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Frequently Asked Questions
2012 Chemical Data Reporting

Determining the Chemical Substances Subject to the CDR Rule

4. General

4.1 How do I determine my reporting requirements?
Carefully review the regulations located at 40 CFR 711.5 to determine your reporting requirements. Section 2.0 of the 2012 Instructions for Reporting explains the reporting requirements, using flow diagrams and examples to help you determine if your chemical substance is reportable and if you are required to report. You should consider the following three steps to determine whether you are required to report for each chemical substance that you domestically manufacture (including import) into the US during the principal reporting year (i.e., calendar year 2011):
Step I: Is your chemical substance subject to the CDR rule?
See Figure 2-1 in the Instructions for Reporting
.
Step II: Are you a manufacturer (including importer) who is required to report
?
See Figure 2-2 in the Instructions for Reporting.
Step III: What information must you report?
See Figure 2-3 in the Instructions for Reporting.
You may also review how to determine your reporting requirements by reading Training Module 2-Reporting Requirements for the 2012 CDR.

5. Manufactured Chemicals (including Imported) for Commercial Purposes

5.1 If a company purchases chemicals and blends them into finished products, with no chemical reactions, is the company required to report these materials?
No. The CDR rule requires only manufacturers, including importers, of chemical substances listed on the TSCA Chemical Substance Inventory to report. Therefore, if a company purchases all of its chemicals from domestic sources and does not use them to manufacture other chemicals, the company is not required to report.


5.2 If a company manufactures a chemical substance on the TSCA Inventory solely for export, is the company subject to CDR regulations?
Yes. Persons who manufacture chemical substances solely for export are considered manufacturers for the purposes of CDR and need to comply with the CDR regulations. Note, however, that the information required by 40 CFR 711.15(b)(4) is restricted to domestic activities, i.e. within the customs territory of the United States. If all processing and use occurs outside the United States, the company would fill out Parts I and II of Form U and check the box labeled “N/A” in the upper right-hand corner of Sections A and B of Part III on Form U.


5.3 Is a company a manufacturer if it buys the material and resells it or if the company buys the material and packages it into drums?
In 40 CFR 711.3 “manufacture” is defined in part as "manufacture, produce, or import for commercial purposes. Manufacture includes the extraction, for commercial purposes, of a component chemical substance from a previously existing chemical substance or complex combination of substances.” In both of the examples, the company is not manufacturing as long as the company is purchasing from a domestic source. If the company is importing, then it is manufacturing.

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6. Toll Manufacturers

6.1 Company B is a “toll” manufacturing facility which converts its customer’s, Company A’s, own raw materials utilizing the customer’s technology into the customer’s owned products. Company B charges a “toll” fee for the conversion process and does not own any of the materials and is not selling or marketing the manufactured products. All of the products are returned to Company A for their own disposition. Due to confidentiality agreements, Company B is typically not aware of the end use, but certainly doesn’t know the volumes, markets or uses for the products. However, Company A has indicated that Company B is responsible for completing the CDR. Company B’s position is that Company A is the responsible party since it is their material and Company B has no control over the product, market, applications or uses. What should Company B do?
Company B should refer Company A to the CDR regulations, specifically to 40 CFR 711.22(c), which states that while the companies can work out among themselves who should report, EPA holds both of the parties (i.e., contracting company and toll manufacturer) responsible for the submission of a report by either one of the parties. Company B and Company A should then decide how to comply with the CDR regulations for the chemical substance.
6.2 Who is primarily or solely responsible for meeting CDR requirements – the contracting manufacturer or the toll manufacturer? Does the contracting company, have to submit information on behalf of the toll manufacturer?
There is nothing in the rule to prevent toll and contracting manufacturers from sharing information and agreeing between themselves that one or the other will undertake all or a portion of the work associated with meeting the CDR regulations for a given chemical substance. EPA expects that in most instances, a person that contracts with a toll manufacturer will generally know more about the particular chemical substances, and will usually be a better position to report on industrial processing and use of a chemical substance, and on commercial and consumer uses of products containing the chemical substance. Similarly, EPA expects that the toll manufacturer will generally be in a better position to report on the number of workers and other information about their plant.

In light of the contracting company’s control over the “total amount produced and the basic technology for the plant process,” and based on EPA’s expectations of the relative knowledge of the contracting company, EPA initially indicated, in proposed section 40 CFR 711.22(c), that the contracting company would be “primarily responsible” for CDR reporting. However, given the confusion introduced by indicating that one party or the other is “primarily” responsible for reporting, and not wishing to interfere in contractual agreements to the contrary, EPA has decided not to allocate “primary” responsibility to either party in the final rule. However, the enforceability of the rule requires EPA to specify the persons who are legally responsible for reporting. In fairness, EPA has chosen to make both parties responsible for reporting on the chemical substances they have agreed to manufacture.


6.3 If the contracting manufacturer agrees to report the chemical for the 2012 CDR submission period, does that take the burden off of the toll manufacturer? For example, if Company A tolls for Company X and Company X agrees to report the chemical for 2012, does that absolve Company A from any reporting?
Not necessarily. If Company X agrees to report the manufacturing, but fails to do so, Company A is still responsible to report. As indicated in the answer to 6.2 above, EPA has left it to the contracting company and the toll manufacturer to decide among themselves how to meet the CDR requirements for a specific chemical substance. Although EPA has not allocated “primary” responsibility to either party in the rule, for enforceability reasons, EPA has made both parties (i.e., contracting manufacturer and toll manufacturer) responsible to ensure that one of the parties reports the chemical substance.


