xvEPA
             United States
             Environmental Protection
             Agency
             Office of Pesticides
             and Toxic Substances
             Washington, DC 20460
             Toxic Substances
             June 1987
Section 4 of the
Toxic Substances
Control Act:
An Overview
             Test Rules
             Development Branch
             Office of
             Toxic Substances

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 SECTION 4  OF THE TOXIC  SUBSTANCES

     CONTROL ACT:  AN OVERVIEW
   Test Rules Development Branch
     Office of Toxic Substances
U.S.  Environmental Protection Agency
      Washington, D.C.   20460
             June 1987

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A.   INTRODUCTIOH


     Section  4  of  the  Toxic  Substances  Control Act (TSCA)  was  enacted by

     Congress to respond  to  the concern that effects  of  chemical  substances  and

     mixtures on human health  and  the environment were frequently inadequatel'y

     documented and understood. This section of  TSCA gives the Administrator

     of  the Environmental protection Agency  (EPA)  the authority to  require the

     development of adequate test  data  on  the health  and environmental  effects

     of  potentially hazardous  chemicals.   These data  help the  Administrator,

     other Federal agencies, and state  and local  governments,  to  determine both

     whether  and how to regulate or control  potentially  hazardous chemicals.


     The primary purpose  of  this overview  is to describe EPA'a policies and

     procedures for implementing its section 4-related responsibilities.   It

     provides a general introduction to:   the objectives and requirements of

     section  4; the statutory  constraints  affecting EPA's decisionmaking

     process; the  alternative  processes by which  EPA  may ensure necessary

     testing  is done)  and the  key  opportunities for public involvement  in  the

     section  4  process.
        1Much of the material contained  in  this  Overview package  was  developed
'by Jellinek, Schwartz, Connolly & Freshman,  Inc., Washington,  D.C.,  under the
supervision of the Test  Rules  Development  Branch, pursuant to  EPA  Contract No.
68-02-4214.

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B.  OBJECTIVES AND REQUIREMENTS OF SECTION 4







    Section 4 of TSCA was designed to ensure the following:   (1)  Chemicals




    which may pose "unreasonable"  risks of health or environmental damage, or




    may involve substantial production or exposure,  receive  priority attention




    for testing.  (2)  EPA has the  authority to require chemical manufacturers




    and processors to perform testing on such chemicals.  This section  of the




    Act requires that EPA make three  findings before requiring the




    manufacturers and/or  processors of a chemical to test it for  the potent^




    effects of concern to the Agency.







    Specifically,  EPA  must make all of the following findings:




    (1)   that the chemical may pose an "unreasonable risk" to health or to the




         environment;  or  that the  chemical is produced in "substantial"




         quantities, which could result in substantial or significant human




         exposure  or substantial environmental release;  and




    (2)   that insufficient data or knowledge exist about the health or




         environmental effects of  the chemical to reasonably determine  or




         predict  the impacts  of its manufacture,  processing,  distribution,  use




         and/or disposal;  and




    (3)   that  testing is  needed to develop such data.




   Additionally,  EPA considers the potential economic impacts of  the required




   testing before issuing  requirements  under section  4*

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C.  EPA'S ALTERNATIVES FOR ENSURING THE NECESSARY  TESTING  IS POKE







    If EPA makes all of the above findings for a specific  chenical or category




    of chemicals, EPA nay issue a test rule requiring industry  to test the




    substance(s).







    Alternatively, if EPA finds that affected Manufacturers and processors,




    and interested members of the public agree with the Agency  regarding the




    need for and scope of testing requirements, EPA may issue an enforceable




    consent order to expedite the testing.







    If a consensus of the interested parties cannot be reached, e.g., because




    testing issues are in dispute or are too complicated to be  resolved in the




    limited time available, the Agency will initiate rulemaking.









D.  CONSTRAINTS IMPOSED BY INTERftGENCY TESTING COMMITTEE'S RECOMMENDATIONS







    TSCA established the Interagency Testing Committee (ITC) to help EPA




    determine which chemicals should receive priority attention under the




    testing provisions of the Act.  The ITC is comprised of representatives of




    EPA      and several other federal agencies that are involved in




    regulation and research related to environmental and health issues.  The




    ITC reviews readily available data on a variety of chemicals; it also




    recommends substances which may require additional testing  for EPA's




    priority consideration.  The ITC presents these recommendations in the




    form of the TSCA Section 4(e) priority list ("priority List").







