[Federal Register Volume 86, Number 206 (Thursday, October 28, 2021)]
[Proposed Rules]
[Pages 59684-59693]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-23337]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 751
[EPA-HQ-OPPT-2021-0598; FRL-6015.6-01-OCSPP]
RIN 2070-AK95
Regulation of Persistent, Bioaccumulative, and Toxic Chemicals
Under TSCA Section 6(h); Phenol, Isopropylated Phosphate (3:1); Further
Compliance Date Extension
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: The Environmental Protection Agency (EPA) is proposing to
amend the regulations applicable to phenol, isopropylated phosphate
(3:1) (PIP (3:1)) promulgated under the Toxic Substances Control Act
(TSCA). Specifically, EPA is proposing to extend the compliance date
applicable to the processing and distribution in commerce of certain
PIP (3:1)-containing articles, and the PIP (3:1) used to make those
articles until October 31, 2024, along with the associated
recordkeeping requirements for manufacturers, processors, and
distributors of PIP (3:1)-containing articles. EPA is also announcing
its intention to commence a new rulemaking effort on PIP (3:1) and four
other persistent, bioaccumulative, and toxic (PBT) chemicals that have
been regulated under TSCA section 6(h). EPA is anticipating issuing a
proposal to this end in 2023.
DATES: Comments must be received on or before December 27, 2021.
ADDRESSES: Submit your comments, identified by docket identification
(ID) number EPA-HQ-OPPT-2021-0598, using the Federal eRulemaking Portal
at https://www.regulations.gov. Follow the online instructions for
submitting comments. Do not submit electronically any information you
consider to be Confidential Business Information (CBI) or other
information whose disclosure is restricted by statute. Additional
instructions on commenting or visiting the docket, along with more
information about dockets generally, is available at https://www.epa.gov/dockets/about-epa-dockets.
Due to the public health concerns related to COVID-19, the EPA
Docket Center (EPA/DC) and Reading Room are closed to visitors with
limited exceptions. The staff continues to provide remote customer
service via email, phone, and webform. For the latest status
information on EPA/DC services and docket access, visit https://www.epa.gov/dockets.
FOR FURTHER INFORMATION CONTACT: For technical information contact:
Cindy Wheeler, Existing Chemicals Risk Management Division, Office of
Pollution Prevention and Toxics, Environmental Protection Agency, 1200
Pennsylvania Ave. NW, Washington, DC 20460-0001; telephone number:
(202) 566-0484; email address: [email protected].
For general information contact: The TSCA-Hotline, ABVI-Goodwill,
422 South Clinton Ave., Rochester, NY 14620; telephone number: (202)
554-1404; email address: [email protected].
SUPPLEMENTARY INFORMATION:
I. Executive Summary
A. Does this action apply to me?
You may be potentially affected by this action if you manufacture
(including import), process, distribute in commerce, or use phenol,
isopropylated phosphate (3:1) (PIP (3:1)), or PIP (3:1)-containing
articles, especially plastic articles that are components of
electronics or electrical articles. The following list of North
American Industrial Classification System (NAICS) codes is not intended
to be exhaustive, but rather provides a guide to help readers determine
whether this document applies to them. Potentially affected entities
may include:
Petroleum Refineries (NAICS Code 324110);
All Other Basic Organic Chemical Manufacturing (NAICS Code
325199);
Plastics Material and Resin Manufacturing (NAICS Code
325211);
All Other Miscellaneous Chemical Product and Preparation
Manufacturing (NAICS Code 325998);
Machinery Manufacturing (NAICS Code 333);
Air-Conditioning and Warm Air Heating Equipment and
Commercial and Industrial Refrigeration Equipment Manufacturing (NAICS
Code 333415);
Other Communications Equipment Manufacturing (NAICS Code
334290);
Computer and Electronic Product Manufacturing (NAICS Code
334);
Small Electrical Appliance Manufacturing (NAICS Code
335210);
Major Household Appliance Manufacturing (NAICS Code
335220);
Motor and Generator Manufacturing (NAICS Code 335312);
Switchgear and Switchboard Apparatus Manufacturing (NAICS
Code 335313);
Relay and Industrial Control Manufacturing (NAICS Code
335314);
[[Page 59685]]
Other Communication and Energy Wire Manufacturing (NAICS
Code 335929);
Current-carrying Wiring Device Manufacturing (NAICS Code
335931);
Transportation Equipment Manufacturing (NAICS Code 336);
Musical Instrument Manufacturing (NAICS Code 339992);
All Other Miscellaneous Manufacturing (NAICS Code 339999);
Other Chemical and Allied Products Merchant Wholesalers
(NAICS Code 424690);
Motor Vehicle and Parts Dealers (NAICS Code 441);
All Other Home Furnishings Stores (NAICS Code 442299);
Electronics and Appliance Stores (NAICS Code 443);
Building Material and Garden Equipment and Supplies
Dealers (NAICS Code 444);
Research and Development in the Physical, Engineering, and
Life Sciences (NAICS Code 541710).
B. What is the Agency's authority for taking this action?
Section 6(h) of TSCA, 15 U.S.C. 2605(h), directs EPA to take
expedited action on certain persistent, bioaccumulative, and toxic
(PBT) chemical substances. For chemical substances that meet the
statutory criteria, EPA is directed to issue final rules that address
the risks of injury to health or the environment that the Administrator
determines are present and to reduce exposure to the substance(s) to
the extent practicable. In response to this directive, EPA identified
PIP (3:1) as meeting the TSCA section 6(h) criteria and issued a final
rule for PIP (3:1) on January 6, 2021 (Ref. 1).
With the obligation to promulgate these rules, the Agency also has
the authority to amend them if circumstances change, including in
relation to the receipt of new information and in relation to
compliance deadlines established under TSCA section 6(d). It is well
settled that EPA has inherent authority to reconsider, revise, or
repeal past decisions to the extent permitted by law so long as the
Agency provides a reasoned explanation. See FCC v. Fox Television
Stations, Inc., 556 U.S. 502, 515 (2009). Here, as explained further in
Unit I.D., based on information submitted by regulated entities, the
Agency proposes that revised compliance dates are necessary to address
comments that the original compliance dates were not practicable and
did not provide adequate transition time because they would have caused
extensive harm to the economy and public due to unavailability of
critical goods and equipment.
C. What action is the Agency taking?
The January 2021 final rule for PIP (3:1) prohibits the processing
and distribution of PIP (3:1), PIP (3:1)-containing products, and PIP
(3:1)-containing articles, with specified exclusions; prohibits or
restricts the release of PIP (3:1) to water during manufacturing,
processing, distribution, and commercial use; and requires persons
manufacturing, processing, and distributing in commerce PIP (3:1) and
products containing PIP (3:1) to notify their customers of these
prohibitions and restrictions and to keep records. Several different
compliance dates were established, the first of which was 60 days after
publication, or March 8, 2021, after which processing and distribution
of PIP (3:1), PIP (3:1)-containing products, and PIP (3:1)-containing
articles were prohibited unless an alternative compliance date or
exclusion was otherwise provided. A recently issued final rule extended
the compliance date applicable to the processing and distribution in
commerce of certain PIP (3:1)-containing articles, and the PIP (3:1)
used to make those articles, from March 8, 2021 to March 8, 2022, along
with the associated recordkeeping requirements (Ref. 2).
