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Federal Register / Vol. 86, No. 178 / Friday, September 17, 2021 / Rules and Regulations because the effect is not adverse. See Indep. U.S. Tanker Owners Comm. v.
Skinner, 884 F.2d 587 D.C. Cir. 1989
upholding immediate effective date for a final rule intended to avoid disruption in domestic trade by lifting a ban on vessels participating in domestic shipping, mandate modified on other grounds, 901 F.2d 1116 D.C. Cir. 1990.
EPA has determined that this rule relieves a restriction by providing additional time for regulated entities to comply with the applicable requirements. Accordingly, EPA is making this rule effective immediately upon publication.
C. What action is the Agency taking?
EPA is amending the regulations at 40
CFR 751.407a2 to provide for a phased-in prohibition for the processing and distributing in commerce of PIP
3:1 for use in certain articles and for the processing and distributing in commerce of certain PIP 3:1containing articles. Articles covered by this phased-in prohibition include any article not otherwise covered by a different compliance deadline or exclusion described in 40 CFR
751.407a2ii or b. The compliance date for the prohibitions on processing and distributing in commerce of PIP
3:1 for use in articles, and the processing and distributing in commerce of PIP 3:1-containing articles in the final rule published on January 6, 2021 Ref. 1, as well as for the recordkeeping requirements, was 60
days after the date of publication, or March 8, 2021. With this amendment, EPA is extending the compliance date for the processing and distributing in commerce of PIP 3:1 for use in articles, and the processing and distributing in commerce of PIP 3:1-containing articles, to March 8, 2022. With respect to articles covered by this final rule, EPA is also extending the compliance date from March 8, 2021, to March 8, 2022, for the recordkeeping requirements applicable to manufacturers, processors, and distributors of PIP 3:1-containing articles. In addition to this final rulemaking, EPA is planning to issue a separate notice of proposed rulemaking NPRM in the near future to request comment on a further compliance date extension for certain PIP 3:1containing articles, the PIP 3:1 used to make those articles, and the recordkeeping associated with PIP 3:1containing articles.
D. Why is the Agency taking this action?
EPA is issuing this final rule to address the hardships inadvertently created by the January 2021 final rule on
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PIP 3:1 Ref. 1 due to uses and supply chain challenges that were not communicated to EPA until after the rule was published. Shortly after the final rule was published in January 2021, many stakeholders, including, for example, the electronics and electrical manufacturing sector and their customers, raised significant concerns about their ability to meet the March 8, 2021, compliance date for PIP 3:1containing articles Ref. 2. These stakeholders requested an extension of the compliance date in order to clear the existing articles through the supply chain, find and certify an alternative chemical, and produce or import new articles that do not contain PIP 3:1. In the Federal Register of March 16, 2021
Ref. 3, EPA requested additional comment on this specific issue Ref. 3, as well as on other aspects of all of the TSCA section 6h final rules in general Refs. 4, 5, 6, 7. According to the comments received in response to the March comments solicitation, a wide range of key consumer and commercial goods are affected by the prohibitions in the PIP 3:1 final rule such as cellular telephones, laptop computers, and other electronic devices and industrial and commercial equipment used in various sectors including transportation, life sciences, and semiconductor production Ref. 8. This action will ensure that the supply chains for these important articles continue uninterrupted in the near term while allowing EPA to take additional comment on a separate proposal for a longer-term compliance date extension.
E. What are the incremental economic impacts?
EPA evaluated the potential incremental economic impacts and determined that these changes reduce the existing burden of this action. The quantified effect of this compliance date extension reflects the difference between the incremental cost and benefits of the final rule as it was originally promulgated and the incremental cost and benefits of this final rule with the compliance date in place. Quantified costs were estimated for substitution and recordkeeping by moving the associated costs, assuming they will be incurred as the compliance date extension expires. In summary, extending the compliance date by one year for PIP 3:1-containing articles would result in an estimated annualized cost savings of $0.9 million from a cost of $23.6 million for the original rule to $22.7 million at a 3 percent discount rate or $1.3 million from $22.8 million for the original rule to $21.5 million for this final rule at a 7 percent discount
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rate over a 25-year time horizon. Other qualitative costs savings may include allowance of more time for manufacturers and retailers to sell articles prior to the prohibition deadline rather than being forced to dispose of them, thereby avoiding loss of revenue from those products. Secondly, any reformulation costs such as research and development, laboratory testing, and re-labeling could be reduced since companies will have more time to gather information regarding the steps involved in the reformulation process.
The level of these cost savings is dependent on complexity of achieving needed efficacy, length of time needed for testing and quality control, and the current status of development of alternatives, which may vary greatly by sector and end use product. Lastly, the compliance date extension may provide additional time for information gathering through the supply chain to alleviate the necessity for chemical testing of certain articles. Although the benefits of the final rule were not quantified, the extension would also postpone decreases in potential releases and exposures to PIP 3:1. Due to discounting, in a manner similar to costs, this postponement would lead to lower potential benefits. On balance, this rule is appropriate in light of the disruptive consequences of implementing the prohibition without the compliance extension. The economic consequences such as loss of supply could be severe, given the apparent ubiquity of the chemical in commerce. Thus, EPA has determined that the cost savings and avoidance of disruption to industry outweigh the delayed realization of benefits that may accrue from reduced exposure.
II. Background A. History of the TSCA Rulemaking on PIP 3:1
TSCA section 6h requires EPA to take expedited regulatory action under TSCA section 6a for certain PBT
chemicals identified in the 2014 Update to the TSCA Work Plan for Chemical Assessments Ref. 9. More specifically, under TSCA section 6h1A, the subject chemical substances are those that:
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 2012 TSCA Work Plan Chemicals:
Methods Document Ref. 10 or a successor scoring system;
Are not a metal or a metal compound; and
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