If your company manufactures or distributes chemicals, you are no doubt aware that in 2016 the Lautenberg Act amended the decades-old Toxic Substances Control Act (TSCA). It established for the first time requirements for the comprehensive evaluation of existing chemicals in commerce, while also strengthening the review of new chemicals.
While pesticides, tobacco products, firearms, foods, pharmaceuticals and cosmetics are excluded from TSCA requirements (since they are monitored by other agencies), other products must follow strict reporting and review processes with the Environmental Protection Agency (EPA).
Even if your business is not directly involved in the manufacture of chemicals, you may be impacted by TSCA. That’s because the law also governs the import and export of toxic substances. Perhaps your company makes and sells cleaning solutions, paint, detergents or other products that include chemical elements, and you want to take advantage of the enormous growth opportunity of global trade and e-commerce to obtain compounds from manufacturers in countries abroad.
In this case, the import of chemicals, mixtures or articles that contain chemical substances is considered to be in the same category as manufacturing, and the substances brought into the United States must follow the same set of rules.
For those who export chemicals that are subject to TSCA, the law requires that you notify the EPA, which will then provide information about the product and its evaluation to the importing government.
The bottom line is that if you are moving chemicals across the border, you must understand the EPA regulations that apply to your products.
Here are four additional considerations:
1. Import Certification
In order to bring substances into the United States, you must certify that the imported chemical or mixture either complies with TSCA (i.e., is already approved), or that it is not subject to the law.
The requirements, including explanations of excluded substances, are described in Section 13 of TSCA, as amended by the Lautenberg Act, and they are implemented and enforced by U.S. Customs and Border Protection (CBP) in consultation with the EPA. Additional compliance information is available through the CBP here.
The CBP’s Automated Commercial Environment (ACE) has streamlined the process of providing required paperwork for cross-border shipments. ACE consolidates export and import processes, providing a single window for entry processing, cargo release and export processing.
TSCA positive and negative certification, stating that the substances being imported either comply with the law or are not subject to it, can be filed electronically through the system.
3. New Chemicals
If you plan to import a substance or mixture that is subject to TSCA but is not on the TSCA approved list, then the product in question will be treated as a newly manufactured chemical, and you must follow the appropriate procedures.
Specifically, you will need to file a pre-manufacture notice with the EPA at least 90 days before commencing import, a process that will then trigger review. For additional information, review the EPA requirements.
4. Export Notification
If you are exporting a chemical or item that includes a chemical, it is critical to check the EPA list of substances subject to TSCA export notification. If the substance is on the list, you must notify the EPA of the activity.