[Federal Register Volume 81, Number 238 (Monday, December 12, 2016)]
[Rules and Regulations]
[Pages 89674-89743]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-27987]
[[Page 89673]]
Vol. 81
Monday,
No. 238
December 12, 2016
Part III
Environmental Protection Agency
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40 CFR Part 770
Formaldehyde Emission Standards for Composite Wood Products; Final Rule
Federal Register / Vol. 81 , No. 238 / Monday, December 12, 2016 /
Rules and Regulations
[[Page 89674]]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 770
[EPA-HQ-OPPT-2016-0461; FRL-9949-90]
RIN 2070-AJ44
Formaldehyde Emission Standards for Composite Wood Products
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: EPA is issuing a final rule to implement the Formaldehyde
Standards for Composite Wood Products Act, which added Title VI to the
Toxic Substances Control Act (TSCA). The purpose of TSCA Title VI is to
reduce formaldehyde emissions from composite wood products, which will
reduce exposures to formaldehyde and result in benefits from avoided
adverse health effects. This final rule includes formaldehyde emission
standards applicable to hardwood plywood, medium-density fiberboard,
and particleboard, and finished goods containing these products, that
are sold, supplied, offered for sale, or manufactured (including
imported) in the United States. This final rule includes provisions
relating to, among other things, laminated products, products made with
no-added formaldehyde resins or ultra low-emitting formaldehyde resins,
testing requirements, product labeling, chain of custody documentation
and other recordkeeping requirements, enforcement, import
certification, and product inventory sell-through provisions, including
a product stockpiling prohibition. This final rule also establishes a
third-party certification program for hardwood plywood, medium-density
fiberboard, and particleboard and includes procedures for the
accreditation of third-party certifiers and general requirements for
accreditation bodies and third-party certifiers.
DATES: This final rule is effective February 10, 2017. The
incorporation by reference of certain publications listed in the
regulations is approved by the Director of the Federal Register as of
February 10, 2017.
ADDRESSES: The dockets for this action, identified by docket
identification (ID) numbers EPA-HQ-OPPT-2011-0380, EPA-HQ-OPPT-2012-
0018, and EPA-HQ-OPPT-2016-0461 are available at http://www.regulations.gov or at the Office of Pollution Prevention and Toxics
Docket (OPPT Docket), Environmental Protection Agency Docket Center
(EPA/DC), West William Jefferson Clinton Bldg., Rm. 3334, 1301
Constitution Ave. NW., Washington, DC. The Public Reading Room is open
from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal
holidays. The telephone number for the Public Reading Room is (202)
566-1744, and the telephone number for the OPPT Docket is (202) 566-
0280. Please review the visitor instructions and additional information
about the docket available at http://www.epa.gov/dockets.
FOR FURTHER INFORMATION CONTACT:
For technical information contact: Erik Winchester, National
Program Chemicals Division, Office of Pollution Prevention and Toxics,
Environmental Protection Agency, 1200 Pennsylvania Ave. NW.,
Washington, DC 20460-0001; telephone number: (202) 564-6450; email
address: [email protected].
For general information contact: The TSCA-Hotline, ABVI-Goodwill,
422 South Clinton Ave., Rochester, NY 14620; telephone number: (202)
554-1404; email address: [email protected].
SUPPLEMENTARY INFORMATION:
I. Executive Summary
A. Does this action apply to me?
You may be potentially affected by this action if you manufacture
(including import), sell, supply, or offer for sale hardwood plywood,
medium-density fiberboard, particleboard, and/or products containing
these composite wood materials in the United States. The following list
of North American Industrial Classification System (NAICS) codes is not
intended to be exhaustive, but rather provides a guide to help readers
determine whether this document applies to them. Potentially affected
entities may include:
Veneer, plywood, and engineered wood product manufacturing
(NAICS code 3212).
Manufactured home (mobile home) manufacturing (NAICS code
321991).
Prefabricated wood building manufacturing (NAICS code
321992).
Furniture and related product manufacturing (NAICS code
337).
Furniture merchant wholesalers (NAICS code 42321).
Lumber, plywood, millwork, and wood panel merchant
wholesalers (NAICS code 42331).
Other construction material merchant wholesalers (NAICS
code 423390), e.g., merchant wholesale distributors of manufactured
homes (i.e., mobile homes) and/or prefabricated buildings.
Furniture stores (NAICS code 4421).
Building material and supplies dealers (NAICS code 4441).
Manufactured (mobile) home dealers (NAICS code 45393).
Motor home manufacturing (NAICS code 336213).
Travel trailer and camper manufacturing (NAICS code
336214).
Recreational vehicle (RV) dealers (NAICS code 441210).
Recreational vehicle merchant wholesalers (NAICS code
423110).
Engineering services (NAICS code 541330).
Testing laboratories (NAICS code 541380).
Administrative management and general management
consulting services (NAICS code 541611).
All other professional, scientific, and technical services
(NAICS code 541990).
All other support services (NAICS code 561990).
Business associations (NAICS code 813910).
Professional organizations (NAICS code 813920).
If you have any questions regarding the applicability of this
action, please consult the technical person listed under FOR FURTHER
INFORMATION CONTACT.
B. What is the Agency's authority for taking this action?
This final rule is being issued under the authority of section 601
of TSCA, 15 U.S.C. 2697. EPA has also been mindful of environmental,
economic, and social impacts consistent with section 2(c) of TSCA, 15
U.S.C. 2601.
C. What action is the agency taking?
EPA is issuing a final rule that implements TSCA Title VI. The
final rule includes provisions on labeling; chain of custody
requirements; sell-through provisions; ultra low-emitting formaldehyde
resins (ULEF); no-added formaldehyde-based resins (NAF); finished
goods; third-party testing and certification; auditing and reporting of
third-party certifiers (TPCs); recordkeeping; enforcement; laminated
products; and exceptions from regulatory requirements for products and
components containing de minimis amounts of composite wood products.
The final rule incorporates the emission standards established by TSCA
Title VI for hardwood plywood, medium-density fiberboard (MDF) and
particleboard, and products containing these composite wood materials,
that are sold, supplied, offered for sale, or manufactured (defined by
statute to include import) in the United States.
The emission standards established by TSCA Title VI are not altered
in this
[[Page 89675]]
final rule. The requirements in this final rule are consistent, to the
extent EPA deemed appropriate and practical considering TSCA Title VI,
with the requirements currently in effect in California under the
California Air Resources Board's (CARB) Air Toxics Control Measure to
Reduce Formaldehyde Emissions from Composite Wood Products (ATCM) (Ref.
1).
Under this final rule, the definition of hardwood plywood exempts
laminated products made by attaching a wood or woody grass veneer to a
compliant core or platform with a phenol-formaldehyde resin or a resin
formulated with no added formaldehyde as part of the resin cross-
linking structure. To be eligible for the exemption, laminated product
producers must maintain records demonstrating eligibility for the
exemption.
This final rule establishes the manufactured-by date for composite
wood products at December 12, 2017. After this date, hardwood plywood
made with either a combination core or a veneer core, particleboard,
and MDF must be manufactured (including imported) in compliance with
the provisions of this final rule. This final rule establishes the
manufactured-by date for laminated products at December 12, 2023.
Before that date, laminated product producers must use compliant
composite wood product platforms and comply with the recordkeeping and
labeling requirements for fabricators. After that date, laminated
products that are exempt from the definition of hardwood plywood must
also keep, as a condition of the exemption, records demonstrating
eligibility for the exemption. Other laminated products will have to be
made in compliance with the testing and TPC certification requirements
for hardwood plywood.
Table 1 is a summary of the regulatory requirements by regulated
entity. This is not meant to be an exhaustive list of requirements, nor
is it intended to replace the provisions of the regulatory text. For
specific information on any of these requirements, interested persons
should consult the referenced regulatory provisions. Entities who fit
into more than one category must comply with the requirements for all
applicable categories. For example, an importer of composite wood
product panels who also fabricates finished goods must comply with the
requirements for importers and the requirements for fabricators.
Table 1--Summary of Provisions
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Requirement Compliance date
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Composite Wood Product Producers
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Products must comply with emission
standards:
Hardwood plywood (made with a veneer December 12, 2017.
core or a composite core) = 0.05 ppm.
Particleboard = 0.09 ppm
MDF = 0.11 ppm
Thin MDF = 0.13 ppm
(40 CFR 770.10)
Products must be certified by an EPA TSCA December 12, 2017.
Title VI TPC unless they are eligible for
a limited exemption for products made with
NAF-based or ULEF resins.
(40 CFR 770.15, 770. 17, 770.18)
Products must undergo quarterly testing and December 12, 2017.
routine quality control testing using
specified methods.
(40 CFR 770.20)
Panels must be labeled with the producer's December 12, 2017.
name (or other identification), lot
number, TPC number, and a statement of
compliance with TSCA Title VI.
(40 CFR 770.45)
Records, including testing, production, December 12, 2017.
purchaser, transporter, and non-complying
lot information, must be kept for 3 years.
Records demonstrating initial eligibility
for reduced testing or a limited third-
party certification exemption for products
made with NAF-based or ULEF resins must be
kept for as long as exemption eligibility
is claimed.
(40 CFR 770.40)
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Producers of Laminated Products That Are Not Exempt From the Definition
of Hardwood Plywood
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Bills of lading, invoices, or comparable December 12, 2017.
documents must be obtained and maintained
for 3 years.
(40 CFR 770.30, 770.40)
Finished goods must be labeled with the December 12, 2017.
producer's name, the date the good was
produced, and a statement of TSCA Title VI
compliance.
(40 CFR 770.45)
Laminated products must comply with the December 12, 2023.
hardwood plywood emission standard of 0.05
ppm, and the testing, certification, and
recordkeeping requirements for composite
wood products.
(40 CFR 770.10, 770.15, 770.20, 770.40)
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Producers of Laminated Products That Are Exempt From the Definition of
Hardwood Plywood
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Records demonstrating purchase/use of December 12, 2023.
compliant platforms and NAF or PF resins
and bills of lading, invoices, or
comparable documents must be obtained and
maintained for 3 years.
(40 CFR 770.40)
Bills of lading, invoices, or comparable December 12, 2017.
documents must be obtained and maintained
for 3 years.
(40 CFR 770.30, 770.40)
Finished goods must be labeled with the December 12, 2017.
producer's name, the date the good was
produced, and a statement of TSCA Title VI
compliance.
(40 CFR 770.45)
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Fabricators (Other Than Laminated Product Producers)
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Bills of lading, invoices, or comparable December 12, 2017
documents must be obtained and maintained
for 3 years..
[[Page 89676]]
(40 CFR 770.30, 770.40)
Finished goods must be labeled with the December 12, 2017.
producer's name, the date the good was
produced, and a statement of TSCA Title VI
compliance.
(40 CFR 770.45)
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Importers
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Bills of lading, invoices, or comparable December 12, 2017.
documents bearing a statement of TSCA
Title VI compliance must be obtained and
maintained for 3 years. In addition, must
have the ability to make records
identifying the panel producer, the date
the products were produced, the supplier
(if different) and the date the products
were purchased available to EPA within 30
calendar days of request.
(40 CFR 770.30, 770.40)
Import certification under TSCA section 13 December 12, 2018.
is required.
(40 CFR 770.30, 770.40)
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Distributors and Retailers
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Bills of lading, invoices, or comparable December 12, 2017
documents must be obtained and maintained
for 3 years..
(40 CFR 770.30, 770.40)
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This final rule also establishes an EPA TSCA Title VI Third-Party
Certification Program to ensure that composite wood panel producers
comply with the statutory formaldehyde emission limits. Under the EPA
TSCA Title VI Third-Party Certification Program, TPCs will regularly
inspect composite wood panel producers, and conduct, oversee, and
verify formaldehyde emissions tests. TPCs who wish to participate in
the EPA TSCA Title VI Third-Party Certification Program must apply to
EPA for approval and receive recognition from EPA before certifying
products under this rule. The requirements for TPCs to receive EPA
recognition include being accredited by EPA-recognized accreditation
bodies (ABs) to specific voluntary consensus standards and to the
regulatory requirements in this rule. In addition, TPCs approved by
CARB are eligible for EPA TSCA Title VI recognition through
reciprocity, provided that they meet all applicable requirements.
Existing CARB TPCs and TPCs approved by CARB during the two-year
transition period that are recognized by EPA may certify composite wood
products under TSCA Title VI until December 12, 2018. After that time,
EPA will only recognize TPCs, including CARB-approved TPCs, who are
accredited by EPA-recognized ABs.
Under this final rule, composite wood products must be certified by
an EPA TSCA Title VI TPC. To obtain and maintain certification, panel
producers must establish quality assurance/quality control programs,
conduct regular quality control testing of product emissions, and have
an EPA-recognized TPC conduct or oversee quarterly formaldehyde
emissions testing. Composite wood products made with NAF-based or ULEF
resins may be eligible for reduced testing and/or a limited exemption
from TPC oversight after an initial testing period of three months, for
NAF, or six months, for ULEF.
This action includes labeling requirements for composite wood
products and finished goods as well as ``chain of custody'' and
recordkeeping requirements with a three year record retention period.
Products that contain de minimis amounts of composite wood products,
defined as products containing 144 square inches or less of regulated
composite wood products, are exempt from the labeling requirements, but
not the recordkeeping requirements or other provisions. TSCA section 13
import certification for composite wood products that are articles is
also required.
Notable changes from EPA's proposed regulations include the
clarification of certain terms under TSCA Title VI to exclude
renovation and construction activities, applicability of the hardwood
plywood emission standard limited to hardwood plywood made with either
a composite or a veneer core, an expanded exemption for laminated
products to products laminated with phenol-formaldehyde resins in
addition to those laminated with resins formulated with no added
formaldehyde as part of the resin cross-linking structure, a
manufactured-by date for non-exempt laminated products that is seven
years after publication of this final rule, the addition of a petition
process through which any person can petition the Agency to expand the
exemption for laminated products from the definition of the term
``hardwood plywood'', elimination of the requirement to hold lots
selected for testing until test results are received, specific
notification requirements for non-complying lots, reduced recordkeeping
for non-laminating fabricators, and allowing two years after date of
final publication of the rule, instead of one year, for importers to
certify that imports are in compliance with TSCA Title VI pursuant to
TSCA section 13.
D. Why is the Agency taking this action?
EPA is promulgating this final rule to reduce formaldehyde
emissions from composite wood products, and thereby reduce exposures to
formaldehyde and avoid adverse health effects. TSCA Title VI directs
EPA to promulgate regulations that include provisions on labeling;
chain of custody requirements; sell-through provisions; ULEF and NAF
resins; finished goods; third-party testing and certification; auditing
and reporting of TPCs; recordkeeping; enforcement; laminated products;
and exceptions from regulatory requirements for products and components
containing de minimis amounts of composite wood products.
E. What are the estimated impacts of this action?
EPA's analysis of the potential costs, benefits, and impacts
associated with this rulemaking is summarized in Table 2, and
additional detail is provided in Unit VI.A. The quantified costs of the
rule may exceed the quantified benefits under certain conditions. There
are additional unquantified benefits due to other avoided health
effects. There is not sufficient information at this time on the
relationship between
[[Page 89677]]
formaldehyde exposure and myeloid leukemia, respiratory related
effects, or reduced fertility to include a valuation estimate in the
overall benefits analysis. Although uncertainty remains regarding how
best to quantify the effect of formaldehyde exposure on these health
endpoints, reducing these effects is an important non-monetized impact
that contributes to the overall benefits of the rule.
After assessing both the costs and the benefits of the rule,
including the unquantified benefits, EPA has made a reasoned
determination that the benefits of the rule justify its costs.
Table 2--Summary of Costs and Benefits of Rule
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Category Description
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Benefits......................................................... This rule will reduce exposures to
formaldehyde, resulting in benefits from
avoided adverse health effects. For the
subset of health effects where the results
were quantified, the estimated annualized
benefits (due to avoided incidence of eye
irritation and nasopharyngeal cancer) are
$64 million to $186 million per year using a
3% discount rate, and $26 million to $79
million per year using a 7% discount rate.
There are additional unquantified benefits
due to other avoided health effects.
Costs............................................................ The annualized costs of this rule are
estimated at $38 million to $83 million per
year using a 3% discount rate, and $43
million to $78 million per year using a 7%
discount rate.
Effects on State, Local, and Tribal Governments.................. Government entities are not expected to be
subject to the rule's requirements, which
apply to entities that accredit TPCs,
certify panel producers, or manufacture,
fabricate, distribute, or sell composite
wood products. The rule does not have a
significant intergovernmental mandate,
significant or unique effect on small
governments, or have Federalism
implications.
Small Entity Impacts............................................. This rule would impact approximately 922,000
small businesses: almost 910,000 have costs
impacts less than 1% of revenues, over 6,000
have impacts between 1% and 3%, and over
5,000 have impacts greater than 3% of
revenues. Approximately 99% of firms with
impacts over 1% have annualized costs of
less than $250 per year.
Environmental Justice and Protection of Children................. This rule increases the level of
environmental protection for all affected
populations without having any
disproportionately high and adverse human
health or environmental effects on any
population, including any minority or low-
income population or children.
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F. Children's Environmental Health
Consistent with the Agency's Policy on Evaluating Health Risks to
Children (Ref. 2), EPA has evaluated the environmental health effects
of formaldehyde emissions from composite wood products on children. The
results of this evaluation are described in Chapter 7.7 of the economic
analysis (Ref. 3). The economic analysis only monetizes the potential
benefits associated with avoided cases of nasopharyngeal cancer and eye
irritation, some of which clearly would accrue to children. However,
some studies have reported associations between elevated levels of
formaldehyde and other health endpoints, such as respiratory symptoms.
The World Health Organization (WHO) (Ref. 4) and the Agency for Toxic
Substances and Disease Registry (ATSDR) (Ref. 5) have raised questions
about the potential role of formaldehyde in increasing risk of asthma
or allergic conditions, particularly among children. In addition to a
study observing an association with increased chronic respiratory
symptoms and decreased pulmonary function among children (Ref. 6), 96%
of whom lived in households with formaldehyde levels below 0.075
milligrams per cubic meter (mg/m\3\), more recent studies since the WHO
and ATSDR reviews observed increased risks of allergic conditions among
adults and children, and increased severity of asthma symptoms among
children with ``wheeze'' in the previous year (Refs. 7-10). To the
extent that the reductions reported in this rule would lead to reduced
respiratory symptoms in children, the monetized estimate for cancer and
eye irritation alone is likely an underestimate. The analysis shows
that children aged zero through one represent three percent of the
individuals affected by the rule and are estimated to accrue 2% to 10%
of the rule's total quantified benefits. Children aged two through
fifteen represent twenty percent of the individuals affected by the
rule and are estimated to accrue 15% to 21% of the rule's total
quantified benefits. Exposure to formaldehyde may cause
disproportionate effects on children compared to adults. The emission
standards and other requirements of this rule will reduce emissions of
formaldehyde from composite wood products for individuals of all ages
that are exposed and children may accrue higher benefits from the
exposure reductions compared to adults.
II. Background
A. Formaldehyde Sources and Health Effects
Formaldehyde is a colorless, flammable gas at room temperature and
has a strong odor. It is found in certain resins used in the
manufacture of composite wood products (i.e., hardwood plywood,
particleboard and MDF). It is also found in certain household products
such as glues, permanent press fabrics, carpets, antiseptics,
medicines, cosmetics, dishwashing liquids, fabric softeners, shoe care
agents, lacquers, plastics and paper product coatings. It is a by-
product of combustion and certain other natural processes. Examples of
sources of formaldehyde gas inside homes include cigarette smoke,
unvented, fuel-burning appliances (e.g., gas stoves, kerosene space
heaters), and composite wood products made using formaldehyde-based
resins (Ref. 5). In addition, formaldehyde is a by-product of human
metabolism, and thus endogenous levels are present in the body.
Formaldehyde is an irritant and the National Toxicology Program
(NTP) and the International Agency for Research on Cancer (IARC) have
classified it as a known human carcinogen based on sufficient evidence
in humans that formaldehyde causes nasopharyngeal cancer and leukemia
(Refs. 11-12), a classification supported by the National Research
Council of the National Academy of Sciences (NRC) in their 2014 review
of the NTP assessment (Ref. 13). Depending on concentration,
formaldehyde can cause eye, nose, and throat irritation, even when
exposure is of relatively short duration. In the indoor environment,
sensory reactions and various symptoms as a result of mucous membrane
irritation are
[[Page 89678]]
potential effects, including respiratory symptoms as previously
discussed. Formaldehyde is also listed under section 112(b)(1) of the
Clean Air Act as a hazardous air pollutant (Ref. 14).
In 1991, EPA classified formaldehyde as a probable human
carcinogen, ``based on limited evidence in humans, and sufficient
evidence in animals,'' and derived an inhalation unit risk factor for
assessing formaldehyde cancer risk. The risk factor and supporting
documentation is included in EPA's Integrated Risk Information System
(IRIS) database (http://www.epa.gov/iris/) (Ref. 15). The IRIS program
in EPA's Office of Research and Development (ORD) completed a draft
assessment of the potential cancer and non-cancer health effects that
may result from chronic exposure to formaldehyde by inhalation (Ref.
16). This draft IRIS assessment was peer reviewed by the NRC in 2011.
The draft formaldehyde IRIS assessment is being revised in response to
the NRC peer review and public comments, and the final assessment will
be posted on the IRIS database. In the interim, this final rule
estimates benefits using the 1991 IRIS inhalation unit risk value of
1.3 x 10-\5\ per [micro]g/m\3\ (Ref. 15).
In addition, EPA used concentration-response functions to estimate
the impact of exposure to formaldehyde on eye irritation for use in the
non-cancer benefits assessment to support this rule, as discussed in
the proposal. The derivation of these concentration-response functions,
uncertainties, and EPA's proposed approach for using the concentration-
response functions in the benefits assessment were externally peer
reviewed (Ref. 17). While the economic analysis of cancer benefits is
based on the unit risk, which is a reasonable upper bound on the
central estimate of risk, the non-cancer benefits were evaluated using
the estimated concentration-response functions which reflect the
central effect estimates rather than upper bounds.
B. History of This Rulemaking
1. The CARB ATCM. In 2007, CARB issued an ATCM to reduce
formaldehyde emissions from hardwood plywood with a composite or veneer
core, MDF, and particleboard, products referred to collectively as
composite wood products. The CARB ATCM was approved on April 18, 2008,
by the California Office of Administrative Law and the first emission
standards took effect on January 1, 2009 (Ref. 1). Additional emission
standards followed through 2012. The CARB ATCM requires manufacturers
to meet formaldehyde emission standards for the regulated composite
wood products that are sold, offered for sale, supplied, imported or
manufactured for use in California. The CARB ATCM also requires that
compliant composite wood products be used in finished goods sold,
offered for sale, supplied, imported or manufactured for sale in
California. The CARB ATCM does not apply to hardwood plywood and
particleboard materials when installed in manufactured homes subject to
regulations promulgated by the United States Department of Housing and
Urban Development (HUD).
On March 24, 2008, 25 organizations and approximately 5,000
individuals petitioned EPA under section 21 of TSCA to use its
authority under section 6 of TSCA to adopt the CARB ATCM nationally. On
June 27, 2008, EPA denied the petitioners' request to immediately
pursue a TSCA section 6 rulemaking, stating that the available
information at the time was insufficient to support an evaluation of
whether formaldehyde emitted from hardwood plywood, particleboard, and
medium-density fiberboard presents or will present an unreasonable risk
to human health (including cancer and non-cancer endpoints) under TSCA
section 6 (Ref. 18). On December 3, 2008, EPA issued an Advance Notice
of Proposed Rulemaking (ANPR) that announced EPA's intention to
investigate whether and what regulatory or other action might be
appropriate to protect against risks posed by formaldehyde emitted from
the products covered by the CARB ATCM as well as other pressed wood
products. (Ref. 19)
2. The Formaldehyde Standards for Composite Wood Products Act. The
Formaldehyde Standards for Composite Wood Products Act, or Title VI of
TSCA, 15 U.S.C. 2697, was enacted on July 7, 2010 (Ref. 20). The
statute establishes formaldehyde emission standards that are identical
to the CARB ATCM Phase 2 standards for hardwood plywood with a
composite or veneer core, MDF, and particleboard sold, supplied,
offered for sale, or manufactured in the United States. Pursuant to
TSCA section 3(7), the definition of the term ``manufacture'' includes
import. The statute directs EPA to issue final implementing regulations
by January 1, 2013. The Act specifically covers composite wood products
used in manufactured housing and directs HUD to update its regulation
to ensure that it reflects the emission standards in the Act. TSCA
Title VI does not give EPA the authority to raise or lower the
established emission standards, and EPA must generally promulgate the
implementing regulations in a manner that ensures compliance with the
standards. Congress directed EPA to consider a number of elements for
inclusion in the implementing regulations, many of which are aspects of
the CARB program.
3. EPA's proposed rules. On June 10, 2013, EPA issued two Notices
of Proposed Rulemaking (NPRMs) containing proposed requirements to
implement TSCA Title VI. The first NPRM (the TPC proposal) included a
proposed framework for a TSCA Title VI TPC Program (Ref. 21), while the
second NPRM included the remainder of the proposed implementing
regulations for TSCA Title VI (Ref. 22).
The initial comment period on the TPC proposal was scheduled to end
on August 9, 2013, but was extended twice, ultimately closing on
September 25, 2013. Information pertaining specifically to the TPC
proposal, including the comments received, can be found at http://www.regulations.gov under docket number EPA-HQ-OPPT-2011-0380.
The initial comment period on the implementation proposal was
scheduled to end on August 9, 2013, but was also extended twice,
ultimately closing on October 9, 2013. The comment period was
specifically reopened for additional comments on the laminated products
issue from April 8, 2014 to May 26, 2014, including one extension. EPA
also held a public meeting on laminated products on April 28, 2014.
Information pertaining specifically to the implementation proposal,
including the comments received during both comment periods, can be
found at http://www.regulations.gov under docket number EPA-HQ-OPPT-
2012-0018.
EPA is finalizing both proposed rules in a single final rule under
RIN 2070-AJ44. Although this final rule document and supporting
information will appear in docket EPA-HQ-OPPT-2016-0461, both dockets
for the proposed rules (EPA-HQ-OPPT-2011-0380 and EPA-HQ-OPPT-2012-
0018) contain supporting information with respect to this rule and
should be considered merged for the purpose of this final rule.
III. Provisions of This Final Rule
A. Scope and Applicability
1. Composite wood product. The final rule defines the term
``composite wood product'' as including only those products subject to
a formaldehyde emission standard, i.e., hardwood plywood with a
composite or veneer core, MDF, and particleboard. EPA has also
clarified throughout the regulatory text whether particular provisions
apply
[[Page 89679]]
to panels, component parts, or finished goods, or all three.
2. Finished good. EPA's proposed rule included a definition of the
term ``finished good'' that was virtually identical to the definition
in TSCA Title VI. Although EPA did not receive any comments directly
addressing the proposed definition, other comments on the scope and
applicability of the regulation have caused EPA to clarify what is
meant by the term ``finished good.'' Specifically, EPA has determined
that Congressional intent with respect to the regulation of finished
goods under TSCA Title VI was to regulate goods that move freely
through commerce and that are produced through a manufacturing process
at a manufacturing facility, not objects like buildings or other
structures that are constructed on site and become a permanent addition
to real property Thus, the production of manufactured housing or
prefabricated buildings at a factory is covered by this final rule,
while the construction of housing or other real property on site, or
the assembly and placement of prefabricated buildings or manufactured
housing at a site, is not. The NAICS, used by Federal statistical
agencies to classify business establishments for data analysis
purposes, recognizes the significant differences between these
activities by including the production of manufactured housing or
prefabricated buildings in the Manufacturing economic sector rather
than the Construction economic sector. More specifically, the
production of both manufactured housing and prefabricated buildings is
included in the Wood Product Manufacturing subsector, along with the
production of composite wood product panels. Therefore, to ensure that
this distinction is clear, the definition of ``finished good''
incorporated into this final rule specifically excludes buildings and
similar structures that are constructed on-site.
3. Hardwood plywood. a. General definition. As proposed, EPA is
incorporating the basic statutory definition of hardwood plywood and
the statutory exclusions into the regulation with the addition of
veneer core to the list of cores in the statutory definition. As TSCA
section 601(b)(2)(A) establishes a formaldehyde emission standard for
hardwood plywood with a veneer core, EPA is including the phrase
``veneer core'' in the regulatory definition of hardwood plywood to
avoid any potential confusion over whether hardwood plywood made with a
veneer core is covered by the regulations. In addition, as discussed in
the next section, the regulatory definition specifically includes
laminated products, except for those laminated products made by
attaching a wood or woody grass veneer with a phenol-formaldehyde resin
or a resin formulated with no added formaldehyde as part of the resin
cross-linking structure to a compliant core or platform. The Agency has
also included a petition process through which any person can petition
the Agency to expand the exemption for laminated products from the
definition of the term ``hardwood plywood.''
The statutory definition of hardwood plywood only includes products
that are panels and that are intended for interior use. As part of this
rulemaking, EPA convened a Small Business Advocacy Review (SBAR) Panel
(Ref. 23). More information on the Panel process can be found in the
preamble to the proposed rule (Ref. 22). Among the recommendations made
by the SBAR Panel was a recommendation that EPA, to reduce uncertainty
in the regulated community as to which products are covered, include
definitions of the term ``panel'' and the phrase ``intended for
interior use'' (Ref. 23). Accordingly, EPA is defining the term
``panel'' as a thin (usually less than two inches thick), flat, usually
rectangular piece of particleboard, medium density fiberboard or
hardwood plywood. Embossing or imparting of an irregular surface on the
composite wood products by the original panel producer during pressing
does not remove the product from this definition. EPA has determined,
based on the comments received, this definition is consistent with both
the CARB ATCM and common industry usage. EPA has added the
parenthetical indicating that panels are usually less than two inches
thick to provide some additional guidance on panel thinness (Ref. 24).
The definition of panel also includes a sentence added because EPA
agrees with those commenters who stated that the purpose of the CARB
ATCM and of TSCA Title VI is to regulate composite wood products as
they come out of the press. Finally, EPA also added a sentence to
clarify the term ``panel'' does not include items made for the purpose
of research and development.
EPA is also promulgating a definition of the phrase ``intended for
interior use.'' Recognizing that the primary purpose of TSCA Title VI
is to reduce formaldehyde emissions from composite wood products inside
buildings and similar living areas in recreational vehicles, EPA's
definition includes products intended for use or storage inside a
building or recreational vehicle, or constructed in such a way that
they are not suitable for long term use in a location exposed to the
elements. EPA received very few comments on this definition, and is
finalizing the definition as proposed. The purpose of this definition
is to help explain coverage of miscellaneous finished goods, such as
sporting goods, that are made of at least some hardwood plywood and
that may be used indoors or outdoors. This definition does not exclude
windows and exterior doors, including garage doors, which are clearly
intended to be covered by TSCA Title VI. The statute contains specific
exemptions for windows that contain less than five percent by volume of
composite wood products, exterior doors and garage doors that contain
less than three percent by volume of composite wood products, and
exterior and garage doors that are made with NAF-based or ULEF resins.
TSCA Title VI also directs EPA to determine whether the definition
of hardwood plywood should exempt engineered veneer. Engineered veneer
is a type of veneer that is created by dyeing and gluing together
veneer leaves in a mold to produce a block. The block is then sliced
into leaves of veneer with a designed appearance that is highly
repeatable. EPA did not propose to exempt any engineered veneer because
EPA did not have any information to support such an exemption. One
commenter, the Hardwood Plywood and Veneer Association (HPVA),
clarified that it did not consider the production of engineered veneer,
or the resulting engineered veneer product, to be hardwood plywood
(Ref. 25). HPVA noted that engineered veneer, once manufactured, could
be used as a component in the production of hardwood plywood. EPA
agrees that engineered veneer, by itself, is not hardwood plywood
because it is not an assembly of veneer plies joined by adhesive to a
core. EPA interprets TSCA Title VI and its implementing regulations to
apply to hardwood plywood that incorporates engineered veneer, but not
to the production of engineered veneer itself.
b. Laminated products. As discussed in more detail in this Unit,
the definition of ``hardwood plywood'' exempts laminated products made
by attaching a wood or woody grass veneer to a compliant core or
platform with either a phenol-formaldehyde resin or a resin formulated
with no added formaldehyde as part of the resin cross-linking
structure. Additionally, the Agency has included a petition process
through which any person can petition
[[Page 89680]]
the Agency to expand the exemption for laminated products from the
definition of the term ``hardwood plywood''. Further, this final rule
establishes the manufactured-by date for laminated products as December
12, 2023. After that date, producers of laminated products that are
exempt from the definition of ``hardwood plywood'' must maintain
records that demonstrate eligibility for the exemption in order to
claim the exemption. Also after that date, other laminated products
will have to be produced in compliance with the testing and
certification requirements applicable to hardwood plywood. EPA is also
promulgating a definition of laminated product that limits
applicability of the term to products made with composite wood product
platforms. As is the case with any component part, composite wood
products used to make laminated products must be either certified
pursuant to this regulation or compliant with the provisions for
composite wood products made with NAF-based or ULEF resins. Also, as
discussed in this Unit, the term ``laminated product'' is further
limited to those products that are produced by fabricators of the
component parts or finished goods in which the laminated products are
incorporated. Regardless of whether laminated product producers are
producing exempt or non-exempt laminated products, they are fabricators
and must also comply with the fabricator recordkeeping requirements as
of the manufactured-by date for composite wood products, which is
December 12, 2017.
i. Background. TSCA Title VI defines laminated product as a product
made by affixing a wood veneer to a particleboard, MDF, or veneer-core
platform. The statutory definition further provides that laminated
products are component parts used in the construction or assembly of a
finished good, and that a laminated product is produced by the
manufacturer or fabricator of the finished good in which the product is
incorporated. Congress granted EPA the authority to promulgate a
modified definition of laminated product through rulemaking. The
statute also directs EPA to conduct a rulemaking process pursuant to
TSCA section 601(d) that uses all available and relevant information
from State authorities, industry, and other available sources of such
information, and analyzes that information to determine, at the
discretion of the Administrator, whether the definition of the term
``hardwood plywood'' should exempt any laminated product. Section
601(d) of TSCA states, among other things, that EPA must promulgate
implementing regulations in a manner that ensures compliance with the
statutory emission standards.
The CARB ATCM defines laminated product as a finished good or
component part of a finished good made by a fabricator in which a
laminate or laminates are affixed to a platform. Under this definition,
if the platform consists of a composite wood product, the platform must
comply with the applicable emission standards. The CARB ATCM defines
fabricator as any person who uses composite wood products to make
finished goods, including producers of laminated products. Laminate is
defined under the CARB ATCM as a veneer or other material affixed as a
decorative surface to a platform. Under the CARB ATCM, fabricators or
laminated product manufacturers have different requirements compared
with requirements for manufacturers of composite wood products. In
particular, fabricators do not need to conduct formaldehyde emissions
testing or comply with third-party certification requirements; instead,
fabricators need to ensure that they are using compliant composite wood
products and they have recordkeeping and labeling obligations.
CARB is currently considering changes to its ATCM. At a workshop in
March 2014, CARB presented a discussion draft of a proposal to set a
formaldehyde emission standard of 0.13 parts per million (ppm) for
unfinished laminated products made with wood veneers, but not require
testing or certification. If the platform is a composite wood product,
the platform would have to be certified (Ref. 26).
Given the importance of the laminated products issue to so many
commenters, the potential impacts on the large number of laminated
product producers, and the fact that CARB was presenting new ideas
regarding laminated products, EPA decided to reopen the comment period
on this issue and specifically solicit public comment on the approach
in the March 2014 CARB proposal, as well as suggestions in the comments
received during EPA's 2013 public comment period on the TSCA Title VI
formaldehyde regulations.
ii. Final rule provisions. As directed by Congress, EPA has
evaluated available and relevant information from State authorities,
industry, and other sources to determine whether the definition of the
term ``hardwood plywood'' should exempt engineered veneer or any
laminated product. For the reasons described in this Unit, EPA has
decided to exempt those laminated products made by attaching a wood or
woody grass veneer to a core or platform consisting of compliant MDF,
compliant particleboard, or compliant veneer, with either a phenol-
formaldehyde resin or a resin formulated with no added formaldehyde as
part of the resin cross-linking structure. EPA considers these
provisions for laminated products made with phenol-formaldehyde resins
and laminated products made with resins formulated with no added
formaldehyde as part of the resin cross-linking structure to be
mutually complementary but independent provisions, such that either one
could be implemented even in the absence of the other. Additionally,
the Agency has included a petition process through which any person can
petition the Agency to expand the exemption for laminated products from
the definition of the term ``hardwood plywood''.
1. Information reviewed by EPA. EPA reviewed a wide variety of
available information on resins, the chemistry of formaldehyde-based
resins, and formaldehyde emissions from composite wood products. Urea-
formaldehyde resins have been around since the 1920s and they have been
the most common resins used in the manufacture of hardwood plywood,
particleboard, and MDF. Urea-formaldehyde resins have several
advantages, including low cost, a rapid cure rate, and a light color.
These resins are generally used for interior applications because they
are not water-resistant. As described by CARB, ``[t]he reactions that
occur during UF resin synthesis are reversible. During the forward
reaction, water is eliminated. However, if moisture interacts with the
UF resin, depolymerization may occur, leading to hydrolysis or the
release of formaldehyde'' (Ref. 27). This characteristic of
reversibility, in addition to the presence of small amounts of free
formaldehyde in the resins, leads to continuing formaldehyde emissions
from composite wood products made with urea-formaldehyde resins,
sometimes for years, although the emission potential decreases with
increasing age (Ref. 28).
The available emissions data from composite wood products made with
urea-formaldehyde resins bears this out--composite wood products made
with urea-formaldehyde resins can have high formaldehyde emissions. For
example, in a study of the formaldehyde emission rates of products
likely to be found or used in California homes, the results of 19
samples of unfinished wood products made with urea-formaldehyde resins
ranged from 8.6 to
[[Page 89681]]
1580 [micro]g/m\2\/h (Ref. 29). Using the conversion used by CARB (Ref.
30), the highest emissions translate to 1.09 ppm. Although the median
was 164 [micro]g/m\2\/h, which translates to 0.11 ppm, the study
results demonstrate that wood products made with urea-formaldehyde
resins are as likely to have high formaldehyde emissions as not (Refs.
28-29). Further, the results of a 2003 survey of wood product
manufacturers conducted by CARB in support of their rulemaking
indicated that the highest formaldehyde-emitting composite wood
products were hardwood plywood, particleboard, and medium-density
fiberboard for interior applications (Ref. 27). CARB further determined
that the majority of these products are made with urea-formaldehyde
resins, which emit more formaldehyde than products made with other
resins (Ref. 27). Finally, the results of CARB's testing of
particleboard and MDF laminated using urea-formaldehyde resins confirms
that products laminated with urea-formaldehyde resins can have high
formaldehyde emissions (Ref. 31). Although the median of the samples
tested in either a finished or an unfinished state was 0.09 ppm (Ref.
30), many samples were well above that, two of them were over 1.25 ppm.
As mentioned by commenters, advancements in resin technology, which
have accelerated due to the CARB ATCM, have made it possible to make
composite wood products that have very low formaldehyde emissions, even
if urea-formaldehyde resins are used (Refs. 32-33). CARB described
strategies for reducing formaldehyde emissions from composite wood
products made with urea formaldehyde resins (Ref. 27). These include
modifications to the resins themselves, such as reductions in the mole
ratio of formaldehyde to urea or the addition of scavengers such as
hexamine or melamine, and changes in the production process, such as
reduced press times or temperatures. Some commenters noted the
difficulty in meeting the CARB ATCM emission standard for hardwood
plywood, even with advanced urea formaldehyde resin technology (Refs.
34-35).
EPA determined that there are several other formaldehyde-based
resins that are used in the production of composite wood products.
Phenol-formaldehyde resins, also developed in the early 20th century,
have ``outstanding durability and high polymer strength due to good
adhesion to wood surfaces.'' (Ref. 27). Composite wood products made
with phenol formaldehyde resins are typically used for exterior
applications because of their high water resistance (Ref. 27). However,
phenol formaldehyde resins are dark in color, making them unsuitable
for some decorative applications, and they require longer press times
and higher press temperatures (Ref. 27). In contrast to the synthesis
of urea-formaldehyde resins, the reactions involved in phenol
formaldehyde resin synthesis are more stable, resulting in composite
wood products with comparatively low formaldehyde emission potentials
(Ref. 28). The data reviewed by EPA support this conclusion. In
particular, the California homes study (Ref. 29), the Riedlinger study
(Ref. 36), discussed in Unit III.F. of the preamble to the proposed
Implementation Rule (Ref. 22), and test data from a hardboard
manufacturer (Ref. 37) provide evidence that products made with phenol-
formaldehyde resins have lower formaldehyde emissions than products
made with urea-formaldehyde resins. In the California homes study, the
results from four samples of unfinished wood products made with phenol-
formaldehyde resins ranged from 4.1 to 9.2 [micro]g/m\2\/h or, using
CARB's conversion, 0.0028 ppm to 0.0063 ppm. These results are markedly
lower than the results from the urea-formaldehyde products in the same
study (Ref. 29). As discussed in the proposed rule, the Riedlinger
study was designed to evaluate the effects of higher temperatures and
humidities on formaldehyde emissions from wood products made with
different resin systems (Ref. 36). The study involved testing
particleboard panels constructed in the laboratory using resin recipes
that, according to the study designers, are a close approximation to
recipes used in the particleboard industry. The particleboard panels
constructed from urea-formaldehyde resins were the highest-emitting
panels, at 0.063 ppm after 7 days of conditioning when tested at
standard temperature and humidity for the ASTM D-6007 method. The
formaldehyde emission rate for the melamine-urea-formaldehyde panels
with the same conditions was a close second at 0.057 ppm. The
formaldehyde emission rate for the panels made with phenol-formaldehyde
resins was much lower, at 0.011 ppm. Finally, a hardboard manufacturer
submitted test data on hardboard produced with a phenol-formaldehyde
resin (Ref. 37). As described by the submitter, the test data show
results well below ``any emission threshold defined in the
legislation.''
Melamine-formaldehyde resins are also available. Being resistant to
moist conditions, they are most commonly used for exterior and semi-
exterior applications, but they are also used for decorative laminates,
paper treating, and paper coating (Ref. 27). The synthesis of melamine-
formaldehyde resins is similar to that of urea-formaldehyde resins,
except that melamine is a stronger nucleophile than urea, resulting in
a faster and more complete reaction between melamine and formaldehyde
than between urea and formaldehyde (Ref. 27). Melamine-formaldehyde
resins are lighter in color than phenol-formaldehyde resins, but the
cost of melamine makes these resins relatively expensive. The cost of
melamine contributed to the development of melamine-urea-formaldehyde
resins, which are also water resistant at a lower cost. However, these
resins may not provide the low formaldehyde emission potential that
would be expected from a melamine-formaldehyde resin without urea (Ref.
38), a concern that is supported by the limited results of the
Riedlinger study (Ref. 36).
There are limited formaldehyde emissions data available on
melamine-formaldehyde resins without added urea. CARB described a study
of formaldehyde emissions from MDF made with melamine-formaldehyde
resins and a study of particleboard made with two different melamine-
formaldehyde resin formulations (Ref. 27). Formaldehyde emissions from
these two studies were measured by test methods that are not directly
comparable to the TSCA Title VI emission standards, which are presented
in terms of the ASTM E-1333-96 (2002) method (Ref. 39). Using
comparisons developed by CARB (Ref. 40), it appears that the results
from both studies are within the range of the formaldehyde emission
standards established by TSCA Title VI. However, in light of the
limited amount of data, and the uncertainties involved in comparing
results from different test methods, EPA is unable to determine that
this is the case.
EPA also reviewed the documents available from CARB's rulemaking
process for the ATCM. In developing the CARB ATCM, CARB did a
significant amount of research into available resins and their relative
formaldehyde emissions potentials. CARB commissioned a study on
formaldehyde and toluene diisocyanate emissions from interior
residential sources (Ref. 29). In 2003, CARB also surveyed composite
wood product manufacturers across the U.S., asking them for a variety
of information including formaldehyde emissions data from products.
This research led CARB to conclude that formaldehyde emission control
[[Page 89682]]
measures for hardwood plywood, medium-density fiberboard, and
particleboard were warranted, because these three products were
primarily being made with urea-formaldehyde resins that ``have the
highest formaldehyde emission rates.'' (Ref. 27). According to CARB,
formaldehyde emission rates from other composite wood products,
products used primarily in exterior applications, such as oriented
strand board, hardboard, and peg board, were about 90% lower and
contributed far less to formaldehyde concentrations in California. CARB
went on to note that the primary composite wood products using phenol-
formaldehyde resins were oriented strand board and softwood, or
structural plywood, which were mainly used for exterior sidings. Thus,
many of the products excluded from the CARB ATCM, and later from TSCA
title VI, such as hardboard, oriented strand board, structural plywood,
structural panels, and structural composite lumber, were so excluded
because CARB determined that they were already being made with resins
with limited formaldehyde emissions potential. Based on the available
information that EPA has reviewed as part of this rulemaking, EPA
agrees with CARB's determination that composite wood products made with
phenol-formaldehyde resins are much less likely to emit formaldehyde
than products made with urea-formaldehyde resins.
EPA also observes that, as noted by a commenter (Ref. 25), the
Leadership in Energy and Environmental Design (LEED) 2009 green
building certification program allowed a low-emitting materials credit
for the use of composite wood products made with no added urea-
formaldehyde resins. This credit was available without formaldehyde
emissions testing. A 2013 interpretation of the requirements allowed
composite wood products that met the CARB ATCM standard for a ULEF
exemption to obtain the credit, but only with the CARB-required testing
to confirm low formaldehyde emissions. This credit has been expanded in
LEED v4, the most recent LEED standard, to encompass materials that,
with testing, meet the CARB ATCM standard for either a NAF or ULEF
exemption.
EPA carefully considered all of the public comments, as well as
information that EPA compiled on the wood products industry in order to
develop this rule and analyze its economic impacts. Based on the
information provided by commenters on the differences between hardwood
plywood production and laminated product production, EPA agrees with
the numerous commenters who asserted that laminated product producers
are truly different from composite wood product mills. It is EPA's
understanding that laminated product producers are generally smaller
businesses that make fewer individual items per product type than mills
do, although EPA recognizes that this is not universally true. There
are also many more laminated product producers (an estimated 7,000 to
14,000) than composite wood product mills (an estimated 90, operated by
54 firms) (Ref. 3). Laminated product producers are often small custom
shops who laminate on a per order basis. While each laminated product
would not have to be tested, as some commenters asserted, the product
grouping conventions used by TPCs and mills to reduce the number and
frequency of required tests could still result in significantly more
tests for a given production volume for a custom shop as compared to a
hardwood plywood mill. In addition, because composite wood product
mills typically make many more individual items of each product type
than most laminated product producers, mills can amortize the fixed
costs of testing over a larger volume of production, resulting in only
a small cost increase per unit.
EPA considered the costs that laminated product producers would
bear under a variety of options to address formaldehyde emissions from
laminated products, including options involving an emission standard
but no testing and reduced testing without certification, as well as
the option chosen for this final rule. As more fully described in
Chapter 2 of the economic analysis (Ref. 3), EPA estimated the size of
the laminated product producer universe, how many of them used urea-
formaldehyde resins, and how much it would cost for testing,
certification, and switching from a urea-formaldehyde resin to a
phenol-formaldehyde resin or a resin formulated with no added
formaldehyde as part of the resin cross-linking structure. EPA assumed
that laminated product producers would switch from a urea-formaldehyde
resin to a qualified resin, or purchase already-veneered panels from a
hardwood plywood panel producer or another laminated product producer,
if it made economic sense for them to do so. Taking all of this into
account, EPA estimated that the aggregate annualized costs for
laminated product producers would be $26 million to $72 million using a
three percent discount rate, and $26 million to $62 million using a
seven percent discount rate.
Also as described in the economic analysis (Ref. 3), EPA estimated
the human health benefits that would result from reductions in
formaldehyde exposure attributable to this final rule. Because most
domestic composite wood product panel producers are producing only CARB
compliant products, exposure reductions due to this rule are expected
to come primarily from two sources: Laminated products and imported
composite wood products. EPA was able to quantify the benefits
attributable to avoided eye irritation and nasopharyngeal cancer, but
there are additional unquantified benefits due to other avoided health
effects. There is not sufficient information at this time on the
relationship between formaldehyde exposure and myeloid leukemia,
respiratory related effects, or reduced fertility to include a
valuation estimate in the overall benefits analysis. The quantified
benefits attributable to reductions in laminated product emissions are
$35 million to $104 million using a three percent discount rate, and
$13 million to $42 million using a seven percent discount rate. These
benefits represent approximately half of all quantified benefits
attributable to the final rule.
