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Environmental

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Toxic Substances Control Act; Data

Reimbursement; Final Rule

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p. 2

31786 Federal Register / Vol. 48, No. 133 / Monday, July 11, 1983 / Rules and Regulation s

ENVIRONMENTAL PROTECTION CROSS REFERENCE TABLE

AGENC

_ Sec

Y

tion numbers in proposed rule (Part 790 Subpa rt F) Section numbers in

final rule (Part 791)

40 CFR Pa rt 791

Subpa rt A-Genera l

[OPTS-48001D; TSH-FRL 2349-81 Provisions.

790.100 Scope and authority. . .. .. . .. .. .. . .. .. .. .. .. .. . .. .. . .. .. . .. .. .. .. .. ... .. .. . ... . . .. .. .. .. .. . .. .. . .. .. .. . .. .. .. . .. .. .. .. .. . ... . .. .. . .. ... .... . .. .. . .. .. 791 .1

790.101 Applicability. .. .. . .. .. .. . .. .. .. .. .. . ... . .. .. . .. .. .. .. . .. .. .. .. . .. .. . .. .. .. .. . .. .. .. .. . .. .. . .. .. .. . .. .. .. . .. .. . ... . .. .. .. . .. .. .. .. .. . .. .. . .. .. .. . .. . .. .. . .. .. 791.2 .

Toxic Substances Control Act; Data 790.102 Definitions .. . .. .. . .. .. .. .. . .. .. .. .. . ... . .. .. .. . .. .. .. .. . .. .. .. . .. .. .. ... .. .. . .. .. .. .. . .. .. . .. .. .. .. . .. .. .. .. . .. .. . .. .. .. . .. .. .. .. .. . ... . .. ....c ... .. . : 791.3 .

Reimbursement Subpart B-Hearing

- Plocedures.

~ 790.103 Initiation of rei mbursement hearing .. .. .. . .. .. ...... .. . .. .. .. .. . .. .. .. ... ... ... .. ... .... .. .. . .. .. .. . .. .. . ... . .. .. .. ..... .. ... .. . .. .. ... . 791.20 .

AGENCY: Environmental Protection 790.103(d), (e) Consolidation of hearings .. .. . .. .. .. ..... .. .... ... .. . .. .. .. . .... .. .... . .. .. . _ .. ... .. .. .. . .. .. .. .. . .. .. .. .. .. . .. .. .. . .. .. . .. . ._. .. . . . 791 .22 .

Agency (EPA). 790.105 Reporting requirements . ... .. .. .. .. .. . .. .. . .. .. .. ..... .. .. .. . .... . .. .. .. . ._. .. .. .. . .. .. . .. .. .. .. . .. .. .... . .. .. . .. .. .. .. .. . .. .. .. . .. .. . .. . .. .. .. . .

790 .106 Timing . .. .. . .. .. .. ..... .. .. ..

.. ... .. .. . .. .... .... . .. .. . .... .. .: .. . .. .. .. . .... . ... . .. .... ... .. .. . .. .. . ..

.. .. .. ... ..

.. ... ..

.. . .... .. .. .. ..... .. . .

. .. . .. .

. . .. .. . . 791.20(b).

ACTION : Final rule. Preheating preparations . .. ..... .. .. .. . .. .. .. .. . .. .. .. . .. .. .. .... . _ .. . .. .. .. ..... .. ...-.. . .. .. .. .. . .. .. .. . .. .. .. .. . .. .. .. .. .. . .. .. .. . .. .. . .. . .. .. 791.27.

- -- Appointment of heanng officer .. . ... . .. ..

. .... .. ... .. .. .. .. . .. .. . .... .. .. ... .. .. .. . .. .. . .. .. .. . .. .. .. ..... .. .. . .... .. .. .. . .. .. .. ... .. . .. . .. .. 791.29.

SUMMARY: EPA is a rule to 790

.108 Hearing procedures. .. .. .. . .. .. .. . .. .. .. . ... . .. .. . .. .. .. .. ... .. .. .. . .. .. . .... .. .. .. . .. .. .. . .. .. . ...... . .. .. .. .... . .. .. . ... . .. .. .. ... ._. . .. .. . .. ..... 791.30.

promulgating Expedited procedures . .. . .. .. .. . ... . .. .. .. . .. .. .. ... .. .. ..

. .. .. .. ..... .. ... .. .. .. .... . .. ..... ..... .. .. .. ... .. .. . .. .. .. .. . .. .. .. .. . .. .. .. ... . .. .. .. . 791.31 .

implement sections 4(c)(3), and 4(c)(4), Serving no ti ce ... .. ... . .. .. . .. .. .. ..... .. .. .. . .. .. .. .. . .. .. .. . .... .. .. ._ .. .._ . .. .. .. ... .. ..... .. .. . .. .. . .. .. .. .. . ... . .. .. .. .. . .. .. .. . .. .. ... . .. .. .. . 791 .34 .

of the Toxic Substances Control Act The award .... .. .. .. . ... . .. .. . .. .. .. .. .. . .. .. .. .. ... .. .. . .... .. .. .. . .. .. .._. .. .. ._ .. .. .. . .. .. .. . .. .. .. . .. .. . .. .. .. .. ... .. .. .. .. . .. .. .. . .. .. .. . .. . .. .. . 791.37

790 .109 Fees and expenses.. . .. .. . ... . .. .. .. . .. .. .. .. ... .. .. . .. .. .. .. .. . .. .. .. ... .. .. . .. .. .. .. . .: .. .. . .. .. .. . .. .. .. . .. .. .. .. . .. .. .. .. . .. .. .. . ... . .. . .. . .. :. . 791.39 .

(TSCA), 15 U.S.C. Sec. 2603, 2604 . This Subpart C-aasis for

rule sets forth methods of determining ~ the Proposed

. ... .. .. . .. . .. .. .

. Order .

fair amounts for data reimbursement 790.1 10 Basis for the proposed order .. .. .. . .... .. ..... .. .. . ... . .. .. .. . .. .. .. . .... .. .. . .. .. .. . .. .... .. . .. .. .. . .. .

. .. . .. .. .. .. .- 791 . .40.

and resolving disputes that arise over 790.111 Processors. .. . .. .. .. . .. .. .. .. .. ... .. .. .. . .. .. - ..... .. .. .. . _.. .. .. . .... .. . .. .. .. .... . .. .. .. ... .. . . .. .. .. . .. .. ... .. .. .. . .. .. .. .. .. . .... .. .. . .. .. ... .. . .. . 791 .45.

allocation of the costs of testing required is90o.iia CRog uauon

volume. ..... .. .. . .. ..... :. . .. .. ... .. .. .. ..... ..: .. ... .. .... .. .. .. ...:. .. ... .. .. .. . .. .. .. . .. .. . .... .. ... .. :. .. .. .... ... .. .. ... .. . .. . ...

. isi.5~o .

by a sec . 4(a) rule under TSCA. 7s0.116 Multiple tests. . .. .. .. .. . .... .. .. ... .... .. .. .

.. .. .. ... .. .. .. .. . .. .. .. .. . .. .. ... .. .. .. ..... .. .. . .. .. .. . .. .. .. .. ... .. .. . .. .. ... .. .. .. .. .. ... .. .. ... ... .. .. .. . 791 .52>

EFFECTIVE DATE: September 9, 1983.

Subpart D-Review .

790 .117 Review . . .. .. .. . .. .. . .. .. .. .. .. .. . .. .. .. .. . .. .. ... .. .. .. .. . _ .. .. . .... .. .. .. . .. .. . .... .. .. .. . .. .. .. . .. .. . .. .. .. .. ... .. .. . .. .. .. . .. .. .... .. ... .. .. ... .. ... .. .. . 794.60.

FOR FURTHER INFORMATION CONTACT. Su6part E-Final

Order.

