[Federal Register Volume 87, Number 45 (Tuesday, March 8, 2022)]
[Rules and Regulations]
[Pages 12875-12887]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-04945]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 751

[EPA-HQ-OPPT-2021-0598; FRL-6015.6-02-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: Final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is amending the 
regulations applicable to phenol, isopropylated phosphate (3:1) (PIP 
(3:1)) promulgated under the Toxic Substances Control Act (TSCA). 
Specifically, EPA is extending the compliance date applicable to the 
prohibition on 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 compliance date for 
the associated recordkeeping requirements for manufacturers, 
processors, and distributors of PIP (3:1)-containing articles. This 
final rule follows issuance of a proposed rule for public comment on 
October 28, 2021; comments on the proposed rule are responded to in 
this action.

DATES: This final rule is effective on March 8, 2022. For purposes of 
judicial review and 40 CFR 23.5, this rule shall be promulgated at 1 
p.m. eastern standard time on March 22, 2022.

ADDRESSES: The docket for this action, identified by docket 
identification (ID) number EPA-HQ-OPPT-2021-0598, is available at 
https://www.regulations.gov. Due to the public health concerns related 
to COVID-19, the EPA Docket Center (EPA/DC) and Reading Room are opened 
to visitors by appointment only. 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,

[[Page 12876]]

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 
action 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);
     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?

1. Toxic Substances Control Act (TSCA)
    TSCA section 6(h), 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 
presented and that 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. 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 F.C.C. v. Fox Television Stations, Inc., 556 
U.S. 502, 515 (2009). Here, as explained further in Unit I.D. and Unit 
IV.A, based on information submitted by regulated entities, the Agency 
has determined that revised compliance dates are necessary to address 
detailed information submitted in comments demonstrating that the 
original compliance dates were not practicable and did not provide 
adequate transition time consistent with TSCA section 6(d)(1) because 
compliance with the original compliance date and initially extended 
compliance date would have caused extensive harm to the economy and 
public due to unavailability of critical goods and equipment.
2. Administrative Procedure Act (APA).
    APA section 553(d), 5 U.S.C. 553(d), provides that the publication 
of a substantive rule must occur no later than 30 days before its 
effective date, with certain exceptions. The purpose of this provision 
is to ``give affected parties a reasonable time to adjust their 
behavior before the final rule takes effect.'' See Omnipoint Corp. v. 
F.C.C., 78 F.3d 620, 630 (D.C. Cir. 1996); see also United States v. 
Gavrilovic, 551 F.2d 1099, 1104 (8th Cir. 1977) (quoting legislative 
history). Of relevance here, APA section 553(d)(1), 5 U.S.C. 553(d)(1), 
provides that final rules shall not become effective until 30 days 
after publication in the Federal Register ``except . . . a substantive 
rule which grants or recognizes an exemption or relieves a 
restriction.'' When the agency grants or recognizes an exemption or 
relieves a restriction, affected parties do not need a reasonable time 
to adjust because the effect is not adverse. See Indep. U.S. Tanker 
Owners Comm. v. Skinner, 884 F.2d 587 (D.C. Cir. 1989) (upholding 
immediate effective date for a final rule intended to avoid disruption 
in domestic trade by lifting a ban on vessels participating in domestic 
shipping), mandate modified on other grounds, 901 F.2d 1116 (D.C. Cir. 
1990). EPA has determined that this rule relieves a restriction by 
providing additional time for regulated entities to comply with the 
applicable requirements. Accordingly, EPA is making this rule effective 
immediately upon publication.

C. What action is the Agency taking?

    The January 2021 final rule for PIP (3:1) prohibits the processing 
and distribution in commerce 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 in commerce, 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 in commerce 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 
final rule issued in September 2021 extended the compliance date 
applicable to the prohibition on 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 compliance date for the associated recordkeeping 
requirements for PIP (3:1)-containing articles (Ref. 2).
    This final rule amends the regulations at 40 CFR 751.407(a)(2)(iii) 
and (d)(4) to further extend the phased-in prohibition, established in 
the September 2021 final rule, for the processing and distribution in 
commerce of PIP (3:1) for use in certain articles, and for the 
processing and distribution in commerce of certain PIP (3:1)-containing 
articles, from March 8, 2022, to October 31, 2024. The

[[Page 12877]]

compliance date for the recordkeeping requirements for manufacturers, 
processors, and distributors of PIP (3:1)-containing articles is also 
extended from March 8, 2022, to October 31, 2024. 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).

D. Why is the Agency taking this action?

    EPA is further extending the compliance dates applicable to the 
prohibition on processing and distribution in commerce of PIP (3:1) for 
use in certain articles, and the processing and distribution in 
commerce of certain PIP (3:1)-containing articles, to further address 
the hardships inadvertently created by the January 2021 final rule on 
PIP (3:1) (Ref. 1) due to impacted 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. 3). In the Federal Register of March 
16, 2021 (Ref. 4), EPA requested additional comment on this specific 
issue, as well as on other aspects of all the TSCA section 6(h) final 
rules (Refs. 1, 5, 6, 7, and 8). 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 were 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. 9). In September 
2021, EPA issued a final rule that extended the compliance date 
applicable to the prohibition on 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 
compliance date for the associated recordkeeping requirements for 
manufacturers, processors, and distributors of PIP (3:1)-containing 
articles (Ref. 2). The September 2021 final rule provided a necessary 
short-term extension to avoid immediate and significant disruption in 
the supply chains for certain 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). Shortly thereafter, EPA issued a proposal to further 
extend the compliance dates to October 31, 2024 (Ref. 10). This final 
rule extending the compliance dates from March 8, 2022, until October 
31, 2024, is based on the detailed information provided by several 
industry commenters in response to the proposal.