2. Rationale for exemption. EPA based its proposed exemption for
laminated products made with NAF-based resins on a reading of the
statute that requires any exemption for laminated products to be
promulgated in accordance with TSCA section 601(d)(1), in a manner that
ensures compliance with the statutory emission standards. EPA's
rationale was that, if the platform complied with the applicable
emission standards for the platform, the addition of a veneer with a
NAF-based resin was unlikely to cause the resulting laminated product
to exceed the applicable emission standard for the platform. Although
some commenters supported the proposed exemption, others thought it
wasn't broad enough, and still others noted that laminated products
were covered by TSCA Title VI as hardwood plywood, and should,
therefore, be required to meet the hardwood plywood emission standard.
Although EPA referred to the laminated products exemption in the
proposed rule as a NAF exemption, this terminology likely causes
confusion between the exemption for laminated products and the limited
testing and certification exemptions discussed in Unit III.G. that are
available to panel producers who use NAF-based or ULEF resins. EPA is
therefore avoiding the use of the term ``NAF-based'' in connection with
the laminated products exemption in this final rule.
Upon further reflection, and consideration of public comments, EPA
[[Page 89683]]
has concluded that the better reading of the statute is that EPA need
not make a finding that exempt laminated products will meet the
statutory emission standards, whether for hardwood plywood or for the
underlying platform. Rather, EPA must make a reasoned determination,
based upon a review of all of the available and relevant information,
that some or all laminated products should be exempt. This provides EPA
with the discretion to consider a wide variety of factors, including
formaldehyde emission potential, business demographics, and resin
chemistry, as well as costs and benefits. EPA views the formaldehyde
emission potential and the benefits of reductions in emissions as the
most important considerations. The purpose of TSCA Title VI is to
reduce formaldehyde emissions from composite wood products in order to
protect human health. The central feature of Title VI is the range of
formaldehyde emissions that Congress established considering all of the
factors then known. And Congress chose to include laminated products
within the definition of hardwood plywood unless EPA exempts them.
Consequently, although EPA has concluded that Title VI does not require
strict compliance with the standards as the test for EPA's exemption
decision, EPA continues to believe that consideration of the
formaldehyde emission potential of laminated products and the estimated
health benefits from reductions in such emissions are the most
important considerations, and the statutory emission standards provide
the best baseline for evaluating these considerations.
That having been said, Congress most likely treated laminated
products differently from other covered products because of the real
differences between laminated product producers and composite wood
product mills (see earlier discussion). Notably, laminated product
producers are generally of a smaller size and more numerous as compared
to mills. Thus, EPA has carefully considered the costs and benefits in
deciding whether to exempt laminated products, including the costs and
benefits of testing and certification and of allowing time for the
demonstration and development of lower-emitting resin substitutions. In
this regard, an integral part of this determination is the decision to
establish the manufactured-by date for laminated products at December
12, 2023, as discussed later in this Unit. EPA's decision to retain
coverage of laminated products other than products made by using,
during the lamination step, either a phenol-formaldehyde resin or a
resin formulated with no added formaldehyde as part of the resin cross-
linking structure hinges in part upon laminated product producers
having the ability to fully evaluate options for compliance.
Congress also clearly modeled portions of TSCA Title VI on the CARB
ATCM. For laminated products, Congress expressly included information
from State authorities among the things that EPA must consider in
deciding whether to exempt any laminated products. At that time, CARB's
regulations did not regulate laminated products as hardwood plywood.
However, Congress clearly did not direct EPA to mimic CARB exactly. EPA
therefore has considered not only what CARB's regulations were at that
time but also the current concerns and direction of their program.
Some commenters supported an exemption for laminated products that
are made without urea-formaldehyde resins. In fact, one observed that
CARB, in a presentation at an August 2013 stakeholder meeting on the
differences between the ATCM and the EPA proposal, suggested an
alternative approach to laminated products that would not require
testing or certification unless the producer uses urea-formaldehyde
resins (Ref. 41). As previously discussed, EPA knows of two other
formaldehyde-based resins that would fit within the suggested category
of no-added urea-formaldehyde resins, i.e., phenol-formaldehyde resin
and melamine-formaldehyde resin. At the present time, EPA has
determined that the available data supports an exemption for laminated
products made with phenol-formaldehyde resins, but not an exemption for
products made with melamine-formaldehyde resins.
Many more commenters supported other options, such as an exemption
for all laminated products or the CARB discussion proposal of March
2014. EPA is not promulgating an exemption for all laminated products
because the available information indicates that laminated products
made with urea-formaldehyde resins can have high formaldehyde emissions
and laminated product producers have several alternatives to choose
from in determining how best to comply with this final rule. Many
laminated product producers are already using resins formulated with
no-added formaldehyde as part of the resin cross-linking structure
(Ref. 3) and more are likely to switch to that type of resin or a
phenol-formaldehyde resin in order to avoid having to comply with the
testing and certification requirements. Laminated product producers can
choose to purchase already-veneered panels if that is more cost-
effective. Laminated product producers can also choose to consult with
an EPA TSC Title VI TPC to design a workable testing and certification
program.
With respect to the CARB discussion proposal, it is a significant
improvement over a complete exemption. However, EPA is concerned that,
without either a requirement to use phenol-formaldehyde resins or
resins formulated with no-added formaldehyde as part of the resin
cross-linking structure or a requirement for some testing, there is no
assurance that the products will meet CARB's suggested emission
standard of 0.13 ppm. The record, especially the CARB/AHFA data set,
demonstrates that some laminated products have high formaldehyde
emissions, so a requirement that the platform be compliant does not
ensure that the laminated product will also be compliant, particularly
if urea-formaldehyde resins are used.
This final rule also does not include an exemption for laminated
products made with compliant platforms and ULEF resins that contain
urea-formaldehyde. The resins eligible for this exemption can be
defined by their composition. For the purpose of this exemption,
because specific resin formulation information was not available for
the formaldehyde emissions data that EPA reviewed on phenol-
formaldehyde resins, EPA has defined phenol-formaldehyde resin to be a
resin that is primarily composed of phenol and formaldehyde, with no
added urea. Similarly, the other resins eligible for the laminated
products exemption do not contain added formaldehyde as part of the
resin cross-linking structure by definition. However, the available
information reviewed by EPA in this rulemaking indicates that the only
way to determine whether urea-formaldehyde resins are also ULEF resins
is through emissions testing. Indeed, in responding to another
commenter's suggestion that EPA approve resin systems that demonstrate
consistent compliance with emission limits when properly used, one
commenter stated that ULEF is not a resin type (Ref. 42). According to
this commenter, the term describes an emission result when measured in
a variety of different tests over different time frames and a resin
that meets the ULEF limits in one product setting and application may
not in another. This commenter noted that application rates, laminate
and substrate porosity and
[[Page 89684]]
other factors affect emissions from products made with ULEF resins. EPA
agrees that there are a number of factors that affect the formaldehyde
emission rates of products made with ULEF resins and that, in order to
exempt laminated products made with ULEF resins, EPA would have to
require upfront testing to demonstrate that product emissions are in
the range of the statutory emission limits. There would be no
meaningful difference between the testing EPA would require of
laminated product producers to demonstrate low emissions and the
testing that will be required of mills who are applying for the limited
exemption from testing and TPC oversight for products made with ULEF
resins. Laminated product producers are free to take advantage of the
third-party certification exemption or reduced testing provisions under
Sec. 770.18.
In deciding on the scope and structure of the laminated products
exemption, EPA was mindful of the scope of the CARB regulations and the
consideration being given by CARB to amendment of those regulations,
and EPA consulted extensively with CARB. It would not be appropriate
for EPA to mirror the current CARB regulations and simply exempt
laminated products, for the reasons stated above, and also because CARB
is considering amendment to its regulations to cover laminated
products. EPA cannot speculate whether or how CARB will amend its
regulations, but the approach taken in today's rule is consistent
overall with the concept of CARB's March 2014 discussion proposal, in
that it uses the upper bound of the Title VI emission standards as the
most important guide in determining whether laminated products should
be exempted. While CARB's proposal would not have required testing and
certification, for the reasons stated above, EPA is concerned that a
program without testing or certification would not be effective in
achieving the objective to keep emissions below the target level. Thus,
EPA has determined today's rule properly accounts both for CARB's
regulatory direction and for the numerous additional considerations
appropriate under Title VI, as discussed herein.
3. Manufactured-by date for laminated products. EPA has determined
that testing and certification is necessary for laminated products
unless they are made by attaching a wood or woody grass veneer to a
compliant platform with either a phenol-formaldehyde resin or a resin
formulated with no-added formaldehyde as part of the resin cross-
linking structure. However, EPA agrees with the numerous commenters who
argued that EPA could not realistically expect those laminated product
producers that are currently regulated under CARB only as fabricators
to attain compliance with this rule's testing and certification
requirements within a year. As a result of EPA's consideration of the
public comments and EPA's review of the available and relevant
information on laminated products as directed by the statute, EPA is
establishing the manufactured-by date for laminated products at
December 12, 2023. After the manufactured-by date for composite wood
products, which is December 12, 2017, all laminated product producers
must comply with the general requirements for fabricators, i.e., they
must use compliant cores or platforms, they must keep fabricator
records, and they must follow the labeling requirements for
fabricators. After the manufactured-by date for laminated products,
laminated product producers making exempt laminated products also must,
as a condition of the exemption, maintain records demonstrating that
exempt products made after the manufactured-by date for laminated
products are eligible for the exemption. Also after the manufactured-by
date for laminated products, producers of non-exempt laminated products
must comply with the testing, certification, and recordkeeping
requirements for hardwood plywood in addition to the requirements for
fabricators.
EPA recognizes the significant challenges described by many
commenters in switching from urea-formaldehyde resins to other resin
technologies and EPA realizes that it will take considerable time in
some instances to successfully do so. Not only must fabricators find a
way to make their products with new resin technology, they must also
have time to observe how these products perform in use. Several
commenters mentioned the difficulty of evaluating new resin
technologies for products that have 25-year warranties. In addition,
because the formaldehyde emission standard for hardwood plywood is
lower than the standards for particleboard and MDF, even those
laminated product producers that choose not to switch to an exemption-
eligible resin technology may have to change resin formulations or
purchase lower-emitting platforms in order to meet the hardwood plywood
emission standard. These laminated product producers will also need
time to evaluate strategies for compliance that may involve different
production processes and different supply chains.
Another consideration is TPC capacity. EPA shares the concerns of
those commenters who thought that the addition of large numbers of
laminated product producers to the pool of businesses needing testing
and TPC certification services might overwhelm available TPC capacity,
at least at first. Although there is some uncertainty as to exactly how
many laminated product producers will be able to switch to either
phenol-formaldehyde resins or resins formulated with no-added
formaldehyde as part of the resin cross-linking structure and thereby
avoid testing and certification requirements, EPA anticipates that a
significant number of them will do so. Currently, there are about 40
CARB-approved TPCs, with 11 of them located in the United States and
EPA expects them to participate in the TSCA Title VI program. It would
not take many of the estimated 7,000 to 14,000 laminated product
producers, currently not regulated by CARB as hardwood plywood
producers, to overwhelm this capacity.
Some commenters asked for additional time to conduct studies in
order to demonstrate that other laminated products should be exempt
from the testing and certification requirements. These commenters cited
products with thicker veneers as an example of laminated products that
would likely be able to demonstrate consistently low emissions. EPA
agrees that this approach has merit, in that it could potentially
enable EPA to make a finding that exemptions for other laminated
products are also warranted. For example, although the limited data
available meant that EPA was unable to determine that an exemption for
laminated products made with melamine-formaldehyde resins was
warranted, it is entirely possible that additional data would confirm
that products made with melamine-formaldehyde resins have consistently
low formaldehyde emissions. It is also possible that studies could
demonstrate that certain combinations of resin formulation and
manufacturing processes consistently result in products with low
formaldehyde emissions, as suggested by another commenter. In order for
EPA to base findings for additional exemptions on product studies, such
studies should be performed in accordance with accepted scientific
principles. Studies offered in support of a potential exemption that
include, for example, a representative sampling of products belonging
to the product category suggested for exemption, especially with
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formaldehyde emission results from testing performed in accordance with
ASTM E1333-10 or ASTM D6007-02 (Refs. 43-44), are likely to facilitate
a preliminary EPA determination on the merits of the suggested
exemption. However, other types of studies could also be used to
support an exemption. In general, EPA intends to evaluate any data
submitted in support of an exemption using the factors outlined in the
July 2003 document entitled ``A Summary of General Assessment Factors
for Evaluating the Quality of Scientific and Technical Information''
(Ref. 45). Persons interested in demonstrating that additional
exemptions are warranted are encouraged to contact the technical person
listed under FOR FURTHER INFORMATON CONTACT. The process from study
initiation to final EPA rulemaking, if warranted, would be a multi-year
effort. It is likely that designing and conducting a robust study in
support of an exemption for other laminated products would take a
couple of years. Upon study completion, it would take EPA some time to
review the study and determine whether to undertake rulemaking to
exempt additional laminated products. Once a decision to undertake
rulemaking had been made, EPA's rulemaking process would take several
more years.
There may also be other opportunities to reduce the burdens
associated with the testing and certification requirements for
laminated product producers. For example, there may be other test
methods or testing protocols that, when applied to laminated product
production, may ensure that laminated product emissions are
consistently within the range of emissions permitted for laminated
product platforms. EPA encourages laminated product producers to think
creatively about how to approach the problem of demonstrating
consistently low formaldehyde emissions, whether by the type of resin
used or the manufacturing process, or by using alternatives to existing
test methods and testing protocols. Some commenters suggested
alternative testing protocols for laminated products, such as testing a
worst-case scenario for that producer once a quarter. There may also be
alternative methods for testing laminated products that would be less
burdensome than either using ASTM E1333-10 or ASTM D6007-02 or a
correlated quality control method. In order for EPA to incorporate any
such alternatives, EPA would have to have data upon which to determine
that the alternative does in fact provide accurate and repeatable
results that demonstrate consistently low formaldehyde emissions.
To this end and consistent with 5 U.S.C. 553(e), EPA has
established a process at Sec. 770.4 through which any person may
petition the Agency to initiate a rulemaking to expand the exemption
for laminated products from the definition of the term ``hardwood
plywood''. EPA considers establishment of the petition process at Sec.
770.4 to be a rule of Agency procedure, and it is therefore not subject
to prior notice and comment. Petitioners should include with their
petitions all available and relevant data to support the requested
exemption(s) and enable EPA to make a reasoned determination that the
petition should be granted. This provides EPA with the discretion to
consider a wide variety of factors, including formaldehyde emission
potential, business demographics, and resin chemistry, as well as costs
and benefits. EPA views the formaldehyde emission potential and the
benefits of reductions in emissions as the most important
considerations.
EPA's goal will be to promptly review the petition and supporting
data. The Agency's review will be hastened to the extent that the
petition fully addresses the factors EPA would take into account. EPA
will acknowledge receipt of the petition within 15 calendar days by
sending a letter to the petitioner and subsequently communicate in
another letter to the petitioner the Agency's decision to initiate
rulemaking or deny the petition. The petition and any accompanying
data, together with the letters acknowledging EPA's receipt of the
petition and communicating EPA's subsequent decision in response to the
petition will be placed in a public docket.
Following a decision to initiate rulemaking based on a petition,
EPA will publish in the Federal Register a proposed rule that would
expand the laminated products exemption based on the petition, and
provide a 30-day public comment period. Based on the petition and any
public comments, EPA would take final action on the proposal. If EPA
expands the exemption for laminated products to include additional
resin formulations, laminated product producers using those additional
resin formulations will be subject to the same recordkeeping
requirements as those laminated product producers who use NAF and
phenol-formaldehyde resins; that is, they must maintain records
demonstrating eligibility for the exemption.
EPA agrees with the commenters who suggested that additional time
should be given to laminated product producers before they are required
to comply with the testing and certification provisions of this final
rule. In fact, considering in part all of the comments advocating for a
permanent exemption, EPA has determined that the three years suggested
by several commenters is not likely to be sufficient for some laminated
product producers to fully evaluate different resin technologies to
determine whether they can qualify for the exemption and to either
successfully implement an alternative resin in their production process
or turn to evaluating strategies for achieving compliance with the
hardwood plywood emission standard and the testing and certification
provisions. Neither would it be sufficient to design and conduct
studies and allow EPA to conduct rulemaking to provide additional
exemptions if warranted.
In EPA's view, seven years is a more realistic timeframe for acting
on any additional warranted exemptions, and should also provide
sufficient time for laminated product producers to either switch to a
resin that renders them eligible for the exemption or figure out how to
implement a testing and certification program for their laminated
products. EPA based the seven year timeframe on the Agency's best
professional judgment of the estimated time it likely takes to conduct
product testing, especially to prove that a particular technology
sufficiently reduces emissions in a broad array of applications and for
EPA to evaluate and act upon a petition to expand the exemption for
laminated products from the definition of the term ``hardwood
plywood.'' EPA assumed that it would take at least a year to design a
study that would result in the generation of data to support an
exemption for a category of products, and another year to acquire the
products and actually perform the product testing. The amount of time
needed for EPA's review of the data could vary substantially, depending
on the amount, robustness, and sufficiency of provided supporting
information. Finally, EPA wanted to ensure that there would be enough
time for laminated product producers to develop data to support any
petitions and submit them to EPA for evaluation before the testing and
certification requirements take effect for laminated products without
feeling compelled to expend resources for the otherwise-required
testing and certification to avoid potential noncompliance.
EPA considered establishing a shorter sell-through period, which
would have
[[Page 89686]]
required producers of laminated products to incur the cost of complying
with the testing and certification requirements while also making
financial investments in determining whether they are able to switch to
a qualified resin or conducting a robust study to justify a subsequent
exemption. However, EPA does not think this approach is justified for
several reasons, and as indicated above, EPA's decision not to exempt
laminated products other than products made by using, during the
lamination step, either a phenol-formaldehyde resin or a resin
formulated with no added formaldehyde as part of the resin cross-
linking structures is premised in part of the decision to establish the
seven-year sell-through period. Even aside from efforts to develop
alternatives to compliance with today's standards, laminated product
producers could not realistically be expected to be in full compliance
with this regulation in one year in view of the considerations
discussed herein (such as TPC capacity and process changes the
producers may need to make). In addition, because of the large number
of laminated product producers that are subject to this rule, the fact
that many of them are very small businesses that laminate on a per-
order basis, and the significant upfront costs involved in designing
and implementing a testing and certification program, it does not make
sense, in EPA's view, to require producers to simultaneously incur
compliance costs while investigating whether they are able to switch to
a qualified resin or while conducting a robust study to justify a
subsequent exemption or the effectiveness of alternative test methods
or protocols. EPA wants to encourage these investigations, which may
well reveal approaches that are as or more reliable in ensuring low
emissions at a lower cost, and EPA is concerned that requiring the
investment and process changes needed to comply with the rule
certification and testing requirements on a shorter timeframe might
reduce the incentive for the development of alternative approaches. EPA
also does not think it makes sense to stimulate a large expansion of
TPC capacity in the short term that may be unnecessary and/or may
result in excess capacity over time.
Overall, EPA has exercised its discretion in making its
determination so as to fulfill the primary purpose of TSCA Title VI
without impeding unduly or creating unnecessary economic barriers to
technological innovation. See 15 U.S.C. 2601(b)(3). In fact, EPA
encourages laminated product producers and the wood products industry
to explore all avenues for reducing formaldehyde emissions from
composite wood products. In addition to established resins, such as
soy-based resins or phenol formaldehyde resins, new resin technologies
may be developed that provide adequate performance while contributing
minimal formaldehyde emissions. Similarly, while there are established
alternatives to regulated composite wood products, e.g., lumber or
solid wood, it is likely that new alternatives will be developed. For
example, in 2014, EPA awarded a grant through EPA's Small Business
Innovation Research program competition to Ecovative Design, LLC.
Ecovative makes packaging, building materials (furniture and panels)
and automotive products by growing them from agricultural byproducts
and mycelium, a fungal network of threadlike cells that are like the
roots of mushrooms. These materials are not hardwood plywood,
particleboard, or MDF, and thus are not subject to this final
regulation. EPA encourages laminated product producers to consider all
aspects of their production processes when deciding how best to lower
formaldehyde emissions from laminated products and achieve compliance
with this regulation.
4. Definitions associated with laminated products. EPA is
promulgating the definitions associated with laminated products
essentially as proposed, except that the term ``laminated product'' is
limited to those products that are produced either by the fabricator of
the finished good in which the product is incorporated or by a
fabricator who uses the laminated product in the further construction
or assembly of a component part. EPA's proposed definition did not
include any provisions restricting applicability of the term to certain
entities because of concerns over potentially inequitable results. EPA
did not intend for the term ``laminated product'' to be expanded to the
extent that virtually all hardwood plywood panels could be considered
laminated products. Rather, EPA's intention was to allow fabricators of
component parts, e.g., cabinet door fabricators, to be afforded similar
treatment under the TSCA Title VI regulations as fabricators of
finished goods, e.g., entire cabinets. The laminated product definition
in this final rule addresses EPA's concerns without being overly broad.
EPA's proposed definition of laminated product also expanded upon
the statutory definition to include products made by attaching woody-
grass veneers to particleboard, MDF, or veneer-core platforms. In
addition, EPA proposed related definitions for the terms ``veneer'' and
``woody-grass.'' While some commenters objected to the expansion of the
definition of laminated products to include woody-grass veneers, CARB
and another commenter supported including woody-grass veneers, and the
February 2014 draft amendments to the CARB ATCM include woody grass in
the definition of veneer. Therefore, for the reasons stated in the
proposal, that woody-grass veneers can be porous and therefore not
effective barriers to formaldehyde emissions, that woody grass veneers
can be affixed to cores and platforms using urea-formaldehyde resins,
and that including woody grass veneers is consistent with the
definition of hardwood plywood in the ANSI/HPVA HP-1 standard (Ref.
46), the definition of laminated product in the final rule includes
woody grass as well as wood veneers. EPA notes that the term
``laminated product'' does not include those products made by attaching
something other than a wood or woody grass veneer (e.g., plastic,
vinyl, or film) to a core or platform.
In addition, because the term ``core'' and the term ``platform''
can both be used to describe the wood product to which a wood or woody
grass veneer is affixed, the final rule's laminated product definition
includes both terms.
EPA is promulgating the definition of the term ``veneer'' as
proposed, with the addition of a maximum thickness limit of 6.4
millimeters (\1/4\ inch, the thickest veneer allowed under the ANSI/
HPVA HP-1 standard) to distinguish it from lumber or sawn veneer, a
specialty product typically used in the restoration of antique
furniture.
EPA also proposed to define component part as a part that contains
one or more composite wood products and is used in the assembly of
finished goods. EPA is promulgating the definition of component part as
proposed, except that EPA has added the unintentionally-omitted phrase
``construction or'' to the definition, as well as a clarification
regarding parts sold individually to end users. Such items are not
component parts but are more properly classified as finished goods
because their commercial assembly process is complete. This
clarification is consistent with CARB's proposal to modify their
definition of the term ``finished good'' so that it means any good or
product, other than a panel, containing hardwood plywood,
particleboard, or MDF.
4. Particleboard and medium-density fiberboard. As proposed, EPA is
[[Page 89687]]
incorporating the statutory definitions of the terms ``particleboard''
and ``medium-density fiberboard'' into the regulations without change.
In addition, EPA is finalizing the proposed definition for the term
``thin medium-density fiberboard'' that incorporates a maximum
thickness of 8 millimeters or 0.315 inches and is consistent with both
CARB and the voluntary consensus standard for medium-density fiberboard
(Ref. 47). EPA is aware that some products are marketed as ``high-
density fiberboard.'' If these products meet the definition of medium-
density fiberboard, they are regulated as medium-density fiberboard. If
they meet the definition of ``hardboard'' they are exempt as hardboard.
5. Exemptions. a. Statutory exemptions. TSCA section 601(c) exempts
a number of products from the formaldehyde emission standards for
composite wood products. These exemptions include, but are not limited
to: Hardboard, structural plywood, structural panels, oriented
strandboard, glued laminated lumber, prefabricated wood I-joists,
finger-jointed lumber, wood packaging, composite wood products used
inside new vehicles other than recreational vehicles, windows that
contain less than five percent by volume of composite wood products,
exterior doors and garage doors that contain less than three percent by
volume of composite wood products, and exterior and garage doors that
are made with NAF-based or ULEF resins. EPA is incorporating these
exemptions into the implementing regulations. Composite wood products,
component parts, and finished goods that qualify for these exemptions
are exempt from all of the provisions of the implementing regulations.
However, component parts and finished goods made of a mixture of exempt
products and regulated products are not exempt. For example, a cabinet
made up of structural plywood and hardwood plywood would be subject to
the labeling and recordkeeping requirements of this final rule. The
hardwood plywood in the cabinet would also be subject to the emission
standard for hardwood plywood as well as the testing and certification
provisions of this rule.
The statute exempts any finished good that has previously been sold
or supplied to an individual or entity that purchased or acquired the
finished good in good faith for purposes other than resale. The statute
provides two examples: Antiques and secondhand furniture. Thus, dealers
in secondhand furniture do not have any obligations under this
regulation solely due to the fact that some of the furniture may
contain composite wood products. Similarly, refurbishment of antique
furniture and in-house repairs of previously sold finished goods, such
as cabinetry and furniture, are not covered by this regulation.
However, there is no exemption for panel producers, importers, and
fabricators of composite wood products and component parts that are
intended to be used in repairs. Unless another exemption is applicable,
these entities may only make compliant products available in the market
place, including to end users and other parties that intend to use
these products in repairs.
With respect to exterior and garage doors made with NAF-based or
ULEF resins, these resin types are defined elsewhere in the statute,
with reference to both the composition of the resin and the
formaldehyde emissions of composite wood products made with the resin.
EPA is promulgating these exemptions as proposed and will interpret the
statutory language to mean that, in order to be eligible for this
exemption, the composite wood products used to make exterior and garage
doors must comply with the emission standards contained in the
statutory definitions of NAF-based resins and ULEF resins, as measured
by the testing described in the statutory definitions of these resin
types. However, manufacturers, fabricators, distributors, or retailers
of these doors are not required to comply with the third-party
certification, recordkeeping, or labeling provisions of this final
rule.
b. Hardboard. TSCA Title VI exempts hardboard, but directs EPA to
define it. EPA proposed to define hardboard with reference to, and
consistent with, three relevant ANSI standards: ANSI A135.4 (Basic
Hardboard), ANSI A135.5 (Prefinished Hardboard Paneling), or ANSI
A135.6 (Hardboard Siding) (Refs. 48-50). EPA is concerned that, because
hardboard and thin MDF share similar appearances and end uses, a broad
definition of hardboard could lead to thin MDF being erroneously
categorized as hardboard and exempted from the emission standards.
Subsequent to EPA's proposal, CARB issued proposed amendments to its
ATCM that would limit the hardboard exemption to hardboard that emits
less than 0.06 ppm formaldehyde (Ref. 51).
The definition of hardboard in the final rule references the latest
ANSI standards, as suggested in comments from the Composite Panel
Association, the accredited developer for these standards. As noted in
the standard itself, the name of the standard pertaining to siding was
changed from ``Hardboard Siding'' to ``Engineered Wood Siding'' in
order to more accurately describe the product (Ref. 52). The definition
in the final rule also references the standard for engineered wood trim
because the Composite Panel Association indicated that products
conforming to this standard were also considered hardboard (Ref. 53).
Although specific ANSI standards are referenced in the definition,
minor unintentional deviations from the cited ANSI standards do not
necessarily mean that a product is medium-density fiberboard and not
hardboard. EPA has also added a rebuttable presumption that products
emitting more than 0.06 ppm formaldehyde are not hardboard. Based on
assertions from CARB and the Composite Panel Association, EPA has
determined that products made according to the ANSI standards for
hardboard are not likely to emit above 0.06 ppm formaldehyde (Ref. 54).
This presumption is designed to ensure that MDF is not sold as
hardboard. Some commenters suggested that EPA address this concern by
excluding ``dry process'' hardboard from the definition of hardboard
and treating it as MDF, while others thought this was unnecessary,
because ``dry process'' hardboard is typically made with a small amount
of phenol formaldehyde resins and has low formaldehyde emissions. The
0.06 ppm presumption is more enforceable than a process-based
exclusion, and is in keeping with industry expectations of hardboard.
c. Other requested exemptions. Several commenters suggested that
EPA adopt other, non-statutory, exemptions. As a general matter, EPA
has determined that it can best ensure compliance with the emission
standards by applying the regulatory requirements uniformly to all
composite wood products sold, supplied, offered for sale, or
manufactured in the United States. If EPA were to promulgate exemptions
at the manufacturing level, exempt composite wood products could later
be incorporated into finished goods, possibly with non-exempt composite
wood products. This could make it difficult for downstream purchasers,
EPA, and end consumers to assess whether finished goods are made from
compliant composite wood products. It would also complicate the
labeling and recordkeeping requirements, because without records passed
down through the supply chain, it would be difficult to ascertain
whether finished goods were made from compliant panels, exempt panels,
regulated panels that were manufactured in violation of the
regulations, or some combination thereof. Exemptions tied to the
ultimate
[[Page 89688]]
end use of the product, if applied at the manufacturing level, would
make it difficult to ensure that none of the composite wood products
are diverted to other end uses, either intentionally or accidentally.
Such exemptions would require labeling, recordkeeping, and chain-of-
custody systems specific to the ultimate uses of the products. EPA
notes, however, that military-specified plywood is excluded from the
definition of the term ``hardwood plywood'' and thus military-specified
plywood to be used in new vehicles, rail cars, boats, aerospace craft,
and aircraft is not subject to these regulations.
Commenters suggested that EPA promulgate exemptions for products
made by educational institutions, for products manufactured for export,
and for products intended for exempt uses (e.g., inside new vehicles).
Because the statute provides that the emission standards apply to
composite wood products sold, supplied, offered for sale, or
manufactured in the United States, EPA does not believe it is
appropriate to provide such exemptions, except to the extent an entity
can demonstrate they meet the criteria for the exemption at TSCA
section 12(a)(1). With respect to composite wood products and finished
goods produced and labeled solely for export, an entity would bear the
burden of demonstrating the applicability of TSCA section 12(a)(1). EPA
further notes the regulations allow for the transportation and
importation of panels for testing purposes, provided they are
appropriately marked. In response to requests for a research and
development exemption, EPA notes that the final definition of the term
``panel'' does not include items produced for the purpose of research
and development, provided those items are not sold, supplied or offered
for sale. Thus, those items are not subject to the panel certification
requirements.
6. Other definitions. EPA is defining a number of other terms to
ensure that the meaning and applicability of the regulatory
requirements are clear. EPA is using the term ``panel producer'' to
refer to those facilities that actually make composite wood products,
including laminated products that are not exempt from the definition of
hardwood plywood, but excluding importers that do not also make the
products. As discussed in the preamble of the proposed rule, because
TSCA section 3 defines the term ``manufacture'' to include import, EPA
is using another term to clarify the regulation by referring to
facilities that actually make the products regulated under TSCA Title
VI for the purposes of the testing, certification, and recordkeeping
requirements. The term ``panel producer'' applies separately to each
specific facility because facilities under a common entity often
operate under separate quality management systems and procedures and
therefore have their own quality control program specific to their
staff and operational capabilities. Other terms associated with the
testing requirements are discussed in Unit III.E., while terms
associated with the third-party certification program are discussed in
Unit III.B.
Other terms for which EPA proposed definitions include
``importer,'' ``fabricator,'' ``retailer,'' ``distributor,'' and
``purchaser.'' EPA is finalizing the term ``importer'' as proposed
because it is consistent with the definition of the term
``manufacturer'' in TSCA section 3 and the definition of the term
``importer'' in 40 CFR 710.3. An importer is an entity that imports
composite wood products, component parts, or finished goods into the
customs territory of the United States and the term includes the entity
primarily liable for the payment of any duties on the products, or an
authorized agent acting on the entity's behalf.
EPA proposed to define the term ``fabricator'' as an entity that
incorporates composite wood products into component parts or into
finished goods and ``retailer'' as an entity that generally sells
smaller quantities of composite wood products directly to consumers. In
considering comments received from the renovation industry on whether
renovators should be considered fabricators or retailers, EPA reviewed
the language of TSCA Title VI as well as the guidance available on
CARB's Web site. EPA has determined that the activities of renovators
are not the kinds of activities that Congress intended to regulate
under TSCA Title VI. Renovators are neither fabricating finished goods
to be sold in the marketplace nor are they actually retailing finished
goods. Renovators perform their work on real property on behalf of, and
at the direction of, the building owner or lessee and, as such, are
neither selling nor supplying composite wood products to the building
owner or lessee. EPA has added an express exception for renovators to
both the definition of the term ``fabricator'' and the term
``retailer,'' to ensure that it is clear that they are not intended to
be covered by the definitions.
The renovator exception from the term ``retailer'' does not
encompass retailers who sell building materials and finished goods such
as cabinets, and also offer installation services to consumers. For
these retailers, the sale of composite wood products to consumers as
part of a contract to perform renovation services would be covered by
these regulations and the retailer would be required to maintain
records of the transaction. The activities of the subcontractor who
installs the composite wood products under contract to the retailer
would not be covered.
EPA did not receive any other comments specifically on the language
of the proposed definition of ``fabricator.'' EPA is adding the phrase
``or entity'' to the definitions of distributor, fabricator, importer,
and retailer to ensure that it is clear that both natural persons and
corporate entities have obligations under these regulations. EPA is
also adding the term ``component part'' to the definition of retailer
to make it clear that persons who sell parts that contain composite
wood products directly to consumers are retailers because these parts
have completed their commercial assembly and are more appropriately
classified as finished goods. Finally, in response to those commenters
who thought that the proposed definition was unclear, EPA is
promulgating a definition of the term ``purchaser'' that clearly states
that panel producers, importers, fabricators, distributors, and
retailers are included, while excluding the end user.
EPA proposed to define the term ``panel'' as ``a flat or raised
piece of composite wood product.'' In the final regulation EPA is
defining the term panel as ``a thin (usually less than two inches
thick), flat, usually rectangular piece of particleboard, medium-
density fiberboard or hardwood plywood. Embossing or imparting of an
irregular surface on the composite wood products by the original panel
producer during pressing does not remove the product from this
definition. Cutting a panel into smaller pieces, without additional
fabrication, does not make the panel into a component part or finished
good. This does not include items made for the purpose of research and
development, provided such items are not sold, supplied, or offered for
sale.'' In this definition, EPA is clarifying that items produced
solely for the purpose of research and development are not ``panels''
within the intended meaning of TSCA Title VI and do not require
certification unless they are sold, supplied, or offered for sale.
B. EPA TSCA Title VI Third-Party Certification Program
1. Overview. The basic framework of EPA's TPC proposal was that ABs
interested in participating in the EPA TSCA Title VI Third-Party
Certification
[[Page 89689]]
Program would apply to EPA, and if deemed qualified, would enter into a
recognition agreement with EPA. After being recognized by EPA, ABs
would accredit TPCs based on the TPC requirements established in Sec.
770.7 of the proposed rule. The EPA-recognized ABs would then approve
or deny TPC applications for acceptance into the EPA TSCA Title VI
Third-Party Certification Program. Under the proposal, TSCA Title VI
TPCs would certify panel producers' composite wood products as meeting
all necessary requirements under TSCA Title VI.
EPA received several comments, discussed in more detail in Unit
III.B.2.f., expressing concern over the proposed requirement that EPA-
recognized ABs review and approve or deny TPC applications to
participate in the EPA TSCA Title VI Third-Party Certification Program.
Based on these comments, this final rule requires candidate TPCs to
seek approval and recognition directly from EPA after being accredited
by EPA-recognized ABs to the necessary standards developed by the
International Organization for Standards (ISO) and the International
Electrochemical Commission (IEC) and the TSCA Title VI regulatory
requirements in 40 CFR part 770. In addition, TPCs approved by CARB
under the formaldehyde ATCM will also be eligible for recognition under
the EPA TSCA Title VI Third-Party Certification Program through
reciprocity with CARB assuming they meet all applicable requirements of
this final rule. The requirements for a TPC to obtain EPA recognition
through reciprocity are discussed in Unit III.B.5.b.
In this final rule, EPA is retaining the proposed requirement that
ABs interested in participating in the EPA TSCA Title VI Third-Party
Certification Program must apply to EPA and enter into a recognition
agreement with the Agency to become an EPA TSCA Title VI AB. Following
the two-year transitional period for CARB TPCs discussed in Unit
III.B.5.a., EPA will only recognize TPCs, including CARB-approved TPCs,
who are accredited by EPA-recognized ABs. The Agency will, as proposed,
require that TPCs under TSCA Title VI certify a composite wood panel
producer's products by verifying the accuracy of formaldehyde emissions
testing of composite wood products by the panel producer, monitoring
panel producer quality assurance programs for composite wood products,
and by conducting inspections of panel producers' activities and
products, discussed in more detail in Unit III.B.3.c. Illustration 1
shown below provides an overview of the EPA TSCA Title VI Third-Party
Certification Program.
EPA aligned, to the extent practicable, the EPA TSCA Title VI TPC
requirements with those in the CARB ATCM to avoid placing differing or
duplicative regulatory requirements on the regulated community.
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[[Page 89690]]
[GRAPHIC] [TIFF OMITTED] TR12DE16.000
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\1\ TSCA Title VI Third-Party Certification Program formerly
called the TSCA Title VI Proposed Third-Party Certification
Framework in the proposed rule.
\2\ ABs recognized by EPA pursuant to 40 CFR part 770 are termed
EPA TSCA Title VI ABs in this final rule.
\3\ The International Organization for Standardization (ISO) and
the International Electrotechnical Commission (IEC) develop and
publish consensus-based International Standards utilized by
accreditation organizations IAF and ILAC.
\4\ ISO/IEC 17011--General requirements for accreditation bodies
accrediting conformity assessment bodies.
\5\ MLA--IAF's Multilateral Recognition Arrangement requires AB
signatories to demonstrate they are capable of accrediting product
certification bodies to ISO/IEC 17065--Requirements for bodies
certifying products, processes or services.
\6\ MRA--ILAC's Mutual Recognition Arrangement requires AB
signatories to demonstrate they are capable of accrediting testing
laboratories to ISO/IEC 17025--General requirements for the
competence of testing and calibration laboratories and ISO/IEC
17020--General criteria for the operation of various types of bodies
performing inspection.
\7\ TPCs recognized by EPA pursuant to 40 CFR part 770 are
termed ``EPA TSCA Title VI TPCs'' in this final rule.
\8\ TPCs may include contracted independent testing labs and
inspection bodies that are accredited by EPA TSCA Title VI ABs.
---------------------------------------------------------------------------
BILLING CODE 6560-50-C
a. Terminology. EPA is finalizing most of the definitions
associated with the TPC program as proposed. However, as a result of
public comment, and in some cases to improve clarity or to be
consistent with terms used in the referenced international consensus
standards, in this final rule EPA has made some minor changes to
terminology used in the proposed rule. Based on the comments received
on a number of the AB and TPC provisions, EPA realizes that, where the
proposal used the term ``accreditation,'' the term ``recognition''
would have been a more accurate description of the activities EPA
intends to take with respect to ABs and TPCs. In this final rule, the
term ``recognition'' is used instead of the term ``accreditation'' to
refer to EPA's recognition of ABs or TPCs, including when discussing
EPA's proposal. The term ``accreditation'' is retained in the final
rule to refer to an activity that ABs perform as part of evaluating the
competency of TPCs. Additionally, in this final rule, ABs recognized by
EPA under the EPA TSCA Title VI Third-Party Certification Program are
more specifically termed EPA TSCA Title VI Product ABs or EPA TSCA
Title VI
[[Page 89691]]
Laboratory ABs (both are also referred to as EPA-recognized ABs). TPCs
approved to certify products under the EPA TSCA Title VI Third-Party
Certification Program are termed EPA TSCA Title VI TPCs (also referred
to as EPA-recognized TPCs). A TPC laboratory means a laboratory or
contract laboratory of an EPA TSCA Title VI TPC that is accredited by
an EPA TSCA Title VI Laboratory AB.
EPA proposed that EPA-recognized Product and Laboratory ABs perform
in-depth system audits on each candidate TPC as part of the
accreditation process. This requirement is still maintained; however,
in this final rule the term ``on-site assessment'' is used instead of
the term ``in-depth systems audit.'' The standard ISO/IEC
17011:2004(E), entitled ``Conformity assessment--General requirements
for accreditation bodies accrediting conformity assessment bodies,''
uses the terms ``assessment,'' ``reassessment,'' and ``surveillance on-
site assessment'' (Ref. 55). EPA uses these terms to describe the
activities EPA-recognized ABs are required to perform to evaluate the
competency of TPCs to conduct the TSCA Title VI implementing
regulations. The terms ``assessment,'' ``reassessment,'' and
``surveillance on-site assessment'' are defined in Sec. 770.3. EPA has
also incorporated comments on the proposed regulation related to ISO/
IEC 17020:2012(E), entitled ``Conformity assessment--Requirements for
the operation of various bodies performing inspection,'' so that the
term ``audit'' is replaced with the term ``inspection'' as it relates
to a TPC's evaluation of a panel producer in this final rule (Ref. 56).
EPA is finalizing as proposed that EPA-recognized ABs may suspend,
modify or revoke a TPC's accreditation, as necessary. However, in this
final rule, the terms ``modify'' and ``revoke'' have been replaced by
the terms ``reduce'' and ``withdraw'' to make the terminology
consistent with the terms used in ISO/IEC 17011:2004(E). The terms
``reduce'' and ``withdraw'' are more familiar to the ABs that will be
performing TPC accreditation activities under the rule. However, this
final rule continues to use the terms ``suspend,'' ``modify,'' and
``revoke'' to describe potential EPA actions with respect to EPA
recognition of ABs and TPCs under TSCA Title VI because they more
accurately describe the types of actions that EPA may need to take
under this final rule.
b. ISO/IEC Standard Revisions. Since publication of the proposed
rule, two of the ISO/IEC standards have been updated and this final
rule incorporates the most current versions of those standards. EPA
agrees with those commenters that thought that the final rule should
incorporate the updated version of the standards because ABs will not
be able to accredit to the previous versions once the transition period
expires.
EPA proposed that TPCs be accredited to ISO/IEC Guide 65:1996(E)
(Ref. 57), which was subsequently revised to be ISO/IEC 17065:2012(E),
entitled ``Conformity assessment--Requirements for bodies certifying
products, processes or services'' (Ref. 58). In this final rule, EPA is
incorporating by reference ISO/IEC 17065:2012(E). This requirement
reflects the change required by International Accreditation Forum (IAF)
that Multilateral Recognition Arrangement (MLA) signatories transition
their accreditation of TPCs to ISO/IEC 17065:2012(E) no later than
September 14, 2015. In this final rule, EPA is also incorporating by
reference ISO/IEC 17020:2012(E), which is an updated version of ISO/IEC
17020:1998(E) referenced in the proposed rule (Ref. 59).
2. Requirements for Accreditation Bodies. There are two primary
types of ABs that will be involved in the implementation of the EPA
TSCA Title VI Third-Party Certification Program: Product ABs and
Laboratory ABs. EPA recognizes it is also possible that a single AB may
be qualified to perform the roles of both types of ABs, and accredit a
TPC for both its product certification capabilities and formaldehyde
emissions laboratory testing capabilities. This scenario is shown as
``AB Type #3'' in Illustration 1 (see Unit III.B.1.). In such a case,
only a single AB would need to be involved in implementing the two AB
roles under the EPA TSCA Title VI Third-Party Certification Program.
a. Necessary qualifications of Product ABs. EPA proposed that to be
an EPA-recognized Product AB, among other requirements, Product ABs
must be signatories to the IAF MLA, or a member of an equivalent
oversight body. As noted by commenters, in the proposal, EPA
incorrectly stated that the IAF MLA level three endorsement ensures
that the AB has demonstrated basic competence to perform accreditation
activities for ISO/IEC17020:1998(E). The endorsement to accredit TPCs
to ISO/IEC 17020:1998(E), now ISO/IEC 17020:2012(E), instead falls
under the International Laboratory Accreditation Cooperation (ILAC)
Mutual Recognition Arrangement (MRA), which is discussed later in this
final rule. The requirements in this final rule pertaining to ISO/IEC
17020:2012(E) are discussed in Unit III.B.3.a.i.
In this final rule, EPA retains the requirement that Product ABs be
signatories to the IAF MLA and be endorsed by IAF through level three,
the ``main scope'' of the IAF MLA, which ensures that the AB has
policies and procedures in place in its operations and management plans
to accredit a TPC for product certification to ISO/IEC 17065:2012(E).
EPA will also recognize members of IAF regional bodies, as suggested by
public comments. The four regional cooperations that are currently
recognized by both IAF and ILAC as equivalent are the Asia Pacific
Laboratory Accreditation Cooperation (APLAC), the European
Accreditation Cooperation (EA), the Inter-American Accreditation
Cooperation (IAAC), and the Pacific Accreditation Cooperation (PAC).
However, EPA disagrees with a comment to remove the phrase ``or
equivalent oversight body'' and, as proposed, EPA will still consider
accepting into the program ABs that are members of organizations that
EPA has determined to be equivalent. If any other oversight bodies
exist in the future, ABs that are members of those oversight bodies
should have the opportunity to be recognized under the EPA program, if
EPA determines that membership in the new oversight body is equivalent
to being an ILAC or IAF signatory.
b. Required qualifications of Laboratory ABs. A Laboratory AB is
responsible for accrediting the TPC formaldehyde emissions testing
laboratory. EPA proposed that Laboratory ABs be signatories to the ILAC
MRA or a member of an equivalent organization.
As discussed for Product ABs in Unit III.B.2.a., EPA received
similar comments that Laboratory ABs who are members of ILAC-recognized
Regional Cooperations provide accreditation services that are
equivalent to those provided by ILAC MRA signatories. EPA agrees and,
as for Product ABs, in this final rule EPA will consider a Laboratory
AB's membership in a regional ILAC cooperation as being equivalent to
being a signatory to the ILAC MRA for the purposes of eligibility in
the EPA TSCA Title VI Third-Party Certification Program. The four
regional cooperations that are currently recognized by both IAF and
ILAC as equivalent are the APLAC, the EA, the IAAC, and the PAC. EPA
will also consider accepting into the program Laboratory ABs that are
members of organizations equivalent to ILAC, as determined by EPA.
[[Page 89692]]
c. Recognition agreement between EPA and ABs. EPA proposed that
Product ABs and Laboratory ABs interested in participating in the EPA
TSCA Title VI Third-Party Certification Program would be required to
submit an application to EPA to be formally recognized by EPA. Once EPA
reviewed the AB's credentials and deemed that the AB was qualified, EPA
proposed that it would enter into a recognition agreement with each
Product and Laboratory AB to formally recognize each type of AB (or a
single AB performing both AB roles) as qualified to implement their
respective roles under the EPA TSCA Title VI Third-Party Certification
Program. The proposed recognition agreement was proposed to be a signed
agreement between EPA and each Product AB or Laboratory AB to abide by
the proposed regulatory requirements.
EPA received several comments about the proposed requirement that
each AB enter into a recognition agreement with EPA. These commenters
opposed or questioned requiring ABs to enter into a recognition
agreement with EPA, stating that an AB's status as a signatory to the
IAF MLA and/or ILAC MRA should be sufficient without any further review
by EPA.
Because many ABs and the TPCs that they accredit are not located in
the United States, it is necessary for ABs to enter into a recognition
agreement with EPA to establish a closer relationship between EPA and
the ABs for the proper EPA oversight of its regulatory program.
Furthermore, this requirement is not without precedent, as there are
several third-party certification programs where ABs must enter into
such agreements with government agencies to provide accreditation
services to third-party certifiers, such as the EPA WaterSense Program
and the EPA Energy Star Program. EPA also believes that requiring ABs
through recognition agreements to meet with EPA in person, via
teleconference, or other virtual methods on some regular or as-needed
basis to discuss the implementation of the accreditation program
strengthens the ongoing relationship between EPA and participating ABs,
which in turn improves the overall implementation of the EPA TSCA Title
VI Third-Party Certification Program. For these reasons, EPA in this
final rule is retaining the requirement for ABs to apply to EPA and
enter into a recognition agreement in order to become an EPA TSCA Title
VI AB.
