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Department of Treasury Final Rule

DEPARTMENT OF THE TREASURY

Customs Service

19 CFR Parts 12 and 178

[T.D. 00-13]
RIN 1515-AC04


Importation of Chemicals Subject to the Toxic Substances Control
Act

AGENCY: Customs Service, Department of the Treasury.

ACTION: Final rule.

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SUMMARY: This document sets forth final amendments to the Customs
Regulations regarding submission of an importer's certification in
connection with the importation of chemical substances subject to the
Toxic Substances Control Act. The regulatory amendments reduce the
regulatory burden by permitting use of a blanket certification for
multiple shipments in lieu of a separate certification for each
individual shipment. The final regulations also continue the present
practice of allowing some flexibility regarding presentation of the
required certification with the entry documentation for an individual
shipment.

EFFECTIVE DATE: March 30, 2000.

FOR FURTHER INFORMATION CONTACT: Brad Lund, Office of Field Operations
(202-927-0192).

SUPPLEMENTARY INFORMATION:

Background

    The Toxic Substances Control Act (TSCA) (15 U.S.C. 2601 et seq.)
was enacted by Congress, among other things, to protect human health
and the environment by requiring testing and necessary use restrictions
on certain chemical substances. Section 13 of Title I of the TSCA (15
U.S.C. 2612) governs the entry of those chemical substances into the
customs territory of the United States and authorizes the Secretary of
the Treasury to refuse entry of any chemical substance that (1) Fails
to comply with any rule in effect under the TSCA or (2) is offered for
entry in violation of section 5 or 6 of Title I (15 U.S.C. 2604 or
2605) or Title IV (15 U.S.C. 2681 et seq.) or in violation of a rule or
order under section 5 or 6 or Title IV or in violation of an order
issued in a civil action brought under section 5 or under section 7 of
Title I (15 U.S.C. 2606) or under Title IV. Section 13 also sets forth
procedural and other requirements in connection with an entry refusal
and authorizes the Secretary of the Treasury, after consultation with
the Administrator of the Environmental Protection Agency

(EPA), to issue rules for the administration of section 13.
    The regulations implementing section 13 are contained in
Secs. 12.118-12.127 of the Customs Regulations (19 CFR 12.118-12.127).
Within those regulations, Sec. 12.121 concerns reporting requirements.
Paragraph (a) of that section covers chemical substances imported in
bulk or as part of a mixture and provides for submission of a signed
certification by the importer or his authorized agent stating, in the
alternative, (1) That all chemical substances in the shipment comply
with all applicable rules or orders under the TSCA and that the
importer is not offering a chemical substance for entry in violation of
the TSCA or any rule or order thereunder (a positive certification) or
(2) that all chemicals in the shipment are not subject to the TSCA (a
negative certification). Paragraph (a) further requires that the
certification be filed with the director of the port of entry before
release of the shipment and provides that the certification may appear
as a typed or stamped statement (1) on the entry document or commercial
invoice, or on a preprinted attachment to the entry document or
commercial invoice, or (2) in the case of a release under a special
permit for an immediate delivery under Sec. 142.21 of the Customs
Regulations (19 CFR 142.21) or in the case of an entry under Sec. 142.3
of the Customs Regulations (19 CFR 142.3), on the commercial invoice or
an attachment to the commercial invoice. Paragraph (b) of Sec. 12.121
provides that the provisions of paragraph (a) apply to a chemical
substance or mixture as part of an article only if required by a rule
or order under the TSCA. Paragraph (c) of that section provides that a
certification under paragraph (a) may be signed by means of an
authorized facsimile signature.
    On January 9, 1990, Customs published a notice of proposed
rulemaking in the Federal Register (55 FR 738) to amend Sec. 12.121.
The proposed amendments included the following changes to paragraph
(a): (1) To provide for placement of the typed or stamped certification
statement only on the invoice used in connection with the entry and
entry summary procedures (and, thus, no longer on the entry document or
on an attachment to the entry document or commercial invoice); and (2)
in the case of entries or entry summaries processed electronically, to
provide for a certification statement in the form of a certification
code transmitted as part of the Automated Broker Interface (ABI)
transmission. In addition, in order to simplify procedures for
importers who regularly import chemicals, it was proposed to add a new
paragraph (b) to permit the use of ``blanket'' certifications, with a
consequential redesignation of present paragraphs (b) and (c) as (c)
and (d), respectively. Finally, it was proposed to make a conforming
change to newly redesignated paragraph (c), consisting of the addition
of a reference to new paragraph (b). The notice solicited comments from
the public on the proposals, and the public comment period closed on
March 12, 1990. On January 22, 1990, Customs published in the Federal
Register (55 FR 2100) a correction document setting forth, with regard
to the proposed blanket certification procedure, a statement regarding
collection of information review requirements under the Paperwork
Reduction Act of 1980 (44 U.S.C. 3504(h)).

