What: EPA introduced it’s exercising enforcement discretion to not implement the ban on processing and distributing articles containing PIP (three:1) after March eight, 2021 for a interval of as much as 180 days.
Who’s Affected?: Producers and distributors of articles which will include PIP (three:1), a flame retardant and plasticizer, e.g., in electrical jacketing or cords.
What Ought to I Do?: Take steps to adjust to the recordkeeping necessities. Work on getting PIP (three:1) out of your provide chain. Submit feedback inside 60 days.
Late within the day on March eight, 2021, EPA introduced that it’s exercising enforcement discretion to not implement the compliance deadline within the PIP (three:1) rule for as much as 180 days (as late as September four, 2021). Throughout that point, it should conduct a assessment of that rule and the opposite 4 guidelines on persistent, bioaccumulative, and poisonous substances (PBTs) revealed on January 6, 2021. Importantly, some necessities of the PIP (three:1) rule stay enforceable even for article producers and distributors.
This last-minute reprieve comes as a reduction to article producers and distributors all through the nation, as PIP (three:1), a flame retardant and plasticizer, is utilized in many electrical and digital merchandise, amongst others. With out this EPA motion, the rule would have prohibited all processing (together with meeting) and distribution of articles containing PIP (three:1) beginning March 9.
EPA additionally introduced a 60-day remark interval on all 5 PBT guidelines and requested feedback on a lot of points.
EPA issued three paperwork on March eight: a prepublication model of a Federal Register discover, a No-Motion Assurance letter, and the request from the EPA Performing Assistant Administrator for that letter. These paperwork are all accessible on EPA’s webpage.
The Impending March eight Deadline Created a Disaster
PIP (three:1) is phenol, isopropylated phosphate (three:1), CAS No. 68937-41-7. The PIP (three:1) ultimate rule gives in 40 C.F.R. § 751.407(a)(1) that, with sure exceptions, “all individuals are prohibited from all processing and distributing in commerce of PIP (three:1), together with in PIP (three:1)-containing merchandise or articles after March eight, 2021.” This compliance deadline was 60 days after publication of the rule within the Federal Register on January 6.
Some commenters on the 2019 proposed rule had complained that the proposed 60-day compliance interval for PIP (three:1) was not practicable. Within the Response to Public Feedback doc for the ultimate rule, EPA rejected these feedback, saying, “outdoors of articles produced because of excluded actions, there may be little proof to recommend that PIP (three:1) is current in business and industrial articles.”
This led to a flurry of commerce affiliation letters to EPA after publication of the ultimate rule, largely from commerce associations for producers of electronics and electrical gear. These letters defined that PIP (three:1) does seem of their articles, and that it might take years to take away the substance from these articles. They requested EPA to increase the compliance deadline by rulemaking and, within the meantime, to train enforcement discretion to not implement the compliance deadline till EPA can change it by rulemaking.
EPA Has Supplied Brief-Time period Respiration Room on PIP (three:1) Compliance
The prepublication Federal Register discover introduced that EPA will assessment all 5 PBT guidelines and, “[i]n the meantime, the Company will train its enforcement discretion to not pursue enforcement actions for violations of the prohibitions on the processing and distribution of PIP (three:1) to be used in articles, or articles containing PIP (three:1) for as much as 180 days, whereas this assessment and company motion to handle this matter are pending.”
Additionally on March eight, the EPA Workplace of Enforcement and Compliance Assurance (OECA) issued a No Motion Assurance letter to implement that pledge. Its key passage reads:
As defined extra totally beneath, this No Motion Assurance establishes that the EPA will train its enforcement discretion to not pursue enforcement actions for violations of the prohibitions on processing and distribution of PIP (three:1) to be used in articles, and the articles to which PIP (three:1) has been added, outlined at 40 CFR § 751.407(a)(1) and for the requirement in 751.407(d)(2) that information required to be saved underneath 40 CFR § 751.407(d)(1) include a press release that the PIP (three:1), or the PIP (three:1)-containing articles, are in compliance with 40 CFR § 751.407(a), for these entities coated by the train of enforcement discretion relating to 40 CFR § 751.407(a)(1).
The letter signifies that the enforcement discretion will proceed till “(1) 11:59 PM ET, September four, 2021, or (2) the efficient date of a ultimate motion addressing the compliance date for the prohibition on processing and distributing in commerce of PIP (three:1); together with in PIP (three:1)-containing articles, whichever happens earlier.”
To What Does the No Motion Assurance Letter Apply?
The No Motion Assurance letter applies solely to articles, similar to “electronics, digital parts, electrical gear and parts, residence home equipment, manufacturing gear for semiconductors, heavy gear, off-road autos, curtains utilized in mining purposes, army tents, and autos that don’t qualify as motor autos for functions of this rule.”
