p. 1 

CBIC Control Number 

CHAMBER OF COMMERCE 

OF THE 

UNITED STATES OP AMERICA 

WILLIAM L. $OVACB 

SENIOR VICE PRESIDENT 

ENVIRONMENT, TECHNOLOGY dt 

REGULATORY AFFAIRS 

EPA -~~-- 

rLOV 0 a 203 

BY ELECPRONIC MAIL 

DOCKET CENTER 

September 25, 2013 

Document Control Office (7407M) 

Office of Pollution Prevention and Toxics 

Environmental Protection Agency 

1200 Pennsylvania Ave. NW 

Washington, DC 20460-0001 

356271 

1675 H STREET, NW 

WASHINGTON, DC 20062 

(202) 463-5457 

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Re: Comments on lF!amnatdehyde;'I'hird-Party Certification 

Frsumework for the Parnsaldehydc 8taadptds far CaKnpQallta Wood 

Products, EPA Docket ID Number EPA-HQ-OPPT-2011-Q380 

Dear Sir/Madam: 

The U.S. Chamber of Commerce, the world's largest business federation . 

representing the interests of mare than three million businesses of all sizes, sectors, 

and regions, as well as state and local chambers and industry associations, and 

dedicated to promoting, protecting, and defending America's free enterprise system, is 

pleased to submit these comments to the Environmental Protection Agency (EPA) 

regarding the proposed rule titled "Formaldehyde; Third-Party Certification 

Framework for the Formaldehyde Standards for Composite Wood Products", 78 Fed. 

Reg. 34796 Oune 10, 2013), EPA Docket ID Number EPA-HQ-OPPT-2011-038() . 

Many of the Chambers members use, manufacture, or otherwise would be directly or 

indirectly impacted from the regulation of formaldehyde. 

The Chamber is concerned that EPA has (1) needlessly split the formaldehyde 

rule into two separate rulemakings, (2) overreached and exceeded its congressionally 

mandated duties in multiple significant ways, and (3) failed to implement key 

recommendations made to EPA as a result of the Snuff Business Advocacy Review 

(SBAR) process. 

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Comments on EPA's Proposed Rule on Formaldehyde Third-Party Certification 

September 25, 2013 

Page 2 of 6 

Background 

On July 7, 2010, President Obama signed the Formaldehyde Standards for 

Composite-Wood Products Act (FSCWPA) into law.' This legislation added a new 

Title VI to the Toxic Substance Control Act (TSCA)a that establishes limits for 

formaldehyde emissions standards for hardwood plywood, medium-density 

fiberboard, and partideboard. The legislation requires EPA to create federal 

formaldehyde emission standards identical to the current California Air Resources 

Board's (CAM) Airborne Toxic Control Measure (ATCM) Phase II standards. 

EPA accordingly had been tasked by Congress with issuing supplementary 

TSCA regulations in a manner that ensures compliance with CARB's formaldehyde 

emissions standards, These regulations would create a single nationwide 

formaldehyde emission standard for wood composite products and allow those 

manufacturers that are already complying with the CARB standards to not be at a 

competitive disadvantage. 

TSCA Title VI requires EPA to establish third-party testing and certification 

requirements to ensure compliance with the formaldehyde emission standards the 

agency is adopting. On June 10, 2013 EPA issued a proposed rule for Third-Party 

Certification Fratnework3 along with its proposed Formaldehyde Emissions Standards 

for Composite Wood Products.4 

I, 1}i u at3on of the Formaldehvde Rule 

As a threshold matter, it is unclear why EPA chose to issue the formaldehyde 

rule in two parts. These two proposed rules are wholly dependent upon each other 

and neither works without the other. Both proposals were published on the same 

day. The public should have been allowed to comment on the rule as a whole rather 

than two separate pieces. 

It makes no logical or practical sense to have two separate proposed rules that 

are interconnected and dependent. EPA should repurpose the two rules as one single 

proposed rule . 

