ILMA Compoundings April 2018 - 19

made to allow related corporate entities to rely on the CDX
receipts from notifications made by an affiliate entity on
behalf of the entire group. The EPA's mention of this provision was couched in terms intended to caution the notifying
community that producing a copy of the CDX receipt from
another notifier would be the only evidence that would be
recognized by the EPA as excusing noncompliance.
Misunderstanding of this provision by members of the
industry caused a significant number of importers to refrain
from reporting substances known to be imported by others
and to request CDX receipts from these unaffiliated notifiers.
However, such requests are often unfruitful because information provided by the CDX receipt can jeopardize confidential
business information (CBI) claims, leaving the requestor to
cope with a noncompliant posture concerning that substance.
The third group mentioned - those notifiers who
experienced difficulties obtaining substance information from
non-U.S. suppliers - are likely the largest group within the
notifying community with lingering compliance gaps. Many
foreign suppliers are altogether unfamiliar with this recent rule,
lack understanding of the details or are otherwise unwilling to
reveal the substance identities that they consider to be confidential business information. Regardless of the reasons, discussions
were (and continue to be) slow, and notifiers found themselves
unable to include substances requiring notification.
COMPLICATED CHOICES
Importers who were unable to report substances as the result
of these or other complications face an arduous compliance
situation. On one hand lies the temptation to stay the
course with the status quo and hope the failure to notify
does not surface or trigger inquiry and enforcement. On
the other hand stands the correct, but complicated, path of
self-disclosure to the EPA and corrective action, with the
potential risk of penalty.
The temptation first mentioned might seem charmingly
pragmatic, especially if it is combined with the thought of
correcting it with a Form B forward-looking notification after
the publication of the reset TSCA Inventory. The appeal of
this action is to some extent nestled in the notion that the
Form B submittal accomplishes the same essential regulatory
purpose. But the logic and approach are deceptive and perilous. Beyond minimizing the legal mandate, it relies on the
presumption that the Form A submittal is relatively unimportant and that the EPA is unlikely to discover its absence.
Both are untrue. The importance of the notification (timely
or not) is clear on its face. Beyond what the EPA has stated,
additional importance can be seen in the fact that notification
indicates to the EPA that importers are likely to have properly
certified TSCA compliance at the time of importation. The
inability of an importer to provide the chemical substance
identity on a retrospective notification (Form A) suggests

In EPA's responses to questions
submitted by industry members, the mention of the Audit Policy
forecasts the potential for penalties."
that the importer lacked that detail when it submitted its
TSCA Import Compliance certification as part of the import
documentation.
It is impossible to forecast how and when the EPA might
pursue unsubmitted retrospective notifications. Naturally,
enforcement decisions such as this require a balancing by the
EPA of its priorities and available resources with its respective
budget considerations. However, the EPA's enforcement
attitude is on the record. When the EPA published the final
version of this rule, it included responses to questions that
were submitted by industry members about the timing of the
first deadline and the ability to submit late notifications. In
this response, the EPA recognized the potential difficulty for
importers to obtain needed data from foreign sources in a

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ILMA Compoundings April 2018

Table of Contents for the Digital Edition of ILMA Compoundings April 2018