E. What are the incremental economic impacts?

    Pursuant to TSCA section 6(c)(2), EPA evaluated the potential 
incremental economic impacts of further extending the compliance 
deadline and determined that the changes being finalized in this action 
would reduce the existing burden of the March 8, 2022, compliance date. 
The quantified effect of this compliance date extension (from March 8, 
2022, to October 31, 2024) reflects the difference between the 
incremental cost and benefits of the January 2021 final rule as it was 
originally promulgated and the incremental cost and benefits of this 
final rule with the new compliance date in place. This was estimated as 
the difference between the cost and benefits of the final rule after 
the compliance extension to March 8, 2022, and the cost and benefits of 
this final rule with an October 31, 2024, compliance date. Quantified 
costs for substitution and recordkeeping were estimated to be incurred 
later than they would have been under the January 2021 rule, assuming 
they will be incurred when the compliance date extension expires. In 
summary, extending the compliance date from March 8, 2022, to October 
31, 2024, for PIP (3:1)-containing articles results 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 savings stemming from the additional 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 identified 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 for the regulated community 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 about supply chain impacts that could 
alleviate the necessity for chemical testing of certain articles to 
identify whether and where PIP (3:1) might be present in their supply 
chains.
    With respect to benefits, pursuant to TSCA section 6(h)(2), for 
chemical substances that meet the criteria of TSCA section 6(h)(1), a 
risk evaluation is not required to be conducted for EPA to meet its 
obligations under TSCA section 6(h). As discussed in the January 2021 
final rule, while EPA reviewed hazard and exposure information for the 
PBT chemicals, this information did not provide a basis for EPA to 
develop scientifically robust and representative risk estimates to 
evaluate whether or not any of the chemicals present a risk of injury 
to health or the environment. Benefits were not quantified due to the 
lack of risk estimates. Although the benefits of the January 2021 and 
September 2021 final rules 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 due to continued 
exposures. On balance, this further extension of the compliance dates 
is appropriate to prevent the disruptive consequences of implementing 
the March 8, 2022, compliance date without a further compliance 
extension. The economic consequences (such as loss of supply) could be 
severe, given the apparent extent of the chemical in commerce. Thus, 
EPA has determined that the cost savings and avoidance of disruption to 
industry outweigh the delayed realization of benefits that may accrue 
from reduced exposure.

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)

[[Page 12878]]

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 prohibited processing and distribution in 
commerce of PIP (3:1), and products or articles containing the chemical 
substance, for all uses after March 8, 2021, 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 required manufacturers, processors, and 
distributors of PIP (3:1) and products containing PIP (3:1) to notify 
their customers of these restrictions. Finally, the rule prohibited 
releases to water from the remaining manufacturing, processing, and 
distribution in commerce activities, and required commercial users of 
PIP (3:1) and PIP (3:1)-containing products to follow existing 
regulations and best management 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 ``product'' (Ref. 5). ``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 Request for Comments and the No 
Action Assurance

    Shortly after the publication of the January 2021 final rule, a 
wide variety of stakeholders from various sectors started raising 
concerns about the March 8, 2021, compliance date 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. 3). 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 (Refs. 1, 2, 4 and 10), 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.
    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. 11). The NAA was written to expire on September 4, 2021, 
or ``the effective date of a final action addressing the compliance 
date for the prohibition on processing and distributing in commerce of 
PIP (3:1), including in PIP (3:1)-containing articles, whichever occurs 
earlier.'' In addition, shortly after the NAA was issued, EPA published 
in the ``Proposed Rules'' part of the Federal Register 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 (Ref. 
4). The March 2021 Federal Register notification and request for 
comments is described in detail in EPA's October 2021 proposal (Ref. 
10). EPA received a total of 122 comments in response to the March 2021 
notification and request for comments (Ref. 9), nearly all of which 
addressed PIP (3:1) issues. Based on the comments received in response 
to the March 2021 notification and request for comments, EPA issued a 
final rule in September 2021, 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 (Ref. 2). While most commenters on the March 
2021 notification and request for comments requested a longer 
compliance date extension (Ref. 9), 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 on a longer-term 
compliance date extension generally.

C. The October 2021 Proposal

    Accordingly, in October 2021, EPA proposed to further extend until 
October 31, 2024, the compliance dates for the prohibition on the 
distribution in commerce of certain PIP (3:1)-containing articles, and 
the PIP (3:1) used to make those articles, along with the compliance 
date for the associated recordkeeping requirements for manufacturers, 
processors, and distributors of PIP (3:1)-containing articles (Ref. 
10). EPA based the October 2021 proposal on the comments received on 
the March 2021 notification and request for comments, as well as 
information EPA received from stakeholders after the January 2021 final 
rule was published but prior to the issuance of the March 2021 
notification and request for comments.
    Industry stakeholders commenting on the March 2021 notification and 
request for comments contended that they needed more time 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). As described in the October 2021 proposed rule, 
industry commenters identified a wide range of articles that may 
contain PIP (3:1), which generally is used as a flame retardant and 
plasticizer in plastic articles (Refs. 9 and 10). Commenters on the 
March 2021 notification and request

[[Page 12879]]

for comments also described the challenges associated with determining 
whether a particular article contains PIP (3:1), especially for complex 
goods that contain thousands of individual parts. Some commenters 
stated that article manufacturers may be unable to identify or confirm 
the PIP (3:1) content of articles, such as supplied parts and 
components, without laboratory testing, which can be expensive and 
time-consuming. 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. However, the 
ability to obtain material composition data from across the supply 
chain may be limited (Ref. 12).
    As described in the October 2021 proposal, nearly all of the 
industry commenters responding to EPA's March 2021 notification and 
request for comments stated that they needed several years to phase PIP 
(3:1) out of their articles (Refs. 9 and10). 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 (Ref. 
9). Given the varying estimates, and the lack of detail accompanying 
some of those estimates, EPA proposed to further extend the compliance 
dates until October 31, 2024, which was consistent with the lower end 
of the time estimates provided by commenters. EPA reasoned that this 
would avoid significant disruption in the supply chains for certain 
articles and would provide the public with regulatory certainty while 
EPA determines whether any further compliance date extensions are 
necessary for certain industry sectors, based on information submitted 
in the context of revisions to the PBT rules more generally. As 
announced in March 2021 and in the October 2021 proposal, EPA intends 
to consider any additional information of this kind in the context of 
revisions to the final PBT rules to further reduce exposures, promote 
environmental justice, and better protect human health and the 
environment. More information on the March 2021 notification and 
request for comments, and a summary of the comments received in 
response to the notification, are in the October 2021 proposal (Ref. 
10).

III. Comments on the October 2021 Proposal

    EPA received a total of 40 public comments on the October 2021 
proposal: 38 from industry stakeholders, one from environmental, public 
health, children's health organizations, and one from a tribal 
partnership group (Ref. 13). Many of the industry commenters on this 
proposal also commented on the March 2021 notification and request for 
comments, some providing additional details about their efforts to 
identify PIP (3:1) in their supply chains since the earlier public 
comment period.

