[Federal Register Volume 82, Number 197 (Friday, October 13, 2017)]
[Proposed Rules]
[Pages 47645-47656]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-21980]


=======================================================================
-----------------------------------------------------------------------

CONSUMER PRODUCT SAFETY COMMISSION

16 CFR Part 1252

[Docket No. CPSC-2017-0038]


Children's Products, Children's Toys, and Child Care Articles: 
Determinations Regarding Lead, ASTM F963 Elements, and Phthalates for 
Engineered Wood Products

AGENCY: U.S. Consumer Product Safety Commission.

ACTION: Notice of proposed rulemaking.

-----------------------------------------------------------------------

SUMMARY: The Consumer Product Safety Commission (Commission, or CPSC) 
is proposing a rule to determine that certain untreated and unfinished 
engineered wood products (EWPs), specifically, particleboard, hardwood 
plywood, and medium-density fiberboard, made from virgin wood or pre-
consumer waste wood would not contain lead, the ASTM F963 elements, or 
specified phthalates that exceed the limits set forth under the CPSC's 
statutes for children's products, children's toys, and child care 
articles. Based on these proposed determinations, the specified EWPs 
would not be required to have third party testing for compliance with 
the requirements for lead, ASTM F963 elements, or phthalates for 
children's products, children's toys, and child care articles.

DATES: Submit comments by December 27, 2017.

ADDRESSES: You may submit comments, identified by Docket No. CPSC-2017-
0038, by any of the following methods:
    Electronic Submissions: Submit electronic comments to the Federal 
eRulemaking Portal at: http://www.regulations.gov. Follow the 
instructions for submitting comments. The Commission does not accept 
comments submitted by electronic mail (email), except through 
regulations.gov. The Commission encourages you to submit electronic 
comments by using the Federal eRulemaking Portal, as described above.
    Written Submissions: Submit written comments by mail/hand delivery/
courier to: Office of the Secretary, Consumer Product Safety 
Commission, Room 820, 4330 East West Highway, Bethesda, MD 20814; 
telephone (301) 504-7923.
    Instructions: All submissions received must include the agency name 
and docket number. All comments received may be posted without change, 
including any personal identifiers, contact information, or other 
personal information provided, to: http://www.regulations.gov. Do not 
submit confidential business information, trade secret information, or 
other sensitive or protected information that you do not want to be 
available to the public. If furnished at all, such information should 
be submitted in writing by mail/hand delivery/courier.

FOR FURTHER INFORMATION CONTACT: Jacqueline Campbell, Senior Textile 
Technologist, Office of Hazard Identification and Reduction, U.S. 
Consumer Product Safety Commission, 5 Research Place, Rockville, MD 
20850: Telephone 301-987-2024; email: <a href="/cdn-cgi/l/email-protection#82e8e1e3eff2e0e7eeeec2e1f2f1e1ace5edf4"><span class="__cf_email__" data-cfemail="29434a4844594b4c4545694a595a4a074e465f">[email protected]</span></a>.

[[Page 47646]]


SUPPLEMENTARY INFORMATION: 

A. Background

1. Third Party Testing and Burden Reduction

    Section 14(a) of the Consumer Product Safety Act, (CPSA), as 
amended by the Consumer Product Safety Improvement Act of 2008 (CPSIA), 
requires that manufacturers of products subject to a consumer product 
safety rule or similar rule, ban, standard, or regulation enforced by 
the CPSC, must certify that the product complies with all applicable 
CPSC-enforced requirements. 15 U.S.C. 2063(a). For children's products, 
children's toys, and child care articles, certification must be based 
on testing conducted by a CPSC-accepted third party conformity 
assessment body. Id. Public Law 112-28 (August 12, 2011) directed the 
CPSC to seek comment on ``opportunities to reduce the cost of third 
party testing requirements consistent with assuring compliance with any 
applicable consumer product safety rule, ban, standard, or 
regulation.'' Public Law 112-28 also authorized the Commission to issue 
new or revised third party testing regulations if the Commission 
determines ``that such regulations will reduce third party testing 
costs consistent with assuring compliance with the applicable consumer 
product safety rules, bans, standards, and regulations.'' Id. 
2063(d)(3)(B).
    To provide opportunities to reduce the cost of third party testing 
requirements consistent with assuring compliance with any applicable 
consumer product safety rule, ban, standard, or regulations, the CPSC 
assessed whether children's products, children's toys, and child care 
articles manufactured with three engineered wood products, 
specifically, particleboard, hardwood plywood, and medium-density 
fiberboard (collectively referred to as EWPs), would comply with CPSC's 
requirements for lead, ASTM F963 elements or phthalates. If the 
Commission determines that such materials will comply with CPSC's 
requirements with a high degree of assurance, manufacturers do not need 
to have those materials tested by a third party testing laboratory to 
issue a Children's Product Certificate (CPC).

2. CPSC's Lead Standard

    Section 101 of the CPSIA has two requirements associated with lead 
in children's products. 15 U.S.C. 1278a. First, no accessible part of a 
children's product may contain more than 100 parts per million (ppm) 
lead content. Second, paint or other surface coatings on children's 
products and furniture intended for consumer use may not contain lead 
in concentrations greater than 90 ppm. Manufacturers of children's 
products must certify, based on third party testing, that their 
products comply with all relevant children's product safety rules. 
Thus, products subject to the lead content or paint/surface coating 
limits require passing test results from a CPSC-accepted third party 
laboratory for the manufacturer to issue a CPC, before the products can 
be entered into commerce.
    To alleviate some of the third testing burdens associated with lead 
in the accessible component parts of children's products, the 
Commission determined that certain materials, including gemstones, 
precious metals, wood, paper, CMYK process printing inks, textiles, and 
specified stainless steel, do not exceed the 100 ppm lead content limit 
under section 101 of the CPSIA. Based on this determination, such 
materials do not require third party testing for the lead content 
limits. The determinations regarding lead content for certain materials 
are set forth in 16 CFR 1500.91.

3. ASTM F963 Elements

    Section 106 of the CPSIA provides that the provisions of ASTM 
International, Consumer Safety Specifications for Toy Safety (ASTM 
F963), shall be considered to be consumer product safety standards 
issued by the Commission.\1\ 15 U.S.C. 2056b. The Commission has issued 
a rule that incorporates by reference the relevant provisions of ASTM 
F963. 16 CFR part 1250. Thus, children's toys subject to ASTM F963 must 
be tested by a CPSC-accepted third party laboratory and demonstrate 
compliance with all applicable CPSC requirements for the manufacturer 
to issue a CPC before the children's toys can be entered into commerce.
---------------------------------------------------------------------------

    \1\ ASTM F963 is a consumer product safety standard, except for 
section 4.2 and Annex 4, or any provision that restates or 
incorporates an existing mandatory standard or ban promulgated by 
the Commission or by statute.
---------------------------------------------------------------------------

    Section 4.3.5 of ASTM F963 requires that surface coating materials 
and accessible substrates of children's toys that can be sucked, 
mouthed, or ingested \2\ must comply with the solubility limits of 
eight elements given in Table 1 of the toy standard. The materials and 
their solubility limits are shown in Table 1. We refer to these eight 
elements as ``ASTM F963 elements.''
---------------------------------------------------------------------------

    \2\ ASTM F963 contains the following note regarding the scope of 
the solubility requirement: NOTE 4--For the purposes of this 
requirement, the following criteria are considered reasonably 
appropriate for the classification of children's toys or parts 
likely to be sucked, mouthed or ingested: (1) All toy parts intended 
to be mouthed or contact food or drink, components of children's 
toys which are cosmetics, and components of writing instruments 
categorized as children's toys; (2) Children's toys intended for 
children less than 6 years of age, that is, all accessible parts and 
components where there is a probability that those parts and 
components may come into contact with the mouth.

  Table 1--Maximum Soluble Migrated Element in ppm (mg/kg) for Surface
            Coatings and Substrates Included as Part of a Toy
------------------------------------------------------------------------
                 Elements                    Solubility limit, (ppm) \3\
------------------------------------------------------------------------
Antimony (Sb).............................  60
Arsenic (As)..............................  25
Barium (Ba)...............................  1,000
Cadmium (Cd)..............................  75
Chromium (Cr).............................  60
Lead (Pb).................................  90
Mercury (Hg)..............................  60
Selenium (Se).............................  500
------------------------------------------------------------------------

    The third party testing burden could be reduced only if all 
elements listed in section 4.3.5 have concentrations below their 
solubility limits. Because third party conformity assessment bodies 
typically run one test for all of the ASTM F963 elements, no testing 
burden reduction would be achieved if any one of the elements requires 
testing.
---------------------------------------------------------------------------

    \3\ The method to assess the solubility of a listed element is 
detailed in section 8.3.2, Method to Dissolve Soluble Matter for 
Surface Coatings, of ASTM F963. Modeling clays included as part of a 
toy have different solubility limits for several of the elements.
---------------------------------------------------------------------------

    To alleviate some of the third testing burdens associated with the 
ASTM F963 elements in the accessible component parts of children's 
toys, the Commission determined that certain unfinished and untreated 
trunk wood does not contain ASTM F963 elements that would exceed the 
limits specified in section 106 of the CPSIA. Based on this 
determination, unfinished and untreated trunk wood would not require 
third party testing for the ASTM F963 elements. The determinations 
regarding the ASTM F963 elements limits for certain materials is set 
forth in 16 CFR 1251.2.