I P.L 111-199 (2010). 

2 F.L. 94-469 (1976). 

3 78 Fed Reg 34796 Qune 10, 2013). 

4 78 Fed. Reg 34820 Qune 10, 2013). 
Comments on EPA's Proposed Rule on Formaldehyde Third-Party Certification 

September 25, 2013 

Page 3 of 6 

II. CoW-Msional M n tg, and EPA Overreach 

The goal of the FSCWPA was to implement nationwide the California 

formaldehyde emission standards already in existence that many regulated entities are 

already complying with. The CARB regulations have now been in effect for over five 

years, and markets and consumers are familiar with them. 

EPA has a clear Congressional mandate to implement a federal formaldehyde 

standard that is identical to C,ARB's. Instead, EPA has overreached and deviated 

significantly from the California rule. EPA's proposed rule for Third-Party 

Certification Framework differs substantially from the CARB standards and is 

therefore contrary to EPA's Congressional mandate. EPA has also provided little if 

any rationale why their overreach is necessary or justified. 

1 . Agents for Third-Party Certifiers 

CARB's ATCM Phase II standards do not require international third-party 

certifiers to have an agent in California or elsewhere in the U.S. By contrast, EPA's 

proposed rule requires third-party certifiers based outside of the U.S : to designate an 

agent in the U.S . CARB has not had any issues with international third-party certifiers 

and EPA failed to provide a sufficient and valid reason for this additional 

requirement. This is a needless requirement that unfairly burdens international thirdparty certifiers without any corresponding benefit. EPA fails to justlfy why its rule 

should deviate away from the CARB rule. 

EPA needs to align its third-party certifier requirement for international thirdparty cerdfiers to match CARB and not require international third-party certifiers to 

have an agent in the U.S. 

2. Record Retention Requirement 

EPA proposes to require third-party certifiers to maintain records electronically 

for three years. This is one year more than what CARB requires . This period begins 

from the date of creation of the records. Significantly, each downstream customer, 

including fabricators, importers, wholesalers and retailers is also required to maintain 

records for three years from the date. The eventual retailer would ultimately have to 

maintain certification records for a longer time than the third-party certifier. 
Comments on EPA's Proposed Me on Formaldehyde Third-Party Certification 

September 25, 2013 

Page 4 of 6 

Without being able to simply demonstrate compliance through a third-party 

certifier, downstream customers ate made liable for the performance of the products 

they purchased. So this means that if there is an enforcement action at the retail level 

the records maintained by the third party cerdfier may no longer be available to the 

retailer in its defense against the action. This places downstream customers in an 

untenable situation regarding the liability of the products they sell . 

3. Product Certification versus Process Certification 

EPA's proposed rule falls to make a clear decision between product 

certification or process certification . The decision in choosing which certification to 

go with is important in determining how the third-party certification will function. 

Product Certification means that the third-party cettlfier confirms an individual 

product has actually been produced in a way that meets the required standards. In 

product certification, the certifying body assumes at least partial financial liability for 

compliance. 

By contrast, process certification means that the third-party cerrifier verifies 

that the factory is capable of producing products that can meet the required 

specification. In process cettification, the certifying body'has no liability if an actual 

product does not comply with the standard: Process certification creates liability at 

each stage of the supply chain; making each party responsible for the actions of the 

entity prior to it in the supply chain. The manufacturer is responsible for the 

performance of all process-certified products, not the third-party cerdfier. 

