|
Changes and updates to the Consumer Product Safety Improvement Act (“CPSIA”), particularly as to testing, certification, detention, sampling, and labeling, were the focus of a presentation to the Customs Brokers and Forwarders Association of Northern California on September 23, 2010.
Details as to the CPSIA, which became law on August 14, 2008, were discussed in detail in our October 30, 2008 newsletter and follow-up February 4, 2009 newsletter.
The Interagency Targeting Task Force
Customs and the Consumer Product Safety Commission (“CPSC”) are now working closely together to prevent the entry of unsafe products into the United States. A new Commercial Targeting and Analysis Center (“CTAC”), located in Washington, D.C., was established in December of 2009. The task force is operated by Customs and CPSC. ICE, FDA and FSIS are also involved in the cooperative effort. The Task Force is targeting all compliance and enforcement issues of mutual concern to the agencies involved, not just product safety compliance violations.
Currently 14 CPSC “Compliance Investigators” have been assigned to work with Customs at major ports, and there are currently over 100 CPSC Compliance Officers at stations around the country, again coordinating with Customs Officers on compliance and enforcement issues.
New Lead Standards
One significant change pertains to the limit for lead in surface coatings and product substrate, particularly for children’s products sold after implementation dates:
- As of February 10, 2009, children’s products that contain more lead than 600 ppm are banned in the U.S. The sale of these products can result in significant civil and criminal liability.
- As of August 14, 2009, products designed or intended primarily for children 12 or younger cannot contain more than 300 ppm lead.
- As of August 14, 2011, this limit will be reduced to 100 ppm, unless the CPSC determines that it is not technologically feasible to have this lower limit.
- In addition, as of August 14, 2009, lead in paint and other surface-coating materials for consumer use were reduced from 600 ppm to 90 ppm.
Detention Notices And Storage Issues
Another major change pertains to detention notices. The CPSC has taken over the issuance of detention notices from Customs in the area of consumer product safety issues, although Customs may issue a concurrent detention notice.
Importers who receive such notices should immediately investigate the basis for receiving such a notice, such as whether the product has been independently certified as meeting the applicable lead standards.
The two agencies have different rules and procedures regarding detention of allegedly non-compliant products, and either or both procedures may be invoked. If the product is detained for sampling by CPSC, the detention notice will be sent to the importer and copies to Customs and the broker. CPSC typically will keep the product samples for more than 30 days although conditional release under bond may be allowed. If the goods are kept for more than 30 days under CPSC detention, there is no right to protest.
If the goods are also detained (or seized) by Customs under a separate notice, Customs takes control of the process. Under Customs procedures the failure to make a determination as to admissibility within 30 days is deemed an “exclusion” of the merchandise and a protest may be filed in accordance with 19 U.S.C. §§ 1499(c)(5) and 1514(a)(4). Also, if the products are conditionally released, they must be held and cannot be distributed. Customs also has the option of issuing a redelivery notice, and if the goods are not timely redelivered, liquidated damages of three times entered value up to the amount of the bond may be assessed.
Also, detained goods are subject to storage costs, and exportation or destruction may be granted by Customs on a case-by-case basis.
Reasonable Testing Program
As noted in our earlier newsletters, a General Conformity Certificate (“GCC”) issued by a foreign manufacturer is now required for all consumer products that fall within the safety requirements of the CPSIA. The GCC must be based upon a physical test of each product or a “reasonable testing program.” On May 20, 2010, the CPSC issued a proposed rule that would establish requirements for a reasonable testing program and for compliance and continuing testing for children’s products.
The Reasonable Testing Program will require --
- A product specification, that is, a description of the particular product and any product safety rules that apply to the product,
- A certification test, that is, a test conducted on the product before it enters the U.S. for the first time and before a GCC can be issued,
- A production testing plan, that is, a description of the necessary tests and how often they must be performed to achieve a “high degree of assurance” that the items produced after certification continue to meet pertinent safety requirements,
- A remedial action plan that sets forth measures to be taken if a product or part thereof fails a test, and
- Adequate recordkeeping, that is, records in English maintained in the U.S. for all tested products.
“High degree of assurance” is the key language. The certification testing done before a product can first be entered into the U.S. requires a sufficient number of samples to assure safety, as does the production testing plan. As to the products manufactured after certification and after the first importation, the follow-up production plan testing (which should be performed at least once a year), the description and intervals of testing, plus the number of samples, must be sufficient to establish the high degree of assurance of product safety.
What if there’s a change in the design, composition or sourcing of the children’s product? If any of those changes could materially affect whether the item continues to comply with the safety rules, the manufacturer is required to submit a sufficient number of samples to a third party lab before the product can be re-certified for safety purposes.
Reasonable Care
Reasonable care would be exercised if the manufacturer utilizes a reliable independently recognized lab to test the product at issue, both at the initial certification stage and for the periodic testing required after the product has first entered the U.S., to achieve the highest degree of safety assurance possible. On-going strict compliance with the certification and testing requirements would be evidence that the importer exercised reasonable care in the entry of children’s toys, clothing and other products that are subject to the CPSIA safety requirements.
Sanctions
The entry or attempted entry of products that do not comply with the CPSIA rules may subject the goods to sanctions under both the CPSC statutes (Title 15) and the Customs statutes (Title 19). In addition the violator(s) may be subject to personal penalties.
15 U.S.C. § 2068 makes it unlawful for any person to import any consumer product that is not in conformity with the applicable CPSC safety rule or regulation or subject to a CPSC corrective action, order or ban. Sanctions are severe. The violator faces civil penalties up to $100,000 for each violation and the product will be refused admission into the U.S. under 15 U.S.C. § 2066(a).
The violator is also subject to separate Customs sanctions under 19 U.S.C. § 1595a. Section 1595a(c)(2)(A) provides for seizure and forfeiture of non-compliant merchandise whose importation is subject to any restriction or prohibition regarding health or safety, and Section 1595a(b) imposes penalties up to the value of violative article for any person who “directs, assists, financially or otherwise, or is in any way concerned in the unlawful activity.”
What’s Next—The Interagency Import Safety Conference
There is a Customs Interagency Import Safety Conference set for October 21, 2010 in Washington, which will be attended by all of the Federal Government agencies that are involved in consumer product safety enforcement at the border, including (in addition to Customs and CPSC) FDA, ICE, EPA, BATF, APHIS, NHTSA and Treasury. The agenda items are expected to include the “single window” concept of border enforcement by way of the International Trade Data System, facilitation, risk management, and enforcement issues of mutual concern to all attendees.
For assistance or additional information, please contact George Tuttle at (415) 986-8780 or at george.tuttle.sr@tuttlelaw.com.
|