing") of a July 18, 1980
proposed TSCA §4 test rule  (45 FR 48524-48566) on  chloromethane and
chlorinated benzenes gives  the following information on pages 48534
and 48535 about chemical processing and processors:

     "In most cases,  EPA expects that other activities besides
     manufacturing  may present exposure  opportunities  and,
     therefore,  an exposure risk,  so that  processors  will
     usually  be  required to test  along  with manufacturers.
     This may present practical problems,  however, because the
     statutory definition of processing is quite broad . . .
     .  [(the  full  TSCA §3  definitions  of both processor and
     process  is quoted in the FR at this point)].   It should
     be noted that the term 'processor1 under TSCA has a much
     broader  meaning than  the  common or industry's meaning.
     The  following examples illustrate activities  that would
     cause a  person  to be considered a processor under TSCA.

     "Example 1.  A person  reacts chemicals X and Y to produce
     a new chemical substance,  Z.   This person  is a processor
     of X and Y and a manufacturer of Z.   This  example is the
     closest  to industry's meaning of the term.

     "Example 2.    A person  who purchases  or manufactures
     chemicals and then mixes or reacts them is  a  processor of
     each chemical  if  the mixtures or  compounds are  dis-
     tributed in commerce.  Processors that fall within this
     example  include producers of paints,  automotive products
      (e.g.,  antifreeze,  oil additives,  etc.)  and  specialty

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                                                          13
cleaners and floor wax preparations.  This example covers
a large segment of the processor class.

"Example  3.    A person  who heats  and mixes  powdered
resins, fillers, pigments,  and plasticizers to  form a
homogeneous mix which  is then formed  into  sheets  of a
desired thickness would be a processor  of each component
because the  components are distributed in  commerce as
part of an article.  Tire manufacturers and producers of
rubber  and  plastic  articles  would  fall  within  this
example.   [The] processors  [cited]  in this example are
similar to those in example 2. except that the products
that are distributed in commerce are articles rather than
chemicals.

"Example 4.  A person who purchases steel cans and then
coats the cans with a resin would be a processor of the
resin, since the resin is now  a part of an article which
is  distributed in commerce.   Similarly,  a  person who
purchases printing ink and then applies the ink to paper
or boxes would be a processor of the ink which has become
a part of an article.   Also tanneries and textile mills
would be processors of the dyes used to color the leather
and fabric.  Persons in these examples add chemicals to
previously produced articles.

The above examples are not meant to be inclusive.  They
are only provided to illustrate the breadth of the TSCA
definition of processor and assist persons in determining
whether their activities fall  within the TSCA meaning of
•process.'   The  1977  Census of Manufacturers indicates
that there are approximately 11,000 establishments in the
Standard  Industrial Classification (SIC)  28,  Chemicals
and Allied Products. Examples 1 and 2 would fall within
SIC 28.   Processors in example 3  are in SIC 30,  Rubber
and Miscellaneous Plastic Products, and number approxi-
mately  12,000  establishments.   The types  of processors
[cited]  in  example   4   are  in  SIC  27,  Printing  and
Publishing;  SIC  226,  Textile Finishing; and  SIC 3479,
Metal  Coating  and  Allied  Services,  and  account  for
approximately. 45,000 establishments.

"The Agency is concerned that,  if  all processors covered
by the Act were subject to a [§4]  test  rule, there would
be  difficulties experienced by EPA and the industry in
administering the exemption  and reimbursement provisions
of TSCA Section 4. Consequently, EPA has examined various
alternatives  for  exempting  certain kinds  of processors
from all  [§4]  test rules  or specific ones.   Examples of
them are  (1) excluding some processors from coverage on
the  basis that  their principle  activity  is not  of a
nature that has traditionally  been considered processing

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                                                               14

     within the chemical industry, (2)  restricting coverage of
     the [§4] rule to members of the chemical industry, e.g.,
     SIC 28,  (3)   excluding  processors who  incorporate  the
     substances or mixtures into an article in commerce,  (4)
     excluding all processors downstream of the point at which
     the subject  chemical is  reacted or formulated  into  a
     substance  or  mixture with  a  new  identity,  and  (5)
     excluding those processors who are small businesses.

     "Each of these [alternatives] has substantial advantages
     and disadvantages, and  EPA does  not attempt to resolve
     them in  this proposal.   At a public meeting  [held] on
     September  25, 1979,  and in subsequent conversations,
     members of the chemical industry expressed an interest in
     deciding  how to  allocate  costs  and  testing  responsi-
     bilities most fairly.   Although  the comments recently
     submitted  by the Chemical Manufacturers Association on
     the advance notice of proposed rulemaking  [(44 FR 54284;
     September 19, 1979)]  on data reimbursement deal with this
     question, they do not offer a solution to the problem of
     who is subject to the [TSCA §4] rule.  EPA is requesting
     comments on  the approach it should  take  under  §4 with
     respect  to processors,  including comments  on the five
     alternatives  listed above and any other approaches which
     would  limit  the  applicability of §4 test rules,  yet be
     equitable  and provide flexibility."


     Part III  C.   ("Persons Required to Test") of  a May  20, 1987
proposed TSCA §4  test  rule (52 FR 19107) for cyclohexane presents
the following statements  regarding chemical processors:

     11..  .  Processors are required  to  test  if  the  findings are
     based on processors  ("process"  is defined  in section 3(10) of
     TSCA as  the  preparation of a  chemical substance or mixture,
     after  its  manufacture, for distribution in commerce)..."
     CORRESPONDENCE

     A  September 13, 1979  letter  from Warren Muir,  DAA for the
Office of Testing and Evaluation  (OTE) of OTS/EPA to Karim Ahmed of
the  Natural  Resources  Defense  Council   (NRDC)   contained  a
"Discussion  Issue" paper which that  presents a discussion of the
subject: "How  should the term  "processor" be defined for purposes
of TSCA  section 4 rules?".   This processor-related discussion is
quoted below:

     "The term 'process1 as defined in section 3(10) of TSCA means
     "the preparation of a chemical substance or mixture,  after its
     manufacturers,  for distribution  in commerce—

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                                                               15

          11 (A)  in the  same form or physical state as, or
          in a different  form or physical  state  from,
          that in which  it was received by the person so
          preparing such substance or mixture,  or

          11 (B)  as part of  an  article containing  the
          chemical substance or mixture.

     "Under that  definition, many persons could  be required to test
     a  chemical,  including  people  who  might not  normally  be
     considered processors as that  term is used by  the chemical
     industry.   It appears clear,  for instance, that Company X is
     a processor of chemicals A and B if it mixes A and B to make
     a mixture A/B, and that Company Y is a processor  of a resin if
     it  uses  the resin  to  coat  the  inside of   the  cans  it
     distributes. Under the statutory definition, distributors who
     repackage bulk chemicals in  smaller  containers  for consumer
     use, merchants who tint and mix paints, printers,  firms that
     extrude plastics or other materials,  and firms that paint or
     coat materials prior  to sale  could  be required  to  test as
     processors or seek an exemption from testing.

     "This result suggests substantial practical problems because
     many thousands of people could  be required to test, including
     many persons who are not connected to the  chemical industry.
     Should EPA therefore  limit the  number of type of "processors"
     subject to a §4 test rule?   If so, how should this be done?
     What ^are  the implications for test rules, exemptions,  and
     reimbursement?"

     A December  19,  1979  letter  from EPA to Melvin C.  Laracey,
Esq., Consumers  Power  Company of Jackson,  Michigan  provides the
following processor-related information:

     "We interpret the term 'use for commercial purposes' to
     cover potentially any use by  a  person who is involved in
     a  commercial activity  as  opposed to  a  charitable  or
     private and personal activity.  In the context of section
     15 of the Act,  the  term would cover, among other things,
     activities which meet the definition of 'processing1 as
     well  as  activities  which  result   in  the  ultimate
     'consumption' of the chemicals.

     11  ... An  example of  "using for a commercial purpose"
     that is also "processing" within the meaning of the Act
     is incorporation of a chemical substance into a mixture
     or article.  . . "

     [The remaining page(s) of this EPA letter was not found.]

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                                                                16

           UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
                         WASHINGTON, D.C. 20460

                              August 2,  1989
Patrick J. Kurd
Keller and Heckman
1150 17th Street N.W.
Suite 1000
Washington, D.C. 20036

Dear Mr. Kurd:

     I  have   received   your  June  15,  1989  letter:  requesting
clarification  of  the  application  of  Section  4  of  the  Toxic
Substances  Control  Act  (TSCA)  to certain  activities  of National
Paint and Coatings Association  (NPCA) members and whether they are
treated as  "processing" under this section. Processors along with
manufacturers  are specified  in section 4(b)(3)(B)  as  classes of
persons potentially covered  by  section  4.

     According  .to  section  4(b)(3)(B),  the applicability  of  a
specific test rule to either  "manufacturers" or "processors" depends
on the findings on which the test rule is based.  Manufacturers are
covered if  the test  rule finding is based on manufacturing opera-
tions, processors are covered if the test rule finding  is based on
processing  activities,  and  both manufacturers  and  processors are
covered if test rule findings are based on distribution in commerce,
use, or disposal of the substance or mixture.  The terms "manufac-
turer" and  "processor"  are defined by TSCA  and its regulations.

     The term  "process" is defined in section 3 of TSCA as;

     ".  .  . the  preparation of a chemical substance  or mixture,
after its manufacture,  for distribution in  commerce-

           (A)  in the   same  form or  physical  state as,  or  in  a
     different  form  or  physical  state  from, that in which  it is
     received by the person so preparing such substance  or mixture,
     or
           (B)  as  part of  an  article  containing  the  chemical
     substance  or mixture."

Using this definition,  we can evaluate the three examples presented
in your letter  as to their status as  "processors".

     To evaluate whether an activity constitutes processing under
TSCA,  EPA looks at whether  there is  "preparation" of  a chemical
substance   or   mixture   and  whether  that  preparation  is  "for
distribution in commerce." Application  of a coating constitutes
"preparation" and may constitute distribution in commerce under some
circumstances.  Both  elements  must  be  present  to be  considered
processing.

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                                                                17

     In the first example in your letter, the addition of a tint or
colorant to containers of paints containing a substance subject to
a section 4 test rule at a retail store would make the retail store
a "processor" under TSCA.  Clearly in this case  there is a "prepara-
tion" of a  chemical substance or mixture,  by  further  addition of
ingredients, for distribution in commerce (i.e. sale to consumers)
in the same form or physical state as that in which it is received
by the person preparing the substance or mixture.

     I will address the third example before addressing the second
example. The application of finished industrial  coatings in original
equipment manufacturing  facilities  to appliances,  automobiles, or
heavy equipment is clearly processing. The equipment in question is
being prepared  for distribution  in commerce.  The  application of
coatings to that equipment is part of  the preparation for distribu-
tion in commerce. Thus the substances  in such coatings are prepared
for distribution in commerce as part of the equipment.  The form or
physical state of the substances  in the coatings is likely to change
during such processing, i.e. during  curing or drying (any substance
in the coating which evaporates  upon application and therefore does
not remain in the coating or on the equipment would not be distri-
buted in  commerce with the  equipment and therefore would  not be
processed).

     With respect to the second example, the spray application of an
automotive  refinish coating containing  a  substance subject  to a
section 4  test  rule may  constitute processing depending  upon the
circumstances.  EPA has identified three circumstances  in which a
person  would be applying  automotive refinish  coatings.  In  one
circumstance an individual is applying the refinish  coatings in the
course of repairing or repainting the individual's  own car. In the
second circumstance a person is in the  business  of applying such
coatings  in the course  of  repairing  or repainting cars  owned by
individuals. In the third circumstance,  a person is  in the business
of repairing or repainting cars for resale purposes (the cars may be
owned by the person or another person).

     First, with respect to individuals applying such coatings to
their own cars,  there is no processing as that term is used in TSCA,
because whether or not the individuals  are preparing the coating,
they  are not  preparing  the cars  for  distribution in  commerce.
Because they already own the cars,  the  cars are not being further
distributed  in  commerce. Thus,  even  if the individual  mixes the
coating  in  some fashion  before  application,the  individual  is not
engaged in preparation  for.distribution in commerce.

     Second, with respect to a  person  engaged in  the  business of
applying such a coating  in the course of repairing  or repainting a
car  owned by  an  individual,  whether the  person   is a  processor
depends on  the  circumstances of the coating application.  A person
engaged in the business of applying coatings to  cars  is distributing
such  coatings  in  commerce  just as a  person  who  sells  coatings

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                                                                18

without the additional service of applying them would be. The person
would be a processor of the substance in the coating if the person
engages  in preparing  the coating  material (for  example,  adding
pigments or solvents, but not  stirring the coating or transferring
the  coating  from  its  container  to  the  spray  equipment)  before
applying it,  because  such activities would constitute preparation
for distribution in commerce.   However,  the person would not be (a
processor  if  the person  only applies a coating which  the person
obtains from another (without further preparation of  the coating on
of the coating other than stirring or placing it into spray equip-
ment) because there is no preparation of the coating by the person
before it  is  distributed  in  commerce (i.e.  the act of sale to the
individual car owner) . In  this circumstance, the car is owned by the
end user and is not being further distributed in commerce. Thus, the
coating is not being prepared  for distribution in commerce as part
of the car as is the case in the circumstances discussed below and
in response to your third example.

     Third, with respect to  a person engaged in  the  business of
applying such coatings in  the course of repairing or repainting cars
for resale, this would be the same situation as a person applying
industrial coatings to original equipment  discussed above.  Such a
person would  be  processing the substances  in  the  coating by pre-
paring the cars.for distribution in commerce. The substances in the
coating would be prepared for distribution in  commerce as part of
the repainted car.

     The other issue  presented in  your letter  is the impact of 40
CFR  section  790.48(b). This section  is clear  in attributing TSCA
section  15 violations to manufacturers and  processors  who  do not
submit notices of  intent  to  test (or exemption applications)  when
they are required to under a test rule.  I should point out that the
penalties  provided  for in  section 16  of  TSCA for  violations of
section 4 test rules do not involve the further  prohibition of manu-
facture or processing  of  such  chemicals.

     It has been EPA's experience under section  4 that manufacturers
end  up doing  the testing in most test  rules and seldom,  if ever,
seek reimbursement from processors under section 4. More likely is
that the cost of testing  recouped  by passing the test costs on in
the  cost of  the  affected products.  Thus,  I do not believe  that
members  of the  National  Paint and  Coatings Association who are
processors as described above are likely to be directly affected by
section  4  rule  requirements  involving  substances used  in  their
paints and coatings.

                          Sincerely yours,


                          Charles L. Elkins
                          Director
                          Office of Toxic Substances

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                                                                19

S5 ("MANUFACTURING AND PROCESSING NOTICES."1

     "PMNs"

     TSCA (THE ACT)

     According to §5(a)(l)(A) of TSCA, no person  (unless otherwise
exempted in  accordance with §5(h)) may  ".  .   . manufacture a new
chemical substance  on or after  the 30th day after the  date the
Administrator first publisheds the list required by section 8(b)."

     CODE OF FEDERAL REGULATIONS (CFR)

     Part 720 — Premanufacture Notification
     Subpart A - General Provisions

     According to 40 CFR §720.3(c),  "'Article'  means a manufactured
item  (1)  which  is  formed to  a specific  shape or  design during
manufacture, (2)  which has end use function(s)  dependent in whole or
in part upon its shape or design during end use, and (3) which has
either no change of composition during its end use  or only those
changes of  composition which have no  commercial  purpose  separate
from  that  of  the  article   and  that  may occur  as  described  in
§720.36(g)(5)  [sic  -  misprint,  should be §720.30(h)],  except that
fluids and particles are not considered articles regardless of shape
or design."

     According  to  40 CFR  §720.3(n),  "'Intermediate1  means  any
chemical  substance that  is  consumed,  in  whole  or  in . part,  in
chemical reactions used for the intentional manufacture of another
chemical  substance(s)  or mixture(s),  or  that  is  intentionally
present for  the purpose  of altering  the rates  of  such  chemical
reactions."

     According to  40  CFR §721.3(r),  "'Manufacture or  import for
commercial purposes' means:

          " (1) To import, produce, or manufacture with the purpose
     of obtaining an immediate or eventual commercial advantage for
     the manufacturer or importer, and includes, among other things,
      'manufacture' of any amount of a chemical  substance or mixture:

               "(i) For commercial distribution, including for test
          marketing.

               "(ii) For use by the manufacturer,  including use for
          product research and development or  as an intermediate.

          "(2) The term also applies to substances  that  are produced
     coincidentally  during   the  manufacture,   processing,  use,  or
     disposal of another substance or  mixture,  including byproducts

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                                                                20

     that are  separated from that other  substance  or mixture and
     impurities that  remain  in  that  substance or mixture.  Bypro-
     ducts  and impurities without  separate commercial  value are
     nonetheless produced for the purpose  of obtaining a commercial
     advantage, since they are part of the manufacture of a chemical
     substance for commercial purposes."

     According to 40 CFR §720.3(s), "'Manufacture solely for export1
means to manufacture  or import  for  commercial purposes a chemical
substance  solely  for  export  from   the  United  States  under the
following restrictions  on activities in the United States:

          11 (1) Distribution  in  commerce  is limited to purposes of
     export or processing solely for export as  defined in §721.3 of
     this chapter.

          "(2) The manufacturer or importer, and any  person to whom
     the  substance   is  distributed  for   purposes   of  export  or
     processing  solely for  export  (as  defined  in §721.3  of this
     chapter), may not use the substance except in small quantities
     solely  for  research   and   development   in  accordance  with
     §720.36."

     According to 40  CFR §720.3(aa), the term  "Process" means "the
preparation  of a chemical substance or mixture,  after  its  manu-
facture,  for distribution  in commerce  (1)  in  the   same  form or
physical state as,  or in a different form or  physical state  from,
that  in which  it was  received by   the  person  so preparing such
substance  or mixture,  or (2)  as part  of a  mixture or article
containing the chemical substance or mixture."

     According to 40  CFR §720.3 (bb),  the term  "Processor" means any
person who processes  a  chemical substance or mixture."

     Part 720 — Premanufacture Notification
     Subpart B - Applicability

     According to 40 CFR §720.30(h) , the following chemicals are not
subject  to  the  premanufacture  notification  requirements:   "The
chemical substances described below:  (Although they are manufactured
for commercial purposes under the  Act, they are not manufactured for
distribution in commerce as  chemical substances per  se and have no
commercial purpose separate from the substance, mixture, or article
of which they  are a part.)

          "(1) Any  impurity.

          "(2)  Any  byproduct which  is   not  used for  commercial
     purposes.

          "(3) Any chemical substance which results from a chemical
     reaction  which  occurs  incidental  to  exposure of  another

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                                                                21

     chemical  substance,  mixture,  or  article  to  environmental
     factors   such   as   air,   moisture,   microbial  organisms,   or
     sunlight.

          "(4) Any chemical substance which results from a chemical
     reaction  that  occurs  incidental  to storage  or disposal  of
     another chemical substance,  mixture,  or article.

          "(5) Any chemical substance which results from a chemical
     reaction  that  occurs   upon  end  use   of  another  chemical
     substance,  mixture, or  article such as an  adhesive,  paint,
     miscellaneous  cleanser  or other  housekeeping  product,  fuel
     additive,  water softening  and treatment  agent,  photographic
     film,  battery,  match, or  safety flare, and which is not itself
     manufactured or imported for distribution  in commerce or  for
     use as an intermediate.

          "(6) Any chemical substance which results from a chemical
     reaction  that  occurs upon use of  curable plastic  or rubber
     molding   compounds,  inks,   drying  oils,   metal   finishing
     compounds,   adhesives,   or  paints,   or  any  other  chemical
     substance formed during the manufacture of an article destined
     for the marketplace  without further chemical change  of  the
     chemical substance except for those chemical changes that occur
     as described elsewhere  in this paragraph.

          "(7) Any chemical substance which results from a chemical
     reaction  that occurs when (i) a stabilizer, colorant, odorant,
     antioxidant, filler, solvent, carrier, surfactant, plasticizer,
     corrosion  inhibitor,   antifoamer  or  defoamer,  dispersant,
     precipitation  inhibitor,  binder,  emulsifier,  deemulsifier,
     dewatering  agent, agglomerating agent, adhesion promoter, flow
     modifier,  pH neutralizer, sequesterant,  coagulant,  chelating
     agent, or quality  control  reagent functions  as intended,  or
     (ii) a chemical substance,  which is intended solely to impart
     a   specific  physiochemical  characteristic,   functions   as
     intended.

          "(8) Any nonisolated intermediate."
     Part 723 — Premanufacture Notification Exemptions
     Subpart B - Specific Exemptions

     According to 40 CFR §723.175(b)(2),  the term "article" means "a
manufactured item (i) which  is  formed to a specific shape or design
during manufacture,  (ii)  which  has end use function(s) dependent in
whole or in part upon its shape or design during end use, and (iii)
which has either no change  of  chemical  composition  during its end
use or only those changes of composition which have no commercial
purpose separate from  that  of the  article  and that may  occur as

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                                                                22

described in §710.2 of this chapter except that fluids and particles
are not considered articles regardless of shape or design."

     According to  40 CFR §723.175(b) (15) , the  term  "'Used in the
manufacturing or processing of an instant photographic or peel-apart
article1 when used to  describe activities involving  a new chemical
substance, means the new chemical substance  (i) is included in the
article, or (ii)  is an  intermediate to a chemical substance included
in  the  article  or is  one  of a  series  of  intermediates  used to
manufacture a chemical substance included in the article."


     PROPOSED RULE  Premanufacture Review Program
                    Proposed Processor Requirements
                    45 Fed. Reg. 54642 (15 August 1980)

     11  .  .  .  'Commercial purposes'  includes the  purposes of
     distribution in commerce and use as an  intermediate  .  . .
     •Process,'   'process   for   commercial   purposes,'   and
     •processor'  .  .  . include the preparation of a chemical
     substance or  mixture in  the same or a different form or
     physical state from that in which it was received."

     Id., at 54647:

     "There are  two scenarios in which a facility treating a
     byproduct which  is a hazardous waste under RCRA may fall
     under TSCA.  First, if  such a facility treats a  byproduct
     containing  a  new chemical  substance  and the  facility
     extracts the new  chemical substance for  sale in  commerce,
     it  would be  processing the  exempt substance  (the by-
     product) for a nonexempt commercial purpose.  However, in
     this case the  facility also would be the manufacturer of
     the new chemical  substance and thus would be required to
     submit a  notice  under TSCA  section 5(a)(1)(A)  (even if
     there is no processor notification rule).   Second, if the
     facility  treats  a byproduct containing  a  new chemical
     substance and  processes the byproduct to produce another
     chemical  (not a new substance)  for distribution in com-
     merce,  it would  be required to  notify  EPA  under this
     proposed rule-as  a processor	

     "As  proposed,  this processor  notification  rule  would
     require reporting by facilities treating hazardous wastes
     when  the  wastes they  treat  are  byproducts   and  are
     processed for  a  nonexempt commercial purpose."

     Id., at 54650

     "As noted above,  persons who only use chemical substances
     for a commercial purpose and do not process or manufacture
     them  are   not  themselves   subject  to   the  section  5

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                                                           23
premanufacture notification requirement.  However,  30 days
after publication of the Revised Inventory, and prior to
the promulgation of the final processor notification rule,
EPA will  apply TSCA section 15(2) to users of chemical
substances  manufactured   for   a   nonexempt  commercial
purpose.   (If  this  nonexempt  substance  were processed
before use, the Agency would  still apply section 15(2) to
the users.)"
OTHER ROLES

PROPOSED RULE  49 Fed. Reg. 50207 (27 December 1984):

"To be  manufactured solely for export,  a chemical  sub-
stance  may be  processed  only by  the  manufacturer or
importer.  Since the substance cannot be  used  in the  U.S.
by any  person,  such processing is limited to processing
that  does not  involve  use.    In  general,  export-only
processing is limited to preparing the substance, either
alone or as part of a mixture,  for export and can include
formulating a mixture and packaging the product.  If the
new chemical substance  is  an  intermediate to be used in
the U.S. to make another chemical intended for  export, the
new intermediate  is not manufactured  solely  for export
because it is used in the U.S.  Other types of processing,
such as dyeing fabric or incorporating a substance into an
article,  would  also constitute  use  and,  thus,  would
require a PMN before  the activity could take place."

FINAL RULE  51  Fed. Reg. 15100  (22 April  1986):

"Section 12 (a) of TSCA exempts from  PMN new chemical  sub-
stances  which  are manufactured or  processed  for export
only  and will  not be  used  in the U.S.   The  proposed
revision  of  § 720.3(s)  would  have limited processing to
activities occurring under  the control of  the manufacturer
or importer.  In this final rule, EPA modifies  the defini-
tion  of  the  term  'manufacture  solely  for  export1 to
include processing  which is not under the direct control
of a manufacturer or importer, as long as  it occurs solely
for export.  (The rule cross-references the definition of
 •process  solely for export1  in 40 CFR 721.3.)  However,
the manufacturer must know, by means of a  contract or  some
other  evidence,  that the processing is  occurring for
export  only.   For  substances  to  qualify as export-only
chemicals,  their  processing   must  also  be  limited to
activities  which  do  not  involve  use.    For  example,
formulating  a  mixture constitutes  a legitimate form of
processing  for  export-only chemicals, but  their use as
intermediates in  chemical  production does not."

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                                                                24

     EPA CORRESPONDENCE

The following is excerpted from a sanitized October 20, 1987 letter
from Stephanie G. Roan (CCD/OTS)  regarding the application of a new
chemical finish to a fiber to enhance its qualities when  the fiber
is later formed into a fabric.  The company argued that the finish
was not  "used"  until the exported fiber  was  turned into a fabric
outside  the  United States,  because the qualities  imparted by the
finish were  not utilized until then.  The Agency disagreed,  con-
cluding that the application process itself constituted a 'use1 of
the finishing chemical,  and that a PMN would be required for the
chemical.  The  letter states as follows:

     "The statute  and regulations do  not  define 'use.1   How-
     ever,  Merriam  Webster's  Ninth  Collegiate  Dictionary
     defines  'use1  as   'the  act  or  practice  of employing
     something: EMPLOYMENT, APPLICATION .   . .  [,] a method or
     manner  of  employing or applying  something .  .  .  [,]  a
     particular service  or  end.'   Throughout your letter, in
     describing the process  at issue here,  you employ the words
     'apply,' 'applied,'  and 'application,1 which, according to
     Webster's Dictionary, are synonyms for 'use.1  In applying
     the  [CBI]  to  the  [CBI]  fibers,  [CBI] would be using the
     substance  for  a  commercial purpose to  increase  the
     marketability of the product in order to  obtain financial
     benefit.  Therefore, we believe  that  the  process that you
     describe in  your letter constitutes  'use in the United
     States'  which,  according  to the  above  provisions, is
     ineligible for the  export exemption."

Letter  from  Stephanie  G.  Roan to  Anne  B.  Sayigh  of Parexel
International Corporation,  11 December 1987:

     "This replies to your September 25,  1987 letter  to Mr.
     Dayton Eckerson regarding the premanufacture notification
     (PMN)  requirements  for  a new  chemical   substance  in a
     coating of thermal transfer film ribbon which  is imported
     into the United States.  You state your  opinion that the
     new chemical substance is imported 'as part of an article'
     (i.e., the ribbon)  and  therefore is not subject to  the PMN
     requirements.

     "According to your letter, the ink coating, which contains
     the new chemical substance,  is deposited onto paper during
     use.  It is the Agency's policy that  a chemical substance
     is  not  'part of an  article1 where  (1)  the article  is a
     container  of "the substance  used  to  transport, contain,
     and/or dispense it,  and/or  (2) the substance  is intended
     to  be removed (or  released)  from the article and has an
     end use or commercial  purpose separate from the article.
     A substance  which  is intended to be removed or released
     from its article/container,  and serves a function during

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                                                                25

     use related to the removal/release of  the substance,  is
     considered  to  have  an end  use  or  commercial  purpose
     separate  from  the  article.    Since  the new  chemical
     substance is intended to be released from the ribbon and
     serves a function during use related to  the release, it is
     not 'part of an article1 and would not be excluded from
     the PMN requirements.  The question  of whether or not a
     chemical reaction occurs during deposition of  the ink onto
     the paper is not the determining  factor here,  since the
     ink containing  the  new chemical  substance  is  clearly
     intended to be released from the ribbon."

Letter from Stephanie G. Roan to Braden R.  Allenby  of AT&T,  3 May
1988:

     "This replies to your  January  12,  1988 letter regarding
     the applicability  of  the  Toxic Substances  Control  Act
     section 5(h)(3)  research and development  (R&D)  exemption
     for a new chemical substance which  is  used as  a quality
     control indicator to test the integrity  of circuit boards.

     "You correctly conclude that the  R&D exemption from the
     premanufacture   notification   (PNM)    requirements   is
     applicable  to  the  new  chemical  substance  since  AT&T
     produces the quality  control  indicator  solely to test the
     performance  characteristics  of  the circuit  board  and
     complies with all the requirements of the R&D  rule  (40 CFR
     720.36 and 720.78) .  Further, I agree that AT&T  is free to
     distribute the circuit boards (articles) incorporating the
     quality  control  indicator  in  commerce  after the  R&D
     activity is completed, without  submitting a  PMN for the
     new chemical substance, in accordance with 40 CFR 720.36
     (d) and  (f)."

Letter from Stephanie G. Roan to Braden R. Allenby of AT&T, 13 May
1988:

     "This  replies to  your February 17,  1988 letter seeking
     confirmation  of  AT&T's  understanding  of the Agency's
     policy regarding the applicability of the Toxic Substances
     Control  Act section  5  premanufacture notification (PMN)
     requirements to chemical substances imported 'as part of
     an article.'

     "In your letter,,  you  correctly conclude that  'a substance
     must not be intended to be removed from the article as a
     result of anticipated use, and the substance cannot have
     a commercial end  use  function separate  from the article,'
     in order to be considered 'part  of an article.'  Further,
     I  agree that the  material in  a vented  capacitor,  the
     mercury  compound in a relay switch, and the electrolytes
     contained  in  wet cell  batteries,  as  described  in your

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                                                                26

     letter, are not subject to the PMN requirements, since the
     chemical substances are not intended to be released from
     the  articles  during  normal  use and  have  no  function
     separate from  their function  in  the articles.  Although
     the chemical substances may be removed or released from
     the articles during use, the removal or release serves no
     end use function.  The chemical substances are considered
     to be  'part  of  the article,  and therefore are excluded
     from the PMN requirements at 40 CFR 720.22(b)(1)."

Letter from Carol Hetfield to Daniel J. Manelli of Graham & James,
copy undated (late  1988 or early 1989):

     "In your letter,  you  ask  for  a  clarification of whether
     the Environmental Protection Agency (EPA) would consider
     brake  linings,  brake  disc pads,  drum brakes, automobile
     bumpers, clutch  facings, and automobiles as articles for
     purposes  of the Toxic Substances  Control  Act  (TSCA).
     Referring  to  comment  21 of the  Inventory  Reporting
     Requirement  (42  FR 64583)  , EPA responded to the issue of
     the importation of chemical substances as part of articles
     by stating:

          "'Chemical  substances or  mixtures which  are
          imported  within  articles,   such  as  in drums,
          barrels,  or other containers used for purposes
          of transportation or  containment are considered
          to be chemical substances imported in bulk and
          are  subject to  these  reporting  requirements.
          Chemical   substances  or  mixtures   will   be
          considered   to  be   imported  as  part  of  an
          article,  if the substance  or mixture  is  not
          intended  to be removed  from that article  and
          has no  end use or commercial purpose separate
          from the  article of which it is a part.'

     "In  other  words, even particles  such  as  those  found in
     brake  linings  are exempt  from Inventory or PMN reporting
     when  imported as  components  of   articles,  provided the
     articles which they accompany in  commerce are not solely
     containers  for  them,   and they  are not intended  to be
     released during  use,  and  do  not  serve a function during
     use  that  is related  to  their release.   Therefore, EPA
     would  agree  that all  the  above  manufactured items would
     meet the definition of article at 40 CFR Part 720.3 (c) and
     would  not  be  subject to Premanufacture  Notification
     reporting  requirements.    In  addition,  importers  of
     articles  are  not required  to  certify their  shipment
     according to section  13 of TSCA unless a rule under TSCA
     specifically requires them to do  so."

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                                                                27

Letter from  Mary E. Cushmac to  Hiroshi Uyama of  Japan Technical
Information Center Inc., 2 May 1989:

     "This responds to  your  letter,  dated February 28, 1989,
     regarding   the  applicability  of   the  premanufacture
     notification (PMN)  requirements to a new polymer used to
     coat  magnetic  carriers  that carry  toner particles  in
     photocopying operations.  You also  inquired about the PMN
     status  of  constituents of  a laundry detergent  that  is
     imported in retail packages.

     "According  to  your letter,  the magnetic carriers coated
     with  the polymer  release the  toner particles  and  are
     recycled and not released from the photocopying system.
     It  is not  clear from  the information  provided  in your
     letter  whether or not  the  carriers  are  'part  of  an
     article1  and  you  may  wish  to  provide a more complete
     description for our review.   However, it appears that the
     magnetic   carriers  themselves  would  be   viewed   as
     'particles' rather than as  'articles'  because of their
     size  (100 microns)  and the lack of evidence that they meet
     the specific criteria  set forth in the definition of an
     article  at  40  CFR 720.3(c).   Consequently,  the polymer
     would not  be  viewed 'as  part of an article'  and would
     therefore be subject to the PMN requirements if it  is not
     included in the TSCA Inventory.

     "Further,  any  new chemical  substance  in  the  laundry
     detergent would be subject to the PMN requirements, since
     the laundry detergent would be viewed as a mixture.  Any
     chemical substance that is manufactured (imported) solely
     for a use that comes under the authority of the Food and
     Drug  Administration, would not be subject to TSCA."


Letter from  Lawrence W. Culleen  to John H. Gray  of  Dow Chemical
Corporation,  28  June 1989:

     "This responds to  your two  letters  .  .  . regarding the
     applicability  of the Toxic Substances Control  Act  (TSCA)
     to Dow's proposed  large-scale recycling of rigid plastic
     containers  to  recover   polyethylene  and  polyethylene
     terephthalate  (PET) .  . .

     "For  both sources  identified above, Dow intends to grind
     the containers into granules and recover polyethylene and
     PET through a number of physical separations and cleaning
     operations.    No  chemical reactions  would  occur.   EPA
     agrees  that these  operations constitute 'processing' for
     purposes of TSCA."

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                                                                28

Letter  from Mary  E.  Cushmac  to  James R.  Keith of  Dow Chemical
Company, 12 December 1989:

     "This responds to your letter, dated September 28, 1989,
     seeking additional guidance regarding the applicability of
     the Toxic  Substances Control Act (TSCA) premanufacture
     notification (PMN) requirements to Dow1 s proposed plastics
     recycling  activities.  .   . In this  letter,  you describe
     Dow's  proposed  recycling of  plastic  parts made  from
     thermoset plastic-like polyurethanes.  As an example, Dow
     plans to grind off-spec parts or  scrap  from  an automotive
     molding operation into a powder and use it as a filler in
     the injection molding of  other articles.

     "Based on our analysis of the information provided in your
     letter  and  the  Office  of  Toxic  Substances'  previous
     guidance, the off-spec material/scrap which  was lawfully
     manufactured  during the manufacture of articles can be
     processed and used  as a filler without  the  submission of
     a  PMN.   As you were previously advised, OTS agrees with
     Dow's  rationale  that  section 15(2)  of TSCA  says  that
     processors  are not  in violation  unless a chemical sub-
     stance was  actually illegally manufactured."

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                                                                29
     "SNURs1
     TSCA (THE ACT)

     According to §5(a)(1)(B)  of TSCA, no person (unless otherwise
exempted in accordance with §5(h)) may "... process any chemical
substance for a use which the Administrator has determined  ... is
a significant new use ..."

     According to  TSCA §5(i)  ["DEFINITION."], the  term "process"
means "processing for commercial purposes."

     §5 of TSCA does not  provide a separate definition for the term
"process(ing) for commercial purposes."


     CODE OF FEDERAL REGULATIONS  (CFR)

     Part 721 — Significant New Uses of Chemical Substances
     Subpart A - General Provisions

     According to  40  CFR §721.3,  the term "Process for commercial
purposes" means "the preparation of a chemical substance or mixture
containing the  chemical  substance, after manufacture  of  the sub-
stance, for distribution in commerce with the purpose of obtaining
an  immediate  or eventual commercial  advantage for  the processor.
Processing of  any  amount of a  chemical  substance  or mixture con-
taining the chemical substance  is  included in this definition.  If
a chemical substance or mixture containing impurities is processed
for  commercial purposes,  the   impurities  also  are  processed for
commercial purposes."

     According  to   40  CFR  §721.3,  the  term "Process  solely for
export" means "to process for commercial  purposes solely for export
from the United States under the following restrictions on activity
in  the United  States:  Processing must be performed at sites under
the control of the  processor; distribution in commerce is limited to
purposes  of  export;  and the  processor  may  not use  the  chemical
substance  except  in  small quantities  solely  for research and
development."

     QUESTION AND  ANSWER DOCUMENTS

     A July  25, 1986  "Question  and Answer Summary" prepared by EPA
following a June 10,  1986 Agency-sponsored seminar on the industry
obligations  under  TSCA presents the  following with regard to the
term processor under a significant new use rule (SNUR)  issued by the
Agency under §5(a)(2) of TSCA:

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                                                           30
"Question; To what extent are the [§5] SNUR requirements
applicable to  manufacturers of  inadvertently  generated
ingredients (e.g., a particular  ingredient is an inactive
ingredient as part of the major product component)?

"Answer; SNUR requirements  apply to  ...  processors of
specific  chemical substances listed  in  the SNUR.  If  a
company intends to ... process for commercial purposes
a chemical substance  listed in  a SNUR for  a significant
new use designated in  that rule,  the company  is subject to
the  SNUR.    EPA has  established  certain exemptions  to
SNURs, codified at 40 CFR  § 721.19,  including  the . .  .
processing of a SNUR chemical solely as an impurity or
byproduct (see §721.19 for exact language)	"

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                                                                31

S6 ("REGULATION OF HAZARDOUS CHEMICAL SUBSTANCES AND MIXTURES."1

     TSCA (THE ACT)

     According to  §6(a)  of TSCA ("SCOPE OF  REGULATION"),  "If the
Administrator finds  that there is a reasonable  basis to conclude
that the . . . processing  ... of a chemical substance or mixture
.  .  .  presents  or will present an unreasonable  risk of injury to
health or the environment,  the Administrator shall by rule apply one
or more of the following requirements to such substance or mixture
to the extent necessary  to  protect adequately  against such risk
using the least burdensome requirement:

     "(1) A requirement (A) prohibiting the .  . . processing  .
     .  .  of such  substance  or mixture, or  (B)  limiting the
     amount  of  such  substance or mixture which  may be ...
     processed  ...

     "(2) A requirement (A) prohibiting the .  . . processing  .
     . . of such substance or mixture for  (i)  a particular use
     or  (ii) a particular  use  in a concentration in excess of
     a  level  specified  by  the  Administrator  in  the rule
     imposing the  requirement,  or  (B)  limiting the amount of
     such substance  or mixture which may be  ... processed  .
     . . for  (i) a particular use or (ii) a particular use in
     a concentration in excess  of  a level  specified by the
     Administrator in the  rule imposing the requirement.

     "(3) A requirement that such substance or mixture or any
     article  containing such substance or  mixture be marked
     with  or accompanied by clear and  adequate  warnings and
     instructions  .  .  . prescribed by the Administrator.

    " "(4) A requirement that .  . . processors of such substance
     or  mixture make and retain records of the processes used
     to  ... process such substance or mixture and monitor or
     conduct tests which are reasonable and necessary to assure
     compliance with the requirements  of any rule  under this
     subsection	

     "(6)(A) A requirement prohibiting  or otherwise regulating
     any manner or method of disposal of such substance or mix-
     ture, or any article containing such substance or mixture
     by  its  .  .  .  processor  	

     "(7) A requirement directing .  . .  processors of such sub-
     stance  or mixture  (A) to give notice of  such unreasonable
     risk  of injury  ...  [to  distributors and others in pos-
     session of or exposed to the substance or mixture],  (B) to
     give  public notice  of  such risk  of  injury,  and  (C)  to
     replace or repurchase such substance or mixture as elected
     by  the  person to  which the  requirement  is directed."

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                                                                32

     According  to  §6(b)   of  TSCA  ("QUALITY  CONTROL"),   "If  the
Administrator has a reasonable basis to conclude that a particular
. .  .  processor is manufacturing or processing  a chemical substance
or mixture  in a manner which unintentionally  causes the chemical
substance or mixture to present or which will cause it to present an
unreasonable risk of injury to health or the environment —

     11 (1) the  Administrator may by order require  such  .  .  .
     processor to submit a description of the relevant quality
     control  procedures  followed  in the  manufacturing  or
     processing of such chemical substance or mixture; and

     "(2) if the Administrator determines —

          (A)  that   such  quality   control  procedures  are
          inadequate  to  prevent the  chemical substance  or
          mixture  from presenting such  risk  of  injury,  the
          Administrator  may order  .  .  .  the processor  to
          revise such quality control procedures to the extent
          necessary to remedy such inadequacy; or

          (B) that the use of such quality control procedures
          has  resulted in the  distribution  in  commerce  of
          chemical  substances  or mixtures  which  present  an
          unreasonable  risk  of  injury  to  health  or  the
          environment,  the Administrator may  order the .  .  .
          processor  to to  (i)  give  notice  of such  risk  to
          processors  or distributors  in  commerce  of any such
          substance or mixture,  or to both,  and, to the extent
          reasonably  ascertainable,  to  any other  person  in
          possession of or exposed to any such  substance, (ii)
          to  give public  notice  of  such risk, and  (iii)  to
          provide  such replacement  or repurchase  of any such
          substance or mixture  as is necessary to adequately
          protect health  or the environment.

     "A  determination under  subparagraph   (A)   or  (B)  of
     paragraph   (2)   shall  be   made  on  the  record  after
     opportunity for hearing in accordance with section 554 of
     title  5, United States Code. Any .  . . processor subject
     to  a  requirement to replace  or repurchase  a chemical
     substance  or  mixture may  elect either  to  replace  or
     repurchase the substance or mixture  and shall  take either
     such action in the manner described by the Administrator."

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                                                                33

     POLYCHLORINATED BIPHENYLS (PCBs)


     CODE OF FEDERAL REGULATIONS (CFR)

     Part 761  —  Polychlorinated Biphenyls  (PCBs)  Manufacturing.
     Processing. Distribution in Commerce,  and Use Prohibitions
     Subpart A - General

     According  to  40  CFR  §761.3,   a   "PCB  Article"  means  "any
manufactured article, other than a PCB Container, that contains PCBs
and whose surface(s) has been in direct contact with  PCBs.   "PCB
Article" includes  capacitors,  transformers, electric motors, pumps,
pipes, and  any  other manufactured item  (1)  which is  formed  to a
specific shape or design during manufacture,  (2)  which has end use
function(s)  dependent in whole or in part upon its shape or design
during end  use, and (3)  which has  either no change  of  chemical
composition during its  end use or only those changes of composition
which have  no  commercial purpose  separate from  that of  the PCB
Article."

