Proposed Rule: Certificates of Compliance

CPSC is issuing a proposed rule that would amend the existing regulation on certificates of compliance. The proposed amendment is intended to update the rule to clarify requirements in light of new regulations on testing and labeling pertaining to product
Tháng Năm 14, 2013

Action

Notice Of Proposed Rulemaking.

Summary

 

The United States Consumer Product Safety Commission (Commission, CPSC, or we) is issuing a proposed rule that would amend the existing regulation on certificates of compliance. The proposed amendment is intended to update the rule to clarify requirements in light of new regulations on testing and labeling pertaining to product certification, and component part testing. The proposed amendment would, among other things, use newly defined terms such as “finished product certificate” and “component part certificate”; require that regulated finished products that are privately labeled be certified by the private labeler for products manufactured in the United States; clarify requirements for the form, content, and availability of certificates of compliance; and require that importers of regulated finished products manufactured outside of the United States file the required certificate electronically with U.S. Customs and Border Protection (CBP) at the time of filing the CBP entry or at the time of filing the entry and entry summary, if both are filed together.

 

Table of Contents Back to Top

Tables Back to Top

DATES: Back to Top

Written comments must be received by July 29, 2013.

ADDRESSES: Back to Top

You may submit comments, identified by Docket No. CPSC-2013-0017, by any of the following methods:

Electronic Submissions

Submit electronic comments in the following way:

Federal eRulemaking Portal: http://www.regulations.gov. Follow the instructions for submitting comments.

To ensure timely processing of comments, the Commission is no longer accepting comments submitted by electronic mail (email), except through www.regulations.go v.

Written Submissions

Submit written submissions in the following way:

Mail/Hand delivery/Courier (for paper, disk, or CD-ROM submissions), preferably in five copies, to: Office of the Secretary, Consumer Product Safety Commission, Room 820, 4330 East-West Highway, Bethesda MD 20814; telephone (301) 504-7923.

Instructions: All submissions received must include the agency name and docket number for this rulemaking. All comments received may be posted without change, including any personal identifiers, contact information, or other personal information provided, to: http://www.regulations.gov. Do not submit confidential business information, trade secret information, or other sensitive or protected information electronically. Such information should be submitted in writing.

Docket: For access to the docket to read background documents or comments received, go to: http://www.regulations.gov.

Comments related to the Paperwork Reduction Act aspects of the proposed rule should be directed to the Office of Information and Regulatory Affairs, OMB, Attn: CPSC Desk Officer, FAX: 202-395-6974, or emailed to oira_submission@omb.eop.gov.

FOR FURTHER INFORMATION CONTACT: Back to Top

Carol Cave, Director, Office of Import Surveillance, Consumer Product Safety Commission, 4330 East-West Highway, Bethesda, MD 20814; ccave@cpsc.gov; telephone (301) 504-7677.

SUPPLEMENTARY INFORMATION: Back to Top

 

I. Introduction Back to Top

A. Background on 16 CFR Part 1110

The Commission promulgated a direct final rule on “certificates of compliance,” also referred to as “certificates,” on November 18, 2008 (73 FR 68328), which is codified at 16 CFR part 1110 (the existing 1110 rule). The Commission published the existing 1110 rule shortly after the Consumer Product Safety Improvement Act of 2008 (CPSIA) was enacted on August 14, 2008, to clarify for stakeholders the certificate requirements imposed by the newly amended section 14(a) of the Consumer Product Safety Act (CPSA) and section 14(g) of the CPSA. The CPSIA amended section 14(a) of the CPSA to require that manufacturers and private labelers of children's products subject to a children's product safety rule certify such products as compliant based on testing conducted by a third party conformity assessment body, and that manufacturers and private labelers of regulated non-children's products certify compliance based on a test of each product, or on a reasonable testing program. Section 14(g) of the CPSA states requirements for certificate content. Thus, the existing part 1110 rule sets forth certificate requirements, such as:

  • Limiting the parties who must issue a certificate to the importer, for products manufactured outside the United States, and, in the case of domestically manufactured products, to the manufacturer;
  • Allowing certificates to be in hard copy or electronic form;
  • Clarifying requirements for an electronic form of certificate; and
  • Providing certificate content requirements.

