§ 1990.147 Final action.

(a) Within one hundred twenty (120) days from the last day of any hearing or ninety (90) days from the close of any post hearing comment period, whichever occurs first, the Secretary shall publish in the Federal Register:

(1) A final standard based upon the record in the proceeding; or

(2) A statement that no final standard will be issued, and the reasons therefor, or

(3) A statement that the Secretary intends to issue a final rule, but that he is unable to do so at the present time, including:

(i) The reasons therefor; and

(ii) The date by which the standard will be published, which may not exceed one hundred twenty (120) days thereafter.

(iii) The Secretary may issue no more than one such notice, unless the Secretary determines that

(A) new evidence which was unavailable during the rulemaking proceeding has just become available;

(B) the evidence is so important that a final rule could not reasonably be issued without this evidence, and;

(C) the record is reopened for receipt of comments and/or a hearing on this evidence. This paragraph does not require the Secretary to consider any evidence which is submitted after the dates established for the submission of evidence.

(b) The failure of the Secretary to comply with the required timeframes shall not be a basis to set aside any standard or to require the issuance of a new proposal on any individual substance.

(c) The final standard shall state whether the substance or group of substances subject to the rulemaking is classified as a Category I Potential Carcinogen or as a Category II Potential Carcinogen. If the classification differs from that in the notice of proposed rulemaking, the Secretary shall explain the reasons for the change in classification in the preamble to the final standard.

(d) If the substance is classified as a Category I Potential Carcinogen, the final standard shall conform to the provisions of § 1990.142(a)(2)(iii). If the final standard contains other provisions that substantially differ from the proposed provisions, the Secretary shall explain the reasons for the changes in the preamble to the final standard.

(e) If the substance is classified as a Category II potential carcinogen, the final standard shall conform to the provisions of § 1990.142(a)(3)(iii). If the final standard contains other provisions that substantially differ from the proposed provisions, the Secretary shall explain the reasons for the changes in the preamble to the final standard.

(f) If the substance is classified as a Category II potential carcinogen, the Secretary shall notify the applicable federal and state agencies, including the Administrator of EPA, the Director of NCI, the Director of NIEHS, the Director of NIOSH, the Commissioner of FDA and the Chairperson of CPSC of such determination and request that the applicable agencies engage in, or stimulate, further research pursuant to their legislative authority, to develop new and additional scientific data.

(g) If, after a rulemaking, the Secretary determines that the substance under consideration should not be classified as a Category I potential carcinogen or a Category II potential carcinogen, the Secretary shall publish a notice of this determination in the Federal Register, together with the reasons therefor.