     40 CFR §761.3 states further that the term "Process" means "the
preparation  of   a  chemical   substance  or   mixture,   after  its
manufacture, for distribution in commerce:  (1) in the same form or
physical state  as,  or  in a different form  or physical state from,
that  in  which  it was  received  by  the  person so preparing  such
substance or mixture,   or (2)  as  part  of an article containing
thehemical substance or mixture."


WORDING FROM THE ACT
§ 6  REGULATION OF HAZARDOUS CHEMICAL SUBSTANCES AND MIXTURES.

     (e)  POLYCHLORINATED BIPHENYLS

     Section 6(e) of TSCA requires that within six months after the
effective  date  of the  Act  the  Administrator shall  promulgate
regulations to —

     (1)(B)  Provide  "...  instructions  with  respect  to  their
processing,  distribution in  commerce,  use, or disposal  or  with
respect  to any combination of such activities."

     (2) (A) "... effective one year after the effective date of this
Act no person may manufacture, process, or distribute in commerce or
use any polychlorinated biphenyl  in a manner other than in a totally
enclosed manner."

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                                                                34

     (B) "The Administrator may by rule authorize the manufacture,
processing, distribution in commerce or use  (or any combination of
such activities)  of  any polychlorinated  biphenyl  ..." if he finds
that it will not present an unreasonable risk to human  health or the
environment.

     (3)(A) "Except  as  provided in subparagraphs (B) and  (C) —
(ii) no person  may  process or distribute  in commerce  any poly-
chlorinated biphenyl after two and one-half years after such date."

     The Act allows any person to  petition the Administrator for an
exemption from the above requirements.  The Administrator  may grant
or deny this petition by rule.
WORDING FROM FEDERAL REGISTER NOTICES
       ?? FR June 7. 1978 - Proposed Rule (40 CFR Part 761)

Polychlorinated Biphenyls (PCBs); Manufacturing, Processing,
    Distribution in Commerce, and Use Bans


Preamble, page 24805

"Manufacture and  Process for Commercial Purposes.   The proposed
rule  applies to manufacturing  (including importation)  and pro-
cessing which  is performed  for  commercial purposes.  *Commercial
Purposes' means for  distribution  in commerce,  including for test
marketing purposes, and for use  by the manufacturer, including for
use  as a chemical  precursor.   By  restricting the scope  of the
definitions  of * manufacture' and  ^processing'  found in  TSCA to
apply to only those activities that  are considered *for commercial
purposes', EPA would not regulate certain activities such as the
manufacture  of a chemical  that results in  an  unintentional PCB
impurity.    However,   because   the  proposed rule   prohibits  the
distribution in commerce of  PCB  mixtures, the product would have to
be processed to reduce  the PCB concentration to  below 50 ppm before
distribution  in commerce.   The proposal  would also  permit the
processing of products and plant wastes  to concentrate PCBs if the
purpose is to dispose of the PCBs  and reduce  the PCB concentration
in the final product."

Preamble, page 24807 (column 1)

     "According to  section  6(e) of  TSCA,  disposal  is an activity
separate from processing and distribution in commerce. Any prepara-
tion or  processing  for disposal is  considered  to be disposal and
not  distribution  in  commerce or processing.   Therefore,  any such
activity,  if in the course of compliance with pertinent disposal

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                                                               35

requirements, is not subject either to the January 1,  1978, totally
enclosed manner requirements or to the July 1, 1979, bans."

Preamble, page 24807 (column 2)

     "NOTE: - The term  *distribution  in commerce1  is  used to refer
to the sale of a PCB.  However, it also means the  delivery of a PCB
in conjunction with a sale for purposes of resale.  An example of
the latter is a distributor who buys from the manufacturer and then
resells to retailers; while the PCBs are in his inventory, they are
being  held  for  further distribution   in  commerce.    However,
distribution in commerce does not include the holding of PCBs for
purposes  solely of use  by the  holder.    For purposes of  TSCA,
xprocessing' is limited to that processing which  takes place after
manufacture of the PCB in preparation for distribution in commerce.
xProcessing1 does not include  processing  performed by the owner of
the PCB subsequent to distribution in commerce for his own use.

     The  servicing of a  PCB transformer  is an example of how all
these concepts fit together.   If  a PCB transformer is removed from
service and returned to the owner's own service shop  where the PCB
dielectric fluid is added to  it,  the  servicing could  be covered by
a use authorization.  However,  if  that same transformer was sent to
a transformer  service company that added PCBs to the transformer,
the servicing would be both processing and distribution in commerce
since the PCB dielectric  fluid would be sold by the service company
to the  transformer  owner (thus the title  to the PCBs  would have
passed from one owner to another). To continue this  activity, the
transformer  service  company would  need  authorizations  for both
processing and distribution in commerce.   In addition, the service
company would have to petition for, and receive,  an exemption each
year to  continue this activity after June 30, 1979.  Even though
the actions  performed in each shop  are  the same, the transformer
service company is subject to  much more rigorous  requirements than
the transformer owner.

     As  in  the transformer  servicing   example  above,  a  person
servicing a  computer who does not own that computer  is considered
to be processing and distributing in  commerce if  he installs a PCB
capacitor in the computer.  To continue that practice after July 1,
1979, an  exemption will be required.   Finally,  a  person who leases
a computer  may not  sell  that  computer after July 1, 1979, unless
the computer has been leased for no less than one year.  A person
could apply for an exemption so that he could sell a computer which
has been  leased  for less than one year."

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                                                               36


          FR Mav 31.  1979 - Final  Rule (40 CFR Part  761)

   (Polychlorinated Biphenyls (PCBs)  Manufacturing,  Processing,
        Distribution in  Commerce,  and Use Prohibitions)

Preamble, page  31525


         "Manufacturing" Versus "Processing"  of PCB  Items


"After considering the comments, EPA reexamined the ^manufacturing'
versus *processing1  issue  and  concluded  that PCB Article and PCB
Equipment production is  'processing*  of PCBs»  not 'manufacture* of
PCBs.  This conclusion  is based on an analysis of the activities of
manufacturing,  processing, distribution in commerce, and use with
respect   to   chemical   substances.      EPA  determined   that
*manufacturing1  a chemical  substance involves only  the  actual
creation of the chemical substance (or of  a substance contaminated
with  PCBs).     The   other  activities   are  distinguished  from
xmanufacturing'  because  they   involve  the  use of  the  already
existing substance.  *Processing1  PCBs includes activities such as
placing   previously  manufactured   PCBs	into	capac i tor s	or
transformers.    While  these  activities   may be  referred  to  as
xmanufacturing'   of  PCB  Articles,   they  do  not  involve  the
Manufacture1  of the PCBs,  only  the * processing1  of  PCBs.   The
^distribution  in commerce1  and *use' of  PCBs generally coincides
with  the  distribution  and use  of  the  PCB  Articles  and  PCB
Equipment.   Thus,  the  ban of PCB  ^manufacture1 applies solely to
the  manufacture of PCBs,  as defined in  §761.2 (a).  Bans  of all
other activities, namely processing,  distribution in commerce, and
use,  apply  both to PCBs  as  a substance and  PCB  Items.    This
interpretation  of  the  terms  ^manufacture'   and   ^process'  also
accords with the manner  in which Congress  intended the requirements
of section  6(e)(3) of TSCA to  be  %phased-in' over time.

     The  change  in  EPA's  use  of  the terms  xmanufacturing'  and
^processing', is reflected in the definition of PCBs.  The proposed
definition  of  ^PCB* and  xPCBs'  is  included in both PCB Article and
PCB  Equipment   (see § 761.2 (q)  at  43 FR 24813).   The  final rule
changes  the definition of  *PCB'  and  *PCBs'  in  § 761.2 (s)  by
applying  these terms only to  chemical substances  (see  preamble
II.A.  for  more  detailed  discussion).    PCB  Equipment  and  PCB
Articles  are no  longer  included  in the definition of XPCB'  and
'PCBs' but  are  included  in a separate term,  XPCB Items,1  which is
defined  in  § 761.2(x)."

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                                                               37


      FR May  31.  1979  -  Interim  Procedures  (40  CFR Part 750)

(Procedures for Rulemaking Under Section  6 of the Toxic Substances
Control Act; Interim Procedural Rules for Exemptions
From the Polychlorinated Biphenyl (PCB)  Processing and Distribution
in Commerce Prohibitions)


Preamble,  page 31558

     "Unless EPA grants  exemptions,  all PCB processing and distri-
bution in commerce will be banned after  July l, 1979 pursuant to
section 6(e)(3)(A)(ii) of TSCA.   These  activities  include, but are
not necessarily  limited to:  the processing  and distribution in
commerce of dielectric fluid for PCB  Transformers, PCB-Contaminated
Transformers,  PCB Railroad Transformers,  and PCB Electromagnets;
the distribution  in  commerce of PCB Articles  (such as small PCB
Capacitors); the  processing (i.e.,  building)  and distribution in
commerce of PCB Equipment  (including the manufacture of fluorescent
light  ballasts,  television sets, air  conditioners and microwave
ovens  and  the sale  of  such  PCB Equipment) ;  the  processing and
distribution in  commerce  of PCBs for servicing mining equipment;
the processing and distribution in commerce of  chemical substances
and mixtures that contain 50 ppm or greater  PCB as impurities or
contaminants (including  diarylide and phthalocyanine pigments, some
aluminum chloride, and  some phenylchlorosilanes)."

Preamble, page 31559

      "Petitions  concerning the  manufacture  (i.e., processing) of
PCB Equipment  involving incorporation of PCB Articles into equip-
ment  must  be  submitted on an  individual  basis.   Although this
activity in itself may  present a low potential risk, the activity
results in  the wide dissemination of  small  PCB Capacitors.   The
disposal of such capacitors  is not controlled  once  the capacitors
are processed  into PCB  Equipment.  Since most  PCB Equipment manu-
facturers  have converted  to non-PCB  Capacitors,   the  number of
potential petitioners for  exemptions to manufacture PCB Equipment
should be small."
Codified  (40 CFR 750.31fan. Page 31560

      "(7) Processing of PCB Articles into FOB Equipment.  A person
who  processes  (incorporates)  PCB  Articles  (such  as  small PCB
Capacitors) into PCB Equipment may submit a petition on behalf of
himself  and all  persons  who  further process  or  distribute in
commerce  PCB  Equipment built by the petitioner.   For example, a
builder of motors who places small PCB Capacitors in the motors may
submit  a  petition  on  behalf  of  all  persons  who  process or
incorporate motors built by the petitioner into other pieces of PCB

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                                                               38

Equipment: and all those who sell the equipment.  Such a petition is
not required to identify the  persons who distribute  in commerce or
further process  the PCB Equipment.  A separate petition must be
filed,  however,   by  each  processor  of  PCB  Articles   into  PCB
Equipment."

     "(8) Processing of PCB Equipment  into Other PCB Equipment.  A
person who processes  (incorporates) PCB  Equipment into other PCB
Equipment  may submit  a petition  on  behalf  of himself  and  all
persons who further process or distribute in commerce PCB Equipment
built  by the  petitioner.    Such  a petition  is not  required to
identify the persons who distribute in commerce or further process
the PCB Equipment.  If a petition has been  filed under subparagraph
(a) (7)  by  the builder of  the  original  PCB  Equipment,  no other
petition is required."


     FR September 26.  1988 - Proposed Rule  (40  CFR Part 761)

(Polychlorinated  Biphenyls;  Notification  and Manifesting for PCB
                        Waste Activities)

Preamble, page 37438

     "...  PCB waste  may also  be  * generated1  by those  who  ...
process or distribute  in commerce PCB wastes  in a form other than
previously manifested,  ..."


       FR December  21.  1989  - Final Rule  (40  CFR Part 761)

(Polychlorinated  Biphenyls;  Notification  and Manifesting for PCB
                        Waste Activities)

Preamble, page 52717

     "... an owner of the PCB material would be the  generator when
the owner:

     "...  (3) Causes PCB-containing treatment residuals  to be
generated  on-site  during  servicing or  processing for  disposal
operations conducted  on-site by the owner or  by a contractor."

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                                                                39


WORDING FROM THE CODE OF FEDERAL REGULATIONS


40 CFR PART 750

750.31 (Filing of petitions for exemption.)

     11 (a)(2) Contaminated  substances  and mixtures — processing.
. . . For  example,  persons who process  a PCB-contaminated pigment
into printing inks may combine their petitions into one petition.
   it
• • •

     [(a)(7) and (a)(8) are the same as above]


40 CFR PART 761


761.3 (Definitions)

     "xProcess1 means  the  preparation of a chemical substance  or
mixture, after its manufacture, for distribution  in commerce:

     (1)  In the same form or physical state as, or in a different
form or physical state from, that in which  it was  received by the
person so preparing such substance or mixture, or

     (2)  As part of an article containing  the chemical substance
or mixture."

     11 xRecycled PCBs1  means all  those PCBs which appear in the
processing of paper products or asphalt roofing materials from PCB-
contaminated raw materials. Processes which recycle PCBs must meet
the  following  requirements:"  [the  requirements are   effluent
limitations].

761 .--20  (Prohibitions)

     (c)(2)  "PCBs at  concentrations of 50  ppm or  greater, or PCB
Items with PCB concentrations of 50 ppm or greater may be processed
and distributed in commerce in compliance with the requirements  of
this  Part  for  purposes  of  disposal  in  accordance  with the
requirements of § 761.60."

     (c) (4)  "PCBs  at  concentrations  of less than 50 ppm, or PCB
Items,  with  PCB  concentrations  of  less  than  50  ppm,  may   be
processed and distributed  in commerce  for purposes of disposal."

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                                                               40


761.30 (Authorizations)

     GENERAL  —  Processing  and  distribution  in  commerce  for
purposes  of  servicing PCB  electrical  equipment,  research  and
development,  and  use  as  a  mounting  medium  in microscopy is
permitted only for persons that are granted an exemption under  TSCA
6(e)(3)(B).

761.60 (Disposal requirements)

     "NOTE:  Except as provided in § 761.75(b) (8) (id.).,., liquid  PCBs
shall not be processed into non-liquid forms to circumvent the  high
temperature incineration requirements of § 761.60(a)7"

761.185   (Certification  program  and  retention  of   records by
importers  and persons generating PCBs  in  excluded manufacturing
processes)

     "(a) ... manufacturers with processes inadvertently generating
PCBs and  importers of  products containing inadvertently generated
PCBs must report to EPA ... "


WORDING FROM  SUPPORT DOCUMENTS
PCB Q & A

     11 ... Also, PCBs at any concentration may be processed  (i.e.,
prepared and/or packaged for distribution in commerce)  for purposes
of disposal  [§761.20(c) (2)]."
TSCA COMPLIANCE PROGRAM POLICY No. 6-PCB-2

     "EPA  reviewed  its  interpretation  of  the  PCB  regulations
regarding physical separation and found that the original PCB rules
clearly do not exempt PCB processing activities (including physical
separation  techniques) from  the  disposal  requirements.   While
activities  which  process  or distribute  in  commerce  PCBs  for
purposes of disposal are not subject to processing and distribution
in  commerce   bans,  such   activities  are  subject  to  disposal
regulations."

     "... Filtering PCBs from the dielectric fluid of transformers
and returning  that fluid to the  transformer is an example of this
type of  activity.   Because the  processed  liquids and solids are
returned  or  reused  in regulated  equipment,  EPA controls  the
ultimate disposition of all the processed materials and no disposal
requirements are circumvented."

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                                                               41

     "CHLOROFLUOROCARBONS"

     FINAL  RULE  [43 Fed. Reg. 11318,  (17 March 1978)]

     "... The economic effects will be  felt by three major
     groups in the chlorofluorocarbon industry: manufacturers,
     processors  (fillers), and distributors  (marketers).  .  .
     .  Fillers,   on  the other  hand,  will  be significantly
     affected  ..."

     "Proposed  §  762.12  did  not prohibit processing of
     chlorofluorocarbon  propellants  for  use in pesticide
     products.  EPA requested comments on whether  TSCA section
     3(2) (B) (ii)  permits EPA to regulate under TSCA  the  pro-
     cessing  of  chlorofluorocarbons which may take  place as
     part  of the manufacture  of pesticide  products (42 FR
     24545).  No comments on  this point were received. Having
     considered  the issue further, both  in connection  with
     this  regulation  and  the  TSCA section  8 (a) inventory
     reporting regulation,  EPA has concluded that there is
     sufficient  authority under TSCA to ban the processing of
     chlorofluorocarbons for use  in pesticides (i.e., incor-
     poration of chlorofluorocarbons into aerosol  pesticides) .
                          *     •     •
     "The change in § 762.12  does not  significantly alter the
     practical impact of this  regulation because a ban on
     manufacturing for pesticide uses was  previously  proposed
     (§ 762.11).  It will,  however, greatly aid the Agency in
     its enforcement  efforts since the enforcement  emphasis
     will be  on  processors."

     "The definitions for  .  .  .  'processor1  . .   . have  been
     deleted  from  the rule.   These  words  have the exact
     definitions given to them  in TSCA  (15 U.S.C.  2602),  and
     there  is  no need to repeat the definition in the rule.

     "The   definitions  for  'manufacture,'  'processing,'
     •distribute in commerce, ' and 'distribution  in commerce'
     have  also been omitted.   The deletions of   the special
     provisions  relating to exports which were included in the
     proposed rule now make these definitions identical to the
     ones appearing in TSCA."

     OTHER  DOCUMENTS

     EPA Enforcement  Facts  and  Strategy;   Chlorofluorocarbons
(CFCs). 15  November  1979    [released by  Pesticides  and  Toxic
Substances  Enforcement Division]:

     "Any  manufacturer,  bulk distributor, bulk  importer, or
     processor (filler)  of chlorofluorocarbons is subject to

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                                                          42
the  rule,  as  are importers  and  exporters  of  aerosol
products."

"There are five CFC manufacturers and approximately 800
aerosol fillers in the United States. .  ."

"Enforcement efforts will focus on  accounting for CFCs
purchased by fillers.  The Agency will try to make sure
that all CFCs purchased for aerosol propellant uses are
being employed  in exempt products,  and  that the exemp-
tions given are not being abused.
                                                • •-,/„.
"Inspections will be limited to those fillers currently
buying   CFCs.      Violations  by  manufacturers   and
distributors  can only  occur if  there are  associated
filling  (processing) violations.  . ."

"There are approximately 800 aerosol fillers.  ('Filler1
is the term used  in the trade; 'processors' is the term
used in the rule and in TSCA.) About one quarter of them
have purchased CFCs since the ban or have provided manu-
facturers  with  a certification.    About  half  of  all
fillers  are custom fillers,  i.e., they  fill for others
under contract.   Many fillers are small businesses."

"Every  person  who processes  fully  halogenated  chloro-
fluoroalkanes for aerosol propellant uses subject to TSCA
after December 15, 1978 must submit an annual report.  A
separate report must be submitted for  each processing
facility."

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                                                               43

     "ASBESTOS" (BAN AND PHASE-OUT RULE)

     FINAL RULE [54 Fed.Reg. 29460,  29463 (12 July 1989)]

     "The rule's distribution in commerce ban does  not cover all
actions taken with respect  to asbestos-containing products.   For
purposes of the rule, the term 'distribution in commerce1 does not
cover end use activities, for example,  sale,  resale,  holding, or
delivery, with respect  to asbestos products by persons who use the
product  after  it  is manufactured,  imported,  or processed.   For
example, the term 'distribution  in commerce'  does not include the
resale of homes or motor vehicles that contain asbestos-containing
parts or products or the installation of asbestos-containing brake
pads in a person's automobile after the distribution  in commerce of
such brake pads is banned.   (However, it is  a  violation of  this
rule for a person to engage in selling brake pads to  anyone.)  This
provision also does not cover the disposal of asbestos-containing
products."   ...

     "For example,  this rule's bans do not cover the manufacture,
importation, processing and  distribution in commerce of high-grade
electrical paper,  a product which may be similar in some cases to
millboard or other asbestos paper products.  Persons might try to
manufacture or distribute the excluded products  for uses that are
banned.   Such  activities  would  violate this  rule's bans because
this conversion of  use  will  be interpreted by  EPA to be processing
or distribution in commerce of the  banned products.  The defini-
tions of processing and distribution in commerce  are  broad and will
be interpreted by EPA  to cover activities which involve the  con-
version  of excluded asbestos-containing products in this manner."

fNOTE; Elsewhere in the final Asbestos  "Ban  and Phase-Out Rule,"
processing is  defined  simply  by  reference to the TSCA Section 3
language, and no further examples are given.]
     EPA CORRESPONDENCE

Letter from John W. Melone to David M. Wassum of the Institute of
Scrap Recycling Industries, Inc., 23 February 1990:

     "This is in response to your letter of September 21, 1989
     to John Rigby.  In that letter,  you requested confirmation
     that the impending bans on processing and distribution in
     commerce  of  designated  asbestos-containing products do
     not apply to the collection, transfer, and processing of
     obsolete products for recycling.

     "You  state  that members  of  the  Institute  of  Scrap

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                                                          44
Recycling Industries, Inc. (ISRI) process, prepare, and
recycle various materials, such as ferrous and nonferrous
metallic scrap,  paper,  glass,  and plastics.   They pre-
dominantly handle  metallic scrap in its various forms.
Major sources of metallic scrap include obsolete consumer
products such as automobiles and household appliances, as
well   as   industrial  and  commercial  machinery  and
equipment.   Some of these items may contain asbestos.
The scrap is baled, shredded, or sheared.

"We conclude  that  the  recycling of asbestos-containing
material, as described in the letter,  is not covered by
the asbestos  ban and phaseout rule (40 C.F.R. 763.160-
.179).    While  the recycling   of  asbestos-containing
products to  recover metals or  other  materials  is con-
sidered processing,  the  products that result from that
processing are  scrap metal (or a similar scrap paper or
plastic products) which will be available for reuse after
further smelting or other processing and waste materials,
such as "fluff", which will be disposed of.  Scrap metal
(or another  scrap  product)  is  not  included  within the
ban.   Thus,   even  though recycling  is considered pro-
cessing,  the product being  processed is not  a banned
product.

"Further, the movement of a product subject to the rule
(e.g. asbestos brakes or asbestos gaskets in an obsolete
motor vehicle) to a recycling facility at any time would
not  violate  the distribution  in commerce  ban.   The
definition of distribution in commerce in the rule  'does
not include  actions taken with respect to an asbestos-
containing product (to  sell, resell, 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).'  Since
recycling is not prohibited,  the movement in commerce to
recycling facilities would not be considered a violation
of the distribution in commerce ban.  Generally, the rule
limits the introduction of new asbestos products into the
chain  of  commerce, rather than reducing exposure from
products already in commerce.

"Note,  if a person makes  a product from scrap metal (or
other  scrap  material)  that results  from recycling and
that product meets  the criteria  of  'asbestos-containing
product' as defined in the rule (i.e., contains more than
one percent asbestos by weight  or area,  or contains any
intentionally  added  asbestos),  and   is  in   a  product
category banned under the rule,  then  that product would
be subject to the asbestos ban and phaseout provisions."

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                                                               45

Letter from John W. Melone to Marc L.  Fleischeker of Arent, Fox, 15
March 1990:

     "The  rule  prohibits  the importation  into  the United
     States of asbestos beater-add and sheet gaskets  (except
     specialty  industrial  gaskets)   for  installation  into
     export-bound engines or  vehicles.  While the rule does
     not prohibit  the importation of 'products  imported solely
     for shipment outside the customs territory  of the United
     States, unless repackaging or processing of the  product
     is performed in the United States,'  the installation of
     imported gaskets in engines for export constitutes both
     'repackaging1 and 'processing'."


Letter from John  W. Melone  to Alex R. Cunningham of the State of
California Department of Health Services,  29 March 1990:

     "EPA  believes  that processing  for commercial  purposes
     asbestos-containing material by vitrification,  or other
     transformation processes, is  'new' withing the meaning of
     the rule.

     "The   rule  does   not  regulate  disposal  activities.
     Although the actions taken under this rule are based on
     lifecycle risks of asbestos products,  the  risk associated
     with  various disposal methods  was not  addressed under
     this  rule.   With respect to  the rule's distribution in
     commerce ban,  the  preamble  states that  this provision
     does  not  cover the  disposal   of  asbestos-containing
     products.    Under    section    763.163,    Definitions.
      •Distribution in Commerce1 does not include distribution
     by  manufacturers,  importers,  and processors, and other
     persons solely for purposes of  disposal of an asbestos-
     containing product.

     "Operations that transform asbestos-containing materials,
     as  defined in  40  CFR 61.141, into nonasbestos material
     solely for disposal,  (as an alternative disposal method
     under the asbestos NESHAP regulations), would be subject
     to  the disposal requirements at 40 CFR 61.151 or 61.152,
     or any final standards  revising the asbestos NESHAP under
     40  CFR, part 61.155."


Letter  from John W. Melone to Lawrence  G. Wylie of Omega Phase
Transformations,  Inc., 30 March 1990:

      "This responds to your request  for clarification of the
      final Asbestos Ban and  Phaseout  Rule as it applies to
     vitrification  processes which  transform asbestos into
     asbestos-free  material.  You  asked  for  an  affirmation

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                                                               46

     that the Asbestos Ban and Phaseout Rule is inapplicable
     to  your  asbestos   vitrification   and  detoxification
     process.  For  the reasons discussed below,  the Agency
     disagrees with your conclusion.

     "EPA is not  aware of any firm that processed  and sold
     glass made from asbestos-containing waste material before
     August 26, 1989.  EPA therefore considers 'processing for
     commercial  purposes'  asbestos-containing  material  by
     vitrification as  'new' within the meaning of the rule.

     "The rule is not  intended  to cover asbestos  disposal
     activities.    While  'processing  for disposal' is  not
     addressed under section 763.167, Processing Prohibitions,
     the rule specifically excludes disposal  from prohibitions
     against 'distribution in commerce1.  Under the definition
     of 'Distribute in Commerce1  (section 763.163),  the rule
     states  that  the  term does not include distribution by
     manufacturers,  importers,  and  processors,  or  other
     persons solely for purposes of disposal of an asbestos-
     containing product.    Furthermore,  the Agency  did  not
     address 'processing for disposal1  in the preamble to the
     rule, nor in other analyses supporting the rule.

     "Operations  that  transform asbestos into  non-asbestos
     material solely for disposal, as an alternative to NESHAP
     regulations  for  traditional  land  dispersal,  would be
     subject to any final standards adopted in connection with
     the  proposed revision to the  asbestos NESHAP  under 40
     CFR, part 61.155."


Letter from  John  W. Melone to  Steve Suber of  EIS Brake Parts, 25
April 1990:

     "The rebuilder must  dispose  of old asbestos-containing
     brake  shoes  returned for rebuilding.   Disassembly, or
     relining   (including  replacement  , with   non-asbestos
     material), of asbestos brakes is  'processing' within the
     meaning of the term under the Toxic Substance Control Act
     (TSCA).   The term, 'process' means the preparation of a
     chemical substance or mixture, after its manufacture, for
     distribution in commerce,  (a)  in  the same form or physi-
     cal  state as,  or  in  a different  form  or  physical state
     from,  that  in which  it was  received  by the person so
     preparing such substance or mixture, or (b)  as part of an
     article containing the chemical substance  or mixture  (See
     TSCA section 3, Definitions.)  Under the Asbestos Ban and
     Phaseout  Rule, 'processing'  will  be prohibited  as of the
     effective dates of the  'processing bans'  noted above."

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                                                               47

Letter from John W.  Melone to R. Scott Lang  of  Spilman,  Thomas,
Battle & Klostermeyer, 23 May 1990:

     "Asbestos-containing wire and cable is not addressed by
     the Asbestos  Ban and Phaseout Rule  (ABPO),  and conse-
     quently,  its manufacture and processing is not restricted
     per se by the Rule.  However, the processing of certain
     materials into wire and cable will be banned."

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                                                               48

57 ("IMMINENT HAZARDS.")


     TSCA  (THE ACT)

     According to §7 (a)  of TSCA, the EPA Administrator may commence
a civil action .  .  . "(B) for relief .  . . against any person who
. .  .  processes  ... an imminently hazardous  chemical substance or
mixture or any article containing such a substance or mixture .  .

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                                                               49

SB ("REPORTING AND RETENTION OF INFORMATION."!

S8fa) ("REPORTS.")


     TSCA (THE ACT)

According to  TSCA §8(a)(l), the Administrator "shall promulgate
rules under  which -  (A)  each  person  (other  than a small  .  .  .
processor) who  .  .  .  processes  or proposes  ...  to process  a
chemical substance  (other than a  chemical substance described in
subparagraph  (B)(ii) shall maintain such records and shall submit
to  the  Administrator such  reports,  as  the Administrator  may
reasonably require, and (B)  each person  (other than a small .  .  .
processor) who  .  .  . processes or proposes ... to process (i)  a
mixture,  or   (ii)   a chemical substance  in small  quantities   (as
defined by the  Administrator by rule)  solely for the purposes of
scientific experimentation or analysis or chemical research on, or
analysis of,  such substance or another  substance, including any
such research or analysis for the development of a product, shall
maintain records and submit to the Administrator reports but only
to the extent that the Administrator determines the maintenance of
records  or submission of  reports,  or  both,  is necessary for the
effective enforcement of this  Act.    The Administrator  may  not
require in a rule  promulgated under this  paragraph  the maintenance
of records or the  submission of reports with respect to changes in
the proportions of the components  of a mixture unless the Adminis-
trator finds that maintenance of such  records  or the submission if
such reports, or both, is necessary for the effective enforcement
of this Act	"

     According to §8(a)(2)  of TSCA, "the  Administrator may require
under  paragraph  (1)  maintenance  of  records  and  reporting  with
respect to the following insofar as known by the person making the
report or insofar as  [is] reasonably ascertainable: .  . .

     "(C) The total  amount of each   such substance  .
     processed, reasonable estimates of the total amount to be
     .  . . processed, the amount . .   . processed for each of
     its categories  of use,  and reasonable estimates of the
     amount to be•.  .  . processed for  each of  its  categories
     of use or proposed categories of  use.

     "(D) A description of the byproducts resulting from the
     . . . processing ... of each such substance  or mixture.

     TSCA §8(a)  (3) (A) (i)  states that "The Administrator may by rule
require a small .  .  . processor of a chemical substance to submit
to  the  Administrator  such  information  respecting  the  chemical
substance as  the Administrator may require for publication of the
first  list   of  chemical  substances   required by  subsection   (b)
[(i.e., the initial TSCA Chemical Substances  Inventory)]."

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                                                               50

     TSCA  §8(a)(3)(A)(ii)  states that "The  Administrator may by
rule require  a  small .  .   . processor  of  a chemical substance or
mixture .  . . [subject to proposed and/or final rules promulgated
under certain sections of TSCA or for which  injunctive relief has
been granted  by civil action under  sections 5 or  7  of  TSCA] to
maintain such records on such substances or mixture, and to submit
to the Administrator such reports on  such  substance  or mixture, as
the Administrator may reasonably require	"

     According  to  §8(a)(3)(B) of TSCA, "The [EPA] Administrator,
after consultation with the Administrator of  the Small Business
Administration  [(SBA)]  shall  by  rule prescribe the standards for
determining the .   .  .  processors which  qualify  as Ismail  .  .   .
processors for  the  purposes of this paragraph and paragraph (1)."


     QUESTION AND ANSWER DOCUMENTS

     A July 25, 1986 "Question and Answer  Summary" prepared by EPA
following a June 10, 1986  Agency-sponsored seminar on the industry
obligations under  TSCA  presents  the  following with regard to the
term processor  under  §8(a) of TSCA:

     "Question: Are processors covered by section 8(a)?

     "ANSWER:  Yes.   Section 8(a) authorizes EPA  to require
     reporting  and recordkeeping by  chemical manufacturers,
     importers,  and/or processors.    EPA  establishes these
     requirements for specific chemical substances by means of
     specific  regulatory  actions (generally referred to as
     •rules').   Thus,  processors are  only subject  to  the
     requirements  of  a  section  8(a)  regulation if that rule
     expressly  requires processors to report  data  and/or keep
     records.

     "Question; Is  there a small business exemption for.  . .
     processors of  regulated chemicals under section 8(a)?

     "Answer;   Generally, yes.   Section 8(a) exempts small .
     .  .  processors  from  the requirements  of  section 8 (a)
     rules (with certain limited statutory exceptions).  Note
     that  TSCA  authorizes  EPA to establish the standards for
     defining small businesses  for  purposes of this section
     8(a)  exemption;  the Agency must do so by rule	

     "The  Agency has  defined  'small processor' on a rule-by-
     rule  basis and  intends  to continue  to do  so for the
     foreseeable  future.   All  .  .   .  processors  subject to
     section  8 (a)  rules  should check  the  small  business
     exemption  standards  in those rules to  determine and/or
     verify their  exemption status."

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                                                               51

     "CHEMICAL-SPECIFIC RULES"

     CODE OF FEDERAL REGULATIONS (CFR)

     Part 704 - Reporting and Recordkeeping Requirements
     Subpart A - Section 8(a) Information-Gathering Rules

     According to 40 CFR §704.3, the term "Article" is defined as
"a manufactured  item  (1)  which is formed to a  specific shape or
design  during manufacture,  (2) which  has  end use  function(s)
dependent in whole or in part upon its shape or design during end
use, and  (3)  which has either no change  of  chemical composition
during its end use or  only those changes of composition which have
no commercial purpose separate from that of the article, and that
result from a chemical reaction that occurs upon end use of other
chemical substances, mixtures,  or  articles; except that fluids and
particles  are not  considered  articles  regardless  of  shape  or
design."

     40 CFR §704.3 defines the term "Process" to mean "to process
for commercial purposes."

     The term "to process  for commercial purposes" is defined in 40
CFR §704.3  to mean "the  preparation  of a chemical substance or
mixture after its manufacture for distribution in commerce with the
purpose of obtaining an immediate or eventual commercial advantage
for the  processor.   Processing of any amount of a chemical sub-
stance or mixture is  included  in  this  definition.   If a chemical
substance or  mixture  containing impurities  is  processed for com-
mercial  purposes,  then  the  impurities  also  are  processed  for
commercial purposes."

     40 CFR §704.3 also defines the term "Processor" to mean "any
person who processes a chemical substance or mixture."


     Part 704 —  Reporting and Recordkeeping Recruirments
     Subpart  B -  Chemical Specific Reporting/Recordkeepinq Rules

     HEXACHLORONORBORNADIENE (HEX-BCH)

     According to §704.102(a)  ("Definitions."),  a "Small business"
means  "any  manufacturer,  importer,  or  processor who meets either
paragraph  (a)(4)(i) or  (ii) of this section:

     11 (i) A business is small if its total annual sales, when
     combined with those of its parent (if any) ,  are less than
     $40 million. However, if the annual manufacture, importa-
     tion,  or processing volume  of  a particular chemical
     substance at any individual site owned or controlled by
     the  business is  greater than 45,400 kilograms (1OO,OOO

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                                                               52

     pounds), the  business shall  not  qualify as  small for
     purposes of reporting on the manufacture,  importation, or
     processing  of that  chemical substance  at that site,
     unless the  business  qualifies as  small under paragraph
     (a)(4)(ii)  of this section.

     "(ii) A business  is small if its  total annual sales, when
     combined with those of its parent company (if any), are
     less than $4 million, regardless of the quantity of the
     particular chemical  substance manufactured, imported, or
     processed by that business.

     (iii)  For  imported  and  processed mixtures  containing
     HEX-BCH, the 45,400 kilograms (100,000 pounds) standard
     in paragraph  (a) (4)(i) of  this  section applies only to
     the  amount  of HEX-BCH in  a mixture  and not  the other
     components of the mixture.

     According to 40 CFR  §704.102(b)  ("Persons who must report."),
"Reports must be submitted by (1) :

     11 (i)  Persons  who are manufacturing,  importing,  or pro-
     cessing HEX-BCH  for  use  as an intermediate  in the pro-
     duction or isodrin or endrin on or  after January 2, 1986;
     and

     "(ii) Persons who propose to manufacture,  import,  or pro-
     cess HEX-BCH for  use as an intermediate  in the production
     of isodrin or endrin, on or after January 2,  1986."

     According  to  40  CFR §704.102 (b) (2)  ,  reports must  also be
submitted by "Persons  described  in paragraph (b)(1)  of  this section
who engage  or propose to  engage in more than one  ac€l'vity  (i.e.,
manufacture and processing) must report the information required in
paragraph  (d) separately for each activity."

     40 CFR §704.102(c)   states that  the following  persons  are
exempt  from reporting "(1). Small  businesses."  and  "(2)  Persons
described in § 704.5(a) and (c)."


     HEXAFLUOROPROPYLENE OXIDE  (HFPO)

     According to 40 CFR §704.104(a) ("Definitions."),  an "Enclosed
process" is "a process that is designed  and  operated so that there
is no intentional release of any substance present  in  the process.
A process with fugitive,  inadvertent, or emergency pressure relief
releases remains an enclosed process  so  long as measures are taken
to prevent worker exposure to  and environmental contamination from
the releases."

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                                                               53

     40 CFR §704.104(a)  defines the term "Small processor" to mean
a processor that meets either the standard in paragraph (a)(3)(i)
of this section  or  the standard in paragraph  (a) (3) (ii)  of this
section.

     "(i)  First standard.  A processor of a chemical substance
     is small  if its  total  annual sales,  when combined with
     those of  its parent company, if  any,  are less than $40
     million.  However, if the annual processing volume of a
     particular  chemical  substance at  any  individual site
     owned or  controlled  by  the  processor  is  greater than
     45,400 kilograms  (100,000 pounds), the processor shall
     not qualify as  small  for purposes of  reporting on the
     processing  of  that  chemical  substance at that site,
     unless the processor qualifies as small under paragraph
     (a)(3)(ii) of this section.

     "(ii)  Second  standard.    A  processor  of a  chemical
     substance  is  small  if  its  total  annual  sales,  when
     combined with those of its parent company  (if any), are
     less than $4 million, regardless of the quantity of the
     particular chemical substance processed by that company.


     "(iii) Inflation index. EPA will  use the Inflation Index
     described in the definition of 'small manufacturer1 that
     is set  forth  in § 704.3  for purposes  of adjusting the
     total annual sales values of this small  processor defini-
     tion.   EPA will provide  FEDERAL REGISTER notification
     when  changing  the total annual  sales values  of this
     definition."

     According to 40 CFR §704.104(b)   ("Persons who must report.)/
 "Except as provided  in paragraph (c)  of this section, the following
 persons are subject to this section:

     "(3) Persons who process or propose to  process HFPO
          as  an  intermediate  in  the  manufacture  of
          fluorinated   substances    in   an   enclosed
          process."

     40  CFR §704.104(c)  ("Persons  not subject to  this  rule.")
 states that the following persons are not subject to this rule:

     "(1) Small processors.

     "(2) Persons described in § 704.5 (a)  through (d).

     "(3) Persons who have already submitted  to EPA a
          completed  copy  of the  Preliminary Assessment
          Information  Manufacturer's  Report  (EPA Form
          7710-35,  as  described  at   §  712.28  of  this

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                                                     54
chapter) for HFPO, as required by § 712.30(d)
of this chapter  are  not required  to report
under this section with respect to activities
previously reported on."

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                                                               55

     "CAIR"

     Part 704 — Reporting and Recordkeeping Requirements
     Subpart C - CAIR: Comprehensive Assessment Information Rule

     According to 40 CFR 204.203,  "all definitions as set forth in
section 3 of TSCA and §704.3  [(Subpart A - Definitions)] apply" to
Subpart C. Also,  40 CFR 204.3 provides definitions for  a number of
additional process-related terms as follows.

     According to 40 CFR §704.203,  the term "Processing activities"
means  "all  those activities which  include  (1) preparation  of a
substance identified in Subpart D of this Part after its manufac-
ture to make another substance  for sale or use,  (2)  repackaging of
the  identified substance, or  (3)  purchasing and  preparing the
identified substance for use or distribution in commerce."

     40 CFR  §704.203  defines a "Repackager" to be  "a  person who
buys a substance identified in Subpart D of this Part or mixture,
removes the substance or mixture from the container in which it was
bought, and transfers this substance, as is, to another container
for sale."

     Finally, 40 CFR §704.203 states that a "Small processor" means
"a processor that meets either of the following standards:

     "(1) First Standard. A processor of a substance is small
     if its  total  annual  sales, when combined with  those of
     its parent company  (if any),  are less than $40 million.
     However, if the annual processing volume of a particular
     substance at any individual site owned or controlled by
     the processor is greater than 45,000 kilograms (100,000
     pounds),  the  processor  shall not qualify  as  small for
     purposes  of  reporting on that  substance  at that site,
     unless  the  processor qualifies as  small under standard
     (2) of this definition.

     "(2) Second Standard. A processor of a substance is small
     if its  total  annual  sales, when combined with  those of
     its parent  company  (if  any) ,  are less  than $4  million,
     regardless  of the quantity  of  substances processed by
     that processor."


     FINAL RULES

     CAIR FINAL RULE PREAMBLE  (53 FR 51698; December 22. 1988)

     The preamble to the final TSCA §8(a) CAIR rule  states that ".
 .  .  under the CAIR,  all  of  the steps involved in  making a CAIR
 listed substance, including adding stabilizers and additives, which

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                                                               56

are necessary to get the substance "out the door" or ready  for use,
are considered part of  manufacturing."

     CAIR FORM INSTRUCTIONS - PART 5; GLOSSARY

     Part 5 ("Glossary) of the publicly  available TSCA §8(a) "CAIR
FORM" provides the following process-related definitions:

     "Article producer;  A processor  who processes  the listed
     substance with another substance to form an article  for
     subsequent distribution in commerce or for use on-site.
     The listed substance may or may not be  chemically altered
     or consumed in this process.  For example,  Company A buys
     chemical Y, a plastic additive,  and mixes  it with: molten
     plastic to form plastic parts."*

     "Chemical producer: A processor  who processes  the listed
     subatance as a raw material or as an intermediate in  the
     manufacture of other substances  for subsequent distribu-
     tion in commerce or for use on-site. The listed substance
     is chemically altered or otherwise consumed during this
     operation. For example,  Company  a buys Chemical X, which
     is reacted with Chemical Y to manufacture Chemical Z."

     "Commercial  distribution or Distribution  in commerce;
     The sale of the listed substance, mixture or  article in
     commerce;  the introduction or  delivery of  the listed
     substance,  mixture,  or  article into  commerce;  or  the
     holding  of the  listed  substance,  mixture,  or article
     after its introduction into commerce.  This term includes
     test marketing the listed substance."

     "End users;  An individual  or  organization that uses or
     consumes a chemical  substance,  mixture, or article with
     no further intentions of manufacturing or processing  the
     substance, mixture,  or  article. Includes consumers  and
     commercial,  industrial and retail users."

