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Proposed Rule2023-25911

Certificates of Compliance

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Published

December 8, 2023

Issuing agencies

Consumer Product Safety Commission

Abstract

The U.S. Consumer Product Safety Commission (Commission or CPSC) is issuing a supplemental notice of proposed rulemaking (SNPR) to revise the agency's rule for Certificates of Compliance (certificates). The SNPR proposes to align the certificate rule with other CPSC rules on testing and certification, and to implement, for imported CPSC- regulated products and substances, electronic filing of certificates (eFiling) with U.S. Customs and Border Protection (CBP).

Full Text

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[Federal Register Volume 88, Number 235 (Friday, December 8, 2023)]
[Proposed Rules]
[Pages 85760-85791]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-25911]

[[Page 85759]]

Vol. 88

Friday,

No. 235

December 8, 2023

Part III

Consumer Product Safety Commission

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16 CFR Part 1110

Certificates of Compliance; Proposed Rule

Federal Register / Vol. 88, No. 235 / Friday, December 8, 2023 /
Proposed Rules

[[Page 85760]]

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CONSUMER PRODUCT SAFETY COMMISSION

16 CFR Part 1110

[CPSC Docket No. 2013-0017]

Certificates of Compliance

AGENCY: Consumer Product Safety Commission.

ACTION: Supplemental notice of proposed rulemaking.

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SUMMARY: The U.S. Consumer Product Safety Commission (Commission or
CPSC) is issuing a supplemental notice of proposed rulemaking (SNPR) to
revise the agency's rule for Certificates of Compliance (certificates).
The SNPR proposes to align the certificate rule with other CPSC rules
on testing and certification, and to implement, for imported CPSC-
regulated products and substances, electronic filing of certificates
(eFiling) with U.S. Customs and Border Protection (CBP).

DATES: Submit comments by February 6, 2024.

ADDRESSES: Comments related to the Paperwork Reduction Act (PRA)
aspects of the proposed rule should be directed to the Office of
Information and Regulatory Affairs, the Office of Management and
Budget, Attn: CPSC Desk Officer, FAX: 202-395-6974, or emailed to
<a href="/cdn-cgi/l/email-protection#e7888e9586b89492858a8e94948e8889a7888a85c9828897c9808891">[email&#160;protected]</a>.
You may submit all other comments, identified by Docket No. CPSC-
2013-0017, by any of the following methods:
Electronic Submissions: Submit electronic comments to the Federal
eRulemaking Portal at: <a href="https://www.regulations.gov">https://www.regulations.gov</a>. Follow the
instructions for submitting comments. CPSC typically does not accept
comments submitted by email, except as described below. CPSC encourages
you to submit electronic comments by using the Federal eRulemaking
Portal.
Mail/Hand Delivery/Courier/Confidential Written Submissions: Submit
comments by mail, hand delivery, or courier to: Office of the
Secretary, Consumer Product Safety Commission, 4330 East West Highway,
Bethesda, MD 20814; telephone: (301) 504-7479. If you wish to submit
confidential business information, trade secret information, or other
sensitive or protected information that you do not want to be available
to the public, you may submit such comments by mail, hand delivery, or
courier, or you may email them to: <a href="/cdn-cgi/l/email-protection#62011211014f0d1122011211014c050d14">[email&#160;protected]</a>.
Instructions: All submissions must include the agency name and
docket number. CPSC may post all comments without change, including any
personal identifiers, contact information, or other personal
information provided, to: <a href="https://www.regulations.gov">https://www.regulations.gov</a>. Do not submit
through this website: confidential business information, trade secret
information, or other sensitive or protected information that you do
not want to be available to the public. If you wish to submit such
information, please submit it according to the instructions for mail/
hand delivery/courier/confidential written submissions.
Docket: For access to the docket to read background documents or
comments received, go to: <a href="https://www.regulations.gov">https://www.regulations.gov</a>, and insert the
docket number, CPSC-2013-0017, into the ``Search'' box, and follow the
prompts.

FOR FURTHER INFORMATION CONTACT: Arthur Laciak, Project Manager,
eFiling Program Specialist, Office of Import Surveillance, Consumer
Product Safety Commission, 4330 East West Highway, Bethesda, MD 20814;
(301) 504-7516, or by email to: <a href="/cdn-cgi/l/email-protection#f2939e93919b9399b291828191dc959d84">[email&#160;protected]</a>.

SUPPLEMENTARY INFORMATION:
The Commission proposes to revise the rule for certificates,
codified at 16 CFR part 1110 (part 1110 or the 1110 rule) to clarify
certificate requirements for all regulated products and substances, to
align the rule with other testing rules, and to implement electronic
filing of certificates for imported products with CBP (eFiling).\1\
Only finished products or substances that are subject to a CPSC rule,
ban, standard, or regulation, are required to be tested and certified,
and only such finished products that are imported into the United
States for consumption or warehousing would be required to eFile
certificates with CBP. Section 14(g)(4) of the Consumer Product Safety
Act (CPSA) (15 U.S.C. 2063(g)(4)) gives CPSC the authority to require
eFiling, by rule.\2\
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\1\ This SNPR includes information and analysis from the Staff
Briefing Package: Supplemental Notice of Proposed Rulemaking to
Revise 16 CFR part 1110 for Certificates of Compliance to Implement
eFiling, dated November 8, 2023 (Staff's SNPR Briefing Package),
available at: <a href="https://www.cpsc.gov/s3fs-public/Ballot-Package-Draft-SNPR-to-Revise-16-CFR-part-1110-Certificates-of-Compliance.pdf?VersionId=3DjqxMqgXJNQ0yeFRgKzfsRj2GgKenqD">https://www.cpsc.gov/s3fs-public/Ballot-Package-Draft-SNPR-to-Revise-16-CFR-part-1110-Certificates-of-Compliance.pdf?VersionId=3DjqxMqgXJNQ0yeFRgKzfsRj2GgKenqD</a>.
\2\ On November 15, 2023, the Commission voted (4-0) to publish
this supplemental notice of proposed rulemaking.
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The Commission established part 1110 to implement sections 14(a)
and (g) of the CPSA (15 U.S.C. 2063(a) and (g)), which provide
requirements for the content, form, and availability of certificates.
After passage of the Consumer Product Safety Improvement Act of 2008
(CPSIA), which amended section 14 of the CPSA to add testing and
certification requirements for CPSC-regulated consumer products and
substances, the Commission sought to bring clarity and reduce burden to
stakeholders through part 1110, by, among other things, limiting the
parties required to issue certificates and allowing electronic
certificates (available through email or a worldwide web link) to
``accompany'' product shipments instead of paper certificates. 73 FR
68328 (Nov. 18, 2008).
After gaining experience with certificates in 2013, the Commission
issued a notice of proposed rulemaking (NPR) to revise part 1110 to
align with rules for testing children's products under 16 CFR part 1107
(part 1107 or the 1107 rule) and component part testing under 16 CFR
part 1109 (part 1109 or the 1109 rule), and to require eFiling of
certificates for imported consumer products with CBP at the time of
filing the CBP entry, or the time of filing the entry and entry
summary, if both are filed together. 15 U.S.C. 2063(g)(4)); 78 FR 28080
(May 13, 2013) (2013 NPR).\3\ As described in section II.D of this
preamble, since 2013 the Commission has undertaken a series of projects
to support an eFiling program. Building on the 2013 NPR, this SNPR
proposes to amend part 1110 to, among other things: revise terminology
to integrate concepts introduced in the 1107 and 1109 rules; broaden
the definition of ``importer'' to address commenters' concerns about
the product certifier having control over and knowledge of the goods;
allow private labelers to test and certify products; and implement
eFiling for imported, CPSC-regulated consumer products and substances.
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\3\ ``Entry'' for CBP purposes is a declaration of goods
arriving in the United States, whereas an ``entry summary'' contains
additional documentation necessary for CBP to assess duties, collect
statistics, and determine whether other requirements of law have
been met. See 19 CFR 141.0a(a) and (b). For more information on
CBP's entry processes see: <a href="https://www.cbp.gov/trade/programs-administration/entry-summary-and-post-release-processes">https://www.cbp.gov/trade/programs-administration/entry-summary-and-post-release-processes</a>.
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I. Statutory Authority

Section 102 of the CPSIA amended section 14(a) of the CPSA to
require that manufacturers (including importers) and private labelers
issue certificates for all consumer products subject to a consumer
product safety rule under the CPSA, or a similar rule, ban, standard,
or regulation under any other law enforced by the Commission, that are
imported for consumption or warehousing, or distributed in commerce. 15
U.S.C. 2052(a)(11) and

[[Page 85761]]

2063(a)(1). Certificates for children's products (Children's Product
Certificates or CPCs) must be based on testing performed by a third
party conformity assessment body whose accreditation to perform such
testing has been accepted by the Commission. 15 U.S.C. 2063(a)(2).
Certificates for non-children's products (General Certificates of
Conformity or GCCs) must be based on a test of each product or a
reasonable testing program. 15 U.S.C. 2063(a)(1)(A). Section
14(a)(1)(B) of the CPSA requires that certificates specify each rule,
ban, standard, or regulation applicable to the product. 15 U.S.C.
2063(a)(1)(B).
Section 14(g) of the CPSA contains additional requirements for the
form, content, and availability of certificates. 15 U.S.C. 2063(g).
Section 14(g)(1) of the CPSA requires that each certificate identify
the manufacturer (including importer) or private labeler issuing the
certificate, as well as any third party conformity assessment body on
whose testing the certificate depends. 15 U.S.C. 2063(g)(1). At a
minimum, certificates must include the date and place of manufacture;
the date and place where the product was tested; each party's name,
full mailing address, and telephone number; and contact information for
the individual responsible for maintaining records of test results. Id.
Section 14(g)(2) of the CPSA requires that every certificate be legible
and that all contents be in English; contents can additionally be in
another language. 15 U.S.C. 2063(g)(2).
Certificates must accompany the applicable product or shipment of
products covered by the certificate, and a copy of the certificate must
be furnished to each distributor or retailer of the product. Upon
request, the manufacturer (including importer) or private labeler
issuing the certificate must provide a copy of the certificate to the
Commission. 15 U.S.C. 2063(g)(3). Finally, section 14(g)(4) of the CPSA
states that in consultation with the Commissioner of Customs, CPSC may,
by rule, provide for the electronic filing of certificates up to 24
hours before arrival of an imported product. Upon request, the
manufacturer (including importer) or private labeler issuing the
certificate must provide a copy of such certificate to the Commission
and to CBP. 15 U.S.C. 2063(g)(4).
In addition to the statutory authority to require certificates for
regulated products and substances, as outlined in sections 14(a) and
(g) of the CPSA, the Commission has general authority with regard to
certificates pursuant to section 3 of the CPSIA, which provides that
``the Commission may issue regulations, as necessary, to implement this
Act and the amendments made by this Act.'' Notes to 15 U.S.C. 2051
(citing Pub. L. 110-314, 3, Aug. 14, 2008, 122 Stat. 3017).

II. Background: Certificates and eFiling

A. The 1110 Rule

As noted, the CPSIA expanded section 14 of the CPSA to require
testing and certification of consumer products subject to a consumer
product safety rule, or to a similar rule, ban, standard, or regulation
under any other act enforced by the Commission. 15 U.S.C. 2063(a)(1).
When the Commission initially issued the 1110 rule to implement this
requirement, it adopted an approach that was ``streamlined, at least in
its initial phase.'' 73 FR 68328 (Nov. 18, 2008). The rule designated
the importer as the sole entity responsible for issuing certificates
for imported consumer products, stating that to ``accompany'' a product
or product shipment, the certificate must be available to the
Commission no later than the time when the product or shipment is
available for inspection in the United States. Id. The rule designated
domestic manufacturers as the sole entity responsible for issuing
certificates for domestically manufactured products, stating that such
certificates must be available to the Commission upon request before
the product or shipment is introduced into domestic commerce. Id.
The rule provided that the requirements in section 14(g)(1) and (3)
of the CPSA that a certificate ``accompany'' a product or product
shipment, be furnished to retailers and distributors, and be provided
to CPSC upon request, could be satisfied by providing the statutorily
required certificate information by electronic means. The rule
explained that the certificate must be reasonably accessed by
information on the product or accompanying the product or shipment, for
example, a unique identifier that can be accessed via a Uniform
Resource Locator (URL) or other electronic means. 73 FR 68330-31. In
practice, many importers and manufacturers email certificates to CPSC
in PDF format, when requested. The existing 1110 rule did not implement
the authority in section 14(g)(4) of the CPSA to have certificates for
imported products be eFiled with CBP. 15 U.S.C. 2063(g)(4).
The 2008 rule was not expected to be permanent. Instead, the
Commission explained at the time that it ``expects that with time
CPSIA's expanded certification requirements will become more routine
and it then would consider whether this rule needs to be revised based
on actual experience.'' 73 FR 68328.

B. The 2013 Notice of Proposed Rulemaking

By 2012, CPSC staff had worked to refine the Risk Assessment
Methodology (RAM) required by section 222 of the CPSIA, and had begun
to grapple with the rise of internet-based companies selling consumer
products (eCommerce) and direct-to-consumer shipments, which made
CPSC's interdiction of non-compliant products more challenging. To
address those concerns, and to be able to use certificate data for
targeting and enforcement of CPSC's rules at the ports, CPSC proposed
in the 2013 NPR to implement eFiling of certificates with CBP for
regulated, imported products, pursuant to section 14(g)(4) of the CPSA.
The 2013 NPR also sought to revise part 1110 to integrate the rule
into the testing and certification regime contemplated in then-new
parts 1107 and 1109. The 1107 rule sets forth requirements for
children's product testing and certification, including when and how
products must be tested and certified, and recordkeeping requirements.
The 1109 rule sets forth conditions and requirements for component part
testing and certification for both children's and non-children's
products. Both rules introduced new concepts and terminology related to
certificates that are not present in the 1110 rule of 2008.
CPSC received over 500 comments from more than 70 commenters, as
summarized in section III of this preamble, many asserting that
implementation of the proposed eFiling requirement was infeasible and
unreasonable due to the lack of information technology (IT)
infrastructure for CBP to accept such data. At that time, CBP had not
yet completed its Automated Commercial Environment (ACE) interface nor
the Partner Government Agency (PGA) Message Set, which now enable
importers or their brokers to submit electronic import data. For its
part, CPSC had not yet fully implemented the RAM.
Since publication of the 2013 NPR, CPSC has implemented RAM 2.0 and
CBP has implemented ACE and developed the PGA Message Set.\4\ In

[[Page 85762]]

2016 and 2017, CPSC conducted an eFiling Alpha Pilot, in coordination
with CBP, involving eight volunteer participants who successfully
eFiled a limited set of targeting/enforcement data for regulated
products. Also, in 2017, CPSC conducted a Certificate Study to assess
CPCS's ability to use certificates and the information on them for risk
assessment and targeting of regulated, imported consumer products. In
December 2020, the Commission approved of a multi-year plan to
implement an eFiling program at CPSC.\5\ The next steps in this eFiling
plan include the ongoing eFiling Beta Pilot, which is scheduled to
begin accepting data in the fall of 2023, and developing this SNPR.\6\
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\4\ CBP created the PGA Message Set to collect from importers
additional agency-related import data for partner government
agencies, or PGAs, and transmit the data elements via ACE at time of
entry or entry summary. CPSC created two PGA Message Sets: the Full
Message Set and Reference Message Set. When using a Full Message
Set, certifiers will provide all certificate data in the form of
data elements. When using a Reference Message Set, certifiers will
provide a reference ID to certificate data entered into CPSC's
Product Registry.
\5\ The 2020 staff briefing package to implement an eFiling
program at CPSC is available at: <a href="https://cpsc.gov/s3fs-public/CPSC-Plan-to-Create-an-eFiling-Program-for-Imported-Consumer-Products.pdf?BYXOLX2gJmF4NaAN1LCMmqiXRISuaRkr=">https://cpsc.gov/s3fs-public/CPSC-Plan-to-Create-an-eFiling-Program-for-Imported-Consumer-Products.pdf?BYXOLX2gJmF4NaAN1LCMmqiXRISuaRkr=</a>. The record of
commission action is available at: <a href="https://www.cpsc.gov/s3fs-public/RCA-CPSC-Plan-to-Create-an-eFiling-Program-for-Imported-Consumer-Products.pdf">https://www.cpsc.gov/s3fs-public/RCA-CPSC-Plan-to-Create-an-eFiling-Program-for-Imported-Consumer-Products.pdf</a>.
\6\ The Federal Register Notice announcing the Beta Pilot can
found here: <a href="https://www.regulations.gov/document/CPSC-2022-0020-0001">https://www.regulations.gov/document/CPSC-2022-0020-0001</a>.
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C. CPSC's Risk Assessment and Targeting Efforts for Imported Consumer
Products

CPSC's RAM currently receives an electronic feed of import entry
data collected by CBP. The RAM is optimized to ingest CBP's data, using
algorithms to identify potentially noncompliant consumer product
shipments for CPSC's inspection. However, the data ingested by RAM are
collected by CBP for its enforcement and tariff purposes, which do not
always align with CPSC's risk assessment purposes. CPSC's Certificate
Study confirmed that CPSC can analyze certificate data focused
specifically on product manufacturing and testing to improve RAM's
precision in targeting and identifying high-risk shipments for
examination.
Currently, CPSC's import enforcement methodology is labor-intensive
and lacks an efficient means of using product-specific data to identify
potentially non-compliant products. CPSC co-locates staff alongside CBP
staff at ports of entry to target shipments for examination. Once
identified, staff request that CBP place a shipment on hold and
transport it to an examination station for CPSC inspection; an
examination hold creates delay that costs businesses and CPSC time and
money. Accordingly, stakeholders and CPSC have a common interest in
reducing examinations of compliant products and maximizing examinations
of products that are likely to be violative. Currently, certificates
are collected only after a shipment is stopped for examination;
certificate data are not used to target shipments for examination.
Using certificate data for more precise targeting would maximize
examination efficiency for stakeholders and staff; keep hazardous,
violative products out of consumer's hands; and reduce burden by not
delaying compliant product and not holding up shipments at the port
while waiting to receive a certificate.
Using certificate data can also improve CPSC's ability to target
low-value shipments. CPSC's current targeting capabilities were
designed for larger commercial shipments for which the Commission
receives CBP data. CPSC's port staff are currently unable to pinpoint
with a high degree of certainty potentially non-compliant and hazardous
products in low-value shipments, which CBP refers to as ``de minimis
shipments,'' and international mail shipments, which can lead to CPSC
inspections that delay release of compliant products. Specifically,
using product-specific certificate information such as product
description, finished product manufacturer, date of manufacture, and
date and place of testing, would provide CPSC with greater insights
into all imported products and substances, including de minimis
shipments. Hundreds of thousands of de minimis shipments enter the
United States daily; the ability to use algorithms to assess the data
and identify higher-risk shipments, even those of low value that occur
frequently, would enhance CPSC's ability to focus limited resources to
identify and interdict higher risk shipments.
Finally, although CBP is unable to process any certificate data
collected for international mail shipments subject to CPSC requirements
via ACE, the SNPR proposes a modified eFiling requirement for
international mail. Importers using international mail would be
required to enter certificate data into the Product Registry \7\ before
the shipment arrives in the United States, so that staff can analyze
this data and target mail shipments for examination.
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\7\ The Product Registry is a certificate database created and
maintained by CPSC. Importers can enter or upload certificate data
for regulated consumer products and substances that can be
referenced on an entry filing each time the product is imported
without having to re-enter the relevant data elements.
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D. CPSC eFiling Related Projects Since the 2013 NPR

1. eFiling Alpha Pilot (2016)
After publication of the 2013 NPR, CPSC conducted a pilot to test
the feasibility of eFiling certain ``targeting/enforcement data
elements'' on a certificate by participant industry volunteers. The
2016 eFiling Alpha Pilot was a 6-month, joint initiative between CPSC,
CBP, and eight volunteer importers to establish and assess the
infrastructure and processes required for a successful eFiling program.
Participants used a process similar to that used in the current eFiling
Beta Pilot, having a choice between entering data elements in a Product
Registry, and providing a reference number to the Product Registry when
filing PGA Message Set data with CBP, or filing all data elements in a
PGA Message Set. CPSC staff issued a report detailing the procedure and
results of the eFiling Alpha Pilot, available on CPSC's website:
<a href="https://www.cpsc.gov/s3fs-public/eFiling_Alpha_Pilot_Evaluation_Report-May_24_2017.pdf?uK.UhjHabKD5yjQ.1w06tudrnvuuWIra">https://www.cpsc.gov/s3fs-public/eFiling_Alpha_Pilot_Evaluation_Report-May_24_2017.pdf?uK.UhjHabKD5yjQ.1w06tudrnvuuWIra</a>.
2. Certificate Study (2017)
Following the eFiling Alpha Pilot, from October 2017 to February
2018, CPSC staff conducted a Certificate of Compliance Study to assess
any correlation between the timing and availability of a certificate,
the data provided on a certificate, and the violation rate of imported
finished consumer products. Staff's eFiling Certificate of Compliance
Study Assessment is available on CPSC's website at: <a href="https://www.cpsc.gov/s3fs-public/eFiling-Certificate-Study-Evaluation-Report-FINAL.pdf">https://www.cpsc.gov/s3fs-public/eFiling-Certificate-Study-Evaluation-Report-FINAL.pdf</a>.
Staff's analysis of the data collected in this study indicates that
the ability to provide a certificate within 24 hours of CPSC's request
is strongly associated with product compliance. The limited data set
indicated that an entry is five times more likely to have a violation
if a certificate is never provided to CPSC, and three times more likely
if one is provided later than 24 hours after CPSC's request. Staff also
identified four data elements from certificates that show potential
correlations to the rate of violations. Other data elements on a
certificate, such as the list of applicable citations, would allow CPSC
similarly to apply algorithms to target certain products and/or rules.

