Phenol, isopropylated phosphate (3:1) or “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 and greases, various industrial coatings, adhesives, sealants, and plastic articles. As required under the Toxic Substances Control Act (TSCA), the EPA issued five final rules on January 6, 2021 to reduce exposures to certain chemicals that are persistent, bioaccumulative and toxic (PBT). These chemicals build up in the environment over time and can therefore have potential risks for exposed populations, including the general population, consumers, and commercial users. You may be potentially affected by this action if you manufacture (including import), process, distribute in commerce, or use phenol, isopropylated phosphate (3:1) (PIP (3:1)) or products containing PIP (3:1), especially flame retardants in plastics or functional fluids in aircraft and industrial machinery. Learn more about PIP (3:1)
The EPA’s January 6th Rule originally included a compliance date of March 8, 2021; however, the Agency has announced that it is delaying this compliance Rule pending further public comment and Agency review as noted below. NAMM will provide an update on the comment period timeline and once available, urges members to offer comments relative to the timeline and requirements to adjust product production supply chain and the elimination of PIP (3:1). Check here for updates.
9/17/21: PIP (3:1) EPA Compliance Rule Extended to March 8, 2022
The U.S. Environmental Protection Agency (EPA) issued a final rule on September 17, 2021 which includes another postponement - until March 8, 2022 - of a prior final rule to ban processing and distribution in commerce of certain uses of phenol, isopropylated phosphate (3:1) (better known as PIP (3:1)). The September 17 Federal Register final rule announcement also states that EPA will issue a separate and new notice of proposed rulemaking (NPRM) in the “near future” to provide industry stakeholders and other members of the public another opportunity to request, and document the need for, a further compliance extension.
The March 8, 2022, compliance extension applies to the processing and distribution of certain articles containing PIP (3:1) and other forms of PIP (3:1) to be used in such articles. PIP (3:1) may be found in articles such as electronics and musical instrument manufacturing is listed among “potentially affected entities.” There are a few narrow exemptions for products and industries but, in general, all other distribution and uses of PIP (3:1) have been banned since February 2021.
This extension is the second one. The first, contained in EPA’s No Action Assurance (NAA) notice provided an emergency extension of the original March 8, 2021, compliance date. That extension was for six months and slated to expire on September 5, 2021.
In conjunction with the March 2021 NAA notice, the EPA also issued a request for more public comments on the PIP (3:1) compliance process. In response to this request, NAMM – working in collaboration with aligned industry partners – submitted written recommendations to EPA. Among other items, NAMM strongly recommended that EPA extend the compliance deadline to provide companies in the music industry with sufficient time to identify and replace article components containing PIP (3:1), address related complex supply chain issues, and sell-through existing stock.
EPA took these and similar industry comments under consideration in its recent announcement, which provides for the following:
- An extension of the compliance deadlines to March 8, 2022, for prohibitions on processing and distribution of PIP (3:1) and associated recordkeeping requirements. The six-month extension is intended to give companies additional time to comply and to allow the sell through of existing stocks of articles that contain PIP (3:1).
- EPA will initiate a new proposed rulemaking on a further extension of the compliance dates for PIP (3:1) in articles. Such extensions will be considered if supported by data and specific information. There will an opportunity to submit documentation and related comments once the NPRM is issued.
NAMM will continue to closely monitor EPA activities and keep NAMM members apprised of developments on this ongoing regulatory matter.
- 4/9/21: URGENT Request for Information for Formal Response to EPA Concerning Product Element PIP (3:1)
4/9/21: URGENT Request for Information for Formal Response to EPA Concerning Product Element PIP (3:1)
NAMM requests member participation in a survey that will assist in the preparation of a formal appeal to the US EPA concerning the timeline for implementation of PIP (3:1) product content compliance. Please submit and complete the survey by April 23, 2021 that summarizes company products that contain PIP (3:1), alternatives and efforts to remove or replace PIP (3:1) supply chains. This document outlines EPA’s requirement to eliminate the use of PIP (3:1), the delay on compliance issued by the EPA on March 8 and survey items; the survey can be completed online. Note that survey is confidential; information from the survey will be shared with the EPA by NAMM on behalf of its members.
NAMM member companies can also submit comments directly to the EPA no later than May 17, 2021. The Federal Register notice contains important and detailed information on how to submit comments directly.
Deadline: April 23, 2021
- 3/17/21: EPA Reopens PIP (3:1) Rulemaking for Additional Public Input with Comments Due May 17
On Tuesday, March 16, 2021, the Environmental Protection Agency (EPA) issued a notice of proposed rulemaking to request additional public comments on five final rules recently promulgated under the Toxic Substances Control Act (TSCA). This notice opens a 60-day comment period for phenol, isopropylated phosphate (3:1), or (PIP 3:1), and four other chemicals that EPA designated as persistent, bioaccumulative and toxic (PBT).
This post focuses only on the PIP (3:1) Rule because of the short compliance timeline included in the Final Rule and its potential to have an adverse impact on a variety of music and related products. As reported earlier, NAMM and other stakeholders directly contacted EPA officials to raise concerns about the feasibility of the Rule’s 60-day compliance deadline that was slated to take effect on March 8, 2021.
In response to concerns raised by NAMM as well as others, the EPA announced on March 8 that it was suspending the compliance provisions of concern. EPA has now reopened the rulemaking for more public input.