     "Mixture producer;  A processor  who processes  the listed
     substance with another substance or mixture to produce a
     mixture  for  subsequent  distribution  in commerce or  for
     use on-site.  The listed substance or mixture is not con-
     sumed or chemically  altered during this operation.   For
     example, Company  A buys Chemical X, which  is  a pigment,
     and adds this  to  a paint base to color the paint."

     "Process:  To  process for commercial  purposes."

     "Process for commercial purposes;  The preparation of a
     chemical substance or mixture after its manufacture  for
     distribution in commerce with the purpose of obtaining an
     immediate  or  eventual  commercial  advantage for   the

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                                                               57
     processor.   Processing  of any  amount  of a  chemical
     substance or mixture is  included in this definition.  If
     a chemical substance or mixture containing impurities is
     processed for commercial purposes, then  the impurities
     are also processed for commercial purposes."

     "Processor: Any person who processes a chemical substance
     or mixture."
     QUESTION AND ANSWER DOCUMENTS


            Comprehensive Assessment Information Rule

                  QUESTION AND ANSWER DOCUMENT

                          December, 1988


Q16. I am confused as to how to report concerning my manufacturing
     and processing activities.   If I both manufacture and process
     a CAIR  listed substance at the same  plant  site, how  do I
     determine when  my manufacturing process  type ends,  and my
     processing process type begins?

A16. EPA  has  developed  some   general  guidelines   to  assist
     respondents in this determination.  It is important to examine
     all  manufacturing  and  processing activities  together  to
     determine how these activities should be reported^ However>~
     each plant site must report for its activities oiigje::separate
     CAIR form.  Note that unit operations need not be  in the same
     vicinity of the plant site to be considered part of the same
     process type.  For all of the guidelines given below, assume
     "X" is the CAIR listed substance.
     Manufacturing:

     (1)   Manufacture of a CAIR listed substance from raw
                materials:
                 Raw
                Materials
	X

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                                                          58
(2)
Purification of a CAIR listed substances:
          X10% or  Raw	
          Material X/Y
                                                   i	
                                       or
                                             	Y
If both  "X"  and "Y" are  CAIR listed substances, respondent
must list the  process  type twice,  once for each CAIR listed
substance, on  separate reporting forms.

A person would include as part of his manufacturing process
type all  steps that  lead up  to  the production of  a final
product for  distribution in  commerce.   This includes those
steps that might be considered processing steps  if such steps
are necessary  "to make  [the final product] ready for sale or
use."  For example, a CAIR listed substance may not be ready
for sale or  use until  the required additives or stabilizers
have been  added, or  the final product has  been  loaded or
packaged into  salable containers.

Processing:

(1)   Addition of additives or stabilizers to a CAIR listed
        substance:
                              X/additives or stabilizers
 (2)
Processing a CAIR listed substance to manufacture a
     new substance (article or chemical producer):
           X
                        Y (which contains no X)
If both "X" and "Y" are CAIR listed substances,  the respondent
must report as  both a processor of "X" and as  a manufacturer
of "Y."

(3)   Processing  a CAIR  listed substance to manufacture a
           mixture  (mixture producer):
            X

            Y
                            Mixture X/Y
A person who dilutes a CAIR listed substance with a solvent is
also  classified as  a  mixture producer.

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                                                          59

The following steps are a guide to determine whether a person
is a manufacturer or a processor:

(1)  Do you  purchase  raw materials  and  manufacture  final
products that contain a CAIR listed substance?

     o If yes, you  are a manufacturer of all final products
     that are produced using that process type.

     o If no, go to (2).

(2) Do you  import a CAIR listed substance from outside the
territorial United States?

     o If yes,  you are a manufacturer  of  both the imported
     CAIR listed  substance  and all final  products that are
     produced using the imported CAIR listed substance as a
     raw material.

     o If no, go to (3) .


(3) Do you purchase a  CAIR  listed  substance from a domestic
supplier and purify the  CAIR  listed substance  to a higher
grade of purity?

     o If yes,  you are a manufacturer  of  the higher purity
     grade CAIR listed substance, and  all final products that
     are produced  using the  higher purity grade CAIR listed
     substance.

     o If no, go to (4).

(4) Do you purchase a raw material that contains a CAIR listed
substance  from a  domestic  supplier  and  "purify"  the CAIR
listed substance by separating out the  CAIR listed substance
from the raw material?

     o  If  yes, you are  a manufacturer of the  CAIR listed
     substance that was separated out from the raw material,
     and  all  final products  that are produced  using the
     separated out  CAIR listed substance.

     o If no, go to (5).

(5)  If you  purchase a  CAIR listed substance from a domestic
supplier, do not fall within any of the  above guidelines, and
use the CAIR listed substance in a  process  type  (i.e., not as
an end user);

     o You are a processor of  the CAIR  listed substance.

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                                                               60

     (6) If you have a process type that does not fit within any of
     the guidelines  set forth  above,  contact the TSCA Assistance
     Office at  (202)  554-1404 for further assistance.

Q17. We buy chemical X  (a CAIR listed  substance)  as  a raw material
     from a supplier at 80% purity.  We purify this raw material to
     make 90% pure Chemical X, and then sell it to our customers.
     Since we  do not  actually "manufacture"  any more  Chemical X
     than we buy, must we report as a manufacturer of Chemical X?

A17. Yes.  "Manufacture"  of  a  substance includes, by definition,
     the purification of that substance (40 CFR sec. 704.3).

Q18. Once  we  have  produced  a  CAIR  listed  substance,  we  add
     stabilizers  to make the  final  product  ready  for shipment.
     Does the addition of these stabilizers constitute processing
     or manufacturing?

A18. If the company  manufactures a CAIR listed substance from raw
     materials  and adds additives or stabilizers to  aid  in the
     transportation of the final product, the addition of additives
     or stabilizers  contributes to making the final product ready
     for  sale  or  use.  Therefore,  this activity  is  considered
     manufacturing,   not  processing.     If,   however,  a  company
     purchases a CAIR listed substance from a domestic supplier and
     adds additives or  stabilizers to  make a new  final product for
     a new end use,  this would be considered processing.

Q19. In the process  of manufacturing Chemical X, we manufacture a
     small quantity of Chemical Y  (a CAIR listed substance) .  Prior
     to selling Chemical X, we distill out Chemical Y and burn it
     in our plant boiler to heat our plant.   Do we have to report?

A19. Yes.  In the process of  manufacturing Chemical  X, the company
     has  manufactured Chemical  Y  (a CAIR listed  substance).
     Because  the company  utilizes Chemical  Y for a  commercial
     purpose (as  a  fuel in a boiler to generate heat or energy).

Q65. I manufacture a process stream which  contains varying amounts
     of  X,  Y  and Z.   As  far as  I  know,  the  only commercially
     feasible method  for producing X,  Y or Z is to fractionate the
     stream  I  produce.  If  I  sell,  process  or  use the original
     stream  (Mixture  X/Y/Z)  as  is,   how  do I  report?   If  I
     fractionate part  of Mixture X/Y/Z into X, Y and  Z,  what is the
     status of Mixture X/Y/Z under the CAIR?

A65. The process  type described in the question can be diagrammed
     as follows  (assuming X is the CAIR listed substance):

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                                                          61
Raw  	
Materials
#1
Mixture
 X/Y/Z
#2
X
Y
Z
                   Sale to Customers

The manufacturing process type in this example results  in four
product types: Mixture X/Y/Z,  X,  Y,  and Z.  Unit operation #2
is part of the manufacturing process type because it results
in  a final  product  ("X")  which contains  the  CAIR  listed
substance.  Although Mixture X/Y/Z is an intermediate in the
manufacture  of  X, it  is  also a  final product  since it is
distributed in commerce to customers.

If the respondent manufactures only Mixture X/Y/Z (i.e., the
manufacturing process type does not include unit operation #2)
and uses (i.e.,  consumes)  all  of  this manufactured mixture on
site, the respondent must still report under the CAIR, since
the  use of  Mixture  X/Y/Z  on site provides  an "immediate
commercial advantage"  to the  respondent.   Note that if both
"X"  and "Y"  are CAIR  listed substances,  respondent would
report the same process type for  both final products,  each on
its own form.

Assume that the respondent processes CAIR listed substance "X"
into Mixture X/Y/Z instead of manufacturing Mixture X/Y/Z from
raw materials  (i.e.,  the  respondent is a mixture producer).
If  the  respondent  uses or consumes  all of  this processed
material on  site, the respondent need  not  report under the
CAIR.   This  is because only those  processors who process a
CAIR  listed  substance  "for distribution in  commerce"  must
report under the  CAIR.

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                                                               62


            Comprehensive Assessment Information Rule

                  QUESTION AND ANSWER DOCUMENT


                        March, 1989


               MANUFACTURING/PROCESSING SCENARIOS '

            [Assume "Z" is the CAIR Listed Substance]

     Following  is a  list of  scenarios  that describe  whether a
person  is a  manufacturer or  processor  under  the  Comprehensive
Assessment Information Rule  (CAIR).

     Note first that there is a difference in the requirements that
a person  must meet  to  be a  "manufacturer"  versus  a "processor"
under the CAIR.   To qualify as a manufacturer, a person must gain
a  commercial  benefit from  the  production of  the  CAIR listed
substance, but  need not distribute the  CAIR listed substance in
commerce.  A processor, however, must distribute in commerce either
the CAIR  listed substance or another substance produced using the
CAIR  listed  substance  as  a  reactant   (a chemical  producer).
Therefore, if a company "uses" 100%  of his processing capacity on-
site as a final product  or as an end-use product, that person is
not a processor.  "Use" of a CAIR listed substance as a reactant or
as a chemical intermediate to manufacture a completely different
substance which is distributed in commerce,  however, is considered
processing of a CAIR  listed substance  (chemical producer).

1.   Company A reacts X with Y to make Z.   Z is sold.

          o Company A must report as a manufacturer of Z.

2.   Company A reacts X with Y to make Z.   Z is used on site.

          o Company A must report as a manufacturer of Z.

3.   Company A reacts X with Y to make Z.   Z is "sold" to another
     plant site owned or  operated by Company A.

          o  Company A must  report  as a manufacturer of  Z.   The
          second  plant  site  is the "customer" of the first plant
          site.
      'This Question and Answer document supplements the following
CAIR  Question and Answer  documents:  December,  1988.

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                                                               63

4.    Company A reacts X with Y to make Z.  Company A sends  the z to
     Company B, who adds  additives  and stabilizers under a service
     agreement with Company A.   Company  B  returns 100% of  the Z to
     Company A, who distributes the Z in commerce.

          o Company A must report as a manufacturer of Z.

          o Company B is a service manufacturer of Z, even though
          the addition of additives and  stabilizers is technically
          processing.

          o  As a  service manufacturer of Z,  Company  B  is  not
          required to report.   Company A must report for both its
          activities, as well as Company B's activities.  Note that
          for  convenience,  Company  B  may report on behalf  of
          Company A, but Company A is still liable for any errors
          in reporting made by Company B.

          o Rationale: Since Company A manufactures Z, Company B's
          activities under a service agreement become an integral
          part  of Company A's manufacturing  process type,  and
          therefore must be reported as such.

5.   Same as Number 4, except Company B  returns  only part  of the Z
     to Company A, and distributes  the remainder in commerce under
     Company A's label.

          o Company A must report as a manufacturer of Z.

          o Company B is still a service manufacturer of Z, since
          Company  B's activities are still an  integral  part of
          Company A's manufacturing process type.  Distributing Z
          in commerce under Company A's label is  considered part of
          the  service agreement between Company A  and Company B.

          o  As a  service manufacturer of Z,  Company  B  is  not
          required to report.   Company A must report for both its
          activities, as well as Company B's activities.  Note that
          for  convenience,   Company B may report on  behalf of
          Company A, but Company A is still liable for any errors
          in reporting made by Company B.

6.   Same as Number 4, except Company B  returns  only part  of the Z
     to Company A, and distributes  the remainder in commerce under
     its own  (Company B's) label.

          o Company A must report as a manufacturer of Z.

          o Company B must report as a processor  of the Z that is
          distributed  in commerce under its own  label.

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                                                               64

          o Company  B  is still a service manufacturer for the Z
          that Company B processes under the  service agreement with
          Company A.  This is because these activities are still an
          integral part of Company A's manufacturing process type.


          o Company B is not required to report on its activities
          that fall  under  the service agreement  with Company A.
          Company A must report for both its  activities, as well as
          that portion  of Company B's  activities  that fall under
          the  service  agreement.    Note that for  convenience,
          Company  B  may report on  behalf  of Company  A for that
          portion  of  Company  B's activities that fall under the
          service agreement, but Company A is still liable for any
          errors in reporting made by Company B.

7.    Same  as  Number 4,  except Company  B  also purchases  Z from
     Company C; i.e., Company B adds additives and stabilizers to
     the Z received from Company A under a service agreement, and
     processes the Z  it purchases  from Company  C.    Company B
     distributes only the Z  it purchases from Company  C in commerce
     under its own (Company B's) label.

          o Company A must report as a manufacturer of Z.

          o Company B must report as a processor of the Z purchased
          from Company  C.

          o Company  B  is still a service manufacturer for the Z
          that Company B processes under the  service agreement with
          Company A.  This is because these activities are still an
          integral part of Company A's manufacturing process type.


          o Company B is not required to report on its activities
          that fall  under the service agreement  with Company A.
          Company A must report for both its  activities, as well as
          that portion  of  Company B's  activities  that fall under
          the  service  agreement.    Note that for  convenience,
          Company  B  may report on  behalf  of Company  A for that
          portion  of Company  B's activities that fall under the
          service agreement, but Company A is still liable for any
          errors in reporting made by Company B.

8.   Company  A purchases Z only  from  Company  C  (Company  C is a
     manufacturer of Z) .  Company C ships the Z  directly to Company
     B,  who  adds  additives   and  stabilizers under a  service
     agreement with  Company A.  Company B  sends  the Z either to
     Company  A,  who  processes the Z, or directly to Company A's
     customers under Company A's label.

           o Company  C must  report as a manufacturer of Z.

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                                                               65

          o Company B must report as a processor of Z.  The service
          agreement between Company B and Company A does not make
          Company B a service manufacturer of Z in this instance,
          since Company B's  activities are not an  integral part of
          Company A's manufacturing process type.  This is because
          Company A does not manufacture Z.

          o  Company  A  must   report  only   on  its  processing
          activities.   If Company B does not ship  any Z to Company
          A, Company A is not required to report.

9.    Company  A  contracts  with  Company  B  to   have  Company  B
     manufacture Z for  Company A.   Company B does  not distribute Z
     to anyone  except  Company A  under the  contract.   Company A
     processes Z and distributes the final product in commerce.

          o Company B must  report  as  a manufacturer of Z (a toll
          manufacturer), since Company B actually  manufactures the
          Z.  This scenario  differs from Number 4, where Company B
          operates under a service agreement with Company A.  As a
          toll manufacturer of Z,  Company B operates under a sales
          contract to manufacture and sell Z to Company A.

          o  Company  A  must   report  only   on  its  processing
          activities.

10.  Same as Number 9,  except Company B sends only part  of the Z it
     manufactures to Company A.   Company B  also distributes Z in
     commerce under its own (Company B's)  label.

          o Company B must report as a manufacturer of Z.

          o  Company  A  must   report  only   on  its  processing
          activities.

11.  Company A reacts X with Y to make Z.   Part of the Z is sold,
     and  part continues  on  in the  process  type.    During  the
     continuation, additives are added to Z to make Zl.  Z, is sold.
     This process type is described by the following diagram:

            Step #1        Step #2
     X + Y	> Z	>  Chemical  Z,  for #11
                        j                (Chemical D for #12)
                        i
                 Sale to Customers

          o Step i: Manufacturing.

          o  Step 2: Manufacturing,  even  though  the addition of
          additives is technically processing.

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                                                               66

          o  Rationale:  Both  Z and  Zt  are  final products  that
          contain a CAIR listed substance (Z) ,  and are manufactured
          using the same raw materials  (X  &  Y)  at the same site.
          Step #2  is  therefore a continuation, or extension,  of
          Step #1.  This is an  example  of  the manufacture of two
          different "grades" of a final product containing the same
          CAIR listed substance.

          o  Company A  must report  as  a  manufacturer of  Z,  and
          include  both Step  #1  and  Step  #2 as part of  its
          manufacturing process type.

12.  Same as Number 11, except  the Z that  is not  sold is reacted
     with Chemical W to make D.  D does not  contain  Z (except as an
     impurity).  D is sold.

          o Step 1: Manufacturing up to Step #2 (i.e.,  up to the
          manufacture of Z).

          o Step 2: Processing.  Step #2 is not part of Company A's
          manufacturing process type since D does not contain Z.

          o Company A must report as a manufacturer of Z and as a
          processor of  Z (i.e., a manufacturer of  D)  on the same
          CAIR reporting form.

13.  Company A manufactures Z only as a waste and disposes it on
     site.

          o Company A  is a manufacturer of a "byproduct," and is
          therefore exempt from reporting.

14.  Same as Number 13,  except Company A sells the waste to another
     company that uses  the waste as a final product.

          o  Company  A must  report  as  a  manufacturer  of  a
          "coproduct" that contains Z.

15.  Same as Number 13, except Company A  burns  the waste  in a
     boiler on site to  generate heat for the plant.

          o  Company  A must  report  as  a  manufacturer  of  a
          "coproduct."  Company A "uses" the waste  for a commercial
          purpose (and therefore obtains a commercial benefit) when
          it burns the  waste in its boiler to generate heat.

16.  Company A purchases Z in a solution,  and uses Z as a solvent
     (or  a  catalyst)  in  the manufacture  of Chemical  D.    D  is
     eventually extracted  out and sold.  Company A recycles the Z
     and reuses it  in the manufacture of D.

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                                                               67

          o Company A is an end-user since Company A J'uses"  Z as a
          final product.   Company A is therefore not required to
          report.

17.   Company A purchases Z and processes Z by mixing  it with a
     pigment to manufacture an ink,  Mixture I,.  I, is sold.

          o Company  A must report  as  a  processor  of Z  (mixture
          producer).  Company A must report since the final product
          (Ii)  is distributed  in commerce.

18.   Same as Number  17,  except that, once I, is produced, Company
     A further processes. I, on site to print plastic bags which are
     sold.

          o Company  A must report  as  a  processor  of Z  (article
          producer).  This is because I, is distributed in  commerce
          as a component part of an article (the  plastic  bags).

          o Note that  if the Z  is removed  from  It  before the
          printed plastic bags are distributed in commerce  (e.g.,
          Z vaporizes off when II is  applied to the  bags) , Company
          A would be an end-user of  Z,  since neither Z nor a final
          product produced utilizing Z as a reactant is distributed
          in commerce.

19.   Same  as  Number  18,  but extended  to Company  A's customer,
     Company B.  Company B buys the plastic bags from Company A and
     further processes  the plastic  bags before distributing them
     further in commerce.  Must Company B report  as a processor of
     Z?

          o Company  B purchases Z as part of an  article  (plastic
          bags), and therefore is exempt  from reporting.

20.   Same as Number 17,  except Company A buys It and processes I, on
     site to print plastic bags which are sold.  Company A buys  I,
     as either "I^"  "Ink," or "Z."

          o Company  A must report  as  a  processor  of Z  (article
          producet).  This is  because II is distributed in  commerce
          as a component part of an article (the  plastic  bags).

          o  Note that  if the  Z  is removed  from  It  before the
          printed plastic bags are distributed in commerce  (e.g.,
          Z vaporizes off when I, is applied to the  bags) , Company
          A would be an end-user of  Z,  since neither Z nor a final
          product produced utilizing Z as a reactant is distributed
          in commerce.

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                                                               68

21.  Same as Number 20,  except Company A uses  the I1 it purchases
     on site to print newsletters which are not sold.

          o Company A is an  end-user  since  Company A "uses" It as
          a final product.  Company A  is therefore not required to
          report.

22.  Company A purchases Z and processes Z by reacting it with Y to
     make  Chemical  D.    D  does  not contain Z  (except  as an
     impurity) .  D is sold.

          o Company  A must report as a processor of Z (chemical
          producer) .  Company A must report since the final product
          (D)  is distributed  in commerce.

23.  Same as Number  22,  except D is used  100% on site as a  final
     product (i.e., in an end-use capacity).

          o  Company  A  is not a  processor  of  Z  since D  is not
          distributed in commerce.

24.  Company A purchases Z and processes Z by reacting it with Y to
     make  Chemical  D.    D  does  not contain Z  (except  as an
     impurity) .   D  is  not  sold,  but  is  processed on  site by
     reacting  D with E  to make  Chemical  F.    F is sold.    This
     process type is described by the following diagram:

            Step #1                 Step #2
     z + Y ---------- > D   + E ---------- > F
          o In those instances in which Company A can be classified
          as  both  a  chemical  producer  and  some other  type of
          processor,  that  Company A  must engage  in a  2 -stage
          analysis:

          o  Stage 1:  Company A must  first determine whether any
          final  product manufactured  using  Z  as a-reactant is
          distributed  in  commerce.    If  no, Company  A  is not
          required  to  report.   If  yes,  Company A must proceed to
          stage  2 .

          o  Stage 2:  Since a final product that was manufactured
          using  Z as a reactant is distributed in commerce, Company
          A  must report as a processor of  Z.   Company  A  would
          report on the process type  up to  the  point that Z no
          longer exists.

          o A CAIR listed substance no longer exists when it cannot
          be  identified by  its CAS  Number,   or  it  exists in the
          process stream or final  product  only as an impurity.

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                                                               69

          o In  this  instance,  Company A  would only report  as a
          processor of Z  through  Step #1.  If Z exists (other than
          as an impurity) until D reacts with E to manufacture F,
          Company A would report as a processor of Z through both
          Step #1 and Step #2.

25.  Same  as  Number 24,  except  that  only  a   portion  of  the
     manufactured D  is processed on site.  The  other  portion is
     sold.

          o  Company  A must still  report  as  a  processor  of Z
          (chemical producer).

          o If  Z  ceases  to exist during  Step  #1,  Company A must
          report as a processor  of  Z only through Step #1.   If Z
          exists (other than as an impurity) until D reacts with E
          to manufacture  F, Company A would report as a processor
          of Z through both Step #1 and Step #2.

26.  Company  A  uses a  spray   nozzle  to  paint  cars  which are
     distributed  in  commerce.   The spray nozzle "processes" two
     streams to "manufacture"  a paint, Chemical P,.   One stream
     contains  Z and  the other  contains  a  pigment.   These two
     streams are processed  by  combining the two  streams from two
     separate hoses as they pass through the spray nozzle. The two
     streams react on contact to create P,.  P, does not contain Z.

          o Because  Company A  is both  a  chemical producer and an
          article  producer,  Company A  must utilize the  2-stage
          analysis set forth in Number 24.

          o  Stage  1:  Company  A must first  determine whether any
          final  product  manufactured  using Z as a reactant is
          distributed in commerce.   In this  instance,  Company A
          manufactures P,, which is distributed  in commerce as a
          component part of an article (the painted automobiles).
          Therefore,  Company  A  must  proceed  to stage 2  of  the
          analysis.

          o Stage  2: Company A must report up to  the point that Z
          no  longer  exists.   In  this  instance,  Company  A must
          report as a processor of Z only up  through the production
          of Chemical P,.  This is because Z does not exist in P,.

27.  Company  A operates   a  two-step process  type.  In  Step  #1,
     Company  A purchases  Z  and reacts  Z with  Y to make  D.   D
     contains  Z,  but not as an  impurity.   Part  of the D that is
     manufactured  is sold, and  part  continues  onto Step #2, in
     which the  D is further processed into articles.  This process
     type is described by the  following diagram:

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                                                               72

          o  Gasoline  is  a  chemical  substance  under  the  TSCA
          Inventory, and  is  not listed on the  CAIR.   Therefore,
          Company A is not required to report under the CAIR.

A*******************************:
            Comprehensive Assessment Information Rule

                  QUESTION AND ANSWER DOCUMENT


                        June, 1989


Q8.   Company A  purchases  a CAIR listed substance,  repackages it,
     and distributes it in commerce.  Before distributing the CAIR
     listed  substance in  commerce,  Company A samples  the CAIR
     listed  substance to  determine whether it  meets Company A's
     customer's required purity specifications.  If not, the CAIR
     listed  substance is  not distributed.  Does Company A still
     qualify as solely a repackager?

A8.   Yes.   Testing for purity is not  classified  as processing.
     Therefore, Company A  still qualifies as solely a repackager,
     and is exempt from reporting under the CAIR.

Q22. What is the difference between the term "end-use" and the term
     "consumed  on-site?"

A22. The term "consumed on-site" is misleading  and  should never be
     used.    A person  should  focus   on  whether  a  CAIR   listed
     substance  is used on-site in its end-use capacity (i.e., as an
     end-use) .  If it is not,  that person is a processor.  The term
     "consumed  on-site" was intended  in  the December.  1988 CAIR
     Question and Answer document to mean  "use  on-site in its end-
     use capacity."   Some  chemical processors incorrectly defined
     the  term "consumed on-site"  to mean "use of  a CAIR  listed
     substance  as a raw material in a "processing"  process type in
     which the  CAIR listed substance is totally reacted  (i.e., as
     a  chemical   producer)."    This  definition   is  incorrect.
     "Chemical  producers" are classified as processors,  and are
     therefore  required to report under the CAIR.


Q24. Company  A  uses  a CAIR listed substance to  manufacture  a
     polyurethane  foam  that  does  not  contain   a  CAIR   listed
     substance  except as  an impurity.  Must Company A report as  a
     processor  under  the  CAIR?

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                                                               73

A24. Yes.   Company  A  is  classified  as  a processor   (chemical
     producer).

Q25. Company A processes a CAIR listed substance to produce a final
     product that does not  contain  the CAIR listed  substance using
     a 2-step "processing" process type.  The process type consists
     of two batch reactors operated in sequence.  The CAIR listed
     substance is completely reacted in  the first reactor.   Must
     Company A report on both steps of the process type or just the
     first step?

A25. Company  A's  "processing"  process type can be diagramed as
     follows:
       Raw   	|_ Step
     Materials    ! # 1
No listed
substance
Step
# 2
 Final
"Product
     Since the CAIR listed substance is completely reacted during
     Step  #1,  Company A  is  only required  to report  on  Step #1
     (i.e., up to the point that the CAIR listed substance ceases
     to exist except as an impurity).

Q26. Company A purchases a CAIR listed substance and processes it
     to manufacture polyurethane.  In the process type, Company A
     recaptures that portion of the CAIR listed substance that is
     unreacted and sells it as a final product.  How should Company
     A report under the CAIR?

A26. Company  A processes  a CAIR  listed substance  in  a  single
     process type to manufacture a final product (the polyurethane)
     and  a  coproduct  (the unreacted CAIR  listed   substance).
     Company A should report for  both of  these final  products on
     the same reporting form.

Q27. Company  A  uses a  CAIR  listed  substance  as  an  initiator to
     start a  chemical reaction.   This is  the only purpose of the
     CAIR  listed  substance.   The CAIR  listed substance is not a
     component of the  final product  other  than  as  an impurity.
     Must Company A report as a processor under the CAIR?

A27. No.   Use of  a CAIR  listed  substance  as an  initiator  of a
     chemical  reaction  is considered  an  end-use.    Therefore,
     Company A is not required to report under the CAIR.

Q28. Company  A manufactures  a polymer final  product.    In the
     process  type,  Company A uses  a CAIR  listed  substance  as a
     chain terminator to  limit the length of the polymer chain in
     the final product  to  a predetermined length.  Must Company A
     report as a  processor under the CAIR?

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                                                               74

A28. Yes.  Company  A is classified as a processor since use of a
     CAIR  listed  substance as a chain  terminator is a necessary
     step in the manufacture of the polymer final product, and has
     a direct effect on the types of end-uses the final product can
     be used for.

Q29. Company A purchases a  CAIR listed substance  and places it in
     a hopper above  a  reactor.  The CAIR listed  substance is used
     as a reaction terminator designed to stop the reaction if the
     reactor goes out  of  control.   Must  Company A  report  as a
     processor under the CAIR?

A29. No.  Use of  a CAIR listed substance as a  reaction terminator
     is not a necessary step in the manufacture of a final product.
     Therefore, Company A is classified as an  end-user, and is not
     required to  report under the  CAIR.

Q30. Company A purchases  a paint  which  contains a  CAIR listed
     substance and uses it to stencil Company  A's logo on the side
     of  galvanized  metal   bins  which Company A  distributes  in
     commerce.   Must  Company A  report as a  processor  under the
     CAIR?

A30. Analysis of  this  question requires a three  step analysis:

     (1) If a CAIR  listed  substance remains in the paint when the
     metal bin is distributed in commerce, Company A is a processor
     (article producer) and is required to report under the CAIR.

     (2) If a CAIR listed substance reacts or  polymerizes after it
     is  applied to  the metal bins  so  that the  paint  no longer
     contains  the CAIR listed  substance when the metal  bin is
     distributed  in  commerce,  Company A is still a processor (an
     article producer  and  a chemical  producer) and is required to
     report under the  CAIR.

     (3) If, however, a CAIR listed substance evaporates when it is
     applied, Company A is  an end-user of the CAIR listed substance
     and is not required to report under the CAIR.

Q31. Company  A   is  a  paint  contractor who paints  industrial
     equipment  on  its customer's facilities  using paint  that
     contains a CAIR listed substance.  Must Company A report as a
     processor under the CAIR?

A3l. No.   Company  A  is not distributing the equipment  that it
     paints  in  commerce.    Rather,  Company  A  is   selling  its
     services,  not  the   paint  which  contains  a  CAIR  listed
     substance.   Therefore, Company A is an  end-user and is not
     required to  report under the  CAIR.

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                                                               75

Q32. Company A uses a  CAIR  listed substance in its quality control
     lab as an analytical  reagent.  The  CAIR listed substance is
     not included in or handled by Company A's process type, nor is
     the CAIR listed substance in Company A's final product.  Must
     Company A report as a processor under the CAIR?

A32. No.  Use of a CAIR listed substance in a quality control lab
     as  an  analytical   reagent  is  classified  as  an  end-use.
     Therefore, Company  A is not required to report under the CAIR.

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                                                               76

     CORRESPONDENCE

                Chemical Manufactures Association

                         December 22, 1988
Barbara Ostrow
Section Chief
Chemical Assessment Rule Section
Chemical Screening Branch
Office of Toxic Substances
401 M Street, S.W.
Room 447 - East Tower
Washington, D.C. 20460

              Re:  Clarification of CAIR  Requirements

Dear Ms. Ostrow:

     As you are aware, the Chemical Manufacturers Association  (CMA)
has  a  continuing   interest  in  the  Comprehensive  Assessment
Information Rule (CAIR). Consequently, CMA and its member companies
have been  closely examining  the prepublication draft of the CAIR
which you  provided to us.  Two questions have been raised by some
CMA members about the scope of CAIR reporting requirements. Because
of the practical importance of these issues, we are requesting that
EPA address them as soon as possible.

Definition of  "Processing" Activities

     The CAIR requires "processors" to report on certain chemicals
covered by the Rule. In such cases, respondents must complete the
portions of the CAIR form which seek information about "processing
activities."

     Section  3(10) of TSCA defines  "process"  [as]

     "the preparation of a chemical  substance or mixture, after its
     manufacture, for distribution  in commerce—

           (A)  in the  same form  or physical  state  as,  or  in  a
     different  form  or  physical state from, that in which it was
     received by the person so preparing such substance or mixture,
     or

           (B)  as  part  of an  article  containing   the  chemical
     substance  or mixture."

15   U.S.C.,   Section  2602(10)   (emphasis  added).   Under  this
definition, the key  attribute of  "processing"  is "preparation" of
a  substance,   either  in  its  original or  an altered  state, for
distribution  in commerce.

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                                                               77

     At 40 C.F.R.,  Section 704.3, the CAIR provides a defini-
     tion of "process for commercial purposes" which closely
     parallels the statutory definiiton.  However, 40 C.F.R.,
     Section 704.203 than defines "processing activities" in
     terms that seem broader than the definition of "process":

     "All those activities which include  (1) preparation of a
     substance identified in Subpart D of this Part after its
     manufacture  to make another substance  for  sale or use.
     (2)  repackaging  of the  identified  substance, or  (3)
     purchasing and preparing the identified substance for use
     or distribution in commerce."

     This definition suggests  that persons who prepare a substance
for use, rather than for distribution in commerce, would be engaged
in "processing activities" and  therefore must  report  undr CAIR.
For example, if a company uses a CAIR chemical to clean equipment
or as an unreacted catalyst,  these activities would seen to trigger
CAIR reporting requirements.

     In the past, CMA members have assumed that chemicals which-are
consumed during their operations, but are  not themselves offered
for  sale or converted into other  products that are offered for
sale, are outside the TSCA definition of "processing." Because the
CAIR seem to embody a different approach,  EPA should clarify the
type  of  activities   that   will   trigger   processor  reporting
requirements. Specifically, EPA  should explain whether use activi-
ties that do not  involve distribution in commerce  are subject to
reporting. EPA should also address  whether the term  "process" and
"processing1 activities"  are  intended to have  different meanings
and, if  so, how these term function in the CAIR reporting scheme.

Reporting on Toluene Diisocvanate (TDI1

     The  CAIR  requires reporting on  four different versions  of
toluene  diisocyuate (TDI).   The four listed substances are:

Cas Number                     Chemical Name

91-08-7                  Benzene, l-3-diisocyanato-2-methyl-
                        (2,6-Toluene diisocyanate)

584-84-9                 Benezene,  2,4-diisocyanato-l-methyl-
                         (2,4,-Toluene diisocyanate)

1321-38-6                Benezene,  diisocyanatemethyl-
                         (unspecific toluene diisocyanate)

26471-62-5               Benezene,  l-3-diisocyanatomethyl-
                         (2,4-2,6-Toluene diisocyanate)

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                                                               78

    Typically,  TDI is  sold and  processed as  an  80/20  percent
mixture of the  2,4  and  2,6  isomers.   This blend falls within CAS
No.  26471-62-5.   According  to  the  TDI  producers,  2,4-TDI  is
occassionally sold separately as a commercial product, but 2,4-TDI
and unspecific TDI are not available as items of commerce.

    As EPA's Rule is now framed,  it is theoretically possible that
manufacturers and processors of the mixed isomer blend would have
to submit four  different reports—one  for the  mixture of 2,4 and
2,6 isomers, one  for  each individual  isomers  and a fourth report
for the unspecific TDI.  The preparation of such multiple reports
would impose significantly  increased  burdens  on TDI manufactures
and processors  without  yielding  any   additional  information  of
value to EPA.

     A  more efficient  approach would be for  manufacturers  and
processors of the  mixed  isomer  product to report once,  under Gas
No. 26471-62-5.   Reporting under the other CAS numbers would  be
unnecessary unless  a  firm manufactures or processes 2,4-TDI as a
separate product.  In this event,  reports  would  be submitted under
Gas No.  584-84-9.   Repots for the other two listed substances would
not be  required because they are both available as commercially
discrete products.

     We ask that EPA confirm the above interpretation of  CAIR as it
applies to TDI products  as soon as possible.

     Please call Tim O'Leary of my staff at 202/887-1278 concerning
this matter.

                          Sincerely yours,


                           Geraldine V. Cox
                           Vice President-Technical Director
CC: Richard Sigman
    Environmental Protection Agency

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                                                               79


          UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
                     WASHINGTON,  D.C.  20460


                          Jan 18, 1989

Geraldine V. Cox
Vice President-Technical Director
Chemical Manufacturers Association
2501 M Street, NW.
Washington, DC 20037

Dear Dr. Cox,

     This  letter  is  in response to your  inquiry  of December 22,
1988, which outlined two concerns raised by your member companies
relating to the Comprehensive Assessment Information Rule  (CAIR).

     The  first concern  relates  to the  difference  between the
definitions  "processing  activities" and  "process  for commercial
purposes," and which of these definitions  should be used to deter-
mine whether  a person  is a "processor" under CAIR. Specifically,
your member  companies  wish to know whether  the preparation of  a
substance  identified  in  the CAIR  "for sale  or   use"  under the
definition  of "processing activities," or the preparation  of  a
chemical  substance  "for  distribution in  commerce"  under the
definition of "process for commercial purposes" should be  used to
determine whether a person is a processor under the CAIR.

     A person is a processor under the CAIR if he  prepares a CAIR
listed substance "for distribution in commerce." The CAIR reporting
form uses the term "process"  in its questions. This term is  defined
in the glossary of the  CAIR reporting form  Instructions as "process
for commercial purposes." The CAIR reporting  form does not  use the
term "processing activities." The term "processing activities" is
used to describe when  a  final product is "prepared" for distribu-
tion  in commerce. For example,  a substance  is not prepared for
distribution  in commerce until it is ready for "sale or use." If  a
substance  is  completely  consumed on site  (i.e., not prepared for
distribution  in  commerce),  then the person  processing that sub-
stance need not report under the CAIR.  Note that a  manufacturer or
importer who  completely  consumes a CAIR listed substance  on site
must report under the  CAIR,  since that person manufactures a CAIR
listed  substance   "for   an  immediate  or  eventual  commercial
advantage." This distinction is outlined in the CAIR Question and
Answer document, which will  be mailed out with the CAIR reporting
form and Instructions.

     The second concern raised by your member companies relates to
three of the four CAS Numbers of toluene diisocyanate  (TDI) listed
in  the  CAIR.  Specifically, how should  a  respondent report  if he

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                                                               80

manufactures, imports, or processes a blend of  the  2,4 isomer  (CAS
No. 91-08-7) and 2,6 isomer  (CAS No. 584-84-9),  since this blend is
identified  as  CAS  No.  26471-62-5,  and  is also  a  CAIR  listed
substance.

     CAS No.  26471-62-5  is  classified  in the TSCA Inventory as a
chemical substance  that  is  composed of varying concentrations of
CAS Nos. 91-08-7 and 584-84-9. Therefore, if a person manufactures,
imports or processes CAS No. 26471-62-5, that person would report
for CAS No.  26471-62-5. If, however, a person manufactures, imports
or processes either CAS No.  91-08-7 or  CAS  No.  584-84-9 by itself,
that person would report as a manufacturer,  importer or processor
of that particular  CAS Number.  This response is also outlined in
the CAIR Question and Answer document.

     I  hope that this response satisfies  your member companies'
concerns. If you have any further questions, feel  free to contact
my office.

                         Sincerely yours,


                         Joseph J. Merenda,  Director
                         Existing Chemical Assessment Division

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                                                               81
          UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
                      WASHINGTON,  D.C.  20460


                          Mar 14, 1989

Geraldine V. Cox
Vice President-Technical Director
Chemical Manufacturers Association
2501 M Street, NW.
Washington, DC 20037

Dear Dr. Cox,

     On December 22,  1988, the Chemical Manufacturers Association
(CMA) sent a written request to the Environmental Protection Agency
(EPA) (enclosed)  asking EPA to clarify two questions raised by some
CMA  members about the Comprehensive Assessment Information  Rule
(CAIR) .    EPA responded  to  this request  on  January  18,   1989
(enclosed). One response given by EPA,  however,  was misinterpreted
by some CMA members.  CMA members requested during a meeting  with
EPA staff members on February 7,  1989,  that  EPA  clarify  its use of
the  phrase  "consumed  on  site,"  as it is used in EPA's January 18
response letter. This letter is in response to  that request.

     In the third paragraph of its response letter,  EPA stated that
"[ijf  a  substance is  completely consumed on site  (i.e.,  not
prepared for distribution in commerce), then the person processing
that  substance  need  not  report  under the  CAIR."  CMA  members
interpreted  the   phrase  "consumed   on  site"   to  include  the
consumption of a CAIR listed substance as  a  raw  material in the
production  of a completely different  chemical  substance  (i.e., one
that  doesn't  contain the  CAIR listed  substance)  via a  chemical
reaction.  This interpretation  is incorrect. Under the CAIR,  this
type  of activity  is  considered  processing under  the  "chemical
producer"  guidelines  set forth  in question  number  16  of the
December,   1988  CAIR  Question  and Answer  Document.  The phrase
"consumed  on  site"  is intended to mean  that a CAIR listed
substance  is  used  on  site  as a final product  (i.e., as an end-use
product versus as  a raw material  in a processing process type).

     In order to further assist CMA members  in determining whether
they are  a manufacturer  or a processor  under  the  CAIR, EPA is
developing a  second Question and Answer document that summarizes
how  a person would report under various  scenarios.  This second
Question and Answer document will be  completed in the  near future,
and  will be sent to CMA  at that time.

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                                                               82
      I hope that this clarifies EPA's use of the phrase "consumed
on site" as used  in  its January 18  repsonse letter.   If you have
any further questions, please contact my office.

                           Sincerely yours,
                           Joseph J. Merenda, Director
                           Existing Chemical Assessment Division
Enclosure

cc:  D. Stangel
     A. Gordon
     F.F. Stiehl

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                                                               83


          UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
                      WASHINGTON,  D.C.  20460

                           April 18, 1989


Ms. Sandy Cochran
Assistant to the
   Executive Vice President
Edward Fields, Inc.
Box 4009
128-28 25th Avenue
College Point, NY 11356-4009

Dear Ms. Cochran,

     This letter is in response to your April 6 inquiry  (a copy
of which is enclosed) concerning the Comprehensive Assessment
Information Rule (CAIR). In your letter you requested written
confirmation that your company is not required to report  under the
CAIR.

     To summarize the facts outlined in your April 6 letter, Edward
Fields  "processes"  hydroxylamine sulfate 2:1 as  a  mild reducing
agent in the  manufacture  of  carpets.  Edward Fields'  annual sales
are approximately $ 8.0 million,  and the company handles  less than
10,000  Ibs  of  hydroxylamine sulfate  per  year.  Based  on  the
information  as  summarized  in this  letter, Edward  Fields  is a
"small" processor of hydroxylamine sulfate, and is therefore exempt
from reporting under the CAIR.

      If you have any further questions concerning the CAIR,
please contact either the TSCA Assistance Office at  (202)  5541404
or the CAIR Technical Assistance Office at  1-800-658-8823.


                         Sincerely yours,
                         Joseph J. Merenda, Director
                         Existing Chemical Assessment Division
Enclosure
cc: C.L. Elkins
A.E. Conroy
F.F. Stiehl
Interpretive Guidance File

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                                                               84
          UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
                    WASHINGTON/  D.C.  20460

                           April 18, 1989
Ms. Elizabeth A. Treanor
Organization Resources Counselors, Inc.
1910 Sunderland Place, NW.
Washington, DC 20036

Dear Ms. Treanor,

     This letter is in response to your March 20 inquiry (a copy of
which   is   enclosed)   concerning  the  Comprehensive  Assessment
Information Rule.(CAIR). In your letter you requested responses to
three questions.  I have enclosed a copy  of  the March, 1989 CAIR
Question and Answer document, and have detailed the scenarios that
respond to your questions below.

     The  first question  relates to  whether  a  manufacturer who
applies a sealant or paint containing a CAIR listed substance to an
article which  is  distributed in commerce is subject to the CAIR.
Scenario Numbers  18  through 22,  and  Numbers 26 through 27 in the
March, 1989 Question and Answer document respond to this question.

