
[Federal Register Volume 88, Number 225 (Friday, November 24, 2023)]
[Proposed Rules]
[Pages 82287-82312]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-25714]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 751

[EPA-HQ-OPPT-2023-0376; FRL-9145-01-OCSPP]
RIN 2070-AL02


Decabromodiphenyl Ether and Phenol, Isopropylated Phosphate 
(3:1); Revision to the Regulation of Persistent, Bioaccumulative, and 
Toxic Chemicals Under the Toxic Substances Control Act (TSCA)

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The Environmental Protection Agency (EPA) is proposing 
revisions to the regulations for decabromodiphenyl ether (decaBDE) and 
phenol, isopropylated phosphate (3:1) (PIP (3:1)), two of the five 
persistent, bioaccumulative, and toxic (PBT) chemicals addressed in 
final rules issued under the Toxic Substances Control Act (TSCA) in 
January 2021. After receiving additional comments following the 
issuance of the 2021 PBT final rules, the Agency has determined that 
revisions to the decaBDE and PIP (3:1) regulations are necessary to 
address implementation issues and to reduce further exposures. As 
required under TSCA, these proposed requirements would, if finalized, 
reduce the potential for exposures to humans and the environment to 
decaBDE and PIP (3:1) to the extent practicable. The Agency is not 
proposing to revise the existing regulations for the other three PBT 
chemicals (2,4,6-TTBP, HCBD, and PCTP) at this time.

DATES: Comments must be received on or before January 8, 2024.

ADDRESSES: Submit your comments, identified by docket identification 
(ID) number EPA-HQ-OPPT-2023-0376, through 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 and visiting the 
docket, along with more information about dockets generally, is 
available at https://www.epa.gov/dockets.

FOR FURTHER INFORMATION CONTACT: 
    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].
    For technical information regarding decaBDE, contact: Brooke 
Porter, Existing Chemicals Risk Management Division (7404M), Office of 
Pollution Prevention and Toxics, Environmental Protection Agency, 1200 
Pennsylvania Ave. NW, Washington, DC 20460-0001; telephone number: 
(202) 564-6388; email address: [email protected].
    For technical information regarding PIP (3:1), contact: Scott 
Drewes, Existing Chemicals Risk Management Division (7404M), Office of 
Pollution Prevention and Toxics, Environmental Protection Agency, 1200 
Pennsylvania Ave. NW, Washington, DC 20460-0001; telephone number: 
(202) 564-8833; email address: [email protected].

SUPPLEMENTARY INFORMATION: 

I. Executive Summary

A. Does this action apply to me?

    You may be affected by this action if you manufacture (including 
import), process, distribute in commerce, or use decaBDE or decaBDE-
containing products or articles. Such uses for decaBDE may include but 
are not limited to wire and cable insulation for nuclear power 
generation facilities, plastic shipping pallets, and imported articles 
such as replacement parts for aerospace and automotive parts. You may 
also be affected by this action if you manufacture (including import), 
process, distribute in commerce, or use PIP (3:1) or PIP (3:1)-
containing products or articles. Such uses for PIP (3:1) may include 
flame retardants in plastics, functional fluids in aerospace and 
industrial machinery, and 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:
     Adhesive Manufacturing (NAICS Code 325520);
     Air and Gas Compressor Manufacturing (NAICS Code 333912);
     Air-Conditioning and Warm Air Heating Equipment and 
Commercial and Industrial Refrigeration Equipment Manufacturing (NAICS 
Code 333415);

[[Page 82288]]

     Aircraft Engine and Engine Parts Manufacturing (NAICS Code 
336412);
     Aircraft Manufacturing (NAICS Code 336411);
     All Other Basic Organic Chemical Manufacturing (NAICS Code 
325199);
     All Other Miscellaneous General Purpose Machinery 
Manufacturing (NAICS Code 333998);
     All Other Plastics Product Manufacturing (NAICS Code 
326199);
     All Other Transportation Equipment Manufacturing (NAICS 
Code 336999);
     Analytical Laboratory Instrument Manufacturing (NAICS Code 
334516);
     Appliance Repair and Maintenance (NAICS Code 811412);
     Audio and Video Equipment Manufacturing (NAICS Code 
334310);
     Automobile and Light Duty Motor Vehicle Manufacturing 
(NAICS Code 336110);
     Automobile and Other Motor Vehicle Merchant Wholesalers 
(NAICS Code 423110);
     Boat Building (NAICS Code 336612);
     Broadwoven Fabric Mills (NAICS Code 313210);
     Computer and Computer Peripheral Equipment and Software 
Merchant Wholesalers (NAICS Code 432430);
     Computer Storage Device Manufacturing (NAICS Code 334112);
     Construction Machinery Manufacturing (NAICS Code 333120);
     Current-Carrying Wiring Device Manufacturing (NAICS Code 
335931);
     Custom Compounding of Purchased Resins (NAICS Code 
325991);
     Electronic Computer Manufacturing (NAICS Code 334111);
     Farm and Garden Machinery and Equipment Merchant 
Wholesalers (NAICS Code 423820);
     Farm Machinery and Equipment Manufacturing (NAICS Code 
333111);
     Guided Missile and Space Vehicle Manufacturing (NAICS Code 
336414);
     Guided Missile and Space Vehicle Propulsion Unit Parts 
Manufacturing (NAICS Code 336415);
     Heavy Duty Truck Manufacturing (NAICS Code 336120);
     Household Appliances, Electric Housewares, and Consumer 
Electronics Merchant Wholesalers (NAICS Code 423620);
     Industrial Machinery and Equipment Merchant Wholesalers 
(NAICS Code 423830);
     Industrial Supplies Merchant Wholesalers (NAICS Code 
423840);
     Industrial Truck, Tractor, Trailer and Stacker Machinery 
Manufacturing (NAICS Code 333924);
     Instruments and Related Products Manufacturing for 
Measuring, Displaying, and Controlling Industrial Process Variables 
(NAICS 334513);
     Lawn and Garden Tractor and Home Lawn and Garden Equipment 
Manufacturing (NAICS Code 333112);
     Manufacturing and Reproducing Magnetic and Optical Media 
(NAICS Code 334610);
     Materials Recovery Facilities (NAICS Code 562920);
     Medical, Dental, and Hospital Equipment and Supplies 
Merchant Wholesalers (NAICS Code 423450);
     Mining Machinery and Equipment Manufacturing (NAICS Code 
333131);
     Miscellaneous Intermediation (NAICS Code 523910);
     Motor and Generator Manufacturing (NAICS Code 335312);
     Motor Vehicle Body Manufacturing (NAICS Code 336211);
     Motor Vehicle Electrical and Electronic Equipment 
Manufacturing (NAICS Code 336320);
     Motor Vehicle Gasoline Engine and Engine Parts 
Manufacturing (NAICS Code 336310);
     Motor Vehicle Supplies and New Parts Merchant Wholesalers 
(NAICS Code 423120);
     Motorcycle, Bicycle and Parts Manufacturing (NAICS Code 
336991);
     New Car Dealers (NAICS Code 441110);
     Nuclear Electric Power Generation (NAICS Code 221113);
     Other Aircraft Part and Auxiliary Equipment Manufacturing 
(NAICS Code 336413);
     Other Basic Inorganic Chemical Manufacturing (NAICS Code 
325180);
     Other Chemical and Allied Products Merchant Wholesalers 
(NAICS Code 424690);
     Other Commercial and Industrial Machinery and Equipment 
Rental and Leasing (NAICS Code 532490);
     Other Communications and Energy Wire Manufacturing (NAICS 
Code 335929);
     Other Communications Equipment Manufacturing (NAICS Code 
334290);
     Other Electronic Component Manufacturing (NAICS Code 
334419);
     Other Electronic Parts and Equipment Merchant Wholesalers 
(NAICS Code 432690);
     Other Guided Missile and Space Vehicle Parts and Auxiliary 
Equipment Manufacturing (NAICS Code 336419);
     Other Motor Vehicle Parts Manufacturing (NAICS Code 
336390);
     Paint and Coating Manufacturing (NAICS Code 325510);
     Petroleum Lubricating Oil and Grease Manufacturing 
(324191);
     Petroleum Refineries (NAICS Code 324110);
     Plastics Material and Resin Manufacturing (NAICS Code 
325211);
     Plastics Product Manufacturing (NAICS Code 3261);
     Plumbing, Heating, and Air-Conditioning Contractors (NAICS 
Code 238220);
     Relay and Industrial Control Manufacturing (NAICS Code 
335314);
     Semiconductor and Related Device Manufacturing (NAICS Code 
334413);
     Semiconductor Machinery Manufacturing (NAICS Code 333242);
     Surface Active Agency Manufacturing (NAICS Code 325613); 
and
     Surgical Appliance and Supplies Manufacturing (NAICS Code 
339113).
    If you have any questions regarding the applicability of this 
action to a particular entity, consult the technical information 
contact listed under FOR FURTHER INFORMATION CONTACT.

B. What is the Agency's authority for taking this action?

    TSCA section 6(h), 15 U.S.C. 2601 et seq., directs EPA to take 
expedited action to complete TSCA section 6(a) rules on certain PBT 
chemical substances. EPA must apply one or more of the requirements 
listed in TSCA section 6(a) to the extent necessary to meet the TSCA 
section 6(h)(4) statutory standard. More specifically, EPA must take 
action on those chemical substances identified in the 2014 Update to 
the TSCA Work Plan for Chemical Assessments (Ref. 1) that, among other 
factors, EPA has a reasonable basis to conclude are toxic and that with 
respect to persistence and bioaccumulation score high for one and 
either high or moderate for the other, pursuant to the TSCA Work Plan 
Chemicals: Methods Document (Ref. 2).
    In response to this directive, in January 2021, EPA promulgated 
five rules to regulate the following five PBT chemical substances: 
decaBDE; PIP (3:1); 2,4,6-TTBP (CASRN 732-26-3); HCBD (CASRN 87-68-3); 
and PCTP (CASRN 133-49-3) (Refs. 3, 4, 5, 6, and 7). With the 
obligation to promulgate these rules, the Agency also has the authority 
to amend them (e.g., 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). Based on information submitted by regulated entities since 
the publication of the 2021 decaBDE and PIP (3:1) final rules, the 
Agency has determined that amendments to both rules are necessary to 
address

[[Page 82289]]

implementation issues and to further reduce exposure to these chemical 
substances to the extent practicable.

C. What action is the Agency taking?

    EPA is proposing revisions to the 2021 decaBDE and PIP (3:1) final 
rules under TSCA. EPA is not proposing revisions to the other three PBT 
rules issued under TSCA section 6(h) for 2,4,6-TTBP, HCBD, and PCTP at 
this time.
    1. Decabromodiphenyl ether (decaBDE).
    DecaBDE is a flame retardant that has been widely used in textiles, 
plastics, adhesives, and polyurethane foam. In this action, EPA is 
proposing revisions to the 2021 final rule to require the use of 
personal protective equipment (PPE) during certain domestic 
manufacturing and processing of decaBDE and decaBDE-containing products 
and articles and to require a label on plastic shipping pallets that 
are known to contain decaBDE. EPA is also proposing to prohibit 
releases to water from manufacturing, processing, and distribution in 
commerce of decaBDE. EPA is proposing to extend the compliance date for 
the phase-out of processing and distribution in commerce of decaBDE-
containing wire and cable insulation for nuclear power generation 
facilities and is proposing to add an export notification requirement 
for decaBDE-containing wire and cable for nuclear power generation 
facilities. These proposed revisions are discussed further in Unit 
III.D.
    2. Phenol, isopropylated phosphate (3:1) (PIP (3:1)).
    PIP (3:1) is a flame retardant, a plasticizer, and an anti-
compressibility and anti-wear additive. It is used in lubricants and 
hydraulic fluids and in the manufacture of other compounds. For PIP 
(3:1), EPA is proposing revisions to the 2021 final rule to require the 
use of PPE for the domestic manufacturing and processing of PIP (3:1) 
and certain PIP (3:1)-containing products and articles, and to phase-in 
prohibitions on processing and distribution for certain uses. EPA is 
also proposing to add new exclusions from the prohibitions on 
processing and distribution in commerce of PIP (3:1) for use in wire 
harnesses and electric circuit boards and the processing and 
distribution in commerce of such PIP (3:1)-containing harnesses and 
circuit boards. EPA also is proposing a new 5-year compliance timeframe 
for the prohibition of processing and distribution in commerce of PIP 
(3:1), so that it may be used as an ingredient of a pesticide product 
(i.e., a pesticide product registered under the Federal Insecticide, 
Fungicide, and Rodenticide Act (FIFRA) for use in anti-fouling paint). 
EPA is not proposing to revise the October 2024 compliance date for 
articles not otherwise covered by an exclusion from prohibition or by 
an existing or newly proposed extension to a phase-out compliance 
deadline.

D. Why is the Agency taking this action?

    In accordance with the Executive Order 13990, ``Protecting Public 
Health and the Environment and Restoring Science to Tackle the Climate 
Crisis,'' (86 FR 7037, January 25, 2021), on September 3, 2021, EPA 
announced its intention to review the five PBT final rules issued on 
January 6, 2021. The Agency planned to determine whether the rules were 
consistent with the Administration's policy to limit exposure to 
dangerous chemicals and to identify additional actions that could be 
taken to address implementation issues and to reduce further exposures 
to these PBT chemicals to the extent practicable, as directed by TSCA 
section 6(h). At that time, EPA also requested public comment in the 
Federal Register on the five 2021 PBT final rules (Refs. 8 and 9). In 
particular, EPA sought comment on whether the rules sufficiently 
reduced exposures to these chemicals, including exposures to 
potentially exposed or susceptible subpopulations and the environment; 
on implementation issues associated with the 2021 PBT final rules; on 
compliance issues associated with the 2021 PBT final rules; and on 
whether to consider additional or alternative regulatory measures or 
approaches.
    In 2021, shortly after the PBT final rules were published, numerous 
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 the 
processing and distribution of PIP (3:1) and PIP (3:1)-containing 
articles (Ref. 10). In response to stakeholder input, in an immediately 
effective final rule in September 2021, EPA extended the compliance 
deadline for processing and distribution in commerce of PIP (3:1) for 
use in articles and PIP (3:1)-containing articles, unless subject to an 
exclusion from or phase-in of prohibition, to March 8, 2022 (Ref. 11). 
In October 2021, EPA proposed a new extended compliance deadline for 
processing and distribution in commerce of PIP (3:1) for use in 
articles and PIP (3:1)-containing articles, unless subject to an 
exclusion from or phase-in of prohibition, to October 31, 2024, and 
finalized that extended compliance deadline in March 2022 (Refs. 12 and 
13). EPA similarly amended the compliance deadline for recordkeeping 
requirements for articles in those rulemakings. Additionally, EPA 
responded to the comments received on the March 2021 notification that 
were relevant to the PIP (3:1) compliance deadline extension and 
related issues when the Agency extended the compliance deadlines, in 
both the September 2021 PIP (3:1) final rule and in an October 2021 PIP 
(3:1) proposed rule (Refs. 11 and 12). EPA reasoned that these 
extensions would avoid significant disruption in the supply chains for 
certain articles necessary to the electronics and electrical 
manufacturing sector, while EPA determined whether any further 
compliance date extensions are necessary for certain industry sectors, 
including the semiconductor and manufacture equipment.
    EPA also announced in the September 2021 PIP (3:1) final rule, 
October 2021 PIP (3:1) proposed rule, and the March 2022 PIP (3:1) 
final rule that the Agency intended to consider any additional 
information received to further reduce exposures and promote 
environmental justice to better protect human health and the 
environment (Refs. 11, 12, and 13).

E. What are the estimated incremental impacts of this action?

    EPA's Economic Analysis of the estimated impacts with this 
rulemaking can be found in the rulemaking docket (Ref. 14). As 
described in more detail in the Economic Analysis in Unit IV. and is 
briefly summarized here.
1. Benefits
    While EPA was not able to quantify the benefits of reducing human 
and environmental exposures to decaBDE or PIP (3:1), the Economic 
Analysis qualitatively discusses the benefits of reducing exposure 
under this proposed rule, as summarized in Unit IV (Ref. 14). As 
discussed in the 2021 PBT final rules, and in Unit II.A., and 
consistent with TSCA section 6(h)(2), EPA did not perform a risk 
evaluation for decaBDE or PIP (3:1), nor did EPA develop quantitative 
risk estimates.
2. Costs
    Total quantified annualized social costs for this proposed rule are 
approximately $389 million at a 3% discount rates, and $416 million at 
a 7% discount rate. Of the proposed rule costs, those associated with 
decaBDE alone were estimated at $1,700 at a 3% discount rate and $1,800 
at a 7% discount rate. Costs associated with PIP (3:1) were estimated 
$389 million and

[[Page 82290]]

$416 million (at 3 and 7% discount rates, respectively.)
3. Small Entity Impacts
    This proposed rule, if finalized, would impact approximately 16,205 
small businesses, all of which pertained to PIP (3:1) and none for 
decaBDE. Of these, 1,399 are expected to incur cost impacts between 1% 
and 3% of their annual revenue. No entities are expected to be impacted 
above 3% of their annual revenue.
4. Environmental Justice
    Since a risk evaluation was not conducted, EPA's understanding of 
the extent to which reductions in exposure might reduce risks for 
communities with Environmental Justice (EJ) concerns is limited. In the 
Economic Analysis accompanying this rule (Ref 14), EPA relied on 
available relevant data sources for PIP (3:1) and decaBDE, including 
the U.S. EPA's CDR, the ToxicsStatistics, and others to assess the 
economic implications of the proposed rule. Data, however, are not 
sufficiently comprehensive to estimate the extent to which the proposed 
rule would reduce existing disproportionate impacts on communities with 
EJ concerns. In addition, only a small subset of the specific 
facilities (14 facilities reported to 2020 CDR) using decaBDE and PIP 
(3:1) have been identified, so a proximity analysis examining the 
characteristics of the communities surrounding the known facilities 
would not be representative of all exposed communities.
    Given the lack of available data, EPA believes that it is not 
practicable to assess whether this action is likely to result in new 
disproportionate impacts or exacerbate any existing disproportionate 
impacts on communities with EJ concerns. EPA also believes that the 
restrictions placed on decaBDE and PIP (3:1) through this proposed rule 
would reduce the potential exposures and risks associated with the 
manufacture, processing, and use of these chemicals. At a minimum EPA 
believes this proposed rule would not exacerbate any baseline 
environmental justice concerns and would increase the level of 
protection for all affected populations without having any 
disproportionate and adverse human health or environmental effects on 
any population, including children. Certain exclusions from prohibition 
and extensions of compliance dates beyond those adopted in the 2021 PBT 
final rules, however, may partially delay anticipated reductions in 
exposure.
5. Children's Environmental Health
    Under the 2021 EPA Policy on Children's Health, the Agency 
considers the risks to infants and children consistently and explicitly 
during its decision-making process (Ref. 15). This proposed rule, if 
finalized, would reduce the potential exposures to decaBDE and PIP 
(3:1) that could occur from activities that would be prohibited under 
this proposed rule for the general population and for potentially 
exposed or susceptible subpopulations such as children. Certain 
exclusions and extensions of compliance dates beyond those adopted in 
the 2021 PBT final rules or subsequent PIP (3:1) final rules, however, 
may partially delay these reductions in exposure. More information can 
be found in the Exposure and Use Assessment document (Ref. 16).
6. Effects on State, Local, and Tribal Governments
    This proposed rule, if finalized, would not have any significant or 
unique effects on small governments, or federalism, or tribal 
implications.

F. What should I consider as I prepare my comments for EPA?

1. Submitting CBI
    Do not submit CBI to EPA through https://www.regulations.gov or 
email. If you wish to include CBI in your comment, please follow the 
applicable instructions at https://www.epa.gov/dockets/commenting-epa-dockets#rules and clearly mark the part or all of the information that 
you claim to be 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.html.