B. Why is the Commission proposing to amend the 1110 rule now?

The Commission is proposing to amend the 1110 rule now to clarify certificate requirements in light of new rules related to testing and certification of consumer products and to implement section 14(g)(4) of the CPSA, which allows the Commission, in consultation with the Commissioner of Customs, to require that certificates for imported products be filed electronically with CBP up to 24 hours before arrival of an imported product.

Since the existing 1110 rule was promulgated in 2008, the Commission has been working diligently to implement the requirements of the CPSIA, including the requirements in section 14 of the CPSA for testing, labeling, and certification of consumer products. Recently, the Commission issued two key rules: (1) Testing and Labeling Pertaining to Product Certification, 16 CFR part 1107 (the Testing Rule or the 1107 rule), and (2) Conditions and Requirements for Relying on Component Part Testing or Certification, or Another Party's Finished Product Testing or Certification, to Meet Testing and Certification Requirements, 16 CFR part 1109 (the Component Part Rule or the 1109 rule). Both rules were published in the Federal Register on November 8, 2011 (76 FR 69482 and 76 FR 69546, respectively). The Testing Rule sets forth requirements for the testing, certification, and labeling of regulated children's products. It became effective on February 8, 2013. The Component Part Rule, which allows for component part testing and certification to meet testing and certification requirements, became effective on December 8, 2011. Amending the existing 1110 rule would allow the Commission to define and use new terms introduced by the 1107 and 1109 rules, and to describe and explain how certificates must be integrated and consistent with these new rules.

C. What statutory requirements apply to certificates of compliance?

This section of the preamble describes the statutory requirements that apply to certificates and the Commission's authority to implement such requirements. Section 14(a)(1) of the CPSA, as amended by the CPSIA, requires that except for certificates that apply to children's products, every manufacturer, or private labeler if there is one, of a consumer product that 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 that is imported for consumption or warehousing, or distributed in commerce, must issue a certificate. Section 3(a)(8) of the CPSA defines “distribute in commerce” to mean “to sell in commerce, to introduce or deliver for introduction into commerce, or to hold for sale or distribution after introduction into commerce.” For non-children's products, the certificate must be based on a test of each product or on a reasonable testing program. The certificate must specify each applicable rule, ban, standard, or regulation enforced by the Commission and certify that the product complies with all such listed rules.

Similarly, section 14(a)(2) of the CPSA requires that every manufacturer or private labeler, if there is one, of a children's product that is subject to a children's product safety rule must have the children's product tested by a third party conformity assessment body, and based on such testing, certify that the product is compliant with all applicable rules. Before importing such children's products for consumption or warehousing, or before distributing such children's products in commerce, manufacturers or private labelers must submit sufficient samples of the children's product, or samples that are identical in all material respects to the children's product, to a third party conformity assessment body, whose accreditation has been accepted by the Commission to perform such testing, to be tested for compliance with all applicable children's product safety rules. The manufacturer or private labeler must issue a certificate or certificates based on such testing, certifying that the children's products covered by the certificate(s) comply with all applicable children's product safety rules. Section 14(a)(2)(B) of the CPSA states that a certificate can be issued for each applicable children's product safety rule, or one certificate for the product can combine all applicable rules, by listing each applicable children's product safety rule separately and certifying compliance with all of them.

Section 3(a)(11) of the CPSA defines the term “manufacturer” as any person who manufactures or import s a consumer product. As such, any statutory obligation assigned to a manufacturer, by definition, applies to an importer. Thus, as written, the statutory obligation to issue a certificate for children's and non-children's products falls to the manufacturer, importer, or the private labeler of a consumer product, if the product is privately labeled under section 3(a)(12) of the CPSA. Section 14(a)(4) of the CPSA provides that in the case of a consumer product that has more than one manufacturer or private labeler, the Commission may, by rule, designate which person is responsible for issuing a certificate, and exempt all other persons from issuing certificates.

Section 14(g) of the CPSA contains certificate requirements. Section 14(g)(1) of the CPSA requires that a certificate shall 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. At a minimum, certificates are required to 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. Additionally, section 14(g)(2) of the CPSA requires that every certificate be legible and that all contents must be in English. Contents may also be in any other language. Moreover, pursuant to section 14(g)(3) of the CPSA, 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. Finally, section 14(g)(4) of the CPSA states that in consultation with the Commissioner of Customs, the 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 or to CBP.

In addition to the statutory authority to require certificates for regulated products, as outlined in sections 14(a) and (g) of the CPSA, the Commission has general implementing authority with regard to certificates, pursuant to section 3 of the CPSIA, which provides: “[t]he Commission may issue regulations, as necessary, to implement this Act and the amendments made by this Act.”