     The  second question  relates  to  whether  a  "marketer"  or a
"refiner" of a final product which contains a CAIR listed substance
(e.g.,  gasoline)   is subject  to the  CAIR. Only manufacturers,
importers and processors are subject  to the CAIR.  Therefore, if by
a  "marketer" you mean a "distributor," then the person  is  not sub-
ject to CAIR. Further, if by a  "refiner" you mean a manufacturer of
a  final product  from a naturally  occurring  substance  (i.e.,  a
"refiner"  of crude  oil  to  manufacture  gasoline),  then  Scenario
Numbers  28 through  32  in  the March,  1989 Question  and Answer
document respond to "refiners"  in general, while Scenario Number 33
in the   March,   1989  Question  and  Answer  document   responds
specifically to a  refiner who  manufactures gasoline.

     The third question relates to whether a  CAIR listed Substance
that is present as a solvent and disperses is subject to the CAIR.
If your question relates to a CAIR listed substance that acts as a
solvent to keep a final product in solution;  i.e., the  CAIR listed
substance  [??] of a final product which is distributed in commerce,
then  Scenario Number  17  in the March,  1989 Question  and Answer
document responds  to this question. If  your question relates to a
CAIR  listed substance that  is "used" as a  solvent  in a  process
type, but  is not  a component of a final product which is  distri-
buted  in commerce,  then Scenario Number  16  in  the  March, 1989
Question and Answer  document responds  to this  question.

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                                                               85

     If you have any further questions concerning the CAIR,
please contact either the TSCA Assistance Office at (202) 5541404
or the CAIR Technical Assistance Office at 1-800-658-8823.


                         Sincerely yours,


                         Joseph J.  Merenda, Director
                         Existing Chemical Assessment Division


Enclosure

cc: C.L. Elkins
A.E. Conroy
F.F. Stiehl
Interpretive Guidance File

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                                                               86


               UNITED STATES ENVIRONMENTAL PROTECTION AGENCY


                                                        File copy

                           June 8 1989
Mr. Raymond W. Kenney
Uniroyal Chemical Company, Inc.
720 Fairport Nursery Road
Painesville, Ohio 44077

Dear Mr. Kenney,

     This letter is in response to your May 16 inquiry  (a copy of
which   is   enclosed)   concerning  the  Comprehensive  Assessment
Information Rule  (CAIR).  In your letter you  requested a written
verification that Uniroyal  Chemical  is exempt from reporting for
your use of hydroxylamine sulfate (CAS Number 10039-54-0).

      The  facts outlined  in  your  May  16  letter  indicate that
Uniroyal Chemical Company manufactures a synthetic nitrile rubber
using  hydroxylamine sulfate  as a  shortstop  (i.e.,  as  a  chain
terminator) in the polymerization process.

      The CAIR Technical Assistance Office's statements made  on May
15,  1989,  that the use of  some terminators  is  classified  as an
end-use activity, is true. When the purpose of a terminator is to
limit  the  length of a  polymer chain, however,  this  activity is
classified  as a  processing activity,  not an  end-use.  This  is
because the use of a  chain terminator is a  necessary  step in a
polymerization reaction and has a direct effect on the possible
end-uses of a polymer final product. Therefore, Uniroyal Chemical
Company is subject to the reporting requirements of 40  CFR Part 704
Subpart C as a "chemical producer" of hydroxylamine sulfate.

       EPA regrets that Uniroyal was given incorrect information and
apologizes  for  the  inconvenience.   Due to the incorrect response
given  to you by the CAIR Technical Assistance  Office on May 15,
1989, EPA is granting an automatic thirty day extension to Uniroyal
Chemical's  reporting  deadline  for  the  processing  activities
outlined in this letter. Uniroyal Chemical's new reporting deadline
for these activities is July 7,  1989.


                     [No further page(s)  found]

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                                                               87

[DATE/SOURCE?] QUESTIONS AND ANSWERS RESPONDING TO
               THE  FEBRUARY  16.  1989  LETTER  FROM 3M

Ql. 3M is not a manufacturer or  importer of  TDI, but in some cases
does react TDI completely to a polymer wherein no intentional TDI
remains. The TDI is entirely consumed on-site. The polymer is then
used in  the  production of various articles by  3M  which are then
distributed  in commerce.  A  letter  from  J.  J.  Merenda,  Director
ECAD,  to  Geraldine   V.  Cox   of  the  Chemical  Manufacturers'
Association, dated 1/18/89,  states the following:

If a substance is completely consumed on-site (i.e., not prepared
for  distribution  in commerce),  then the person processing that
substance need not report under the CAIR.

Answer  65 of  the  CAIR Q&A,  final  paragraph,  makes  a  similar
statement. These lead us to  conclude  that we do  not need to report
on this  process. However, page  8  of  the  same  CAIR Q&A, (2) under
Processing,  suggests  that if we  entirely  react the  TDI  we must
report  as  a processor. This appears to  be in  conflict with Mr.
Merenda's letter.  Therefore, we would  appreciate your clarifying
whether we must report as a processor where we  completely react the
TDI to a polymer.

Al. This misinterpretation by CMA and its member companies of the
January  18,  1989  letter  from Joe Merenda  to  Geraldine  Cox was
clarified in a subsequent  letter from Joe Merenda to Geraldine Cox,
dated March  14, 1989  (a copy of which is enclosed).

     Under the facts outlined in this question,. 3M is classified
as a "chemical producer," since 3M processes TDI by reacting it to
produce a polymer that is then  incorporated  in an article which is
distributed  in commerce. This scenario  is outlined  in  Number 24 of
the March, 1989 CAIR Question and Answer document (a copy of which
is enclosed).

Section  1

Q2. Question 1.03:  Does this question refer to  the Federal Register
notice that lists trade names? If 3M chooses to respond to the form
prior to this notice or notice from our suppliers, are we required
to fill  out  this question?

A2. This question refers to  either the December  22, 1988 CAIR rule
or the  Federal Register notice that  lists trade names,
whichever notice imposes a requirement that a person  report.

     If  3M wishes  to respond to the  form prior  to the publication
of tradenames in the Federal Register or prior to being notified by
3M's  suppliers,  3M must contact  its suppliers  and determine how
they intend to notify 3M, and answer Question 1.03 through Question
1.05 appropriately.

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                                                               88
          UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
                      WASHINGTON,  D.C.  20460
                          June 30, 1989

Mr. James W. Wiersma
Director of Human and
Financial Resources
Sparks Belting Company
3800 Stahl Drive, SE
Grand Rapids, Michigan 49506

Dear Mr. Wiersma,


     This letter is in response to your June 6 inquiry  (a copy of
which is enclosed), and  your June 23 telephone conversation with
one  of  my staff,  Robert Thompson,  concerning  the Comprehensive
Assessment Information Rule  (CAIR).

     In your  letter you  requested an extension of your reporting
deadline,  and noted  that you believed  that Sparks  Belting was
exempt from reporting under the CAIR. Your telephone conversation
with Robert Thompson confirmed the fact that Sparks Belting's use
of MBOCA  as a catalyst  is  an end-use activity;  and  that Sparks
Belting is therefore not  required to report under the CAIR.
                           i
I am glad my  staff was able to assist you in this matter.
                            Sincerely yours,
                            Joseph J. M rector
                            Existing Chemical Assessment Division
Enclosure

cc: C.L. Elkins
    A.E. Conroy
    F.F. Stiehl
    Interpretive  Guidance  File

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                                                               89
          UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
                     WASHINGTION, D.C. 20460
                        Oct 24, 1989


Mr. Thomas B. Johnston
McKenna, Conner & Cuneo
1575 Eye Street, N.W.
Washington, D.C. 20005


Dear Mr. Johnston:

     This  letter  confirms  the information you  received from Mr.
Michael  Lease of  SAIC concerning  the definition  of processing
activities  under  the  Comprehensive Assessment  Information Rule
(CAIR).

     EPA's interpretation of that definition under CAIR classifies
the activities described in your letter of September 20, 1989 [*]
to  the  CAIR  Office as  an end-use  and therefore  not  requiring
reporting under CAIR.

                         Very truly yours,
                         Charles M. Auer, Acting Director
                         Existing Chemical Assessment Division
cc: Interpretive Guidance File


[*] copy follows

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                                                               90
                          LAW OFFICES
                     MCKENNA, CONNER & CUNEO
                      1575 EYE STREET, N.W.
                     WASHINGTION, D. C. 20005
                       September 20, 1989
CAIR Office
c/o SAIC
8400 West Park Drive
McLean, VA  22102

Attention: Michael Lease

           Re; CAIR Definition of "Processing Activities"

Dear Mr. Lease:

     This  letter  follows up on  our  telephone conference earlier
today.  We request  that you arrange for the  U.S.  Environmental
Protection Agency to confirm in writing your interpretation of the
definition  of  "processing activities"  under  the  Comprehensive
Assessment  Information Rule (CAIR).  53  Fed.  Reg.  51,698, 51,718
(December 22, 1988)  (to be  codified  at  40 C.F.R. SS 704.203).

     The CAIR defines "processing activities" to mean "all those
activities which include (1) .  .  . ,  (2)  repackaging of the identi-
fied substance. Id. (emphasis added). We request confirmation that
"processing  activities" does  not include  purchasing  a chemical
substance in bulk  containers  and transferring it to smaller con-
tainers if the chemical is not  distributed in commerce thereafter,
but merely used on-site. This is  a common practice in many types of
industries,  and  placing   CAIR  reporting   obligations  on  such
companies, which are merely users of the chemicals, does not appear
to be authorized by the applicable sections of the Toxic Substances
Control Act.

Thank you for your attention to  this matter.

                                     Sincerely,


                                     Thomas  B. Johnston

TBJ:gj

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                                                               91

     "TSCA INVENTORY"

     Part 710 — Inventory Reporting Regulations
     Subpart A - Compilation of the Inventory

     40 CFR  §710.2(f),  "article"  is  defined as  "a manufactured
item:  (1) Which is formed to  a specific shape or design during
manufacture, (2) which has end use function(s) dependent in whole
or in part upon its shape or design during end use, and (3) which
has either no change of  chemical composition during its end use or
only those changes of composition which have no commercial purpose
separate from that of the article and that may occur as described
in  §710.4(d)(5);  except  that  fluids  and  particles  are  not
considered articles regardless of shape or design."

     40 CFR §710.4(d)  provides  the  following information regarding
chemical substances  excluded from the directory:  "The following
chemical substances are  excluded from the inventory. Although they
are considered  to be manufactured or processed for a commercial
purpose for  the purpose  of  Section 8 of  the Act, they  are not
manufactured or processed for distribution  in  commerce as chemical
substances per se and have no commercial purpose separate from the
substance, mixture, or article of which they may be a part: . . .
(5)  Any chemical substance which results from a chemical reaction
that occurs upon end use of other chemical substances, mixtures, or
articles  such  as  adhesives,  paints,  miscellaneous  cleansers or
other  housekeeping  products,   fuels  and  fuel  additives,  water
softening  and  treatment  agents,  photographic  films,  batteries,
matches, and safety flares,  and which is  not itself manufactured
for distribution in commerce or for use as an intermediate."

     According to 40 CFR  §710.2(t), the term  "Process" is defined
to mean "the preparation of a chemical substance or mixture, after
its manufacture, for distribution in commerce  (1)  in the same form
or physical  state as, or in a different  form  or physical state
from, that in which it was received by the person so preparing such
substance  or mixture,  or (2)   as  part of  a  mixture  or  article
containing the chemical substance or mixture."

     40  CFR §710.2(u) defines  the term "Process  for commercial
purposes" to mean "to process  (1)  for  distribution in commerce,
including  for  test marketing  purposes,  or  (2)   for  use  as an
intermediate."

     40 CFR  §710.2(n) defines  the  term "Intermediate" to be "any
chemical  substance:  (1)  Which  is  intentionally removed from the
equipment  in which it  is manufactured,  and  (2)  which either is
consumed in whole or  in part in chemical reaction(s) used for the
intentional  manufacture  of  other  chemical substance(s)  or mix-
ture (s), or  is  intentionally present  for  the purpose of altering
the  rate of  such  chemical reaction(s)."

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                                                               92

     40 CFR §710.2(v) defines a "Processor" to be "any person who
processes a chemical substance or mixture."

     FEDERAL REGISTER NOTICES

EPA  Responses  to  Comments  4  and  5   in  the  Notice  entitled
"Availability  of  TSCA  Initial  Inventory;  Beginning  of  210-Day
Reporting Period for Revised Inventory"  (44 FR 28563):

     "Comment  4;    EPA  should  recognize  that  the  terms
     •processor1  and  'user1  are  not synonymous.    If  the
     definition of 'user'is restricted to one who 'processes'
     a chemical  substance for  commercial purposes,  a: person
     who  uses a  chemical substance  to   lubricate  or clean
     machinery,  for  example, would be prevented from adding
     the substance to the  Inventory, and would risk having his
     supply of the substance interrupted.

     "Response;   EPA recognizes that there is a distinction
     between  processors  and users of chemical  substances.
     This distinction, however, is irrelevant  for purposes of
     Inventory  reporting.  Under Section 8(b)  of  TSCA,  the
     Inventory  is  to  include  substances  which have  been
     manufactured   (including   imported)   or  processed  for
     commercial purposes in the United States since January 1,
     1975.  The  Inventory reporting regulations permit users
     of chemical subsances to report substances that  have been
     manufactured  or processed  for commercial purposes since
     1975,  regardless  of  whether the user  of the  substance
     also  manufactures  or  processes the  substance.    An
     eligible  substance that is used to lubricate  or clean
     equipment may be reported for the Inventory by  a user if
     it has been manufactured or processed since 1975."

     "Comment  5:   If a  substance  reported by  a  processor
     during the 210-day period cannot be manufactured until it
     is  included  on the  Inventory,  the  processor  risks  an
     interruption  in his  supply of  the  substance  until the
     Revised  Inventory  is published in 1980.

     "Response:  EPA does not wish to impose eceonomic hard-
     ships on processors  by contributing  to the interruption
     of  supplies of chemical substances.  Therefore,  once a
     processor reports  a  substance and receives the postcard
     from EPA acknowledging  receipt of  the report form,  his
     supplier  may  continue  to  manufacture  the  substance.
     However, EPA intends  to survey reports from processors to
     determine  whether the  supplier is   a  manufacturer  who
     should  have  reported  the substance  for the Initial
     Inventory.

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                                                               93

     "Although manufacture of the substance may continue once
     the acknowledgement postcard is received, this does not
     mean that the substance is included on the Inventory at
     that time.   EPA  must first determine whether  the sub-
     stance was  reported  in accordance with  the  Inventory
     reporting regulations, i.e., the  substance is eligible
     for  inclusion on  the Inventory.    If  there are  any
     problems with the report,  EPA will notify the submitter,
     who  will be  given  an  opportunity  to make  necessary
     corrections to the  report.   If the  submitter does not
     make the appropriate amendments to the report, EPA cannot
     process the form and the substance will not be added to
     the  Inventory unless it  is  reported by  someone  else.
     Thereafter, manufacture of the substance for a use sub-
     ject to premanufacture notification requirements would be
     illegal."

     In  the same  FR  Notice cited  above,  under  "Reporting  for
Revised Inventory.  I.  Who May Report" (44 FR 28561):

     "1. a  person  who has  processed or used a chemical sub-
     stance (including use in the manufacture of a mixture or
     article containing  that chemical  substance)  for  a com-
     mercial purpose since January 1,  1975,  or

     "2.  a  person who has imported a  chemical substance as
     part of  a mixture  or article for  a  commercial purpose
     since January 1,  1975."

     From the Inventory  Reporting Regulations  (December 23, 1977),
the  following paragraph concerning DEFINITIONS  appears  in  the
Preamble  (42 FR 64574):

     "EPA wishes  to  emphasize  that the terms  used in  these
     regulations  may not  be  wholly  consistent  with  the
     ordinary  usage  of   such terms.   For example,  the term
     'manufacturer1 includes  importers.   As used  in  these
     regulations, the  terms 'manufacturer1  and 'processor' may
     both apply to a person who normally would consider him-
     self one  or the  other.   "Intermediate"  refers only to
     those  intermediates which are  isolated or removed from
     the  equipment in which they  are  manufactured.  Persons
     should be sure they understand the special meanings of
     the terms used for  purposes of these regulations.

     In Part 710. 3 (c)  of  the Inventory Reporting Regulations (42 FR
64577) :

     "(c)  Persons  not   subject  to the  initial  Inventory.
     Persons who have only processed or used a chemical sub-
     stance for  a commercial purpose  are  not subject to the
     initial Inventory requirements."

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                                                               94

     In the  Instructions  For  Reporting  for the Revised Inventory
(June 1979),  on page 5, the  following  passage  describes  who may
report:

     "A.  Who May Report

     "The following  persons may report  a chemical substance
     that is not included on the published Initial Inventory
     for inclusion on the Revised Inventory:

     "(1)   a person who has  processed or used  a chemical
     substance  (including use in the manufacture of a mixture
     or  article containing that  chemical substance),,  for a
     commercial purpose since January 1, 1975."

     On  page 9  of  this June,  1979 instructions manual  for the
Revised  Inventory  is a paragraph under part D:  How to Determine
Whether to Report:

     "In  general,   if  a  processor  has  received  written
     certification  from  his  suppliers  that all  component
     chemical substances in the product(s) he processes have
     been reported for the Inventory, the processor should not
     be concerned about reporting."

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                                                               95


     "PAIR"

     CODE OF FEDERAL REGULATIONS (CFR)

     Part 712 — Chemical Information Rules
     Subpart A - General Provisions

     According to 40 CFR §712.3,  all definitions that are given in
section 3 of TSCA apply to this part.   In addition, 40 CFR §712.3
provides the following definitions.

     40 CFR §712.3(m)  defines "Process for commercial purposes" as
"the preparation  of a  chemical  substance  or mixture,  after its
manufacture,  for  distribution  in  commerce  with  the  purpose of
obtaining an  immediate or eventual commercial advantage  for the
processor.   Processing of any amount of a  chemical substance or
mixture is included. If a chemical or mixture containing impurities
is processed  for  commercial purposes, then those impurities are
also processed for commercial purposes."


     PROPOSED RULE

     Federal Register / Vol.  45, No. 42 / Friday, February 29,  1980
     / Proposed Rules  / Starting Page 13646  	

40 CFR Part 712

[OTS-082004b; FRL 1385-4]

Pesticides and Toxic Substances;
General Recordkeeping  and Reporting
Requirement: Preliminary Assessment
Information  	

ACTION: Proposed rule; notice of opportunity to comment.

SUMMARY: This rule,  proposed under the authority of section 8(a) of
the  Toxic Substances Control Act  (TSCA),  would  require chemical
manufacturers (including miners and importers) and,  in some cases,
processors  to  report  production  and  exposure-related data on
approximately 2300 chemicals to the EPA.  This information will be
used both   for  ranking  chemicals   for  investigation  and  for
preliminary  risk assessments Additional chemicals may be added to
this rule in the  future;  therefore,  any chemical manufacturer or
processor is potentially subject to the  proposed requirement.
Comments  are requested on both the  general  procedures of this  rule
and  the chemicals proposed at this time	

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                                                               96

l . Background

A.  Legal Authority

     Section 8 (a)  of  the Toxic Substances Control Act (TSCA) , 15
U.S.C. 2607(a),  authorizes  the Administrator to promulgate rules
"under which  .   .  .   each person .   .   .   who manufactures or
processes  or  proposes  to  manufacture   or   process  a  chemical
substance .  .   .   shall maintain such records, and shall submit to
the Administrator such reports, as the Administrator may reasonably
require." [emphasis added].  See TSCA section 8(a)(l)(A).  In the
case  of  manufacturers  or  processors of mixtures  or of small
quantities of  research and  development  chemicals these rules may
require maintenance of records and submission of reports  "to the
extent  .   .   .  necessary  for the effective enforcement of this
Act." [emphasis added] .  See TSCA section 8 (a) (1) (B) .   Section 8 (a)
rules  may require a  manufacturer or  processor  to submit  any
applicable data  "insofar as known  to the person making the report
or insofar as reasonably ascertainable [emphasis  added] .  See TSCA
section 8 (a) (2) .

     Thus,  the  standards  governing EPA's  information  gathering
authority under  section  8 (a) are that reporting and recordkeeping
requirements   be  "reasonable"  (or  "necessary  for  effective
enforcement of this Act") and that  the information required in the
report be "known to" or "reasonably ascertainable" by the reporting
person.

     Section 8,  also,  imposes  certain limitations  on  the Agency's
information gathering authority. To the extent feasible EPA is not
to  require any  unnecessary  or duplicative  reporting.   See TSCA
section 8 (a) (2).   For  purposes of  section 8 (a), manufacturers and
processors are  persons who  manufacture  or process chemicals "for
commercial purposes" (see TSCA  section 8(f)) .   Furthermore,  section
8 (a) generally  exempts small manufacturers or processors from the
provisions of  section 8 (a)  rules,   although  these persons may be
subject  to 8 (a) under certain circumstances.   See  TSCA  section
D. Comments Somght

     The Agency urges all manufacturers,  importers, and processors
of chemical  substances and mixtures to  comment on this proposal
whether or not they are associated with the chemicals proposed now.
It should be assumed that any chemical  substance or mixture may in
the  future become subject to  the promulgated rule.  The reporting
and  recordkeeping provisions of the rule will remain the same once
the  rule is promulgated, but the list of chemicals subject to these
requirements  will be  increased  by amendment.    Comments  will be
solicited in the future on the chemicals to be  added.  Comments on
the  requirements and procedures of the  rule  should be submitted
now.

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                                                               97

     On June 27,1979, EPA published an Advance Notice of Proposed
Rulemaking  (ANPR),  44  FR 37517, soliciting  comment on proposing
this type  of rule.  Many  informative comments  were  received in
response.  In addition,  EPA staff have met with interested persons
from  public  interest  groups  and  from the chemical  industry.
Comments received and  minutes  of  meetings are  available  in the
public record of this rulemaking.

2. Contents of the Rule

A. Summary

     This proposal consists of a rule with a reporting form.  The
proposal contains two phases of reporting.  First  manufacturers and
importers  of specified chemical substances  would  be  required to
answer general questions concerning production, use, and methods of
processing  with  regard to those chemicals,  including use  of the
chemicals  by  their  customers.    Second,   if   manufacturers  or
importers have been unable to report customer uses,  their customers
may be required to submit this information to EPA.  This subsequent
customer reporting would not be required unless the  aggregated data
from the initial reports on a particular  chemical are  insufficient
for evaluation	

C. Who Must  Report

     The proposed rule would require the manufacturers, including
importers, of the chemicals  listed in section 712.18(a) to complete
and submit  the proposed EPA form  (see Appendix I of the proposed
rule) within 60 days of the  effective date of the rule. The direct
customers of manufacturers would be subject to subsequent reporting
of the  information requested in Part B  of  the  form,  but only if
manufacturers cannot supply sufficient information. The customers
required to  report would be processors or manufacturers.  Persons
who mine chemical substances are manufacturers and are subject to
initial  reporting.   Customers  could include repackagers, persons
who incorporate  chemical substances into mixtures  or  articles,and
persons who  react chemical  substances.

     The  following manufacturers  and  importers would be excluded
from  the initial•requirement to submit  the  form.   Each proposed
exclusion will be reconsidered in  response  to public comment.  The
final  rule  may  include some  persons   covered  by the  proposed
exclusions.  Therefore, commenters should address these exclusions
with this  possibility  in mind	

      (2) Small manufacturers and importers. (See section  7 of this
preamble,  "Small Manufacturers  and Processors".) 	

      (7) Manufacturers and importers of mixtures. Unless they also
manufacture  the   chemical  substance(s)   they   mix,   mixture
manufacturers  are only subject to subsequent customer reporting.

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                                                               98

Further,  this  subsequent report would  not be  required  if their
activities  are  adequately described by the manufacturers of the
chemical  substance(s)  in the  initial  reporting under  the rule.
Manufacturers of mixtures are processors of the chemical substances
they mix.   (A person may both manufacture  a chemical substance and
formulate a mixture  containing that substance;  in which case, he
would be subject to the  initial reporting requirement.)

     While  this rule is not  directed to  information about mixtures
per se,  it will under the  customer reporting  requirements  (see
section  3  of  the preamble)  require  submission  of information by
persons who manufacture  or  process  mixtures.   To the extent that
information is required from such persons,  such information will be
necessary to establish exposure and use information that will aid
the Administrator in invoking the provisions of TSCA.  Accordingly,
the  Administrator  finds that  it   is  necessary  for  effective
enforcement of TSCA to  obtain limited information on mixtures under
this rule	

     In general, having  the persons listed above report initially
would result in a burden that may not be justified for the purposes
of this rule.   Information that might be provided by those excluded
can be  obtained as needed  either through customer  reports under
this  rule  or,  for fewer chemicals,  under subsequent  section 8
rules.  Since the purpose of the rule is to identify chemicals with
major  exposure  potentials,   the  Agency  believes  the  general
information that  can  be provided  by  primary  manufacturers and
importers   and  a  few  selected customers  will  be  sufficient.
Commenters  should  address   this view when  commenting  on  the
exclusions.  For chemicals that might indirectly present exposure
risks  (e.g.,  via   impurity contamination  or  as components of
articles) additional,  more  detailed information will be obtained
under the General and Detailed  Assessment  Information Rules—after
a significant suspicion  of toxicity hazards has been identified.

     The  Agency requests comments on  the appropriateness of the
proposed  exclusions.
D. Content of  the -Reporting Form

     The proposed  form would require reports of the quantities of
a  chemical  that  are  being  handled  in  various  ways  by  both
industrial  workers and the  general population.    It  would also
indicate how much  of  the chemical is released to the environment.
For  details  of the- form, see "Preliminary Assessment Information
Report", with  instructions, which appears in Appendix I.

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                                                               99

Form Part A; Manufacturers' Activities

     Part A of the form requires the chemical manufacturing company
to answer questions describing its methods of manufacturing and its
own uses of the  reported  chemical  after manufacture.   The parent
company is to report the  data on one form for all plant sites it
owns or  controls.   The parent  company owns  or  controls another
company if the parent  owns or controls 50% or more of the other
company's voting stock.   Companies  must  report how  much  of the
chemical was made and how  much was  lost  to the environment for the
previous  calendar  year.    Respondents must identify  the general
manufacturing process types employed (open, controlled release, or
enclosed), the number of workers involved, how much of  the chemical
was used and over what  period of time.   The headquarters or parent
company then must report on its  own plants' and subsidiaries' uses
in three broad categories of use:  (1)  "Use as a Reactant",  where
the chemical is reacted and therefore no longer exists  as such; (2)
"Use Other Than as a  Reactant",  where the chemical  is  not changed;
and  (3)  "Consumer Products", where the company  also produces  a
consumer  product containing the chemical.2   The  Agency requests
comments  on whether  reporting should  be by headquarters,  as
proposed, or by  individual plant sites.

     In question 4, the form asks the manufacturer to identify by
process type the total quantity of the chemical manufactured, the
number  of workers  and the  length  of  time  they work with the
chemical.   So  that total worker exposure  at  manufacturing plant
sites  is  not underestimated, the  submitter  should  report  total
chemical  production, regardless of its ultimate  use.   All other
questions refer  only to chemical production regulable under TSCA.
(See  the  discussion under  section  4,  part  D  "Information  on
Non-TSCA Uses".)

     For  use  in consumer  products,  question  7, persons  must
identify  the type of exposure potential possible to the consumer
simply by describing the  chemical as being part of  an  article that
does or  does not release the  chemical during normal use,  or as
being a substance or  a  mixture that is itself used by the consumer.
This section also asks how much of the chemical the manufacturer
sells  to  persons who  only  distribute the chemical.   Use  of the
chemical  by customers  is  to be reported under Part B.

Form Part B; Use of the Chemical by Others

     In many cases a manufacturer or importer sells a chemical to
another  company  that, in  turn,  manufactures another  chemical
substance, makes a mixture, or otherwise prepares  a substance for
     2Note: The "use" to which a manufacturer or a manufacturer's
customer puts a chemical may technically be described as
"processing" as defined  in section 3 of TSCA.

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                                                              100

distribution.  In Part B of the form manufacturers are to report on
their customers' use of the chemical.  Manufacturers are asked to
specify how much of the chemical is reacted or not reacted by the
customers,  what process  types  they use,  and  how  much  of the
chemical  is  incorporated  into articles.   Manufacturers  are also
asked if  their customers incorporate the  chemical into consumer
products  and,   if  so,  how  much goes  into articles or  is used
directly by consumers.

     Question  12  asks  for the  quantity of the  chemical  that is
exported  in  bulk.     This  quantity  subtracted  from the   total
production will aid in estimating the amount of  the chemical that
is used in the United States  that may be released in this country.
The  Agency has  explored  other  sources  for this  information in
developing regulations under TSCA section 12, notice of exportation
(see proposed  rule,  44 FR 56857).    While  the  Census Bureau does
monitor exports, this  information is not chemical-specific  (i.e.,
figures are kept on broad categories of chemicals).

E. Reporting Schedule  and Procedure

     The  proposed  rule contains  two  rounds  of  reporting: (1)
initial  reports on  the form by manufacturers  and  importers of
specified  chemicals  and (2)  subsequent  reports for Part B of the
form by certain customers of those initial respondents.

     The proposal requires manufacturers and importers to maintain
records  of their customers.   The  records of customers  using a
particular  chemical  would  be  submitted  to  the  EPA if,   after
aggregation  and evaluation  of the forms received in the initial
reporting,  the Agency  determines that  the manufacturer reported
significant quantities of customers use or exposure as "unknown".
The records then would be used to identify the customers who must
report  under  the  subsequent reporting  requirement.    EPA  would
contact  the customers  by  letter instructing them to  supply the
information in Part B  of the form.   Customers would be subject to
this reporting for  a period of two years after the effective date
of the rule.

     Customers who  may have  to  report  will  be the  immediate
customers of the manufacturers or importers filing initial reports.
Such  customers could  include makers of mixtures, other chemical
substances,  and  articles,  and repackagers.     The Agency has
authority to require subsequent reports from chemical manufacturers
and  processors further down  the commercial chain, e.g.,  from the
customers  of the mixture maker or repackager.   However, this  could
require  a very large number of time-consuming rounds of reports,
letters   for   customer lists,   and  letters to   the  appropriate
customers.  The issue  of who should report  is discussed more  fully
in section 3  of this  preamble.

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                                                              101

F. Customer Lists

     As described above,  manufacturers and  importers must maintain
customer records for a period of two years.  EPA could, under the
rule, send a certified letter to  a company  requiring submission of
a list of customers for which that company did not report uses or
exposures (the complete customer records would also be subject to
inspection under section 11 of TSCA).  EPA would use this list to
decide which customers should submit subsequent reports. Submission
of customer lists would be required only when significant quanti-
ties  for customer  activities were  reported as  unknown  in the
initial manufacturer  reports  and the  toxicity of the chemical is
either significant or unknown.  The amount of this unknown infor-
mation would also have to be great enough to make it impracticable
to complete evaluation of the chemical.

     Section 712.18(b) of the rule  is  reserved for a separate list
of chemicals  for which customer lists would  be  submitted at the
same  time  as the  form.   At  present  EPA has not  identified any
chemicals for  this list.  However, in the future,  chemicals for
which  immediate  customer identification  is necessary may be pro-
posed. The Agency will propose for comment  the chemical substances
for which customer  lists are to  be submitted immediately and the
reasons they are needed.

     Industry comments have expressed much concern over providing
customer lists to EPA because of  their competitive value. However,
EPA will safeguard any information determined to be confidential
business information  as  provided in 40 CFR Part 2,  as amended on
September 8, 1978  (43 FR 39997) and March 23, 1979 (44 FR 17673).

     The Agency  is  also  considering the  alternative of a general
requirement for  all customers to report for those chemicals whose
uses are unknown to their manufacturers.   As described above, the
Agency would review the manufacturers' forms  and  would identify
chemicals where  significant quantities were  reported as unknown
with respect to  customer uses.  OPTS would then issue, under this
rule,  a Federal  Register notice that  would  be effective without
further comment  for those chemicals.  The requirement would state
that  all  persons who purchase any  one of  the specified chemical
substances  from  its  manufacturer must report the use information
for Part B of the form.  This alternative,  because it would not be
as selective as  the proposed contact  of  listed customers, would
increase the  number  of customers who have to report; however, it
would  avoid the  problem  of submission  of sensitive customer lists
to EPA.  One difficulty  may be that some customers who buy trade-
name products would not know they are  subject  to reporting, unless
specifically notified by the manufacturer or EPA.

3.  Issues and  Comments Received  on  the  Reporting of  Uses and
Exposures

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                                                              102

A. Knowledge of Customers' Uses

     The Advance Notice of Proposed Rulemaking requested comments
on the  sufficiency of manufacturers'  and importers' knowledge of
their customers'  uses and methods of  processing.   Most industry
commenters said that  only their customers would have..specific use
information.   Many industry commenters said  they  would not have
exposure-related  information for their  customers.   Nonetheless,
many also agreed that manufacturers do know  general  information of
the kind appearing in this proposed rule.  This knowledge could be
significantly  limited,  they said,  depending  on   the  following
factors:

     (1)  Production  volume —  Large  volume manufacturers  can
identify the major uses for the chemical which account for a large
percentage of  their production, but may not know minor uses.

     (2) Use  of distributors —   If  the  manufacturer  sells to a
distributor, he may or may not know the chemical's  uses.

     (3) Specialty chemicals and proprietary products  — Uses of
specialty chemicals may be proprietary and may not  be revealed to
a manufacturer since  he is a potential competitor.

     For  (1)  and  (3), where manufacturers do not know their cus-
tomers' uses,  EPA  will contact the customers  as needed.  For sale
to distributors,  however,  under  section 8(a)  of TSCA,  the Agency
cannot  require reports  from  distributors.   The  proposal  does
include a provision to report how much was sold to distributors and
to record them as customers.  EPA could then request the distri-
butors to voluntarily supply  information. If significant quantities
are sold to distributors and information is  not given voluntarily,
it may  be necessary  to require  reports under another rulemaking
from all processors who buy  from distributors.

     One of the points made by industry commenters was that they do
not  generally know  exposure  related  information  for  their
customers' plant sites or products.  The form does not directly ask
manufacturers  to describe  exposure as such.   Instead, it asks for
the types of processes used  by the customers  and whether consumer
articles  or mixtures are made by  them.   EPA will  then arrive at
exposure potentials from this information.  Some industry comments
have indicated that this  information  is often known.

     Perhaps   the  most   significant   issue   raised by  industry
representatives is that while a company knows how its customers use
a chemical, such  information may be subject to formal or informal
agreements  to  keep  the information  confidential.   EPA  has the
authority  to  obtain  such  information insofar as  it is known or
reasonably  ascertainable,  regardless  of  any secrecy agreements.
However,  this rule does not propose  requiring  reporting of this
information for  the  following reasons:  (1)  for  the  most part,

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                                                              103

manufacturers can  describe  their customers'  uses  in the general
categories provided without revealing significant trade secrets and
(2)  the rule  provides  customers the  opportunity  to  make and
substantiate claims of confidentiality  to  EPA.   The rule instead
allows manufacturers to report uses and exposures that are either
truly unknown or subject to secrecy agreements as "unknown".  EPA
would then have  the option of obtaining a report,  together with the
confidentiality claims, directly from the customer	

C. Subsequent Reports by Customers

     As proposed,  the  rule would require  reports  from  customers
upon notification  by certified  letter  from EPA.   Customers would
provide the information the manufacturers were unable to provide in
Part B of EPA Form No.  7710-35.  The Agency may use the  same form
or  develop  a  slightly  modified  form  for  customer  reports.
Customers  would only  have to  report  information  on  their own
activities.  The required accuracy of reported quantities would be
the same as it is for manufacturers making initial reports on their
own activities.   "Small"  manufacturers  and  processors would not be
subject  to  this  requirement   (see  section  7,  below,  "Small
Manufacturers and  Processors").   This  follow-up provision would
only  be used  when significant  quantities  of  the  chemical are
reported by  all manufacturers  under  the "unknown"  category.   EPA
has the authority  to require  all manufacturers and processors to
report initially; however, this approach is proposed  in  an effort
to reduce the reporting burden.

     Some industry commenters have suggested  that all customers be
required to  submit subsequent  reports  so that companies who have
not  had  their  activities  described  by  manufacturers are not
burdened more than those who have.  However,  the  proposed rule was
designed with an effort to minimize the overall reporting burden on
industry; the result of universal follow-up would be to defeat this
effort  and   to  duplicate  information   that   is  reported  by
manufacturers.

     The Agency solicits  comment on whether all customers should be
required  to submit  subsequent  reports,   whether   sampling  is
possible, or whether only customers  whose  activities are unknown
should report.

4. Issues and Comments on Reporting Information Under Section 8(a)

     The Agency has received  comment that  it should  obtain under
this rule sufficient data to conduct  complete risk assessments for
as many chemicals  as possible.   While the  Agency would  prefer to
have ready access to complete data on any chemical that may come to
its  attention,  this is  not practical  or  feasible.   The Agency
simply does  not have the  resources to examine in a relatively  short
period  of  time  detailed  data  on large numbers of chemicals.  EPA
believes  it  is  unnecessary to subject chemical manufacturers and

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                                                              104

processors  to such  a substantial  reporting  burden in  order to
supply EPA with information that will become significantly outdated
before it can be reviewed.  Because of this resource limitation and
the burden on  industry, OPTS has developed  the assessment process
and corresponding reporting rules described below	

B. Preliminary Assessment Process

     EPA has  determined that  it should obtain broad use-exposure
data for purposes of  this rule for  several  reasons.  First, finer
details would be lost and unnecessary  in the process  of setting
relative priorities among a few thousand chemicals. Second, it is
more  likely that manufacturers  will more  accurately  be able to
describe their customers'  activities by such categories.  Third,
these broad  categories should  obviate most problems of  revealing
customer trade secrets.  Fourth,  in developing the form, the Agency
found that  the alternative  to  this  simple set of categories  is a
significantly  more  complex  system.   For example, in an  effort to
describe the possible uses of chemicals the Agency  had developed a
list of several thousand function and application terms ("Chemical
Use List", 43 FR 32222). These in turn would have to be related to
a  measure of  exposure for each use.   Not only  is such detail
unnecessary for preliminary assessment,  it would be  highly resource
intensive  for both  EPA and industry given the large  number of
chemicals involved.   Such an exercise is more appropriate for the
later section  8(a) rules that concentrate on fewer  chemicals.  The
Agency thinks the proposed form will obtain valuable information
for both priority-setting and preliminary assessment	

     Information concerning process  types and the number of workers
involved in manufacture and industrial use (form questions 4, 5, 6,
and 9) relates primarily to an assessment of occupational  exposure.
The information on process  types  can also be used for environmental
release estimates.  This information is thus useful  for assessments
of general population exposure	

D. Information on Non-TSCA Uses

      TSCA   gives   EPA  regulatory  authority  over    "chemical
substances"  and  "mixtures."   Section  3(2)(B)  of   TSCA  excludes
several  types  of  chemicals   from  the  definition of  the   term
"chemical substance."   Among these  exclusions are  the following:

      (ii)  any pesticide (as defined  in the Federal Insecticide,
Fungicide  and Rodenticide  Act  [FIFRA])  when  manufactured,   pro-
cessed, or distributed in commerce  for  use  as a  pesticide, ....

      (vi) any food,  food additive,  drug, cosmetic, or  device (as
such terms are defined in section 201  of the Federal Food, Drug and
Cosmetic Act  [FFDCA]) when manufactured, processed, or distributed
in commerce for use as a  food,  food additive,  drug,  cosmetic or
device.

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                                                              105

     Many chemicals subject to regulation under FIFRA or the FFDCA,
however are also used as chemical substances which may be regulated
under TSCA.  Part of a company's production or use may be subject
to TSCA and part subject to regulation under the other authorities.
For EPA's interpretation on when the different statutes are appli-
cable in specific circumstances  see 42 FR 64585-86 (1977) and 43 FR
11115-16 (1978).

     On question 4  of  EPA Form No. 7710-35,  the Agency proposes to
require a manufacturer to report the total quantity  of the chemical
he manufactures (including quantities not regulable  under TSCA) and
to report  information on the number of people who work  with the
chemical and for how long.  EPA  requests total chemical production
information  in  order  to  insure  that  the worker exposure  to the
chemical  is not  underestimated. The  risk of worker exposure is
independent of the  statutory authority under which the chemical may
be regulated.

     EPA believes  it has the authority to obtain information on the
total quantity of chemical produced by a manufacturer even though
some  of that  production is beyond  EPA's  regulatory  authority.
Section 8(a) authorizes EPA to obtain from chemical manufacturers
such information as the  Agency  may  "reasonably require".   In the
very limited circumstances of this rule it is reasonable for EPA to
require  information  on  total   chemical  production  in order  to
properly  assess  worker  exposure and  set priorities.   Further,
persons required to report will experience a negligible incremental
burden  in  reporting total chemical  production as opposed to only
TSCA production.

     EPA realizes  that  its position  on this issue  may be contro-
versial  and  the  Agency especially  solicits   comments  on  the
authority  it is asserting to  obtain limited production  data on
non-TSCA chemicals  that  are  also regulable under TSCA.   EPA also
solicits suggestions on  methods  to properly assess  worker exposure
without obtaining data on total production of the  chemical to which
the  worker may be  exposed.   Note  that section 8 (a) (2)  of TSCA
specifically  states that EPA may  obtain  data  on the  number of
workers  exposed to  a  chemical substance  and  duration  of  such
exposure.  The Agency  believes that worker exposure  to a particular
chemical stream cannot reasonably be separated into  the exposure to
the TSCA and non-TSCA regulable proportions	

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                                                              106

6. Definitions

     Most of the definitions in this proposal  are  taken, some with
minor and nonsubstantive modifications, from the  [TSCA] Inventory
Reporting Regulations,  40 .CFR 710.2, the proposed Premanufacture
Notification Rule, 44 FR 2264, and the proposed Health and Safety
Study Reporting Rule, 44 FR 77470.

7. Small Manufacturers  and Processors

     Section 8(a)(3)  requires the Administrator to prescribe, by
rule,  standards  for  determining who  may  qualify  as   a  small
manufacturer or processor.  Such  small businesses are then exempt
from section 8(a)  rule requirements,  unless the chemical substance
manufactured or processed is  subject to certain proposed  or final
actions  by  the Agency,  including section 4  test rules.   It is
possible that some of the chemicals proposed  for this rule will be
subject to proposed test rules under TSCA section  4 when this rule
is promulgated.   In that case, small manufacturers and processors
would be subject  to reporting for those chemicals.  The following
small business exclusion is proposed for this rule:

     No  manufacturing  or  processing company  must report  for  a
chemical substance if:

      (1) its total sales for all products at all sites together are
less than $30 million for the reportable year, AND

      (2)  its production  volume  at each  site for  the   chemical
reported was  less than 100,000 pounds (45,400 kilograms)  for the
reportable year.