II. Background

A. History of this Rulemaking

1. The 2021 PBT Final Rules
    a. DecaBDE. EPA published a final rule in the Federal Register on 
January 6, 2021, to address its obligations under TSCA section 6(h) for 
decaBDE (86 FR 880; FRL-10018-87) (Ref. 3). EPA determined in the final 
rule that decaBDE 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 under the conditions of use, exposure to 
decaBDE was likely to the general population, to a potentially exposed 
or susceptible subpopulation, and to the environment. The 2021 decaBDE 
final rule generally prohibits the manufacture (including import) and 
processing of decaBDE, and products and articles containing decaBDE, as 
of March 8, 2021. Distribution in commerce of products and articles to 
which decaBDE has been added is prohibited as of January 6, 2022. The 
2021 decaBDE final rule also included phase-in compliance dates and 
exclusions from prohibition:
     Allowing 18 months to phase out any manufacture, 
processing, and distribution in commerce of decaBDE for use in curtains 
in the hospitality industry, and curtains to which decaBDE has been 
added.
     Providing two years to phase out any processing and 
distribution in commerce of decaBDE for use in wire and cable 
insulation in nuclear power generation facilities, and decaBDE-
containing wire and cable insulation.
     Providing three years to phase out any manufacture, 
processing, and distribution in commerce of decaBDE for use in parts 
installed in and distributed as part of new aerospace vehicles, and 
parts for such vehicles to which decaBDE has been added.
     Allowing the import, processing, and distribution in 
commerce of aerospace vehicles manufactured before January 8, 2024, 
that contain decaBDE in any part, through the end of the aerospace 
vehicles' service lives.
     Allowing the manufacturing, processing, and distribution 
in commerce of aerospace vehicles that contain decaBDE in replacement 
parts and replacement parts to which decaBDE has been added for such 
vehicles, through the end of the aerospace vehicles' service lives.
     Allowing the manufacturing, processing, and distribution 
in commerce of motor vehicles the contain decaBDE in replacement parts 
and replacement parts to which decaBDE has been added, through the end 
of the motor vehicles' service lives or 2036, whichever is earlier.
     Allowing the distribution in commerce of plastic shipping 
pallets manufactured prior to March 8, 2021, that contain decaBDE 
through the end of the plastic shipping pallets' service lives.
     Excluding from the general prohibition on processing and 
distribution in commerce for recycling

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of decaBDE-containing plastic products and articles (i.e., the plastic 
to be recycled is from products and articles that were originally made 
with decaBDE), and for decaBDE-containing products or articles made 
from such recycled plastic, processing and distributing where no new 
decaBDE is added during the recycling or production process.
    For more information related to the 2021 decaBDE final rule, see 40 
CFR 751.405.
    b. PIP (3:1). EPA published a final rule for PIP (3:1) in the 
Federal Register on January 6, 2021 (Ref. 4). 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 under the conditions of use, exposure to PIP 
(3:1) was likely to the general population, to a potentially exposed or 
susceptible subpopulation, and to the environment. The 2021 PIP (3:1) 
final rule generally prohibited processing and distribution in commerce 
of PIP (3:1), and products or articles containing PIP (3:1) after March 
8, 2021, for all uses, except for those with different compliance dates 
or exclusions from prohibition. The 2021 PIP (3:1) final rules also 
included the following compliance dates:
     Allowing until January 6, 2025, for the processing and 
distributing in commerce of PIP (3:1) for use in adhesives and 
sealants, PIP (3:1)-containing products for use in adhesives and 
sealants, and PIP (3:1)-containing adhesives and sealants; and
     Allowing until January 1, 2022, for the processing and 
distributing in commerce of PIP (3:1) for use in photographic printing 
articles and PIP (3:1)-containing photographic printing articles.
    In addition, the 2021 PIP (3:1) final rule included the following 
exclusions from the general prohibition:
     Allowing the processing and distribution in commerce of 
PIP (3:1) and PIP (3:1)-containing products for use in certain types of 
hydraulic fluids, such PIP (3:1)-containing hydraulic fluids, and the 
specified systems to which such hydraulic fluid is added;
     Allowing the processing and distribution in commerce of 
PIP (3:1) for use in lubricants and greases, PIP (3:1)-containing 
products for use in lubricants and greases, and PIP (3:1)-containing 
lubricants and greases;
     Allowing the processing and distribution in commerce of 
PIP (3:1) and PIP (3:1)-containing products for use in new and 
replacement parts for motor and aerospace vehicles, the new and 
replacement parts to which PIP (3:1) has been added for such vehicles, 
and the motor and aerospace vehicles that contain new and replacement 
parts to which PIP (3:1) has been added;
     Allowing the processing and distribution in commerce of 
PIP (3:1) for use as an intermediate in a closed system to produce 
cyanoacrylate adhesives;
     Allowing the processing and distribution in commerce of 
PIP (3:1) for use in specialized engine air filters for locomotive and 
marine applications, PIP (3:1)-containing products for use in 
specialized engine air filters for locomotive and marine applications, 
and PIP (3:1)-containing specialized engine air filters for locomotive 
and marine applications; and
     Allowing for the recycling of plastics that contained PIP 
(3:1) before the plastic was recycled, and the finished products or 
articles made of such recycled plastic, so long as no new PIP (3:1) is 
added during the production or recycling 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 of PIP (3:1) and PIP (3:1)-containing products to water during 
manufacturing, processing, and distribution in commerce, 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 commercial use (40 CFR 751.407(c)). For more 
information related to the 2021 PIP (3:1) Final Rule, see 40 CFR 
751.407.
    2. The March 2021 notification and request for comments.
    Shortly after the publication of the five 2021 PBT final rules, a 
wide variety of stakeholders from various sectors began raising 
concerns regarding 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. 10). 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). During 
the development of the rule, EPA conducted extensive outreach, 
including hosting a public webinar to gather use information on the 
PBTs, holding two comment periods on the Exposure and Use Assessment, 
and presenting the notice of proposed rulemaking for the 2021 PBT rules 
at a Small Business Roundtable hosted by the Small Business 
Administration (SBA) Office of Advocacy to elicit public comment. EPA 
met with numerous stakeholders, including trade associations, entities 
who report PIP (3:1) under the Chemical Data Reporting Rule, and other 
sectors where PIP (3:1) use was identified. Despite EPA's extensive 
outreach, most stakeholders that contacted EPA after the rule was 
finalized had not commented on its proposal or otherwise engaged with 
the Agency on the PIP (3:1) rulemaking and did not appear to have 
previously surveyed their supply chains to determine whether PIP (3:1) 
was being used (Refs. 4, 8, 11, and 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).
    On March 8, 2021, EPA issued a No Action Assurance memorandum 
announcing that EPA will exercise its enforcement discretion to not 
pursue enforcement actions for certain violations of the prohibitions 
on processing and distribution of PIP (3:1) for use in articles, and 
the articles to which PIP (3:1) has been added. Such discretion was 
conditioned on certain recordkeeping requirements and remained in 
effect until September 4, 2021. The purpose of the discretion was, 
among other things, ``to avoid widespread disruption of critical supply 
chains, while OCSPP develops a final agency action to ensure the 
appropriate timeline to prohibit critical complex articles'' (Ref. 52).
    In accordance with the Executive Order 13990 ``Protecting Public 
Health and the Environment and Restoring Science to Tackle the Climate 
Crisis'' and other relevant executive orders, EPA requested additional 
public comments on the five 2021 PBT final rules. On March 16, 2021, 
EPA announced its intent to review the five 2021 PBT final rules and 
requested public comment (EPA-HQ-OPPT-2021-0202). Specifically, EPA 
sought comment on whether there are further exposure reductions that 
could be achieved, including exposure reductions for potentially 
exposed or susceptible subpopulations and the environment; 
implementation issues associated with the five 2021 PBT final rules; 
and whether to consider additional or alternative measures or 
approaches. EPA specifically asked for comment on issues raised 
regarding the compliance date for the prohibition on the processing and 
distribution of PIP

[[Page 82292]]

(3:1) for use in articles and PIP (3:1)-containing articles, as well as 
any implementation issues (see Unit III.D.1 for more information).
    According to the comments received prior to and 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 
2021 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. 17). These comments are 
addressed in EPA's September 2021 PIP (3:1) final rule and October 2021 
PIP (3:1) proposed rule (Refs. 11 and 12). EPA received a total of 122 
comments in response to the March 2021 notification and request for 
comments, most of which regarded issues pertaining to PIP (3:1) (Ref. 
17).
    In addition, several comments received raised issues pertaining to 
decaBDE. Tribal government commenters recommended further regulation of 
decaBDE, including narrowing the replacement part exclusion to time-
limited critical uses, addressing potential risks from releases to the 
environment, restricting the disposal of decaBDE and decaBDE-containing 
products and articles, and addressing potential risks from occupational 
exposure (EPA-HQ-OPPT-2021-0202). EPA also received a comment 
requesting the Agency hold a government-to-government consultation with 
the Yurok Tribal Council (Ref. 26). In November 2022, EPA held a one-
on-one tribal consultation with the Yurok Tribal Council. During this 
consultation, the Agency received additional information that informed 
the Agency of considerations to reduce potential exposures to decaBDE, 
including labeling and a prohibition on the releases to water, see 
Units III.C.1. and III.C.3. for more information. EPA received no 
comments addressing the need for extensions to compliance dates for 
decaBDE.
    3. PIP (3:1) compliance date extensions.
    Based on the PIP (3:1)-specific comments received in response to 
the March 2021 notification and request for comments, EPA issued an 
immediately effective final rule in September 2021, which extended 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. 11). While most 
commenters on the March 2021 notification and request for comments 
requested a longer-term compliance date extension (Ref. 8), 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.
    On March 8, 2022, EPA further extended the compliance deadline 
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 (Ref. 13). 
The compliance date for the recordkeeping requirements for 
manufacturers, processors, and distributors of PIP (3:1)-containing 
articles was 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). EPA reasoned that this 
further extension would avoid significant disruption in the supply 
chains for certain articles and would provide the public with 
regulatory certainty, while EPA determined whether any further 
compliance date extensions are necessary.
    4. Activities not regulated by this proposed rule.
    EPA is not proposing revisions to the other three PBT rules issued 
under TSCA section 6(h) for 2,4,6-TTBP, HCBD, and PCTP at this time. 
EPA is not moving forward with reconsideration of the other three final 
rules at this time. Due to resource constraints and competing statutory 
obligations elsewhere in the existing chemicals risk management 
program, EPA is only proposing amendments to 40 CFR part 751, subpart E 
for the decaBDE and PIP (3:1) regulations at this time.

B. EPA's Implementation of TSCA Section 6(h)

    1. EPA's TSCA section 6(h)(1) findings.
    As previously detailed in the 2021 decaBDE and PIP (3:1) final 
rules, for chemical substances meeting the requirements of TSCA section 
6(h)(1)(A) and (B), TSCA section 6(h)(4) required EPA to issue a final 
TSCA section 6(a) rule to ``address the risks of injury to health or 
the environment that the Administrator determines are presented by the 
chemical substance and reduce exposure to the substance to the extent 
practicable.'' EPA made the requisite TSCA section 6(h)(1)(A) and (B) 
findings for decaBDE and PIP (3:1), triggering the requirement for a 
TSCA section 6(a) rulemaking under TSCA section 6(h)(4) standard. This 
proposed rulemaking does not amend these findings.
    2. EPA's approach to TSCA section 6(h)(4).
    In the 2021 PBT final rules, EPA explained that it read the TSCA 
section 6(h)(4) standard to apply to the chemical substance generally, 
thus requiring EPA to ``address risks'' and ``reduce exposures'' to the 
chemical substance without focusing on how or whether the measure taken 
is specific to an activity that might be characterized as a ``condition 
of use'' as that term is defined in TSCA section 3(4). Thus, the 2021 
final rules address past, present, and future activity involving the 
chemical substance. In the 2021 PBT final rules, EPA also explained 
that because there was no existing risk evaluation or assessment for 
each chemical substance and one was not contemplated by TSCA section 
6(h), EPA's implementation of the standard in TSCA section 6(h)(4) 
focused on applying the TSCA sections 6(a) and (c) requirements in a 
manner that reduces exposure to the chemical substance to the extent 
practicable. This proposed rulemaking does not amend these 
interpretations or EPA's approach for implementing TSCA section 
6(h)(4). Rather, this rulemaking is intended to identify further 
opportunities to reduce risk to the substances to the extent 
practicable based on additional available information received in the 
comments to EPA's 2021 request for comment.
    As demonstrated by the number of distinct programs addressed in 
this rulemaking and the structure of this proposed rule in addressing 
them independently, EPA generally intends the rule's provisions to be 
severable from each other. EPA expects to provide additional detail on 
severability in the final rule once the Agency has considered public 
comments and finalized the regulatory language.
    3. EPA's interpretation of ``to the extent practicable'' as used in 
TSCA section 6(h)(4).
    EPA is not changing the general interpretation of the term 
``practicable'' as discussed in the five 2021 PBT final rules (86 FR 
866, 86 FR 880, 86 FR 922, 86 FR 894, and 86 FR 911). As

[[Page 82293]]

explained in that rulemaking, TSCA section 6(h)(4) provides that EPA 
shall: (1) ``Address the risks of injury to health or the environment 
that the Administrator determines are presented by the chemical 
substance'' and (2) ``reduce exposure to the substance to the extent 
practicable'' which EPA reads to apply generally to the chemical and 
any potential for exposures within TSCA jurisdiction. With respect to 
the first requirement, EPA explained that the TSCA section 6(h) 
standard is distinct from the ``unreasonable risk'' standard for all 
other chemicals for which a section 6(a) rule might be issued. However, 
the phrase is not defined in the statute and there is no legislative 
history to explain what Congress intended with this text in section 
6(h)(4). Given the ambiguity of this text, EPA further noted that it 
had considered the relevance of other provisions in the statute, e.g., 
TSCA section 6(c) and concepts in TSCA section 6(g), and, as discussed 
in the response to comment document for the 2021 PBT Final rules, 
interprets ``reduce exposures to the extent practicable'' to consider 
such factors as ``achievability, feasibility, workability and 
reasonableness,'' consistent with dictionary definitions.'' Thus, EPA 
noted that ``[w]hether a regulatory option is achievable, feasible, 
workable, and reasonable inherently takes into consideration 
circumstances, such as the economic burden and complexities with an 
option, the utility of the chemical, and whether there are technically 
and economically feasible alternatives available for the chemical.'' 
EPA further explained that its approach is consistent with dictionary 
definitions of the term ``practicable'' which inherently includes 
considerations outlined in TSCA section 6(c)(2) and 6(g), such as 
health effects, magnitude of exposure, and the relative costs and 
benefits of the action.
    This interpretation of ``to the extent practicable'' for purposes 
of TSCA section 6(h)(4) is not amended. The application of this 
interpretation was informed by what the Agency could consider during an 
expedited rulemaking process and the body of information available to 
determine whether a prohibition would be practicable. EPA has collected 
additional information and reconsidered its application of this 
interpretation, focusing particularly on whether additional practicable 
requirements can reduce occupational exposures, including those 
associated with previously broadly-stated exclusions.
    4. EPA's position on directly regulating occupational exposures.
    EPA did not use its TSCA section 6(a) authorities to directly 
regulate occupational exposures in the 2021 decaBDE or PIP (3:1) final 
rules. As a matter of policy at that time, EPA assumed compliance with 
federal and state requirements, such as worker protection standards, 
unless case-specific facts indicated otherwise. For example, the 
Occupational Safety and Health Administration (OSHA) has not 
established a permissible exposure limit (PEL) for decaBDE and PIP 
(3:1). However, EPA assumed that employers would require, and workers 
would use, appropriate PPE consistent with general OSHA standards, 
considering employer-based assessments, in a manner sufficient to 
prevent occupational exposures that are capable of causing injury. EPA 
also stated that given the time allotted for the TSCA section 6(h) 
rulemakings and that no risk evaluation or assessment was required or 
feasible in the time available under the statute, EPA could not 
identify additional engineering or process controls or PPE requirements 
that would be appropriate to each chemical-specific circumstance, and 
that imposing such measures without sufficient analysis could 
inadvertently result in conflicting or confusing requirements and make 
it difficult for employers to understand their obligations. For these 
reasons, EPA determined that it was not practicable to regulate worker 
exposures in the 2021 rules through engineering or process controls or 
PPE requirements. However, due to an increased focus on worker safety 
and a change in EPA's assumptions regarding the use of worker 
protection measures such as PPE, the Agency is reconsidering the 
practicability of requiring worker protections.
    For purposes of determining whether worker protection measures are 
practicable under TSCA section 6(h)(4), EPA no longer believes it is 
appropriate to assume as a general matter that an applicable OSHA 
requirement or industry practice is consistently or always properly 
applied. This change in assumption should not be viewed as an 
indication that the Agency believes there are no occupational safety 
protections in place at any location, or that there is widespread 
noncompliance with applicable OSHA standards. Rather, it reflects the 
Agency's recognition that its interpretation of the TSCA section 
6(h)(4) standard ``to reduce exposure . . . to the extent practicable'' 
calls for worker protection measures to reduce the potential for 
exposure to PBTs generally, considering what is achievable, feasible, 
workable, and reasonable, in light of the circumstances. This is the 
case even in the absence of a risk evaluation or risk assessment and 
even if existing OSHA requirements might apply, such as those under the 
General Duty Clause of the Occupational Safety and Health Act (29 
U.S.C. 654(a)) or OSHA's Respiratory Protection standard (29 CFR 
1910.134).
    However, TSCA section 9(d) requires EPA to consult and coordinate 
TSCA activities with OSHA and other relevant Federal agencies for the 
purpose of achieving the maximum applicability of TSCA while avoiding 
the imposition of duplicative requirements. OSHA requires that 
employers provide safe and healthful working conditions through 
enforcement of the General Duty Clause and by setting and enforcing 
occupational safety and health standards under 29 U.S.C. 655. OSHA also 
provides training, outreach, education, and assistance. Where EPA has 
reason to believe that there might be the potential for exposure to 
workers to decaBDE and PIP (3:1), the Agency considers it practicable 
to require worker protections in addition to applicable OSHA 
regulations (e.g., fit testing and training requirements). To determine 
what worker protections measures are practicable, the Agency 
reconsidered the reasonably available information on the use of 
industry worker protection measures, including best practices, and 
considered new information received after the 2021 PBT final rules 
gathered during engagements with industry stakeholders and from the 
March 2021 notification and request for public comment period to 
propose these requirements (Ref. 18). This information was used to 
inform the proposed requirements for inhalation and dermal PPE to 
reduce worker exposure to decaBDE and PIP (3:1).
    EPA also considered the National Institute for Occupational Safety 
and Health (NIOSH) hierarchy of controls (i.e., prioritization of 
exposure control strategies from most protective and preferred to least 
protective and preferred techniques). In order of precedence, this 
hierarchy of controls includes elimination of the hazard, substitution 
with a less hazardous substance, engineering controls, administrative 
controls (e.g., training or exclusion zones with warning signs), and, 
finally, use of PPE (Ref. 19). Under the hierarchy of controls, the use 
of respirators should only be considered after all other measures have 
been taken to reduce exposures, and then under the context of the OSHA 
Respiratory Protection Standard at 29 CFR 1910.134. Under OSHA's 
standards, the various exposure controls are prioritized

[[Page 82294]]

equally, followed by PPE requirements when necessary. When formulating 
the proposed worker protection requirements on the limited time 
allotted for the TSCA section 6(h) rulemakings, no risk evaluation or 
assessment was required or feasible and an already existing risk 
assessment was not available to support calculation of safe exposure 
levels for these two chemicals, which would be necessary for EPA to 
establish a workplace chemical protection program. Thus, EPA is 
proposing specific engineering controls and PPE for one industry 
sector, specifically, the use of PIP (3:1) as an intermediate in 
cyanoacrylate adhesives in which the Agency had additional information 
about existing practice. EPA is requesting comment on the 
practicability of worker protection measures that are higher in the 
hierarchy of controls (e.g., engineering, and administrative controls) 
due to the lack of existing available information.