4. Phthalates

    Section 108(a) of the CPSIA permanently prohibits the manufacture 
for sale, offer for sale, distribution in commerce, or importation into 
the United States of any ``children's toy or child care article'' that 
contains concentrations of more than 0.1 percent of di(2-ethylhexyl) 
phthalate (DEHP), dibutyl phthalate (DBP), or butyl benzyl

[[Page 47647]]

phthalate (BBP). 15 U.S.C. 2057c(a). Section 108(b)(1) prohibits on an 
interim basis (i.e., until the Commission promulgates a final rule), 
the manufacture for sale, offer for sale, distribution in commerce, or 
importation into the United States of ``any children's toy that can be 
placed in a child's mouth'' or ``child care article'' containing 
concentrations of more than 0.1 percent of diisononyl phthalate (DINP), 
diisodecyl phthalate (DIDP), or di-n-octyl phthalate (DnOP). 15 U.S.C. 
2057c(b)(1). Children's toys and child care articles subject to the 
content limits in section 108 of the CPSIA require third party testing 
for compliance with the phthalate content limits before the 
manufacturer can issue a CPC and enter the children's toys or child 
care articles into commerce.
    The CPSIA required the Commission to appoint a Chronic Hazard 
Advisory Panel (CHAP) to ``study the effects on children's health of 
all phthalates and phthalate alternatives as used in children's toys 
and child care articles.'' 15 U.S.C. 2057c(b)(2). The CHAP issued its 
report in July 2014.\4\ Based on the CHAP report, the Commission 
published a notice of proposed rulemaking (Phthalates NPR),\5\ 
proposing to permanently prohibit children's toys and child care 
articles containing concentrations of more than 0.1 percent of DINP, 
and proposing to lift the interim statutory prohibitions with respect 
to DIDP and DnOP. In addition, the Phthalates NPR proposed adding four 
new phthalates, DIBP, DPENP, DHEXP, and DCHP, to the list of phthalates 
that cannot exceed 0.1 percent concentration in accessible component 
parts of children's toys and child care articles. The Commission has 
not finalized its proposal on phthalates in children's toys and child 
care articles.
---------------------------------------------------------------------------

    \4\ http://www.cpsc.gov/PageFiles/169902/CHAP-REPORT-With-Appendices.pdf.
    \5\ https://www.federalregister.gov/articles/2014/12/30/2014-29967/prohibition-of-children's-toys-and-child-care-articles-
containing-specified-phthalates.
---------------------------------------------------------------------------

    Tests for phthalate concentration are among the most expensive 
certification tests to conduct on a product, and each accessible 
component part subject to section 108 of the CPSIA must be tested.\6\ 
Third party testing burden reductions can occur only if each 
phthalate's concentration is below 0.1 percent (1000 ppm). Because 
laboratories typically run one test for all of the specified 
phthalates, no testing burden reduction likely is achieved if any one 
of the phthalates requires compliance testing.
---------------------------------------------------------------------------

    \6\ Test costs for the content of all the specified phthalates 
have been reported to range from $125 to $350 per component, 
depending upon where the tests are conducted and any discounts that 
might apply.
---------------------------------------------------------------------------

    To alleviate some of the third testing burdens associated with 
plastics in the accessible component parts of children's toys and child 
care articles, the Commission determined that products made with 
general purpose polystyrene (GPPS), medium-impact polystyrene (MIPS), 
high-impact polystyrene (HIPS), and super high-impact polystyrene 
(SHIPS) with specified additives do not exceed the phthalates content 
limits under section 108 of the CPSIA. 82 FR 41163 (August 30, 2017). 
Based on this determination, materials used in children's toys and 
child care articles that use these specified plastics and additives 
would not require third party testing for the phthalates content 
limits. The plastics determinations are set forth in the Commission's 
regulations at 16 CFR part 1308.
    The research that provides the basis for the phthalates 
determination covers the six phthalates subject to the statutory 
prohibition and the additional phthalates that the Commission proposed 
to prohibit from use in children's toys and child care articles. After 
the Commission finalizes its phthalates rule, the Commission will 
revise its phthalate determination rule to reflect the phthalates 
restricted by the final phthalates rule.

B. Contractor's Research

    CPSC contracted with the Toxicology Excellence for Risk Assessment 
(TERA) \7\ who authored literature review reports on the content issues 
related to certain natural materials, plastics, and EWPs. The following 
reports produced by TERA formed the basis for the proposed EWP 
determinations: Task 9, Concentrations of Selected Elements in 
Unfinished Wood and Other Natural Materials; Task 11, Exposure 
Assessment: Composition, Production, and Use of Phthalates; and Task 
14, Final Report for CPSC Task 14, which summarized the available 
information on the production of the EWPs. Each report is discussed 
below.
---------------------------------------------------------------------------

    \7\ After conducting the contract reports for the CPSC, TERA 
reorganized as the Risk Science Center at the University of 
Cincinnati: https://med.uc.edu/eh/centers/rsc.
---------------------------------------------------------------------------

1. TERA Task 9 Report

    In the Task 9 Report, TERA conducted a literature search on whether 
unfinished wood and other natural materials could be determined not to 
contain any of the ASTM F963 elements in concentrations greater than 
the ASTM F963 solubility limits.\8\ The materials researched included 
unfinished woods (ash, beech, birch, cherry, maple, oak, pine, poplar, 
and walnut); bamboo; beeswax; undyed and unfinished fibers and textiles 
(cotton, wool, linen, and silk); and uncoated or coated paper (wood or 
other cellulosic fiber).
---------------------------------------------------------------------------

    \8\ http://www.cpsc.gov/Global/Research-and-Statistics/TechnicalReports/Toys/TERAReportASTMElements.pdf.
---------------------------------------------------------------------------

    To assess the presence of the ASTM F963 elements' concentrations in 
the materials, TERA looked at several factors. The factors reviewed 
included the presence and concentrations of the elements in the 
environmental media (e.g., soil, water, air), and in the base materials 
for the textiles and paper; whether processing has the potential to 
introduce any of the ASTM F963 elements into the material under study; 
and the potential for contamination after production, such as through 
packaging. From this report, the Commission determined that untreated 
and unfinished woods from tree trunks do not contain any of the 
elements in ASTM F963 in concentrations greater than their respective 
solubility limits, and thus, they are not required to be third party 
tested to ensure compliance with the specified solubility test.\9\ TERA 
relied on this information in TERA Task Report 14 to determine that the 
virgin wood material used in the manufacture of EWPs does not, and will 
not, contain any of the elements in ASTM F963 in concentrations greater 
than their respective solubility limits.
---------------------------------------------------------------------------

    \9\ 80 FR 78651 (Dec. 17, 2015).
---------------------------------------------------------------------------

2. TERA Task 11 Report

    In the Task 11 Report, TERA conducted a literature search on the 
production and use of 11 specified phthalates in consumer products.\10\ 
The 11 phthalates researched by TERA were based on the recommendations 
made in the CHAP report. Table 2 lists the phthalates researched by 
TERA. TERA's research focused on the following factors:
---------------------------------------------------------------------------

    \10\ http://www.cpsc.gov//Global/Research-and-Statistics/Technical-Reports/Other%20Technical%20Reports/TERAReportPhthalates.pdf.
---------------------------------------------------------------------------

    <bullet> The raw materials used in the production of the specified 
phthalates;
    <bullet> The manufacturing processes used worldwide to produce the 
specified phthalates;
    <bullet> Estimated annual production of the specified phthalates;
    <bullet> Physical properties of the specified phthalates (e.g., 
vapor pressure, flashpoint, water solubility, temperature at which 
chemical breakdown occurs);

[[Page 47648]]

    <bullet> Applications for phthalates use in materials and consumer 
and non-consumer products; and
    <bullet> Other potential routes by which phthalates can be 
introduced into an otherwise phthalates-free material (e.g., migration 
from packaging, recycling, reuse, product breakdown).

