January 23, 2017 – Labeling requirements within the new federal formaldehyde rule present a conundrum for importers: Finished goods made of composite wood products must be labeled as compliant beginning December 12, 2017. But the law also prohibits finished goods produced or imported prior to December 12 from being marked as compliant.
This stipulation in the law leaves importers who have finished goods in transit on December 12 in a no-win situation. These products cannot be labeled as compliant before they are shipped; but they must be labeled as compliant by the time they arrive at a U.S. port.
Importers attending AHFA’s joint industry workshop on the Formaldehyde Standards for Composite Wood Products Act January 18-19 sought guidance on this issue from speaker Erik Winchester of the U.S. Environmental Protection Agency (EPA).
Winchester is a branch chief within the EPA’s Office of Pollution Prevention and Toxics – the office responsible for writing and implementing the new regulation for formaldehyde emissions, which was signed into law on July 7, 2010, becoming Title VI of the Toxic Substances Control Act.
TSCA Title VI established formaldehyde emission standards that are identical to the California Air Resources Board (CARB) limits. Any composite wood products, including both component parts and finished goods, manufactured or imported after December 12, 2017, must meet the emission limits and be labeled as TSCA Title VI compliant.
Winchester told AHFA workshop attendees last month that he would seek additional clarification on the labeling requirement for importers. This information will be conveyed to AHFA member companies through a Member Bulletin as soon as AHFA receives it; it also will appear on the EPA’s website at www.epa.gov/formaldehyde.
Importers must maintain records verifying compliance for three years from the date of shipment, purchase or import. These records include:
• Bills of lading;
• Invoices; and,
• Documents from suppliers, such as written statements that the composite wood products, component parts or finished goods are compliant or were produced prior to the December 12 effective date.
In the case of an enforcement action, an importer has 30 days to provide EPA with records that identify the panel producer and the date the composite wood was produced; along with records identifying the supplier, if different, and the date the products, components or parts were produced.
By December 12, 2018, all covered imported products also must have import certification as spelled out in TSCA Section 13. This certification states that shipments are in compliance with TSCA chemical substances requirements OR not subject to TSCA.
Mark Duvall, a principal with the law firm of Beveridge & Diamond, told workshop attendees that the formaldehyde rule marks the first time the EPA has applied the TSCA chemical substances requirements to an article, rather than a specific chemical. Duvall heads his firm’s Toxic and Harmful Substances/ Toxic Substances Control Act practice.
Specifically, the import certification statement reads, “I certify that all chemical substances in this shipment comply with all applicable rules or orders under TSCA and that I am not offering a chemical substance for entry in violation of TSCA or any applicable rule or order thereunder.”
Duvall said this certification statement can be provided on paper and attached to bills of lading, commercial invoices or similar documents.
Eventually, however, Customs and Border Protection (CBP) intends for these certification forms to be filed electronically through the ACE – Automated Commercial Environment – system. This system provides a single portal for the collection and distribution of all import and export data.
Duvall noted that CBP will detain a shipment at the importer’s expense if the EPA or the port director has reason to believe a shipment is not in compliance with TSCA or if no import certification is provided.
“EPA expects certifications to be based on actual knowledge,” Duvall said. If you don’t know the chemical constituents of your products, you should begin now contacting overseas suppliers in an effort to find out. The greater the effort the importer makes to learn about compliance, Duvall concluded, the smaller the chances of a violation.