EPA also received comment that EPA should lengthen the recognition
agreement with ABs from three years as proposed to four years to
reflect the length of time between normal AB peer evaluations under the
ILAC and IAF programs. Because the timing of the EPA recognition
agreement with the ABs is unlikely to match the individual AB peer
review cycles, matching up the two periods would not have any impact on
the responsibilities of the ABs under the EPA TSCA Title VI Third-Party
Certification Program. For these reasons, EPA will retain the provision
for three-year recognition agreement cycles in the final rule.
d. Agent for service requirement for EPA TSCA Title VI ABs. In the
event that legal notices would need to be served to an EPA-recognized
AB, or should the need for administrative and judicial proceedings
occur with an EPA-recognized AB, EPA proposed requiring ABs to
designate an agent for service in the United States in their
applications. The agent would need to be capable of accepting service
of notices and processes made in administrative and judicial
proceedings. Any information provided by EPA to the designated agent
for service would be equivalent to providing that information directly
to the EPA-recognized AB. Requiring a designated agent for service in
the United States will help to facilitate communication between EPA and
ABs and ensure compliance with the formaldehyde emission standards by
facilitating the ability of EPA to enforce TSCA Title VI and its
implementing regulations, which in turn encourages the regulated
entities to fulfill their obligations under the statute and
regulations.
EPA received several comments regarding the agent for service
requirement for ABs. Some commenters misinterpreted this requirement to
mean that an AB employee is expected to physically work or have an
office in the United States, which it does not. Additionally,
commenters expressed concern that ABs who function as part of foreign
governments may have difficulty designating an agent for service.
EPA determined that an agent for service is necessary for legal
matters, and is available at a relatively low cost from private firms
that specialize in this role. Therefore, the Agency is retaining this
requirement in this final rule. In response to public comments, EPA
clarifies that the requirement permits EPA TSCA Title VI ABs and TPCs
to share an agent for service. EPA TSCA Title VI ABs that are part of a
foreign government or act on behalf of a foreign government may
designate their U.S. embassy or a U.S. consulate as their agent for
service.
e. EPA Recognition Agreement Implementation Officer. As discussed
in the proposal and retained in this final rule, the EPA Recognition
Agreement Implementation Officer is the EPA point of contact for ABs to
consult with on the implementation of the recognition agreement with
EPA and matters pertaining to the EPA-recognized AB's responsibilities
under the recognition agreement. The EPA-recognized AB will also have
an Implementation Officer that will serve as the point of contact for
the EPA TSCA Title VI Third-Party Certification Program. The respective
EPA and EPA-recognized AB Implementation Officers are identified in
each recognition agreement between EPA and the EPA-recognized Product
and/or Laboratory AB.
f. Requirements for EPA TSCA Title VI ABs. EPA proposed that once
EPA had entered into a recognition agreement with an AB, that AB would
become recognized by EPA as an EPA TSCA Title VI Product AB, Laboratory
AB, or both. This section discusses the proposed EPA-recognized AB
responsibilities and the public comments, as well as the AB
responsibilities established in this final rule.
i. Responsibilities of EPA TSCA Title VI Product ABs in the TPC
application process. EPA proposed that EPA-recognized Product AB
responsibilities would include receiving and acting on applications
from TPCs seeking to participate in the EPA TSCA Title VI Third-Party
Certification Program. EPA also proposed that the EPA-recognized
Product ABs send TPC applications and required supporting documentation
to EPA and assign the TPC a unique number once the TPC became an EPA
TSCA Title VI Accredited TPC.
EPA received several comments expressing concern with these
responsibilities. Some commenters felt that the proposed approach would
provide an increased burden on EPA-recognized ABs beyond normal
industry accreditation practice, leading to increased costs passed on
to TPCs. Based on these comments, EPA will not require Product ABs to
review and approve or deny TPC applications from candidate TPCs that
want to participate in the EPA TSCA Title VI Third-Party Certification
Program. Instead, under this final rule, EPA will approve TPC
applications directly or will recognize CARB-approved TPCs under the
EPA TSCA Title VI Third-party Certification Program through the EPA/
CARB memorandum of agreement (see Unit III.B.5.b.).
ii. Responsibilities of ABs after TPC recognition into the EPA TSCA
Title VI
[[Page 89693]]
Third-Party Certification Program. Under the proposal, EPA-recognized
Product ABs, when accrediting a TPC, would be responsible for ensuring
that the TPC has a process in place to verify the accuracy of the
formaldehyde quarterly and quality control tests. EPA TSCA Title VI
Product ABs would also ensure the TPC has a process in place to monitor
panel producer quality assurance programs, and conduct independent
audits and inspections of panel producers, their quality control
testing facilities and their laboratories. EPA also proposed that
Product ABs keep certain records including checklists and other records
documenting TPC compliance with the accreditation requirements and
provide them to EPA within 30 calendar days upon request.
Several commenters thought the proposed requirement for ABs to make
available to EPA on request, certain accreditation information such as
checklists and other records documenting adherence to specific
requirements under the ISO standards, such as inspections and on-site
assessments, would present issues with the confidentiality agreements
between ABs and TPCs and would violate the ISO/IEC17011:2004(E)
confidentiality requirements (Ref. 55). EPA also was informed that it
could obtain such information through the TPCs rather than the ABs.
Based on these comments, in this final rule, EPA is requiring
information pertaining to assessment results of a TPC from the TPC
instead of the AB.
Under this final rule, as proposed, EPA-recognized Product ABs will
retain the responsibility to accredit TPCs (if the TPC is found to be
eligible) seeking recognition under the EPA TSCA Title VI Third-Party
Certification Program by performing an initial assessment of each TPC.
Once EPA recognizes the accredited TPC, EPA-recognized ABs must perform
a reassessment or surveillance on-site assessment (as defined in
section 770.3) of EPA-recognized TPCs in accordance with ISO/IEC
17011:2004(E) at least every two years.
Commenters also suggested that EPA require that TPCs have this
final rule's requirements listed within their scope of accreditation
for both ISO/IEC 17065:2012(E) and ISO/IEC 17025:2005(E) (Refs. 58,
60). They indicated that this would help to provide enough specificity
in the certification scheme to ensure consistent performance by all the
ABs, TPCs and panel producers in this program.
Because of this information, EPA is clarifying in this final rule
that EPA-recognized Product ABs (and Laboratory ABs as discussed later
in this unit) are required to include, as part of their initial ISO
accreditation related assessment, reassessment and surveillance on-site
assessment of a TPC, a review of the TPC's competence to perform its
responsibilities under this rule pursuant to ISO/IEC 17011:2004(E).
Additionally, a TPC's certificate of accreditation issued by the EPA-
recognized Product AB must specifically include a written reference
that the TPC scope of accreditation includes ``40 CFR part 770--
Formaldehyde Standards for Composite Wood Products.''
EPA proposed that EPA-recognized Laboratory ABs would be
responsible for verifying initially, and on an ongoing basis, that the
TPC laboratory is experienced and capable of conducting formaldehyde
emissions tests according to the requirements of TSCA Title VI and its
implementing regulations.
In this final rule, the EPA-recognized Laboratory AB
responsibilities remain largely unchanged from the proposal. EPA-
recognized Laboratory ABs, like Product ABs, are required as part of
their initial assessment, reassessment, and surveillance on-site
assessment of a TPC, to conduct a review of the TPC's competence to
perform its laboratory related responsibilities under this rule
pursuant to ISO/IEC 17011:2004(E). The TPC's accreditation certificate
issued by the EPA-recognized Laboratory AB must specifically include a
written reference that the TPC's scope of accreditation includes ``40
CFR part 770--Formaldehyde Standards for Composite Wood Products'' and
the formaldehyde test methods ASTM E1333-10 and ASTM D6007-02, if used.
EPA proposed that, upon request, EPA-recognized Laboratory ABs
would allow EPA representatives to accompany their assessors during on-
site assessments to observe the audit of a TPC. EPA received comments
from ABs opposing this requirement. In response to these comments in
this final rule, EPA will instead require that TPCs, upon request by
EPA, allow EPA to attend their assessment, reassessment or surveillance
on-site assessments conducted by their EPA-recognized AB.
g. Revocation of EPA's recognition of an AB. EPA proposed that it
may suspend, revoke, or modify the recognition of an EPA-recognized AB,
if the AB is not complying with the requirements promulgated for ABs
under TSCA Title VI. As proposed, if an EPA-recognized AB is removed or
withdraws from the EPA TSCA Title VI Third-Party Certification Program,
that AB would be responsible for promptly notifying EPA and all EPA-
recognized TPCs that receive its accreditation services. EPA proposed
to allow the TPCs that were accredited by that EPA-recognized AB to
have 365 calendar days, or 180 calendar days, if less than 365 calendar
days were left on their three-year recognition period, to be accredited
and recognized again as an EPA-recognized TPC by another EPA-recognized
AB. EPA proposed that this grace period would not be afforded to TPCs
if their EPA recognized-AB is removed or withdraws from the EPA TSCA
Title VI Third-Party Certification Program for fraud or providing false
or misleading statements related to a particular EPA-recognized TPC or
TPCs, or any reason that implicates a particular TPC or TPCs in a
violation of TSCA Title VI or its implementing regulations. While
seeking accreditation from an alternate EPA-recognized AB, EPA proposed
that an EPA-recognized TPC would need to continue to comply with all
other aspects of TSCA Title VI and its implementing regulations, and
the TPC could continue to certify composite wood products.
Based on comments received, under this final rule, EPA is retaining
the authority to suspend, revoke or modify the recognition of an EPA-
recognized AB, if the AB is not complying with the requirements
promulgated for ABs under TSCA Title VI. If an EPA-recognized AB is
removed or voluntarily withdraws from the EPA TSCA Title VI Third-Party
Certification Program, that AB is responsible for promptly notifying
all EPA-recognized TPCs that receive its accreditation services and
EPA, in the case of a withdrawal. The regulations allow the TPCs that
were accredited by that EPA-recognized AB to have 180 calendar days to
be accredited by another EPA-recognized AB. This 180 day grace period
would not be afforded to TPCs if their EPA-recognized AB is removed or
withdraws from the EPA TSCA Title VI Third-Party Certification Program
for fraud or providing false or misleading statements related to a
particular EPA-recognized TPC or TPCs, or any reason that implicates a
particular TPC or TPCs in a violation of TSCA Title VI or its
implementing regulations. During the 180-day period TPCs may continue
to certify products under TSCA Title VI. EPA agrees with those
commenters who thought that portions of the EPA-recognized TPC's
previous assessments could be considered by the new EPA-recognized AB
in its reaccreditation of the TPC and therefore would not require the
[[Page 89694]]
proposed 365 calendar days. In this final rule, as proposed, if an EPA-
recognized AB is removed from the EPA TSCA Title VI Third-Party
Certification Program due to fraud for providing false or misleading
statements with respect to a particular TPC, or for any other reason
that implicates a particular TPC in a violation of TSCA Title VI or
this final rule, that TPC may not provide any TSCA Title VI
certification services until it has been accredited by another EPA-
recognized AB. Should this situation occur, EPA will provide
notifications to the affected EPA-recognized TPCs at the time it
commences formal action (i.e. an action to suspend, modify or revoke a
recognition under the procedures established in 40 CFR 770.7(e))
against the AB. Also under this final rule, and as proposed, any action
EPA takes against an AB would not preclude an enforcement action
against a TPC.
3. Requirements for third-party certifiers of composite wood
products. a. Requirements to apply for participation in the EPA TSCA
Title VI Third-Party Certification Program. EPA proposed that TPCs meet
several qualifications to demonstrate experience and competency in
certain areas that EPA believed were important to ensure a TPC's
ability to conduct audits, inspections, testing, and certification of
composite wood products. The basic requirements for candidate TPCs to
qualify to participate in the TSCA Title VI program remain largely the
same in this final rule except as noted in the following discussions.
EPA had proposed that the TPC must apply to an EPA-recognized
Product AB to certify composite wood products pursuant to TSCA Title
VI. As discussed in Unit III.B.2.f.i., EPA will instead require in this
final rule that TPCs apply directly to EPA for recognition or for CARB-
approved TPCs to provide EPA with documentation from CARB that
specifies a TPC's eligibility for reciprocity as discussed in Unit
III.B.5.b. TPCs must apply for EPA TSCA Title VI recognition
electronically through the EPA CDX via http://cdx.epa.gov (discussed in
more detail in Unit III.B.6.) or, if notified by EPA that the CDX
portal is not available, via an online application on the EPA Web site
found at: http://www.epa.gov/formaldehyde/.
i. TPC accreditation requirements. As discussed in Unit
III.B.2.f.ii., candidate TPCs must be accredited to ISO/IEC 17065:2012
(E), and the accreditation must include a scope of accreditation to 40
CFR part 770--Formaldehyde Standards for Composite Wood Products.
EPA proposed that TPCs have experience in conducting inspections of
panel producers pursuant to ISO/IEC 17020:1998(E). Some commenters
noted that the proposal was unclear on whether TPCs needed to be
accredited to ISO/IEC 17020:1998(E) or be in conformance with ISO/IEC
17020:1998(E). Other commenters stated that accreditation to ISO/IEC
17020:2012(E) is duplicative because inspection qualifications and
responsibilities for TPCs and their sub-contractors are already
incorporated into the required ISO/IEC 17065:2012(E) accreditation.
Based on these comments, EPA is requiring in this final rule that EPA
TSCA Title VI TPCs be in conformance with (but not necessarily
accredited to) ISO/IEC 17020:2012(E), as is required under ISO/IEC
17065:2012(E) section 6.2.1. EPA TSCA Title VI TPCs must also be able
to conduct inspections of panel producers and their products and
properly train and supervise inspectors to inspect in conformance with
ISO/IEC 17020:2012(E).
EPA also proposed that TPCs have experience operating or using
laboratories that are accredited to ISO/IEC 17025:2005(E). EPA did not
receive comments on this point and is therefore finalizing this
requirement as proposed. Also, as previously noted, the TPCs' scope of
accreditation to ISO/IEC 17025:2005(E) must include 40 CFR part 770--
Formaldehyde Standards for Composite Wood Products and the formaldehyde
test methods ASTM E1333-10 and ASTM D6007-02, if used.
ii. TPC recognition periods. EPA proposed that TPCs would be
required to renew their application to EPA-recognized ABs every three
years. EPA requested and received comments on the costs and benefits of
a three-year renewal period for recognition under the TSCA Title VI
Program as compared to a two-year renewal period (as under the CARB
ATCM). EPA also requested and received comments on whether the proposed
requirement for EPA TSCA Title VI ABs to audit TPCs and their
laboratories every two years should be extended to every three years to
align with the proposed three-year TPC recognition period.
Many commenters supported the proposed renewal periods of three
years for TPCs. Other commenters also stated that the renewal periods
should be in line with intervals of assessments as required by the ISO
standards. The two-year renewal period is consistent with the maximum
amount of time allowed between on-site assessments under ISO/IEC
17011:2004(E) and is also is consistent with ISO/IEC 17065:2012(E). In
an effort to harmonize this final rule with the existing CARB
regulations and better align with the on-site assessment requirements
of the ISO standards highlighted above, EPA is requiring that all EPA
TSCA Title VI TPCs submit a renewal application to EPA, or
documentation to renew their eligibility for reciprocity every two
years for EPA recognition and to have a reassessment or surveillance
on-site assessment conducted by their EPA TSCA Title VI AB every two
years to maintain their accreditation.
iii. Experience in composite wood products. EPA proposed that TPCs
must have experience in the composite wood products industry because
understanding the processes used by panel producers to produce
composite wood products is crucial for the EPA TSCA Title VI TPC to
adequately inspect panel producers. EPA requested comment on whether
EPA should require that a TPC have experience with the specific type of
composite wood product that it would certify or if experience with one
type of product is sufficient to certify all types of composite wood
product.
Several commenters stated that experience with one product type is
sufficient to certify all composite wood products because the TPC's
objectives to certify compliance with emission standards and
correlation to quality control test methods are independent of product
type. EPA agrees with the commenters, and will require in this final
rule that TPCs have experience with at least one type of composite wood
product. EPA is also requiring each TPC applicant to state its
experience in the composite wood products industry and include the
specific type of composite wood product(s) that it intends to certify.
iv. Agent for service requirement for EPA TSCA Title VI TPCs. In
order to facilitate communication between EPA and TPCs, EPA proposed to
require TPCs to designate an agent for service in the United States in
their applications. EPA received several comments regarding the agent
for service requirement for TPCs. As discussed in Unit III.B.2.d., for
EPA-recognized ABs, an agent for service is necessary for legal matters
and is available at a relatively low cost from private firms that
specialize in this role. Therefore, the Agency is retaining this
requirement in this final rule. However, in response to public
comments, EPA clarifies that the requirement permits EPA TSCA Title VI
ABs and TPCs to share an agent for service.
v. Experience in formaldehyde testing. The proposed TPC
qualification
[[Page 89695]]
requiring TPC laboratories to have experience in performing or
verifying formaldehyde emissions testing on composite wood products has
been retained in this final rule. The proposed requirement for TPC
laboratories to have experience with test method ASTM E1333-10 and
experience evaluating correlation between test methods has been
modified in the final rule. Based on public comment, candidate TPCs may
provide a description of experience with test method ASTM E1333-10 and/
or ASTM D6007-02, if used, and experience evaluating correlation
between test methods when applying for EPA recognition into the TSCA
Title VI program. Note, in a situation where a TPC is only providing a
description of experience with ASTM D6007-02, the TPC must be
contracting testing with a lab that has a large chamber and experience
with ASTM E1333-10.
b. Denied TPC applicants. Under this final rule, if EPA denies a
TPC's application for recognition in the EPA TSCA Title VI Third-Party
Certification Program for failure to submit a complete application or
for being unqualified, EPA will notify the TPC of the legal and factual
basis for the denial, and actions, if any, which the affected TPC may
take to receive recognition in the future.
EPA maintains the authority to deny recognition of CARB-approved
TPCs who apply to be recognized through reciprocity (as discussed in
more detail in Unit III.B.5.b.) in the EPA TSCA Title VI Third-Party
Certification Program if the Agency believes the TPC is not qualified
according to this rule.
c. Responsibilities once a TPC is recognized into the EPA TSCA
Title VI Third-Party Certification Program. EPA proposed that once an
applicant is recognized as a TPC under the TSCA Title VI Third-Party
Certification Program, the EPA-recognized TPC would then certify panel
producers' composite wood products under the requirements of TSCA Title
VI and its implementing regulations.
In the proposed rule, EPA also required that EPA-recognized TPCs
review and approve, when appropriate, applications from panel producers
for reduced testing or exemption from third-party certification
requirements for products made with ULEF or NAF-based resins. Under the
CARB ATCM, CARB, not the TPCs, reviews and approves these applications.
Several commenters opposed TPCs reviewing and approving applications
for NAF and ULEF approvals. Their concerns include potential conflicts
of interest, potential for inconsistency among TPC reviews, and the
potential for inadvertent misuse of confidential business information.
One commenter suggested that EPA conduct reviews and issue approvals,
accept all current CARB approvals, and work with CARB as an alternate
approval authority going forward. CARB requested reciprocity in its
comments. Another commenter said that EPA may want to grandfather
existing resin approvals made by CARB and continue to coordinate
decisions with CARB.
To address these concerns, in this final rule, under the terms of
reciprocity with CARB, EPA will accept CARB's NAF and ULEF approvals,
as long as CARB's requirements for products made with NAF-based and
ULEF resins are at least as stringent as EPA's requirements, which EPA
affirms is currently true. Should EPA determine that CARB's
requirements are no longer at least as stringent was EPA's
requirements, then EPA will publish a notice in the Federal Register
announcing EPA's determination.
Alternatively, panel producers can apply to an EPA TSCA Title VI
TPC for NAF and ULEF approvals. EPA also notes that the provisions
requiring TPC impartiality are applicable to TPCs reviewing and
approving NAF/ULEF applications (see Unit III.B.7.). EPA believes the
ability to apply to CARB for NAF and ULEF approvals, the dynamic market
amongst TPCs, and the impartiality requirements for TPCs, mitigate any
concerns about potential TPC conflicts of interest. As proposed, EPA is
also separately requiring EPA TSCA Title VI TPCs to review and approve
or deny applications from panel producers for reduced quality control
testing for particleboard and medium-density fiberboard under the
provisions discussed in Unit G.
EPA proposed to require that EPA-recognized TPCs inspect and
provide an on-site audit of panel producers and their records at least
quarterly and conform to ISO/IEC 17020:1998(E) (subsequently updated to
ISO/IEC 17020:2012(E)) when conducting their inspections. EPA requested
comment on whether enhanced testing or inspection requirements should
be required where a TPC finds that a panel producer has failed quality
control or quarterly tests at a certain frequency, or upon other
circumstances. Considering comments received on this issue, in this
final rule, EPA will not require additional enhanced testing. Instead,
it would be most appropriate for each EPA TSCA Title VI TPC to
establish its own process for determining the conditions that warrant
enhanced testing and/or inspections as needed for panel producers with
failed quality control or quarterly tests. However, this final rule
requires that EPA TSCA Title VI TPCs notify panel producers and EPA
within 72 hours of a failed quarterly test result. An EPA TSCA Title VI
TPC must also notify EPA within 72 hours of becoming aware that a panel
producer has exceeded its established quality control limit (QCL) for
two or more consecutive quality control tests. EPA is not requiring
TPCs to notify EPA each time a QCL is exceeded because isolated QCL
exceedances, where potentially non-complying products have not left the
panel producer, can be addressed by the EPA TSCA Title VI TPC and the
panel producer without EPA intervention. Additionally, the panel
producer will have to comply with the non-complying lot provisions of
40 CFR 770.22 with respect to any lot represented by a sample result
that exceeds the applicable formaldehyde emission standard or indicates
that the lot may exceed the applicable standard. Where multiple
products are grouped in a single product type for testing, this
includes all products in the group represented by the sample.
In the proposed rule, an EPA-recognized Product AB would supply the
TPC with a unique TPC identification number once it has been accredited
for TSCA Title VI purposes. Under this final rule, EPA TSCA Title VI
TPCs will be supplied with a TPC identification number by EPA unless
the TPC is CARB-approved and received EPA TSCA Title VI recognition
through reciprocity. In this case, CARB-approved TPCs will use their
CARB-issued TPC identification numbers. EPA TSCA Title VI TPCs must
provide their identification numbers to panel producers so that the
panel producers can include the TPC number on the label of their
certified products and in their records.
EPA proposed to require EPA-recognized TPCs to maintain various
records in electronic form for three years. EPA received several
comments pertaining to the proposed three-year recordkeeping
requirement. Two commenters contended that EPA should maintain CARB's
two-year recordkeeping period for TPCs, one commenter supported
recordkeeping beyond three years, and another commenter was supportive
of EPA's proposed three-year record retention period for TPCs.
Under this final rule, EPA is maintaining its requirement that
records be held in electronic form for three years. EPA has determined
that certain records will assist EPA in monitoring compliance with the
emission standards and other provisions. The records required are
largely the same as proposed, but have been modified to
[[Page 89696]]
better align with the CARB ATCM and are listed in Sec.
770.7(c)(4)(vii) of this rule.
EPA proposed to require EPA-recognized TPCs to submit an annual
report to EPA and the EPA-recognized AB that accredits the TPC. Under
this final rule, EPA will not require that this report be provided to
the TPC's AB but will still require the EPA-recognized TPCs to submit
these reports to EPA through the EPA CDX database. (Ref. 61). If the
CDX database becomes unavailable for any reason, EPA will provide an
alternate electronic reporting method and notify the EPA-recognized
TPCs of how to access the alternate method. In addition, the
requirements of this report have been, for the most part, modified to
align with CARB's annual report requirements for consistency between
the two programs and to respond to public comments. Aligning with
CARB's annual report requirements expands the number of data elements
beyond what EPA specifically proposed. However, adding these data
elements will streamline annual reporting requirements for EPA-
recognized and CARB-approved TPCs by allowing the acceptance of a
single annual report by both regulatory programs. Under this final
rule, EPA TSCA Title VI TPCs must electronically submit an annual
report on or before March 1st of each year for TPC services performed
during the previous calendar year. The required reporting elements of
the annual report are listed at Sec. 770.7(c)(4)(viii) of this rule.
d. TPC Interlaboratory Comparison. EPA proposed to require EPA-
recognized TPCs to participate annually in an EPA-recognized
interlaboratory comparison program or, if developed, a proficiency
testing program. EPA requested comment on: Ways it might integrate with
CARB's interlaboratory comparison program; the frequency of
interlaboratory comparisons; what criteria should be used to determine
the adequacy of performance; how and whether participating Laboratory
ABs could administer an interlaboratory comparison or proficiency
testing program for the TPCs that it accredits; and the cost of such a
program.
Commenters supported either CARB or EPA conducting an
interlaboratory comparison program for TPCs in both the state and
federal programs. One commenter also provided suggestions on how to
strengthen the existing CARB interlaboratory comparison program. In
addition, EPA received several comments regarding the frequency of
interlaboratory comparisons and/or proficiency testing. Most commenters
felt that an annual interlaboratory comparison was sufficient to meet
EPA and CARB's goal that laboratories regularly demonstrate their
proficiency at testing formaldehyde emissions of composite wood
products. Three commenters also supported the use of a standard
reference material as a possible alternative material for using in
interlaboratory comparison or similar testing.
Based on comments received, in this final rule, EPA is requiring
all EPA TSCA Title VI TPC laboratories, of both CARB TPCs and non-CARB
TPCs, to participate in the CARB interlaboratory comparison for
formaldehyde emissions from composite wood products when offered. CARB
intends to conduct the interlaboratory comparisons no less frequently
than every two years. EPA has determined that requiring participation
in the CARB interlaboratory comparison on a regular basis is necessary
to verify that TPC laboratories under TSCA Title VI are able to
properly measure formaldehyde emissions from composite wood products.
EPA's decision to utilize the pre-existing CARB interlaboratory
comparison program under the EPA TSCA Title VI Third-Party
Certification Program is supported by public comments and will allow
for one consolidated interlaboratory comparison program and further
establish consistency between the CARB and federal regulatory programs.
EPA will consult on a regular basis with CARB regarding the EPA TSCA
Title VI TPCs' interlaboratory results, any other testing-related
information, and the ongoing operation of the CARB interlaboratory
comparison testing program. EPA will also require TPCs to submit to EPA
the results compared with the mean of any interlaboratory comparison
for formaldehyde emissions in which the TPC laboratory participates
other than the CARB interlaboratory comparison or, if available, the
TPC laboratory results from an EPA-recognized proficiency testing
program. EPA retains the authority to make its own independent decision
on the performance of an EPA TSCA Title VI TPC under the CARB
interlaboratory comparison or any other future EPA-recognized
interlaboratory comparison or proficiency testing program. EPA also
retains the authority to derecognize the CARB interlaboratory
comparison or any other future EPA-recognized interlaboratory
comparison or proficiency testing program if it no longer meets the
needs of the EPA TSCA Title VI Program.
Currently no reference material for formaldehyde emission is
available. If a reference material for formaldehyde is developed and
then approved by EPA, EPA will consider incorporating the use of that
reference material into an EPA-recognized interlaboratory or
proficiency testing program. As supported by public comment, if such an
EPA-recognized interlaboratory or proficiency testing program by means
of a reference material becomes available, EPA would also consider
initiating a rulemaking to require any EPA-recognized third-party
proficiency testing provider to be accredited to ISO/IEC 17043:2010(E).
e. Removal, reaccreditation and reapplication process for third-
party certifiers. As proposed, if an EPA-recognized TPC loses its
accreditation or discontinues participation in the EPA TSCA Title VI
Third-Party Certification Program for any reason, it would be
responsible for promptly notifying EPA and all panel producers to which
it provides TSCA Title VI certification services. EPA proposed that
panel producers that used the TPC to certify their products would need
to enlist another EPA-recognized TPC to certify their products within
90 calendar days. This 90 day grace period would not be afforded if
their EPA-recognized TPC loses its accreditation or discontinues
participation in the program for fraud or providing false or misleading
statements, or any reason that implicates a particular panel producer
in a violation of TSCA Title VI or its implementing regulations.
EPA requested comment on whether it provided adequate time in the
proposal for a panel producer to seek an alternate certification should
their TPC lose its EPA recognition under TSCA Title VI. Based on the
public comments, this final rule allows panel producers 90 calendar
days to obtain a new EPA TSCA Title VI TPC in the event that their
previous TPC loses its accreditation or recognition in the TSCA Title
VI Program as long as they remain in compliance with all other relevant
aspects of the rule. Panel producers who are not able to obtain a new
EPA TSCA Title VI TPC within 90 calendar days may request from EPA a 90
calendar day extension, for good cause. If the panel producer does not
obtain a new TPC within 90 calendar days, or if granted an extension by
EPA, 180 calendar days, composite wood products produced thereafter are
not certified and may not be sold, supplied or offered for sale.
4. Enforcement, suspension and revocation. a. Enforcement under
TSCA sections 15-17. EPA proposed to conduct inspections of
participating TPCs and ABs and issue subpoenas according to the
requirements for recognition and/or pursuant to the
[[Page 89697]]
provisions of TSCA section 11 (15 U.S.C. 2610) to ensure compliance
with TSCA Title VI and the regulations promulgated thereunder. EPA
proposed to exercise the authority to withdraw from a recognition
agreement with an EPA-recognized AB and pursue penalties under TSCA
section 15 (15 U.S.C. 2614) for any violation of TSCA Title VI or the
regulations promulgated thereunder. In addition to an administrative or
judicial finding of violation, EPA proposed the grounds for withdrawing
from a recognition agreement and/or pursuing an enforcement action
against an EPA-recognized AB would include submitting false information
to EPA, falsifying records, or failing to comply with program
requirements. EPA is finalizing these enforcement provisions as
proposed.
b. Suspension, revocation and modification of TPC and AB
recognition. EPA proposed to exercise the authority to suspend, revoke,
or modify a TPC's TSCA Title VI recognition, with or without the
participation of the EPA-recognized AB that provided the accreditation,
if the EPA-recognized TPC fails to comply with TSCA Title VI or the
regulations promulgated thereunder. EPA proposed that any violation of
TSCA Title VI or the regulations promulgated thereunder would also be a
prohibited act under TSCA section 15. Proposed grounds for suspending,
modifying, or revoking an EPA TSCA Title VI TPC's recognition included
submitting false information to EPA or an AB, falsifying records, or
failing to comply with program requirements.
EPA proposed that should an EPA-recognized AB identify a non-
conformity or discrepancy with the EPA-recognized TPC's implementation
of one of the ISO standards via an internal audit or other means, that
TPC must take remedial action within the timeframe specified by the AB
or the time specified in the TPC's quality management plan. Timely
remedial action would not preclude enforcement actions by EPA for non-
conformities or discrepancies that constitute violations of TSCA Title
VI or these implementing regulations. Prior to withdrawal from a
recognition agreement with an EPA-recognized AB, or the suspension,
revocation, or modification of an EPA TSCA Title VI TPC's recognition,
EPA proposed to provide notification to the affected AB or TPC of the
action.
EPA proposed that an individual or organization may request a
hearing prior to the final action. EPA would appoint an impartial
official of EPA as Presiding Officer to conduct a hearing within 90
calendar days of the request. The Presiding Officer would consider all
relevant evidence, explanations, comments, and arguments submitted and
notify the affected entity in writing within 90 calendar days of
completion of the hearing of his or her decision and order. EPA
clarifies that, depending on the circumstances, a hearing need not
involve real-time exchanges and may be conducted through written
correspondence, for example.
EPA proposed that if it determines that the public health,
interest, or welfare warrants immediate action to suspend the
recognition of an AB or a TPC prior to the opportunity for a hearing,
it would notify the affected AB or TPC of its right to request a
hearing on the immediate suspension within 15 calendar days of the
suspension taking place and the procedures for the conduct of such a
hearing.
EPA proposed that any notice, decision, or order issued by EPA in
response to a hearing, any transcript or other verbatim record of oral
testimony, and any documents filed in response to a hearing will be
available to the public, except as otherwise provided by TSCA section
14. Any such hearing at which oral testimony is presented will be open
to the public, except that the Presiding Officer may exclude the public
to the extent necessary to allow presentation of information which may
be entitled to confidential treatment under TSCA section 14.
Commenters pointed out that EPA cannot revoke a TPC's accreditation
but rather its recognition in the EPA TSCA Title VI Third-Party
Certification Program. As discussed in Unit III.B.1.a, EPA agrees that
recognition is the correct term. In this final rule EPA may revoke a
TPC's recognition in the EPA TSCA Title VI Third-party Certification
Program for the conditions mentioned previously. EPA is otherwise
finalizing these provisions for suspension, modification and revocation
as proposed.
5. CARB-approved TPC transitional period and reciprocity. EPA
proposed that CARB-approved TPCs have one year after the promulgation
of the TSCA Title VI implementing regulations to become accredited by
an AB that has entered into a recognition agreement with EPA. The
Agency also proposed that for one year after promulgation of the final
rule CARB-approved TPCs would be allowed to carry out certification
activities under TSCA Title VI provided that they were compliant with
all other aspects of TSCA Title VI and the regulations promulgated
thereunder. EPA requested comment on ways to better synchronize the
timing for the TSCA Title VI recognition period for existing CARB-
approved TPCs. EPA also asked whether the TPCs should be required to
obtain accreditation from an EPA-recognized AB no later than one-year
after the first EPA-recognized AB enters into a recognition agreement
with the EPA under the TSCA Title VI.
EPA agrees with comments received that it could take longer than
one year for CARB TPCs to align with the EPA requirements including
being accredited by an AB that has entered into a recognition agreement
with EPA. EPA will therefore allow for a two-year transition period in
this final rule.
a. Transitional Period for CARB-Approved TPCs. Under this final
rule, a TPC approved by CARB may certify composite wood products under
TSCA Title VI for a two-year transitional period that begins February
10, 2017 so long as the TPC remains approved by CARB and complies with
all aspects of the final rule other than the accreditation requirements
under this rule.
Existing CARB TPCs and CARB TPCs approved during the transition
period must provide panel producers with their TPC number issued by
CARB. The annual report must be provided to CARB and EPA during the
two-year transitional period. Notifications to EPA must also be
provided during the two-year transition period.
After the two-year transition period, CARB-approved TPCs may
continue to certify composite wood products under TSCA Title VI
provided the TPC maintains its CARB approval, follows all the
requirements under this part (including the accreditation
requirements), submits to EPA documentation from CARB supporting their
eligibility for reciprocity and has received EPA recognition as an EPA-
recognized TPC.
b. Reciprocity for CARB TPCs. EPA received several comments that
asked EPA to align with the CARB program and accept CARB-approved TPCs
into the EPA program. CARB suggested that EPA enter into a mutual
recognition agreement with them to accept CARB TPC approvals through
reciprocity such that CARB TPC approvals would be accepted by the EPA
without need for further review.
EPA has worked closely with CARB to establish a means for
reciprocity and will enter into a memorandum of agreement that recites
the requirements in this rule for CARB-approved TPCs to receive EPA
recognition through reciprocity and the process that EPA and CARB will
use to implement reciprocity. To be eligible to obtain EPA recognition
through reciprocity, CARB-
[[Page 89698]]
approved TPCs must meet all of the TPC qualifications discussed in Unit
III.B.3.a. and provide EPA with documentation from CARB that specifies
their eligibility for reciprocity via the EPA CDX at http://cdx.epa.gov. In the event that CDX becomes unavailable, EPA will
provide an alternate electronic submission method and inform TPCs how
to access the alternate method at http://www.epa.gov/formaldehyde. EPA
maintains the authority to deny recognition of CARB-approved TPCs who
apply to be recognized through reciprocity in the EPA TSCA Title VI
Third-Party Certification Program if the Agency believes the TPC is not
qualified under this rule. An overview of the EPA TSCA Title VI Third-
Party Certification Program and CARB TPC reciprocity is shown in
Illustration 2.
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6. Electronic reporting. The Government Paperwork Elimination Act
(GPEA), 44 U.S.C. 3504 note, provides that, when practicable, Federal
organizations use electronic forms, electronic filings, and electronic
signatures to conduct official business with the public. EPA's Cross-
Media Electronic Reporting Regulation (CROMERR) (40 CFR part 3) (Ref.
62), provides that any requirement in title 40 of the Code of Federal
Regulations (CFR) to submit a report directly to EPA can be satisfied
with an electronic submission that meets certain conditions once the
Agency publishes a regulation that an electronic document submission
process is available for that requirement. In addition, the Paperwork
Reduction Act (PRA) requires Federal agencies to manage information
resources to reduce information collection burdens on the public;
[[Page 89699]]
increase program efficiency and effectiveness; and improve the
integrity, quality, and utility of information to all users within and
outside an agency, including capabilities for ensuring dissemination of
public information, public access to Federal Government information,
and protections for privacy and security (44 U.S.C. 3506). Section 2 of
TSCA expresses the intent of Congress that EPA carry out TSCA in a
reasonable and prudent manner, and in consideration of the impacts that
any action taken under TSCA may have on the environment, the economy,
and society (15 U.S.C. 2601). Electronic reporting was not available
when TSCA was enacted nor when several underlying reporting
requirements were subsequently promulgated by EPA. EPA believes that it
is now reasonable and prudent to manage and leverage its information
resources, including information technology (IT), to require the use of
electronic reporting in the implementation of certain TSCA provisions.
Electronic reporting can reduce burden and costs for the regulated
entities by eliminating the costs associated with printing and mailing
this information to EPA, while at the same time improving EPA's
efficiency in reviewing submitted information and making decisions.
EPA proposed requiring that information reported to EPA from TPCs
and ABs be reported electronically through EPA's CDX. EPA requested
comment on whether it should require mandatory electronic reporting.
Most commenters were not opposed to electronic reporting and some
commenters were amenable to electronic reporting but did not want it
required. One commenter also contended that, no matter what form of
reporting is eventually utilized, all proprietary business information
should be kept confidential by the EPA.
In this final rule, EPA will require TPCs and ABs to report
electronically because such a requirement streamlines the reporting
process and reduces the administrative costs associated with
information submission and recordkeeping. In light of the limited
number of reporting entities (TPCs and ABs) participating in the TSCA
Title VI program, the most cost-effective and efficient solution for
all concerned is a single database developed by EPA.
Most of the information requested in the reporting requirements of
these collections is not of a confidential nature. Nonetheless, the
application is designed to support acceptance of TSCA confidential
business information (CBI) by providing a secure environment that meets
Federal standards.
While information collected under TSCA may be entitled to
confidential treatment if it meets the standard for Exemption 4 in the
Freedom of Information Act (FOIA), 5 U.S.C. 552(b)(4), TSCA section 14
provides that health and safety studies and data derived from health
and safety studies, are not entitled to confidential treatment,
irrespective of the Exemption 4 standard, unless the release of data
derived from such studies would disclose processes used in the
manufacturing or processing of a chemical substance or mixture or, in
the case of a mixture, would disclose the portion of the mixture
comprised by any of its chemical substances. EPA has determined that
certain information that is submitted by TPCs in their annual reports
and notifications is not eligible for treatment as CBI, irrespective of
the Exemption 4 standard, because that information is health and safety
studies and data derived from health and safety studies. This includes
information pertaining to the compliance status of a particular lot,
batch, or shipment of composite wood. Quarterly test results, the test
date, the panel producer and product tested, test method and test
results cannot be claimed CBI. The ``product tested'' can be a general
product description such as particle board of a certain thickness.
TPCs and ABs will be able to submit CBI claims on behalf of
themselves or their clients for the other information reported to EPA.
CBI claims for information that is generally already publicly available
(status of a TPC or AB's participation in the EPA TSCA Title VI Third-
Party Certification program, and the basic credentials and contact
information for those entities) may be substantiated contemporaneously.
This type of information is expected to typically be publicly available
(e.g., on an entity's own Web site or marketing material), but in case
there are exceptions EPA is allowing the opportunity to claim this
information as CBI with contemporaneous substantiation. EPA notes that
ABs and TPCs may use a business email and phone number, and write the
descriptions of their credentials broadly so that it excludes
information the entity considers to be confidential.
The Frank R. Lautenberg Chemical Safety for the 21st Century Act
(Pub. L. 114-182) was signed into law on June 22, 2016, and became
immediately effective. Section 14(c) now requires a supporting
statement and certification for confidentiality claims asserted after
June 22, 2016. The final rule contains one minor change to reflect the
new statutory requirements for asserting confidentiality claims. EPA is
requiring a statement and certification consistent with the section
14(c)(1)(B) statement (and with a related certification requirement in
section 14(c)(5) of the revised statute) to meet the new statutory
requirements. While this change was not discussed in the proposed rule,
EPA finds there is good cause to make this change without notice and
comment. Notice and comment are unnecessary because the new statement
is required by statute, and EPA anticipates no significant effect of
the change on companies reporting under the rule or on the public in
general.
To submit information via the CDX, each AB and TPC must designate
an individual representative (registrant) who will then register with
the CDX system at http://cdx.epa.gov. The registration process includes
completing an electronic signature agreement, preparing a data file for
submission, agreeing to the Terms and Conditions of CDX, providing
information about the submitter and organization, selecting a user name
and password, and following the procedures outlined in the guidance
document for CDX available at: https://cdx.epa.gov/Content/Documents/CDX_Quick_User_Guide.pdf. (Ref. 63). The registrant must select a role
and complete an electronic signature agreement either through
electronic validation or through wet ink signature.
To streamline reporting, CARB may, at a future date, offer their
approved TPCs the choice of submitting the CARB annual report and other
ongoing reporting obligations through the CDX electronic reporting
database.
7. Impartiality provisions for TPCs and ABs. EPA received comments
from CARB that EPA should specifically state that a panel producer
cannot be a TPC under the EPA program. EPA has determined that such a
prohibition would be a useful clarification of the impartiality
provisions of the ISO/IEC standards that EPA proposed to incorporate
and is incorporating into this rule. Therefore, this final rule
expressly prohibits a panel producer from also being a TPC.
Additionally, as a result of a review of the impartiality provisions of
the ISO/IEC standards in response to CARB's comment, EPA is specifying
other impartiality requirements to highlight key portions of the ISO/
IEC standards that are incorporated by reference in the proposed and
final regulations. In addition to requiring that a TPC not be a panel
producer, a TPC is not allowed to be a laminated product producer,
designer, distributor or retailer of
[[Page 89700]]
composite wood products, or have a financial interest in any of these
entities. EPA is also requiring that employees and management personnel
of a TPC involved in the panel producer review and product
certification decision-making process cannot be involved in advocacy or
consulting activities on behalf of the composite wood industry. To
further document impartiality, EPA-recognized TPC and EPA-recognized AB
management personnel and personnel involved in certifying products are
required to commit in writing that they will receive no financial
benefit from the outcome of certification testing. Finally, EPA is
requiring that an EPA-recognized AB ensure that an accreditation
decision regarding a TPC is made by persons different from those who
conducted the assessment of the TPC. All of these points reflect
provisions in the ISO/IEC standards that EPA believes are worth
underscoring.
C. Formaldehyde Emission Standards
TSCA Title VI establishes formaldehyde emission standards for
composite wood products (hardwood plywood, particleboard, and medium-
density fiberboard) so that when they take effect on December 12, 2017,
as discussed in Unit III.C., the standards are identical to the CARB
ATCM Phase 2 emission levels. The emission standards will be 0.05 ppm
formaldehyde for hardwood plywood, 0.09 ppm formaldehyde for
particleboard, 0.11 ppm formaldehyde for medium-density fiberboard, and
0.13 ppm formaldehyde for thin medium-density fiberboard. The statute
does not give EPA authority to modify these emission standards.
TSCA Title VI describes two emission standards for hardwood
plywood, one for that made with a veneer core and the other for that
made with a composite core. In the preamble to the proposed
regulations, EPA argued that, because the two standards are the same,
0.05 ppm formaldehyde, for implementing regulations taking effect after
July 1, 2012, the 0.05 ppm limit should be applied to all composite
wood products that meet the definition of hardwood plywood, regardless
of the core type. Many commenters opposed this interpretation and urged
EPA to be consistent with the CARB ATCM in this area. The CARB ATCM has
a similar definition of hardwood plywood. It includes a variety of core
types, but the CARB ATCM emission standards apply only to hardwood
plywood made with a veneer core or a composite core. Thus, for example,
hardwood plywood made with a lumber core or a hardboard core is not
required to comply with the emission standards or the testing and
certification requirements of the ATCM. EPA agrees with those
commenters that recommended consistency with the CARB ATCM. In EPA's
view, the better reading of TSCA Title VI is that it only imposes the
hardwood plywood formaldehyde emission standard on hardwood plywood
made with a veneer or a composite core. Therefore, EPA is promulgating
a hardwood plywood emission standard that specifically applies only to
hardwood plywood with either a veneer core or a composite core.
D. Product Certification in General
Under this final rule, composite wood products that are sold,
supplied, offered for sale, or manufactured (including imported) within
the United States must be certified, unless they are specifically
exempted by TSCA or excluded by this final rule. In general, this means
that the formaldehyde emission levels from the composite wood products
would have been demonstrated to be below the emission standards in TSCA
Title VI. This demonstration would be through a combination of testing
performed by an accredited TPC laboratory, and repeated on a quarterly
basis, and more frequent quality control testing performed by the Panel
Producer of the composite wood product, an accredited TPC laboratory,
or a contract laboratory. Specific requirements for this testing are
discussed in Unit III.E.
EPA is requiring panel producers of composite wood products to
apply to an EPA TSCA Title VI TPC for product certification, and to
design and establish a quality control program, including testing, that
is both approved by the TPC and specific to the panel producer. EPA has
slightly different requirements for certification, depending on whether
the panel producer has other product types that are already certified
under the CARB ATCM or TSCA Title VI. For a panel producer that does
not have any certifications from a CARB-approved TPC or an EPA TSCA
Title VI TPC, or that is switching to a new TPC, the panel producer
must provide to the TPC the panel producer's contact information, a
copy of its quality control manual, contact information for its quality
control manager, an identification of the specific products for which
certification is requested and the resin system used, results from at
least five quarterly and five quality control tests, a linear
regression equation and correlation data, and results of an initial,
on-site inspection by a TPC. For panel producers applying for
certification of a new product type but that have previous product
certifications from a CARB-approved TPC or an EPA TSCA Title VI TPC,
the application must contain the panel producer's contact information,
an identification of the specific products for which certification is
requested and the resin system used, at least five quarterly and five
quality control tests, a linear regression equation and correlation
data, and a description of any changes in the panel producer's quality
control manual and a copy of those changes. Regardless of whether panel
producers are applying for certification of a new product type, the
test results must demonstrate an adequate correlation between the
quality control test results and the TPC's quarterly test results as
described in Unit III.E. Test results must also indicate that the
formaldehyde emissions of the products are below the emission standards
established by TSCA Title VI as discussed in greater detail in Unit
III.C. The initial on-site inspection must demonstrate that the panel
producer has the required quality control and quality assurance
procedures in place to ensure that the products will continue to meet
the emission standards. Multiple products can be grouped into a single
product type for certification; however, formaldehyde emissions test
results must demonstrate that grouped products have similar
formaldehyde emission characteristics and that their emissions fit the
same correlation curve or linear regression. Uncertified product
produced after the manufactured-by date cannot be sold, supplied, or
offered for sale in the United States.
EPA had proposed to require three months of quality control testing
prior to certification but received numerous comments stating that this
requirement was unnecessary, would create an undue delay in bringing
new products to the market, and is not required by CARB. Commenters
recommended that EPA's requirements for certification be consistent
with the requirements in the CARB ATCM. EPA has decided to harmonize
with the CARB ATCM by requiring correlation data and an initial on-site
inspection conducted by the TPC, but not the proposed three months of
testing. This is consistent with how products are being certified under
the CARB ATCM and is sufficient to demonstrate that the panel producer
is manufacturing products that meet the emission standard and has
quality control procedures in place to ensure that the product will
continue to meet the standards. Under this final rule, products
currently certified by CARB-approved TPCs will be considered
[[Page 89701]]
certified for purposes of TSCA Title VI. However, as described in Unit
III.B., EPA is allowing CARB-approved TPCs two years to become
recognized by EPA under TSCA Title VI. Therefore, a panel producer
whose TPC does not become recognized under TSCA Title VI in a timely
manner would have to apply to an EPA-Recognized TPC to continue to make
certified products after the manufactured-by date.
E. Formaldehyde Emissions Testing Requirements
TSCA Title VI requires that composite wood products be measured for
compliance with the statutory emission standards by quarterly tests
pursuant to test methods ASTM E1333-96 (2002) or ASTM D6007-02 (Refs.
39, 64). TSCA Title VI also requires that quality control tests be
conducted pursuant to ASTM D6007-02, ASTM D-5582 (Ref. 65), or such
other test methods as may be established by EPA through rulemaking.
Under the statute, test results conducted using any test method other
than ASTM E1333-96 (2002) must include a showing of equivalence by
means that EPA must establish through rulemaking. Under TSCA Title VI,
EPA must also establish, through rulemaking, the number and frequency
of tests required to demonstrate compliance with the emission
standards. This unit of the preamble discusses EPA's rulemaking on each
of these statutory elements.
