Children's Products, Children's Toys, and Child Care Articles: Determinations Regarding Lead, ASTM F963 Elements, and Phthalates for Engineered Wood Products, 28983-28992 [2018-13392]

Agencies

• Consumer Product Safety Commission

[Federal Register Volume 83, Number 121 (Friday, June 22, 2018)]
[Rules and Regulations]
[Pages 28983-28992]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-13392]


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

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: Final rule.

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

SUMMARY: The Consumer Product Safety Commission (CPSC) is issuing a 
final rule determining that certain untreated and unfinished engineered 
wood products (EWPs), specifically, particleboard, hardwood plywood, 
and medium-density fiberboard, made from virgin wood or pre-consumer 
wood waste do 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 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: The rule is effective on July 23, 2018.

FOR FURTHER INFORMATION CONTACT: Stephen Lee, Office of Compliance, 
U.S. Consumer Product Safety Commission, 4330 East West Hwy., Bethesda, 
MD 20814; 301-504-7844: email: [email protected].

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 (laboratory). 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).

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

[[Page 28984]]

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 children's product 
certificate (CPC), before the products can be entered into commerce.
    To alleviate some of the third party 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, these 
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.\2\ 
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.\3\
---------------------------------------------------------------------------

    \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.
    \2\ The current version of ASTM F963 is ASTM F963-17. The test 
method for the ASTM F963 elements allows the use of High-Definition 
X-Ray Fluorescence Spectroscopy (HDXRF) for total element screening. 
See section 8.3.1.4 of ASTM F963-17.
    \3\ A ``children's toy'' is defined in section 1.3 of ASTM F963-
17 as any object designed, manufactured, or marketed as a plaything 
for children under 14 years of age. However, the term ``children's 
toy'' is defined in section 108(e)(1)(B) of the CPSIA as a consumer 
product designed or intended by the manufacturer for a child 12 
years of age or younger for use by the child when the child plays. 
Only toys intended for a child 12 years of age or younger are 
subject to certification requirements.
---------------------------------------------------------------------------

    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 \4\ must comply with the solubility limits of 
eight elements listed 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.''
---------------------------------------------------------------------------

    \4\ 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
------------------------------------------------------------------------
                                                              Solubility
                          Elements                           limit (ppm)
                                                                 \5\
------------------------------------------------------------------------
Antimony (Sb)..............................................           60
Arsenic (As)...............................................           25
Barium (Ba)................................................         1000
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 laboratories 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.
---------------------------------------------------------------------------

    \5\ 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 party 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 phthalate 
(BBP). 15 U.S.C. 2057c(a). 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.\6\ On October 27, 2017, the 
Commission published a final rule in the Federal Register, 
``Prohibition of Children's Toys and Child Care Articles Containing 
Specified Phthalates,'' 82 FR 49938, prohibiting children's toys and 
child care articles containing concentrations greater than 0.1 percent 
of:
---------------------------------------------------------------------------

    \6\ https://www.cpsc.gov/PageFiles/169902/CHAP-REPORT-With-Appendices.pdf.

 di-(2-ethylhexyl) phthalate (DEHP);
 dibutyl phthalate (DBP);
 benzyl butyl phthalate (BBP);
 diisononyl phthalate (DINP);
 diisobutyl phthalate (DIBP);
 di-n-pentyl phthalate (DPENP);
 di-n-hexyl phthalate (DHEXP); or
 dicyclohexyl phthalate (DCHP).
    These restrictions apply to any plasticized component part of a 
children's toy or child care article or any other component part of a 
children's toy or child care article that is made of other materials 
that may contain phthalates. The phthalates prohibitions are set forth 
in 16 CFR part 1307.
    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.\7\ 
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.
---------------------------------------------------------------------------

    \7\ 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 party testing burdens associated 
with plastics in the accessible component parts of

[[Page 28985]]

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.

5. Notice of Proposed Rulemaking

    On October 13, 2017, the Commission published a notice of proposed 
rulemaking (NPR) in the Federal Register for the engineered wood 
determinations. (80 FR 47645). The Commission proposed determinations 
that untreated and unfinished EWPs (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 in concentrations greater than their specified solubility 
limits. In addition, with the exception of hardwood plywood that 
contains PVAc adhesive formulations, the Commission proposed a 
determination that these specified EWPs do not contain any of the 
specified phthalates in concentrations greater than 0.1 percent. The 
comments to the NPR are addressed in section C of this preamble.

