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Electronic Filing of TSCA Certifications, Other Changes to CBP Regulations Proposed

Tuesday, August 30, 2016
Sandler, Travis & Rosenberg Trade Report

U.S. Customs and Border Protection is proposing to allow electronic filing of the Toxic Substances Control Act certification required when importing chemicals in bulk form or as part of mixtures and articles containing a chemical or mixture. This rule would also clarify and add certain definitions and eliminate the paper-based blanket certification process. Comments on this proposal must be received by Sept. 28.

When a TSCA chemical substance is imported in bulk form or as part of a mixture or a non-TSCA chemical is imported, an importer or its customs broker must submit a signed certification stating that either (1) all chemical substances in the shipment comply with all applicable rules or orders under TSCA and the importer is not offering a chemical substance for entry in violation of TSCA or any rule or order thereunder (a positive certification), or (2) all chemicals in the shipment are not subject to TSCA (a negative certification).

Currently, the TSCA certification must be filed with the director of the port of entry before release of the shipment. The certification may appear as a typed or stamped statement either (1) on the entry document or commercial invoice or on a preprinted attachment thereto, or (2) in the case of a release under a special permit for an immediate delivery under 19 CFR 142.21 or in the case of an entry under 19 CFR 142.3, on the commercial invoice or an attachment thereto. Further, importers are allowed to use paper blanket certifications, which are valid at one port of entry for one year.

The changes in this proposed rule include the following.

- providing an electronic option for filing positive or negative TSCA certifications and notices of exportation and abandonment

- requiring the submission of additional information relating to the certifying individual, including name, phone number and email address, for TSCA certifications submitted either in writing or electronically

- eliminating the blanket certification process, which has limited utility and is more burdensome than the current entry-specific certification process

- including language to make clear that the regulation applies to the importation of chemicals regardless of whether they are “chemical substances” subject to TSCA

- revising and adding definitions to clarify that certification obligations apply to both chemical substances and mixtures that are subject to TSCA (which require a positive certification) and those that are not (which require a negative certification)

In addition, CBP is seeking comments on whether to include an exemption from the negative certification requirement for chemicals that are clearly identified as a pesticide or other chemical not subject to TSCA.

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