     The  reportable  year  is  1979 for these  proposed chemicals.
Figures  would be based on  activities  at all  of  the plant sites
controlled or  owned  by the reporting parent company.  The parent
company  owns  or  controls  another company if the  parent  owns or
controls 50% or more  of the other company's voting stock.

     The  Agency has  done an  economic  analysis for this  proposed
rule using the reports  from the Inventory Reporting Regulation (40
CFR  710)  and Dun and  Bradstreet  data  to estimate production and
sales.  The support document entitled "Economic Impact Analysis" is
the source for the following  figures.

     The above criteria would eliminate approximately 9.5% of the
companies that manufacture the chemicals  subject to this proposal.
Only  10% of the  reports that could be submitted  by all  manufac-
turers  for  each  chemical would be  excluded.   Given an estimated
average  of 5 chemicals  per company,  companies with sales less than
$30  million could be subject to costs  of approximately $2,600.
This  cost would only be incurred if production were greater than
100,000  Ibs. for the reportable chemical.  The Agency proposes that

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                                                              107

this quantity is significant in  its possible exposure implications
and therefore is justified.  The savings to small companies amounts
to about $580,000 altogether.

     The Agency will consider comments on raising or lowering the
sales or volume cut-offs of  the  proposed small business exclusion.
One important consideration  is that the cost to an individual small
company could be great.   This is particularly  so with the require-
ment to report  if production is greater than 100,000 Ibs., since
many companies that  are  "small"  by virtue of their sales volume are
not small with respect to their production volume.   Indeed,  as many
as two thirds of the companies with sales under $30  million may not
qualify as small because of the 100,000 Ib. cut-off.

     An alternative approach, that would relieve the burden  on very
small  companies,  is to totally exclude any company below a set
sales  value,  regardless of  production  volume.   Such  a standard
would be as:

     (1) No company  with total business sales below  $x must report,
and

     (2) No company with total  sales  between $x and 30 million and
that  made  less than  100,000   pounds  of  a  reportable  chemical
substance at each site must report on that chemical.

     If x were equal to  $1 million, about 16% of the companies that
manufacture the chemicals subject to this rule would be eliminated,
with a loss of 13% of total possible reports and a savings to small
companies  of about  $740,000.   If  x  were $3  million,  24%  of the
total firms would be eliminated and 16%  of the total reports would
be lost and  small companies would save about $1,040,000.

     This  second approach,  while  affecting a small percentage of
possible reports, could eliminate significant information on uses
peculiar to these smaller companies.  The  agency requests comments
on whether the  volumes and the  uses of the chemicals manufactured
by  such small  companies  are apt  to  differ from those of larger
companies.   If  a significant number of chemicals are made only by
"small" companies as defined in this proposal it may be necessary
to lower the sales  and/or offer volume cut-offs.

     The economic impact of  this proposal is discussed generally in
the next section of  this preamble.  The total cost of the rule does
not vary  greatly with changes  in  the sales cut-off since most of
the reports will be completed by larger  companies (primarily those
greater than $100 million in sales) and since most of the chemicals
are produced in large quantities.

     The  small business definition proposed  for this  rule has a
relatively  large sales cut-off of  $30 million.  This compares with
previous definitions under TSCA rules of $5 million and $1 million

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                                                              108

(Inventory  Reporting Regulations,  40 CFR  710.2 (x) ,  and proposed
Premanufacture Notification Requirements, 44 FR 2277).  The Agency
proposes that,  since the information is to  be gathered for pre-
liminary evaluations, rather than for detailed risk assessments, it
is appropriate  to exclude a relatively  large portion of smaller
firms.   However,  in later  rules  under  section  8(a),  e.g.,  the
General and Detailed Assessment Information rules  described above,
that  will  apply  to  a fewer number  of  chemicals that  are under
scrutiny for possible control regulations,  it will be necessary to
obtain as complete a body of information as possible.  Therefore,
the definition of  "small" will probably have a lower dollar value
for those rules.

     The Agency solicits comments  on the  various  approaches to
excluding small  businesses from reporting requirements under this
rule.    Comments  should include  data   on  the  impact   on  small
companies and the likelihood  that they have  significant information
for the Agency.

8.  Economic  Impact

     A complete  analysis of  the economic impact of this proposed
rule  is  included in  the public record under the title,   "Economic
Impact  Analysis".    Copies  may  be requested.    This  section
summarizes  that  analysis.

     Approximately 1200  companies  will  be  subject to the initial
manufacturer report on the chemicals  listed in the proposal.  Based
on the average of the number  of reports (chemicals) per company and
the small business exclusion discussed above, the total cost of the
initial  report  would be $6  million.   The cost to any one firm is
dependent on the number of listed chemicals it manufactures.  This
number ranges from 1 to 300, with the estimated mean at about 5.
Cost estimates are based on a $480 fixed  cost per  company and $420
variable cost per chemical.

      Since  the  Agency does  not know the extent to which manufac-
turers will be able to supply customer information, it is  difficult
to estimate the total cost of subsequent reporting by customers.
The cost to a customer for filling in information for part B of the
form  should be  much  less than  the cost of the manufacturer report
since  less  information  is  involved  (approximately  $210 per pro-
cessor) .  If the Agency follows up on 50 to  100 manufacturers, with
10 customers per manufacturer,  the cost of customer follow-up would
be about $105,000 to $210,000.

      These  costs could  change significantly  if  comments to this
notice  result in  changes for the  final rule.   If  the accuracy
required in reporting is increased or the kinds of companies that
must  report are  expanded, the cost of the final rule could be much
higher.  For example:

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                                                              109

     (1)  If the accuracy of reporting is changed to requiring two
significant figures for manufacturer reports, the variable cost of
filling in  the form for one  chemical could change  from $420 to
$1020.

     (2)  If persons who manufacture  the  chemical as a byproduct or
impurity are  included,  the number  of respondents  would increase
greatly.   This would be affected by any applicable minimum volume
cut-off.   The  larger  the  cut-off,  the  fewer  the  number  of
respondents.

     (3)  If processors were included in the  initial report, the
number of  persons  subject  to the  rule would increase  at  least
10-fold as there  are  at  least  10  processors per  chemical and
probably more  for  the  high  volume  chemicals;  the cost would also
increase significantly.


     The Agency  solicits  comments  on the  economic  impact  of the
proposed  rule and on  the  impact   of  any  of  the  alternatives
mentioned in this preamble	


It  is  proposed to  revise  Part 712  of  Chapter I of Title  40 as
follows:

PART 712-GENERAL RECORDKEEPING AMD REPORTING RULES

Subpart A — General

Sec. 712.1-712.9  [Reserved]
                                ..*' o .
Subpart B — Preliminary Assessment  Information

712.11 Scope and compliance.
712.12 Definitions.
712.13 Who must report.
712.14 Initial submission of  forms:  What
     must.,be reported.
712.15 Customer lists.
712.16 Confidentiality claims.
712.17 Reports by  customers.
712.18 Chemical substances.
Appendix I: Form No. 7710-35, Preliminary
     Assessment Information Report;  Instructions.
Appendix II: Substantiating Confidentiality
     Claims.
Authority:  Section 8(a), Toxic Substances
Control Act, Pub.  L. 94-469  (90 Stat. 2003, 15
U.S.C. 2601 et. seq.).

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                                                              110

§ 712.11 Scope and compliance.

     (a) Under the general recordkeeping and reporting authority of
section 8(a) of the Toxic Substances  Control Act  (TSCA), 15 U.S.C.
2607(a), this rule  requires  manufacturers of  selected chemical
substances to report production, use, and exposure information on
listed chemical substances.  These manufacturers are requested to
report  information  on  their  own  and  customers'  activities.
Customers of  the  manufacturers  of  the  selected substances may be
required to report subsequently. These  subsequent reports will be
required when the manufacturers'  responses are  incomplete  as to
customers'  activities.

     (b) Subsection 15(3) of TSCA makes  it unlawful for any person
to fail or refuse to submit information required under this rule.
Section 16  provides that a violation of section 15 renders a person
liable  to  the  United States  for  a civil  penalty  and possible
criminal prosecution.  Under section 17, the district courts of the
United  States  have  jurisdiction  to restrain  any  violation  of
section 15.

§ 712.12 Definitions.

     The definitions in section 3 of  TSCA, 15 U.S.C. section 2602,
apply for this rule.   In addition,  the following terms are defined:

     (a)  "Byproduct"  means any  chemical  substance  or  mixture
produced  solely  without  separate  commercial  intent  during  the
manufacture,  processing, use,  or  disposal  of  another chemical
substance(s)  or mixture	

     (g)  "Intermediate" means  any  chemical  substance which  is
consumed, in whole or in part, in chemical reaction (s) used for the
intentional manufacture of other chemical substances or mixture(s),
or is intentionally present for  the purpose of altering  the rate of
such chemical reaction(s).

     (h) "Manufacture for commercial purposes"  means  to import,
produce, or manufacture with the purpose of obtaining an immediate
or  eventual   commercial  advantage   for  the  manufacturer  and
include(s), among other things,  such "manufacture" of any amount of
a chemical  substance  or mixture,

     (1) For commercial distribution, including for test marketing,
and

     (2) For  use by the manufacturer,  including use for product
research and  development, or as an intermediate.

Manufacture for commercial purposes also applies to substances that
are  produced  coincidentally during  the manufacture, processing,
use, or disposal of another substance  or mixture,  including both

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                                                              Ill

byproducts that are separated from that other substance or mixture
and impurities  that remain  in  that  substance or  mixture.   Such
byproducts  and  impurities may,  or  may  not,  in  themselves have
commercial value.   They are nonetheless produced for the purpose of
obtaining  a  commercial  advantage  since they  are  part  of  the
manufacture of a chemical product for a commercial purpose.

 (i)  "Mixture"  means  any combination  of two  or  more  chemical
substances if the combination does not occur in nature and  is not,
in whole or in part, the result of a  chemical reaction; except that
"mixture" does include (1) any combination which occurs, in whole
or in part, as a result of a chemical reaction if the combination
could have been manufactured  for  commercial purposes  without a
chemical reaction  at the  time the  chemical  substances comprising
the  combination  were  combined,  and if all  of  the  chemical
substances  comprising  the  combination  are  included in  the  EPA
Chemical  Substances Inventory  after  the effective date  of  the
premanufacture notification requirement under 40 CFR 720, and  (2)
hydrates  of  a  chemical  substance  or  hydrated  ions formed  by
association of a chemical substance with water.  The term mixture
includes alloys, inorganic glasses,  ceramics, frits, and cements,
including Portland cement.

      (j) "Non-isolated intermediate" means any intermediate that is
not  intentionally  removed   from  the  equipment  in  which  it  is
manufactured,  including  the  reaction   vessel  in which   it  is
manufactured, equipment which is ancillary to the reaction vessel,
and  any equipment  through  which the substance passes  during a
continuous  flow process, but not including tanks or other vessels
in which the  substance is stored after its manufacture.  ......

      (m) "Process for commercial purposes" means the preparation of
a  chemical  substance  or  mixture,   after  its  manufacture,  for
distribution  in commerce with the purpose of obtaining an  immediate
or eventual commercial advantage for the  processor.  Processing of
any amount of a  chemical  substance  or mixture is  included.  If a
chemical   or  mixture  containing  impurities  is  processed  for
commercial  purposes, then those impurities are also processed for
commercial  purposes	

§ 712.13 Who  must  report	

      (b) Subsequent reports by customers.

Except  as  provided in  paragraph (d)  of  this section, persons who
processed   or manufactured  chemical  substances   for  commercial
purposes during the year(s)  specified in  § 712.18  are subject to §
712.17.

      (c) The  following  persons  are  not  subject to § § 712.14 and
712.15:

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                                                               112

     (1)  Persons  who  manufactured  or  imported  the  chemical
substance  solely  for  purposes  of  scientific  experimentation,
analysis or research,  including research or analysis for product
deve1opment.

     (2) Persons who imported the chemical substance as:

     (i) An impurity or

     (ii) A component of an article.

     (3) Persons who manufactured the chemical substance as:

     (i) A byproduct that was not used or sold or that was formed
as described in 40 CFR 710.4(d)(3)-(7);

     (ii) A non-isolated intermediate;  or

     (iii) An impurity.

     (4) Persons who imported a mixture containing the substance.

     (5) Persons who only processed the chemical substance during
the calendar year specified in  § 712.18.

     (d) Except as  provided  in paragraph (d) (2)  of this section,
small manufacturers and processors are not subject to this rule.

     (1) To qualify as a small  manufacturer  or processor a person
must meet both of the following criteria:

     (i) Total annual sales of all sites owned or controlled by  the
parent  company  were  less  than  $30,000,000,  based  upon   the
manufacturer's or  processor's  latest complete  fiscal  year  as of
January l, 1979.

     (ii)  The annual  production  (or amount  processed)  of   the
chemical substance listed in §  712.18  was less than 100,000 pounds
(45,400 kilograms)  during  the  year specified in §  712.18.   This
criterion  applies  to any plant site  owned  or  controlled  by  the
parent company.

     (2) Small manufacturers and processors will be subject to this
rule  if the  chemical  substance  they  manufacture or  process is
subject to  a  rule  proposed  or  promulgated under TSCA sections 4,
5(b)(4),  or 6 of TSCA,  15  U.S.C. sections  2603,  2604(b)(4), or
2605, or an order in effect under section 5(e) of TSCA, 15 U.S.C.
section  2604(e),  or the subject of relief  that has been granted
under  a civil action  brought  under section 5  or 7  of  TSCA, 15
U.S.C. sections 2604 or 2606.

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                                                              113

§ 712.14 Initial submission of forms: what must be reported.


     (e) Generally, persons must report information that is known
to or reasonably ascertainable by them for rules under TSCA section
8 (a).   For  purposes  of  this  rule,  however,  a  less  burdensome
standard shall apply.   Companies shall report information that is
readily  obtainable  by   management  and  supervisory  employees
responsible for manufacturing, processing, distribution, technical
services, and marketing.  Extensive file searches are not required.
• * • • •

§ 712.15 Customer lists.

     (a) All manufacturers and importers who are required to report
under  § 713.13(a)  must maintain  records  of  the customers  who
received the quantities  of  chemical substances reported on Form No.
7710-35 for a period of two years after the effective date of the
addition of the substance to § 712.18.  These records must contain
the  name,   address,  technical  contact,  phone  number,  and  the
quantity sent for each customer,  and report number  of  the form
filed.

     (b) In the case of  chemical  substances  listed in § 712.18(3),
if  the Deputy Assistant  Administrator  of the  Office  of Program
Integration  and  Information,   Office  of  Pesticides  and  Toxic
Substances, determines customer  information  is  needed, he/she will
require, by certified letter,  a  list of  customers  to be submitted.
Submission of customer lists will be required only when significant
quantities for customer  activities have been reported  as unknown in
the  initial reports under  section 712.14, such that the amount of
this  unknown information  makes  it impracticable  to  complete an
evaluation of the substance, and when the toxicity of the chemical
is either significant or unknown.

      (1) The list required under this paragraph shall be submitted
within 30 days of receipt of the certified letter.  This list must
contain each customer's  name,  address,  phone  number,  technical
contact, and  quantity sent,  for  all quantities for which the use
and/or process type was reported as unknown.  If the customer is a
person who only distributes the  substance in commerce, this should
be  noted.   The list must also reference the report number of the
form filed.

      (2)  Letter requests  shall  be sent  under  this  paragraph no
later  than two years after the effective date of the addition of a
chemical substance to § 712.18(a).

      (c) In the case of chemical substances  listed in § 712.18(b),
persons who manufactured or imported the  substances must submit a
 list of all customers,  including name, address,  technical contact,

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                                                               114

phone  number,  and  quantity received when  they submit  Form  No.
7710-35 for those substances.

     (1) The list required under this paragraph shall be postmarked
within 60 days after the chemical  substance has been listed in §
712.18(b).

S 712.17 Reports by  customers.

     (a) If  a  list of customers is  obtained  under § 712.15,  the
Deputy Assistant Administrator of the Office of Program Integration
and Information,  Office of Pesticides and  Toxic Substances will
contact those  customers by certified letter  and require them to
supply  the  information  for Part  B  of Form  No.   7710-35,  with
respect to their own activities.

     (b)  Only  persons  who process  or  manufacture  the  chemical
substance  for  commercial  purposes  and  who  are not  "small"  as
defined by § 712.13(d) must report.

     (c)  The   same  standards   of   accuracy   as   required  of
manufacturers  and  importers  in §  712.14   (e)  and  (f)  apply  to
reports by customers	


Appendix I - Preliminary Assessment Information Report Instructions
for Filling Out the  Form  	

Form Parts A and B,  General Instructions 	

     Questions 1, 2,  3, and 5-12 refer to the  total  quantity of a
chemical substance manufactured,  imported,  or processed  by a firm
at all of its plant  sites LESS the quantity that is  not regulable
under   the   Toxic   Substances  Control  Act.     Total  quantity
manufactured is to be reported in number 4,  regardless of ultimate
use.

     Quantities are  to be reported in KILOGRAMS  (1 kilogram =  2.2
pounds).   Values given  must  be at  least accurate  to -within  +/-
50%. If the uncertainty in the number is greater than that, answer
"unknown".
Part A: Manufacturer's  Activities
      3.   Report the net quantity that  is  made but NOT recovered
because  it  is lost to the environment or remains  in process wastes
or otherwise is not collected.  If possible, fill  in the quantities
lost  in the following three ways.  If this information is not known
within the  required  accuracy enter "Unknown".

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                                                              115

     3a. Lost to the Environment During Production, Use, Storage,
and Transfer —
including intentional or accidental venting, spills, evaporation,
leaks and other fugitive emissions, dust dispersal, effluents and
stack emissions to the air, land or water.

     3b.  Process  Wastes  Treated  to  Destroy   the  Chemical
including  incineration,   chemical  reaction,  or  other  means  to
destroy the chemical.

     3c.  Process  Wastes  Where  Chemical   is  Not  Destroyed  —
including any landfill, surface impoundment, municipal sewage, or
storage.

Questions 4, 5, and 6

Process Categories

     Questions 4, 5 and 6 concern handling of the chemical in the
manufacturer's workplace.  You are to specify how many workers are
involved with how much of the chemical, and the  duration of their
involvement.  The term "workers" for these questions includes not
only  those directly  involved  in  manufacturing, but  also those
involved with equipment inspection and maintenance, transportation
and distribution, and clean-up.   Average  figures  may be used based
on actual practice for the reportable year.
You must also specify what type  of process was used in handling the
chemical.  Three general process types are given:

     Enclosed Process means the entire  process is designed  so that
there are no intentional releases of the chemical.  Only fugitive
or  inadvertent  release occurs  and special  measures  are taken to
prevent worker exposure and environmental contamination.

     Controlled .Release Process means the main production  process
is designed and operated  so that deliberate or planned release of
the chemical is permitted within prescribed  limits.  These limits
will  be  dictated either  by  company  guidelines  or  imposed  by
government  regulations.   Count workers who  are  only involved in
controlled  release processes;  if they work where parts  of the
process  are enclosed  and other  parts have  controlled release,
report  quantities and workers under  "Controlled  Release".

     Open Process means the chemical  is routinely in direct  contact
with  the   atmosphere  and  no  measures  are  taken  to   prevent
environmental  release;  e.g., reaction  vessels   are  open,  or the
chemical  is transported or stored in open containers.   If any part
of the process is open, report quantities and workers under  "Open".

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                                                              116

Filling in the Chart

     Fill in the  chart for the calendar year specified in 40 CFR
712.18 for each category.  Enter the total quantity of  the subject
chemical  and  the total  number of workers  involved.   Count only
those  workers  involved  with  processes  where  the chemical  is
present.

     Columns A and B require the calculation of worker  involvement
according  to  hours/week  and the  number  of weeks/year  they are
involved  with  the chemical.    Column A  is  for  those  workers
averaging  10  or  less  hours per  week  involvement.  Column  B is
calculated in the same way as column A  except that it is for those
workers involved with the chemical for more than 10 hours per week.

To Calculate

     The  figure  to be entered in  column  A or  B for each process
category  is to  be calculated  as  in  the following example.   If 5
workers are involved with a  chemical each for twenty weeks and 10
workers are involved each for  1/2  week, calculate:

     5 workers x  20 weeks =100
     10 workers x 1/2  week =    5

          and enter the  total  105


     4. Fill in the chart for  process types used  in manufacturing
the chemical.  Include the TOTAL quantity of chemical manufactured
whether used in TSCA regulated products or not.   Count the number
of workers directly involved in  manufacture, equipment inspection
and maintenance,  quality control,  and cleaning.

     5. Fill  in the chart for use of  the chemical at your plant
sites as  a reactant or intermediate  where the molecular structure
of the chemical is altered by breaking a chemical bond(s) or making
new chemical  bonds between the original  substance  and some other
substances.  Count the number  of workers  directly involved in the
process   using  the  chemical,   plus inspection   and   maintenance
workers.

     6. Fill  in the chart for use of  the chemical at your plant
sites, other than as a reactant, for uses regulable under TSCA.  A
chemical  is  considered  to  be  a  non-reactant  if  its molecular
structure is  maintained throughout the normal course  of its use.
The chemical may  undergo physical changes (e.g.,  changes in state
or density, physical  mixing with other substances) as long as no
chemical  changes  occur.   Examples  include solvents,  dielectric
fluids,  emulsifiers,  and  lubricants.   List catalysts under this
category.  Include in  this chart the number of workers processing
the  chemical,  if separate  from  its manufacture;  this includes

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                                                              117

producing products containing the  chemical, preparing the chemical
for distribution  to customers, packaging,  labeling,  and trans-
porting products containing the chemical.

     7. Specify the quantity of the chemical substance you put in
consumer products.   For purposes  of filling  out this  form only,
"consumer products"  is  defined  as in  the Consumer Product Safety
Act, 15 U.S.C. 2052 section 3(a)(l).  Three consumer product types
are given:

     Articles With No Release are  articles constructed  in a way to
prevent  human  exposure or  release to  the  environment of  the
chemical substance during normal use and storage; e.g., chemicals
in thermometers, in  internal components, and in components inside
sealed articles.

     Articles  With  Some  Release  are   articles whose  material
components are made of chemicals which come in direct contact with
persons using the  article, the atmosphere, land or water;  i.e.,
exposure can  come  from  leaching, evaporation,  or surface contact.
This  includes  such  articles as  plastic containers,  chemically
treated textiles,  printed  paper,  coated  appliances,  etc.   If the
chemical itself is sold in  a bottle or other container it should be
reported under "Chemical Substance or Mixture,"  not as an article.
Only the container itself is an  article for purposes of this form.

     Chemical  Substance or  Mixture  is  for use directly  by the
consumer, e.g., as cleansers, paints, inks, deodorizers and other
formulations  containing the chemical.

     8. Specify the quantity of  the chemical substance you sell to
persons  who  are  distributors  only of  the  substance.   If  the
chemical is used or processed in any way  report  this under Part B.


Part B: Use of  the Chemical by others

     This part  of  the form applies to use of the chemical by your
industrial customers either to make consumer products or industrial
products.  The  category "unknown"  is provided when either (1) the
respondent does not know or cannot reasonably  ascertain the answer
within  the accuracy  required,  or  (2)  the respondent  knows the
answer only because  he  has promised his  customer that he will not
reveal it further.

     9. Specify the  total  quantity distributed to customers.  As
possible, fill in the chart provided for the uses and process types
applicable to those  customers.

     10. Specify the quantity of chemical substance manufactured by
you that  is used by  your customers to make consumer products.  If

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                                                              118

you know some quantity is used in consumer products but cannot make
a reasonable estimate, mark Unknown".

     11. If a quantity is reported in number 10,  separate the total
into one or more of the types of products listed	


APPENDIX II — Instructions For Asserting and Substantiating Claims
of Confidentiality  	

J. Categories of Claims

     EPA had identified five categories of  information  into which
most confidentiality  claims will fall:

1. Manufacturer's  (Importer's) Identity
2. Specific Chemical  Identity
3. Production Volume
4. Uses of the Chemical Substance
5. Process Information  .....

TJJ. Substantiating Claims of Confidentiality

     In addition to asserting a claim as explained in section I and
II of  the  instructions,  form submitters must  do the following to
substantiate claims of confidentiality for information on the form.
     C. Specific  Questions.  — In addition to the certification,
you must  answer the following questions if you claim information
confidential  in these categories.   (Note:  for each category, you
must answer  the questions only once,  regardless of the number of
times you claim information confidential in that category.)  	

Process Information

     1.  If you have claimed  confidentiality  for manufacturer's
identity  and  EPA  keeps  confidential the link between your company
identity  and  process  information,  your  identity  will not  be
associated in any way with this information.   In this case, what
harm to your competitive position would result  from disclosing the
process information?  What is  the causal relationship between the
disclosure and the harmful effects?

     2. If you have claimed confidentiality for chemical identity
so that the chemical identity  category  is not associated in any way
with  the  process  information,  what  harm  to your  competitive
position would result from disclosing the process  information? How
could  a  competitor use  this  information?   What is  the  causal
relationship  between the  disclosure and the harm? 	

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                                                              119

     FINAL RULE

     Federal Register / Vol. 47, No. 120 / Tuesday, June 22, 1982
     / Rules and Regulations / Starting Page 26992 	

40 CFR Part 712

[OPTS-82004F; FRL 2039-7]

Chemical Information Rules;
Manufacturers Reporting; Preliminary
Assessment Information 	

ACTION: Final rule.

SUMMARY:  This  final  Preliminary  Assessment  Information  rule
requires chemical  manufacturers  (including  certain producers and
importers) to  submit  information  on approximately 250 chemicals.
The  information  sought  from  manufacturers  includes data  on the
quantities  of  chemicals  manufactured,  the  amounts directed  to
certain  classes   of   uses,   and   the  potential  exposures  and
environmental releases associated with the manufacturer's own and
his  immediate  customers'  processing  of the  chemicals.    The
information collected under this rule will answer a critical need
for basic data that can be used in setting priorities for testing
chemicals and for assessing risks associated with chemicals.

EFFECTIVE DATE: This regulation becomes effective on July 22, 1982.
SUPPLEMENTARY INFORMATION: 	

I.  Introduction

     Proposed amendments to this final rule are published elsewhere
in this issue of the Federal Register.

     EPA proposed a rule under section 8(a) of the Toxic Substances
Control Act (TSCA)  to obtain general use and exposure data on 2,226
chemical substances published in the Federal Register of February
29,  1980   (45  FR 13646).   More than  150 written  comments were
received  on the  proposal and  several meetings  were held with
members of  the  public.   The  Agency also received a petition from
the Chemical Manufacturers Association requesting that the Agency
provide dossiers and other information on the 2,226 chemicals for
purposes of public comment.  EPA responded to the petition in the
Federal Register of  April 28,  1980 (45 FR 28173).   This preamble
explains the  final rule's provisions  and  addresses by topic the
changes EPA has made to  simplify, clarify,  and reduce the burden of
the rule	

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                                                              120

     After  considering  comments,  the Agency  has  changed certain
provisions and significantly reduced the number  of chemicals.  The
changes  to  the  provisions  will reduce  the burden  of reporting
without greatly  decreasing  the  value of the information that the
rule will collect on each chemical.   Also in response to comments,
the  Agency   has  added  explanatory  material   to  clarify  the
requirements.  Because of these changes, the Agency has  changed the
format  of  the final  rule.    The  rule  is now  arranged  in three
Subparts.  Subpart A contains general provisions applicable to the
entire  Part.    Subpart  B  contains  reporting  requirements  for
chemical  manufacturers.   Subpart  C will  contain  the  chemical
processors' reporting requirements proposed separately today.  This
arrangement  should allow manufacturers  and  processors to  more
easily  identify  the provisions to which  they are subject.

     Elsewhere  in this issue of  the  Federal  Register,  EPA  is
proposing three  amendments  to this  final rule.   One amendment is
the plan  for follow-up  reporting by  processors.   Another  change
would require reporting automatically within 60 days on chemicals
recommended for testing under section 4  of TSCA  by the  Interagency
Testing  Committee (ITC).   The  third change would make  about  50
additional  ITC-recommended  chemicals subject to  reporting under
this rule	

A. Rule Design:  Two Part Reporting

     The final rule  anticipates two rounds  of reporting.  In the
first round, manufacturers  of chemicals  listed  in § 712.30 of the
rule must submit Preliminary Assessment  Information Manufacturer's
Reports.  The reports must  be submitted  to  EPA within  four months
of the  effective date of the  rule.

     The  manufacturer's  report includes items on  the use  of  a
manufacturer's chemical by  his  customers, when  the customers are
also processors of the chemical.  However, manufacturers may report
"unknown"   for   their   processor-customers'  uses   either  when
manufacturers do not know  the  customers' uses to within  +/-  50
percent accuracy,  or when the information is subject to a secrecy
agreement between the manufacturer  and customer.

     The  Agency  will  aggregate  the  customer  use data  for  each
chemical.   If manufacturers report  customer uses unknown for over
20  percent of the total amount  of a  chemical manufactured and
imported, the Agency plans to  initiate a second round  of reporting,
this time by processors,  in order  to complete  its assessments.  As
noted above, the procedures for  this second  round of  reporting are
proposed for  comment  in a separate  notice today	

II. Who Must  Report

A. Persons  Included

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                                                              121

     l. Manufacturers.  The term "manufacture" under TSCA includes
importing  and producing  as  well  as  manufacturing  activities.
Persons must  report  on each listed chemical  substance  that they
manufactured  for  commercial  purposes  in  the  reporting  period
specified for the chemical.  Discussion of the application of this
rule to producers and importers follows.

     2. Producers —  Miners  and oil refiners. Questions were asked
during the  comment period about  the application  of  this  rule to
mining of chemical substances. The concern was that listed chemical
substances are present in mined substances in variable or undefined
concentrations and that a single chemical substance may be reported
as  "manufactured" more than  once in  the  stream  of  commerce.
Commenters felt that it must be made clear precisely at what point
they  are  "manufacturing"  a specific  chemical substance  that is
present in a mined substance.   We  have provided clarification both
here and in the rule.

     Any method of extraction, refinement, or purification of the
mined  substance  to make it marketable as a listed  chemical sub-
stance  is  to  be  regarded  as  "manufacture  of a  listed chemical
substance" for the purposes of this rule.   An undefined or variable
concentration  mixture  not  intended  for marketing  as  a  listed
chemical is not subject to  this rule.

     In  general  terms, mining can be  regarded  as  extracting a
substance  from the atmosphere, earth, or sea.    The  most common
methods  are digging  ores  and drilling  oil.   Many  persons mine
complex  substances containing listed  chemicals  in  undefined or
variable concentrations, but do not refine the mined substance in
order  to extract a particular chemical substance  for use or sale.
Some of the chemicals subject  to  this  rule  may  be present in and
produced from these complex  precursor substances.   However, because
EPA has  excluded undefined, variable  composition substances from
the list of chemicals subject to this rule, production or mining of
the  undefined,  variable  composition precursor is  not  to  be
reported.   Only  subsequent steps  devoted  to production  of  the
listed chemical are  reportable.

     For example, persons  who manufacture a chemical substance such
as "sweetened  naphtha,  64741-87-3," but do not refine the naphtha
to produce "hexane, 110-54-3"  would not report on hexane.  Only the
production  of  "hexane"  as an isolated product must be reported —
not previous  production of  more crude, complex substances such as
the naphtha from which  hexane  is  extracted	

B. Exemptions  From Reporting

     Most of the comments supported the exemptions to reporting in
the proposed rule.  The proposed  exemptions  have  been adopted.  In
addition,   the  final  rule contains  an  exemption   suggested  by
commenters  to exclude reporting on the manufacture of less than 500

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                                                              122

kilograms annually at a plant site.  The Agency estimates that this
exemption will  exclude about 170 reports.   Excluding reports of
these small production quantities will not affect assessment of the
chemicals and so will  relieve an unnecessary reporting burden.

III. Reporting Form for Manufacturers

     A  facsimile  of   the  Manufacturer's  Report  —  Preliminary
Assessment  Information  form appears   in  §  712.28.    The  data
reporting section of the form (Section  IV) has two parts: Part A:
Plant Site Activities and Part B: Chemical  Substance Processing by
Customers.  Production, processing, and use at each  single domestic
manufacturing site must be  reported on Part A,  including the number
of workers, uses,  and process types employed, and quantities of the
chemical that are or are not recovered.  Part B of the  form applies
to the processing of the chemical by others.  Part B will account
for the  quantity  of chemical that is  distributed  from  the manu-
facturing  plant  site.   Altogether,  the form  identifies  where a
chemical  is made and  in  what  quantities,  how  many  workers  are
potentially exposed during manufacture, processing, and use at the
manufacturing plant site, what likely environmental  releases exist,
and what quantities are used in  various categories  of  uses both by
the manufacturer and as the chemical moves into  commerce.

     In  Part  A,  items 1  and 2 ask  for total  quantities  of  the
chemical  imported  and domestically manufactured.  Item  3 covers
quantities  lost during manufacture.  Items 4, 5, 6, and 7 ask for
quantities, worker-hours,  and  number  of  workers associated with
enclosed, controlled release, and open process categories.  Item 4
covers manufacture of the chemical;  item 5  covers on-site use as a
reactant; item 6 covers on-site non-reactant use; and item 7 covers
on-site  preparation of products.   Item 8  asks how  much  of  the
chemical  the  manufacturer makes  into  products to  be  used  by
industry  or by  consumers; these  products include the  chemical
itself  and mixtures containing the  chemical,  articles  with some
release  of  the chemical possible, and  articles with  no release.
All  of the  above Part  A items  concern the  manufacturer's  own
activities  and use of  his  own products.

     Part B concerns the activities of the manufacturer's immediate
customers  (processors) .  Item 9  parallels item 8 of  Part A;  it asks
how much  of the chemical  the customer  makes  into  products to be
used by  industry  or by consumers  in  various forms.  Item 10 asks
for  the trade name(s)  under which the  manufacturer  markets  the
chemical to his customers.  This item is only to be  answered if the
manufacturer reports that his customers' uses  are unknown for more
than  20  percent  of  the   quantity of  chemical  manufactured  and
imported.   Item  11  asks the manufacturer to estimate, based upon
his general knowledge  of  industry practices,  the quantity of the
chemical   that   is   processed   by  his  customers  in  enclosed,
controlled, or open processes, respectively.

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                                                              123

A. Readily Obtainable Data 	

     The  rule  requires persons  to  report data  that are readily
obtainable by management and  supervisory employees responsible for
manufacturing,  processing,   distribution,   technical  services,
marketing,  and other  related  activities.    These   knowledgeable
people  are responsible  for   providing  estimates and associated
accuracy  levels for the  data elements on the form.   The comments
supported this standard.
B. Accuracy for Reporting
  For  Part  B  of  the  form,  dealing with  processor-customers'
activities, quantities must be reported within +/- 50 percent.

     We are persuaded that manufacturers must routinely know their
own  production efficiencies and  quantities  in  order  to control
their  costs  and price their products.   Thus,  when manufacturers
report about  their own activities, the best  estimate from readily
obtainable data would be sufficiently accurate.  There is no need
for  the company to  expend further effort to report more exactly.
For  example,  it will be legitimate for a company  to report figures
based  on  design capabilities of  a process.   Thus if a process is
planned to utilize or produce a certain quantity per "run" or per
unit time, or is planned to produce a certain quantity of product
from a defined quantity of  feedstock material, then the company may
assume that  the design quantities are the actual quantities, and
not  attempt to account for variations.

     Most of  the  companies who  commented  favored  the broadest
possible  limits on accuracy of quantities reported.  Except for the
questions relating  to losses  during  manufacture  and  customer
activities,   companies  simply  endorsed  broad  limits  without
discussion.   They  cited no specific difficulties in reporting on
quantities  going  into  and  coming out  of   their  own  production
processes.  One commenter in fact said, "If we  do it, we know it."
The  Agency has concluded  that reporting  on  the  basis  of readily
obtainable data will not  impose significant  burdens	

     Items 3a,  3b,  3c, and 3d deal with losses during manufacture
of the chemical.  Comments  said lack of measured data presented a
serious difficulty  in  meeting  the proposed  level of accuracy for
quantities  reported on question  3a.   For the  final rule,  manu-
facturers may calculate the  total  loss for question  3a by finding
the  differences between the quantities theoretically manufactured,
and  quantities actually used or sold.  For items 3b, 3c,  and 3d, we
have decided  to allow respondents  to simply tell us the accuracy of
the  quantities reported.   The following difficulties were cited for
reporting the destiny  of  losses:  many times the amounts lost are
very small, on the order of parts per million,  and a  10 percent or
50   percent  difference would  be   insignificant  or  immeasurable;
routine methods for  analyzing  emission or effluent amounts do not

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exist in most cases; and in some cases there are multiple sources
of loss that would make calculations  extremely difficult.  We have
concluded  that  by  allowing  companies themselves to  specify the
accuracy of the figures, based on readily obtainable data, we will
receive  the  estimates  we  need,  without  imposing  unnecessary
burdens.   Companies  are  not  required  to  conduct  monitoring to
comply with this  rule;  they  may answer  this  item by mass balance
estimates.

     The accuracy of reporting customer  activities under  item 9 of
the proposed form received the greatest  attention from conunenters.
Most commenters  felt that quantities of a chemical processed by
individual  customers  in  enclosed,   open,  or controlled release
operations would be beyond their knowledge in most cases. Further-
more, the  proposed  item 9  asked for quantities of  chemicals by
customer  use  and  process  category   in  a  combined matrix.   This
simultaneous  accounting  for  quantities  would  have  required  a
customer-by-customer accounting,  followed  by sorting  and aggre-
gating  quantities  into  16 matrix boxes.   In  the  view  of  most
companies, this complicated accounting together  with their lack of
knowledge  of  customer processes would  have  resulted  in frequent
reporting  of quantities as "unknown."

     We  have  changed the  reporting of  customer  activities  in
response to difficulties described in comments.  The final form has
two items, 9 and 11, to cover customer activities. Item 9 now asks
for  quantities by  customer  use within  +/-  50  percent accuracy.
Commenters indicated that  this could be done.   Where respondents
cannot report within +/- 50 percent,  or where they have a secrecy
agreement with the customer,  they may report "unknown."  Item 11 now
asks  for  the  respondent's  estimate of the  kinds of  processes
generally  used for  the  chemical.

     In general,  manufacturers should report information on their
customers'  uses  to the extent  that this  information  is known.
Manufacturers  are not required  to  obtain  additional  information
from customers for  this rule.
C. Reporting Worker-Hours, Number of Workers, and Quantities:
Items  4-7

     As  a result  of comments,  EPA has  simplified  reporting of
worker-hours, number of workers,  and quantities by process category
under  items  4-7.    Only  the  workers  directly  assigned  to the
manufacturing,  processing,  and  use  of  the  chemical  should be
counted.   Maintenance workers  should be counted only if they are
directly assigned  to and are a regular  part of a process.

     When  answering the items on  worker-hours or number of workers,
respondents  must  (i)   identify  the process  category  (enclosed,
controlled release,  or  open) with which the worker  spends the most

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                                                              125

time, and  (ii)  determine the  number  of workers  involved with a
given process  category.   For  multiprocess  operations,  workers
operating more  than one process category should be listed only once
— under  the process category with which they work  most of the
time.  This should avoid double counting of workers.

     Worker-hours need not be calculated from detailed production
records, but may be based on  design  factors.   That  is,  worker-
hours may  be estimated  from the plant's  production of  a given
chemical and the design number  of employees needed to achieve that
production.

     The final  rule  simplifies reporting by  requiring  the total
number of workers involved in each process category, and deleting
the proposed distinction between full and part-time workers.  The
number of workers  should  include employee turnover, and will not
necessarily correspond to worker-hours.   Include all employees who
work on a given chemical's production  or  processing, regardless of
the length of time of employment.

     Instructions  have  been clarified  regarding  items   on  the
quantity of  a  chemical that goes through  each process category.
Chemical production  could involve a  single process  or a multi-
process operation,  a  split stream involving different processes, or
two  separate streams  involving different  processes  (e.g.,  one
stream might be for a  reagent grade  chemical and  another for a
technical grade).  The instructions discuss how to handle reporting
in these differing circumstances.


D. Preparation and Uses of Manufacturer's Products: Items  7 and 8

     The  form  has  been  revised to  identify  more  clearly  the
distinct activity of on-site product preparation  (making a product
containing the  manufactured  chemical).   Item  7 in the final rule
applies  only to plant sites that both  manufacture  and process a
chemical.  If a  manufacturer of a listed chemical also produces a
formulated  mixture  or  other  industrial  or  consumer  product
containing the  chemical,  he  must report the chemical quantities,
number of workers, and process categories in this question.

     Item 8  asks for the quantities of the substance incorporated
into various use categories  of products produced by the manufac-
turer at the reporting site. This item also incorporates proposed
question 12 on export of the chemical substance (as the chemical or
as part  of a product).

     Commenters  thought  we  should  differentiate between  institu-
tional  and  industrial  uses  to  better  judge exposures.  We do not
believe that this degree of  differentiation will  contribute to the
evaluation of a  chemical without more  information on the manner of
use  of  the chemical.  Therefore, for the  purposes  of this rule,

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                                                               126

"industrial" and "institutional" products are treated in the same
manner.

     Commenters  said the definition of  consumer products should
have the same exemptions as listed in the Consumer Product Safety
Act  (15  U.S.C.  2052 (a) (1) (D) )  (CPSA) .    We  have not adopted this
suggestion.    Our  purpose  in  citing  CPSA  is  simply to  help
differentiate between consumer and industrial products.  Thus,  the
CPSA definition, without its exemptions,  is included in the rule to
guide manufacturers  in categorizing their products.


F. Customer Uses: Items 9, 10, and 11

     Items 9 and 11  ask the manufacturer to estimate the quantities
of  the  chemical that  his  customers  incorporated  into  various
categories  of  products,  exported,  consumed  as reactant,   and
processed by various categories of process.  The manufacturer  is to
base his estimates on his knowledge of  the market for the products
and his customers'  roles in that market.

     If  manufacturers  do  not  know how all  quantities of  the
marketed chemical are used by customers,  or if a use  is subject to
a secrecy agreement with the customer,  the amount may be reported
as "unknown".   If the  manufacturer reports that  more than 20 per-
cent of  the  total quantity  manufactured and imported has unknown
uses, in question 10 he must provide the trade names under which he
marketed  the  "unknown" amount.   The Agency,  as discussed below,
will use the trade  names for processor  reporting,  if it becomes
necessary for that  chemical.

G. Follow-up Reporting

     Nearly every industry comment requested that EPA eliminate  the
proposed  requirement  to  submit customer  lists  for  purposes  of
follow-up  reporting on customer  data  that are  unknown to manu-
facturers.    Commenters  cited  several  difficulties  with   the
approach,  including their  own  confidentiality  concerns  and  the
burden  of making up the lists when there are many customers.  In
addition, some  pointed to the potential  burden  for all concerned,
including EPA,  of having follow-up proceed by mailing of letters
back and forth.  This would  be  difficult,  especially when manu-
facturers  have  customer addresses  for  deliveries  rather  than
addresses for technical contacts.

