On December 27, 2016, U.S. Customs and Border Protection (“CBP”) issued a final rule amending the regulations interpreting the import certification requirements of section 13 of the Toxic Substances Control Act (TSCA) (15 U.S.C. § 2601 et seq.). The amendments include optional electronic filing, clarifications and additional definitions, and elimination of the paper-based “blanket” certification process. The final rule went into effect on March 21, 2017, following a delay to provide the new administration with an opportunity to review pending regulations.
Section 13 of TSCA requires U.S. importers to certify that imported chemical substances, mixtures, and articles either comply with TSCA (“positive” certification) or are not subject to TSCA (“negative” certification). A positive certification means that the substance is subject to TSCA and complies with TSCA section 5 premanufacture notification (PMN) requirements and significant new use rules (SNUR) as well as certain rules, orders, and actions under sections 5, 6, and 7 of TSCA. CBP cannot properly accept entry of shipments if certification is not made or if the shipment does not comply with TSCA.
The final rule provides an electronic option for filing these import certifications. The final rule also allows importers to provide electronic notice of exportation and abandonment. CBP requires that importers submit their certification filings to the Automated Commercial Environment (ACE) or any other CBP electronic data interchange (EDI) system authorized to accept entries. Certification through ACE is aimed to maximize efficiency by eliminating manual processing and having to review whether paper blanket certifications are in place and for which chemicals at which ports.
Significantly, the final rule also eliminates what is referred to as the “blanket certification” option. Under the previous regulation, importers could use a “blanket certification” to submit a single certification for multiple shipments of the same chemical over one year in lieu of filing separate certification statements for each chemical shipment. CBP removed this “blanket certification” process, explaining that the process had “limited utility” and was more burdensome than the entry-specific certification process.