A. Comments Supporting the Proposed Compliance Dates or Further 
Extensions

    Approximately one-third of the industry commenters on the October 
2021 proposal expressed qualified support for the proposed compliance 
date of October 31, 2024, for the prohibition on the processing and 
distribution in commerce of certain PIP (3:1)-containing articles and 
the PIP (3:1) used to make those articles.
1. Summary of Public Comments Supporting Extension of Compliance Dates
    A commenter from the heating, ventilation, air-conditioning, and 
refrigeration (HVACR) industry noted that their comments on the March 
2021 notification and request for comments provided two scenarios for 
the length of time needed to eliminate PIP (3:1) in their supply chains 
(Ref. 14). While the first scenario resulted in an estimate of three 
years to complete the phase-out of PIP (3:1), the commenter noted that 
this was a best-case scenario, assuming that a number of potential 
difficulties with identifying PIP (3:1) in the supply chain and 
scheduling scarce laboratory time for recertifications would be 
eliminated. The more realistic scenario, according to this commenter, 
was the scenario that estimated that a period of five years would be 
needed to eliminate PIP (3:1) in their supply chain. This commenter 
reiterated concerns with the process for eliminating PIP (3:1), noting 
that it remains difficult to obtain information from suppliers, testing 
is an expensive and time-consuming alternative, and that it will be 
challenging to find and test substitute chemicals with the fire-
retardant characteristics of PIP (3:1) for every application. The 
commenter further explained that the industry is dealing with a 
shortage of acrylonitrile butadiene styrene plastic due to the ongoing 
COVID-19 pandemic as well as a mandatory refrigerant transition. 
Finally, this commenter contended that the compliance date should be a 
``manufactured-by'' date, rather than a processing and distribution in 
commerce prohibition, and expressed concern over the need for 
replacement parts for equipment that is produced before the 
``manufactured-by'' date.
    Commenters from the consumer technology sector noted that they had 
originally estimated in their comments on the March 2021 notification 
and request for comments that they would need four years to phase PIP 
(3:1) out of their articles, but now believe that they can achieve this 
by October 31, 2024 (Ref 15). They conditioned their support for the 
2024 date on the date being a ``manufactured-by'' date, rather than a 
prohibition on processing and distribution in commerce, and also raised 
the issue of replacement parts for consumer articles produced before 
the ``manufactured-by'' date.
    The home appliance industry also supported the October 2024 date, 
noting that their comments on the March 2021 notification and request 
for comments recommended a three-year extension of the compliance date. 
They also requested that the compliance date be applied as a 
``manufactured-by'' date, and that there be an exclusion for spare or 
replacement parts (Ref. 16).
    Other commenters maintained that they would need more time to 
complete a phase-out of PIP (3:1) from their supply chains. A commenter 
from the electrical manufacturing industry stated that they would need 
at least five years to eliminate PIP (3:1) in their articles, and eight 
years would be preferred (Ref. 17). The commenter described the 
complexity of the sector's supply chains, estimating that six to twelve 
months would be needed to identify PIP (3:1) in articles and two to 
three years would be needed to identify an alternative, after which it 
would be necessary to test and certify components made with the 
alternative. This commenter also noted that it would be very expensive 
to replace PIP (3:1) throughout the electrical manufacturing industry. 
Finally, this commenter stated that an additional three years would be 
needed for ``sell-through,'' i.e., allowing articles made with PIP 
(3:1) to clear the supply chain.
    Several commenters from the semiconductor manufacturing industry 
indicated that they would need a phase-out timeline of at least fifteen 
years (Refs. 12, 18, and 19). One commenter noted that the same 
considerations that led EPA to exclude new and replacement parts for 
the aerospace and automotive industry from the January 2021 final rule 
could be applied to the semiconductor manufacturing industry and, 
therefore, that industry should also be excluded (Ref. 12). This 
commenter suggested a fifteen-year delay in the compliance date for the 
semiconductor manufacturing industry, which was consistent with the 
comments this commenter provided in May 2021. The commenter provided a 
chart showing the typical cycle for one part going through an 
engineering change under

[[Page 12880]]

normal conditions. While the chart showed that the process could be 
completed in ten years, and that process steps could overlap, the 
commenter noted that a PIP (3:1) phase-out would involve the entire 
industry going through these processes for many parts at once, leading 
to numerous logjams. The commenter estimated that 30 months would be 
needed to identify PIP (3:1)-containing components in the supply chain, 
20 months would be needed to identify and test alternatives, 6 to 48 
months would be needed to requalify suppliers to the manufacturer's 
requirements, 18 months would be needed to laboratory testing and 
recertification, and 36 months would be needed for customer 
qualification (Ref. 12).
    In addition to comments regarding the extension of compliance dates 
for prohibitions, one commenter further requested that EPA make the 
compliance date for recordkeeping for excluded articles, such as new 
and replacement automotive parts, consistent with the recordkeeping 
compliance date for articles that are the subject of this rulemaking 
(Ref. 20).
2. EPA Response
    EPA notes that one-third of the commenters overall estimated that 
impacted industries would be able to comply with the October 2024 
compliance date, albeit with some reservations related to replacement 
parts, the ability to sell articles produced before the compliance 
date, and pandemic impacts on global supply chains. EPA appreciates the 
efforts that many of the commenters made to provide the details 
requested by EPA in the October 2021 proposal as to:
     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 appreciates the comments that provide updated estimates of 
needed time to comply and which provide more detailed information than 
was provided in response to the March 2021 notification and request for 
comments. Overall, EPA finds the description of concrete steps taken in 
some industries to identify alternatives or continue engaging in phase-
outs to provide a compelling rationale for the need for an extension of 
the compliance date to October 31, 2024, with an expectation that in 
several industries this extension would be sufficient. While EPA 
appreciates the information submitted by some commenters to support a 
further compliance date extension beyond October 31, 2024, EPA also 
recognizes that, for many industries, the collection of this 
information is still ongoing. EPA does not find that the Agency has 
sufficient information at this time to identify an appropriate 
compliance date beyond October 31, 2024, or to justify extending the 
compliance date beyond October 31, 2024. As commenters stated, 
obtaining information from suppliers continues to present challenges, 
and EPA anticipates that additional time to investigate supply chains 
as well as substitute chemicals will result in more robust information 
regarding the need for compliance date extensions beyond October 31, 
2024, including the number of years that will be needed to qualify the 
substitutes and distribute them throughout the supply chain. As 
discussed in the October 2021 proposal and in more detail in Unit 
IV.B., EPA will consider any additional information on this issue in 
the context of the broader rulemaking EPA plans to undertake for PIP 
(3:1) and other PBTs. As part of that broader rulemaking, EPA will also 
review the justifications underlying the exclusions in the January 2021 
PIP (3:1) final rule to consider whether to adopt new restrictions for 
activities currently excluded, such as new and replacement automotive 
and aerospace vehicle parts, consistent with the statutory directive to 
reduce exposure to the extent practicable.
    Regarding commenters' statements that compliance date extensions 
should be combined with a further regulatory change allowing for a 
``manufactured-by'' date, rather than a processing and distribution in 
commerce prohibition, EPA's response is provided in Unit III.D.2.
    Regarding compliance dates for recordkeeping, based on the comments 
received from the non-road mobile machinery and other similar 
industries (described in more details in comments requesting exclusions 
from the prohibitions), EPA understands that the scope of the exclusion 
for new and replacement motor vehicle parts is broader than what would 
strictly be considered the automotive industry, and not all suppliers 
eligible for the motor vehicle parts exclusion participate in the 
automotive industry's recordkeeping system. EPA recognizes the benefits 
in extending the recordkeeping compliance date in the way described by 
the commenter; details of the recordkeeping compliance date extension 
are described in Unit IV.B.