    The priority List of chemicals is divided into three parts:  1) those




    designated for EPA response within 12 months;  2) those recommended with




    intent-to-designate; and 3) those recommended  without  being designated for

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 response within 12 months.  (Chemicals in the first part are called




 designated chemicals; chemicals in the second and third parts are non-




 designated chemicals.)







 When the ITC designates a chemical for priority consideration, TSCA




 requires that EPA must either initiate rulemaking to require testing of




 the chemical, or publish its reasons for not so doing within one year.




 (No more than fifty chemical substances may be designated at any one




 time.)







 The ITC recommends with intent-to-designate chemical substances or




 mixtures which it believes should receive expedited testing consideration,




 by  means of the second part of the priority List.  The ITC nay designate




 these chemicals later, after EPA's review of the Committee's testing




 recommendations,  and  after the iTC's own review of the data collected




 under TSCA  sections 8(a)  and 8(d)  and other relevant information.  The




 intent-to-designate recommendation does not require EPA to respond to the




 ITC by  a certain deadline.  Should these chemicals be subsequently




designated,  a one-year statutory deadline for EPA response would be




imposed at  that time.







The third part of  the  priority List includes chemical substances or




mixtures  that the  ITC  believes warrant testing consideration,  but not




expedited review of  testing needs.  The ITC adds the chemical  substance or




mixture  to  the  Priority List,  and  recommends it for  testing without




designating  the substance  or mixture  for  EPA review within any statutory




deadline.   These chemicals may be  evaluated  by EPA as tine and resources




permit.

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E.  EPA'S RESPONSE TO ITC RECOMMENDATIONS







    The Test Rules Development Branch (TRDB) of EPA's Office of Toxic




    Substances (OTS) has the lead responsibility for carrying out the Agency's




    section 4-related activities.  After the ITC's recommendation of chemicals




    for testing,  OTS analyzes the available information, obtains additional




    information,  determines whether additional testing is needed and whether




    the available data support the required section 4 regulatory findings,




   (obtains both  technical and policy review of a consent agreement or a




    proposed testing program, and prepares the necessary Federal Register




    notices.  Because of the many tasks involved in testing decisions, OTS has




    found it necessary to establish very tight deadlines for obtaining and




    evaluating relevant information, and for arriving at preliminary testing




    decisions for approval by upper-level Agency management.







    If  the ITC designates a chemical for consideration by EPA, the Agency must




    respond within the one-year statutory deadline.  EPA's section 4 process




    has been carefully designed to include a series of interim deadlines and




    decision points.  This schedule is intended to ensure that the statutory




    one-year deadline will be met, and to provide sufficient opportunity for




    both public input and for the Agency's internal review of proposed testing




    decisions. One critical milestone occurs approximately 18 to 20 weeks




    after EPA's receipt of the ITC's designations.  At that time, a




    preliminary decision must be made by EPA staff as to whether testing of a




    given chemical is needed, and for what effects.  If EPA determines that




    testing is needed,  it will proceed with the development of a proposed test




    rule for the  chemical.  EPA does not use the consent agreement process for




   designated chemicals because of the short time frame available to meet the

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     statutory deadline.  It is therefore crucial that all data relevant to

     this "course-setting" decision be submitted to the Agency considerably

     earlier than the 18th week.  Such data may include information on the

     production, use, exposure, environmental release, health effects, or

     environmental effects of a chemical.


     If the ITC recommends with intent-to-designate a chemical (or mixture),

     EPA conducts a similar evaluation of the chemical.  However,  in addition.

     to the rulemaking procedures described above,  EPA has the consent

     agreement2 option for chemicals that nave been recommended with intent-to-

     designate.  to use  the consent agreement process, EPA determines whether a

     consensus  exists among the Agency,  industry,  and other interested

     individuals,  regarding the need for and scope  of testing.


