EPA Reopens PIP (3:1) Rulemaking for Public Comments

Electric piano and writing paper

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:  

  • cords 
  • 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:   

  1. Identify the specific products with PIP (3:1).
  2. Ensure that PIP (3:1) is no longer in the products – which may entail finding or manufacturing alternative replacement components.

Next Steps  

  • 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. 

Important Link

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).