C. Overview of TSCA Sections 6(c) and 26 Considerations

    Unless explicitly stated, the following overview is meant to be a 
summary of information previously provided by EPA in the 2021 decaBDE 
and PIP (3:1) final rules regarding TSCA sections 6(c) and 26 
considerations. It is not intended to serve as a new proposal of 
findings under or interpretations of TSCA section 6(h)(4).
    1. TSCA section 6(c)(2) considerations.
    TSCA section 6(c)(2) requires EPA to consider and publish a 
statement based on reasonably available information with respect to 
the:
     Health effects of the chemical substance(s) or mixture(s) 
and the magnitude of human exposure;
     Environmental effects of the chemical substance(s) or 
mixture(s) and the magnitude of exposure to the environment;
     Benefits of the chemical substance(s) or mixture(s) for 
various uses; and
     Reasonably ascertainable economic consequences of the 
rule, including: the likely effect of the rule on the national economy, 
small business, technological innovation, the environment, and public 
health; the costs and benefits of the proposed and final rule and of 
the one or more primary alternative regulatory actions that EPA 
considered; and cost effectiveness of the proposed rule and of the one 
or more primary alternative regulatory actions that the Agency 
considered.
    In selecting among prohibitions and other restrictions available 
under TSCA section 6(a), EPA must factor in, to the extent practicable, 
these considerations. Further, in deciding whether to prohibit or 
restrict the manufacture, processing, distribution in commerce, use, or 
disposal of a chemical substance or mixture in a manner that 
substantially prevents a specific condition of use of a chemical 
substance or mixture, and in setting an appropriate transition period 
for such action, EPA must consider, to the extent practicable, whether 
technically and economically feasible alternatives that benefit health 
or the environment would be reasonably available as a substitute when 
the proposed prohibition or other restriction takes effect.
    EPA's summary of the health and environmental effects of and the 
potential for exposure to the two PBT chemicals subject to this 
proposed action can be found in the 2021 PBT final rules for each 
chemical, the support documents for those final rules (e.g., the 
Exposure and Use Assessment (Ref. 16) and the Hazard Summary (Ref. 
20)).
    The costs and benefits of this proposal and the alternatives EPA 
considered, as well as the impacts on small businesses, are presented 
in the economic analysis document (Ref. 14). However, the Agency was 
not able to quantitatively estimate the benefits of this proposal and 
the alternatives, due to the absence of a risk evaluation, and has 
instead qualitatively described such benefits. EPA requests comment on 
all aspects of the benefits attributable to these proposed regulations.
    EPA considered the estimated costs to regulated entities, as well 
as the cost to administer and enforce the options. EPA considered 
reasonably available information about the functionality and 
performance efficacy of the regulatory options and the ability to 
implement the use of chemical substitutes or other alternatives. A 
discussion of the costs EPA considered can be found in Unit IV., along 
with a discussion of the alternatives that the Agency considered. A 
discussion of the impacts on small businesses can also be found in Unit 
IV.
    With respect to the cost-effectiveness of this proposed regulatory 
action, EPA is unable to perform a traditional cost-effectiveness 
analysis of the options and alternative options for decaBDE and PIP 
(3:1). The cost-effectiveness of a policy option would properly be 
calculated by dividing the annualized costs of the option by a final 
outcome, such as cancer cases avoided, or to intermediate outputs, such 
as tons of emissions of a pollutant curtailed. Without the supporting 
analyses from an existing risk evaluation or assessment, the Agency is 
unable to calculate either a health-based or environment-based 
denominator. Thus, EPA is unable to perform a quantitative cost-
effectiveness analysis of the regulatory action. However, by evaluating 
the practicability of the policy options, the Agency believes that it 
has considered elements related to the cost-effectiveness of the 
actions, including the cost and the effect on human and environmental 
exposure to decaBDE and PIP (3:1).
    2. TSCA section 26(h) considerations.
    In accordance with TSCA section 26(h) and considering the 
requirements of TSCA section 6(h), EPA used scientific information, 
technical procedures, measures, and methodologies that are fit for 
purpose and consistent with the best available science to inform the 
2021 PBT final rules. EPA based its determination that human and 
environmental exposures to both decaBDE and PIP (3:1) are likely in its 
2020 Exposure and Use Assessment (Ref. 16), which underwent a peer 
review and public comment process, and used best available science and 
methods sufficient to make that determination. The extent to which the 
various information, procedures, measures, and methodologies, as 
applicable, used in the Agency's decision-making have been subject to 
independent verification or peer review is adequate to justify their 
use, collectively, in the record for this proposed rule. In addition, 
in accordance with TSCA section 26(i), and considering the requirements 
of TSCA section 6(h), EPA has made scientific decisions based on the 
weight of the scientific evidence.

D. Overview, Health Effects, and Exposure

    For the 2019 PBT proposed rule, EPA prepared an Exposure and Use 
Document, summarizing the information the Agency obtained in its own 
research or in response to feedback prior to and during the rulemaking 
process on the types of exposures that might be relevant to a TSCA 
section 6(a) rulemaking under the TSCA section 6(h)(4) standard. As 
noted in the 2021 PBT final rules, the Exposure and Use Assessment 
identified the types of exposures that could occur, but such 
information was not intended to identify ``conditions of use.'' As EPA 
explained in the 2021 PBT final rules, the Agency did not perform a 
systematic review or a weight of the scientific evidence assessment for 
the hazard characterization of these chemicals. As a result, EPA 
explained that the hazard characterizations are not definitive or 
comprehensive. Other hazard

[[Page 82295]]

information on these chemicals may exist in addition to the description 
in the 2021 PBT final rules and studies summarized in the Hazard 
Summary (Ref. 20). The following sections summarize the hazard and 
Exposure and Use information in the 2021 decaBDE and PIP (3:1) final 
rules.
    1. DecaBDE.
    As EPA explained in the 2021 decaBDE final rule, decaBDE is used as 
an additive flame retardant in plastic enclosures for televisions, 
computers, audio and video equipment; textiles and upholstered 
articles; wire and cables for communication and electronic equipment; 
and other applications (Ref. 21). DecaBDE is also used as a flame 
retardant for multiple applications for aerospace and automotive 
vehicles, including replacement parts for aircraft and cars (Refs. 22 
and 23). Exposure information for decaBDE is detailed in EPA's Exposure 
and Use Assessment and the 2021 decaBDE final rule (Refs. 3 and 16). As 
EPA explained in that rule, there is potential for exposure to decaBDE 
under the conditions of use at all stages of its lifecycle (i.e., 
manufacturing, processing, distribution in commerce, use [industrial, 
commercial, and consumer], and disposal) of the chemical. DecaBDE was 
produced and released at higher levels in the past, but releases from 
manufacturing and processing activities have declined over time, as are 
releases associated with use, disposal, and recycling activities (Ref. 
16). This decline is in part due to a voluntary phase out by the 
largest producers and suppliers of decaBDE in the United States, that 
committed to end their production, imports, and sales for all uses of 
decaBDE by the end of 2013 (Ref. 14).
    As described in the 2021 decaBDE final rule, exposure assessments 
on decaBDE have been conducted by EPA (including industry-supplied 
information as part of the Voluntary Children's Chemical Evaluation 
Program), the National Academy of Sciences, and international 
governments. These assessments describe exposure potential for 
polybrominated diphenyl ethers (PBDEs), including decaBDE, through a 
variety of pathways. Adult and child exposures can occur via dust 
ingestion, dermal contact with dust, and dietary exposures (such as 
dairy consumption). Household consumer products have been identified as 
the main source of PBDEs (including decaBDE) in house dust. The next 
highest exposure pathways included dairy ingestion and inhalation of 
indoor air (via dust). Infant and child exposures can occur via 
breastmilk ingestion and mouthing of hard plastic toys and fabrics. 
Occupational exposures for breastfeeding women were highest in women 
engaged in activities resulting in direct dermal and inhalation contact 
with decaBDE (Ref. 16).
    Finally, as summarized in the 2021 decaBDE final rule, decaBDE is 
toxic to aquatic invertebrates, fish, and terrestrial invertebrates. 
Data indicate the potential for developmental, neurological, and 
immunological effects, general developmental toxicity, and liver 
effects in mammals. There is some evidence of genotoxicity and 
carcinogenicity. The 2021 decaBDE final rule and Hazard Summary provide 
more information on these hazardous endpoints (Ref. 20).
    For the 2020 Chemical Data Reporting (CDR) submission period, 
calendar years 2016-2019, data indicate that three companies 
manufactured (including imported) decaBDE in the United States (Refs. 
14 and 24). The 2020 CDR data indicate a production volume of less than 
1 million pounds annually from 2016 thru 2019, however, EPA notes that 
domestic production has ceased, and the identified importers have 
likely since stopped using decaBDE (Ref. 24).
    2. PIP (3:1).
    As explained in the 2021 PBT final rules, PIP (3:1) is used as a 
plasticizer, a flame retardant, an anti-wear additive, or an anti-
compressibility additive in hydraulic fluid, lubricating oils, 
lubricants, greases, various industrial coatings, adhesives, sealants, 
and plastic articles. As a chemical that can perform several functions 
simultaneously, sometimes under extreme conditions, it has several 
distinctive applications. For example, in lubricating oils, PIP (3:1) 
is a flame retardant, anti-wear additive, anti-compressibility 
additive, or some combination of the three. In adhesives and sealants, 
PIP (3:1) is a plasticizer and flame retardant (Ref. 16). PIP (3:1) is 
also added to paints, coatings, and plastic components, where it is a 
plasticizer or flame-retardant additive. In the past, some plastic 
components to which PIP (3:1) may have been added included those 
intended for use by children. EPA has received comments that PIP (3:1) 
acts as a flame-retardant gel in filters surrounding engines in some 
marine and locomotive applications (EPA-HQ-OPPT-2019-0080-0569).
    Exposure information for PIP (3:1) is detailed in EPA's Exposure 
and Use Assessment and is summarized here (Ref. 16). There is potential 
for exposure to PIP (3:1) under the conditions of use at all stages of 
its lifecycle (i.e., manufacturing, processing, distribution in 
commerce, use [industrial, commercial, and consumer], and disposal). 
PIP (3:1) is manufactured, processed, distributed, and used 
domestically. For the 2012 CDR submission period, data indicate that 
four sites manufactured (including imported) PIP (3:1) in the United 
States. The total volume of PIP (3:1) manufactured (including imported) 
in the United States was 14,904,236 lbs. in 2011; 3,191,017 lbs. in 
2012; 2,968,861 lbs. in 2013; 5,632,272 lbs. in 2014; and 5,951,318 in 
2015 (Ref. 24). For the 2020 CDR submission period, calendar years 
2016-2019, data indicate that nine sites manufactured (including 
imported) PIP (3:1) in the United States and manufacture (including 
import) held steady at between 1 and 10 million pounds (Refs. 14 and 
24). The total volume of PIP (3:1) manufactured (including imported) in 
the United States was 14,904,236 lbs. in 2011; 3,191,017 lbs. in 2012; 
2,968,861 lbs. in 2013; 5,632,272 lbs. in 2014; and 5,951,318 in 2015 
(Ref. 24).
    PIP (3:1) is toxic to aquatic plants, aquatic invertebrates, 
sediment invertebrates, and fish. Data indicate the potential for 
reproductive and developmental effects, neurological effects, and 
effects on systemic organs, specifically the adrenal glands, liver, 
ovaries, and heart in mammals. The studies presented in the 2019 Hazard 
Summary, titled ``Environmental and Human Health Hazards of Five 
Persistent, Bioaccumulative and Toxic Chemicals,'' describe these 
hazardous endpoints (Ref. 25).

III. Proposed Regulatory and Alternative Regulatory Actions

A. Regulatory Approach

    In this action, EPA is proposing revisions to the 2021 decaBDE 
final rule and the 2021 and 2022 PIP (3:1) final rules. EPA has 
collected additional information and reconsidered its application of 
its interpretation of the TSCA section 6(h)(4) direction that the 
Agency ``reduce exposures to the substance to the extent practicable,'' 
focusing particularly on whether additional practicable requirements 
can reduce occupational exposures (see Unit II.B.3. and Unit II.B.4. 
for additional details), including those associated with exclusions. As 
described throughout this Unit, EPA has considered the practicability 
of the proposed and alternative regulatory actions. EPA considered how 
potential restrictions on the use of PIP (3:1) and decaBDE and the 
compliance timeframes associated with certain actions could impact 
supply chains, including those

[[Page 82296]]

prioritized in Executive Order 14017 America's Supply Chains.

B. Activities EPA Did Not Reevaluate for This Rulemaking

    As explained in the 2021 decaBDE and PIP (3:1) final rules, at this 
time, EPA is not proposing to use its TSCA section 6(a) authorities to 
regulate all activities or exposures to decaBDE and PIP (3:1), although 
its Exposure and Use Assessment identified potential for exposures 
(Ref. 16). One such activity is disposal. As described in the 2021 PBT 
rulemakings, regulations promulgated under the authority of the 
Resource Conservation and Recovery Act (RCRA) govern the disposal of 
hazardous and non-hazardous wastes. Although decaBDE and PIP (3:1) are 
not listed or characteristic hazardous wastes under RCRA, they are 
subject to the requirements applicable to solid waste under Subtitle D 
of RCRA. This means there is a general prohibition on open dumping, 
which includes a prohibition on open burning (e.g. the subtitle D ban 
on open dumping is at 42 U.S.C. 6945). Wastes containing chemicals that 
do not otherwise meet the criteria for hazardous waste would be 
disposed of in municipal solid waste landfills (MSWLFs), industrial 
nonhazardous landfills, or, in a few instances, construction/demolition 
landfills. Non-hazardous solid waste is regulated under Subtitle D of 
RCRA, and states play a lead role in ensuring that the federal 
requirements are met (see 40 CFR part 239). The requirements for MSWLFs 
are discussed in further detail in the 2021 PBT final rules. In those 
rules, EPA also explained that establishing an entirely new disposal 
program for decaBDE-containing and PIP (3:1)-containing wastes would be 
not practicable. Both 2021 decaBDE and PIP (3:1) final rules discuss 
how this type of program would be difficult to establish and 
administer, as well as costly. In addition, treating these wastes in a 
manner similar to wastes listed as hazardous wastes would have impacts 
on hazardous waste treatment and disposal capacity and have resource 
impacts for states and local governments, as well as for affected 
industries (Refs. 3 and 4). Taking this into account, EPA did not 
reevaluate the practicability of further exposure reductions relating 
to disposal of decaBDE and PIP (3:1), as well as decaBDE- and PIP 
(3:1)-containing wastes.
    As also explained in the 2021 PBT final rules, EPA did not propose 
regulations relating to commercial use of products and articles 
containing the PBT chemicals, such as televisions and computers, 
because such regulation would both require testing, which may not be 
commercially available for a chemical, and be extremely burdensome, 
necessitating the development of a test method to allow for the 
identification of products containing PBT chemicals, including decaBDE 
and PIP (3:1), and the disposal of countless products and articles that 
would have to be replaced. If EPA prohibited the continued commercial 
use of these items, widespread economic impacts, and disruption in 
channels of trade could occur while the prohibited items were 
identified and replaced. EPA also acknowledged, based on additional 
information provided by industry stakeholders after the 2021 PIP (3:1) 
final rule, that international supply chains are complex, and that 
complexity creates challenges for identifying and finding alternatives 
to PIP (3:1) in international supply chains. Taking this into account, 
EPA did not reevaluate the practicability of further exposure 
reductions relating to continued commercial use of products and 
articles containing decaBDE and PIP (3:1) at this time.
    Finally, in the 2021 PBT final rules, EPA explained that it did not 
propose to use its TSCA section 6(a) authorities to restrict recycling 
activities generally. EPA explained that it recognized the importance 
and impact of recycling, which contributes to the protection of our 
environment, and that it would be overly burdensome and not practicable 
to impose restrictions on the recycling of plastics that may contain 
decaBDE or PIP (3:1), or on the use of such recycled plastic in plastic 
articles. EPA also explained that decaBDE and PIP (3:1), if present, 
are typically present in such articles at low levels and that banning 
the recycling of plastics containing decaBDE or PIP (3:1) would require 
decaBDE- and PIP (3:1)-containing plastic to be identified through 
prohibitively expensive and complicated testing, and separated from 
other types of plastic before recycling, which is usually done manually 
(Ref. 27). EPA concluded that it would be difficult to make plastic 
sorting for this purpose cost-effective, and that it would be overly 
burdensome and not practicable to prohibit recycling of decaBDE- and 
PIP (3:1)-containing plastic in the United States. Taking this into 
account, EPA did not reevaluate the practicability of further exposure 
reductions relating to a prohibition of, or further regulatory 
restrictions on, the general recycling of decaBDE- and PIP (3:1)-
containing plastic in the United States at this time. As noted in Unit 
III.C., the one exception relates to the 2021 decaBDE final rule 
authorization for the continued recycling and distribution in commerce 
of existing plastic shipping pallets already known to contain decaBDE 
for the extent of the pallets' service life because EPA believes it is 
practicable to regulate when the expensive testing is not necessary to 
determine the chemical's presence in the article.

