TSCA Certification Changes Seen as Onerous, Trade Groups Tell CBP

CBP's proposal to eliminate "blanket certification" and require information for all chemical imports about whether Toxic Substances Control Act (TSCA) regulations apply seems to contradict ongoing efforts to streamline trade processing, the National Customs Brokers & Forwarders Association of America said (here). "We urge CBP to include an exemption from the negative certification for chemicals that are clearly identified as a pesticide or other chemical not subject to TSCA," the NCBFAA said in comments to CBP in response to the agency's proposal involving the use of ACE for goods subject to TSCA regulations (see 1608260032). "In our view, requiring a negative certification for these non-TSCA products is an overreach that is incompatible" with the 2014 Executive Order on streamlining trade processing, the group said.

While CBP now allows for an annual "blanket certification" indicating either TSCA applicability or not -- called a "negative certification" -- the proposal to eliminate blanket certifications could mean significant new burdens, the NCBFAA said. "Now, as entry filing in ACE becomes an option for imports subject to TSCA, CBP is proposing to eliminate the blanket certification process altogether and to require certification information to be provided at entry filing not only for chemical imports subject to TSCA, but for all ... chemical imports NOT subject to TSCA, as well, even if they are clearly identified as non-TSCA regulated products. This would include such products as pesticides, food, food additives, drugs, cosmetics or devices, nuclear material, firearms and ammunition," the group said. "All of these products are already subject to reporting to [the Environmental Protection Agency] or to other agencies under other laws."

CBP should also address how an increase to the de minimis value threshold (see 1608250029) applies to goods subject to TSCA, the NCBFAA said. How will CBP ensure TSCA compliance with low value shipment when no formal entry -- and no certification -- is required for de minimis shipments, the group asked. "CBP needs to address how it will meet this contingency for TSCA-regulated product."

CBP should consider an alternative to entirely ending the blanket certification process, UPS said in its comments (here). "Rather than scrap the blanket process CBP should consider utilization of the ACE Portal or other electronic based process within ACE," the company said. Noting that the customs reauthorization law requires "meaningful and measurable benefits for trusted trade programs," UPS said it encourages "CBP and EPA to consult with a broad-base of industry representatives including importers and brokers to determine if meaningful benefits could be established using a blanket model."

The changes could also hurt expedited release programs, meaning "some allowance must be made for the TSCA certification to continue to be filed at the time of entry summary," the Northern Border Customs Brokers Association said (here). Several other trade groups, including the American Coatings Association (here), the American Chemistry Council (here) and the American Fuel & Petrochemical Manufacturers (here), asked that CBP keep blanket certifications or allow for something similar.

Clarity is also needed for determining "when is a chemical substance or mixture part of an article," the U.S. Council for International Business said (here). "Making a correct determination is important because the certification requirement is dependent upon it," it said. There's more information necessary about how a company's TSCA expert, "often not a representative of a customs organization in the company or broker acting as the agent for the company," should submit certification electronically, the USCIB said. Also unsaid is "who the authorized TSCA certifier is and/or how the proposed amendments meet all other of the TSCA" legal requirements.

The National Association of Foreign-Trade Zones voiced concerns (here) with an apparent misunderstanding of "the technical legal requirements inherent in a FTZ Type 06 Weekly Estimated Entry." An EPA requirement for inclusion of TSCA certifications in entry data would make it "impossible, due to the unique weekly entry procedures many importers use under the FTZ program, for filers to provide accurate information at time of cargo release on an FTZ 06 Weekly Estimated Entry," the NAFTZ said. "As a result, if the EPA does not change this position on the point of data transmission for weekly entry filers, nearly all FTZ manufacturers and distributors that import chemicals would be forced to abandon the FTZ program, jeopardizing billions of dollars of investments and jobs" in the U.S.