EPA is proposing to amend the regulations at 40 CFR 751.407(a)(2)
to further extend the phased-in prohibition, established in the
September 2021 final rule, for the processing and distributing in
commerce of PIP (3:1) for use in certain articles, and for the
processing and distributing in commerce of certain PIP (3:1)-containing
articles, from March 8, 2022 to October 31, 2024. This proposal would
also extend the compliance date for the recordkeeping requirements for
manufacturers, processors, and distributors of PIP (3:1)-containing
articles from March 8, 2022, to October 31, 2024. EPA is seeking public
comment on the compliance deadline. Articles covered by the phased-in
prohibition include any article not otherwise covered by an alternative
compliance deadline or exclusion described in 40 CFR 751.407(a)(2)(ii)
or (b).
EPA is also announcing its intention to commence a new rulemaking
effort on PIP (3:1) and the other four chemicals that have been
regulated under TSCA section 6(h), which are 2,4,6-tris(tert-
butyl)phenol (2,4,6-TTBP), decabromodiphenyl ether (decaBDE),
pentachlorothiophenol (PCTP), and hexachlorobutadiene (HCBD) (Refs. 3,
4, 5, and 6). EPA is anticipating issuing a proposal to this end in
2023. EPA is reviewing the provisions of all five of the final rules
issued under TSCA section 6(h), evaluating the other applicable
provisions of amended TSCA, and determining how the Executive Orders
and other Administration priorities (Refs. 7, 8, 9, 10, and 11) could
be addressed, along with the additional information that has been
provided by stakeholders in response to the March 2021 notification and
request for comments. More information on this rulemaking can be found
in Unit III.C.
D. Why is the Agency taking this action?
EPA is issuing this proposal to further address the hardships
inadvertently created by the January 2021 final rule on PIP (3:1) (Ref.
1) due to uses and supply chain challenges that were not communicated
to EPA until after the rule was published. Shortly after the final rule
was published in January 2021, many stakeholders, including, for
example, the electronics and electrical manufacturing sector and their
customers, raised significant concerns about their ability to meet the
March 8, 2021, compliance date for PIP (3:1)-containing articles (Ref.
12). These stakeholders requested an extension of the compliance dates
in order to clear the existing articles through the supply chain, find
and certify an alternative chemical, and produce or import new articles
that do not contain PIP (3:1). In the Federal Register of March 16,
2021 (Ref. 13), EPA requested additional comment on this specific
issue, as well as on other aspects of all the TSCA section 6(h) final
rules in general (Refs. 1, 3, 4, 5, and 6). According to the comments
received in response to the March 2021 notification and request for
comments, a wide range of key consumer and commercial goods are
affected by the prohibitions in the PIP (3:1) final rule such as
cellular telephones, laptop computers, and other electronic devices and
industrial and commercial equipment used in various sectors including
transportation, life sciences, and semiconductor production (Ref 14).
This proposal follows a final rule that published in the Federal
Register of September 17, 2021, that extended the compliance date
applicable to the processing and distribution in commerce of certain
PIP (3:1)-containing articles, and the PIP (3:1) used to make those
articles, until March 8, 2022, along with the associated recordkeeping
requirements for manufacturers, processors, and distributors of PIP
(3:1)-containing
[[Page 59686]]
articles (Ref. 2). That final rule provided a necessary short-term
extension to avoid immediate and significant disruption in the supply
chains for important articles, to provide the public with regulatory
certainty in the near term, and to allow EPA additional time to further
evaluate the need to again extend the compliance deadlines for PIP
(3:1). EPA responded to the comments received on the March 2021
notification that were relevant to the compliance deadline extension
and related issues as part of the recent final rule (Ref. 2). EPA will
respond to comments from the March 2021 notification not already
addressed in the September 2021 final rule either as part of this
rulemaking or as part of the subsequent rulemaking on the five PBTs.
EPA is requesting comment on a further extension of the compliance
dates beyond March 8, 2022 for the processing and distribution of
certain PIP (3:1)-containing articles, and the PIP (3:1) used to make
those articles. This proposed extension of the compliance dates until
October 31, 2024, is based on the detailed information provided by
several industry commenters.
E. What are the incremental economic impacts?
EPA evaluated the potential incremental economic impacts and
determined that these changes would reduce the existing burden of this
action. The quantified effect of this compliance date extension
reflects the difference between the incremental cost and benefits of
the final rule as it was originally promulgated and the incremental
cost and benefits of this proposed rule with the compliance date in
place. This was estimated as the difference between the cost and
benefits of the final rule after a compliance extension of March 8,
2022, and the cost and benefits of this proposed rule with an October
31, 2024, compliance date. Quantified costs for substitution and
recordkeeping were estimated to be incurred later, assuming they will
be incurred when the proposed compliance date extension expires. In
summary, extending the compliance date from March 8, 2022 to October
31, 2024 for PIP (3:1)-containing articles would result in an estimated
annualized cost savings of $1.8 million (from $24.1 to $22.3 million)
at a 3 percent discount rate or $2.4 million (from $23.4 to $21.0
million) at a 7 percent discount rate over a 25-year time horizon.
While the Agency has no data to quantify this, qualitative costs
savings may include providing more time for manufacturers and retailers
to sell articles prior to the prohibition deadline rather than being
forced to dispose of them, thereby avoiding loss of revenue from those
products. In addition to these cost savings, reformulation (which can
include research and development, laboratory testing, and re-labeling)
will be facilitated once an acceptable substitute is certified given
that companies will have more time to gather information regarding the
steps involved in the reformulation process. Cost reductions for
reformulation are not certain, however, since the time required to
identify viable substitutes can be complex and unpredictable. The level
of these cost savings is dependent on complexity of achieving needed
efficacy, length of time needed for testing and quality control, and
the current status of development of alternatives, which may vary
greatly by sector and end use product. Lastly, the compliance date
extension may provide additional time for information gathering through
the supply chain to alleviate the necessity for chemical testing of
certain articles. Although the benefits of the final rule were not
quantified, the extension would also postpone decreases in potential
releases and exposures to PIP (3:1). Due to discounting, in a manner
similar to costs, this postponement would lead to lower potential
benefits. On balance, this proposed further extension of the compliance
dates is appropriate to prevent the disruptive consequences of
implementing the prohibition on March 8, 2022 without a further
compliance extension. The economic consequences (such as loss of
supply) could be severe, given the apparent ubiquity of the chemical in
commerce. Thus, EPA is proposing to determine that the cost savings and
avoidance of disruption to industry outweigh the delayed realization of
benefits that may accrue from reduced exposure.
F. What should I consider as I prepare my comments for EPA?
1. Submitting CBI. Do not submit this information to EPA through
regulations.gov or email. Clearly mark the part or all of the
information that you claim to be CBI. For CBI in a disk or CD-ROM that
you mail to EPA, mark the outside of the disk or CD-ROM as CBI and then
identify electronically within the disk or CD-ROM the specific
information that is claimed as CBI. In addition to one complete version
of the comment that includes information claimed as CBI, a copy of the
comment that does not contain the information claimed as CBI must be
submitted for inclusion in the public docket. Information so marked
will not be disclosed except in accordance with procedures set forth in
40 CFR part 2.
2. Tips for preparing your comments. When preparing and submitting
your comments, see the commenting tips at https://www.epa.gov/dockets/commenting-epa-dockets.