C. DecaBDE--Proposed Revisions to 40 CFR 751.405

    1. Require a label on existing plastic shipping pallets that 
contain decaBDE.
    a. Description of the proposed regulatory action. EPA is proposing 
to require a label on existing plastic shipping pallets that contain 
decaBDE. As mentioned in Unit II.A., after holding an additional tribal 
consultation, EPA received comments requesting the Agency to label 
plastics that contain decaBDE (Ref. 28). New plastic shipping pallets 
containing newly added decaBDE are prohibited under the 2021 decaBDE 
final rule (40 CFR 751.405(b)). EPA determined it is practicable to 
label existing plastic shipping pallets containing decaBDE because all 
plastic shipping pallets are owned by a single company, and such 
company is aware of and tracks, as part of normal business operations, 
each decaBDE-containing plastic shipping pallet. No new decaBDE has 
been added to the company's plastic shipping pallets since 2012 (Ref. 
23). EPA is not proposing additional testing requirements to determine 
if decaBDE is present in the plastic shipping pallets.
    The proposed label would provide notice to workers that PPE is 
required to be worn during recycling, refurbishing, or processing of 
existing plastic shipping pallets that contain decaBDE, which would 
reduce potential exposures to decaBDE, see Unit III.C.2 for more 
information on specific PPE requirements. EPA is proposing that the 
label must be securely attached to the plastic shipping pallet that is 
known to contain decaBDE and is requesting comment on whether the 
labels should be required to be available in multiple languages if 
necessary (e.g., notice would be in a language that the potentially 
exposed person understands, including a non-English language version 
representing the language(s) of the largest group(s) of workers who 
cannot readily comprehend or read English). EPA understands that the 
company typically attaches a label when it has possession of a plastic 
pallet in its inventory (i.e., after a pallet is returned from being 
rented out) as part of normal business practice. EPA is proposing that

[[Page 82297]]

the labeling information must show clearly, prominently, and in an 
easily readable font size, the following text: ``This pallet contains 
decabromodiphenyl ether (decaBDE) (CASRN 1163-19-5), a chemical that 
has been identified as persistent, bioaccumulative, and toxic (PBT) by 
the U.S. Environmental Protection Agency. All persons who recycle or 
process this pallet are required to wear personal protective equipment, 
per regulations at 40 CFR 751.405(e). The use of decaBDE is restricted 
under 40 CFR 751.405: All persons are prohibited from all manufacturing 
(including importing), processing, or distribution in commerce of 
decaBDE or decaBDE-containing products or articles, except for select 
uses, including those for plastic shipping pallets at 40 CFR 
751.405(a)(2)(v) and (b). After the end of the pallets' service life, 
all persons are prohibited from all distribution in commerce of plastic 
shipping pallets that contain decaBDE and were manufactured prior to 
March 8, 2021.'' EPA is requesting comment on the practicability of the 
proposed label and the language EPA has proposed to require on each 
label.
    b. Description of the primary alternative regulatory option 
considered. As a primary alternative regulatory option, EPA considered 
requiring a label on all recycled plastic articles that may contain 
decaBDE to aid in directions for worker protections. EPA considered 
this option because of a government-to-government consultation with the 
Yurok Tribal Council and comments received after this consultation 
(Ref. 28). However, EPA considered it would not be practicable to label 
all recycled plastic articles that may contain decaBDE (e.g., 
replacement parts for aerospace or motor vehicles). As mentioned in 
Unit II.D., domestic manufacture of decaBDE has ceased; however, 
decaBDE-containing articles may still be imported into the United 
States. Although decaBDE's use has been largely phased out, the Truck 
and Engine Manufacturers Association (EMA), in comments on the 2019 
proposed PBT rule, cautioned EPA that their member manufacturers' 
supply chains are very complex, and chemicals may be introduced into a 
part ``as many as seven layers deep into the supply chain'' (Ref. 29). 
Due to the complexity of supply chains, it is difficult to identify 
whether and where decaBDE is added in an article, hence making it 
difficult to determine where a label would be attached.
    2. Require use of PPE for certain activities involving decaBDE.
    a. Description of the proposed regulatory action. To ensure minimal 
potential for exposure to workers during domestic manufacturing and 
processing of decaBDE and decaBDE-containing products and articles, EPA 
is broadly proposing certain PPE requirements to address potential 
respiratory and dermal exposure to occupational workers during 
permitted ongoing activities involving decaBDE, with several proposed 
exclusions, including those which are being phased out. Due to the 
broad prohibition on manufacturing and processing in the 2021 decaBDE 
final rule and that several permitted uses will be phased out before 
rule finalization, the proposed protections would generally be required 
for certain ongoing uses listed at 40 CFR 751.405(a)(2) and 751.405(b).
    For recycling activities, EPA is proposing to require respiratory 
and dermal PPE, NIOSH-approved N95 respirator with an assigned 
protection factor (APF) of 10 and gloves that are chemically resistant 
to decaBDE, only during the recycling process of plastic shipping 
pallets that are known to contain decaBDE. After EPA considered 
additional information on industry use of PPE, the Agency concluded 
that it is practicable to require PPE during the manufacturing and 
processing of certain decaBDE and decaBDE-containing products and 
articles. EPA believes based on comments that it is practicable to 
require PPE for the processing of existing plastic shipping pallets 
because it is already industry practice (Ref. 23). For other all other 
recycling activities, due to the difficulty in identifying whether and 
where decaBDE is present in an article, EPA maintains that it would be 
impracticable to establish a testing program to determine if decaBDE is 
present.
    EPA is not proposing to require PPE for processing of decaBDE-
containing wire and cable for use in nuclear power generation 
facilities, the processing of new and replacement parts to which 
decaBDE has been added for motor and aerospace vehicles, and the motor 
and aerospace vehicles that contain new and replacement parts to which 
decaBDE has been added. This is because the Agency believes the 
processing of these articles would result in minimal potential for 
worker exposure because, once formulated, decaBDE is encased in the 
cured coating and the potential for worker exposure is minimal (Ref. 
16). EPA is also not proposing to require PPE for distribution in 
commerce of decaBDE or decaBDE-containing products or articles, since 
the distribution in commerce of these decaBDE-containing products or 
articles would result in minimal potential for exposure. Lastly, 
because EPA generally believes the potential for exposure is low during 
importation, the Agency is not proposing to require worker protections 
for import of decaBDE and decaBDE-containing products and articles. 
Addressing such minimal potential for exposure through worker 
protections would not be practicable considering the additional costs 
and resource burdens (Ref. 16).
    For the activities subject to the proposed PPE requirements and to 
reduce potential occupational exposure during the recycling process of 
plastic shipping pallets known to contain decaBDE, EPA is proposing to 
require, at a minimum, a NIOSH-approved N95 respirator with an assigned 
protection factor (APF) of 10 and gloves that are chemically resistant 
to decaBDE with activity-specific training where dermal contact with 
decaBDE is possible.
    EPA is proposing to require implementation of a PPE program in 
alignment with certain elements of OSHA's General Requirements for PPE 
at 29 CFR 1910.132 and Respiratory Protection requirements in 29 CFR 
1910.134. EPA is proposing to require that owners and operators ensure 
that each potentially exposed person who is required to wear PPE use 
and maintain PPE in a sanitary, reliable, and undamaged condition. 
Owners and operators would be required to select and provide PPE that 
properly fits each potentially exposed person who is required to use 
PPE. For N95 respirators with an APF 10, EPA is proposing that the 
owner or operator must ensure that all respirators used in the 
workplace are NIOSH-approved as listed on the NIOSH Certified Equipment 
List (Refs. 30 and 31). In choosing appropriate gloves, EPA expects 
owners and operators would consider the effectiveness of the glove type 
when preventing exposures from decaBDE alone, and in likely combination 
with other chemical substances used in the work area, the degree of 
dexterity required to perform tasks, and the temperature, as identified 
in the Hand Protection section of OSHA's PPE guidance (Ref. 32). Owners 
and operators would also be required to communicate PPE selections 
(e.g., demonstration that each item of PPE selected prevents exposure 
during expected duration and conditions of exposure) to each affected 
person.
    EPA is proposing to require each owner or operator to comply with 
OSHA's general PPE training requirements at 29 CFR 1910.132(f) when 
using respirators and gloves. EPA is proposing that owners and 
operators

[[Page 82298]]

provide PPE training to each potentially exposed person who is required 
to wear PPE prior to or at the time of initial assignment to a job 
involving potential exposure to decaBDE.
    EPA is also proposing to require implementation of a respiratory 
protection program in alignment with 29 CFR 1910.134(a) through (l), 
which requires each owner or operator to select respiratory protection 
in accordance with the guidelines for proper respirator use, 
maintenance, fit-testing, medical evaluation, and training. EPA is also 
proposing that owners or operators who would be required to administer 
a respiratory protection program be required to supply a respirator 
selected in accordance with 29 CFR 1910.134(d)(1).
    EPA proposes to require that owners and operators document 
respiratory protection used and PPE program implementation and retain 
those records for five years. EPA proposes to require that owners and 
operators document and keep records of the following information on the 
PPE program, as applicable, and make it available to the Agency upon 
request:
    (A) The name, workplace address, work shift, job classification, 
and work area of each person reasonably likely to directly handle 
decaBDE or handle equipment or materials on which decaBDE may be 
present and the type of PPE selected to be worn by each of these 
persons;
    (B) The basis for PPE selection (e.g., demonstration based on 
permeation testing or manufacturer specifications that each item of PPE 
selected provides an impervious barrier to prevent exposure during 
expected duration and conditions of exposure, including the likely 
combinations of chemical substances to which the PPE may be exposed in 
the work area); and
    (C) Documentation that the selection appropriately sized PPE and 
training on proper application, wear, and removal of PPE, and proper 
care/disposal of PPE occurred.
    EPA is proposing to require that each owner or operator supply PPE, 
selected in accordance with 40 CFR 751.405(e), to each potentially 
exposed person within 60 days after publication of the final rule.
    b. Description of the primary alternative regulatory option 
considered. As a primary alternative regulatory option, EPA considered 
requiring respiratory and dermal PPE during all recycling processes of 
decaBDE-containing plastic products and articles. However, as stated in 
Unit III.B. and in the 2021 PBT final rules, EPA did not propose to use 
its TSCA section 6(a) authorities to restrict recycling activities 
generally. EPA did not reevaluate the practicability of further 
exposure reductions relating to prohibiting, or further regulatory 
restrictions on, the general recycling of decaBDE-containing plastic in 
the United States. As mentioned in the 2021 response to comment 
document, in order to determine if decaBDE is present in plastics at 
recycling facilities, a testing program would need to be established 
(Ref. 33). EPA further explained that that it would also be difficult 
to make plastic sorting for this purpose cost-effective, and that it 
would be overly burdensome and not practicable to prohibit recycling of 
decaBDE-containing plastic in the United States. EPA continues to 
expect, as mentioned in the 2021 response to comment document, that the 
amount of recycled plastic that contains decaBDE from recycled plastic 
to decline due to compliance with the prohibitions in the 2021 decaBDE 
final rule and as substitute flame retardants replace existing products 
that contained decaBDE (Ref. 33).
    3.  Prohibit the release to water.
    EPA is proposing to prohibit the releases to water during the 
manufacturing, processing, and distribution in commerce of decaBDE, 
decaBDE-containing products, and all persons are required to follow any 
regulations that may apply and best management practices for preventing 
the release of decaBDE to water. Applicable regulations related this 
proposed prohibition on releases to water may include restrictions on 
discharges under the Federal Water Pollution Control Act (commonly 
known as the CWA)), Safe Drinking Water Act (SDWA), or analogous State 
laws. As mentioned in Unit II.A., after holding an additional tribal 
consultation, EPA received comments requesting the Agency prohibit 
releases of decaBDE to water (Ref. 28). Although EPA is aware of 
studies showing decaBDE in surface water, there have been no reported 
releases to water to the Toxics Release Inventory (TRI) since 2012 
(Ref. 34). After reconsidering the practicability of prohibiting 
releases to water due to the tribe's comments, and the potential for 
releases to water, even though there are no reported such releases, EPA 
is proposing to prohibit the release to water to prevent any potential 
future releases of decaBDE and protect exposed populations (e.g., 
subsistent fishers) (Ref. 16). EPA is requesting comments on additional 
details of how a prohibition on releases to water could best be 
achieved through best management practices, such as engineering 
controls, process changes, work practices, emergency procedures, or 
other measures to prevent releases.
    While it is EPA's understanding that releases of decaBDE to water 
are not occurring, prohibiting releases to water highlights the 
importance of preventing environmental releases of chemicals regulated 
by TSCA section 6(h) and reducing potential exposures. As mentioned in 
the Exposure and Use Assessment, TRI data show a decrease in releases 
that are reported in each industry sector using decaBDE. As of 2016, 
the number of manufacturing facilities, textile manufacturing 
facilities, wire and cable manufacturing facilities, and other 
facilities reporting TRI releases has decreased from several dozen to 
only one manufacturer and 23 other facilities (Ref. 16). Specifically, 
the one manufacturer that released to water prior to 2012, is now 
prohibited from manufacturing decaBDE under the 2021 decaBDE final 
rule. According to the most recent (2021) TRI data, there were zero 
releases of decaBDE to water (Ref. 34). TRI reporting is required only 
for facilities within specific NAICS codes who have 10 or more full-
time employees, so it is possible that there were releases outside of 
the reporting requirements, but EPA believes this is unlikely. 
Prohibiting releases to water during manufacture, processing, and 
distribution in commerce of decaBDE and decaBDE-containing products 
would prevent future releases of decaBDE to the water from permissible 
ongoing activities, reducing the overall potential for exposures. While 
in some cases EPA has determined that it is not practicable to exercise 
its TSCA section 6(a) authorities to regulate certain exposures under 
TSCA section 6(h), as outlined in Unit II.B., this is not the case for 
releases of decaBDE to water.
    EPA is not proposing to extend this requirement to include a 
prohibition on the release to water for the processing and distribution 
in commerce of decaBDE-containing articles, including recycled 
materials that may contain decaBDE, with the exception of plastics 
shipping pallets known to contain decaBDE. As described in more detail 
in the 2021 decaBDE final rule and the 2021 response to comment 
document, it would be extremely burdensome to identify articles 
containing decaBDE to determine if a facility that recycles articles is 
subject to this proposed release to water prohibition (Ref. 33).
    4. Extend the compliance extension for processing and distribution 
in commerce of decaBDE-containing wire and cables insulation for use in 
nuclear power generation facilities.

[[Page 82299]]

    DecaBDE has been used in Class 1E cables, which are qualified to 
meet industry standards and the Nuclear Regulatory Commission's (NRC) 
requirements in 10 CFR 50.49, ``Environmental qualification of electric 
equipment important to safety for nuclear power plants,'' including the 
Institute of Electrical and Electronics Engineers 383 (``IEEE 383'') 
standard for instrumentation and power cable insulation. Recognizing 
this, and in response to stakeholder feedback and engagements with the 
only known supplier of decaBDE-containing wire and cable, EPA 
established an extended compliance deadline of January 6, 2023, in the 
2021 decaBDE final rule, after which all processing and distribution in 
commerce of decaBDE for use in wire and cable insulation in nuclear 
power generation facilities, and decaBDE-containing wire and cable 
insulation is prohibited (40 CFR 751.405(a)(2)(ii)). EPA interprets the 
term ``nuclear power generation facilities'' to include nuclear 
reactors as defined by the NRC in 10 CFR 50.2, production facilities, 
test and research reactors, other utilization facilities not 
specifically designed for or used primarily for the formation of 
plutonium or U-233, and reactors operated under the oversight of the 
Department of Energy and has added text to the exclusion in 40 CFR 
751.405(a)(2)(ii) for clarification. In addition, EPA is clarifying 
that 40 CFR 751.405(a)(2)(ii) and new (a)(2)(vi) are not limited to a 
specific level of power generation and that the exclusion includes 
``electrical equipment important to safety'' as defined in 10 CFR 
50.49(b) and materials required for the safe operation of ``Alternate 
ac source'' and ``Basic components'' as defined in 10 CFR 50.2 which 
include decaBDE-containing wire and cable. EPA requests comment on if 
there are any additional points of clarification related to the 
description of the excluded activity.
    After the January 6, 2023, extended compliance deadline in the 2021 
decaBDE final rule, EPA received multiple requests and letters of 
concern regarding decaBDE in wire and cable insultation used in the 
nuclear power sector (Refs. 35 and 36). These inquiries and outreach 
came shortly after the supplier of this decaBDE-containing wire and 
cable discontinued processing and distribution in commerce and notified 
its customers of its inability to continue supplying their wire and 
cable due to the January 6, 2023, compliance date. Due to the lack of 
communication and engagement between the primary supplier and their 
customers, as well as with EPA, the industry reported to EPA that they 
were at risk of not having qualified wire and cable available, which 
could negatively affect both scheduled maintenance outages and 
unplanned equipment failures and, ultimately, could force multiple 
nuclear power plants to be temporarily taken offline. In response to 
this, on April 20, 2023, EPA's Office of Chemical Safety and Pollution 
Prevention (OCSPP) requested that the Office of Enforcement and 
Compliance Assurance (OECA) issue an enforcement statement regarding 
certain entities that are subject to the prohibitions on processing and 
distribution in commerce of decaBDE-containing wire and cable 
insulation for nuclear power generation facilities as a bridge to a 
final rule addressing this use.
    In response to this request, EPA's OECA issued a temporary 
``Enforcement Statement'' on May 2, 2023, which indicates that the 
Agency does not intend to pursue enforcement for violations of the 
prohibition on processing and distribution in commerce of decaBDE-
containing wire and cable insulation for nuclear power generation 
facilities, including those component and safety systems which contain 
the decaBDE-containing wire and cable insulation, that went into effect 
on January 6, 2023, as long as the entities involved are diligently 
working to qualify their alternative components in accordance with NRC 
regulations and guidance (Ref. 37).
    After considering feedback from the industry and federal partners, 
including the U.S. Department of Energy and NRC, EPA is proposing to 
extend the compliance date, limited to processing and distribution in 
commerce of decaBDE-containing wire and cable insulation and the 
components containing the wire and cable in nuclear power generation 
facilities (including research and test reactors), until after the end 
of the service life of the wire and cable and the component containing 
the wire and cable (see 40 CFR 751.405(a)(2)(vi)). Stakeholders have 
indicated that existing decaBDE-containing wire and cable insulation 
and components containing the wire and cable may need to be distributed 
and processed for refurbishment, maintenance, and repair until the wire 
and cable is replaced. In addition, EPA's ``Exposure and Use Assessment 
of Five Persistent, Bioaccumulative, and Toxic Chemicals'' indicates 
that although releases of decaBDE could occur during the processing of 
decaBDE to make the wire and cable (Ref. 16), once formulated into the 
wire and cable, decaBDE is encased in the cured coating and the 
potential for worker exposure is minimal (Ref. 16). Therefore, EPA 
concluded allowing this use to continue is necessary and practicable, 
while being unlikely to result in exposure to decaBDE.
    EPA is not proposing to allow resumption of processing and 
distribution in commerce of raw or compounded decaBDE for use in wire 
and cable insulation in nuclear power generation facilities. The only 
known supplier of this has been permitted to resume these activities 
for a limited time under a settlement agreement that provides a 
mechanism for the continued availability of decaBDE-containing wire and 
cable insulation, while the nuclear power generation facilities 
industry undergoes transition to a decaBDE-free alternative (Ref. 38). 
The termination conditions of the settlement agreement states that it 
shall remain in place for five years following the effective date 
unless terminated earlier, while the company's customers Transition to 
receipt of Class 1E cable that is decaBDE-free.
    5. Require export notification for decaBDE-containing wire and 
cable for nuclear power generation facilities.
    As discussed in the 2021 decaBDE final rule, decaBDE is listed on 
Annex A of the Stockholm Convention on Persistent Organic Pollutants 
(the POPs Convention), which prohibits the production, use, import, and 
export of decaBDE and decaBDE-containing products and articles for 
Parties to the listing decision for decaBDE, unless otherwise subject 
to a specific exemption (Ref. 39). There is no specific exemption under 
the POPs Convention for decaBDE-containing wire and cable for nuclear 
power plant generation facilities, and thus, EPA did not expect import 
or export for this use to occur. However, EPA recently learned that 
there is a need for export of decaBDE-containing articles for this 
purpose. Therefore, although articles are generally exempt under 40 CFR 
707.60(b) for notices of export under TSCA section 12(b), EPA is 
proposing to amend the current rule to require a TSCA section 12(b) 
export notice for export of decaBDE-containing wire and cable for 
nuclear power generation facilities. Such notice requirement is 
triggered 30 days after publication of this proposed rule, pursuant to 
TSCA section 12(b) and 40 CFR 707.65(a)(1)(i) and (b). The proposed 
notification to EPA of such intent to export would not provide consent 
by the importing countries for import of the shipment; the importing 
countries may choose not to permit import of such shipment. Consistent 
with subpart A of Part 751, the provisions of subpart D of 40 CFR

[[Page 82300]]

part 707 still apply to any export notifications required for decaBDE 
and PIP (3:1) under TSCA section 6(h). EPA is not requiring export 
notification for any other articles.
    EPA is requesting comment on whether additional downstream 
notification requirements for products and articles known to contain 
decaBDE would reduce the potential for exposure to decaBDE. The 
downstream notification for which the Agency is requesting comment 
would include additional text in sections 1 and 15 of a safety data 
sheet (SDS) or specific language on the label of the decaBDE-containing 
product or article in question.
    6. Extend recordkeeping requirements from three to five years and 
remove timeframe to make records available.
    In the 2021 decaBDE final rule, EPA required that all persons who 
manufacture, process, or distribute in commerce decaBDE and products 
and articles containing decaBDE maintain ordinary business records 
related to compliance with the prohibitions and restrictions for three 
years and to make records available within 30-days upon request. EPA is 
proposing to increase the recordkeeping requirement from three to five 
years and to remove the 30-day timeframe to make records available for 
decaBDE and PIP (3:1). Due to the additional requirements being 
proposed in this rulemaking, specifically those pertaining to worker 
safety, EPA believes that the five-year timeframe regarding 
recordkeeping and removal of the 30-day timeframe to make records 
available is more appropriate. Furthermore, this is consistent with the 
timeframe associated with other TSCA section 6(a) rulemakings which 
include worker protection requirements. EPA believes extending each 
rule's recordkeeping requirement to a consistent five-year requirement 
will facilitate regulated entities' compliance with minimal impact to 
regulatory burden. In addition, removal of the 30-day time frame to 
make records available is critical to the Agency's ability to promptly 
identify and correct noncompliance. EPA believes that the regulated 
entities should have the records demonstrating compliance readily 
available.