Jack McCarthy, Director, TSCA 790 .118 Availabitily~of final order .. .. .. .. .. ... .. . .. .. .. ...._. .. .. .... . .. ... ._... . ... .. ... . .. .. . .. .. .. . .. .. .. ..... .. . .. .. .. .. .. .. . .. .. .. . .. .. .. ... .. . .. . 791 .85. ~

Assistance Office (TS-799), Office of ' Subpart F--Prohibited

Acts.

Toxic Substances, Environmental 790.119 Prohibited Acts. .. . .. .. .. ... .. .. .. . .... .. ... .. .. .. . .. .. .. . .... .. .. .. . .. ..

.. ... .. ......_. .. . .... .. .. . .. .. .. . .. .. .. . .. .. .. ....... .. ..... .. .. .. . .. .. . .. .. .. 791.105.

Protection Agency, Rm. 543, 401 M St . ,

SW., Washington, D.C. 20460, (202-382-

3790), Outside Continental U.S.

: II. Statutory Scheme exemption. Under sec .

(Operator-202-554-1404). ry 4(c), those who

SUPPLEMENTARY INFORMATION :

A. Section 4 cannot reach voluntary agreements on

• how much reimbursement is owed may

I . Introduction Section 4 of TSCA authorizes the seek assistance from the Agency . Upon

Administrator to issue rules requiring request the Administrator must issue a

When the Environmental Protection manufacturers (including importers) and reimbursement order directing persons

Agency (EPA) promulgates a test rule, processors of certain chemical who received exemptions to provide an

all of the manufacturers, importers, and substances or mixtures to test them in amount of reimbursement that the

processors of the chemical subject to the order to generate information from Administrator determines is fair and

rule are expected to jointly bear the cost which the effects of the chemicals on equitable to those who incurred the

of testing. If the various firms are unable health and the environment can be - testing costs. The Administrator must

to agree on the amount or method of determined. Section 4(c) permits a base the order on a rule developed in

reimbursement, section 4(c) requires the person to apply for an exemption from - consultation with the Department of

Administrator to issue reimbursement testing which the Administrator must justice and the Federal Trad e

orders. This rule establishes procedures grant if he determines that the chemical Commission . All relevant factors,

and substantive criteria for EPA's to which the application pertains is including competitive position and the

determination of fair and equitable equivalent to one for which test data market shares of the persons providing

reimbursement. have been submitted or are being and receiving reimbursement, are to b e

The rule reflects EPA's review of the developed, and that submission of data taken into account in developing the

comments received in response to the by the applicant would be-duplicative rule . Advance Notice of Proposed (sec . 4(c)(2)). Persons receiving

Rulemaking (ANPR) published in the exemptions at any time before the en B. Section 5(h)(2) d

Federal Register of September 18, 1979 of the reimbursement period must Section 5(h)(2) provide s

~ (44 FR 54284) and to the Proposed Rule reimburse those who actually perform reimbursement only for data submitted

published in the Federal Register of June the required testing for a portion of the - by persons giving notice under 5(b)(2)

4, 1982 (47 FR 24348) . Many of the costs incurred in complying with the for a chemical on the sec . 5(b)(4) list of

comments proved to be useful in rule . The reimbursement period ends 5 chemicals which may present an

revising the proposed rule. A summary years after the last non-duplicative test unreasonable risk of injury to health or

of comments and EPA's response to data are submitted or after a period of the environment . It does not provide a

them may be found in the public file . time equal to the time necessary to yi comprehensive reimbursement scheme

This preamble discusses only the most develop those data, whichever is longer . for other data submitted under sec . 5 .

important aspects of the rule and Any person manufacturing or The Agency is not, at this time,

changes made from the proposal. A processing, or intending to manufacture including sec. 5(h)(2) in the dat a

more extensive discussion of the or process the substance covered by the reimbursement scheme . The general

Agency's reasoning for those sections of rule at any time from the effective date approach taken in this rule for sec . 4 will

the final rule which are unchanged from of the test rule until the end of the probably work for sec . 5(h)(2), bu t

the proposal may be found in the reimbursement period has a statutory several differences will require

preamble to the proposed rule. obligation either to test or obtain an adjustments which the Agency has not
p. 3

Federal Register / Vol. 48, No. 133 / Monday, July 11 . 1983 / Rules and Regulations 31787

yet analyzed sufficiently. Because sec. The hearing officer will base his reimbursement hearings will not result

5(b)(4) has not been implemented. there proposed order on the formula and in a final and binding decision, but in a

is no immediate need for a criteria set forth in this rule . In general, proposed decision which may b e

reimbursement provision nor is there a person's share of the test cost will be appealed to EPA and to federal court

enough information to design the equal to his share of the total production Commercial arbitra tion is binding

necessary provisions. of the test chemical, but a person who because the parties voluntarily agree t o

believes that the formula will not give up some of their rights of appeal.

III. The Rule provide fair and equitable Here, there is no such agreementA. Overview and Scope reimbursement in a specific case may Furthermore, because TSCA gives EPA

propose modifications to it. All costs responsibility-for reimbursement orders,

This rule potentially affects all - incurred in meeting the requirements of the Agency must retain control over the

persons subject to best rules under sec . the testrule will be eligible for final order. The specific changes made

4(a) of TSCA. Any person who receives reimbursement in the rules are :

an exemption from testing or data The hearing officer's proposed order a. Rules 1, 7 . 9, 12, 14, and 15 of the

submission requirements or who is will become final after 30 days unless Commercial Rules all refer t o

entitled to reimbursement for testing within that time one of the parties agreements to arbitrate which are not

costs incurred by compliance with sec. requests a review by the Administrator relevant to EPA's rules. EPA encourages

4(a) may ask EPA to resolve or the Administrator decides upon his parties to make private agreements to

reimbursement disputes. However, in own initiative to review the proposed arbitrate differences that arise over data

most cases the companies subject to a order. The Administrator will bast his reimbursement, but when they are able ~

test rule should be able-to work out review on the record of the hearing,' to do so they will not need assistance of

voluntary cost-sharing arrangements. upon the petitions for review ; and on the Agency. Therefore, EPA has deleted

These private arrangements need not written briefs and oral arguments if they all references to agreements to arbitrate.

conform to EPA's reimbursement rule. are necessary . The final Agency order which can include agreements to use

Within the limits of the anti-trust laws. may be reviewed in federal district non-neutral arbitrators. The hearing

parties may make any voluntary cost court. officers conducting reimbursement

allocation arrangements they wish. B. Type of Administrative Proceeding hearinis must be neutral because they

EPA does not intend to promulgate 1. Procedures. EPA has chosen an are. acting in a semi-official, capacity.

test rules merely to afford a informal adjudica tion procedure b. The Commercial Rules require both

reimbursement remedy, where modeled on commercial arbitration. ' parties to consent in writing to the

completed or oagoing testing p rovides. which. has many advantages for the arbitration, but under EPA's rules one

or is likely to provi~ ~de4uar participants as well as the Agency. The party may initiate the hearing. This is

frisk assessatei~ A does not beiievs parties will choose hearing officers also a consequence of the fact that EPA

~that the absence of mandatory data knowledgeable in the fi eld. The is conducting informal administrative

reimbursement will discourage f informality and flexibility of the adjudications rather than binding

% voluntarx otneg_otiated tes.iicg . ~ procedures should accommodate the arbitration.