II. Background
A. The January 2021 Final Rule
A final rule for PIP (3:1) was published in the Federal Register on
January 6, 2021 (Ref. 1). EPA determined in the final rule that PIP
(3:1) met the TSCA section 6(h)(1)(A) criteria for expedited action. In
addition, EPA determined, in accordance with TSCA section 6(h)(1)(B),
that exposure to PIP (3:1) was likely under the conditions of use to
the general population, to a potentially exposed or susceptible
subpopulation, or the environment. The PIP (3:1) final rule prohibits
processing and distribution in commerce of PIP (3:1), and products or
articles containing the chemical substance, for all uses, except for
the following different compliance dates or exclusions:
Use in photographic printing articles after January 1,
2022;
Use in aviation hydraulic fluid in hydraulic systems and
use in specialty hydraulic fluids for military applications;
Use in lubricants and greases;
Use in new and replacement parts for the aerospace and
automotive industries;
Use as an intermediate in the manufacture of cyanoacrylate
glue;
Use in specialized engine air filters for locomotive and
marine applications;
Use in sealants and adhesives after January 6, 2025; and
Recycling of plastic that contained PIP (3:1) before the
plastic was recycled, and the articles and products made from such
recycled plastic, provided no new PIP (3:1) is added during the
recycling or production process.
In addition, the final rule requires manufacturers, processors, and
distributors of PIP (3:1) and products containing PIP (3:1) to notify
their customers of these restrictions. Finally, the rule prohibits
releases to water from the remaining manufacturing, processing, and
distribution in commerce activities, and requires commercial users of
PIP (3:1) and PIP (3:1)-containing products to follow existing
regulations and best practices to prevent releases to water during use.
Also defined at 40 CFR 751.403 for the purposes of 40 CFR part 751,
subpart E, which includes the PIP (3:1) final rule, are the terms
``article'' and
[[Page 59687]]
``product'' (Ref. 3). ``Article'' is defined as a manufactured item:
(1) Which is formed to a specific shape or design during manufacture,
(2) Which has end use function(s) dependent in whole or in part upon
its shape or design during end use, and (3) Which has either no change
of chemical composition during its end use or only those changes of
composition which have no commercial purpose separate from that of the
article, and that result from a chemical reaction that occurs upon end
use of other chemical substances, mixtures, or articles; except that
fluids and particles are not considered articles regardless of shape or
design. For example, laptop computers are articles, as are the internal
components such as chips, wiring, and cooling fans. ``Product'' is
defined as the chemical substance, a mixture containing the chemical
substance, or any object that contains the chemical substance or
mixture containing the chemical substance that is not an article. For
example, hydraulic fluids and motor oils are products.
B. The March 2021 Notification and the No Action Assurance
Shortly after the publication of the January 2021 final rule, a
wide variety of stakeholders from various sectors, including the
electronics and electrical manufacturing community and their customers,
started raising concerns about the March 8, 2021, compliance date in
that final rule for the prohibition on the processing and distributing
in commerce of PIP (3:1) for use in articles and PIP (3:1)-containing
articles (Ref. 12). These stakeholders contended that they needed
significantly more time to identify whether and where PIP (3:1) might
be present in articles in their supply chains, find and certify
alternative chemicals, and produce or import new articles that do not
contain PIP (3:1). Despite EPA's extensive outreach, most stakeholders
contacting EPA after the rule was finalized did not comment on the
proposal or otherwise engage with the agency on the PIP (3:1)
rulemaking, and do not appear to have previously surveyed their supply
chains to determine if PIP (3:1) was being used. Several indicated that
they did not understand that articles can be regulated under TSCA, and
that, because PIP (3:1) is not regulated by other authorities,
including those of other countries or under international agreements,
there was a lack of awareness relative to its presence in the supply
chain (Ref. 14). Absent engagement and timely or specific input from
these stakeholders that could be used as a basis for granting further
extensions or exemptions from the proposed prohibition, in the final
rule EPA believed that PIP (3:1) was not widely present in articles
outside the aerospace and automotive sectors. While some commenters on
the 2019 proposed rule indicated that PIP (3:1) may be present in
articles, their comments were very general and did not identify
specific uses or specific concerns with the March 8, 2021, compliance
date.
Based on the concerns raised by stakeholders shortly after
publication of the final rule, EPA issued a No Action Assurance (NAA)
on March 8, 2021, in an effort to ensure that the supply chains of
these important articles were not interrupted while the agency
collected the information needed to best inform subsequent regulatory
efforts (Ref. 15). The NAA only described how the agency will exercise
its enforcement discretion, the NAA did not change the March 8, 2021,
compliance date.
Shortly after the NAA was issued, EPA published in the ``Proposed
Rules'' section of the Federal Register of March 16, 2021, a
notification and request for comments on the five final PBT rules in
general and, more specifically, on the compliance date issues with
respect to PIP (3:1)-containing articles that had been raised by
stakeholders. The Federal Register document described in particular the
issues raised by industry stakeholders regarding the March 8, 2021,
compliance date, including the types of articles affected, such as
those used in a wide variety of electronics, ranging from cellular
telephones, to robotics used to manufacture semiconductors, to
equipment used to move COVID-19 vaccines and keep them at the
appropriate temperature. The document further outlined the complexity
of international supply chains described by industry stakeholders and
how, according to those stakeholders, that complexity creates
challenges for identifying and finding alternatives to PIP (3:1) in
complex supply chains. In the document, EPA asked commenters to
specifically describe the following regarding PIP (3:1)-containing
articles:
The articles that would need an alternative compliance
date;
The basis for such an alternative compliance date, taking
into consideration the reasons supporting alternative compliance dates
in the final rule already issued, such as the January 1, 2022, date for
photographic printing articles and the January 6, 2025, date for
adhesives and sealants, with supporting documentation; and
The additional time needed for specific articles to clear
channels of trade.
EPA received a total of 122 comments in response to the March 2021
notification and request for comments; 78 of these were from industry
stakeholders, most of whom were concerned about compliance for PIP
(3:1)-containing articles (Ref 14). Stakeholders concerned about PIP
(3:1)-containing articles reiterated that they needed much more time,
up to 15 years (Ref. 16), in order to identify where PIP (3:1) might be
present in their supply chains, find and certify alternatives, and
produce or import new articles that do not contain PIP (3:1). More
information on the comments received can be found in the September 2021
final rule (Ref. 2), which is further discussed in Unit. II.C.
C. The September 2021 Final Rule
Based on the comments received in response to the March 2021
notification and request for comments, EPA issued a final rule
extending the compliance dates applicable to the processing and
distribution in commerce of certain PIP (3:1)-containing articles, and
the PIP (3:1) used to make those articles, until March 8, 2022, along
with the associated recordkeeping requirements for manufacturers,
processors, and distributors of PIP (3:1)-containing articles. While
most commenters on the March 2021 notification and request for comments
requested a longer compliance date extension, EPA determined that a
short-term extension was necessary to ensure that the supply chains for
these important articles continue uninterrupted in the near term while
allowing EPA to conduct notice and comment rulemaking to provide an
opportunity for comments in response to this proposal on a longer-term
compliance date extension generally.
D. Comments Received in Response to the March 2021 Notification
This Unit describes the comments received specifically on the issue
of compliance dates for the prohibition on the processing and
distribution in commerce of PIP (3:1)-containing articles, and the PIP
(3:1) used to make those articles, as well as on the associated
recordkeeping requirements. Comments received on other aspects of the
January 2021 PIP (3:1) final rule, as well as on the final rules for
the other four PBT chemicals, are outside of the scope of this
rulemaking and will be addressed in a future rulemaking effort as
described in Unit III.C.