     A  major milestone of  the consent agreement process is the deadline by

     which  a tentative consent agreement must be established.   By  week 32,  EPA,

     industry,  and interested public groups must reach a consensus regarding

     the  need for  and scope  of required  testing. This deadline is particularly

     important,  because  if there is  no consensus, the consent  agreement option

     is extinguished  and EPA must  proceed with the  issuance of a proposed test

    rule.  Chemicals in the recommended with intent-to-designate  category may

    also proceed  directly to rulemaking when EPA believes  individual  chemical

    substance  or mixture  testing  requirements cannot be successfully

    negotiated  through the  consent  agreement process.
        A consent agreement is an agreement between EPA and  interested
parties, who agree either to conduct testing or to a test program.  Once  t
agreement is signed by all parties, it is known as a consent order, which
legally binding and enforceable.

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     If the  ITC recommends a chemical or mixture  for  testing consideration by


     EPA without designating it for EPA response  within one year,  the Agency


     will evaluate  the chemical according to its  relative priority versus that


     of all  other ITC chemicals.  There is no deadline for response by EPA for


     these chemicalsi both ruleraaking and consent agreement options are


     available.



     EPA also develops testing requirements under the Act for cheoicals that


     warrant testing even though they have not been recommended by the ITC.


     These non-ITC  chemicals are considered for test  rules or consent


     agreements in  cases where the Office of Toxic Substances, or  another EPA


     program, needs test data to assess the risks of  the chemical. The


     schedules for  the development of test rules  and  consent agreements for


    non-designated ITC chemicals are generally followed for these chemicals.



    The following  section chronologically presents some of the key interim


    decision points and deadlines in EpA's section 4 process, as  well as


    points at which public input to the process  is sought.




F.  KEY DECISION POINTS AND OPPORTUNITIES FOR PUBLIC INVOLVEMENT  IK EPA'S


    SECTION 4 PROCESS
    This section will enable interested parties  to effectively participate  in


    EPA's section 4 process by detailing where in the process critical  interim


    decisions are made, and when public comments on the approach or on


    tentative decisions are solicited.3  The course-setting decision point  is
       ^An opportunity also exists for public input during  the  iTC's
   sideration of chemicals for the priority List, i.e., when  the preliminary
   t of chemicals being considered by the ITC for addition  to the priority
List is published in the Federal Register.

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     highlighted by a double asterisk (**),  The end of the reporting period

     for public submission of section 8(a)  and section B(d) information is the

     deadline by which interested parties must submit their views and any

     relevant information, in order to receive consideration prior to the


     Agency's preliminary decisions.  The week numbers represent target

     dates.   A summary chart of section 4 process target dates is located at


     the end  of this booklet.




 Week Number
     O-2   Receipt and Publication by EPA of the ITC Recommendation on a Given
          Chemical

          EPA's  receipt of  the  ITC's recommendations initiates the section 4


          process.  For those chemicals designated  by the ITC for testing


          consideration,  a  one-year  deadline is established  for the Agency to

          respond with a  regulatory  decision.



          Approximately two weeks after receipt of  the ITC recommendations,  EPA

          publishes  a Federal Register  notice which:


          °  announces EPA's receipt of the ITC report;


          °  establishes  a  four-week period for submission of public comments


            on the  ITC's recommendations  (the  first of  several opportunities


            for  public  input);

          °  invites  the  public to attend  Focus Meetings (see week 6 below)  as


            well  as  subsequent public  meetings (see week  22  below)4;  and


          •  in cases  of  chemicals under consideration for consent agreements,
        The date and location of the Focus Meeting for each chemical  is
indicated in the Federal Register notice.  The notice states  that parties
interested in attending subsequent public meetings should contact EPA  to
request notification of the dates and locations of these meetings.

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            invites persons interested in participating in or monitoring the




            negotiations of the consent agreement to contact the Agency in




            writing.