D. PIP (3:1)--Proposed Revisions to 40 CFR 751.407

    1. Modify existing exclusions and add new exclusions.
    EPA reviewed the determinations underlying the exclusions from 
prohibition 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. 12 and 33). For many of the exclusions, EPA 
determined there were no technically feasible alternatives or that the 
time and cost to identify, research, and replace PIP (3:1) in supply 
chains were impracticable. During the comment period following the 
March 6, 2021, notification, many stakeholders from the auto, 
aerospace, semiconductor, heavy machinery, and other sectors provided 
additional information on time frames that they determined would allow 
those industries a reasonable period to transition from PIP (3:1) to 
alternatives (EPA-HQ-OPPT-2021-0202). Where EPA received information 
that transition from PIP (3:1) to an alternative has already occurred 
or could occur within a reasonable transition period, EPA proposes such 
modifications. In other instances, where commenters were not able to 
provide similar information for determining a reasonable period for 
such transition, EPA did not propose extending the phase-out deadline. 
EPA is requesting comment on the practicability of these proposed 
modifications.
    a. Description of the proposed regulatory action. EPA is proposing 
to modify several exclusions from prohibition finalized in the January 
6, 2021, PIP (3:1) final rule (Ref. 4). These proposed modifications 
include narrowing the scope of certain exclusions, adding prohibition 
phase-in dates, and in some cases creating new exclusions from 
prohibition for certain uses. In narrowing the scope of certain 
exclusions EPA is also proposing to prohibit the import of the PIP 
(3:1)-containing articles and PIP (3:1)-containing products for those 
uses. This is to restrict the ability for these prohibited PIP (3:1)-
containing articles and PIP (3:1)-containing products for those uses to 
be imported where they are no longer allowed to be produced in the 
United States. EPA is not proposing to generally prohibit the 
manufacturing of PIP (3:1), consistent with the 2021 PBT rulemaking, 
due to the number of excluded activities which EPA has found it 
impracticable to prohibit.
    i. Lubricants and greases.
    EPA is proposing to narrow the exclusion from prohibition in 40 
CFR751.407(b)(1)(ii) for processing and distribution in commerce of PIP 
(3:1) for use in lubricants and greases, PIP (3:1)-containing products 
for use in lubricants and greases, and PIP (3:1)-containing lubricants 
and greases. Under this proposal, the exclusion from prohibition would 
be narrowed to allow only for the processing and distribution in 
commerce of PIP (3:1), PIP (3:1)-containing products, and PIP (3:1)-
containing lubricants and greases for use in aerospace and turbine 
applications. The processing and distribution in commerce of PIP (3:1), 
PIP (3:1)-containing products, and PIP (3:1)-containing lubricants and 
greases for all other uses, including but not limited to use in motor 
vehicles and industrial machinery, would be subject to a 5-year phased-
in prohibition. EPA has acknowledged (Ref. 4) and continues to 
acknowledge the degree to which PIP (3:1) is a crucial anti-wear 
component for aerospace lubricants and greases, which is needed to 
perform at a wide range of temperatures and pressures. EPA understands 
there are some non-aerospace uses of these lubricants and greases where 
PIP (3:1) is a crucial anti-wear component, such as turbines used in 
power generation or in marine settings (Ref. 40). However, as discussed 
in the 2021 PIP (3:1) proposed rule (Ref. 12), uses in non-aircraft 
machinery and non-turbine equipment may not be subject to these same 
environmental stresses or safety and performance requirements from 
industry and government as the uses in the aerospace sector and 
turbines. As discussed in the 2020 Economic Analysis (Ref. 41), several 
potential chemical substitutes for PIP (3:1) exist. Three unique 
chemical substitutes of PIP (3:1) have been confirmed and an additional 
ten potential chemical substitutes have been identified, including some 
for non-aerospace and non-turbine lubricants and greases that are 
currently available on the market.
    Following EPA's announcement to reconsider the PBT rules (Ref. 8), 
the Agency met with stakeholders to discuss their ongoing need for PIP 
(3:1)-containing lubricants and greases to meet performance standards 
and due to the lack of suitable alternatives. In addition, during the 
March 2021 notification and comment period, EPA received five comments 
either stating that no alternative existed or requesting the Agency 
maintain the existing exclusion for lubricants and greases. Two 
stakeholders indicated that they were working to identify alternatives 
to and/or eliminate PIP (3:1) from lubricant and grease formulation, 
while acknowledging for some applications they might not be able to 
find a replacement. At least one stakeholder requested a 5-year 
transition period to move away from PIP (3:1) for their applications 
(Ref. 42). Because there are available alternatives to the use of PIP 
(3:1) and given the absence of comment with specific information on the 
need

[[Page 82301]]

for PIP (3:1) to meet performance standards for non-aerospace, non-
turbine lubricants and greases, EPA is proposing a 5-year phased-in 
prohibition. EPA is requesting comment on whether there are performance 
requirements that might impact compliance with this transition period, 
or whether there are other considerations that would impact EPA's 
conclusion that the phase-out is practicable, the suitability of 
alternatives to meet any performance requirements for non-aerospace and 
non-turbine uses, as well as the reasonableness of the proposed time 
period for the prohibition phase-in for those uses. In addition, EPA is 
requesting comment on the economic and technical feasibility of 
alternatives, and whether it would be practicable, where alternatives 
are not technically and economically feasible, to reduce exposures 
through worker protections alone. EPA is also requesting comment on 
whether the exclusion should be modified in another way, specifically 
as it relates to certain turbine uses.
    ii. New and replacement parts for motor vehicles.
    EPA is proposing to repeal the exclusion from prohibition for new 
and replacement parts for motor and aerospace vehicles in existing 40 
CFR 751.407(b)(1)(iii). The aspects of this exclusion that relate to 
aerospace vehicles and wire harnessing and electric circuit boards are 
addressed in Unit III.D.1.a.iii and Unit III.D.1.a.iv, respectively. As 
to motor vehicles, EPA is proposing to repeal the existing exclusion at 
40 CFR 751.407(b)(1)(iii) for use of PIP (3:1) and PIP (3:1)-containing 
products in new and replacement parts for motor vehicles and is 
proposing to replace it with a prohibition that would begin in 15 
years. The proposed prohibition states that no later than 15 years from 
publication of the final rule, processing, and distribution in commerce 
of PIP (3:1), and the manufacturing, processing, and distribution in 
commerce of PIP (3:1)-containing products, for use in parts for new 
motor vehicles, including heavy machinery, and the parts to which PIP 
(3:1) has been added for such vehicles would be prohibited. Similarly, 
after such time, the manufacturing, processing, and distribution in 
commerce of new motor vehicles, including heavy machinery with PIP 
(3:1)-containing parts would be prohibited per 40 CFR 
751.407(a)(2)(iv). This proposed prohibition would not apply to PIP 
(3:1)-containing parts that would be subject to a new exclusion, if 
adopted as proposed (e.g., wire harnesses and circuit boards). 
Consistent with the discussion in the January 6, 2021, PIP (3:1) and 
decaBDE final rules, EPA continues to interpret TSCA section 6(c)(2)(D) 
to be inapplicable to TSCA section 6(h) rulemakings. Specifically, TSCA 
sections 6(c)(2)(D) and (E) require a risk finding pursuant to a TSCA 
section 6(b) risk evaluation to regulate replacement parts and 
articles. Yet, TSCA section 6(h) neither compels nor contemplates a 
risk evaluation to precede or support the compelled regulatory action 
to ``address the risks . . .'' and ``reduce exposures to the substance 
to the extent practicable''. While this interpretation has not changed, 
EPA has reviewed the practicability of regulating replacement parts and 
articles in accordance with the statutory directive in TSCA section 
6(h)(4) to reduce exposures to the PBT chemicals to the extent 
practicable.
    Stakeholders representing manufacturers of new original equipment 
and aftermarket components, systems, and materials for use in passenger 
cars and light trucks indicated that, under the assumption that an 
alternative to PIP (3:1) could be found in the next three to four 
years, the industry could transition out of using PIP (3:1) within a 
seven-to-ten-year time frame (Ref. 43). EPA acknowledges that the 
timeframe contains many contingencies, which could delay the adoption 
of PIP (3:1) alternatives. Nevertheless, based on the industry's own 
description of their experience with transitioning from a different 
chemical, albeit under different circumstances, and the time frames 
provided, EPA believes a 15-year phase-in prohibition of processing and 
distribution in commerce of PIP (3:1) and PIP (3:1)-containing products 
for use in parts for new motor vehicles (i.e., newly produced vehicles) 
and a 30-year phase-in prohibition on processing and distribution in 
commerce for replacement parts and the motor vehicles with PIP (3:1)-
containing parts, as discussed below, is practicable.
    EPA is also proposing in new 40 CFR 751.407(a)(2)(v) to allow 
processing and distribution in commerce for an additional 15 years 
(i.e., until 30 years after the publication date of the final rule) of 
PIP (3:1) and the manufacturing, processing, and distribution in 
commerce of PIP (3:1)-containing products for use in replacement parts 
for motor vehicles, including heavy machinery, the PIP (3:1)-containing 
replacement parts themselves for such vehicles, and such vehicles with 
PIP (3:1)-containing parts for 30 years after the publication date of 
the final rule. EPA's proposal does not impact the existing ``end 
user'' example at 40 CFR 751.401. EPA is proposing this 30-year period, 
to ensure that the option provided to vehicle manufacturers by 49 
U.S.C. 30120 to remedy the defect or noncompliance by repairing the 
vehicle or the equipment (i.e., part) remains available. EPA 
acknowledges that 49 U.S.C. 30120 does not require manufacturers to 
supply replacement parts, but rather to provide a remedy, which may 
include either replacing the equipment with identical or reasonably 
equivalent equipment, or by refunding the purchase price.
    Lastly, as explained in the March 2022 PIP (3:1) final rule 
extending the PIP (3:1) compliance date, 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. EPA is 
proposing to include a reference to ``heavy machinery'' in the 
exclusion to clarify this.
    iii. New and replacement parts for aerospace vehicles.
    EPA is proposing to repeal the exclusion from prohibition for new 
and replacement parts for aerospace vehicles described currently in 40 
CFR 751.407(b)(1)(iii). EPA is proposing to replace the exclusion from 
prohibition with a prohibition at 40 CFR 751.407(a)(2)(vi) that would 
begin 30 years after the publication of the final rule on the 
processing and distribution in commerce of PIP (3:1) and the 
manufacturing, processing, and distribution in commerce of PIP (3:1)-
containing products, for use in parts installed in and distributed as 
part of new aerospace vehicles, and the parts to which PIP (3:1) has 
been added for such vehicles. In addition, EPA is proposing that, after 
the end of the aerospace vehicles' service lives, the importing, 
processing, and distribution in commerce, of aerospace vehicles (i.e., 
those permissibly manufactured before the compliance timeframe ends) 
that contain PIP (3:1) in any part would be prohibited. EPA is also 
proposing at 40 CFR 751.407(a)(2)(vi) to prohibit manufacturing, 
processing, and distribution in commerce of PIP (3:1), PIP (3:1)-
containing products for use in replacement parts, and PIP (3:1)-
containing replacement parts, after the end of the aerospace vehicle 
service lives. These new prohibitions would not apply to PIP (3:1)-
containing parts that would be subject to a new exclusion from 
prohibition, if adopted as proposed (e.g., wire harnesses and circuit 
boards).
    As discussed in the January 2021 PIP (3:1) final rule, EPA 
concluded a similar reasoning applied to the use of PIP (3:1)

[[Page 82302]]

in new and replacement parts for motors vehicles readily transfers to a 
review of the justifications for the use of PIP (3:1) for new and 
replacement parts in aerospace vehicles. EPA acknowledges the 
regulatory and safety requirements for the aerospace industry are as 
stringent or more stringent than those for motor vehicles. In 
particular, industry stakeholders noted the time required to identify 
an alternative, and to test and certify its use in parts, to meet 
safety requirements, as well as a lengthy Federal Aviation 
Administration approval process. Given these considerations, EPA is 
proposing longer time periods for the phase-in prohibitions for the use 
of PIP (3:1) in new and replacement parts for aerospace vehicles. EPA 
request comment on the appropriateness of a 30-year time period for 
this phased-in prohibition or whether the length of time should be 
longer (e.g., 40 years).
    iv. Wire harnesses and circuit boards.
    EPA is proposing a new exclusion from the prohibition at 40 CFR 
751.407(b)(1)(iii) for the processing and distribution in commerce of 
PIP (3:1) and PIP (3:1)-containing products for use in wire harnesses 
and circuit boards, and wire harnesses and circuit boards containing 
PIP (3:1). This proposed exclusion is based on industry comments 
provided in response to the March 2021 notification opening a comment 
period. EPA has proposed that wire harnesses include a broad class of 
articles, including but not limited to terminal and fuse covers, cable 
sleeves, casings, connectors and tapes, used in a variety of 
applications, from defense to aerospace and motor vehicle applications, 
to medical instrumentation and more. In these articles, PIP (3:1) is 
used as a plasticizer and flame retardant. EPA also understands that 
PIP (3:1) use in electronic component manufacturing includes the use of 
PIP (3:1) in circuit boards as well as the use of PIP (3:1)-containing 
products for the encapsulation of electronics components added to 
circuit boards and as resins in overmolding, dip molding, insert 
molding applications, or conformal coatings. Hence, EPA is also 
proposing to exclude from prohibition the processing and distribution 
in commerce of PIP (3:1) and PIP (3:1)-containing products for use in 
circuit boards. Commenters have stated that these components, namely 
circuit boards and wire harnesses, are required to meet certain 
mandatory regulatory and voluntary industry safety standards (Refs. 44 
and 45). According to commenters, alternatives to PIP (3:1) for use as 
a flame retardant and/or plasticizer in wire harnesses and circuit 
boards have not been identified (Ref. 8).
    Due to information from commenters and engagement with 
stakeholders, EPA is not aware of a replacement for PIP (3:1) for use 
in wire harnesses and circuit boards that combines its properties as a 
plasticizer, a fire retardant, and an anti-wear additive. Hence, EPA 
agrees with commenters that the replacement for PIP (3:1) in these uses 
would likely not be a direct substitute but might require multiple 
chemicals. EPA acknowledges that the process of replacing PIP (3:1) 
with separate chemicals for each function would likely be time 
consuming and costly to certify new end-use products and articles 
(Refs. 45 and 46). EPA is not aware of a technically and economically 
feasible alternative for PIP (3:1) that would meet the performance 
requirements and voluntary and regulatory safety standards for these 
articles. EPA and commenters are not aware of industry efforts to 
identify or qualify an alternative. For these reasons, EPA is proposing 
to determine that it is impracticable to prohibit the processing and 
distribution in commerce of PIP (3:1) for use in wire harnesses and 
circuit boards and PIP (3:1)-containing products for use in wire 
harnesses and circuit boards, and for wire harnesses and circuit boards 
containing PIP (3:1). EPA requests comment on the availability of 
potential alternatives for PIP (3:1) for use in wire harnesses and 
circuit boards that would ensure that these products and articles would 
meet performance requirements and voluntary and regulatory safety 
standards.
    v. Marine antifouling coating product.
    EPA is proposing, at new 40 CFR 751.407(a)(2)(vii), to add a five-
year compliance deadline for the prohibition of processing and 
distribution of PIP (3:1) for use in a FIFRA-registered marine 
antifouling coating product for Department of Defense uses only. The 
January 2021 prohibition on processing and distribution of PIP (3:1) 
has resulted in the inability of the U.S. Navy to obtain a PIP (3:1)-
containing FIFRA-registered marine antifouling coating product. This 
compliance date extension will allow the U.S. Navy to continue to 
procure PIP (3:1)-containing coating while it identifies an alternative 
PIP (3:1)-free formulation.
    PIP (3:1) is used as a plasticizer in the formulation of the marine 
antifouling coating product and is an inert ingredient under FIFRA. In 
discussion with the U.S. Navy, it indicated that this antifouling 
coating falls under the ``mission critical'' category because hull 
corrosion on ships can have significant impacts on ship performance. 
The U.S. Navy also indicated that it would need five years to develop a 
suitable alternative formulation and undergo U.S. Navy qualification 
and testing and the FIFRA approval process. Because no technically 
feasible alternative is currently available for the U.S. Navy's 
aluminum-hulled ships due to the U.S. Navy's specific performance 
requirements, EPA considers it impracticable to continue prohibiting 
the processing and distribution of PIP (3:1) for use in this marine 
antifouling coating product while an alternative is being developed. 
EPA believes there are suitable alternatives for commercial users, and 
so is limiting this exclusion to this U.S. Department of Defense 
application. EPA is proposing this new, 5-year compliance deadline 
under TSCA section 6(h), not TSCA section 6(g).
    vi. Manufacturing equipment and semiconductor manufacturing 
industry.
    Based on comments received after the March 16, 2021, notification 
and request for comments, EPA is proposing to revise 40 CFR 
751.407(a)(2)(viii) to add a compliance deadline extension of 10 years 
for processing and distribution in commerce of certain PIP (3:1)-
containing articles and the PIP (3:1) used to process those articles, 
namely for use in manufacturing equipment and in the semiconductor 
manufacturing industry. As discussed in Unit II.A.2., after the January 
2021 PIP (3:1) final rule was published, a number of stakeholders from 
a variety of industrial sectors, including electronics and electrical 
manufacturing, semiconductor manufacturing, and manufacturing 
equipment, requested an extension of the compliance date to allow time 
to clear the existing articles through the supply chain, to find and 
certify an alternative chemical, and to produce or import new articles 
or complex goods that do not contain PIP (3:1) (Ref. 10). These 
stakeholders informed EPA of new information regarding the use of PIP 
(3:1) as a flame retardant and plasticizer in plastic components such 
as wire covers and casings. Other components that were identified 
include, but are not limited to, polyvinyl chloride tubes, harnesses, 
cables, covers, sleeves, and casings, as well as internal components of 
high-tech robotics and manufacturing equipment. Stakeholders have 
identified PIP (3:1) in components in scanning electron microscopes 
utilized in research, national laboratories, academia; in manufacturing 
and electronic components utilized for electronic design and assembly; 
and in electronics and semiconductor