[[Page 85763]]

3. eFiling Beta Pilot (Current)
On December 18, 2020, the Commission approved staff's recommended
plan to implement eFiling and to conduct an eFiling Beta Pilot, in
collaboration with CBP, that would collect certificate data via a PGA
Message Set.\8\ Following this, on June 10, 2022, the Commission issued
a Federal Register Notice (87 FR 35513 (June 10, 2022)) \9\ to announce
the eFiling Beta Pilot and recruit volunteers. The eFiling Beta Pilot
has a product scope of approximately 300 Harmonized Tariff Schedule
(HTS) codes prioritized for imports and includes all data fields on a
certificate. CPSC updated the Product Registry used in the Alpha Pilot,
to create a one-time data entry repository of certificate data that can
be referenced in a PGA Message Set multiple times as a product is
offered for importation. Additionally, staff has been meeting with a
subset of nine participant volunteers to advise in IT development for
the eFiling Beta Pilot. Meeting logs and related material for this work
are available on <a href="https://www.regulations.gov">https://www.regulations.gov</a> on docket number CPSC-
2022-0020. CPSC's website also includes information on eFiling and the
eFiling Beta Pilot, available at: <a href="https://www.cpsc.gov/eFiling">https://www.cpsc.gov/eFiling</a>.
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\8\ See Supra, n.5.
\9\ <a href="https://www.regulations.gov/document/CPSC-2022-0020-0001">https://www.regulations.gov/document/CPSC-2022-0020-0001</a>.
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The purpose of the eFiling Beta Pilot is to build upon the Alpha
Pilot, develop and test the infrastructure necessary to support a full-
scale eFiling requirement, inform CPSC's rulemaking effort, and develop
internal procedures to support enforcement. The Beta Pilot will also
advance the ``Single Window'' \10\ concept to facilitate electronic
collection, processing, sharing, and reviewing of trade data and
documents required by CPSC during the cargo import process, and will
assist CPSC in targeting imports more accurately to facilitate the flow
of legitimate trade and enhance targeting of noncompliant trade.
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\10\ ACE is CBP's system through which the U.S. government has
implemented the ``single window,'' the primary system for processing
all trade-related import and export data required by government
agencies. The ``single window'' transitions away from paper-based
procedures to provide government and industry faster, more
streamlined processes.
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The eFiling Beta Pilot also will assess CPSC and importer
capabilities for eFiling certificate data elements via the PGA Message
Set and incorporating the data elements into CPSC's RAM to risk score
and interdict noncompliant products. The Beta Pilot will include more
participants than the Alpha Pilot (over 30, more than in the Alpha
Pilot), include more data elements (dates of manufacture and testing),
and involve more varied consumer products under CPSC's jurisdiction
(products classified under approximately 300 HTS codes).
4. Developing an eFiling System
To minimize burden, CPSC's eFiling System will allow importers to
enter certificate data through two means: Full Message Set or Reference
Message Set using the Product Registry.\11\ When using the Full Message
Set, the importer will submit all certificate data elements via CBP's
ACE. When using the Reference Message Set, the importer will enter all
certificate data elements into the Product Registry prior to filing
entry with CBP, and they will submit a unique reference identifier (ID)
via ACE.\12\ Tab B of Staff's SNPR Briefing Package contains the CBP
and Trade Automated Interface Requirement, which details the technical
requirements to file each Message Set in ACE.
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\11\ The eFiling system collectively refers to the PGA Message
Set and Product Registry and process of filing certificate data.
Certifiers (meaning importers, manufacturers, or private labelers)
are responsible for the certificate data submitted, but brokers or
other designated parties can upload data and certify products on the
certifier's behalf.
\12\ Other trade parties, such as brokers and laboratories, may
enter certificate data into the Product Registry on the certifier's
behalf.
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The Product Registry allows importers, or their designees, to enter
the certificate data elements via a user interface, batch upload, and/
or Application Programing Interface (API) upload. The user interface is
a step-by-step process, where the importer submits one certificate at a
time. The batch upload allows the importer to submit multiple
certificates using a Comma-Separated Value (CSV) template. The API
upload allows the importer to build an API connection via the Product
Registry and their data systems to instantaneously enter certificates.
Additionally, the Product Registry provides multiple features to
improve the importer's interaction. The importer has a business account
in the Product Registry where users representing the importer can view
all certificates submitted into the registry. The importer can also
provide other third parties, such as a broker or test laboratory, with
different levels of permission to submit certificate data on their
behalf. Tab A of Staff's SNPR Briefing Package contains a detailed user
guide for the Product Registry as used during the eFiling Beta Pilot.

III. Response to Comments

In response to the 2013 notice of proposed rulemaking (2013 NPR) to
revise 16 CFR part 1110, CPSC received over 500 comments from over 70
different commenters. Comment summaries include a code to identify the
commenter, as shown in Table 1. Below we summarize and respond to the
public comments by topic.

Table 1--Commenter Key
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2..................................... Rich Frog Industries. 40...................... Bicycle Product Suppliers Association.
3..................................... Douglas Boysen. 41...................... American Apparel and Footwear Association
(AAFA).
4..................................... DT Swiss, Inc. 42...................... American Promotional Events.
7..................................... The Hosiery Association. 43...................... Tom Dixon.
8..................................... Shayla Sharp. 44...................... UPS Supply Chain Solutions.
9..................................... GS1 US. 45...................... Consumer Specialty Products Association.
10.................................... Wald & Co, Inc. 46...................... Juvenile Products Manufacturers
Association (JPMA).
11.................................... Frette S.R.L. 47...................... Toy Industry Association (TIA).
12.................................... National Customs Brokers and Forwarders 48...................... Erika Hickey.
Association of America (NCBFAA).
13.................................... American Eagle Superstore. 49...................... Handmade Toy Alliance.
14.................................... Writing Instrument Manufacturers 50...................... National Association of Manufacturers
Association. (NAM).
15.................................... US Council for International Business. 51...................... Magicforest.
16.................................... Marisol, International. 52...................... Terra Experience.
17.................................... National Association of Foreign Trade 53...................... Borderfree.
Zones (NAFTZ).
18.................................... FedEx. 55...................... American Eagle Outfitters.

[[Page 85764]]

19.................................... Pacific Coasts Council of Custom Brokers & 56...................... European Union (EU).
Freight Forwarders Association
(PCCCBFFA).
20.................................... Express Association of America. 58...................... Association of American Publishers, Inc.;
Book Manufacturers Institute, Inc.; &
Printing Industries of America.
21.................................... Lego. 59...................... Unique Industries, Inc.
22.................................... Motorcycle Industry Council. 60...................... B.J. Alan Company.
23.................................... Footwear Distributors & Retailers of 61...................... Bestway International.
America.
24.................................... YKK. 63...................... Handmade Toy Alliance.
25.................................... Glazing Industry Code Committee. 64...................... RILA & National Retail Federation (NRF).
26.................................... American Fireworks Standards Laboratory. 66...................... Van Fleet Associates, Inc.
27.................................... Terra Experience. 67...................... Integration Point.
28.................................... US Association of Importers of Textiles 71...................... American Home Furnishings, Alliance.
and Apparel.
29.................................... Hallmark Cards. 72...................... NCBFAA.
30.................................... American Architectural Manufacturers 74...................... U.S. Council for International Business.
Association.
31.................................... Galaxy Fireworks. 75...................... Toy Industry Association.
32.................................... Association of Home Appliance 76...................... Hennes & Mauritz L.P.
Manufacturers.
33.................................... The Art and Creative Materials Institute 77...................... 33 Trade Associations.
(ACMI).
34.................................... Ian Brodie. 78...................... OPEI.
35.................................... National Retail Federation. 79...................... RILA & NRF.
36.................................... Fashion Jewelry and Accessories Trade 80...................... Bicycle Product Suppliers Association.
Association.
37.................................... Fireworks Over America. 81...................... AAFA.
38.................................... Outdoor Power Equipment Institute (OPEI). 82...................... UPS Supply Chain Solutions.
39.................................... Retail Industry Leaders Association
(RILA).
--------------------------------------------------------------------------------------------------------------------------------------------------------

A. Section 1110.3--Definitions

Comment 1: A commenter (C35) stated that proposed 16 CFR 1110.3(b)
causes confusion with too many certificate types.
Response 1: The terms and definitions described in proposed Sec.
1110.3(b) are for the reader's clarity; neither the NPR nor SNPR create
new certificate types. Indeed, most of the terms in proposed Sec.
1110.3 are already used in section 14 of the CPSA or in another CPSC
rule, such as 16 CFR parts 1107 and 1109.
Comment 2: A commenter (C18) was concerned about CPSC's proposed
definition of ``importer'' in the NPR to be the ``importer of record''
or IOR (as defined in the Tariff Act of 1930, as amended), because the
proposed definition could conflict with other CPSC rules. For example,
the commenter stated that the ``importer'' required to certify products
in 16 CFR part 1109 (the component part rule), may not be the IOR, who
is the required certifier in the 2013 NPR. The commenter suggested that
CPSC not make the IOR responsible for certification, because the IOR is
the party making the official import declaration to CBP, not the party
causing the goods to enter the country, who is the party with the most
knowledge of the product. The commenter recommended that CPSC change
the definition of ``importer'' to include a party with an ownership or
beneficial interest in the imported products, so that the party with
the most information about the product would be responsible for testing
and certification.
Similarly, other commenters questioned who should be an
``importer'' with certification responsibilities under part 1110. For
example, several commenters (C12, C16, C19, C20, C32, C44, C67, C71,
C82) stated that customs brokers should not fall within the definition
of ``importer'' because they do not have sufficient knowledge of the
products to ensure compliance nor are they the ``beneficial party in
interest.'' Commenter C18 stated the same argument with regard to
consignees acting as importers of record, and other commenters (C7,
C14, C36) asserted that private labelers should not be responsible for
certifying for the same reasons.
Response 2: The CPSA does not define ``importer.'' \13\ We agree
that expanding the definition of who can be an ``importer'' in part
1110 beyond the IOR, for the purposes of testing and certification, is
beneficial to stakeholders and to CPSC's eFiling and enforcement
efforts. Accordingly, the SNPR proposes to broaden the definition of
``importer'' in proposed Sec. 1110.3(b) to include any party that
could be an importer under CBP's definition of importer, as found under
19 CFR 101.1, as well as other parties that have a financial interest
in the consumer product being offered for import and effectively caused
the consumer product to be imported into the United States. Thus, the
SNPR proposes that an ``importer'' may be the importer of record;
consignee; or owner, purchaser, or party that has financial interest in
the consumer product being offered for import and effectively caused
the consumer product to be imported into the United States.
---------------------------------------------------------------------------

\13\ The CPSA states that the terms `` `import' and
`importation' include reimporting a consumer product manufactured or
processed, in whole or in part, in the United States.'' 15 U.S.C.
2052(a)(9). The CPSA also states that the term `` `manufacturer'
means any person who manufactures or imports a consumer product.''
15 U.S.C. 2052(a)(11).
---------------------------------------------------------------------------

Under the proposed definition of ``importer,'' a person holding a
valid customs broker's license can be an importer. Retaining customs
brokers in the definition gives them the option to assume
responsibility for certification on behalf of their clients if that is
a service they wish to provide. Additionally, because of the expanded
definition of ``importer'' and CPSC's need to recognize the party
assuming responsibility, the SNPR requires the party certifying
compliance be identified in Sec. 1110.11(a)(5).
Comment 3: Two commenters (C36, C50) stated that under section 3(b)
of the CPSA, CPSC does not have the authority to include common
carriers in the definition of ``importer.''
Response 3: Section 3(b) of the CPSA prohibits CPSC from deeming
common carriers, contract carriers, third party logistics providers,
and freight forwarders to be a manufacturer (including importer),
distributor, or retailer ``solely by reason of receiving or
transporting a consumer product in the ordinary course of its business
as such a carrier or forwarder.'' 15 U.S.C. 2052(b). Neither the 2013
NPR or this SNPR would deem such carriers as manufacturers or importers
for receiving or transporting goods. However, if a common carrier,
contract carrier, third party logistics provider, or freight forwarder
contracts with another party to provide services as a licensed customs
broker, and in that capacity chooses to act as the IOR and attests to

[[Page 85765]]

the content of the certificate at the time it is eFiled, CPSC is
justified in holding that carrier responsible for the information on a
certificate. In that case, the carrier is not acting in the ordinary
course of its business as a carrier or forwarder, but is instead acting
as the IOR or a customs broker. The revised definition of ``importer''
in the SNPR should alleviate some concern, because an IOR is not the
only party that can certify a product. However, a common carrier can
remove themselves from any responsibility to certify consumer products
by choosing not to act as a customs broker, choosing not to act as the
IOR, or ensuring that the importer, as defined in proposed Sec.
1110.3(b), certifies the product.
Comment 4: Several commenters (C17, C35, C38) remarked that the
definition of private labeler is unclear. Commenter C17 stated that the
terms ``brand,'' ``trademark,'' and ``to carry'' a brand or trademark
are vague terms that may not be applied consistently. Commenter C38
requested clarification whether a private labeler must certify when the
product does not contain the name or trademark of the manufacturer.
Response 4: Section 3(a)(12)(A) of the CPSA defines ``private
labeler'' as the ``owner of a brand or trademark on the label of a
consumer product which bears a private label.'' 15 U.S.C.
2052(a)(12)(A). Section 3(a)(12)(B) further explains that a consumer
product bears a private label when the product (or its container) is
labeled with the brand of a person other than a manufacturer, the
person with whose brand the product (or container) is labeled has
caused the product to be so labeled, and the brand of a manufacturer
does not appear on the label. 15 U.S.C. 2052(a)(12)(B). Consistent with
the statute, the term ``private labeler'' is generally understood to
refer to products manufactured by one company but sold under the brand
name of another company. The private labeler is one of the three
parties stated in section 14 of the CPSA that may certify a product.
Section 1110.7(b) of the SNPR proposes that for domestically
manufactured products, the private labeler must issue a certificate
that meets the requirements of part 1110, unless the manufacturer
issues the certificate.

B. Section 1110.5--Products Required To Be Certified

Comment 5: Several commenters (C31, C36, C48, C49, C52, C63) urged
CPSC to specifically accommodate small businesses, which have fewer
compliance resources. Several commenters (C31, C49) stating
specifically that the extra security, IT infrastructure, and customs
broker fees associated with eFiling, will be ``out of range,''
``catastrophic,'' or a ``significant burden'' on small manufacturers
and businesses in general. Two commenters (C52, C63) suggested that
eFiling should be optional for small importers, instead of a mandatory
requirement, to assist small businesses with small volumes or those
that are from countries that do not have any competitive options for
third party testing. Other commenters (C49, C52, C63) stated that small
businesses usually issue paper certificates and are not prepared to
file electronically. One commenter (C52) proposed that the CPSC should
differentiate between importers/producers of ``low risk'' and ``high
risk'' toys and children's products to avoid excessive burdens on small
producers and importers.
Additionally, commenter C8 recommended that CPSC create a new set
of requirements for ``micro-businesses'' that would be exempted from
third party testing for component parts and finished products. Instead
of a certificate, the commenter proposed that these ``micro-
businesses'' could provide a supplier's Material Safety Data Sheet
(MSDS).
Response 5: The CPSA's certificate requirements do not contain a
small business exception. Indeed, an exception for imported products
could undermine the goal of protecting consumer safety by using
certificate data to target non-compliant and potentially hazardous
consumer products. However, section 14(i)(4) of the CPSA does provide
third party testing relief for certain rules for Small Batch
Manufacturers of children's products, which allows for testing of
certain product safety standards at any third party laboratory, instead
of a CPSC-accredited laboratory.\14\ Moreover, CPSC has a Small
Business Ombudsman to assist small businesses with questions related to
compliance with CPSC rules.
---------------------------------------------------------------------------

\14\ See <a href="https://www.cpsc.gov/Business--Manufacturing/Small-Business-Resources/Small-Batch-Manufacturers-and-Third-Party-">https://www.cpsc.gov/Business--Manufacturing/Small-Business-Resources/Small-Batch-Manufacturers-and-Third-Party-</a>.
---------------------------------------------------------------------------

CPSC developed a web-based application, the Product Registry, to
reduce burden for importers, especially for small businesses. CPSC's
Product Registry is a web-accessible database that will not require any
additional IT infrastructure for certifiers to use and has its own
internal security. Firms do not need to create their own web
infrastructure to host certificate data. Small businesses can enter the
information into the Product Registry and use the system to maintain
certificates. Firms can also enter data using batch uploads, which are
available in several formats. Additionally, firms can choose to have a
third party, such as a test lab, enter data into the Product Registry
on their behalf. The Product Registry is designed to be flexible to
allow businesses to use the system in a manner that reduces cost and
burden.
Comment 6: Commenters C44 and C82 suggested that the CPSC consider
implementing a certificate exception for de minimis shipments. The
commenter maintains that a de minimis exception would leave CPSC and
CBP with a greater ability to use its resources to monitor and target
product safety compliance of higher-value shipments that contain larger
quantities of consumer goods.
Response 6: Congress did not provide a de minimis exception from
certificate requirements. Furthermore, one of the emerging hazards
since the 2013 NPR is the growth in direct-to-consumer shipments, which
are often de minimis. These shipments may be of lower value, but the
volume of such shipments is growing rapidly, and they are particularly
challenging to monitor. Staff has found hazardous, non-compliant
products in de minimis shipments. The ability to collect certificate
data at entry for these lower-value shipments, and to assess these
shipments for targeting purposes, will enhance CPSC's ability to
enforce our rules, bans, standards, and regulations, and to protect
consumer safety.
Regarding compliance burden, CBP has standardized the means of
collecting additional data elements for PGAs using entry type 86 (ET86)
for lower-value shipments. A broker may now use ET86 for de minimis
shipments to append the CPSC PGA Message Set.
Comment 7: Commenter C53 argues that, as an IOR for returned goods,
they are unable to test and certify such goods. The commenter urges
CPSC to ``consider products exported by U.S. retailers and then
returned (reimported) to that retailer as `Goods Returned' and exempt
from the certificate requirement,'' regardless of entry type.
Response 7: Section 14 of the CPSA does not provide an exemption
from the certificate requirements for returned goods. As with the
existing 1110 rule and consistent with the statute, under the proposed
rule certificates are required for finished products that are imported
for consumption or warehousing and subject to a consumer product safety
rule.