B. Comments Supporting Exclusions

    A number of commenters from the construction, agriculture, mining, 
forestry and utility industries, which EPA is referring to as the non-
road mobile machinery industry, argued that they should be afforded the 
same exclusion that was provided in the January 2021 final rule for new 
and replacement parts for the aerospace and automotive industries.
1. Summary of Public Comments Supporting Exclusions
    One commenter from the non-road mobile machinery industry stated 
that this industry faces the same types of safety, design, 
manufacturing and purchasing issues experienced by the aerospace and 
automotive sectors (Ref. 22). According to the commenter, this leads to 
overlapping supply chains with the much-larger aerospace and automotive 
industries. As a result of these overlapping supply chains, the 
exclusions granted to the aerospace and automotive industries, without 
a similar exclusion for the non-road mobile machinery industry, greatly 
complicate efforts to comply with the provisions of the January 2021 
final rule in that the non-road mobile machinery industry may be forced 
to find new suppliers to provide replacements for PIP (3:1)-containing 
components at a higher cost.
    As an alternative to an exclusion, this commenter stated that they 
would need seven years to eliminate PIP (3:1)-containing components 
from their supply chain. The commenter provided a detailed timeline in 
support of this assertion, as well as an estimate of the costs that 
would be incurred in eliminating PIP (3:1). Other commenters supported 
a seven-year delayed compliance date as an alternative to their 
preferred approach of excluding the heavy machinery industry (Refs. 22 
and 23).
    Relatedly, commenters representing the automotive and similar 
industries, such as the non-road mobile machinery industry, requested 
that EPA clarify several provisions. Several commenters noted that EPA 
had provided its understanding of the meaning of the term ``motor 
vehicle,'' as that term is used in the January 2021 final rule, to 
stakeholders upon request (Ref. 20, 22, and 24). These commenters asked 
that

[[Page 12881]]

EPA provide its understanding of the term ``motor vehicle'' in the 
regulatory text itself, or in a companion guidance document.
2. EPA Response
    EPA appreciates the detailed estimates that several commenters 
provided describing the time that would be needed to identify PIP (3:1) 
in their supply chain, find and test alternatives, recertify and 
requalify parts and finished goods, and distribute them through the 
supply chain (Ref. 21). EPA notes that some of the articles produced by 
these commenters would be considered motor vehicles. As EPA has stated 
in response to stakeholder inquiries (Refs. 20, 22, and 24), EPA 
generally interprets the term ``motor vehicle'' to mean a transport 
vehicle that is propelled or drawn by mechanical power, such as cars, 
trucks, motorcycles, boats, and construction, agricultural, and 
industrial machinery. To the extent that the commenters produce motor 
vehicles, they are currently covered under the exclusion provided in 
the January 2021 final rule for new and replacement motor vehicle 
parts. However, as EPA announced in the March 2021 notification and 
request for comments and further described in the October 2021 
proposal, EPA, as part of its planned future rulemaking on all five of 
the PBTs, will review the justifications underlying the exclusions in 
the January 2021 PIP (3:1) final rule to consider whether to adopt new 
restrictions for activities currently excluded, consistent with the 
statutory directive to reduce exposure to the extent practicable (Refs. 
4 and 10). As noted previously, in the future rulemaking, EPA will also 
consider comments addressing any need for a further extension to 
compliance dates that have already been extended. For example, in the 
upcoming rulemaking, EPA intends to evaluate whether a compliance date 
can be established for new automotive parts that contain PIP (3:1). As 
part of that evaluation, EPA will consider a similar compliance date 
for adjacent industries, such as non-road mobile machinery, given that 
they share supply chains. Similarly, EPA appreciates the suggestion 
from the commenters regarding a definition of ``motor vehicle'' in the 
regulatory text and will consider proposing such a definition in 
relevant regulatory text as part of the upcoming broader rulemaking on 
PIP (3:1) and other PBT chemicals.