-~t irmore, if negohated testin g

arrangements fail. for financial or other variety of situa tions in which c. EPA's reimbursement rules a llow

reasons before adequate test data is reimbursement disputes will arise, and additional time for procedures such as

developed. EPA will be able to make the promote a concentration of the choosing the hearing officer and locale.

necessary sec. 4(a) findings an

d substance rather than strategy of the The times begin to run from the end of

promulgate a test rule, making data hearing . the 45-day notice pe riod during which

reimbursement assistance available

. The reimbursement hearings will be

conducted according to-a modifi

ed additional interested parties may join

The testing obligation, and therefore version of the American Arbitra tion rather than from the date the request fo

ligation and the Association's "Rules for Commercial hearing is r the reimbursement ob filed. This ensures that a ll

reimbursement rule, apply only to those Arbitra tion" (Commercial Rules). A full parties have an equal voice in the

manufacturing or processing or text of the pertinent rules appears in the decisions. Additional time has also been

intending to manufacture or process the data reimbursement rule, and the provided'for the hearing officer t o

test chemical durin~ the period covered differences from the Commercial Rules render his proposed order because EPA

by the test rule . It is possible, as some are described below. If changes in the is asking for a short written-explanation

commenters have suggested, that a firm Commercial Rules necessitate changes which usually does not accompany an

could evade reimbursement in the data reimbursement procedures, arbitrator's award .

responsibility by withdrawing from the EPA will provide appropriate notice and d. Under Commercial Rule 23,

market. However, the period of absence comment periods. stenographic records are only made at

would be a long one, more than five Expedited procedures will be used for the request of the parties. However, a ll

years, and thus a withdrawal is unlikely most cases in which the claim of one data reimbursement hearings will be

to be a sound business decision. party is lessthan $5,000, and may be recorded to facilitate review of th e

When persons subject to a test rule used whenever the parties agree . hearing of'ficer's proposed order. The

are unable to agree on appropriate Expedited procedures include giving expense wi ll be shared by the parties.

reimbursement and request assistance, notice to parties by telephone and e . The need to protect confidential

an independent hea ring officer selected providing sho rter response times. business information prompted the

by the par ties from a roster maintained 2. Differences from commercial Agency to modify Commercial Rules 25

by the Ame ri can Arbitration arbitration. Many of the changes EPA and 31 for the purposes of data

Association will conduct an informal has made from the Commercial Rules reimbursement hearings. The hearing

hearing. The hearing officer wi ll use result from the differences between officer will have the authority to exclude

procedures similar to those used in voluntary arbitration and the statuto ry anyone, including a party, if necessary

commercial arbitration, with some context of the reimbursement hearings . to protect the confidentiality of

significant differences explained below. The most important difference is that information, and therefore may also
p. 4

• 3178$ Federal Register / Vol. 48, No. 133 / Monday, July 11, 1983 / Rules an d Regulations

accept evidence in the absence of some C. Timing and Circumstances of EPA's D. Method pf a/locatio n

parties . . Involvement In most cases allocation of testing f. Under Commercial Rule 27, oaths 1 . Initiation and participation . In costs an the basis of market share a s

are taken by arbitrator and witnesses response to several comments on the measured by production volume should- only when "required by law" . EPA's proposal, the final rule requires persons re9ult in fair and equitabl e

rules will require oaths of both th e

hearing officer and witnesses. seeking a reimbursement hearing to reimbursement. However, there may be

g

. EPA's rules will allow the hearing submit only a description of situations in which production volume

officer to request the Administrator to unsuccessful attempts to negotiate a will not give a fair result and other

issue a subpoena, if information or settlement, rather-than a certification of factors or criteria should be used .-The

attendance cannot be secured any other a good faith attempt . Either a person relative amount of exposure attributable

way. The Commercial rules allow the seeking reimbursement or a person from to each party may be a legitimate factor

arbitrator to issue a subpoena "when whom the reimbursement is sought may when different processes or end uses

authorized by law" . initiate reimbursement proceedings are used by different firms. TSCA

h. Commercial Rules 42, 43 and 45 under these rules. mentions competitive position as a

pertaining to the award have been After a request for a hearing is made, possible factor in allocation of test

modified for the Agency's rule. Instead EPA will publish a notice in the Federal costs, although neither EPA nor any

of an award, the hearing officer will Register, requiring any person not commenter has been able to reduce it to

issue a proposed order. In addition to already a party and wishing to a quantitative measure . However, the

the order itself and the signature of the cost allocation of one negotiated-test

participate in the proceeding to notify group suggests a way in which it could

hearing officer, which is all the EPA within 45 days. Those who have be used effectively. To allocate the cost Commercial Rules require, the order will already completed private agreements of a category of chemicals, th e

contain a concise statement of basis and with the parties in the hearing need not commercially significant chemicals in rationale, and a schedule for payment of join, as they will not be affected by the the category were divided int o the reimbursement . This statement will hearing officer's proposed decision. subgroups according to structure/

aid the Agency in reviewing the Promptly after the end of the 45-day activity characteristics . The

proposed order when. that is necessary. period, when the Agency has the names manufacturers of each subgroup were

While Commercial rule 45 required filing of all those who wish to participate, the divided into major 'Manufacturers turrs and

of the proposed order, EPA's rules Agency will transmit the list to the minor manufacturers, with a larger

provide that the order may be delivered proper regional office of the American portion of the test costs going to the either by certified mail or by personal

service . Arbitration Association so that the major manufacturers. Test costs were

i

. Parts "a" and "c" of Commercial parties can help choose hearing officers then evenly divided within each group .

Rule 47 are not included in EPA's rules and the location for the hearing . There may be cases in which

since they are inapplicable to EPA's 2. Timing. Most disagreements should measures of market share other than

method of appeal. surface soon after the test rule is production volume should be used . For

J . As in Commercial Rule 50, the promulgated, but persons may request example, some confidentiality problem s

parties will pay for the hearing officer's EPA's involvement at any time if, for might be solved by dividing costs

expenses and the administrative example, there are problems in deciding according to name plate capacity rather

expenses of the American Arbitration how to handle new market entrants or a than actual production volume . Sales

Association. However, TSCA sec . 26(b) need to reallocate testing costs based on volume may also be used on occasion . It

limits the amount of the fee that can be changed circumstances . will also be possible to use different

charged to regulated parties to $2,500 Test rules and the concomitant allocation schemes for different tests,

per party and $100 per small business, obligation to test or obtain an exemption though it may be too complicated to us e

3 . Legal Issues. In its rule, more than two: perhaps one for proposed and reimburse the tester, remain in environmental and one for health effects

EPA discussed its rationale for effect until the end of the reimbursemen t

delegating the initial decision to a period (sec. 4(b)(4)). Those who begin to- testing . Any party may propose factors

private party (i.e ., the hearing officer manufacture or process the chemical for the hearing officer's consideration .

who will be a private rather than The hearing officer has the discretion p party, after the test rule takes effect will have and the duty adjus a government employee) and the same choice of testing by Y to the formula to t

summarized the legal authority for the give the fairest result.

themselves, joining a consortium, or

delegation. EPA believes that the The chosen method of allocating test

delegation meets the tests set out in the obtaining an exemption and incurring a cost appears to minimize the potential

court decisions on the subject . There is a reimbursement obligation as thosa who effects on small businesses . In all but

protection against bias in the fact that were manufacturing and processing the one of the aproximately five published

the hearing officer is a neutral person, chemical before the test rule was and 40 completed, but unpublished,

selected by the American Arbitration published. When late entrants cannot economic analyses of possible test

Association with the advice of the achieve private agreements they may chemicals, the companies with the

parties. The hearing officer's proposed request EPA's assistance. largest market shares are larger

order will be guided by EPA's 3 . Defining-the reimbursement period companies. In future situations when

reimbursement rule, and is subject to If a test rule involves several tests of this is not true and a smaller company

review by EPA. EPA will either adopt varying lengths, the reimbursement feels that it has been allocated an unfair

the proposed order as the final Agency period will begin when the last non- share of test costs, it may propose an

order or will issue a different one after a duplicative set of test data is submitted adjustment to the hearing officer.

review. The order may be appealed to and end-after a period of time" equal to 1 . Calculation of production volume,

federal court. No negative comments that which had been necessary to The period over which productio n

were received on EPA's plan or on its develop the last data or after 5 years, volume will be measured begins with

legal analysis. whichever is longer. the calendar year before the test rule is
p. 5