[[Page 85766]]

C. Section 1110.7--Who Must Certify Finished Products

Comment 8: Several commenters (C14, C36, C39) opposed the proposed
changes to Sec. 1110.7 in the 2013 NPR, which expanded who could be a
certifier for both imported and domestic products and required private
labelers to certify products that are privately labeled, unless another
party certifies the product. Commenters encouraged CPSC to retain the
existing language in current 16 CFR 1110.7, which they believe clearly
identifies the party responsible for issuing the certificate. Commenter
C36 stated that CPSC should recognize that either the importer,
domestic manufacturer, or private labeler may certify, as provided in
section 14 of the CPSA.
Response 8: Upon consideration of the comments, the SNPR simplifies
the 2013 NPR proposal in Sec. 1110.7 for imported consumer products.
CPSC has more information on imported consumer products than the agency
had in 2013, because CPSC now receives a data feed from CBP that, while
focused on trade enforcement and tariff collection rather than safety,
identifies the relevant firms for each shipment. Moreover, with the
additional certificate data collected via a PGA Message Set, CPSC can
enforce the certificate requirement against an importer or a private
labeler, even if neither firm is the entity submitting the required
certificate data.
The SNPR proposes a revision to the definition of ``importer,''
allowing any party that can be the importer of record under proposed
Sec. 1110.3 to certify. Currently, CPSC expects the IOR to issue a
certificate; however, in some cases the IOR is not the party with a
beneficial ownership in the goods that causes importation of the
consumer product, which makes enforcement challenging. The proposed
expansion of the ``importer'' definition both responds to comments and
should assist CPSC in identifying responsible parties.
For domestically manufactured products, the SNPR retains the 2013
NPR's proposal that privately labeled products be certified by the
private labeler, unless the manufacturer issued the certificate. CPSC
proposed this requirement because products that are privately labeled
do not display the manufacturer's name or contact information. Such
products are typically designed and produced according to the
specifications and requirements of the brand owner. Firms that do not
want to be responsible for issuing a certificate as a private labeler
for domestically manufactured products need only ensure that the name
of the manufacturer appears on the product. 15 U.S.C. 2052(a)(12).
Comment 9: Commenters (C36, C45, C47, C50, C71) suggested that any
party in the supply chain should be allowed to certify, including brand
owners/private labelers and foreign manufacturers. Other commenters
(C15, C74) stated that foreign manufacturers of direct-to-consumer
products should be required to certify, but certification by brand
owners/private labelers should be optional. One commenter (C35) was
unclear if the brand owner/private labeler or foreign manufacturer
should certify under proposed Sec. 1110.7(a) for imported direct-to-
consumer products. Another commenter (C14) stated that responsibility
for certifying should be placed on importers because foreign
manufacturers might not comply.
Response 9: As stated in response to comment 2, the SNPR broadens
the definition of ``importer'' in part 1110 to include any firm that
could be an importer under CBP's definition in 19 CFR 101.1. Therefore,
any entity that falls within this definition would be allowed to
provide certificate data for imported consumer products. For direct-to-
consumer imports not involving a broker, the party with financial
interest in the product being offered for import and who effectively
caused the consumer product to be imported into the United States,
which could be the foreign manufacturer or the seller who sold the
product on an online marketplace, would be considered the importer and
the party responsible for certifying. Regarding foreign manufacturers
that supply products for U.S. distribution, they are subject to the
requirements of the CPSA and CPSC has the authority to refuse admission
for noncompliant products under section 17(a) of the CPSA. 15 U.S.C.
2066(a).
Comment 10: A commenter (C16) claimed that requiring brokers to be
responsible for certification duplicates work being done by the
importer, because the importer is already responsible for producing the
certificates. The commenter argued that the proposal in the NPR would
increase brokerage costs to importers, damage the importers' ability to
be profitable, dilute the information chain, and increase the risk of
mistaken reporting. Another commenter (C20) stated that holding brokers
responsible for certification will result in increased requests by
brokers for powers of attorney, which in turn will require greater CBP
staffing, and ultimately, increased costs to the consumer. Another
commenter (C44) asserted that CPSC's cost estimates for filing
certificates are too low because they do not account for a necessary
increase in broker's fees to offset the extra labor associated with
becoming familiar with the products being imported and applicable
requirements. The commenter also stated that requiring certificate
information to be filed at the time of entry will slow the filing and
delay delivery and increase warehouse costs. The commenter suggested
reducing the burden of the proposed rule by paring down the required
information to only that necessary for effective targeting and allowing
the upload of the required information by PDF to cut down on the amount
of data entry.
Response 10: As previously noted, the proposed definition of
``importer'' in this SNPR has been expanded to include firms that could
be an importer under CBP's definition. Consequently, customs brokers
are not the only entity that can certify. They can, however, assume
that responsibility as a service provided to clients if they choose.
Moreover, the Product Registry will allow importers to store
certificate data for repeated imports of the same product, which will
lessen the burden of preparing certificates.
Because entry filing most often occurs in advance of a shipment's
arrival, adding a PGA Message Set with entry or entry summary will not
impede the movement of a shipment, so warehousing costs and delivery
times should not be impacted. Finally, CBP will not accept large
amounts of data in PDF format, because it is difficult to store and
search or manipulate. Since 2013, CBP and CPSC have built and
demonstrated the necessary infrastructure to receive entry data and
associated PGA Message Set data, which has been successfully tested and
will be further developed through the Beta Pilot, making PDF submission
outmoded.
Comment 11: A commenter (C39) stated that if the Commission changes
who is responsible for issuing certificates from a domestic
manufacturer to a private labeler, private labelers such as retailers
who are removed from the manufacturing process would be required to
establish compliance programs to exercise due diligence over domestic
manufacturers. The commenter stated that such programs will impose new
burdens on the supply chain, increase end-use consumer prices, and have
a potential negative impact on interstate commerce, costs for which are
not accounted for in the proposed rule. The commenter also asserted
that the Commission should not change the requirement of who must issue
a certificate from the manufacturer

[[Page 85767]]

to the private labeler for domestically produced products, because CPSC
has not identified a rational basis for the change. Another commenter
(C14) asserted that often the importer or private labeler does not know
the actual manufacturer. Commenter (C49) stated that burden will
increase for small manufacturers, because the same material will be
tested by multiple private labelers. Similarly, commenter (C4) stated
that burden will increase for their firm, because the commenter does
not know whether their end customer will use their manufactured
products for children's products.
Response 11: Private labelers who do not want to test and certify
can contract with their manufacturers to ensure that the products they
are responsible for introducing into commerce are compliant with all
applicable consumer product safety rules and meet testing and
certification requirements. For enforcement purposes, the NPR proposed
to require either the domestic manufacturer or the private labeler to
issue the certificate, because no other party would have the necessary
knowledge of the product to be able to certify. This SNPR retains the
language in proposed Sec. 1110.7(b) of the 2013 NPR.
Comment 12: Commenters (C44, C82) noted that the United States
Postal Service (USPS) does not act as the IOR for mail shipments and
cannot be held responsible for issuing certificate information. Due to
that, the commenters asked how the proposed rule will govern mail
operations and what party would issue the certificate.
Response 12: While the SNPR's proposed definition of importer in
Sec. 1110.3(b) does not include the USPS, the definition does include
several parties who could be considered the importer. Section
1110.13(a)(1) of the SNPR would require certificates for international
mail shipments to be entered in the Product Registry before the product
arrives in the United States. Under the proposed definition of
``importer,'' either the U.S.-based firm receiving the shipment or the
foreign firm that sent the shipment could be considered the importer.
Staff recommends that only one of those firms enter certificate data
into the Product Registry and attest to the accuracy of the
information, preferably the U.S.-based firm so that the certifier can
be more easily contacted.
Comment 13: Several commenters (C33, C38, C45, C52, C74) urged that
recertification not be required for each batch of a product if there
has not been a material change to the product. The commenters also
suggested that if the certificate scope is allowed to cover several
years of production, then the burden on the manufacturer will be
greatly reduced.
Response 13: For regulated children's products, certifiers are
required to follow testing and certification requirements as described
in 16 CFR parts 1107 and 1110. Part 1107 requires three types of
testing for children's products: initial certification testing;
periodic testing; and material change testing. Children's product
certificates must be updated after periodic and material change
testing, because when new testing is conducted, the information on the
certificate, namely the testing date, will have changed. This SNPR does
not change any of these requirements.
Non-children's products are required to meet part 1110, meaning
that each product must be compliant based on a test of each product or
a reasonable testing program, and must remain compliant. CPSC
recommends, but does not require, that non-children's products also be
periodically tested (most companies do so yearly) and re-tested when
there is a material change in the products' design or manufacture that
could affect compliance. Again, the SNPR does not propose to change
these requirements.

D. Section 1110.9--Certificate Language and Format

Comment 14: Many commenters (C7, C10, C11, C13, C17, C31, C35, C36,
C39, C41, C42, C43, C45, C46, C47, C50, C56, C60) opposed proposed
revisions to Sec. 1110.09(c) in the 2013 NPR, which provided that an
electronic certificate must be accessible ``without password
protection, to the Commission, CBP, distributors, and retailers.''
Several commenters stated that preventing password protection for
delivery of certificates to distributors and retailers would constitute
a disclosure of proprietary information, which would be in violation of
section 6(a) of the CPSA, 15 U.S.C. 2055(a). Other commenters similarly
expressed concern that the lack of password protection would allow
fraudulent companies to falsify certificates and competitors to access
commercial secrets.
Response 14: In light of the comments received, the SNPR does not
propose to prohibit password protection but rather leaves this issue
for resolution between certifiers and their retailers and distributers.
To date, in the absence of a prohibition on password protection, no
retailer or distributor has complained to the Commission that they do
not have access to certificate data.

E. Section 1110.11--Certificate Content

Comment 15: Several commenters (C39, C64, C78) stated that the
proposed certificate data elements to be collected at import are
``unclear,'' ``unobtainable,'' and ``unnecessary'' and question the
utility of the data elements in enhancing CPSC's risk assessment. These
commenters further stated that CPSC should work with stakeholders to
identify necessary data elements to limit industry's burden. Commenters
(C64, C78) expressed that CPSC should not collect duplicative
information already provided on CBP entry forms.
Response 15: Section 14(g) of the CPSA sets forth the minimum
requirements for certificates and provides CPSC with the authority to
add more requirements through rulemaking. As described in section
II.D.2 of this preamble, CPSC previously conducted a Certificate Study
in 2017 and found that several data elements indicate a higher risk of
a noncompliant, hazardous product. Staff advises that the data elements
proposed in the SNPR are necessary to match the certificate to the
product being examined and to enhance CPSC's risk assessment, and are
not duplicative of information already provided on CBP entry forms. If
CPSC required eFiling of only a subset of the data elements for a
certificate, importers would have the burden to maintain two sets of
certificate data.
Comment 16: One commenter (C78) expressed that the proposed
required description of the product is duplicative of the information
provided by the HTS code and the quantity of units.
Response 16: HTS codes are typically very broad and will contain
multiple products under one code. For example, 9403.20.0017 contains
``Toddler beds, bassinets, cradles, play yards and other enclosures for
confining children'' made of metal. The code alone does not necessarily
indicate which product a certificate would reference. Instead, the SNPR
proposes that the certifier provide at least one specified unique
identifier, as well as a sufficient description, to match the finished
products to the certificate.
Comment 17: Commenter C9 suggested that CPSC allow the use of other
product identifiers, such as a GS1 Global Trade Item Number (GTIN), to
be used as an identifier of products covered by a certificate. The
commenter stated that the use of this bar code system with the
electronic certificate will allow industry to use the same information
currently on their products and minimize the cost of compliance.
Response 17: A GTIN provides useful information for product
identification.

[[Page 85768]]

Accordingly, the SNPR proposes to allow it as one of up to five product
identifiers on a certificate: GTIN, model number, serial number, Stock
Keeping Unit (SKU), or Universal Product Code (UPC). CPSC is developing
capabilities to retrieve the required certificate data from the Global
Data Synchronization Network (GDSN).
Comment 18: Several commenters (C24, C45, C46, C47, C50) expressed
confusion regarding the date of initial certification and requested
clarification as to how it differs from other dates, including the date
of manufacture. A few commenters believe this data element is
unnecessary.
Response 18: After considering the comments and enforcement
efforts, the SNPR does not propose to include a separate date of
initial certification. Analysis of certificates demonstrates that the
date of manufacture and the date of testing, required by section 14(g)
of the CPSA, and the date of entry, are sufficient to meet the
statutory requirements as well as for CPSC's risk assessment.
Comment 19: Several commenters (C38, C45, C47, C51, C78, C80)
opposed the 2013 NPR's proposal to require an indication of the scope
of products covered by the certificate, claiming it to be difficult to
determine.
Response 19: After considering the comments and gaining additional
experience through the development of eFiling, CPSC does not include in
the SNPR a new data element for the scope of products covered by the
certificate. Instead, CPSC will rely on the product description and
other identifiers on the certificate, along with CBP's entry data, to
match a finished product to the certificate.
Comment 20: Several commenters (C38, C46, C49, C78) questioned the
value of including a list of all applicable consumer product safety
rules for CPSC's targeting efforts and does not believe that inclusion
of this information is warranted. Another commenter (C47) stated that
listing the consumer product safety rules is redundant, because the
test reports already include this list.
Response 20: Section 14(a)(1)(B) of the CPSA requires that each
rule, ban, standard, or regulation applicable to the product be
specified on the certificate. Staff advises that the list of all
applicable rules is a critical data element for CPSC's risk assessment
and targeting efforts. Although the list also is on test reports, test
report data elements are not filed in a PGA Message Set, so that
information is not in an electronic format for CPSC's use within the
RAM. CPSC maintains a list of rules that require testing and
certification on the agency's website, and the list will also be
maintained in the Product Registry. Standardizing this information in
the Product Registry and for the Full PGA Message Set will allow CPSC
to target shipments using the rules listed on a certificate. For
example, CPSC can compare the list of rules with the product
information and identification of the testing laboratory to validate
that the product was tested to the expected rules and that the named
laboratory is accredited to conduct such tests. Accordingly, the SNPR
retains the requirement to provide the list of rules for which a
product is subject.
Comment 21: One commenter (C78) stated that requesting the
certifying party's name, mailing address, email, address, and telephone
number is redundant, because the IOR is already provided in the Customs
entry documents.
Response 21: Section 14(g)(1) requires that ``every certificate
required under this section shall identify the manufacturer or private
labeler issuing the certificate.'' The certifying party's name, mailing
address, email address, and telephone number are necessary for CPSC to
appropriately identify and contact the responsible party. Furthermore,
the IOR provided on the CBP entry documents may not always be the
correct certifying party under the SNPR proposal. In some cases, the
IOR is the customs broker or express carrier facilitating importation
and transmission of the data, which may not be the importer for
purposes of certification.
Comment 22: Two commenters (C21, C45) stated that it is preferable
to provide generic contact information for the record custodian, rather
than a specific person's contact information, because it would be
unreasonable for a single person to provide coverage for every
potential problem on a certificate. Another commenter (C82) stated that
CPSC should not collect data that is unlikely to determine compliance,
like the record custodian contact information.
Response 22: Section 14(g)(1) requires that the certificate contain
the ``contact information for the individual responsible for
maintaining records of test results.'' Accordingly, the SNPR proposes
to retain this data element. However, we agree with the commenters that
generic contact information is acceptable, as long as the generic email
address and telephone number is actively monitored by a knowledgeable
person and the certifying firm is responsive within 24 hours of CPSC's
initial contact.
Comment 23: Multiple commenters (C36, C37, C42, C47, C51, C76, C78)
opposed including the name and address of the manufacturer, finding
this data element unnecessary and duplicative, because country of
origin and foreign factory information are already provided on the
entry documents. Other commenters (C10, C13, C26, C43, C49) asked CPSC
to remove the requirement for a street address if the street address is
unavailable. Additionally, three commenters (C43, C46, C78) found this
data element too burdensome for importers to manually enter, as well as
too granular for CPSC's use.
Response 23: Section 14(g) of the CPSA requires every certificate
to contain the date and place of manufacture, and to provide the full
mailing address for each party, which includes a manufacturer.
Additionally, section 16(c) of the CPSA, 15 U.S.C. 2065(c), requires
disclosure of the identity of the manufacturer of a product by name,
address, or such other identifying information as the CPSC officer or
employee may request, to the extent that such information is known or
can be readily determined. Accordingly, we interpret the place of
manufacture to include the full address (including manufacturer name;
street; city; state or province; and country or administrative region).
Being able to accurately identify the manufacturer of the finished
product with a street address is necessary for effective risk
assessment and targeting. Indeed, in 2017 staff found in its
Certificate Study that the manufacturer city is a data element that can
be associated with a higher risk of a hazardous product.
If the street address is unavailable, then the certifier should
provide a detailed location, consistent with the manufacturer country's
mailing address standard. The address must be sufficient to describe
the specific location where CPSC can send correspondence or inspect the
facility. Certifiers can use different methods to provide this
information. For example, if using the Product Registry, the
manufacturer's name and address will be saved with a user-generated ID
under the certifier's business account, so that it can be easily
referenced when creating future certificates.
Comment 24: One commenter (C56) asked for clarification whether all
suppliers must be listed on the certificate.
Response 24: Consistent with section 3(a)(10) of the CPSA, 15
U.S.C. 2052(a)(10), the manufacturer that must be listed on the
certificate is the entity responsible for manufacturing,