C. Comments Opposed to Further Compliance Date Extensions

    In contrast to industry commenters, commenters from environmental, 
public health, children's health organizations, or tribal partnership 
groups contended that no additional compliance date delay was 
warranted.
1. Summary of Public Comments Opposed to Further Compliance Date 
Extensions
    Two commenters expressed concern over the additional exposures that 
could result from further extensions to the compliance date, including 
to children, persons who are exposed to PIP (3:1) through multiple 
pathways, subsistence fishers and others who are likely to have higher 
dietary exposures than those of the general population, and persons 
exposed through the disposal of PIP (3:1)-containing materials at 
certain landfills and through open burning (Refs. 25 and 26).
    One comment from several environmental, public health, and 
children's health organizations stated that an extension of the 
compliance date would perpetuate exposure to a toxic chemical contrary 
to the statutory requirement to take expedited action to reduce 
exposure to the extent practicable for the PBT chemicals (Ref. 25). The 
comment emphasized that a further extension of the compliance deadline 
would reward industry's lack of participation in the regulatory process 
that preceded the January 2021 final rules, and stated their position 
that EPA failed to justify the proposed compliance extension by 
dismissing its impact on exposure risks, instead focusing only on 
industry hardship, and that this approach contravenes Congress' intent 
in TSCA. The commenter cited EPA's proposed rule to note that PIP (3:1) 
is among the highest scoring PBT chemicals based on its scores for 
hazard, exposure, and persistence and bioaccumulation. The commenter 
also stated that, because the general prohibition against PIP (3:1) 
took effect within sixty days, the commenter believed that EPA had not 
considered whether there were steps that could be taken during a multi-
year phase-in period to reduce exposure to PIP (3:1), such as public 
notifications and labeling of products containing PIP (3:1) or 
additional safeguards for the workers who manufacture, recycle, or 
dispose of those products (Ref. 25). Additionally, the comment cited 
studies in stating that the proposed extension will be especially 
harmful to communities where PIP (3:1) is manufactured, imported, 
released, and disposed of, and that multiple exposures to PIP (3:1) 
would have a disproportionate impact on those communities that raise 
environmental justice concerns. The commenter added that the proposed 
extension will be especially harmful to children, providing citations 
of industry reports of the presence of PIP (3:1) in children's 
products. Finally, the commenter requested that EPA initiate 
information gathering rulemakings under TSCA section 8(a) to prevent 
any future attempts by industry to evade regulatory control on the 
basis of ignorance of chemicals present in products and supply chains.
    The National Tribal Toxics Council (NTTC), an EPA Tribal 
Partnership group, stated that, prior to the original compliance date, 
EPA had provided more than adequate advance notice as well as ample 
opportunities for stakeholder engagement, and thus further extensions 
are not warranted. The commenter emphasized that any regulatory action 
that pertains to PBTs has significant tribal implications, and 
expressed concern that the rule would result in 31 additional months of 
PIP (3:1) products being disposed in or near tribal lands without 
monitoring for environmental releases (Ref. 26).
2. EPA Response
    EPA appreciates the commenters' descriptions of their concerns, 
their input during the current and previous rulemakings, and their 
support of EPA's stakeholder engagement process. EPA agrees that 
earlier industry stakeholder engagement during the multiple years the 
original PIP (3:1) regulation was under development would have been of 
great help to EPA in crafting practicable compliance dates for various 
industry sectors as is required by TSCA section 6(d)(1). EPA also 
acknowledges that PIP (3:1) scores high for hazard, exposure, and 
persistence and bioaccumulation. However, EPA finds the information 
industry stakeholders have provided in response to the March 2021 and 
October 2021 notices to be compelling justification for the necessity 
of extension of the relevant compliance dates to October 2024 because 
of the potential for significant disruption to the supply chains for 
important articles such as HVACR equipment and personal electronics.
    EPA appreciates the recommendations for steps that could be taken 
to phase out PIP (3:1) or further reduce exposure, such as the public 
notifications or worker protections the commenter described. EPA will 
consider these recommendations as part of EPA's planned future 
rulemaking on

[[Page 12882]]

PIP (3:1) and other PBTs, as described in the October 2021 proposal, 
and EPA will be seeking more detailed comments and information on 
issues of this kind to determine whether additional measures as 
proposed would be practicable. Similarly, as part of that future 
rulemaking, EPA will assess how environmental justice could be promoted 
through further exposure reduction. While EPA has taken note of the 
information provided by the commenters on the reports of PIP (3:1) in 
products used by children, as well as the potential impacts on 
communities near importers of PIP (3:1), EPA emphasizes that the agency 
has not determined at what level exposure to PIP (3:1) represents a 
risk to human health or the environment. In the future rulemaking on 
PIP (3:1) and other PBTs, EPA intends to identify whether exposure to 
PIP (3:1) could be further practicably reduced, including by reducing 
or removing current exclusions from prohibitions or by modifying 
compliance timeframes. EPA emphasizes that, as part of the future 
rulemaking, information such as that provided in the comment will be 
considered.
    Regarding the concerns raised in both comments regarding tribes and 
environmental justice communities, EPA recognizes that while the 
compliance date extension may result in the potential for exposures 
that might otherwise have been precluded, EPA does not have information 
to suggest that such potential exposures are likely to be substantial 
or direct. For example, according to another commenter, the risk of 
exposure to PIP (3:1) to workers, consumers, and end-users is low 
because the PIP (3:1) is generally incorporated into the composition 
(polymer matrix) of the components that are internal to equipment 
accessible only by trained technicians (Ref. 14). In contrast, EPA does 
know that the use of PIP (3:1) for these articles in the near term is 
necessary to avoid significant disruption to the supply chains for 
certain important articles such as HVACR systems and personal 
electronic devices such as cellular telephones. Thus, an earlier 
compliance date would not be practicable or provide a reasonable 
transition period as is required by TSCA section 6(d)(1). More 
information on TSCA section 6(d) is provided in Unit IV.A. As EPA works 
to develop planned future rulemakings on PIP (3:1) and other PBTs, 
described in the October 2021 proposal, EPA will consider to what 
extent impacts to tribes and environmental justice communities could be 
reduced further and welcomes NTTC's interest in tribal consultation and 
developing a more effective process for determining whether an action 
is of tribal significance.
    EPA agrees with commenters' concern regarding several industries' 
lack of information on the presence of chemicals in their supply 
chains, particularly in imported articles. EPA notes that the 
commenters' recommendation for promulgation of a rule under TSCA 
section 8 is outside the scope of this compliance date extension.