II. Description of the Proposed Rule Back to Top

Because of the number of proposed changes, the Commission intends to strike the existing 1110 rule in its entirety and replace it with the proposed rule set forth below.

A. What is the purpose and scope of this part?—Proposed § 1110.1

Proposed § 1110.1 would continue to describe the purpose of part 1110 but does so in language that is clearer and more simple. The changes also clarify which provisions of this part apply to component part certificates. Existing § 1110.1(a)(1) states that the purpose of the rule is to “limit” the entities required to issue certificates because the existing rule does not cover private labelers. The proposed rule would increase the number of entities responsible for issuing certificates and therefore would state that the purpose is to “specify” the entities that must issue certificates. The proposed rule also would implement section 14(g)(4) and require certificates for imported products to be filed electronically with CBP. Proposed § 1110.1(b) would reflect this change.

B. What definitions apply to this part?—Proposed § 1110.3

Existing § 1110.3 defines an “electronic certificate,” and incorporates definitions from section 3 of the CPSA as well as definitions set forth in the CPSIA. Proposed § 1110.3 would maintain these provisions, with minor grammatical changes, and would add 13 new definitions. The proposed new definitions would clarify the different types of certificates outlined in the Testing and Component Part Rules, such as “Children's Product Certificate (CPC),” “General Conformity Certificate (GCC),” “finished product certificate,” and “component part certificate.” For example, two types of finished product certificates would be defined in the proposed rule: CPCs and GCCs. Either a CPC or GCC would only be required for “finished products” but not for “component parts” of consumer products under the proposed rule. Only certain regulated finished products would be required to be certified because our regulations typically are based on finished products. Under the Component Part Rule certification of component parts is voluntary, so not all component parts will be tested or certified, unless and until they become part of a regulated finished product; and component part suppliers may not know how the component part will be used and whether it will become part of a regulated finished product.

The proposed new definitions would also make part 1110 consistent with the Component Part Rule, by including and clarifying terminology used in that rule, such as “component part” and “finished product.” Proposed § 1110.3(b)(6) would define a “component part” as “a component part of a consumer product or other product or substance regulated by the Commission, as defined in § 1109.4(b) of this chapter, that is intended to be used in the manufacture or assembly of a finished product, and is not intended for sale to or use by consumers as a finished product.” Thus, the term “component part” would refer only to parts of products that are intended to be used in the manufacture or assembly of a finished product. In contrast, the term “finished product” refers to a product that is “imported for consumption or warehousing or is distributed in commerce.” Under the proposed definition, parts of such products that are packaged, sold, or held for sale to or use by consumers would also be considered finished products.

The distinction between a “component part” and a “finished product” is important because it defines when a product must be accompanied by a certificate under the proposed rule. “Finished products” are intended for sale to, or use by, consumers. “Component parts” are intended for incorporation into a finished product, and are not packaged, sold, or held for sale for use by consumers. In contrast, replacement parts of finished products that are sold separately would be considered finished products under the proposed rule. Because use of the Component Part Rule is voluntary, not every component part will be certified. It is only at the finished product stage that finished product certifiers will know all of the regulations that apply to a product and whether it must be accompanied by a certificate.

For example, doll clothing can be packaged and sold directly to consumers as a doll accessory. Such doll clothing that is packaged for sale to consumers would be considered a finished product under the proposed rule and must be certified. However, the same doll clothing could also be imported for use in the final assembly of a doll. Doll clothing that is imported for the purpose of being assembled with a doll for sale to consumers would be considered a component part under the proposed rule, and it would not be required to be accompanied by a certificate. If such doll clothing is a portion of a children's product, however, it still must comply with the applicable rules. Moreover, such doll clothing would need to be certified as compliant as part of a finished children's product.

Proposed § 1110.3(b)(11) would define a “finished product certifier” as “a party that is required to issue a finished product certificate pursuant to § 1110.7.” Note that § 1107.2 of the Testing Rule defines a “manufacturer” as “the parties responsible for certification of a consumer product pursuant to 16 CFR part 1110.” Thus, changing the party responsible for issuing a certificate in the proposed rule would also change the party responsible for third party testing under the Testing Rule.