[[Page 85769]]

producing, or assembling the finished product (or component part if
issuing a component part certificate). This is clarified in proposed
Sec. 1110.11 of the SNPR.
Comment 25: A few commenters (C38, C45, C49, C51, C59) stated that
providing the date of manufacture is redundant and burdensome, and
should not be included.
Response 25: Section 14(g) requires every certificate to contain
the date of manufacture. The 2017 Certificate Study demonstrated that
date of manufacture, when compared to the date of testing, assists CPSC
in determining compliance. CPSC is testing this data element in the
eFiling Beta Pilot and retains this statutory date element in the SNPR.
Comment 26: Many commenters opposed requiring the name of the
manufacturer and the place of manufacturing, including the address,
because this information is considered confidential business
information or a trade secret. Commenters were concerned that providing
this information on the certificate may result in dealers, retailers,
and competitors bypassing them and dealing directly with the
manufacturer, resulting in economic injury and competitive harm. One
commenter (C33) stated that trade secrets are protected by federal and
state law.
Response 26: Section 14(g) provides the minimum data elements for
certificates, which include the place and date of manufacture and
``each party's name, full mailing address, [and] telephone number.''
Because this is a statutory requirement, certificates provided to CPSC
must contain this information. Moreover, section 16(c) of the CPSA, 15
U.S.C. 2065(c), requires that upon request by a Commission officer or
employee, every importer, retailer, or distributor of a consumer
product or substance must identify the manufacturer and provide the
name, address, or other identifying information. Thus, certifiers must
supply manufacturer names and contact information to the Commission
pursuant to sections 14 and 16 of the CPSA. CBP and CPSC will maintain
business confidential data systems for eFiled certificates, which will
be submitted directly to government systems with appropriate safeguards
to secure the information.
Comment 27: One commenter (C52) opposed the requirement for
providing the manufacturer address for small businesses, because the
address is often a home address and the commenter is concerned for the
safety of the family.
Response 27: Section 14(g) of the CPSA requires the place of
manufacture to be provided on the certificate. Furthermore, for
imported products, certificate data will be entered into a government
system, which follow industry-standard data security protocols, for use
by the Commission and CBP. Section 14(g) does not require certificate
disclosure to the public and for any information requests, CPSC will
follow the procedures set forth in 16 CFR 1015.
Comment 28: One commenter (C38) requested that CPSC retain the
certifier's ability to code information on a certificate as allowed on
a permanent certification label for power mowers described in 16 CFR
1205.35(c). Additionally, the commenter recommended that the allowance
for the addition of a website address to the certificate, which can be
used by consumers or CPSC to request additional, nonproprietary
information.
Response 28: Section 1205.35 of the power mower rule, issued in
1979, requires a reasonable testing program and a five-data point
certificate label that is on the product and visible to the consumer.
The information on this label is allowed to be coded. 16 CFR
1205.35(c). In 2008, however, Congress revised certificate requirements
in section 14 of the CPSA for all regulated products; manufacturers of
power mowers now must meet the requirements in part 1205, and also
sections 14(a) and 14(g) as implemented through part 1110. The on-
product certificate label requirement thus remains, but the SNPR would
require an additional two-year record keeping requirement, several
additional data elements for both domestic and foreign-manufactured
product certificates, and an eFiled certificate for imported power
mowers. Codes created by individual companies will not be allowed on
eFiled certificates. The SNPR includes in proposed Sec. 1110.11(b) the
ability to add to the certificates a website address and other
information (such as testing).
Comment 29: One commenter (C34) objected to providing contact
information for CPSC-accepted laboratories on CPCs, because CPSC
already has that information.
Response 29: The Product Registry will contain a list of CPSC-
accepted third party laboratories for each regulation. If using a Full
PGA Message Set, certifiers can reference the third party laboratory
using a four-digit code that CPSC will maintain, along with contact
information for CPSC-accepted third party laboratories. Certifiers need
only provide contact information for other testing laboratories and for
domestically manufactured products.
Comment 30: Several commenters (C21, C32, C36, C40, C47, C50, C78)
objected to the requirement for an attestation as proposed in Sec.
1110.11 (a)(10) of the 2013 NPR and recommended removing this section
from the rule. For example, commenter C21 opined that the attestation
will make the certificate `busy' and adds little value, because
certifiers will add the language even if they do not follow the rules.
This commenter further stated that certifiers in compliance with 16 CFR
part 1110 understand their obligations and the gravity of providing the
certificate and suggested that the Commission clearly state the
certifier's obligations in the regulation, which would provide ``a
tacit attestation.''
Two commenters (C32, C50) stated that the attestation requirement
is not authorized by section 14(g) of the CPSA and has no legal
significance, because the obligation to submit truthful information to
the government is already applicable under current law. Commenter (C40)
noted that the ``capacity for human error on a certificate is not
trivial'' and suggested that CPSC clarify that the individual is not
liable for attesting to the accuracy of the certificate. This commenter
suggested withdrawing this requirement and adding a statement that
firms which demonstrate the existence of a compliance plan
``administered in accordance with 16 CFR parts 1107 and 1109 will not
be found to have reason to know that a certificate is false or
misleading.''
Response 30: Section 14(g) sets forth the minimum data elements for
the certificate; CPSC has authority to add data elements through
rulemaking. An attestation helps to ensure the responsibility of the
certifying party to know what they are certifying on behalf of the
firm, and the firm's liability for a false certification. In addition,
to specifically acknowledge the ``capacity of human error,'' the SNPR's
attestation language states that ``the information in this certificate
is true and accurate to the best of my knowledge, information, and
belief.''
Regarding burden, any certifier using the Product Registry will
have only one click to accept the attestation and will have the option
for bulk attestation. Any certifier using the Full Message Set will
only have one additional field for the attestation. CPSC is testing
this attestation in the eFiling Beta Pilot.

[[Page 85770]]

F. Section 1110.13--Certificate Availability

Comment 31: Commenters (C12, C20, C23, C26, C28, C36, C42, C46,
C47, C49, C55, C64, C71, C74, C81) suggested that CPSC should retain
the current ``on-demand'' certification system. Commenter (C2) states
that retaining the ability to satisfy the certificate requirement by
presenting certificates upon request or in a password protected website
is preferable to the proposed changes. Other commenters (C3, C81)
stated that CPSC's proposal to require electronic filing of
certificates of compliance for regulated imported consumer products
with CBP at the time of filing the entry or entry summary contravenes
the CPSIA, which calls for GCCs to be submitted ``upon request,''
suggesting that GCCs need not be submitted with each shipment.
Response 31: Section 14(g)(3) of the CPSA establishes several
requirements regarding the availability of certificates, which must:
``accompany the applicable product or shipment of products covered by
the same certificate''; be furnished to each distributor or retailer of
the product; and be furnished to the Commission upon request.
Additionally, section 14(g)(4) specifically provides that the
Commission can, by rule, require eFiling of certificates for imported
consumer products.
Certificates that are collected on an ad hoc basis, either as a
hard-copy or a PDF copy via email, are not in a data-usable format that
can be processed into CPSC's RAM and risk scored. To implement section
14(g)(4) of the CPSA, proposed Sec. 1110.13 of the SNPR requires the
eFiling of all certificates for regulated imported finished products,
including CPCs and GCCs, at the time of filing entry or entry summary,
if both entry and entry summary are filed together. CPSC intends to use
certificate data to risk score shipments and enforce its statutes and
regulations. If this rule is finalized, an eFiled certificate would
meet the ``accompany'' requirement in section 14(g)(3) of the CPSA and
the requirement in proposed Sec. 1110.13(a).
Comment 32: Several commenters (C7, C18, C20, C21, C47, C60, C66,
C71) suggested that there should be alternate ways to submit
certificate data, such as a URL, to reduce burden. Another commenter
(C32) agreed with proposed Sec. 1110.0(c)'s allowance of electronic
certificates in multiple forms, suggesting that CPSC also allow a Quick
Response (QR) code as an acceptable means of providing access to an
electronic certificate. Additionally, several commenters (C2, C21, C71,
C74) stated that they will have to submit the same certificates more
than once because of the electronic and hard copy requirements.
Response 32: The SNPR clarifies in Sec. 1110.9(b) that a hard copy
or an electronic certificate meets the requirements described in Sec.
1110.13(b), to furnish a certificate to each distributor or retailer,
and in Sec. 1110.13(c) to provide a certificate for inspection upon
request by CPSC or CBP.
However, the SNPR would require that for imported consumer products
to meet the ``accompany'' requirement in section 14(g) of the CPSA,
certificate data elements must be eFiled with CBP using a PGA Message
Set at the time of entry or entry summary. Certifiers will have several
means to provide certificate data to CPSC for regulated products,
including a Product Registry with a Reference PGA Message Set, and a
Full PGA Message Set. CPSC may still ask for a certificate, however,
for domestically manufactured products and as otherwise allowed by the
statute, to verify eFiled certificate data, or for other purposes.
Certificates for domestically manufactured products can still be
provided through email or a URL. A QR code would be an acceptable means
of providing access to an electronic certificate, pursuant to proposed
Sec. 1110.9(c), but would not meet the requirement for an eFiled
certificate as proposed in Sec. 1110.13(a). Finally, to address
burden, CPSC created a Product Registry to allow certifiers to submit
certificate data once upon importation, and thereafter to use a
reference PGA Message Set to identify the certificate data already
entered in the Product Registry each time products covered by that
certificate are imported.
Comment 33: A commenter (C45) stated that a requirement for a
unique identifier to be ``identified prominently on the finished
product, shipping carton, or invoice'' would potentially crowd an
occupied area on product labels. Another commenter (C35) stated that an
overt display of a unique identifier is unnecessary and may be
duplicative.
Response 33: The electronic certificate data may not be easily
accessible to retailers and distributors, and to CBP or CPSC upon
request, if the unique identifier is not ``identified prominently.''
Accordingly, the SNPR proposes to maintain the requirements for
prominence for certifiers that choose to use electronic forms of a
certificate. We seek comment, however, on whether the prominence of an
electronically available certificate on an invoice or shipping
container is still important and appropriate to address in the final
rule.
Comment 34: Commenters (C40, C74) suggested that CPSC interpret
``accompany'' to mean eFiling of the certificate with CBP, or a
certificate with electronic access to distributors and retailers. The
commenters also stated that an additional physical certificate is not
necessary.
Response 34: The SNPR clarifies in proposed Sec. 1110.13(a) that
an eFiled certificate (filed in ACE using a PGA Message Set) meets the
``accompany'' requirement. Furthermore, proposed Sec. 1110.9(c)
clarifies that because an electronic certificate meets the
``furnishing'' and ``availability'' requirements in Sec. Sec.
1110.13(b) and (c), respectively, a physical copy of the certificate
meets the same requirements.
Comment 35: Several Commenters (C10, C13, C26, C31, C37, C43)
stated that the current system of allowing certifiers to furnish
certificates to distributors and retailers through ``grant of
reasonable access'' or ``on demand'' should be maintained, instead of
requiring they be made available for each shipment. One commenter (C47)
stated that if certificates are furnished to retailers, CPSC should not
dictate the method for how it is done. Other commenters (C10, C42)
stated that the change will be a ``costly shift'' from the current
regulation and result in the hiring of additional staff.
Response 35: Section 14(g)(3) of the CPSA requires that ``a copy of
the certificate shall be furnished to each distributor and retailer of
the product.'' This differs from the requirement in the same section,
stating that ``every certificate . . . shall accompany the appliable
product or shipment of products covered by the same certificate,'' and
from the eFile authority in section 14(g)(4) of the CPSA. The SNPR
would require certificates for imported consumer products to be eFiled
using one of two methods described in section II.D.4 of this preamble.
Otherwise, the SNPR does not dictate how a certificate must be
furnished to each distributor and retailer; electronic certificates for
these purposes are allowed, but not required.
Comment 36: A commenter (C38) suggested that CPSC clarify that a
domestically manufactured product is not required to be accompanied by
a certificate. Another commenter (C52) recommended that small batch
manufacturers be treated like domestic manufacturers in that their
certificates need not be submitted to CPSC until the products enter
commerce.
Response 36: Consistent with the existing 1110 rule, the SNPR
requires

[[Page 85771]]

that certificates for domestically manufactured products be issued
before a product is introduced into commerce, and made available to
CPSC upon request, either in hard copy or through electronic means.
Small batch manufacturers can receive testing relief through a program
described on CPSC's website (see response to Comment 5). Unless
entitled to relief through that program, small batch manufacturers must
issue certificates and meet the certificate availability requirements
that apply to all domestic or imported consumer products.

G. Section 1110.17--Recordkeeping Requirements

Comment 37: Commenter C35 stated that the NPR provides no rationale
for the proposed requirement that GCCs and supporting records be
maintained for five years. The commenter stated that this new
requirement is confusing and will not improve product safety, because a
three-year record retention already is mandated in some existing CPSC
safety standards. Commenter C14, in contrast, noted that companies
already keep customs entry records for five years or longer, and thus
has no objection to the proposed increased retention time for GCCs.
Response 37: Pursuant to 28 U.S.C. 2462, the statute of limitations
to litigate a civil fine, penalty, or forfeiture for a consumer product
safety violation is five years. Commenter C14 is correct that customs
entry records must be maintained for five years (see 19 CFR 163.4).
Additionally, 16 CFR 1107.26(b) and 16 CFR 1109.5(j) have five-year
record retention requirements. To be consistent with these record
retention periods and the statute of limitations, the SNPR retains the
proposed requirement that GCCs and supporting records be maintained for
five years. We note that CBP recordkeeping requirements may differ from
CPSC requirements, depending on the commodity and the circumstances of
entry filing.

H. Section 1110.19--Component Part Certificates

Comment 38: Several commenters (C23, C35, C36, C38, C40, C47, C49,
C50, C56, C71, C80) expressed confusion regarding the difference
between certificates for component parts, for finished products, and
for replacement parts of consumer products.
Response 38: Proposed Sec. 1110.3(b) defines ``component part'' as
a product or substance 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. The SNPR defines a ``finished
product'' as a product or substance that is ``regulated by the
Commission that is imported for consumption or warehousing or is
distributed in commerce.'' The SNPR definition explains that parts of
such products or substances, including replacement parts, that are
imported for consumption or warehousing, or are distributed in
commerce, and that are packaged, sold, or held for sale to, or use by,
consumers, are considered finished products.
Only finished products subject to a rule must be tested and
certified. Component part certificates are voluntary and are not
required to accompany an imported component part, are not required to
be furnished to retailers and distributors (as described in proposed
Sec. 1110.13(b)), and are not to be eFiled.
Not all replacement parts are finished products that require
testing and certification. A replacement part of a consumer product
that meets the definition of a finished product may be subject to part
1110, if the replacement part is subject to a rule. For example, a
handlebar stem for a bicycle that is sold to consumers as a replacement
part requires a certificate, because handlebar stems, either as a
stand-alone product or as part of a finished bicycle, must be tested
for strength in accordance with 16 CFR 1512.18(g). Additionally, parts
of toys, such as doll accessories, that are sold to consumers as a
separate finished product, must comply with all applicable rules,
including for example lead in paint and/or lead content. If the same
doll accessories were imported for manufacturing purposes and not for
consumption or warehousing, and were intended to be combined with a
doll for sale, then such accessories would not be a finished product
required to be certified until they are part of a finished product.
Comment 39: Two commenters (C22, C38) objected to the requirement
to certify replacement parts for products with many replaceable items,
such as ATVs and walk-behind power mowers, which commenters allege will
result in an increase to the overall burden that was not included in
the burden estimate for the NPR. Commenter C22 stated that most
replacement parts do not have serial numbers and needing to track each
part will result in a tremendous logistical challenge. Additionally,
the same commenter claimed that the proposed rule will expand the
definition of finished products and apply it to replacement parts,
which do not have their own safety standard.
Response 39: As explained in response to comment 38, product parts
that are unregulated by CPSC and not sold to consumers, but are instead
intended to be used in manufacturing a consumer product, are not
required to be tested and certified. To be subject to testing and
certification under section 14 of the CPSA and part 1110, a product
must be a finished product, as defined in proposed Sec. 1110.3(b),
that is subject to one or more regulations.
Comment 40: Two commenters (C49, C52) suggested that certification
requirements specifically include ``retail component parts.'' The
commenter defines these as component parts purchased at a retail
establishment, which would be primarily purchased by handmade toy
makers and small businesses. The commenter suggested that certificates
for ``retail component parts'' be voluntary.
Response 40: Component parts of a toy, such as doll clothing or
accessories, are finished products when sold to consumers. If such
finished products are subject to a regulation, section 14 of the CPSA
requires that they be tested and certified. Accordingly, although the
SNPR does not contain a separate definition for ``retail component
parts,'' the definition of ``finished product'' in proposed section
Sec. 1110.3(b) would include these products.
eFiling System and eFiling Pilots

I. CBP's IT Infrastructure

Comment 41: Numerous commenters were concerned in 2013 that CBP
systems then lacked the ability to accept electronic certificates in
any format. For example, numerous commenters were concerned that CBP's
system did not have the capacity to upload PDF/electronic files.
Commenters advised that CPSC should wait and work with CBP to fully
develop the International Trade Data System (ITDS), which would allow
the direct submission of certificates via ACE.
Response 41: As described in sections II.C and II.D.4 of this
preamble, CPSC and CBP have established the technology infrastructure
to meet the requirements of eFiling. CPSC and CBP conducted an initial
eFiling pilot, the Alpha Pilot, in 2016-17 that used the PGA Message
Set to transmit certificate data to CPSC's RAM for risk assessment.
CPSC and CBP are currently conducting an eFiling Beta Pilot with
importers and their customs brokers, to further test eFiling
certificate data.
Comment 42: Commenter C71 stated that CPSC should allow companies
to use barcodes to upload certificate data.

[[Page 85772]]

Response 42: CBP's PGA Message Set data structure does not allow
for a bar code to upload PGA data. However, the SNPR would allow use of
a GTIN (in numeric format), which is typically displayed on consumer
products in barcode format, as part of the data element to describe the
consumer product in proposed Sec. 1110.11(a)(1).
Comment 43: Several commenters (C15, C16, C20, C21, C31, C36, C40,
C55, C64) stated that because CPSC does not have the infrastructure to
review uploaded PDF certificates from CBP and neither agency is staffed
for eFiling, the new reporting requirements will slow the entry
clearance process during peak import seasons, which can result in
increased local storage capacity and irregular deliveries.
Response 43: As described in section II.D of this preamble,
certificate data would be submitted to CBP as data elements and
seamlessly incorporated into CPSC's RAM for risk analysis using
algorithms. If the RAM algorithm increases the risk score for a
shipment based on certificate data, staff can identify the shipment for
examination, and will also be able to review the certificate data for
each shipment, along with entry documents.
Because CBP is now capable of accepting certificate data elements
via ACE, the entry clearance process will not be slowed. In fact, CPSC
expects that certifiers who provide consistent and accurate certificate
data will see a reduction in their shipments' risk scores, which would
lower the chance of a hold for exam. Thus, CPSC expects that eFiling
will facilitate compliant trade.
Comment 44: Commenters (C12, C14, C20, C28, C44, C47, C64, C72,
C76) stated that it is essential that CPSC's electronic certificate
filing requirement reflect the complexity of the international supply
chain, including different modes of transportation, and can process the
large amounts of data it will receive, so as not to delay the delivery
of goods. One commenter (C12) claimed that filing 24 hours prior to
entry is unrealistic, because many imported products will require
multiple certificates. Commenter C28 stated that the NPR's alternative
option of allowing, rather than requiring eFiling, would be sufficient
for effective targeting and the added benefits of requiring electronic
filing of certificates will not outweigh the burden on importers.
Response 44: As described in section II.D of this preamble,
certifiers will have multiple means of eFiling certificates that
address the commenters' concerns, including using a CPSC-managed
Product Registry to enter and maintain certificate data. At entry,
certifiers can reference a certificate in the Product Registry whenever
the product is imported. Regardless of the mode of shipment, importers
can reference a pre-existing data set when submitting a PGA Message
Set. Importers can also choose to eFile all data elements each time a
product is imported. Companies or brokers also can maintain their own
product registries, and eFile the same data set multiple times to
improve efficiency. CBP's systems can accept the certificate data,
including multiple certificates for each entry line, up to 24 hours
before arrival, which is the timeframe specified in section 14(g)(4) of
the CPSA. CBP and CPSC have already tested this capability in the
eFiling Alpha Pilot and are testing it again now in the eFiling Beta
Pilot.
Finally, as stated in section II.D.2 of this preamble, CPSC found
an increased risk of a product safety violation for shipments without
an accompanying certificate, as well as an increased risk with certain
data elements. Thus, voluntary filing of certificates is not an
effective way for CPSC to enforce the certificate requirement or to
identify violative products. Importers of noncompliant products are
less likely to file certificates if eFiling is not required.
Comment 45: Several commenters (C15, C18, C20, C66) suggested that
CPSC and/or CBP should notify companies regarding which HTS codes and
associated shipments require certificates.
Response 45: Importers are responsible for knowing whether the
products they import are required to be tested and certified before
entering the United States. A list of all regulated products covered by
the 2013 NPR and this SNPR, for both children's products \15\ and non-
children's products,\16\ is maintained on CPSC's website. For importers
using the Product Registry, this information is maintained in the
software as well. For importers that want to eFile using a Full PGA
Message Set, the list of regulations and associated codes is also
stored on CPSC's website.\17\
---------------------------------------------------------------------------

\15\ Children's product rules requiring testing and
certification: <a href="https://www.cpsc.gov/Business--Manufacturing/Testing-Certification/Lab-Accreditation/Rules-Requiring-Third-Party-Testing">https://www.cpsc.gov/Business--Manufacturing/Testing-Certification/Lab-Accreditation/Rules-Requiring-Third-Party-Testing</a>.
\16\ Non-Children's product rules requiring testing and
certification: <a href="https://www.cpsc.gov/Business--Manufacturing/Testing-Certification/Lab-Accreditation/Rules-Requiring-a-General-Certificate-of-Conformity">https://www.cpsc.gov/Business--Manufacturing/Testing-Certification/Lab-Accreditation/Rules-Requiring-a-General-Certificate-of-Conformity</a>.
\17\ <a href="https://view.officeapps.live.com/op/view.aspx?src=https%3A%2F%2Fwww.cpsc.gov%2Fs3fs-public%2FBetaPilotCitationandExemptionCodesv2Cleared_0.xlsx%3FVersionId%3D_Cv6CJDAJ0u8UiigH9CNgQy1ax3b4G.b&wdOrigin=BROWSELINK">https://view.officeapps.live.com/op/view.aspx?src=https%3A%2F%2Fwww.cpsc.gov%2Fs3fs-public%2FBetaPilotCitationandExemptionCodesv2Cleared_0.xlsx%3FVersionId%3D_Cv6CJDAJ0u8UiigH9CNgQy1ax3b4G.b&wdOrigin=BROWSELINK</a>.
---------------------------------------------------------------------------

CBP will inform filers when a certificate may be expected with
their entry based on the associated HTS code. For the Beta Pilot, CPSC
created a publicly available list of HTS codes, maintained on CPSC's
website (available at <a href="https://www.cpsc.gov/eFiling">https://www.cpsc.gov/eFiling</a>), which gives HTS
codes for regulated consumer products within CPSC's jurisdiction. CBP
and CPSC will use these codes to inform importers regarding the
potential for having to file a certificate. CPSC has also developed CBP
Customs and Trade Automated Interface Requirements (CATAIR) explaining
how to file both Reference and Full PGA Message Sets that use HTS Codes
associated with products that could fall within CPSC's certificate
requirement. This CATAIR is available at <a href="http://www.cpsc.gov/eFiling">www.cpsc.gov/eFiling</a>, and is
attached as Tab B to Staff's SNPR Briefing Package.