B. Contractor's Research

1. Overview

    CPSC contracted with the Toxicology Excellence for Risk Assessment 
(TERA),\8\ 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.
---------------------------------------------------------------------------

    \8\ 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.\9\ 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).
---------------------------------------------------------------------------

    \9\ https://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.\10\ 
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.
---------------------------------------------------------------------------

    \10\ 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.\11\ 
The 11 phthalates researched by TERA were based on the recommendations 
made in the CHAP report. The 11 phthalates included the eight 
prohibited phthalates that are subject to the final rule prohibiting 
children's toys and child care articles containing specified phthalates 
issued in October 2017 and codified in 16 CFR part 1307. (82 FR 49938). 
Table 2 lists the phthalates researched by TERA. TERA's research 
focused on the following factors:
---------------------------------------------------------------------------

    \11\ https://www.cpsc.gov//Global/Research-and-Statistics/Technical-Reports/Other%20Technical%20Reports/TERAReportPhthalates.pdf.
---------------------------------------------------------------------------

     The raw materials used in the production of the specified 
phthalates;
     The manufacturing processes used worldwide to produce the 
specified phthalates;
     Estimated annual production of the specified phthalates;
     Physical properties of the specified phthalates (e.g., 
vapor pressure, flashpoint, water solubility, temperature at which 
chemical breakdown occurs);
     Applications for phthalates use in materials and consumer 
and non-consumer products; and
     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
                                [* Prohibited phthalates under 16 CFR part 1307]
----------------------------------------------------------------------------------------------------------------
                         Phthalate                                                CASRN \12\
----------------------------------------------------------------------------------------------------------------
* 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.

[[Page 28986]]

 
* 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.
---------------------------------------------------------------------------

    \12\ 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.\13\ 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:
---------------------------------------------------------------------------

    \13\ https://www.cpsc.gov/s3fs-public/ManufacturedWoodsTERATask14Report.pdf.
---------------------------------------------------------------------------

     Lead in concentrations exceeding 100 ppm;
     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
     Any of 10 specified phthalates in concentrations greater 
than 0.1 percent (1000 ppm), listed in Table 3.\14\
---------------------------------------------------------------------------

    \14\ The TERA research providing the basis for this 
determination covered 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, 
with the exception of DIOP. The Commission has issued a final rule 
prohibiting eight phthalates in children's toys and child care 
articles on October 17, 2017 (82 FR 49938).

                              Table 3--Phthalates Researched in the Task 14 Report
                                [* Prohibited phthalates under 16 CFR part 1307]
----------------------------------------------------------------------------------------------------------------
                         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.
    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 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

[[Page 28987]]

landscape care (i.e., from urban and highway trees, hedges, and 
gardens), discarded furniture, and wood waste 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):
     Wood (60-99+ percent);
     Adhesive formulation (0-17 percent, with 5-11 percent most 
common);
     Phenol-formaldehyde (uncommon but potential for use), 
urea-formaldehyde, melamine-urea-formaldehyde, polymeric methylene-
diphenyl-diisocyanate (pMDI);
     Waxes (0.3-1 percent);
     Other additives (up to 2 percent); or
     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 found 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 for other interior 
(nonstructural) purposes, as well as in playground equipment, sports 
equipment, and musical instruments. The constituent parts of hardwood 
plywood reported by TERA can include (by weight):
     Wood (75-99+ percent);
     Adhesive formulation (0.02-20 percent, with 1 percent to 5 
percent most common);
     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
     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 found 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 EWPs, 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 that 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 product similar to particleboard, differing mostly due to the use of 
fiber rather than chips. It is used primarily in furniture and for 
other interior (nonstructural) purposes. The constituent parts of MDF 
reported by TERA can include (by weight):
     Wood (73-99+ percent);
     Adhesive formulation (0-25 percent with most common 5-12 
percent);
     Phenol-formaldehyde (uncommon, but potentially used for 
moisture resistance), urea-formaldehyde (most commonly identified), 
methylene-diphenyl-diisocyanate (pMDI), melamine-formaldehyde, or 
melamine-urea-formaldehyde;
     Waxes (less than 1 percent); or
     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.
    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 sources 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

[[Page 28988]]

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, which 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 the 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 that exceed the specified limits, TERA indicated that the 
materials would need to be sorted carefully and tested to ensure that 
they are not contaminated.
Adhesive Formulations
    Adhesive formulations hold together the wood chips, layers, or 
fibers 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 to be relevant to EWPs.
---------------------------------------------------------------------------

    \17\ Wang and Zhang (2011) studied the use of calcium hydroxide, 
Ba(OH)2, and magnesium hydroxide and their effect on cure 
times for phenol formaldehyde adhesive formulations, finding that 
the use of Ba(OH)2 could be a viable means to speed up 
cure times. Both calcium hydroxide and Ba(OH)2 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), which mentioned the use of some of the 
specified phthalates in PVAc adhesive formulations.\18\ TERA also 
identified research papers that 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.''
---------------------------------------------------------------------------