     The Agency sees merit in many of the comments on the proposed
approach and  is proposing a different  one in a  separate proposed
rule elsewhere  in this issue of the Federal Register.  The separate
notice  describes  the new  proposal and discusses  the comments
already  received on processor  reporting.  In general,  under the  new
approach, the Agency would aggregate the manufacturers'  reports on
a  chemical.   If "unknown"  uses are  reported  for  more  than 20

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                                                              127

percent of the  aggregate  quantity  manufactured and imported, the
chemical will be the subject of  follow-up reporting by processors.
The market names for the chemical will  be taken from the responses
to question 10 of the manufacturers'  reporting  forms.  These names
will be  published,  and processors  of  the  chemicals  under these
names will report about  them. This approach is based on commenters'
suggestions that  EPA should specify criteria  that  would trigger
follow-up reporting,  and  that EPA should  publish  trade names on
which processors must report in order to protect confidentiality of
chemical product composition	

K. Recordkeeping

     Commenters expressed concern over  the  proposed requirement to
maintain records  that support  information  submitted to EPA.  The
proposed five-year retention period was said to be too long and too
burdensome.   The  Agency agrees that this provision  should be
deleted.  The records supporting reporting  under  this rule will be
records  that  companies will  retain  as  a  matter  of  business.
Companies  should be  alert  to the possibility that they may be
required to report under this rule in  the future and consider or,
if  necessary,  reconsider their  recordkeeping practices  in that
light	

V. Other Issues

A. Small Manufacturers

     Section 8(a)(3) of TSCA requires the Administrator  to consult
with the  Small  Business Administration and then to prescribe, by
rule,  standards  to  determine who may qualify as a small  manufac-
turer  or  processor.   Such  small businesses are  then exempt from
section 8(a) rule requirements.  However, if a chemical substance
is subject to certain proposed or final actions by the Agency, EPA
need not apply the section  8 exemption for  small businesses manu-
facturing or processing the  chemical.  Among the actions  that could
remove the  small business  exemption  are  proposed  rules  under
section 4, 5, or 6 of TSCA.  Although several chemicals in  the list
published today are subject  to section  4 proposals,  EPA has decided
not to require  any reporting by  small  businesses.  The  additional
data  from those companies  would not significantly influence the
overall preliminary  assessments.

     For  this rule,  for  a  plant site to  qualify  as  small with
respect to a listed chemical, a manufacturer or importer must meet
both of the  following criteria:

     i.  Total  annual sales   taken together  of  all  sites  owned or
controlled by the foreign or domestic parent company were below $30
million  for  the  reporting period.

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                                                              128

     As chemicals  become  subject  to  this rule in the future, the
Agency  will  consider  the  need to adjust this  dollar  figure to
reflect inflation.  Sales figures would be based on activities at
all of the plant sites of the reporting firm, its parent, and all
subsidiaries owned or controlled by the parent company.  The parent
company owns  or controls another  company if the parent owns or
controls 50 percent or more of the other company's voting  stock, or
other equity rights, or has the power to control the management and
policies of the other  company.

     ii. Total production of the listed substance for the  reporting
year was below 45,400 kilograms  (100,000 pounds) at the plant site.

     The EPA has consulted with the Small Business Administration
in developing the  exemption standard for the rule.   The  exemption
criteria for this  rule have not changed from the proposal, except
for  the addition  of a  factor  to correct  the  sales  cutoff for
inflation.

B. Confidentiality 	

     2. Release of data to the public	
     There  are two purposes  for releasing data  received  by the
Agency:

     i.   To  allow the  public and the  states to  conduct local
activities  to  identify and control risk situations, and

     ii.  To allow public comment on the aggregate data the Agency
uses to make  its  decisions.

     The first purpose seems  best served by the release of discrete
data  items that  have not been claimed confidential.   However,
comments indicated most  of the reported data will be  legitimately
claimed to  be confidential  business  information.   Therefore, the
public would be likely to receive only incomplete data that had not
been  claimed  confidential.    Moreover,  the release  of  discrete
non-confidential  data elements would limit  the release  of the
aggregate data used in risk assessments; discrete  non-confidential
data could  be subtracted from the aggregate to  reveal  secret data.

     Given  these considerations, we have  decided to release the
following types  of non-confidential data:

     i. Identification of a firm or plant site that manufactures or
processes a chemical,  except  when this fact is confidential.

     ii. Aggregate data  on production, uses, and  workers for each
chemical.

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                                                              129

     It will be necessary for  us  to  withhold some data that have
not been claimed confidential in order to protect confidential data
within  an  aggregate.   However,  the Agency will  determine  its
aggregation method  in a manner that  will allow  as  much  data as
possible to  be released,  but that  will not  allow confidential
information to be  recognized by the public.  By  releasing aggregate
data  we will  be  able to  share  information  with the  public,
including the regulated industry	


     Therefore, 40 CFR  Chapter  I  is  amended by adding a new Part
712 to read as follows:

PART 712 — CHEMICAL INFORMATION RULES

Subpart A — General Provisions

Sec.
712.1     Scope and compliance.
712.3     Definitions.
712.5     Method  of identification  of  substances  for reporting
     purposes.
712.7     Report of readily obtainable  information for Subparts B
     and C.
712.15    Confidentiality.

Subpart  B  —  Manufacturers  Reporting  —  Preliminary Assessment
Information

712.20    Manufacturers and importers who must report.
712.25    Exempt manufacturers and importers.
712.28    Form and  instructions.
712.30    Chemical  lists and reporting  periods.

     Authority: Sec.  8(a), Toxic  Substances Control Act,  Pub. L.
94-469  (90 Stat.  2003,  15 U.S.C. 2601 et  seq.).


Subpart A — General Provisions

§  712.1   Scope and compliance.

     This Part establishes  procedures  for chemical  manufacturers
and  processors to  report  production,  use,  and  exposure-related
information on listed chemical substances.   Subpart  A establishes
requirements that apply to all  reporting under this Part.  Subparts
B  and  C,   respectively,   cover  manufacturers'   and processors'
reporting.

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                                                              130

§ 712.3   Definitions.

     The definitions  in  section  3  of  TSCA,  15 U.S.C. 2602, apply
for this Part.  In addition, the following definitions apply:

     (a)  "Byproduct"  means any  chemical  substance or  mixture
produced  without  a  separate  commercial   intent   during  the
manufacture,  processing, use,  or  disposal  of  another  chemical
substance or mixture	

     (f)  "Intermediate"  means any  chemical  substance  that  is
consumed, in whole or  in part, in chemical reactions used for the
intentional manufacture  of  other chemical substances or mixtures,
or that  is  intentionally present  for  the purpose of altering the
rates of such chemical reactions.   (See also  paragraph (j) of this
section.) 	

     (h)  "Manufacture for  commercial  purposes"  means  to import,
produce, or manufacture with the purpose of obtaining an immediate
or eventual commercial advantage for the manufacturer  and includes,
among other things, such "manufacture" of any amount  of a chemical
substance or mixture:

     (1) For commercial distribution, including for test marketing.

     (2)  For  use by the manufacturer,  including use for product
research and development, or as an  intermediate.  Manufacture for
commercial  purposes  also applies  to substances that are produced
coincidentally during the manufacture, processing, use, or disposal
of  another  substance  or  mixture,   including  byproducts  and
coproducts that are separated from that other substance or mixture,
and  impurities   that  remain   in  that  substance  or  mixture.
Byproducts  and impurities  may not  in themselves have commercial
value.   They are nonetheless produced  for the purpose of obtaining
a commercial advantage since they are  part of the manufacture of a
chemical produced for  a  commercial  purpose.

     (i)  "Mixture"  means any combination of two or more chemical
substances  if the combination does not occur in nature and is not,
in whole or in part,  the  result of a chemical reaction; except that
"mixture" does include (A)  any combination which occurs, in whole
or in part, as a  result  of  a chemical  reaction  if the combination
could  have been  manufactured  for commercial  purposes  without a
chemical reaction at the time the chemical  substances comprising
the  combination  were  combined,  and  if  all  of   the  chemical
substances  comprising  the combination  are included in the EPA, TSCA
Chemical Substance  Inventory  after  the effective  date  of  the
premanufacture notification requirement under 40 CFR  Part 720, and
 (B)  hydrates  of a chemical substance  or hydrated ions  formed by
association of a  chemical  substance with water.  The term mixture
 includes alloys,  inorganic  glasses, ceramics,  frits, and cements,
 including  Portland cement.

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                                                              131

     (j) "Non-isolated intermediate" means any intermediate that is
not  intentionally removed  from  the equipment  in  which  it  is
manufactured,  including  the  reaction   vessel   in  which   it  is
manufactured, equipment which is ancillary to the reaction vessel,
and  any equipment through  which the substance  passes  during  a
continuous flow process, but not including tanks or other vessels
in which the substance is stored after its manufacture.   (See also
paragraph (f) of this section.)  	

     (m) "Process for  commercial purposes" means the preparation of
a  chemical  substance  or  mixture,  after  its  manufacture,  for
distribution in commerce with the purpose of  obtaining an immediate
or eventual commercial advantage for  the  processor.  Processing of
any  amount of a  chemical substance or mixture is included.   If a
chemical  or  mixture  containing  impurities  is  processed  for
commercial purposes,  then those  impurities are also processed for
commercial purposes	

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                                                              132
                         INSTRUCTIONS  FOR
                    MANUFACTURER'S  REPORT FORM
             PRELIMINARY ASSESSMENT INFORMATION
              IV.  PRELIMINARY ASSESSMENT INFORMATION
TSCA Regulatable Quantities  -  Except  under  items 4 and 5, do not
report any quantity of chemical substance that is manufactured or
processed solely for  use  as:  a pesticide;  tobacco or any tobacco
product;  any  source  material,  special  nuclear  material,  or
byproduct material  (as terms are defined in the Atomic Energy Act
of  1954 and  regulations  issued under  such  Act);   firearms  or
ammunition or food, food additives,  drug, cosmetic, or device (as
such terms are defined in section 201 of the Federal Food,  Drug and
Cosmetic Act).  The above are  not TSCA regulable.

Some  chemical  substances are manufactured  for  both TSCA  and
non-TSCA regulable  purposes.   Thus, under  items  4 and 5,  include
total production of the chemical stream for  both TSCA  and non-TSCA
regulable quantities.
               PART A: PLANT SITE ACTIVITIES
Item  1  -  Enter  the total  quantity of  the  chemical  substance
imported in bulk during the reporting period.  if you import, but
do  not further process the  imported quantity or  manufacture an
additional quantity, answer this item and part B only	


Items  4-7  -  Items  4-7  in part  A require  you  to  describe the
manufacturing process and your use of the  chemical  in terms of the
number of workers  and quantity of substance associated with three
process categories.  Three process categories are described below,
followed by instructions for  calculating quantities, worker-hours,
and number of workers.   Additional instructions concerning items 4
through  7 are also listed.


                        PROCESS CATEGORIES


Enclosed Process  -. The process is  designed  and  operated so that
there  is no intentional release of  the chemical.  In this process
category, only  fugitive or inadvertent releases occur and special
measures are  taken to  prevent worker exposures and  environmental
contamination.     "Special  measures"  refer   to  procedures  and
equipment that  are monitored  and used to  prevent worker exposure,

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                                                              133

and scrubbers  and other recovery  equipment employed  to prevent
environmental release.  Equipment  with  emergency pressure relief
venting would be  allowed in  this category;  routine venting would
not.  With regard to  handling  the  manufactured chemical, persons
who handle closed  packages containing the material would be counted
under  "enclosed  process."  Persons who  package  or  transfer the
unpackaged chemical  would be  counted  in  one  of  the following
categories.


Controlled  Release  Process  - The  process   is   operated   in  a
controlled manner to  minimize  release  of the chemical  into the
workplace.  Releases should generally be within prescribed limits.
These  limits may be  dictated  by  government  regulations  or by
company guidelines.  If the chemical is vented outside the plant,
the process  is a "controlled  release"  process.   Do  not  count
general space ventilation fans.


Open Process -  The chemical is routinely in direct contact with the
atmosphere  (workplace or outside  the plant) and  no measures are
taken to prevent  release.  For  example, reaction vessels are  open
vats,  the chemical is  transported or  stored  in open containers, or
the chemical is freely vented into the workplace atmosphere.


                           QUANTITIES


Process Category - Enter the greatest quantity that is processed in
each process category.  If there is more than one  process stream,
calculate each stream separately and then add the  values for  each
process category.  If a quantity of the chemical passes in series
through  an  enclosed  process  and  then  passes  through an   open
process, the same  quantity would be reported twice, once under  each
process category.   (The sum of these quantities may be greater  than
100% of the  total quantity manufactured.)


Example 1  -  A  company manufactures technical grade chemical  x in
four steps.

350,000 kg   	>  350,000 kg 	>  350,000 kg 	>  200,000 kg
   Open           Enclosed           Open            Enclosed

The company  would report:

Enclosed                 350,000 kg
Controlled release           0
Open                     350,000 kg

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                                                              134

Example 2 - A company produces the same chemical in a reagent and
technical grade with the following steps.

Technical Grade Process:

350,000 kg  	>  350,000 kg	>  350,000 kg	>  200,000 kg
   Open            Enclosed            Open            Enclosed

Reagent Grade Process:

650,000 kg  	>  500,000 kg	>  500,000 kg	>  400,000 kg
 Controlled        Controlled           Open              Open
  Release           Release

The company would report:

Enclosed                 350,000 kg
Controlled release       650,000 kg
Open                     850,000 kg

(The open process  amount  is  the  total  of the maximum guantity in
the open process category from each grade.)


Total Quantity  - For  items  5,  6,  and 7,  enter the total quantity
processed in all process categories.   (This total may be less than
the  sum  of   the   quantities   reported  in  individual  process
categories.)

                           WORKER-HOURS

Worker-hours  may  be calculated  for  a  given process  category by
multiplying the average number  of full-time employees needed for
the  operation  by  the  number   of   hours  operating  annually.
Alternatively,  worker-hour  information   may   be   taken   from
preexisting information sources such as resource planning or budget
figures.
                             WORKERS

In reporting number of workers for each process category, count the
total  number  of  persons  directly  involved   in  manufacturing,
processing, and handling the chemical during the reporting period.
Count maintenance or inspection workers only if  they work with the
process on a  routine basis.  Do not count administrative staff.

Three  process  categories  are  described  in the  form:  enclosed,
controlled  release-,  and  open.    A worker  should be  counted as
working with  only  one  process category.   If he operates several
process types,  count him under the one with which he spends the
most  time.    If he  spends  an equal amount  of  time with several,
count him under the most open process.

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                                                              135

Example  3  - A  company  manufactured 1,000,000  kg of  a chemical
substance in 1980.   It  manufactured the chemical  for all twelve
months of the year and did so in an enclosed process.

In order to run the production  line, ten  (10). workers were present
working  40  hour weeks;  thus over  the  course of the year 20,800
worker-hours were used to run the production line.

Over the course of the year, twelve (12)  different workers worked
on the production of the chemical.

The form would then be filled out as follows:

Process category    Quantity (kg)  Worker-hours   Total workers

Open                     000
Controlled release       000
Enclosed            1,000,000 kg     20,800           12

Example  4  - A  company  manufactured 1,000,000  kg of  a chemical
substance in 1980.   It  manufactured the chemical  for the entire
year  in  a  24 hour/day process  consisting  of three  steps  in the
open,  controlled  release,  and  open  process  categories.    The
production line was shut down  for  maintenance  for  2  weeks of the
year.  The production line  had  three 8-hour  shifts.   Each shift in
step 1 required 5 workers,  while 7 and 10 workers were needed per
shift  in steps 2  and 3,  respectively.   The  total  worker-hours
required for each step follows:

                    (Shifts/day x hours/shift
                     x workers x days/week x
Process' category    	weeks/year)	      Workers-hours

Open  (Step 1)         (3x8x5x7x 50)            42,000
Controlled  (Step 2)   (3x8x7  x7x 50)            58,800
Open  (Step 3)         (3 x 8 x 10 x 7 x 50)            84,000

Analysis  of the  personnel records  showed  that a  total  of  75
individuals worked on the production of the chemical during 1980.
After examining the personnel records, the company was able to fill
in the following table:

Process category         Total workers

Open  (Step 1)                  21
Controlled  (Step )             19
Open  (Step 3)                  35

                               75
Note  that  workers  are not double  counted  or  "split" even though
some  jobs  may  require  moving from  one  step  of the  process  to
another step of the same process.  An employee  working on both step

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                                                              136

1 and step 2 is counted only in step 1 if he/she spends most of his
time at that step.  After adding together steps in the same process
category, the  company would report as follows:


Process category    Quantity (kg)  Worker-hours   Total workers

Open                   1,000,000      126,000           56
Controlled release     1,000,000       58,800           19
Enclosed                  000


Item  4  - This item applies to  the  manufacture  of  the  chemical
substance and  includes all steps  to ready the  chemical for further
processing or  use.

Item  5  - This item applies to use of the  chemical at your plant
site  as  a  reactant  in  the  manufacture  of   another  chemical
substance, where the molecular structure of the chemical is altered
by breaking chemical bonds or making new chemical bonds between the
original  substance  and some  other  substance.    Report .on  all
processing  up to and including the  actual  reaction  step and any
ancillary  steps which  recycle  unreacted  chemicals  back  to  the
reactor  vessel.   Do not report on subsequent activities in this
question.

Item  6 - Report the quantity o the  chemical  substance that you use
on site.   Examples include cleaning  solvents, dielectric fluids,
emulsifiers, and lubricants.  Do  not  include any quantity that you
react to make  a product.

Item  7  - Report the quantity of the chemical substance  that you
process at the manufacturing site into products for on site use or
sale.  (Note that this  does not include manufacture of the chemical
substance;  this  is  reported in  item  4  above.) This item  does
include the quantity of chemical  substance  that you incorporate in
a  mixture  or article.   Report the steps up  to and  including
incorporation of  the chemical into an article; do not include any
further  processing of  the article.

Item  8  - Report the quantity of the chemical substance  that you
prepare for commercial distribution in each of the product types in
8a to 8g.   Do not  include any quantity of chemical substance that
your  customers will further process.  This will be reported  in item
9.

In items 8a to 8f,  report  the quantity of the chemical substance in
products  that are for domestic use.   If you  are uncertain about
whether your products are ,for domestic or foreign use, report them
as domestic.

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                                                              137

The products  are  divided into industrial  and  consumer products.
"Industrial" means the manufacturing and service industries covered
by  the  Standard  Industrial  Codes.   Products  meant to  be used
primarily by the general population are considered to  be "consumer"
products.   The following  definition  from the  Consumer Product
Safety Act can be  used as a guide  (15  U.S.C. 2052 (a) (1)):  "The term
•consumer product1 means any  article,  or component part thereof,
produced or distributed  (i) for sale to a consumer for use in or
around a permanent or temporary household or residence, a school,
in  recreation, or  otherwise,  or   (ii)  for  the personal  use,
consumption or enjoyment of a  consumer in or around a permanent or
temporary  household  or  residence,  a  school,  in  recreation,  or
otherwise." If  you are  uncertain  about whether your products are
industrial or consumer, report them as consumer.

Three types of industrial and  consumer product  types  are described
below.

"Chemical  substance  or  mixture"  means a  chemical,  or mixture
containing the chemical,  that  is used directly by the  persons using
the product, e.g., cleaners, paints,  inks, deodorizers, solvents,
etc.  This  includes chemicals or  mixtures in containers or other
articles whose  purpose  is  to  release the chemical (e.g., cans of
spray paint, ink pens, and other applicators.)

"Articles or products with no  release" are  articles constructed to
prevent  human  exposure to or release to the  environment  of the
chemical substance during  normal  use and storage (e.g., chemical
coatings  on  internal  components,  and  chemicals inside  sealed
articles as in  thermometers and batteries).

"Articles  or  products  with  some  release"  are articles  whose
material  components  are made  of  chemicals which come  in direct
contact  with persons using the article, the atmosphere, land, or
water;  e.g.,   exposure  can come  from  leaching,  evaporation,  or
surface  contact.    This   includes   such  articles  as  plastic
containers,  chemically treated  textiles,  printed paper,  coated
appliances, etc.   If  the chemical itself  is sold in a bottle or
other container it should be reported under "Chemical substance or
mixture,"  not as an  article.  Only the container  itself  is an
article  for purposes  of this form; the substance it contains  is not
a component of  an article	

Item 9 - Estimate the quantity of  the chemical  substance  that your
customers  process for  each of the uses listed in items 9a to 9h.
 (Do  not include  the  quantity of  chemical substances  that your
customers will use without  further processing; that quantity should
be  reported in item 8a or  8d.)

For items  9a or 9g, follow the same  directions as for items 8a to
8g.

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                                                              138

For item 9h,  report  the  quantity  of  chemical substance that your
customers  will  react to  make products that do not  contain the
chemical substance itself.

For item 9i,  report  the  quantity  of  chemical substance for which
your customers' uses are unknown.

Report your best  estimate  for items  9a  to  9h within +/- 50%.  If
you cannot estimate an item to this degree of  accuracy,  include the
quantity in item  9i.  You may report "unknown"  if the data would
reveal information subject to a confidentiality agreement between
you and your  customers.

Item 10 -  If  you  report  your customers' uses as unknown (item 9i
above) for more than 20% of the total  quantity that you manufacture
and import (items 1 and 2 above)  list  the names  under which you
distribute the chemical substance.

This item will allow EPA,  if  necessary,  to find out about chemical
uses you have reported as "unknown" by requiring  processors of your
products to report directly to us.

Item 11 - This item addresses your general knowledge  of  the process
types your customers use to process the chemical.   Estimate the
quantity of the chemical  that  your customers process  in  each of the
three process categories.  Specify "unknown"  if  you  do  not know to
within +/- 50%.

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                                                              139

     PROPOSED RULE

     Federal Register / Vol.  47, No.  120 / Tuesday, June 22, 1982
     / Proposed Rules /  Starting Page 27009 	

40 CFR Part 712

[OPTS-82004G; 2039-6]

Chemical Information Rules;
Preliminary Assessment Information;
Opportunity for Additional Comment 	

ACTION: Proposed rule.

SUMMARY:  EPA is proposing 50 additional chemicals for manufacturer
reporting  of  preliminary  assessment  information.    These  are
chemicals that the Interagency  Testing Committee  has designated as
candidates for testing in its fifth through ninth reports.  EPA is
also  proposing  supplementary   processor reporting  on  the  300
chemicals  subject to manufacturer reporting,  when  customer use
information  is  inadequate.   In  addition,  EPA is  proposing that
certain  chemicals automatically  become subject to  manufacturer
reporting.

SUPPLEMENTARY INFORMATION:

I.  Introduction

     EPA proposed a rule under section 8(a)  of the Toxic Substances
Control Act  (TSCA) to obtain preliminary use and exposure data on
about 2,300 chemical substances published in the Federal Register
of February 29, 1980 (42  FR 13647). Under the final Manufacturers
Reporting  — Preliminary  Assessment  Information  rule  published
elsewhere in this issue of the Federal  Register, manufacturers must
report on about 250 chemicals.

     In  the  original  proposal,   chemical  manufacturers were  to
submit  information  on their own  and their customers'  uses of the
chemicals.    If  manufacturers  did  not provide  the  specified
information  on their  customers'  uses, manufacturers  were also to
submit  lists of  their  customers  so  that  EPA could  contact the
customers directly.  The Agency received over 150 written comments
on that proposal, most comments requesting that  EPA eliminate the
proposed requirement to  submit  customer  lists	  While EPA does
not agree with all the reasons  presented against  the customer list
requirement,  the  Agency is  persuaded  that customer list reporting
is not  the  best  approach  for this rule.  Thus today's final rule
deletes  the  proposed requirement for  manufacturers  to  submit
customer  lists.   Instead, the Agency  here proposes an alternative
approach  to  obtain  data that manufacturers do not supply on their
customers' uses.

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                                                              140

     In  this  notice, the  Agency  proposes to  initiate  a "second
round" of "follow-up" reporting from processors by Federal Register
notice.  In this second round of reporting, processors would report
on  chemical substances  that are  marketed by  manufacturers who
reported  unknown customer uses for  more than  20  percent  of the
total quantity  manufactured  and imported.  EPA would  publish by
Federal  Register notice a list  of the marketing  names  of these
chemicals.  Processors  would then  submit the shorter Processor's
Follow-up  Report  — Preliminary  Assessment  Information  on the
listed  chemicals.    EPA  would  use  the   information reported by
processors  to complete assessments of the  listed chemicals.

     The  final  manufacturers rule  also provides that chemicals in
addition  to the original 250 may  become subject to manufacturer
reporting after proposal  and comment.  Additional chemicals would
be  subject  to processor reporting  if manufacturers are unable to
provide sufficient information.   This notice proposes and solicits
comment  on  the  addition of  about  50 chemicals for manufacturers
reporting.   These  are  chemicals  that  the  Interagency  Testing
Committee has designated as  candidates  for testing  in  its fifth
through  ninth reports	

     This  notice also proposes that manufacturers automatically
report on test  candidates designated by ITC in the  future.  We are
proposing to waive future comment  periods for the individual ITC
designates  in   order  to collect needed  exposure data in  a  more
timely fashion.

II.  Proposed Processor Reporting  Requirements

A.  New  Approach to  Processor Follow-Up

     The Agency received many comments objecting to the originally
proposed processor   reporting   requirements.    Those  proposed
requirements have been deleted and are replaced by  a new approach.
This  reproposed processor follow-up  approach adopts suggestions
made in comments on the  February 29, 1980 proposal.  Based on those
comments,   the   Agency  considers  that   this   new  approach  has
significant advantages  over  the  customer list approach.   In this
new approach,   EPA  would  require  processor  reporting  for  an
individual  chemical only  after  receipt  and  review  of  all manu-
facturers'  forms on  the chemical.

     Commenters requested that  EPA specify objective criteria to
trigger  processor follow-up,  so   that only  a  limited  number of
chemicals would be subject to processor reporting.  The Chemical
Manufacturers Association (CMA) suggested that  the trigger should
depend  on the data provided  by manufacturers and that EPA should
require  processor follow-up reporting if at least 10 million pounds
of  a chemical are  produced for processing by  firms other than the
manufacturer's, and all manufacturers' reports on the  chemical fail

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                                                              141

to provide use and exposure information on at least 30 percent of
the portion of the chemical's output that is sold to processors.

     Gaps  in   manufacturers'   data  should   trigger  processor
reporting, but the Agency  does  not  consider any single, absolute
quantity  of  chemical  to  be an  appropriate  trigger  because  a
quantity  trigger  cannot  apply  equally  to all  chemicals.   For
example, a million pounds is a very small portion of a chemical
when total production is 20 billion,  but  a very large portion of a
chemical when total production is 2 million.

     EPA  has  not  adopted  the  30  percent suggestion  because the
Agency considers that the trigger should be based on the quantity
of the  total  chemical manufactured and  imported,  rather than on
only the portion processed by customers,  as CMA suggested.

     EPA proposes  to  require processor reporting on a chemical when
manufacturers report that customer uses are unknown for more than
20 percent of the total quantity manufactured and imported.  That
is, on the Manufacturer's Report form, EPA will compare the total
for all manufacturers  in questions 1 and 2 to  the total for all
manufacturers  in  item  9i,  "unknown customer uses."  If "unknown
customer  uses" represent more  than  20  percent of   the  total
domestically available, EPA will initiate processor reporting.

     If at least 80 percent of the uses of a  chemical are accounted
for, then EPA will not require any processor reporting.   Knowing 80
percent, we can project that  the remaining 20 percent even if  it is
radically  different  will  not  significantly affect  estimates of
overall   exposure  for  preliminary  assessment  purposes.    For
instance,  if the  exposure estimate  for the known 80 percent were
quantified  as two on a  scale  of  ten,  and,  in  an  hypothetical
extreme case,  the missing 20 percent would have scored an eight,
the  missing portion  would change  the  average estimate  only to
three.  With any known portion less than 80 percent, the confidence
in  this  kind  of  projection  would  be  correspondingly  less.
Likewise, using a  figure greater than 80 percent would increase the
confidence of  the projection,  but at the cost  of an increase in
amount  of processor reporting.

     Also as recommended by comments, when possible, EPA intends to
publish trade names,  rather than CAS numbers or chemical names, of
the  chemicals  on  which processors must  report.   EPA agrees with
comments that this would better protect confidential information on
composition of marketed chemical products, and that this approach
will  also communicate more  to  processors.   Manufacturers should
note, however,  that  if  one manufacturer  sells a chemical under a
trade name, and another sells the same chemical under its chemical
name, EPA would potentially  be required  to publish both the trade
name and  the chemical name for any  follow-up reporting.

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                                                              142

     Comments  also  indicated  that manufacturers  would  be more
concerned about  the confidentiality of ingredients in formulated
mixtures  sold  under trade names,  rather  than confidentiality of
chemical substances sold under trade names.  Because this rule does
not collect information on mixtures, publishing trade names should
be a less serious confidentiality problem.   EPA will publish the
trade names in a  Federal Register  notice along with the reporting
period  for  each  chemical  and  the date by  which processors must
submit  reports to EPA.   Note that if  a manufacturer did not mark
"unknown" for more than 20 percent of  the total quantity processed
(question 9i  on  the manufacturer's form,, published elsewhere in
this issue of the Federal Register as  40 CFR Part 712, Subpart B),
his trade names would not be  published.  It may also happen that we
will not  follow  up on a manufacturer  who  does not account for 80
percent of his processed quantity.   Follow-up wold not be needed if
all other manufacturers' reports  for the same substance account for
80 percent of the aggregate  production.

     The  new  approach  has  other advantages.     Because  direct
processor  reporting  eliminates   the  need  for   manufacturers  to
assemble  and  submit customer lists, this  approach would decrease
the manufacturers' reporting  burden.  Follow-up processor reporting
would  reach  customers  who are  processors,  and  would  also reach
processors who purchase chemicals from distributors.  It would also
avoid unnecessarily involving distributors who are direct customers
of respondent  manufacturers, and  who  do  not  further process the
chemicals.

     The requirements for processor reporting are described in more
detail  at III below  and elsewhere in this issue  of the Federal
Register, and  appear in § 712.40  of  the  proposed  rule.   Today's
notice  solicits  additional  comment  on this  proposed method of
follow-up  processor reporting.   After reviewing  comments  to be
received  on this  proposal, we will publish  the final requirements
for processor reporting in the Federal Register.

B.  Who Must Report

     In  the  proposed   second   round of   reporting  to  collect
information for  preliminary  assessment, persons  who processed for
commercial  purposes  certain   chemical   substances  during  the
reporting year would submit the Processor's  Follow-up  Report —
Preliminary Assessment  Information.  The chemicals  would be listed
in § 712.50 and published in a Federal Register notice, along with
a date  by which reports would be  submitted to EPA.  The proposed
requirements  for reporting are  described in  this  section of the
preamble  and appear in  § 712.48 of the rule.  Processors who would
be specifically  exempted are described at III.B  below.

     Several  comments requested  clarification of the distinction
between "processor," "user,"  and  "distributor." The primary concern
of the  commenters was that the use of a chemical to manufacture a

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                                                              143

different  chemical  should  not  be  considered processing.   They
suggested that if a person's activities change a listed chemical so
that it no longer exists in its listed chemical form,  the person is
a  "user"  and  consequently should  not be  subject  to  follow-up
reporting.

     The Agency disagrees with this interpretation.  "Processing"
includes any preparation of the chemical substance for distribution
in  commerce as  part  of a  mixture, an  article, or any  product
containing or composed of the  chemical  substance.  Processing also
includes the  use of  a chemical as  a reactant or intermediate to
produce another  chemical substance.  If a  company  only uses and
discards  the chemical at  its plant site,  the company is  not a
processor.

     A  processor is,  among  other things,  one  who prepares  a
chemical substance or mixture for distribution in commerce, after
its manufacture,  in the same  or  different form or physical state
from  that in which  it was received  by the  processor  (see TSCA
section  3(10)).    One  who mixes,  reacts,   purifies,  separates,
repackages, or otherwise "prepares"  a chemical substance or mixture
for distribution in  commerce  is  also a processor.   A person who
reacts  a  listed  chemical  substance to  make another chemical for
distribution  in  commerce has prepared that chemical  substance for
distribution  in commerce in a  form different from the one in which
the person  originally received it.

     Furthermore, a person  who reacts a  chemical  substance subject
to  this   rule   to   produce  another   chemical  substance  is  a
manufacturer  of   a  chemical substance  and  may  be   subject  to a
section 8(a)  rule as  a chemical  manufacturer.  TSCA section 8(a)
authorizes  EPA to require manufacturers of a chemical substance to
report  on  the chemicals they  react in the manufacturing process.
For example, EPA may need data on chemical A.  Companies that react
chemical  A  with chemical  B  to  manufacture  chemical  C  are
manufacturers  of chemical  C.  EPA  may  require  them as chemical
manufacturers to  report data oh chemicals  A  and B because they are
reacted to  manufacture chemical C.

      "Users," who do not have  to  report for  this  rule, are persons
who only use  or  discard a chemical  substance or  mixture.  One who
uses a  listed chemical substance or mixture to maintain or repair
his equipment, or to otherwise maintain the  plant, would be a user
only.   For  example,  the  purchaser of  a  piece  of  machinery who
painted the machinery for maintenance or repair would be a user of
the  paint.    However,  if the  manufacturer  of  the same machinery
painted it before selling the  machinery, he would be a processor of
the paint.

     A  "distributor"  is  one  who  "distributes  in  commerce"  as
defined   in TSCA section  3(4).    The  terms  "distribute"  and
"commerce"  are both defined  in  the Act and  do  not need further

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                                                              144

definition.  Distributors are not subject to reporting under this
rule.

C.  Processors Exempt From Reporting

     The  same  exemptions that apply to  manufacturers would also
apply to processors.  These exemptions  are discussed more fully in
the final manufacturer's reporting requirements published elsewhere
in today's Federal Register.   In  general, the following processors
would be  exempt  from reporting for  a plant  site in the following
situations:

     1.    Small  processors.   This  proposal  complies with  the
Regulatory  Flexibility  Act  by  exempting  small  processors from
reporting requirements,  except in very limited cases.  Processors
would be  "small"  in respect  to a listed chemical if total  annual
sales  of  the foreign  or domestic parent company  were  below $30
million during the  reporting period, and the plant site processed
below  45,400 kilograms  (100,000  pounds)  of the  listed chemical
during the reporting period.

     Small processors would be required to report  only on a  chemi-
cal  subject  to TSCA  section  4,  5(b)(4),  or 6  proposed  or final
rules, and only if the additional  information from  small processors
is likely to have a significant effect on EPA decisions.

     2.  Processors of small quantities.  No one would report on a
chemical processed in quantities below 500 kilograms (1,100 pounds)
per year  at  any plant  site.

     3.    Processors  of substances  in mixtures and  articles.
Persons  would  not   report  on processing  of  substances  already
incorporated in mixtures or articles.

     4.   .Research and development.   Persons would not report on
chemical processing that is solely for  research and development or
scientific analysis.

     5.   Impurities and byproducts.   Persons would not report on
listed  chemicals  that  are  processed  solely  because  they  are
byproducts  or impurities  associated with   processing  of  another
chemical.

D.  What  Chemicals  Must  Be Reported

     Processors would  report on chemicals for which manufacturers
could  not provide  sufficient  customer use  information.   If the
aggregate unaccounted for in all  manufacturers' reports is greater
than  20  percent of  the total quantity manufactured and imported,
the  chemical would be  subject to processor reporting.   However,
processors would  report only on  the trade  names of manufacturers
who  did not  account for 80 percent of  their quantity manufactured

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                                                              145

and imported.   This criterion allows us to extrapolate the uses of
remaining quantities with sufficient confidence.  EPA would issue
a Federal Register  notice containing  the  names under which these
chemicals are sold.  A processor of a  listed chemical must report.

     Persons who process the following preparations of a chemical
substance must report:

     1.  The chemical substance in aqueous solution;

     2.  The  chemical substance containing a  small amount of an
additive (such as a stabilizer or other chemical) to maintain the
integrity or physical form of the substance;

     3.  The chemical substance in any grade of purity.

     A chemical  with additives is sold and used  as the chemical
substance.  The Agency's purpose in asking about such products is
to  determine  the  use and  potential  exposure of  that  chemical
substance.  Congress recognized this need  in the Conference Report
on the Act: "Thus the definition of [the]  term  'chemical
substance'  shall be  applied  to  chemical  substances  as actually
produced and marketed" H.R.  Rep. No. 1679,  94th Cong.,  2d  Sess.  57
 (1976) (Conference Report).  Substances are rarely marketed  in pure
form and very  often other chemicals are added to insure that the
substance does not degrade during  transport.   In these cases it is
the substance that is being marketed in the eyes of both seller and
buyer.  Under the definition of "mixture" in TSCA section 3(8), a
substance with an additive would be a mixture.  However, for this
information  collection  to  be  effective  in  accounting for  the
processing  of  substances,   substances  with   additives  must  be
reported.  Thus  to  the extent that the rule requires reporting on
these  "mixtures," the Administrator finds  that it  is necessary for
the effective enforcement of TSCA.

     As in the manufacturer's rule, processors would report  only on
chemicals processed for  purposes regulable under TSCA.

E.  Processor's  Reporting Form

     Processors  would submit the  Processor's  Follow-up Report —
Preliminary Assessment Information, EPA form Number  7710-35a.  The
proposed  processor's form contains only  the  questions regarding
customer use  from Part B of the  manufacturer's form.   Thus, the
processor's  form  itself is  a  modification   of  Part  B  of  the
manufacturer's form.

     Processors  would report  their   best  estimate of  the total
 quantity  of chemical  substance  they  processed  in  the reporting
 year,  and the quantities processed for various product types.  The
 estimates would  be  based on readily obtainable data. The proposed
 form  also  contains a question on the  process categories used for

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                                                              146

the chemical.   This  information  would be used to supplement data
reported by manufacturers.

     The same guidance and accuracy as described for manufacturers
on Part A of their form is required of processors.   See  40 CFR Part
712, Subpart  B published elsewhere in this  issue  of the Federal
Register.

F.  When to Report

     A processor would report data for the same period  as reported
by  the  manufacturer  of the published  trade  name  chemical.   This
period would be published in the Federal Register notice for each
chemical on which processors must report.  Processors would submit
EPA form No.  7710-35a within 30  days  of  the  effective  date of the
Federal Register  notice announcing reporting.   If a company must
report  on  more than  15 chemicals  listed  in the  notice,  it may
petition EPA for an extension of  time  as  prescribed in  § 712.45(g)
of the rule.

III.  Additional Chemicals Subject to  the Rule

A.  Automatic Reporting of Future ITC-Designates

     We are  proposing an amendment to Subpart B — Manufacturers
Reporting Requirements that would automatically have manufacturers
report on certain chemicals within 60  days.   In the same manner as
for chemicals previously listed  in Subpart B, processors would be
subject  to reporting on these  chemicals  only  if manufacturers
failed to provide  enough information.

     The chemicals for which we  proposed automatic reporting are
chemical  substances  or designated mixtures  that  the  Interagency
Testing Committee  (ITC)  recommends for testing.   Within one year
after the ITC recommends a chemical for testing, EPA must initiate
rulemaking  to  require testing  under section  4 of TSCA or publish
its reasons  for not  initiating rulemaking.   Because of the short
time allowed for this decision, the Agency must proceed as rapidly
as  possible to  gather available  data  on a chemical.

     To decide within one year whether to propose a test rule, EPA
must  complete its preliminary exposure  analysis  of  the chemical
about four months, in most cases, after the ITC recommendation.  If
Preliminary   Assessment   Information   reports   are   submitted
automatically   under   this   rule,  EPA will  have  accurate  and
sufficiently complete exposure  data from manufacturers within about
three months after the ITC recommendation.  This timetable assumes
that we add the chemicals to  §  712.30 by publishing a  notice in the
Federal  Register  within  10  days after  the  Federal  Register
publication of  the ITC's recommendations.  With an effective date
30 days after the date of the EPA Federal  Register publication, and
a due date  60  days after the effective date,  EPA would have basic

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exposure data  from  manufacturers in about 100  days.   This would
allow  the  Agency  about one  month to  complete  the  preliminary
exposure analysis that would  be  based partially on the data.  On
the other  hand,  if the  chemicals  were  proposed  for  comment, an
additional two to three months,  at  a minimum, would be required to
give time  for  the comment  period.   Because of the constraints on
decision making  time  for  ITC-recommended  chemicals,  and because
this notice solicits comment from all potential  respondents on the
purpose and requirements of the rule as it will be used, EPA does
not propose to  go through  additional  rulemaking to  add  these
chemicals to the rule.

     In the infrequent cases when processors must report,  EPA would
be working with  incomplete data  on the  substances involved until
about  six  months after the Federal Register publication of ITC's
recommendations.  This assumes that EPA would publish the chemicals
for processor  reporting in  § 712.50 about  10 days  after basic
exposure data is available  from  manufacturers; that there would be
an effective date 30 days  after the date of this Federal Register
publication; and that there  would be  a  due date for processor
reports 30 days after  the effective date.  Since  recognition of the
need for processor reporting depends on data from manufacturers, we
cannot  speed  the  processor  reporting  timetable.    However,  we
anticipate requiring processor reporting very infrequently, and on
very few chemicals, so that  the number  of instances in which EPA
will have incomplete data for  an interval of time will  be very few.
• • * • •

IV.  Economic  impact

     The cost estimate of the proposed amendments has  two parts.
     The  Agency  estimates for  planning   purposes that  it  will
receive  insufficient  information  for  preliminary assessment on
approximately  10  percent of  the 250 chemicals  on which manufac-
turers must report.  A better estimate cannot be established until
the manufacturer reporting is under way, so the  Agency will revise
its cost estimates  before  processor reporting is required.

     For the current  estimate,  we  assume  that  five manufacturers
will report on each chemical,  and that three of these manufacturers
will report unknown customer  uses  for more than 20 percent of the
quantity  they  manufactured  and  imported  during the  reporting
period.    We  also  assume  that  there will be  an average  of 10
customers per manufacturer's report, and that five of the customers
will be distributors and two will be small  businesses not required
to report.  On this basis,  the Agency estimates  that approximately
225 processor  reports would  be required under  this  rule.   At an
average cost of $255 per plant site plus $100 per report to prepare
and  submit  the Processor's  Reporting  Form,   the total  of the
proposed  processor reporting provisions would  be $91,000.    (For
discussion of  reporting  costs,  see  Economic  Impact  and Small
Business  Definition  Analysis for  the  final  TSCA  Section  8 (a)

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                                                              148

Preliminary  Assessment Information Rule, prepared  by  ICF,  Inc.,
1981.) This  cost  assumes  that  processors will not be required to
search files to determine trade names  of  chemicals processed.  The
Agency requests comments on its estimate  of  the cost of submitting
the form and on the overall economic  impact of this rule.