J. CPSC's IT Infrastructure

Comment 46: Commenter C18 recommends using the ITDS and leveraging
the automated process of receiving entry and entry summary information
from CBP to eliminate paper-based processes. Commenter C45 suggests
having a ``check box'' stating that the importer has a certificate on
file, as an alternative to filing the certificate.
Response 46: CPSC currently uses ITDS as part of the RAM to screen
shipments of consumer products intended for import into the United
States, including consumer products potentially in violation of health
and safety laws. eFiling will continue to use ITDS to receive
certificate data. And, as stated in section II.D.4 of this preamble, to
streamline data collection the eFiling system will have a Product
Registry database maintained by CPSC.
Data collection will be automated and streamlined, but will not
rely on a ``check box'' option to indicate that the importer has the
required certificate, because a check box, without associated data, is
insufficient for CPSC's enforcement and targeting needs as described in
section II.C of this preamble.
Comment 47: Commenters (C19) suggested that CPSC contemplate a web
portal, whereby the ``Responsible Party'' can file the electronic
certificate data elements. The Commission could then evaluate the data
elements for inspection targeting purposes. Similar comments were filed
by several commenters (C7, C67, C71, C72, C78, C82), all of whom
recommended the ability to file certificate data for products that
could be used more than

[[Page 85773]]

once, to minimize the burden of repeated data entry.
Response 47: CPSC understands that a certificate database can be an
efficient way to reduce burden. Accordingly, as described in sections
II.D of this preamble, CPSC developed the suggested web portal, called
the Product Registry, as part of the eFiling System. As contemplated by
commenters, the Product Registry allows certifiers to electronically
enter the certificate data elements for each regulated product once,
and then submit a reference to this dataset each time the product is
imported thereafter.

K. eFiling Procedures, Pilots, and Stakeholder Engagement

Comment 48: Several commenters (C23, C36, C47, C64, C79, C80, C81)
objected to the implementation of the 2013 NPR due to the lack of
previous studies and pilots, and because the 2013 NPR allegedly did not
identify problems with the current system. Several commenters (C15,
C19, C77, C78, C79) suggested that CPSC withdraw the 2013 NPR until
after the Commission addresses submitted comments. Commenters (C19,
C46, C64, C77, C78) requested that CPSC engage with stakeholders more
intensely to address various concerns related to the RAM,
administrative and financial burdens, trade barriers, and streamlining
the certificate process.
Response 48: Please see the discussion in section II.D of this
preamble regarding CPSC's pilots and Certificate Study, stakeholder
engagement, and how CPSC will use certificate data to target shipments
containing noncompliant consumer products and substances. Section XI of
Staff's SNPR Briefing Package further details CPSC staff's outreach and
education activities relating to certificates and eFiling.
Comment 49: In 2013 a commenter (C79) recommended at least 18
months before implementation of the eFiling requirement.
Response 49: Based on developments since the 2013 NPR and
experience in the Beta Pilot thus far, the SNPR proposes a 120-day
effective date for a final rule and seeks public comment on this
proposed effective date.
Comment 50: A few commenters (C17, C64, C74, C75, C77) referenced
Executive Order 13659, Streamlining the Export/Import Process for
America's Businesses, signed by President Obama on February 19, 2014,
and CPSC's role in and execution of the ``Single Window'' for imports
and exports. These commenters suggested that CPSC work with either the
Border Interagency Executive Council (BIEC) or Customs Operations
Advisory Committee (COAC) to craft a rule that accommodates the needs
of stakeholders.
Response 50: CPSC actively collaborates with CBP regarding the
``Single Window'' for imports and engages with the BIEC and with COAC.
Throughout development of the eFiling program, CPSC has updated the
BIEC and COAC at their regular meetings. CPSC also incorporates data
from ITDS in its RAM for targeting and enforcement. CPSC also worked
with CBP to develop the PGA Message Set, which is the means for
certifiers to eFile certificate data. CPSC continues to work and
consult with CBP on import surveillance issues, including the eFiling
Alpha and Beta Pilots, and this rulemaking.
Comment 51: Several commenters (C15, C39, C41, C64, C74, C81, C82)
requested CPSC consider working with the CBP Importer Self-Assessment
(ISA) or Customs-Trade Partnership Against Terrorism (CTPAT) programs
to carve out eFiling exceptions for importers participating in these
programs, who are currently considered ``trusted traders.'' These
commenters proposed a specific exception for trusted traders from
certificate filing ``at-entry'' and instead would have CPSC allow these
traders to provide certificates ``on-demand,'' as they do today. One
commenter (C15) suggested that CPSC should not require new data
elements besides those already part of the ISA.
Response 51: Because the requirements for CTPAT and other ``trusted
trader'' programs do not particularly relate to potential consumer
product safety hazards, and CPSC historically has found product safety
violations for CTPAT members, the SNPR does not provide an exemption
for members of ``trusted trader'' programs.
Comment 52: A commenter (C77) suggested that the CPSC establish a
permanent stakeholder advisory group to regularize needed input into
product safety issues of mutual importance.
Response 52: While CPSC staff agrees there could be benefits from a
stakeholder advisory group, the establishment of such a group is out of
scope for this rulemaking.
Comment 53: One commenter (C74) stated that CPSC should allow
multiple products on one certificate.
Response 53: The SNPR proposes that certificate data identify the
finished product with a sufficient description to allow staff to
identify the product in question. To reduce the potential for
disrupting importation of compliant products that appear on the same
certificate as a potentially non-compliant product, the SNPR proposes
that each certificate contain information for only one product. If a
product is materially different, meaning that it has a different
product design, manufacturing process (including location), or source
of component parts (including paints and materials) from another
similar product, then each product should have a separate eFiled
certificate. In other words, if a certifier expects that the difference
in a product can affect compliance, then each product should have a
separate eFiled certificate. For an explanation of what the Commission
means by materially different products, see 16 CFR 1107.23.
For example, wearing apparel is typically made of the same material
and ships with various styles and sizes of similar products.
Accordingly, the SNPR would allow multiple models that were composite
tested together, so long as there is no material change, to be included
on one certificate. CPSC will consider the multiple models as one
product, which should be referenced by one ID in the Product Registry
or the Full Message Set. For example, multiple styles, sizes, and
colors of the same shirt can be on the same certificate, referenced by
one ID, because the differences in styles, sizes, and colors are not
considered a material change. Also, if a product is comprised of a
bundle of finished products, importers can provide one certificate that
covers all products in the bundle or multiple certificates covering
each individual product in the bundle.
Comment 54: One commenter (C26) expressed concern that units of a
product may come from several different manufacturing or testing
batches and, therefore, there may be several different certificates
associated with the product.
Response 54: A product that was manufactured in different test
facilities or in several different batches and tested separately would
likely require a separate certificate for each batch, depending on the
materials used and timing of testing, because each batch would likely
have different testing information. The certifier is responsible for
keeping track of manufacturing processes, product batches, and
associated testing and certification, as has been the case since 2008,
when the existing 1110 rule was published. CPSC's Product Registry is
designed to assist certifiers in managing certificates for different
products and product batches, where each certificate will be uniquely
identified.
Comment 55: Three commenters stated that requiring the electronic
filing

[[Page 85774]]

of certificates will not only result in burden for importers, but also
increase burden for the government. One commenter (C35) predicted that
the processing of millions of PDF certificates would be overly
expensive and recommended that any new requirements be integrated into
existing supply chain and import practices. A second commenter (C81)
stated that processing times will increase and CBP will have to rely
upon manual release for a huge number of entries, especially during
peak season. A third commenter (C55) questioned whether CPSC and CBP
will be able to handle shipments without certificates and how the
information will be validated for accuracy.
Response 55: CBP has been collecting electronic data for other
partner government agencies since 2016. The increase in data collected,
in the form of data elements, will not result in increased processing
times, because the data will be electronically transmitted to CPSC and
initially reviewed by algorithms in the RAM. CPSC has been co-located
with CBP at ports across the country since 2008 and already processes
shipments lacking accompanying certificates. CBP and CPSC will
incorporate data quality checks into the PGA Message Set to validate
the accuracy of the certificate data.
Comment 56: Several commenters (C15, C20, C36, C74, C81) asked for
clarity about what will happen if a certificate contains an error or is
not provided at all. One commenter (C36) asked whether a violation
occurs if the importer characterizes a CPC as a GCC or vice versa.
Another commenter (C15) asked CPSC to articulate the impact to
importers if a certificate is not submitted upon entry.
Response 56: Currently, before issuing a violation, CPSC staff
considers whether any inaccurate information on the certificate was
deliberate, or inadvertently erroneous. For example, a firm's
mischaracterization of its certificate as a CPC rather than a GCC, or
vice versa, is unlikely to result in a violation in the first instance
if the underlying testing that supports the certificate is correctly
conducted and accurate. Enforcement for noncompliant certificates
includes a range of options, such as increasing an importer's risk
score, which increases the risk of a hold for examination, and
rejecting an entry that lacks certificate data, contains incomplete or
inaccurate information, or lacks a disclaim message if no certificate
is required for a flagged HTS code.
Comment 57: Commenter (C17) suggested that the rule clearly state
that products admitted into and/or produced in a foreign trade zone
(FTZ) are not subject to CPSC requirements, including those for
certification. The commenter noted that CPSC requirements should only
apply to goods entered into the United States from the FTZ for
consumption via a CBP Form 7501, instead of the CBP Form 3461, because
Form 7501 includes details about the products making entry, whereas
Form 3461 gives only estimates of the quantity and type of products.
Other commenters (C21, C67, C74) also sought clarification on when a
certificate must be filed for products leaving an FTZ.
Response 57: The SNPR would apply to all finished goods entering
the United States for consumption or warehousing, even if being
imported from an FTZ, as specified in proposed Sec. Sec. 1110.5 and
1110.13(a)(1). The CPSA does not exempt consumer products from testing
and certification requirements based on the mode of importation. For
products entering the United States from an FTZ, certificate data
should be filed with CBP Form 7501, which details the products making
entry.
Comment 58: Three commenters (C15, C17, C43) sought clarification
on how the NPR will impact the first-in-first-out (FIFO) inventory
management system employed in FTZs. One commenter (C15) added that for
products that are multi-sourced by different manufacturers under a FIFO
system, tying certificates to the physical product would be cumbersome
and costly.
Response 58: The SNPR requires certifiers to match the correct
certificate data to the correct product at the time of entry, so that
the data can be used for targeting in CPSC's RAM. Furthermore, the SNPR
proposes an effective date 120 days after publication of a final rule
in the Federal Register. Therefore, FTZ users would have time to update
their software after a final rule is issued. Alternatively, a certifier
importing products from an FTZ could provide multiple certificates at
entry that may apply to the product being imported, so that the
certifier avoids the risk of having no certificate or providing an
incorrect certificate.
Particular Consumer Products

L. Walk-Behind Power Mowers

Comment 59: Two commenters (C38, C78) claimed that the NPR
contradicts the certification requirements for walk-behind power lawn
mowers in 16 CFR part 1205. Commenters note that Sec. 1205.35(a)
states that the certificate shall be in the form of a durable label on
the finished product and that Sec. 1205.36(a) states that an importer
can rely in good faith on the foreign manufacturer's testing.
Commenters requested that the current certificate requirements in 16
CFR part 1205 be retained, rather than the filing requirements of the
NPR.
Response 59: As explained in response to comment 28, after the
Commission issued 16 CFR part 1205 in 1979, Congress revised section
14(a)(1) of the CPSA, adding requirements for certification for all
regulated consumer products. The on-product label certificate required
in Sec. 1205.35 remains, and is helpful for consumers to identify the
product, certifier, and the production lot of the mower, in the case of
a recall. However, the on-product certificate does not meet the
statutory requirements for the form, content, and availability of
certificates in sections 14(a) and (g) of the CPSA, or the Commission's
rule in part 1110. For example, Sec. 1205.35(b) does not contain all
data elements required in CPSA section 14(g)(1) and proposed Sec.
1110.11. Accordingly, the SNPR maintains the requirement that mowers
subject to part 1205 must also meet the certificate requirements in
part 1110, including eFiling. Importers can continue to rely on a
foreign manufacturer's testing and/or certification to certify imported
products pursuant to 16 CFR part 1109. Moreover, the Product Registry
is designed to allow certifiers to give permissions to other trade
partners to enter data or certify products on their behalf.

M. Textiles and Wearing Apparel

Comment 60: One commenter (C55), a clothing retailer, stated that
creating certificates ``guaranteeing'' conformity with the Flammable
Fabrics Act may not reflect true compliance, because vendors can alter
test reports and certificates. Another commenter (C56) noted that third
party testing and product certification are not required in the
European Union for textile and clothing products. The commenter also
adds that adult clothing manufactured in the United States is not
subject to mandatory third party testing.
Response 60: Altering or falsifying a test report or certificate is
a prohibited act under section 19(a)(6) of the CPSA, and likely a
criminal act, as set forth in 18 U.S.C. 1001. Where the facts warrant,
the Commission may refer criminal acts to the Department of Justice for
prosecution.
Section 14(a)(1) of the CPSA requires certification for any product
which is subject to a consumer product safety rule under any regulation
enforced by the Commission. Therefore, clothing textiles require
certification to the

[[Page 85775]]

applicable rules, irrespective of textile requirements in the European
Union.\18\
---------------------------------------------------------------------------

\18\ Note that in 2016, the Commission issued enforcement
discretion stating that no certificate is required for adult wearing
apparel that falls within one of the testing exemptions in Sec.
1610.1(d). <a href="https://www.federalregister.gov/documents/2016/03/10/2016-04533/statement-of-policy-on-enforcement-discretion-regarding-general-conformity-certificates-for-adult">https://www.federalregister.gov/documents/2016/03/10/2016-04533/statement-of-policy-on-enforcement-discretion-regarding-general-conformity-certificates-for-adult</a>. Children's wearing
apparel that falls within Sec. 1610.1(d) must still issue a
certificate and claim the testing exemption.
---------------------------------------------------------------------------

Comment 61: Commenter (C56) requested that fabric tests based on
the International Organization for Standards (ISO) standards and
testing to EN597-1 (Furniture--Evaluation of Flammability of Mattresses
and Upholstered Bed Bases) be considered suitable for the certification
of mattresses subject to CPSC's flammability requirements. The
commenter suggested exempting silk from testing to 16 CFR part 1610,
Standard for the Flammability of Clothing Textiles.
Response 61: Testing required to support a valid certificate under
part 1110 is prescribed under the specific CPSC regulation to which the
product is subject. What constitutes valid testing to support a
required certificate, or qualifies as an exemption from the
requirements of a regulation, is outside the scope of this rulemaking.

N. Architectural Glazing Materials

Comment 62: Two commenters (C25, C30) argued that the NPR should
only apply to glazing materials and not to architectural products
containing glazing materials. Commenters stated that manufacturers of
the architectural products are already responsible for meeting the
testing and certification requirements under 16 CFR part 1201.
Additionally, these commenters asserted, the NPR would effectively
amend 16 CFR 1201.5 without complying with the process requirements of
the Administrative Procedure Act (APA).
Response 62: As noted, in 2008 Congress expanded the testing and
certification requirements for regulated products in section 14 of the
CPSA. The SNPR does not disrupt existing testing or certification
requirements regarding who must test or certify products in 16 CFR part
1201. Section 1201.5(a) states that manufacturers and private labelers
of glazing materials covered by part 1201 shall comply with the
requirements of section 14 of CPSA and regulations issued under it.
Like the existing part 1110, proposed Sec. 1110.7(a) states that
``[e]xcept as otherwise provided in a specific rule, ban, standard, or
regulation enforced by CPSC, for a finished product manufactured
outside of the United States that must be accompanied by a certificate
as set forth in Sec. 1110.5, the importer must issue a certificate
that meets the requirements of this part.'' Proposed Sec. 1110.7(b)
contains a similar statement regarding domestically manufactured
products. Thus, to the extent that finished products subject to part
1201 are imported for consumption or warehousing, or distributed in
commerce, they should continue to follow the requirement in Sec.
1205.5(a) regarding who should issue a certificate.

O. Bicycles

Comment 63: Two commenters (C40, C80) claimed that the bicycle
industry does not have the resources to meet the certificate
requirements and that there is no evidence that the additional burden
would improve safety. Specifically, the commenters claimed the bicycle
supply chain is not able to easily match bicycle components and
accessories with particular certificates. In addition, one commenter
(C40) suggested that certificates should not be required for bicycle
replacement parts.
Response 63: Section 14(a)(1) of the CPSA requires certification
for any product which is subject to a consumer product safety rule
under any regulation enforced by the Commission. Certification is only
required for component or replacement parts if they are sold as
finished products to consumers and if they are subject to a regulation.
If the component part itself is not required to be tested for
compliance with any part of a regulation, as distributed in commerce,
then no testing or certification is required.