The letter doesn’t lengthen to PIP (three:1) not already in articles, similar to PIP (three:1) itself or plastic into which PIP (three:1) has been compounded however which has not but been became an article. In TSCA parlance, the plastic containing PIP (three:1) is a “product” (also referred to as a “combination”). The 5 PBT guidelines embrace the next definitions of “article” and “product” in 40 C.F.R. § 751.403 that make clear that “product” doesn’t embrace articles:
Article means a manufactured merchandise: (1) Which is shaped to a selected form or design throughout manufacture, (2) Which has finish use perform(s) dependent in entire or partially upon its form or design throughout finish use, and (three) Which has both no change of chemical composition throughout its finish use or solely these adjustments of composition which don’t have any business objective separate from that of the article, and that outcome from a chemical response that happens upon finish use of different chemical substances, mixtures, or articles; besides that fluids and particles aren’t thought-about articles no matter form or design.
Product means the chemical substance, a mix containing the chemical substance, or any object that accommodates the chemical substance or combination containing the chemical substance that’s not an article.
These definitions seem within the Federal Register discover for the PBT rule on TTBP.
What Elements of the PIP (three:1) Rule Stay Enforceable?
Regardless of the No Motion Assurance letter, some provisions of the PIP (three:1) rule stay enforceable in opposition to article producers and distributors through the 180-day interval.
The PIP (three:1) rule consists of the next provisions:
Paragraph (a)(1), the prohibition on processing and distribution besides as in any other case offered.
Paragraph (a)(2), exceptions to paragraph (a)(1) with cut-off dates.
Paragraph (b), exceptions to paragraph (a)(1) with out cut-off dates.
Paragraph (c), a prohibition on launch to PIP (three:1) to water.
Paragraph (d), recordkeeping.
Paragraph (e), downstream notification.
The No Motion Assurance letter cautions:
The train of enforcement discretion is conditioned on compliance with all different relevant features of the Last PIP (three:1) Rule, together with:
40 CFR § 751.407(c) Prohibition on releases to water. After March eight, 2021, all individuals are prohibited from releasing PIP (three:1) to water throughout manufacturing, processing and distribution in commerce of PIP (three:1) and PIP (three:1) containing merchandise, and all individuals are required to comply with all relevant rules and greatest administration practices for stopping the discharge of PIP (three:1) and PIP (three:1)-containing merchandise to water throughout business use.
40 CFR § 751.407(d)(1) Recordkeeping. After March eight, 2021, individuals who manufacture, course of, or distribute in commerce PIP (three:1) or PIP (three:1)-containing merchandise or articles should keep extraordinary enterprise information, similar to invoices and bills-of-lading, associated to compliance with the prohibitions, restrictions, and different provisions of this part. These information should be maintained for a interval of three years from the date the file is generated.
40 CFR § 751.407(e)(2) Downstream notification. Every one who processes or distributes in commerce PIP (three:1) or PIP (three:1)-containing merchandise for any use after July 6, 2021 should, previous to or concurrent with the cargo, notify individuals to whom PIP (three:1) is shipped, in writing, of the restrictions described on this subpart.
Launch to Water
The prohibition on launch to water in paragraph (c) ought to have little impression on article producers that buy parts containing PIP (three:1) and don’t themselves deal with PIP (three:1) itself or mixtures containing PIP (three:1), similar to plastic into which PIP (three:1) has been compounded.
The recordkeeping provision of paragraph (d)(1) does impression article producers and distributors. The supply applies to information (similar to invoices and payments of lading, or one-time statements) acquired by product producers and distributors from upstream suppliers (implying a must ask suppliers for a press release about compliance, e.g., of their invoices or payments of lading or in a one-time assertion). Notably, it doesn’t seem to use to information of the invoices and payments of lading despatched by product producers and distributors to their downstream prospects, even when they hold copies of these paperwork.
However, downstream prospects which might be themselves processors or distributors of the articles that an organization provides are additionally topic to the recordkeeping requirement. Their solely supply of data is the corporate that provides these articles. Accordingly, firms that promote articles containing PIP (three:1) ought to think about offering their prospects with related statements for his or her merchandise, both in paperwork similar to invoices or payments of lading, or in one-time statements.
Paragraph (d)(2) gives, “These information should embrace a press release that the PIP (three:1), or the PIP (three:1)-containing merchandise or articles, are in compliance with 40 CFR 751.407(a).” The No Motion Assurance letter particularly says that this provision is just not enforceable through the 180-day interval, since throughout that interval processing and distribution of articles that don’t adjust to paragraph (a)(1) could proceed. Nonetheless, the letter additional explains:
Data required to be saved underneath 40 CFR § 751.407(d)(1) should include a press release that the PIP (three:1), or the PIP (three:1)-containing articles, are complying with all different features of the rule according to this No Motion Assurance.