1. General testing requirements. EPA is finalizing the testing
requirements as proposed with a few minor changes to definitions and
terms used in the requirements based on public comments.
EPA received numerous comments on the proposed definitions of the
terms ``product type,'' ``production line,'' ``lot,'' and the lack of
definitions for the terms ``production run'' and ``batch.'' Many
commenters were concerned that as proposed, every single batch or lot
of product would need to be tested, and commenters stated that under
the proposed definitions, producers of low volume specialty products
would need to test more often than large volume producers. Therefore,
EPA has made some changes to these definitions and to the terms used in
the testing requirements to clarify that products with similar
formaldehyde emissions can be grouped for testing purposes (both
quality control testing and quarterly testing). EPA is adding a
definition of the term ``resin system''. EPA is changing the definition
of ``lot'' to be consistent with the definition in the CARB ATCM. In
addition, EPA is no longer using the term ``batch'' as it was redundant
with use of the term ``lot'' in the proposed rule and was confusing.
EPA is modifying the definition of the term ``production line''
slightly to be consistent with use of the term not only in the
particleboard and medium density fiberboard industry, but also the
hardwood plywood industry. In addition, EPA is no longer using the term
``production run.''
EPA is finalizing as proposed the requirement that entities
conducting formaldehyde testing must use the procedures, such as
testing conditions and loading ratios, specified in the method being
used. EPA is also finalizing the requirement that all equipment used in
formaldehyde testing be calibrated and otherwise maintained and used in
accordance with the equipment manufacturer's instructions. EPA received
numerous public comments supporting these requirements. EPA is also
finalizing the requirement that all panels be tested in an unfinished
condition, prior to the application of a finishing or topcoat.
a. Quarterly testing requirements. EPA proposed to require that
accredited TPCs conduct the quarterly tests required by TSCA Title VI.
EPA is finalizing this requirement essentially as proposed except to
clarify that the quarterly testing must be overseen by an EPA TSCA
Title VI TPC but that the testing can be conducted by an accredited
laboratory, owned or operated by a TPC or an accredited contract
laboratory, which this final rule will refer to as a ``TPC
laboratory.'' The statute requires these tests to be performed using
ASTM E1333-96 (2002) or, upon a showing of equivalence as discussed in
this Unit, ASTM D6007-02 (Refs. 39, 64). Under the authority provided
by TSCA section 601(d)(5), EPA is incorporating ASTM E1333-10 into the
final rule's testing requirements, rather than the 2002 version (Ref.
43). EPA is aware that these test methods and several other standards
referenced in this final rule have been updated and plans to substitute
successor standards after public notice and opportunity for comment, as
appropriate.
Under the final rule, TPC laboratories must test randomly chosen
samples from a single lot that is ready for shipment by the panel
producer. Neither the top nor bottom composite wood product of a bundle
can be selected because the emissions from these products may not be
representative of the bundle. For particleboard and medium-density
fiberboard, quarterly tests must be conducted on randomly selected
samples of each product type (unless they qualify for reduced testing
based on ULEF or NAF-based resin). For hardwood plywood, in
consideration of a comment from HPVA that hardwood plywood producers
may not be producing all of their product types when the TPC selects
samples for testing, EPA is removing the requirement that samples be
selected from the hardwood plywood product with the highest potential
to emit formaldehyde and, instead, is requiring TPCs to randomly select
samples for testing that are representative of the range of products
produced by the panel producer.
As discussed previously, EPA is allowing products to be grouped for
quarterly and quality control testing. EPA is allowing EPA TSCA Title
VI TPCs to approve the grouping of products with similar formaldehyde
emission characteristics, based on correlation data as described in
Unit III.E.
EPA is finalizing the quarterly sample handling requirements as
proposed, except for minor changes in use of the terms ``lot'' and
``product type,'' and in the requirements for product grouping as
discussed in this Unit. Samples must be closely stacked or air tight
wrapped between the time of sample selection and the start of test
conditioning. Samples will also have to be labeled as such, signed by
the TPC, protected by cover sheets, and promptly shipped to the
laboratory testing facility. EPA is finalizing the requirement that
conditioning begin as soon as possible, but no more than 30 calendar
days after production.
b. Quality control test methods. With a showing of adequate
correlation, EPA is allowing use of the following methods: ASTM D6007-
02, ASTM D5582, EN 717-2 (Gas Analysis Method) (Ref. 66), DMC (Dynamic
Microchamber) (Refs. 67-68), EN 120 (Perforator Method) (Ref. 69), and
JIS A 1460 (24-hr Desiccator Method) (Ref. 70). EPA has determined that
these are appropriate methods for quality control testing based on
public comments, CARB's evaluation and approval of these methods as
alternative small scale test methods, and because test results using
these methods have been demonstrated to have adequate correlations with
test results using ASTM E1333-10. EPA is establishing these methods
pursuant to section 601(b)(3)(A)(ii) for quality control testing. EPA
does not endorse any particular method over others.
Few comments were received in support of the addition of any other
method, and the supporting commenters did not provide data or
information
[[Page 89702]]
demonstrating equivalence or adequate correlation with ASTM E1333 that
would justify their inclusion with the established methods. However, if
EPA receives additional information and chooses to pursue adding
another method, EPA will provide notice in the Federal Register and an
opportunity for public comment as required by TSCA Title VI. EPA
received several comments indicating that both the 2012 and 2007 user's
manuals should be allowed for the Dynamic Microchamber Method;
therefore, EPA is incorporating by reference both versions of the
user's manuals.
For each quality control test method that will be used to perform
quality control testing for a particular panel producer, the EPA TSCA
Title VI TPC must establish, in consultation with the panel producer, a
QCL. The QCL is the quality control test value that is the correlative
equivalent to the emission standard based on the ASTM E1333-10 method.
The QCL is established by using a simple linear regression where the
dependent variables (Y-axis) are the quality control test results and
the independent variables (X-axis) are the ASTM E1333-10 test results.
c. Quality control testing frequency for particleboard and medium-
density fiberboard that do not qualify for reduced testing based on
ULEF or NAF-based resins. EPA is finalizing the quality control testing
frequency for particleboard and medium-density fiberboard as proposed.
Quality control tests will be required at least once per shift for each
production line for each product type. Quality control tests must also
be conducted whenever a product type production ends, whenever there is
a significant change to resin formulation or use, when a decrease in
press time of more than 20 percent occurs, and any time quality control
employees have reason to believe that the panel being produced may not
meet the requirements of the applicable standards.
EPA is finalizing reduced quality control testing requirements as
proposed for particleboard and medium-density fiberboard when the panel
producer demonstrates consistent operations and low variability of test
values. The panel producer must request approval from an EPA TSCA Title
VI TPC. If approved, quality control testing will still have to occur
at least once per 48-hour production period. As proposed, a 30 panel
running average, consisting of the average of the results of the 30
most recently sampled panels, must be maintained, and depending on
whether the average remains two or three standard deviations below the
designated QCL for the previous 60 consecutive days or more, testing
frequency may be reduced to one test per 24-hour or 48-hour production
period, respectively. An EPA TSCA Title VI TPC must approve a request
for reduced quality control testing as long as the data submitted by
the panel producer demonstrate compliance with the criteria and the TPC
does not otherwise have reason to believe that the data are inaccurate
or that the panel producer's production processes are inadequate to
ensure continued compliance with the emission standards. Based on
comments received, EPA is clarifying in this final rule that reduced
testing privileges will continue unless revoked by a TPC as a result of
an emission test exceedance or if testing indicates the panel producer
no longer meets the eligibility requirements.
d. Proposed quality control testing frequency for hardwood plywood
that does not qualify for reduced testing based on ULEF or NAF-based
resins. EPA is finalizing the frequency of quality control testing for
hardwood plywood essentially as proposed. EPA is removing the proposed
requirement to test per production line based on comments indicating
that a hardwood plywood panel producer's production line can consist of
several multiple-opening hot presses and glue spreaders that are often
used to produce any and all of the panel producer's certified product
types. EPA's quality control testing frequency requirements for
hardwood plywood are generally similar to CARB's requirements and are
likewise based on production volume. Hardwood plywood panel producers
must generally test each product type weekly, with one to four tests
being required based on total weekly hardwood plywood production by the
panel producer. For some small specialty panel producers, even one
quality control test per week per product type would be excessive. In
order to address the inequity of requiring small manufacturers to
conduct many more tests than required of large manufacturers for the
same production volume, if weekly production of hardwood plywood at the
panel producer is less than 100,000 square feet, but more than 100,000
square feet is produced per month, EPA is requiring one quality control
test per 100,000 square feet of each product type produced. If the
panel producer produces less than 100,000 square feet of a particular
product type per month, EPA is requiring only one quality control test
of that product type per month when the product type is produced. For
low volume producers, EPA had proposed to require testing per
production run and per lot; however, numerous commenters pointed out
that with the proposed definition of lot, this requirement could lead
to low volume producers testing at a higher frequency than some high
volume producers. By removing the requirement to test per production
run and per lot, EPA is ensuring that the testing requirement will not
be too burdensome for panel producers that manufacture low volumes of
hardwood plywood. EPA is including the requirement of periodic testing
to ensure that if a product type is produced several times per year, at
less than 100,000 square feet, several quality control tests will be
conducted. EPA is concerned that one test would not be sufficient to
ensure compliance if there is a gap in production of more than one
month. In addition, EPA is clarifying that product types not being
manufactured during a particular week do not need to be manufactured
just so that they can be tested.
Based on supporting comments, EPA is also including a requirement
for hardwood plywood panel producers to conduct quality control testing
when certain changes are made to resin formulation or use, press time
is reduced by more than 20%, or quality control employees have reason
to believe that the panel being produced may not meet the requirements
of the applicable standard. CARB included these requirements in the
March 2014 mark-up of the ATCM (Ref. 51).
EPA is not promulgating a reduced quality control testing provision
for hardwood plywood similar to the provision for particle board and
medium-density fiberboard because HPVA's comments indicated that such a
provision is not necessary and because no commenters suggested criteria
for qualification.
2. Means of showing test method equivalence. EPA is finalizing the
means of showing test method equivalence essentially as proposed. EPA
proposed to require that equivalence between ASTM E1333-10 and any
other test method used be demonstrated by the TPC for each laboratory
used by the TPC or panel producer that is using the alternative method
at least once each year or whenever there is a significant change in
equipment, procedures, or the qualifications of testing personnel. In
this final rule, EPA is clarifying that TPCs are responsible for
demonstrating equivalence between ASTM E1333-10 and ASTM D6007-02 if
the TPC laboratory uses ASTM D6007-02 for
[[Page 89703]]
quarterly or verification testing. In this final rule, EPA is allowing
demonstration of equivalence to be reduced to at least once every two
years once it has been established every year for three consecutive
years. EPA is making this change to match CARB amendments to the ATCM
currently under consideration by CARB (Ref. 51) and because CARB
recommended this in submitted comments. In EPA's view, after a TPC has
consistently demonstrated equivalence over a three year period, it is
not necessary to require the TPC to continue to demonstrate equivalence
every year.
Many commenters indicated that EPA used the term ``equivalence''
incorrectly in the proposed rule when referring to comparison of ASTM
E1333-10 and quality control test methods. EPA used the term
``equivalence'' because it is the term used in TSCA Title VI. However,
in this final rule, EPA will use the term ``correlation'' for the
comparison of ASTM E1333-10 and quality control methods to meet the
TSCA Title VI requirement of demonstrating equivalence. EPA is also
clarifying in this final rule that the panel producer is responsible
for ensuring that an adequate correlation has been demonstrated between
the quality control methods that are used for testing its products
annually or at least once every two years once it has been established
for three consecutive years. Panel producers must also establish a new
correlation whenever there is a significant change in equipment,
procedures, or the qualifications of testing personnel. EPA is
requiring that a new correlation needs to be established whenever a
TPC's quarterly test results compared with the panel producer's quality
control test results do not fit the previously established correlation.
In addition, if a panel producer fails two quarterly tests in a row, a
new correlation curve needs to be established. EPA did not receive any
adverse comments regarding these requirements. The panel producer may
use its own laboratory, a TPC laboratory, or any other laboratory for
testing, but it is the panel producer's responsibility to ensure that
this requirement is met. The panel producer's TPC (or the TPC's
laboratory) will evaluate the quality control data and compare it with
the quarterly test data to establish a linear regression equation and
determine whether the correlation is adequate as described later in
this Unit.
One commenter stated that EPA should clarify that the equivalence
is specific not only to the test methods, but also the equipment. EPA
agrees and is therefore clarifying in this final rule that equivalence
or correlation must be demonstrated for each testing apparatus. Several
commenters indicated that EPA should not require the equivalence
protocol when ASTM D6007-02 is used as a quality control method and
that the equivalence protocol should only be required for TPCs or their
contract laboratories using ASTM D6007-02 for quarterly testing.
Therefore, EPA is clarifying in this final rule that when ASTM D6007-02
is used for quality control testing, only a demonstration of
correlation between ASTM D6007-02 and ASTM E1333-10 is required.
EPA is requiring that equivalence be demonstrated in the ranges of
formaldehyde concentrations that are representative of the emissions of
the products that the TPC certifies. EPA is requiring a minimum of five
comparison sample sets. In addition, EPA is allowing for flexibility in
sampling and not requiring testing of nine specimens representing
evenly distributed portions of an entire panel for demonstrating
equivalence between ASTM D6007-02 and ASTM E1333-10 as is required in
the CARB ATCM. Most commenters support this flexibility. For some types
of panels, within panel variability is such that fewer specimens can be
tested, but for other panels, testing of at least nine specimens will
be needed. TPCs and panel producers are best able to determine the
sampling and testing needed to account for within panel variability for
a specific product type, and EPA is therefore allowing for flexibility
in the distribution and number of specimens to require for the small
chamber test comparison sample set. If laboratories have difficulty
meeting the equivalence or correlation requirements, they may need to
increase the number of samples. Specifics on how the equivalence
demonstration must be performed can be found in 40 CFR 770.20(d)(1).
For the purposes of meeting the TSCA Title VI requirement of
demonstrating equivalence between ASTM E1333-10 and any quality control
test method used for measuring formaldehyde emissions, EPA is requiring
a demonstration of correlation. A linear regression with an acceptable
correlation must be established, as defined by the correlation
coefficient, or ``r'' value. As discussed in the preamble of the
proposed rule, although correlation does not show that the test methods
give equal results, it demonstrates whether a quality control test
method can be used to adequately estimate the corresponding ASTM E1333-
10 test result. Therefore, if there is an acceptable correlation, the
quality control test method can be used to estimate whether the product
meets the emission standards. The correlation will be based on a
minimum sample size of five data pairs and a simple linear regression
where the dependent variable (Y-axis) is the quality control test value
and the independent variable (X-axis) is the ASTM E1333-10 test value.
EPA is finalizing the minimum acceptable correlation coefficients
(``r'' values) for the correlation as proposed; they can be found at
Sec. 770.20(d)(2) of this rule. The number of data pairs is
represented by the letter ``n'' in the regulatory text. For example,
correlations based on five data pairs have 3-degrees of freedom, and
the correlation coefficient needs to be 0.878 or greater. As discussed
in the proposed rule, because of the low emissions required for
composite wood products, it may be necessary to include more than five
data pairs and/or a range of products (with a suitable range in
emissions, e.g., 0-0.1 ppm) in the testing to achieve acceptable
correlation coefficients.
3. Non-complying lots. EPA received many comments on the proposed
provisions for non-complying lots. Nearly all commenters objected to
EPA's proposed requirement that a panel producer retain product
belonging to lots selected for sampling until the panel producer
receives the test result. Commenters also made suggestions with regard
to the definition of non-complying lot.
EPA agrees with the commenter who noted that quality control tests
are often not directly comparable to the emission standard and has
modified the proposed definition so that the term ``non-complying lot''
means any lot of composite wood product represented by a quarterly test
value or quality control test result that indicates that the lot
exceeds the applicable standard for the particular composite wood
product in Sec. 770.10(b). EPA is also clarifying in the definition
that a quality control test result that exceeds the QCL is considered a
test result that indicates that the lot from which the sample was taken
exceeds the applicable standard. As proposed, the definition in the
final rule also states that, in the case of a quarterly test value,
only the particular lot from which the sample was taken would be
considered a non-complying lot; lots produced after the previous
quarterly test but before the lot from which the sample was taken would
still be considered certified product. The final rule definition
further states that future production of product type(s) represented by
a failed quarterly test would not be considered certified and would
have to be treated as a non-complying lot until the product type(s)
[[Page 89704]]
are re-qualified through a successful quarterly test.
Most commenters did not support EPA's proposed requirement that
panel producers retain product belonging to lots selected for sampling
until the test results are received by the panel producer. EPA proposed
this requirement to ensure that non-complying products do not end up in
the stream of commerce. However, commenters thought that this would
disrupt supply chains and be very costly for panel producers,
particularly in the case of quarterly tests, because of the time
involved in shipping and testing product. Commenters were concerned
that panel producers would not have sufficient warehouse capacity to
store lots associated with quarterly test samples until the test
results are received. On the other hand, a trade association
representing fabricators supported EPA's proposed requirement, stating
that fabricators have been in the position of receiving non-complying
product from panel producers but not being informed of the product's
non-complying status until after the product had moved into downstream
production. In EPA's view, holding lots until test results are received
is the best way to ensure that non-complying product is not distributed
in commerce, but EPA is also concerned about the impacts on industry
supply chains from holding product, particularly product belonging to
lots selected for quarterly testing. Most commenters supported a
requirement to notify customers that had received products belonging to
a non-complying lot. Many automatically assumed that panel producers
would support their customers and address non-complying product that
had been distributed before the test results were received, whether by
recalling the product, by retesting samples retained by the panel
producer, or by working with the customer to age or otherwise treat the
product. The panel producer is responsible for non-complying product
that it has inadvertently distributed, but EPA also understands the
importance of allowing panel producers flexibility in managing their
responsibility. Therefore, the final rule requires panel producers to
notify, within 72 hours of receiving notice of a failing test result,
any fabricators, distributors, or retailers that received non-complying
product. The notification must inform the customer of the type of test
failed and include a description of the composite wood product
belonging to the non-complying lot, a statement that the non-complying
product must be isolated from other composite wood products and must
not be further distributed in commerce, and a description of the steps
the panel producer intends to take with respect to the product. The
rule further requires panel producers to either treat, retest, and
certify the non-complying product while it remains in the possession of
the customer or recall the non-complying product and dispose of it or
treat, retest and certify it.
EPA is generally finalizing the rest of the provisions relating to
the handling of non-complying lots as proposed, except that several
commenter suggestions for clarification were incorporated. Under this
final rule, panel producers must segregate the non-complying lot from
other product and products in non-complying lots must only be sold,
supplied, or offered for sale in the United States if a test value that
meets the applicable standard is obtained after the products are
treated with scavengers to absorb excess formaldehyde, or treated
through another process that reduces formaldehyde emissions, e.g.
aging. Retesting must include at least one test panel selected from
each of three separate bundles, with the selected panels being
representative of the entire non-complying lot and not from the top or
bottom of a bundle. The test panels may be selected from properly
stored samples set aside by the panel producer for retest in the event
of a failure. In order to recertify the lot, the average of all of the
samples must test below the applicable standard. EPA also proposed to
require panel producers to keep records of the disposition of non-
complying lots, including the specific treatment used and the
subsequent test results demonstrating compliance. As pointed out by
commenters, quality control test results are not always directly
comparable with the emission standards, so the test result language in
this section clarifies that results of a retest of a failed quarterly
test must demonstrate compliance with the applicable emission standard,
while results of a retest of a failed quality control test must be at
or below the level that indicates that the product is in compliance
with the emission standards. Finally, in response to commenter
suggestions, EPA is promulgating a definition of the term ``scavenger''
that more precisely describes the role of scavengers in the context of
this regulation.
F. Quality Assurance and Quality Control Requirements for Composite
Wood Product Panel Producers
Panel producers are responsible for ensuring that their products
meet the emission standards of TSCA Title VI. Quality assurance and
quality control requirements for panel producers are necessary to
ensure that all of their products comply with the applicable standards,
including those that are not actually tested. EPA proposed quality
assurance and quality control requirements that would be virtually
identical to the requirements of the CARB ATCM and that would help
ensure proper handling of test samples, test equipment, and quality
control testing. EPA is generally finalizing these provisions as
proposed, with some clarifications and additions suggested by
commenters that address important aspects of producing and supplying a
product that meets TSCA Title VI requirements.
The final rule requires each panel producer to have a written
quality control manual at each location that produces composite wood
products. The manual must include a description of the organization of
the quality control department, sampling procedures and sample
handling, quality control testing frequency, procedures to identify
production changes that may result in changes in formaldehyde
emissions, recordkeeping and labeling procedures, description of
product type, and resin percentage and press time for each product
type, and procedures for handling non-complying lots, including a
description of how the panel producer will ensure compliance with the
notification requirements. The manual must be reviewed and approved by
an EPA TSCA Title VI TPC to ensure that the manual is complete and that
the panel producer's procedures are adequate to ensure that the TSCA
Title VI emission standards are being met on an ongoing basis. The
requirement for a quality control manual is consistent with CARB.
Each panel producer must designate a quality control facility for
conducting quality control formaldehyde testing of their product. The
quality control facility must be a laboratory owned and operated by the
panel producer, a TPC, or a contract laboratory.
Each panel producer must also designate a person as quality control
manager with adequate experience and/or training to be responsible for
formaldehyde emissions quality control. The quality control manager
must have the authority to take actions necessary to ensure that
applicable emission standards are being met. The panel producer must
identify the quality control manager and his or her qualifications in
writing to the TPC and must notify the TPC in writing within ten
calendar days of any change in the identity of the quality control
manager
[[Page 89705]]
and provide the TPC with the new quality control manager's
qualifications. The quality control manager must review and approve all
reports of quality control testing conducted on the production of the
panel producer. The quality control manager is also responsible for
ensuring that the samples are collected, packaged, and shipped
according to the procedures specified in the quality control manual.
The panel producer quality control manager must monitor the testing
facility's results, and immediately inform the TPC in writing of any
significant changes in production that could affect formaldehyde
emission rates.
Each quality control facility must have quality control employees
with adequate experience and/or training to conduct accurate and
precise chemical quantitative analytical tests. The quality control
manager must identify each person conducting formaldehyde quality
control testing in the quality control manual.
EPA requested comment on whether the regulation should include
minimum qualifications for quality control managers and quality control
staff, such as education, experience, or training requirements.
Commenters did not favor minimum qualifications, preferring instead to
allow panel producers, with TPC input, more flexibility in choosing
quality control managers and employees that are capable of performing
the required duties. EPA agrees with these commenters and is not
incorporating minimum education, experience, or training requirements
into the regulation.
Panel producers are required to submit monthly product data reports
for each panel producer, production line and product type, to their
TPC. The content requirements for the product data reports are
virtually identical to the CARB requirements and include a data sheet
for each specific product type with test and production information, a
quality control graph containing the established QCL and shipping QCL
(if applicable) the results of quality control tests, and retest
values. As discussed in more detail in Unit III.F., these quality
assurance and quality control requirements do not apply to any product
type made with a NAF-based resin or ULEF resin for which the panel
producer is eligible for an exemption from the third-party
certification requirements, except for the purpose of applying for re-
approval for the exemption.
G. NAF-Based and ULEF Resins
TSCA Title VI section 601(d)(2)(D) and (E) directs EPA to include,
in its implementing regulations, provisions related to products made
with NAF-based and ULEF resins. The statute also defines, under section
601(a)(7) and (10) respectively, what constitutes NAF-based and ULEF
resins, in terms of the composition of the resin system and maximum
formaldehyde emissions for composite wood products made with these
resin systems. In general, a NAF composite wood product cannot
incorporate a resin formulated with formaldehyde as part of the
crosslinking structure. A ULEF composite wood product is one made from
resins that may contain formaldehyde, but emit it at particularly low
levels. The statutory maximum emissions for products made with NAF-
based or ULEF resins are identical to those in the CARB ATCM.
EPA is finalizing NAF and ULEF provisions essentially as proposed.
If certain emission thresholds are met, EPA is providing producers of
panels made with NAF-based resins or ULEF resins with an exemption from
TPC oversight and formaldehyde emissions testing after an initial
testing period of three months for each product type made with NAF-
based resins or six months for each product type made with ULEF resins.
These specific initial testing periods are required by the statute and
are designed to ensure that the products meet the TSCA section 601(a)
formaldehyde emission standards for products made with NAF-based or
ULEF resins. Because EPA is only requiring quality control testing when
products are actually produced and is including provisions for reduced
testing for hardwood plywood panel producers that manufacture low
volumes of products, EPA is adding the clarification that the three or
six months of quality control testing must include at least 5 quality
control tests for NAF approvals and at least 10 quality control tests
for ULEF approvals. This requirement is meant to preclude the
possibility of panel producers manufacturing low volumes or
infrequently just to qualify for NAF or ULEF reduced testing or
exemption from certification, and because fewer quality control tests
would be insufficient to judge whether a product should qualify for
reduced testing or exemption from certification. EPA chose a minimum of
five tests for NAF approval because this is the minimum needed for
demonstrating correlation. EPA is requiring at least 10 quality control
tests for ULEF approvals because the statutory testing requirements for
ULEF qualification under TSCA Title VI are double those for NAF
qualification.
Whether using a NAF-based or ULEF resin to qualify for the
exemption from TPC oversight and formaldehyde emissions testing for a
particular product type, there can be no test result indicating
emissions higher than 0.05 ppm of formaldehyde for hardwood plywood and
0.06 ppm for particleboard, medium-density fiberboard, and thin medium-
density fiberboard during the initial testing period. In addition, test
results for 90 percent of the required quality control testing must
indicate emissions of no higher than 0.04 ppm of formaldehyde.
If less stringent emission standards than these are met, producers
of panels made with ULEF resins may still qualify for reduced
formaldehyde emissions testing--but not the third-party certification
exemption or the exemption from emissions testing after the initial six
months. To qualify for this reduced testing provision for products made
with ULEF resins, there can be no test result indicating emissions
higher than 0.05 ppm of formaldehyde for hardwood plywood, 0.08 ppm for
particleboard, 0.09 ppm for medium-density fiberboard, and 0.11 ppm for
thin medium-density fiberboard during the initial six month testing
period. In addition, test results for 90 percent of the required
quality control testing must indicate emissions of no higher than 0.05
ppm of formaldehyde for particleboard, 0.06 ppm for medium-density
fiberboard, and 0.08 ppm for thin medium-density fiberboard. Under this
reduced testing provision, qualifying panels would only need to be
quality control tested at least once per week per product type, except
that hardwood plywood panel producers who qualify for less frequent
quality control testing may continue to perform the lesser amount of
testing. For these panels, what would otherwise be quarterly testing by
an EPA TSCA Title VI TPC would instead only be required every six
months.
An EPA TSCA Title VI TPC must oversee the testing during the
initial testing period, which must include at least one test result for
the NAF exemption or two test results for either ULEF provision under
ASTM E1333-10 or, upon a showing of equivalence as discussed in this
Unit, ASTM D6007-02 (Refs. 43-44). To receive a third-party
certification exemption or reduced testing under this NAF/ULEF
provision, the panel producer will be required to apply to an EPA TSCA
Title VI TPC or CARB for approval for reduced testing or a third-party
certification exemption based on the regulatory requirements.
[[Page 89706]]
EPA had proposed to have TPCs review all of the applications; however,
several commenters expressed concern about this. Their concerns include
potential conflicts of interest, and potential for inconsistency among
TPC reviews. Therefore, EPA is also allowing CARB to review
applications for NAF and ULEF under the TSCA Title VI program, as long
as CARB continues to have requirements that are at least as stringent
as EPA's requirements, which EPA affirms is currently true. Should EPA
determine that CARB's requirements are no longer at least as stringent
was EPA's requirements, then EPA will publish a notice in the Federal
Register announcing EPA's determination.
As noted, panel producers can also apply to their EPA TSCA Title VI
TPC for NAF and ULEF approvals. EPA has determined that allowing TPCs
to approve applications for NAF/ULEF reduced testing and/or a limited
exemption from TPC oversight does not inherently present a conflict of
interest and the provisions of this final rule that require TPC
impartiality are applicable to TPCs reviewing and approving NAF/ULEF
applications (see Unit III.B.7.). The specific testing requirements and
eligibility criteria applicable to NAF/ULEF exemptions will greatly
reduce the likelihood of inconsistency in TPC reviews.
To maintain eligibility for a third-party certification exemption,
at least once every two years after the conclusion of the initial
testing period, the panel producer must reapply for exemption to an EPA
TSCA Title VI TPC or CARB. Because the CARB ATCM requires applications
and reapplications for these third-party certification exemptions to be
submitted to CARB, EPA will accept CARB approvals and re-approvals for
as long as CARB's exemption criteria remain at least as stringent as
EPA's. This will avoid duplicate applications for those panel producers
that operate in California. Re-applicants to the EPA program must
include one test result for NAF renewal and two test results for ULEF
renewal under ASTM E1333-10 or, upon a showing of equivalence as
discussed in this Unit, ASTM D6007-02, that demonstrate continued
compliance with the reduced formaldehyde emission standards for each
product type (Refs. 43-44). The test(s) must be based on products
randomly selected and tested by a TPC laboratory. In the case of
approval for ULEF reduced testing, no periodic reapplication to a TPC
is necessary because the panel producer must have ongoing TPC
oversight. However, if CARB approves reduced testing for ULEF, CARB may
require periodic reapplications. The current CARB regulations require
panel producers eligible for reduced testing to reapply to CARB every
two years.
In general, testing records and other records demonstrating
eligibility for a third-party certification exemption or reduced
testing, such as records showing the resin used to manufacture the
eligible products, must be maintained for a minimum of three years from
the date that the record was created. Commenters generally indicated
that initial testing records should be kept for as long as a panel
producer claims exemption or reduced testing. EPA agrees with these
commenters. In addition, EPA agrees that a review of the initial
testing period documentation may be useful in the event that a product
made under a NAF or ULEF exemption is determined to exceed the
applicable standard. Therefore, the final rule requires records of the
initial testing period be kept for as long as a panel producer is
producing composite wood products under an exemption.
Numerous commenters indicated that EPA should minimize the amount
of potentially confidential information (e.g., resin formulation) that
TPCs are required to maintain. To address the comments on CBI concerns,
EPA is removing the requirement included in the proposal that specific
resin formulation information be included with applications for NAF and
ULEF approvals and instead only requiring identification of the resin
system. The resin system is meant to be a generalized description of
the type of resin used. This is unlikely to be CBI, but an entity that
believes the resin system is CBI can have their TPC submit a claim for
this information on their behalf.
EPA proposed that any change in the resin formulation, the core
material, or any other part of the manufacturing process that may
affect formaldehyde emission rates would render the product ineligible
for the reduced testing approval or third-party certification exemption
and requested comment on whether other events, such as failed quarterly
or routine quality control tests, should invalidate a reduced testing
approval. Commenters provided suggestions for how EPA should handle
changes in manufacture or emission test result failures for products
that have received NAF or ULEF approvals. Taking these comments into
consideration, EPA is requiring at least one quality control test and
one quarterly test for NAF products, or five quality control tests and
one quarterly test for ULEF products, every time there is an
operational or process change that may affect formaldehyde emissions,
such as a change in resin formulation, press cycle duration,
temperature, or amount of resin used per panel. EPA has concluded that
a change in resin system and addition of products requires a new NAF or
ULEF application for third-party certification exemption or reduced
testing since these are major changes, which could require designation
as a new product type, rather than operational or process changes. In
addition, EPA is including in this final rule that a failed TPC
quarterly test or quality control test invalidates an approval for a
third-party certification exemption or reduced testing, and EPA is
requiring that a panel producer reapply with a complete new application
if its approval is invalidated because of a failed test result. A
failed test is a serious concern and therefore, a panel producer needs
to be able to demonstrate that its product can meet the NAF or ULEF
requirements by requalifying with the full testing requirements.
EPA proposed a ULEF reduced testing provision and requested comment
on the utility of this option. Very few manufacturers have sought the
ULEF reduced testing provision under the CARB ATCM in lieu of the total
exemption from TPC oversight and formaldehyde emissions testing
requirements after the initial testing period. As such, EPA anticipates
that the vast majority of ULEF resin-based composite wood product
manufacturers will apply for the full exemption from TPC oversight and
formaldehyde emissions testing after the initial testing period.
However, commenters indicated that they support the reduced testing
provision; therefore, EPA is including this provision in this final
rule.
EPA also requested comments, information, and data on the broader
question of giving composite wood products made with ULEF resins
preferential treatment under TSCA. EPA discussed some concerns about
products made with urea-formaldehyde-based resins. In EPA's view, it is
more difficult to ensure that formaldehyde emissions from products made
with these resins remain low over time, irrespective of environmental
conditions. It is well known that urea-formaldehyde resins can release
formaldehyde when exposed to heat and humidity because of the chemistry
of the resin, and EPA discussed some studies in the proposed rule on
formaldehyde emissions under conditions of high heat and humidity.
Several commenters expressed concern
[[Page 89707]]
about these studies, indicating that TSCA Title VI cites test methods
that specify temperature and humidity; these commenters argue that the
studies are therefore inappropriate and irrelevant.
EPA specifically requested comment on whether the ULEF provisions
should be limited to products made with a subset of ULEF resins that do
not contain urea-formaldehyde polymer--in other words, limited to no-
added urea formaldehyde-based (NAUF) resins. Most commenters were
opposed to this idea and instead support having both NAF and ULEF
provisions that are identical to the provisions in the CARB ATCM. In
contrast, one commenter only supports NAF and NAUF exemptions from TPC
oversight, not ULEF. This commenter stated that ``UF resin, with its
propensity to emit formaldehyde continuously upon aging, makes it
distinct from all other formaldehyde-based resin systems'' (Ref. 71).
EPA recognizes that the chemistry of urea-formaldehyde resins presents
challenges for controlling formaldehyde emissions from the resulting
composite wood products. However, EPA is finalizing the NAF and ULEF
provisions as proposed. In making this decision, EPA considered the
fact that TSCA Title VI requires upfront testing to confirm that panels
made with ULEF resins (as well as panels made with NAF-based resins)
meet statutory emission limits that are lower than the basic emission
standards for composite wood products. EPA also considered
Congressional intent and the interest in harmonization with the CARB
ATCM.
H. De Minimis Exception
Section 601(d)(2)(L) of TSCA allows EPA to promulgate, for products
and components containing de minimis amounts of composite wood
products, an exception to all of the requirements of the implementing
regulations other than the formaldehyde emission standards. While EPA
did not propose an exception from any of the regulatory requirements
for products containing de minimis amounts of composite wood products,
commenters overwhelmingly favored a de minimis exception.
After considering the comments, EPA is promulgating a de minimis
exception from the labeling requirements for finished goods and
component parts sold separately to end users that contain no more than
144 square inches of composite wood products, based on the surface area
of its largest face. For example, a frame for an eight-inch by ten-inch
picture is made up of two-inch wide and one-inch thick composite wood
product strips. The outer dimensions of the frame would be 14 inches by
12 inches and the inner dimensions would be 10 inches by 8 inches. This
frame contains 88 square inches of composite wood product and would
qualify for the de minimis exception ([12 x 14]-[10 x 8]). This de
minimis level, suggested by a commenter, is appropriate because it
would eliminate the labeling requirements for very small products. It
would also eliminate the labeling requirements for finished goods made
of non-regulated material, such as solid wood, that contain small
amounts of composite wood, such as hardwood plywood joining biscuits. A
labeling requirement for such products could create confusion amongst
consumers as to whether or not the product is solid wood. Finally, in
this context, EPA has determined that 144 square inches of composite
wood product in a finished good actually represents a trivial amount of
composite wood product, as opposed to the much larger thresholds
suggested by some commenters.
The exception does not apply to finished goods (and component parts
sold separately to end users) which are used in combination or in
multiples in order to create larger surfaces in the final use, such as
flooring or ceiling tiles. Products that are sold separately to
consumers and not intended to be used in multiples would be eligible
for this exception (e.g., a plywood rack designed to be attached to a
bicycle). Component parts that are sold to fabricators of finished
goods would not be eligible for this exception.
EPA notes that this exception is for the labeling requirements
alone. EPA does not believe it can ensure compliance with the emission
standards if it finalizes a de minimis exception to the recordkeeping
requirements. EPA notes that its authority to establish a de minimis
exception applies only to the regulatory requirements, not the
statutory emission standards. Thus, even products containing a de
minimis amount of composite wood must be made from panels that are
compliant with the regulatory requirements and emission standards.
Without records, there would be no way for the Agency, or a downstream
purchaser, to determine whether these products were made from compliant
composite wood panels.
I. Chain-of-Custody, Recordkeeping, and Labeling Requirements
Section 601(d)(2) of TSCA Title VI also directs EPA to consider
chain of custody, recordkeeping, and labeling requirements. EPA
proposed chain of custody, recordkeeping, and labeling requirements
that were similar to those under the CARB ATCM, reasoning that these
requirements also support compliance with TSCA Title VI without undue
burden. EPA's proposal departed from the CARB ATCM approach by
including a three-year recordkeeping period, instead of CARB's two
years, and by reducing recordkeeping for distributors and retailers.
EPA also proposed to require that panel producers make quarterly and
quality control testing records available to their customers upon
request. All of these elements are discussed in more detail in this
Unit.
1. Chain of custody and recordkeeping requirements. Most records
required to be retained under this regulation must be kept for a period
of three years from the date that they are generated. Many commenters
supported a two-year recordkeeping requirement, citing consistency with
the CARB ATCM, while others supported longer periods. The three-year
recordkeeping period is reasonable, given that EPA must monitor TSCA
Title VI compliance on the part of hundreds of thousands of entities
nationwide. In addition, required records would have to be provided to
EPA upon request to facilitate compliance monitoring activities.
As proposed, producers of hardwood plywood, particleboard, and
medium-density fiberboard panels must maintain records of quarterly
emissions testing and records of quality control testing. These records
must identify the TPC conducting or overseeing the testing, and must
include the date, the product type tested, the lot number that the
tested material represents, and the test results. In addition, panel
producers must maintain production records, purchaser and transporter
information, and information on the disposition of non-complying lots.
After December 12, 2023, laminated product producers whose products
are exempt from the definition of hardwood plywood will have to
maintain records demonstrating use of compliant cores or platforms and
phenol-formaldehyde resins or resins formulated with no added
formaldehyde as part of the resin cross-linking structure, including
platform production or purchase records, the resin trade name, resin
manufacturer contact information, and resin supplier contact
information, or, if the resin is made in-house, records sufficient to
demonstrate that the resin qualifies for the exemption.
In order to assist customers such as fabricators, distributors,
importers, and retailers in determining whether they are purchasing
compliant composite wood products, EPA is requiring that
[[Page 89708]]
panel producers make available to their direct customers, upon request,
the results of quarterly emissions test results for the product types
purchased. While information collected under TSCA may be entitled to
confidential treatment if it meets the standard for Exemption 4 in the
Freedom of Information Act (FOIA), 5 U.S.C. 552(b)(4), TSCA section 14
provides that health and safety studies and data derived from health
and safety studies, are not entitled to confidential treatment,
irrespective of the Exemption 4 standard, unless the release of data
derived from such studies would disclose confidential processes used in
the manufacturing or processing of a chemical substance or mixture or,
in the case of a mixture, disclose the confidential portion of the
mixture comprised by any of its chemical substances. For the reasons
discussed in the proposal, EPA has determined that quarterly test
results are not entitled to treatment as CBI. In order to minimize
paperwork and preserve the confidentiality of the supply chain, EPA is
limiting the disclosure requirement to direct purchasers (i.e., those
purchasing directly from mills). Thus the quarterly test results and
associated information (date of test, test method, panel producer name
and produce description) do not need to be carried with the product
through the supply chain.
Because of the volume and complexity of quality control test
results, EPA is not requiring panel producers to release this quality
control information to direct purchasers. However, EPA considers
quality control test results and the fact that a mill has had failed
quality control tests to be health and safety studies and data derived
from health and safety studies. Also as proposed, producers of hardwood
plywood, particleboard and medium-density fiberboard panels using NAF-
based resins or ULEF resins who qualify for the reduced testing and/or
third-party certification exemption discussed in Unit III.G. must
maintain records demonstrating initial and continued eligibility for
the reduced testing or third-party certification exemption. In
addition, the panel producer must keep production records and
information on resin trade name, resin manufacturer and supplier
contact information, and resin use.
Under the proposal, importers, fabricators, distributors, and
retailers would be required to take steps to ensure that they are
purchasing composite wood products or component parts that comply with
the emission standards and to document these steps. As proposed, in
order to document compliance, the importer or fabricator would have to
obtain from the supplier records identifying the panel producer(s) that
produced the composite wood products and the dates that the composite
wood products were manufactured and purchased from the panel
producer(s), as well as bills of lading or invoices that include a
written affirmation from the supplier that the composite wood products,
whether in the form of panels or incorporated into component parts or
finished goods, are compliant with this subpart.
The proposed requirement to take steps to ensure that compliant
products are being purchased would also have applied to distributors
and retailers. Rather than include specific required documentation for
these entities, the proposal requested comment on the documentation
that should be required. The only specific records the proposal would
have required distributors and retailers to keep were invoices and
bills of lading, and compliance statements on these documents would not
have been mandatory. EPA reasoned in the proposal that this would be
sufficient because these records would enable EPA to identify the
producer or importer of composite wood panels, component parts, or
finished goods being sold by distributors and retailers. EPA also
stated that, for finished goods, these records would also permit the
identification of the producer of the composite wood panels that make
up the finished goods. EPA concluded that, without imposing additional
recordkeeping burdens on most distributors and retailers, these records
would allow EPA to effectively monitor compliance with TSCA Title VI.
EPA received a number of comments on these requirements, some
specific to importer responsibilities. Commenters argued that, in many
cases, the importer is two or more steps in the supply chain removed
from the panel producer and would not be able to obtain this
information, particularly for imported finished goods. Some commenters
were concerned about supply chain confidentiality and objected to a
requirement that distributors disclose their suppliers to their
customers. EPA understands the concerns expressed by these commenters.
However, in order to be able to ensure that imported composite wood
products, component parts, and finished goods were produced in
compliance with TSCA Title VI, EPA needs to know the mill and the date
that the composite wood products were produced. For composite wood
products made by overseas mills, EPA must look to the importer for this
information. Without mill and production date information, EPA will not
be able to check with the appropriate TPC to determine whether the
product was certified. For these reasons, EPA is finalizing a
requirement that the importer be able to provide these records to EPA
within 30 calendar days of request. Because of the supplier chain
issues raised by commenters, EPA is not requiring importers to obtain
these records directly from suppliers. Importers may arrange, by
contact or some other means, to have their suppliers provide these
records directly to EPA within 30 calendar days of request. Importers
must keep the compliance statements located on invoices, bills of
lading, or other comparable documents. EPA notes that the recordkeeping
requirements for imported products will be equivalent to the aggregate
recordkeeping requirements for domestically produced products. The only
distinction would be that the responsibility for ensuring pre-
importation supply chain records are maintained would fall on the
importer instead of being spread out amongst different entities in the
supply chain.
For the reason stated in the proposal, that invoices and bills of
lading will permit EPA to identify the sources of composite wood
products, component parts, or finished goods for a particular
distributor or retailer, EPA is also finalizing the recordkeeping
requirements for distributors and retailers as proposed. In addition,
because invoices and bills of lading will allow EPA to identify a
fabricator's sources of composite wood products or component parts,
just as such records facilitate the identification of distributor's or
retailer's sources, EPA will only require fabricators to keep invoices
and bills of lading. Fabricators who are also laminators must keep
these records as well as the records required for laminated product
producers.
EPA specifically asked for comment on whether distributors and
retailers should be required to obtain and retain bills of lading or
invoices with a written affirmation from the supplier, and whether
other recordkeeping requirements would be appropriate. While CARB's
comments indicated that these statements were required under CARB and
recommended that EPA require the same, other commenters believed that
the requirement was unnecessary. EPA has determined that requiring a
compliance statement is minimally burdensome, that many are already
complying with the CARB requirement, and that obtaining these
statements will enlist fabricators, distributors, and retailers in
helping to
[[Page 89709]]
ensure compliance with TSCA Title VI by requiring them to ask questions
of their suppliers if they do not see the compliance statement on their
purchase documentation. The compliance statement refers to the
compliance of the products as of the date of manufacture. So, for
example, non-exempt laminated products made after December 12, 2023
would need to be compliant with the requirements for hardwood plywood
in order to affirm compliance with TSCA Title VI. Obtaining and
maintaining these bills of lading and invoices, or comparable
documents, with a written statement from the supplier are reasonable
precautions taken to purchase compliant products for fabricators,
distributors, and retailers.
Entities that fit within two or more of these recordkeeping
categories, such as a distributor that buys finished goods from both
foreign and domestic companies for resale, must keep only the records
for each product that correspond to the activities the entity undertook
with respect to that product. For example, a distributor who purchases
both foreign and domestic finished goods for resale must keep the
following records:
For foreign finished goods that the distributor imports,
records identifying the panel producer(s) that produced the composite
wood products incorporated into the finished goods and the dates that
the products were produced or the ability to produce this information
within 30 days, records identifying the supplier and the date of
purchase, and bills of lading or invoices that include a written
statement from the supplier that the composite wood products, whether
in the form of panels or incorporated into component parts or finished
goods, are either compliant with this subpart or were manufactured
before the manufactured-by date.
For domestic finished goods, only bills of lading or
invoices would need to be kept.
In the case of imported finished goods, only the importer would be
responsible for ensuring that the records identifying the panel
producer and the date that the composite wood products were
manufactured are accessible to EPA upon request. For example, if the
importer sells the goods to a domestic distributor, who then sells them
to a domestic retailer, only the importer would have to ensure the
additional records are kept. The domestic distributor and retailer
would only be required to keep invoices and bills of lading.
2. Labeling. EPA is finalizing the labeling provisions as proposed,
with several minor modifications. Panels or bundles of panels that are
sold, supplied, or offered for sale in the United States must be
labeled with the name of the panel producer, the lot number, the number
of the accredited TPC, and markings indicating that the product
complies with the TSCA Title VI emission standards. Fabricators of
finished goods containing composite wood products must label every
finished good they produce, or every box containing finished goods.
These labels must contain the fabricator's name, the date the finished
good was produced, and a statement that the finished goods are TSCA
Title VI compliant. Panels may be shipped into, out of, and around the
United States for quality control or quarterly tests provided that they
are labeled ``For TSCA Title VI testing only, not for sale in the
United States.'' The information required on the labels must be legible
and in English, but it need not all be on a single label. Also,
entities are free to combine the TSCA Title VI labels with CARB labels
so long as all the required information is present, legible, in English
and accurate. EPA notes that the phrase ``the date the finished good
was produced'' means the actual date of production in ``Month/Year''
format, not the date the product was imported.
EPA does agree that in certain situations, this information has the
potential to confuse consumers and may take up additional space on
labels. For example, where a finished good is composed of multiple
composite wood products, some of which are not produced under the NAF
or ULEF provisions, and some of which are, it may be difficult for
fabricators to design a label that efficiently describes the product.
Thus, in the final regulations, labeling indicating that the composite
wood products are NAF or ULEF is voluntary and at the discretion of the
panel producer or fabricator. For finished goods that are partially
made with panels produced under the NAF or ULEF exemptions, they may,
at the discretion of the fabricator, be labeled with phrases such as
``product contains TSCA Title VI products and NAF/ULEF products,''
``product contains TSCA Title VI products and NAF products,'' or
``product contains TSCA Title VI products and ULEF products,'' if is
this is accurate. EPA disagrees with those commenters who thought that
the labeling of products as NAF or ULEF creates an inappropriate market
bias. TSCA Title VI explicitly allows EPA to provide an exemption from
third-party certification and testing for these products, so the
statute itself confers the opportunity for special treatment on these
products. Far from creating an inappropriate market bias, labeling a
product as NAF and ULEF provides valuable information to consumers
(e.g., some panels may not have a TPC because they are exempt from
third-party certification), and allows consumers to know that these
products meet the emission standards described in Unit III.C. EPA also
notes that the CARB ATCM has NAF/ULEF labeling requirements.
The final rule allows panel producers to use a panel producer
number or other identifier to protect supply chain confidentiality, as
long as EPA is ultimately able to use the label information along with
the records required by this rule to identify the panel producer. The
expectation is that EPA will be able to trace back through the supply
chain, using records identifying each entity's supplier, to eventually
arrive at the panel producer, or an importer for composite wood
products not produced domestically. For finished goods, EPA is
requiring either the fabricator's name on the label or the name of a
responsible downstream entity (e.g., an importer, wholesaler,
distributor, or retailer). Where a non-fabricator's name appears on the
label, that entity is responsible for identifying the fabricator, and
is responsible for the compliance of the labeled products, as if they
were the fabricator. Fabricators may not put a downstream entity's name
on the labels unless they have written consent from that entity to do
so.
