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

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

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

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

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

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-

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.
BILLING CODE 6560-50-P
[GRAPHIC] [TIFF OMITTED] TR12DE16.001

BILLING CODE 6560-50-C
    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;

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

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

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

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

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)

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

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.

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

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

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

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