1. Comments on articles that contain, or potentially contain, PIP
(3:1). During the public comment period for the March 2021 notification
and request for comments, industry commenters identified a wide range
of articles that
[[Page 59688]]
may contain PIP (3:1). PIP (3:1) is generally used as a flame retardant
and plasticizer in plastic articles. Articles which have been
identified or are being investigated for the presence of PIP (3:1)
include polyvinyl chloride (PVC) tubes, harnesses, cables, covers,
sleeves, and casings, which include AC power cords and USB cables for
consumer and commercial articles such as laptops, televisions, and
gaming consoles. According to the electrical manufacturing industry, a
representative sample of articles made possible by the qualities unique
to PIP (3:1) include medical devices, capacitors, inverters,
generators, transformers, semiconductor wafers, computers, and
electrical appliances (Ref. 17). Manufacturers of construction,
agriculture, forestry, mining, and utility equipment have identified
PIP (3:1) in fire prevention systems, engine emission control systems,
electronics, wiring harnesses, hydraulic hoses, switches, fabrics, PVC
articles, resin in fiberglass articles, paints, elastomers, foam,
resistors, splitters, articles that are alarm components, automatic
tire inflation equipment, and wire sleeving (Ref. 18). According to
another commenter, in construction, agriculture, forestry, mining, and
utility equipment, PIP (3:1) is frequently found in wire harnesses,
starters, water pumps, motor gears, pre-wired motors, ground cables,
and compressors (Ref. 19). The semiconductor manufacturing industry has
identified the use of PIP (3:1) in semiconductor-related manufacturing
equipment (as well as microelectromechanical-related, solar-related,
and LED-related manufacturing equipment) and semiconductor fabrication
facilities' support equipment and infrastructure, such as laboratory,
substrate and device (e.g., die) preparation, and assembly and test
operations, including advanced packaging (Ref. 16) as well as articles
that are internal components of high-tech robotics and manufacturing
equipment. Additionally, the chemical has been identified in articles
that are components in scanning electron microscopes utilized in
research, national laboratories, and academia (Ref. 20).
EPA generally agrees with these commenters that PIP (3:1) is used
in a variety of articles, especially in plastic articles that are
components of electronics or electrical articles. Further, at the time
the January 2021 final rule was issued, EPA did not understand the
extent to which PIP (3:1) is used in articles beyond those articles
specifically addressed in that final rule, which are photographic
printing articles, new and replacement parts for aerospace and motor
vehicles, specialized locomotive and marine engine air filters, and
recycled plastics. EPA notes that this proposed rule would not affect
the compliance dates established for these specific articles in the
January 2021 final rule. EPA outlined its understanding on the use of
PIP (3:1) in articles in responding to public comments on the January
2021 final rule, ``[t]here is little evidence to suggest that PIP (3:1)
is present in articles which may be available to consumers, and outside
of activities excluded from the prohibition, little evidence to suggest
it is necessary or present in commercial and industrial articles as
well'' (Ref. 30).
2. Comments on the challenges associated with determining whether
articles contain PIP (3:1). These commenters also described in some
detail the challenges associated with determining whether a particular
article contains PIP (3:1), especially for complex goods that contain
thousands of individual parts. Commenters noted that a manufacturer of
a complex good could have upwards of 5,000 suppliers for potentially
100,000 or more component articles across all product lines (Ref. 21).
These commenters also noted that manufacturers do not receive a list of
every chemical within each part or component article that ultimately
goes into a finished electronic article because ingredient lists are
highly proprietary and confidential. Rather, companies provide
functionality, performance, safety and quality specifications of a part
or component article to their supply chain, including specifications
regarding chemical restrictions. According to these commenters,
suppliers are provided lists of restricted chemicals on at least an
annual basis, or more frequently if there is a triggering event, such
as a new government restriction. Suppliers are notified of the lead
time for the restriction of the chemical and any testing that may be
required, which information they communicate to their own suppliers.
According to these commenters (Ref. 21), the task of determining
whether PIP (3:1) is used in a component article in a finished
electronic good is further complicated by the many article
manufacturers being unable to identify or confirm the PIP (3:1) content
of articles, such as supplied parts, components or commercial and
consumer goods, without laboratory testing. Laboratory testing can run
up to $5,000 per product and take up to one (1) month. As a result,
companies must rely on material declarations by suppliers as a more
practicable and reliable approach to determine the usage of PIP (3:1)
within an article.
Other commenters echo these concerns. Comments from the heating,
ventilation, air conditioning, and refrigeration (HVACR) industry note
that manufacturers are currently parsing through tens of thousands of
stock-keeping units (SKUs), each having hundreds of associated
component articles and spare parts (Ref. 22). They contend that their
suppliers have generally not been forthright about the presence of PIP
(3:1) in their component articles and parts, even after receiving
notification that the use of PIP (3:1) in component articles must be
disclosed. According to these commenters, some suppliers continue to
claim that they will not disclose the chemical makeup of component
articles as the composition is confidential intellectual property. In
response, some of the larger manufacturers have started testing
component articles to compensate for this lack of transparency, but
testing is time-consuming and costly and most smaller businesses do not
have the resources to undertake testing.
The semiconductor industry and the testing and measurement industry
noted that their industries differ from the consumer electronics
industry and the automotive industry, in that their industries are
high-mix, low-volume industries, meaning that manufacturer portfolios
are typically comprised of a large number of unique goods with
relatively low unit sales (Refs. 16 and 23). Their equipment is
primarily built to order and sold directly to professional and
industrial customers by the manufacturers (Ref. 23). The semiconductor
industry typically places only 600 to 6,000 units of semiconductor
manufacturing and related equipment into U.S. commerce each year and it
is not uncommon for small groups of model units to be customized to an
end user's particular needs (Ref. 16). According to this commenter,
this is in stark contrast to most consumer goods, in which individual
similar model units are placed into U.S. commerce in much greater
number, and to the automotive and aerospace sectors, in which goods are
manufactured in lower quantities but which are quite similar from model
unit to model unit (Ref. 16). The semiconductor industry further noted
that their sector's ability to obtain material composition data from
across their supply chain is limited due to three factors: (1) The
length and complexity of the supply chain; (2) the preponderance of
suppliers located
[[Page 59689]]
outside of the U.S.; and (3) the tens of thousands of parts
incorporated into each article eventually manufactured or distributed
in commerce within the U.S.
EPA generally recognizes the challenges described by these
commenters in determining whether and where PIP (3:1) is present in
articles in their supply chains and how long it may take to clear those
PIP (3:1)-containing articles through the channels of trade. As to
comments relating to testing, as most commenters note, there are a
number of alternative steps to testing that an importer or a domestic
manufacturer can take to ensure that an article does not contain PIP
(3:1). The customer can include a specification in their purchase
contracts with suppliers that articles be made without PIP (3:1). The
customer can also request that their suppliers provide them with a
written statement or certification that the purchased or supplied goods
are made without PIP (3:1). Of course, testing is always an option, but
EPA recognizes that this may be a more expensive option.
3. Comments on compliance date considerations for PIP (3:1)-
containing articles. Nearly all of the industry commenters responding
to EPA's March 2021 request for comments stated that they needed
several years to phase PIP (3:1) out of their articles (Ref. 14). Many
commenters contended that they needed much longer, up to fifteen years
(Refs. 16 and 20) assuming that it is even feasible to do so. Only two
commenters, representing individual companies, indicated that they
would need less than three years (Refs. 24 and 25). Commenters
identified a number of steps that would be needed in order to complete
a phase-out of PIP (3:1) in articles. These steps include: (1)
Identifying whether and where PIP (3:1) is present; (2) identifying and
testing substitutes; (3) re-certifying (as needed) the replacement
article; and (4) distributing the replacement article throughout the
supply chain. Some commenters provided detailed timelines for the steps
needed to replace PIP (3:1).