Although EPA proposed to allow labels to be in barcode format, the
Agency agrees with commenters who thought that a barcode, as the sole
form of label, would inhibit transparency. Even if the barcode was a
universal open system, all entities along the supply chain may not have
access to smartphones or barcode readers. This would create a
technology barrier to accessing this information, and could prevent
retailers that wish to check the information on labels to ensure it
conforms to the information provided to them by their supplier. Thus,
the final rule prohibits the use of barcodes, or non-text labels, as
the sole label. Entities that wish to use barcodes or other non-text
labels may do so but must also have the encoded TSCA Title VI
information printed on the label in English text.
The final rule allows composite wood products and finished goods to
be labeled by bundle or box, as opposed to being labeled individually.
EPA generally agrees with those commenters who cited cost and
feasibility concerns with an individual product labeling requirement.
In addition, as noted by
[[Page 89710]]
some commenters, EPA agrees that an individual labeling requirement
provides minimal benefit when applied to composite wood products
supplied to fabricators who then incorporate them into finished goods.
In lieu of labeling of individual products, EPA is requiring entities
that divide and repackage bundles of regulated composite wood products
or purchase these products for resale to have a system sufficient to
identify the supplier of the panel and link the information on the
label to the products. This information must be made available to
potential customers upon request. Similarly, entities importing,
selling, offering for sale or supplying finished goods that are not
individually labeled must retain a copy of the label and make it
available to potential customers upon request.
J. Sell-Through Provisions and Stockpiling
TSCA Title VI directs EPA to establish sell-through provisions for
composite wood products, and finished goods containing regulated
composite wood products, based on a designated date of manufacture, or
``manufactured-by'' date. Under the statute, composite wood products or
finished goods manufactured before the specified manufactured-by date
are not subject to statutory emission standards or testing
requirements. TSCA Title VI requires that the manufactured-by date be
no earlier than 180 calendar days after promulgation of the final
implementing regulations.
TSCA Title VI also directs EPA to prohibit the sale of inventory
that was stockpiled, which is defined in the statute as manufacturing
or purchasing composite wood products between the date the statute was
enacted and the date 180 calendar days following the promulgation of
these regulations at a rate significantly greater than the rate during
a particular base period. EPA is directed to define what constitutes
``a rate significantly greater'' and to establish the base period.
Under the statute, the base period must end before July 7, 2010, the
date that the Formaldehyde Standards for Composite Wood Products Act
was enacted.
As proposed, EPA is finalizing the manufactured-by date at December
12, 2017, except that, as discussed in Unit III.A., the manufactured-by
date for laminated products is December 12, 2023. EPA has determined
that, for panel producers other than laminated product producers, this
year will be sufficient to get all of the infrastructure in place.
The manufactured-by dates apply to regulated composite wood
products, including laminated products, as well as finished goods
containing such products. Composite wood products manufactured before
the applicable manufactured-by date are not subject to the emission
standards, nor are they required to be labeled or tested for emissions.
Laminated products manufactured before the manufactured-by date for
laminated products are not subject to the emission standards, but,
after the manufactured-by date for composite wood products other than
laminated products, they must be made with compliant composite wood
product platforms and must be labeled in accordance with the fabricator
labeling requirements. Composite wood products and laminated products
manufactured before the applicable manufactured-by date can be
incorporated into finished goods at any time. Retailers, fabricators,
and distributors are permitted to continue to buy and sell these
composite wood products and laminated products, as well as finished
goods that incorporate these products, because they would be considered
compliant with TSCA Title VI and its implementing regulations, assuming
the absence of stockpiling as discussed later. Under TSCA, the term
``manufacture'' includes import, so the ``manufactured-by'' date would
effectively be an ``imported-by'' date for imported goods.
In order to establish that a regulated composite wood product was
made before the manufactured-by date, the panel producer or importer
and any subsequent distributor, retailer or fabricator must document
when the product was manufactured or that the panel was in their
inventory on or before the date 180 calendar days after promulgation of
these regulations. In the case of a finished good, any subsequent
distributor, retailer or fabricator must document that the composite
wood products making up the finished good were either manufactured
before the manufactured-by date or were manufactured in accordance with
TSCA Title VI. Documentation that the finished goods were in their
inventory on or before that date 180 calendar days after promulgation
of these regulations would be sufficient for these purposes. In order
to reduce consumer confusion, products that are entirely made before
the manufactured-by date may not be labeled as compliant with TSCA
Title VI.
Selling stockpiled regulated composite wood panels and finished
goods containing regulated composite wood products is prohibited. EPA
proposed to define stockpiling as manufacturing or purchasing composite
wood products between July 7, 2010, the date that the Formaldehyde
Standards for Composite Wood Products Act was signed into law by the
President, and 180 calendar days after promulgation of these
regulations, for the purpose of circumventing the TSCA Title VI
emission standards, at an average annual rate 20 percent greater than
the amount manufactured or purchased during the 2009 calendar year. EPA
is finalizing the provisions substantially as proposed, but clarifying
that the Agency has the burden of showing that an increase in
production or purchasing was for the purpose of circumventing the
emission standards. Entities that have a greater than 20 percent
increase in purchasing or production of regulated composite wood panels
for some reason other than circumventing the emission standards will
not be deemed to be stockpiling. Other reasons may include an immediate
increase in customer demand or sales, or a planned business expansion.
The stockpiling provisions do not apply to entities that were not in
existence at the beginning of calendar year 2009 because a pre-TSCA
Title VI baseline of production does not exist for these companies.
K. Import Certification
TSCA Title VI directs EPA, in coordination with U.S. Customs and
Border Protection (CBP) and other appropriate Federal departments and
agencies, to revise regulations promulgated pursuant to TSCA section 13
as necessary to ensure compliance. The TSCA section 13 regulations,
promulgated by CBP, require importers to certify that shipments of
chemical substances and mixtures are either in compliance with TSCA or
not subject to TSCA. Most, if not all, products subject to TSCA Title
VI would be considered articles. Articles, defined in 19 CFR 12.120(a),
are generally formed to specific shapes or designs during manufacture
and have end use functions related to their shape or design. Articles
are generally exempt from the TSCA section 13 certification
requirements, but the regulations at 19 CFR 12.121(b) recognize that
EPA has the authority to, by regulation or order, make the requirements
applicable to articles.
As proposed, no changes are being made to the regulations
promulgated pursuant to TSCA section 13, but this final rule requires
TSCA section 13 import certification for composite wood products that
are articles. This does not represent a statement on the relative
toxicity of formaldehyde, or of composite wood products; rather, it is
a certification of compliance with TSCA.
[[Page 89711]]
Although this requirement is being finalized as proposed, EPA is
delaying the compliance date for the import certification requirements
until two years after the date of the publication of this rule to
provide additional time for the supply chain to become familiar with
the requirements and make any necessary adjustments to existing
business processes. The Agency is committed to conducting outreach with
regulated parties and working with industry associations to help
educate producers and importers of composite wood products about the
requirements of this final rule, including the TSCA section 13 import
certification requirements. Beginning shortly after publication of the
final rule, EPA will conduct outreach to the importer community which
will entail providing training on the importer provisions and how to
comply with the certification requirement. The outreach will include
webinars, attending industry conferences, and meeting with interested
groups. In addition, EPA is developing guidance for importers with
additional information about how to comply with the certification
requirement. The guidance will be in the form of documents that can be
downloaded from EPA's Web site at: http://www.epa.gov/formaldehyde.
To comply with the import certification requirements, importers (or
their agents) will be required to provide the following certification
statement with other paperwork accompanying the imported shipment:
I certify that all chemical substances in this shipment comply
with all applicable rules or orders under TSCA and that I am not
offering a chemical substance for entry in violation of TSCA or any
applicable rule or order thereunder.
The documentation required by this final rule will generally be a
sufficient basis for the import certification to the extent that such
documentation demonstrates compliance. TSCA certification statements
provided in paper have commonly been included on or attached to bills
of lading, commercial invoices, or comparable documents. In order to
submit a TSCA certification statement electronically, importers or
their agents would need to submit it with their Customs entry filings
for shipments in the Automated Commercial Environment (i.e., CBP's
primary automated and electronic system for commercial trade
processing.) or any other CBP-authorized electronic data interchange
system.
L. Enforcement
The failure to comply with any provision of TSCA Title VI, or the
regulations implementing TSCA Title VI, is a prohibited act under TSCA
section 15. Any person who commits a prohibited act under TSCA section
15 can be held liable for civil and criminal penalties, as appropriate.
M. HUD's Manufactured Housing Program
Under the authority of the National Manufactured Housing
Construction and Safety Standards Act of 1974, 42 U.S.C. 5401 et seq.,
HUD regulates the construction of all manufactured homes built in the
United States. The HUD standards established pursuant to the 1974 Act
cover many aspects of manufactured home construction, including body
and frame requirements, thermal protection, plumbing, electrical, and
fire safety. (See 24 CFR parts 3280 and 3282). HUD oversees the
enforcement of the construction standards through third party
inspection agencies and State governments.
EPA and HUD are working together to ensure the appropriate
application and implementation of requirements under the Formaldehyde
Standards for Composite Wood Products Act of 2010. The HUD standards
for manufactured housing include specific formaldehyde emission limits
for plywood and particleboard materials installed in manufactured
housing. In contrast, TSCA Title VI covers only hardwood plywood, a
subset of plywood. In addition, TSCA Title VI also covers medium-
density fiberboard, which is not covered by the current HUD standards.
The HUD emission limits apply to any plywood or particleboard bonded
with a resin system and to any plywood or particleboard coated with a
surface finish containing formaldehyde. HUD's current formaldehyde
emission limits are 0.2 ppm for plywood and 0.3 ppm for particleboard,
as measured by ASTM E1333-96. These emission limits are higher than
those established by the 2010 Act, but section 4 of the 2010 Act
directs HUD to update its regulations to ensure that the regulations
reflect the standards established by section 601 of TSCA.
In addition, the 2010 Act established a definition of
``recreational vehicle'' that is based on the definition established by
HUD that is in effect at 24 CFR 3282.8 on the date of promulgation of
regulations pursuant to TSCA Title VI. EPA acknowledges that HUD issued
a proposed rule (81 FR 6806, February 9, 2016) that would, among other
things, remove the current definition of ``recreational vehicle'' from
24 CFR 3282.8 and add an amended version of this definition in a
proposed new CFR section. EPA and HUD believe that it was the intent of
Congress that same definition of ``recreational vehicle'' be used in
both this final rule and HUD's manufactured housing regulations.
Therefore, EPA and HUD will continue working together to ensure that
the regulatory definition is appropriately harmonized.
In the proposal, EPA requested comment on how best to harmonize
EPA's regulatory program under TSCA Title VI with HUD's manufactured
homes program. EPA received a handful of comments on this aspect of the
proposal. Two commenters recommended a general consistency between the
EPA and HUD regulations, although they did not offer specifics. At the
suggestion of one of the commenters, EPA has added a sentence to the
applicability provisions of the final rule to make it clear that the
requirements apply to composite wood products used in manufactured
housing.
IV. Incorporation by Reference
This final rule incorporates a variety of voluntary consensus
standards by reference. In many cases, the consensus standards are used
because TSCA Title VI directs that they be used. TSCA Title VI provides
for quarterly and quality control testing for hardwood plywood,
particleboard, and MDF using specified methods developed by ASTM
International. TSCA Title VI also refers freely to voluntary consensus
standards to assist in defining the composite wood products that are
subject to the statute, such as hardwood plywood (ANSI/HPVA HP-1-2009),
particleboard (ANSI A208.1-2009), and medium-density fiberboard (ANSI
A208.2-2009) (Refs. 26, 47, and 72). Other voluntary consensus
standards are being incorporated by reference into this final rule to
provide flexibility to panel producers by permitting them to use
additional quality control test methods already allowed by CARB under
their ATCM. Finally, EPA is relying on voluntary consensus standards
developed by ISO/IEC and already in use in the conformity assessment
sector to establish a third-party certification program that is as
robust as possible. Most of the entities that would have to comply with
one of these standards, or at least have a good understanding of the
contents of one of these standards, already own a copy. It would be
difficult to be in business as a hardwood plywood mill, for example, if
you were not familiar with the industry consensus on what is hardwood
plywood. The
[[Page 89712]]
standards are all readily available electronically or in print, and are
relatively inexpensive (less than $150 a copy).
The voluntary consensus standards being incorporated by reference
into this final rule are summarized in this unit, along with contact
information for purchasing a copy of each standard. Each of these
standards is available for inspection at the OPPT Docket in the EPA
Docket Center (EPA/DC) at Rm. 3334, EPA, West Bldg., 1301 Constitution
Ave. NW., Washington, DC. The EPA/DC Public Reading Room hours of
operation are 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding
legal holidays. The telephone number of the EPA/DC Public Reading room
is (202) 566-1744, and the telephone number for the OPPT Docket is
(202) 566-0280.
(a) AITC, CPA, and HPVA standards. Copies of these standards may be
obtained from the specific publisher, as noted below, or from the
American National Standards Institute, 1899 L Street NW., 11th Floor,
Washington, DC 20036, or by calling (202) 293-8020, or at http://ansi.org/. Note that ANSI/AITC A190.1-2002 is published by the American
Institute of Timber Construction. ANSI A135.4-2012, ANSI A135.5-2012,
ANSI A135.6-2012, ANSI A135.7-2012, ANSI A208.1-2009, and ANSI A208.2-
2009 are published by the Composite Panel Association. And ANSI ANSI/
HPVA-HP-1-2009 is published by the Hardwood Plywood Veneer Association.
1. ANSI A135.4-2012, American National Standard, Basic Hardboard.
This standard defines hardboard and describes requirements and test
methods for water absorption, thickness swelling, modulus of rupture,
tensile strength, surface finish, dimensions, squareness, moisture
content, and edge straightness of five classes of basic hardboard,
along with methods of identifying products conforming to the standard.
2. ANSI A135.5-2012, American National Standard, Prefinished
Hardboard Paneling. This standard describes requirements and methods of
testing for the dimensions, squareness, edge straightness, and moisture
content of prefinished hardboard paneling and for the finish of the
paneling, along with methods of identifying products conforming to the
standard.
3. ANSI A135.6-2012, American National Standard, Engineered Wood
Siding. This standard describes requirements and methods of testing for
the dimensions, straightness, squareness, physical properties, and
surface characteristics of engineered wood siding. This standard also
defines trade terms used and describes methods of identifying products
conforming to the standard.
4. ANSI A135.7-2012, American National Standard, Engineered Wood
Trim. This standard describes requirements and methods of testing for
the properties of engineered wood trim intended to be used as
architectural trim. While primarily for exterior applications, these
products can also be used indoors. Trim is the woodwork in the finish
of a building, especially around openings and at corners, that is
intended to be decorative and/or provide protection for joints covered
by the product. Typical exterior trim includes corner boards, fascia,
brick mold and window trim. Because engineered wood trim is not
intended to be used as a structural material, it has no structural
load-bearing performance requirements.
5. ANSI A208.1-2009, American National Standard, Particleboard.
This standard describes the requirements and test methods for
dimensional tolerances, physical and mechanical properties and
formaldehyde emissions for particleboard, along with methods of
identifying products conforming to the standard.
6. ANSI A208.2-2009, American National Standard, Medium Density
Fiberboard (MDF) for Interior Applications. This standard describes the
requirements and test methods for dimensional tolerances, physical and
mechanical properties and formaldehyde emissions for MDF, along with
methods of identifying products conforming to the standard.
7. ANSI/AITC A190.1-2002, American National Standard for Wood
Products, Structural Glued Laminated Timber. This standard describes
minimum requirements for the manufacture and production of structural
glued laminated timber, including size tolerances, grade combinations,
lumber, adhesives, and appearance grades.
8. ANSI/HPVA HP-1-2009, American National Standard for Hardwood and
Decorative Plywood. This standard details the specific requirements for
all face, back, and inner ply grades of hardwood plywood as well as
formaldehyde emission limits, moisture content, tolerances, sanding,
and grade marking.
(b) ASTM material. Copies of these materials may be obtained from
ASTM International, 100 Barr Harbor Dr., P.O. Box C700, West
Conshohocken, PA 19428-2959, or by calling (877) 909-ASTM, or at http://www.astm.org.
1. ASTM D5055-05, Standard Specification for Establishing and
Monitoring Structural Capacities of Prefabricated Wood I-Joists. This
specification gives procedures for establishing, monitoring, and
reevaluating structural capacities of prefabricated wood I-joists, such
as shear, moment, and stiffness. The specification also provides
procedures for establishing common details and itemizes certain design
considerations specific to wood I-joists.
2. ASTM D5456-06, Standard Specification for Evaluation of
Structural Composite Lumber Products. This specification describes
initial qualification sampling, mechanical and physical tests,
analysis, and design value assignments. Requirements for a quality-
control program and cumulative evaluations are included to ensure
maintenance of allowable design values for the product.
3. ASTM D5582-00 (Reapproved 2006), Standard Test Method for
Determining Formaldehyde Levels from Wood Products Using a Desiccator.
This test method describes a small scale procedure for measuring
formaldehyde emissions potential from wood products. The formaldehyde
level is determined by collecting airborne formaldehyde in a small
distilled water reservoir within a closed desiccator. The quantity of
formaldehyde is determined by a chromotropic acid test procedure.
4. ASTM D6007-02, Standard Test Method for Determining Formaldehyde
Concentrations in Air from Wood Products Using a Small-Scale Chamber.
This test method measures the formaldehyde concentrations in air from
wood products under defined test conditions of temperature and relative
humidity. Results obtained from this small-scale chamber test method
are intended to be comparable to results obtained testing larger
product samples by the large chamber test method for wood products,
Test Method E 1333.
5. ASTM E1333-10, Standard Test Method for Determining Formaldehyde
Concentrations in Air and Emission Rates from Wood Products Using a
Large Chamber. This test method measures the formaldehyde concentration
in air and emission rate from wood products containing formaldehyde
under conditions designed to simulate product use. The concentration in
air and emission rate is determined in a large chamber under specific
test conditions of temperature and relative humidity. The general
procedures are also intended for testing product combinations at
product-loading ratios and at air-exchange rates typical of the indoor
environment.
[[Page 89713]]
(c) CEN materials. Copies of these materials are not directly
available from the European Committee for Standardization, but from one
of CEN's National Members, Affiliates, or Partner Standardization
Bodies. To purchase a standard, go to CEN's Web site, http://www.cen.eu, and select ``Products'' for more detailed information.
1. BS EN 120:1992, Wood based panels. Determination of formaldehyde
content- Extraction method called the perforator method, English
Version. This European standard describes an extraction method, known
as the perforator method, for determining the formaldehyde content of
unlaminated and uncoated wood-based panels.
2. BS EN 717-2:1995, Wood-based panels--Determination of
formaldehyde release--Part 2: Formaldehyde release by the gas analysis
method, English Version. This European standard describes a procedure
for determination of accelerated formaldehyde release from wood-based
panels.
(d) Georgia Pacific material. Copies of this material may be
obtained from Georgia-Pacific Chemicals LLC, 133 Peachtree Street,
Atlanta, GA 30303, or by calling (877) 377-2737, or at http://www.gp-dmc.com/default.aspx.
1. The GP Dynamic Microchamber computer-integrated formaldehyde
test system, User Manual. Copyright 2012. The Dynamic Micro Chamber is
a patented process for testing formaldehyde emissions (U.S. Patent #
5,286,363). The DMC provides a means of obtaining accurate formaldehyde
emissions information from pressed panel products. This Manual
describes the process for using the DMC.
2. The Dynamic Microchamber computer integrated formaldehyde test
system, User Manual, Copyright 2007. This is the older version of the
DMC Manual, which may also be followed when using the DMC to conduct
formaldehyde emissions testing.
(e) ISO material. Copies of these materials may be obtained from
the International Organization for Standardization, 1, ch. de la Voie-
Creuse, CP 56, CH-1211, Geneve 20, Switzerland, or by calling +41-22-
749-01-11, or at http://www.iso.org.
1. ISO/IEC 17011:2004(E), Conformity assessments--General
requirements for accreditation bodies accrediting conformity assessment
bodies (First edition), September 1, 2004. This standard specifies
general requirements for accreditation bodies assessing and accrediting
conformity assessment bodies. For the purposes of this standard,
conformity assessment bodies are organizations providing the following
conformity assessment services: Testing, inspection, management system
certification, personnel certification, product certification and, in
the context of this standard, calibration.
2. ISO/IEC 17020:2012(E), General criteria for the operation of
various types of bodies performing inspections (Second Edition) March
1, 2012. This standard covers the activities of inspection bodies whose
work can include the examination of materials, products, installations,
plants, processes, work procedures or services, and the determination
of their conformity with requirements and the subsequent reporting of
results of these activities.
3. ISO/IEC 17025:2005(E), General requirements for the competence
of testing and calibration laboratories (Second Edition), May 15, 2005.
This standard specifies the general requirements for the competence to
carry out tests or calibrations, including sampling. It covers testing
and calibration performed using standard methods, non-standard methods,
and laboratory-developed methods.
4. ISO/IEC 17065:2012(E), Conformity assessment--Requirements for
bodies certifying products, processes and services (First Edition),
September 15, 2012. This standard specifies requirements that are
intended to ensure that certification bodies operate certification
schemes in a competent, consistent and impartial manner. This standard
can be used as a criteria document for accreditation or peer assessment
or designation by governmental authorities, scheme owners and others.
(f) Copies of JIS A 1460:2001 Building boards-Determination of
formaldehyde emission-Desiccator method, English Version, may be
obtained from Japanese Industrial Standards, 1-24, Akasaka 4, Minatoku,
Tokyo 107-8440, Japan, or by calling +81-3-3583-8000, or at http://www.jsa.or.jp/. This method describes a method for testing formaldehyde
emissions from construction boards by measuring the concentration of
formaldehyde absorbed in distilled or deionized water from samples of a
specified surface area placed in a glass desiccator for 24 hours.
(g) NIST material. Copies of these materials may be obtained from
the National Institute of Standards and Technology (NIST) by calling
(800) 553-6847 or from the U.S. Government Printing Office (GPO). To
purchase a NIST publication you must have the order number. Order
numbers may be obtained from the Public Inquiries Unit at (301) 975-
NIST. Mailing address: Public Inquiries Unit, NIST, 100 Bureau Dr.,
Stop 1070, Gaithersburg, MD 20899-1070. If you have a GPO stock number,
you can purchase printed copies of NIST publications from GPO. GPO
orders may be mailed to: U.S. Government Printing Office, P.O. Box
979050, St. Louis, MO 63197-9000, placed by telephone at (866) 512-1800
(DC Area only: (202) 512-1800), or faxed to (202) 512-2104. Additional
information is available online at: http://www.nist.gov.
1. Voluntary Product Standard PS 1-07 (2007), Structural Plywood.
This standard describes the principal types and grades of structural
plywood, covering the wood species, veneer grading, adhesive bonds,
panel construction and workmanship, dimensions and tolerances, marking,
moisture content and packaging of structural plywood intended for
construction and industrial uses. Test methods to determine compliance
and a glossary of trade terms and definitions are included, as is a
quality certification program involving inspection, sampling, and
testing of products identified as complying with this standard by
qualified testing agencies.
2. Voluntary Product Standard PS 2-04 (2004), Performance Standard
for Wood-Based Structural-Use Panels. This standard covers performance
requirements, adhesive bond performance, panel construction and
workmanship, dimensions and tolerances, marking, and moisture content
of structural-use panels, such as plywood, waferboard, oriented strand
board (OSB), structural particle board, and composite panels. The
standard includes test methods, a glossary of trade terms and
definitions, and a quality certification program involving inspection,
sampling, and testing of products for qualification under the standard.
V. References
The following is a listing of the documents that are specifically
referenced in this document. The docket includes these documents and
other information considered by EPA, including documents that are
referenced within the documents that are included in the docket, even
if the referenced document is not physically located in the docket. For
assistance in locating these other documents, please consult the
technical person listed under FOR FURTHER INFORMATION CONTACT.
1. California Environmental Protection Agency Air Resources Board
(CARB). Airborne Toxic Control Measure to Reduce Formaldehyde
Emissions from Composite Wood Products. Final Regulation Order.
April 2008. http://
[[Page 89714]]
www.arb.ca.gov/regact/2007/compwood07/compwood07.htm.
2. USEPA. Policy on Evaluating Health Risks to Children. 1995.
http://www.epa.gov/sites/production/files/2014-5/documents/1995_childrens_health_policy_statement.pdf.
3. USEPA, Office of Chemical Safety and Pollution Prevention
(OCSPP). Economic Analysis of the Formaldehyde Standards for
Composite Wood Products Act Final Rule (Economic Analysis). December
2015.
4. World Health Organization. Concise International Chemical
Assessment Document 40: Formaldehyde. Published under the joint
sponsorship of the United Nations Environment Programme, the
International Labour Organization, and the World Health
Organization, and produced within the framework of the Inter-
Organization Programme for the Sound Management of Chemicals.
Geneva. 2002.
5. Agency for Toxic Substances and Disease Registry. Toxicological
Profile for Formaldehyde and 2010 Addendum to the Profile. Atlanta,
GA: U.S. Department of Health and Human Services, Public Health
Service. 1999. http://www.atsdr.cdc.gov/toxprofiles/tp111.html.
6. Krzyzanowski M, Quackenboss JJ, Lebowitz MD. Chronic respiratory
effects of indoor formaldehyde exposure. Environ Res 52(2):117-125.
1990.
7. Matsunaga, I, Miyake, Y, et al. Ambient formaldehyde levels and
allergic disorders among Japanese pregnant women: baseline data from
the Osaka maternal and child health study. Annals of Epidemiology
18(1): 78-84. (2008).
8. Annesi-Maesano I, Huilin M, Lavaud F, Raherison C, Kopferschmitt
C, de Blay F, Andre Charpin D, Denis C. Poor air quality in
classrooms related to asthma and rhinitis in primary schoolchildren
in the French 6 Cities Study. Thorax 67:682-688. 2012.
9. Venn AJ, Cooper M, Antoniak M, Laughlin C, Britton, Lewis SA.
Effects of volatile organic compounds, damp, and other environmental
exposures in the home on wheezing illness in children. Thorax
58:955-960. 2003.
10. Dannemiller, KC; Murphy, JS; Dixon, SL; Pennell, KG; Suuberg,
EM; Jacobs, DE; Sandel, M. Formaldehyde concentrations in household
air of asthma patients determined using colorimetric detector tubes.
Indoor Air 23: 285-294. 2013.
11. National Toxicology Program. Report on carcinogens. Thirteenth
edition. Research Triangle Park, NC: U.S. Department of Health and
Human Services, Public Health Service. 2014. http://ntp.niehs.nih.gov/pubhealth/roc/roc13/index.html.
12. International Agency for Research on Cancer. Formaldehyde [IARC
Monograph]. In A review of human carcinogens: Chemical agents and
related occupations (pp. 401-435). Lyon, France. 2012. http://monographs.iarc.fr/ENG/Monographs/vol100F/index.php.
13. National Research Council (NRC). Review of the Formaldehyde
Assessment in the National Toxicology Program 12th Report on
Carcinogens. Washington DC: National Academies Press (US). 2014.
14. USEPA, Office of Air and Radiation. National Emission Standards
for Hazardous Air Pollutants: Plywood and Composite Wood Products;
List of Hazardous Air Pollutants, Lesser Quantity Designations,
Source Category List; Final Rule. Federal Register (71 FR 8341,
February 16, 2006) (FRL-8028-9). http://www.epa.gov/ttn/atw/plypart/fr16fe06.pdf.
15. USEPA, Office of Research and Development. Formaldehyde.
Integrated Risk Information System (IRIS). 1991. http://www.epa.gov/iris/subst/0419.htm.
16. USEPA, ORD. IRIS Toxicological Review of Formaldehyde-Inhalation
Assessment (2010 External Review Draft). http://cfpub.epa.gov/ncea/iris_drafts/recordisplay.cfm?deid=223614.
17. USEPA. Approach to Assessing Non-cancer Health Effects from
Formaldehyde and Benefits from Reducing Non-cancer Health Effects as
a Result of Implementing Formaldehyde Emission Limits for Composite
Wood Products. 2013.
18. USEPA. Formaldehyde Emissions from Composite Wood Products;
Disposition of TSCA Section 21 Petition; Notice. Federal Register
(73 FR 36504, June 27, 2008).
19. USEPA. Formaldehyde Emissions from Composite Wood Products;
Advanced notice of proposed rulemaking and notice of public
meetings. Federal Register. (73 FR 73620, December 3, 2008) (FRL-
8386-3).
20. Public Law 111-199, Title VI-- Formaldehyde Standards for
Composite Wood Products Act, enacted July 7, 2010. (TSCA section
601(d), 15 U.S.C. 2601 et seq.).
21. USEPA. Formaldehyde; Third-Party Certification Framework for the
Formaldehyde Standards for Composite Wood Products; Formaldehyde
Emissions Standards for Composite Wood Products; Proposed Rule.
Federal Register (78 FR 34796, June 10, 2013) (FRL-9342-4).
22. USEPA. Formaldehyde Emissions Standards for Composite Wood
Products; Proposed Rule. Federal Register (78 FR 34820, June 10,
2013) (FRL-9342-3).
23. USEPA. Report of the Small Business Advocacy Review Panel on
EPA's Planned Proposed Rule Implementing the Formaldehyde Standards
for Composite Wood Products Act (TSCA Title VI). April 4, 2011.
24. Composite Panel Association. 2015 Surface and Panel Buyers
Guide: A Guide to Sourcing and Specifying Composite Panels and
Decorative Surfaces. http://www.compositepanel.org/education-resources/buyers-guide.html.
25. HPVA. Comments to EPA on Laminated Products & Formaldehyde
Regulation. May 23, 2014. EPA-HQ-OPPT-2012-0018-0615.
26. CARB. Staff Proposal: Alternate Regulatory Approach for
Laminated Products Made with Wood Veneer. March 13, 2014.
27. CARB. Staff Report: Initial Statement of Reasons for Proposed
Rulemaking. March 9, 2007.
28. Salthammer, T., Mentese, S., Marutzky, R. Formaldehyde in the
Indoor Environment. Chem. Rev., 110 (4), pp 2536-2572. 2010.
29. Kelly, T.I., D.L. Smith, J. Satola. Emission Rates of
Formaldehyde from Materials and Consumer Products Found in
California Homes. Environmental Science & Technology Vol. 33: 81-88.
1999.
30. CARB. Staff Report: Initial Statement of Reasons for Proposed
Rulemaking, Appendix D. March 9, 2007.
31. CARB. Summary of ARB Testing of Laminated Products. August 19,
2013.
32. Comment submitted by Jackson Morrill, Director, and Laura Brust,
Assistant General Counsel, American Chemistry Council Formaldehyde
Panel. October 9, 2013. EPA-HQ-OPPT-2012-0018-0581.
33. Comment submitted by Bill Perdue, Vice President, Regulatory
Affairs, American Home Furnishings Alliance. October 2013. EPA-HQ-
OPPT-2012-0018-0562.
34. Remarks by Kelly Shotbolt, President, Flakeboard. Transcript of
the April 28, 2014 Public Meeting. EPA-HQ-OPPT-2012-0018-0631, pp.
47-55.
35. Comment submitted by Gail Overgard, Advisor to the Board, Timber
Products Company. April 2014. EPA-HQ-OPPT-2012-0018-0601.
36. Riedlinger, D., Martin, P., and Holloway, T. Particleboard
Formaldehyde Emissions and Decay under Elevated Temperature and
Humidity Conditions, study conducted for Arclin. March 28, 2012.
37. Georgia Pacific. Letter to Lynn Vendinello. August, 15, 2011.
38. Chimar-Hellas. Update on the Formaldehyde Release from Wood-
Based Panels. Undated.
39. ASTM E1333-96 (Reapproved 2002). Standard Test Method for
Determining Formaldehyde Concentrations in Air and Emission Rates
from Wood Products Using a Large Chamber.
40. CARB. Staff Report: Initial Statement of Reasons for Proposed
Rulemaking, Appendix H. March 9, 2007.
41. Comment submitted by Winslow Sargeant, Ph.D., Chief Counsel for
Advocacy and David Rostker, Assistant Chief Counsel Office of
Advocacy, U. S. Small Business Administration's Office of Advocacy.
May 20, 2014. EPA-HQ-OPPT-2012-0018-0529.
42. Comment submitted by the Federal Wood Industries Coalition. May
8, 2014. EPA-HQ-OPPT-2012-0018-0623
43. ASTM International. ASTM E-1333-10, Standard Test Method for
Determining Formaldehyde Concentrations in Air and Emission Rates
from Wood Products Using a Large Chamber.
44. ASTM International. ASTM D-6007-02 (2008), Standard Test Method
for Determining Formaldehyde Concentrations in Air from Wood
Products Using a Small Scale Chamber.
[[Page 89715]]
45. USEPA, Science Policy Council. A Summary of General Assessment
Factors for Evaluating the Quality of Scientific and Technical
Information. June 2003. EPA 100/B-03/001. http://www.epa.gov/risk/summary-general-assessment-factors-evaluating-quality-scientific-and-technical-information.
46. American National Standards Institute (ANSI)/Hardwood Plywood
and Veneer Association (HPVA). American National Standard for
Hardwood and Decorative Plywood, ANSI/HPVA HP-1-2009.
47. ANSI. American National Standard for Medium Density Fiberboard
(MDF) for Interior Applications, ANSI A208.2 2009.
48. ANSI. American National Standard, Basic Hardboard, ANSI A135.4
2004.
49. ANSI. American National Standard, Prefinished Hardboard
Paneling, ANSI A135.5 2004.
50. ANSI. American National Standard, Hardboard Siding, ANSI A135.6
2006.
51. CARB. Workshop Discussion Draft, Amended Regulation Order. March
18, 2014. http://www.arb.ca.gov/toxics/compwood/amended0318.pdf.
52. ANSI. American National Standard, Engineered Wood Siding, ANSI
A135.6-2012.
53. ANSI. American National Standard, Engineered Wood Trim. ANSI
A135.7-2012.
54. Comments from the Federal Wood Industries Coalition (``FWIC'')
on the March 18, 2014 Preliminary Draft Amendments to the Air Toxic
Control Measure to Reduce Formaldehyde Emissions from Composite Wood
Products. April 22, 2014.
55. ISO/IEC 17011:2004(E), Conformity assessments--General
requirements for accreditation bodies accrediting conformity
assessments bodies (First Edition). 2004.
56. ISO/IEC 17020:2012(E), Conformity assessment--Requirements for
the operation of various bodies performing inspection (Second
Edition). 2012.
57. ISO/IEC Guide 65:1996(E), General requirements for bodies
operating product certification systems (First Edition). 1996.
58. ISO/IEC 17065:2012(E), Conformity assessment--Requirements for
bodies certifying products, processes and services (First Edition).
2012.
59. ISO/IEC 17020:1998(E), General criteria for the operation of
various types of bodies performing inspections (First Edition).
1998.
60. ISO/IEC 17025:2005(E), General requirements for the competence
of testing and calibration laboratories (Second Edition). May 15,
2005.
61. USEPA. Central Data Exchange. https://cdx.epa.gov/.
62. USEPA. Cross-Media Electronic Reporting Regulation (CROMERR) (40
CFR part 3), Federal Register. October 13, 2005 (70 FR 59848) (FRL-
7977-1).
63. USEPA. Central Data Exchange (CDX). Registration User Guide.
https://cdx.epa.gov/Content/Documents/CDX_Quick_User_Guide.pdf.
64. ASTM D6007-02 (Reapproved 2008), October 1, 2008. Standard Test
Method for Determining Formaldehyde Concentrations in Air from Wood
Products Using a Small-Scale Chamber.
65. ASTM D5582-00 (Reapproved 2006). Standard Test Method for
Determining Formaldehyde Levels from Wood Products Using a
Desiccator.
66. EN 717-2:1995, Wood-based panels. Determination of formaldehyde
release--Formaldehyde release by the gas analysis method.
67. Georgia Pacific. DMC (Dynamic Micro Chamber) Manual, 2012
Edition.
68. Georgia Pacific. DMC (Dynamic Micro Chamber) Manual, 2007
Edition.
69. EN 120:1992, Wood based panels. Determination of formaldehyde
content- Extraction method called the perforator method, English
Version.
70. JIS A 1460:2001 Building boards Determination of formaldehyde
emission--Desiccator method, English Version.
71. Comments from Ashland Water Technologies, September 9, 2013.
EPA-HQ-OPPT-0018-0521.
72. ANSI A208.1-2009, American National Standard, Particleboard.
73. NRC. Review of the Environmental Protection Agency's Draft IRIS
Assessment of Formaldehyde: National Academies Press (US). 2011.
74. USEPA. Information Collection Request (ICR) for the Formaldehyde
Emission Standards for Composite Wood Products Act Final
Regulations. EPA ICR No. 2446.02 and OMB No. 2070-0185.
75. USEPA. Final Regulatory Flexibility Analysis for Formaldehyde
Emission Standards for Composite Wood Products. December 2015.
76. USEPA. Unfunded Mandates Reform Act Statement. Formaldehyde
Emission Standards for Composite Wood Products; Final. December
2015.
VI. Statutory and Executive Order Reviews
Additional information about these statutes and Executive Orders
can be found at http://www2.epa.gov/laws-regulations/laws-and-executive-orders.
A. Executive Order 12866: Regulatory Planning and Review and Executive
Order 13563: Improving Regulation and Regulatory Review
This action is an economically significant regulatory action that
was submitted to the Office of Management and Budget (OMB) for review
under Executive Order 12866 (58 FR 51735, October 4, 1993) and
Executive Order 13563 (76 FR 3821, January 21, 2011). Any changes made
in response to OMB recommendations have been documented in the docket.
EPA prepared an analysis of the potential costs and benefits associated
with this action. This analysis, ``Economic Analysis of the
Formaldehyde Standards for Composite Wood Products Act Final Rule''
(Economic Analysis, Ref. 3) is available in the docket and is
summarized here.
1. Entities subject to the rule. EPA analyzed the effect of this
rule on accreditation bodies, TPCs, panel producers, fabricators,
wholesalers (i.e., distributors and importers), and retailers. Due to
the similarities between this rule and the CARB ATCM, the incremental
costs and benefits of this rule are determined in part by the degree to
which firms are already complying with the ATCM. Table 3 summarizes the
estimated number of entities subject to the TSCA Title VI rule and
their baseline compliance with the CARB ATCM.
Table 3--Number of Entities in the United States Subject to the Rule
------------------------------------------------------------------------
Baseline condition
Type TSCA universe (CARB ATCM universe)
------------------------------------------------------------------------
Accreditation bodies.......... 4 firms.......... All 4 ABs currently
accredit TPCs
participating in the
CARB ATCM program.
Third-party certifiers........ 11 firms......... All 11 TPCs currently
certify stock panels
mills under the CARB
ATCM.
Stock panel producers (i.e., 90 mills operated 79 mills have been
manufacturers). by 54 firms. certified by CARB
for at least one
product, but 16
mills make at least
one product that is
not CARB certified.
Depending on the
product type, 98% to
100% of U.S.
production volume is
CARB certified.
Laminated product producers 7,000 to 14,000 Laminators are
(i.e., laminators). firms. considered
Fabricators................... ................. fabricators under
66,000 to 73,000 the CARB ATCM.
firms. Nationally, 32,000
of the combined
group are subject to
CARB ATCM
requirements.
[[Page 89716]]
Wholesalers (i.e., 86,000 firms, of 32,000 are subject to
distributors). which 24,000 are CARB ATCM
importers. requirements, of
which 9,000 are
importers.
Retailers..................... 759,000 firms.... 195,000 are subject
to CARB ATCM
requirements.
-------------------
Total..................... 925,000 firms.... .....................
------------------------------------------------------------------------
2. Options evaluated. Congress directed EPA to consider a number of
elements for inclusion in the implementing regulations, and EPA
considered various options for addressing these elements. For many of
the provisions, such as the product-inventory sell-through provision
and the stockpiling prohibition, EPA did not have the data needed to
make quantitative estimates of the effects of different options. EPA
did have sufficient information to analyze options for how the
definition of hardwood plywood addresses laminated products, the
recordkeeping required by the rule, and the frequency of quality
control testing for small production volumes of hardwood plywood. The
options EPA analyzed are displayed in Table 4.
Table 4--Options Analyzed in the Economic Analysis
------------------------------------------------------------------------
Option Description
------------------------------------------------------------------------
Option 1: Laminates included Laminated products made with resins
in hardwood plywood (HWPW) formulated with no-added formaldehyde as
definition with NAF part of the resin cross-linking
exemption. structure are exempt from the definition
of hardwood plywood. Otherwise,
laminated product producers must be
certified by a TPC, and have products
tested to demonstrate that they meet a
0.05 ppm emission standard beginning 1
year after promulgation of the final
rule. This option is equivalent to EPA's
proposed rule from June 2013. Reduced
recordkeeping for wholesalers and
retailers that do not import. Reduced
quality control (QC) testing for small
hardwood plywood production.
Option 2 (Final Rule): Laminated products made with phenol-
Laminates included in HWPW formaldehyde (PF) resins or resins
definition with NAF and PF formulated with no-added formaldehyde as
exemption. part of the resin cross-linking
structure are exempt from the definition
of hardwood plywood. Otherwise,
laminated product producers have 7 years
after promulgation of the rule to be
certified by a TPC, and have products
tested to demonstrate that they meet a
0.05 ppm emission standard. Construction
firms are not considered fabricators or
retailers. Reduced recordkeeping for
fabricators, wholesalers and retailers
that do not import. Reduced QC testing
for small hardwood plywood production.
Option 3: Platform-specific Laminated products made with phenol-
emissions limits for formaldehyde resins or resins formulated
laminates with reduced with no-added formaldehyde as part of
testing with NAF and PF the resin cross-linking structure are
exemption. exempt from the definition of hardwood
plywood. Otherwise, laminated products
must have an annual small chamber test
demonstrating that they meet the
emission standards of the platform used
(0.05, 0.09, 0.11, or 0.13 ppm)
beginning 2 years after promulgation,
but certification is not required.
Reduced recordkeeping for wholesalers
and retailers that do not import.
Reduced QC testing for small hardwood
plywood production.
Option 4: Laminate emissions Laminated products must meet an emissions
standard consistent with standard of 0.13 ppm beginning 3 years
CARB discussion draft. after promulgation, but no testing or
certification is required for laminated
product producers. (The laminated
product requirements are consistent with
the CARB discussion proposal for
laminated products from March 2014.)
Reduced recordkeeping for wholesalers
and retailers that do not import.
Reduced QC testing for small hardwood
plywood production. Supplier
notification required.
Option 5: All laminates No emission standards apply to laminated
exempt from HWPW definition. products, and there are no testing or
certification requirements for laminated
product producers. Reduced recordkeeping
for wholesalers and retailers that do
not import. Reduced QC testing for small
hardwood plywood production. Supplier
notification required.
Option 6: Fully consistent No emissions standard and no testing or
with current CARB ATCM. certification required for laminated
products. This option does not include
the reductions in recordkeeping
requirements or the reductions in QC
testing for small volume hardwood
plywood production that are included in
the other options. Supplier notification
required.
------------------------------------------------------------------------
3. Benefits. Reductions in formaldehyde emissions from composite
wood products benefits individuals who reside, work, or otherwise spend
a substantial amount of time where new composite wood products are
introduced to an indoor space. The Economic Analysis (Ref. 3) estimates
the benefits of lowering formaldehyde emissions from composite wood
products.
Formaldehyde is classified as a known human carcinogen by the
National Toxicology Program, based on evidence in humans and animals
(Ref. 3). EPA's quantified benefits estimates include the avoided cases
of nasopharyngeal cancer (representing upper respiratory tract cancers
caused by exposure to formaldehyde). The National Toxicology Program
(NTP) has identified formaldehyde as causing myeloid leukemia, and the
NRC review of the formaldehyde assessment in NTP's 12th Report on
Carcinogens (Ref. 13) concluded that there is a causal association
between formaldehyde exposure and myeloid leukemia. The International
Agency for Research on Cancer Monograph 100F concluded that
formaldehyde causes leukemia with a majority of the Working Group
viewing the evidence as sufficient. EPA did not
[[Page 89717]]
have sufficient information to derive a concentration-response function
for myeloid leukemia and thus could not estimate the number of cases
that would be avoided by reducing formaldehyde exposure.
In addition to cancer, the 2010 draft IRIS assessment identified
seven categories of non-cancer health effects from formaldehyde
exposure (sensory irritation, upper respiratory tract pathology,
pulmonary function effects, asthma and allergic sensitization, immune
function effects, neurological and behavioral toxicity, and
developmental and reproductive toxicity) and it proposed reference
concentrations (RfCs) based on four effects: sensory irritation,
pulmonary function effects, asthma and allergic sensitization (atopy),
and reproductive toxicity. The NRC review of the draft IRIS assessment
was released in April 2011 (Ref. 73), and EPA is currently revising the
draft in response.
Overall, EPA concluded that, at this time, it only has sufficient
information on the relationship between formaldehyde exposure and
sensory irritation (i.e., irritation of the eye, nose, and throat) to
include a valuation estimate in the overall benefits analysis. However,
the valuation studies that were the basis of EPA's benefits estimate
only reflected the willingness to pay to avoid eye irritation or
itching eyes. EPA's quantified benefits calculation may be
underestimating the benefits of avoided exposures, because individuals
are likely to have a higher willingness to pay to avoid the additional
symptoms of nose and throat irritation.
Formaldehyde exposure is associated with a range of respiratory
related effects. Effects from repeated exposure in humans include
irritation of the upper respiratory tract, decrements in pulmonary
function, and nasal epithelial lesions such as metaplasia and loss of
cilia. Animal studies suggest that formaldehyde may also cause airway
inflammation. The potential effects of occupational and residential
formaldehyde exposure on asthma have been investigated in a number of
studies. Although findings are mixed, formaldehyde appears to trigger
asthma attacks or related respiratory symptoms (such as wheezing or
decreased pulmonary function) in those occupationally exposed and/or
sensitized. A number of studies have found no association between
formaldehyde exposure and the prevalence of asthma symptoms at low
exposure levels; other studies, however, observed increased risks of
other allergic conditions or increased severity of asthma symptoms
among children with wheeze in the previous year. There are several
studies that suggest that formaldehyde may increase the risk of asthma,
particularly in the young, including a study that provided suggestive
evidence that children are more sensitive than adults to exposure to
formaldehyde in relation to chronic respiratory symptoms and pulmonary
function. Formaldehyde exposure has been associated with immune system
perturbations, suggesting that potential effects of formaldehyde
exposure on the immune system may be an important part of biological
pathways for triggering asthmatic responses or the severity of asthma
symptoms. EPA does not feel that it has sufficient information at this
time on the relationship between formaldehyde exposure and respiratory
outcomes to include a valuation estimate in the overall benefits
analysis.
Epidemiologic studies suggest an association between occupational
exposure to formaldehyde and adverse reproductive outcomes in women,
including reduced fertility. EPA does not feel that it has sufficient
information at this time on the relationship between formaldehyde
exposure and reduced fertility to include a valuation estimate in the
overall benefits analysis.
EPA concluded that, at this time, it only has sufficient
information about the relationship of formaldehyde exposure and the
number of cases of nasopharyngeal cancer and eye irritation to include
valuation estimates of the endpoints in the quantified benefits
analysis. Although uncertainty remains regarding how best to quantify
formaldehyde exposure's effect on other health outcomes, EPA considers
these effects to be important unquantified impacts that contribute to
the overall benefits of this rule, as indicated by the ``+B'' in the
various tables summarizing benefits.
Table 5 shows the number of cases avoided for an average year of
regulation. The avoided cancer cases occur over the lifetimes of the
individuals with exposure reductions.
Table 5--Number of Cases Avoided for an Average Year of Regulation
----------------------------------------------------------------------------------------------------------------
Cancer Eye irritation
---------------------------------------------------
Option Lower Higher Lower Higher
estimate estimate estimate estimate
----------------------------------------------------------------------------------------------------------------
Option 1: Laminates Included in HWPW Definition with NAF 30 74 101,840 686,754
Exemption..................................................
Option 2: Final Rule--Laminates Included in HWPW Definition 26 65 92,218 604,155
after 7 Years with NAF and PF Exemption....................
Option 3: Platform-Specific Emissions Limits for Laminates 28 69 98,279 642,120
with Reduced Testing.......................................
Option 4: Laminate Emissions Standard Consistent with CARB 19 64 79,190 600,072
Discussion Draft...........................................