Federal Register / Vol. 48, No. 13 3 / Monday, July 11, 1983 / Rules and Regulations 31789

promulgated and will continue through may agree among themselves to split taken from the one proposed fo r

the most recent data available at the additional costs . exempting small manufacturers from

time of the hearing. Using a long period The Agency believes that all the reporting and recordkeepin g

will reduce the possibility that will be actual direct costs of the test and a requirements . (June 22, 1982" 47 FR

skewed by a temporary aberration and reasonable profit should be 26992). If the sec. 8(a) definition of small

assure that disputes arising late in the reimbursable . For both independent labs business is adjusted to allow for

reimbursement period will not be settled and companies doing in-house testing, a inflation, the definition for dat a

on the basis of outdated market portion of fixed costs, including rent, reimbursement purposes will also be

information. equipment, and salaries, should be changed, after notice in the Federal

If relative production volumes change eligible for reimbursement . In addition, Register.

after reimbursement is made but before the administrative costs of developing a

the reimbursement period ends, it will protocol, evaluating data, arranging for E. Other Reimbursement Issues

be up to the parties to decide whether funding, and supervising the actual 1 . Reimbursement obligations of

the change is large enough to warrant tester will be reimbursable . To guard processors. See. 4(b)(3)(B) of TSCA

reopening the issue . Again, if the parties against excessive profits, the hearing obligates processors to test when the

cannot agree among themselves, they officer will have the authority to review potential exposure or risk results from

may approach the Agency for the costs as well as the amount claimed the processing, distribution in

assistance. as profit. However, the profit earned commerce, use or disposal of a

Unless-the specific test rule provides will be presumed to be fair unless it is chemical . Under the regulation s

to the contrary, amounts of the test clearly excessive compared to similar implementing sec . 4. EPA will generally

chemical produced as byproducts will situations. allow processors to discharge their

be included in calculating production Some costs may incurred have testing and reimbursement obligations

volume, but amounts occurring as repairing or repeating tests that in indirectly. Usually the manufacturers

impurities will not be included. failed. EPA believes that these costs will form consortia to perform the test ,

2. Exports, imports, and exempted should be reimbursable, to the extent or will obtain exemptions and pa y

uses. Section 12(a)(2) specifically that they were not caused by the reimbursement, and will pass on•a share

authorizes testing of chemicals destined negligence of the tester. Compliance of the test costs to processors through

for export when it is necessary to with published Good Laboratory increases in the market price of

determine whether the manufacture or Practices and any applicable tes t methodology requirements would help chemicals . There are so many

processing of them presents an processors that it would be difficult to

unreasonable risk to the health or prove due care . include them all in the technical

environment of this country. Therefore, 4 . Allocating the cost of the hearing:

decisions about the tests and in the

production volume calculations will The cost of the hearing itself will be financial decisions about how to

include export chemicals when the sec. divided equally among the parties, allocate the costs. However, there are

12(a)(2) finding has been made . unless the hearing officer finds good some situations in which EPA wil l

TSCA sec . 3(7) defines manufacture to cause for some other allocation. The require the direct participation of the

include importation. Thus, importers will cost of the hearing includes th

e administrative fee of the American processors .

be subject to the same test and The first is when most of the concern Arbitration Association, the cost of

reimbursement rules as manufactures. recording the hearing, the travel or other about the chemical's risk and exposure Consistent with the policy for importers expenses of the hearing officer, and the centers on processing, so tha t

under sec. 5, 8, and13, those importing expenses of witnesses or other proof processors rather than manufacturers

the test chemical in bulk or in mixtures produced at the direct request of the are the logical group to take the lead in

will have testing (and therefore - hearing officer. testing the chemical. In this case the test

reimbursement responsibilities), but The administrative fee will be rule will state the processors' obligation

importers of articles incorporating the calculated by the American Arbitration explicitly .

test chemical will not. Association according to the schedule in The second situation is when the

Quantities of chemicals manufactured effect at the time of the hearing . The manufacturers do not commit

or processed for the exempt uses listed party initiating the hearing must deposit themselves to begin testing within the

in sec. 3(2) of TSCA will not be used to a fee based on the amount of time allotted by the test rule . If no

calculate reimbursement shares. reimbursement it is seeking, or the commitment from manufacturers has

However, the Agency does not interpret amount being sought from it . Additional been received . EPA will publish a notice

sec. 3(2)_ as exempting chemicals used as parties will increase the total fee by 10 in the Federal Register 45 days after the

intermediates to produce pesticides. percent of the original amount for each effective date of the test rule, calling on

Manufacturers will have to demonstrate additional party . The sum will be processors to submit study plans o r

to the satisfaction of the hearing officer equally apportioned, and assessments apply for an exemption within 60 days,

that the amounts claimed are entitled to made by the hearing officer in the or risk being found in violation of TSCA .

exemption. proposed order. The third situation is when

3 . Reimbursable costs. A firm may Section 26(b) of TSCA limits the fees manufacturers, while accepting primary

wish to conduct additional testing that can be charged to regulated parties test responsibility, think that at least

beyond that required by EPA (e.g ., to $2500 per person, or $100 per small some processors should also provide

another dose level or species) . EPA business. Hearing expenses in excess of direct reimbursement. This is most likely

encourages any scientifically valuable this limit will be paid by EPA . For the to affect only a small number o f

testing which a company wishes to purpose of applying the sec: 26(b) limit, commercially important processors. If

pursue, but TSCA does not authorize the reimbursement rule defines small the named processors feel that they are

EPA to order data reimbursement for business as a manufacturer or importer being unfairly singled out, they can in

costs which exceed those required to whose annual sales, when combined turn name other processors that should

meet the specific test standards in the with those of its parent company (if any) be brought into the negotiations . The

applicable test rule . Of course, firms is less than $30 million . The definition is manufacturers may raise the issue of
p. 6

31790 Federal Register / Vol. 48, No. 133 / Monday, July 11, 1983 / Rules and Regulations

direct processor responsibility in ought to have a direct reimbursement some basis other than market share of

comments on the proposed test rule. obligation in a particular case, they may the whole category when it is difficult to

Finally, processors could volunteer to raise the point in their comments on the define . For example, after creating a

participate in any test consortium proposed test rule . subgroup around a representative

concerning a chemical which they If the parties convince the hearing chemical for a particular health test, the

process. officer that factors other than production expenses of that test might be divided

When processors do participate for volume should be considered, additional equally_

one of the above reasons, the hearing data may be needed . Use of a reporting As successful techniques evolve from

officer will determine allocation on a rule in this situation would delay the the ad hoc decisions of the hearing

case-by-case basis. If the test rule hearing unnecessarily. Therefore, if the officers and the experience of the

contains a finding that all of the risk or parties will not provide the information voluntary testing groups, EPA will

exposure occurs within the processing, voluntarily, the hearing officer may amend this rule to incorporate them. In

and therefore only processors should be request the Administrator of EPA to the interim, each proposed test rule for a

obligated to test and provide issue subpoenas. category will contain some criteria for

reimbursement, reimbursement will 3. Multiple testing. As the preamble to allocation to the test costs for that

generally be determined according to the proposed rule explained . EPA does specific category, allowing commen t

the amount of the test chemical not have the authority to designate an from the firms manufacturing and

processed. Of course, if a processor official tester when two or more firms processing chemicals in the category.

feels that the formula does not result in submit or plan to submit the same type 5 . Confidentiality. It is difficult to

fair reimbursement shares, he may of data on equivalent chemicals. work out in advance of an actual

attempt to convince the hearing officer Because duplicative testing will increase hearing the ways to protec t

to consider other factors. everyone's share. EPA does not gxpect confidentiality of business information .