Discussion of Comments

    A total of 19 commenters responded to the solicitation of comments
in the January 9, 1990, notice. A summary of the submitted comments,
and the Customs responses to those comments, are set forth below.
    Comment: Thirteen commenters were opposed to the proposal regarding
inclusion of the certification only on the commercial invoice, and two
commenters were in favor of that proposal. Comments against the
proposal cited the procedural burden and inefficiency that would result
from the proposed restriction, particularly in view of the
unavailability of the original invoice for some shipments, the lack of
sufficient space on the invoice, the need for a separate certification
document in order to avoid delays in the case of air shipments, express
consignment shipments and shipments from contiguous countries, and the
lack of control by the importer of record where the certification is
placed on the invoice by another party.
    Customs response: The proposal in question was not intended to
increase the regulatory burden or to have any of the other adverse
effects cited by these commenters. Based on the submitted comments and
as a result of further review of this matter, including consultation
with the EPA which raised the issue that the proposal was intended to
address, Customs has determined that it would be preferable to maintain
the status quo under which the importer has the option of including the
certification on the commercial invoice or on the entry document or on
an attachment to the commercial invoice or entry document. Accordingly,
the text of Sec. 12.121, as set forth below, continues to reflect the
substance of the current regulatory text in this regard.
    Comment: One commenter requested that the TSCA certification be
made a requirement for the entry summary rather than a condition of
entry.
    Customs response: As indicated above, the TSCA refers specifically
to the ``entry'' of chemical substances into the Customs territory of
the United States. Given the wording of the statute and the clear
purpose of the TSCA, which is to protect the health and safety of the
general public, the regulation in question must apply for admissibility
purposes (that is, when a determination is made as to whether the
imported merchandise may be released from Customs custody into the
commerce of the United States) rather than in connection with a
subsequent filing of the entry summary. Accordingly, the suggestion of
this commenter should not be adopted.
    Comment: Ten commenters specifically supported the proposed blanket
certification procedure, four commenters were against it, and two
commenters stated that the blanket certification should be optional
rather than mandatory. Of the four comments against the proposal, two
commenters argued that a blanket procedure is not feasible where
imported mixtures are involved because changes in the chemical
composition of a product prior to export could render the blanket
certification inaccurate. The other two commenters stated that the
proposal would not work in practice because it does not provide for
nationwide acceptance of the blanket certification but rather requires
separate approval at the local level.
    Customs response: While it is true that changes in the composition
of an imported product could negate the applicability of a previously
approved blanket certification, Customs notes that the importer of
record is always responsible for ascertaining the true facts regarding
an individual import transaction, including for purposes of deciding
whether it would be appropriate to rely on a blanket certification on
file with Customs. With regard to the lack of provision for nationwide
acceptance of a blanket approval, Customs remains of the view that, for
operational purposes, approval must take place at the local port level.
    Customs believes that the significant number of favorable comments
supports the appropriateness of the blanket certification procedure
which was intended to simplify procedures and thus reduce the overall
regulatory burden on the importing public. Accordingly, Sec. 12.121, as
set forth

below, incorporates the proposed blanket certification procedure.
    With regard to the optional versus mandatory issue, Customs
believes that the regulatory text clearly gives the importer the option
(and thus does not impose a requirement) of using the blanket
certification procedure, subject only to the port director's exercise
of his discretion in accepting the blanket certification.
    Comment: Three commenters proposed elimination of the TSCA
certification for merchandise subject to FDA 701 requirements and for
pesticides subject to the Federal Insecticide, Fungicide, and
Rodenticide Act (FIFRA), as exempted in section 3 of the TSCA and
identified in the EPA publication ``Toxic Substances Control Act, A
Guide for Chemical Importers/Exporters.''
    Customs response: Customs has been advised by EPA that the Guide
referred to by these commenters provides that articles as defined in
the Guide and tobacco and tobacco products do not require a
certification but that food items and pesticides require a negative
certification, and EPA also suggested to Customs that the Guide would
become confusing in the step-by-step instructions for importers if the
negative certification for food items and pesticides were to be
eliminated. Moreover, while EPA advised Customs that a negative
certification would not be needed if the shipment is accompanied by the
appropriate form identifying the merchandise as a pesticide or as a
food, food additive, drug, cosmetic or device, as is suggested in the
Guide, Customs notes that this approach would not appreciably reduce
the regulatory burden on importers. Accordingly, Customs believes that
the suggestions of these commenters should not be adopted.
    Comment: Seven commenters requested that the regulatory text
provide for a waiver of the certification requirement for small
shipments, samples, low value shipments, mail shipments, and shipments
imported for research and development purposes.
    Customs response: The EPA has advised Customs that automatic
waivers of the certification requirement should not be provided for in
the regulatory text because authority to grant waivers must remain with
the EPA for consideration on a case-by-case basis; the Guide referred
to in the preceding comment discussion sets forth the procedures
applicable to the issuance of such waivers by the EPA. Therefore, the
suggestion of these commenters should not be adopted.