Option 5: Exempt All Laminates from HWPW Definition......... 11 27 53,730 273,758
Option 6: Fully Consistent with Current CARB ATCM........... 11 27 53,730 273,758
----------------------------------------------------------------------------------------------------------------
Table 6 displays the benefits for the options. The total quantified
benefits of the rule are between $64 million and $186 million per year
(in 2013 dollars) using a 3% discount rate for annualization, and
between $26 million and $79 million per year using a 7% discount rate.
The majority of the quantified benefits are attributable to reductions
in cancer risk.
[[Page 89718]]
Table 6--Benefits of the Options
[Millions 2013$]
----------------------------------------------------------------------------------------------------------------
3% Discount rate 7% Discount rate
Option -------------------------------------------------------------------------------
Lower estimate Higher estimate Lower estimate Higher estimate
----------------------------------------------------------------------------------------------------------------
Option 1: Laminates included in $77 + B $226 + B $34 + B $105 + B
HWPW Definition with NAF
Exemption.
Option 2: Final Rule--Laminates 64 + B 186 + B 26 + B 79 + B
included in HWPW definition
after 7 Years with NAF and PF
Exemption.
Option 3: Platform-Specific 71 + B 207 + B 30 + B 95 + B
Emissions Limits for Laminates
with Reduced Testing.
Option 4: Laminate Emissions 48 + B 189 + B 21 + B 86 + B
Standard Consistent with CARB
Discussion Draft.
Option 5: All Laminates Exempt 29 + B 82 + B 13 + B 37 + B
from HWPW Definition.
Option 6: Fully Consistent with 29 + B 82 + B 13 + B 37 + B
Current CARB ATCM.
----------------------------------------------------------------------------------------------------------------
``B'' represents the unquantified health benefits
There are various reasons why the total quantified benefits may be
underestimated. For example, there are a number of potential health
effects that are not included in this analysis, which are represented
in the table using the indicator ``+B''. Monetization of any health
endpoint identified requires an estimated concentration-response
function that can be appropriately linked for use in the economic
analyses. At this time, EPA only has sufficient data to quantify the
benefits of avoided cases of cancer and sensory irritation, and the
benefits estimates for these two endpoints are incomplete. The
estimated cancer benefits do not include avoided cases of myeloid
leukemia. The estimated benefits for sensory irritation are only based
on eye irritation, and do not reflect the benefits of avoiding nose and
throat irritation.
4. Costs. The Economic Analysis estimates the incremental cost to
firms located in the U.S. of complying with the requirements of the
rule compared to the activities that firms are already undertaking,
often in response to the CARB ATCM. The total costs by option are
displayed in Table 7. Annualized costs of the rule are $38 million to
$83 million per year using a 3% discount rate and $43 million to $78
million per year using a 7% discount rate. Annualized costs for the
other options ranged from $87 million to $297 million per year using a
3% discount rate, and $105 million to $301 million per year using a 7%
discount rate.
Table 7--Total Costs by Option
[Millions 2013$]
----------------------------------------------------------------------------------------------------------------
Annualized (3%) Annualized (7%)
Option ---------------------------------------------------
Low High Low High
----------------------------------------------------------------------------------------------------------------
Option 1: Laminates included in hardwood plywood (HWPW) $155 $297 $167 $301
definition with NAF exemption..............................
Option 2: Final Rule--Laminates included in HWPW definition 38 83 43 78
with NAF and PF exemption..................................
Option 3: Platform-specific emissions limits for laminates 97 102 114 119
with reduced testing.......................................
Option 4: Laminate emissions standard consistent with CARB 88 88 105 105
discussion draft...........................................
Option 5: All laminates exempt from HWPW definition......... 87 87 105 105
Option 6: Fully consistent with current CARB ATCM........... 124 124 142 142
----------------------------------------------------------------------------------------------------------------
Table 8 indicates the cost of the final rule (Option 2) by industry
type.
Table 8--Costs of Final Rule by Industry Type
[Millions 2013$]
----------------------------------------------------------------------------------------------------------------
Annualized (3%) Annualized (7%)
Industry type ---------------------------------------------------
Low High Low High
----------------------------------------------------------------------------------------------------------------
Accreditation Bodies........................................ $0.01 $0.01 $0.01 $0.01
Third-Party Certifiers...................................... 0.01 0.01 0.01 0.01
Stock panel producers....................................... 2 2 2 2
Laminators.................................................. 26 72 26 62
Fabricators (excluding laminators).......................... 6 5 9 8
Wholesalers................................................. 1 1 2 2
Retailers................................................... 3 3 5 5
---------------------------------------------------
Total................................................... 38 83 43 78
----------------------------------------------------------------------------------------------------------------
[[Page 89719]]
The cost estimates for Options 1 and 2 may be overestimates, in
that they underestimate the savings that may accrue to laminated
product producers that switch to phenol-formaldehyde resins or resins
formulated with no-added formaldehyde as part of the resin cross-
linking structure in order to avoid the costs of TPC certification and
product testing. EPA's calculations assumed that producers switching to
qualified resins may incur capital costs for new equipment in order to
use qualified resins, and ongoing costs (such as decreases in
productivity, or increases in resin costs and product rejection rates)
such that the total cost of switching resins would be equivalent to the
cost of certification and testing. In reality, EPA believes that Option
1's NAF exemption and Option 2's NAF and PF exemption would result in
significant cost savings for some producers. However, EPA lacked
sufficient information to estimate the magnitude of such cost savings.
Furthermore, EPA may be overestimating the cost for Option 2
because the analysis does not account for potential long-term savings
that may accrue as a result of setting the manufactured-by date for
laminated products 7 years from the promulgation of the rule. EPA
believes that the 7 year period will reduce costs because laminated
product producers will be able to more efficiently evaluate different
resin technologies and, where they choose to switch to a phenol-
formaldehyde resin or a resin formulated with no-added formaldehyde as
part of the resin cross-linking structure, to successfully implement a
new resin in their production process. There may also be technological
innovation during this 7 year period that will reduce the cost or
remove some of the technical barriers to using qualified resins in some
applications. However, EPA did not have sufficient information to
estimate the savings to due efficiencies or innovation. Furthermore,
the industry may be able to develop and conduct studies that support
additional exemptions or changes to the rule during this 7 year period,
or after that period, and apply to the Agency for an exemption of their
laminated product from the definition of hardwood plywood. Again, EPA
was unable to predict the cost savings that may result from such
activities.
5. Net benefits. Net benefits are the difference between benefits
and costs. The net benefits for the options are displayed in Table 9.
The rule is estimated to result in quantified net benefits of -$19
million to $148 million per year using a 3% discount rate, and -$53
million to $36 million per year using a 7% discount rate. Quantified
net benefits for the other options range from -$220 million to $109
million per year using a 3% discount rate and -$268 million to -$20
million per year using a 7% discount rate. There are additional
unquantified benefits due to other avoided health effects. EPA
considers health benefits from avoided health effects to be potentially
important non-monetized impacts that contribute to the overall net
benefits of this rule, and has represented their inclusion in Table 9
using the letter ``B''.
Table 9--Net Benefits of the Options
[Millions 2013$]
----------------------------------------------------------------------------------------------------------------
3% Discount rate 7% Discount rate
Option -------------------------------------------------------------------------------
Lower estimate Higher estimate Lower estimate Higher estimate
----------------------------------------------------------------------------------------------------------------
Option 1: Laminates included in ($220) + B $71 + B ($268) + B ($62) + B
HWPW Definition with NAF
Exemption.
Option 2: Final Rule--Laminates ($19) + B $148 + B ($53) + B $36 + B
included in HWPW definition
after 7 Years with NAF and PF
Exemption.
Option 3: Platform-Specific ($31) + B $109 + B ($88) + B ($20) + B
Emissions Limits for Laminates
with Reduced Testing.
Option 4: Laminate Emissions ($40) + B $101 + B ($85) + B ($20) + B
Standard Consistent with CARB
Discussion Draft.
Option 5: All Laminates Exempt ($58) + B ($6) + B ($92) + B ($67) + B
from HWPW Definition.
Option 6: Fully Consistent with ($95) + B ($43) + B ($130) + B ($105) + B
Current CARB ATCM.
----------------------------------------------------------------------------------------------------------------
``B'' represents the unquantified health benefits.
The final rule (Option 2) has higher estimated net benefits than
the other options. The lower estimate of quantified net benefits for
the final rule are negative, but EPA believes these quantified
estimates overstate costs and significantly undercount the benefits.
After assessing both the costs and the benefits of the rule, and
considering the unquantified cost savings and benefits, EPA has made a
reasoned determination that the benefits of the rule justify its costs.
B. Paperwork Reduction Act (PRA)
The information collection requirements in this rule have been
submitted to OMB for review and approval under the PRA, 44 U.S.C. 3501
et seq. The Information Collection Request (ICR) document prepared by
EPA has been assigned EPA ICR number 2446.02, and the OMB Control No.
2070-0185 (Ref. 74). You can find a copy of the ICR in the docket for
this rule, and it is briefly summarized here. The information
collection requirements are not enforceable until OMB approves them.
The new information collection activities contained in this rule
are designed to assist the Agency in meeting the requirement in section
601(d) of TSCA that EPA promulgate implementing regulations in a manner
that ensures compliance with the TSCA Title VI emission standards. The
new information collection requirements affect firms that sell, supply,
offer for sale, or manufacture (including import) hardwood plywood,
particleboard, MDF, or finished goods containing these materials in the
United States, as well as firms that provide testing and third-party
certification or oversight services. Although firms have the option of
choosing to engage in the covered activities, once a firm chooses to do
so, the information collection activities contained in this rule become
mandatory for that firm.
Respondents/affected entities: Panel producers, fabricators,
distributors, retailers, TPCs, and ABs.
Respondent's obligation to respond: Mandatory (15 U.S.C. 2697 et
seq.).
Estimated number of respondents: 990,000 firms, including 66,000
foreign firms.
Frequency of response: On occasion.
Total estimated burden: 1.5 million hours per year when excluding
burden for activities performed in the baseline; 1.7 million hours per
year when including burden for activities
[[Page 89720]]
performed in the baseline. Burden is defined at 5 CFR 1320.3(b).
Total estimated cost: $105 million per year when excluding cost for
activities performed in the baseline; $138 million per year when
including cost for activities performed in the baseline; with no
annualized capital or operation & maintenance costs. An agency may not
conduct or sponsor, and a person is not required to respond to, a
collection of information unless it displays a currently valid OMB
control number. The OMB control numbers for EPA's regulations in 40 CFR
are listed in 40 CFR part 9. When OMB approves this ICR, the Agency
will announce that approval in the Federal Register and publish a
technical amendment to 40 CFR part 9 to display the OMB control number
for the approved information collection activities contained in this
final rule.
C. Regulatory Flexibility Act (RFA)
Pursuant to sections 603 and 609(b) of the RFA, 5 U.S.C. 601 et
seq., EPA prepared an initial regulatory flexibility analysis (IRFA)
for the proposed rule and convened a Small Business Advocacy Review
(SBAR) Panel to obtain advice and recommendations from small entity
representatives that potentially would be subject to the rule's
requirements. Summaries of the IRFA and Panel recommendations are
presented in the proposed rule at 78 FR 34820.
As required by section 604 of the RFA, the EPA prepared a final
regulatory flexibility analysis (FRFA) for this action (Ref. 75). The
complete FRFA is available in the docket and is summarized here.
1. Need For and Objectives of the Rule. TSCA section 601(d) directs
EPA to promulgate regulations to implement the formaldehyde standards
for composite wood products described in TSCA section 601(b)(2). EPA is
issuing this rule under TSCA Title VI to implement the statutory
formaldehyde emission standards for hardwood plywood, medium-density
fiberboard, and particleboard sold, supplied, offered for sale, or
manufactured (including imported) in the United States. As directed by
the statute, this rule includes provisions relating to, among other
things, laminated products, products made with ultra-low emitting
formaldehyde or no-added formaldehyde resins, third-party testing and
certification requirements, product labeling, chain of custody
documentation and other recordkeeping requirements, and product
inventory sell-through provisions, including a product stockpiling
prohibition.
The legal basis for the rule is TSCA section 601(d), which provides
authority for the Administrator to ``promulgate regulations to
implement the standards required under subsection (b) in a manner that
ensures compliance with the emission standards described in subsection
(b)(2).'' Therefore, the central objective of this rule is to ensure
compliance with the TSCA Title VI formaldehyde emission standards.
2. Description and Number of Small Entities to Which the Rule Will
Apply. The rule potentially affects small ABs and TPCs, as well as
manufacturers (including importers), fabricators, distributors, and
retailers of composite wood products. For purposes of assessing the
impacts of the rule on small entities, small entity is defined as: (1)
A small business as defined by the Small Business Administration's
(SBA) regulations at 13 CFR 121.201; (2) a small governmental
jurisdiction that is a government of a city, county, town, school
district or special district with a population of less than 50,000; and
(3) a small organization that is any not-for-profit enterprise which is
independently owned and operated and is not dominant in its field. EPA
estimates that the rule will affect approximately 922,000 small
entities.
3. Projected Compliance Requirements. As directed by the statute,
this rule includes provisions relating to, among other things,
laminated products, products made with no-added formaldehyde resins or
ultra-low emitting formaldehyde resins, third-party testing and
certification requirements, product labeling, chain of custody
documentation and other recordkeeping requirements, and product
inventory sell-through provisions, including a product stockpiling
prohibition. This rule establishes requirements for ABs, TPCs,
manufacturers (including importers), fabricators, distributors, and
retailers of composite wood products.
The regulatory provisions in this rule are designed to ensure
compliance with the TSCA Title VI formaldehyde emission standards while
aligning, where practical, with the regulatory requirements under the
CARB ATCM to reduce formaldehyde emissions from composite wood
products. By aligning itself with the existing CARB requirements where
practical, EPA seeks to avoid differing or duplicative regulatory
requirements that would result in an increased burden on the regulated
community. However, EPA deviated from the CARB ATCM where doing so
would reduce burden while still ensuring compliance with the TSCA Title
VI emission standards. The rule has annualized costs that are $41
million to $99 million per year less than an alternative that is fully
consistent with the CARB ATCM, and benefits that are $13 million to
$104 million per year higher.
4. Classes of Small Entities Subject to the Compliance
Requirements. Small entities include small businesses, small
organizations, and small governmental jurisdictions. The small
businesses that are potentially directly regulated by this rule are
ABs, TPCs, manufacturers (including importers), fabricators,
distributors, or retailers of composite wood products. The small
organizations that are potentially directly regulated by the rule are
small ABs and TPCs. No small governments are expected to be directly
regulated by the rule.
5. Professional Skills Needed to Comply. ABs must assess TPCs to
determine whether they are eligible for accreditation. Product ABs are
responsible for ensuring that a TPC has a process in place to verify
the accuracy of the formaldehyde quarterly and quality control tests,
and that the TPC has a process in place to monitor panel producer
quality assurance programs, and conduct independent inspections of
panel producers, their quality control testing facilities and their
laboratories. Laboratory ABs are responsible for verifying that the TPC
laboratory is experienced and capable of conducting formaldehyde
emissions tests. These activities are the part of the basic function of
ABs, so qualified ABs should already have the skills needed to conduct
them. ABs must also submit an application to EPA and enter into a
recognition agreement, keep records, and submit notifications and an
annual report, but these activities do not require any special skills.
TPCs must conduct inspections of composite wood products and
properly train and supervise inspectors to inspect composite wood
products, and have demonstrated experience in performing or verifying
formaldehyde emissions testing on composite wood products. TPCs must
also verify that each panel producer has adequate quality assurance and
quality control procedures and inspect each panel producer, its
products, and its records at least quarterly. These activities are the
part of the basic function of TPCs, so qualified TPCs should already
have the skills needed to conduct them. TPCs must also submit an
application to EPA, keep records, and submit notifications and an
annual report, but these activities do not require any special skills.
Each panel producer must designate a person as quality control
manager with adequate experience and/or training to
[[Page 89721]]
be responsible for formaldehyde emission quality control. EPA has not
incorporated minimum education, experience, or training requirements
for this position, but experience in the wood products industry or a
degree in chemistry or a related field might provide the skills needed
to comply with the requirements.
A panel producer must be able to follow sampling and handling
procedures for the material that is to be tested. However, those
procedures must be described in the facility's quality control manual,
and specified skills should not be needed to follow the written
procedures.
Each panel producer must also designate a quality control facility
for conducting quality control formaldehyde testing, and the quality
control facility must have quality control employees with adequate
experience and/or training to conduct accurate chemical quantitative
analytical tests. But instead of performing these functions themselves,
panel producers have the option of hiring an accredited TPC or a
contract laboratory to fulfill these requirements.
To obtain product certification, a panel producer must apply to an
accredited TPC, and must provide information and notifications to the
TPC. Finally, manufacturers, fabricators, distributors, or retailers of
composite wood products must maintain records. None of these activities
requires any special skills.
6. Other Federal Rules that may Duplicate, Overlap, or Conflict
with the Rule. HUD has regulations governing formaldehyde emission
levels from plywood and particleboard materials installed in
manufactured homes. (See 24 CFR 3280.308.) However, TSCA Title VI
establishes specific formaldehyde emission standards for hardwood
plywood, particleboard, and medium-density fiberboard and does not
provide EPA with the authority to modify these standards. Furthermore,
the Formaldehyde Standards for Composite Wood Products Act, which
includes TSCA Title VI, directs HUD to revise their regulations to
ensure that they reflect the emission standards in TSCA Title VI. And
the HUD regulations do not deal with the other elements addressed in
these implementing regulations (where EPA does have the authority to
make determinations) such as laminated products, products made with no-
added formaldehyde resins or ultra-low emitting formaldehyde resins,
testing requirements, chain of custody documentation, and product
inventory sell-through provisions. Therefore, the regulatory provisions
for which EPA has flexibility in implementing the statute do not
duplicate, overlap, or conflict with any other Federal rules.
7. Potential Economic Impacts on Small Entities. Of the
approximately 922,000 small entities affected by the rule, almost
910,000 (about 99 percent) are expected to have costs impacts that are
less than one percent of their revenues, nearly 7,000 entities (less
than 1 percent) are expected to experience impacts at levels between
one and three percent of their revenue, and 5,000 entities (less than 1
percent) are expected to incur costs exceeding three percent of their
revenues.
Many of the entities with cost impacts above 1 percent of their
revenues are fabricators, wholesalers, and retailers with annualized
costs less than $250 (i.e., they are firms with annual revenues below
$25,000). These entities account for 98 percent of those with cost
impacts that are between 1 and 3 percent and 100 percent of those with
cost impacts that exceed 3 percent.
8. Small Business Advocacy Review Panel. As required by section
609(b) of the RFA, as amended by the Small Business Regulatory
Enforcement Fairness Act (SBREFA), EPA conducted outreach to small
entities and convened a Small Business Advocacy Review Panel to obtain
advice and recommendations of representatives of the small entities
that potentially would be subject to the rule's requirements. The Panel
solicited input on all aspects of the rule. Consistent with the RFA/
SBREFA requirements, the Panel evaluated the assembled materials and
small-entity comments on issues related to elements of the FRFA. It is
important to note that the Panel's findings and discussion were based
on the information available at the time the final report was prepared
(Ref. 23). EPA has continued to conduct analyses relevant to the rule.
The Panel's most significant findings and recommendations on the TSCA
Title VI implementing regulations are discussed in the preamble to the
proposed rule and in the FRFA for this action.
9. Alternatives incorporated into the rule. Over the course of this
rulemaking, EPA considered alternatives for various provisions of the
rule. EPA made a concerted effort to keep the costs and burdens
associated with this rule as low as possible while still ensuring
compliance with the TSCA Title VI emission standards. In developing the
rule, EPA considered the statutory requirements and the benefits from
protection of human health and the environment, as well as the
compliance costs imposed by the rule, both in general and on small
entities. EPA took a number of steps to reduce the economic impact that
might be imposed by this rule, on both small and large entities, where
doing so was consistent with the statutory mandate. For example, EPA
established a different compliance schedule for laminated product
producers by setting the manufactured-by date for laminated products at
7 years after promulgation. As another example, EPA has simplified
compliance requirements by allowing laminated product producers,
wholesalers, and retailers that do not import products to use invoices,
bills of lading, or comparable documents to fulfil their recordkeeping
and chain-of-custody obligations. The emission standards are
performance standards rather than design standards. And the rule does
not regulate construction firms that are renovating, remodeling, or
selling buildings from the definitions of fabricator and retailer.
These provisions are not limited to small entities but, given the
number of small entities in the affected industries, they will benefit
many small entities.
EPA's Economic Analysis analyzed options with different provisions
for the definition of hardwood plywood; the emission standards for
laminated products; the testing and certification requirements for
laminated products; the implementation dates for laminated product
emissions, testing and certification requirements; and the chain of
custody and recordkeeping requirements. Although EPA did not have
sufficient information to analyze and quantify the cost and burden
reductions resulting from many of the provisions it adopted, they still
reduce the impacts of the rule. Some of the steps that EPA took include
the following, which are described in more detail in the FRFA for this
action. These steps include:
Aligning with the CARB ATCM where practical.
Defining hardwood plywood to exempt laminated products
made with phenol-formaldehyde resins or resins formulated with no-added
formaldehyde as part of the resin cross-linking structure and compliant
platforms, and allowing laminated products made into component parts to
take advantage of the exemption.
Establishing the manufactured-by date for laminated
products at 7 years after promulgation.
Reducing recordkeeping for non-manufacturers.
Reducing testing for NAF and ULEF products.
Not requiring retailers to relabel products that they
divide or repackage.
[[Page 89722]]
Reducing quality control testing for small hardwood
plywood production. Reducing quality control testing for
certain panel producers with consistent operations.
Allowing grouping of products and product types for
testing.
Defining hardboard based on industry standards.
Extending the manufactured-by date for the sell-through
provisions.
Allowing alternate test methods for quality control
testing.
Not requiring recordkeeping for most exempt products.
Allowing TPCs approved by CARB to certify products under
TSCA Title VI for two years after the publication of the final rule.
Allowing reciprocity for CARB-approved TPCs.
Allowing representative emission levels to be used to
demonstrate test method equivalence.
Creating a de minimis exception.
Not requiring retention of tested lots while awaiting the
test results.
10. Alternatives considered but not incorporated into the rule. EPA
also considered and rejected several alternatives for the regulation of
laminated products, which could have reduced the economic impacts of
the rule on small entities. For the reasons described below, these
alternatives are not consistent with the statutory objectives and thus
are not incorporated in the final rule. Additional information on the
alternatives that EPA considered is presented elsewhere in this notice.
a. Complete exemption of laminated products from the definition of
hardwood plywood. This alternative is consistent with the current CARB
ATCM. However, the rulemaking record contains ample evidence that some
laminated products can have high formaldehyde emissions. CARB provided
data on laminated product testing conducted in cooperation with the
American Home Furnishings Alliance (AHFA). CARB tested 16 different
sets of samples, each consisting of the same type of MDF or
particleboard panel in three different states: Raw; with a veneer
attached with a urea-formaldehyde resin; and with a stain or finish
applied to the veneer. In most cases, the laminated products emitted
more formaldehyde than was emitted by the platforms, likely due to the
resin used to affix the veneer. In several cases, the formaldehyde
emissions from the laminated product were considerably higher than the
emissions from the platform.
Considering the laminated products in the CARB/AHFA data set
without stain or finish (which is how the TSCA Title VI emission
standards are applied), only one of the 16 samples had emissions below
0.05 ppm, the standard for hardwood plywood. For 13 of 16 samples, the
emissions from the veneered product were higher than from the
corresponding raw platform, with increases ranging from 0.04 ppm to
1.17 ppm. Laminated product often had emissions that were an order of
magnitude higher than the particleboard or MDF platforms that they were
made from. Eleven of the 16 samples had emissions above the standard
for their platform type. Five of the eight samples made with MDF
exceeded the 0.11 ppm Phase II standard for MDF, with emissions ranging
from 0.17 ppm to 1.35 ppm. Six of the eight samples made with
particleboard exceeded the 0.09 ppm Phase II standard for
particleboard, with emissions ranging from 0.13 to 1.29 ppm.
EPA reads TSCA Title VI to include laminated products as hardwood
plywood unless EPA can make the case, based on available and relevant
information, that they should be excluded. EPA finds that the CARB/AHFA
data set provides ample evidence that the process of lamination with
urea-formaldehyde resins generally increases formaldehyde emissions
from composite wood products. Therefore, completely exempting laminated
products from the definition of hardwood plywood would not be
consistent with the statutory objectives.
b. Emission standard of 0.13 ppm for laminated products with no
testing or certification. This alternative is consistent with CARB's
March 2014 discussion draft. The record, especially the CARB/AHFA data
set, demonstrates that some laminated products have high formaldehyde
emissions, so a requirement that the platform be compliant does not
ensure that a laminated product made with urea-formaldehyde resin will
also be compliant with a 0.13 ppm standard. While thirteen of the raw
platforms in the CARB/AHFA data set complied with the relevant Phase II
emissions standard, only 5 of the 16 veneered samples without stain or
finish met the 0.13 ppm level. Nine of the 16 samples had emissions
ranging from 0.17 to 1.35 ppm. For 13 of 16 samples, the emissions from
the veneered product were higher than from the raw platform. These
increases ranged from 0.04 ppm to 1.17 ppm, and represented an increase
of 57 percent to 2,533 percent compared to the platform emissions.
Given the CARB/AHFA data set, with formaldehyde emissions from most
veneered samples exceeding 0.13 ppm, EPA is unable to find that this
approach is consistent with the statutory objectives. To the contrary,
this data set provides evidence that without some sort of active effort
to control formaldehyde emissions, whether through the use of phenol-
formaldehyde resins or resins formulated with no-added formaldehyde as
part of the resin cross-linking structure or some emissions testing, it
is likely that many laminated products will exceed a 0.13 ppm emission
standard. Therefore, a 0.13 ppm emission standard for laminated
products with no testing or certification would not be consistent with
the statutory objectives.
c. Platform-specific emission standards, annual testing, no
certification. Under this alternative, unfinished laminated products
would have to meet the emissions limit for the type of platform they
are made with (0.05 ppm for veneer core, 0.09 ppm for particleboard,
0.11 ppm for MDF, and 0.13 ppm for thin MDF). An annual emissions test
would be required, but TPC certification would not be required.
The record, especially the CARB/AHFA data set, demonstrates that
some laminated products have high formaldehyde emissions, so a
requirement that the platform be compliant does not, by itself, ensure
that a laminated product made with urea-formaldehyde resin will also be
compliant with the platform emission standard. While 13 of the 16
platforms met the Phase II emission standards, only 5 of 16 of the
veneered products without stain or finish met the emission standard for
their platform.
Furthermore, an annual emission test may not be sufficient to
ensure compliance for products, particularly those made with urea-
formaldehyde resin. Several public commenters were concerned about the
effect of reduced testing requirements for laminated products. One
questioned whether an annual test could account for variation in
production processes and seasonal variations. Another claimed that it
is inconceivable that an effective and reliable enforcement scheme
could be developed that hinged on a single yearly test. Yet another
stated that annual testing could be misleading, because the testing may
not be accurate or representative of average emissions. EPA agrees that
more than one test per year is important to ensure that laminated
products that are not made with phenol-formaldehyde resins or resins
formulated with no-added formaldehyde as part of the resin cross-
linking structure comply with the emission standard.
EPA also believes that TPCs have an important role to play in
ensuring
[[Page 89723]]
compliance. Various factors (such as resin system, core type, core
resin type, veneer type, and number of plies) could influence
formaldehyde emissions from hardwood plywood, including laminated
products. EPA is allowing TPCs to approve the grouping of products with
similar formaldehyde emission characteristics for quarterly and quality
control testing. EPA believes that the TPC, working in conjunction with
the platform producer, is in the best position to select the product(s)
to be tested in order to determine whether production at the facility
is in compliance with the emission standards.
Therefore, a platform-specific emission standard for laminated
products with annual testing but no certification would not be
consistent with the statutory objectives.
d. Conclusion. On the basis of information currently available to
the Agency, EPA has concluded that these alternative options are not
consistent with TSCA Title VI's statutory objective to reduce
formaldehyde emissions from composite wood products.
In addition, EPA is preparing a Small Entity Compliance Guide to
help small entities comply with this rule. The guide or guides will
have information to assist small TPCs, ABs, fabricators, panel
producers, importers, distributors, and retailers. After the date that
this rule's requirements take effect the guide or guides will be
available on EPA's Web site http://www.epa.gov/formaldehyde.
D. Unfunded Mandates Reform Act (UMRA)
This action contains a Federal mandate under UMRA, 2 U.S.C. 1531-
1538, that may result in expenditures of $100 million or more for
State, local, and tribal governments, in the aggregate, or the private
sector in any one year. Accordingly, EPA has prepared a written
statement required under section 202 of UMRA (Ref. 76). The statement
is included in the docket for this action and briefly summarized here.
1. Authorizing legislation. This rule is issued under the authority
of section 601 of TSCA, 15 U.S.C. 2697.
2. Cost-benefit analysis. The Economic Analysis (Ref. 3) presents
the costs of the rule as well as various regulatory options and is
summarized in Unit VI.A. The rule is calculated to result in a total
cost of $253 million to $359 million in the first year, although this
is likely an overestimate. (The rule allows laminators 7 years before
they must begin using NAF or PF resins and compliant platforms, or have
their products tested and certified. EPA's analysis assumes that
laminated product producers that decide to switch to qualified resins
would incur all the transition costs in the first year, while in
reality those costs are likely to be spread over the 6 year period.)
The subsequent year costs are lower, so that the total annualized cost
of this rule is $38 million to $83 million per year when using a 3
percent discount rate and $43 million to $78 million per year using a 7
percent discount rate. When adjusted for inflation, the $100 million
UMRA threshold is equivalent to approximately $153 million in 2013
dollars. Thus, the first cost of the rule to the private sector and
State, local, and Tribal governments in the aggregate may exceed the
inflation-adjusted UMRA threshold.
This rule will reduce exposures to formaldehyde, resulting in
benefits from avoided adverse health effects. For the subset of health
effects where the results were quantified, the estimated annualized
benefits (due to avoided incidence of nasopharyngeal cancer and eye
irritation) are $64 million to $186 million per year using a 3%
discount rate, and $26 million to $79 million per year using a 7%
discount rate. There are additional unquantified benefits due to other
avoided health effects.
Net benefits are the difference between benefits and costs. The
rule is estimated to result in quantified net benefits of -$19 million
to $148 million per year using a 3% discount rate, and -$53 million to
$36 million per year using a 7% discount rate. EPA considers
unquantified cost savings for laminated product producers (from the NAF
and PF exemption and the 7 year period to meet the emission standards)
as well as the additional unquantified health benefits to be
potentially important non-monetized impacts that contribute to the
overall net benefits of this rule.
3. State, local, and Tribal government input. Consistent with the
intergovernmental consultation provisions of section 204 of the UMRA
EPA has consulted with governmental entities affected by this rule.
With the assistance of the National Conference of State Legislatures,
EPA consulted with state environmental health directors, who were
generally supportive of EPA's efforts. And EPA has met with officials
from the state of California on numerous occasions to discuss aspects
of the CARB ATCM and its implementation. California is very supportive
of EPA's efforts to promulgate regulations to implement national
composite wood product formaldehyde emission standards that are modeled
on the CARB ATCM.
4. Least burdensome option. Consistent with section 205, EPA has
identified and considered a reasonable number of regulatory
alternatives. TSCA Title VI establishes specific formaldehyde emission
standards for hardwood plywood, particleboard, and medium-density
fiberboard and does not provide EPA with the authority to modify these
standards. The statute further directs EPA to promulgate implementing
regulations that address elements such as laminated products, products
made with ultra low-emitting formaldehyde resins, products made with
no-added formaldehyde resins, testing requirements, product labeling,
chain of custody documentation and other recordkeeping requirements,
and product inventory sell-through provisions. EPA has considered a
number of regulatory alternatives for regulating laminated products, as
described in Unit III and elsewhere in this Unit, as well as in the
Economic Analysis (Ref. 3). The final rule has the lowest cost of the
alternatives that EPA considered. Furthermore, the available
information indicates that laminated products made with urea-
formaldehyde resins can have high formaldehyde emissions. Therefore, on
the basis of information currently available to the Agency, EPA has
concluded that the alternative options for laminated products would not
be consistent with the statutory objective to reduce formaldehyde
emissions from composite wood products. After assessing both the costs
and the benefits of the rule (both quantified and unquantified), EPA
has determined that the rule is the least burdensome option that is
consistent with TSCA Title VI's objective.
This action is not subject to the requirements of section 203 of
UMRA because it contains no regulatory requirements that might
significantly or uniquely affect small governments.
E. Executive Order 13132: Federalism
This action does not have federalism implications, as specified in
Executive Order 13132 (64 FR 43255, August 10, 1999). It will not have
substantial direct effects on the States, on the relationship between
the national government and the States, or on the distribution of power
and responsibilities among the various levels of government.
F. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments
This action does not have tribal implications, as specified in
Executive Order 13175 (65 FR 67249, November 9, 2000). The rule would
not regulate tribal governments directly, it would regulate
[[Page 89724]]
entities that accredit TPCs, certify panel producers, or manufacture
(including import), fabricate, distribute, or sell composite wood
products. Governments do not typically engage in these activities.
Tribal governments do not typically engage in these activities. Thus,
Executive Order 13175 does not apply to this action.
G. Executive Order 13045: Protection of Children From Environmental
Health Risks and Safety Risks
This action is subject to Executive Order 13045 because it is an
economically significant regulatory action as defined by Executive
Order 12866, and the EPA believes that the environmental health or
safety risk addressed by this action may have a disproportionate effect
on children. Accordingly, we have evaluated the environmental health or
safety effects on children. This action's health and risk assessments
are described in Units I.F. and II.A. and contained in the economic
analysis (Ref. 3). As described therein, exposure to formaldehyde may
cause disproportionate effects on children compared to adults both in
terms of cancer risk, and respiratory effects. The rule itself will not
have disproportionally high and adverse effects on children. Rather,
these standards would reduce emissions of formaldehyde from composite
wood products for individuals of all ages that are exposed and children
may accrue higher benefits from the exposure reductions compared to
adults.
H. Executive Order 13211: Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use
This rule is not a ``significant energy action'' as defined in
Executive Order 13211 (66 FR 28355, May 22, 2001), because it is not
likely to have any adverse effect on the supply, distribution, or use
of energy. Further, this rule is not likely to have any adverse energy
effects because it regulates formaldehyde emissions from composite wood
products and does not require any action related to the supply,
distribution, or use of energy.
I. National Technology Transfer and Advancement Act (NTTAA)
This action involves technical standards, many of which EPA is
directed to use by TSCA Title VI. Technical standards identified in the
statute include the two quarterly test methods, ASTM E1333-96 and ASTM
D6007-02, a quality control test method, ASTM D5582-00, and various
standards that define specific composite wood products, such as ASTM D-
5456-06 (Structural Composite Lumber Products), ASTM D-5055-05
(Prefabricated Wood I-Joists), ANSI/AITC A190.1 (Structural Glued
Laminated Timber), ANSI/HPVA HP-1-2009 (Hardwood and Decorative
Plywood), ANSI A208.2-2009 (Medium Density Fiberboard), ANSI A208.1-
2009 (Particleboard), PS 1-07 (Structural Plywood), and PS 2-04 (Wood-
Based Structural-Use Panels).
In addition, EPA has identified other voluntary consensus standards
and incorporated them into this action. These include standards for
accreditation and certification (ISO/IEC 17011, ISO/IEC 17020, ISO/IEC
17025, and ISO/IEC 17065), as well as the revised quarterly test
method, ASTM E1333-10, and standards that define hardboard, ANSI
A135.4, ANSI A135.5, ANSI A135.6, and ANSI 135.7. EPA is allowing
certain alternative quality control test methods that are incorporated
in voluntary consensus standards, EN 717-2 (gas analysis), EN 120
(perforator), and JIS A 1460 (24-hour desiccator).
EPA is using voluntary consensus standards issued by the
International Organization for Standardization, ASTM International, the
American National Standards Institute, the National Institute of
Standards and Technology, the European Committee for Standardization,
Georgia Pacific Chemicals LLC, and the Japanese Standards Association.
Copies of the standards referenced in the regulatory text have been
placed in the docket for this rule. See Unit IV for information on how
to obtain copies of these standards from other sources.
J. Executive Order 12898: Federal Actions to Address Environmental
Justice in Minority Populations and Low-Income Populations
EPA has determined that the human health or environmental risk
addressed by this action will not have potential disproportionately
high and adverse human health or environmental effects on minority,
low-income or indigenous populations, as specified in Executive Order
12898 (59 FR 7629, February 16, 1994). The results of this evaluation
are contained in the Economic Analysis (Ref. 3).
The Economic Analysis, described in Unit VI.A, monetizes the
benefits from reducing the number of cases of nasopharyngeal cancer and
sensory irritation and includes an environmental justice analysis that
expands on the primary benefits analysis by analyzing the monetized
impacts specifically for minority and low-income populations. Results
indicate that disaggregation of total benefits by population groups
leads to variation in the range of individual benefits, by minority
population. The affected Non-Hispanic White population accounts for 63%
of the total affected population, and accrues 59% of the quantified
benefits. In comparison, for minority populations the quantified
benefits equal or exceed their share of the total population. Minority
populations represent about 37% of the individuals affected by the rule
and are estimated to accrue about 41% of the rule's quantified
benefits. The affected Non-Hispanic Black population account for 11% of
the total affected population, accrue 12% of the quantified benefits.
The affected Hispanic population account for 17% of the total affected
population, and accrue 19% of the quantified benefits. The affected
Non-Hispanic American Indian or Alaska Native population account for
0.7% of the total affected population, accrue 0.7% of the quantified
benefits. The affected low-income population account for 15% of the
total affected population and accrue 18% of the quantified benefits.
K. Congressional Review Act (CRA)
This action is subject to the CRA, 5 U.S.C. 801 et seq., and EPA
will submit a rule report to each House of the Congress and to the
Comptroller General of the United States. This action is a ``major
rule'' as defined by 5 U.S.C. 804(2).
List of Subjects in 40 CFR Part 770
Environmental protection, Formaldehyde, Incorporation by reference,
Reporting and recordkeeping requirements, Third-party certification,
Toxic substances, Wood.
Dated: July 27, 2016.
Gina McCarthy,
Administrator.
Therefore, 40 CFR chapter I, subchapter R, is amended by adding
part 770 to read as follows:
PART 770--FORMALDEHYDE STANDARDS FOR COMPOSITE WOOD PRODUCTS
Subpart A--General Provisions
Sec.
770.1 Scope and applicability.
770.2 Effective dates.
770.3 Definitions.
770.4 Exemption from the hardwood plywood definition for certain
laminated products.
770.5 Prohibited acts.
[[Page 89725]]
Subpart B--EPA TSCA Title VI Third-Party Certification Program
770.7 Third-party certification.
770.8 Applications, notifications, and reports.
Subpart C--Composite Wood Products
770.10 Formaldehyde emission standards.
770.12 Stockpiling.
770.15 Composite wood product certification.
770.17 No-added formaldehyde-based resins.
770.18 Ultra low-emitting formaldehyde resins.
770.20 Testing requirements.
770.21 Quality control manual, facilities, and personnel.
770.22 Non-complying lots.
770.24 Samples for testing.
770.30 Importers, fabricators, distributors, and retailers.
770.40 Reporting and recordkeeping.
770.45 Labeling.
Subpart D--Incorporation by Reference
770.99 Incorporation by reference.
Authority: 15 U.S.C. 2697(d).
Subpart A--General Provisions
Sec. 770.1 Scope and applicability.
(a) This part contains formaldehyde emission standards, testing and
certification provisions, and other requirements for the manufacture
(including import), distribution, and sale of composite wood products,
component parts that contain composite wood products, and finished
goods that contain composite wood products.
(b) This part applies to:
(1) Laboratory Accreditation Bodies (ABs) and Product ABs that are
accrediting third-party certifiers (TPCs) for TSCA Title VI (15 U.S.C.
2697(d)) purposes and those that wish to commence accrediting TPCs for
TSCA Title VI purposes.
(2) TPCs that are certifying composite wood products for TSCA Title
VI compliance and those that wish to commence certifying composite wood
products for TSCA Title VI compliance.
(3) Any composite wood products, and component parts or finished
goods containing these materials, that are sold, supplied, offered for
sale, or manufactured (including imported) in the United States,
including composite wood products used or installed in manufactured
housing.
(c) Subparts B, C, and D of this part do not apply to the
following:
(1) Any finished good that has previously been sold or supplied to
an end user, an individual or entity that purchased or acquired the
finished good in good faith for purposes other than resale. For
example, subparts B, C, and D of this part do not apply to antiques or
secondhand furniture.
(2) Hardboard.
(3) Structural plywood, as specified in PS 1-07, Voluntary Product
Standard--Structural Plywood (incorporated by reference, see Sec.
770.99).
(4) Structural panels, as specified in PS 2-04, Voluntary Product
Standard--Performance Standard for Wood-Based Structural-Use Panels
(incorporated by reference, see Sec. 770.99).
(5) Structural composite lumber, as specified in ASTM D5456-06,
Standard Specification for Evaluation of Structural Composite Lumber
Products (incorporated by reference, see Sec. 770.99).
(6) Oriented strand board.
(7) Glued laminated lumber, as specified in ANSI/AITC A190.1-2002,
Structural Glued Laminated Timber (incorporated by reference, see Sec.
770.99).
(8) Prefabricated wood I-joists, as specified in ASTM D5055-05,
Standard Specification for Establishing and Monitoring Structural
Capacities of Prefabricated Wood I-Joists (incorporated by reference,
see Sec. 770.99).
(9) Finger-jointed lumber.
(10) Wood packaging, including pallets, crates, spools, and
dunnage.
(11) Composite wood products used inside the following:
(i) New vehicles (other than recreational vehicles) that are
constructed entirely from new parts and that have never been the
subject of a retail sale or registered with the applicable State or
other governmental agency.
(ii) New rail cars.
(iii) New boats.
(iv) New aerospace craft.
(v) New aircraft.
(d) The emission standards in Sec. 770.10 do not apply to windows
that contain composite wood products, if the windows contain less than
five percent by volume of composite wood products, combined, in
relation to the total volume of the finished window.
(e) The emission standards in Sec. 770.10 do not apply to exterior
doors and garage doors that contain composite wood products, if:
(1) The doors are made from composite wood products manufactured
with no-added formaldehyde-based resins or ultra low-emitting
formaldehyde resins; or
(2) The doors contain less than three percent by volume of
composite wood products, combined, in relation to the total volume of
the finished exterior door or garage door.
Sec. 770.2 Effective dates.
(a) This rule is effective February 10, 2017.
(b) Laboratory and Product ABs that wish to accredit TPCs for TSCA
Title VI purposes may apply to EPA beginning February 10, 2017 to
become recognized. Laboratory and Product ABs must be recognized by EPA
before they begin to provide and at all times while providing TSCA
Title VI accreditation services.
(c) TPCs that are not approved by the California Air Resources
Board (CARB) that wish to provide TSCA Title VI certification services
may apply to EPA beginning February 10, 2017 to become recognized. TPCs
must be recognized by EPA and comply with all of the applicable
requirements of this part before they begin to provide and at all times
while providing TSCA Title VI certification services.
(d) Notwithstanding any other provision of this part, TPCs that are
approved by CARB to certify composite wood products have until December
12, 2018 to become accredited by an EPA TSCA Title VI AB(s) pursuant to
the requirements of this part. During this two-year transition period,
existing CARB-approved TPCs and CARB TPCs approved during this
transition period may carry out certification activities under TSCA
Title VI, provided that they remain approved by CARB and comply with
all aspects of this part other than the requirements of Sec.
770.7(c)(1)(i) and (ii) and (c)(2)(iii) and (iv). After the two-year
transition period, CARB-approved TPCs may continue to certify composite
wood products under TSCA Title VI provided the TPC maintains its CARB
approval, follows the requirements under this part, submits to EPA
documentation from CARB supporting their eligibility for reciprocity
and has received EPA recognition as an EPA TSCA Title VI TPC. All TPCs
that are certifying products as compliant with TSCA Title VI, both
during and after the transition period, are subject to enforcement
actions for any violations of TSCA Title VI or these regulations.
(e) After December 12, 2017, all manufacturers (including
importers), fabricators, suppliers, distributors, and retailers of
composite wood products, and component parts or finished goods
containing these materials, must comply with this part, subject to the
following:
(1) After December 12, 2017, laminated product producers must
comply with the requirements of this part that are applicable to
fabricators.
(2) After December 12, 2023, producers of laminated products must
comply with the requirements of this part that are applicable to
hardwood
[[Page 89726]]
plywood panel producers (in addition to the requirements of this part
that are applicable to fabricators) except as provided at Sec. 770.4.
(3) After December 12, 2023, producers of laminated products that,
as provided at Sec. 770.4, are exempt from the definition of
``hardwood plywood'' must comply with the recordkeeping requirements in
Sec. 770.40(c) and (d) (in addition to the requirements of this part
that are applicable to fabricators).
(4) Composite wood products manufactured (including imported)
before December 12, 2017 may be sold, supplied, offered for sale, or
used to fabricate component parts or finished goods at any time.
Sec. 770.3 Definitions.
For the purposes of this part, the following definitions apply:
Accreditation Body or AB means an organization that provides an
impartial verification of the competency of conformity assessment
bodies or TPCs.
Agent for Service means an entity designated by a TPC or AB to
receive legal documents on their behalf.
Article means a manufactured item which:
(1) Is formed to a specific shape or design during manufacture;
(2) Has end use functions dependent in whole or in part upon its
shape or design during the end use; and
(3) Has either no change of chemical composition during its end use
or only those changes of composition which have no commercial purpose
separate from that of the article and that may occur as described in 19
CFR 12.120(a)(2), except that fluids and particles are not considered
articles regardless of shape or design.
Assessment means a process to include an on-site review undertaken
by an AB to assess the competence of all operations of a conformity
assessment body and TPC, based on particular standard(s) and/or other
normative documents for a defined scope of accreditation, as defined in
ISO/IEC 17011:2004(E) (incorporated by reference, see Sec. 770.99).
Bundle means more than one composite wood product, component part,
or finished good fastened together for transportation or sale.
Combination core means a platform for making hardwood plywood or
laminated products that consists of a combination of layers of veneer
and particleboard or medium density fiberboard.
Component part means an object other than a panel that contains one
or more composite wood products and is used in the construction or
assembly of finished goods. Component parts that are sold directly to
consumers are considered finished goods.
Composite core means a platform for making hardwood plywood or
laminated products that consists of particleboard and/or medium density
fiberboard, or combination core.
Composite wood product means hardwood plywood made with a veneer or
composite core, medium-density fiberboard, and particleboard.
Distributor means any person or entity to whom a composite wood
product, component part, or finished good is sold or supplied for the
purposes of resale or distribution in commerce, except that
manufacturers and retailers are not distributors.
Engineered veneer means a type of veneer that is created by dyeing
and gluing together leaves of veneer in a mold to produce a block. The
block is then sliced into leaves of veneer with a designed appearance
that is highly repeatable.
EPA TSCA Title VI Laboratory Accreditation Body or EPA TSCA Title
VI Laboratory AB means an AB that has a recognition agreement with EPA
under the EPA TSCA Title VI Third-Party Certification Program,
accredits a TPC's testing laboratory or contract testing laboratory to
ISO/IEC 17025:2005(E) (incorporated by reference, see Sec. 770.99)
with a scope of accreditation to include this part and the formaldehyde
test methods used to comply with this part, and assesses the testing
laboratory's conformance to ISO/IEC 17020:2012(E) (incorporated by
reference, see Sec. 770.99) in order to perform laboratory testing
services.
EPA TSCA Title VI Product Accreditation Body or EPA TSCA Title VI
Product AB means an AB that has a recognition agreement with EPA under
the EPA TSCA Title VI Third-Party Certification Program, accredits a
TPC to ISO/IEC 17065:2012(E) (incorporated by reference, see Sec.
770.99) with a scope of accreditation to include composite wood
products and this part, and assesses the TPC's conformance to ISO/IEC
17020:1998(E) (incorporated by reference, see Sec. 770.99) in order to
perform product certification.
EPA TSCA Title VI Third-Party Certifier or EPA TSCA Title VI TPC
means a conformity assessment body that provides both product
certification services and laboratory testing services (either directly
or through contracted services), is accredited by an EPA TSCA Title VI
Product AB and an EPA TSCA Title VI Laboratory AB (unless the
laboratory testing services are contracted to a laboratory accredited
by an EPA TSCA Title VI Laboratory AB), and is recognized by EPA
pursuant to Sec. 770.7(c).
Fabricator means a person or entity who incorporates composite wood
products into component parts or into finished goods. This includes
laminated product producers, but persons or entities in the
construction trades are not fabricators by renovating or remodeling
buildings.