          Table 2--Phthalates Researched in the Task 11 Report
------------------------------------------------------------------------
            Phthalate                            CASRN \11\
------------------------------------------------------------------------
DEHP: di-(2-ethylhexyl) phthalate  117-81-7
DBP: dibutyl phthalate...........  84-74-2
BBP: benzyl butyl phthalate......  85-68-7
DINP: diisononyl phthalate.......  28553-12-0, 68515-48-0
DIDP: diisodecyl phthalate.......  26761-40-0, 68515-49-1
DnOP: di-n-octyl phthalate.......  117-84-0
DIOP: diisooctyl phthalate.......  27554-26-3
DIBP: diisobutyl phthalate.......  84-69-5
DPENP: di-n-pentyl phthalate.....  131-18-0
DHEXP: di-n-hexyl phthalate......  84-75-3
DCHP: dicyclohexyl phthalate.....  84-61-7
------------------------------------------------------------------------

    TERA found that phthalates are used generally as plasticizers or 
softeners of certain plastics, primarily polyvinyl chloride (PVC), as 
solvents, and as component parts of inks, paints, adhesives, and 
sealants.
---------------------------------------------------------------------------

    \11\ A CAS Registry Number is assigned to a substance when it 
enters the CAS REGISTRY database. https://www.cas.org/content/chemical-substances/faqs.
---------------------------------------------------------------------------

3. TERA Task 14 Report

    In the Task 14 Report, TERA conducted a literature search on the 
production of three EWPs: Particleboard, hardwood plywood, and medium-
density fiberboard.\12\ TERA first researched authoritative sources, 
such as reference books and textbooks, along with Internet resources, 
for general information about EWPs, adhesives, raw materials, 
manufacturing processes, and the potential use of recycled materials. 
TERA used this information and consulted technical experts to identify 
key words for searching the literature. These key words were then used 
to conduct primary literature searches for research studies and 
publications. In addition, TERA searched for Safety Data Sheets (SDS) 
for information on raw materials. TERA researched the possibility of 
the raw materials or finished products in the three EWPs to contain:
---------------------------------------------------------------------------

    \12\ https://www.cpsc.gov/s3fs-public/ManufacturedWoodsTERATask14Report.pdf.
---------------------------------------------------------------------------

    <bullet> Lead in concentrations exceeding 100 ppm;
    <bullet> Any of the specified elements that are included in the 
safety standard for children's toys, ASTM F963, Standard Consumer 
Safety Specification for Toy Safety, in concentrations exceeding 
specified solubility limits; or
    <bullet> Any of 10 specified phthalates in concentrations greater 
than 0.1 percent (1000 ppm), listed in Table 3.\13\
---------------------------------------------------------------------------

    \13\ The TERA research providing the basis for this 
determination covers the six phthalates subject to the statutory 
prohibition, as well as the additional phthalates the Commission 
proposed to prohibit in children's toys and child care articles. The 
phthalates determination lists only the six phthalates subject to 
the statutory prohibition. However, when the Commission issues a 
final rule for the specified phthalates in children's toys and child 
care articles, the Commission could revise the phthalates 
determination, if needed.

        Table 3--Phthalates Researched in the Task 14 Report \14\
------------------------------------------------------------------------
            Phthalate                              CASRN
------------------------------------------------------------------------
DEHP: di-(2-ethylhexyl) phthalate  117-81-7
DBP: dibutyl phthalate...........  84-74-2
BBP: benzyl butyl phthalate......  85-68-7
DINP: diisononyl phthalate.......  28553-12-0, 68515-48-0
DIDP: diisodecyl phthalate.......  26761-40-0, 68515-49-1
DnOP: di-n-octyl phthalate.......  117-84-0
DIBP: diisobutyl phthalate.......  84-69-5
DPENP: di-n-pentyl phthalate.....  131-18-0
DHEXP: di-n-hexyl phthalate......  84-75-3
DCHP: dicyclohexyl phthalate.....  84-61-7
------------------------------------------------------------------------

    TERA found that, generally, the processes for manufacturing the 
three EWPs are similar; wood fibers, chips, layers, or a similar raw 
wood product are processed with various adhesive formulations 
(sometimes referred to as binders or resins) along with other additives 
to create uniform sheets with known characteristics and performance 
qualities. The main difference among the three types of EWPs relates 
primarily to the size and morphology (shape and surface 
characteristics) of the wood material used in their production.
---------------------------------------------------------------------------

    \14\ While included in the Task 11 Report, DIOP was not included 
in the Task 14 Report because the ban on DIOP was proposed to be 
removed in the Phthalates NPR.
---------------------------------------------------------------------------

    TERA reviewed the literature to assess whether the specified EWPs 
might contain lead or one or more of the other elements at levels that 
exceed the ASTM solubility limits, or any of the specified phthalates 
in concentrations greater than the specified limits. TERA reported that 
no studies found lead, the ASTM F963 elements, or the specified 
phthalates in concentrations greater than their limits in 
particleboard, hardwood plywood, or medium-density fiberboard, that are 
unfinished and untreated, and made from virgin wood or pre-consumer 
wood waste.
    In the Task 14 Report, TERA described an unfinished EWP as one that 
does not have any surface treatments applied at manufacture, such

[[Page 47649]]

as factory-applied coatings. An untreated EWP is one that does not have 
any additional finishes applied at manufacture such as flame retardants 
or rot resistant finishes. TERA described virgin wood as wood logs, 
fibers, chips, or layers that have not been recycled from a previous 
use. TERA described pre-consumer wood waste as wood materials that have 
been recycled from an industrial process before being made available 
for consumer use. Examples of this type of waste include trimmings from 
EWP panel manufacturing, sawdust from cutting logs, or remaining wood 
pieces from sawing a log into framing lumber.
    The TERA report highlighted the potential for lead, the ASTM F963 
elements, or the specified phthalates to be present in concentrations 
greater than those specified through the use of contaminated recycled 
material in EWPs made from recycled wood waste or EWPs that have post-
manufacturing treatments or finishes. Recycled wood waste may be made 
from reclaimed or post-consumer wood waste. Post-consumer wood waste is 
described as wood waste that is comprised of materials that are 
recovered from their original use and subsequently used in a new 
product. Examples of this type of waste include recycled demolition 
wood, packaging materials such as pallets and crates, used wood from 
landscape care (i.e., from urban and highway trees, hedges, and 
gardens), discarded furniture, and waste wood from industrial, 
construction, and commercial activities.
    The three types of EWPs reviewed by TERA are discussed below.
a. Particleboard
    Particleboard is a composite of wood chips, adhesives, and other 
additives pressed into a board. Adhesive formulations are used to bond 
wood chips, which are then formed into mats that are layered to create 
uniform boards in a range of dimensions. Particleboard is used widely 
in furniture making and other interior (or nonstructural) uses. The 
constituent parts of particleboard reported by TERA can include (by 
weight):
    <bullet> Wood (60-99+ percent);
    <bullet> Adhesive formulation (0-17 percent, with 5-11 percent most 
common)
    <bullet> May include phenol-formaldehyde (uncommon but potential 
for use), urea-formaldehyde, melamine-urea-formaldehyde, polymeric 
methylene-diphenyl-diisocyanate (pMDI);
    <bullet> Waxes (0.3-1 percent);
    <bullet> Other additives (up to 2 percent); or
    <bullet> Scavengers or additional unspecified materials.
    TERA researched the possibility of lead, the ASTM F963 elements, or 
the specified phthalates, in concentrations greater than their 
specified limits in particleboard. TERA identified little information 
on measurements of lead and the ASTM F963 elements in particleboard and 
no studies that measured the specified phthalates. TERA identified two 
references where particleboard made from both untreated and copper 
chromate arsenic-(CCA) treated wood chips was tested. Arsenic and 
chromium were undetected in the particleboards made from virgin wood 
chips. However, the particleboard composed of 25 percent wood chips 
from reclaimed CCA-treated wood products contained 895 and 832 ppm of 
arsenic and chromium, respectively, without adversely affecting the 
mechanical performance of the board. Another study that discussed 
``recycled particleboard'' was identified as wood waste obtained from a 
wood recycling plant.
    Apart from the studies on particleboard made from wood waste that 
may contain post-consumer wood waste or post-manufacturing treatments, 
TERA reported that no studies found lead, the ASTM F963 elements, or 
the specified phthalates in concentrations greater than the specified 
limits in untreated and unfinished particleboard.
b. Hardwood Plywood
    Plywood is a layered board of wood veneers where the layers have 
alternating, perpendicular wood grain directions. Less commonly, the 
board might have a core of other EWPs with wood veneers as the outer 
layers. Hardwood plywood, addressed in this report, is a type of 
plywood that is composed of angiosperms (i.e., ``hardwoods,'' such as 
oak or maple) and used primarily in furniture and other interior 
(nonstructural) uses, as well as in playground equipment, sports 
equipment, and musical instruments. The constituent parts of hardwood 
plywood reported by TERA can include (by weight):
    <bullet> Wood (75-99+ percent);
    <bullet> Adhesive formulation (0.02-20 percent, with 1 percent to 5 
percent most common)
    <bullet> May include phenol-formaldehyde or phenol-resorcinol-
formaldehyde (likely for use in structural plywood but potential for 
application to hardwood plywood), urea-formaldehyde, melamine-
formaldehyde, or melamine-urea-formaldehyde, or polyvinyl acetate 
(PVAc); or
    <bullet> Other additives (less than 2 percent).
    TERA researched the possibility of lead, the ASTM F963 elements, or 
the specified phthalates in concentrations greater than those specified 
in hardwood plywood. TERA identified only one study that measured lead 
and the ASTM F963 elements in plywood and no studies that measured the 
specified phthalates. Concentrations of cadmium, chromium, and lead, 
were all less than the solubility limits, in ``plain'' plywood. In 
addition, because hardwood plywood is made from sheets of wood veneer, 
it is less likely to contain recycled wood content, unless it 
incorporates a core of some other EWP, such as particleboard or medium-
density fiberboard.
    Aside from the studies on recycled wood waste that may contain 
post-consumer wood waste or post-manufacturing treatments in a 
particleboard, medium-density fiberboard, or other EWP core, TERA 
reported that no studies found lead, the ASTM F963 elements, or the 
specified phthalates in concentrations greater than the specified 
limits in untreated and unfinished hardwood plywood. However, TERA 
identified research which indicated that polyvinyl acetate (PVAc) can 
be used as an adhesive system for hardwood plywood as discussed in 
section (d) below.
c. Medium-Density Fiberboard
    Medium-density fiberboard (MDF) is a composite of wood fibers, an 
adhesive formulation, and other additives pressed into a board. MDF is 
a similar product to particleboard, differing mostly due to the use of 
fiber rather than chips. It is used primarily in furniture and other 
interior (nonstructural) uses. The constituent parts of MDF reported by 
TERA can include (by weight):
    <bullet> Wood (73-99+ percent);
    <bullet> Adhesive formulation (0-25 percent with most common 5-12 
percent);
    <bullet> May include phenol-formaldehyde (uncommon, but potentially 
used for moisture resistance), urea-formaldehyde (most commonly 
identified), methylene-diphenyl-diisocyanate (pMDI), melamine-
formaldehyde, or melamine-urea-formaldehyde;
    <bullet> Waxes (less than 1 percent); or
    <bullet> Other additives (10-30 percent).
    TERA researched the possibility of lead, the ASTM F963 elements, or 
the specified phthalates in concentrations greater than those specified 
in MDF. TERA did not identify any references that reported the presence 
of lead, the ASTM F963 elements, or the specified phthalates in MDF 
made with virgin wood.