Other Changes to the Regulatory Texts

    In addition to the changes to the proposed regulatory text
discussed above in connection with the public comments, Customs has
determined that a number of other changes should be made both to the
proposed text and to the present Sec. 12.121 text based on further
internal review. The principal additional change involves removal of
the proposed new language dealing with entries or entry summaries
processed electronically: On reconsidering this proposed text, Customs
has concluded that it is generally preferable not to set forth specific
electronic procedures in a narrow regulatory context but rather to
cover them in the context of overall electronic procedures as those
procedures are developed and implemented. In addition, the structure of
the paragraphs under Sec. 12.121 has been modified without change in
substance by setting forth the basic certification requirement in new
paragraph (a)(1) and by covering all filing procedures (including the
blanket procedure which operates as an exception to the normal entry-
by-entry filing procedure) in new paragraph (a)(2). Also, language has
been included in the introductory paragraph of the blanket text to
clarify that use of the blanket procedure is permissible only for an
imported product that conforms to the product description contained in
the blanket certification filed with Customs. Finally, a number of
editorial, nonsubstantive changes have been made to enhance the clarity
of the regulatory text.

Conclusion

    Accordingly, based on the comments received and the analysis of
those comments and based on the additional considerations as discussed
above, Customs believes that the proposed regulatory amendments should
be adopted as a final rule with certain changes as discussed above and
set forth below. As a consequence of the adoption of these substantive
regulatory amendments, this document also includes an appropriate
update of the list of information collection approvals contained in
Sec. 178.2 of the Customs Regulations (19 CFR 178.2).

Executive Order 12866

    This document does not meet the criteria for a ``significant
regulatory action'' as specified in E.O. 12866.

Regulatory Flexibility Act

    Pursuant to the provisions of the Regulatory Flexibility Act (5
U.S.C. 601 et seq.), it is certified that the amendments will not have
a significant economic impact on a substantial number of small entities
because the amendments are specifically directed toward a reduction of
the regulatory burden on the public. Accordingly, the amendments are
not subject to the regulatory analysis or other requirements of 5
U.S.C. 603 and 604.

Paperwork Reduction Act

    The collection of information contained in this final rule has been
reviewed and approved by the Office of Management and Budget (OMB) in
accordance with the Paperwork Reduction Act (44 U.S.C. 3507) under
control number 1515-0173. An agency may not conduct or sponsor, and a
person is not required to respond to, a collection of information
unless it displays a valid control number assigned by OMB.
    The collection of information in this final rule is in Sec. 12.121.
This information is required in connection with importations of
chemical substances under the Toxic Substances Control Act (TSCA) and
will be used by the U.S. Customs Service to verify compliance with TSCA
requirements on imported chemicals. The likely respondents are business
organizations including importers, exporters and manufacturers.
    The estimated average annual burden associated with the collection
of information in this final rule is 2 minutes per respondent or
recordkeeper. Comments concerning the accuracy of this burden estimate
and suggestions for reducing this burden should be directed to the U.S.
Customs Service, Information Services Group, Office of Finance, 1300
Pennsylvania Avenue, NW, Washington, DC 20229, and to OMB, Attention:
Desk Officer for the Department of the Treasury, Office of Information
and Regulatory Affairs, Washington, DC 20503.
    Drafting Information. The principal author of this document was
Francis W. Foote, Office of Regulations and Rulings, U.S. Customs
Service. However, personnel from other offices participated in its
development.

List of Subjects

19 CFR Part 12

    Customs duties and inspection, Labeling, Marking, Reporting and
recordkeeping requirements.

19 CFR Part 178

    Administrative practice and procedure, Exports, Imports, Reporting
and recordkeeping requirements.

Amendments to the Regulations

    Accordingly, for the reasons stated in the preamble, Parts 12 and
178, Customs Regulations (19 CFR Parts 12 and 178), are amended as set
forth below.