[[Page 82303]]

manufacturing equipment (Ref. 44). Commenters also indicated that a 
wide range of key consumer and commercial goods were affected by the 
prohibitions in the 2021 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. 8, 
docket no., EPA-HQ-OPPT-2021-0202). EPA subsequently amended 40 CFR 
751.407(a)(iii) to extend the compliance deadline for the phase-out of 
the processing and distribution in commerce of PIP (3:1) for use in 
articles and PIP (3:1)-containing articles until October 31, 2024 (Ref. 
13).
    EPA is now proposing to revise the compliance deadline at current 
40 CFR 751.407(a)(2)(iii) to allow an additional 10 years for the 
processing and distribution in commerce of PIP (3:1) for use in 
articles and of PIP (3:1)-containing articles for use in manufacturing 
equipment and in semiconductor manufacturing. EPA is not proposing to 
further extend the existing October 31, 2024, compliance deadline for 
most other articles (see Unit III.D.4). EPA received stakeholder 
comments providing detailed information regarding timeframes to 
identify, replace, and recertify PIP (3:1)-containing articles in use 
within their often-complex supply chains and these comments suggest 
that a 10-year phase-out for use in manufacturing equipment and in 
semiconductor manufacturing is practicable and provides a reasonable 
transition period (Refs. 46, 47, and 48). EPA also received a comment 
in which a semiconductor industry stakeholder group stated that ``[w]e 
have not learned of any situation where a reduction or elimination of 
PIP (3:1) or decaBDE was not technically possible'' (Refs. 57). The 
commenter also stated that ``we have found in our investigations that 
it is generally feasible for the suppliers of components containing PIP 
(3:1) or decaBDE to redesign the components for compliance.'' However, 
this commenter also provided additional recommendations which EPA is 
taking comment on in Unit V. Several commenters note that there are 
difficulties in identifying PIP (3:1) in supply chains and additional 
time is needed to identify, test, certify, and adopt alternative parts, 
components, and finished products, as well as time to modify the 
manufacturing processes to accommodate an alternative substance. 
However, comments provide timeframes consistent with a 10-year period 
for transition and thus EPA does not believe that a shorter time frame 
would be practicable or reasonable.
    EPA is requesting comment on the scope and timeframe of this 
compliance date extension and the narrower scope of uses covered by 
this more limited extension beyond 2024. While EPA expects that in 
several industries, such as the textile (Ref. 51)and consumer product 
(Ref. 53) industries, the existing compliance timeframe for processing 
and distribution in commerce of PIP (3:1) for use in articles and PIP 
(3:1)-containing articles ending October 31, 2024 is 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 other industries and is choosing the ten year 
period as a practicable length of time during which the manufacturing 
equipment and semiconductor industries should be able to move to 
alternatives.
    b. Description of the primary alternative regulatory action.
    EPA is also considering longer phase-in timeframes for certain 
existing exclusions from prohibition. EPA considered a 30-year time 
limit on processing and distribution in commerce of PIP (3:1) and PIP 
(3:1)-containing products for use in lubricants and greases for 
aerospace and turbine applications, and PIP (3:1)-containing lubricants 
and greases for aerospace and turbine applications. As previously 
mentioned, stakeholders indicated that they were working to move away 
from the use of PIP (3:1), but that there could be applications where 
they might not be able to find a replacement. EPA is requesting comment 
on the timeframe needed to transition to PIP (3:1)-free lubricant and 
greases for this use and whether there are other industries, other than 
for aerospace and turbine applications, that may also need more time.
    EPA also considered a longer phase-out timeframe of 20 years for 
the prohibition of processing and distribution in commerce of PIP (3:1) 
and PIP (3:1)-containing products for use in wire harnesses and 
electric circuit boards, manufacturing equipment, and in the 
semiconductor industry. The 2021 OCSPP request for a ``No Action 
Assurance'' (Ref. 49) outlines the many articles in which PIP (3:1) is 
used. In order to clear supply chains and ensure an effective 
transition to alternatives, EPA considered a 20-year transition period 
for these PIP (3:1) containing articles. Articles with an end use in 
new and replacement parts for vehicles would be excluded from this time 
limit.
    2. Require PPE during manufacturing and processing of PIP (3:1).
    EPA is proposing to require inhalation and dermal PPE during 
domestic manufacturing and processing of PIP (3:1) and certain PIP 
(3:1)-containing products and articles. As discussed in Unit II. and in 
this Unit III.C.2. for decaBDE, EPA believes there is potential for 
reduction in worker exposure to PIP (3:1) by requiring PPE where EPA is 
aware of employers in specific sectors that are already providing 
appropriate PPE to their employees. EPA is proposing PPE requirements 
to address potential respiratory and dermal exposure to occupational 
workers during certain ongoing domestic manufacturing or processing 
activities involving PIP (3:1), including those which EPA is proposing 
phase out periods. Because EPA generally believes the potential for 
exposure is low during importation, the Agency is not proposing to 
require worker protections for import of PIP (3:1) and PIP (3:1)-
containing products and articles. The Agency is also not proposing to 
require worker protection for the processing of certain PIP (3:1)-
containing products and articles: PIP (3:1)-containing adhesives and 
sealants, new and replacement parts to which PIP (3:1) has been added 
for motor and aerospace vehicles, and the motor and aerospace vehicles 
that contain new and replacement parts to which PIP (3:1) has been 
added, PIP (3:1)-containing specialized engine filters for locomotive 
and marine applications, and the products or articles described in 40 
CFR 751.405 (b)(1)(vi) and (vii). EPA is also excluding processing of 
PIP (3:1) and PIP (3:1)-containing products for use as an intermediate 
to produce cyanoacrylate adhesives when contained in a closed system 
under new 40 CFR 751.407(f)(8)(iii). This is consistent with the 
practices of the one company using PIP (3:1) for this use and EPA 
believes it is protective due to proposed requirements under new 40 CFR 
751.407(f)(6) which would address PIP (3:1) through engineering 
controls.
    EPA is proposing to require implementation of a PPE program in 
alignment with certain elements of OSHA's General Requirements for 
Personal Protective Equipment at 29 CFR 1910.132 and Respiratory 
Protection requirements in 29 CFR 1910.134. EPA is proposing to require 
owners and operators ensure each potentially exposed person who is 
required to wear PPE to use and maintain PPE in a sanitary, reliable, 
and undamaged condition. Owners and operators would be required to 
select and provide PPE that properly fits each

[[Page 82304]]

potentially exposed person who is required to use PPE and to 
communicate PPE selections (e.g., demonstration that each item of PPE 
selected provides prevents exposure during expected duration and 
conditions of exposure) to each affected person.
    While EPA is proposing implementation of a PPE program in alignment 
with OSHA's, the Agency is also prescribing the level of PPE that must 
be worn based on the reasonably available information the Agency has 
regarding the adoption of those levels by industry. Where EPA is 
prescribing the use of PPE, the Agency is not supplanting OSHA 
requirements but clarifying the level of PPE that the Agency considers 
is practicable under TSCA section 6(h). For all activities covered 
under the worker protection proposed regulations, EPA is proposing that 
owners or operators be required to provide gloves that are chemically 
resistant to PIP (3:1) with activity-specific training where dermal 
contact with PIP (3:1) is possible. For the manufacturing and 
processing of PIP (3:1) and PIP (3:1)-containing products for use in 
new and replacement parts for motor vehicles, including heavy 
machinery, and aerospace vehicles, EPA is proposing respiratory 
protection which must be at least as protective as a NIOSH-approved N95 
respirator (APF 10). For processing of PIP (3:1) and PIP (3:1)-
containing products for use in the manufacturing of cyanoacrylate 
adhesives, EPA is proposing respiratory protection which must be at 
least as protective as a NIOSH-approved APF 50 respirator, except when 
the PIP (3:1) or PIP (3:1)-containing product is contained in a closed-
system. For all other activities covered under the proposed PPE 
regulations, EPA is proposing respirators that are at least as 
protective as a NIOSH-approved APF 10 air-purifying half mask 
respirator. Based on stakeholder comments (Ref. 33) and OSHA-required 
Safety Data Sheets, EPA believes these levels of protection are already 
typically used as industry best practices, although the Agency lacks 
reasonably available information to determine the scale of adoption.
    EPA is proposing that the owner or operator must ensure that all 
respirators used in the workplace are NIOSH-approved as listed on the 
NIOSH Certified Equipment List. In choosing appropriate gloves, EPA 
expects owners and operators would consider effectiveness of glove type 
when preventing exposures from PIP (3:1) alone and in likely 
combination with other chemical substances used in the work area, the 
degree of dexterity required to perform tasks, and the temperature, as 
identified in the Hand Protection section of OSHA's Personal Protective 
Equipment guidance (Ref. 32).
    EPA is proposing to require each owner or operator to comply with 
OSHA's general PPE training requirements at 29 CFR 1910.132(f) when 
using respirators and gloves. EPA is proposing that owners and 
operators would provide PPE training to each potentially exposed person 
who is required to wear PPE prior to or at the time of initial 
assignment to a job involving potential exposure to PIP (3:1).
    EPA proposes to require that owners and operators document 
respiratory protection used and PPE program implementation and retain 
those records for five years. EPA proposes to require that owners and 
operators document in the PPE program the following information, as 
applicable, and make it available to the Agency upon request:
    (A) The name, workplace address, work shift, job classification, 
and work area of each person reasonably likely to directly handle PIP 
(3:1) or handle equipment or materials on which PIP (3:1) may present 
and the type of PPE selected to be worn by each of these persons;
    (B) The basis for PPE selection (e.g., demonstration based on 
permeation testing or manufacturer specifications that each item of PPE 
selected provides an impervious barrier to prevent exposure during 
expected duration and conditions of exposure, including the likely 
combinations of chemical substances to which the PPE may be exposed in 
the work area); and
    (C) Appropriately sized PPE and training on proper application, 
wear, and removal of PPE, and proper care/disposal of PPE.
    3. Require engineering controls for processing of PIP (3:1) and PIP 
(3:1)-containing products as an intermediate processing aid in the 
manufacturing of cyanoacrylate adhesives.
    Based on information gathered during consultations with industry 
stakeholders (Ref. 50), EPA is proposing, at new 40 CFR 751.407(f)(6), 
to require engineering controls for the processing of PIP (3:1) as an 
intermediate processing aid in the manufacturing of cyanoacrylate 
adhesives. According to stakeholders, the production process using PIP 
(3:1) is carried out in an automated batch distillation plant and in a 
closed system.
    EPA previously maintained that it was not practicable to prescribe 
engineering controls that were duplicative of those required under OSHA 
(OSHA 29 CFR 1910.134(a)(1)), which requires the use of feasible 
engineering controls to prevent atmospheric contamination. As discussed 
in Unit II.B.4., for purposes of determining whether worker protection 
measures are practicable under TSCA section 6(h)(4), EPA no longer 
believes it is appropriate to assume as a general matter that an 
applicable OSHA requirement is consistently or always properly applied, 
and the Agency considered when worker protection measures higher up the 
NIOSH hierarchy of controls than PPE could practicably be required. For 
the processing of PIP (3:1) as an intermediate processing aid in the 
manufacturing of cyanoacrylate adhesives, EPA has reasonably available 
information submitted by an industry participant regarding the use of 
engineering controls. Based on that information, EPA is proposing to 
require engineering controls for the processing of PIP (3:1) as an 
intermediate processing aid in the manufacturing of cyanoacrylate 
adhesives such that the processing of PIP (3:1) must take place in a 
closed loop system with general and local exhaust ventilation provided. 
EPA believes that only one company is currently processing PIP (3:1) 
for this use, and the proposed engineering controls are the current 
practice of the company. Thus, there were no costs for this proposed 
requirement (Ref. 14). EPA is requesting comment on whether all 
processing of PIP (3:1) as an intermediate processing aid in the 
manufacturing of cyanoacrylate adhesives uses this type of system and 
the feasibility of the cyanoacrylate adhesive industry to implement 
engineering controls.
    4. Extend recordkeeping requirements from three to five years and 
remove timeframe to make records available.
    In the 2021 PIP (3:1) final rule, EPA required that all persons who 
manufacture, process, or distribute in commerce PIP (3:1) and products 
and articles containing PIP (3:1) maintain ordinary business records 
related to compliance with the prohibitions and restrictions for three 
years and to make records available within 30-days upon request. EPA is 
proposing to increase the recordkeeping requirement from three to five 
years and to remove the 30-day timeframe to make records available. Due 
to the additional requirements being proposed in this rulemaking, 
specifically those pertaining to worker safety, EPA believes that the 
five-year timeframe regarding recordkeeping and removal of the 30-day 
timeframe to make records available is more appropriate. Furthermore, 
this is consistent with the

[[Page 82305]]

timeframe associated with other TSCA section 6(a) rulemakings which 
include worker protection requirements. EPA believes extending each 
rule's recordkeeping requirement to a consistent five-year requirement 
will facilitate regulated entities' compliance with minimal impact to 
regulatory burden. In addition, removal of the 30-day timeframe to make 
records available is critical to the Agency's ability to promptly 
identify and correct noncompliance. EPA believes that regulated 
entities should have the records demonstrating compliance readily 
available.

IV. The Reasonably Ascertainable Economic Consequences of the Proposed 
Rule

A. Overview of Cost Methodology

    EPA has evaluated the potential costs of the proposed rule. 
Industry costs may arise from implementing measures to protect from 
exposure or switching from the manufacture or use of the chemical to a 
substitute. These costs included: reformulation of prohibited products 
using alternative chemicals to manufacture the product, or the price 
differential of available substitute products that do not contain PIP 
(3:1), providing workers with the required personal protective 
equipment (e.g., respirators, gloves, and/or goggles), product or 
article labeling to indicate that it contains the regulated 
chemical(s), rule familiarization and recordkeeping based on burdens 
estimated for other similar rulemakings. Costs were annualized over a 
30-year period. Other potential costs include, but are not limited to, 
those associated with testing, release prevention, imported articles, 
and some portion of potential revenue loss.

B. Estimated Costs of This Proposed Rule

    Total quantified annualized industry costs for the proposed rule 
are estimated to be $389 million at a 3% discount rate and $416 million 
at a 7% discount rate annualized over 30 years. Of the proposed rule 
costs, those associated with decaBDE alone were approximately $1,700 at 
a 3% discount rate and $1,800 at a 7% discount rate. Costs associated 
with PIP (3:1) were $389 million and $416 million (at 3 and 7% discount 
rates, respectively.) Of this total, worker protection (PPE) costs 
under the proposed regulatory option annualized at a 3% discount rate 
is $355 million and $392 million at a 7% discount rate with PIP (3:1) 
accounting for all costs. The reason for the large disparity in the 
costs between decaBDE and PIP (3:1) results from the difference in the 
number of firms using each chemical under the proposed rule's regulated 
activities. There are only two firms known to be using decaBDE that 
would be impacted by the proposed rule. Substantially more firms (up to 
19,018) could potentially be impacted by the PIP (3:1) proposed rule 
requirements based on the sectors impacted. Prohibition costs for PIP 
(3:1) annualized at a 3% discount rate were estimated at $33 million 
and $24 million annualized at a 7% discount rate. For the economic 
analyses for the 2021 PBT final rules, EPA estimated that it would need 
one full-time equivalent (FTE) employee for implementation (e.g., 
compliance assistance and enforcement) activities under both the 2021 
decaBDE and PIP (3:1) final rules (two FTE employees total). This 
proposed rule would modify the existing rules. Therefore, EPA does not 
expect that it will require any additional (incremental) Agency staff 
time to implement the rules under the proposed revisions (proposed or 
primary alternative options).
    1. Benefits.
    A qualitative discussion of the potential benefits associated with 
the proposed action for decaBDE and PIP (3:1) is provided. PIP (3:1) is 
a neurotoxicant and aquatic toxicant with high persistence and high 
potential for bioaccumulation. DecaBDE has been found to have an 
association with liver cancer and benign liver tumors in rats and mice 
and had hepatic, renal, immune, and reproductive toxicity concerns in 
animal studies. Research has also indicated that decaBDE is acutely 
toxic to fish and aquatic invertebrates. As a result of this proposed 
rule, prohibition and PPE requirements, EPA anticipates decreased 
potential for occupational exposures and reduced potential for 
exposures to the general population, potentially exposed or susceptible 
subpopulations, and the environment.
    2. Cost effectiveness and effect on national economy, small 
business, and technological innovation.
    With respect to the cost effectiveness of the proposed regulatory 
action and the primary alternative regulatory action, EPA is unable to 
perform a traditional cost-effectiveness analysis of the actions and 
alternatives for the PBT chemicals. As discussed in the proposed rule, 
the cost effectiveness of a policy option would properly be calculated 
by dividing the annualized costs of the option by a final outcome, such 
as cancer cases avoided, or to intermediate outputs such as tons of 
emissions of a pollutant curtailed. Without the supporting analyses for 
a risk determination, EPA is unable to calculate either a health-based 
or environment-based denominator. Thus, EPA is unable to perform a 
quantitative cost-effectiveness analysis of the primary and alternative 
regulatory actions. However, by evaluating the practicability of the 
final and alternative regulatory actions, EPA believes that it has 
considered elements related to the cost effectiveness of the actions, 
including the cost and the effect on exposure to the PBT chemicals of 
the primary and alternative regulatory actions.
    EPA considered the anticipated effect of this proposed rule on the 
national economy and concluded that this rule is highly unlikely to 
have any measurable effect on the national economy (Ref. 14). EPA 
analyzed the expected impacts on small business and found that no small 
entities are expected to experience impacts of more than 1% of revenues 
(Ref. 54). Finally, EPA has determined that this rule is unlikely to 
have significant impacts on technological innovation, although the rule 
may create some incentives for chemical manufacturers to develop new 
chemical alternatives to PIP (3:1).

V. Request for Comments

    EPA requests comment on all aspects of this proposal, including the 
proposed regulatory actions, the compliance dates for all the actions 
in this proposal, the primary alternative regulatory actions, and any 
other options that EPA has considered or should consider for both 
decaBDE and PIP (3:1). EPA is requesting comment on whether the 
Agency's proposed regulatory actions achieve the statutory directives 
to ``reduce exposure to the substance to the extent practicable'' (15 
U.S.C. 2605(h)(4)). In addition, as previously noted, EPA's 
understanding of the extent to which reductions in exposure might 
reduce risks for communities with EJ concerns is limited. EPA is 
therefore interested in any feedback or data that could aide in the 
quantification of human health impacts to exposed populations, in order 
to assess the extent to which impacts to communities with environmental 
justice concerns are reduced by the proposed rule.
    EPA requests comment on the performance requirements and the 
suitability of alternatives to meet any performance requirements for 
non-aviation and non-turbine uses, as well as the reasonableness of the 
proposed time period for the prohibition phase-in for those uses. In 
addition, EPA requests comment on the economic and technical

[[Page 82306]]

feasibility of alternatives, and whether it would be practicable, where 
alternatives are not technically and economically feasible, to reduce 
exposures through worker protections alone. EPA is also requesting 
comment on whether the exclusion from prohibition could be further 
narrowed, specifically as it related to certain turbine uses.
    EPA requests comment on the availability of potential alternatives 
for PIP (3:1) for use in wire harnesses and circuit boards that would 
ensure that these products and articles would meet performance 
requirements and voluntary and regulatory safety standards.
    EPA is requesting comment on the scope and timeframe of the 10-year 
compliance date extension for processing and distribution in commerce 
of certain PIP (3:1)-containing articles and the PIP (3:1), and PIP 
(3:1) products used in those articles for use in manufacturing 
equipment and in the semiconductor manufacturing industry, including 
information on whether and why a longer timeframe or exclusion may be 
necessary especially for replacement parts in order to account for 
complex supply chains and to clear channels of trade.
    In addition, in a more recent letter to EPA dated August 4, 2023, a 
semiconductor industry stakeholder group provided additional comments 
to EPA: including a recommendation that EPA adopt a threshold limit of 
no less than 0.001% for the presence of PIP (3:1) and 0.1% for the 
presence of decaBDE in articles, comments on EPA's interpretation of 
``article,'' a recommendation that EPA incorporate a manufactured-by 
approach to account for the complexity of the global supply chain and 
the time required to productize components compliant with the rule, and 
that EPA should incorporate an exclusion for semiconductor 
manufacturing and related equipment replacement parts (Ref. 57). EPA is 
also requesting comment on the availability of analytical test 
detection methods for PIP (3:1) and the practicability of implementing 
a testing program for the presence of PIP in products and articles. EPA 
has addressed a portion of these comments in the 2021 rulemaking. For 
example, EPA has addressed the request for an exclusion for PBTs 
present at low threshold limits as an unintentional contaminant or 
present as in de minimis quantities (independent of the exclusion for 
recycled plastics) reasoning that, where it is practicable to reduce 
exposures, the statute provides no such exceptions. EPA believes that 
there are any number of reasonable steps that can be taken to determine 
whether a product or article is compliant with the PBT regulations, 
such as contract specifications that describe the chemicals that may 
not be used, or a statement from the supplier that the articles 
furnished do not contain specific prohibited chemicals. However, EPA is 
requesting comment on this as well as the others provided to EPA by 
this semiconductor stakeholder. EPA requests comment on amending the 
downstream notification requirement at 40 CFR 751.407(e) for PIP (3:1)-
containing products to require language in the Safety Data sheet to 
notify workers using spray applications of the presence of PIP (3:1), 
or alternatively to require a warning or other label statement affixed 
to PIP (3:1)-containing products with spray applications. EPA requests 
comment on whether notification for workers using spray applications 
would reduce exposures, the practicability of such requirements, and 
what notification statements or warning labels would be effective at 
reducing exposures. This request for comment includes whether the 
notifications or warning labels should be available in multiple 
languages, if necessary (e.g., notice would be in a language that the 
potentially exposed person understands, including a non-English 
language version representing the language(s) of the largest group(s) 
of workers who cannot readily comprehend or read English).
    EPA requests comment on whether additional downstream notification 
requirements for products and articles known to contain decaBDE would 
reduce the potential for exposure for decaBDE, and whether the labels 
for plastic pallets should also be required to be available in multiple 
languages if necessary. The downstream notification for which the 
Agency is requesting comment would include additional text in sections 
1 and 15 of an SDS or specific language on the label of the product or 
article in question.
    EPA also requests comment on all aspects of the Economic Analysis 
accompanying this action. In taking final action on this proposal, 
following review of comments, EPA may require exposure reductions 
beyond those proposed here, or may reduce the scope of the proposed 
exposure reductions.