[[Page 47650]]

    Aside from the studies on recycled wood waste that may contain 
post-consumer wood waste or post-manufacturing treatments, TERA 
reported that no studies found lead, the ASTM F963 elements, or the 
specified phthalates in concentrations greater than the specified 
limits in untreated and unfinished MDF.
d. TERA's Findings on EWP Constituent Parts
    Because few references were found directly addressing lead, the 
ASTM F963 elements, and the specified phthalates in EWPs, TERA also 
researched the constituent parts that could be used to manufacture 
EWPs, including wood and adhesives.
Wood
    According to the manufacturing process information provided by 
TERA, virgin wood and wood residues are the main source of wood fiber 
used in North America to manufacture EWPs. Typically, these sources 
include low value logs, industrial wood residues, or scraps and trim 
from furniture and EWP production. For example, hardwood plywood 
requires the trunks of trees to obtain the thin layers of veneer used 
to construct a sheet. TERA relied on the Task 9 Report and Commission 
findings on unfinished and untreated wood (80 FR 78651 (Dec. 17, 2015)) 
to determine that untreated and unfinished wood from the trunks of 
trees do not contain lead or the ASTM F963 elements in concentrations 
greater than the specified solubility limits. TERA also noted that, 
although phthalates can be taken up by trees and plants, the 
concentrations are negligible and less than the specified limit (0.1 
percent).
    Although TERA reported that the majority of EWPs are manufactured 
with virgin wood or pre-consumer wood waste fiber or chips, the wood 
component also can originate from recycled material. For EWPs made from 
recycled wood waste that may contain post-consumer wood waste, the TERA 
report highlighted the potential for lead, the ASTM F963 elements, or 
the specified phthalates to be present in concentrations greater than 
those specified through the use of contaminated recycled material. The 
TERA report cited multiple examples of the use of reclaimed or post-
consumer wood material used to produce EWPs, both domestically and 
internationally. Specifically, TERA found studies showing that 
reclaimed lumber and wood waste could contain a myriad of contaminants, 
such as surface treatments (e.g., paints, stains), metals, glues and 
adhesives, glass, paper, plastic, rubber and chemical treatments. 
Metals and organic materials may be present in paints, stains, 
varnishes, and polishes that are used on wood products (e.g., 
furniture, window frames) and nails, screws, and other metal hardware 
might be attached to the recycled and recovered wood. These 
contaminants are intimately attached to the wood, and therefore, some 
contaminants may pass through cleaning systems, contaminating the 
entire recovered wood stream.
    TERA also reviewed another study, based in Italy that evaluated the 
``recyclability'' of used wood by conducting elemental analysis of wood 
residues from wood recycling plants using a handheld fast energy 
dispersive X-ray fluorescence spectroscopy (ED-XRF) device. TERA found 
that the study provided some indication of types and levels of 
contamination in various kinds of post-consumer wood waste. Elemental 
analysis results were compared to EU Community Ecolabel limits.\15\ For 
all wood products tested, 16 percent exceeded one or more of the 
Ecolabel limits, with the highest concentrations from lead, chromium, 
chlorine, copper, cadmium, and mercury. No samples had levels of 
arsenic over the 25 ppm limit (except a CCA-treated utility pole). 
Barium and lead were found in 10 percent to 20 percent of the samples, 
chromium and cadmium in 3 percent to 4 percent, and antimony, mercury, 
and arsenic ranged from 0.3 percent to 1.2 percent of samples. The 
sources most contaminated with non-wood content were from furniture and 
building materials, while pallets and shipping containers were least 
likely to be contaminated.\16\
---------------------------------------------------------------------------

    \15\ Ecolabel element concentrations are less than 25 mg/kg of 
arsenic, 25 mg/kg of mercury, 25 mg/kg of chromium, 50 mg/kg 
cadmium, 90 mg/kg lead, and 40 mg/kg copper (EU, 2004). Ecolabel 
limits are similar to ASTM solubility limits for the ASTM F963 
elements.
    \16\ Twenty-four percent of furniture and 18 percent of building 
materials had one or more ASTM F963 elements exceeding the limits 
which may be due to manufacturing processes such as painting, 
preservation, and overlaying, which are common with furniture and 
building materials. The most polluted types of wood waste were 
particleboard (37% exceeded Ecolabel limits), recycled particleboard 
(25% exceeded), and plywood (18% exceeded); while fiberboard (MDF 
and HDF) exceeded limits in 9 percent of samples.
---------------------------------------------------------------------------

    TERA concluded that, with an increased interest and use of post-
consumer recycled materials in EWP production, potential contamination 
by the specified elements and phthalates must be considered. To ensure 
that EWPs made from used wood fibers do not contain ASTM F963 elements 
or phthalates the exceed the specified limits, TERA indicated that the 
materials would need to be sorted carefully and tested to be assured 
that they are not contaminated.
Adhesive Formulations
    Adhesive formulations hold the wood chips, layers, or fibers 
together to make EWP mats and sheets. Some of the formulations use a 
metal catalyst during the curing process. TERA identified a number of 
references describing the presence of the ASTM F963 elements in 
adhesive formulations. However, TERA found very few references that 
would implicate EWPs. Although the use of barium was noted in multiple 
references, only one study appeared to be relevant to EWPs. This study 
suggested that barium, when used as a catalyst in an adhesive, could 
result in an EWP that exceeded the ASTM solubility level for 
barium.\17\ However, this method does not appear to be used currently 
in EWP production. TERA also noted studies that indicate the possible 
use of chromium as a catalyst in phenol formaldehyde resin as well as 
the possible use of antimony or arsenic in a drier formulation for 
certain polymeric coatings. However, no references included information 
on concentrations or appeared relevant to EWPs.
---------------------------------------------------------------------------

    \17\ Wang and Zhang (2011) studied the use of calcium hydroxide, 
Ba(OH)<INF>2</INF>, and magnesium hydroxide and their effect on cure 
times for phenol formaldehyde adhesive formulations, finding that 
the use of Ba(OH)<INF>2</INF> could be a viable means to speed up 
cure times. Both calcium hydroxide and Ba(OH)<INF>2</INF> had 
similar cure times and are about the same price in bulk. Because the 
compounds would be used in an adhesive system, the catalyst is not 
expected to be recovered and so would remain in situ once curing is 
complete. If the catalyst remained in the adhesive, it could result 
in concentrations of barium exceeding the ASTM solubility limits.
---------------------------------------------------------------------------

    Although many different adhesive formulations may be used in 
hardwood plywood, TERA noted that PVAc can be used as an adhesive 
system for hardwood plywood. The report cited sources (The Handbook of 
Adhesive Technology, USDA) that mentioned the use of some of the 
specified phthalates in PVAc adhesive formulations.\18\ TERA also 
identified research papers which included the use of DBP and DEHP in 
PVAc at concentrations greater than 0.1 percent.
---------------------------------------------------------------------------

    \18\ The USDA publication Wood Handbook: Wood as an Engineering 
Material (2010) explains that ``Plasticizers, for example dibutyl 
phthalate, are used to soften the brittle vinyl acetate homopolymer 
in poly(vinyl acetate) emulsion adhesives. This is necessary to 
facilitate adhesive spreading and formation of a flexible adhesive 
film from the emulsion at and below room temperature.''