For example, the consumer electronics industry noted that, while
companies had begun to survey their suppliers as soon as the final rule
was published, because of the large number of parts and suppliers
involved for most manufacturers, they anticipated that completing the
survey would take between six and twelve months (Ref. 21). They also
noted that, because PIP (3:1) is not regulated in other international
markets, there is a general lack of awareness regarding the chemical
throughout the supply chain and the industry expects the surveys to
take closer to twelve months than six.
According to the consumer electronics industry commenters, once PIP
(3:1) is identified in a particular part by a particular supplier, the
supplier must identify and investigate alternatives to PIP (3:1) that
can meet regulatory requirements and manufacturer requirements with
respect to functionality, performance, safety and quality (Ref. 21).
Given that PIP (3:1) is typically used in electronic component articles
to meet safety standards related to flammability, a component article
that includes a PIP (3:1) alternative will have to be certified to the
applicable safety standard (Ref. 21). Common safety standards that
apply to consumer electronics, according to the commenters, include
Underwriters Laboratory UL94, entitled ``Tests for Flammability of
Plastic Material for Part in Devices and Applications,'' and UL498,
entitled ``Attachment Plugs and Receptacles.'' The timeline for
retesting and recertification of replacement component articles is
determined by the certification organization, and consumer electronics
manufacturers estimate that testing could take anywhere from 3 to 24
months (Ref. 21).
These commenters detail the next steps in replacing a PIP (3:1)-
containing component article (Ref. 21). Once the manufacturer of the
finished consumer electronics good receives the replacement component
article, the manufacturer will conduct its own internal quality
assessments. The manufacturer will conduct an initial assessment on
whether the component article works, has the correct performance
characteristics, and maintains brand integrity. Once these basic
parameters have been evaluated, the manufacturer will assemble the
component article into a consumer electronics good and conduct an
overall quality assessment, which may include smoke and ignition
testing, current leakage testing, and temperature testing, among other
things (Ref. 21). At that point, the reworked good is sent for third-
party certification. If the substituted component article is considered
critical by the certification body, full retesting and recertification
of the good may be necessary. Industry commenters anticipate that full
retesting and recertification will be required, given the use of PIP
(3:1) from a fire safety perspective and the fact that the types of
component articles where PIP (3:1) is used play critical roles in the
goods. Manufacturers anticipate that this recertification step will
take anywhere from six to thirty months (Ref. 21). Finally, according
to these commenters, a minimum of one year is needed to move the newly
remanufactured goods throughout the supply chain. This commenter
further contended that a chemical phase out in response to a
restriction in the European Union under the Restriction on Hazardous
Substances (RoHS) 2, a product-level compliance program for electrical
and electronic equipment, is typically effective four years from the
date of notice by the European Union (Ref. 21).
The heavy equipment sector provided similarly detailed descriptions
of the length of time needed to replace PIP (3:1)-containing component
articles (Ref. 18). These commenters stated that their design cycles
are typically seven years from start to finish, and that this would
likely be the amount of time needed to identify whether and to what
extent PIP (3:1) exists in the supply chain, confirm the function of
PIP (3:1) for the end-use application, identify alternatives, re-design
for the alternative rather than PIP (3:1), test the replacement
component article for safety, regulatory, and quality requirements, and
re-introduce the good into the market (Ref. 18). According to this
commenter, the testing requirements often take the longest time to
complete during a redesign because heavy-duty industrial equipment
operates in demanding and severe operating conditions over a long
product life cycle. Such equipment is reportedly subject to various
fire safety and flammability regulatory requirements set by the
National Highway Traffic Safety Administration (Flammability Test for
Motor Vehicle Interiors, 49 CFR 571.302), the Occupational Safety and
Health Administration (Fire Protection and Prevention, 29 CFR 1926.24
and 1926.151), the Mine Safety and Health Administration (various fire
prevention provisions, including 30 CFR part 35 and 30 CFR 75.1100,
75.1911, and 77.1100), and the Federal Railroad Administration (49 CFR
parts 216, 223, 229, 231, 232, 238). Additionally, according to this
commenter, engine emission sensors designed for off-road equipment to
comply with the Clean Air Act currently rely on PIP (3:1) to survive
the high-temperature environment in the engine compartment (Ref. 18).
A unique problem reported by this commenter and several others in
the heavy equipment sector is that their supply chains often overlap
with much larger industries, such as the automotive and aerospace
sectors (Refs. 18, 19, 26, 27, and 28). A recent survey by one
commenter found that 61% of the surveyed suppliers in the heavy
[[Page 59690]]
equipment sector also provided parts and materials to the automotive
industry (Ref. 18). According to this commenter, despite the
significant overlap in suppliers, there are key differences in the
product design lifecycles and volumes between the industries. Heavy-
duty, industrial professional use equipment is decidedly lower volume
with a higher diversity of goods than those found in the consumer
automotive market. As the automotive sector is currently excluded from
the January 2021 PIP (3:1) final rule, the current regulations allow
suppliers to provide automotive parts that contain PIP (3:1) to their
automotive manufacturers. With the higher variability of goods and
lower volume nature of the heavy-duty, industrial equipment sector,
commenters assert that the manufacturers of this non-automotive
equipment will need to utilize custom made parts which, if available,
could cost between two and ten times the normal price of the automotive
parts that they would ordinarily use (Ref. 28).
In contrast to the industry commenters, who all stated that the
March 8, 2021, compliance date for PIP (3:1)-containing articles was
not practicable, a comment submitted by three environmental public
interest groups in response to EPA's March 2021 request for comments
stated that industry had been given sufficient notice of EPA's intent
to regulate PIP (3:1) in articles and did not believe that EPA should
excuse their failure to comment in a timely manner (Ref. 29). This
commenter further noted that any exclusions or extended compliance
dates should be considered under the stringent criteria of TSCA section
6(g), which requires EPA to determine one of the following: (1) That
the condition of use is a critical or essential use with no feasible
safer alternatives; or (2) that compliance with a requirement would
significantly disrupt the national economy, national security, or
critical infrastructure; or (3) that the specific condition of use
provides a substantial benefit to health, the environment, or public
safety.
EPA generally agrees with the industry commenters on the conceptual
steps that may be needed to phase PIP (3:1) out of articles in their
supply chains. Industry must first determine where PIP (3:1) is used,
identify alternatives to PIP (3:1), and then design, test, and
recertify, as necessary, the new articles made without PIP (3:1). Those
new articles must then be distributed throughout the supply chain.
However, EPA observes that these steps need not always be undertaken
sequentially. For example, it is not necessary to identify every single
model of smartphone that uses a power cord that contains PIP (3:1)
before work begins to identify and test alternatives to PIP (3:1) in
power cords for smartphones.
Some commenters provided detailed estimates of the time needed to
take these steps while others did not. For example, comments from the
consumer technology sector gave estimates for completing each one of
these steps, with the overall timeline ranging from 2.25 years to 6.5
years (Ref. 21). Estimated timelines provided by commenters in response
to the March 2021 notification and request for comments ranged from
2.25 years to 15 years or more (Refs. 21 and 16). Given the varying
estimates, and the lack of detail accompanying some of those estimates,
EPA is proposing to further extend the compliance dates until October
31, 2024 consistent with the lower end of the estimates provided. This
will avoid significant disruption in the supply chains for important
articles and will provide the public with regulatory certainty while
industry collects and submits additional information to inform whether
a further compliance date extension may be necessary for certain
industry sectors. EPA will consider any additional information of this
kind in the context of the broader rulemaking described in more detail
in Unit III.C.
