Back in January, the EPA published its final rule restricting formaldehyde emissions from composite wood. While the original rule set compliance dates starting December 12, 2017 (with additional dates in 2018 and 2023), the rule has undergone a tumultuous several months. Where it stands now is anybody’s guess, but the prudent course is to plan for December 2017 implementation.

First, the Trump administration regulatory freeze delayed the effective date by 30 days, but this delay did not impact the compliance dates, which were triggered by publication of the rule. Then EPA issued a new “direct final rule” extending the compliance dates by three months, meaning the rule bumped the first compliance deadline from December 12, 2017 to March 22, 2018 (and others to 2018 and 2024, respectively).

But that direct final rule had one big caveat – EPA conditioned it on not receiving any negative comments, stating:

If the Agency receives no adverse comments on the direct final rule or proposed rule, EPA will take no further action on the proposed rule, and the direct final rule will become effective. If EPA receives relevant, adverse comments on either rule, the Agency will withdraw the direct final rule and proceed with the proposed rule through the normal rulemaking process.

EPA did not expect any negative comments, but as you can guess, several commenters objected to the extensions. As a result, EPA withdrew the direct final rule, returning for now to the original December 2017 deadline.

EPA has stated that it will “proceed with a final rule based on the proposed rule after considering all public comments.” While EPA has said it will proceed as quickly as possible, it is unclear whether it can get through the regulatory process fast enough to make it meaningful for a December compliance date – we assume that many products for December sales have already been ordered and are in production.

In addition to controversy over compliance dates, substantive concerns over the rule still remain. For example, the rule’s labeling provision prohibits labeling products “manufactured before the manufactured-by date as TSCA Title VI compliant.” But the rule uses “manufacture” and “import” interchangeably. As a result, the rule can be read as prohibiting labeling of imported before December 12, but requires labeling on products imported on and after December 12, regardless of when the products were actually manufactured. Given the practical impossibility of complying with this, impacted parties and trade associations representing the composite wood industry have implored EPA to clarify the rule, but this has not yet occurred. If EPA takes this up in any new proposed rule, it could further delay implementation of compliance date extensions.