2 . Section 8(aJ reporting requirement that it will happen very often. Most EpAexpects that during reimbursement

If industry does ask EPA for assistance likely it would be a single test, rather hearings the parties will be able to make

in reimbursement disputes, EPA .and the than the entire battery, that would be arrangements with the hearing officer .

hearing officer may need production duplicated and there would be some The hearings may be closed, o r

volume data. The Agency may already particular reason for the duplication . arguments may be confined to the

have collected the information under the / When there are multiple tests, the cost , formula, and actual computation left to

sec. 8(a) rule published in the Federal ~ of the tests will be added together, and the hearing officer or an independent

Register of June 22, 1982 (47 FR 26992), i - the market share of each exemption accountant. When an argument directly

or by some other means. If it does not ?holder will be applied to the total as - concerns the validity of the confidential

have sufficiently recent or complete J usual. The individual reimbursement ~ figures being submitted it may be

production data, some direct method / shares will then be divided among the necessary to submit briefs on the point

must be used to collect it. i various testers in proportion to the after the close of oral arguments . During

Therefore, each Federal Register relationship of its test costs to the total .

; the Agency review process, ample -

notice announcing a request for a The shares of each exemption holder r protection will be afforded by sec . 14 (a)

hearing will include a proposed will be higher than they would if there of TSCA. If the parties think that the

reporting rule under the authority of sec ., were only one tester, which should j proposed order would be likely t o

8(a). Those subject to the test rule will discourage duplicative testing . ~ release confidential information, they

thus have specific notice of the 4. Categories. EPA discussed the ~ may claim confidentiality for the

information they must submit, and an ' financial aspects of testing structurally- proposed order during the hearing . The

opportunity to comment. If no party ,r related categories of chemicals in its ~ Agency order will then be released in a

requests a hearing under that test rule, i proposed test rule and exemption policy, ; version that protects confidentia l

or if the Agency already has adequate , published in the Federal Register of July business information .

information, there will not be a need for 18, 1980 (45 FR 48515): As illustrated b y

a reporting rule. Confidential that discussion, and the comments 6. Enforcement. EPA expects that in

information will be protected as all submitted in response, the issue is an most cases debts created by an EPA

confidential information is under TSCA . extremely difficult one. Each category is reimbursement order will be pai d

A contingent or "triggered" reporting /likely to be different in the number of without the need for further involvement

rule was suggested by industry chemicals and firms involved, their by the Agency . Nothing in TSCA

commenters on the ANPR, and no relationship to each other, and to the restricts rights which any person may

negative comments on its use were ; test chemicals chosen. There probably j have under state or federal statutes or

received on the proposed rule . The final , are no guidelines for achieving fair % the common law to seek enforcement of

rule changes the approach slightly . reimbursement that would work for the Act or of any rule or order under the

Instead of a generic reporting rule every category . Act, or to seek any other relief. If no

enacted as part of this data Although EPA is working to define such remedy is available, the party

reimbursement rule, and then triggered narrow and specific categories, seeking payment may use the authority

by a request for hearing, a specific reimbursement may be simplified at of sec . 20 of TSCA to directly sue the

reporting rule for each test rule will be times by splitting a category into party from whom it is seeking payment,

proposed when necessary. This will subgroups, perhaps on the basis of without requiring any EPA involvement .

provide more meaningful notice and commercial importance of the Section 20 allows "any person" to

opportunity to comment to those who manufacturers in the market. or based "commence a civil action against any

may have to submit information. on the relationship of each chemical to person . . . who is alleged to be i n

The reporting requirement will the representative test cliemical. violation of this Act. . . ." A person

generally be limited to manufacturers. Different subgroups may be created for who failed to fulfill a reimbursement

This does not preclude the possibility different tests, if that would be helpful obligation set forth in an Agency order

that processors may be required to in defining a market and thus would be in violation of thi s

furnish reimbursement information . If calculating market share. Consideration reimbursement rule under sec . 4 and in

the manufacturers think that processors may be given to splitting the costs on violation of sec . 15 of the Act. Persons
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Federal. Register / Vol. 48, No. 133 / Monday, July 11, 1983 / Rules and Regulations 31791

suing under sec. 20 can be awarded s B. Regulatory Flexibility Analysis Subpart 8-Hearing Procedures

costs of the suit, including fees for EPA has evaluated this regulation Sec

.

791 .20 Initiation of reimbursement

attorneys and expert witnesses, if the tinder the mandate of the Regulatory proceeding.

"court determines that such an award is Flexibility Act . Under the approach 791 . 3 2 Consolidation of hearings .

appropriate ." suggested in TSCA and adopted in this - 791.27 Pre-hearing preparation .

When the sec . 20 remedy is rule, the burden of sharing in test costs 791,29 Appointment of hearing officer.

unavailable. and the person seeking is apportioned among the manufacturers 791 .30 Hearing procedures.

payment has no other legal remedy, he and processors of a test chemical 791.31 Expedited procedures.

can request the Agency to use its own according to their share of the market . In 791.34 Serving of notice .

enforcement powers under sec . 16 or 17 most cases this will mean that the 791.37 The award.

of TSCA. Section 16 would allow the smaller firms would have proportionally 791 .39 Fees and expenses.

imposition of civil penalties up to smaller shares of reimbursement.

Subpart C-8asis for Proposed Order

$25,000 per day until the reimbursement However, any firm may argue tha t

order was obeyed, and sec . 17 conveys extenuating circumstances make that 791 .40 Basis for the proposed order.

alithority to bring court actions to- amount unfairly high and that the 791 .45 Processors.

cf)mpel payment, hearing officer should modify the 791•48 Production volume .

formula. It is expected that because 791•50 Costs.

IV. Rulemaking Record most cost sharing arrangements will be - 791•52 Multiple tests.

Please notify EPA of any errors or private ones similar to those used now Subpart D-Review

omissions in the Public Record within 30 for voluntary and negotiated testing, 791,e0 Review.

days of the date of publication . Use the many small manufacturers as well as

document control number [OPTS- most small processors will not have to Subpart E-Finai Order

48001D] and address all correspondence pay reimbursement . For these reasons, 791.85 Availability of final Agency order.

to : TSCA Public Information Officer, the rule will not have a significant Subpart F-Prohibited Acts

Office of Pesticides and Toxic impact on a substantial number of smal l

Substances (TS-793), Environmental entities

. 791.105 Prohibited acts.

Protection Agency, Room E-108, 401 M C. Paperwork Reduction Act

Authority: Secs. 4 and 8 .of TSCA. 15 U.S.C.

St., SW., Washington, D .C. 20460 (202- 2603' 2607

.

382-3532), Under the Paperwork Reduction Act

of 1980 . 44 U.S.C. 3501 et seq. the Subpart A-General Provisions

The Public Record for this Rule information provisions mentioned in this § 791 . 1 Scope and authority.

includes: comments on the ANPR with rule will be submitted for approval t o

EPA summary and responses, comments the Office of Management and Budget (a) This Part establishes procedures

on the proposed rule with EPA summary (OMB) . They are not effective until OMB and criteria to be used in determining

and responses, correspondence with the approves them . A notice of that fair amounts of reimbursement for

Department of Justice, the Federal Trade approval will be published in the testing costs incurred under sec . 4(a) of

Commission, General Services Federal Register.

the Toxic Substances Control Act

Administration, and the American EPA has decided that the reporting .(TSCA) (15 U.S.C. 2603(a)).

Arbitration Association. requirements, when necessary, should (b) Section 4(c) of TSCA requires EPA

be made in relationship to each to develop rules for the determination of

V. Regulatory Assessment Requirements reimbursement

individual test rule when a request for fair and equitable (15

A. Regulatory Impact Analysis hearing is made . The reporting U.S.C. 2603 (c)).

requirement can be tailored more § 791 .2 Applicability .