P. Refrigerators

Comment 64: One commenter (C32) stated that the NPR would impose
substantial administrative costs on household refrigeration
manufacturers, yet few distributors or retailers request copies of
certificates of conformity. The commenter also requested that 16 CFR
part 1750 be included in a ``cleanup list'' for future legislative
reform, because most modern refrigerators do not use latching
mechanisms to hold the door closed.
Response 64: eFiling for refrigerators is justified by the
considerations discussed in section II of this preamble. The request
for refrigerators to be on a ``cleanup list'' for future legislative
reform is outside the scope of this rule. However, in 2019, the
Commission issued a statement of policy announcing that for household
refrigerators that bear a safety certification mark indicating
compliance with the Underwriters Laboratory Standard 60335-2-24,
Household and Similar Electrical Appliances--Safety--Part 2-24:
Particular Requirements for Refrigerating Appliances, Ice-Cream
Appliances and Ice-Makers, CPSC will not enforce the requirement that
every manufacturer issue and provide a GCC. 84 FR 37767 (Aug. 2, 2019).
CPCS's CATAIR, Tab B of Staff's SNPR Briefing Package, explains how
importers of refrigerators can file a ``disclaim'' with CBP to avoid an
error for not filing a certificate PGA Message Set.

Q. Fireworks

Comment 65: Two commenters (C31, C61) stated the requirements set
in the 2013 NPR are ``virtually impossible'' for fireworks, because
these products are not serialized or lot-controlled.
Response 65: Certain fireworks are subject to CPSC regulation and
must be certified under existing law, and those certificates must be
based on a test of each product or upon a reasonable testing program.
Certificate requirements are found in section 14 of the CPSA and part
1110, and have been in effect since 2008. We seek additional comment on
how regulated fireworks meet this requirement now and how they can meet
the eFiling requirement in the SNPR.
Analysis of Cost and Burden

R. Costs, Burden, the RFA and PRA

Comment 66: Several commenters (C14, C20, C32, C36, C40, C47, C55,
C75) stated that the Paperwork Reduction Act (PRA) and Initial
Regulatory Flexibility Analysis (IRFA) did not accurately estimate the
impact of the NPR on businesses, especially for large importers and
specific industries, and did not reflect publicly available business
information. One commenter (C49) suggested that the rule's requirements
would be costly or otherwise detrimental to small businesses and the
associated annual burden would be $27,500 per firm rather than the
estimated $275.
Two commenters (C39, C51) suggested that CPSC is not correctly
estimating the recordkeeping burden by failing to take into account a
realistic number of entries, IT costs for importers, and costs to
private labelers to implement new testing and certification processes.
One commenter (C41) stated that the proposed five-year paperwork
retention period is longer than the three-year requirement in some
current rules and is not supported by data. The commenter claimed that
the burden calculated for the GCC for the apparel industry does not
consider

[[Page 85776]]

retention of GCCs and supporting test reports.
Response 66: Tabs C and D of Staff's SNPR Briefing Package, and
sections VI and VII of this preamble, contain revised RFA and PRA
analyses for the revised part 1110 and the eFiling requirement. These
analyses can be more specific now that the IT solutions are developed
and have been tested. As explained in the updated analysis, the burden
of the SNPR consists of a marginal increase in recordkeeping for some
non-children's products from three to five years and an additional
eFiling requirement for importers of regulated consumer products. The
SNPR requires importers to eFile certificates each time a regulated
product is imported, but this burden is small.
CPSC conducted an eFiling Alpha Pilot in 2016 with importers and
brokers and determined the costs of eFiling were minimal. CPSC created
a Product Registry, described in section II.D.4 of this preamble, which
allows for one-time data entry for certificates that importers can
reference each time the product is imported, without reentering data.
The Product Registry also provides an IT solution for the storage and
management of certificate data. No technological system is required
other than a basic computer or laptop and an internet connection, which
are normal business capital expenditures. No technical skills are
required other than the ability to navigate the Product Registry
website and fill out a series of web forms. Larger firms may invest in
technology or processes to automate this process such as APIs or bulk
data uploads to further reduce time burden. The PRA analysis in section
VII of this preamble and Tab D of Staff's SNPR Briefing Package,
estimates the burden of eFiling, including the time and cost burden for
firms that may elect to automate data upload into the Product Registry.
As explained in Tab C of Staff's SNPR Briefing Package, CPSC does not
expect that the proposed rule would significantly impact small
manufacturers and importers. Over time, moreover, the new eFiling
requirement should reduce burden for importers who eFile compliant
certificate data. Staff anticipates that additional certificate data
will allow for better targeting of shipments with potentially hazardous
products. Importers who file compliant certificate data may see a
reduction in their risk scores, which may result in a reduced number of
shipments placed on hold and examined and shorter wait times associated
with exams.
Comment 67: A few commenters (C39, C42, C46, C79) expressed concern
that brokers and importers would have technical challenges implementing
the rule, leading to costs for infrastructure upgrades and programming/
software development. Commenters asserted that linking their IT systems
with the brokers' IT systems would cost between $30,000 and $500,000.
In addition, commenters stated that increasing the number of data
fields will incrementally increase the cost for the certifier and thus
consumers. The commenters also expressed concern that importers and
their supply chain partners will incur costs in creating new electronic
certificates.
Response 67: The commenters' concerns have been addressed by use of
the existing PGA Message Set structure and the creation of the Product
Registry, which can be used to create, store, and transmit
certificates. The only interface requiring more than basic technical
knowledge is the API interface, which CPSC is not mandating be used.
However, firms that do choose to use this function would experience
efficiency gains and time savings.
Comment 68: Several commenters (C33, C43, C61, C80) expressed
concern over the asserted complexity of filing certificates for
multiple products within a shipment and the resulting burden, delays,
duplication, and supply chain disruptions. Commenter (C21) stated that
CPSC is underestimating the numbers of shipments per importer and the
number of certificates required per shipment.
Response 68: As described in section II.D of this preamble, to
reduce cost and burden, CPSC developed the Product Registry, which
allows importers to enter certificates prior to filing entry. Importers
can reference a certificate stored in the Product Registry in a short
PGA Message Set at Entry each time the product is imported. CPSC tested
this concept in 2016 in the eFiling Alpha Pilot. During the eFiling
Alpha Pilot, multiple certificates were successfully filed for a single
entry. CPSC learned that importers that used the Product Registry were
able to re-use certificates multiple times, alleviating potential
burden from re-entering certificate information. The Commission's
burden estimate reflects this efficiency.
Comment 69: One commenter (C49) claimed that CPSC and Congress use
different definitions for small entities.
Response 69: CPSC applies the definitions for small businesses as
prescribed in the Small Business Regulatory Enforcement Fairness Act.
Additionally, CPSC uses the definition for Small Business Manufacturer
as found under section 14(i)(4) of the CPSA.
Comments Regarding Justifications for the Proposed Requirements

S. Alleged Rulemaking Defects

Comment 70: Many commenters (C14, C23, C35, C36, C39, C40, C46,
C61, C64, C71, C76) alleged that the NPR's proposal was burdensome and
unnecessary and that the Commission failed to identify sufficient
evidence that the eFiling proposal would enhance targeting of violative
products or improve safety.
Response 70: CPSC explained in the 2013 NPR that the CPSA allows
CPSC to require eFiling with CBP by rule, and that CPSC would use
certificate data to target noncompliant, imported consumer products.
See, e.g., 78 FR 28088-89. The preamble to this SNPR provides
additional detail of the efforts in outreach, education, pilots, study,
and infrastructure investment that have occurred over the last ten
years to refine how importers will file certificate data, provide
burden reduction options for importers, and demonstrate how CPSC will
use the data to target noncompliant shipments. CPSC has also updated
the burden estimate for this rule, demonstrating that eFiling for
importers that are compliant with existing certificate requirements
will not have a significant economic impact on industry. Finally, the
efficiencies gained by using technology will not only improve
enforcement of individual certificate violations, but also aid in the
identification of noncompliant, hazardous shipments. eFiling will allow
CPSC to use its staff assigned to ports more efficiently to focus on
examinations of noncompliant shipments.
Comment 71: A commenter (C71) stated that by establishing two types
of certificates (the GCC and CPC), the NPR goes beyond the
authorization of the CPSA.
Response 71: CPSC is implementing the testing requirements in
section 14 of the CPSA, which creates this distinction. CPCs for
children's products must be supported by third party testing, whereas
GCCs for non-children's products must be based on a test of each
product or a reasonable testing program; third party testing is not
required for GCCs. Other than the type of testing required to support
the certificate, all data elements on GCCs and CPCs are the same.
Comment 72: Several commenters (C21, C71, C50, C61) stated that the
proposed requirement to file certificates with CBP diverges from the
intent of Congress as expressed in CPSA section 14(g)(4) and poses a
substantial burden to importers.

[[Page 85777]]

Response 72: Section 14(g) sets forth minimum content requirements
that CPSC may implement and expand through rulemaking, and section
14(g)(4) expressly allows CPSC to require eFiling with CBP by rule. The
Certificate Study demonstrated that certifiers fulfill certificate data
requirements in a variety of ways; but to use certificate data for
algorithmic targeting, CPSC must standardize the presentation of this
information. Thus, CPSC is clarifying expectations for standardized
certificate data, which is consistent with CPSC's authority in sections
3 and 14 of the CPSA, and with notice and comment rulemaking under
section 553 of the APA.
Since 2013, moreover, CPSC has developed the Product Registry with
substantial input from importers that is on-going in the Beta Pilot, to
ease burdens on industry and assist in standardization of the format
and content of certificate data for imported products.
Additionally, since 2013 CBP completed ACE development as the
``single window'' for Federal agencies to collect required data at
entry. CBP has now implemented the PGA Message Set, which is attached
to an entry; CPSC will use this now well-developed method to receive
certificate data, as contemplated by the statutory framework for
imported products.
Comment 73: Many commenters objected to requiring certificates for
products that are either subject to a ban or have a testing exemption,
stating that CPSC does not have the authority to require certificates
for products that do not require testing. One commenter (C23) stated
that ``negative'' certificates would be especially complicated when
children's products have many component parts subject to different
rules, alleging that the CPSA does not authorize the CPSC to issue a
rule requiring a finished product certifier to list each component in a
children's product and require separate product safety rule
certification of each component part. Commenter C22 suggested that the
proposal would require certifiers to list every rule that a product is
not subject to, or risk enforcement. Two commenters (C41, C47) noted
previous CPSC guidance (Statement of Policy: Testing and Certification
of Lead Content in Children's Products, and Statement of Policy:
Testing of Component Parts With Respect To Section 108 of the Consumer
Product Safety Improvement Act) and an FAQ stating: ``If, however, your
children's product is wholly composed of components that satisfy the
determinations and/or satisfy the determinations on inaccessibility,
and there are no other applicable children's product safety rules, then
you do not have to issue a children's product certificate.''
Response 73: Section 14 of the CPSA requires that certificates list
all applicable rules, bans, standards, and regulations. Accordingly,
all finished product certificates, including children's products, must
list all applicable rules, bans, standards, and regulations. 15 U.S.C.
2063(a)(1)(B). The certificate is attesting that the product was tested
to these rules and passed. Where multiple rules apply, as may be the
case with children's products, for example, the certificate should list
all applicable rules; the testing information where testing was
required and successfully conducted under the listed rules; and any
exceptions or exemptions that apply under the listed rules.
CPSC recognizes several types of testing and/or certificate
``exceptions'' or ``exemptions.'' To address the issues raised by the
commenters, proposed Sec. 1110.11(c) is now prefaced with ``[u]nless
otherwise provided by the Commission,'' the certifier should replace
the lab place and date with the testing exclusion code. This phrase is
intended to encompass any existing or future Commission enforcement
discretion or other policy statements that provide testing or
certification guidance. Therefore, as stated in the quoted FAQ, the
Commission will not require certificates for products that are subject
to Commission enforcement discretion or are otherwise wholly exempt or
excluded from testing.
Importers will use CBP's ``disclaim'' feature for non-regulated
products within CPSC's jurisdiction and for products that are regulated
but do not require certification. CPSC's CATAIR explains how to file a
``disclaim'' in a PGA Message Set for products such as adult wearing
apparel and refrigerators that are not required to issue a certificate
based on the Commission's enforcement discretion. Using CBP's
``disclaim'' option reduces burden for importers by not requiring a
certificate and allows CPSC to capture data on why an importer did not
file the expected certificate data.
Tab B of Staff's SNPR Briefing Package, and the Commission's
website (<a href="https://www.cpsc.gov/eFiling">https://www.cpsc.gov/eFiling</a>) provide CPSC's CATAIR detailing
how these exemptions and exceptions are addressed by the eFiling
requirement, as well as a list of all exemption/exception codes being
tested during the Beta Pilot. The Product Registry will also assist
importers to understand the available testing exemption/exception codes
using drop down menus. CPSC encourages certifiers to review this
information and submit comments on the proposed implementation of this
requirement. Domestic manufacturers can also use this information to
understand certificate requirements and how testing exemptions or
exclusions should be noted on a certificate.
Finally, the 2013 NPR discussed the issues involved in certifying
to a ban, discussing that some bans do not remove an entire product
category from the market, rather, they ban certain hazardous product
characteristics. 78 FR 28080. The Commission's website contains a list
of product safety rules, bans, standards, and regulations that require
certification in a GCC.\19\
---------------------------------------------------------------------------

\19\ <a href="https://www.cpsc.gov/Business--Manufacturing/Testing-Certification/Lab-Accreditation/Rules-Requiring-a-General-Certificate-of-Conformity">https://www.cpsc.gov/Business--Manufacturing/Testing-Certification/Lab-Accreditation/Rules-Requiring-a-General-Certificate-of-Conformity</a>.
---------------------------------------------------------------------------

Comment 74: A commenter (C74) stated that certificates should be
required at manifest and provide only those elements included in the
importer security filing requirements.
Response 74: Manifest occurs at an earlier import stage than entry.
CBP has now finalized using the PGA Message Set to collect data
required by PGAs. The PGA Message Set is tied to filing CBP's entry.
Accordingly, CPSC will use this existing infrastructure to establish an
eFiling requirement for certificates.
Comment 75: Commenter C7 suggested requiring a full certificate at
customs entry would create differential treatment between imports and
domestically produced goods. Another commenter (C56) pointed out
Article 5.1.2. of the World Trade Organization's Technical Barriers to
Trade (TBT) Agreement, stating that conformity assessment procedures
should not be adopted or applied with the effect of creating
unnecessary obstacles to international trade, and should not be applied
more strictly than necessary to importers.
Response 75: The SNPR does not impose different testing or data
element requirements on certificates for imported products. Unless
otherwise provided by the Commission, all finished products or
substances regulated by CPSC are required to be tested and certified as
compliant, regardless of whether products are manufactured within the
United States or imported. Regarding the eFiling process, CPSC's
economic analysis demonstrates that for compliant importers, the PGA
Message Set requirement will not have a significant impact on small (or
large) importers, and thus the requirement should not create an
obstacle to trade.

[[Page 85778]]

Comment 76: The EU requested that the CPSC supply additional
information on the rationale for imposing third party testing
requirements for the flammability of children's clothing and apparel.
Response 76: The SNPR does not require third party testing of the
children's clothing and apparel standards set forth in 16 CFR part
1610. Rather, 15 U.S.C. 2063(a)(2) and 16 CFR part 1107 require third
party testing to all children's product rules. Part 1107 has been in
effect for more than 10 years.

IV. Description and Explanation of Proposed Revisions to Part 1110

Below we explain the basis for the SNPR to amend the current 1110
rule and describe the provisions of the current rule, proposed
revisions in the 2013 NPR, and how the 2023 SNPR either retains or
changes the 2013 proposals. Because of the number of changes, the
Commission proposes to strike and replace the existing 1110 rule in its
entirety, as described below.

A. Purpose and Scope (Sec. 1110.1)

Current rule: Existing Sec. 1110.1 describes the purpose and scope
of the rule, explaining that the rule limits the entities required to
issue certificates; specifies the content, form, and availability of
certificates; and specifies the form of electronic certificates. 16 CFR
1110.1(a). Existing Sec. 1110.1(b) explains that the rule does not
implement eFiling certificates with CBP under section 14(g)(4) of the
CPSA.
2013 NPR: The 2013 NPR proposed to increase the number of entities
responsible for issuing certificates, stating that the purpose was to
``specify'' the entities that must issue certificates. Proposed Sec.
1110.1(b) explained that the rule would implement section 14(g)(4) and
require certificates for imported products to be eFiled with CBP. 78 FR
28081. The proposed changes also would clarify which provisions in part
1110 apply to voluntary component part certificates.
2023 SNPR: The SNPR maintains the scope proposed in 2013, with non-
substantive editorial changes.

B. Definitions (Sec. 1110.3)

Current rule: This section of part 1110 defines ``electronic
certificate'' as ``a set of information available in, and accessible
by, electronic means that sets forth the information required by CPSA
section 14(a) and section 14(g) and that meets the availability
requirements of CPSA section 14(g)(3)'' and states that definitions of
section 3 of the CPSA and additional definitions in the CPSIA apply to
part 1110.
2013 NPR: The 2013 NPR added 13 new definitions to introduce
concepts and terms used in the 1107 and 1109 rules and to clarify the
requirements of part 1110. 78 FR 28081-82.
2023 SNPR: The SNPR maintains the additional terms proposed in the
2013 NPR, adds several more terms, and revises several definitions.
Newly defined terms include: ``eFiled certificate,'' to differentiate
an electronic certificate from a certificate that is submitted to CBP
in a PGA Message Set, and ``Product Registry,'' to describe the CPSC-
maintained repository for certificate data. The SNPR revises several
definitions to better describe the types of merchandise under CPSC's
jurisdiction, which includes not only consumer products, but also
hazardous substances. The SNPR replaces the term ``General Conformity
Certificate'' with ``General Certificate of Conformity,'' because the
latter is the statutory term.
The SNPR broadens the definition of ``importer'' to include any
entity CBP allows to be an importer of record (19 U.S.C.
1484(a)(2)(B)). Proposed Sec. 1110.3 also defines additional terms to
develop the revised definition of ``importer'' in the SNPR, such as
``importer of record,'' ``consignee,'' and ``owner or purchaser.''
These definitions are based on CBP's definitions, found in 19 CFR 101.1
and Customs Directive 3530-002A, with slight changes to reflect CPSC's
purposes.
The 2013 NPR proposed to codify the existing policy of placing the
obligation to test and certify consumer products and substances on the
IOR. In response to comments on the NPR and staff's experience with
enforcement, the SNPR broadens the definition of ``importer'' beyond
the IOR to allow a party familiar with the products with a beneficial
ownership in the goods to be the importer responsible for testing and
certification. The revised definition of ``importer'' includes the IOR,
consignee, owner, or purchaser, which are typically all parties that
have a financial interest in the products or substances being imported,
and effectively caused the consumer product to be imported into the
United States. The private labeler, which could certify a privately
labeled product, is also included under this proposed definition,
because a private labeler can be the consignee, owner, or purchaser.

