| November 11, 1999 Office of the Secretary
Dear Secretary: These comments in response to the above-referenced Advance Notice of Proposed Rulemaking ("ANPR") are submitted on behalf of the Expanded Polystyrene Molders Association (herein referred to as "EPSMA"). EPSMA is a national trade association representing member companies engaged in the production and promotion of expanded polystyrene building insulation and construction products. We are pleased to respond to the Commission's ANPR. To assist the Commission members and staff in analyzing these comments, we will provide a brief introductory statement and then identify the issues by reference to the appropriate section in the ANPR. INTRODUCTION EPSMA members have had extensive experience with the use of the Commission's Trade Regulation Rule: Labeling and Advertising of Home Insulation ("R-value Rule" or "Rule") (16 CFR Part 460) and its impact on both the competitive marketplace as well as consumers. We support the Rule's specific goal " . . . to provide consumers with information about thermal insulation products, based on uniform standards that allow them to make meaningful, cost-based purchasing decisions among competing products." As the Commission itself recognizes in this ANPR, both continuing technological developments and the history of use of R-value standards warrant the review of both the requirements of the Rule as well as other issues which were either reviewed by the Commission in earlier proceedings or are new because of technological change. EPSMA was one of the Associations that filed comments in response to the Commission’s review of the R-value Rule in 1995. In those comments we urged the Commission to require that insulation manufacturers report long-term R-value results to allow consumers to receive adequate information for informed and proper decision-making. In these comments we again urge the Commission to modify the existing Rule so that long-term R-value results will be disclosed to consumers. (See discussion herein on Disclosing R-Values That Account for Factors Affecting R-Value/Aging (Section IV. C.1)). We also provide comments herein on certain other issues in the ANPR, specifically: Disclosing Thermal Performance of Additional Products for Non- Residential Insulations (Section IV. A.2); Performance of Building System Components (Section IV. B.2); and Other Testing Requirements/Accreditation of Testing Laboratories (Section IV. D.1).EPSMA, however, is not proposing that the R-value Rule be extended in full to commercial applications. Consistent with our comments herein regarding the effect of aging on R-values, we believe that the type of disclosure we propose regarding aged R-values in home insulation products be applicable to commercial applications also. Indeed, as indicated in our comments on aged R-values, much of the burden associated with inadequate information regarding aged R-values has been borne in commercial building applications. Given the virtually non-existent burden on manufacturers to use appropriate R-value aging disclosures (as we discuss in our comments on R-value aging), extending the R-value Rule to commercial applications for this limited, but highly important, informational purpose would enhance the value of the Rule while imposing no significant countervailing costs on suppliers. DISCUSSION I. Disclosing Thermal Performance of Additional Products/Non-residential Insulations (Section IV. A.2) The Commission does not propose extending the R-value Rule to insulation used for commercial buildings. The stated basis for this decision is a lack of evidence that sellers of insulation materials used for commercial buildings are engaged in unfair or deceptive practices and/or that many of the purchasing decisions in commercial and industrial settings are made by engineers or architects who may require information that is different from that provided for residential use. 64 Fed. Reg. at 48027. Our member experience suggests that the promotion of products which compete with those in our industry by certain manufacturers who use current R-value performance criteria does, in fact, result in misunderstanding and misinformation among not only residential but commercial and industrial users as well. While some building professionals may be informed regarding thermal performance or may have information presented to them by manufacturers in a different form from that provided to consumers (64 Fed. Reg. at 48027), we believe that any number of purchasers, whether in residential, commercial, or industrial settings, do not have the appropriate knowledge and information regarding chemical and other technical properties of the insulation materials to evaluate appropriately the long-term performance of the insulating material. (1)II. Disclosing In-use Thermal Performance Values/Performance of Building System Components (Section IV. B.2) In the 1995 proceeding, the Commission received recommendations regarding the need for an approach evaluating the thermal efficiency of entire systems rather than only individual insulation products. Because of the number of variables involved in testing building systems and the perceived difficulty of drafting testing and disclosure requirements that would be meaningful to consumers, the Commission does not propose amending the Rule to require disclosures based on testing of insulation products in different types of applications. 