TSCA Certification for Imports

The short rule: you file a positive certification when the shipment is a chemical that TSCA covers, imported in bulk or as part of a mixture. You file a negative certification when the shipment is a chemical that TSCA excludes but nothing on the entry clearly identifies it as excluded. Chemicals that are part of an article only need a certification if a specific TSCA rule or order requires it.

Positive certification: TSCA chemicals in bulk or in mixtures

• Rule: 19 CFR 12.121(a)(1) says the importer or its authorised agent of "a TSCA chemical substance in bulk form or as part of a mixture, must certify" that the shipment "complies with all applicable rules and orders under TSCA" (eCFR, 19 CFR 12.121).
• What you are vouching for: EPA's policy says the certification "applies to TSCA sections 5, 6, and 7" (40 CFR 707.20(c)(1)(ii)) (eCFR, 40 CFR 707.20). In practice that means:
  • TSCA Inventory status;
  • new chemical requirements, including any SNUR. Importers of SNUR chemicals "must certify their compliance with the SNUR requirements" ^[2];
  • any section 6 rule;
  • any section 7 order.
• Not covered: obligations under sections 4 and 8, such as testing and reporting, attach to the importer but "would not apply to individual chemical shipments". So they are not part of what you certify at the border (707.20(a)(2)).

Negative certification: excluded chemicals that are not obviously excluded

• Rule: 19 CFR 12.121(a)(2) applies to "any TSCA-excluded chemical not clearly identified as such". The statement is "I certify that all chemicals in this shipment are not subject to TSCA" (eCFR, 19 CFR 12.121).
• EPA's explanation: the negative statement "is appropriate when a chemical import is not clearly identified as a pesticide or other chemical not subject to TSCA" (40 CFR 707.20(b)(2)(ii)) (eCFR, 40 CFR 707.20).
• Excluded categories: EPA's importer guidance lists pesticides; foods, food additives, drugs, cosmetics and devices; and nuclear source, special nuclear and by-product material (EPA, TSCA Requirements for Importing Chemicals).
• When it isn't triggered: read literally, the negative statement is triggered only when the excluded status isn't already clear from the entry. Neither 19 CFR 12.121 nor 40 CFR 707.20 says what makes a chemical "clearly identified".

Articles: certify only if a rule requires it

• 19 CFR 12.121(b) says an importer of a TSCA chemical or mixture "as part of an article" must certify "only if required to do so by a rule or order issued under TSCA" (eCFR, 19 CFR 12.121).
• EPA's page also lists tobacco among the items that need no certification. It points to composite wood products imported after 22 March 2019, which must meet the TSCA Title VI formaldehyde standards (EPA).

What you need to know before signing

• EPA "expects that this certification will be based upon actual knowledge of the importer in most cases".
• If you don't know what a mixture contains, you "should attempt to discover the chemical constituents", for example by asking your principal or the foreign manufacturer.
• Documented good-faith efforts "may obviate or mitigate" a civil penalty under TSCA section 16 (40 CFR 707.20(c)(1)(iii)) (eCFR, 40 CFR 707.20).

If the certification is missing or wrong

• "Customs will refuse entry to any shipment until such time as the certification is properly submitted."
• Customs "will also detain a shipment" if there are reasonable grounds to believe it violates TSCA.
• A shipment that violates TSCA "must either be brought into compliance, exported, destroyed, or voluntarily abandoned" within the time limits in 19 CFR 12.124 (40 CFR 707.20(c)(2)(i)) (eCFR, 40 CFR 707.20).

Approach: I searched EPA's TSCA SNUR rulemakings in the datasets, which don't hold the CBP or EPA import-certification regulations. So I read the current eCFR texts of 19 CFR 12.121 and 40 CFR 707.20, plus EPA's guidance page for importers.

I found no rule that changes the TSCA certification for a courier (express consignment) shipment. You file the same positive or negative statement under 19 CFR 12.121, before release, whether you or the courier's brokerage files the entry. EPA says certification "is required for substances that are imported and are received by mail or commercial carrier, including those intended for research and development" (EPA, TSCA Requirements for Importing Chemicals).

How courier shipments enter

• 19 CFR 128.1(c) defines a "courier shipment" as "an accompanied express consignment shipment" (eCFR, 19 CFR Part 128).
• Informal entry (128.24(a)): available for shipments of $2,500 or less. It cannot be used for prohibited or restricted merchandise, quota items, or articles excluded under 19 U.S.C. 1498. Above $2,500, or if the shipment doesn't qualify, formal entry under 128.25 applies.
• Low-value shipments (128.24(e)): goods worth $800 or less that meet 19 CFR 10.151 pass "free of duty and tax" without HTSUS codes or an entry summary. That provision is about duty and paperwork. It says nothing about TSCA, and nothing in 19 CFR 12.121 exempts low-value or courier shipments.
• Electronic invoice option: CBP says the Electronic Invoice Program and Remote Location Filing (EIP/RLF) "may not be filed at an express consignment facility" (CBP EIP/RLF Handbook).

Steps to complete it

1. Pick the statement. Use positive for a TSCA chemical in bulk or in a mixture. Use negative for an excluded chemical that isn't clearly identified as excluded. Chemicals in articles need no certification unless a TSCA rule requires one (19 CFR 12.121(a)-(b)).
2. Decide who certifies. The certifier is "the importer or the importer's authorized agent" (12.121(a)(3)). If the courier's brokerage files the entry, it can only certify for you as your authorised agent. You still need to give it the TSCA status, because EPA expects the certification to rest on the importer's actual knowledge (40 CFR 707.20(c)(1)(iii), covered last turn).
3. Give the certifier's contact details. Each entry "shall" include the certifier's name, phone number and email address (12.121(a)(3)) (eCFR, 19 CFR 12.121).
4. File it in ACE before release. CBP's ACE guidance gives two options; use one or the other (CBP, Tips for Trade when Filing an EPA TSCA Certification in ACE):
   • EPA electronic filing (CBP calls it the "PGA message set"; CBP prefers this option):
     • Agency program code TS1.
     • Party role CI (Certifying Individual).
     • Certification code EP4 (positive) or EP5 (negative).
     • ACE checks the filing and returns either "may proceed" or a reject with an error message.
   • Paper image: upload an image of the paper certification to ACE's Document Imaging System (DIS), tag it EPA06, and enter disclaim code C.
5. If the product's tariff code is flagged for EPA TSCA but no TSCA data is due, enter a disclaim code (same CBP guidance):
   • A: product is not regulated by EPA.
   • B: data not required per agency guidance. CBP says to call the TSCA Hotline to confirm B applies. It is not allowed for Title VI wood products.
   • C: data filed through other agency means, such as DIS.
   • D: data filed on paper.
6. Paper is still allowed. It must be a typed or stamped statement on the entry document or commercial invoice, or on an attachment to it. It may carry an authorised facsimile signature (12.121(c)).

Practical point: courier shipments clear fast. Give your courier the TSCA statement and the certifier's contact details with the commercial invoice. Without a proper certification, CBP will refuse entry until one is filed (40 CFR 707.20(c)(2)(i), covered last turn). For questions on whether a filing is needed, CBP refers importers to EPA's TSCA Hotline: (202) 554-1404, tsca-hotline@epa.gov.

Approach: None of the TSCA registers I searched (Inventory, SNUR rulemakings, ChemView, CDR) cover customs entry procedures. So I read the current eCFR text of 19 CFR 12.118, 12.120 and 12.121, 19 CFR Part 128, CBP's ACE guidance and EIP/RLF handbook, and EPA's importer page.