CPSC Proposes Overhaul of Product Safety Certificates; Would Require Direct Filing With CBP

Certificates Required for Finished Products

Under CPSC’s proposal, certificates would be required for “finished products subject to a consumer product safety rule under the Consumer Product Safety Act (CPSA), or similar rule, ban, standard, or regulation under any other law enforced by the Commission, which are imported for consumption or warehousing or are distributed in commerce.” The proposed rule includes definitions for two types of finished product certificates: General Certificates of Conformity (GCC) and Children’s Product Certificates (CPC).

CPSC said the proposed regulation also requires certificates for banned products because “very few CPSC bans completely remove all products in a specific category from the market.” As such, “manufacturers of products in a category where a subset of the products are subject to a ban must still issue certificates,” it said. (See the proposed rule at page 12 for a table providing guidance on products subject to bans that would still require certificates.)

New Definitions Distinguish Required Certs for Finished Products, Optional Certs for Components

The proposed rule would add several new definitions to Part 1110 to distinguish finished products, for which certificates may be required, and component products, for which certification is optional, as follows:

Component product. A component part of a consumer product or other product or substance regulated by the Commission, as defined in § 1109.4(b) of this chapter, that is intended to be used in the manufacture or assembly of a finished product, and is not intended for sale to or use by consumers as a finished product.”

Finished product. A product that is imported for consumption or warehousing or is distributed in commerce.

CPSC said that, under the proposed definitions, replacement parts of finished products that are sold separately would be considered finished products. The distinction is important, because these products would require certification as a result. On the other hand, because regulations on component part certification are voluntary, not every component part will be certified, CPSC said.

Adopts CBP Definition of ‘Importer of Record’; Customs Broker May Issue Certificate

The proposed rule would still require importers to certify finished products manufactured outside the U.S. and not delivered directly to a U.S. consumer. In the proposal, CPSC would adopt the CBP definition of “importer of record” as the definition of importer for purposes of product certification. The regulations would say “importer means importer of record as defined under the Tariff Act of 1930 (19 USC 1484(a)(2)(B)).”

CPSC said its regulations already allow an importer to rely on testing or certification conducted by another party on component, as long as the importer meets the requirements such as exercising due care. As such, foreign manufacturers can still be involved in the certification process, it said. But importers can’t simply pass along a component supplier’s certificate, CPSC said. According to the commission, in this way the proposed rule would continue to require that the importer of record certify the product, “to provide a uniform, consistent, and predictable means of enforcing testing and certification requirements" for imported products.

Customs brokers may issue certificate. Under the proposed rule, a customs broker who serves as the importer of record would be responsible for issuing the certificate, CPSC said. This includes common carriers, contract carriers, third party logistics providers, and freight forwarders that simultaneously serve as customs broker and importer of record on transactions.

Carriers not automatically importers. But carriers would not be deemed to be the “importer” for the purposes of CPSC certification just because they transport the product, CPSC said. Certification requirements for carriers would only be triggered if the carrier serves as importer of record, CPSC said.

Foreign manufacturer certifies if direct to consumer. While importers would still have to certify products and provide certificates, the proposed rule would distinguish products sold directly to a consumer in the U.S. In those cases, such as when products are bought from an overseas manufacturer on an Internet website, the foreign manufacturer would have to certify the product. The private labeler would have to issue a certificate on products delivered directly to U.S. consumers if the products bear a private label, CPSC said.

Electronic Certificates Required Upon Importation

The proposed rule would require the importer to file the required GCC or CPC electronically with the CBP at the time of filing the CBP entry, or at the time of filing the entry and entry summary, if both are filed together.

The following data elements would be required for all electronic certificates:

• Identification of the component part or finished product
• Date of initial certification
• Identification of the certificate scope
• List of rules being certified
• Identification of the certifying party
• Contact information for records custodian
• Date and place of manufacture
• Date and place of testing to support the certificate
• Identification of parties that conducted testing to support the certificate
• Attestation of compliance

CPSC intent on eventual ‘data elements’ approach. The proposed rule would give the task of implementation of direct filing with CBP to CBP, excepting imported products from the electronic certification requirements set forth elsewhere in the rule. “The Commission’s ultimate goal would be to require filing of certificates with CBP in the form of data elements so that certificate contents can be uploaded into a database for targeting purposes,” CPSC said. “However, we realize that such a requirement may require software upgrades by CBP, CPSC, and stakeholders that must be completed in stages,” it said.

Initial approach either PDF or uploading into CBP system. Noting that implementation of electronic filing of certificates with CBP may be slow, CPSC said it would likely take the following approach initially: (1) inserting an electronic copy of the certificate with the entry, such as a PDF file of the document; or (2) uploading the 10 required data points on a certificate into CBP’s designated system of record.

CPSC is requesting comments addressing how it should collect compliance certificates on importation. The commission is specifically asking for comments that address the format for filing certificates with CBP, including the PDF format versus data elements format, and whether an additional option is possible for filing electronic certificates at an earlier point in the import process.

Certificates Must be Available to CPSC and CBP ‘Upon Request’

The proposed rule would require that “certifiers must make certificates available for inspection immediately upon request by CPSC or CBP.” This requirement would be applicable to all certifiers, including importers, CPSC said. It would also apply to all types of certificates, including GCCs, CPCs, and component part certificates. Consistent with other CPSC rules, the commission would interpret “immediately” to mean “within 24 hours,” it said.

(See CPSC’s notice for details, including cost analyses for apply the proposed certificate requirements with regard to each CPSC product safety rule.)

(Federal Register 05/13/13)