On September 3, 2021, the U.S. EPA posted a pre-publication federal register notice that will extend the compliance deadline restricting Phenol, isopropylated phosphate (3:1) (PIP (3:1)) in articles to March 8, 2022, instead of the current date of March 8, 2021.  EPA will also be opening a public consultation on possible further extensions where justified.   The consultation will provide stakeholders an opportunity for “describing specific information that the Agency would need to justify any further compliance deadline extensions.”

The EPA also posted a summary on the current situation on their website[1], and a page with links to relevant rules on all five PBT substance restrictions[2]. A copy of the pre-publication is available for download[3].     A summary of the change is excerpted below:

Note:  The prepublication notice is not an official rule until it is finalized and published in the federal register (this takes time), but it has been signed by the EPA administrator. The notice signals that the EPA intends to provide manufacturers, importers and distributers at least six additional months to collect supply chain information for PIP (3:1) content, take appropriate action, and to respond to the public consultation if a further extension is justified.

Background information provided in the notice indicates that EPA started the risk assessment seven years ago, published the draft rule in 2019, and has conducted multiple public consultations.  There was no indication from EEE manufacturers that PIP (3:1) was being used or that there would be a challenge to the industry with the restriction. EPA was under a strict timeline specified in TSCA to assess and restrict PIP (3:1) given its PBT properties.

Never-the-less, the EPA has flexibility to provide an exemption for applications that are of an essential nature (e.g. national defense and public health), but the application needs to be specific and justified.

During the March-May 2021 consultation, the information that the EPA received from industry was very general and not specific enough to grant a longer extension. Furthermore, consumer and environmental groups provided comments that the industry has already had seven years to prepare and that no additional extension should be provided. Therefore, the EPA in their next consultation will be specific on exactly what information they require to justify an extension.

Discussion of Impact on EEE Manufacturers

The one-year extension is helpful but challenges remain with collecting information from supply chains and redesigning products containing PIP (3:1) – especially products with long design cycles or qualification times. The EEE industry associations had requested a blanket four-year extension to the PIP (3:1) restrictions so the total one-year extension falls significantly short.  EPA realizes that some product categories have long design and qualification cycles (e.g. medical equipment) or use a supply chain that is focused on a sector that already has an exemption (e.g. heavy equipment using the automotive supply chain) and that the timeline for these products needs to be reconsidered.  But each product category needs to be justified.

[1] EPA summary of PIP (3:1) events, https://www.epa.gov/chemicals-under-tsca/epa-announces-plan-new-rulemaking-pbt-chemicals-extends-existing-compliance

[2] EPA links to PBT rules, https://www.epa.gov/assessing-and-managing-chemicals-under-tsca/persistent-bioaccumulative-and-toxic-pbt-chemicals

[3] PIP (3:1) prepublication rule, https://www.epa.gov/system/files/documents/2021-09/prepubcopy_frl-6015.5-03-ocspp_tsca-pbt_pip31_compliance-date_finalrule_20210903_admin_0.pdf