Posted on June 01, 2018
What is TSCA?
In 1976, the US Congress passed the Toxic Substances Control Act (TSCA), mandating the Environmental Protection Agency to regulate the manufacture and import of chemicals. The goal of this legislation was to protect the American people from “unreasonable risk of injury to health or the environment.” The EPA does this through assessing and regulating new chemicals before they enter the commercial market, and by regulating the use and distribution of extant chemicals that are deemed dangerous. Despite its misleading name, TSCA monitors all chemicals, not just those considered toxic or dangerous.
TSCA was created to allow the government to keep the American public safe from dangerous chemicals. But what does it mean for companies importing chemicals into the US for their business? US Customs and Border Protection trusts importers to exercise “reasonable care,” and that standard demands that importers be responsible in meeting the requirements of TSCA.
How do I know if my product is regulated under TSCA?
Under TSCA, the EPA regulates and monitors all chemical substances, except those substances already under the aegis of other government agencies. For instance, food and drugs are administered by the Food and Drug Administration; tobacco by the Alcohol, Tobacco and Firearms Agency; and radioactive material and waste by the Nuclear Regulatory Commission.
To help importers know whether products have TSCA requirements, the CBP flags certain HTS classifications as maybe or definitely requiring additional information by EPA. This is a helpful tool for importers and can be used to determine when a TSCA certification is required for a product. However, it may not indicate whether a product is subject to exemption. For more specific information, an importer can turn to the EPA’s TSCA Inventory.
The EPA keeps an extensive TSCA Inventory that can be found at www.epa.gov/tsca-inventory. When importing a chemical substance for the first time, the importer should check whether the substance is present on the TSCA Inventory. The inventory also identifies those substances subject to certain other EPA rules, as well as those substances with partial or full exemption from TSCA reporting requirements.
What do I do if my product is regulated under TSCA?
If a chemical substance is included on the TSCA Inventory, a TSCA Certification is required, unless specifically exempted. A Negative Certification is required for substances that are not subject to TSCA. A Negative Certification is required for any food or drug administered by the FDA, while no certification is required for tobacco (administered by the ATF). No certification is required for chemicals that are a part of articles unless required by specific rule under TSCA.
A Positive Certification is required for chemical substances that are subject to TSCA, stating that the substance complies with TSCA. Substances requiring Positive Certification must comply with all other applicable TSCA regulations. Some chemicals have specific import requirements under section 6 of TSCA, including PCBs, mercury, and asbestos. Chemicals that are considered “new”—not on the TSCA Inventory or not previously known to the EPA—have additional requirements for import. A pre-manufacture notice (PMN) must be provided to the EPA at least 90 days prior to import.
TSCA Certification must be provided and signed by the importer or an authorized agent. The certification should include the certifier’s name, email address, and telephone number. The TSCA Certification must be provided to CBP upon entry.
What’s the takeaway?
TSCA requirements can cause delays and extra costs upon arrival if an importer is not prepared. However, with preparation and a system in place to meet any requirements, TSCA regulations can be met, keeping importers compliant with CBP and EPA and avoiding unnecessary risk.
Contributor: Harmony Lange
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