The rule on data reimbursement was precisely to needs of the particular test ,

analyzed under the terms of Executive will provide any additional information (a) This rule is potentially applicable

Order 12291 and was designated a"non- necessary to resolve disputes, and those to all manufacturers, importers and

major" rule . The regulation is a subject to the test will have more processors who may be required by a

procedural one, and imposes no new specific notice and better opportunity specific test rule promulgated under sec.

substantive burdens on the regulated for comment . 4(a) of TSCA to conduct tests and

industry. Its sole purpose and effect is to submit data, and who seek th e

provide a mechanism for deciding List of Subjects in 40 CFR Part 791 assistance of the Administrator in

disputes that arise over the sharing of Environmental protection. Data determining the amount or method of

test costs among those subject to a test reimbursement, Hazardous materials, reimbursement . Persons subject to a test

rule . It was designed to leave primary Chemicals. rule have an obligation from the date the

responsibility in the private sector. This Dated: June 28 .1983 . test rule becomes effective until the end

regulation will have virtually no effect of the reimbursement period, either to

on the economy . It will not cause major William D . Ruckelshaus, test or to obtain an exemption and pay

Administrator. price or cost increases, it will not Therefore, Chapter I. 40 CFR is reimbursement.

significantly affect competition, amended by adding Part 791 to read as (b) The provisions of this rule will

employment, investment, productivity, ame

n follows

: take effect only when private efforts to

innovation, or the ability of U .S.-based resolve a dispute have failed and a

enterprises to compete with foreign- PART 791-DATA REIMBURSEMEN manufacturer or processor requests T

based enterprises in domestic or export EPA's assistance .

markets. Subpart A-General Provision s

This rule was submitted to the Office § 791 .3 Definitions

Sec . Terms defined in the Act, and not of Management and Budget (OMB) 791 .1 Scope and authority .

which concurred in conformance with 791.2 Applicability. explicitly defined herein, are used with

Executive Order 12291 . 791.3 Definitions. the meanings given in the Act.
p. 8

31792 Federal Register / Vol. 48, No. 133 / Monday, July 11, 1983 / Rules and Regu lations

(a) "The Act" refers to the Toxic (b) The requestfor hearing must „informs the other parties of its request,

Substances Control Act (TSCA) (15 contain the following : that the hearing be held in a specific

U.S.C. 2601 at seq.). (1) The names and addresses of the locale and the other parties file n o

• (b) The Agency" or "EPA" refers to filing party and its counsel, if any . objection thereto within 14 days of the

the Environmental Protection Agency . (2) Identification of the test rule under request, the locale shall be the on e

(c) "Byproduct" refers to a chemical which the dispute arose . requested.

substance produced without a separate (3) A list of the parties from whom (d) Time and place. The hearing

commercial intent during the reimbursement is sought or who are officer shall fix -the time and place for

manufacture, processing, use or disposal seeking reimbursement, a brief each hearing . The American Arbitration

of another chemical substance or description of the attempts to reach Association will mail notice to each

mixture . agreement and a concise explanation of party at least 14 days in advance

.

(d) "Dispute" refers to a present the issues on which the parties are

controversy between parties subject to a unable to agree . § 791.29 Appointment of hearing officer.

test rule over the amount or method of (c) The request for a hearing shall be (a) Qualifications of hearing officer. accompanied by the. appropriat e

reimbursement for the cost of administrative fee, as provided in-a All hearing officers shall be neutral .

developing health and environmental a p subjebt to disqualification for the .

data on the test chemical . current Fee Schedule of the American reasons specified in paragraph (f) of this

(e) "Exemption holder" refers to a Arbitration Association.

section.

manufacturer or processor, subject to a § 791 .22 Consolidation of hearings. (b) Appointment from panel. Promptly

test rule, that has received an exemption (a) Promptly upon receipt of the after receiving the complete list of

under secs. 4(c)(1) or 4(c)(2) of TSCA ' request for a hearing, the Administrator parties at the close of the notice period

from the requirement to conduct a test will publish a notice in the Federal described in § 791 .22, the American and submit data. Register, advising those subject to the Arbitration Association shall submi t

(f) "Impurity" refers to a chemical test rule that a request for a hearing has simultaneously to each party to the

substance unintentionally present with been made. - dispute an identical list of names. Each another chemical substance or mixture . (b) Any other person wishing to /party to the dispute shall have thirty

(g) A "party" refers to a person participate in the hearing shall so notify days from the mailing date in which to

subject to a section 4 test rule, who- EPA within 45 days of the Federal cross off any names objected to, number

(1) Seeks reimbursement-from another Register notice . EPA will promptly the remaining names to indicate th e

person under these rules, or inform the regional office of the order of preference, and return the list to

(2) From whom reimbursement is American Arbitration Association the American Arbitration Association. If sought under these rules. where the request has been filed of the a party does not return the list within

(h) "Reimbursement period" refers to additional parties. the time specified, all persons named

a period that begins when the data from 791 .27 therein shall be deemed acceptable to

the last non-duplicative test to be § Pre-hearing preparati on.

that party. From among the persons who

completed under a test rule is submitted (a) Responses to requests for have been approved on all lists, and in

to EPA and ends after an amount of time hearings. After filing of the request for accordance with the designated order of

equal to that which had been required to hearing, if any other party desires to file mutual preference, the American

develop that data or after 5 years, - an answer it shall be made in writing Arbitration Association shall invite the

whichever is later, and filed with the American Arbitration acceptance of a hearing officer to serve .

(i) "Small business" refers to a Association, and a copy thereof shall b e mailed to the other parties within a If the parties fail to agree upon any of

manufacturer or importer whose annual period of fourteen days date of the persons named, or if acceptable

sales, when combined with those of its p from the hearing officers are unable to act, or if

parent company (if any) are less than receiving the complete list of parties. for any other reason the appointmen t

$30 million the hearing officer is appointed, y ppointment . however, no new or differentclaim may cannot be made from the submitted lists,

(j) "Test rule" refers to a regulation the American Arbitration Association

ordering the development of data on be submitted except with the hearing shall have the power to make the

health or environmental effects or officer's consent. appointment without the submission of

chemical fate for a chemical substance (b) Pre-hearing conference. At the any additional list.

or mixture pursuant to TSCA sec . 4(a). request of the parties or at the discretion

of the American Arbitration (c) Nationality of hearing officer in

Subpart B-Hearing Procedures Association, a pre-hearing conference international dispute. If one of th

e with a representative of the American parties is a national or resident of a

§ 791 .2 0 Initiation of reimbursement Arbitration Association and the parties country other than the United States, the

proceeding- or their counsel will he scheduled in hearing officer shall upon the request of

(a) When persons subject to a test rule appropriate cases to arrange for an any party, be appointed from among the

are unable to reach an agreement on the exchange of information and the nationals of a country other than that of

amount or method of reimbursement for stipulation of uncontested facts so as to the parties .

test data development as described in expedite the proceedings . (d) Number of hearing officers. The

TSCA sec . 4(c)(3)(A), any of them may (c) Fixing of locale. The parties may dispute shall be heard and determined_

initiate a proceeding by filing two signed mutually agree on the locale where the by one hearing officer unless th e

copies of a request for a hearing with a hearing is to be held. If the locale is not American Arbitration Association, in its

regional office of the American designated within 45 days from the time discretion, directs that a greater number

Arbitration Association. and mailing a the complete list of parties is received, of hearing officers be appointed .

copy of the request to EPA, and to each the American Arbitration Association (e) Notice of appointment. Notice of

person from whom they seek shall have power to determine the the appointment of the hearing officer,

reimbursement, or who seeks locale . Its decision shall be final and together with a copy of these rules, and

reimbursement from them. binding. If any party requests, and the signed acceptance of the hearing
P. 9

Federal Register / Vol. 48, No. 133 / Monday, July 11, 1983 / Rules and Regulations 31793

officer shall be filed prior to the opening (e) Order of proceedings. (1) A hearing (h) Evidence by affidavit and filing of

of the first hearing. shall be opened by the filing of the oath documents. The hearing officer shal l

(f) Disclosure and challenge of the hearing officer and by the receive and consider the evidence of

procedure. A person appointed as recording of the place, time and date of witnesses by affidavit, but shall give it

hearing officer shall disclose to the the hearing, the presence of the hearing only such weight as the hearing officer

American Arbitration Association any officer and parties, and counsel, if any, deems it entitled to after consideration

circumstances likely to affect and by the receipt by the hearing officer of any objections made to its admission .