EPA disagrees with the commenter who contended that any compliance
date extension should be evaluated under TSCA section 6(g). As noted in
response to similar comments on the 2019 proposed rule, ``TSCA section
6(h)(4) directs EPA to issue regulations that reduce exposure to PBT
chemicals `to the extent practicable,' not to regulate beyond the point
of practicability and then issue [section 6(g)] exemptions that would
limit the scope of those regulations'' (Ref. 30, at p. 44). EPA views
this compliance date extension as consistent with this standard, and as
discussed in Unit III, with the requirements of TSCA section 6(d) to
ensure that the compliance dates are ``as soon as practicable'' and
provide a ``reasonable transition period,'' because this action is
necessary to avoid significant disruption in the supply chains for
important articles, such as cellular telephones and the HVACR equipment
used to cool people, buildings, and to transport and store COVID-19
vaccines and keep them at the appropriate temperature, not as an excuse
for a failure to comment earlier in this rulemaking process.
III. Provisions of This Proposed Rule
A. Establishing a Revised Compliance Date
1. TSCA section 6(d) compliance dates and section 6(h) rules. TSCA
section 6(d) includes a number of provisions relating to establishment
of effective or compliance dates applicable to those rules.
Specifically, TSCA section 6(d)(1)(A) directs EPA to specify a date on
which the TSCA section 6(a) rule is to take effect that is ``as soon as
practicable.'' TSCA section 6(d)(1)(B) requires EPA to specify
mandatory compliance dates for each requirement of a rule promulgated
under TSCA section 6(a), which must be as soon as practicable but no
later than five years after promulgation except as provided in
subsections (C) and (D) or in the case of a use exempted under TSCA
section 6(g). TSCA section 6(d)(1)(C) states that EPA must specify
mandatory compliance dates for the start of ban or phase-out
requirements under a TSCA section 6(a) rule, which must be as soon as
practicable but no later than five years after promulgation, except in
the case of a use exempted under TSCA section 6(g); and subsection (D)
requires EPA to specify mandatory compliance dates for full
implementation of ban or phase-out requirements, which must be as soon
as practicable. Additionally, TSCA section 6(d)(1)(E) directs EPA to
provide for a reasonable transition period.
As noted in the preamble to the January 2021 final rule, the term
``practicable'' as used in the phrase ``to the extent practicable'' in
TSCA section 6(h) are undefined, the phrases ``as soon as practicable''
and ``reasonable transition period'' as used in TSCA section 6(d)(1)
are also undefined, and the legislative history on each provision is
limited. Given the ambiguity in the statute, for purposes of the final
rule under TSCA section 6(h), EPA presumed a 60-day compliance date was
``as soon as practicable'' where EPA determined a prohibition or
restriction was practicable, unless there was support for a lengthier
period of time on the basis of reasonably available information, such
as information submitted in comments on the Exposure and Use Assessment
or on the proposed rule, or in stakeholder dialogues. At the time, EPA
believed that such a presumption would ensure that the compliance
schedule is ``as soon as practicable,'' particularly in the context of
the TSCA section 6(h) rules for chemicals identified as persistent,
bioaccumulative and toxic, and given that the expedited timeframe for
issuing a TSCA section 6(h) proposed rule did
[[Page 59691]]
not allow time for collection and assessment of new information
separate from the comment opportunities during the development of and
in response to the proposed rule. EPA noted that this approach also
allows for submission of information from the sources most likely to
have the information that would impact an EPA determination on whether
or how best to adjust the compliance deadline to ensure that the final
compliance deadline chosen is both ``as soon as practicable'' and
provides a ``reasonable transition period.''
Despite significant outreach efforts, EPA did not receive timely or
specific input from certain stakeholders during any public comment
periods prior to issuance of the January 2021 final rule regarding the
presence of PIP (3:1) in myriad articles. Absent this input, in the
January 2021 final rule EPA determined that PIP (3:1) was not widely
present in articles outside the aerospace and automotive sectors and
that the presumption that a 60-day compliance date was practicable was
appropriate. The comments received in response to EPA's March 2021
notification and request for comments, and the communications received
before that document published in the Federal Register, presented new
information demonstrating that a 60-day compliance date was not
practicable and did not provide a reasonable transition period for the
full implementation of a ban or phase-out for many industries (Ref.
14).
B. Proposed Further Compliance Date Extension
As a result of the comments received in response to EPA's March
2021 notification and request for comments, as well as on information
provided during stakeholder meetings since the publication of the
January 2021 final rule on PIP (3:1), EPA is proposing that the
compliance date for PIP (3:1) and PIP (3:1)-containing articles, but
not PIP (3:1)-containing products, should be further extended. EPA is
proposing to extend the deadline adopted in the September 2021 final
rule from March 8, 2022, to October 31, 2024. EPA has primarily based
this proposal on the low end of the timelines provided by commenters
and the specific, detailed timeline laid out by the consumer
electronics sector (Ref. 21). Only two commenters, representing
individual companies, stated that they needed less than this amount of
time to phase out PIP (3:1) from their articles (Refs. 24 and 25). Many
commenters suggested longer timelines, ranging from four to seven to
fifteen years or more, although most did not provide sufficient detail
to support these timelines. Once the use of PIP (3:1) has been
identified in a specific article, the supplier can work with its supply
chain to investigate and identify alternatives to the use of PIP (3:1)
(Ref. 21). Most commenters indicated that the investigation of
substitutes would have to wait until the specific uses are identified
(Ref. 18). Commenters also stated that there may be considerable time
and expense involved in recertifying commercial and consumer goods to
applicable government requirements and industry consensus standards
(Ref. 21). EPA is seeking public comment on the compliance deadline in
this proposal, including information on the costs and benefits of the
proposed compliance date extension, as well as information on exposures
arising from PIP (3:1) in articles to improve EPA's understanding of
the impacts of any future rulemaking.
EPA is also considering the opportunity stakeholders will have to
provide additional information to support any needed further compliance
date extensions for consideration in the subsequent rulemaking activity
discussed in Unit III.D. In particular, EPA believes that stakeholders
will continue to increase their understanding regarding the presence of
PIP (3:1) in articles and potential substitutes for PIP (3:1). EPA
anticipates that it will also have more information on PIP (3:1) uses
and substitutes, allowing EPA to better describe the kinds of
information EPA will use in determining whether further compliance date
extensions are warranted or whether compliance dates should be applied
to activities currently excluded from the January 2021 final rule.
While the consumer electronics sector and some industry commenters
provided detailed information on the steps required to replace PIP
(3:1) in their supply chains, along with reasonable estimates of the
time needed to complete each of those steps, most did not. As outlined
in the March 2021 notification and request for comments, EPA asked for
information on:
The specific articles that need an alternative compliance
date;
The basis for the alternative compliance date, taking into
consideration the reasons supporting alternative deadlines in the
January 2021 final rule, such as the January 1, 2022, date for
photographic printing articles and the January 6, 2025, date for
adhesives and sealants, with supporting documentation; and
The additional time needed for specific articles to clear
channels of trade.
EPA understands that many industry sectors are still attempting to
determine exactly where PIP (3:1) is present in their supply chains.