---------------------------------------------------------------------------

[[Page 47651]]

C. CPSC Staff Analysis of TERA Reports

1. EWPs Made From Virgin Wood or Pre-Consumer Wood Waste

    CPSC staff reviewed the TERA Task 9, 11 and 14 Reports. CPSC staff 
also examined TERA's source references to better understand the 
reports' findings. CPSC's review of TERA's Task 14 Report showed that 
there were few studies characterizing the content of EWPs, as 
manufactured, in relation to lead and the ASTM F963 elements, and no 
studies were found on the phthalates of interest. Where there were 
studies, staff's review of the TERA report showed there was no evidence 
that untreated and unfinished EWPs made from virgin wood or pre-
consumer wood waste, using generally used manufacturing practices and 
materials, had content levels greater than the specified limits.
    Staff finds that, based on the TERA reports, untreated and 
unfinished EPWs (particleboard, hardwood plywood, and medium-density 
fiberboard) made from virgin wood or pre-consumer wood waste, do not 
contain lead, or any of the specified elements in ASTM F963 that exceed 
the specified limits. In addition, with the exception of hardwood 
plywood that contains PVAc adhesive formulations, discussed further in 
this section, the specified EWPs do not contain any of the specified 
phthalates in concentrations greater than 0.1 percent.

2. EWPs Made From Reclaimed or Post-Consumer Wood Waste

    The TERA Task 14 Report highlighted the risk of introducing 
materials contaminated with lead, the ASTM F963 elements, and the 
specified phthalates when using reclaimed or post-consumer wood waste 
to manufacture EWPs. Staff is aware that there is increasing interest 
in using recycled materials, rather than landfilling. Environmentally 
oriented initiatives encourage recycled wood content, especially in the 
European Union (E.U.). The E.U. Waste Framework Directive requires 
recycling or reuse of at least 70 percent of construction and 
demolition waste in member states by 2020.\19\
---------------------------------------------------------------------------

    \19\ http://ec.europa.eu/environment/waste/construction_demolition.htm.
---------------------------------------------------------------------------

    Staff's review of TERA's reclaimed or post-consumer waste 
assessment in EWPs indicates that, although most manufacturing in the 
Americas currently does not use post-consumer wood waste as a 
constituent part, EWPs with post-consumer wood content are not only 
technologically feasible, but also are currently available. Although 
the majority of the post-consumer wood waste used to manufacture EWPs 
is ``clean,'' consisting of wood pallets, spools, or shipping crates, 
reclaimed materials could be contaminated with paint, coatings, or 
chemical treatments. There are some standards (e.g., European Panel 
Federation, E.U. Community Ecolabel) for EWPs with content requirements 
that roughly align with the ASTM F963 requirements; however, many are 
voluntary and have no third party testing requirements.
    Staff notes that manufacturers do have an incentive to avoid 
contamination of EWPs because the addition of recycled materials could 
be detrimental to manufacturing equipment or the finished product's 
performance. Surface coatings, such as paint or stains, metals from 
nails or fasteners, adhesive formulations, such as resins or glues, and 
other non-wood content can potentially damage equipment, stop a 
production line, or adversely impact the uniformity of the product. 
However, staff is not aware of any current manufacturer processing 
protocols that would keep unwanted contaminants out of EWP 
manufacturing. Because of the contamination issues identified, the 
staff does not have a high degree of assurance that EWPs made from 
post-consumer wood waste are compliant with sections 101, 106, or 108 
of the CPSIA at this time.

3. EWPs With Post-Manufacturing Treatments or Finishes

    Staff's review of the Task 14 Report shows that most consumer 
products made from EWPs will have some additional treatments or 
finishes that are applied to the EWPs after their manufacture. TERA's 
report identified that certain surface treatments (e.g., paints, 
stains), metals, glues and adhesives, glass, paper, plastic, rubber and 
chemical treatments may be added to EWPs. Metals and organic materials 
may be present in paints, stains, varnishes, and polishes that are used 
on wood products (e.g., furniture, window frames) and nails, screws, 
and other metal hardware might be attached to the recycled and 
recovered wood.
    Staff's review shows that post-manufacturing treatments or finishes 
made be applied to EWPs manufactured from virgin or pre-consumer wood 
waste, as well as EWPs manufactured from post-consumer wood waste. Such 
treatments or finishes may include paint or similar surface coating 
materials, flame retardants, rot resistant finishes, wood glue, or 
metal fasteners. The TERA report indicated that coatings, finishes, and 
chemical treatments, such flame-retardant coatings or rot resistant 
finishes, are a potential source of phthalates or the ASTM F963 
elements. Staff's review of EWPs that have post-manufacturing 
treatments or finishes shows that there is potential for lead, the ASTM 
F963 elements, or the specified phthalates to be present in 
concentrations greater than at the specified levels. Unless a post-
manufacture treatment or finish has been determined by the CPSC to be 
compliant with sections 101, 106, or 108 of the CPSIA,\20\ staff does 
not have a high degree of assurance that EWPs that have post-
manufacturing treatments or finishes are compliant with sections 101, 
106, or 108 of the CPSIA at this time.
---------------------------------------------------------------------------

    \20\ See 16 CFR 1500.91; 16 CFR 1250.2; 16 CFR part 1308.
---------------------------------------------------------------------------

4. Adhesive Formulations in EWPs

    The Task 14 Report generally found that there was little evidence 
to suggest that the ASTM F963 elements are likely to be present in any 
of the commonly used adhesives in concentrations greater than the ASTM 
solubility limits. Staff notes, that although one study suggested that 
barium, when used as a catalyst in an adhesive, could result in an EWP 
that exceeded the ASTM solubility level for barium, this method does 
not appear to be used currently in EWP production.
    Staff's review of the Task 11 Report indicates that phthalates 
could be used in some adhesive formulations, including in PVAc 
adhesives, such as wood or craft glues. In addition, the Task 14 Report 
identified the adhesive formulations used in the manufacture of EWPs 
and found that one, PVAc, could contain at least one of the specified 
phthalates. TERA also reported that PVAc could be used in hardwood 
plywood manufacturing. However, TERA was unable to identify whether the 
specific PVAc adhesive formulations used currently in the manufacture 
of hardwood plywood contained any of the specified phthalates in 
concentrations greater than the specified limits.
    CPSC staff research indicates that PVAc may be associated with the 
manufacture of hardwood plywood, consistent with TERA's finding. One 
manufacturer of EWP adhesive formulations provided information through 
a contact at the USDA Forest Products Laboratory. The manufacturer 
confirmed that, while current formulations no longer use phthalates, 
PVAc adhesive formulations they manufacture contained phthalates in the 
past. The manufacturer also stated that there is greater use of PVAc 
adhesive formulations in hardwood plywood

[[Page 47652]]

than indicated in the TERA report, perhaps due to an increasing 
interest in lowering formaldehyde emissions from EWPs. Because of the 
lack of information regarding the use of PVAc adhesives containing the 
specified phthalates in concentrations greater than those allowed, 
staff does not have a high degree of assurance that EWPs that include 
PVAc adhesive formulations in hardwood plywood are compliant with 
sections 101, 106, or 108 of the CPSIA at this time.