This implies assertion of compliance should seem on paperwork similar to invoices and payments of lading or in a one-time assertion. A basic assertion about compliance with legal guidelines could not suffice, in EPA’s view. As a substitute, there should be a press release particular to compliance with the parts of the PIP (three:1) rule that stay enforceable. For article producers and distributors, these parts are the discharge to water provision of paragraph (c) and the recordkeeping provisions of paragraph (d)(1) and (d)(three). Paragraph (d)(three) says, “These information should be made accessible to EPA inside 30 calendar days upon request.”
The downstream notification provisions of paragraph (e)(1) and (e)(2) don’t apply to article producers and distributors (regardless of the reference to paragraph (e)(2) within the No Motion Assurance letter). Paragraph (e)(1) refers to every individual that “manufactures” (together with imports) PIP (three:1) itself. Paragraph (e)(2) refers to every individual that “processes or distributes in commerce PIP (three:1) or PIP (three:1)-containing merchandise.” Neither provision refers to individuals who course of or distribute PIP (three:1)-containing articles.
The SDS and label provisions of paragraphs (e)(three) and (e)(four) don’t apply to article producers and distributors both, since these paragraphs handle the right way to meet the notification requirement in paragraph (e)(2).
Will the 180-Day Interval Be Prolonged?
Presumably. The request for a no-action assurance letter defined that it requested for enforcement discretion lasting 180 days “to make sure that the provision chains for these vital articles proceed uninterrupted whereas OCSPP develops a ultimate company motion to increase the processing and distribution in commerce compliance dates for these articles as vital. This motion shall be issued no later than 180 days from March eight, 2021.” Thus, by early September EPA plans both to resolve that no extension is important or to increase the compliance deadline additional, by a rulemaking to be accomplished by then, however solely as justified by feedback.
What Ought to Feedback Say?
The prepublication model of the Federal Register discover asks for feedback on “any side” of all 5 PBT guidelines. These embrace the principles on PIP (three:1), decaBDE, TTBP, PCTP, and HCBD.
EPA is evidently contemplating including restrictions to these guidelines:
The general public is inspired to supply feedback and data referring to EPA’s statutory obligations underneath TSCA part 6(h) and the extent to which there are additional publicity reductions that might be achieved, together with publicity reductions for probably uncovered or vulnerable subpopulations and the surroundings. EPA is especially concerned with info referring to the impacts of the ultimate guidelines on human well being, together with probably uncovered or vulnerable subpopulations, and the surroundings. EPA can also be requesting touch upon implementation points related to these ultimate guidelines. EPA particularly invitations public touch upon extra measures or approaches that EPA might take along with the provisions within the ultimate guidelines.
Article producers and distributors will wish to remark particularly on what the discover refers to as “newly-raised points related to the March eight, 2021 compliance date within the PIP (three:1) rule for sure regulated articles.”
Feedback on the compliance date ought to transcend the letters that EPA has already acquired, which EPA describes as follows:
Stakeholders notice that the complexity of worldwide provide chains makes finding the presence of, and discovering options to, PIP (three:1) in parts difficult. They assert that an extension to the compliance deadline is important to keep away from important disruption to the provision chain for all kinds of articles.
EPA doesn’t regard these letters as adequate to justify an extension past 180 days:
It was clearly not EPA’s intent through the growth of the rule to have such a broad disruptive impression. Nonetheless, compliance deadlines for the PBT guidelines should be in place “as quickly as practicable” and supply cheap transition durations, pursuant to the necessities of TSCA part 6(d)(1). Thus, for EPA to amend the present deadline, the Company wants extra info relating to the impression of the deadline.
EPA calls on business to supply “extra info” similar to the next:
EPA particularly asks commenters to specify the articles that want the choice deadline; the idea for the choice deadline, making an allowance for the explanations supporting different deadlines within the ultimate rule already issued, such because the January 1, 2022, date for photographic printing articles and the January 6, 2025, date for adhesives and sealants, with supporting documentation; and the extra time wanted for particular articles to clear channels of commerce.
Commerce associations might accumulate particular info on these subjects from their members and current that info with out figuring out specific members. Particular person firms ought to think about offering their very own feedback, the place they will present extra element about their specific conditions than commerce associations can.
Specifically, firms could wish to clarify their particular plans for making certain that PIP (three:1) is just not of their merchandise after a sure date, and to justify why an extension till that date is important of their case.
The feedback could include confidential enterprise info as long as the CBI is just not submitted by the Federal eRulemaking Portal. These wishing to masks their identities could submit letters by their outdoors counsel on behalf of an unnamed shopper.