C. Products Required To Be Certified (Sec. 1110.5)

Current rule: The current Sec. 1110.5 states what is an acceptable
form for certificates. In the existing rule, the Commission sought to
allow ``electronic certificates'' to ease the burden of placing paper
copies of certificates in a shipping container or box. Accordingly, the
existing rule explains that a certificate that is in hard copy or
electronic form and complies with all applicable requirements of part
1110 meets the certificate requirements of section 14 of the CPSA. The
existing rule states that the importer or domestic manufacturer must
also meet the underlying statutory requirements to support a
certificate, meaning the required testing and/or other bases to support
certification and issuance of certificates.
2013 NPR: The 2013 NPR proposed to revise Sec. 1110.5 to state
when a certificate is required, clarifying that only finished products
subject to a consumer product safety rule under the CPSA, or similar
rule, ban, standard, or regulation under any other law enforced by the
Commission, that are imported for consumption or warehousing, or are
distributed in commerce, need to be accompanied by a certificate. This
is a restatement of the statutory requirement. Use of the term
``finished product'' in the 2013 NPR clarified that component parts of
a consumer product are not required to be certified; the 1109 rule
allows for voluntary component part testing and/or certification, but
testing or certification of component parts not intended to be offered
for sale as finished products is never required. 78 FR 28082-83.
The 2013 NPR also explained when banned products are required to be
certified, stating that bans ``generally remove the subset of products
with hazardous characteristics, but still leave some products subject
to CPSC regulation. In sum, manufacturers of products in a category
where a subset of the products are subject to a ban must still issue
certificates.'' 78 FR 28082. The 2013 NPR provided a list of bans for
which a GCC certifying compliance is required. 78 FR 28083. This list
is also maintained on CPSC's website at <a href="https://www.cpsc.gov/Business--Manufacturing/Testing-Certification/Lab-Accreditation/Rules-Requiring-a-General-Certificate-of-Conformity">https://www.cpsc.gov/Business--Manufacturing/Testing-Certification/Lab-Accreditation/Rules-Requiring-a-General-Certificate-of-Conformity</a>.
2023 SNPR: The SNPR retains proposals in the 2013 NPR clarifying
that a certificate is required only when: (1) the product is a finished
product; (2) the product is subject to a consumer product safety rule
under the CPSA, or similar rule, ban, standard, or regulation under any
other law enforced by the Commission; and (3) the product is imported
for consumption or warehousing, or is distributed into commerce.

[[Page 85779]]

D. Who Must Certify Finished Products (Sec. 1110.7)

Current Rule: Section 1110.7 of the existing rule states that,
except as otherwise provided in a specific standard, for products
manufactured outside the United States the importer is required to
certify the product and provide a certificate, as required by section
14(a) of the CPSA. Certificates must be available to the Commission as
soon as the product is available for inspection in the United States.
For products manufactured in the United States, the manufacturer must
certify products and provide the required certificate. Certificates
must be available prior to the introduction of the product or shipment
into domestic commerce.
2013 NPR: Section 1110.7 of the 2013 NPR continued to require that,
unless a specific rule states otherwise, importers certify imported
products, except for products that are delivered directly to consumers
in the United States, such as products purchased through an internet
website. For products delivered directly to a consumer, the Commission
proposed that the foreign manufacturer be required to issue a
certificate, unless the product bears a private label, and then the
private labeler would be required to issue a certificate. Thus, the
2013 NPR would have placed on a private labeler the responsibility for
ensuring testing and certification of privately labeled products,
either by testing and certifying the product, or by ensuring that the
manufacturer has done so. The proposed revision clarified that the
consumer would not typically be responsible for certifying a product,
even if the consumer could technically meet the definition of an
``importer'' under a direct-purchase scenario. 78 FR 28083-84.
For finished products manufactured in the United States that are
required to be certified, the 2013 NPR maintained the requirement that,
unless a specific rule requires otherwise, a manufacturer must issue
the certificate. But, as with imported products, the 2013 NPR placed
testing and certification responsibility for domestically manufactured,
privately labeled products on the private labeler. The 2013 NPR allowed
private labelers to continue to rely on a manufacturer's certification
if they choose to do so and follow the requirements in part 1109. Id.
2023 SNPR: For imported consumer products that require testing and
certification, the SNPR retains requirements from the existing rule,
rather than the changes proposed in the 2013 NPR. The SNPR requires
that, unless a specific rule states otherwise, only importers, as newly
defined, must issue a certificate for imported products. However, a
private labeler could assume responsibility for certifying an imported
product under the SNPR, because a private labeler would fall within the
definition of a consignee, owner, or purchaser of the goods under the
new importer definition proposed in Sec. 1110.3.
For domestically manufactured finished products, the SNPR maintains
the 2013 NPR proposal that, unless otherwise required in a specific
rule, the manufacturer must issue the certificate, except for consumer
products or substances that are privately labeled. When a product is
privately labeled, a manufacturer name does not appear on the product.
Accordingly, for such products, placing responsibility on the private
labeler is both pragmatic and appropriate. However, the SNPR proposes
to allow private labelers to continue to rely on a manufacturer's
testing or certification if they choose to do so. Importantly, if a
manufacturer's name appears on a product, the product is not privately
labeled under the definition in section 3 of the CPSA, 15 U.S.C.
2052(a)(12), and the manufacturer would be required to test and certify
the product.
The SNPR moves the requirement regarding the availability of
certificates for imports and domestic products, found in Sec.
1110.7(c) of the existing rule, to proposed Sec. 1110.13.

E. Certificate Language and Format (Sec. 1110.9)

Current Rule: Section 1110.9 of the existing rule provides that
certificates may be in hard copy or electronic form and must be
provided in English but also may be provided in any other language.
2013 NPR: The 2013 NPR maintained the two requirements in the
existing rule with minor edits. The 2013 NPR continued to allow a broad
range of formats for electronic certificates, as long as the
certificate is identified by a unique ID and can be accessed online via
a URL or other electronic means. The 2013 NPR proposed that the unique
ID be ``identified prominently on the finished product, shipping
carton, or invoice.'' The 2013 NPR discussed that experience with
electronic certificates had shown that they can be effective when they
are easily accessible. 78 FR 28084-85.
The 2013 NPR proposed that electronic certificates be available
without password protection, stating that the number of manufacturers,
private labelers, and importers that certify products could make the
maintenance of password information burdensome on CPSC and diminish the
efficiencies achieved by allowing electronic certificates. 78 FR 28085.
The 2013 NPR also clarified that electronic certificates, the URL or
other electronic means, and the unique ID must be accessible to the
Commission, CBP, distributors, and retailers ``on or before the date
the finished product is distributed in commerce.'' Id.
Finally, the requirements for electronic certificates in the 2013
NPR only applied to: products manufactured in the United States;
foreign-manufactured products that are delivered directly to a consumer
in the United States; certificates furnished to retailers and
distributors; and imported finished products after importation, such as
when requested by CPSC or CBP. 78 FR 28084. The 2013 NPR specifically
excluded certificates filed with CBP from the electronic certificate
requirements in this section, because certificates eFiled with CBP
would likely require different formatting based on CBP's system of
records. Id.
2023 SNPR: The SNPR retains most of the language proposed in the
2013 NPR with several changes for clarity. Proposed Sec. 1110.9 (a)
states that an eFiled certificate must be in English. Certificate data
eFiled in an IT system built by CBP, or uploaded into CPSC's Product
Registry, must be in English based on system design. Proposed Sec.
1110.9 (a) provides that a hard copy or electronic certificate must be
in English, but may also contain the same content in any other
language.
Proposed Sec. 1110.9(b) clarifies the formats for eFiled and for
hard copy and electronic certificates. The SNPR proposes that an eFiled
certificate must meet the requirements in proposed Sec. 1110.13(a),
and that certificates furnished to retailers, distributors, or to CPSC
pursuant to Sec. 1110.13(b) and (c) may be provided in hard copy or
electronically.
Proposed Sec. 1110.9(c) describes the format for the electronic
certificates described in Sec. 1110.13(b) and (c), which are used to
furnish a certificate to retailers or distributors, or to CBP or CPSC
upon request. Based on the agencies' IT development and comments
received, the SNPR removes the provision that an electronic certificate
must not be password protected. eFiled certificates will be filed into
a government IT system with appropriate protections. However, if an
importer provides a password protected electronic certificate to CPSC
or CBP, the password must be provided to the relevant agency at the
same time.

[[Page 85780]]

F. Certificate Content (Sec. 1110.11)

Current Rule: This section of the existing rule identifies the
statutorily required seven data elements that must be present on all
certificates: (1) information identifying the product covered by the
certificate; (2) a list of all applicable rules for which the product
is being certified; (3) the name, full mailing address, and telephone
number of the importer or domestic manufacturer certifying the product;
(4) the name, email address, full mailing address, and telephone number
of the individual maintaining records of test results; (5) the date
(minimally, the month and year) and place (including city and state,
country, or administrative region) of manufacture; (6) the date and
place (including city and state, country, or administrative region)
where the product was tested; and (7) the name, full mailing address,
and telephone number of the laboratory that conducted any required
third party testing.
2013 NPR: The 2013 NPR proposed to clarify and expand upon the
existing seven data elements and to add three new data elements that
would assist in identifying the products covered by the certificate. 78
FR 28085-88. It clarified that additional identifying information for
products may be included on a certificate, such as UPCs and GTINs. 78
FR 28085. The NPR allowed more than one product on a certificate,
provided they were created at the same factory and relied upon the same
testing. Id. The 2013 NPR also proposed to modify certificate content
requirements to allow for certificates to cover finished products or
component parts. Accordingly, the NPR proposed to require finished
product certificates to list all applicable rules, while component part
certificates would list only those rules for which the component part
is being certified (because certifiers of component parts can choose
which standards to test and certify to, and they may not know all of
the standards that eventually may apply to the component part when it
is integrated with a finished product). 78 FR 28086.
The three proposed new content requirements for certificates were
date of initial certification, scope of the certificate, and
attestation certifying compliance. The existing rule requires the date
of initial certification, but it only applies to electronic
certificates. Proposed Sec. 1110.11(a)(2) of the NPR sought to ensure
that all certifiers are using the same date on certificates. 78 FR
28086. Proposed Sec. 1110.11(a)(3) sought to require the scope of the
finished product or component part for which the certificate applies,
so that CPSC can better match a certificate to a product. 78 FR 28086.
Finally, to educate certifiers of their legal obligations, proposed
Sec. 1110.11(a)(10) required an attestation certifying compliance
indicating that the information provided by the certifier is true and
accurate. 78 FR 28087.
The 2013 NPR also proposed in Sec. 1110.11(b), (c), and (d), to
describe more fully the requirements for certificate formats. 78 FR
28088. Proposed Sec. 1110.11(b) would allow, but not require, the
certifier to include a URL or other electronic means on the
certificate, along with identification of the custodian of records, to
allow for electronic access to supporting records such as test records.
Proposed Sec. 1110.11(c) described what certifiers must do when a
product is subject to more than one consumer product safety rule, and
the certifier is claiming a testing exception for some, but not all, of
the applicable rules. Proposed Sec. 1110.11(d) clarified that although
each applicable rule must be listed on a certificate, finished product
certifiers are not required to conduct duplicative third party testing
for any rule that refers to or incorporates fully another applicable
consumer product safety rule or similar rule, ban, standard, or
regulation under any other law enforced by the Commission. 78 FR 28088.
2023 SNPR: The SNPR requires the seven statutory data elements in
the existing rule, and includes only one of the three additional
requirements proposed in the 2013 NPR--attestation. However, the SNPR
provides additional detail on the required data elements. Below we
describe each data element proposed in Sec. 1110.11(a) of the SNPR.
Product Identification (Sec. 1110.11(a)(1)): The SNPR proposes to
require identification of the finished product covered by the
certificate, including at least one unique ID from a list of seven
options and a sufficient description to match the finished product to
the certificate. Certifiers may provide optional additional IDs to
assist with product identification. The SNPR would clarify that
``identification'' means a unique ID is necessary for eFiling, so that
certificates can be better tracked in the Product Registry and RAM.
CPSC expects that it would be easier for importers to provide a unique
ID that already exists for the product as allowed by the SNPR, instead
of having certifiers manage an additional identifier assigned by CPSC
but invites comment on this question.
The SNPR also proposes to expand the term ``description'' from the
2013 NPR to mean a ``sufficient description to match the finished
product to the certificate.'' Currently, the description in a
certificate is sometimes insufficient to enable CPSC staff to determine
whether the certificate describes the product being examined.
List of Applicable Rules (Sec. 1110.11(a)(2)): The SNPR would
retain without change the requirement in the existing rule and the 2013
NPR to provide a list of all applicable rules to which the product is
being certified. The eFiling system makes this requirement easier for
certifiers because CPSC will provide a standardized list of all rules,
each assigned a code. When eFiling certificate data, the certifier
would only need to select from these codes, either in the Full Message
Set or in the Product Registry.
Identification of Certifier (Sec. 1110.11(a)(3)): The SNPR would
maintain the requirement from the 2013 NPR to identify the party
certifying compliance of the finished product(s), including the party's
name, street address, city, state or province, country or
administrative region, electronic mail (email) address, and telephone
number. Adding a more specific street address interprets the statutory
requirement for a ``full mailing address,'' and would assist staff in
distinguishing facilities or locating certifiers for site visits. If a
certifying party's physical location does not have a street address,
then a location identification typical of the country of origin, or a
GPS coordinate, is also permissible. We also retain the proposal to
include an email address, which is intended to improve communication
between CPSC and the certifying party, particularly across time zones.
Contact for Records (1110.11(a)(4)): The SNPR proposes to maintain
the requirement from the existing rule and 2013 NPR to provide the
identity and contact information for the individual maintaining records
of test results. As with the certifier's contact information, the SNPR
describes in more detail the concept of a ``full mailing address'' to
include ``street address, city, state or province, country or
administrative region, electronic mail (email) address, and telephone
number.'' The 2013 NPR also referenced the recordkeeping sections of
the Code of Federal Regulations that apply to GCCs and CPCs, which the
SNPR maintains.
The SNPR clarifies that the individual maintaining records may be a
position title, provided that this position is always staffed and
responsive to CPSC's requests. This change is in response to public
comments concerned that the individual maintaining the records of test
results may leave the company or

[[Page 85781]]

otherwise be unavailable, and that a position title would provide
continuity.
Manufacture Date and Place (1110.11(a)(5)): The SNPR would maintain
the requirement from the existing rule to provide the date when the
finished product(s) were manufactured, produced, or assembled. The
first date of a batch run is the date of manufacturing. The SNPR also
maintains the statutory requirement from the existing rule to provide
the place where the finished product(s) were manufactured. The SNPR
aligns the manufacturer information with the other data elements
regarding contact information, proposing to require the manufacturer
name, street address, city, state or province, country or
administrative region, email address, and telephone number where the
finished product(s) were manufactured, produced, or assembled. This
requirement is consistent with section 14(g)(1) of the CPSA which
requires ``each party's name, full mailing address, [and] telephone
number.'' CPSC proposes to require additional manufacturer detail, for
eFiling in particular, because staff has experienced situations where
it is difficult to distinguish between multiple firms with similar
addresses and contact the correct manufacturer. If a location does not
have a street address, a location identification typical of the country
of origin or a GPS coordinate is permissible.
Test Date and Place (1110.11(a)(6)): The SNPR would maintain the
requirement from the existing rule to provide the date when the
finished product(s) were tested for compliance. The SNPR, however,
amends this requirement to clarify that the required date is the most
recent date of testing. This change is to aid CPSC in assessing the
validity and integrity of a certificate, and to promote consistency
across certificates for CPSC and certifiers, particularly where
laboratory testing is done over several days.
The SNPR maintains the requirement from the existing rule to
provide the place where the finished product(s) were tested for
compliance. The SNPR standardizes the contact information required,
including the name of each third party conformity assessment body or
other party on whose testing the certificate depends, and the street
address (or locally comparable location identification), city, state or
province, country or administrative region, email address, and
telephone number. The SNPR requires an email address, so staff has
another means of contacting the testing laboratory.
Attestation (Sec. 1110.11(a)(7)): The SNPR proposes to maintain
the requirement from the 2013 NPR to provide an attestation certifying
compliance, indicating that the information provided by the certifier
is true and accurate and that the certified product complies with all
rules, bans, standards, or regulations applicable to the product under
the CPSA or any other Act enforced by the Commission. We note that the
Product Registry contains a certifier attestation and also allows an
importer to designate third parties that can enter certificate
information and certify on behalf of the importer, if such permission
is granted. The importer remains responsible for the information
provided to CPSC, making an attestation by each party entering
information important to maintain accountability for the information.
The SNPR does not include two proposals from the 2013 NPR: the date
of initial certification and the scope of the finished product(s)
covered by the certificate. Based on revisions to the identification of
the product, and manufacture and test dates, the proposed new fields
are now unnecessary because CPSC will know the date of laboratory
testing and the date the certificate was filed. Similarly, the proposed
product identification requirement of at least one unique ID and a
``sufficient description to match the finished product to the
certificate'' makes it unnecessary to have a statement of the scope of
the finished product(s). However, the SNPR would allow certifiers to
provide production start and end dates and lot numbers as optional
fields.
Furthermore, the SNPR retains the proposal in Sec. 1110.11(b) of
the 2013 NPR for a certificate to optionally include a URL or other
electronic means, along with the identification of the custodian of
records, to allow for electronic access of supporting records, such as
test records. If certifiers provide this information, staff can more
easily confirm the veracity of the certificate. The SNPR contains minor
clarifications that specify the sections of the CFR containing the
recordkeeping requirements for supporting records.
The SNPR also retains the proposal in Sec. 1110.11(c) of the 2013
NPR for certifiers to list all claimed testing exclusions, instead of
providing the date and place where the product was tested for
compliance. The Product Registry lists all available exclusions for
each rule, streamlining and standardizing how to record these
exclusions. These exclusions will also be maintained on CPSC's website
for use in a Full PGA Message Set. The SNPR does not keep the proposal
to include the basis for each exclusion, because this is resolved by
stating the testing exclusion. Many certifiers already list their
testing exclusions, so this requirement will standardize the process
for all certifiers. Furthermore, this requirement would only be
relevant when the product is subject to a product safety rule. If no
product safety rule or similar rule, ban, standard, or regulation
applies, or the product is subject to enforcement discretion (such as
adult wearing apparel relying on Sec. 1610.1(d), which only requires a
disclaim), then no certificate would be required.
Finally, the SNPR retains the proposal in Sec. 1110.11(d)
regarding duplicative testing. The SNPR states that certifiers are not
required to conduct duplicative testing for any rule that refers to, or
incorporates fully, another applicable consumer product safety rule or
similar rule, ban, standard, or regulation under any other law enforced
by the Commission. This proposal is maintained for the same reasons
stated in the 2013 NPR, to reduce burden for certifiers.