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7. Importers

7.1 Are importers of chemical substances required to report under the CDR rule?
As noted above in answer to 5.3, 40 CFR 711.3 and TSCA section 3 define “manufacture” to include import. Under TSCA, manufacturing and importing a chemical substance are equivalent. Any person who manufactured (including imported) for commercial purposes 25,000 pounds or more of a chemical substance at any single site during calendar year 2011 is subject to reporting requirements (40 CFR 711.8(a)).


7.2 If a company imports three different materials all containing a reportable chemical substance from three different import brokers, who is responsible for reporting?
For the CDR rule, only one report must be submitted for each reportable chemical substance. Under the CDR regulation, the importer is the party primarily liable for the payment of any duties or an authorized agent acting on his/her behalf and is responsible for reporting. However, under 40 CFR 711.22, when two or more persons are involved in a particular import transaction and each person meets the Agency’s definition of “importer” as set forth in 40 CFR 704.3, they may determine among themselves who will submit the required report. If no one reports an import transaction when required, all persons who qualify as importers of the chemical are liable for failure to report.


7.3 Although Company S is a non-resident (i.e., non-U.S.) company, Company S is the importer of a chemical substance (shipping directly to Company R, customer in the U.S., and acting as the importer of record for purposes of completing the necessary forms for U.S. Customs, including the payment of duties). Can Company S, an entity that is a non-resident importer, file a CDR Form U?
Yes, but it must give its U.S. site address. The definition of “site” at 40 CFR 711.3 states that for an importer, the “site” is “the U.S. site of the operating unit within the person’s organization that is directly responsible for importing the chemical substance” but also indicates that if there is no such operating unit within the U.S., the U.S. address of an agent acting on behalf of the importer may be used. EPA expects that all importers will have a U.S. site meeting the 40 CFR 711.3 definition, because under Customs regulations at 19 CFR 141.18, a non-resident corporation is not permitted to enter merchandise for consumption unless it has a resident agent in the U.S.


7.4 Is a company operating in a Foreign Trade Zone subject to the CDR rule?
Yes. A company is subject to reporting if it manufactures (including imports) a chemical substance, covered under 40 CFR 711.5 in a Foreign Trade Zone in quantities of 25,000 pounds or more during the principal reporting year.


7.5 A company receives a chemical substance from a foreign source and uses it as a reactant. The reaction completely consumes the chemical substance. Is this chemical substance considered to be site-limited?
For purposes of CDR, imported chemical substances are never site-limited. (40 CFR 711.3) A chemical substance is site-limited only if it is domestically produced and processed only within a site and is not distributed for commercial purposes as a chemical substance or as part of a mixture or article outside the site. Instead, if the chemical substance is imported in quantities of 25,000 pounds or more in 2011, the amount completely consumed in the reaction would be reported on Form U as “volume used at site.”


7.6 A company transports a chemical substance via pipeline from outside the customs territory of the United States to a plant site in the U.S. Is the company subject to the CDR rule for this chemical substance?
Yes. The company is importing a chemical substance into the United States, and, therefore, is potentially subject to CDR regulations. The mode of transporting the chemical substance to a company’s site is not relevant when determining Chemical Data Reporting obligations.


7.7 A U.S. company manufactures a reportable chemical substance and has included it on the Form U for its manufacturing site. The U.S. company exports that substance to a Canadian company in Canada. The Canadian company then blends the substance with oil to make a mixture which they import back into the United States. Since the component chemical substance that the Canadian company imports into the United States was at one point domestically manufactured and reported in the United States, does the Canadian company that is importing the mixture containing that substance have to report the substance again as a mixture component?
Potentially, yes. There is no CDR exemption for an imported chemical substance based on the fact that the substance had previously been domestically manufactured in the United States and exported. The company importing the mixture (e.g., the Canadian company) would need to consider whether the components of the mixture, including the chemical substance under question, meets the other CDR reporting requirements (e.g., production volume).


7.8 The records that Company Q uses to complete its CDR submission are based on the receipt date at its plant (i.e., when material was added to Company Q’s inventory). When importing at year end some material will clear Customs in 2011 but arrive at the plant in 2012. For example, Customs clears the material on December 27, 2011 but it arrives at the plant on January 3, 2012, at which time it is added to the inventory). Is it permissible for Company Q to use the arrival date at the plant to complete the CDR submission?
Although EPA has not specified which date importers should use, EPA would expect reporting to be consistent for the year. For example, if Company Q chooses to use the arrival date at the plant to complete its CDR submission, then it should always use the arrival date for a chemical substance and not switch to the date that the chemical substance cleared Customs.


7.9 Company P’s main office that is doing all of the reporting is located in California. However, the actual shipments are sent to warehouses around the country. In determining the import quantity and whether it exceeds the threshold and is thus subject to reporting, does Company P use the amount going to each location or the total amount that it imports? For example, Company P imports a total quantity of 45,000 pounds of a chemical substance which was shipped to four locations throughout the year. The total quantities shipped to each of the four locations are 15,000 pounds, 15,000 pounds, 9,000 pounds and 1,000 pounds. Is this chemical substance reportable? Does Company P need to complete fur forms showing the actual quantity to each location even though each of the quantities is below the threshold?
The site controlling the import is the site which reports under CDR. See the definition of site at 40 CFR 711.3. Therefore, because Company P controls the imports which total over 25,000 pounds, Company P should submit just one form, combining the volumes from the four locations.

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