64 Fed. Reg. at 48029. For the reasons set forth in the ANPR, EPSMA generally supports the Commission's decision not to amend the R-Value Rule at this time to require disclosures based on system performance. EPSMA does, however, support the recommendations of those commenters that the Commission work with other agencies and industry to develop consensus test procedures that would address thermal efficiency testing of building systems. III. Disclosing R-Values That Account for Factors Affecting R-Value/Aging: Cellular Plastics Insulation (Section IV. C.1) The Commission has recognized that certain types of plastic insulation are manufactured in a process that results in a gas other than inert air being incorporated into the cellular structure of the foam. This process gives such products an initial R-value higher than if they contained normal air. The aging process causes the R-value of such insulation to decrease over time as the original expansion agent diffuses out of the foam's cellular structure and is replaced with air. 64 Fed. Reg. at 48030. The Commission recognized the importance of aging on R-values when it issued the original R-value Rule. At that time the Commission found that one of the practices the Rule was specifically attempting to curtail was the exaggeration of R values by failure to account for such factors as aging. 64 Fed. Reg. at 48026. Thus, the Rule as promulgated required that R-value testing of certain specified types of insulation "fully reflect the effect of aging on the product's R-value." 16 CFR § 460.5(a)(1)(emphasis added). Recognizing that testing based on normal aging over the entire or substantial portions of the projected life of the product application was not feasible, the Commission permitted the aging requirement of the Rule to be satisfied by use of an "accelerated" aging procedure (GSA Specification HH-I-530A) that "aged" test specimens for as little as 90 days (which was later amended to include an optional 180-day aging procedure), or "another reliable procedure." 16 CFR § 460.5(a)(1); 64 Fed. Reg. at 48030. In response to Commission solicitation for comments in 1995, several commenters urged the Commission to require use of various ASTM test procedures (ASTM C 1289-95; ASTM C 59--85; ASTM C 578-92), which employ procedures "essentially the same as the optional procedures contained in the revised GSA specification." 64 Fed. Reg. at 48030. Other commenters advocated the use of testing and disclosure requirements that "more accurately reflect the effect of aging on the R-value" of certain insulation products. 64 Fed. Reg. at 48031. In response to these comments, the Commission has now requested comments on the length of time over which specific types and forms of cellular plastics age, the effects of the aging process, and related issues. EPSMA shares the concerns raised by several of the commenters that current aging procedures do not adequately address the R-value aging issue that was one of the Commission's original reasons for promulgating the R-value Rule. While concerns regarding the objective of the Rule to create a "level playing field" are well taken (64 Fed. Reg. at 48031), the Commission's overriding objective and guiding principle should be the fullest possible disclosure to the consumer, taking reasonably into account the need for relatively simple, nontechnical messages and avoidance of undue burden on manufacturers. Imposing a burden on consumers through inadequate disclosures of important R-value information clearly disserves the fundamental purpose of any R-value disclosure rule. Rather than focus exclusively on specific accelerated aging test procedures, EPSMA urges the Commission to address the aging issue through a combination of accelerated test procedures and appropriate, additional information disclosure. For the reasons discussed below, EPSMA believes such a dual approach: (1) optimizes disclosure of important R-value information to the consumer; (2) avoids total and potentially misleading reliance on test procedures that may not fully reflect the true impact of aging on R values; and (3) avoids the burden on manufacturers associated with imposition of unreasonably long aging test procedures. The drawback of using an accelerated aging test alone is primarily that such tests do not in fact "fully reflect" the effect of aging on the insulation. This reality is well recognized in the building industry. For example, as the ANPR points out, at the time of adoption by GSA of the 180-day aging procedure and adoption of a similar procedure by an industry group, the Roof Insulation Committee of the Thermal Insulation Manufacturers Association ("RIC/TIMA"), the Commission advised home insulation sellers that these procedures were "reliable" procedures to "age cellular plastic insulations." 