D. Determinations for EWPs

1. Legal Requirements for a Determination

    As discussed in section A.1. of the preamble, section 14(a)(2) of 
the CPSA requires third party testing for children's products that are 
subject to a children's product safety rule. 15 U.S.C. 2063(a)(2). 
Children's products must comply with the lead limits in section 101 of 
the CPSIA. 15 U.S.C. 1278a. Children's toys must comply with the 
solubility limits for elements under the ASTM toy standard in section 
106 of the CPSIA. 15 U.S.C. 2056b. Children's toys and child care 
articles must comply with the phthalates prohibitions in section 108 of 
the CPSIA. 15 U.S.C. 2057c. In response to statutory direction, the 
Commission has investigated approaches that would reduce the burden of 
third party testing while also assuring compliance with CPSC 
requirements. As part of that endeavor, the Commission has considered 
whether certain materials used in children's products, children's toys, 
and child care articles would not require third party testing.
    To issue a determination that an EWP does not require third party 
testing, the Commission must have sufficient evidence to conclude that 
the product consistently complies with the CPSC requirements to which 
the EWP is subject so that third party testing is unnecessary to 
provide a high degree of assurance of compliance. Under 16 CFR part 
1107 section 1107.2, ``a high degree of assurance'' is defined as ``an 
evidence-based demonstration of consistent performance of a product 
regarding compliance based on knowledge of a product and its 
manufacture.''
    For accessible component parts of children's products, children's 
toys, and child care articles subject to sections 101, 106, and 108 of 
the CPSIA, compliance to the specified content limits is always 
required, irrespective of any testing exemptions. Thus, a manufacturer 
or importer who certifies a children's product, toy or child care 
article, must assure the product's compliance. The presence of lead, 
the ASTM F963 elements, or the specified phthalates does not have to be 
intended to require compliance. The presence of these chemicals, 
whether for any functional purpose, as a trace material, or as a 
contaminant, must be in concentrations less than the specified content 
or solubility limits for the material to be compliant. Additionally, 
the manufacturer or importer must have a high degree of assurance that 
the product has not been adulterated or contaminated to an extent that 
would render it noncompliant. For example, if a manufacturer or 
importer is relying on a determination that an EWP does not contain 
lead, ASTM F963 elements, or specified phthalates in concentrations 
greater than the specified limits in a children's product, children's 
toy, or child care article, the manufacturer must ensure that the EWP 
is one on which a determination has been made.
    Furthermore, under the proposed rule, any determinations that are 
made on EWPs are limited to unfinished and untreated EWPs made from 
virgin wood or pre-consumer wood waste. Children's products, children's 
toys, and child care articles made from these EWPs may have other 
materials that are applied to or added on to the EWP after it is 
manufactured, such as treatments and finishes. Such component parts 
fall outside of the scope of the proposed determinations and would be 
subject to third party testing requirements, unless the component part 
has a separate determination which does not require third-party testing 
for certification purposes. Finally, even if a determination is in 
effect and third party testing is not required, a certifier must still 
issue a certificate.
    The three engineered woods for which the determinations are 
proposed are: Particleboard, hardwood plywood, and medium-density 
fiberboard. Based on staff's review of the TERA reports as discussed in 
section C. of the preamble, the Commission is proposing determinations 
that there is a high degree of assurance that these three EWPs in an 
untreated and unfinished state made from virgin or pre-consumer wood 
waste will not contain lead, the ASTM F963 elements, or the specified 
phthalates in excess of allowable levels. Specifically, the Commission 
is proposing determinations that would find that particleboard and MDF 
that is untreated and unfinished and made with virgin wood or pre-
consumer wood waste, would not contain lead, the ASTM F963 elements, or 
the specified phthalates (DEHP, DBP, BBP, DINP, DIDP, or DnOP) in 
concentrations greater than their specified limits.
    In addition, with the exception of hardwood plywood that contains 
PVAc adhesive formulations, untreated and unfinished hardwood plywood 
made with virgin wood or pre-consumer wood waste would be determined 
not to contain lead, the ASTM F963 elements, and the specified 
phthalates in concentrations greater than their specified limits.
    These determinations would mean that, for the specified EWPs, third 
party testing is not required to assure compliance with sections 101, 
106, and 108 of the CPSIA. The Commission proposes to make these 
determinations to reduce the third party testing burden on children's 
product certifiers while continuing to assure compliance.

2. Statutory Authority

    Section 3 of the CPSIA grants the Commission general rulemaking 
authority to issue regulations, as necessary, to implement the CPSIA. 
Public Law 110-314, sec. 3, Aug. 14, 2008. Section 14 of the CPSA, 
which was amended by the CPSIA, requires third party testing for 
children's products subject to a children's product safety rule. 15 
U.S.C. 2063(a)(2). Section 14(d)(3)(B) of the CPSA, as amended by 
Public Law 112-28, gives the Commission the authority to ``prescribe 
new or revised third party testing regulations if it determines that 
such regulations will reduce third party testing costs consistent with 
assuring compliance with the applicable consumer product safety rules, 
bans, standards, and regulations.'' Id. 2063(d)(3)(B). These statutory 
provisions authorize the Commission to propose a rule determining that 
certain EWPs would not be determined to contain lead, the ASTM F963 
elements, and the specified phthalates (DEHP, DBP, BBP, DINP, DIDP, or 
DnOP) \21\ in concentrations greater than their specified limits, and 
thus, are not required to be third party tested to assure compliance 
with sections 101, 106, and 108 of the CPSIA.
---------------------------------------------------------------------------

    \21\ See supra note 13.
---------------------------------------------------------------------------

    The proposed determinations would relieve the three specified EWPs 
from the third party testing requirement of section 14 of the CPSA for 
purposes of supporting the required certification. However, the 
proposed determinations would not be applicable to any other EWPs 
beyond those listed in the proposed rule. Moreover, the proposed 
determinations are not applicable to EWPs that are not made of virgin 
wood or pre-consumer wood waste, or to

[[Page 47653]]

EWPs that have post-manufacture treatments or finishes. The proposed 
determinations also are not applicable to hardwood plywood that contain 
PVAc adhesive formulations. The proposed determinations would only 
relieve the manufacturers' obligation to have the specified EWPs tested 
by a CPSC accepted third party conformity assessment body. Children's 
products, children's toys, and child care articles must still comply 
with the substantive content limits in section 101, 106, and 108 of the 
CPSIA regardless of any relief on third party testing requirements.

3. Description of the Proposed Rule

    This proposed rule would create a new Part 1252 for ``Children's 
Products, Children's toys, and Child Care Articles: Determinations 
Regarding Lead, ASTM F963 Elements, and Phthalates for Engineered Wood 
Products.'' The proposed rule would determine that the specified three 
EWPs do not contain lead in concentrations exceeding 100 ppm, any of 
the ASTM F963 elements in excess of specified concentrations, and any 
of the statutorily prohibited phthalates (DEHP, DBP, BBP, DINP, DIDP, 
DnOP) in concentrations greater than 0.1 percent. As discussed in 
section A.4. of the preamble, the agency is currently involved in 
rulemaking to determine whether to continue the interim prohibitions in 
section 108 and whether to prohibit any other phthalates in children's 
toys or child care articles. TERA's examination covered all phthalates 
that are subject to the current permanent and interim prohibitions, as 
well as the additional phthalates the Commission proposed restricting 
in the Phthalates NPR. If the Commission issues a final rule in the 
phthalates rulemaking before finalizing this determinations rulemaking, 
the final determinations rule for EPWs would cover the same phthalates 
restricted by the final phthalates rule.
    Section 1252.1(a) of the proposed rule explains the statutorily-
created requirements that limit lead in children's products under the 
CPSIA and the third party testing requirements for children's products.
    Section 1252.1(b) of the proposed rule explains the statutorily-
created requirements for limiting the ASTM F963 elements in children's 
toys under the CPSIA and the third party testing requirements for 
children's toys.
    Section 1252.1(c) of the proposed rule explains the statutorily-
created requirements limiting phthalates for children's toys and child 
care articles under the CPSIA and the third party testing requirements 
for children's toys and child care articles.
    Section 1252.2 of the proposed rule would provide definitions that 
apply to part 1252.
    Section 1252.3(a) of the proposed rule would establish the 
Commission's determinations that specified EWPs do not exceed the lead 
content limits with a high degree of assurance as that term is defined 
in 16 CFR part 1107.
    Section 1252.3(b) of the proposed rule would establish the 
Commission's determinations that specified EWPs do not exceed the 
solubility limits for ASTM F963 elements with a high degree of 
assurance as that term is defined in 16 CFR part 1107.
    Section 1252.3(c) of the proposed rule would establish the 
Commission's determinations that specified EWPs do not exceed the 
phthalates content limits, with the exception of hardwood plywood 
containing PVAc, with a high degree of assurance as that term is 
defined in 16 CFR part 1107.
    Section 1252.3(d) of the proposed rule states that accessible 
component parts of children's products, children's toys, and child care 
articles made with the specified EWPs, are not required to be third 
party tested pursuant to section 14(a)(2) of the CPSA and 16 CFR part 
1107.
    Section 1252.3(e) of the proposed rule states that accessible 
component parts of children's products, children's toys, and child care 
articles that are not specifically listed in the determinations in 
proposed Sec.  1252.3(a) through (c) are required to be third party 
tested pursuant to section 14(a)(2) of the CPSA and 16 CFR part 1107.