         In addition to publishing the ITC report, EPA issues TSCA section




         8(a) and 8(d) reporting rule amendments in the Federal Register,




         under the automatic reporting rule promulgation procedures of 40 CFR




         part 712, and 40 CFR part 716, respectively.  The TSCA section 8(a>




         preliminary Assessment information rule requires manufacturers to




         submit specific production and exposure information on the ITC-




         designated and ITC-recommended chemicals within 90 days of




         publication of the amendment.  The TSCA section 8(d) Health and




         Safety Data Reporting rule requires manufacturers, processors, and




         distributers who possess or know of such studies to submit copies or




         lists of unpublished health and safety studies on the iTC-designated




         and ITC-recommended chemicals within 90 days of publication of the




         amendment.  The section 8(d) rule also requires such persons  to




         notify EPA if they subsequently initiate a health or safety study on




         a listed chemical.  Persons subject to these reporting requirements




         are urged by EPA to submit such information as early as possible in




         the reporting period.  The public docket for the chemical is  also




         established at this time; its location and the public hours for




         review are announced in the Federal Register.







3-6      Comment Period on the ITC Report




         The public is invited to submit comments on the ITC Report during




         this time.

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   6-19     Discussion Phase

            At this point,  EPA  begins discussions  with  the  affected

            industry and other  interested  parties  to  exchange information

            and to  allow an opportunity for  the public  to provide input to

            the Agency's decision-making process.  Usually  EPA holds a

            public  focus meeting  to  begin  these discussions.  This meeting

            helps focus  the Agency's inquiry and highlights the issues of

            greatest importance to EPA  and other interested parties.
  7-14     public Submission of Relevant Information/Section 8(a)  and 8(d)
           Reporting period

           During the weeks  prior  to EPA's tentative decision on the need to

           require testing (see week 18 below),  specific information is

           requested from  all interested parties regarding the need for further

           testing and,  if appropriate, what types of tests should be required

           for the chemical  in question.  These  early weeks are the critical

           time for the  public to  submit information relevant to EPA's testing

          decisions,  and  for industry  to submit information in response to

           section 8(a)  and  8(d) reporting requirements.


** 18-20  Course-Setting  Decision

          At this  point,  EPA makes  preliminary  internal  decisions, known as

          "course-setting" decisions,  as to whether testing of the chemical is

          warranted,  and  for  what effects.  These  preliminary decisions are

          based on  the  ITC recommendations, public data  submissions,

          information received as a result of the  public focus meeting,  and

          Agency's own preliminary evaluations  of  production,  use,  exposure,

          health, and environmental data.

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22       Public Meeting on Course-Setting and Deadline for Requests to
         Participate in Consent Agreement Negotiations

         EPA holds a public meeting to announce its preliminary course-setting

         decisions and the basis for those decisions.  The public is invited

         to comment on EpA's preliminary decisions.  These preliminary

         decisions may be altered, if necessary, based on additional analysis

         resulting from public comment.  In addition, for non-designated

         chemicals, individuals interested in participating in any consent

         agreement negotiations must also notify EPA in writing by this

         time.  For designated chemicals, EPA does not initiate negotiations,

         but proceeds directly to preparation of a proposed rule to require

         the necessary testing (see week 52 below).


22-30    Negotiation of Consent Agreement (Non-Designated Chemicals Only)

         During this period, EPA meets with affected manufacturers and

         processors, and other interested parties, to determine whether a

         preliminary agreement on a testing program can be reached.

         Individuals and groups who have responded by week 22 to EPA's initial

         Federal Register notice (see weeks 0-2 above) are designated

         "interested parties" and are afforded an opportunity to participate

         in the negotiation process at their own expense.  All negotiation

         meetings are open to members of the public, who may observe.  EPA

         advises interested parties of meeting dates and circulates meeting

         minutes, testing proposals, background documents, and other relevant

         materials.


32       EPA Decision point:  Consent Agreement or Test Rule

         By week 32, EPA determines whether a tentative agreement can be

         reached on a testing program acceptable to EPA, and whether continued

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         negotiation is  likely  to  result  in a  draft agreement within an




         additional  4 weeks.  If both  stipulations  are  affirmative,  EPft




         proceeds with the development of an agreeaent.   If a tentative




         agreement has not been reached and it appears  unlikely that




         additional  negotiation will result in such an  agreement by  week  36,




         EPA proceeds with the development and preparation of a proposed  test




         rule  (to be published by  week 62).






32-36    preparation of  Consent Agreement




         If a consensus  is reached, EPA prepares a  draft agreement that




         reflects the apparent consensus, which contains suitable guidelines




         as the required testing standards.  The agreement is then distributed




         to the interested parties for comment.