D. Comments on Other Topics

    Commenters also provided information on other topics, including 
their interest in a ``manufactured-by'' date for articles, 
applicability of the rule to replacement parts, and establishment of a 
de minimus threshold. Additionally, a commenter requested clarification 
of downstream notification requirements.
1. Summary of Comments on Other Topics
    Many of the industry commenters stated that the compliance date 
referenced in the proposal should be a ``manufactured-by'' date, rather 
than a compliance date for a prohibition on processing and distribution 
in commerce. By this, the commenters generally meant that any article 
manufactured before the ``manufactured-by'' date could be processed and 
distributed in commerce at any time in the future without restriction. 
One commenter noted that the only date that the industry has control 
over is the date by which an article is manufactured (Ref. 15). The 
commenter asserted that manufacturers of consumer goods and EPA could 
more readily determine compliance using this approach because a 
``manufactured-by'' date can be confirmed based on unique product 
identifiers, such as lot or serial numbers, that are often marked on 
the article. According to the commenter, retailers do not have control 
over how quickly goods are sold and do not necessarily operate under a 
first-in, first-out system, which adds to the challenge of inventory 
management. The commenter further stated that in the absence of a 
``manufactured-by'' compliance date, retailers would be unable to 
determine whether a good was compliant, i.e., does not contain PIP 
(3:1). This commenter stated that an ``imported-by'' date would present 
challenges for the industry, primarily due to the potential for import 
delays associated with the process itself as well as with shipping, 
which have been exacerbated by the COVID-19 pandemic. However, the 
commenter stated that an ``imported-by'' date would be more manageable 
for the industry than a compliance date associated with distribution in 
commerce.
    Another commenter stated that the date of compliance should be a 
``manufactured-by'' date for domestically produced articles, and an 
``imported-by'' date for those articles produced abroad (Ref. 27). This 
commenter noted that distributors do not necessarily ship finished 
goods based on when they receive them, and it may be difficult for 
manufacturers, importers, distributors, and retailers to differentiate 
with certainty between goods that appear the same but may have 
different chemical compositions. This commenter further noted that a 
distribution in commerce prohibition is also unworkable because 
distribution in commerce has been very broadly interpreted by EPA to 
include, in some cases, any movement of a regulated product, even among 
facilities within the same business enterprise and its affiliates and 
subsidiaries.
    While some commenters (Refs. 15 and 27) stated that the only 
compliance date should be a ``manufactured-by'' date, or ``imported-
by'' date, other commenters indicated that a restriction on 
distribution in commerce might be workable as long as sufficient time 
was provided for articles manufactured before the ``manufactured-by'' 
date to move through the channels of trade to the end user. These 
commenters often used the phrase ``sell-through'' to describe the date 
by which sales of articles manufactured before the ``manufactured-by'' 
date must cease. Two commenters stated that a three-year ``sell-
through'' date would be adequate (Refs. 17 and 28). One commenter 
representing the retail industry indicated that the minimum time needed 
would be 18 months, based on more-detailed information provided by a 
retailer of electronic products (Ref. 29). This commenter noted that 
more time would be needed for products that tend to sell more slowly, 
such as furniture.
    Many of the industry commenters also expressed concern over the 
applicability of the January 2021 final rule's provisions only to some 
types of replacement parts. One commenter noted that HVACR and water-
heating equipment can safely remain in operation for as long as fifty 
years or more and, in many cases, buildings are designed and built 
around such equipment, making it difficult to replace (Ref. 28). This 
commenter contended that to ensure that this critical HVACR and water 
heating equipment can still function in the future, the components

[[Page 12883]]

and parts used in servicing the equipment must be able to be used 
without restriction. Another commenter stated that components or parts 
of articles typically are held by the manufacturer until needed for 
repair or replacement (Ref. 15). The commenter noted that electronic 
finished goods may have warranties upwards of fifteen years, meaning 
that components or parts of articles for repair or replacement can be 
kept in a manufacturer's warehouse for well over a decade. This 
commenter further explained that, when transitioning from one 
generation of an electronic finished good to the next, spare parts for 
the first generation are bought under a ``last time buy'' from the 
supplier to create the inventory of spare parts needed to support 
warranty claims. After this ``last time buy'', the tooling needed to 
manufacture those parts is decommissioned. The commenter further noted 
that spare and replacement parts or articles that contain PIP (3:1) 
would be expected to be in inventory well past the proposed October 
2024 compliance date, but the ``manufactured-by'' date approach would 
solve this problem.
    A number of commenters recommended that EPA establish a de minimis 
threshold for PIP (3:1) regulation, particularly in articles. 
Commenters gave a variety of reasons for why EPA should establish a 
threshold level. One commenter stated that the difficulty in 
determining whether PIP (3:1) is present in a component article was at 
least partly due to potential discomfort with claiming absolute 
``zero'' PIP (3:1) when there is ambiguity about how that will be 
determined or whether it is feasible to determine due to the potential 
for miniscule contamination (Ref. 30). This commenter contended that 
ambiguity in the material declaration process makes that process 
extremely time consuming and adds months to the process for each 
supplier. Other commenters also expressed concern for the potential for 
trace contamination and the feasibility of controlling such 
contamination (Refs. 15 and 31). Another commenter noted the high 
expense that is entailed by having to test down to the detection limit 
in the absence of a de minimis threshold (Ref. 21). Yet another 
commenter noted that other chemical regulatory programs such as REACH 
incorporate a de minimis threshold (Ref. 16).
    One commenter requested that EPA clarify the downstream 
notification requirements for manufacturers, processors, and 
distributors of PIP (3:1) for use in certain articles, and whether 
those requirements would be extended along with the compliance dates 
for the prohibition on processing and distribution of certain PIP (3:1) 
containing articles (Ref. 27).
2. EPA Response
    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, how long it may take to clear those 
PIP (3:1)-containing articles through the channels of trade, and the 
steps needed to phase PIP (3:1) out of articles in the supply chain. 
EPA will consider these comments in the context of the broader 
rulemaking EPA plans to undertake for PIP (3:1) and other PBT chemicals 
(Ref. 10). In that rulemaking, EPA plans to request public comment on 
the utility as well as the drawbacks of a ``manufactured-by'' date and 
the amount of time needed for articles to clear the channels of trade, 
the applicability of the rule to replacement parts, and a de minimis 
threshold in the context of reducing exposure to PIP (3:1) to the 
extent practicable. Regarding the request for clarification regarding 
downstream notification requirements, EPA is not extending the 
compliance date for downstream notification requirements to align with 
the extended compliance dates for PIP (3:1)-containing articles in this 
final rule. The downstream notification requirements apply only to the 
chemical PIP (3:1) and mixtures (products) that contain the chemical 
PIP (3:1); they are not applicable to PIP (3:1) containing articles. 
However, EPA is conforming the required downstream notification 
language with the compliance date extensions. Details of these 
amendments are in Unit IV.C.

IV. Provisions of this Final Rule

A. Establishing a Revised Compliance Date

    TSCA section 6(d) includes a number of provisions relating to 
establishment of effective or compliance dates in rules promulgated 
under TSCA section 6. 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 TSCA section 
6(d)(1)(D) requires EPA to specify mandatory compliance dates for full 
implementation of ban or phase-out requirements under a TSCA section 
6(a) rule, 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) is 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 
January 2021 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 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 allowed 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 was both ``as soon 
as practicable'' and provides a ``reasonable transition period.''
    As noted in the September 2021 final rule and the October 2021 
proposal, 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 (Refs. 2 and 
10). Absent

[[Page 12884]]

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 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.

