In May 2013, the US Consumer Product Safety Commission proposed to modify the regulations that govern how manufacturers and importers certify that consumer products comply with consumer product safety requirements implemented by CPSC. Retailers, manufacturers, suppliers, and logistics providers across a variety of industries expressed significant concern over the burdens created by CPSC’s proposal, especially as to how they issue compliance certificates. CPSC had originally set a goal of issuing a Final Rule in 2014, but has now deferred action in order to take further public comment on its proposals.
Under the current scheme, promulgated by CPSC pursuant to the Consumer Product Safety Improvement Act, importers and domestic manufacturers must issue compliance certificates for consumer products subject to a CPSC product safety rule, ban, or standard, but are only required to provide them to the Customs and Border Patrol and CPSC upon request. The proposed rule would require that importers file compliance certificates for every imported product with CBP at the time of entry. It would also require that domestic manufacturers provide certificates in each product shipping container, or make electronic certificates available to CPSC by the time the product is distributed.
Under the proposed rule:
- Manufacturers and importers must maintaining electronic certificates without password protection (which could, in essence, make certificates, and the confidential business information they contain, available to the public).
- Licensed customs brokers would be included within the definition of “importer of record.”.
- Certificates of compliance would need to include the following:
- Whether the product is a finished product or component part;
- The date of initial certification;
- The lot number, production dates, or other identifiers to indicate the set of products certified;
- The date and address of manufacture; and
- Identification of the manufacturer (although this was already under CPSC scrutiny due to potential CBI issues).
In numerous public comments submitted to CPSC as part of the rulemaking process, commenters uniformly called out these changes as extremely burdensome not only to industry, but also CBP and CPSC. Concerns include the likely cost and delay to already-burdened supply chains, as well as CBP’s inability to receive and process the enormous influx of filed certificates without grinding the supply of U.S. consumer products to a halt. Opposition grew so strong that in March, a group of trade associations representing retailers, manufacturers, suppliers, importers, and logistics providers requested that the CPSC hold a stakeholder workshop to fully discuss issues relating to COCs and the supply chain.
In response to these concerns, on May 6, 2014, the CPSC Commissioners unanimously approved CPSC staff recommendations to reopen the comment period and conduct a new public workshop with stakeholders to reevaluate the proposed rule. Based on the Commissioners’ comments during the vote, we expect the Final Rule will do more to take into account stakeholder concerns. As a result of this reopening, it seems likely that CPSC will not attempt to promulgate a Final Rule until at least next year. The public workshop will take place on September 18, 2014.