4. Comments on the Proposed Rule

    The Commission seeks comments on all aspects of the proposed rule. 
In particular, comments of the following topics are welcome.
    <bullet> Are there any data or examples that indicate that the EWPs 
identified in the proposed rule can and do contain lead, the ASTM F963 
elements, or prohibited phthalates at levels that are not compliant? 
Please provide data supporting your assertion.
    <bullet> The TERA Task 14 Report identified the use of some of the 
ASTM F963 elements as catalysts in adhesive formulations used to 
manufacture EWPs. Please provide any information that supports or 
refutes the claim that these elements will not be present in 
concentrations greater than their specified limits in EWPs.
    <bullet> CPSC staff has heard from a manufacturer of PVAc adhesive 
formulations used in the manufacture of hardwood plywood that, although 
phthalates are no longer used in domestic production, they were once 
used. What phthalates were used in PVAc in the past? Could any of the 
specified phthalates be used? Why or why not? Are any of the specified 
phthalates used in domestic or international manufacturing of EWPs? Why 
or why not?
    <bullet> How can one determine if a hardwood plywood sheet contains 
a PVAc adhesive system? How can one determine whether a PVAc adhesive 
system used in the manufacture of hardwood plywood contains a specified 
phthalate in concentrations greater than the specified limits? Can this 
type of information be found on labels, SDSs, company Web sites, or in 
some other way?
    <bullet> Other than PVAc, are there additional adhesive 
formulations used in the manufacture of EWPs that could contain the 
specified phthalates in concentrations greater than those specified? If 
yes, what phthalates are used and at what concentration?
    <bullet> Are there any post-consumer recycled EWPs that 
consistently comply with the limits for lead, ASTM F963 elements, or 
prohibited phthalates?
    <bullet> Please describe the methods used to determine whether 
post-consumer recycled material is used in the manufacture of EWPs. How 
can this type of information be found (on labels, SDSs, company Web 
sites, or in some other way)?
    <bullet> In addition to particleboard, hardwood plywood, and 
medium-density fiberboard, are there other EWPs widely used in 
children's products, children's toys, and child care articles that have 
not been identified in the proposed rule that do not, and will not, 
contain lead, the ASTM F963 elements, or prohibited phthalates in 
concentrations greater than the mandatory limits? Please provide 
supporting data.

E. Effective Date

    The Administrative Procedure Act (APA) generally requires that a 
substantive rule must be published not less than 30 days before its 
effective date. 5 U.S.C. 553(d)(1). Because the proposed rule would 
provide relief from existing testing requirements under the CPSIA, the 
Commission proposes a 30 day effective date for the final rule.

F. Regulatory Flexibility Act

1. Introduction

    The Regulatory Flexibility Act (RFA) requires that agencies review 
a proposed rule for the rule's potential economic impact on small 
entities, including small businesses. Section 603 of the RFA generally 
requires that agencies

[[Page 47654]]

prepare an initial regulatory flexibility analysis (IRFA) and make the 
analysis available to the public for comment when the agency is 
required to publish a notice of proposed rulemaking, unless the agency 
certifies that the proposed rule will not have a significant economic 
impact on a substantial number of small entities. The IRFA must 
describe the impact of the proposed rule on small entities and identify 
any alternatives which accomplish the statutory objectives and may 
reduce the significant economic impact of the proposed rule on small 
entities. We provide a summary of the IRFA.

2. Small Entities to Which the Proposed Rule Would Apply

    The proposed rule would apply to small entities that manufacture or 
import children's products, children's toys, and child care articles 
that contain particleboard, hardwood plywood, or medium-density 
fiberboard. The number of domestic manufacturers classified in the 
North American Industrial Classification System (NAICS) categories that 
could manufacture children's products, children's toys, or child care 
articles that may contain accessible particleboard, hardwood plywood, 
or medium-density fiberboard component parts and would be responsible 
for the certification of these products may include 7,059 firms that 
can be categorized as small.\22\ Of these, 3,705 have fewer than 5 
employees. However, it is doubtful that all of the firms in some of 
these categories produce children's products. Moreover, of those firms 
that do produce children's products, we do not know how many of the 
firms manufacture products with accessible particleboard, hardwood 
plywood, or medium-density fiberboard component parts.
---------------------------------------------------------------------------

    \22\ The numbers of small firms for each NAICS code are from the 
Census Bureau and generally based on the SBA criteria for small 
firms.
---------------------------------------------------------------------------

    The number of domestic wholesalers by NAICS code that could 
distribute children's products, children's toys, or child care articles 
that may contain accessible particleboard, hardwood plywood, or medium-
density fiberboard component parts may include 26,113 firms that can be 
categorized as small. Of these, 15,947 have less than 5 employees. 
Wholesalers who obtain their products strictly from domestic 
manufacturers or from other wholesalers would not be impacted by the 
rule because the manufacturer or importer would be responsible for 
certifying the products. Although importers are responsible for the 
certification of the children's products that they import, they may 
rely upon third party testing performed by their foreign suppliers for 
purposes of certification. The number of small wholesalers that import 
children's products, children's toys, or child care articles as opposed 
to obtaining their product from domestic sources is not known. Also 
unknown is the number of small importers that must obtain or pay for 
the third party testing of their products.
    The number of domestic retailers by NAICS code that could sell 
children's products, children's toys, or child care articles that may 
contain accessible particleboard, hardwood plywood, or medium-density 
fiberboard component parts may include 49,358 firms that can be 
categorized as small. Of these, 27,506 have less than 5 employees. 
Although there are almost 50,000 retailers in the NAICS categories, the 
only retailers that would be directly impacted by the proposed rule are 
those that import children's products themselves. Retailers that obtain 
all of their products from domestic manufacturers or wholesalers will 
not be directly impacted by the rule because the manufacturers or 
wholesalers would be responsible for certifying the products.
    Although comprehensive estimates of the number of children's 
products, children's toys, and child care articles that contain 
component parts made from the specified engineered woods are not 
available, there is evidence that these engineered woods are used in 
children's furniture, sporting equipment, children's toys, and some 
musical instruments. Based on the number of domestic toy manufacturers 
that are classified as small businesses by the U.S. Bureau of the 
Census and evidence that the specified engineered woods are used in 
children's products, children's toys, and child care articles, the 
Commission believes a substantial number of small entities would be 
impacted by this regulation.

3. Reporting, Recordkeeping, and Other Compliance Requirements and 
Impact on Small Businesses

    The proposed rule would determine that there is a high degree of 
assurance that the certain EWPs be determined not to contain lead, the 
ASTM F963 elements, and the specified phthalates (DEHP, DBP, BBP, DINP, 
DIDP, or DnOP) in concentrations greater than their specified limits. 
Under this proposed determination, manufacturers, importers, and 
private labelers of children's products, children's toys, and child 
care articles that have accessible component parts that consist of 
these engineered woods would not require third party testing for 
certification that these components comply with the lead, ASTM F963 
elements, or phthalate requirements.
    The proposed rule would not impose any reporting, recordkeeping, or 
other compliance requirements on small entities. In fact, because the 
proposed rule would eliminate a testing requirement, there would be a 
small reduction in some of the recordkeeping burden under 16 CFR parts 
1107 and 1109 because manufacturers would no longer have to maintain 
records of third party tests for the component parts manufactured from 
these engineered woods for lead, the ASTM F963 elements, or the 
specified phthalates.
    The impact of the determinations on small businesses would be to 
reduce the burden of third party testing for the content of lead, the 
ASTM F963 elements, and the specified phthalates and would be expected 
to be entirely beneficial. The cost of lead testing ranges from $50 to 
more than $100 per component through Inductively Coupled Plasma testing 
(ICP). If one uses X-ray fluorescence spectrometry (XRF), which is an 
acceptable method for certification of third-party testing for lead 
content, the costs can be greatly reduced to approximately $5 per 
component part. If a component part made with one of the specified 
engineered woods is painted, the component part would be exempt from 
the third party testing requirement, but the paint would still require 
lead testing.
    Based on published invoices and price lists, the cost of a third 
party test for the ASTM F963 elements ranges from around $60 in China, 
up to around $190 in the United States using ICP. This cost can be 
greatly reduced with the use of high definition X-ray fluorescence 
spectrometry (HDXRF), which is an acceptable method for certification 
of third-party testing for the presence of the ASTM F963 elements. The 
cost can be reduced to about $40 per component. It should be noted that 
lead is one of the ASTM F963 elements, so this testing would also cover 
the cost of lead testing for component parts.
    The cost of phthalate testing is relatively high: Between about 
$125 and $350 per component part, depending upon where the testing is 
conducted and any discounts that are applicable. Because one product 
might have multiple component parts that require testing, the cost of 
testing a single product for phthalates could exceed $1,000 in some 
cases. Moreover, more than one sample might have to be tested to 
provide a high degree of assurance of

[[Page 47655]]

compliance with the requirements for testing. To the extent that small 
businesses have lower production or sales volumes than larger 
businesses, these determinations would be expected to have a 
disproportionately beneficial impact on small businesses. This 
beneficial impact is due to spreading the costs of the testing over 
fewer units; and the benefit of the Commission making the 
determinations would be greater on a per unit basis for small 
businesses. Additionally, some testing laboratories may offer their 
larger customers discounts that might not be available to small 
businesses that need fewer third party tests. Making the determinations 
for these engineered woods could potentially significantly benefit a 
substantial number of firms.
    On the other hand, the benefit of making the determinations could 
be less than might be expected. For example, some firms might have been 
able to substantially reduce their third party testing costs by using 
component part testing as allowed under 16 CFR 1109, so the marginal 
benefit that might be derived from making the determinations might be 
low. Also, some firms have reduced their testing costs by using XRF or 
HDXRF technology, which is less expensive than ICP, and would reduce 
the marginal benefit of these determinations. The Commission seeks 
public comments on the potential impact of the proposed rule on small 
entities. Comments are especially welcome on the following topics:
    <bullet> The extent to which particleboard, hardwood plywood, and 
medium-density fiberboard are used in children's products, children's 
toys, and child care articles, especially those manufactured or 
imported by small firms;
    <bullet> The potential reduction in third party testing costs that 
might be provided by the Commission making the determinations, 
including the extent to which component part testing is already being 
used and the current cost of testing components made from these 
engineered woods for compliance with the lead, ASTM F963 elements, and 
phthalate requirements;
    <bullet> Any situations or conditions in the proposed rule that 
would make it difficult to make use of the determinations to reduce 
third party testing costs; and
    <bullet> Although the Commission expects that the impact of the 
proposed rule will be entirely beneficial, any potential negative 
impacts of the proposed rule.