B. Compliance Dates in this Final Rule

    Based upon EPA's analysis of the comments received on the October 
2021 proposal, along with the information provided in comments received 
on the March 2021 notification and request for comments, EPA is 
extending until October 31, 2024, the compliance date for the 
prohibition on processing and distribution in commerce of PIP (3:1)-
containing articles, and the PIP (3:1) used to make those articles. As 
discussed in the October 2021 proposal, and in the response to comments 
earlier, the October 2024 compliance date is consistent with the lower 
end of the time estimates provided by commenters on the March 2021 
notification and request for comments. As described in Unit III.A., 
approximately one-third of the commenters on the October 2021 proposal 
estimated that they would be able to comply with the October 2024 
compliance date, albeit with some reservations related to replacement 
parts, the ability to sell articles produced before the compliance 
date, and COVID-19 pandemic impacts on global supply chains. EPA has 
determined that this further extension of the March 8, 2022 compliance 
date to October 31, 2024, for the prohibition on processing and 
distribution in commerce is necessary to avoid significant disruption 
in the supply chains for certain articles, such as HVACR equipment and 
consumer electronics, and will provide a measure of regulatory 
certainty while industry collects and submits additional information to 
inform whether a further compliance date extension may be necessary for 
certain industry sectors, such as the semiconductor manufacturing 
industry. While EPA expects that that in several industries this 
extension would be sufficient, EPA also recognizes the challenges 
described by commenters with complex supply chains and the potential 
need for a longer compliance date extension in certain industries. The 
compliance date extension to October 31, 2024, will allow EPA 
additional time to further evaluate the need to again extend the 
compliance deadlines for PIP (3:1) for certain industries such as the 
semiconductor manufacturing industry. As discussed in the October 2021 
proposal and in more detail in Unit II.C., EPA plans to consider this 
information in the context of revisions to PIP (3:1) and other PBT 
rules more generally.
    EPA is also extending the recordkeeping compliance date in 40 CFR 
751.407(d) for 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, it would be difficult, if not impossible, for them to supply 
the required information. Additionally, as described earlier, a public 
comment requested that EPA make the compliance date for recordkeeping 
for excluded articles, such as new and replacement automotive parts, 
consistent with the recordkeeping compliance date for articles that are 
the subject of this rulemaking (Ref. 20). Based on the comments 
received from the non-road mobile machinery and other similar 
industries, EPA understands that not all suppliers eligible for the 
motor vehicle parts exclusion participate in the automotive industry's 
recordkeeping system. Therefore, EPA is extending the recordkeeping 
compliance dates specified in paragraphs 40 CFR 751.407 (a)(2)(iii) and 
(d)(4) from March 8, 2022, to October 31, 2024. However, the compliance 
dates specified in 40 CFR 751.407(a)(2)(ii) remain in effect.
    EPA also recognizes that, for many industries, the collection of 
information on the presence of PIP (3:1) in their supply chains is 
still ongoing. As discussed in the October 2021 proposal, EPA will 
consider any additional information of this kind in the context of the 
broader rulemaking EPA plans to undertake for PIP (3:1) and other PBT 
chemicals (Ref. 10). In that future rulemaking, EPA also plans to 
consider the comments, discussed in Unit III.D., regarding a 
``manufactured-by'' date, replacement parts, and a de minimis 
threshold.

C. Conforming Amendments to the Downstream Notification Requirements

    In reviewing the comments received on the October 2021 proposal 
(e.g., Ref. 27), EPA realized that the downstream notification 
requirements in the January 2021 final rule could be misleading, 
resulting in potential confusion for the regulated community. 40 CFR 
751.407(e) requires manufacturers, processors, and distributors in 
commerce of PIP (3:1) and PIP (3:1)-containing products to provide 
notification of the restrictions on the chemical substance to their 
customers, either through specific mandatory language on a Safety Data 
Sheet (SDS) or a label. EPA notes that the notification requirements 
only apply to the chemical PIP (3:1) or to products containing the 
chemical PIP (3:1). As discussed in Unit II.A., the term ``product'' 
excludes articles. Therefore, the downstream notification requirements 
on 40 CFR 751.407(e) do not apply to PIP (3:1)-containing articles.
    However, the mandatory language in 40 CFR 751.407(e)(3)(i) through 
(iii) does not reflect the fact that EPA is extending the compliance 
date for the prohibition on processing and distribution in commerce of 
certain PIP (3:1)-containing articles. Thus, purchasers of PIP (3:1) 
and PIP (3:1)-containing products who intend to use them in articles 
may be confused by the mandatory language on an SDS or a label that 
says that they may not use the PIP (3:1) or PIP (3:1)-containing 
product in this manner. Therefore, EPA is amending the mandatory 
language at 40 CFR 751.407(e)(3)(i) through (iii) to conform to the 
compliance date extension for the prohibition on processing and 
distribution in commerce of certain PIP (3:1)-containing articles.

V. 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).

[[Page 12885]]