PART 12--SPECIAL CLASSES OF MERCHANDISE

    1. The authority citation for Part 12 continues to read in part as
follows:

    Authority: 5 U.S.C. 301; 19 U.S.C. 66, 1202 (General Note 20,
Harmonized Tariff Schedule of the United States (HTSUS)), 1624;
* * * * *
    Sections 12.118 through 12.127 also issued under 15 U.S.C. 2601
et seq.;
* * * * *

    2. Section 12.121 is revised to read as follows:

Sec. 12.121  Reporting requirements.

    (a) Chemical substances in bulk or mixtures--(1) Certification
required. The importer of a chemical substance imported in bulk or as
part of a mixture, or the authorized agent of such an importer, must
certify either that the chemical shipment is subject to TSCA and
complies with all applicable rules and orders thereunder, or that the
chemical shipment is not subject to TSCA, by signing and filing with
Customs one of the following statements:

    I certify that all chemical substances in this shipment comply
with all applicable rules or orders under TSCA and that I am not
offering a chemical substance for entry in violation of TSCA or any
applicable rule or order thereunder.
    I certify that all chemical substances in this shipment are not
subject to TSCA.

    (2) Filing of certification--(i) General. The appropriate
certification required under paragraph (a)(1) of this section must be
filed with the director of the port of entry before release of the
shipment and, except when a blanket certification is on file as
provided for in paragraph (a)(2)(ii) of this section, must appear as a
typed or stamped statement:
    (A) On an appropriate entry document or commercial invoice or on an
attachment to that entry document or invoice; or
    (B) In the event of release under a special permit for an immediate
delivery as provided for in Sec. 142.21 of this chapter or in the case
of an entry as provided for in Sec. 142.3 of this chapter, on the
commercial invoice or on an attachment to that invoice.
    (ii) Blanket certifications. A port director may, in his
discretion, approve an importer's use of a ``blanket'' certification,
in lieu of filing a separate certification for each chemical shipment,
for any chemical shipment that conforms to a product description
provided to Customs pursuant to paragraph (a)(2)(ii)(A) of this
section. In approving the use of a ``blanket'' certification, the port
director should consider the reliability of the importer and Customs
broker. Approval and use of a ``blanket'' certification will be subject
to the following conditions:
    (A) A ``blanket'' certification must be filed with the port
director on the letterhead of the certifying firm, must list the
products covered by name and Harmonized Tariff Schedule of the United
States subheading number, must identify the foreign supplier by name
and address, and must be signed by an authorized person;
    (B) A ``blanket'' certification will remain valid, and may be used,
for 1 year from the date of approval unless the approval is revoked
earlier for cause by the port director. Separate ``blanket''
certifications must be approved and used for chemical substances that
are subject to TSCA and for chemical substances that are not subject to
TSCA; and
    (C) An importer for whom the use of a ``blanket'' certification has
been approved must include, on the invoice used in connection with the
entry and entry summary procedures for each shipment covered by the
``blanket'' certification, a statement referring to the ``blanket''
certification and incorporating it by reference. This statement need
not be signed.
    (b) Chemical substances or mixtures as parts of articles. Each
importer of a chemical substance or mixture as part of an article must
comply with the certification requirements set forth in paragraph (a)
of this section only if required to do so by a rule or order issued
under TSCA.
    (c) Facsimile signatures. The certification statements required
under paragraph (a)(1) of this section may be signed by means of an
authorized facsimile signature.

PART 178--APPROVAL OF INFORMATION COLLECTION REQUIREMENTS

    1. The authority citation for Part 178 continues to read as
follows:

    Authority: 5 U.S.C. 301; 19 U.S.C. 1624; 44 U.S.C. 3501 et seq.

    2. Section 178.2 is amended by adding a new listing to the table in
numerical order to read as follows:

Sec. 178.2  Listing of OMB control numbers.

------------------------------------------------------------------------
                                                             OMB control
          19 CFR  section                  Description           No.
------------------------------------------------------------------------
                  *        *        *        *        *
Sec.  12.121.......................  Approval of blanket       1515-0173
                                      certification under
                                      the Toxic Substances
                                      Control Act.

                  *        *        *        *        *
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Raymond W. Kelly,
Commissioner of Customs.
    Approved: December 7, 1999.
Dennis M. O'Connell,
Acting Deputy Assistant Secretary of the Treasury.
[FR Doc. 00-4815 Filed 2-28-00; 8:45 am]
BILLING CODE 4820-02-P
      

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