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Federal Register / Vol. 86, No. 3 / Wednesday, January 6, 2021 / Rules and Regulations 1910.135, 1910.136, 1910.138, and 1910.140. EPA assumes that employers will require, and workers will use, appropriate PPE consistent with OSHA
standards, taking into account employer-based assessments, in a manner sufficient to prevent occupational exposures that are capable of causing injury.
EPA assumes compliance with other federal requirements, including OSHA
standards and regulations. EPA does not read TSCA section 6h4 to direct EPA
to adopt potentially redundant or conflicting requirements. Not only would it be difficult to support broadly applicable and safe additional measures for each specific activity without a risk evaluation and in the limited time for issuance of this regulation under TSCA
section 6h, but imposing such measures without sufficient analysis could inadvertently result in conflicting or confusing requirements and make it difficult for employers to understand their obligations. Such regulations would not be practicable. Rather, where EPA has identified worker exposures and available substitutes, EPA is finalizing measures to reduce those exposures. As discussed in the proposed rule, EPA assumes that the worker protection methods used by employers, including in response to existing OSHA
standards, in addition to the regulatory measures taken for each chemical, meaningfully reduce the potential for occupational exposures. Although some commenters agreed with this approach, others thought that EPA should establish worker protection requirements for those uses that would be allowed to continue under the final rule. Information provided to EPA
before and during the public comment period on the proposed rule indicates that employers are using engineering and process controls and providing appropriate personal protective equipment PPE to their employees consistent with these requirements, and EPA received no information on decaBDE to suggest this is not the case.
Further, EPA has not conducted a risk evaluation on decaBDE or any of the five PBT chemicals. Without a risk evaluation and given the time allotted for this rulemaking, EPA cannot identify additional engineering or process controls or PPE requirements that would be appropriate to each chemical-specific circumstance. For these reasons, EPA
has determined that it is not practicable to regulate worker exposures in this rule through engineering or process controls or PPE requirements.
EPA received comments regarding the use of PBT chemicals in research and development and lab use. Lab use is
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addressed under newly established 40
CFR 751.401b as the manufacturing, processing, distribution-in-commerce and use of any chemical substance, or products and articles that contain the chemical substance, for research and development, as defined in new 40 CFR
751.403. Research and Development is defined in new 40 CFR 751.403 to mean laboratory and research use only for purposes of scientific experimentation or analysis, or chemical research on, or analysis of, the chemical substance, including methods for disposal, but not for research or analysis for the development of a new product, or refinement of an existing product that contains the chemical substance. This will allow, for example, for samples of environmental media containing PBTs, such as contaminated soil and water, to be collected, packaged and shipped to a laboratory for analysis. Laboratories also must obtain reference standards containing PBTs to calibrate their equipment, otherwise they may not be able to accurately quantify these chemical substances in samples being analyzed. However, research to develop new products that use PBTs subject to 40 CFR part 751 subpart E, or the refinement of existing uses of those chemicals, is not included in this definition, and those activities remain potentially subject to the chemical specific provisions in 40 CFR part 751
subpart E. EPA believes it is not practicable to limit research and development activity as defined, given the critical importance of this activity to the detection, quantification and control of these chemical substances.
Finally, EPA received comments regarding requirements for resale of decaBDE-containing products and articles, as well as products and articles containing other PBT chemicals undergoing TSCA section 6h rulemaking. One commenter stated that because the proposed definition of person includes any natural person, the proposed prohibitions would seem to apply to anyone selling products or articles containing decaBDE
at a garage or yard sale. EPAHQ
OPPT201900800559 EPA did not intend to impose these final decaBDE
regulations on yard sales or used product or article sales and has added language in 40 CFR 751.401 to clarify this. The prohibition and recordkeeping requirements in this final rule exclude decaBDE-containing products and articles that have previously been sold or supplied to an end user, i.e., any person who purchased or acquired the finished good for purposes other than resale.

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III. Provisions of This Final Rule A. Scope and Applicability EPA carefully considered all public comments and information received related to the proposal. This rule finalizes with some modifications EPAs proposal to prohibit the manufacturing and processing of decaBDE, and products and articles that contain decaBDE, except for the following exclusions and delayed compliance dates from the date of publication of the prohibition:
One year for distribution in commerce of products and articles containing decaBDE.
18 months for any manufacture, processing and distribution in commerce of decaBDE for use in curtains in the hospitality industry, and the curtains to which decaBDE has been added.
Two years for any processing and distribution in commerce of decaBDE
for wire and cable insulation in nuclear power generation facilities, and the decaBDE-containing wire and cable insulation.
Three years for any manufacture, processing and distribution in commerce of decaBDE for use in parts installed in and distributed as part of new aerospace vehicles, and the parts to which decaBDE has been added for such vehicles. After the end of their service lives for import, processing, and distribution in commerce of aerospace vehicles manufactured before three years after the effective date of the rule that contain decaBDE in any part. After the end of their service lives for manufacture, processing, and distribution in commerce for use in replacement parts for aerospace vehicles, and the replacement parts to which decaBDE has been added for such vehicles.
After the end of their service lives, or 2036, whichever is earlier, for manufacture, processing, and distribution in commerce for use in replacement parts for motor vehicles, and the replacement parts to which decaBDE has been added for such vehicles.
After the end of their service lives for distribution in commerce of plastic shipping pallets manufactured prior to publication of the final rule, that contain decaBDE.
The exclusion for processing and distribution in commerce for recycling of decaBDE-containing plastic products and articles i.e., the plastic to be recycled is from product and articles that were originally made with decaBDE, and for decaBDE containing products and articles made from such
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