impartiality, including any bias or any of the request for hearing and answer, if (i) Closing of hearings. The hearing financial or personal interest in the any . officer shall specifically inquire of all result of the hearing or any past or (2) The hearing officer may, at the parties whether they have any further

present relationship with the parties or beginning of the hearing, ask for proofs to offer or witnesses to be heard.

their counsel . Upon receipt of such statements clarifying the issues Upon receiving negative replies, the

information from such hearing officer or involved . hearing officer shall declare the hearings other source, the American Arbitration (3) The party or parties seeking closed and record the time of closing of

Association shall communicate such reimbursement shall then present a the hearing . If briefs are to be filed, the information to the parties, and, if it claim-and proofs and witnesses, who hearings shall be declared closed as of

deems it appropriate to do so, to the shall submit to questions or other the final date set by the hearing officer

hearing officer and others. Thereafter, examination . The party or parties from for the receipt of briefs . If documents are the American Arbitration Association whom reimbursement'is sought shall - to be filed as provided for in paragraph

shall determine whether the hearing then present a defense and proofs and (g)(ii) of this section and the date set for

officer should be disqualified and shall witnesses, who shall submit to questions their receipt is later than that set for the

inform the parties of its decision, which ' or other examination . The hearing receipt of briefs, the later date shall be shall be conclusive . officer has discretion to vary this the date of closing the hearings.

(g) Vacancies. If any hearing officer procedure but shall afford full and equal (j) Reopening of hearings. The should resign, die, withdraw, refuse, be opportunity to all parties for the hearings may be reopened on the

disqualified or be unable to perform the presentation of any material or relevant hearing officer's own motion, or upon

duties of the office, the American proofs

Arbitration Association may, on proof (4) Exhibits, when offered by any the award is made . application of a party at any time before

. If the reopening of satisfactory to it, declare the office party,-shall be received in evidence by the hearings would prevent the making

vacant. Vacancies shall be filled in the hearing officer. The names and of the award within the specified time accordance with the applicable addresses of all witnesses

provisions of these rules and the matter in order received shall be made a part of the parties and exhibits the matter may not be reopened, ,unless

agree upon the extension of shall be reheard unless the parties shall the record . the time limit. agree otherwise . (f) Hearing in the absence of a party

A hearing may proceed in the absenc . (k) Waiver of oral hearings. The e

§ 791 .30 Hearing procedures.

of any party which .-after due notice, parties may provide, by written

(a) Representation by counsel. Any fails to be present or fails to obtain an agreement, for the waiver of oral

party may be represented by counsel . A adjournment. An award shall not be hearings. If the parties are unable to

party intending to be so represented made solely on the default of a party . agr`ee as to the procedure, the American

shall notify the other parties and the The hearing officer shall require the Arbitration Association shall specify a

American Arbitration Association of the parties who are present to submit such fair and equitable procedure .

name and address of counsel at least 5 evidence as the hearing officer may (1) Waiver of rules. Any party who

days prior to the date set for the hearing require for the making of an award . proceeds with the hearing afte r

at which counsel is first to appear. (g) Evidence. (1) The parties may offer knowledge that any provision o r

When a hearing is initiated by counsel, such evidence as they desire and shall requirement of these rules has not been

or where an attorney replies for the produce such additional evidence as the complied with and who fails to state

other party, such notice is deemed to hearing officer may deem necessary to objection thereto in writing, shall be

have been given._ an understanding and determination of deemed to have waived the right to

(b) Stenographic record. The the dispute. The hearing officer shall-be object.

American Arbitration Association shall the judge of the relevancy and (m) Extensions of time . The parties

make the necessary arrangements for materiality of the evidence offered and may modify any period of time by

the taking of a stenographic record. The conformity to legal rules of evidence mutual agreement . The American

parties shall share the cost of such shall not be necessary . All evidence Arbitration Association for good cause

record. shall be taken in the presence of all the may extend any period of time

(c) Attendance at hearings. The hearing officers and of all the parties, established by these rules, except the

hearing officer shall have the power to except where any of the parties is time for making the award . (§ 791.37(a))

require the exclusion of anyone, absent in default, has waived the right The American Arbitration Association

including a party or other essential to be-present, or has been excluded by shall notify the parties of any such

person, during the testimony of any the hearing officer to protect extension of time and its reason

witness to protect confidential business confidential business information. therefor.

information. It shall be discretionary (2) All documents not filed with the (n) Communication with hearing

with the hearing officer to determine the hearing officer at the hearing, but officer. There shall be no direct

propriety of the attendance of any other arranged for by agreement of the communication between the parties and

person. parties, shall be filed with the American a hearing officer other than at ora l

(d) Oaths. Hearing officers shall Arbitration Association for transmission hearings. Any other oral or written

swaar or affirm their neutrality and their to the hearing officer, according to the communications from the parties to the

dedication to a fair and equitable agreed-upon schedule . All parties shall hearing officer shall be directed to the

resolution. Witnesses shall swear or be afforded opportunity to examine such American Arbitration Association for

affirm that they are telling the truth . documents. transmittal to the hearing officer.
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31794 Federal Register / Vol. 48, No. 133 / Monday, July 11, 1983 ./ Rules and Regulations

§ 791 .31 . Expedited procedures. (e) The hearing. Generally, the time of filing or the time of refund shall

Unless the American Arbitration hearing shall be completed within 1 day . be applicable.

Association in its discretion determines The hearing officer. for good cause (2) The administrative fees shall be

otherwise, the Expedited Procedures shown, may schedule an additional advanced by the initiating party or

described in this section shall be applied hearing to be held within 5 days. parties, subject to final apportionment

in any case where the total claim of any (f) Time of award. Unless otherwise by the hearing officer in the award. The

party does not exceed $5,000, exclusive agreed to by the parties, the Award administrative fee is increased by 1 0

of interest and hearing costs, and may shall be rendered not later than 15 percent of the original for each

be applied in other cases if the parties business days from the date 4f the additional party.

agree. closing of the hearing. (3) Fees and expenses in excess of the

(a) Application of rules. The § 791.34 Serving of 'notice. limit contained in sec. 26(b) of TSCA

expedited hearings will be conducted ($2,500 per person, or $100 per small

according to the same procedures as the (a) Each party shall be deemed to business) will be paid by EPA.

reaular ones, except for those have consented that any papers, notice s

° or process necessary or proper for the (b) Expenses. Subject to paragraph

specifically changed by the expedited initiation or continuation of a hearing (a)(3) of this section, all expenses of the

rules in this section. § 791.31 . hearing, including the cost of recording

(b) Notice by telephone.

The parties under these rules and for any appeal to EPA or any court action in connection (though not transcribing) the hearing

shall accept all notices from the therewith may be served upon such and required traveling and other

American Arbitration Association by party by mail addressed to such party or expenses of the hearing officer and of

telephone . Such notices by the American its attorney at its last known address or , American Arbitration Association

Arbitration Association shall by personal service, within or without representatives, and the expenses of any

subsequently be confirmed in writing to the state wherein the arbitration is to be witness or the cost of any proof s

the parties. Notwithstanding the failure held (whether such party be within or produced at the direct request of the

to confirm in writing any notice or without the United States of America), . hearing officer, shall be borne equally

objection hereunder, the proceeding provided that reasonable opportunity to by the parties, unless they agre e

shall nonetheless be valid if notice or be heard with regard- thereto has been otherwise, or unless the hearing officer,

obligation has, in fact, been given by osuch party. in the award, assesses such expenses or

telephone . (b) The American Arbitration any part thereof against any specifie d

(c) Appointment and qualifications of Association shall . upon the written party or parties.