By failing to choose the certification process it will require,' EPA creates 

confusion and uncertainty on this crucial issue., EPA needs to choose the process it 

will require. This is a crucial part of the rule because it wilt determine who is 

responsible and liable for the product all the way through the chain of custody. Is it 

fair, for example, to hold a fabricator liable for a mill that produces non-compliant 

composite wood panels? 

s CARB currently requires a process certification process . So tnder CARB's rules, the thitd-party atdHa does not best 

any of the responsibility or liability. CARB's liability sehetne creates $abiYty at each stage of the supply chain from the 

manufacauer all the way down to the retailer. Further, it requires tub patty responsible for the acdona of the entity 

prior to it in the supply chain. 
Comments on EPA's Proposed Rule on Formaldehyde Third-Party Certification 

September 25, 2013 

Page 5 of 6 

This uncertainty could be very costly for our members who are already 

complying with CARB's Process Certification requirement and could have to change 

if EPA determines that it will require with a Product Certification process. 

Even more problematic is the fact that certification process win be the key 

enforcement mechanism for how this rule will be enforced. Because EPA has not 

provided a clear indication of the direction it will take, the question of how and 

through what process enforcement will be handled is left ambiguous. If EPA is truly 

seeking meaningful public input it needs to make a clear decision which direction it 

plans to go. 

If EPA chooses product certification then the cost of the rule wilt increase 

significantly. If EPA chooses process certification then each part of the consumer 

chain is responsible and liable and this will drive the costs of the proposed rule down. 

III. . mAi Bti;,1~,ff jjg,qiew I>afigt,jj,wAyicUsydations 

EPA convened a Small Business Advocacy Review (SBAR) Panel in the fall of 

2010 for its planned formaldehyde standard. During the Panet, seventeen small entity 

representatives (SERs) reviewed the formaldehyde rule proposal and submitted 

comments and recommendations to EPA, the Office of Management and Budget's 

Office of Information and Regulatory Affairs, andthe Small Business 

Administration's Office of Advocacy. The Panel Report containing specific small 

entity flexibility recommendations to the EPA Administrator was signed on April 4, 

2011 and placed in the docket' EPA published the proposed rules on June 10, 201V 

The SBAR Panel considered both proposed rules together. EPA only accepted 

about two-thirds of the 14 Panel recommendations.' This is quite rare when EPA 

deviates from the consensus recommendations, and it is even rarer in the final rule .' 

6 Final Report of the Small Business Advocacy Review Panel on EPA's Planned Proposed Rule Implementing the 

Formaldehyde Standards for Composite Wood Products Act (iBCA title VI), 28-32 (April 4, 201!). 

7 78 Fed, xe8, 34796,34820 Qune 10, 2013). 

e Letter from Winslow Satgeant, Chief Counsel for Advocacy to Gins McCatty, Administrator of EPA, R8: Comments 

on EPA's Formaldehyde Emissions Standards for Composite Wood Produces and Thud-Party Certification Framework 

for the Formaldehyde Standuds for Composite Wood Products : Docket Nos. EPA-HQ-OPPT-2011-0380. EPA-HQOPPT-2012-0018 (August 21, 2013). 

9 Id . at 7 
Comments on EPA's Proposed Rule on Formaldehyde Third-Party Certification 

September 25, 2013 

Page 6 of 6 

For example, the first SBAR Panel recommendation is that EPA should adopt 

regulatory requirements that are consistent with CARB ATCM wherever possible." 

EPA's proposed regulatory requirements are inconsistent with the CARB ATCM and 

these comments as do the SBAR panel recommendations provide numerous examples 

where this is the case. EPA not only did not accept this specific SBAR Panel 

recommendation that they match their regulatory requirements to CARB's, they 

provided no rationale or explanation why they would not accept it" 

EPA needs to follow the recommendations or provide a reason why they will 

not comply with the SBREFA panels' recommendations. For EPA to fail to follow 

the recommendations without explanation is both highly unusual and disappointing. . 

Cornchuion 

I appreciate this opportunity to comment on your Third-Party Certification 

Framework for Formaldehyde and I hope that EPA will address and correct the issues 

I have raised in our comments. 

Sincerely, 

U4wp~F . ~~+~"' 

William L. Kovacs 

~~ Id. at 4. 

~~ Id