3. 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.
4. EPA. Regulation of Persistent, Bioaccumulative, and Toxic 
Chemicals Under TSCA Section 6(h); Phenol, Isopropylated Phosphate 
(3:1); Request for Comments. Federal Register (86 FR 14398, March 
16, 2021) (FRL-10021-08).
5. 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).
6. 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).
7. 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).
8. 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).
9. Comments submitted to EPA. Regulation of Persistent, 
Bioaccumulative, and Toxic Chemicals Under TSCA Section 6(h). EPA-
HQ-OPPT-2021-0202-0001.
10. EPA. Regulation of Persistent, Bioaccumulative, and Toxic 
Chemicals Under TSCA Section 6(h); Phenol, Isopropylated Phosphate 
(3:1); Further Compliance Date Extension. Federal Register (86 FR 
59684, October 28, 2021) (FRL-6015.6-01-OCSPP).
11. 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.
12. Comment submitted by SEMI to EPA on December 22, 2021. EPA-HQ-
OPPT-2021-0598-0038.
13. Comments submitted to EPA. Regulation of Persistent, 
Bioaccumulative, and Toxic Chemicals Under TSCA Section 6(h); 
Phenol, Isopropylated Phosphate (3:1); Further Compliance Date 
Extension. EPA-HQ-OPPT-2021-0598-0001.
14. Comment submitted by Air Conditioning, Refrigeration, and 
Heating Institute (AHRI) to EPA on December 21, 2021. EPA-HQ-OPPT-
2021-0598-0027.
15. Comment submitted by Consumer Technology Association (CTA), IPC 
and Information Technology Industry Council (ITI) to EPA on December 
21, 2021. EPA-HQ-OPPT-2021-0598-0030.
16. Comment submitted by the Alliance of Home Appliance 
Manufacturers (AHAM) to EPA on December 23, 2021. EPA-HQ-OPPT-2021-
0598-0033.
17. Comment submitted by the National Electrical Manufacturers 
Association (NEMA) to EPA on December 22, 2021. EPA-HQ-OPPT-2021-
0598-0031.
18. Comment submitted by the Semiconductor Industry Association 
(SIA) to EPA on December 21, 2021. EPA-HQ-OPPT-2021-0598-0025.
19. Comment submitted by Hitachi High-Tech America, Inc. (HTA) to 
EPA on December 22, 2021. EPA-HQ-OPPT-2021-0598-0041.
20. Comment submitted by Alliance for Automotive Innovation and 
Motor & Equipment Manufacturers Association (MEMA) to EPA on 
December 23, 2021. EPA-HQ-OPPT-2021-0598-0046.
21. Comment submitted by the Association of Equipment Manufacturers 
(AEM) to EPA on December 23, 2021. EPA-HQ-OPPT-2021-0598-0047.
22. Comment submitted by Truck and Engine Manufacturers Association 
(EMA) to EPA on December 23, 2021. EPA-HQ-OPPT-2021-0598-0044.
23. Comment submitted by Kubota North America Corporation (KNA) to 
EPA on December 21, 2021. EPA-HQ-OPPT-2021-0598-0028.
24. Comment submitted by the Outdoor Power Equipment Institute 
(OPEI) to EPA on December 22, 2021. EPA-HQ-OPPT-2021-0598-0032.
25. Comment submitted by Alaska Community Action on Toxics et al. to 
EPA on December 23, 2021. EPA-HQ-OPPT-2021-0598-0043.
26. Comment submitted by National Tribal Toxics Council (NTTC) To 
EPA on December 27, 2021. EPA-HQ-OPPT-2021-0598-0057.
27. Comment submitted by Chemical Users Coalition (CUC) to EPA on 
December 22, 2021. EPA-HQ-OPPT-2021-0598-0036.
28. Comment submitted by Air Conditioning, Heating, and 
Refrigeration Institute (AHRI) to EPA on December 21, 2022. EPA-HQ-
OPPT-2021-0598-0027.
29. Comment submitted by the Retail Industry Leaders Association 
(RILA) to EPA on December 27, 2021. EPA-HQ-OPPT-2021-0598-0055.
30. Comment submitted by Advanced Medical Technology Association 
(AdvaMed) to EPA on December 17, 2021. EPA-HQ-OPPT-2021-0598-0022.
31. Comment submitted by Thermo Fisher Scientific to EPA on December 
24, 2021. EPA-HQ-OPPT-2021-0598-0049.

VI. 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.

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. 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, 5 
U.S.C. 601 et seq. 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.

[[Page 12886]]

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.

K. Congressional Review Act (CRA)

    This action is subject to the CRA, 5 U.S.C. 801 et seq., and EPA 
will submit a report containing this rule and other required 
information to each House of the Congress and to the Comptroller 
General of the United States. This action is not a ``major rule'' as 
defined by 5 U.S.C. 804(2).

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, 40 CFR part 751 
is amended 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).


0
2. Amend Sec.  751.407:
0
a. In paragraphs (a)(2)(iii) and (d)(4) by removing ``March 8, 2022'' 
and adding ``October 31, 2024'' in its place; and
0
b. By revising paragraphs (e)(3)(i) through (iii).
    The revisions read as follows:


Sec.  751.407   PIP (3:1).

* * * * *
    (e) * * *
    (3) * * *
    (i) SDS Section 1(c). ``The Environmental Protection Agency 
prohibits processing and distribution of this chemical/product for any 
use other than: (1) In hydraulic fluids either for the aviation 
industry or to meet military specifications for safety and performance 
where no alternative chemical is available that meets U.S. Department 
of Defense specification requirements, (2) lubricants and greases, (3) 
New or replacement parts for motor and aerospace vehicles, (4) as an 
intermediate in the manufacture of cyanoacrylate glue, (5) In 
specialized engine air filters for locomotive and marine applications, 
(6) In adhesives and sealants before January 6, 2025, after which use 
in adhesives and sealants is prohibited, and (7) in other articles 
before October 31, 2024, after which use in articles other than new or 
replacement parts for motor and aerospace vehicles or specialized 
engine air filters for locomotive and marine applications is 
prohibited. In addition, all persons are prohibited from releasing PIP 
(3:1) to water during manufacturing, processing, and distribution in 
commerce, and must follow all existing regulations and best practices 
to prevent the release of PIP (3:1) to water during the commercial use 
of PIP (3:1).''; and
    (ii) SDS Section 15. ``The Environmental Protection Agency 
prohibits processing and distribution of this chemical/product for any 
use other than: (1) In hydraulic fluids either for the aviation 
industry or to meet military specifications for safety and performance 
where no alternative chemical is available that meets U.S. Department 
of Defense specification requirements, (2) lubricants and greases, (3) 
new or replacement parts for motor and aerospace vehicles, (4) as an 
intermediate in the manufacture of cyanoacrylate glue, (5) In 
specialized engine air filters for locomotive and marine applications, 
(6) in adhesives and sealants before January 6, 2025, after which use 
in adhesives and sealants is prohibited, and (7) in other articles 
before October 31, 2024, after which use in articles other than new or 
replacement parts for motor and aerospace vehicles or specialized 
engine air filters for locomotive and marine applications is 
prohibited. In addition, all persons are prohibited from releasing PIP 
(3:1) to water during manufacturing, processing, and distribution in 
commerce, and must follow all existing regulations and best practices 
to prevent the release of PIP (3:1) to water during the commercial use 
of PIP (3:1).''; or
    (iii) Labeling. ``The Environmental Protection Agency prohibits 
processing and distribution of this chemical/product for any use other 
than: (1) In hydraulic fluids either for the aviation industry or to 
meet military specifications for safety and performance where no 
alternative chemical is available that meets U.S. Department of Defense 
specification

[[Page 12887]]

requirements, (2) lubricants and greases, (3) new or replacement parts 
for motor and aerospace vehicles, (4) as an intermediate in the 
manufacture of cyanoacrylate glue, (5) In specialized engine air 
filters for locomotive and marine applications, (6) In adhesives and 
sealants before January 6, 2025, after which use in adhesives and 
sealants is prohibited, and (7) in other articles before October 31, 
2024, after which use in articles other than new or replacement parts 
for motor and aerospace vehicles or specialized engine air filters for 
locomotive and marine applications is prohibited. In addition, all 
persons are prohibited from releasing PIP (3:1) to water during 
manufacturing, processing, and distribution in commerce, and must 
follow all existing regulations and best practices to prevent the 
release of PIP (3:1) to water during the commercial use of PIP (3:1).''
* * * * *
[FR Doc. 2022-04945 Filed 3-7-22; 8:45 am]
BILLING CODE 6560-50-P