42       Optional Meeting to Address Comments  on the Draft Consent Agreement




         If necessary, EPA will hold a public meeting to address comments




         received in  response to the draft consent  agreement.






42-44    Preparation of the Consent Order and  Federal Register Notice




         After the comment period for  the agreement, EPA prepares the consent




         order (which incorporates the  consent agreement).  Each consent order




         is accompanied by a support document which explains the basis for the




         original agreement, summarizes any ITC testing recoramendations for




         the chemical, describes the objectives of  the testing to be conducted




         and the rationale for the selection of tests, and briefly outlines




         the use and  exposure characteristics of the test chemical.  This




         support document will become a part of the record and will serve as




         the basis  for the consent order.

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                                      13
48       Signature of Consent Order




         The consent order is circulated for signature by the Agency and the




         interested parties.  The consent order becoaes legally enforceable as




         of its effective date.






50       publication of Oonsent Order notice in Federal Register




         When a consent order has been issued, the document explaining the




         basis for the consent order and a notice of availability of the




         consent order itself is published in the Federal Register.  This




         notice serves as the statement of EPA's reason for not initiating




         rulenaking under section 4 of TSCA.






52-62    publication of Decision Hot to Require Testing




         If EPA determines that no testing of a chemical is necessary, the




         Agency will prepare a Federal Register notice to respond to the ITC,




         which describes why El* has determined that further testing is not




         required.






52-62    publication of proposed Rule




         If EPA determines that testing of a designated chenical is necessary




         (or that tinely consensus will not be reached for a non-designated




         chemical), the Agency pursues development of a rule to require




         testing of the chemical.  A proposed test rule is signed by week 52




         to initiate rulenaking for designated chemicals, or by week 62 for




         chemicals recomended with intent-to-designate.  The proposed test




         rule specifies the chemical to be tested, health and environmental




         effects for which testing will be required, proposed test standards




         for the development of test data, schedules for the submission of




         test data, and who ia responsible for conducting the testing.  The

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                                        T4
          Agency usually proposes the TSCA Test Guidelines, or other suitable

          guidelines, as the required test standards for the rule.  The

          guidelines are modified as necessary, to allow for specific

          characteristics of the chemical to be tested.  The public is invited

          to comment on the proposed rule during a 60-day period.'

          To initiate rulemaking, the Agency nay choose in some cases to issue

          an Advance Notice of proposed Rulemaking (ANPR) rather than a pro-

          posed rule,  this alternative is generally used when an ITC-designa-

          ted chemical or chemical category presents complicated issues on

          which the Agency seeks public comment early in the rulemaking pro-

          cess.  EPA publishes the ANPR at approximately week 52 (or 62),

          following receipt of the initial ITC report,  This is followed by a
         For  certain test rules,  EPA may use a two-phase rulemaking process.
Generally, EPA  uses the two-phase process in cases where no well-accepted test
methodology  is  available for inclusion in a proposed test rule.  Under two-
phase  rulemaking,  the Agency issues a proposed rule at week 52 or 62
specifying the  chemical to  be tested, the effects for which testing is
required, and who  is responsible for conducting testing.  This is a phase I
proposed test rule.  The public  is invited to comment on the proposed rule
during a 60-day period.  After consideration of public comments, EPA publishes
a  Phase I final test rule at week 1O8.  The rule becomes effective
approximately 44 days after its  publication in the Federal Register.  The rule
requires each person subject to  it to submit, within 30 days after the
effective date  of  the rule,  either a letter of intent to conduct the testing
or an  application  for exemption.  Test standards and schedules are developed
in a second  phase  of rulemaking.  in the second phase of two-phase rulemaking,
test sponsors are  required  to submit proposed study plans for the required
tests  within 90 days after  the effective date of the phase I final test
rule.   The study plans submitted by industry in response to a phase I test
rule,  with any  modifications considered necessary by the Agency, are proposed
for comment  in  the Federal  Register.  After providing a 45-day comment period
and an opportunity for a public  meeting on the sponsors'  proposed test study
plans,  EPA adopts  the study  plans,  as proposed or modified,  as specific test
standards and schedules for  the  test rule.   This is a Phase II test rule.
After  EPA publishes a phase  II final rule that adopts test standards and
schedules for a  test rule,  industry is required to perform the testing
according to the schedule specified in the  rule.  EPA announces in the Federal
Register the receipt and availability of data from testing performed under a
test rule.