The proposed rule would continue to place on the importer the obligation to certify finished products manufactured outside the United States that are not delivered directly to consumers in the United States. Proposed § 1110.3(b)(13) would define an “importer” as the importer of record, as defined under the Tariff Act of 1930 (19 U.S.C. 1484(a)(2)(B)) (Tariff Act). Pursuant to the Tariff Act, the importer of record is either “the owner or purchaser of the merchandise or, when appropriately designated by the owner, purchaser, or consignee of the merchandise, a person holding a valid” customs broker's license, pursuant to 19 U.S.C. 1641.

C. When are certificates required?—Proposed § 1110.5

Existing § 1110.5 states that a certificate that is in hard copy or electronic form “and complies with all applicable requirements of this part 1110 meets the certificate requirements of section 14 of the CPSA,” and that such a certificate “does not relieve the importer or domestic manufacturer from the underlying statutory requirements concerning the supporting testing and/or other bases to support certification and issuance of certificates.” Requirements for certificate format have been moved to proposed § 1110.9.

Proposed § 1110.5 would clarify when consumer products are required to be certified. Proposed § 1110.5 would require that only finished products that are 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, which are imported for consumption or warehousing or are distributed in commerce, must be accompanied by a GCC or a CPC, as applicable. Component parts of a consumer product are not required to be accompanied by a certificate.

The issue of whether banned products require certificates presents an unusual question. It could be argued that if a product is banned and no longer on the market, the need for a certificate is moot since there are theoretically no products to test and certify. However, very few CPSC bans completely remove all products in a specific category from the market. Instead, they 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.

For example, the Commission's ban on non-children's lawn darts at 16 CFR 1306.1 et seq. states that “any lawn dart is a banned hazardous product.” This appears to ban the entire product category, yet the Commission is aware that certain manufacturers continue to sell products advertised as plastic-tipped lawn darts. These lawn darts appear not to present the hazard of death or injury that metal-tipped lawn darts do. In such a case, the Commission expects such manufacturers to issue GCCs that certify that the plastic-tipped lawn darts do not fit within the class of banned lawn darts.

The Commission acknowledges it may be difficult at times to distinguish those bans that function more like a standard from those that ban an entire product category. To address this concern, Table A provides guidance as to which bans require certification. For those bans listed in which the Commission is not requiring certification we do so because either the entire product category should not exist so there is nothing to certify to or certification is captured by certification to another rule, standard or regulation (e.g., certain fireworks are covered by certification to 16 CFR part 1507). For example, the Commission is proposing to not require the issuance of GCCs to show compliance with the ban on soluble cyanide salts. However, we realize the use of this chemical may have changed since the ban was first issued in 1972 and are seeking comments on the current use of cyanide salts in consumer products. Please see section III.3 of this preamble for additional information on this issue.

Table A Back to Top
Ban Description GCC Required
1301 Ban of unstable refuse bins Yes.
1302 Ban of extremely flammable contact adhesives No.
1303 Ban of lead-containing paint and certain consumer products bearing lead-containing paint —General Use: Applies to consumer paints and paint used on non-metal furniture Yes.
1304 Ban of consumer patching compounds containing respirable free-form asbestos Yes.
1305 Ban of artificial emberizing materials (ash and embers) containing respirable free-form asbestos Yes.
1306 Ban of hazardous lawn darts Yes.
1500.17(a)(1) Ban of “extremely flammable” interior masonry wall sealers No.
1500.17(a)(2) Ban of carbon tetrachloride and mixtures containing it No.
1500.17(a)(3) Ban of fireworks with audible effects produced by a charge of more than 2 grains of pyrotechnic composition No.
1500.17(a)(4) Ban of liquid drain cleaners containing 10 percent or more by weight of sodium and/or potassium hydroxide, unless packaged in special packaging under the PPPA No.
1500.17(a)(5) Ban of products containing soluble cyanide salts No.
1500.17(a)(7) Ban of general-use garments containing asbestos No.
1500.17(a)(8) Ban of firecrackers with audible effects produced by a charge of more than 50 mg of pyrotechnic composition No.
1500.17(a)(9) Ban of all fireworks, other than firecrackers, unless they meet the requirements of 1507 No.
1500.17(a)(10) Ban of self-pressurized products intended or suitable for household use that contain vinyl chloride monomer No.
1500.17(a)(11) Ban of reloadable tube aerial shell fireworks that use shells larger than 1.75 inches in outer diameter No.
1500.17(a)(12) Ban of multiple-tube mine and shell fireworks that have any tube measuring 1.5 inches (3.8cm) or more in inner diameter, and that have a minimum tip angle less than 60 degrees when tested in accordance with 1500.12 No.
1500.17(a)(13) Candles with metal-cored wicks Yes.
CPSA Butyl Nitrite No.
CPSA Isopropal Nitrites No.