Finished good means any good or product, other than a panel, that
contains hardwood plywood (with a veneer or composite core),
particleboard, or medium-density fiberboard and that is not a component
part or other part used in the assembly of a finished good. Site-built
buildings or other site-built real property improvements are not
considered finished goods.
Hardboard means a composite panel composed of cellulosic fibers,
consolidated under heat and pressure in a hot press by: A wet process;
or a dry process that uses a phenolic resin, or a resin system in which
there is no formaldehyde as part of the resin cross-linking structure;
or a wet formed/dry pressed process; and that is commonly or
commercially known, or sold, as hardboard, including any product
conforming to one of the following ANSI standards: Basic Hardboard
(ANSI A135.4-2012) (incorporated by reference, see Sec. 770.99),
Prefinished Hardboard Paneling (ANSI A135.5-2012) (incorporated by
reference, see Sec. 770.99), Engineered Wood Siding (ANSI A135.6-2012)
(incorporated by reference, see Sec. 770.99), or Engineered Wood Trim
(ANSI A135.7-2012) (incorporated by reference, see Sec. 770.99). There
is a rebuttable presumption that products emitting more than 0.06 ppm
formaldehyde as measured by ASTM E1333-10 (incorporated by reference,
see Sec. 770.99) or ASTM D6007-02 (incorporated by reference, see
Sec. 770.99) are not hardboard.
Hardwood plywood means a hardwood or decorative panel that is
intended for interior use and composed of (as determined under ANSI/
HPVA HP-1-2009 (incorporated by reference, see Sec. 770.99)) an
assembly of layers or plies of veneer, joined by an adhesive with a
lumber core, a particleboard core, a medium-density fiberboard core, a
hardboard core, a veneer core, or any other special core or special
back material. Hardwood plywood does not include military-specified
plywood, curved plywood, or any plywood specified in PS 1-07, Voluntary
Product Standard--Structural Plywood (incorporated by reference, see
Sec. 770.99), or PS 2-04, Voluntary Product
[[Page 89727]]
Standard--Performance Standard for Wood-Based Structural-Use Panels
(incorporated by reference, see Sec. 770.99). In addition, hardwood
plywood includes laminated products except as provided at Sec. 770.4.
Importer means any person or entity who imports composite wood
products, component parts, or finished goods into the customs territory
of the United States (as defined in general note 2 of the Harmonized
Tariff Schedules of the United States pursuant to 15 U.S.C.
2612(a)(1)). Importer includes:
(1) The entity primarily liable for the payment of any duties on
the products; or
(2) An authorized agent acting on the entity's behalf.
Intended for interior use means intended for use or storage inside
a building or recreational vehicle, or constructed in such a way that
it is not suitable for long-term use in a location exposed to the
elements. Windows, doors, and garage doors with at least one interior-
facing side are intended for interior use.
Laboratory Accreditation Body or Laboratory AB means an AB that
accredits conformity assessment body testing laboratories.
Laminated product means a product in which a wood or woody grass
veneer is affixed to a particleboard core or platform, a medium-density
fiberboard core or platform, or a veneer core or platform. A laminated
product is a component part used in the construction or assembly of a
finished good. In addition, a laminated product is produced by either
the fabricator of the finished good in which the product is
incorporated or a fabricator who uses the laminated product in the
further construction or assembly of a component part.
Laminated product producer means a manufacturing plant or other
facility that manufactures (excluding facilities that solely import
products) laminated products on the premises. Laminated product
producers are fabricators and, after December 12, 2023, laminated
product producers are also hardwood plywood panel producers except as
provided at Sec. 770.4.
Lot means the panels produced from the beginning of production of a
product type until the first quality control test; between one quality
control test and the next; or from the last quality control test to the
end of production for a particular product type.
Medium-density fiberboard means a panel composed of cellulosic
fibers made by dry forming and pressing a resinated fiber mat (as
determined under ANSI A208.2-2009 (incorporated by reference, see Sec.
770.99)).
No-added formaldehyde-based resin means a resin formulated with no
added formaldehyde as part of the resin crosslinking structure in a
composite wood product that meets the emission standards in Sec.
770.17(c).
Non-complying lot means any lot of composite wood product
represented by a quarterly test value or quality control test result
that indicates that the lot exceeds the applicable standard for the
particular composite wood product in Sec. 770.10(b). A quality control
test result that exceeds the QCL is considered a test result that
indicates that the lot exceeds the applicable standard. Future
production of the product type(s) represented by a failed quarterly
test are not considered certified and must be treated as a non-
complying lot until the product type(s) are re-qualified through a
successful quarterly test.
Panel means a thin (usually less than two inches thick), flat,
usually rectangular piece of particleboard, medium-density fiberboard
or hardwood plywood. Embossing or imparting of an irregular surface on
the composite wood products by the original panel producer during
pressing does not remove the product from this definition. Cutting a
panel into smaller pieces, without additional fabrication, does not
make the panel into a component part or finished good. This does not
include items made for the purpose of research and development,
provided such items are not sold, supplied, or offered for sale.
Panel producer means a manufacturing plant or other facility that
manufactures (excluding facilities that solely import products)
composite wood products on the premises.
Phenol-formaldehyde resin means a resin that consists primarily of
phenol and formaldehyde and does not contain urea-formaldehyde.
Particleboard means a panel composed of cellulosic material in the
form of discrete particles (as distinguished from fibers, flakes, or
strands) that are pressed together with resin (as determined under ANSI
A208.1-2009 (incorporated by reference, see Sec. 770.99)).
Particleboard does not include any product specified in PS 2-04,
Performance Standard for Wood-Based Structural-Use Panels (incorporated
by reference, see Sec. 770.99).
Product Accreditation Body or Product AB means an AB that accredits
conformity assessment bodies who perform product certification.
Product type means a type of composite wood product, or group of
composite wood products, made by the same panel producer with the same
resin system that differs from another product type based on panel
composition and formaldehyde emission characteristics. Grouped products
must have similar formaldehyde emission characteristics and their
emissions must fit the same correlation curve or linear regression.
Production line means a set of operations and physical industrial
or mechanical equipment used to produce a composite wood product in one
facility utilizing the same or similar equipment and quality assurance
and quality control procedures.
Purchaser means any panel producer, importer, fabricator,
distributor, or retailer that acquires composite wood products,
component parts, or finished goods for purposes of resale in exchange
for money or its equivalent.
Quality control limit or QCL means the value from the quality
control method test that is the correlative equivalent to the
applicable emission standard based on the ASTM E1333-10 method
(incorporated by reference, see Sec. 770.99).
Reassessment means an assessment, as described in sections 7.5 to
7.11 of ISO/IEC 17011:2004(E) (incorporated by reference, see Sec.
770.99), except that experience gained during previous assessments
shall be taken into account.
Recreational vehicle means a vehicle which is:
(1) Built on a single chassis;
(2) Four hundred square feet or less when measured at the largest
horizontal projections;
(3) Self-propelled or permanently towable by a light duty truck;
and
(4) Designed primarily not for use as a permanent dwelling but as
temporary living quarters for recreational, camping, travel, or
seasonal use.
Retailer means any person or entity that sells, offers for sale, or
supplies directly to consumers composite wood products, component parts
or finished goods that contain composite wood products, except that
persons or entities in the construction trades are not considered
retailers by selling, renovating, or remodeling buildings.
Resin system means type of resin used, including but not limited to
urea-formaldehyde, soy, phenol-formaldehyde, or melamine-urea-
formaldehyde.
Scavenger means a chemical or chemicals that can be applied to
resins or composite wood products either during or after manufacture
and that react with residual or excess formaldehyde to reduce the
amount of
[[Page 89728]]
formaldehyde that can be emitted from composite wood products.
Shipping quality control limit means a quality control limit that
is developed in conjunction with an EPA TSCA Title VI TPC that is based
on panels prior to shipment rather than immediately after
manufacturing.
Stockpiling means manufacturing or purchasing composite wood
products, whether in the form of panels or incorporated into component
parts or finished goods, between July 7, 2010 and June 12, 2017 at an
average rate at least 20% greater than the average rate of manufacture
or purchase during the 2009 calendar year for the purpose of
circumventing the emission standards and other requirements of this
subpart.
Thin medium-density fiberboard means medium-density fiberboard that
has a thickness less than or equal to 8 millimeters or 0.315 inches.
Third-party certifier or TPC means a conformity assessment body
that provides both product certification services and laboratory
testing services (either directly or through contracted services).
TPC laboratory means a laboratory or contract laboratory of an EPA
TSCA Title VI TPC that is accredited by an EPA TSCA Title VI Laboratory
AB to ISO/IEC 17025:2005(E) (incorporated by reference, see Sec.
770.99), and whose inspection activities are in conformance with ISO/
IEC 17020:1998(E) (incorporated by reference, see Sec. 770.99).
Surveillance On-Site Assessment means a set of on-site activities
that are less comprehensive than reassessment, to monitor the continued
fulfilment by accredited conformance assessment bodies of requirements
for accreditation, as described in sections 7.5 to 7.11 of ISO/IEC
17011:2004(E) (incorporated by reference, see Sec. 770.99).
Ultra low-emitting formaldehyde resin means a resin in a composite
wood product that meets the emission standards in Sec. 770.18(c).
Veneer means a sheet of wood or woody grass with a maximum
thickness of 6.4 millimeters (\1/4\ inch) that is rotary cut, sliced,
or sawed from a log, bolt, flitch, block, or culm; including engineered
veneer.
Veneer core means a platform for making hardwood plywood or
laminated products that consists of veneer.
Woody grass means a plant of the family Poaceae (formerly
Gramineae) with hard lignified tissues or woody parts.
Sec. 770.4 Exemption from the hardwood plywood definition for
certain laminated products.
(a) Current exemptions. The definition of the term ``hardwood
plywood'' in Sec. 770.3 does not include:
(1) Laminated products made by attaching a wood or woody grass
veneer with a phenol-formaldehyde resin to a platform that has been
manufactured in compliance with this part (including either certified
in accordance with Sec. 770.15, manufactured with no-added
formaldehyde-based resins under Sec. 770.17, or manufactured with
ultra low-emitting formaldehyde-based resins under Sec. 770.18).
(2) Laminated products made by attaching a wood or woody grass
veneer with a resin formulated with no-added formaldehyde as part of
the resin cross-linking structure to a platform that has been
manufactured in compliance with this part (including either certified
in accordance with Sec. 770.15, manufactured with no-added
formaldehyde-based resins under Sec. 770.17, or manufactured with
ultra low-emitting formaldehyde-based resins under Sec. 770.18).
(b) Rulemaking petitions for exemption. (1) Any person may petition
the Agency to initiate a rulemaking for additional exemptions for
laminated products from the definition of the term ``hardwood
plywood,'' pursuant to 15 U.S.C. 2697(a)(3)(C)(i)(I).
(2) Each petition should provide all available and relevant
information, including studies conducted and formaldehyde emissions
data, and should be submitted to: Director, National Program Chemicals
Division, Office of Pollution Prevention and Toxics (MC 7404T), U.S.
Environmental Protection Agency, 1200 Pennsylvania Ave NW., Washington,
DC 20460-001.
(3) EPA will promptly review each submitted petition and, where
appropriate, publish a proposed rule in the Federal Register based on
the petition and provide a public comment period of generally 30 days
before taking a final action.
Sec. 770.5 Prohibited acts.
(a) Failure or refusal to comply with any requirement of TSCA
section 601 (15 U.S.C. 2697) or this part is a violation of TSCA
section 15 (15 U.S.C. 2614).
(b) Failure or refusal to establish and maintain records or to make
available or permit access to or copying of records, as required by
this part, is a violation of TSCA section 15 (15 U.S.C. 2614).
(c) Making false or misleading statements in any statement,
certification, or record required by this part is a violation of TSCA
section 15 (15 U.S.C. 2614).
(d) Violators may be subject to civil and criminal sanctions
pursuant to TSCA section 16 (15 U.S.C. 2615) for each violation.
Subpart B--EPA TSCA Title VI Third-Party Certification Program
Sec. 770.7 Third-party certification.
(a) EPA TSCA Title VI Product ABs. To participate in the EPA TSCA
Title VI Third-Party Certification Program as an EPA TSCA Title VI
Product AB, a Product AB must have the qualifications described in this
section, submit an application and enter into a recognition agreement
with EPA as described in this section, and, upon recognition from EPA,
impartially perform the responsibilities described in this section.
(1) Qualifications. To qualify for recognition by EPA in the EPA
TSCA Title VI Third-Party Certification Program as an EPA TSCA Title VI
Product AB, an applicant Product AB must:
(i) Be a signatory to the International Accreditation Forum, Inc.'s
(IAF) Multilateral Recognition Arrangement (MLA) through level three,
or have membership in one of the IAF recognized regional accreditation
cooperations, or an equivalent organization as determined by EPA;
(ii) Be in conformance with ISO/IEC 17011:2004(E) (incorporated by
reference, see Sec. 770.99); and
(iii) Be competent to perform accreditation activities for product
certification according to ISO/IEC 17065:2012(E) (incorporated by
reference, see Sec. 770.99).
(2) Application. To be recognized by EPA under the EPA TSCA Title
VI Third-Party Certification Program, a Product AB must submit an
application to EPA in accordance with Sec. 770.8 that contains the
following:
(i) Name, address, telephone number, and email address of the
organization or primary contact;
(ii) Documentation of IAF MLA signatory status, membership in one
of the IAF recognized regional accreditation cooperations, or an
equivalent organization as determined by EPA;
(iii) Description of any other qualifications related to the
Product AB's experience in performing product accreditation of TPCs for
manufactured products including an affirmation that assessors will be
technically competent to assess a TPC's ability to perform their
activities under paragraph (c)(4) of this section; and
[[Page 89729]]
(iv) If not a domestic entity, name and address of an agent for
service located in the United States. Service on this agent constitutes
service on the AB or any of its officers or employees for any action by
EPA or otherwise by the United States related to the requirements of
this part. ABs may share an agent for service.
(3) Recognition agreement. To be recognized by EPA under the EPA
TSCA Title VI Third-Party Certification Program, a Product AB must
enter into a recognition agreement with EPA that describes the EPA TSCA
Title VI Product AB's responsibilities under this subpart.
(i) Each recognition agreement will be valid for three years.
(ii) Each recognition agreement will identify an EPA Recognition
Agreement Implementation Officer and an EPA TSCA Title VI Product AB
Implementation Officer that will serve as the point of contact for the
EPA TSCA Title VI Third-Party Certification Program.
(iii) To renew a recognition agreement for an additional three-year
period, the EPA TSCA Title VI Product AB must submit an application for
renewal in accordance with Sec. 770.8 before the three-year period of
the recognition agreement lapses. The application must indicate any
changes from the EPA TSCA Title VI Product AB's initial application or
most recent renewal application.
(iv) If an EPA TSCA Title VI Product AB fails to submit an
application for renewal prior to the expiration of the previous
recognition agreement, its recognition will lapse and the EPA TSCA
Title VI Product AB may not provide accreditation services under TSCA
Title VI.
(v) If an EPA TSCA Title VI Product AB does submit an application
for renewal prior to the expiration of the previous recognition
agreement, it may continue to provide TSCA Title VI accreditation
services under the terms of its previous recognition agreement until
EPA has taken action on its application for renewal of the recognition
agreement.
(4) Impartiality. EPA TSCA Title VI Product ABs must act
impartially when performing activities under the EPA TSCA Title VI
Third-Party Certification Program. To demonstrate impartiality, Product
ABs must:
(i) Ensure that an accreditation decision regarding a TPC is made
by persons different from those who conducted the assessment of the
TPC; and
(ii) Ensure that the AB's personnel who assess TPCs or make
decisions regarding accreditation do not receive financial benefit from
the outcome of an accreditation decision.
(5) Responsibilities. Each EPA TSCA Title VI Product AB has the
following responsibilities under the EPA TSCA Title VI Third-Party
Certification Program:
(i) Accreditation. EPA TSCA Title VI Product ABs must determine the
accreditation eligibility, and accredit if appropriate, each TPC
seeking recognition under the EPA TSCA Title VI Third-Party
Certification Program by performing an assessment of each TPC as
described in this section. The assessment must include all of the
following components:
(A) An on-site assessment by the EPA TSCA Title VI Product AB to
determine whether the TPC meets the requirements of ISO/IEC
17065:2012(E), is in conformance with ISO/IEC 17020:1998(E) as required
under ISO/IEC 17065:2012(E) section 6.2.1 (incorporated by reference,
see Sec. 770.99) and the EPA TSCA Title VI TPC requirements under this
part. In performing the on-site assessment, the EPA TSCA Title VI
Product AB must:
(1) Develop a checklist of the EPA TSCA Title VI TPC requirements
under paragraph (c)(4) of this section and the key accreditation
elements of ISO/IEC 17065:2012(E) (incorporated by reference, see Sec.
770.99); and
(2) Use the checklist for each on-site assessment.
(B) A review of the approach that the TPC will use to verify the
accuracy of the formaldehyde emissions tests conducted by the TPC
laboratory and the formaldehyde quality control tests conducted by or
for the panel producers producing composite wood products that are
subject to the requirements of TSCA Title VI.
(C) A review of the approach that the TPC will use for evaluating a
panel producer's quality assurance and quality control processes, the
proficiency of the panel producer's quality assurance and quality
control personnel, the required elements of a panel producer's quality
assurance and quality control manual, and sufficiency of on-site
testing facilities as applicable.
(D) A review of the approach that the TPC laboratory will use for
establishing correlation or equivalence between ASTM E1333-10 and ASTM
D6007-02, if used, (incorporated by reference, see Sec. 770.99) or
allowable formaldehyde test methods listed under Sec. 770.20.
(E) A review of the approach that the TPC will use for evaluating
the process for sample selection, handling, and shipping procedures
that the panel producer will use for quality control testing as
applicable.
(F) A review of the accreditation credentials of the TPC
laboratory, including a verification that the laboratory has been
accredited to ISO/IEC 17025:2005(E) (incorporated by reference, see
Sec. 770.99) with a scope of accreditation to include this part--
Formaldehyde Standards for Composite Wood Products and the formaldehyde
test methods ASTM E1333-10 and ASTM D6007-02, if used, by an EPA TSCA
Title VI Laboratory AB (incorporated by reference, see Sec. 770.99).
(ii) Reassessment. Each EPA TSCA Title VI Product AB must, in
accordance with ISO/IEC 17011:2004(E) section 7.11 (incorporated by
reference, see Sec. 770.99), conduct an on-site reassessment or
surveillance on-site assessment at least every two years of each EPA
TSCA Title VI TPC that the AB has accredited.
(iii) Suspension, reduction, withdrawal. Each EPA TSCA Title VI
Product AB must suspend, reduce, or withdraw the accreditation of an
EPA TSCA Title VI TPC that the AB has accredited when circumstances
warrant.
(iv) Notifications. Each EPA TSCA Title VI Product AB must provide,
in accordance with Sec. 770.8, the following notifications to EPA, as
applicable:
(A) Notification of the loss of its status as a signatory to the
IAF MLA, or loss of membership in one of the IAF recognized regional
accreditation cooperations, or an equivalent organization as determined
by EPA must be provided within five calendar days of the date that the
body receives notification of the loss of its signatory or membership
status.
(B) Notification that an EPA TSCA Title VI TPC has failed to comply
with any provision of this part must be provided within 72 hours of the
time the Product AB identifies the deficiency. The notice must include
a description of the steps taken to address the deficiency.
(C) Notification of suspension, reduction or withdrawal of an EPA
TSCA Title VI TPC's accreditation must be provided within 72 hours of
the time that the suspension, reduction or withdrawal takes effect.
(D) Notification of a change in a non-domestic Product AB's agent
for service must be provided within five calendar days.
(v) Records. Each EPA TSCA Title VI Product AB must maintain, in
electronic form, the checklists and other records documenting
compliance with the requirements for assessment, reassessment, and
surveillance on-site
[[Page 89730]]
assessments of EPA TSCA Title VI TPCs for three years.
(vi) Annual report. Each EPA TSCA Title VI Product AB must provide,
in accordance with Sec. 770.8, an annual report on or before March 1st
of each year for the AB services performed during the previous calendar
year including the number and locations of assessment, reassessment,
and surveillance on-site assessments performed for each EPA TSCA Title
VI TPC.
(vii) EPA meetings. Each EPA TSCA Title VI Product AB must meet
with EPA at least once every two years in person, via teleconference,
or through other virtual methods to discuss the implementation of the
EPA TSCA Title VI Third-Party Certification Program.
(viii) Inspections. Each EPA TSCA Title VI Product AB must allow
inspections of the AB's facilities by EPA, at reasonable times, within
reasonable limits, and in a reasonable manner, upon the presentation of
appropriate credentials and a written notification to the AB.
(b) EPA TSCA Title VI Laboratory ABs. To participate in the EPA
TSCA Title VI Third-Party Certification Program as an EPA TSCA Title VI
Laboratory AB, a Laboratory AB must have the qualifications described
in this section, submit an application and enter into a recognition
agreement with EPA as described in this section, and, upon recognition
from EPA, impartially perform the responsibilities described in this
section.
(1) Qualifications. To qualify for recognition by EPA under the EPA
TSCA Title VI Third-Party Certification Program as an EPA TSCA Title VI
Laboratory AB, an applicant Laboratory AB must:
(i) Be a signatory to the International Laboratory Accreditation
Cooperation (ILAC) Mutual Recognition Arrangement (MRA), or have
membership in one of the ILAC recognized regional accreditation
cooperations, or an equivalent organization as determined by EPA;
(ii) Be in conformance with ISO/IEC 17011:2004(E) (incorporated by
reference, see Sec. 770.99);
(iii) Be competent to perform accreditation activities for
laboratory accreditation according to ISO/IEC 17025:2005(E)
(incorporated by reference, see Sec. 770.99); and
(iv) Be competent to ensure EPA TSCA Title VI TPC inspection
activities are in conformance with ISO/IEC 17020:1998(E) (incorporated
by reference, see Sec. 770.99).
(2) Application. To be recognized by EPA under the EPA TSCA Title
VI Third-Party Certification Program, a Laboratory AB must submit an
application to EPA, which may be submitted in conjunction with a
Product AB application. For recognition, a Laboratory AB must submit an
application in accordance with Sec. 770.8 that contains the following:
(i) Name, address, telephone number, and email address of the
organization or primary contact;
(ii) Documentation of ILAC MRA signatory status, membership in one
of the ILAC recognized regional accreditation cooperations, or an
equivalent organization as determined by EPA;
(iii) Description of any other qualifications related to the
Laboratory AB's experience in performing laboratory accreditation and
inspection certification of TPCs including an affirmation that
assessors will be technically competent to assess TPCs ability to
perform their activities under paragraph (c)(4) of this section; and
(iv) If not a domestic entity, name and address of an agent for
service located in the United States. Service on this agent constitutes
service on the AB or any of its officers or employees for any action by
EPA or otherwise by the United States related to the requirements of
this part. ABs may share an agent for service.
(3) Recognition agreement. To be recognized by EPA under the EPA
TSCA Title VI Third-Party Certification Program, a Laboratory AB must
enter into a recognition agreement with EPA that describes the EPA TSCA
Title VI Laboratory AB's responsibilities under this subpart.
(i) Each recognition agreement will be valid for three years.
(ii) Each recognition agreement will identify an EPA Recognition
Agreement Implementation Officer and an EPA TSCA Title VI Laboratory AB
Implementation Officer that will serve as the point of contact for the
EPA TSCA Title VI Third-Party Certification Program.
(iii) To renew a recognition agreement for an additional three-year
period, the EPA TSCA Title VI Laboratory AB must submit an application
for renewal in accordance with Sec. 770.8 before the three-year period
of the recognition agreement lapses. The application must indicate any
changes from the EPA TSCA Title VI Laboratory AB's initial application
or most recent renewal application.
(iv) If an EPA TSCA Title VI Laboratory AB fails to submit an
application for renewal prior to the expiration of the previous
recognition agreement, its recognition will lapse and the EPA TSCA
Title VI Laboratory AB may not provide accreditation services under
TSCA Title VI.
(v) If an EPA TSCA Title VI Laboratory AB does submit an
application for renewal prior to the expiration of the previous
recognition agreement, it may continue to provide TSCA Title VI
accreditation services under the terms of its previous recognition
agreement until EPA has taken action on its application for renewal of
the recognition agreement.
(4) Impartiality. EPA TSCA Title VI Laboratory ABs must act
impartially when performing activities under the EPA TSCA Title VI
Third-Party Certification Program. To demonstrate impartiality,
Laboratory ABs must:
(i) Ensure that an accreditation decision regarding a TPC is made
by persons different from those who conducted the assessment of the
TPC; and
(ii) Ensure that the AB's personnel who assess TPCs or make
decisions regarding accreditation do not receive financial benefit from
the outcome of an accreditation decision.
(5) Responsibilities. Each EPA TSCA Title VI Laboratory AB has the
following responsibilities under the EPA TSCA Title VI Third-Party
Certification Program:
(i) Accreditation. EPA TSCA Title VI Laboratory ABs must determine
the accreditation eligibility, and accredit if appropriate, each TPC
seeking recognition under the EPA TSCA Title VI Third-Party
Certification Program by performing an assessment of each TPC. The
assessment must include an on-site assessment by the EPA TSCA Title VI
Laboratory AB to determine whether the laboratory meets the
requirements of ISO/IEC 17025:2005(E) (incorporated by reference, see
Sec. 770.99), is in conformance with ISO/IEC 17020:1998(E)
(incorporated by reference, see Sec. 770.99) and the EPA TSCA Title VI
TPC requirements under this part including the formaldehyde test
methods ASTM E1333-10 and ASTM D6007-02 (incorporated by reference, see
Sec. 770.99), if used. In performing the on-site assessment, the EPA
TSCA Title VI Laboratory AB must:
(A) Develop a checklist of the TPC requirements under paragraph
(c)(4) of this section and the key conformity elements of ISO/IEC
17025:2005(E) (incorporated by reference, see Sec. 770.99); and
(B) Use the checklist for each on-site assessment.
(ii) Reassessment. Each EPA TSCA Title VI Laboratory AB must, in
accordance with ISO/IEC 17011:2004(E) section 7.11 (incorporated by
reference,
[[Page 89731]]
see Sec. 770.99), conduct a follow-up reassessment or surveillance on-
site assessment of each TPC laboratory that the AB has accredited.
(iii) Proficiency. Each EPA TSCA Title VI Laboratory AB must verify
the accuracy of the formaldehyde emissions tests conducted by the TPC
laboratory by ensuring the TPC laboratory participates in the CARB
interlaboratory comparison for formaldehyde emissions when offered. In
lieu of participation in the CARB interlaboratory comparison ensure
that the TPC laboratory participates in an EPA-recognized proficiency
testing program, if available.
(iv) Suspension, reduction, withdrawal. Each EPA TSCA Title VI
Laboratory AB must suspend, reduce, or withdraw the accreditation of a
TPC laboratory that the AB has accredited when circumstances warrant.
(v) Notifications. Each EPA TSCA Title VI Laboratory AB must
provide, in accordance with Sec. 770.8, the following notifications to
EPA as applicable:
(A) Notification of the loss of its status as a signatory to the
ILAC MRA, or loss of membership in one of the ILAC recognized regional
accreditation cooperations, or an equivalent organization as determined
by EPA, within five calendar days of the date that the body receives
notice of the loss of its signatory or membership status.
(B) Notification that a TPC laboratory has failed to comply with
any provision of this part within 72 hours of the time the Laboratory
AB identifies the deficiency. The notice must include a description of
the steps taken to address the deficiency.
(C) Notification of suspension, reduction or withdrawal of a TPC
laboratory's accreditation within 72 hours of the time that the
suspension, reduction or withdrawal takes effect.
(D) Notification of a change in a non-domestic Laboratory AB's
agent for service within five calendar days.
(vi) Records. Each EPA TSCA Title VI Laboratory AB must maintain,
in electronic form, the checklists and other records documenting
compliance with the requirements for assessment, reassessment, and
surveillance on-site assessments of TPC laboratories for three years.
(vii) Annual report. Each EPA TSCA Title VI Laboratory AB must
provide, in accordance with Sec. 770.8, an annual report to EPA on or
before March 1st of each year for AB services performed during the
previous calendar year including the number and locations of
assessment, reassessment, and surveillance on-site assessments
performed for each TPC laboratory.
(viii) EPA meetings. Each EPA TSCA Title VI Laboratory AB must meet
with EPA at least once every two years in person, via teleconference,
or through other virtual methods to discuss the implementation of the
EPA TSCA Title VI Third-Party Certification Program.
(ix) Inspections. Each EPA TSCA Title VI Laboratory AB must allow
inspections of the AB's facilities by EPA, at reasonable times, within
reasonable limits, and in a reasonable manner, upon the presentation of
appropriate credentials and a written notification to the AB.
(c) EPA TSCA Title VI Third-Party Certifiers. To participate in the
EPA TSCA Title VI Third-Party Certification Program as an EPA TSCA
Title VI TPC, a TPC must be accredited by an EPA TSCA Title VI Product
AB, use a laboratory that is accredited by an EPA TSCA Title VI
Laboratory AB, have the other qualifications described in this
subsection, submit an application and be recognized by EPA, and, upon
recognition from EPA, impartially perform the responsibilities
described in this section. Alternatively, CARB-approved TPCs must meet
the criteria for reciprocity in paragraph (d) of this section and
comply with the requirements of this part in order to be recognized by
EPA as an EPA TSCA Title VI TPC.
(1) Qualifications. To qualify for recognition by EPA in the EPA
TSCA Title VI Third-Party Certification Program as an EPA TSCA Title VI
TPC, an applicant TPC must:
(i) Be accredited by an EPA TSCA Title VI Product AB to ISO/IEC
17065:2012(E) (incorporated by reference, see Sec. 770.99), with a
scope of accreditation that includes include composite wood products
and this part--Formaldehyde Standards for Composite Wood Products;
(ii) Be, or have a contract with a laboratory that is, accredited
by an EPA TSCA Title VI Laboratory AB to ISO/IEC 17025:2005(E)
(incorporated by reference, see Sec. 770.99) with a scope of
accreditation to include this part--Formaldehyde Standards for
Composite Wood Products and the formaldehyde test methods ASTM E1333-10
and ASTM D6007-02, if used (incorporated by reference, see Sec.
770.99);
(iii) Have the ability to conduct inspections of composite wood
products and properly train and supervise inspectors to inspect
composite wood products in conformance with ISO/IEC 17020:1998(E) as
required under ISO/IEC 17065:2012(E) section 6.2.1 (incorporated by
reference, see Sec. 770.99);
(iv) Have demonstrated experience in the composite wood product
industry with at least one type of composite wood product and indicated
the specific product(s) the applicant intends to certify; and
(v) Have demonstrated experience in performing or verifying
formaldehyde emissions testing on composite wood products, including
experience with test method ASTM E1333-10 and ASTM D6007-02, if used,
(incorporated by reference, see Sec. 770.99), and experience
evaluating correlation between test methods. Applicant TPCs that have
demonstrated experience with test method ASTM D6007-02 only, must be
contracting testing with a laboratory that has a large chamber and
demonstrate its experience with ASTM E1333-10.
(2) Application. Before certifying any products under this part, a
TPC must be recognized by EPA under the EPA TSCA Title VI Third-Party
Certification Program. To be recognized by EPA, a TPC must submit an
application in accordance with Sec. 770.8 and renew that application
every two years. The application must contain the following:
(i) Email address of the organization or primary contact,
organization name, organization telephone number, and organization
address;
(ii) Type of composite wood products that the applicant intends to
certify;
(iii) A copy of the TPC's certificate of accreditation from an EPA
TSCA Title VI Product AB to ISO/IEC 17065:2012(E) (incorporated by
reference, see Sec. 770.99) with a scope of accreditation that
includes composite wood products and this part--Formaldehyde Standards
for Composite Wood Products;
(iv) A copy of the TPC laboratory's certificate of accreditation
from an EPA TSCA Title VI Laboratory AB to ISO/IEC 17025:2005(E)
(incorporated by reference, see Sec. 770.99) with a scope of
accreditation to include this part--Formaldehyde Standards for
Composite Wood Products and the formaldehyde test methods ASTM E1333-10
and ASTM D6007-02 (incorporated by reference, see Sec. 770.99), if
used;
(v) An affirmation of the TPC's ability to conduct inspections of
composite wood products and properly train and supervise inspectors to
inspect composite wood products in conformance with ISO/IEC
17020:1998(E) as required under ISO/IEC 17065:2012(E) section 6.2.1
(incorporated by reference, see Sec. 770.99);
(vi) A description of the TPC's experience in the composite wood
product industry with at least one type of composite wood product and
indicate
[[Page 89732]]
the specific product(s) the applicant intends to certify;
(vii) A description of the TPC's experience in performing or
verifying formaldehyde emissions testing on composite wood products;
(viii) A description of the TPC's experience with test method ASTM
E1333-10 and/or ASTM D6007-02, if used, (incorporated by reference, see
Sec. 770.99), and experience evaluating correlation between test
methods. Applicant TPCs that have experience with test method ASTM
D6007-02 only, must be contracting testing with a laboratory that has a
large chamber and describe its experience with ASTM E1333-10; and
(ix) If not a domestic entity, the name and address of an agent for
service located in the United States. Service on this agent constitutes
service on the TPC or any of its officers or employees for any action
by EPA or otherwise by the United States related to the requirements of
this part. TPCs may share an agent for service.
(3) Impartiality. EPA TSCA Title VI TPCs must act impartially in
accordance with their accreditation when performing activities under
the EPA TSCA Title VI Third-Party Certification Program. To demonstrate
impartiality, TPCs must:
(i) Not also be, or have a financial interest in a panel producer,
fabricator, laminated product producer, importer, designer, distributor
or retailer of composite wood products;
(ii) Ensure that TPC management personnel and TPC personnel
involved in the review and certification decision-making process for
composite wood products are not involved in activities within the same
or separate legal entity that may compromise the impartiality of its
certification decision-making process, such as advocacy or consulting
activities;
(iii) Ensure that TPC management personnel and TPC personnel of the
same or separate legal entity involved in activities such as advocacy
or consulting are not involved in the management of the certification
body, the review, or the certification decisions; and
(iv) Ensure that TPC management personnel and TPC personnel
certifying composite wood products sign a conflict of interest
statement attesting that they will receive no financial benefit from
the outcome of certification.
(4) Responsibilities. Each EPA TSCA Title VI TPC has the following
responsibilities under the EPA TSCA Title VI Third-Party Certification
Program:
(i) Certification. EPA TSCA Title VI TPCs certify composite wood
products that are produced in accordance with this part and that comply
with the emission standards of TSCA Title VI and this part, in
accordance with ISO/IEC 17065:2012(E) (incorporated by reference, see
Sec. 770.99). For each panel producer making composite wood products
certified by the TPC, the EPA TSCA Title VI TPC must:
(A) Verify that each panel producer has adequate quality assurance
and quality control procedures and is complying with the applicable
quality assurance and quality control requirements of this part;
(B) Verify each panel producer's quality control test results
compared with test results from ASTM E1333-10 and ASTM D6007-02, if
used, (incorporated by reference, see Sec. 770.99) by having the TPC
laboratory conduct quarterly tests and evaluate test method equivalence
and correlation as required under Sec. 770.20;
(C) In consultation with the panel producer, establish quality
control limits (QCLs) for formaldehyde emissions, and, if applicable,
shipping quality control limits or other formaldehyde emission limits,
for each panel producer and product type;
(D) Establish, for each panel producer, the process that will be
used to determine if products are exceeding the applicable QCL;
(E) Provide its CARB or EPA TPC number to each panel producer for
labeling and recordkeeping; and
(F) Inspect each panel producer, its products, and its records at
least quarterly in conformance with ISO/IEC 17020:1998(E) as required
under ISO/IEC 17065:2012(E) section 6.2.1 (incorporated by reference,
see Sec. 770.99).
(ii) Laboratories. For quarterly testing, each EPA TSCA Title VI
TPC must use only laboratories that have been accredited by an EPA TSCA
Title VI Laboratory AB and that either participate in the CARB
interlaboratory comparison for formaldehyde emissions when offered or
in an EPA-recognized proficiency or interlaboratory program, if
available.
(iii) NAF and ULEF. For panel producers that do not receive
approval for NAF or ULEF third-party certification exemptions or ULEF
reduced testing from CARB, EPA TSCA Title VI TPCs must review
applications for NAF or ULEF third-party certification exemptions or
ULEF reduced testing. Each EPA TSCA Title VI TPC must approve these
applications within 90 calendar days of receipt if the panel producer
demonstrates that the requirements for third-party certification
exemption under Sec. 770.17 or Sec. 770.18 or reduced testing under
Sec. 770.18 are met.
(iv) Reduced testing for medium-density fiberboard or fiberboard.
EPA TSCA Title VI TPCs must review applications from panel producers to
reduce the number of quality control tests for particleboard and
medium-density fiberboard, and approve these applications within 90
calendar days of receipt if the panel producer demonstrates that the
requirements for reduced testing under Sec. 770.20(b)(2)(ii) are met.
(v) Notifications to EPA. Each EPA TSCA Title VI TPC must provide,
in accordance with Sec. 770.8, the following notifications to EPA, as
applicable:
(A) Notification of an approved or rejected application, including
a renewal application, for a NAF or ULEF third-party certification
exemption or ULEF reduced testing within five calendar days of the
approval or rejection with copies of all approved applications
forwarded to EPA within 30 calendar days of approval.
(B) Notification of an approved or rejected application, including
a renewal application, for reduced testing for medium-density
fiberboard or particleboard within five calendar days of the approval
or rejection with copies of all approved applications forwarded to EPA
within 30 calendar days of approval.
(C) Notification of a panel producer exceeding its established QCL
for more than two consecutive quality control tests within 72 hours of
the time that the TPC becomes aware of the second exceedance. The
notice must include the product type, dates of the quality control
tests that exceeded the QCL, quality control test results, ASTM E1333-
10 (incorporated by reference, see Sec. 770.99) correlative equivalent
values, the established QCL value(s) and the quality control method
used.
(D) Notification of each failed quarterly test, that is any sample
that exceeds the applicable formaldehyde emission standard in Sec.
770.10, within 72 hours. Information in this notification is not
eligible for treatment as confidential business information.
(E) Notification of a change in a non-domestic TPC's agent for
service within five calendar days.
(F) Notification of a loss of accreditation or notification that
the TPC has discontinued its participation in the EPA TSCA Title VI
Third-Party Certification Program must be provided within 72 hours.
[[Page 89733]]
(vi) Other notifications. Each EPA TSCA Title VI TPC must provide
the following notifications, if applicable:
(A) Notification of each failed quarterly test, that is any sample
that exceeds the applicable formaldehyde emission standard in Sec.
770.10, to the panel producer in writing within 72 hours. Information
in this notification is not eligible for treatment as confidential
business information.
(B) Notification of a loss of accreditation or notification that
the TPC has discontinued its participation in the EPA TSCA Title VI
Third-Party Certification Program within 72 hours to all panel
producers for which it provides EPA TSCA Title VI certification
services.
(C) Notification of any changes in personnel qualifications,
procedures, or laboratories used, to the TPC's EPA TSCA Title VI ABs
within 30 calendar days.
(vii) Records. Each EPA TSCA Title VI TPC must maintain, in
electronic form, the following records for three years from the date
the record is created, and provide them to EPA within 30 calendar days
of a request from EPA:
(A) A list of panel producers and their respective products and
product types, including type of resin systems used, that the EPA TSCA
Title VI TPC has certified;
(B) Results of inspections and formaldehyde emissions tests
conducted for and linked to each panel producer and product type;
(C) A list of laboratories used by the EPA TSCA Title VI TPC, as
well as all test methods used, including test conditions and
conditioning time, and quarterly test results;
(D) Methods and results for establishing test method correlations
and equivalence;
(E) Documentation for NAF or ULEF third-party certification
exemptions or ULEF reduced testing approvals, including the name of the
panel producer, facility, products approved, type of resin systems used
and dates of approval;
(F) Documentation of reduced testing approval for panel producers
of medium-density fiberboard or particleboard, including the name of
the panel producer, products approved and dates of approval; and
(G) A copy of the most recent assessment, reassessment, and/or
surveillance on-site assessment report provided by its EPA TSCA Title
VI ABs.
(viii) Annual report. Each EPA TSCA Title VI TPC must provide, in
accordance with Sec. 770.8, an annual report on or before March 1st of
each year for the TPC services performed during the previous calendar
year. Quarterly test results, the test method, date of test, and
product tested (including the product name or description and panel
producer name) are not eligible for treatment as confidential business
information. The report must contain all of the following elements, as
applicable:
(A) The following information for each panel producer making
composite wood products certified by the TPC, the EPA TSCA Title VI
TPC:
(1) Composite wood products that the EPA TSCA Title VI TPC has
certified during the previous calendar year;
(2) Types of resin systems used for the composite wood products
certified;
(3) Dates of quarterly inspections;
(4) For each quarterly test, the date, result, test method, and
whether a contract laboratory was used;
(5) For each failed quarterly test, the product type, the volume of
product affected, the results of recertification testing, and a
description of the final disposition of the affected product, including
how the non-complying lot was addressed;
(6) For each non-complying lot resulting from a failed quality
control test, the test date, method, product type, volume of product
affected, lot numbers, the results of retesting, and a description of
the final disposition of the affected product, including how the non-
complying lot was addressed; and
(7) Any corrective actions that resulted from quarterly tests and
inspections.
(B) A list of laboratories and test methods used by the TPC, number
and volume (cubic meters) of large and small chambers, date of
equivalence determination and equivalence data.
(C) Any non-conformities identified by its EPA TSCA Title VI AB(s)
and how they were addressed.
(D) The results compared with the mean of the interlaboratory
comparison for all formaldehyde emissions interlaboratory comparison
tests other than the CARB interlaboratory comparison or, if available,
the results of an EPA-recognized proficiency testing program.
(ix) Assessments and inspections. Upon request, each EPA TSCA Title
VI TPC must allow EPA representatives to:
(A) Accompany the TPC's staff during an assessment, reassessment or
surveillance on-site assessment of the TPC by its AB(s); and
(B) Inspect the TPC's facilities, at reasonable times, within
reasonable limits, and in a reasonable manner, upon the presentation of
appropriate credentials and a written notification to the TPC.
(d) Reciprocity for third-party certifiers approved by the
California Air Resources Board (CARB)--(1) During transitional period.
The transitional period is defined as the two-year period beginning on
December 12, 2016 and ending on December 12, 2018. TPCs already
approved by CARB and TPCs subsequently approved by CARB during the
transition period must apply for EPA recognition in accordance with
Sec. 770.8 before they can certify any products under this part. Once
recognized by EPA, CARB-approved TPCs become EPA TSCA Title VI TPCs and
may certify composite wood products under TSCA Title VI until December
12, 2018 as long as they:
(i) Remain approved by CARB; and
(ii) Comply with all aspects of this part other than the
requirements of paragraphs (c)(1)(i) and (ii) and (c)(2)(iii) and (iv)
of this section. This includes:
(A) Provide panel producers with the TPC number issued by CARB; and
(B) Provide the annual report required by paragraph (c)(4)(viii) of
this section to CARB and EPA during the two-year transitional period.
(C) Provide notifications required by paragraph (c)(4)(v) to EPA.
(2) After transition period. (i) TPCs approved by CARB may continue
to certify composite wood products under TSCA Title VI after the two-
year transitional period if the TPC:
(A) Maintains its CARB approval;
(B) Complies with the requirements of this part;
(C) Submits to EPA, in accordance with Sec. 770.8:
(1) Documentation from CARB that specifies eligibility for
reciprocity; and
(2) A copy of the application submitted to CARB to be recognized as
a TPC under the CARB ATCM.
(D) Receives EPA recognition as an EPA TSCA Title VI TPC.
(ii) EPA retains the authority to deny recognition of CARB-approved
TPCs who seek recognition through reciprocity in the EPA TSCA Title VI
Third-Party Certification Program if EPA has information indicating
that the TPC is not qualified.
(e) Suspension, revocation or modification of recognition--(1)
Third-party certifiers. EPA may suspend, revoke or modify the
recognition of a TPC, if the TPC:
(i) Fails to comply with any requirement of TSCA Title VI or this
part;
(ii) Makes any false or misleading statements on its application,
records, or reports; or
(iii) Makes substantial changes to personnel qualifications,
procedures, or laboratories that make the TPC or TPC
[[Page 89734]]
laboratory unable to comply with any applicable requirements of this
part.
(2) ABs. EPA may suspend, revoke or modify the recognition of an AB
if the AB:
(i) No longer maintains signatory status to the IAF MLA or ILAC
MRA, membership in one of the IAF/ILAC recognized regional
accreditation cooperations, or an equivalent organization as determined
by EPA;
(ii) Fails to comply with any requirement of TSCA Title VI or this
part;
(iii) Makes any false or misleading statements on its application,
records, or reports; or
(iv) Makes substantial changes to personnel qualifications or
procedures that make the AB, TPC and/or TPC laboratory unable to comply
with any applicable requirements of this part.
(3) Process for suspending, revoking or modifying recognition. (i)
Prior to taking action to suspend, revoke or modify recognition, EPA
will notify the participant AB or the participant TPC in writing of the
following:
(A) The legal and factual basis for the proposed suspension,
revocation or modification;
(B) The anticipated commencement date and duration of the
suspension, revocation or modification;
(C) Actions, if any, which the affected AB or TPC may take to avoid
suspension, revocation or modification, or to receive recognition in
the future; and
(D) The opportunity and method for requesting a hearing with EPA
prior to final suspension, revocation or modification.
(ii) If the affected AB or TPC requests a hearing in writing to EPA
within 30 calendar days of receipt of the notification, EPA will:
(A) Provide the affected AB or TPC an opportunity to offer written
statements in response to EPA's assertions of the legal and factual
basis for the proposed action; and
(B) Appoint an impartial EPA official as Presiding Officer to
conduct the hearing. The Presiding Officer will:
(1) Conduct a fair, orderly, and impartial hearing within 90
calendar days of the request for a hearing;
(2) Consider all relevant evidence, explanations, comments, and
arguments submitted; and
(3) Notify the affected AB or TPC in writing within calendar 90
days of completion of the hearing of his or her decision and order.
Such an order is a final EPA action which may be subject to judicial
review. The order must contain the basis, commencement date, and
duration of the suspension, revocation or modification.
(iii) If EPA determines that the public health, interest, or
welfare warrants immediate action to revoke the recognition of an AB or
TPC prior to the opportunity for a hearing, it will notify the affected
AB or TPC of its right to request a hearing on the immediate revocation
within 15 calendar days of the revocation taking place and the
procedures for the conduct of such a hearing.
(iv) Any notification, decision, or order issued by EPA under this
section, any transcript or other verbatim record of oral testimony, and
any documents filed by a certified individual or firm in a hearing
under this section will be available to the public, except as otherwise
provided by TSCA section 14. Any such hearing at which oral testimony
is presented will be open to the public, except that the Presiding
Officer may exclude the public to the extent necessary to allow
presentation of information which may be entitled to confidential
treatment under TSCA section 14.
(v) EPA will maintain a publicly available list of ABs on its Web
site whose recognition has been suspended, revoked or modified, or
reinstated and a publicly available list of TPCs whose recognition has
been suspended, revoked, modified, or reinstated.
(vi) Unless the decision and order issued under paragraph (e)(3) of
this section specify otherwise, an AB or a TPC whose recognition has
been revoked must reapply for recognition in order to become recognized
under this part again.
(vii) Unless the decision and order issued under paragraph (e)(3)
of this section specify otherwise, an AB whose recognition has been
revoked or a TPC whose recognition has been revoked, must immediately
notify all TPCs or panel producers to which it provides TSCA Title VI
accreditation or certification services of the revocation.
(f) Effect of the loss of recognition or accreditation. (1) If an
AB is removed or withdraws from the EPA TSCA Title VI Third-Party
Certification Program:
(i) For reasons other than fraud or providing false or misleading
statements, and other than a reason that implicates a particular TPC in
a violation of TSCA Title VI, TPCs accredited by that AB can continue
to certify products under TSCA Title VI for 180 calendar days, after
which the TPCs must be accredited again by another EPA TSCA Title VI AB
and re-recognized by EPA.
(ii) Due to fraud or providing false or misleading statements with
respect to a particular TPC, or for any other reason that implicates a
particular TPC in a violation of TSCA Title VI, that TPC may not
provide any TSCA Title VI certification services until it has been
accredited again by another EPA TSCA Title VI AB and re-recognized by
EPA.
(2) If a TPC loses its accreditation, or if TPC is removed or
withdraws from the EPA TSCA Title VI Third-Party Certification Program:
(i) For reasons other than fraud or providing false or misleading
statements, and other than a reason that implicates a particular panel
producer in a violation of TSCA Title VI, the panel producers that used
the TPC to certify their products must enlist another EPA TSCA Title VI
TPC to certify their products within 90 calendar days. If the panel
producer is not able to obtain the services of another EPA TSCA Title
VI TPC within 90 days, the panel producer may request from EPA a 90
calendar day extension. During the time a panel producer is seeking a
new TPC, it must continue to comply with all other requirements of TSCA
Title VI, including quality control testing.