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         proposed rule or decision-not-to-test which  is published by' week




         108.  A final rule or notice teminating  the rulemaking process is




         published by week 154.






70-106   preparation cf Final Rule or Decision Mot to Teat




         in response to public comments received on the proposed rule, EBV




         prepares either a final test rule or a decision not to require




         testing.






 08      publication of the Final Test Rule in the Federal Register




         Once EPA publishes a final test rule, each person subject to the rule




         •ust submit either a letter of intent to  conduct the  testing or an




         application for exemption within 30 days  after the effective date of




         the rule.  Test sponsors are required to  commence testing and to sub-




         lit test data according to the schedule specified in  the rule.  Study




         plans oust be submitted to BFA at least 45 days before the  start of




         each test.  EFA will inspect the testing  laboratory and audit the




         study data as appropriate to ensure that  the study is conducted in




      '   confonance with the study plan and El* Good Laboratory practice




         standards.









G.  TEST OMA SUBMITTED IN COMPLIANCE WITH A CONSENT  ORDER OR  TEST ROLE






    When the Agency receives data which are submitted in compliance  with a




    consent order or test rule, EPA publishes a Receipt of Data Notice in the




    Federal Register,  this notice appears within  15  days of receipt of the




    data to announce their availability.  The notice  identifies the  type of




    test data received, when they were received, and  the El* action  in




    response to which they were submitted.

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                                      16
    Test data are reviewed by EPA to determine their completeness and




    reliability, and to ensure that the data were submitted in compliance with




    the test rule requirements.  After this preliminary review, the data are




    further evaluated to assess their adequacy for use in an evaluation of the




    risks associated with the chemical.  Should some regulatory or other




    action appear warranted, the data on the chemical are referred to the




    appropriate office within EPA.









B.  FURTHER INFORMATION OH THE SECTION 4 PROCESS







    For specific information on EPA'a section 4 activities on particular chem-




    icals, and for more information on the section 4 process, interested




    parties should contact the TSO Assistance Office (TS-799), Office of




    Toxic Substances, Environmental protection Agency, Rm. E-543, 401 M




    Street, S.W., Washington, D.C.  20460.  Toll Free:  (800-424-9065)i in




    Washington,  D.C.i  (544-1404)> outside the United States:  (Operator-202-




    554-1404).

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               TARGET SCHEDULE FOR EPA ACTION:  SECTION  4  PROCESS
         NOTIFICATION AND  INFORMATION GATHERING, EXCHANGE, AND ANALYSIS
    Week"        Event
      0       Receive ITC Report
      2       publish ITC Report fi B(a) C  8(d)  Notices;
              Invite public participation  in Negotiations
   •3-6       Consent period on ITC Report
  *6-18       Discussion Phase
   7-14       8(a) and 8(d) Reporting  Period
    *22       public Meeting on Course-Setting  Decision;
              Deadline for Request to  Participate  in  Negotiations
  22-30       Negotiation of Enforceable Consent Agreement7
     32       Decision Point:  Consent Agreement or Test Rule
CONSENT AGREEMENT                TEST RULE
36-40  Comment Period            32-60   Prepare  Test  Rule;  Agency
   42  Meeting to Address               Review and  Signing
       Comments  (if necessary)   52-62   publish  proposed Rule in
   48  Signing of Consent               PR
       Order and FR Notice       70-106  Agency Review of Comments;
   50  Publish FR Notice                prepare  Final Rule  or No-
                                        Test Decision; Agency
                                        Review of Rule; Signing of
                                        Rule
                                 108     publish  Final Rule  or No-
                                        Test Decision in FR
FR - Federal Register
•  Points in the process when  public  comment is solicited.
       6The dates contained  in the  left-hand column are calculated from the
date EPA leceives the  ITC report recommending a chemical for testing.

        Designated chemicals do not go through the negotiation process, but
broceed directly from  week 22 to test rule preparation, and are signed by week
52.

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