Nevertheless, to the extent that any industry sector believes that it
needs a compliance date beyond October 31, 2024, EPA invites comments
providing specific information and documentation supporting a further
compliance date extension. EPA will evaluate requests for extensions
beyond the October 2024 date by evaluating the level of detail and
documentation provided by the commenters on:
The specific uses of PIP (3:1) in articles throughout
their supply chains;
Concrete steps taken to identify, test, and qualify
substitutes for those uses, including details on the substitutes tested
and the specific certifications that would require updating;
Estimates of the time required to identify, test, and
qualify substitutes with supporting documentation; and
Documentation of the specific need for replacement parts,
which may include the documented service life of the equipment and
specific identification of any applicable regulatory requirements for
the assurance of replacement parts.
EPA also requests comment on whether these are the appropriate
types of information for use in evaluating compliance date extensions,
and whether there are other considerations that should apply.
Finally, while PIP (3:1) for use in articles described in 40 CFR
751.407(a)(ii) or (b) will continue to have recordkeeping requirements,
EPA proposes to extend the recordkeeping compliance date in 40 CFR
751.407(d) for certain PIP (3:1)-containing articles, until October 31,
2024. Because industry is still in the process of identifying whether
and where PIP (3:1) is present in many of the articles in their supply
chains, the statement of compliance required in 40 CFR 751.407(d)(2)
will not aid EPA in monitoring compliance with the regulation.
C. Future Rulemaking Activity on PBTs under TSCA section 6(h)
EPA intends to commence a new rulemaking effort on PIP (3:1) and
the other four chemical substances regulated under TSCA section 6(h)
and anticipates issuing a proposal in 2023. As discussed in EPA's March
2021 notification and request for comments, the Agency is reviewing the
provisions of all five of the final rules issued under TSCA section
6(h), evaluating the other applicable provisions of amended
[[Page 59692]]
TSCA, and determining how recent Executive Orders and other
Administration priorities (Refs. 7, 8, 9, 10, and 11) could be
addressed, along with the additional information provided by
stakeholders. As part of this process, EPA will address comments
received in response to the March 2021 notification and request for
comments that are not addressed by the September 2021 final rule
extending PIP (3:1) compliance dates and will consider whether
additional exposure reductions are practicable for all five of the PBT
chemicals. In addition, over the next year, EPA anticipates that many
of the industries currently trying to determine whether PIP (3:1) is
present in their articles will acquire additional detailed information
on the presence of PIP (3:1) in articles and will have begun to
identify potential substitutes for those uses. At the time that this
broader proposal is issued, to the extent that any industry sector
still believes that they will not be able to comply with the PIP (3:1)
compliance dates established in this rulemaking, EPA plans to invite
that industry to provide specific detailed comments and documentation
along the lines discussed in Unit III.B. EPA also expects to solicit
comment and information on exposures arising from PIP (3:1) in articles
to inform EPA's understanding of the impacts of any future rulemaking.
As part of the future proposed rulemaking, EPA also intends to
thoroughly review the justifications underlying the exclusions in the
January 2021 PIP (3:1) final rule and the other final rules under TSCA
section 6(h) to determine whether to adopt new compliance dates for
those activities currently excluded from the January 2021 final rules
or to further extend compliance dates that have already been extended,
consistent with the statutory directive to reduce exposure to the
extent practicable.
IV. References
The following is a listing of the documents that are specifically
referenced in this document. The docket includes these documents and
other information considered by EPA, including documents that are
referenced within the documents that are included in the docket, even
if the referenced document is not physically located in the docket. For
assistance in locating these other documents, please consult the
technical person listed under FOR FURTHER INFORMATION CONTACT.
1. EPA. Phenol, Isopropylated Phosphate (3:1) (PIP (3:1));
Regulation of Persistent, Bioaccumulative, and Toxic Chemicals Under
TSCA Section 6(h); Final Rule. Federal Register (86 FR 894, January
6, 2021) (FRL-10018-88).
2. EPA. Regulation of Persistent, Bioaccumulative, and Toxic
Chemicals Under TSCA Section 6(h); Phenol, Isopropylated Phosphate
(3:1); Compliance Date Extension. Federal Register (86 FR 51823,
September 17, 2021) (FRL-6015.5-03-OCSPP).
3. EPA. 2,4,6-Tris(tert-butyl)phenol (2,4,6-TTBP); Regulation of
Persistent, Bioaccumulative, and Toxic Chemicals Under TSCA Section
6(h); Final Rule. Federal Register (86 FR 866, January 6, 2021)
(FRL-10018-90).
4. EPA. Decabromodiphenyl Ether (DecaBDE); Regulation of Persistent,
Bioaccumulative, and Toxic Chemicals Under TSCA Section 6(h); Final
Rule. Federal Register (86 FR 880, January 6, 2021) (FRL-10018-87).
5. EPA. Pentachlorothiophenol (PCTP); Regulation of Persistent,
Bioaccumulative, and Toxic Chemicals Under TSCA Section 6(h); Final
Rule. Federal Register (86 FR 911, January 6, 2021) (FRL-10018-89).
6. EPA. Hexachlorobutadiene (HCBD); Regulation of Persistent,
Bioaccumulative, and Toxic Chemicals Under TSCA Section 6(h); Final
Rule. Federal Register (86 FR 922, January 6, 2021) (FRL-10018-91).
7. Executive Order 13985. Advancing Racial Equity and Support for
Underserved Communities Through the Federal Government. Federal
Register (86 FR 7009, January 25, 2021).
8. Executive Order 13990. Protecting Public Health and the
Environment and Restoring Science to Tackle the Climate Crisis.
Federal Register (86 FR 7037, of January 25, 2021).
9. Executive Order 14008. Tackling the Climate Crisis at Home and
Abroad. Federal Register (86 FR 7619, February 1, 2021).
10. Presidential Memorandum. Memorandum on Restoring Trust in
Government Through Scientific Integrity and Evidence-Based
Policymaking. Federal Register (86 FR 86 FR 8845, February 10,
2021).
11. Fact Sheet: List of Agency Actions for Review. January 21, 2021.
https://www.whitehouse.gov/briefing-room/statements-releases/2021/01/20/fact-sheet-list-of-agency-actions-for-review/.
12. Letter from the Consumer Technology Association (CTA) and the
Information Technology Industry Council (ITI) to EPA on March 15,
2021. EPA-HQ-OPPT-2021-0202-0015.
13. EPA. Regulation of Persistent, Bioaccumulative, and Toxic
Chemicals Under TSCA Section 6(h); Request for Comments. Federal
Register (86 FR 14398, March 16, 2021) (FRL-10021-08).
14. Comments submitted to EPA. Regulation of Persistent,
Bioaccumulative, and Toxic Chemicals Under TSCA Section 6(h). Docket
ID EPA-HQ-OPPT-2021-0202-0001.
15. EPA. No Action Assurance Regarding Prohibition of Processing and
Distribution of Phenol Isopropylated Phosphate (3:1), PIP (3:1) for
Use in Articles, and PIP (3:1)-containing Articles under 40 CFR
751.407(a)(1). March 8, 2021. https://www.epa.gov/assessing-and-managing-chemicals-under-tsca/public-comment-period-pbt-rules-and-no-action-assurance.
16. Comment submitted by SEMI and the Semiconductor Equipment
Association of Japan (SEAJ) to EPA on May 17, 2021. EPA-HQ-OPPT-
2021-0202-0121.
