EPA Proposes Further Extension of Compliance Dates for PIP (3:1)-Containing Articles

The U.S. Environmental Protection Agency (EPA) announced on October 21, 2021, that it is proposing to extend further the compliance dates related to articles containing phenol, isopropylated phosphate (3:1) (PIP (3:1)) to ensure supply chains for key consumer and commercial goods are not disrupted. As reported in our September 3, 2021, memorandum that addresses a September 17, 2021, final rule, EPA provided a short-term extension of certain compliance dates for PIP (3:1) to March 8, 2022, “to address the hardships inadvertently created by the original applicable compliance dates in the January 2021 final rule.” 86 Fed. Reg. 51823. EPA is announcing a proposal to extend further the compliance date 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 October 31, 2024, along with the associated recordkeeping requirements for manufacturers, processors, and distributors of PIP (3:1)-containing articles. Comments will be due 60 days after EPA publishes the proposed rule in the Federal Register. EPA has posted a pre-publication version of the proposed rule (proposed rule).

EPA states that its proposed rule also provides a description of the specific kinds of information it will require to support any additional extensions to the compliance dates. According to the prepublication version of the proposed rule, EPA will evaluate requests for extensions beyond October 2024 by evaluating the level of detail and documentation provided by the commenters on:

• The specific uses of PIP (3:1) in articles throughout their supply chains;
   
• Concrete steps taken to identify, test, and qualify substitutes for those uses, including details on the substitutes tested and the specific certifications that would require updating;
   
• Estimates of the time required to identify, test, and qualify substitutes with supporting documentation; and
   
• Documentation of the specific need for replacement parts, which may include the documented service life of the equipment and specific identification of any applicable regulatory requirements for the assurance of replacement parts.
   

EPA also requests comment on whether these are the appropriate types of information for use in evaluating compliance date extensions, and whether there are other considerations that should apply. Without this more specific information, EPA states that it “will be unlikely to extend the compliance dates again.”

According to EPA, the articles covered by the proposed rule include a wide range of key consumer and commercial goods such as cellular telephones, laptop computers, and other electronic and electrical devices and industrial and commercial equipment used in various sectors, including transportation, construction, agriculture, forestry, mining, life sciences, and semiconductor production.

Next Steps on Final PBT Rules

As indicated in EPA’s September 3, 2021, announcement and reported in our September 3, 2021, memorandum, EPA intends to issue a proposal for a new separate rulemaking on PIP (3:1) and the other four persistent, bioaccumulative, and toxic (PBT) chemicals — 2,4,6-tris(tert-butyl)phenol (2,4,6-TTBP), decabromodiphenyl ether (decaBDE), hexachlorobutadiene (HCBD), and pentachlorothiophenol (PCTP) — in spring 2023. EPA states that it is reviewing the provisions of the final PBT rules, evaluating the other applicable provisions of amended TSCA, and determining how the Executive Orders and other Administration priorities could be addressed, along with the new information that has been provided by stakeholders in response to a March 2021 notification and request for comments. EPA is considering revising the final rules to reduce exposures further, promote environmental justice, and protect better human health and the environment.

Additionally, EPA states in the prepublication version of the proposed rule that it will consider in the development of the planned 2023 proposed rule the need for additional extensions to the compliance dates beyond those established in the final rule associated with the announced proposal. EPA further states “EPA also intends to thoroughly review the justifications underlying the exclusions in the January 2021 PIP (3:1) final rule and the other final rules under TSCA section 6(h) to determine whether to adopt new compliance dates for those activities currently excluded from the January 2021 final rules or to further extend compliance dates that have already been extended, consistent with the statutory directive to reduce exposure to the extent practicable.”

Commentary

The proposed rule announced October 21, 2021, should provide considerable comfort to importers, processors, and distributors, including retailers of electric and electronic devices, although what will be included in the associated final rule is to be determined. We imagine, however, that many may be disappointed by the length of the proposed extension to the compliance date. As the many comments submitted in response to EPA’s March 2021 notice and request for additional comment demonstrate, most importers and distributors of electric and electronic articles could not determine with confidence whether PIP (3:1) was in any part of any article, whether it could be replaced if it was, and it would take years to survey the complex global supply chains that underlie most complex articles. EPA states in the proposed rule, “While the consumer electronics sector and some industry commenters provided detailed information on the steps required to replace PIP (3:1) in their supply chains, along with reasonable estimates of the time needed to complete each of those steps, most did not.”

Potentially impacted manufacturers, importers, processors, and distributors should again consider the need to comment on this proposed rule and include, where possible, the detailed types of information EPA seeks in the proposed rule to support the existing proposed and further extensions to the compliance date. This should include updates and enhancements to any comments submitted on the March 2021 notice.

As we stated in our September 3, 2021, memorandum, while we understand EPA’s need for additional information, we question whether EPA is fully aware of the formidable commercial challenges of obtaining specificity on every part in a device as complex as a computer. It will be critical to address progress made in surveying supply chains and seeking and qualifying replacements. In addition, it will be critical for commenters to provide details related to any necessary testing or certification for parts found to contain or that may contain PIP (3:1). Preparing such comments within 60 days will be a significant challenge, especially considering that the end of that time period will include the holiday season. Once the comments are submitted, EPA will again be challenged to review the comments and their requested granularity and to publish the updated rule in final prior to the current March 8, 2022, compliance date.

We note that in the proposed rule, EPA states that in its 2023 rulemaking on the PBTs, “EPA will address comments received in response to the March 2021 notification and request for comments that are not addressed by the September 2021 final rule extending PIP (3:1) compliance dates.” Interpretive-type requests for clarification, such as “EPA Should Expressly Clarify That Articles Containing PIP (3:1) in Adhesives and Lubricants Are Excluded from Any Prohibition” (see 40 C.F.R. Section 751.407(a)(1), (a)(2)(i), and (b)(1)(ii)), “EPA Should Clarify That the Recordkeeping and Downstream Notification Requirements Do Not Apply to the Activities Listed at 40 C.F.R. Section 751.401(b),” and “EPA Should Clarify the R&D Exemption as It Applies to the Final Rule So That It Allows for the Use of PIP (3:1) in the R&D for Replacement Products and Articles That Do Not Contain PIP (3:1)” (see 40 C.F.R. Section 751.401(b)(3)), were presented in comments submitted on the March 2021 notice, unrelated specifically to compliance date extensions, that were not addressed in the September 2021 final rule nor in the current proposed rule. Answers to interpretive-type questions are critical for determining the scope of and compliance with the PBT rules, and EPA should not wait until 2023 to address these type of issues. As with other actions, including, but not limited to, the TSCA Fees Rule and the Chemical Data Reporting Rule, EPA should respond to questions on interpretive issues in broadly available public postings on its website, through questions and answers, fact sheets, or other mechanisms. While we recognize the resource limitations EPA faces, waiting until 2023 to address the critical questions presented in comments received in May 2021 or earlier leaves affected companies and other persons in regulatory and commercial limbo.