VI. 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. TSCA Work Plan for Chemical Assessments: 2014 Update. 
October 2014.
2. EPA. TSCA Work Plan Chemicals: Methods Document. February 2012.
3. EPA. Decabromodiphenyl Ether (DecaBDE); Regulation of Persistent, 
Bioaccumulative, and Bioaccumulative, and Toxic Chemicals Under TSCA 
Section 6(h); Final Rule. Federal Register (86 FR 880, January 6, 
2021) (FRL-10018-87).
4. 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).
5. 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).
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. 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. 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).
9. Executive Order 13990. Protecting Public Health and the 
Environment and Restoring Science to Tackle the Climate Crisis. 
Federal Register (86 FR 7037, January 25, 2021).
10. Letter to EPA from the Consumer Technology Association and the 
Information Technology Industry Council to EPA on March 15, 2021. 
Document No. EPA-HQ-OPPT-2021-0202-0015.
11. EPA. Regulation of Persistent, Bioaccumulative, and Toxic 
Chemicals Under TSCA Section 6(h); Phenol, Isopropylated Phosphate 
(3:1); Compliance Date Extension Final Rule. Federal Register (86 FR 
51823, September 17, 2021) (FRL-6015.5-03-OCSPP).
12. EPA. Regulation of Persistent, Bioaccumulative, and Toxic 
Chemicals Under TSCA Section 6(h); Phenol, Isopropylated Phosphate 
(3:1); Further Compliance Date Extension Proposed Rule. Federal 
Register (86 FR 59684, October 28, 2021) (FRL-6015.6-01-OCSPP).

[[Page 82307]]

13. EPA. Regulation of Persistent, Bioaccumulative, and Toxic 
Chemicals Under TSCA Section 6(h); Phenol, Isopropylated Phosphate 
(3:1); Further Compliance Date Extension Final Rule. Federal 
Register (87 FR 12875, March 8, 2022) (FRL-6015.6-02-OCSPP).
14. EPA. Economic Analysis for Regulation of Phenol, isopropylated 
phosphate (3:1) (PIP (3:1) and Decabromodiphenyl ether (DecaBDE) 
Under TSCA Section 6(h). November 2023.
15. EPA. 1995 Policy on Evaluating Health Risks to Children. https://www.epa.gov/sites/default/files/201405/documents/1995_childrens_health_policy_statement.pdf.
16. EPA. Exposure and Use Assessment of Five Persistent, 
Bioaccumulative, and Toxic Chemicals. December 2020. (For references 
and supporting documentation, see also EPA-HQ-OPPT-2019-0080).
17. Comments submitted to EPA. Regulation of Persistent, 
Bioaccumulative, and Toxic Chemicals Under TSCA Section 6(h) on 
March 16, 2021. Docket ID: EPA-HQ-OPPT-2021-0202-0001.
18. Comment from the American Coatings Association (ACA) to EPA on 
May 21, 2021. Comment ID: EPA-HQ-OPPT-2021-0202-0144.
19. Centers for Disease Control and Prevention (CDC). NIOSH 
Hierarchy of Controls. https://www.cdc.gov/niosh/topics/hierarchy/default.html.
20. EPA. Environmental and Human Health Hazards of Five Persistent, 
Bioaccumulative and Toxic Chemicals. December 2020. (For references 
and supporting documentation, see also EPA-HQ-OPPT-2019-0080).
21. EPA. Preliminary Information on Manufacturing, Processing, 
Distribution, Use, and Disposal: Decabromodiphenyl ether. August 
2017. Docket No. EPA-HQ-OPPT-2016-0724-0002.
22. Stakeholder Comment from Auto Alliance. February 2018.
23. Stakeholder Comment from iGPS. January 2018.
24. EPA. Access Chemical Data Reporting: 2020 CDR Data. Last updated 
on May 16, 2022.
25. EPA. Exposure and Use Assessment of Five Persistent, 
Bioaccumulative, and Toxic Chemicals. June 2019.
26. Yurok Tribe. Public Comment Submitted to EPA RE: Comments on 
Regulation of Persistent, Bioaccumulative, and Toxic Chemicals Under 
TSCA Section 6(h) on May 17, 2021. Comment ID: EPA-HQ-OPPT-2021-
0202-0077.
27. Norwegian Environmental Agency. Final Report. Literature Study--
DecaBDE in Waste Streams. 2015.
28. Yurok Tribe. Letter to EPA RE: the Tribal Consultation on 
DecaBDE Risk Management Rule on January 3, 2023.
29. Comment submitted to EPA by the Truck and Engine Manufacturers 
Association (EMA) on October 29, 2019. Comment ID: EPA-HQ-OPPT-2019-
0080-0550.
30. Centers for Disease Control and Prevention (CDC). NIOSH 
Certified Equipment List. https://www.cdc.gov/niosh/npptl/topics/respirators/cel/.
31. Occupational Safety and Health Administration. Assigned 
Protection Factors for the Revised Respiratory Protection Standard. 
OSHA 3352-02 2009. https://www.osha.gov/sites/default/files/publications/3352-APF-respirators.pdf.
32. Occupational Safety and Health Administration. Personal 
Protective Equipment. OSHA 3151-02R 2023. https://www.osha.gov/sites/default/files/publications/osha3151.pdf.
33. EPA. Regulation of Persistent, Bioaccumulative, and Toxic 
Chemicals Under TSCA Section 6(h) RIN 2070-AK34; Response to Public 
Comments. December 2020.
34. EPA (2021c). TRI Toxics Tracker, U.S. Environmental Protection 
Agency. https://edap.epa.gov/public/extensions/TRIToxicsTracker/TRIToxicsTracker.html.
35. Placeholder: Letter from the Nuclear Regulatory Commission to 
the EPA on March 31, 2023. (EPA-HQ-OPPT-2023-0376).
36. Placeholder: Email from the Nuclear Energy Institute to the EPA 
on March 9, 2023, 2023. (EPA-HQ-OPPT-2023-0376).
37. EPA. Enforcement Statement Regarding the Prohibition of 
Processing and Distribution in Commerce of Decabromodiphenyl Ether 
(DecaBDE)-Containing Wire and Cable Insulation in Nuclear Power 
Generation Facilities under 40 CFR 751.405(a)(2)(ii). May 2, 2023. 
https://www.epa.gov/system/files/documents/202305/Enforcement%20Statement%20Regarding%20DecaBDE%205%202%202023.pdf.
38. EPA. 2023 DecaBDE Settlement: In the Matter of RSCC Wire & Cable 
LLC. Docket No. TSCA-HQ-2023-5006. May 1, 2023. https://
yosemite.epa.gov/oa/EAB_Web_Docket.nsf/Unpublished~Final~Orders/
8A750189B8B8E14A852589A20072ACCC/$File/
RSCC%20CAFO%20final%20order%202023.05.01%201510.pdf.
39. United Nations Environmental Program Stockholm Convention on 
Persistent Organic Pollutants (2015). Risk profile on 
decabromodiphenyl ether. Report of the Persistent Organic Pollutants 
Review Committee on the work of its eleventh meeting.
40. EPA. Stakeholder Meeting Notes with Akin Gump on September 27, 
2018. Docket No. EPA-HQ-OPPT-2019-0080-0017.
41. EPA. Economic Analysis for Regulation of Phenol, Isopropylated 
Phosphate (3:1) (PIP (3:1)) Under TSCA Section 6(h). December 16, 
2020.
42. Comment submitted to EPA from the National Elevator Industry, 
Inc. on March 24, 2021. Comment ID: EPA-HQ-OPPT-2021-0202-0131.
43. Comment submitted to EPA from the Motor & Equipment 
Manufacturers Association and the Alliance for Automotive Innovation 
on May 20, 2021. Comment ID: EPA-HQ-OPPT-2021-0202-0110.
44. Comment to EPA from the Consumer Technology Association, IPC, 
and Information Technology Industry Council on May 24, 2021. Comment 
ID: EPA-HQ-OPPT-2021-0202-0148.
45. Comment submitted to EPA from The Boeing Company on May 20, 
2021. Comment ID: EPA-HQ-OPPT-2021-0202-0102.
46. Comment submitted to EPA from the Association of Equipment 
Manufacturers on May 14, 2021. Comment ID: EPA-HQ-OPPT-2021-0202-
0053.
47. Comment submitted to EPA from SEMI and the Semiconductor 
Equipment Association of Japan on May 20, 2021. Comment ID: EPA-HQ-
OPPT-2021-0202-0121.
48. Comment submitted to EPA from the Power Tool Institute, Inc. on 
May 18, 2021. Comment ID: EPA-HQ-OPPT-2021-0202-0067.
49. Comment submitted to EPA from Leonhardt Environmental, PC on May 
6, 2021. Comment ID: EPA-HQ-OPPT-2021-0202-0035.
50. Comment submitted to EPA by Japan Agricultural Machinery 
Manufacturers Association on May 20, 2021. Comment ID: EPA-HQ-OPPT-
2021-0202-0112.
51. Comment submitted to EPA by Chemical Users Coalition on May 24, 
2021. Comment ID: EPA-HQ-OPPT-2021-0202-0135.
52. EPA. Letter from EPA's Office of Chemical Safety and Pollution 
Prevention to EPA's Office of Enforcement and Compliance Assurance 
RE: Request for No Action Assurance Regarding the 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/sites/default/files/2021-03/documents/10021-08_memo_freedhoff_to_starfield_tsca_pip_31_naa_signed_2021-03-08.pdf.
53. Comment submitted to EPA from Daniel D. Masakowski, Director of 
Materials Development, RSCC on the Regulation of Persistent, 
Bioaccumulative, and Toxic Chemicals Under TSCA Section 6(h) on 
January 29, 2020. Comment ID: EPA-HQ-OPPT-2019-0080-0583.
54. Keweenaw Bay Indian Community. Re: Notification of Consultation 
and Coordination on a Rulemaking Under the Toxic Substances Control 
Act: Regulation of Persistent, Bioaccumulative, and Toxic Chemicals 
Under TSCA Section 6(h). September 25, 2018.
55. Harper, Barbara and Ranco, Darren, in collaboration with the 
Maine Tribes. Wabanaki Traditional Cultural Lifeways Exposure 
Scenario. July 9, 2009. Referenced in the 2021 Final PBT Rule.
56. EPA. Supporting Statement for an Information Collection Request 
(ICR) under the Paperwork Reduction Act (PRA); Decabromodiphenyl 
Ether and Phenol, Isopropylated Phosphate (3:1); Revision to the 
Regulation of Persistent, Bioaccumulative, and Toxic Chemicals under 
the Toxic Substances Control Act (TSCA); Proposed Rule (RIN 2070-
AL02). EPA ICR No. 2779.01 and OMB Control No. 2070-NEW. November 
2023.

[[Page 82308]]

57. Comment submitted to EPA by SEMI on August 4, 2023. Comment ID; 
TBA

VII. Statutory and Executive Order Reviews

    Additional information about these statutes and Executive orders 
can be found at https://www.epa.gov/laws-regulations-and-executive-orders.

A. Executive Order 12866: Regulatory Planning and Review and Executive 
Order 14094: Modernizing Regulatory Review

    This action is a ``significant regulatory action'' as defined in 
section 3(f)(1) of Executive Order 12866 (58 FR 51735, October 4, 
1993), as amended by Executive Order 14094 (88 FR 21879, April 11, 
2023). Accordingly, EPA, submitted this action to OMB for review under 
Executive Order 12866. Documentation of any changes made in response to 
the Executive Order 12866 review is available in the docket.
    EPA prepared an economic analysis of the potential costs and 
benefits associated with this proposed rule (Ref. 14). A copy of this 
economic analysis is also available in the docket and is briefly 
summarized in Unit I.E. and discussed in Unit IV.

B. Paperwork Reduction Act (PRA)

    The information collection activities in this proposed rule have 
been submitted for approval to OMB under the PRA, 44 U.S.C. 3501 et 
seq. The Information Collection Request (ICR) document that EPA 
prepared has been assigned EPA ICR No. 2779.01 (Ref. 56). You can find 
a copy of the ICR in the docket for this rulemaking and it is briefly 
summarized here.
    Respondents/affected entities: See Unit I.A.
    Respondent's obligation to respond: Mandatory under TSCA section 
6(h) and 40 CFR 751.407.
    Estimated number of respondents: 19,020 (13,550 manufacturers/
importers/processors, and 5,470 distributors).
    Frequency of response: On occasion.
    Total estimated burden: 34,497 hours (per year). Burden is defined 
at 5 CFR 1320.3(b).
    Total estimated cost: $2,640,103 (per year), includes $0 annualized 
capital or operation and maintenance costs.
    An agency may not conduct or sponsor, and a person is not required 
to respond to, a collection of information unless it displays a 
currently valid OMB control number. The OMB control numbers for EPA 
regulations in 40 CFR are listed in 40 CFR part 9.
    Submit your comments on the Agency's need for this information, the 
accuracy of the provided burden estimates and any suggested methods for 
minimizing respondent burden to EPA using the docket identified at the 
beginning of this rule. EPA will respond to any ICR-related comments in 
the final rule. You may also send your ICR-related comments to OMB's 
Office of Information and Regulatory Affairs using the interface at 
https://www.reginfo.gov/public/do/PRAMain. Find this ICR by selecting 
``Currently under Review--Open for Public Comments'' or by using the 
search function. OMB must receive comments no later than December 26, 
2023.

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. The small entities subject to the requirements of 
this action are small businesses that manufacture/import, process, or 
distribute the chemicals subject to this proposed rule. The Agency has 
determined that this proposed rule, if finalized, would impact 
approximately 16,205 small businesses of which 1,399 are expected to 
incur cost impacts between 1% and 3% of their annual revenue, all of 
which were for PIP (3:1) and none for decaBDE. The cost per small 
entity ranged from $4,254 to $1,134,821 (with an average of $124,650) 
at a 3% discount rate and ranged from $4,227 to $1,134,786 (with an 
average of $124,651, at a 7% discount rate). No entities for either 
chemical are expected to be impacted above 3% of their annual revenue. 
Details of this analysis are presented in the Economic Analysis (Ref. 
14), which is in the public docket for this action.

D. Unfunded Mandates Reform Act (UMRA)

    This action does not contain any unfunded mandate of $100 million 
or more as described in UMRA, 2 U.S.C. 1531-1538, and does not 
significantly or uniquely affect small governments. The requirements of 
this proposed rule are not expected to affect state, local, or Tribal 
governments because the rule impacts only entities that manufacture 
(including import), process, distribute in commerce, use, or dispose 
decaBDE and PIP (3:1), and government entities are not engaged in these 
activities.

E. Executive Order 13132: Federalism

    This action does not have federalism implications as specified in 
Executive Order 13132 (64 FR 43255, August 10, 1999), because 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 will 
not have substantial direct effects on tribal governments, on the 
relationship between the Federal government and the Indian tribes, or 
on the distribution of power and responsibilities between the Federal 
government and Indian tribes.
    Consistent with the EPA Policy on Consultation and Coordination 
with Indian Tribes, the Agency consulted with tribal officials during 
the development of this action. EPA consulted with representatives of 
Tribes via teleconference on August 31, 2018, and September 6, 2018, 
concerning the prospective regulation of these five PBT chemicals under 
TSCA section 6(h). Tribal members were encouraged to provide additional 
comments after the teleconferences. EPA received two comments from the 
Keweenaw Bay Indian Community and Maine Tribes (Refs. 54 and 55). EPA 
also met with the National Tribal Toxics Council (NTTC) in Washington, 
DC. During the NTTC meeting, the Agency provided background information 
on the available regulatory options under 6(a) and a summary of the 
information gathered on the five PBT chemicals. Officials from NTTC 
expressed support for EPA regulations to reduce exposures to the 
general population and susceptible subpopulations. On November 7, 2022, 
EPA held a one-on-one tribal consultation with the Yurok Tribal 
Council, where the Agency received additional information that informed 
the Agency of considerations to reduce potential exposures to decaBDE, 
a summary of this consultation is provided in Unit II.A.2.

G. Executive Order 13045: Protection of Children From Environmental 
Health and Safety Risks

    Executive Order 13045 (62 FR 19885, April 23, 1997) directs federal 
agencies to include an evaluation of the health and safety effects of 
the planned regulation on children in federal health and safety 
standards and explain why the regulation is preferable to potentially 
effective and reasonably feasible alternatives. This action is subject 
to Executive Order 13045

[[Page 82309]]

because it is a significant regulatory action under section 3(f)(1) of 
Executive Order 12866, and the EPA believes that the environmental 
health or safety risk addressed by this action may have a 
disproportionate effect on children. While EPA believes that this 
action addresses the health and environmental risks presented by the 
PBT chemicals subject to this action that may have a disproportionate 
effect on children, EPA did not perform a risk assessment or risk 
evaluation of these PBT chemicals. However, the proposed requirements 
would reduce potential exposure to these PBT chemicals for the general 
population and for susceptible subpopulations such as workers and 
children. EPA's evaluation of the exposure potential of these PBT 
chemicals (Ref. 16) and summary of the health and environmental hazards 
that may be presented by these chemical substances (Ref. 20) are in the 
docket. In addition, as briefly discussed in Unit I.E.5., EPA's Policy 
on Children's Health also applies to this action. See also the other 
discussions about the risks presented by the PBT chemicals subject to 
this action that are provided throughout this preamble.

H. Executive Order 13211: Actions Concerning Regulations That 
Significantly Affect Energy

    This action 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.

I. National Technology Transfer and Advancement Act (NTTAA)

    This action does not involve technical standards under the NTTAA 
section 12(d), 15 U.S.C. 272.