(ii) Due to fraud or providing false or misleading statements with
respect to a particular panel producer, or for any other reason that
implicates a particular panel producer in a violation of TSCA Title VI,
that panel producer may not sell, supply, offer for sale, or
manufacture composite wood products for sale in the United States until
its composite wood products have been recertified by another EPA TSCA
Title VI TPC.
(g) Process for denying EPA TSCA Title VI recognition. (1) Upon EPA
denying a request for recognition of an AB or TPC, EPA will notify the
AB or TPC in writing of the following:
(i) The legal and factual basis for the denial; and
(ii) Actions, if any, which the affected AB or TPC may take to
receive recognition in the future.
(2) [Reserved]
Sec. 770.8 Applications, notifications, and reports.
(a) All applications, notifications, and reports that are required
to be submitted to EPA under this subpart must be submitted via the EPA
Central Data Exchange (CDX) found at https://cdx.epa.gov.
(b) If the EPA CDX is unavailable, EPA will so inform EPA TSCA
Title VI ABs and TPCs and will make electronic applications and
reporting forms available online at http://www.epa.gov/formaldehyde.
(c)(1) Persons submitting a notice under this rule are subject to
EPA confidentiality regulations at 40 CFR part 2, subpart B, except
that the
[[Page 89735]]
certification in paragraph (c)(2) of this section must also be provided
when asserting a claim of confidentiality.
(2) In submitting a claim of confidentiality, a person must certify
the truth of the following four statements concerning all information
which is claimed as confidential:
(i) My company has taken measures to protect the confidentiality of
the information.
(ii) I have determined that the information is not required to be
disclosed or otherwise made available to the public under any other
Federal law.
(iii) I have a reasonable basis to conclude that disclosure of the
information is likely to cause substantial harm to the competitive
position of the person.
(iv) I have a reasonable basis to believe that the information is
not readily discoverable through reverse engineering.
Subpart C--Composite Wood Products
Sec. 770.10 Formaldehyde emission standards.
(a) Except as otherwise provided in this part, the emission
standards in this section apply to composite wood products sold,
supplied, offered for sale, or manufactured (including imported) on or
after December 12, 2017 in the United States. These emission standards
apply regardless of whether the composite wood product is in the form
of a panel, a component part, or incorporated into a finished good.
(b) The emission standards are based on test method ASTM E1333-10
(incorporated by reference, see Sec. 770.99), and are as follows:
(1) For hardwood plywood made with a veneer core or a composite
core, 0.05 parts per million (ppm) of formaldehyde.
(2) For medium-density fiberboard, 0.11 ppm of formaldehyde.
(3) For thin medium-density fiberboard, 0.13 ppm of formaldehyde.
(4) For particleboard, 0.09 ppm of formaldehyde.
Sec. 770.12 Stockpiling.
(a) The sale of stockpiled inventory of composite wood products,
whether in the form of panels or incorporated into component parts or
finished goods, is prohibited after December 12, 2017.
(b) To determine whether stockpiling has occurred, the rate of
manufacture or purchase is measured as follows:
(1) For composite wood products in the form of panels, the rate is
measured in terms of square footage of panels produced.
(2) For composite wood products incorporated into component parts
or finished goods, the rate is measured in terms of the square footage
of composite wood product panels purchased for the purpose of
incorporating them into component parts or finished goods.
(c) Manufacturers or purchasers who have, in an annual year, a
greater than 20% increase in manufacturing or purchasing composite wood
products relative to annual year 2009 for some reason other than
circumventing the emission standards would not be in violation of this
section. Such reasons may include, but are not limited to:
(1) A quantifiable immediate increase in customer demand or sales.
(2) A documented and planned business expansion.
(3) The manufacturer or purchaser was not in business at the
beginning of calendar year 2009.
(4) An increase in production to meet increased demand resulting
from an emergency event or natural disaster.
(d) In order to be found to be stockpiling an entity must be
increasing the rate of manufacturing or purchasing for the purpose of
circumventing the emission standards.
Sec. 770.15 Composite wood product certification.
(a) After December 12, 2017, only certified composite wood
products, whether in the form of panels or incorporated into component
parts or finished goods, are permitted to be sold, supplied, offered
for sale, or manufactured (including imported) in the United States,
unless the product is specifically exempted by this part.
(b) Certified composite wood products are those that are produced
or fabricated in accordance with all of the provisions of this part.
(c) To obtain product certification, a panel producer must apply to
an EPA TSCA Title VI TPC.
(1) For panel producers that do not have any previous product
certifications from a CARB-approved TPC or an EPA TSCA Title VI TPC,
the application must contain the following:
(i) The panel producer's name, address, telephone number, and other
contact information;
(ii) A copy of the panel producer's quality control manual as
required by Sec. 770.21(a);
(iii) Name and contact information for the panel producer's quality
control manager;
(iv) An identification of the specific products for which
certification is requested, and the resin system used in panel
production;
(v) At least five tests conducted under the supervision of an EPA
TSCA Title VI TPC pursuant to test method ASTM E1333-10 or ASTM D6007-
02 (incorporated by reference, see Sec. 770.99). Test results obtained
by ASTM D6007-02 must include a showing of equivalence in accordance
with Sec. 770.20(d)(1);
(vi) At least five quality control tests conducted in accordance
with Sec. 770.20(b)(1);
(vii) Linear regression equation and correlation data; and
(viii) Results of an initial, on-site inspection by the TPC of the
panel producer.
(2) For panel producers applying for certification of a new product
type but that have previous product certifications from a CARB-approved
TPC or an EPA TSCA Title VI TPC, the application must contain the
following:
(i) The panel producer's name, address, and telephone number;
(ii) An identification of the specific products for which
certification is requested, and the resin system used in panel
production;
(iii) At least five tests conducted under the supervision of an EPA
TSCA Title VI TPC pursuant to test method ASTM E1333-10 or ASTM D6007-
02 (incorporated by reference, see Sec. 770.99). Test results obtained
by ASTM D6007- 02 must include a showing of equivalence in accordance
with Sec. 770.20(d)(1);
(iv) At least five quality control tests conducted in accordance
with Sec. 770.20(b)(1);
(v) Linear regression equation and correlation data; and
(vi) Description of any changes in the panel producer's quality
control manual and a copy of those changes.
(d) The EPA TSCA Title VI TPC must act on a panel producer's
complete application within 90 calendar days of receipt by reviewing
all of the components of the application.
(1) If the application indicates that the candidate product
achieves the applicable emission standards described in Sec. 770.10,
adequate correlation as described in Sec. 770.20(d)(2), and that the
panel producer is meeting the requirements in Sec. 770.21, the EPA
TSCA Title VI TPC will approve the application.
(2) If the application is from a panel producer that did not
previously have products certified by a CARB-approved TPC or an EPA
TSCA Title VI TPC, the EPA TSCA Title VI TPC will review the quality
control manual and results of the on-site initial inspection and
approve or disapprove the quality control manual.
(3) If the application does not demonstrate that the candidate
product achieves the applicable emission
[[Page 89736]]
standards described in Sec. 770.10, the EPA TSCA Title VI TPC will
disapprove the application. A new application may be submitted for the
candidate product at any time.
(e) If a product is certified by a CARB-approved TPC, it will also
be considered certified under TSCA Title VI until December 12, 2018
after which the TPC needs to receive recognition as an EPA TSCA Title
VI TPC under Sec. 770.7(d) in order for the product to remain
certified.
(f) To maintain certification, the panel producer making the
certified product must get inspected by its EPA TSCA Title VI TPC
quarterly as well as meet the testing requirements under Sec. 770.20.
(g) If the certified product fails a quarterly test, certification
for any product types represented by the sample is suspended until a
compliant quarterly test result is obtained in accordance with Sec.
770.22.
Sec. 770.17 No-added formaldehyde-based resins.
(a) Producers of composite wood product panels made with no-added
formaldehyde-based resins may apply to an EPA TSCA Title VI TPC or to
CARB for a two-year exemption from the testing requirements in Sec.
770.20 and certification requirements in Sec. Sec. 770.15 and
770.40(b). The application must contain the following:
(1) The panel producer's name, address, and telephone number;
(2) An identification of the specific product and the resin system;
(3) At least one test conducted under the supervision of an EPA
TSCA Title VI TPC pursuant to test method ASTM E1333-10 or ASTM D6007-
02 (incorporated by reference, see Sec. 770.99). Test results obtained
by ASTM D6007-02 must include a showing of equivalence in accordance
with Sec. 770.20(d)(1); and
(4) Three months of routine quality control tests under Sec.
770.20, including a showing of correlation in accordance with Sec.
770.20(d)(2), totaling not less than five quality control tests.
(b) The EPA TSCA Title VI TPC will approve a panel producer's
application within 90 calendar days of receipt if the application is
complete and demonstrates that the candidate product achieves the
emission standards described in paragraph (c) of this section.
(c) As measured according to paragraphs (a)(3) and (4) of this
section, the emission standards for composite wood products made with
no-added formaldehyde-based resins are as follows:
(1) No test result higher than 0.05 parts per million (ppm) of
formaldehyde for hardwood plywood and 0.06 ppm for particleboard,
medium-density fiberboard, and thin medium-density fiberboard.
(2) No higher than 0.04 ppm of formaldehyde for 90% of the three
months of routine quality control testing data required under paragraph
(a)(4) of this section.
(d) Products that meet the requirements specified under Sec.
770.17(c)(1) and (2) and have obtained exemption from the California
Air Resources Board will also be exempt from the requirements in
Sec. Sec. 770.15, 770.20, and 770.40(b), as long as the requirements
of the California Air Resources Board remain as stringent as EPA's
requirements.
(e) After the two-year period of the initial exemption, and every
two years thereafter, in order to continue to qualify for the exemption
from the testing and certification requirements, the panel producer
must reapply to an EPA TSCA Title VI TPC or to CARB and obtain at least
one test result in accordance with paragraph (a)(3) of this section
that complies with the emission standards in paragraph (c)(1) of this
section.
(f) Any time there is an operational or process change that is
likely to affect formaldehyde emissions, such as a change in resin
formulation, press cycle duration, temperature, or amount of resin used
per panel, at least one quality control test under Sec. 770.20 and at
least one test result in accordance with paragraph (a)(3) of this
section that indicate compliance with the emission standards in
paragraph (c)(1) of this section are required.
(g) A change in the resin system invalidates the exemption for any
product produced with the different resin after such a change.
Sec. 770.18 Ultra low-emitting formaldehyde resins.
(a) Producers of composite wood product panels made with ultra low-
emitting formaldehyde resins may apply to an EPA TSCA Title VI TPC or
CARB for approval either to conduct less frequent testing than is
specified in Sec. 770.20 or approval for a two-year exemption from the
testing requirements in Sec. 770.20 and certification requirements in
Sec. Sec. 770.15 and 770.40(b). The application must contain the
following:
(1) The panel producer's name, address, and telephone number;
(2) An identification of the specific product type, including resin
system;
(3) At least two tests conducted under the supervision of an EPA
TSCA Title VI TPC pursuant to test method ASTM E1333-10 or ASTM D6007-
02 (incorporated by reference, see Sec. 770.99). Test results obtained
by ASTM D6007-02 must include a showing of equivalence in accordance
with Sec. 770.20(d)(1); and
(4) Six months of routine quality control tests under Sec. 770.20,
including a showing of correlation in accordance with Sec.
770.20(d)(2), totaling not less than ten quality control tests.
(b) The EPA TSCA Title VI TPC will approve a panel producer's
application within 90 calendar days of receipt if the application is
complete and demonstrates that the candidate product achieves the
emission standards required for reduced testing as described in
paragraph (c) of this section or the emission standards required for a
two-year exemption as described in paragraph (d) of this section.
(c) As measured according to paragraphs (a)(3) and (4) of this
section, the emission standards for reduced testing for composite wood
products made with ultra low-emitting formaldehyde resins are as
follows:
(1) No test result higher than 0.05 parts per million (ppm) of
formaldehyde for hardwood plywood, 0.08 ppm for particleboard, 0.09 ppm
for medium-density fiberboard, and 0.11 ppm for thin medium-density
fiberboard.
(2) For 90% of the six months of routine quality control testing
data required under paragraph (a)(4) of this section, no higher than
0.05 ppm of formaldehyde for particleboard, no higher than 0.06 ppm of
formaldehyde for medium-density fiberboard, and no higher than 0.08 ppm
of formaldehyde for thin medium-density fiberboard.
(d) As measured according to paragraphs (a)(3) and (4) of this
section, the emission standards for an exemption from the testing and
certification requirements of Sec. 770.20 for composite wood products
made with ultra low-emitting formaldehyde resins are as follows:
(1) No test result higher than 0.05 ppm of formaldehyde for
hardwood plywood or 0.06 ppm of formaldehyde for particleboard, medium-
density fiberboard, and thin medium-density fiberboard.
(2) For 90% of the six months of routine quality control testing
data required under paragraph (a)(4) of this section, no higher than
0.04 parts per million of formaldehyde.
(e) Products that have obtained an exemption from the California
Air Resources Board will also be exempt from the requirements in
Sec. Sec. 770.15, 770.20, and 770.40(b) if they meet the requirements
under Sec. 770.18(d) and the
[[Page 89737]]
requirements of the California Air Resources Board remain as stringent
as EPA's requirements. Products that have obtained approval for reduced
testing from the California Air Resources Board will be granted
approval to conduct less frequent testing than is specified in Sec.
770.20 if they meet the requirements under Sec. 770.18(c) and the
requirements of the California Air Resources Board remain as stringent
as EPA's requirements.
(f) Products that are represented by a quarterly test result that
exceeds the applicable emission standard in this section or a quality
control test that indicates that the product exceeds the applicable
emission standard in this section lose their reduced testing approval
and must reapply as specified under Sec. 770.18(a).
(g) After the two-year period of the initial exemption, and every
two years thereafter, in order to continue to qualify for the exemption
from the testing and certification requirements, the panel producer
must reapply to an EPA TSCA Title VI TPC or CARB and obtain at least
two test results in accordance with paragraph (a)(3) of this section
that comply with the emission standards in paragraph (d)(1) of this
section.
(h) Any time there is an operational or process change such as a
change in resin formulation, press cycle duration, temperature, or
amount of resin used per panel, at least five quality control tests
under Sec. 770.20 and at least one test result in accordance with
paragraph (a)(3) of this section that indicate compliance with the
emission standards in paragraph (d)(1) of this section are required.
(i) A change in the resin system invalidates the exemption or
reduced testing approval for any product type produced after such a
change.
Sec. 770.20 Testing requirements.
(a) General requirements. (1) All panels must be tested in an
unfinished condition, prior to the application of a finishing or
topcoat, as soon as possible after their production but no later than
30 calendar days after production.
(2) Facilities that conduct the formaldehyde testing required by
this section must follow the procedures and specifications, such as
testing conditions and loading ratios, of the test method being used.
(3) All equipment used in the formaldehyde testing required by this
section must be calibrated and otherwise maintained and used in
accordance with the equipment manufacturer's instructions.
(b) Quality control testing--(1) Allowable methods. Quality control
testing must be performed using any of the following methods, with a
showing of correlation for each method pursuant to paragraph (d) of
this section:
(i) ASTM D6007-02 (incorporated by reference, see Sec. 770.99).
(ii) ASTM D5582-00 (incorporated by reference, see Sec. 770.99).
(iii) BS EN 717-2:1995 (Gas Analysis Method) (incorporated by
reference, see Sec. 770.99).
(iv) DMC 2007 User's Manual (incorporated by reference, see Sec.
770.99).
(v) DMC 2012 GP User's Manual (incorporated by reference, see Sec.
770.99).
(vi) BS EN 120:1992 (Perforator Method) (incorporated by reference,
see Sec. 770.99).
(vii) JIS A 1460:2001(E) (24-hr Desiccator Method) (incorporated by
reference, see Sec. 770.99).
(2) Frequency of testing. (i) Particleboard and medium-density
fiberboard must be tested at least once per shift (eight or twelve
hours, plus or minus one hour of production) for each production line
for each product type. Quality control tests must also be conducted
whenever:
(A) A product type production ends, even if eight hours of
production has not been reached;
(B) The resin formulation is changed so that the formaldehyde to
urea ratio is increased;
(C) There is an increase by more than ten percent in the amount of
formaldehyde resin used, by square foot or by panel;
(D) There is a decrease in the designated press time by more than
20%; or
(E) The quality control manager or quality control employee has
reason to believe that the panel being produced may not meet the
requirements of the applicable standards.
(ii) Particleboard and medium-density fiberboard panel producers
are eligible for reduced quality control testing if they demonstrate
consistent operations and low variability of test values.
(A) To qualify, panel producers must:
(1) Apply in writing to an EPA TSCA Title VI TPC; and
(2) Maintain a 30 panel running average.
(B) With respect to reduced quality control testing, EPA TSCA Title
VI TPCs:
(1) May approve a reduction to one quality control test per 24-hour
production period if the 30 panel running average remains two standard
deviations below the designated QCL for the previous 60 consecutive
calendar days or more;
(2) May approve a reduction to one quality control test per 48-hour
production period if the 30 panel running average remains three
standard deviations below the designated QCL for the previous 60
consecutive calendar days or more;
(3) Will approve a request for reduced quality control testing as
long as the data submitted by the panel producer demonstrate compliance
with the criteria and the EPA TSCA Title VI TPC does not otherwise have
reason to believe that the data are inaccurate or the panel producer's
production processes are inadequate to ensure continued compliance with
the emission standards; and
(4) Will revoke approval for reduced quality control testing if
testing or inspections indicate a panel producer no longer demonstrates
consistent operations and low variability of test values.
(iii) Hardwood plywood must be tested as follows:
(A) At least one test per week per product type if the weekly
hardwood plywood production at the panel producer is more than 100,000
but less than 200,000 square feet.
(B) At least two tests per week per product type if the weekly
hardwood plywood production at the panel producer is 200,000 square
feet or more, but less than 400,000 square feet.
(C) At least four tests per week per product type if the weekly
hardwood plywood production at the panel producer is 400,000 square
feet or more.
(D) If weekly production of hardwood plywood at the panel producer
is 100,000 square feet or less, at least one test per 100,000 square
feet for each product type produced; or, if less than 100,000 square
feet of a particular product type is produced, one quality control test
of that product type every month that it is produced.
(E) Quality control tests must also be conducted whenever:
(1) The resin formulation is changed so that the formaldehyde to
urea ratio is increased;
(2) There is an increase by more than ten percent in the amount of
formaldehyde resin used, by square foot or by panel;
(3) There is an increase by more than 20% in the adhesive
application rate;
(4) There is a decrease in the designated press time by more than
20%; or
(5) The quality control manager or quality control employee has
reason to believe that the panel being produced
[[Page 89738]]
may not meet the requirements of the applicable standard.
(iv) Composite wood products that have been approved by an EPA TSCA
Title VI TPC or CARB for reduced testing under Sec. 770.18(b) through
(c) must be tested at least once per week per product type and, for
particle board and medium-density fiberboard, per production line, for
products produced that week, except that hardwood plywood panel
producers who qualify for less frequent testing under paragraph
(b)(2)(iii)(D) of this section may continue to perform quality control
testing under that provision.
(3) Results. Any test result that exceeds the QCL established
pursuant to Sec. 770.7(c)(4)(i)(C) must be reported to the EPA TSCA
Title VI TPC in writing within 72 hours. The panel producer must comply
with Sec. 770.22 with respect to any lot represented by a quality
control sample that exceeds the QCL. Where multiple products are
grouped in a single product type for testing, this includes all
products in the group represented by the sample.
(c) Quarterly testing. Quarterly testing must be supervised by EPA
TSCA Title VI TPCs and performed by TPC laboratories.
(1) Allowable methods. Quarterly testing must be performed using
ASTM E1333-10 (incorporated by reference, see Sec. 770.99) or, with a
showing of equivalence pursuant to paragraph (d) of this section, ASTM
D6007-02 (incorporated by reference, see Sec. 770.99).
(2) Sample selection. (i) Samples must be randomly chosen by an EPA
TSCA Title VI TPC.
(ii) Samples must be selected from each certified product type for
quarterly testing purposes. For hardwood plywood samples, the samples
must be randomly selected from products that represent the range of
formaldehyde emissions of products produced by the panel producer.
(iii) Samples must not include the top or the bottom composite wood
product of a bundle.
(3) Sample handling. Samples must be closely stacked or air-tight
wrapped between the time of sample selection and the start of test
conditioning. Samples must be labeled as such, signed by the EPA TSCA
Title VI TPC, bundled air-tight, wrapped in polyethylene, protected by
cover sheets, and promptly shipped to the TPC laboratory. Conditioning
must begin as soon as possible, but no later than 30 calendar days
after the samples were produced.
(4) Results. Any sample that exceeds the applicable formaldehyde
emission standard in Sec. 770.10 must be reported by the EPA TSCA
Title VI TPC to the panel producer in writing and to EPA, in accordance
with Sec. 770.8, within 72 hours. The panel producer must comply with
Sec. 770.22 with respect to any lot represented by a sample result
that exceeds the applicable formaldehyde emission standard. Where
multiple products are grouped in a single product type for testing,
this includes all products in the group represented by the sample.
(5) Reduced testing frequency. Composite wood products that have
been approved by an EPA TSCA Title VI TPC or CARB for reduced testing
under Sec. 770.18(c) need only undergo quarterly testing every six
months.
(d) Equivalence or correlation. Equivalence or correlation between
ASTM E1333-10 (incorporated by reference, see Sec. 770.99) and any
other test method used for quarterly or quality control testing must be
demonstrated by EPA TSCA Title VI TPCs or panel producers,
respectively, at least once each year for each testing apparatus or
whenever there is a significant change in equipment, procedure, or the
qualifications of testing personnel. Once equivalence or correlation
have been established for three consecutive years, equivalence or
correlation must be demonstrated every two years or whenever there is a
significant change in equipment, procedure, or the qualifications of
testing personnel.
(1) Equivalence between ASTM E1333-10 and ASTM D6007-02 when used
by the TPC for quarterly testing. Equivalence must be demonstrated for
at least five comparison sample sets, which compare the results of the
two methods. Equivalence must be demonstrated for each small chamber
used and for the ranges of emissions of composite wood products tested
by the TPC.
(i) Samples. (A) For the ASTM E1333-10 method (incorporated by
reference, see Sec. 770.99), each comparison sample must consist of
the result of testing panels, using the applicable loading ratios
specified in the ASTM E1333-10 method (incorporated by reference, see
Sec. 770.99), from similar panels of the same product type tested by
the ASTM D6007-02 method (incorporated by reference, see Sec. 770.99).
(B) For the ASTM D6007-02 method (incorporated by reference, see
Sec. 770.99), each comparison sample shall consist of testing
specimens representing portions of panels similar to the panels tested
in the ASTM E1333-10 method (incorporated by reference, see Sec.
770.99) and matched to their respective ASTM E1333-10 method
(incorporated by reference, see Sec. 770.99) comparison sample result.
The ratio of air flow to sample surface area specified in ASTM D6007-02
(incorporated by reference, see Sec. 770.99) must be used.
(C) The five comparison sample--must consist of testing a minimum
of five sample sets as measured by the ASTM E1333-10 method
(incorporated by reference, see Sec. 770.99).
(ii) Average and standard deviation. The arithmetic mean, x, and
standard deviation, S, of the difference of all comparison sets must be
calculated as follows:
[GRAPHIC] [TIFF OMITTED] TR12DE16.002
Where x = arithmetic mean; S = standard deviation; n = number of
sets; Di = difference between the ASTM E1333-10 and ASTM
D6007-02 method (incorporated by reference, see Sec. 770.99) values
for the ith set; and i ranges from 1 to n.
(iii) Equivalence determination. The ASTM D6007-02 method
(incorporated by reference, see Sec. 770.99) is considered equivalent
to the ASTM E1333-10 method (incorporated by reference, see Sec.
770.99) if the following condition is met:
[GRAPHIC] [TIFF OMITTED] TR12DE16.003
Where C is equal to 0.026.
(2) Correlation between ASTM E1333-10 and any quality control test
method. Correlation must be demonstrated by
[[Page 89739]]
establishing an acceptable correlation coefficient (``r'' value).
(i) Correlation. The correlation must be based on a minimum sample
size of five data pairs and a simple linear regression where the
dependent variable (Y-axis) is the quality control test value and the
independent variable (X-axis) is the ASTM E1333-10 (incorporated by
reference, see Sec. 770.99) test value. Either composite wood products
or formaldehyde emissions reference materials can be used to establish
the correlation.
(ii) Minimum acceptable correlation coefficients (``r'' values).
The minimum acceptable correlation coefficients are as follows, where
``n'' is equal to the number of data pairs, and ``r'' is the
correlation coefficient:
------------------------------------------------------------------------
Degrees of freedom (n-2) ``r'' value
------------------------------------------------------------------------
3....................................................... 0.878
4....................................................... 0.811
5....................................................... 0.754
6....................................................... 0.707
7....................................................... 0.666
8....................................................... 0.632
9....................................................... 0.602
10 or more.............................................. 0.576
------------------------------------------------------------------------
(iii) Variation from previous results. If data from an EPA TSCA
Title VI TPC's quarterly test results and a panel producer's quality
control test results do not fit the previously established correlation,
the panel producer must have its TPC establish a new correlation and
new QCLs.
(iv) Failed quarterly tests. If a panel producer fails two
quarterly tests in a row for the same product type, the panel producer
must have its TPC establish a new correlation curve.
(e) Quality assurance and quality control requirements for panel
producers. Panel producers are responsible for product compliance with
the applicable emission standards.
Sec. 770.21 Quality control manual, facilities, and personnel.
(a) Quality control manual. (1) Each panel producer must have a
written quality control manual. The manual must contain, at a minimum,
the following:
(i) A description of the organizational structure of the quality
control department, including the names of the quality control manager
and quality control employees;
(ii) A description of the sampling procedures to be followed;
(iii) A description of the method of handling samples, including a
specific maximum time period for analyzing quality control samples;
(iv) A description of the frequency of quality control testing;
(v) A description of the procedures used to identify changes in
formaldehyde emissions resulting from production changes (e.g.,
increase in the percentage of resin, increase in formaldehyde/urea
molar ratio in the resin, or decrease in press time);
(vi) A description of provisions for additional testing;
(vii) A description of recordkeeping procedures;
(viii) A description of labeling procedures;
(ix) The average percentage of resin and press time for each
product type;
(x) A description of product types, and if applicable, a
description of product variables covered under each product type;
(xi) Procedures for reduced quality control testing, if applicable;
and
(xii) Procedures for handling non-complying lots, including a
description of how the panel producer will ensure compliance with the
notification requirements of Sec. 770.22(d)(1).
(2) The quality control manual must be approved by an EPA TSCA
Title VI TPC.
(b) Quality control facilities. Each panel producer must designate
a quality control facility for conducting quality control formaldehyde
testing.
(1) The quality control facility must be an EPA TSCA Title VI TPC,
a contract laboratory, or a laboratory owned and operated by the panel
producer.
(2) Each quality control facility must have quality control
employees with adequate experience and/or training to conduct accurate
chemical quantitative analytical tests. The quality control manager
must identify each person conducting formaldehyde quality control
testing to the EPA TSCA Title VI TPC.
(c) Quality control manager. Each panel producer must designate a
person as quality control manager with adequate experience and/or
training to be responsible for formaldehyde emissions quality control.
The quality control manager must:
(1) Have the authority to take actions necessary to ensure that
applicable formaldehyde emission standards are being met on an ongoing
basis;
(2) Be identified to the EPA TSCA Title VI TPC that will be
overseeing the quality control testing. The panel producer must notify
the EPA TSCA Title VI TPC in writing within ten calendar days of any
change in the identity of the quality control manager and provide the
EPA TSCA Title VI TPC with the new quality control manager's
qualifications;
(3) Review and approve all reports of quality control testing
conducted on the production of the panel producer;
(4) Ensure that the samples are collected, packaged, and shipped
according to the procedures specified in the quality control manual;
and
(5) Inform the EPA TSCA Title VI TPC in writing of any significant
changes in production that could affect formaldehyde emissions within
72 hours of making those changes.
Sec. 770.22 Non-complying lots.
(a) Non-complying lots are not certified composite wood products
and they may not be sold, supplied or offered for sale in the United
States except in accordance with this section.
(b) Non-complying lots must be isolated from certified lots.
(c) Non-complying lots must either be disposed of or retested and
certified using the same test method, if each panel is treated with a
scavenger or handled by other means of reducing formaldehyde emissions,
such as aging. Tests must be performed as follows:
(1) Quality control tests. (i) At least one test panel must be
selected from each of three separate bundles. The panels must be
selected so that they are representative of the entire non-complying
lot and they are not the top or bottom panel of a bundle. The panels
may be selected from properly stored samples set aside by the panel
producer for retest in the event of a failure.
(ii) All samples must test at or below the level that indicates
that the product is in compliance with the applicable emission
standards in Sec. 770.10.
(2) Quarterly tests. (i) At least one test panel must be randomly
selected so that it is representative of the entire non-complying lot
and is not the top or bottom panel of a bundle. The panel may be
selected from properly stored samples set aside by the panel producer
for retest in the event of a failure.
(ii) The sample must test at or below the applicable emission
standards in Sec. 770.10.
(d) If composite wood products belonging to a non-complying lot
have been shipped to a fabricator, importer, distributor, or retailer
before the test results are received, the panel producer must:
(1) Ensure that the composite wood products are not distributed
further by notifying, within 72 hours of the time that the panel
producer is made aware of the failing test result, the fabricators,
importers, distributors, and retailers that received the composite wood
products.
[[Page 89740]]
The notification must include the following:
(i) Panel producer name, contact information, and date of notice;
(ii) A description of the composite wood products that belong to
the non-complying lot that is sufficient to allow the fabricator,
importer, distributor, or retailer to identify the products;
(iii) Whether the failed test result was of a quarterly test, a
quality control test, or a retest of composite wood products belonging
to a non-complying lot;
(iv) A statement that composite wood products belonging to the non-
complying lot must be isolated from other composite wood products and
cannot be further distributed in commerce; and
(v) A description of the steps the panel producer intends to take
to either recall the composite wood products belonging to the non-
complying lot or to treat and retest the products and certify the lot.
(2) Do one of the following:
(i) Recall the composite wood products belonging to the non-
complying lot and either treat and retest products belonging to the
non-complying lot or dispose of them; or
(ii) Treat and retest composite wood products belonging to the non-
complying lot while they remain in possession of a fabricator,
importer, distributor, or retailer.
(e) Information on the disposition of non-complying lots, including
product type and amount of composite wood products affected, lot
numbers, mitigation measures used, results of retesting, and final
disposition, must be provided to the EPA TSCA Title VI TPC within seven
calendar days of final disposition.
(f) Fabricators, importers, distributors, or retailers who are
notified that they have received composite wood products belonging to a
non-complying lot and who have further distributed the composite wood
products are responsible for notifying the purchasers of the composite
wood products in accordance with paragraph (d)(1) of this section.
Sec. 770.24 Samples for testing.
(a) Composite wood products may be shipped into and transported
across the United States for quality control or quarterly tests. TPCs
that ship composite panels into or across the United States solely for
quality control or quarterly tests are not considered importers or
distributors or importers for the purposes of Sec. 770.7(c)(3)(i).
(1) Such panels must not be sold, offered for sale or supplied to
any entity other than a TPC laboratory before testing in accordance
with Sec. 770.17, Sec. 770.18, or Sec. 770.20.
(2) If test results for such products demonstrate compliance with
the emission standards in this subpart, the panels may be relabeled in
accordance with Sec. 770.45 and sold, offered for sale, or supplied.
(b) [Reserved]
Sec. 770.30 Importers, fabricators, distributors, and retailers.
(a) Importers, fabricators, distributors, and retailers must take
reasonable precautions to ensure that the composite wood products they
sell, supply, offer for sale, or hold for sale, whether in the form of
panels, component parts, or finished goods, comply with the emission
standards and other requirements of this subpart.
(b) Importers must demonstrate that they have taken reasonable
precautions by maintaining, for three years, bills of lading, invoices,
or comparable documents that include a written statement from the
supplier that the composite wood products, component parts, or finished
goods are TSCA Title VI compliant or were produced before December 12,
2017 and by ensuring the following records are made available to EPA
within 30 calendar days of request:
(1) Records identifying the panel producer and the date the
composite wood products were produced; and
(2) Records identifying the supplier, if different, and the date
the composite wood products, component parts, or finished goods were
purchased.
(c) Fabricators, distributors, and retailers must demonstrate that
they have taken reasonable precautions by obtaining bills of lading,
invoices, or comparable documents that include a written statement from
the supplier that the composite wood products, component parts, or
finished goods are TSCA Title VI compliant or that the composite wood
products were produced before December 12, 2017.
(d) On and after December 12, 2018, importers of articles that are
regulated composite wood products, or articles that contain regulated
composite wood products, must comply with the import certification
regulations for ``Chemical Substances in Bulk and As Part of Mixtures
and Articles,'' as found at 19 CFR 12.118 through 12.127.
(e) Records required by this section must be maintained in
accordance with Sec. 770.40(d).
Sec. 770.40 Reporting and recordkeeping.
(a) Panel producers must maintain the following records for a
period of three years, except that records demonstrating initial
eligibility for reduced testing or third-party certification exemption
under Sec. 770.17 or Sec. 770.18 must be kept for as long as the
panel producer is producing composite wood products with reduced
testing or under a third-party certification exemption. The following
records must also be made available to the panel producers' EPA TSCA
Title VI TPCs. Panel producers must make the records described in
paragraph (a)(1) of this section available to direct purchasers of
their composite wood products. This information may not be withheld
from direct purchasers as confidential business information.
(1) Records of all quarterly emissions testing. These records must
identify the EPA TSCA Title VI TPC conducting or overseeing the
testing. These records must also include the date, the product type
tested, the lot number that the tested material represents, the test
method used, and the test results.
(2) Records of all ongoing quality control testing. These records
must identify the EPA TSCA Title VI TPC conducting or overseeing the
testing and the facility actually performing the testing. These records
must also include the date, the product type tested, the lot number
that the tested material represents, the test method used, and the test
results.
(3) Production records, including a description of the composite
wood product(s), the date of manufacture, lot numbers, and tracking
information allowing each product to be traced to a specific lot
produced.
(4) Records of changes in production, including changes of more
than ten percent in the resin use percentage, changes in resin
composition that result in a higher ratio of formaldehyde to other
resin components, and changes in the process, such as changes in press
time by more than 20%.
(5) Records demonstrating initial and continued eligibility for the
reduced testing provisions in Sec. Sec. 770.17 and 770.18, if
applicable. These records must include:
(i) Approval for reduced testing from an EPA TSCA Title VI TPC or
CARB;
(ii) Amount of resin use reported by volume and weight;
(iii) Production volume reported as square feet per product type;
(iv) Resin trade name, resin manufacturer contact information
(name, address, phone number, and email), and resin supplier contact
information (name, address, phone number, and email); and
(v) Any changes in the formulation of the resin.
(6) Purchaser information for each composite wood product, if
applicable, including the name, contact person if
[[Page 89741]]
available, address, telephone number, email address if available,
purchase order or invoice number, and amount purchased.
(7) Transporter information for each composite wood product, if
applicable, including name, contact person, address, telephone number,
email address if available, and shipping invoice number.
(8) Information on the disposition of non-complying lots, including
product type and amount of composite wood products affected, lot
numbers, purchasers who received product belonging to non-complying
lots (if any), copies of purchaser notifications used (if any),
mitigation measures used, results of retesting, and final disposition.
(9) Representative copies of labels used.
(b) Panel producers must provide their EPA TSCA Title VI TPC with
monthly product data reports for each production facility, production
line, and product type, maintain copies of the reports for a minimum of
three years from the date that they are produced. Monthly product data
reports must contain a data sheet for each specific product type with
test and production information, and a quality control graph containing
the following:
(1) QCL;
(2) Shipping QCL (if applicable);
(3) Results of quality control tests; and
(4) Retest values.
(c) Laminated product producers whose products are exempt from the
definition of hardwood plywood must keep records demonstrating
eligibility for the exemption. These records must be kept for a minimum
of three years from the date they are produced and must include:
(1) Resin trade name, resin manufacturer contact information (name,
address, phone number, and email), resin supplier contact information
(name, address, phone number, and email), and resin purchase records;
(2) Panel producer contact information and panel purchase records;
(3) For panels produced in-house, records demonstrating that the
panels have been certified by an EPA TSCA Title VI TPC; and
(4) For resins produced in-house, records demonstrating the
production of phenol-formaldehyde resins or resins formulated with no
added formaldehyde as part of the resin cross-linking structure.
(d) Importers, fabricators, distributors, and retailers must
maintain the records described in Sec. 770.30 for a minimum of three
years from the import date or the date of the purchases or shipments
described therein.
Sec. 770.45 Labeling.
(a) Panels or bundles of panels that are sold, supplied, or offered
for sale in the United States must be labeled with the panel producer's
name, the lot number, the number of the EPA TSCA Title VI TPC, and a
statement that the products are TSCA Title VI certified. If a composite
wood panel is not individually labeled, the panel producer, importer,
distributor, fabricator, or retailer must have a method (e.g., color-
coded edge marking) sufficient to identify the supplier of the panel
and linking the information on the label to the products. This
information must be made available to potential customers upon request.
The label may be applied as a stamp, tag, or sticker.
(1) A panel producer number may be used instead of a name to
protect identity, so long as the identity of the panel producer can be
determined at the request of EPA.
(2) Only panels or bundles of panels manufactured in accordance
with Sec. 770.17 may also be labeled that they were made with no-added
formaldehyde-based resins in addition to the other information required
by this section.
(3) Only panels or bundles of panels manufactured in accordance
with Sec. 770.18 may also be labeled that they were made with ultra
low-emitting formaldehyde resins in addition to the other information
required by this section.
(b) Panels imported into or transported across the United States
for quarterly or quality control testing purposes in accordance with
Sec. 770.20 must be labeled ``For TSCA Title VI testing only, not for
sale in the United States.'' The panels may be re-labeled if test
results are below the applicable emission standards in this subpart.
(c) Fabricators of finished goods containing composite wood
products must label every finished good they produce or every box or
bundle containing finished goods. If a finished good (including
component parts sold separately to end users) is not individually
labeled, the importer, distributor, or retailer must retain a copy of
the label, be able to identify the products associated with that label,
and make the label information available to potential customers upon
request.
(1) The label may be applied as a stamp, tag, or sticker.
(2) The label must include, at a minimum, in legible English text,
the fabricator's name, the date the finished good was produced (in
month/year format), and a statement that the finished goods are TSCA
Title VI compliant.
(3) Finished goods made from panels manufactured in accordance with
Sec. 770.17 and/or Sec. 770.18 may also be labeled that they were
made with no-added formaldehyde-based resins, or ultra low-emitting
formaldehyde resins in addition to the other information required by
this section. They may be labeled as being made with a combination of
compliant composite wood, no-added formaldehyde-based resins, and ultra
low-emitting formaldehyde resins, if this is accurate.
(4) Fabricators may substitute the name of a responsible downstream
fabricator, importer, distributor, or retailer for their name on the
label if they obtain and maintain written consent from the downstream
entity.
(d) Importers, distributors, and retailers must leave intact labels
on finished goods, including component parts sold separately to end
users.
(e) Finished goods, including component parts sold separately to
end users, containing only a de minimis amount of regulated composite
wood product are excepted from the labeling requirements. A finished
good, including component parts sold directly to consumers, contains a
de minimis amount of regulated composite wood product if its regulated
composite wood product content does not exceed 144 square inches, based
on the surface area of its largest face. The exception does not apply
to finished goods or component parts that are designed to be used in
combination or in multiples to create larger surfaces, finished goods,
or component parts.
(f) Composite wood products and finished goods made entirely of
composite wood products manufactured before the manufactured-by date
must not be labeled as TSCA Title VI compliant.
Subpart D--Incorporation by Reference
Sec. 770.99 Incorporation by reference.
The materials listed in this section are incorporated by reference
into this part with the approval of the Director of the Federal
Register under 5 U.S.C. 552(a) and 1 CFR part 51. To enforce any
edition other than that specified in this section, a document must be
published in the Federal Register and the material must be available to
the public. All approved materials are available for inspection at the
OPPT Docket in the Environmental Protection Agency Docket Center (EPA/
DC), West William
[[Page 89742]]
Jefferson Clinton Bldg., Rm. 3334, 1301 Constitution Ave. NW.,
Washington, DC. The EPA/DC Public Reading Room hours of operation are
8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal
holidays. The telephone number of the EPA/DC Public Reading room is
(202) 566-1744, and the telephone number for the OPPT Docket is (202)
566-0280. In addition, these materials are also available for
inspection at the National Archives and Records Administration (NARA).
For information on the availability of this material at NARA, call
(202) 741-6030 or go to http://www.archives.gov/federal_register/code_of_federal_regulations/ibr_locations.html. These materials may
also be obtained from the sources listed in this section.
(a) CPA, AITC, and HPVA material. Copies of these materials may be
obtained from the specific publisher, as noted below, or from the
American National Standards Institute, 1899 L Street NW., 11th Floor,
Washington, DC 20036, or by calling (202) 293-8020, or at http://ansi.org/. Note that ANSI/AITC A190.1-2002 is published by the American
Institute of Timber Construction; ANSI A135.4-2012, ANSI A135.5-2012,
ANSI A135.6-2012, ANSI A135.7-2012, ANSI A208.1-2009, and ANSI A208.2-
2009 are published by the Composite Panel Association; and ANSI ANSI/
HPVA-HP-1-2009 is published by the Hardwood Plywood Veneer Association.
(1) ANSI A135.4-2012, Basic Hardboard, Approved June 8, 2012, IBR
approved for Sec. 770.3.
(2) ANSI A135.5-2012, Prefinished Hardboard Paneling, Approved
March 29, 2012, IBR approved for Sec. 770.3.
(3) ANSI A135.6-2012, Engineered Wood Siding, Approved June 5,
2012, IBR approved for Sec. 770.3.
(4) ANSI A135.7-2012, Engineered Wood Trim, Approved July 17, 2012,
IBR approved for Sec. 770.3.
(5) ANSI A208.1-2009, Particleboard, Approved February 2, 2009, IBR
approved for Sec. 770.3.
(6) ANSI A208.2-2009, Medium Density Fiberboard (MDF) for Interior
Applications, Approved February 2, 2009, IBR approved for Sec. 770.3.
(7) ANSI/AITC A190.1-2002, American National Standard for Wood
Products--Structural Glued Laminated Timber, Approved October 10, 2002,
IBR approved for Sec. 770.1(c).
(8) ANSI/HPVA HP-1-2009, American National Standard for Hardwood
and Decorative Plywood, Approved January 26, 2010, IBR approved for
Sec. 770.3.
(b) ASTM material. Copies of these materials may be obtained from
ASTM International, 100 Barr Harbor Dr., P.O. Box C700, West
Conshohocken, PA 19428-2959, or by calling (877) 909-ASTM, or at http://www.astm.org.
(1) ASTM D5055-05, Standard Specification for Establishing and
Monitoring Structural Capacities of Prefabricated Wood I-Joists,
Approved October 1, 2005, IBR approved for Sec. 770.1(c).
(2) ASTM D5456-06, Standard Specification for Evaluation of
Structural Composite Lumber Products, Approved March 1, 2006, IBR
approved for Sec. 770.1(c).
(3) ASTM D5582-00 (Reapproved 2006), Standard Test Method for
Determining Formaldehyde Levels from Wood Products Using a Desiccator,
October 1, 2006, IBR approved for Sec. 770.20(b).
(4) ASTM D6007-02, Standard Test Method for Determining
Formaldehyde Concentrations in Air from Wood Products Using a Small
Scale Chamber, Approved April 10, 2002, IBR approved for Sec. Sec.
770.3, 770.7(a) through (c), 770.15(c), 770.17(a), 770.18(a) and
770.20(b) through (d).
(5) ASTM E1333-10, Standard Test Method for Determining
Formaldehyde Concentrations in Air and Emission Rates from Wood
Products Using a Large Chamber, Approved May 1, 2010, IBR approved for
Sec. Sec. 770.3, 770.7(a) through (c), 770.10(b), 770.15(c),
770.17(a), 770.18(a) and 770.20(c) through (d).
(c) CEN materials. Copies of these materials are not directly
available from the European Committee for Standardization, but from one
of CEN's National Members, Affiliates, or Partner Standardization
Bodies. To purchase a standard, go to CEN's Web site, http://www.cen.eu, and select ``Products'' for more detailed information.
(1) BS EN 120:1992, Wood based panels--Determination of
formaldehyde content--Extraction method called the perforator method,
incorporating Amendment No. 1, English Version, copyright BSI 1997, IBR
approved for Sec. 770.20(b).
(2) BS EN 717-2:1995, Wood-based panels--Determination of
formaldehyde release--Part 2: Formaldehyde release by the gas analysis
method, incorporating Corrigendum No. 1, English Version, copyright BSI
9 December 2002, IBR approved for Sec. 770.20(b).
(d) Georgia Pacific material. Copies of this material may be
obtained from Georgia-Pacific Chemicals LLC, 133 Peachtree Street,
Atlanta, GA 30303, or by calling (877) 377-2737, or at http://www.gp-dmc.com/default.aspx.
(1) The Dynamic Microchamber computer integrated formaldehyde test
system, User Manual, revised March 2007 (DMC 2007 User's Manual) IBR
approved for Sec. 770.20(b).
(2) The GP Dynamic Microchamber Computer-integrated formaldehyde
test system, User Manual, copyright 2012 (DMC 2012 GP User's Manual),
IBR approved for Sec. 770.20(b).
(e) ISO material. Copies of these materials may be obtained from
the International Organization for Standardization, 1, ch. de la Voie-
Creuse, CP 56, CH-1211, Geneve 20, Switzerland, or by calling +41-22-
749-01-11, or at http://www.iso.org.
(1) ISO/IEC 17011:2004(E), Conformity assessments--General
requirements for accreditation bodies accrediting conformity
assessments bodies, First edition, Corrected version, 2005-02-15, IBR
approved for Sec. Sec. 770.3 and 770.7(a) through (b).
(2) ISO/IEC 17020:2012(E), Conformity assessment-Requirements for
the operation of various bodies performing inspection, Second edition,
2012-03-01 IBR approved for Sec. Sec. 770.3 and 770.7(a) through (c).
(3) ISO/IEC 17025:2005(E), General requirements for the competence
of testing and calibration laboratories, Second edition, 2005-05-15,
IBR approved for Sec. Sec. 770.3 and 770.7(a) through (c).
(4) ISO/IEC 17065:2012(E), Conformity assessment--Requirements for
bodies certifying products, processes and services, First edition,
2012-09-15, IBR approved for Sec. Sec. 770.3 and 770.7(a) and (c).
(f) Japanese Standards Association. Copies of this material may be
obtained from Japanese Industrial Standards, 1-24, Akasaka 4, Minatoku,
Tokyo 107- 8440, Japan, or by calling +81-3-3583-8000, or at http://www.jsa.or.jp/.
(1) JIS A 1460:2001(E), Building boards Determination of
formaldehyde emission--Desiccator method, First English edition,
published 2003-07 IBR approved for Sec. 770.20(b).
(2) [Reserved]
(g) NIST material. Copies of these materials may be obtained from
the National Institute of Standards and Technology (NIST) by calling
(800) 553-6847 or from the U.S. Government Printing Office (GPO). To
purchase a NIST publication you must have the order number. Order
numbers may be obtained from the Public Inquiries Unit at (301) 975-
NIST. Mailing address: Public Inquiries Unit, NIST, 100 Bureau Dr.,
Stop 1070, Gaithersburg, MD 20899-1070. If you have a GPO stock number,
you can purchase printed copies of NIST publications from GPO.
[[Page 89743]]
GPO orders may be mailed to: U.S. Government Printing Office, P.O. Box
979050, St. Louis, MO 63197-9000, placed by telephone at (866) 512-1800
(DC Area only: (202) 512-1800), or faxed to (202) 512-2104. Additional
information is available online at: http://www.nist.gov.
(1) PS 1-07, Structural Plywood, May 2007, IBR approved for
Sec. Sec. 770.1(c) and 770.3.
(2) PS 2-04, Performance Standard for Wood-Based Structural-Use
Panels, December 2004, IBR approved for Sec. Sec. 770.1(c) and 770.3.
Editorial note: This document was received for publication by
the Office of the Federal Register on November 16, 2016.
[FR Doc. 2016-27987 Filed 12-9-16; 8:45 am]
BILLING CODE 6560-50-P