17. Comment submitted by National Electrical Manufacturers
Association (NEMA) to EPA on May 17, 2021. EPA-HQ-OPPT-2021-0202-
0117.
18. Comment submitted by the Association of Equipment Manufacturers
(AEM) to EPA on May 13, 2021. EPA-HQ-OPPT-2021-0202-0053.
19. Comment submitted by CNH Industrial to EPA on May 14, 2021. EPA-
HQ-OPPT-2021-0202-0065.
20. Comment submitted by Hitachi High-Tech America Inc. to EPA on
May 17, 2021. EPA-HQ-OPPT-2021-0202-0093.
21. Comment submitted by the Consumer Technology Association (CTA)
and the Information Technology Industry Council (ITI) to EPA on May
17, 2021. EPA-HQ-OPPT-2021-0202-0148.
22. Comment submitted by the Air-Conditioning, Heating and
Refrigeration Institute (AHRI) to EPA on May 17, 2021. EPA-HQ-OPPT-
2021-0202-0143.
23. Comment submitted by the Test & Measure Coalition (T&M) to EPA
on May 17, 2021. EPA-HQ-OPPT-2021-0202-0122.
24. Comment submitted by Roland DGA Corporation to EPA on May 17,
2021. HQ-OPPT-2021-0202-0129.
25. Comment submitted by Beveridge & Diamond, P.C. to EPA on May 14,
2021. EPA-HQ-OPPT-2021-0202-0069.
26. Comment submitted by LBX Company, LLC to EPA on May 17, 2021.
EPA-HQ-OPPT-2021-0202-0082.
27. Comment submitted by Clark Equipment Company to EPA on May 17,
2021. EPA-HQ-OPPT-2021-0202-0095.
28. Comment submitted by Outdoor Power Equipment Institute (OPEI) to
EPA on May 17, 2021. EPA-HQ-OPPT-2021-0202-0125.
29. Comment submitted by Safer Chemicals Healthy Families (SCHF) et
al. to EPA on May 17, 2021. EPA-HQ-OPPT-2021-0202-0096.
30. EPA. Regulation of Persistent, Bioaccumulative, and Toxic
Chemicals under TSCA Section 6(h); Response to Public Comments.
December 2020. EPA-HQ-OPPT-2019-0080-0647.
V. Statutory and Executive Order Reviews
Additional information about these statutes and Executive Orders
can be found at https://www2.epa.gov/lawsregulations/laws-and-executive-orders.
[[Page 59693]]
A. Executive Order 12866: Regulatory Planning and Review and Executive
Order 13563: Improving Regulation and Regulatory Review
This action is a significant regulatory action under Executive
Order 12866 (58 FR 51735, October 4, 1993) and was submitted to the
Office of Management and Budget (OMB) for review under Executive Orders
12866 and 13563 (76 FR 3821, January 21, 2011). Any changes made in
response to OMB review have been reflected in the docket for this
action.
B. Paperwork Reduction Act (PRA)
This action does not impose any new information collection
activities or burden subject to OMB review and approval under the PRA,
44 U.S.C. 3501 et seq. However, this action defers the costs associated
with paperwork and recordkeeping burden for an existing information
collection because the delayed compliance date alters the time horizon
of the collection's analysis. Burden is defined in 5 CFR 1320.3(b). OMB
has previously approved the information collection activities contained
in the existing regulations and associated burden under OMB Control No.
2070-0213 (EPA ICR No. 2599.02). An agency may not conduct or sponsor,
and a person is not required to respond to a collection of information
that requires OMB approval under PRA, unless it has been approved by
OMB and displays a currently valid OMB control number. The OMB control
numbers for EPA's regulations in title 40 of the CFR, after appearing
in the Federal Register, are listed in 40 CFR part 9, and included on
the related collection instrument or form, if applicable.
C. Regulatory Flexibility Act (RFA)
I certify that this action will not have a significant economic
impact on a substantial number of small entities under the RFA. In
making this determination, EPA concludes that the impact of concern for
this rule is any significant adverse economic impact on small entities,
and the agency is certifying that this rule will not have a significant
economic impact on a substantial number of small entities because the
rule relieves regulatory burden. This action would extend the
compliance date for a prohibition on the processing and distributing in
commerce of PIP (3:1) for use in certain articles and the processing
and distributing in commerce of certain PIP (3:1)-containing articles,
along with the associated recordkeeping requirements, from March 8,
2022, to October 31, 2024. EPA has therefore concluded that this action
would relieve regulatory burden for all directly regulated small
entities.
D. Unfunded Mandates Reform Act (UMRA)
This action does not contain any unfunded mandate as described in
UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect
small governments. The action imposes no enforceable duty on any state,
local or tribal governments or the private sector.
E. Executive Order 13132: Federalism
This action does not have federalism implications as specified in
Executive Order 13132 (64 FR 43255, August 10, 1999). It will not have
substantial direct effects on the states, on the relationship between
the national government and the states, or on the distribution of power
and responsibilities among the various levels of government.
F. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments
This action does not have tribal implications as specified in
Executive Order 13175 (65 FR 67249, November 9, 2000) because it does
not have substantial direct effects on one or more Indian tribes, on
the relationship between the Federal Government and Indian tribes, or
on the distribution of power and responsibilities between the Federal
Government and Indian tribes. Thus, Executive Order 13175 does not
apply to this action.
G. Executive Order 13045: Protection of Children From Environmental
Health Risks and Safety Risks
This action is not a ``covered regulatory action'' under Executive
Order 13045 (62 FR 19885, April 23, 1997) because it is not an
economically significant regulatory action as defined by Executive
Order 12866.
H. Executive Order 13211: Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use
This is not a ``significant energy action'' as defined in Executive
Order 13211 (66 FR 28355, May 22, 2001), because it is not likely to
have a significant adverse effect on the supply, distribution or use of
energy and has not otherwise been designated by the Administrator of
the Office of Information and Regulatory Affairs as a significant
energy action.
I. National Technology Transfer and Advancement Act (NTTAA)
This action does not involve technical standards. As such, NTTAA
section 12(d), 15 U.S.C. 272 note, does not apply to this action.
J. Executive Order 12898: Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations
EPA believes that this action does not have disproportionately high
and adverse human health or environmental effects on minority
populations, low-income populations and/or indigenous peoples, as
specified in Executive Order 12898 (59 FR 7629, February 16, 1994). As
discussed in Unit II., this action is necessary to avoid widespread
disruptions in the supply chains for a wide variety of essential goods
and would not otherwise materially alter the final rule as published.
List of Subjects in 40 CFR Part 751
Environmental protection, Chemicals, Export notification, Hazardous
substances, Import certification, Reporting and recordkeeping.
Michael S. Regan,
Administrator.
Therefore, for the reasons stated in the preamble, EPA proposes to
amend 40 CFR part 751 as follows:
PART 751--REGULATION OF CERTAIN CHEMICAL SUBSTANCES AND MIXTURES
UNDER SECTION 6 OF THE TOXIC SUBSTANCES CONTROL ACT
0
1. The authority citation for part 751 continues to read as follows:
Authority: 15 U.S.C. 2605, 15 U.S.C. 2625(l)(4).
Sec. 751.407 [Amended]
0
2. Amend Sec. 751.407 in paragraphs (a)(2)(iii) and (d)(4) by removing
``March 8, 2022'' and adding ``October 31, 2024'' in its place.
[FR Doc. 2021-23337 Filed 10-27-21; 8:45 am]
BILLING CODE 6560-50-P