     The 50 additional chemicals listed in this amendment  will have
total reporting costs  of  $60,000.   This  includes 40 manufacturers
submitting a  total of 60 reports.  With fixed  costs  of  $480 per
site, and  variable costs of $420  per report, the manufacturers'
costs  are $44,000 for  these   50  chemicals.    The $60,000  also
includes  $16,000  as the  cost  of  processors'  reporting.  Again we
assume that manufacturers data  will be incomplete for 10 percent of
the 50 chemicals,  and  that nine customer-processors will report per
chemical	

VI.  RulemaJcing Record

	   This  proposed rule,  "Processors Follow-up Reporting —
Preliminary Assessment Information" (OPTS-82004G)  is also included
in the public record	
VII.  Regulatory Assessment Requirements  	

B.  Regulatory Flexibility Act

     Consistent  with the purposes of  the Regulatory Flexibility
Act, the  Agency  has proposed  here a definition of the businesses
that  will  be excluded  from  reporting   because  they are  small
processors.    Similarly,  small  manufacturers  have  already been
defined and excluded from manufacturer reporting requirements.  In
addition,  the average cost of reporting  for  a manufacturer or a
processor under  this proposal  is  small.    It   is  $1100  for  a
manufacturer,  and  $400 for a  processor  (see  above discussion of
economic  impact).

     In view  of the exemptions and the small cost  per company, the
Agency  finds that  this  proposal, if  adopted,  would not  have  a
significant  impact  on a substantial  number of small entities.

C.  Paperwork Reduction Act

     The   Paperwork  Reduction   Act,   44  U.S.C.   3501  et  seq.,
authorizes the Director of the Office  of  Management and Budget to
review certain information collection requests by Federal agencies.
The  reporting provisions in this  rule have been  approved by the
Office of Management and Budget  (OMB) under section 3504(b)  of the
Paperwork Reduction  Act  of  1980,  3501   et seq., and  have been
assigned  OMB control  number 2000-0420.

     The  proposal  contains  a one-page  form  to  be  completed by
processors of certain chemicals.   Processors will complete the form

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                                                               149

only when  manufacturers of the  chemicals are  unable  to provide
certain  data about  processing.    The  proposal  is designed to
minimize processor  reporting.   Processors  will be required to
report only if manufacturers cannot supply adequate data on their
processor-customers.  These processor-customers  report directly to
EPA	

PART 712 — CHEMICAL INFORMATION RULES

     Therefore,  it is proposed that 40 CFR Part  712 be amended as
follows: 	

     2.  Subpart C is being added to read as follows:

Subpart  C  —  Processor's Follow-Up  Reporting —  Preliminary
Assessment Information

Sec.
712.40    Processors who must report.
712.45    Exempt processors.
712.48    Form and instructions.
712.50    Chemical lists and reporting periods.

     Authority: (Sec.  8(a), Toxic Substances Control Act, Pub. L.
94-469  (90 Stat.  2003, 15 U.S.C. 2607(a) et seq.)).

Subpart  C  —  Processor's Follow-Up  Reporting —  Preliminary
Assessment Information Rule

§ 712.40  Processors who must report.

     Except  as  described  in  §  712.45,  at  the time  a chemical
substance is listed in § 712.50, persons who processed the chemical
substance  for commercial  purposes  during  the  reporting period
indicated  must  submit  a  "Processor's  Report —  Preliminary
Assessment Information" (as described in § 712.48)  for each plant
site where they processed the chemical substance.


§ 712.45  Exempt processors.

     The  following  persons are  exempt  from  reporting  under  §
712.40:

      (a) Persons who  reported their manufacture  and processing of
the chemical substance under § 712.30 are not subject to  reporting
under  §  712.40.

      (b) Persons  who processed the chemical substance solely for
purposes  of  scientific  experimentation, analysis,  or  research,
including  research or analysis  for  product development, are not
subject  to reporting  under  §  712.40.

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                                                              150

     (c) Persons who processed below 500 kilograms (1100 pounds) of
the chemical substance  at  a  single  plant site are not subject to
reporting for that site under § 712.40.

     (d) Persons who qualify as  small  processors in respect to a
specific chemical  listed in  §  712.50 must report on the chemical
only if  it  is designated  by an  asterisk.  A small processor is
exempt from submitting a report under this Subpart for a chemical
substance  processed  at a  particular  plant  site  if  both  the
following criteria are met:

     (1) Total annual sales  taken together of all sites owned or
controlled by the foreign or  domestic parent company were below $30
million during the reporting period.

     (2) The total amount of the  listed substance processed at the
plant site during the reporting period was below  45,400 kilograms
(100,000 pounds).

     (e) Persons  are not subject to reporting  under §  712.40 if
they processed the chemical substance only in  the following forms:

     (1) A byproduct that was not used or sold or that was formed
as described in 40 CFR  710.4(d)(3) through  (7).

     (2) An impurity.

     (3)  A mixture  or  article  containing  the  listed  chemical
substance.

§ 712.48  Form and  instructions.

     (a) Processors  subject  to this Subpart must submit a single
EPA  Form   No.     7710-35a,   "Processor's  Follow-up  Report
Preliminary Assessment Information," for each plant site processing
a chemical substance listed  in § 712.50.

     (b) Chemical  substances will be  listed  under § 712.50 only
when the data submitted on  Manufacturer's  Report — Preliminary
Assessment Information  under Subpart B show unknown  customer uses
for more than  20 percent of the  aggregate total manufactured and
imported.    Processor  follow-up  reporting will  be  required  on
chemical substances that are  marketed by manufacturers who reported
unknown  customer  uses for  more than  20  percent of  the  total
quantity they manufacture  and import.

     (c) The  designation of chemical  substances for reporting by
processors will  be  made by Federal Register notice.

     (d)  Reporting  companies  may  submit their  reports  through
individual plant  sites  or  company headquarters as  they choose.  A

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                                                              151

separate form must be  submitted  for each plant site processing the
chemical substance	

     (g)  If  a processor  must  report  on  more  than  15 chemical
substances  he  may   petition   the   Assistant  Administrator  of
Pesticides and Toxic Substances  for an extension of time.  Requests
for extensions should be submitted  to:  Document Control Officer,
Office of Pesticides and Toxic Substances  (TS-793), Environmental
Protection Agency,  Room E-401,  401 M  St.,  SW. ,  Washington,  DC
20460.

     (h) Instructions and a facsimile of the form are as follows:

                        INSTRUCTIONS FOR
                     PROCESSOR'S REPORT FORM
               PRELIMINARY  ASSESSMENT  INFORMATION

What chemicals to  report - This form applies to chemical substances
that are listed in 40 CFR 712.50.

Reporting period  - Enter the month  and year  beginning and ending
the 12-month period for which you report.  This reporting period is
listed with the chemical substance in 40 CFR 712.50.

Who must report -  All  firms  who  purchased  and processed a chemical
under one of the  names listed in 40 CFR 712.50 must report.

How many forms to complete - For each chemical, complete separate
form for each plant site that processed the chemical.

Who may submit forms - Companies may  choose to complete and submit
forms directly to EPA from  each plant site, or  through company
headquarters.

Retention of forms - You should keep a copy of  each completed form.
Refer to the form's preprinted Control Number (shown in the upper
right corner) when communicating with EPA	

                    IV.  PROCESSING  ACTIVITIES

Accuracy - For each item, provide numbers  that represent your best
estimates based on readily obtainable data.

TSCA Regulable Quantities - Do not report  any quantity of chemical
substance that is  processed  solely for use as:  a  pesticide; tobacco
or  any  tobacco   product;   any  source  material;  special  nuclear
material, or byproduct material  (as  such terms are defined in the
Atomic  Energy  Act of  1954 and regulations  issued  under such Act);
firearms or ammunition; or  food, food additive,  drug, cosmetic, or
device  (as  such  terms are defined in  section  201 of the Federal
Food, Drug and Cosmetic Act).  The above are not  TSCA regulable.

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                                                              152

Item  1  -  Enter  the  total  quantity  you  processed  during  the
reporting period.

Item 2 - Report the quantity of the chemical substance that you use
or process for each  of the categories in  2a  to  2h.   Include the
quantity of  the chemical  substance  itself,  and  the quantity of
chemical substance in any product that you distribute.

For items  2a through 2g,  if you are not  sure about whether your
products are for domestic or  foreign use,  report them as domestic.

The products are divided into  industrial  and consumer products.
"Industrial" means the manufacturing and service industries covered
by  the Standard  Industrial  Codes.   Products meant to be used
primarily by the general population are considered to  be "consumer"
products.    The  following definition  from the  Consumer  Product
Safety Act can be used as a guide (15 U.S.C.  2052 (a) (1)): "The term
"consumer  product" means  any  article,  or  component part thereof,
produced or  'distributed (i)  for sale to a consumer for use in or
around a permanent or temporary household or residence, a school,
in  recreation,  or  otherwise,  or  (ii)   for  the personal use,
consumption  or enjoyment of a consumer  in  or around a permanent or
temporary  household  or residence,  a  school,  in  recreation,  or
otherwise."  If you  are uncertain about whether your  products are
industrial or  consumer, report them as consumer.

Three types  of industrial and consumer  product types  are described
below.

"Chemical  substance  or mixture"  means  a  chemical,  or  mixture
containing the chemical, that  is used directly by  the  persons using
the product, e.g., cleaners, paints,  inks, deodorizers, solvents,
etc.   This includes  chemicals or mixtures in containers or other
articles whose purpose  is to  release  the  chemical (e.g.,  cans of
spray paint, ink pens,  and other applicators).

"Articles or products with no release"  are  articles constructed in
a way to prevent human exposure to or release to the environment of
the  chemical  substance  during normal  use  and storage   (e.g.,
chemical  coatings on  internal  components, and  chemicals   inside
sealed  articles as in thermometers and batteries).

"Articles  or  products  with  some  release"  are articles  whose
material  components  are made  of  chemicals which  come in   direct
contact  with persons using the article,  the atmosphere, land, or
water;  e.g.,  exposure  can come  from  leaching,  evaporation,  or
surface  contact.     This  includes   such  articles  as  plastic
containers,  chemically treated  textiles,  printed  paper,   coated
appliances,  etc.   if the chemical itself  is  sold in a bottle or
other  container it should be reported under "Chemical substance or
mixture,"  not as  an article.   Only  the  container  itself  is an

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                                                              153

article for purposes- of this form; the substance it contains  is not
a component of an article.

In item  2g,  report the quantity  of chemical  substance  that you
export directly either as  the chemical or contained in mixtures or
articles.

In item  2h,  report the quantity  of chemical  substance  that you
react to make products that do not contain the chemical substance
itself.

Item 3 - List the quantity of chemical substance that you process
n each of the following process categories.

Enclosed process  -  The process is designed  and  operated so that
there is no intentional release of the chemical.  In this process
category, only fugitive or inadvertent releases occur, and special
measures are  taken  to prevent worker exposure and environmental
contamination.    "Special  measures"  refer  to  procedures  and
equipment that are monitored and used to prevent worker exposure,
and  scrubbers and other  recovery equipment employed  to prevent
environmental release.  Equipment with  emergency pressure relief
venting would be  allowed  in this  category; routine venting would
not.

Controlled  release  process  -  The process  is  operated   in  a
controlled  manner to minimize release  of  the chemical  into the
workplace.  Releases should generally be within prescribed limits.
These  limits may be  dictated  by  government  regulations  or by
company guidelines.  If the chemical is vented outside the plant,
the  process  is  a "controlled release"  process.   Do  not  count
general space ventilation fans.

Open process - The chemical is routinely in direct contact with the
atmosphere  (workplace  or  outside the plant) and  no measures are
taken to prevent  release.   For example,  reaction vessels are open
vats, the chemical is transported or stored in  open containers, or
the chemical is freely vented into the workplace atmosphere	

§ 712.50  Chemical list and reporting periods.

      (a)  Subject  chemical substances.  A  Preliminary Assessment
Information  Processor's Report must be  submitted by the deadline
specified for each chemical substance listed below.  The reporting
period  for  each  chemical  is  the  12-month  period  for  which
manufacturers provided incomplete  information.

      (b)  [Reserved].

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                                                              154


     "ASBESTOS"

     CODE OF FEDERAL REGULATIONS (CFR)

     Part 763 — Asbestos
     Subpart  D  -  Reporting  Commercial  and  Industrial Uses  of
     Asbestos

     40 CFR §763.63(k)  defines "Process for commercial purposes" as
"the preparation of a  chemical  substance or mixture,  after its
manufacture,  for distribution  in  commerce  with the  purpose  of
obtaining an  immediate or eventual commercial  advantage  for the
processor.   Processing of any amount of  a chemical substance  or
mixture is included.  If a chemical or mixture containing impurities
is processed  for commercial purposes, then  those  impurities are
also processed for commercial purposes."

     FINAL RULE  [47 Fed. Reg. 33198 (30 July 1982)]

     "EPA will require detailed information on EPA Form 7710-
     36,   'Reporting   Commercial   and  Industrial   Uses  of
     Asbestos,1  from the first  group --  persons  who  mine,
     mill, or import bulk asbestos, or process it to form an
     asbestos mixture or product, such as asbestos paper.  The
     latter  persons   are  called   'primary  processors  of
     asbestos.'  This  first group must report within 90 days
     of the effective  date of this rule.

     "EPA will require reporting in two phases for the second
     group  — secondary  processors of  asbestos (secondary
     processors  of  asbestos  make products  from  asbestos
     mixtures,  not bulk  asbestos,)  and persons who  import
     asbestos  mixtures  or  other  products  that  contain
     asbestos."

     Id., at 33202:

     "TSCA  defines a  processor,  in  part,  as a person who
     prepares  a  chemical substance  or  mixture,  after its
     manufacture,  for distribution in commerce.   This rule
     classifies  processors into two groups according to their
     starting material.   'Primary processors  of asbestos' are
     those   whose  starting  material   is  bulk   asbestos.
      •Secondary  processors  of  asbestos'   are   those  whose
     starting materials are asbestos mixtures.

     "A primary  processor starts with bulk asbestos  and makes
     a mixture that  contains  asbestos fiber.  A primary pro-
     cessor  may  simply mix or  repackage  different types or
     sizes  of  fiber  and then  sell  that product.  Such mixing

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                                                         155
or repackaging of fibers is considered primary processing
of bulk asbestos for  the purpose of this rule.  Asbestos
mixtures are products to  which asbestos  fiber has been
intentionally added and which can be  used or processed
further  and  incorporated into  other products.    For
example, asbestos cement,  asbestos paper,  and asbestos-
reinforced  plastics  are  asbestos  mixtures.    In some
cases, a primary processor further processes the asbestos
mixtures.  If  so,   the  person  is  also  a  secondary
processor.  For instance,  asbestos paper can be further
processed to incorporate it into an article, or asbestos-
reinforced  plastics  can  be  further  processed  to make
vinyl-asbestos floor tile.   ....

"'Secondary processors are those who start with asbestos
mixtures and  incorporate  them  into their  own products.
For example, persons  who fabricate asbestos cement sheet
by cutting the sheet  to make an electrical switch board,
or persons who make garments by cutting an asbestos tile,
are  secondary  processors.    A  person  who  fabricates
asbestos  cement sheet  by  cutting  it  to  a  specific
dimension  for a customer  is  a  secondary  processor.   An
automobile manufacturer is a secondary processor if he
incorporates asbestos felt into an automobile as a hood
insulation  blanket or makes heating  vent  ducks  [sic.,
ducts]  from asbestos paper.   A  paint formulator is  a
secondary processor if he purchases a paint that contains
asbestos and reformulates  the paint by adding some agent
to  give  the  paint   special  properties  for  specific
applications."
Id., at  33203:

"Reporting is not required by persons who are  'end users'
of bulk asbestos or asbestos  products  and do not further
distribute  such items  in  commerce.  The  most  common
example of this is  in the  manufacture of chlorine, where
some  persons use asbestos  as  a  diaphragm  to separate
chlorine and caustic soda.  While much bulk asbestos is
consumed  annually  by  this industry and  much  waste
generated, asbestos fiber  is not present in the resultant
products  which  are  distributed  in  commerce  and these
activities  are therefore  not 'processing'  of asbestos."

PROPOSED RULE [46 Fed. Reg. 8200  (26  January 1981)]

"Under  TSCA,  manufacturers  of  asbestos  are persons who
mine, mill, or import asbestos in bulk form or as part of
a product containing  asbestos. Processors of asbestos are
persons  who make products for  distribution in commerce
which   contain  asbestos  or  any  asbestos  containing
component.

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                                                         156
"EPA  emphasizes  that  the  terms   'manufacturers'  and
'processors'  as  used  in TSCA,  to  some  extent,  have
different meanings from common usage.   Section 3 of TSCA
defines  'manufacturer1  to include  manufacturers,  pro-
ducers,  and importers.   Thus,   miners and  millers  of
asbestos  are  'manufacturers' under TSCA,  as are  im-
porters.   Importers  include  those persons  who  import
asbestos in bulk form, or as part of any product.  Thus,
persons  who import  automobiles  that  contain asbestos
brake  linings  are   'manufacturers'  of  asbestos  for
purposes of TSCA.

"'Processors'  of  asbestos  are  persons  who  prepare
asbestos, after manufacture, for distribution in commerce
in the same or different form as they received it or as
part of a product that contains asbestos.  Thus, persons
who   incorporate   asbestos   or   asbestos-containing
components into products are processors under TSCA, even
if they  consider themselves  'users' of  a product that
contains asbestos."

Id., at  8204:

"TSCA  defines  a processor  in   part  as  a  person  who
prepares  a  chemical  substance   or  mixture,  after  its
manufacture,  for distribution  in commerce.   This rule
classifies processors into two groups according to their
starting material.  'Primary' processors of asbestos are
those whose starting material  is  bulk asbestos (a chemi-
cal substance).   'Secondary1  processors of asbestos are
those whose starting materials are asbestos mixtures.

"A primary processor starts with  bulk asbestos and makes
a  mixture that  contains asbestos  fiber.    (A primary
processor may simply mix or repackage different types or
sizes of fiber and then sell that product.   Such a mix of
fibers  is  still  considered  'bulk  asbestos' for  the
purpose of this rule.)  Asbestos  mixtures are  products to
which  asbestos fiber has been  intentionally added and
which can be used or processed further and incorporated
into  other  products.    For  example,  asbestos  cement,
asbestos  paper,  and  asbestos-reinforced  plastics  are
asbestos mixtures.   In some  cases,  a primary processor
further  processes the  asbestos  mixtures.    If  so,  the
person  is also  a secondary  processor.   For instance,
asbestos paper can be  further processed to  incorporate it
into an  article or asbestos-reinforced plastics  can be
further processed to make vinyl-asbestos floor tile.  .  .
 "'Secondary processors' are those who start with asbestos
 mixtures  and  incorporate  them into their own products.

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                                                         157
For example,  persons who  fabricate asbestos cement sheet
by cutting the sheet to make an electrical switch board,
or  persons  who make garments by  cutting an  asbestos
textile,  are  secondary  processors.    An  automobile
manufacturer is a  secondary processor if he incorporates
asbestos felt  into  an automobile as a  hood  insulation
blanket or makes heating  vent ducts from asbestos paper.
A  paint  formulator  is  a  secondary processor  if  he
purchases a paint that contains asbestos and reformulates
the paint by adding  some  agent  to give the paint special
properties for specific applications	

"Certain  secondary  processors are  excluded from  this
rule.   They  are persons  who  repair  articles, repackage
asbestos mixtures  without modification, or who engage in
construction  work.    Other  secondary  processors  are
exempted  if  they  apply,  assemble,  install,  erect,  or
consume  asbestos  products without modifying or  fabri-
cating the asbestos  products.  While we believe there may
be  a  substantial  risk from  asbestos exposures  in these
categories, we expect to complete  necessary analyses with
estimates and extrapolations  of data reported by persons
who  make  the  asbestos-containing  products that  are
processed by the excluded industries. Therefore, reports
from  these excluded  industries are not essential. . .  .

"Reporting  is not  required  by  persons  who use  bulk
asbestos or asbestos products but do not distribute them
in  commerce as part of  a  product.   The most  common
example  is  in the manufacture of chlorine,  where some
persons  use asbestos as a  diaphragm  to  separate  the
chlorine and the caustic soda.  While much bulk asbestos
is  consumed  annually by  this  industry and  much waste
generated, asbestos fiber is not present in the resultant
products  which are  distributed  in  commerce and these
activities  are therefore  not  'processing1  within  the
meaning  of TSCA."

Id.,  at  8209  [language of proposed rule § 763.63]:

" (g)  'Manufacture  for  commercial  purposes' means  to
import,  produce,  or manufacture with  the  purpose  of
obtaining an  immediate or eventual commercial advantage
and includes among other things,  such manufacture of any
amount  of a  chemical  substance or mixture:

      "(1)   For commercial distribution,  including
      for test  marketing, and

      "(2)  For use  by the manufacturer,  including
      use for product research and development,  or
      as an  intermediate.

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                                                         158
•Manufacture  for  commercial purposes' also  applies to
substances that are  produced  coincidentally during the
manufacture,  processing,  use,  or  disposal  of  another
substance  or mixture,  including  both byproducts  and
coproducts that are separated from that other substance
or mixture and impurities that remain in that substance
or  mixture.    Byproducts  and impurities  may not,  in
themselves have commercial value.  They are nonetheless
produced  for the purpose  of  obtaining   a  commercial
advantage  since they are part of  the  manufacture of a
chemical product  for a commercial purpose	

11 (k)   'Process  for   commercial  purposes'  means  the
preparation of a chemical substance or mixture, after its
manufacture for^distribution in commerce with the purpose
of  obtaining 'an  immediate   or  eventual  commercial
advantage for the  processor.  Processing of  any amount of
a  chemical  substance  or mixture  is  included.    If  a
chemical substance or  mixture containing  impurities is
processed for commercial purposes,  then those impurities
are also processed for commercial purposes."

Id., at 8213  [prop, language for reporting form directions]

"Secondary  Processor:   means  a person whose  asbestos
starting  material  is  an  asbestos  mixture,  which  is
incorporated  into  that  person's   own  product.    For
example,  asbestos  millboard   may   be purchased  by  a
secondary  processor,  who could cut  that millboard and
incorporate  it  into  an  appliance;  A/C  sheet may  be
purchased by a secondary processor, who could fabricate
it to make the backing for an electrical switchboard."

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                                                              159


S8(b) ("INVENTORY.")

     TSCA (THE ACT)

     TSCA §8(b)(l)  states that  "The  Administrator shall compile,
keep current, and publish a list of each chemical substance which
is ...  processed in the United States.  Such list shall at least
include each chemical substance any person reports, under section
5 [("MANUFACTURING AND PROCESSING  NOTICES.")] or subsection  (a) of
this section, is ... processed in the United States.  Such list
may not  include  any chemical  substance which was  not .  .  . pro-
cessed in the United States within three years before the effective
date of  the rules  promulgated  pursuant to the last  sentence of
subsection  (a)(1).   In the case of a chemical substance for which
a notice is submitted in accordance with section 5, such chemical
substance shall  be  included in  such  list as of  the earliest date
(as determined by the Administrator)  on which such  substance was  .
. . processed in the United States	"

     §8(b) (1) of TSCA states also that "The Administrator shall not
include  in  such  list any chemical substance which is ... pro-
cessed only in small quantities  (as defined by the Administrator by
rule) solely for  purposes of scientific experimentation or analysis
or chemical research on,  or  analysis  of,  such substance or another
substance including  such research or analysis for the  development
of a product."

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                                                              160

S8(c) ("RECORDS.")

     T8CA (THE ACT)

     TSCA §8(c) states that "Any person who .  . . processes  . . .
any  chemical  substance  or  mixture  shall maintain records  of
significant  adverse reactions to  health  or the  environment,  as
determined  by the  Administrator  by rule,  alleged  to  have been
caused by the substance or mixture	Records required to
be maintained under this  subsection shall include .  .  . [certain
types  of cited  reports]  submitted to the  .   .  .  processor  in
commerce from any source	"

     CODE OF FEDERAL REGULATIONS  (CFR)

     Part 717 — Records  and Reports of Allegations  that Chemical
     Substances Cause  Significant  Adverse Reactions  to Health or
     the Environment
     Subpart A - General  Provisions

     According to 40 CFR §717.3 ("Definitions"),  all definitions in
section  3 of TSCA apply to this part.  In addition,  40 CFR §717.3
provides the following additional  process-related definitions:

     40  CFR  §717.3(d),  "process" means "to process for commercial
purposes."

     40 CFR §717.3(g),  defines "Process for commercial purposes" to
mean "the preparation of a chemical substance or mixture, after its
manufacture,  for distribution  in  commerce with  the  purpose  of
obtaining an immediate or eventual  commercial  advantage  for the
processor.   Processing of any amount  of  a  chemical  substance or
mixture is included. If a  chemical or mixture containing impurities
is processed for commercial purposes,  then those impurities are
also processed for  commercial purposes."

     It  should be noted that in  40 CFR  §717.5 ("Persons subject to
this part."),  processors are identified  specifically  as  subject
persons; with regard to this coverage, 40 CFR §717.5(b) states that
"(1) a person who processes chemical substances, who is  not a  manu-
facturer of  those chemical substances,  is subject to this Part if
(i)  the  person processes  chemical  substances to produce mixtures,
or (ii)  the  person  repackages chemical substances or mixtures."

Proposed 8(c) Rule  Text

§ 717.13  Who  is subject  to this Part.

     "All manufacturers,  processors, and all persons  who dis-
     tribute substances  in commerce,  except  retailers,  are
     subject to this rule...."

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                                                              161

Final 8(c) Rule Text

§ 717.5  Persons subject to this Part.

     (b)  Processors.    (1) A  person who  processes chemical
     substances, who  is  not  also  a  manufacturer  of those
     substances, is subject to  this part if  such person is
     engaged in Standard Industrial Classification (SIC) Major
     Group 28—Chemicals  and  Allied Products,  and SIC code
     2911—Petroleum Refining.


Proposed 8(c) Rule Amendment Text

§ 717.5 Persons subject to this Part.

     (b)  Processors.   (1)  A  person  who  processes chemical
     substances, who  is  not  also  a  manufacturer  of those
     substances, is subject to this part if the products that
     person distributes in commerce are of the type described
     in Standard Industrial Classification (SIC) Major Group
     28—Chemicals and  Allied Products, and  SIC code 2911—
     Petroleum Refining.


Final 8(c) Rule Amendment Text

§ 717.5 Persons subject to this Part.

     (b)  Processors.   (1)  A  person  who  processes chemical
     substances, who  is  not  also  a  manufacturer  of those
     substances, is subject to  this part if  (i)  the person
     processes  chemical substances to produce  mixtures,  or
     (ii)  the  person  repackages  chemical  substances  or
     mixtures.


Preambles to Proposed and Final 8(c) Rule and Amendment

From the  proposed 8(c)  rule (45 FR 47008;  7/11/80)

     "Persons  who  process  chemical substances  or mixtures
     include  companies that  manufacture  consumer  goods  or
     industrial products. Manufacturers of automobiles, paper
     products,  textiles, electronic components, for example,
     should consider commenting  on this proposed rule." (at p.
     47008)

     "The term "process" is defined  in TSCA to mean ... Thus,
     persons who ordinarily consider themselves  to be  "users"
     because  all  they do is  incorporate  a  chemical  into an

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article, are  considered "processors" under  TSCA."  (at
page 47009)
                                                         162
     page


From the final 8(c) rule (48 FR 38178; 8/22/83)):

C. Processors Subject to the Rule

     There are two types of processors subject to this rule.  If a
company  is  processing a chemical  it  manufacturers,  that company
must collect allegations on any of its processing or distribution
in commerce activities involving that chemical. See A of this unit.

     If a company is processing a chemical it does not manufacture,
that company must collect allegations  involving that chemical only
for   those   activities   described   in   Standard   Industrial
Classification (SIC) Major  Group 28-Chemical and Allied Product, or
SIC code 2911-Petroleum Refining.  It also must collect allegations
relating to any further processing or distribution in commerce of
any products resulting from such processing activities.

     Thus,  a firm that  processes  chemical substances but that is
not  a  manufacturer can  be subject to  this rule.    However,  the
Agency has  decided to limit the applicability of  the  rule where
this type of processor is concerned.  The Agency has concluded that
the   best   approach   is   to   concentrate   the   recordkeeping
responsibility with those  firms that have at  least one plant site
engaged  in  activities within  the  mainstream  of  the  chemical
industry.  The Agency believes that such processors are likely to
be among the firms that  have the greatest stake in recording and if
appropriate, taking positive or corrective action with respect to
allegations  received.   The Agency  feels  that  by  focusing  the
recordkeeping  responsibility  with  these  processors  the  rule
enhances  the  concept of product stewardship,  a  growing practice
within   the  chemical   industry  that  continually  assesses  the
potential health  and safety risks  of  substances at each stage from
development through disposal.

     Again,  the  Agency considers  it necessary to outline  for
processor  subject  to  this  rule  their  specific  responsibility
regarding collection of allegations.  Such processors must collect:

     1.    Any  allegation   identifying  any  chemical  substance,
     mixture, or  article resulting only form processing activities
     as  described  in SIC  28  or  SIC  2911,  or  identifying  the
     operations  involved in making such products (See unit III B.
     of  this preamble and  § 717.10 of the rule).

     2.    Any  allegation   identifying  any  of  its own  further
     processing   or  distribution  in  commerce activities  of  the
     products described  in 1. above.

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                                                              163

     3.  Any allegation identifying emissions, effluents, or other
     discharges from activities described above.

     Note that  if  a  company is not a  manufacturer of a chemical
substance, but is only a processor, it  is only required to collect
allegations  relating   to   products   resulting  from  activities
described in SIC codes  28  and  2911.   A processor subject to this
rule is not  required to collect allegations  involving substances it
does  not  produce.    For   example,  an  allegation  specifically
involving a mixture component bought from some other company does
not  have to  be  collected  (although  allegations  involving  the
processing  of  the  component or the new product created would be
collected by the  processor).  As with manufacturers,  the Agency
believes  that  processors   have  a  strong  incentive to  forward
allegations  on  a mixture  component  to  the  supplier of  that
component.  The Agency strongly encourages this passback activity.

     At  this juncture,  the Agency wishes to  make clear two very
important points relating  to processing operations and the use of
SIC  codes  in this preamble  and  rule.   First,  when a company is
deciding whether  it  is "engaged in activities  described"  in SIC
codes,  it must refer to the descriptions  that  appear after each
four digit code.  The  company should not rely solely on the listing
of  substances  that  appears  after   the  descriptions.    These
descriptions are generic in  nature and refer to the production of
categories  of chemicals, mixtures,  or  other chemical products.  It
is quite possible that a  company may  be  processing chemicals to
produce a substance or product that does not specifically appear in
the list of substances  that  follows the generic description.

     The second point  is that terms used in the SIC codes are not
necessarily the same as those used in  this  rule.   For the purposes
of this rule,   TSCA  definition of "manufacturing" and "process"
apply.    Activities   described  in  SIC  codes  28  and  2911  are
categorized by the SIC system as "manufacturing."  This term is
broader  than the TSCA  definition of  manufacture and encompasses
activities  referred  to as "processing"  under  this  rule.  For
example,  a  company referred to under  SIC  code 2851 as engaged in
the  activity of manufacturing paints is, for the  purposes of this
rule,  a processor of the chemicals used to  make  the paints.  Thus,
it is  subject to this rule  as a chemical "processor"  engaged in an
activity described in SIC code 28.   (The company is also a mixture
manufacturer   under   TSCA   definitions.)    Accordingly,  section
717.5(c)  of the  rule  provides  that   where  there  is  a conflict
between  the SIC codes uses  of a term  and  the definition of that
term  in  this rule, the  rule definition applies.

D. Processors  Not  Subject  to the Rule.

      A processor, who is not also a manufacturer is not  subject to
this  rule if none of the sites it owns or controls is engaged in
activities  described in SIC 28  or SIC 2911.  The TSCA definition of

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                                                              164

processor is  such that tens of thousands of  firms  could be made
subject to  recordkeeping responsibilities of section  8(c).   For
example, a shoemaker that applies a dye to shoes is technically a
processor because of the incorporation of that chemical  dye into an
article for distribution in commerce.  Likewise, a hardware store
that adds a pigment to  premixed paint is a processor.

     Such "processing"  permeates  the economy.   To  include firms
engaged in activities of this nature under the rule would create a
vast recordkeeping requirement.   The  economic  analysis  for the
proposed rule estimated that some 543,000 establishments outside of
SIC 28 or 2911  could be made subject to this rule as processors.
Requiring these establishments to collect allegations would be an
administrative nightmare.  Further, the public health concerns of
section 8(c) would not be harmed by  excluding  these establishments
because they would have  a  strong  incentive  to  refer  complaints
about chemicals they "process" to the suppliers of those chemicals-
firms that are likely to be subject to this rule.

     In this final.rulemaking,  the Agency did  consider making such
"other"  processors  subject  but  with  an alternative  compliance
method.  The purpose would  be  to  promote the passback  of allega-
tions to those required to maintain records.   In  brief,  such firms
could be  required to record allegations  or  they could discharge
this  responsibility  by  forwarding such allegations  to  their
supplier.   This  would  be similar  to the alternative  compliance
mechanism for distributors as outlined in the proposed rule.

     After evaluating this alternative compliance method the Agency
has  determined that  such a  requirement could  actually inhibit
allegation  passback as much as  it could enhance  it.    If this
regulatory requirement were imposed such firms may take  the path of
least resistance  to  satisfy the requirement.  Basically, it would
be  less of  a  administrative  burden to file  automatically any
complaint or allegation received  than it would be to evaluate the
allegation, determine to whom such allegation should be  sent and do
the paperwork, including keeping a copy of all  this correspondence.
Added  to  these considerations  is the fact the  subjecting these
numerous processors  to an alternative  compliance method is still
adding substantially to the overall burden of the rule.

     As a  result, the  Agency is  not  implementing an alternative
compliance  method  for processors  solely engaged  in  processing
activities  outside of  SIC 28  and  2911.   The Agency is  not ruling
out the  future implementation  of  such  a provision.   However, EPA
prefers at this time to support the concept of product stewardship
as previously discussed.  We strongly encourage those manufacturers
and  processors that  are subject to the  rule   to  educate  their
customers regarding TSCA section 8(c), and to stress the importance
of passing  back any  potentially recordable allegations.

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                                                                 165

From the proposed 8(c)  rule amendment  (49  FR 39865, 12/24/84)

III. Amendment  Regarding Processors Subject to the Rule

     Questions   and   comments  received  after  rule  promulgation
indicated some uncertainty about what processors are subject to the
rule.   The  current  rule  language  under  § 717.5(b)(l)  reads  as
follows: "A  person who processes  chemical  substances,  who  is  not
also a manufacturer of those substances,  is subject to this Part if
such  person  is  engaged   in  activities  described  in   Standard
Industrial  Classification   (SIC)  Major  Groups 28-Chemicals  and
Allied Products, and SIC code 2911-Petroleum Refining."

     Most of the uncertainty revolves around the phrase  "engaged in
activities described *  * *."  The concern is that the phrase can be
interpreted  to  apply  to  many more   companies than   the  Agency
intended.

     For example, in the manufacturer  of paper cartons, the glues
and inks may be  prepared by adding water or other solvents to con-
centrates  purchased  from  other companies.  Such  activities  con-
stitute both processing of  chemical substances and the manufacture
of mixtures.  This could be interpreted  as an "activity described
in  (SIC 28/2911)" because these codes cover such products  as ready
to use adhesives and  inks.  The practical question  is who should be
the recordholder in  the case of an allegation about  ill effects of
exposure to  the glue or ink.   For the purposes of this rule that
responsibility  rests with the producer of the concentrate  intended
for use as a  glue or ink.   EPA's  intent  is more clearly expressed
by putting the emphasis on end products.  Processors subject to the
rule  would be  those who produce  for  distribution  in  commerce  a
product of the  type  described by SIC codes  28 or 2911.  Therefore,
EPA proposes  to amend § 717.5(b)  of the  rule to read as follow:

     (b) Processors. (1) A person who processes chemical substance, who is not also a manufacturer of those chemical substances a subject to this Part
     if the products distributed in commerce resulting form such processing are of Ihe type described in Standard Industrial Classification (SIC) Major
     Group 28 - Chemicals and Allied Products, or (SIC) code
     2911-Petrolcum Refining


From the  final  8(c)  rule amendment  (50 FR  46768, 11/13/85)

B.  Amendment To Clarify Which  Processors Are Subject.

     Comments.   Dow, in general,  objected  to the use of SIC codes
as  a  means of defining  which processors are subject to the rule.
Dow contends that "establishments"  and not products are described
in  the SIC Major  Groups.   Dow states  that the products listed in
the SIC manual  are intended only  as  illustrations to describe the
results of activities which  are listed  within a SIC manual.   Dow
recommends  two  alternatives  to   the  proposed amendment.    One
approach  would  have EPA  actually  list  in  regulation  all  the

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                                                              166

products  covered by  the SIC  28 and  2911 major  groups without
reference to the SIC manual.  The other option would be to modify
the rule.language so  that  it would  refer  to SIC code 28 and 2911
establishments and not to the products  that result  from activities
of these  establishments.   In Dow's  words,  there would be no con-
fusion because operators of establishments  have already determined
if the  establishment is within  SIC major group 28  and  2911 for
regulatory purposes.

     General Electric Company (GE)  also commented on the processor
issue.  GE stated that EPA's proposed amendment provided little in
the way  of clarification.   GE also  criticized the use of the SIC
codes as a way of defining processors subject to the rule.  In GE's
words, requiring a  company to wade  through the  SIC manual every
time an allegation is made regarding a  company product constitutes
an undue  and unreasonable burden.   GE  recommends  a simplified
method outlining who  in  total is subject to the 8(c) rule.

     GE  contends that the  majority  of the "processors"  that EPA
intends to cover.are actually manufacturers of mixtures.  The only
exception according to 'GE  would be the  repackagers  of chemical
substances and mixtures.  Therefore, GE recommends that in order to
clarify which processors are subject to the section 8(c) rule, EPA
should  revise the regulatory language of § 717.5  to state that
persons  subject  to the rule include all manufacturers of chemical
substances and mixtures and all  repackagers of chemical substances
and mixtures.

     EPA's response.   In  finalizing the   section  8(c)  rule,  EPA
sought to develop a way  to limit and at the same time adequately
specify   which  chemical  processors  would  have  recordkeeping
responsibility.   It was a  situation similar to the coincidental
manufacturer   issue  where  literally  hundreds  of thousands  of
businesses could be considered chemical processors.  The Agency has
to  provide   the  processor  universe   with  some  criteria  for
determining whether  it  is  subject  to the  rule.   Also, the Agency
needed to be able to quantify these processors for  purposes of rule
burden estimation.

     The Agency  does not consider that  it  used the  SIC code system
inappropriately  in  the  context  of  its implementation of section
8(c) .  As stated in  the SIC  manual,  "Each establishment is assigned
an  industry  code on  the basis  of  its primary  activity  which is
determined by it principal  product  or  group  of products, produced
or distributed,  or  services rendered."  These code descriptions,
including representative products,  provide that  measure by which a
company  classifies  it establishments.   In essence, they are what
they do.

     With regard to the options recommended by Dow, EPA does not
consider the  copying of  the SIC  products into  the regulatory
language to be an improvement over the  proposed amendment.  The SIC

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                                                              167

manual is a well known  and  readily available standard reference.
Transcribing the product listings into the regulatory language will
not further clarify  which processors are subject  to the rule or
reduce the regulatory burden on  industry.  Dow's other recommenda-
tion to target the  SIC establishments was  considered by the Agency
prior to proposal of  the  amendment.   It would be a somewhat more
simplified means of designating who is subject, but would be more
restrictive in it coverage that  the Agency believes  appropriate in
implementing section  8(c).   The SIC  code refers to an establish-
ment's "primary" activity.  By adopting Dow's  approach,  EPA wold
lose  coverage  of  companies  or sites  that  engage  in  chemical
processing but  that  are classified under some  other primary SIC
code.  This is why the proposed amendment placed it  emphasis on end
products of a site.

     After careful review the Agency has determined that the GE
proposal provides a way to  accomplish the goals of this proposed
amendment and remove specific dependence on  SIC  code listing.  The
Agency  agrees  that  the  types  of  "sole" processors  the Agency
intends to cover are those who produce and market chemical mixtures
(including  solutions)  and  those  firms  that  repackage  chemical
substances or mixtures.  This recommendation actually enhances the
regulatory language because  it express the Agency's  intent to cover
repackagers  as processors.   Such  coverage  is referenced  only
indirectly in the current language.


     QUESTION AND ANSWER  DOCUMENTS

     The following is from a July  1984 Question & Answer document
that was  issued prior  to the amendment  of  8(c)  which clarified
subject processors:

1.   Where does "extraction"  stop  and "processing" begin?  (From
     p. 21, question 1)

     Answer

     Persons are exempt from  the rule provided the  means by which
     they manufacture a  chemical substance involves mining or other
     solely extractive  functions.  This exemption applies to com-
     panies or sites within  a  company whose sole function  is mining
     or extracting naturally occurring materials.   EPA considers
     extraction to  be  a primarily   mechanical  process  such  as
     crushing, grinding, drying, milling,  leaching, etc.  These are
     normal steps taken  to remove raw materials from the earth, and
     prepare it for distribution in  commerce as a "raw material."
     Operations beyond  this point, such as distilling, refining,
     smelting,  etc.  are  processes of  separating  out marketable
     fractions, and are considered processes covered by the rule.
     They  are  in  fact  primary  chemical manufacturing activities
     that make  a person subject to the rule.

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                                                              168

2.    Does EPA  consider the mixing and use of  chemicals which do
     not react with  one another  to  be a "manufacture" subject to
     the rule? (From page 22, Q 3)

     Answer:
     The  mixing  of  chemicals  is  both  processing of  chemical
     substances as well as the manufacture of mixture. In general,
     mixture manufacture may be  best thought of as a subset of all
     processing activities.   As  such only mixture manufacture to
     produce SIC  28/2911  type products  is subject to  the rule if
     this is all the firm  does (i.e., it is not also a manufacturer
     of one or  more of the chemical substances  that comprise the
     mixture).   This  differs from  "manufacture"  of a  chemical
     substance because all manufacturers of chemical  substances are
     subject to the rule without regard to SIC code.


3.   Is a repackager of bulk .chemicals for resale considered to be
     a manufacturer  or a  processor  for  §8(c)  purposes?   (from p.
     22, Q4)

     Answer;

     Persons  who repackage chemicals  for resale  are  considered
     processors under  TSCA.


4.   Is a service compound, such as  a reactor cleaner, a processed
     material if emptied  to waste disposal? (from p. 37,  Q4)

     Answer:

     No.  In  this  case,   the  substance   is  not  processed  for
     commercial   purposes.   Disposal-only   activities   do   not
     constitute   manufacturing   or  processing   for   commercial
     purposes.  The only possible exception would be if the user is
     also the producer of  the reactor cleaner.


5.   If a firm is an 8(c) manufacturer, but purchases a solvent and
     uses it to manufacture another  product, is an allegation con-
     cerning the solvent  recordable?  (from p.  5,  Q16)

     Answer:

     No,  provided  that  the  allegation  specifically  cites  the
     solvent.   In such cases, the Agency  strongly encourages the
     company to  forward the allegation to the solvent supplier.

