The U.S. Environmental Protection Agency (EPA) released a Pre-Published Final Rule on March 3, 2022, amending its compliance guidelines and existing enforcement dates for affected stakeholder industries in their regulation on Phenol, Isopropylated, Phosphate (3:1) (PIP (3:1)) promulgated under the Toxic Substances Control Act (TSCA). This news precedes the start of the pre-existing compliance date of March 8, 2022.
According to the Pre-Published Final Rule, the EPA made the following decisions:
- Extended the compliance date for manufacturers, processors, and distributors of PIP (3:1), or articles containing PIP (3:1) until Oct. 31, 2024.
- Expanded its interpretation of the term ‘Motor Vehicle’ within the PIP (3:1) regulation to include much of the off-road equipment industry under the current automotive exemption.
According to the EPA:
“EPA notes that some of the articles produced by these commenters would be considered motor vehicles. As EPA has stated in response to stakeholder inquiries, EPA generally interprets the term “motor vehicle” to mean a transport vehicle that is propelled or drawn by mechanical power, such as cars, trucks, motorcycles, boats, and construction, agricultural, and industrial machinery. To the extent that the commenters produce motor vehicles, they are currently covered under the exclusions provide in the January 2021 final rule for new and replacement motor vehicle parts.”
Background
PIP (3:1) is plasticizer, flame retardant, and anti-wear additive, widely adopted throughout the non-road equipment sector for use in their electronic components, safety systems, and hydraulic fluids. This substance is valued for its capacity to prevent the breakdown of parts and components under extreme conditions. While the functionality of this material provides several crucial characteristics needed to ensure compliance with current safety, emissions, and fire prevention regulations, PIP (3:1) is also considered a priority Persistent, Bioaccumulative and Toxic (PBT) chemical by the EPA.
In response to the PBT properties found in PIP (3:1), on Jan. 6, 2021, the EPA published its original rule; Phenol, Isopropylated Phosphate (3:1) (PIP 3:1); Regulation of Persistent, Bioaccumulative, and Toxic Chemicals Under TSCA Section 6(h), establishing the following requirements:
- The prohibition of all manufacturing, processing, and distribution of PIP (3:1) in the United States by March 8, 2021,
- Requiring all manufacturers, processors, and distributors of PIP (3:1), or articles containing PIP (3:1), to maintain records related to the presence of the substance in the facilities and products,
- Requiring all manufacturers, processors, and distributors of PIP (3:1), or articles containing PIP (3:1), to notify downstream users of PIP (3:1) related hazards found in their products, and
- The exemption of all new or replacement parts for the automotive and aerospace industry from these provisions
In response to the EPA’s Jan. 6 rulemaking, AEM continually engaged with EPA throughout the year on multiple rulemaking and comment opportunities to provide the non-road equipment industry’s expertise, position, and obstacles regarding the provisions in the original Final Rule. As a result of this effort, AEM helped secure an extension of the compliance date, as well as a more favorable interpretation of the automotive exemption clause in this most recent EPA decision.
The Road Ahead
Despite the recent positive news, the story of this regulation is far from over. In the Pre-Published Final Rule, EPA announced a planned future rulemaking for all five of the original PBT rules, including PIP (3:1), to review the justifications underlying the existing exemptions and whether to adopt new restrictions on excluded applications. Part of this activity would include an evaluation on whether a compliance data can be established for the automotive, aerospace and non-road equipment industries.
AEM’s Safety & Product Leadership Department intends to continue its efforts to communicate, engage and educate other stakeholders regarding this specific policy realm. This includes, our members, sister trade associations, end users, suppliers and of course, governmental decisionmakers. Through continued cooperation and engagement, AEM can voice the industry’s position and help build more effective public policy.
To learn more about EPA’s recent Pre-Published Final Rule or future rulemaking activity related to PIP (3:1), reach out to AEM's Regulatory Compliance Steering Committee or contact AEM’s Jason Malcore at jmalcore@aem.org.
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