J. Executive Order 12898: Federal Actions To Address Environmental 
Justice in Minority Populations and Low-Income Populations and 
Executive Order 14096: Revitalizing Our Nation's Commitment to 
Environmental Justice for All

    EPA believes that it is not practicable to assess whether this 
action is likely to result in new disproportionate impacts or 
exacerbate any existing disproportionate impacts on communities with EJ 
concerns in accordance with Executive Order 12898 (59 FR 7629, February 
16, 1994) and Executive Order 14096 (88 FR 25251, April 26, 2023). 
Since a risk evaluation was not conducted, EPA's understanding of the 
extent to which reductions in exposure might reduce risks for 
communities with environmental justice concerns is limited. Data are 
not sufficiently comprehensive to estimate the extent to which the 
proposed rule would reduce existing disproportionate impacts on 
communities with EJ concerns. Data on the worker composition of 
affected industries, presented in Sections 6.5.1 and 6.5.2 of the 
Economic Analysis (Ref. 14), provides a general indication of how 
different demographic groups in the worker population may be affected. 
Certain exclusions and extensions of compliance dates beyond the onset 
of the rule may partially delay addressing these impacts. EPA believes 
that the restrictions that would be placed on decaBDE and PIP (3:1) 
with adoption of this proposed rule would reduce the potential 
exposures, and therefore, reduce any potential risks, associated with 
the manufacture, processing and use of these chemicals. EPA cannot 
confirm which specific subpopulations are at a disproportionate risk 
from exposure nor make a quantified estimate of the change in exposure 
that will result from the rule. In addition, only a small subset of the 
specific facilities using decaBDE and PIP (3:1) have been identified, 
so a proximity analysis examining the characteristics of the 
communities surrounding the known facilities might not be 
representative of all exposed communities. Some workers will receive 
PPE with adoption of the rule, while others will no longer be exposed 
to decaBDE and PIP (3:1). As companies reformulate with chemical 
alternatives, some workers may be exposed to these alternatives. Local 
communities will be also less exposed to decaBDE and PIP (3:1), though 
exposure to chemical alternatives may increase. EPA does not know which 
chemical alternatives industry will ultimately use. Some alternatives 
are less toxic and some are comparably toxic to decaBDE and PIP (3:1).

List of Subjects 40 CFR Part 751

    Environmental protection, Chemicals, Export Notification, Hazardous 
substances, Import certification, Reporting and recordkeeping.

Michael S. Regan,
Administrator.

    Therefore, for the reasons set forth in the preamble, EPA proposes 
to amend 40 CFR chapter I 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.  751.403 by adding in alphabetical order the term 
``regulated area'' to read as follows:


Sec.  751.403  Definitions.

* * * * *
    Regulated area means an area established by the regulated entity to 
demarcate areas where airborne concentrations or direct dermal contact 
of a specific chemical substance can reasonably be expected.
* * * * *
0
3. Amend Sec.  751.405 by:
0
a. Revising paragraph (a)(2)(ii);
0
b. Adding paragraphs (a)(2)(vi);
0
c. Revising paragraphs (c)(1)(i) and (iii); and
0
d. Adding paragraphs (d), (e), (f), and (g).
    The revision and additions read as follows:


Sec.  751.405  DecaBDE.

    (a) * * *
    (2) * * *
    (ii) After January 6, 2023, all persons are prohibited from all 
processing and distribution in commerce of decaBDE for use in wire and 
cable insulation in nuclear power generation facilities (including 
research and test reactors).
* * * * *
    (vi) After the end of the wire and cables' service life, all 
persons are prohibited from all processing and distribution in commerce 
of decaBDE-containing wire and cable insulation for nuclear power 
generation facilities (including research and test reactors).
* * * * *
    (c) * * *
    (1) * * *
    (i) These records must be maintained for a period of five years 
from the date the record is generated.
* * * * *
    (iii) These records must be made available to EPA upon request.
* * * * *
    (d) Labeling.
    (1) After [DATE 1 YEAR AFTER DATE OF PUBLICATION IN THE FEDERAL 
REGISTER], all persons who process, including recycle, plastic shipping 
pallets that are known to contain decaBDE must securely attach a label 
to each pallet. For purposes of this section, ``securely attach'' shall 
mean that a label can reasonably be expected to remain affixed during 
the foreseeable conditions and period of use. Each label must show 
clearly, prominently, and in an easily readable font size the following 
text:

    This shipping pallet contains decabromodiphenyl ether (decaBDE) 
(CASRN

[[Page 82310]]

1163-19-5), a chemical that has been identified as persistent, 
bioaccumulative, and toxic (PBT) by the U.S. Environmental 
Protection Agency. All persons who recycle or process this pallet 
are required to wear personal protective equipment, per regulations 
at 40 CFR 751.405(e). The use of decaBDE is restricted under 40 CFR 
751.405, all persons are prohibited from all manufacturing 
(including importing), processing, or distribution in commerce of 
decaBDE or decaBDE-containing products or articles, except for 
select uses, including those for plastic shipping pallets at 40 CFR 
751.405(a)(2)(v) and (b). After the end of the pallets' service 
life, all persons are prohibited from all distribution in commerce 
of plastic shipping pallets that contain decaBDE and were 
manufactured prior to March 8, 2021.

    (e) Workplace protection.
    (1) Applicability. After [DATE 60 DAYS AFTER DATE OF PUBLICATION IN 
THE FEDERAL REGISTER], the provisions of paragraph (e) of this section 
apply to any workplaces, engaged in manufacturing and processing of 
decaBDE and decaBDE-containing products and articles, except for those 
identified in paragraph (e)(7) of this section.
    (2) Regulated areas. Owners or operators must establish and 
maintain regulated areas as defined in 40 CFR 751.403 wherever a 
potentially exposed person's exposure to airborne concentrations or 
direct dermal contact of decaBDE can reasonably be expected.
    (i) The owner or operator must limit access to regulated areas to 
authorized persons.
    (ii) The owner or operator must demarcate regulated areas from the 
rest of the workplace in a manner that adequately establishes and 
alerts persons to the boundaries of the regulated area and minimizes 
the number of authorized persons exposed to decaBDE within the 
regulated area.
    (iii) The owner or operator must supply a respirator that complies 
with the requirements of paragraph (e) of this section and must ensure 
that all persons within the regulated area are using the provided 
respirators whenever exposures to airborne concentrations of decaBDE 
can reasonably be expected.
    (iv) The owner or operator must ensure that while persons are 
wearing respirators in the regulated area, they do not engage in 
activities which interfere with respirator seal or performance.
    (v) Whenever any direct dermal contact with decaBDE may occur 
within the regulated area the owner or operator must supply and ensure 
all persons are using dermal PPE that complies with the requirements of 
paragraph (e) of this section.
    (vi) The owner or operator must ensure that, within a regulated 
area, persons do not engage in non-work activities that may increase 
exposure to decaBDE.
    (3) Respiratory protection. The owner or operator must provide 
respiratory protection to all potentially exposed persons in the 
regulated area as demarcated in accordance with paragraph (e)(2) of 
this section, and according to the provisions outlined in 29 CFR 
1910.134(a) through (l) and as specified in this paragraph for 
potentially exposed persons to decaBDE during expected time of use.
    (i) The type of respiratory protection that regulated entities must 
select and provide to potentially exposed persons must be at least as 
protective as a NIOSH-approved N95 respirator (APF 10).
    (ii) [Reserved]
    (4) Dermal protection. Owners or operators must require the donning 
of gloves that are chemically resistant to decaBDE with activity-
specific training where dermal contact with decaBDE is possible.
    (5) Training. The owner or operator must provide PPE training in 
accordance with 29 CFR 1910.132(f) to all persons required to use PPE 
under this subsection. The training shall be provided prior to or at 
the time of initial assignment to a job involving potential exposure to 
decaBDE.
    (6) Workplace protection records. (i) The owner or operator subject 
to the requirements described in this section must retain records of:
    (A) The name, workplace address, work shift, job classification, 
work area of each person reasonably likely to directly handle decaBDE 
or handle equipment or materials on which decaBDE may be present, the 
type of PPE selected by the owner or operator for use by each of these 
persons, the respiratory protection used by each potentially exposed 
person, and PPE program implementation, including fit-testing and 
training;
    (B) The basis for PPE selection (e.g., demonstration based on 
permeation testing or manufacturer specifications that each item of PPE 
selected provides an impervious barrier to prevent exposure during 
expected duration and conditions of exposure, including the likely 
combinations of chemical substances to which the PPE may be exposed in 
the work area); and
    (C) Appropriately sized PPE and training on proper application, 
wear, and removal of PPE, and proper care/disposal of PPE.
    (ii) These records must be maintained for a period of five years 
from the date the record is generated.
    (iii) These records must be made available to EPA upon request.
    (7) Exclusions. The following are not subject to the provision of 
paragraph (e) of this section:
    (i) Import of decaBDE and decaBDE-containing products and articles.
    (ii) Processing for recycling of decaBDE-containing plastic from 
products or articles and decaBDE-containing products or articles made 
from such recycled plastic, where no new decaBDE is added during the 
recycling or production processes, except for those identified in 
paragraph (a)(2)(v) of this section.
    (iii) Processing addressed in paragraph (a)(2)(vi) of this section 
of decaBDE-containing wire and cable insulation for use in nuclear 
power generation facilities.
    (iv) Processing of new and replacement parts to which decaBDE has 
been added for motor and aerospace vehicles, and the motor and 
aerospace vehicles that contain new and replacement parts to which 
decaBDE has been added.
    (f) Export notification for decaBDE-containing products and 
articles. After [DATE 60 DAYS AFTER DATE OF PUBLICATION IN THE FEDERAL 
REGISTER], all persons intending to export decaBDE-containing wire and 
cable for nuclear power generation facilities (including research and 
test reactors) are required to notify EPA under TSCA section 12(b) and 
the provisions of subpart D of 40 CFR part 707. The exemption at 40 CFR 
707.60(b) does not apply to decaBDE-containing wire and cable for 
nuclear power generation facilities.
    (g)  Prohibition on releases to water. After [DATE 60 DAYS AFTER 
DATE OF PUBLICATION IN THE FEDERAL REGISTER], all persons are 
prohibited from releasing decaBDE to water during manufacturing, 
processing, and distribution in commerce of decaBDE, decaBDE-containing 
products, and all persons are required to follow any applicable 
regulations and best management practices for preventing the release of 
decaBDE.
0
4. Amend Sec.  751.407 by:
0
a. Revising paragraphs (a)(2)(iii) and adding paragraphs (a)(2)(iv) 
through (ix); and
0
b. Revising paragraphs (b)(1)(ii) and (iii), (d)(1) and (3); and
0
c. Adding paragraph (f).
    The revisions and additions read as follows:


Sec.  751.407  PIP (3:1).

    (a) * * *
    (2) * * *
    (iii) After October 31, 2024, except as provided in paragraphs 
(a)(2)(ii),

[[Page 82311]]

(a)(2)(ix), and (b) of this section, all persons are prohibited from 
all processing and distribution in commerce of PIP (3:1) for use in 
articles and PIP (3:1)-containing articles.
    (iv) After [DATE 5 YEARS AFTER DATE OF PUBLICATION IN THE FEDERAL 
REGISTER], except as provided in paragraph (b)(1)(ii) of this section, 
all persons are prohibited from all processing and distribution in 
commerce of PIP (3:1) and manufacturing, processing, and distribution 
of PIP (3:1)-containing products for use in lubricants and greases and 
PIP (3:1)-containing lubricants and greases.
    (v) After [DATE 15 YEARS AFTER DATE OF PUBLICATION IN THE FEDERAL 
REGISTER], all persons are prohibited from all processing and 
distribution in commerce of PIP (3:1) for use in parts for new motor 
vehicles, including heavy machinery, and manufacturing, processing, and 
distribution in commerce of PIP (3:1)-containing products for use in 
parts for new motor vehicles, including heavy machinery, PIP (3:1)-
containing parts for such new vehicles, and the new motor vehicles, 
including heavy machinery in any parts.
    (vi) After [DATE 30 YEARS AFTER DATE OF PUBLICATION IN THE FEDERAL 
REGISTER], all persons are prohibited from all processing and 
distribution in commerce of PIP (3:1) and manufacturing, processing, 
and distribution in commerce of PIP (3:1)-containing products for use 
in replacement parts for motor vehicles, including heavy machinery, PIP 
(3:1)-containing replacement parts, and the motor vehicles, including 
heavy machinery, that contain such replacement parts.
    (vii) After [DATE 30 YEARS AFTER DATE OF PUBLICATION IN THE FEDERAL 
REGISTER], all persons are prohibited from all processing and 
distribution in commerce of PIP (3:1) and manufacturing, processing, 
and distribution in commerce of PIP (3:1)-containing products for use 
in parts installed in and distributed as part of new aerospace 
vehicles, and PIP (3:1)-containing parts for such vehicles. After the 
end of the aerospace vehicles service lives, all persons are prohibited 
from all importing, processing, and distribution in commerce of 
aerospace vehicles manufactured before [DATE 30 YEARS AFTER DATE OF 
PUBLICATION IN THE FEDERAL REGISTER] that contain PIP (3:1) in any 
part. After the end of the aerospace vehicles service lives, all 
persons are prohibited from all manufacturing, processing, and 
distribution in commerce of PIP (3:1) and PIP (3:1)-containing products 
for use in replacement parts for aerospace vehicles, and the 
replacement parts to which PIP (3:1) has been added for such vehicles.
    (viii) After [DATE 5 YEARS AFTER DATE OF PUBLICATION IN THE FEDERAL 
REGISTER], all persons are prohibited from processing and distribution 
in commerce of PIP (3:1) and manufacturing, processing, and 
distribution in commerce of PIP (3:1)-containing products for use in 
marine antifouling coating products that are registered under the 
Federal, Insecticide, Fungicide, Rodenticide Act and that meet U.S. 
Department of Defense specification requirements.
    (ix) After November 25, 2033, all persons are prohibited from 
processing, and distribution in commerce of PIP (3:1), and 
manufacturing, processing, and distribution of PIP (3:1)-containing 
products and articles for use in manufacturing equipment and in the 
semi-conductor industry.
* * * * *
    (b) * * *
    (1) * * *
    (ii) PIP (3:1) for use in lubricants and greases for aerospace and 
turbine uses, PIP (3:1)-containing products for use in lubricants and 
greases for aerospace and turbine use, and PIP (3:1)-containing 
lubricants and greases for aerospace and turbine uses;
    (iii) PIP (3:1) and PIP (3:1)-containing products for use in 
circuit boards and wire harnesses, including but not limited to 
terminal and fuse covers, cable sleeves, casings, connectors and tapes, 
and PIP (3:1)-containing circuit boards and wire harnesses including 
but not limited to terminal and fuse covers, cable sleeves, casings, 
connectors and tapes;
* * * * *
    (d) * * *
    (1) After March 8, 2021, Persons who manufacture, process, or 
distribute in commerce PIP (3:1) or PIP (3:1)-containing products or 
articles must maintain ordinary business records, such as invoices and 
bills-of-lading, related to compliance with the prohibitions, 
restrictions, and other provisions of this section. These records must 
be maintained for a period of five years from the date the record is 
generated.
* * * * *
    (3) These records must be made available to EPA upon request.
* * * * *
    (f) Workplace protection.
    (1) Applicability. After January 23, 2024, the provisions of this 
paragraph (f) apply to workplaces engaged in the manufacturing and 
processing of PIP (3:1) and PIP (3:1)-containing products and articles, 
except as provided in paragraph (f)(8) of this section.
    (2) Regulated areas. Owners or operators must establish and 
maintain regulated areas as defined in 40 CFR 751.403 wherever a 
potentially exposed person's exposure to airborne concentrations or 
direct dermal contact of PIP (3:1) can reasonably be expected.
    (i) The owner or operator must limit access to regulated areas to 
authorized persons.
    (ii) The owner or operator must demarcate regulated areas from the 
rest of the workplace in a manner that adequately establishes and 
alerts persons to the boundaries of the regulated area and minimizes 
the number of authorized persons exposed to PIP (3:1) within the 
regulated area.
    (iii) The owner or operator must supply a respirator that complies 
with the requirements of paragraph (f) of this section and must ensure 
that all persons within the regulated area are using the provided 
respirators whenever exposures to airborne concentrations of PIP (3:1) 
can reasonably be expected.
    (iv) The owner or operator must ensure that while persons are 
wearing respirators in the regulated area, they do not engage in 
activities which interfere with respirator seal or performance.
    (v) Whenever any direct dermal contact with PIP (3:1) may occur 
within the regulated area the owner or operator must supply and ensure 
all persons are using dermal PPE that complies with the requirements of 
paragraph (f) of this section.
    (vi) The owner or operator must ensure that, within a regulated 
area, persons do not engage in non-work activities that may increase 
exposure to PIP (3:1).
    (3) Respiratory protection. The owner or operator must provide 
respiratory protection to all potentially exposed persons in the 
regulated area as demarcated in accordance with paragraph (f)(2) of 
this section, and according to the provisions outlined in 29 CFR 
1910.134(a) through (l) and as specified in this paragraph for 
potentially exposed persons to PIP (3:1) during expected time of use.
    (i) The type of respiratory protection that regulated entities must 
select and provide to potentially exposed persons must be at least as 
protective as a NIOSH-approved APF 10 air-purifying half mask 
respirator except for those uses identified in paragraph (f)(3)(ii) and 
(iii) of this section.
    (ii) The type of respiratory protection that regulated entities 
must select and provide to potentially exposed persons

[[Page 82312]]

must be at least as protective as a NIOSH-approved N95 respirator (APF 
10) for the manufacturing and processing of PIP (3:1), and PIP (3:1)-
containing products for use in new and replacement parts for motor 
vehicles, including heavy machinery, and aerospace vehicles.
    (iii) The type of respiratory protection that regulated entities 
must select and provide to potentially exposed persons must be at least 
as protective as a NIOSH-approved APF 50 purifying respirator for use 
as an intermediate to produce cyanoacrylate adhesives when PIP (3:1) 
and PIP (3:1)-containing products are not contained in a closed system 
(i.e., except as described in paragraph (f)(8)(iii) of this section).
    (4) Dermal protection. Owners or operators must require the donning 
of gloves that are chemically resistant to PIP (3:1) with activity-
specific training where dermal contact with PIP (3:1) is possible.
    (5) Training. The owner or operator must provide PPE training in 
accordance with 29 CFR 1910.132(f) to all persons required to use PPE 
under this subsection. The training shall be provided prior to or at 
the time of initial assignment to a job involving potential exposure to 
PIP (3:1).
    (6) Engineering controls. Owners or operators manufacturing 
cyanoacrylate adhesives using PIP (3:1) as an intermediate processing 
aid must use the following engineering controls:
    (i) Must take place in a closed loop system, and
    (ii) General and local exhaust ventilation must be provided.
    (7) Workplace protection records. Owners or operators subject to 
requirements described in this section must retain records of:
    (A) The name, workplace address, work shift, job classification, 
work area of each person reasonably likely to directly handle PIP (3:1) 
or handle equipment or materials on which PIP (3:1) may be present, the 
type of PPE selected to be worn by each of these persons, the 
respiratory protection used by each potentially exposed person and PPE 
program implementation, including fit-testing and training;
    (B) The basis for PPE selection (e.g., demonstration based on 
permeation testing or manufacturer specifications that each item of PPE 
selected provides an impervious barrier to prevent exposure during 
expected duration and conditions of exposure, including the likely 
combinations of chemical substances to which the PPE may be exposed in 
the work area); and
    (C) Appropriately sized PPE and training on proper application, 
wear, and removal of PPE, and proper care/disposal of PPE.
    (ii) These records must be maintained for a period of five years 
from the date the record is generated.
    (iii) These records must be made available to EPA upon request.
    (8) Exclusions.
    (i) Import of PIP (3:1) and PIP (3:1)-containing products and 
articles are not subject to the provision of paragraph (f) of this 
section.
    (ii) Processing of certain PIP (3:1)-containing products and 
articles: PIP (3:1)-containing adhesives and sealants, new and 
replacement parts to which PIP (3:1) has been added for such motor and 
aerospace vehicles, and the motor and aerospace vehicles that contain 
new and replacement parts to which PIP (3:1) has been added, PIP (3:1)-
containing specialized engine filters for locomotive and marine 
applications, and the products or articles described in paragraph 
(b)(1)(vi) and (vii) of this section are not subject to the provisions 
of paragraph (f) of this section.
    (iii) Processing of PIP (3:1) and PIP (3:1)-containing products for 
use as an intermediate to produce cyanoacrylate adhesives when PIP 
(3:1) and PIP (3:1)-containing products are contained in a closed 
system as described in paragraph (f)(6) of this section are not subject 
to the provision of paragraph (f)(3) and (4) of this section.
* * * * *
[FR Doc. 2023-25714 Filed 11-22-23; 8:45 am]
BILLING CODE 6560-50-P