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                                                              169

     A July 25,  1986  "Question and Answer Summary" prepared by EPA
following a June 10,  1986 Agency-sponsored seminar on the industry
obligations under TSCA presents the  following  with  regard to the
term processor under §8(c)  of TSCA:

     "Question:  What processors are covered by section 8(c)?
     If a firm does  not manufacture  a  chemical but  does use
     the substance to make  a mixture, is that firm subject to
     section 8(c)?

     "Answer; Processors   covered  by  section  8(c)  include
     persons  who are  making  mixtures or  are  repackaging
     chemical substances or mixtures.

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                                                              170
      ("HEALTH AND SAFETY STUDIES")
     T8CA (THE ACT)

     §8(d) of TSCA states that "The Administrator shall promulgate
rules under which the Administrator  shall  require any person who  .
  . processes  .  .  .  or  who  proposes  .  .  .  to process  .  .  .  any
[listed] chemical subtance or mixture  . .  . [to submit lists and/or
copies of health and safety studies]."


     CODE OF FEDERAL REGULATIONS  (CFR)

     Part 716 — Health  and Safety Data Reporting
     Subpart A - General Provisions

     According to 40 CFR §716.3, the term "Process" is defined to
mean "to process for commercial purposes."

     According to 40 CRF §716.3,  "Process  for  commercial purposes"
is defined as "the preparation of a  chemical substance or mixture,
after its manufacture, for distribution in commerce, with the pur-
pose of obtaining an  immediate or eventual  commercial advantage for
the processor. Processing of any amount of a chemical substance or
mixture is included.   If  a chemical substance or mixture containing
impurities  is  processed  for  commercial purposes,  then  those
impurities are also processed for commercial  purposes."

     According to 40 CFR §716.5,  the persons who must report under
§8(d) include (with certain constraints) past, present, and future
processors of chemical substances and listed  mixtures.

     8(d) Model Rule Interpretive Guidance

     The  following  are published questions with answers  (and in
some cases statements  with responses) which address  the scope of
the terms "process" or processor" under the 8(d)  Model Rule:


     1.   A  person  who  synthesizes  or  manufactures a  chemical
          substance  C  from chemicals  A and  B  as  raw materials is
          not a processor  of chemicals A and  B.

          Answer

          EPA  disagrees.   Under TSCA section 3(10),   "..."  (no
          further  response).    [From  "General  Comments  on  the
          Proposed 8(d)  Rule"  (47 FR 38780)    Q # 19]

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                                                         171

2.   Several definitions  in the  proposed rule  differ from
     earlier Agency  definitions  of the  same term.   To the
     extent that the  same term has been  defined in earlier
     regulations,   it must  remain  unchanged in subsequent
     regulations.   Introduction of multiple definitions of the
     same  term under TSCA will  guarantee  confusion  and
     unintentional noncompliance.

     Answer

     The Agency agrees that,  to the extent  possible,  it is
     important to  maintain common definitions.  However, the
     Agency is not  required to use the identical definition in
     all rules.  In many  cases,  it  is  necessary to tailor a
     definition to the specific requirements  of a given rule.
     To  use  the   same  definition  simply because  it  was
     previously used, can be draconian and may  give rise to
     confusion when  viewed  in  the context of a given rule.
     [From "General Comments on the Proposed 8(d)  Rule"  (47 FR
     38780)    Q # 21]


3.   Processors  should   be  exempt  from  these  reporting
     regulations since they are unlikely to perform the type
     of  studies useful in  determining what  chemicals need
     further testing.

     Answer

     The Agency disagrees.   Processors  may  have  a greater
     concern about the health and environmental  effects of a
     chemical substance being used in a certain way than the
     manufacturer  of  the  chemical.  It  is  a good business
     practice for them to know about the potential hazard of
     the chemical  substances they are marketing, hence, they
     will  often conduct  health  or environmental  studies.
     Since these studies  may be  oriented to  discovering the
     effects of a  substance  in  its  ultimate  use, the Agency
     feels these  studies  are very important  for it to have
     when  making  regulatory decisions  on  the chemical sub-
     stances.  Also,  as previously stated, the Agency needs to
     examine many  types  of studies that,  taken  as a whole,
     might indicate the need for testing, although individu-
     ally they might not indicate the need for testing.   [From
     "General  Comments  on  the  Proposed  8 (d)  Rule"  (47  FR
     38780) Q # 39]

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                                                         172
4.   Are listed  chemicals  that are used  for cleaning metal
     parts or other articles considered to be processed under
     TSCA? [Question (Q) #18, 2/16/89, Q #20, 11/10/82)]

     Answer

     A listed substance used only  to clean metal parts is not
     considered to be processed under TSCA.
5.   Are laboratory chemicals that are used to test manufac-
     tured chemicals considered  to  be processed under TSCA?
     [Q #19, 2/16/89,  (Q #21, 11/10/82)]

     Answer

     No.  Since these substances  are  not prepared for distri-
     bution in commerce, they are not processed under TSCA.


6.   Should studies  on purchased catalysts and process sol-
     vents be submitted if the catalysts and solvents are used
     to  produce  products  sold?  [Q  22,  2/16/89  (Q  24,
     11/10/82) ]

     Answer

     No.   Catalysts and  process solvents are used.   Only
     studies  on  substances  manufactured  or  processed  for
     distribution in commerce must be submitted.  Studies on
     manufactured  or  processed   chemicals containing  8(d)
     listed substances as  impurities are  not required to be
     submitted  (§ 716.20(a)(9)).
The following are telephone log O&As which concerning the 8(d)
Model Rule published  9/2/82)

Q.   If  they  used  a  chemical  as  a  solvent  during  the
     manufacture  of  a  product,  and  most  of  the    solvent
     evaporates  and  is  not in  the final  product,  do they
     report  for  8(d)  as a processor of the listed  chemical?
     Or, are they considered a user of the listed chemical  and
     not required to  report?  9/27/82

A.   In this case they  are  considered  a user  of the chemical
     because  it  is used  in  the  process  of making  the  final
     product and  is not part of  the final  product.

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                                                         173

Q.   As a  user  of a  listed  chemical,  are  they  required to
     report any  monitoring data  that  they  have collected?
     9/14/82

A.   No. The section  8(d)  rule  applies to manufacturers and
     processors of a chemical substance, not to those that are
     the users of the chemical substance.
Q.   If they process a listed chemical for their own use, do
     they  have  to report  as a  processor of  the chemical?
     9/14/82

A.   If they process a chemical and use it themselves, they do
     not report.  However,  if they process a chemical and then
     react  the  product  to  make  something  distributed  in
     commerce, then they would report.


Q.   3M has a mixture that contains an 8(d)  listed chemical in
     its  initial formulation, but  the  chemical  leaves the
     mixture  before processing  is completed.   What studies
     must be reported?  9/17/82

A.   Since  the  listed chemical  is not  present in  the end
     product, it is not reportable.  The  listed chemical must
     be in the final result to be reportable.


Q.   My client buys an 8(d) listed chemical for inclusion in
     paints he manufactures and sells.  The 8(d) chemical is
     not  altered  chemically  during  the manufacture.   Is the
     client a "processor" of the 8(d) chemical? 1/20/83

A.   Yes.     "Process  for  commercial  purposes"  includes
     preparation of a chemical substance of mixture, even if
     the  chemical was not reacted.  see  716.3(K)


Q.   Under section 8(d),  reporting health and safety studies,
     would an intermediate used to generate another chemical
     substance   be   reportable  under   the   definition  of
     processor?

A.   Yes,  an  intermediate  used  to generate another chemical
     falls under the category of processing.

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                                                              174

The following  are CSB responses  (dated  1/26/90)  to AEA comments
(dated 8/23/89)  on a draft 8(d)  "monitoring  study" O&A document
concerning the term "processor":

1 (4) .   Comment regarding the  definition  of  "processor" under TSCA
section 8(d)•

     The 8(d) rule incorporates the TSCA  definition  of "processor"
(and limits  it to  "commercial purposes").  40 CFR 716.3.  Persons
wishing an interpretation of whether their activities fall within
this definition may ask EPA for a determination on  a case by case
basis.   It should be noted that under the 8(d) rule, very few such
inquiries have been made to date.

2 (5) .   Comment requesting a consistent definition of "processing"
from section 8 rule to rule.

     Section 8 rules are  written to accommodate  potential data
users  with  consideration given  to  the burden  imposed by  the
information  collection.   It is  recognized  that having different
definitions  of the same  term  may create  some problems (or having
different, possibly overlapping subsets of persons subject to rules
within a larger defined set of persons).  However,  it would be less
appropriate  to have a single broad definition of the term for all
rules where  the  burden can not  be justified  for each individual
information  collection.   Similarly,  it would  not be justified to
have a narrow definition of the term when such a definition would
eliminate EPA's access to data deemed valuable for  the purpose of
a  particular data gathering  effort where  a  broader  respondent
audience  is clearly  within  the  scope  of  EPA's  data  collection
authority.


3  (6) .    Comment  regarding  applicability  of the  rule to toll
processing.

     In situations as described in the comment where "Company A"
has Company  B purchase, blend,  package, and  distribute a substance
which has the  label of Company A  on the  container,  Company B is a
processor under the rule  and Company A is not.  This  interpretation
is  the  same as  that given in  the March 1989  CAIR Q&A document
referred  to  in your comment.


Preambles to and  Rule Texts of various 8(d)  Rule Versions:

Proposed  Original 8(d) rule (43  FR 4073.  1/31/78)

Preamble:    "For  the  purpose  of this rule,  EPA  is requiring the
submission  of H&S studies  only  from  "juridical"  persons;  i.e.,
"persons" established by  law as  companies,  associations, or other
entities     that    manufacture,    process,     or    distribute

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                                                              175

chemicals.... Persons who  "manufacture or process  for commercial
purposes" include those who use a chemical for product research and
development, for test marketing purposes, or solely  for their own
use	"
Proposed Rule- Text;   730.l(b):  "Manufacture or process" means to
manufacture or process for commercial  purposes, which  includes  (1)
for  distribution  in  commerce,  including  for  test  marketing
purposes;  (2) for use  as  a catalyst or intermediate,  (3) for the
exclusive use by the manufacturer or processor; or  (4) for product
research purposes"  include those who use  a chemical  for product
research and development., for test marketing purposes, or solely
for their own use	"
Final Original Rule (43 FR 30984)  (Subsequently  revoked to solicit
comments on the scope of the rule,  44 FR 6099)

Preamble:  ...There is also  no  reason to  specify "for  use as a
catalyst  since it is included  in the  phrase  "for use  by the
manufacturer  or  processor...Therefore,   the definition  is now
consistent with that in the  inventory reporting regulations."  at
3098, col 2.

[Note:  To  me  (Chris  Blunck  9/6/90),   this   implies   that the
manufacturer or processor  is not necessarily processing  by  virtue
of its use as a catalyst.   The person  is  already a manufacturer or
processor  prior  to  using the  catalyst.    In  other words, the
question  of  whether  catalyst use  is  processing is not  addressed
here.]

Text;  730.1(a):  "Manufacture or process" means to manufacture or
process   for  commercial  purposes,   which  includes   (1)  for
distribution in commerce,  including for test marketing purposes; or
(2) for use by the manufacturer  or processor,  including for  use as
an intermediate.
Re-proposed Original Rule  (44 FR 77470)

Preamble:  ".... Thus, a paint formulator placing a solvent in the
product  intended  for  distribution  in commerce is  a processor (of
the  solvent)  as defined  in TSCA." at 77472, col.  1.

      "EPA   interprets   the  term  'manufacture  or  process   for
commercial purposes' to refer to such activities conducted in whole
or in part, for the purpose of obtaining a commercial advantage for
the  manufacturer or processor.   This may  be distinguished  from
strictly charitable or purely academic activities.  TSCA places the
responsibility for gathering information  in  support  of  chemical

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                                                              176

regulation on those persons who will derive the commercial benefits
from those chemicals."

At 7742, col.l.

Proposed Rule Text;  Process definition:   [Same as .current]


Final Rule (47 FR 38780)

"Although  some  commenters indicated that  the  scope  of  the rule
extends beyond the  "chemical industry" and would therefore increase
the number of potential number of potential processors beyond our
estimate, EPA believes that its estimates of respondents is proper
for the following reasons.  First, over 85 percent  of the companies
that reported for the first section  8(d)  rule were concentrated in
the chemical, allied products, and petroleum refining industries.
Second,  most  of  the  comments  received from  companies   on  the
proposed rule were  from companies  in those industries,  which EPA
believes is an indicator of the respondent population for the final
rule. Third, EPA believes that almost all of the studies performed
on the  listed substances  are  initiated by the  manufacturers or
primary  processors of  the  substances,   which  is  the reason  EPA
exempted distributors from reporting. These companies are heavily
concentrated  in the chemical,  allied  products,  and  petroleum
refining  industries."   (From  Economic   Impact  discussion,   at  p.
38789.)


     "ASBESTOS"

     FINAL RULE [47 Fed. Reg. 38780, 38781 (2 September 1982)]

     "EPA  interprets  the term  'manufacture and  process  for
     commercial  purposes'   to   refer   to  such  activities
     conducted,  in whole  or  in part,   for  the  purpose  of
     obtaining a commercial advantage for the manufacturer or
     processor as  distinguished  from charitable or academic
     purposes.  Therefore,  chemicals manufactured for product
     research and development (R&D), as well as byproducts and
     impurities of  commercial  manufacturing  and processing,
     are 'for commercial purposes.1

     "EPA  received  comments  saying  that the  Agency's inter-
     pretation is  wrong because  these  substances themselves
     are not actually marketed, and, in the case of byproducts
     and impurities, are not desired for the market.  However,
     the  Agency considers  it undeniable  that products  of
     commercial endeavors are made for commercial purposes.

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                                                         177
"The contmenters thought  that the Inventory rule exempted
reporting of byproducts,  impurities,  and  R&D chemicals
because they were not considered  to  be 'for commercial
purposes.1  On  the contrary,  this section 8(d)  rule is
completely consistent with the Inventory rule, both rules
define these chemicals as 'for commercial purposes.'  The
Inventory Rule  exempted such substances only  because they
were hot appropriate for inclusion in the Inventory. In
this  final  rule the Agency  has  limited  the potential
reach  of  this  interpretation.    A description  of  the
applicability of this rule to impurities, byproducts, and
R&D chemicals follows.

"(1) Impurities.  Under  this rule,  EPA has excluded from
reporting  any   studies  of  chemicals  that   the  person
reporting has manufactured or processed or has proposed
to manufacture or process only as impurities.

"Since the  chemicals  presently listed  in the  rule are
marketed  mostly as  desirable products, rather  than as
impurities, EPA expects that the excluded studies  will be
so  few as not  to justify the burden  of  searching for
them.  However, in other  circumstances,  the Agency may
propose to  require the  excluded studies to  be reported
for some chemicals.

"(2) Byproducts.  It  should be noted that the definition
of  'manufacture for  commercial purposes'  includes only
byproduct substances  and mixtures that are  separated from
the  other  substance  or  mixture  that  is  being manu-
factured,  processed,  used,   or  disposed  of.    Other
substances  that are  produced  as byproducts,  but  not
separated from the product, are impurities  of the product
and are thus not covered in the present rule."
PROPOSED RULE  [44 Fed. Reg. 77470 (31 December 1979)]

"  .  .  . Section 8(f) of TSCA [15 U.S.C. 2607(f)] states
that for purposes of section 8, the terms "manufacture1
and  'process1 mean manufacture  or process for-commercial
purposes.   Therefore,  manufacturers  and processors who
are  potentially subject  to  the requirement  to submit
lists  under section 8 (d)  are  those  who manufacture or
process chemical  substances  or mixtures for commercial
purposes."

Id., at 77470-77471:

"On July 18, 1978, EPA promulgated a  rule similar to the
one  proposed in this notice [43 FR  30984].   That rule
required persons who manufacture, process, or distribute

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                                                         178
in commerce the chemicals on the first ITC priority list
to submit lists and copies of health and safety studies
on those  chemicals.  ...  On September  15,  1978,  Dow
Chemical Company [Dow] filed a petition for review of the
rule in the United States  Circuit  Court of Appeals for
the Third Circuit,  Dow Chemical Company  v. United States
Environmental  Protection Agency,   no.  78-2203.   Dow's
petition challenged two  provisions  of  that rule on the
following grounds relating to the scope of the Agency's
statutory authority.   First,  Dow asserted that EPA does
not have  the  authority  to obtain  studies on chemicals
manufactured or processed  for research and development
purposes  since it was  claimed  such chemicals  are not
manufactured or processed for  commercial purposes.  . . .
Dow's challenge of EPA's interpretation  of its statutory
authority was denied on August 24,  1979.  The court ruled
that (i)  chemicals manufactured or processed for research
and  development  are  manufactured  or  processed  for
commercial  purposes  and  (ii)  that  the  EPA has  the
authority  under 8(d) (2)  to  require persons  to submit
copies  of  studies  on  chemicals  that  they  do  not
manufacture, process,  or distribute."

[NOTE: EPA subsequently revoked the July 18. 1978 rule.]

Id., at 77472-77473:

"The term  'process1 is defined in section 3(10) of TSCA
to mean  preparation of  a chemical  substance or mixture
for distribution  in  commerce in the  same or different
form  or  physical state  from  that  in  which it  was
received,  or  as   part  of  an  article containing  the
chemical substance or mixture. Thus, a  paint formulator
placing a solvent  in the product intended for distribu-
tion  in commerce  is  a   processor  (of  the  solvent)  as
defined  in TSCA.

"EPA  interprets the term 'manufacture or  process for
commercial  purposes'   to  refer   to  such  activities
conducted,  in  whole  or  in  part,   for  the  purpose  of
obtaining a commercial advantage for the manufacturer or
processor.   This  may   be distinguished  from strictly
charitable  or  purely academic activities.  TSCA places
the responsibility for gathering information in support
of chemical regulation on  those persons who will derive
the commercial benefits  from  those chemicals.

"Chemicals   manufactured  for  product  research  and
development  would fall  within  the scope  of  this rule
bacause  those  chemicals are  produced for the potential
commercial  benefit of the  manufacturer	

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                                                         179
"Chemicals that occur as  byproducts  or impurities from
the manufacturing or processing  of  other chemicals are
also  considered  to be  manufactured or  processed 'for
commercial  purposes'   even  though   they  may  have  no
commercial purpose separate from  the  substance, mixture,
or article to which they are incidental.  See Inventory
Reporting  Regulations  40  CFR  710,   4 (d) ;  42  FR 64577
(1977).  The legislative history of TSCA indicates that
a broad interpretation of the term 'commercial purpose1
was intended.  Specifically addressing  the definition of
'for commercial purposes,' the House Committee stated:

     "By use of the term  'for commercial purposes, '
     the  Committee does  not  intend  to  restrict
     coverage  to  substances manufactured  or pro-
     cessed  'for  sale.1   Any commercial  purpose
     such  as  use  as a chemical  intermediate in a
     manufacturing process, is sufficient to bring
     the manufacture or  processing  of  a substance
     within the ambit of  [the  Act].   H.R.Rep.  No.
     94-1341, 94th Cong., 2d Sess. 30  (1976).

"Chemical  intermediates which  never  leave  the manufac-
turing plant and which are not manufactured  'for sale' or
even  'for distribution  in commerce1  nevertheless  are
manufactured for commercial purposes.  Likewise, bypro-
ducts  or  impurities  not  manufactured 'for sale1  are
considered  by EPA  to be  manufactured  for  commercial
purposes.

"When  a  company  manufactures  a  particular  chemical
substance  or  mixture  for  commercial   purposes,  other
chemicals  may be  produced  concurrently.    These other
chemicals may be byproducts that are separated from the
principal  commercial  products  and sold, used,  or dis-
carded, or they may remain in the manufactured chemical
as  impurities.   These  byproduct  chemicals that  are
developed  for sale or  use as commercial  products,  of
course, are  manufactured  for  commercial purposes.  EPA
interprets TSCA to mean that the discarded byproducts and
the  impurities,  although  they may   have no commercial
purpose  separate  from the chemical  product  with which
they are associated, are also manufactured or processed
for 'commercial purposes.'  The Agency notes further that
a  byproduct  discarded  by  one  manufacturer  may  be
developed  for sale  by another.    In  either  case  the
byproduct  is manufactured for commercial purposes.

"EPA  does not believe that one  manufacturer should be
able  to  avoid listing a  study on the  byproduct simply
because the  byproduct  is  discarded,  since  EPA believes
that many substances which occur as byproducts or impuri-

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                                                         180
ties may be more hazardous than the chemical  substance or
mixture with which they are  associated.  If the Agency is
to  carry out the  purpose of  the Act,   it  must obtain
studies on these materials.  An example of this situation
is  the  case  of  chlorinated  dioxins,  highly  toxic
chemicals which appear as impurities or byproducts from
the manufacture of certain halogenated phenols, such as
2 ,4 , 5-trichlorophenol   and   pentachlorophenol .     The
chlorinated  dioxins   that   occur  as   impurities  are
typically carried along in the processing of  the products
in  which   they  are   found.     Chlorinated  dioxins,
accordingly,  are  covered by  this  rule as  chemicals
manufactured or processed 'for commercial purposes.111

Id., at  77475 [proposed rule  language for § 716.12]:

"(f)  'Manufacture1  and 'Process'  means  manufacture or
process  for commercial purposes.
     (1)  'Manufacture  for  commercial purposes'  means to
import,  produce,  or  manufacture with  the  purpose of
obtaining an immediate or eventual commercial advantage
for the manufacturer, and includes, among other things,
such 'manufacture' of any amount of  a chemical substance
or mixture,

     "(i)   For commercial distribution, including
     for test marketing, and

     "(ii)  For  use  by the manufacturer, including
     use  for product  research and development,  or
     as an  intermediate.

11 (9) (2)   'Manufacture  for  commercial  purposes'   also
applies to  substances that  are produced coincidentally
during the  manufacture, processing, use, or disposal of
another substance or mixture,  including both byproducts
that are separated  from that  other substance or mixture
and impurities that remain in that substance  or mixture.
Such  byproducts  and  impurities  may,   or  may  not, in
themselves  have commercial value.  They are nonetheless
produced  for  the  purpose  of  obtaining a  commercial
advantage  since they  are part  of the  manufacture of a
chemical product  for  a commercial purpose .....

"(j)   'Process   for  commercial  purposes'   means  the
preparation of a chemical substance or mixture, after its
manufacture for distribution  in commerce with the purpose
of   obtaining   an  immediate  or  eventual  commercial
advantage for the processor.   Processing of any amount of
a  chemical substance  or mixture is  included.    If  a
chemical  substance  or mixture containing impurities is

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                                                         181
processed for commercial purposes, then those impurities
are also processed for commercial purposes."

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                                                              182

S8(e) ("NOTIFICATION OF SUBSTANTIAL RISK.")


     TSCA (THE ACT)

     According to §8(e) of TSCA,  "Any person who .  .  . processes  .
   .  a  chemical substance or mixture  and  who obtains information
which reasonably  supports the conclusion  that  such substance or
mixture presents  a substantial  risk  of injury to  health or the
environment, shall immediately inform the Administrator.  .  ."


     "POLICY STATEMENT"

     According to  Part I  ("DEFINITIONS" section)  of the Agency's
TSCA  §8(e)  policy  statement  ("Statement  of  Interpretation  and
Enforcement Policy; Notification of Substantial  Risk" 43 FR  11110;
March 16, 1978), "The  term  'manufacture or process for commercial
purposes' means to manufacture or process:

     "(1) for  distribution  in commerce,  including for
          test marketing purposes,

     "(2) for use as a catalyst  or an intermediate,

     "(3) for the  exclusive use  by the manufacturer or
          processor, or

     "(4) for product  research and development."

     NOTE: It should be noted that the above language from  the 1978
TSCA §8(e) policy statement  is similar to that used in the preamble
of a 1978 proposed §8(d) rule (XX FR YYYYY;  January Z, 1978) cited
previously in this document.

     In addition,  Appendix  B  of  the Agency's March 16,  1978 TSCA
§8(e) policy  statement presents  the following  process/processor-
related comment and response:

     "Comment 30: To what extent are  'users' of chemicals
     subject to ...  [§8(e) of  TSCA]?

     "Response:   The Agency considers  that many industrial
     uses  of chemicals  actually fall  within  the  scope  of
      'processing1 chemicals	"

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                                                               183

S8(f) ("DEFINITIONS.")


     T8CA (THE ACT)

     §8(f) of TSCA states that for the general purposes of  §8  and
its subsections (subsection (a) through subsection  (e)), the term
"process" means to "process for commercial purposes."

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                                                      184
                   DEFINITIONS




                       OF




CHEMICAL "PROCESS," "PROCESSOR" AND "PROCESSING"




         UNDER TSCA AND TSCA REGULATIONS
 (8/92 Supplement to 10/90 Background Document)

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                                                               185
                             Contents



General Documents 	   186



§5 SNURS 	   188



Biotechnology 	   191



§6 Asbestos (Asbestos Ban and Phase Out  (ABPO) Rule)  	   193

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                                                              186
GENERAL TSCA DOCUMENTS
          UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
                      WASHINGTON,  D.C.  20460


                        August 11, 1992          OFFICE OF
                                               PESTICIDES AND
                                              TOXIC SUBSTANCES

Mr. David J. Hayes, Esquire
Latham & Watkins (Suite 1300)
1001 Pennsylvania Ave, N.W.
Washington, D.C. 20004-2505

Dear Mr. Hayes:

     This responds to your April  23,  1992,  letter on behalf of the
Motor Vehicle  Manufacturers Association  (MVMA)  concerning EPA's
interpretation  of  the term "process" under  the  Toxic Substances
Control Act (TSCA)  and the impact of  that Agency interpretation on
the U.S. automotive manufacturing industry.

     As explained in  our meeting on June 16,  1992,  your letter is
one of several inquiries the Agency has received on the coverage of
processors under our  TSCA regulations.  In order to address these
concerns,  we  are planning to  solicit public comment and  hold a
public  meeting  this  Fall  to  provide  interested  parties  an
opportunity to  present their views on this  subject.   The Agency
intends to examine the issues that are of greatest concern to the
regulated community rather than attempt comprehensive evaluation,
or  redefinition,  of  processor under TSCA.   We  look  forward to
participation by MVMA and its member companies.

     Regarding the issues raised  in your letter, EPA believes that
it is better tp provide exemptions to limit coverage of processors
in  individual  TSCA rules  rather than to  narrow the  broad  TSCA
definition  of  process.  Under TSCA,  the term process  means,  in
pertinent part,

     the  preparation  of  a  chemical substance  .   .   .  for
     distribution  in  commerce ...  as  part  of an  article
     containing the chemical substance .  . .

TSCA  §3(10),  15 U.S.C. §2602(10).   This  definition  provides EPA
with  relatively comprehensive jurisdiction,  which the  Agency is
reluctant  to narrow.  Limiting the overall scope of the statutory
definition might result in EPA missing activities that could affect
public  health  or  the environment.   Comprehensive coverage,  of
course,  is  not  necessary  in  all  cases and,  accordingly,  EPA does
provide  numerous exemptions in its TSCA regulations.

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                                                              187

     MVMA's major  concerns appear to  relate to  the  coverage of
processors  under  EPA's  TSCA  regulations   rather  than  to  the
statutory definition.  In the upcoming public comment process, MVMA
may  wish  to  recommend  additional  exemptions to the  extent it
believes the  coverage  in  specific regulations  is  unnecessarily
broad.  The following  are  a few  examples of existing exemptions in
TSCA regulations that may help to focus MVMA's comments.

     EPA provides,  at  40 C.F.R. §704.5(a),  a  general exemption from
TSCA §8(a)  regulations for  persons who process a chemical solely as
part of an  article.   Under §704.210,  the  reporting exemptions in
§704.5  apply  to reporting  under the Comprehensive  Assessment
Information Rule (CAIR).  The Agency's most current guidance limits
this exemption to those persons who only process the article.  See,
for example, EPA's  response to Questions 18  and 19 in the Agency's
March  1989  TSCA  Question  and  Answer  (Q&A) document for the CAIR.
EPA states that a person who prints on plastic bags (articles) with
an ink (a reportable chemical substance) and  then  sells the printed
bags  is a  processor  of  the ink and  is not  exempt from reporting
under  CAIR.  However,  a person who buys and further processes the
printed bags   is an  exempt processor  for  the purposes  of  CAIR
reporting.

     Under  EPA's TSCA  §8(d)  health  and  safety  study  reporting
regulations, persons  are  only required to  search files of those
employees "whose assigned duty is to advise ...  on the  health and
environmental  effects of  chemicals,"  40 C.F.R.  §716.25.  It does
not  appear to  be  a  significant,  or  unfair,  burden to  require
submission  of  studies likely  to be located  in files  of employees
responsible for health and  safety in MVMA member companies if those
studies were conducted on  chemicals incorporated  into automobiles
or other articles in MVMA  facilities.

     Under  EPA's TSCA  section 4  test  rules,  because chemical
manufacturers typically pass through  the costs of  toxicity testing
to processors  by way of increased product prices, it is generally
not necessary for processors to  submit either letters of intent to
initiate testing or  applications  for  exemption  from  testing (40
C.F.R. §790.48(b)).

      EPA  appreciates  the  concerns of MVMA,  and  other industry
groups, on the need  to clarify the  coverage of  processors under
TSCA  regulations.   The Agency  believes that the upcoming public
comment process  will  significantly aid in  the resolution of the
most  important  issues.    If  you  have  further questions  on  any
matters raised in this letter, please contact Mr.  Frank Kover of my
Staff  at (202) 260r3436.

                         Sincerely,
                              /S/
                         Mark A. Greenwood,  Director
                         Office of Pollution Prevention & Toxics

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                                                              188

TSCA §5 "Significant New Use Rules" (SNURs)


 o   2-Chloro-l,1,1,2-tetrafluoroethane

     (Final SNUR published on July 22. 1992 (57 FR 3244in

     "The commenter stated that EPA  should define  processing or
processors of  P-88-1763,  to clarify who would  be  subject to the
requirements for notification of customers  of hazard communication
requirements,  notification of customers of the  existence of the
SNUR for  P-88-1763, and records documenting  such  notification.
The commenter  asked EPA to  clarify  if the listing  of potential
processors in its  comments  would be considered  processors under the
rule.   The commenter also restated  that the uncertainty and burden
of a SNUR applying to so many  potential processors could adversely
impact the commercial utilization of P-88-1763 as a chlorofluoro-
carbon alternative.

     "EPA agrees that a  better description of who is subject to the
SNUR for  P-88-1763 would  reduce uncertainty  and  the regulatory
burden. Therefore, the final rule specifically describes processing
activities that would not  constitute new uses under this  SNUR.
First  it  should be noted  that  under § 721.45 (f) any person who
imports or processes a substance subject to a SNUR is exempt from
that SNUR if the substance is incorporated into an article before
that person  receives it unless EPA identifies such  articles as
subject to a specific SNUR.   Therefore,  once  P-88-1763 is incor-
porated into appliances,  air conditioners,  industrial equipment, or
any other articles  (except the  foam insulation described earlier)
the SNUR  no  longer  applies to persons who import or process such
articles.

     "In  addition,  EPA  has added  language to the final  rule to
indicate  that  this  SNUR   is not  applicable  to  the  following
categories of  processors:

     Processors of  this substance  are not subject  to this
     section if they  only  service, repair, maintain,  or sell
     products  that  contain the  substance.

     "This statement defines the applicability of this SNUR and is
not intended to affect  the statutory or regulatory definition of
 'processor' for other purposes."

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                                                              189
 o   Sulfurized Alkvlphenol

     (Final SNUR published on February 6f 1992  (57 FR 4577))

     "The comment provided was that the recordkeeping requirements
of § 721.125(b)  and (c)  were too broad and  burdensome on manu-
facturers and processors.   Specifically,  §  721.125 (b) requires:
Records  documenting volumes  of  the  substance purchased  in the
United States by processors of the substance, names and addresses
of suppliers,  and the corresponding dates. Similarly, § 721.125(c)
requires:  Records documenting the names and addresses  (including
shipment destination address,  if  different)  of  all persons outside
the site  of  manufacture,  importation, or processing  to whom the
manufacturer, importer, or  processor  directly sells or transfers
the substance, the date of each sale or transfer, and the quantity
of the substance sold or transferred on such date.  Given that for
P-89-708  processors  may include distributors  and  repackagers at
thousands of  individual retail and  consumer sites, the commenter
questioned whether  EPA intended  such  recordkeeping requirements.
The commenter  also  requires notification only if  the production
volume manufactured or  imported exceeds the volume specified in the
SNUR, the function of EPA recordkeeping requirements should be to
assure that manufacturers  observe this limit and that records under
§ 721.125(a) would  achieve  this  goal.   In addition the commenter
noted a similar problem concerning the large number of processors
and users who would  have  to be  notified  of  the SNUR requirements
under § 721.5.

     "The language  of  § 721.125 (b)  and  (c)  is sufficiently broad
that it could be interpreted as requiring recordkeeping by a large
number of processors at thousands of retail and consumer sites.  In
the case  of P-89-708 EPA agrees with the commenter that § 721.125
(b) and (c)  are not appropriate.   Accordingly,  the final rule does
not require the  recordkeeping at §  721.125 (b)  and  (c) .  EPA does
not  intend  such  broad  recordkeeping  especially in light  of the
limited SNUR provisions, which require notice when a manufacturer
or importer exceeds  a  certain production volume or when a person
fails to  provide  risk notification.

     "In   general   EPA   limits  only   the   production   volume
manfuacturerd  or imported when  it  makes the  finding  under TSCA
section  5(e)(l)(A)  (ii)(II)(exposure  based  finding)  that was the
basis of  action  for the section  5(e)  consent order for P-89-708.
EPA agrees with the commnet that  in cases where EPA uses only the
exposure  based authority of TSCA the recordkeeping of § 721.125(b)
and  (c) may be unduly  burdensome.  In cases where there are other
restrictions  such as worker  exposure, hazard communication, and
limited  distribution based on an unreasonable risk finding under
TSCA EPA  may  still  cite 721.125(b) and (c) when appropriate.

     "The commenter also questioned the notification requirement in
§ 721.5  on the grounds that they could apply to a large number of
processors and users.  EPA  believes, however, that this will not

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                                                              190

occur.    Section  721.5  requires  manufactuers,  importers,  and
processors to  notify  each recipient of a substance  subject to a
SNUR of the requirements  of  that  SNUR.   Section 721.5(a)(2)(iii)
also  exempts  manufactures,  importers,  and processors,  from such
notification requirements when they can document that the recipient
cannot undertake  any  significant  new use described  in  the SNUR.
Because the SNUR for P-89-708 contains only a production limit and
risk notification provisions  for manufactures of importers further
notification of the SNUR requirements is not required.

     "EPA will review future SNURs especially those similar to P-
89-708  that  contain  only  a  productin  volume  limit  and  risk
notification  provision  to ensure that  appropriate  recordkeeping
requirements are imposed.  The recordkeeping requirements of
§ 721.125 (b)  and (c)  are still appropriate  for some SNURs.   In
addition the suggestion that  recordkeeping requirements apply to a
limited number or tiers of processors may also be appropriate in
some cases."

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                                                              191

"BIOTECHNOLOGY"
     Proposed Policy Regarding Certain Microbial  Products.   EPA.
     49 FR 50880, December 31, 1984.

     [This was finalized as the June 26,  1986 document.]

     "Section  8(c).    Persons  who manufacture  or  process
     microbial products that fall under the TSCA definition of
     "chemical substances" should  consult the final section
     8(c) recordkeeping rule.   49 FR 50893."

     "Section  8(e).   Persons manufacturing,  processing,  or
     distributing microbial products for TSCA purposes will be
     subject  to  this  requirement  [8(e)  Policy]  and  should
     consult   the   policy  statement  to   determine   their
     responsibilities under section 8(e).  49 FR 50893."
     Statement of Policy; Microbial Products Subject to the Federal
     Insecticide,  Fungicide,  and Rodenticide  Act and  The  Toxic
     Substances Control Act.  51 FR 23313, June 26, 1986.

     [This 1986 Policy Statement is  the  primary document for the
     TSCA biotechnology program until rules  are published.   This
     policy is being implemented through the requirements of 40 CFR
     Parts  720  and  721,   as  interpreted   in  the  1986  Policy
     Statement, so that most of the definitions in those parts also
     apply to microorganisms.]

     "SNUR -  In the unlikely event  that  an  imminent hazard
     would arise during this interim  period,  the Agency could
     use  its  authority under  the  section  7   of TSCA  to
     immediately   limit   or  prohibit   the   manufacture,
     processing, distribution in commerce, use,  or disposal of
     the hazardous product.  51 FR 23329."

     "In the meantime, EPA strongly encourages persons who are
     planning to  manufacture,  import, or process pathogenic
     microorganisms  for  non-agricultural,  new environmental
     uses, except those used solely for agricultural purposes,
     to report their activities to the Agency and to provide
     information similar to that required for a PMN for a new
     microorganism.  51 FR  23329."

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                                                         192
"Section  8(e)  -  All  manufacturers,  processors,  and
distributors  of  microbial  products  subject  to  TSCA,
including those involved in research and development, are
reminded   of  their   responsibility  to   notify  EPA
immediately  of any  new  information  which "reasonably
supports the  conclusion that  such substance or mixture
presents a substantial risk of  injury to health or the
environment  (TSCA section 8(e)).  51 FR 23331."
PACT SHEET:   EPA STATEMENT OF POLICY  ON MICROBIAL PRODUCTS
SUBJECT TO THE FEDERAL INSECTICIDE, FUNGICIDE, AND RODENTICIDE
ACT AND THE TOXIC SUBSTANCES CONTROL ACT.

[Summarizes  key  provisions  of  June  26,  1986  FR  notice,
discussed above as 1986 Biotechnology Policy Statement.]

"EPA must  be notified by  manufacturers,  processors or
distributors of microorganisms immediately if they become
aware   of   any  new  information   that   suggests   the
microorganisms  present a substantial risk of  injury to
human  health or  the  environment.   This is not a new
requirement;  it applies to  all  substances subject to
TSCA."
Points to Consider in the Preparation and Submission of TSCA
Premanufacture Notices  (PMNs)  for  microorganisms.   July 23,
1990.

[General guidance sent by EPA to any potential PMN submitter
for biotechnology.]

"EPA  must  be notified by manufacturers,  processors or
distributors of microorgnaisms immediately if they become
aware   of   any  new  information   that  suggests  the
microorganisms present a  substantial  risk of injury to
human  health or the  environment.   This  is not  a new
requirement; it applies to all substances subject to TSCA
under  the   section  8(e)  requirement  for  notice  of
substantial  risks.  (p. 2)"

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                                                              . 193

TSCA §6 "ASBESTOS"
          UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
                     WASHINGTON, D.C.  20460

                         February 10, 1992        OFFICE  OF
                                                PESTICIDES AND
                                               TOXIC  SUBSTANCES

R. David DiJulio, Esq.
DiJulio and Glasser
501 North Central Ave.                    »
Glendale, CA  91203                     *G L'r''"

     Re:  Asbestos Ban and Phase Out RMfe/Linoleum-Type Flooring
                                      T-J-. •'
Dear Mr. DiJulio:                     ^'-
                                       ».•-*.+
     This letter  is  in  response to yojtr ^letter dated January 13,
1992,  concerning  "linoleum-type floorimj*"*  Only those  products
listed in section 763.165 of the Asbestos Ban and  Phase Out  (ABPO)
Rule  are regulated  by  the Rule.   However,  there  is not enough
information  in  your letter  for  us to  determine  whether your
client's product  is  a listed product or not.

     If  your  client's product  fits  within  the definition of any
product listed in section 763.165 of the ABPO Rule, the product may
be regulated  by the Rule.  Product  definitions are contained in
section  763.163  of the ABPO Rule.   In  particular,  note  that the
ABPO Rule includes at least two flooring materials, vinyl/asbestos
floor  tile  and  flooring felt,  which is used  as an underlayer for
floor  coverings and  is  sometime bonded to the floor products.  40
CFR  763.165(a).   Another product category, non-roofing coatings,
also contains some flooring materials.  40 CFR 763.165(d).   If your
client's   product   fits   within   the   definition   of   either
vinyl/asbestos  floor tile or  flooring felt,  or within any  other
product  definition,  it  may  be  regulated by  the ABPO Rule.

      In  addition,  be advised  that on October 18, 1991,   the U.S.
Circuit  Court of  Appeals  for the Fifth Circuit in Corrosion  Proof
Fittings,  et  al.  v. EPA, No.  89-4596,  vacated the ABPO  Rule and
remanded it to EPA.  In  a subsequent clarification of its decision,
the  Court  stated that  only  new  uses  of  asbestos  and  asbestos
products included in the ABPO Rule that were not being manufactured
or processed  in,  or imported into, the United States on  July 12,
1989,  when the ABPO Rule was  published  are still subject to the
ABPO Rule.  In the next few weeks,  EPA will publish a notice in the
Federal  Register about the present  status of the ABPO Rule  in  light
of the 5th Circuit Court's decision.  The notice will  also address
which products  may still be subject  to the  ABPO Rule.

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                                                               194

     The  cutting  that  you describe  in  your  letter  would  be
considered processing under the ABPO Rule.   "Process"  has the same
meaning  in  the ABPO  Rule  as it does  in Section  3  of the  Toxic
Substances Control Act  (40  CFR 763.163), where  it  is  defined as:

     [T]he preparation  of   a chemical  substance or mixture,
     after its manufacture,  for distribution in commerce - (A)
     in the same form or physical state as,  or  in a different
     form  or  physical   state  from, that   in'  which  it  was
     received  by  the person so  preparing  such- substance  or
     mixture, >or'd$fid*,- as part  of an article  containing  the
     chemical  sub&&SBf&£ or  mixture.

     7 U.S.C.A. 2
     Under  this  d^e£inCjH.on,  your  client  is   "processing"   the
flooring because  it  is-|||?teparing the flooring for distribution by
cutting large roll's gf ttffr' flooring into smaller portions for  sale
to contractors an'd'*usej^sjsi{  This interpretation  is consistent  with
the purpose and  in£eh|L Qf  the ABPO Rule  to reduce unreasonable
risks  to  human  heal^^%uring activities  involving  asbestos-
containing  products,  because  cutting  can  release   significant
amounts  of  asbestos.    See,  for  example,  the   discussion  of
vinyl/asbestos  flo'or tile in the  Federal  Register  notice on  the
final ABPO  Rule.   54  FR  29492, July  12,  1989.

     Therefore, if your client's product is an asbestos-containing
product that  is  still subject to the ABPO Rule, your  client  is a
processor of a regulated product under the Rule  and  subject to the
processing, distribution in commerce, and labeling prohibitions and
requirements found in sections 763.167,  763.169, and 763.171 of the
Rule..

     If you have  any questions, please  contact  Mike Mattheisen on
my staff  at the  above address  (mail  code TS-794)  or  at  202-260-
7363.

                                   Sincerely,

                                     /s/
                                   John W. Meldne,  Director
                                   Chemical Control Division

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