C. Discussion of Comments to the NPR

    The CPSC received seven comments in response to the NPR. Five of 
the comments did not address any matters regarding EWPs. These comments 
addressed environmental regulation issues concerning alternative 
energy, electric cars, and greenhouse gas emissions, among other 
topics. None of these comments addressed EWPs. Accordingly, these 
comments do not fall within the scope of the current rulemaking. Two 
comments addressed the proposed determinations for EWPs.
    Comment 1: A commenter states that the use of third party testing 
and ``verification of testing'' for lead is important for ensuring 
product safety and that any change to the testing and verification 
requirements is ``antithetical'' to public safety.
    Response 1: The commenter does not provide any data or information 
about EWPs that would support a testing requirement for lead for 
certain untreated and unfinished EWPs. Nor does the commenter address 
the data and information the Commission relied upon to demonstrate that 
certain untreated and unfinished EWPs do not contain lead above the 
limits specified by the lead content requirements. The Commission's 
proposed EWP determinations only apply to EWPs that have not been 
treated or adulterated with materials that could result in the addition 
of lead, the ASTM elements, or

[[Page 28989]]

the specified phthalates at concentrations greater than their specified 
solubility limits. EWPs that do not meet the provisions of the rule 
would still be subject to applicable testing requirements.
    Comment 2: A commenter expresses concern regarding the language of 
the proposed rule's determination, which states: ``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.'' The commenter asserts that 
the language negates the flexibility of the Commission's 2009 Statement 
of Policy. The commenter requests a revision of the language to state: 
``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 must still be comprised of 
compliant materials pursuant to section 108 of CPSIA, Public Law 110-
314 as amended by H.R. 2714, Public Law 112-28.''
    Response 2: The proposed EWP determinations do not negate the 
flexibility of the Commission's 2009 Statement of Policy.\19\ That 
policy was intended to give general guidance on the types of materials 
that may contain phthalates. Section 108 of the CPSIA is limited to 
plasticized component parts and other materials that may contain 
phthalates. The Commission has already identified in the proposed rule 
the potential use of phthalates in polyvinyl acetate (PVAc) adhesive in 
hardwood plywood that would result in an EWP with phthalate 
concentrations greater than 0.1 percent. However, to make it clear that 
only products that are subject to one or more of the requirements for 
lead, ASTM elements, and the specified phthalates, or that contain 
post-consumer wood waste, must be third party tested, the Commission is 
revising the proposed language in section 1252.3(e). That section now 
states that accessible component parts of children's products, 
children's toys, and child care articles made with engineered wood 
products other than the specified EWPs listed in the rule, or that 
contain post-consumer wood waste, are required to be third party tested 
pursuant to section 14(a)(2) of the CPSA and 16 CFR part 1107 and 
sections 101, 106, or 108 of the CPSIA, as applicable.
---------------------------------------------------------------------------

    \19\ https://www.cpsc.gov/s3fs-public/pdfs/blk_media_componenttestingpolicy.pdf.
---------------------------------------------------------------------------

    In addition, to reflect the current list of prohibited phthalates 
in section 108 of the CPSIA, as required in the Commission's final rule 
issued on October 27, 2017, Sec.  1252.1(c) is revised to include all 
of the permanently prohibited phthalates in any children's toy or child 
care article that contains concentrations of more than 0.1 percent of 
DEHP, DBP, BBP, DINP, DIBP, DPENP, DHEXP, or DCHP.

D. Determination for EWPs

1. Legal Requirements for a Determination

    As noted above, 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's 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 defines ``a high degree of assurance'' 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, children's toy or child 
care article, must ensure the product's compliance. The presence of 
lead, the ASTM F963 elements, or the specified phthalates do 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.
    The Commission finds, based on the staff's review of TERA's Task 14 
report regarding reclaimed or post-consumer waste assessment in EWPs, 
that EWPs with post-consumer wood content and post-manufacturing waste 
could contain unwanted contaminants, such as paint or stains, metals 
from nails or fasteners, or adhesive formulations. Additionally, based 
on staff's review of the Task 11 and Task 14 reports, the Commission 
finds that PVAc used as an adhesive formulation in the manufacture of 
EWPs could contain at least one of the specified phthalates in hardwood 
plywood manufacturing that could result in the EWP exceeding the 
allowable levels of the specified phthalates. Accordingly, the 
Commission concludes that there is not a high degree of assurance that 
EWPs made from post-consumer wood waste or post-manufacturing 
treatments or finishes are compliant with sections 101, 106, or 108 of 
the CPSIA, or that hardwood plywood that contain PVAc are compliant 
with 108 of the CPSIA.
    Based on the information provided in the TERA Task reports, staff's 
review of TERA's source references in the Task reports, and with the 
additional clarification that only products that are subject to one or 
more of the requirements for lead, ASTM elements, and the specified 
phthalates must be third party tested, the Commission determines that 
untreated and unfinished EWPs (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 in concentrations greater than their specified solubility limits. 
In addition, with the exception of hardwood plywood that contains PVAc 
adhesive formulations, the Commission determines that the specified 
EWPs do