64 Fed. Reg. at 48030. Yet, the manufacturing industry, while expressly endorsing RIC/TIMA Technical Bulletin 281-1, cautioned that this "conditioning" procedure was "not intended" to be an aging procedure, was not in fact a true aging procedure, and should not be read to "imply that the thermal value of the insulation was stabilized at the end of the 180 days." PIMA Technical Bulletin 101, "Roof Insulation Specimen Conditioning Procedure." In addition, various other industry organizations in their technical bulletins emphasized that stabilized R-values of individual products were "unknown" and that available technical evidence indicated that R-values would continue to decline from the R-value established under either the 180-day or 90-day conditioning procedure. National Roofing Contractors Association & Midwest Roofing Contracting Association, "Technical Examination and Explanation Regarding Polyisocyanurate and Polyurethane Roof Insulation Boards," Nov. 1987 ("NRCA/MRCA Tech. Bull."), p. 1. NRCA/MRCA concluded that R-values over the anticipated life of a roof would decline to values significantly lower than those reflected in the conditioning procedures.(2) This substantial discrepancy between advertised R-values and those over the life of the product application frequently has been cited in the building industry, along with the fact that available test methods leave substantial room for wide variations in advertising R-values. See, e.g., R. Stacy, "Rigid Foam Update," Journal of Light Construction, Sept. 1999, p. 52 ("Thermal aging" puts "long-term R-values … closer to between R-5 and R-5.6, although due to disparate testing methods, manufacturers may publish higher aged values.") To deal with these substantial discrepancies and variability, some manufacturers have used information disclaimers or clarifications specifically regarding the potential effect of aging. For example, one major manufacturer has used the following statement: Many companies selling polyisocyanurate foam insulations today use six month ambient aging to establish R-values. These R-values are based on RIC/TIMA 281-1 or PIMA 101. These conditioning procedures were only intended for comparison of roof insulations, not to predict long-term stabilized R-values of foam insulation. The reality is that products tested after these conditioning procedures could show R-values of 7 or 7.2 per inch, but actually age to R5.6 (R2.8 on 1/2" basis).(3) The use of such or similar disclosures regarding the long-term effect of aging on R-values should be required in all written materials covered by the R-value Rule. EPSMA believes such disclosure is especially critical given the nature of the subject product. While many building components (e.g., windows) are commonly understood to warrant replacement over a discrete period, the life of insulation is typically viewed as co-extensive with the life of the structure.(4) Thus, the need for disclosure of long-term R-values is essential. Such disclosure, moreover, has ample precedent in the existing Rule and is fully consistent with the intent of the Rule. For example, the Rule currently sets forth stringent variability requirements for representations of R-values. R-values cannot be more than 10 percent below labeled or advertised R-values. 16 CFR § 460.8. See also 16 CFR § 460.6 ("representative thickness" allows no more than +/- 2 percent variation in R-value with increases in thickness). If R-values cannot be greater than 10 percent less than as advertised, variations in R-value due to aging that can easily exceed 20 percent over the anticipated life of the application are clearly inconsistent with this disclosure objective. Thus, the Commission should require, at a minimum, an appropriate disclosure of the potential long-term reduction of R-values. Such a proposed disclosure, moreover, is consistent with the requirement in the existing Rule of a disclaimer-type disclosure where appropriate. For example, the Rule now provides that: "Foam insulation shrinks after it is installed. This shrinkage may significantly reduce the R-value you get." 16 CFR § 460.13(d). EPSMA believes that an appropriate R-value aging disclosure can be accomplished in either of two ways: either through a qualitative disclosure or a quantitative disclosure. With respect to the former, the disclosure need not contain any specific number for the average R-value over the anticipated life of the product application, so long as the reduction is appropriately described as "significant" or "substantial." See, e.g., 16 CFR § 460.13(d)(shrinkage "may significantly reduce" R-value). Alternatively, the Commission could require a quantitative disclosure that reflected the long-term effect of aging through a stated range of R-values or percentage reduction in R-value. Of course, if a manufacturer chose to disclose a quantitative figure or range of figures (or percentage reduction), the Commission's substantiation requirements would apply.(5) Although EPSMA is not proposing any specific disclosure language and believes various language formulations could serve the desired disclosure objective, an example of possible wording for a qualitative R-value aging disclosure would be:
If a manufacturer chose to use a disclosure statement that quantitatively represented longer-term R-values, possible language would be:
OR
EPSMA urges the Commission to include in any Notice of Proposed Rule the disclosure proposal outlined above. The present situation with respect to attempts to deal with aging and R-values is widely recognized as seriously inadequate. The proposed disclosure serves the Commission's objective of providing necessary R-value information to the consumer in a simple, understandable manner. The proposed disclosure, moreover, cannot reasonably be considered unduly burdensome, as evidenced by the fact that some manufacturers already use such disclosures in their advertising materials. IV. Other Testing Requirements/Accreditation of Testing Laboratories (Section IV.D.1 The current rules do not require that testing laboratories be accredited. The lack of such requirement is based, in part, upon the Commission's lack of awareness of any specific testing problems with unaccredited laboratories that would justify imposition of this type of provision. We are also unaware of any significant testing problems. It is, of course, in the best interest of manufacturers to use professional testing procedures working with laboratories whose reputation will provide domestic as well as global acceptance. We would also point out that reliance by manufacturers in their product advertising on test results obtained through unqualified or otherwise questionable laboratories or test procedures could raise questions regarding whether such advertising claims could be adequately substantiated. If the Commission does decide to impose a test facility accreditation requirement at some future date, we would urge the Commission to use either the National Voluntary Laboratory Accreditation Program administered by the Department of Commerce or by the International Organization for Standardization. CONCLUSION EPSMA commends the Commission for undertaking a review of the R-value Rule. Consistent with the fundamental purpose of this important consumer information rule, EPSMA respectfully urges the Commission to substantially enhance the Rule by requiring appropriate disclosures to consumers regarding aging and long-term R-values. Sincerely,
EPS MOLDERS ASSOCIATION LTR018Q 1. Some building component manufacturers offer architectural detail files or similar literature that may contain information different from that typically provided to consumers. Similarly, manufacturers of some components may provide "shop drawings" with respect to specific projects where their guidance is requested. The fact that such technical information may be available from some manufacturers, however, does not mean that the commercial building community at large is either fully informed regarding all appropriate R-value information or should not have available to it the type of important disclosures that the Rule promotes.
2. NRCA/MRCA concluded that an R-value of 5.6 per inch thickness was a "reasonable value for thermal performance over the anticipated life" of the application. NRCA/MRCA Tech. Bull., p. 1. In these applications, this figure has often been cited in lieu of advertised, higher R-values, such as 7.2 per inch. See, e.g., 64 Fed. Reg. at 48031 n. 41. 3. Celotex Corp., "R-Value Technical Facts - Know What You Are Buying." Similarly, another manufacturer states: "The R-values for this product were determined by ASTM C 518 in accordance with the six-month conditioning procedure outlined in PIMA Technical Bulletin 101 (RIC/TIMA Technical Bulletin 281-1). Reduction in foam thermal performance can continue to occur after the PIMA (RIC/TIMA/ six-month conditioning period. The ultimate R-value of these products will depend on individual installation circumstances. When calculating the anticipated thermal performance over the expected life of these products, Schuller suggests the use of an R-value of 5.56 per inch of foam thickness." Johns Manville Corp., "UltraGard Roof Insulation." 4. See, e.g., National Ass'n of Home Builders, "Housing Facts, Figures and Trends," p. 10 (1998). 5. The substantiation requirements would also apply, of course, to any advertisements in which parties covered by the Rule do not state any specific R-values, but state or imply that R-values will remain substantially constant over time. |