4. Alternatives Considered To Reduce the Burden on Small Entities

    Under section 603(c) of the RFA, an initial regulatory flexibility 
analysis should ``contain a description of any significant alternatives 
to the proposed rule which accomplish the stated objectives of the 
applicable statutes and which minimize any significant impact of the 
proposed rule on small entities.'' Because the proposed rule is 
intended to reduce the cost of third party testing on small businesses 
and will not impose any additional burden, the Commission did not 
consider alternatives to the proposed rule that would reduce the burden 
of this rule on small businesses.

G. Environmental Considerations

    The Commission's regulations provide a categorical exclusion for 
Commission rules from any requirement to prepare an environmental 
assessment or an environmental impact statement because they ``have 
little or no potential for affecting the human environment.'' 16 CFR 
1021.5(c)(2). This rule falls within the categorical exclusion, so no 
environmental assessment or environmental impact statement is required. 
The Commission's regulations state that safety standards for products 
normally have little or no potential for affecting the human 
environment. 16 CFR 1021.5(c)(1). Nothing in this rule alters that 
expectation.

List of Subjects in 16 CFR Part 1252

    Business and industry, Consumer protection, Imports, Infants and 
children, Product testing and certification, Toys.

    For the reasons stated in the preamble, the Commission proposes to 
amend title 16 of the CFR to add part 1252 to read as follows:

PART 1252--CHILDREN'S PRODUCTS, CHILDREN'S TOYS, AND CHILD CARE 
ARTICLES: DETERMINATIONS REGARDING LEAD, ASTM F963 ELEMENTS, AND 
PHTHALATES FOR ENGINEERED WOOD PRODUCTS

Sec.
1252.1 Children's products, children's toys, and child care articles 
containing lead, ASTM F963 elements, and phthalates in engineered 
wood products and testing requirements.
1252.2 Definitions.
1252.3 Determinations for engineered wood products.

    Authority:  Sec. 3, Pub. L. 110-314, 122 Stat. 3016; 15 U.S.C. 
2063(d)(3)(B).


Sec.  1252.1   Children's products, children's toys, and child care 
articles containing lead, ASTM F963 elements, and phthalates in 
engineered wood products and testing requirements.

    (a) Section 101(a) of the Consumer Product Safety Improvement Act 
of 2008 (CPSIA) provides that any children's product, material, or 
component part or a children's product must comply with a lead content 
limit that does not exceed 100 parts per million. Materials used in 
children's products subject to section 101 of the CPSIA must comply 
with the third party testing requirements of section 14(a)(2) of the 
Consumer Product Safety Act (CPSA), unless listed in 16 CFR 1500.91.
    (b) Section 106 of the CPSIA made provisions of ASTM F963, Consumer 
Product Safety Specifications for Toy Safety, a mandatory consumer 
product safety standard. Among the mandated provisions is section 4.3.5 
of ASTM F963 which requires that surface coating materials and 
accessible substrates of children's toys that can be sucked, mouthed, 
or ingested, must comply with solubility limits that the toy standard 
establishes for eight elements. Materials used in children's toys 
subject to section 4.3.5 of the toy standard must comply with the third 
party testing requirements of section 14(a)(2) of the CPSA, unless 
listed in 16 CFR 1251.2.
    (c) Section 108(a) of the CPSIA permanently prohibits any 
children's toy or child care article that contains concentrations of 
more than 0.1 percent of di-(2-ethylhexl) phthalate (DEHP), dibutyl 
phthalate (DBP), or benzyl butyl phthalate (BBP). Section 108(b)(1) of 
the CPSIA prohibits on an interim basis any children's toy that can be 
placed in a child's mouth or child care article that contains 
concentrations of more than 0.1 percent of diisononyl phthalate (DINP), 
diisodecyl phthalate (DIDP), or di-n-octyl phthalate (DnOP). Materials 
used in children's toys and child care articles subject to section 
108(a) and (b)(1) of the CPSIA must comply with the third party testing 
requirements of section 14(a)(2) of the CPSA, unless listed in 16 CFR 
part 1308.


Sec.  1252.2   Definitions.

    In addition to the definitions given in sections 101, 106, and 108 
of the CPSIA, the following definitions apply for this part 1252.
    (a) Post-consumer wood waste describes wood waste that is comprised 
of materials that are recovered from their original use and 
subsequently used in a new product. Examples of this type of waste 
include recycled demolition wood, packaging materials such as pallets 
and crates, used wood from landscape care (i.e., from urban and highway 
trees, hedges, and gardens), discarded furniture, and waste wood from 
industrial, construction, and commercial activities.
    (b) Pre-consumer wood waste describes wood materials that have been 
recycled from an industrial process

[[Page 47656]]

before being made available for consumer use. Examples of this type of 
waste include trimmings from engineered wood product (EWP) panel 
manufacturing, sawdust from cutting logs, or remaining wood pieces from 
sawing a log into framing lumber.
    (c) Unfinished means an EWP that does not have any surface 
treatments applied at manufacture, such as factory-applied coatings. 
Examples of such treatments may include paint or similar surface 
coating materials, wood glue, or metal fasteners, such as nails or 
screws.
    (d) Untreated means an EWP that does not have any additional 
finishes applied at manufacture. Examples of such finishes may include 
flame retardants or rot resistant finishes.
    (e) Virgin wood describes wood logs, fibers, chips, or layers that 
have not been recycled from a previous use.


Sec.  1252.3   Determinations for engineered wood products.

    (a) The following engineered wood products do not exceed the lead 
content limits with a high degree of assurance as that term is defined 
in 16 CFR part 1107:
    (i) Particleboard that is untreated and unfinished made from virgin 
wood or pre-consumer wood waste;
    (ii) Hardwood plywood that is untreated and unfinished made from 
virgin wood or pre-consumer wood waste; and
    (iii) Medium-density fiberboard that is untreated and unfinished 
made from virgin wood or pre-consumer wood waste.
    (b) The following engineered wood products do not exceed the ASTM 
F963 elements solubility limits set forth in 16 CFR part 1250 with a 
high degree of assurance as that term is defined in 16 CFR part 1107:
    (i) Particleboard that is untreated and unfinished made from virgin 
wood or pre-consumer wood waste;
    (ii) Hardwood plywood that is untreated and unfinished made from 
virgin wood or pre-consumer wood waste; and
    (iii) Medium-density fiberboard that is untreated and unfinished 
made from virgin wood or pre-consumer wood waste.
    (c) The following engineered wood products do not exceed the 
phthalates content limits with a high degree of assurance as that term 
is defined in 16 CFR part 1107:
    (i) Particleboard that is untreated and unfinished made from virgin 
wood or pre-consumer wood waste;
    (ii) Hardwood plywood that is untreated and unfinished made from 
virgin wood or pre-consumer wood waste and does not contain PVAc 
adhesive formulations; and
    (iii) Medium-density fiberboard that is untreated and unfinished 
made from virgin wood or pre-consumer wood waste.
    (d) Accessible component parts of children's products, children's 
toys, and child care articles made with EWPs, listed in paragraphs (a) 
through (c) of this section are not required to be third party tested 
pursuant to section 14(a)(2) of the CPSA and 16 CFR part 1107.
    (e) Accessible component parts of children's products, children's 
toys, and child care articles made with engineered wood products not 
listed in paragraphs (a)-(c) of this section are required to be third 
party tested pursuant to section 14(a)(2) of the CPSA and 16 CFR part 
1107.

Alberta E. Mills,
Acting Secretary, Consumer Product Safety Commission.
[FR Doc. 2017-21980 Filed 10-12-17; 8:45 am]
 BILLING CODE 6355-01-P


</pre><script data-cfasync="false" src="/cdn-cgi/scripts/5c5dd728/cloudflare-static/email-decode.min.js"></script></body>
</html>