[[Page 28990]]

not contain any of the specified phthalates in concentrations greater 
than 0.1 percent. The Commission's determinations 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 post-consumer wood waste, or from EWPs that have 
other materials that are applied to or added on to the EWP after it is 
manufactured, such as treatments and finishes, 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.

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 issue a rule determining that 
certain EWPs would not be concentrations greater than their specified 
limits, and thus, are not required to be third determined to contain 
lead, the ASTM F963 elements, and the specified phthalates in party 
tested to ensure compliance with sections 101, 106, and 108 of the 
CPSIA.
    The determinations for the specified EWPs would relieve children's 
product certifiers from third party testing burdens, while assuring 
compliance with sections 101, 106, and 108 of the CPSIA for component 
parts made from the specified EWPs. However, the determinations would 
only relieve the manufacturers' obligation to have the specified EWPs 
tested by a CPSC-accepted third party laboratory. Children's products, 
children's toys, and child care articles must still comply with the 
substantive content limits in sections 101, 106, and 108 of the CPSIA, 
regardless of any relief on third party testing requirements. Finally, 
even if a determination is in effect and third party testing is not 
required, a certifier must still issue a certificate.

3. Description of the Rule

    This rule creates 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.
     Section 1252.1(a) of the 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 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 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. This section is revised to 
reflect the final rule issued on phthalates that permanently prohibits 
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 benzyl butyl phthalate (BBP). In addition, in 
accordance with section 108(b)(3) of the CPSIA, 16 CFR part 1307 
prohibits any children's toy or child care article that contains 
concentrations of more than 0.1 percent of diisononyl phthalate (DINP), 
diisobutyl phthalate (DIBP), di-n-pentyl phthalate (DPENP), di-n-hexyl 
phthalate (DHEXP), or dicyclohexyl phthalate (DCHP).
     Section 1252.2 of the rule provides definitions that apply 
to part 1252.
     Section 1252.3(a) of the rule establishes the Commission's 
determinations that specified EWPs do not exceed the lead content 
limits with a ``high degree of assurance,'' as that phrase is defined 
in 16 CFR part 1107.
     Section 1252.3(b) of the rule establishes 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 
phrase is defined in 16 CFR part 1107.
     Section 1252.3(c) of the rule establishes 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 phrase is defined in 16 CFR part 
1107.
     Section 1252.3(d) of the rule provides 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 rule is clarified to state that 
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, or with post-consumer wood waste, 
are required to be third party tested pursuant to section 14(a)(2) of 
the CPSA and 16 CFR part 1107 and sections 101, 106, or 108 of the 
CPSIA, as applicable.

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 final rule provides 
relief from existing testing requirements under the CPSIA, the 
Commission concludes that 30 days is sufficient. Thus, the effective 
date is July 23, 2018.

F. Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA), 5 U.S.C. 601-612, requires 
agencies to consider the impact of proposed and final rules on small 
entities, including small businesses. Section 604 of the RFA requires 
that agencies prepare a final regulatory flexibility analysis (FRFA) 
when promulgating final rules, unless the head of the agency certifies 
that the rule will not have a significant impact on a substantial 
number of small entities. The FRFA must describe the impact of the rule 
on small entities. CPSC staff prepared a FRFA, which is summarized 
below.
    CPSC staff's review shows that 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. However, based on the number of domestic producers 
and sellers of these products, staff believes that a substantial number 
of small entities could be impacted by this regulation. Staff's review 
indicates that there are approximately 81,505 small firms that 
manufacture or distribute children's products, children's toy or child 
care articles (6,976 manufacturers + 26,124 wholesalers + 48,405 
retailers). Even if only a small proportion of these firms manufacture 
or sell products using the EWPs of interest, staff finds that a