D. Who must certify finished products?—Proposed § 1110.7

Existing § 1110.7 provides that, except as otherwise provided in a specific standard, in the case of a product manufactured outside the United States, only the importer must certify a product and provide a certificate in accordance with section 14(a) of the CPSA, and that only the manufacturer must certify a product and provide a certificate for products manufactured in the United States. As explained below, the proposed rule would modify this section.

1. Imports—Proposed § 1110.7(a)

Proposed § 1110.7 would retitle the section to read: “Who must certify finished products?” to state more accurately the focus of proposed § 1110.7 and to clarify that only finished products must be certified. Proposed § 1110.7(a) would maintain the requirement that an importer certify products manufactured outside the United States, except in the circumstance of products that are delivered directly to consumers in the United States, such as products purchased through an Internet Web site. In such a case, the proposed rule would require that the foreign manufacturer certify the product, unless the product bears a private label. The private labeler would be required to issue a certificate for products that bear a private label that are delivered directly to a consumer in the United States, unless the foreign manufacturer issues the certificate.

The proposed rule would continue to place on the importer the obligation to certify products manufactured outside the United States that are not delivered directly to a consumer. Section 1110.3(b)(13) of the proposed rule would define “importer” to be the importer of record, as defined under the Tariff Act of 1930 (19 U.S.C. 1484(a)(2)(B)) (Tariff Act). Pursuant to the Tariff Act, the importer of record is either “the owner or purchaser of the merchandise or, when appropriately designated by the owner, purchaser, or consignee of the merchandise, a person holding a valid” customs broker's license, pursuant to 19 U.S.C. 1641. Thus, a validly licensed customs broker who serves as the importer of record for the imported products would be responsible for issuing the certificate required by section 14(a) of the CPSA and this rule with respect to the imported products.

Some common carriers, contract carriers, third party logistics providers, and freight forwarders (collectively, carriers), in addition to their delivery and transportation services, also may become licensed customs brokers and may serve as importer of record when bringing goods into the United States. Like any other customs broker that agrees to serve as an importer of record, when such a carrier chooses to serve as the importer, the carrier would be responsible for issuing a required certificate under the proposed rule.

Treating a carrier who also serves as an importer of record as an “importer” under the proposed rule is consistent with section 3(b) of the CPSA, which provides:

A common carrier, contract carrier, third party logistics provider, or freight forwarder shall not, for purposes of this Act, be deemed to be a manufacturer [including importer], distributor, or retailer of a consumer product solely by reason of receiving or transporting a consumer product in the ordinary course of its business as such a carrier or forwarder.

This provision protects carriers from being “deemed” a manufacturer, importer, distributor, or retailer, based “solely” on “receiving or transporting a consumer product” in the ordinary course of business as a carrier. Under the proposed rule, imposing importer-related certification requirements on a carrier that chooses to become a licensed customs broker and that agrees to serve as the importer of record is based on the carrier's status as importer of record and related customs functions rather than on the carrier's transportation-related functions.

Additionally, the proposed rule would place the obligation to certify products that are delivered directly to consumers in the United States, such as products purchased through an Internet Web site, on the foreign manufacturer, unless the product bears a private label. This proposed revision would clarify and remove any doubt about which entity has the burden to certify products directly delivered to consumers. The Commission recognizes that when a foreign entity delivers products directly to a consumer in the United States, the consumer could be considered the importer. Placing the obligation to test and certify consumer products on the purchasing consumer would be inconsistent with the goals of the statute, in that it would not protect consumers as intended by the testing and certification scheme set forth by Congress, and implemented by the Commission. Accordingly, the proposed rule would not place the burden of ensuring such compliance on consumers; rather, the Commission believes that the appropriate way to ensure compliance is to require companies that purposefully send their products into the United States to test and certify their products, as required by United States law.

