EPA Sets Composite Wood Importer Certification and Recordkeeping for Formaldehyde Emission Standards

EPA's final rule applies to manufacturers, importers and suppliers of hardwood plywood, medium-density fiberboard and particleboard, whether in the form of a panel or a finished good. Laminated products are included as a subset of hardwood plywood, except for laminated products that use phenol-formaldehyde resin or a resin formulated with no added formaldehyde as part of the resin cross-linking structure, though producers of these exempt laminated products must still maintain records demonstrating eligibility.

The new regulations set modified requirements for panels made with no-added formaldehyde-based resins (NAF) and ultra low-emitting formaldehyde resins (ULEF), as well as exemptions for various products including the following: hardboard, structural plywood, structural panels, oriented strandboard, glued laminated lumber, prefabricated wood I-joists, finger-jointed lumber, wood packaging, composite wood products inside new vehicles other than recreational vehicles, windows containing less than 5 percent of composite wood products, exterior doors and garage doors that contain less than 3 percent by volume of composite wood products, and exterior and garage doors that are made with NAF-based or ULEF resins.

General Product Certification Requirements

Unless a product meets one of the specified exemptions to the proposed requirements, it must be certified as compliant with the composite wood product formaldehyde emissions standards by a third-party certification body. To obtain and maintain certification, panel producers must establish quality assurance and control programs, conduct regular quality control testing of product emissions, and have an EPA-recognized third-party certifier conduct or oversee quarterly formaldehyde emissions testing, EPA said.

No 'Article' Exemption From TSCA Import Certification

EPA will require TSCA import certifications of compliance for composite wood products, including composite wood products that are “articles" under CBP's TSCA regulations. The import certification requirement applies to imports of hardwood plywood, particleboard and medium-density fiberboard panels, as well as finished goods containing such materials, EPA said. Persons importing specifically exempted products, such as structural or curved plywood, and finished goods incorporating such products, will not be required to certify.

The customs regulations at 19 CFR 12.120(a) define an “article” as “a manufactured item which: (i) Is formed to a specific shape or design during manufacture, (ii) Has end use functions dependent in whole or in part upon its shape or design during the end use, and (iii) 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 § 12.120(a)(2); except that fluids and particles are not considered articles regardless of shape or design."

Under the final rule's import certification requirements, import filers will be required to provide this 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.” Certifications may be included on or attached to bills of lading, commercial invoices, or comparable documents. TSCA certification statements may also be submitted electronically along with entry filings in ACE, EPA said.

EPA will give importers two years to comply with the TSCA certification requirement for composite wood products, after having contemplated only one year in its proposed rule (see 13101816). The agency said the additional time will allow "the supply chain to become familiar with the requirements and make any necessary adjustments to existing business processes." EPA will also be conducting outreach to the trade community, including training on importer provisions and certification requirements, in the form of webinars, EPA attendance at industry conferences, and meetings with industry groups. EPA is also "developing guidance for importers with additional information about how to comply with the certification requirement," it said. The guidance will be posted to the agency's website.

Three-Year Recordkeeping Requirement

EPA is finalizing a requirement that importers must “take steps to ensure that they are purchasing composite wood products or component parts that comply with the emission standards,” EPA said, and document these steps. The importer must "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," EPA said. The importer would have to provide this information within 30 days of its request by EPA, though the importer could also have its supplier provide required information to EPA within that time frame. Records must be kept for three years.

Labeling Required on Panels

Panels or bundles of panels sold in the U.S. must be labeled with the name of the panel producer, the lot number, the number of the accredited third-party certifier, and markings indicating that the product complies with the composite wood formaldehyde emission standards, EPA said. Entities may combine EPA formaldehyde labels with California Air Emissions Board labels as long as they remain legible, EPA said. "Labeling indicating that the composite wood products are NAF or ULEF is voluntary and at the discretion of the panel producer or fabricator," it said. The final rule allows composite wood products and finished goods to be labeled by bundle or box, as opposed to being labeled individually. Panel producers may use a panel producer number or other identifier to protect supply chain confidentiality, as long as EPA is able to use the label information along with the records required by this rule to identify the panel producer, it said. Barcodes do not satisfy labeling requirements, EPA said.

One-Year Grace Period

EPA is allowing a grace period, or “sell-through provision,” that applies the rule’s requirements only to products manufactured or imported one year after publication of the final rule in the Federal Register. Although the law requiring these regulations required a 180-day grace period, EPA said more time is needed for companies and third-party certifiers to implement the rule’s provisions. To establish that a regulated composite wood product panel was made before the manufactured-by date, the panel producer or importer and any subsequent distributor, retailer or fabricator must keep records that document when the product was manufactured. Selling stockpiled regulated products is prohibited.

Violations Subject to Criminal and Civil Penalties

Failure to comply with the composite wood formaldehyde requirements is a prohibited act under Section 15 of TSCA, EPA said. As such, any person found to be in violation will be liable for civil and criminal penalties.