[[Page 28991]]

substantial number would benefit from the reduced testing burden. The 
impact of the determinations on small businesses would be to reduce the 
burden of third party testing for firms and are expected to be entirely 
beneficial. The current cost of testing, on a per-test basis, is 
reflective of the expected cost reductions that would result from the 
determinations, and are as follows:
     Lead--The cost of lead testing ranges from $50 to more 
than $100 per component through Inductively Coupled Plasma (ICP) 
testing. If one uses X-ray fluorescence (XRF) spectrometry, 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. 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.
     ASTM F963 Elements--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 
elements. The cost can be reduced to about $40 per component part. It 
should be noted that lead is one of the ASTM elements, so this testing 
would also cover the cost of lead testing for component parts.
     Phthalates--The cost of phthalate testing is relatively 
high: between about $125 and $350 per component, depending upon where 
the testing is conducted and any discounts that are applicable. Because 
one product might have multiple components 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 compliance with the requirements 
for testing.
    To the extent that small businesses have lower production or lower 
sales volume 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. However, small entities that need fewer third 
party tests may not qualify for discounts that some laboratories may 
offer their larger customers. In addition, the possible benefits 
associated with the determinations might be somewhat lower to the 
extent that firms were already taking advantage of component part 
testing as allowed by 16 CFR part 1109. Additionally, 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 determinations would not impose any new reporting, 
recordkeeping, or other compliance requirements on small entities. In 
fact, because the 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. Based on staff's review, the 
Commission finds that the burden reduction from this determination rule 
could potentially result in significant benefits for a substantial 
number of manufacturers, importers, or retailers of the relevant 
product categories.
    Under section 604 of the Regulatory Flexibility Act, a FRFA should 
include a ``statement of the factual, policy, and legal reasons for 
selecting the alternative adopted in the final rule and why each one of 
the other significant alternatives to the rule considered by the agency 
which affect the impact on small entities was rejected.'' The final 
rule is itself, the result of CPSC's efforts to reduce third party 
testing costs consistent with assuring compliance with all applicable 
consumer product safety rules. Therefore, CPSC considered few 
alternatives, other than expanding the list of engineered woods for 
which determinations could be made. CPSC staff identified these three 
types of EWPs for study, based on stakeholder feedback, the likelihood 
of being used in products subject to children's product, children's 
toy, or child care article certification requirements, and available 
resources. However, the Commission did not receive any other comments 
or other information on any additional engineered wood materials for 
further burden-reduction activities.

G. Environmental Considerations

    The Commission's regulations provide a categorical exclusion for 
most 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.

0
For the reasons stated in the preamble, the Commission amends title 16 
of the CFR by adding 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

[[Page 28992]]

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-ethylhexyl) phthalate (DEHP), dibutyl 
phthalate (DBP), or benzyl butyl phthalate (BBP). In accordance with 
section 108(b)(3) of the CPSIA, 16 CFR part 1307 prohibits any 
children's toy or child care article that contains concentrations of 
more than 0.1 percent of diisononyl phthalate (DINP), diisobutyl 
phthalate (DIBP), di-n-pentyl phthalate (DPENP), di-n-hexyl phthalate 
(DHEXP), or dicyclohexyl phthalate (DCHP). Materials used in children's 
toys and child care articles subject to section 108(a) of the CPSIA and 
16 CFR part 1307 must comply with the third party testing requirements 
of section 14(a)(2) of the CPSA, unless listed in 16 CFR 1308.2.


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.
    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.
    Pre-consumer wood waste describes 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 
engineered wood product (EWP) panel manufacturing, sawdust from cutting 
logs, or remaining wood pieces from sawing a log into framing lumber.
    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.
    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.
    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:
    (1) Particleboard that is untreated and unfinished made from virgin 
wood or pre-consumer wood waste;
    (2) Hardwood plywood that is untreated and unfinished made from 
virgin wood or pre-consumer wood waste; and
    (3) 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:
    (1) Particleboard that is untreated and unfinished made from virgin 
wood or pre-consumer wood waste;
    (2) Hardwood plywood that is untreated and unfinished made from 
virgin wood or pre-consumer wood waste; and
    (3) 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:
    (1) Particleboard that is untreated and unfinished made from virgin 
wood or pre-consumer wood waste;
    (2) Hardwood plywood that is untreated and unfinished made from 
virgin wood or pre-consumer wood waste and does not contain polyvinyl 
acetate (PVAc) adhesive formulations; and
    (3) 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) through (c) of this section, or that contain 
post-consumer wood waste, are required to be third party tested 
pursuant to section 14(a)(2) of the CPSA and 16 CFR part 1107 and 
sections 101, 106, or 108 of the CPSIA, as applicable.

Alberta E. Mills,
Secretary, Consumer Product Safety Commission.
[FR Doc. 2018-13392 Filed 6-21-18; 8:45 am]
 BILLING CODE 6355-01-P