According to the EPA, PIP (3:1) is used as a plasticizer, a flame retardant, an anti-wear additive, on industrial coatings, adhesives, sealants and plastic articles. Without EPA’s action to solicit additional input, all manufacturing and distribution of articles containing PIP (3:1) would have been banned as of March 9.
Persons or Businesses that May be Affected
Those that may be affected include persons or businesses that currently or may manufacture, process, distribute, use and/or dispose of products using PIP (3:1). PIP (3:1) *may be found in:
- acoustic pianos
- guitar amplifiers
- consumer audio (i.e., consumer electronics)
- electronic keyboards, synthesizers and portable keyboards
- speakers and mixers (commercial and professional audio)
- digital recording interfaces
*Please note that this list includes possible products impacted; it is not exhaustive.
EPA No Action Assurance Letter
Earlier, EPA also issued a No Action Assurance letter and a request from the EPA Acting Assistant Administrator for that letter. These documents are all available on EPA’s website. In the letter, EPA noted that it would be exercising enforcement discretion not to enforce, in certain instances, the PIP (3:1) Rule’s compliance deadline for up to 180 days (around September 4, 2021).
The “No Action Assurance” specifically applies to violations of the prohibitions on the processing and distribution of PIP (3:1) for use in articles, or articles containing PIP (3:1). This delay is intended to provide enough lead time for the submission of comments, EPA’s review of these comments, and possible revisions to the rule’s compliance deadlines.
It should be noted, however, that some requirements of the PIP (3:1) Rule remain enforceable. These include, but are not limited to, recordkeeping and a prohibition on release of PIP (3:1) into water during manufacture, processing and distribution. The recordkeeping requirements went into effect March 8, 2021 and do apply to manufacturers, processors and distributors.
Call to Action
EPA invites public comment and comments must be submitted to the EPA within 60 days from the Federal Register notice – so on or before May 17, 2021.
In particular, the EPA is seeking comments on issues associated with the March 8, 2021 compliance date in the PIP (3:1) Rule for certain regulated articles. To amend this deadline, EPA needs additional information about its impact as well as a workable alternative timeframe. But EPA cautions that, under the TSCA statute, rules must be in place “as soon as practicable” and allow for a reasonable transition period.
NAMM will be submitting a comment letter to the EPA that will largely focus on the need for a longer transition period and a reasonable extension of the compliance deadline. We strongly encourage affected NAMM members to do the same.
For example, you may wish to provide the nature of your business and describe the types of products affected by the rule. It would be particularly helpful to also include details on how long it will take to:
- Identify the specific products with PIP (3:1).
- Ensure that PIP (3:1) is no longer in the products – which may entail finding or manufacturing alternative replacement components.
- Identify products with PIP (3:1) and identify alternatives – with the aim of removing or replacing items with PIP (3:1). Such items could be in your supply chain.
- Comply with the Rule’s recordkeeping requirements – which remain in effect.
- Submit comments to EPA by no later than May 17, 2021. The Federal Register notice contains important and detailed information on how to submit your comments.
NAMM will be seeking additional input from its members concerning current use and planned phase out of PIP (3:1) in the coming weeks. Please contact Claire Kreger-Boaz if you have questions.
Federal Register notice on the proposed rulemaking and submission of public comments that includes procedures on how to submit comments that may include confidential business information (CBI).
- 3/9/21: EPA Delays, Reopens Rule for Additional Public Input; NAMM Urged New Review Due to Short Compliance Timeline
On the evening of March 8, the U.S. Environmental Protection Agency (EPA) announced that it is delaying a Rule on the chemical Phenol, Isopropylated Phosphate (3:1) (PIP 3:1), pending further public comment and Agency review, including a re-examination of the compliance dates for certain products and articles. PIP (3:1) is considered a persistent, bioaccumlative and toxic (PBT) chemical under the Toxic Substances Control Act (TSCA), and therefore subject to regulation or prohibition.
The now-delayed Rule was issued on January 6, 2021 and included a problematic compliance date of March 8, 2021. If allowed to stand, this meant that in just 60 days, manufacturers and retailers of music products such as electronics containing PIP (3:1) would no longer be permitted to make, import, or sell these products.
NAMM, as a member of a coalition with other interested stakeholders, urgently and directly communicated concerns about this unreasonable compliance timeframe to the EPA. NAMM informed agency officials, in conference calls and in writing, that the new prohibitions could impact articles used in a wide variety of music products, especially electronics, and that the supply chain would be significantly disrupted. We requested that a more reasonable compliance time be established to take into account products already in commerce as well as to allow sufficient lead time for manufacturers to identify and secure alternate components. NAMM’s concerns are outlined in a letter submitted to EPA officials in February. Members of our coalition further noted an array of additional products that would be adversely affected including cell phones, semiconductors, medical devices, and even equipment needed to store and move COVID-19 vaccines.
In the announcement, the Agency said it will be taking the following steps:
- Opening a new 60-day comment period for the public; and
- Issuing a temporary 180-day “No Action Assurance” – which operates, essentially, as an enforcement delay.
EPA will review the public comments, which could lead to changes to the Rule. EPA noted that the “specific issue” of extension of the compliance deadline will be addressed as part of the PIP (3:1) Rule’s re-examination. Read the EPA announcement. It also addresses rules for four other PBT chemicals, but the main focus is on PIP (3:1).
The notice to officially open the 60-day public comment period will be published in the Federal Register; future posts will include a link to the notice and information on how to submit comments. NAMM will provide an update on the comment period timeline and once available, urges members to offer comments relative to the timeline and requirements to adjust product production supply chain and the elimination of PIP (3:1).