,hearing officers. The American request of a party, furnish to such party, (c) Hearing officer's fee. Hearing

Arbitration Association shall submit at its expense, certified facsimiles of any officers will normally serve without a

simultaneously to each party to the papers in the American Arbitration fee . In prolonged or special cases the

dispute an identical list of five persons Association's possession that may be American Arbitration Association in

from which one hearing officer shall be required in appeal to EPA or judicial consultation with thp Administrator may

appointed. Each party shall have the proceedings relating to the hearing . determine that payment of a fee by the

right to strike two names from the list on parties is appropriate and may establish

a peremptory basis. The list is § 791 .37 Th e award. a reasonable amount, taking into

returnable to the American Arbitration (a) Time of award. The award shall be account the extent of service by the

Association within 10 days from the made promptly by the hearing officer hearing officer and other relevan t

date of mailing. If for any reasons the and, unless otherwise agreed by the circumstances of the case . Any

appointment-cannot be made from the parties, no later than 30 days from the arrangements for compensation shall be

list. the American Arbitration date of closing the hearings, or if oral made through the American Arbitration

Association shall have the authority to hearings have been waived, from the Association and not directly between

make the appointment without the date of transmitting the final statements the parties and the hearing officer.

submission of additional lists. Such and proofs to the hearing officer.

appointment shall be subject to (b) Form of award. The award shall be Subpart C-Basis for Proposed Order

disqualification for the reasons specified in writing and shall be signed either by § 791 .40 Basis for the proposed order .

in § 791.29(f). The parties shall be given the sole .hearing officer or by at least a

notice by telephone by the American majority if there is more than one . It (a) The hearing officer shall propose a

Arbitration Association of the shall contain a concise statement of its fair and equitable amount of

appointment of the hearing officer . The basis and rationale, and a timetable for reimbursement . The formula in

parties shall notify the Ameiican • payment of any ordered reimbursement. paragraph (b) of this section shall be

Arbitration Association. by telephone.

(c) Delivery of award to parties. presumed to be fair and equitable as

within 7 days of any objections to the Parties shall accept as legal delivery of applied to all persons .subject to a test

hearing officer(s) appointed. Any the award the delivery of the award or a rule. However, the hearing officer has

objection by a party to such hearing true copy thereof by certified mail to the the discretion to modify the formula, or

officer shall be confirmed in writing to party at its last known address or to its to use some other basis for allocation if

the American Arbitration Association attorney, or by personal service . necessary. Additional factors that may

with a copy to the other parties . I be taken into account include, but are

(d) Time and place of hearing . The § 791.39 Fee4 and expenses. not limited to, relative amounts of

hearing officer shall fi ' x the date, time (a) Administrative fees. (1) As a not- exposure attributable to each person

and place of the hearing. The American for-profit organization, the American and the effect of the reimbursement

Arbitration Association will notify the Arbitration Association shall prescribe share on competitive position .

parties by telephone, 7 days in advance an Administrative Fee Schedule and a (b) In general, each person's share of

of the hearing date . Formal notice of Refund Schedule to compensate it for the test cost shall be in proportion to its

hearing will be sent by the American the cost of providing administrative share of the total production volume of

Arbitration Association to the parties. services. The schedule in effect at the the test chemical :
P. 1 1

Federal Register / Vol. 48, No. 133 / Monday, July 11, 1983 / Rules and Regulations 31795

V~ processors, the hearing officer will apply § 791 .52 Multiple tests.

R . = C- the formula to the amount of the test When more than one of a particular

V° chemical purchased or processed. kind of test required by the test rule is

performed, the additional costs will be

Where : § 791 .48 Production volume. shared among all those holding

R=the reimbursement share owed by (a) Production volume will be exemptions . The costs of all the tests

company X . measured over a period that begins one will be added together and each

C=the total cost of the testing required by calendar year before publicatio'n ublication of the exemption holder shall be responsibl

'

e

the test rule . final test rule in the Federal Register and for a share of the total which is equal to

Vx=the volume of the test chemical produce d

or imported by company X over the continues up to the latest data available its share of the total production of the

period defined by § 791 .48. - upon resolution of a dispute. test chemical. The exemption holders

Vt =the total volume of the test chemical - (b) For the purpose of determining fair shall divide their shares betwee n

produced or imported over the period reimbursement shares, production test sponsors in proportion to the costs

defined by § 791 .48. volume shall include amounts of the test of their respective tests. Thos e

(c) The burden of proposing chemical imported in bulk form and sponsoring a particular test do not have

mcLdifications to the formula shall lie mixtures, and the total domestic to obtain exemptions for that test and

with the party requesting the production of the chemical including " therefore do not have reimbursement

modification. that produced as a byproduct. Impurities responsibilities for the same tests done

will not be included unless the test rule by others.

§ 791 .45 Processors.

specifically includes them. Subpart D-Review

(a) Generally, processors will be (c) Amounts of the test chemical

deemed to have fulfilled their testing manufactured for export will not be § 791 .60 Review.

and reimbursement responsibilities included unless covered by a finding (a) The hearing officer's proposed

indirectly, through higher prices passed under TSCA sec . 12(a)(2). order shall become the final Agency

on by those directly responsible, th e

manufacturers. There are three (d) Chemicals excluded from the order 30 days after issuance unless

r

eone of the

circumstances in which processors will jurisdiction of TSCA by sec . 3(2)(B) need within teues 30-day A~en c period

view or the

have a responsibility to provide not be included in the computation of Administrator of his own initiative

reimbursement directly to those paying production volume . (Chemicals used as

for the testing: intermediates to produce pesticides are decides to review the proposed order.

1 When a test rule or subsequent covered by'FSCA

.) (b) The proposed order may be

() reviewed upon the record of the hearing

Federal Register notice pertaining to a (e) The burden of establishing the fact and the petitions for review . If necesary,

test rule expressly obligates processors that particular amounts of the test the Administrator may order th e

as well as manufacturers to assume chemical are produced for exempt transcription of the stenographic recor

d direct testing and data reimbursement purposes lies with the party seeking to of the hearing, written briefs, ora l

responsibilities. exclude those amounts from the arguments or any other reasonable aids

(2) When one or more manufacturers calculation of his production volume. to tnaktng an equitable decision.

demonstrate to the hearing officer that it The final Agency order ma

y is necessary to include processors in § 791 .50 Costs.

creviewed in federal court as provided b y

order to provide fair and equitable - (a) All costs reasonable and 26 U.S.C. 2603(c).

reimbursement in a specific case . necessary to comply with the test rule,

(3) When one or more processors taking into account the practices of Subpart E-Final Order

voluntarily agree to reimburse other laboratories in conducting similar

manufacturers for a portion of test costs. tests, are eligible for reimbursement. § 791 .85 Availabiity of final Agency order.

Only those processors who volunteer Necessary costs include : The final Agency order shall be

will incur the obligation. (1) Direct and indirect costs of available to the public for inspection

(b) A hearing including processors planning, conducting, analyzing and and copying pursuant to 5 U .S.C.

shall be initiated in the same way as submitting-the test results to EPA. 552(a)(2), subject to necessar y

those including only manufacturers. (2) A reasonable profit, and a confidentiality restrictions.

Voluntary negotiations must be reasonable rate of interest and

attempted in good faith first, and the depreciation on the tester's initial

Subpart F-Prohibited Acts

request for a hearing must contain th e

names of the parties and a description capital investment

. § 791 .105 Prohibited acts.

of the unsuccessful negotiations. (3) The cost-of repeating or repairing Failure to provide information

(c) When processors as well as tests where failure was demonstrably required by the Agency or to pay the

manufacturers are required to provide due to some cause other than negligence amounts awarded under this rule within

reimbursement, the hearing officer will of the tester. time alloted in the final order shall

decide for each case how the (b) Costs attributable to tests beyond constitute a violation of 15 U.S.C.

reimbursement should be allocated those specified by EPA shall not be 2614(1) or 2614(3).

among the pa rticipating parties. When a eligible for reimbursement under this rFR Doc . 63-16286 Filed 7-8-83:6 :45 aml

test rule is applicable solely to rule .

BILLING CODE 6560-50•dN