G. Certificate Availability (Sec. 1110.13)

Current Rule: Section 1110.13(a) of the existing rule restates the
statutory requirement in section 14(g)(3) of the CPSA that certificates
must ``accompany'' each product or product shipment and be furnished to
distributors and retailers. Section 1110.13(a)(1) and (2) explains how
electronic certificates satisfy the ``accompany'' and ``furnish''
requirements of that section, and Sec. 1110.13(b) states that an
electronic certificate must have a means to verify the date of its
creation or last modification.
2013 NPR: The 2013 NPR proposed to move the requirements for
electronic certificates to proposed Sec. 1110.9(c), while proposed
Sec. 1110.13 addressed when certificates had to ``accompany'' a
product or product shipment, be ``furnished'' to retailers or
distributors, and be ``furnished'' to CPSC and CBP. The 2013 NPR also
proposed that certificates be eFiled with CBP prior to arrival of an
imported product, as authorized in section 14(g)(4) of the CPSA. 78 FR
28088.
Proposed Sec. 1110.13(a)(1) of the 2013 NPR stated that for
imported products to meet the ``accompany'' requirement, importers must
eFile certificates with CBP, either when the entry is filed, or when
the entry and entry summary are

[[Page 85782]]

filed, if they are filed together.\20\ The NPR explained that only
finished products would require certification, and that certificates
filed in the form of data elements would allow more efficient
targeting. 78 FR 28089. The 2013 NPR acknowledged that, at that time,
CBP was not yet able to collect PGA data. 78 FR 28089.
---------------------------------------------------------------------------

\20\ An entry summary (CBP Form 7501) must be filed within 10
days of the cargo's release from CBP custody or within 10 working
days after entry of the merchandise and estimated duties deposited.
---------------------------------------------------------------------------

Proposed Sec. 1110.13(a)(2) of the 2013 NPR required that for
finished products manufactured domestically to meet the ``accompany''
requirement, the finished product certifier must make the certificate
available for inspection by CPSC on or before the date the finished
product is distributed in commerce. 78 FR 28089.
Proposed Sec. 1110.13(a)(3) of the 2013 NPR stated that for
imported finished products that are required to be certified and that
are delivered directly to a consumer in the United States, the finished
product certifier could either eFile the certificate with CBP, or they
could make the certificate available for inspection by CPSC on or
before the date the finished product is distributed in commerce. In the
case where no entry is filed, a finished product certifier could meet
the ``accompany'' requirement either by placing a hard copy of the
certificate in the box with the product or by following the
requirements for an electronic certificate. 78 FR 28089.
Proposed Sec. 1110.13(b) of the 2013 NPR restated the statutory
requirement in section 14(g)(3) of the CPSA that finished product
certificates be furnished to distributors and retailers. Proposed Sec.
1110.13(c) of the NPR added a new section reflecting the requirement in
section 14(g)(3) that certificates must be furnished to CPSC and CBP
upon request. The proposal states that certificates be made available
immediately upon request by the CPSC or CBP. The preamble to the 2013
NPR defined the term ``immediately'' to mean ``within 24 hours,'' as it
has been interpreted by CPSC in other rules. 78 FR 28089.
2023 SNPR: The SNPR retains some of the 2013 NPR's proposals and
amends others. Now that the IT solutions are available and more fully
developed, proposed Sec. 1110.13(a) in the SNPR points to a CPSC-
specific CATAIR and Product Registry that contain the IT solutions for
eFiling. Thus, for example, the SNPR does not retain a separate
``accompany'' requirement for imported finished products that are
delivered directly to a consumer in the United States, but rather
provides for collecting these certificates electronically.
Like the 2013 NPR, proposed Sec. 1110.13(a) explains that a
finished product certificate must accompany each finished product or
finished product shipment required to be certified pursuant to Sec.
1110.5. Additionally, Sec. 1110.13(a) requires that each certificate
describe a single product. One product per certificate allows the RAM
to conduct risk analysis on unique products in a shipment, which allows
better targeting of potentially violative products and avoids delaying
delivery of products in a shipment that do not warrant examination.\21\
---------------------------------------------------------------------------

\21\ See, for example, Sec. 1107.23, which explains a
``material change'' to a children's product. Products that are not
the same in all material respects cannot be on the same certificate.
---------------------------------------------------------------------------

Proposed Sec. 1110.13(a)(1) of the SNPR states that GCC or CPC
data elements for an imported product must be eFiled in ACE at the time
of entry filing, or entry summary, if both are filed together, and as
provided in CPSC's CATAIR (and discussed in Tab B of the Staff SNPR
Briefing Package). The requirement applies to all imported finished
products subject to a CPSC regulation, including de minimis shipments
and products imported from an FTZ. The SNPR also explains that for
finished products that are imported by mail, the finished product
certifier must enter the required GCC or CPC data elements into CPSC's
Product Registry prior to the product or substance arriving in the
United States.
Proposed Sec. 1110.13(b) of the SNPR maintains the statutory
requirement from the 2013 NPR to ``furnish'' a required CPC or GCC to
each distributor or retailer. Proposed Sec. 1110.13(c) of the SNPR
maintains the statutory requirement to make certificates available for
inspection immediately upon request by CPSC or CBP. To be clear
regarding the expectation, the SNPR proposes in the regulation text
that ``immediately'' means within 24 hours. The 2013 NPR stated this in
the preamble.

H. Legal Responsibility for Certificate Information (Sec. 1110.15)

Current Rule: Current Sec. 1110.15 states that another entity may
maintain an electronic certificate platform, but the certifier is still
responsible for ensuring its validity, accuracy, completeness, and
availability.
2013 NPR: The 2013 NPR maintained the requirement in the existing
rule with slight edits. 78 FR 28090.
2023 SNPR: Proposed Sec. 1110.15 of the SNPR maintains the NPR
requirement, but proposes that the entity that maintains an electronic
certificate platform and enters the requisite data into U.S. Government
systems on behalf of the certifier may also certify the product(s) on
the certifier's behalf. This addition accommodates diverse
relationships between certifiers and their trade partners to better
facilitate trade. The SNPR maintains accountability for certifiers, who
are ultimately responsible for testing and certification. Certifiers
will have the ability in the Product Registry to manage permissions for
trade partners to enter data and/or to certify products, including
managing the roles of specific individuals who enter data or certify
products on the certifier's behalf. Certifiers should exercise due
diligence if they allow another entity to certify on their behalf.

I. Recordkeeping Requirements (Sec. 1110.17)

Current Rule: The current rule does not contain recordkeeping
requirements.
2013 NPR: The 2013 NPR proposed a new Sec. 1110.17 to establish
recordkeeping requirements. 78 FR 28090. For CPCs, the 2013 NPR
summarized the existing recordkeeping requirements in other rules that
apply to CPCs, including Sec. Sec. 1107.26, 1109.5(g), and 1109.5(j),
all of which have a five-year record retention period based on the
applicable statute of limitations. The 2013 NPR proposed to align the
record retention requirements for GCCs with those for CPCs, such that
certifiers would maintain the certificate and supporting test records
for at least five years. 78 FR 28090. The NPR explained that
maintenance of such records may, for example, aid both the certifier
and the Commission in the event of an investigation or product recall.
Id.
2023 SNPR: Proposed Sec. 1110.17 of the SNPR maintains the
recordkeeping requirement from the 2013 NPR. CPCs have a five-year
record retention period based on the 1107 and 1109 rules and the
statute of limitations for enforcement.

J. Component Part Certificates (Sec. 1110.19)

Current Rule: The current rule does not address component part
certificates.
2023 NPR: Proposed Sec. 1110.19 of the 2013 NPR added a new
section to clarify for stakeholders which sections of the 1110 rule
apply to voluntary component part certificates. If a finished product
certifier chooses to rely on a component part certificate, the
component part certificate must meet the requirements

[[Page 85783]]

of the 1109 rule, as well as the form, content, and availability
requirements described in the 2013 NPR. 78 FR 28090.
2023 SNPR: The SNPR's proposal retains the component part
certificate requirements from the 2013 NPR.

V. Effective Date

The APA generally requires that the effective date of a rule be at
least 30 days after publication of the final rule. 5 U.S.C. 553(d). The
Commission proposes that a final rule for revisions to 16 CFR part 1110
will become effective 120 days after publication in the Federal
Register. Although the SNPR makes few changes in the certificate
requirements for domestic manufacturers, importers will require this
time to onboard with CPSC's Product Registry and upgrade software to
send a PGA Message Set to their broker for eFiling.
The proposed 120-day effective date is consistent with the
experience of eFiling Beta Pilot participants that advised on IT
solutions and initially tested the eFiling system. CPSC expects that
once software is updated to submit entry data to CBP, gaining login
credentials into the Product Registry will take less than 10 minutes
and training will take less than two hours. CPSC seeks comment on the
proposed effective date and intends to consider the experience of all
Beta Pilot participants when considering a final effective date.

VI. Initial Regulatory Flexibility Analysis

The Regulatory Flexibility Act (RFA) requires that agencies review
a proposed rule for the rule's potential economic impact on small
entities, including small businesses, unless the agency certifies that
the rule will not, if promulgated, have a significant economic impact
on a substantial number of small entities. 5 U.S.C. 603. Tab C of the
Staff's SNPR Briefing Package, which we summarize in this section,
assesses the impact of the SNPR on small businesses. Based on staff's
analysis, the Commission certifies that the proposed rule will not, if
promulgated, have a significant economic impact on a substantial number
of small entities.
Staff assesses that firms affected by the SNPR import or
domestically manufacture products that fall under numerous North
American Industry Classification System (NAICS) codes and HTS
codes.\22\ Using these guidelines, staff estimates that as many as
43,061 small firms import regulated non-children's consumer products
and substances annually, and will be required to eFile GCCs, while
211,148 firms annually import regulated children's products and would
be required to eFile CPCs.
---------------------------------------------------------------------------

\22\ The full list of HTS codes can be found in the Appendix to
Tab D of Staff's SNPR Briefing Package.
---------------------------------------------------------------------------

A. Compliance, Reporting, and Recordkeeping Requirements of the SNPR

The SNPR would impose a new reporting burden on importers who must
eFile certificates at the time of entry, or at entry summary, if both
entry and entry summary are filed together. The SNPR would also impose
a minor additional recordkeeping burden for GCCs, which is the
mandatory retention of records for two additional years in most cases,
from three to five years. To achieve compliance with the SNPR's eFiling
requirements, small importers of products requiring either a GCC or CPC
could possibly incur costs from several activities including: (1) the
costs of inputting and filing certificate information with CBP through
a PGA Message Set; (2) the one-time conversion costs of updating
technology; and (3) broker fees.
Because of the creation of CPSC's Product Registry, CPSC does not
expect small businesses to need to invest in technology to eFile
certificates. A small business only needs a laptop with a hard drive
for storing records and an internet connection to enter certificates
into the Product Registry. Larger importers and manufacturers who
import larger volumes of regulated consumer products and substances
would be more likely to invest in technology to enable batch uploads of
data into the Product Registry, or to create their own registries. But
because the SNPR does not require a technology investment, and because
small importers are unlikely to need to invest in new technology, we do
not forecast technology costs in this burden analysis.
The Commission anticipates that 95 percent of importers will choose
to use the Product Registry, and this estimate holds for small
importers. When using the Product Registry, the Reference PGA Message
Set is a shortened data set that only requires a few data elements,
including the Unique ID for the certificate stored in CPSC's Product
Registry each time the associated product is imported. Accordingly, if
importers use the Product Registry and a Reference PGA Message Set at
the time of entry, 95 percent of importers will bear an additional 20
second burden per Reference Message Set filed during entry, while five
percent of importers will bear a one minute burden per Full Message Set
filed.
CPSC does not expect the SNPR to change the number of firms that
chose to use brokers. Brokers typically charge a fee for each entry
line that is filed. Through discussions with importers and brokers,
Commission staff understands that this fee is greatly dependent on the
number of entry lines filed, and the complexity of the PGA Message Set.
The latter factor is greatly reduced by importers electing to use the
Product Registry. By using the Product Registry, each time the same
product is imported the importer can streamline eFiling by supplying
the Unique ID for the associated product certificate to the broker.
Tab C of Staff's SNPR Briefing Package explains staff's procedure
in classifying small businesses using NAICS codes. The Commission
requests comment on staff's procedure, including methods of obtaining
more precise estimates of percentages of small businesses belonging to
a given NAICS, how many small firms covered by the SNPR fall within
that NAICS, and how many certificates these firms may create.
Table 1 in Tab C of Staff's SNPR Briefing Package shows an
estimated 43,061 small businesses that will need to eFile GCCs with CBP
and keep records for certificates and supporting information. Staff
estimates that the net cost of the SNPR's additional burdens on small
suppliers of general use products is $611,089. On average, each small
business will spend approximately $14 ($611,089/43,061 [ap] $14) on the
SNPR's new requirements. This can be described as the cost of eFiling
these certificates, with a small increase in the time cost of
recordkeeping each certificate.
Table 2 in Tab C of Staff's SNPR Briefing Package shows that an
estimated 211,148 small businesses will need to eFile CPCs with CBP.
The total additional cost to eFile for children's products suppliers is
$922,934 annually. This means on average, that each small business will
spend approximately $4 ($922,934/211,148 [ap] $4) annually to comply
with the SNPR. Note that the five-year recordkeeping requirement for
children's products is consistent with the existing requirements of 16
CFR part 1107. Therefore, the additional burden that the SNPR imposes
on small importers supplying children's products is that of eFiling.
Except for the potential for

[[Page 85784]]

some small private labelers to need to test and certify privately
labeled children's products, domestic manufacturers will have no change
in burden pursuant to the SNPR.
For the $18 per firm costs (assuming both a $14 cost per firm for
GCCs and $4 per firm for CPC impacts) to be greater than the one
percent threshold that indicates a significant burden, a firm's
revenues would have to be less than $1,800 per year. We seek comment on
the average annual revenues of small businesses within the impacted
industries, as well as on alternative industry classifications that we
should consider when classifying the relevant industry for SBA
purposes.

B. Alternatives for Reducing the Adverse Impact on Small Businesses

Instead of the proposals in the SNPR, CPSC considered the
alternatives of making the eFiling of certificates at entry voluntary
rather than mandatory, and requiring PDF submissions of certificates
rather than eFiling certificates.
Allowing, rather than requiring, certificates for imported products
to be eFiled at entry would still require certificates to be made
available for examination upon request, as it is now. Allowing, instead
of requiring, certificates to be eFiled at entry could reduce the
burden on small businesses, but it would not enhance the Commission's
ability to target shipments for examination by using the additional
certificate data elements collected via eFiling and to verify the
accuracy of certificates. Noncompliant firms likely would not choose to
eFile certificates, thwarting CPSC's ability to identify noncompliant
products using algorithms and decreasing the accuracy and capabilities
of algorithms that can learn based on eFiled data.
The alternative of requiring PDF submissions of certificates, to be
uploaded into CBP's Document Image System, would not enhance the
Commission's ability to target shipments for examination by using the
additional certificate data elements collected via eFiling. It is
cumbersome to extract data from PDF files for targeting purposes, and
PDF files require a relatively large amount of storage space to
maintain, particularly compared to isolated data elements.

C. Request for Comment

Based on staff's analysis, we conclude that the additional burden
imposed by the SNPR is small when compared to one percent of the
revenue for small firm typical of its industry. The SNPR does not
change small firms' statutory obligations to certify that their
products meet applicable safety standards. The SNPR adds a minor burden
of an additional two years of recordkeeping for GCCs, and adds a
reporting burden for importers to eFile certificates with CBP using the
PGA Message Set. These additional burdens add approximately $1.5
million in cost to the industry, which is small when compared to the
respective 43,000 and 211,000 suppliers of non-children's and
children's products.
Small businesses that believe they would be affected by the SNPR
are encouraged to submit comments. The comments should be specific and
describe the potential impact and its magnitude, and the industry in
which the firm resides.

VII. Paperwork Reduction Act

This SNPR contains information collection requirements that are
subject to public comment and review by the Office of Management and
Budget (OMB) under the PRA. 44 U.S.C. 3501-3521. The PRA requires an
agency to publish the following information:
[ssquf] a title for the collection of information;
[ssquf] a summary of the collection of information;
[ssquf] a brief description of the need for the information and the
proposed use of the information;
[ssquf] a description of the likely respondents and proposed
frequency of response to the collection of information;
[ssquf] an estimate of the burden that will result from the
collection of information; and
[ssquf] notice that comments may be submitted to OMB.
44 U.S.C. 3507(a)(1)(D). The SNPR creates a new collection of
information for certificates for non-children's products, and would
expand the existing collection for Third Party Testing of Children's
Products, OMB Control No. 3041-0159. The Children's Product OMB control
number would be expanded to include eFiling certificates for imported
children's products that are subject to a CPSC rule requiring
certification. Tab D of Staff's SNPR Briefing Package contains a
detailed burden analysis by CPSC regulation. We summarize that
information here. In accordance with OMB's requirement, the Commission
provides the following information:
Title: (1) Certification of Non-Children's Products; (2) Amendment
to Third Party Testing of Children's Products, approved previously
under OMB Control Number 3041-0159.
Summary, Need, and Use of Information: Sections I and II of this
preamble, and Tab D of Staff's SNPR Briefing Package, contain this
information.
Respondents and Frequency: For products manufactured outside of the
United States, respondents include importers of consumer products and
substances subject to a CPSC-enforced regulation. For products
manufactured within the United States, respondents include
manufacturers and private labelers of consumer products and substances
subject to a CPSC-enforced regulation.
Estimated Burden: CPSC has estimated the respondent burden in hours
and the estimated labor costs to respondents.
Estimate of Respondent Burden: Below we categorize and estimate the
burden created by both the statute and the SNPR for children's and non-
children's regulated products as follows:
Certificates: The burden associated with the creation of
certificates (GCCs and CPCs). This can be considered a general
recordkeeping burden.
Disclosure: The burden derived from disclosing certificate
information and from furnishing the certificates to these third parties
(distributors and retailers). This is considered a third party
disclosure.
Recordkeeping: The burden associated with the initial storage and
routine maintenance of records, including records of the certificates
and any supporting and testing documentation, for a period of five
years. This is considered a recordkeeping burden.
eFiling: The initial burden from electronically filing the
certificates, using either the CPSC-maintained Product Registry or the
systems provided by the brokers that support importers' activities, as
well as the routine burden on importers submitting associated Full or
Reference PGA Message Sets. This would be considered a reporting
burden.
The additional burden imposed specifically by the SNPR includes (1)
the additional recordkeeping period for GCCs from three to five years
and (2) eFiling GCC and CPC data for regulated, imported finished
consumer products and substances.

A. Total Burden for GCCs

CPSC estimates that there may be 49,364 non-children's products
firms subject to the SNPR. Staff expects these firms to create
1,333,952 certificates and spend 111,163 hours on their creation. These
same firms must keep the records supporting the certificates for a
period

[[Page 85785]]

of five years. This annual burden comes to 27,791 hours. The firms must
also furnish each certificate to retailers and distributors of the
product upon request; thus, we estimate an additional 0.25 hours (15
minute) burden for third party disclosure. This sums to 333,488 hours.
Staff estimates the number of responses for eFiling as 18,997,724
and estimates the eFiling burden as 200,532 hours. The aggregate burden
associated with the SNPR for non-children's products suppliers is
672,973 hours and has a total cost of $27,399,039. This number includes
burden imposed by statute, which the non-children's products suppliers
would bear in absence of the SNPR. The net burden from the SNPR--
excluding the statutory burden--is 202,755 hours and the net cost is
$6,828,781. Table 2 shows that importers of general use products
requiring a GCC bear most of both the statutory burden and the
additional burden from the eFiling requirement.
Staff expects that 82 percent of the firms subject to the SNPR will
be importers with the remaining 18 percent as manufacturers. We
estimate the statutory burden borne by importers as 536,950 hours (80%)
and the expected burden to manufacturers as 136,023 hours (20%). The
net burden from the SNPR is 202,115 hours for importers (99.7%) and 640
hours for manufacturers (0.3%). Tab D of Staff's SNPR Briefing Package
explains in more detail the methodology staff used to derive the burden
estimate, as well as a PRA burden estimate for each regulated product
that was used to calculate these totals.
---------------------------------------------------------------------------

\23\ Total compensation for Office and Administrative Support
Occupation in Goods-producing industries as of March of 2023. U.S.
Bureau of Labor Statistics, ``Employer Costs for Employee
Compensation,'' March 2023, Table 4. See <a href="https://www.bls.gov/news.release/archives/ecec_06162023.pdf">https://www.bls.gov/news.release/archives/ecec_06162023.pdf</a>.

Table 2--Total Burden on Non-Children Products Covered by Part 1110
--------------------------------------------------------------------------------------------------------------------------------------------------------
Frequency Response Burden Cost per Total cost
Total burden Respondents of response Responses time hours burden hour of burden
--------------------------------------------------------------------------------------------------------------------------------------------------------
Certificates................................................ 49,364 27.0 1,333,952 0.0833 111,163 $76.26 $8,477,268
Disclosure.................................................. 49,364 27.0 1,333,952 0.2500 333,488 33.68 11,231,879
Recordkeeping............................................... 49,364 27.0 1,333,952 0.0208 27,791 33.68 935,990
eFiling..................................................... 40,665 467.2 18,997,724 0.0106 200,532 33.68 6,753,902

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