For the vast majority of products imported into the United States through CBP, the proposed rule would continue to require that the importer of record certify the product, to provide a uniform, consistent, and predictable means of enforcing testing and certification requirements for imported products. We understand that some private labelers and brand owners with foreign manufacturing facilities want to test and certify their products. The Component Part Rule, which is already in effect, allows an importer to rely on testing or certification conducted by another party, as long as the importer meets the requirements of the 1109 rule, including exercising due care (see 16 CFR 1109.5(i)). Thus, private labelers and brand owners already can test and certify products on which an importer can then rely to issue their own certificate. The proposed rule would clarify that a finished product certificate must be issued by a required finished product certifier. An importer cannot simply pass along a component supplier's certificate. Thus, proposed § 1110.7(a) would ensure that the certificate required by the CPSC must be issued by the importer, who is required to certify the product. The ability of finished product certifiers, such as importers, to rely on another party's testing or certification under the 1109 rule allows a private labeler to test and certify, as needed, while maintaining the Commission's ability to enforce its regulations against the party responsible for importing the product.

2. Domestic Products—Proposed § 1110.7(b)

For products manufactured in the United States, the proposed rule would continue to place the responsibility for issuing a required finished product certificate on the manufacturer, except in circumstances where a product is privately labeled, as defined in the CPSA. If a product is privately labeled, the proposed rule would place the obligation to certify the product on the private labeler, unless the manufacturer certifies the product. The Commission recognizes that under the existing 1110 rule, privately labeled products are required to be certified by the manufacturer. This relationship may continue as long as the product is certified. The proposed rule, however, would shift the obligation to ensure compliance for privately labeled products on to the private labeler.

Duplication of effort to issue a certificate should not occur by requiring the private labeler to certify privately labeled products. A “private labeler” is a defined term in the CPSA. Pursuant to section 3(a)(12) of the CPSA, the term applies only to products that carry the private labeler's brand or trademark on the product and not the manufacturer's brand or trademark. Therefore, all products manufactured in the United States that contain a brand or trademark in addition to a manufacturer brand or trademark are not considered privately labeled under the CPSA, and the manufacturer would remain the required finished product certifier under the proposed rule. The proposed rule would change only the obligation to certify a product to the private labeler for products manufactured in the United States that bear a private label, which are those products that do not contain the brand or trademark of the manufacturer.

A “brand owner” is not defined in the CPSA. A brand owner would not be a required finished product certifier under the proposed rule, unless that entity imports products, manufactures products in the United States, or meets the definition of a “private labeler” for products made in the United States. We understand that some brand owners license their brand or trademark to appear on consumer products. Like “brand owner,” “licensee” and “licensor” are not defined terms under the CPSA, and the Commission cannot require a “licensee” or a “licensor” to issue a certificate. Regardless of who the required finished product certifier is under the proposed rule, brand owners can already test and certify products under § 1109.5(i) of the Component Part Rule. If the product is imported, an importer can rely on a brand owner's testing or certification as a basis to issue the required finished product certificate. Moreover, a domestic manufacturer can rely on a brand owner's testing or certification to issue a required certificate, as long as all parties follow the requirements in the 1109 rule.

The proposed revisions to expand the required finished product certifier to include the private labeler for privately labeled products should not necessarily result in a change to existing relationships with regard to testing products and issuing certificates. Testing and certification can already be conducted by other parties under the Component Part Rule, and in both cases, where the private labeler has been included, the manufacturer can continue to issue the certificate.

E. What form(s) may the certificate take?—Proposed § 1110.9

Existing § 1110.9, titled, “Form of certificate,” states that “the information on a hard copy or electronic certificate must be provided in English and may be provided in any other language.” Proposed § 1110.9 would revise and elaborate on this concept, establishing requirements for language, format, and electronic certificates. This section would restate the statutory requirement that certificates must be in English, and may also contain the same content in any other language. The section would state that, except as provided in proposed § 1110.13(a)(1), which requires an electronic certificate for products imported into the United States, certificates may be provided in hard copy or electronically.

Proposed § 1110.9(c) would set forth requirements for electronic certificates in all cases, except certificates that would be required to be filed electronically with CBP at importation. The proposed rule would continue to allow a broad range of formats for electronic certificates, as long as they are identified by a unique identifier and can be accessed via a World Wide Web uniform resource locator (URL) or other electronic means. However, several changes are proposed. First, proposed § 1110.9(c) would provide requirements for electronic certificates other than the filing of certificates electronically with CBP for imported products, which is discussed in detail in proposed § 1110.13(a)(1) in section II.G of this preamble. Accordingly, proposed § 1110.9(c) would apply only to: products manufactured in the United States; foreign-manufactured products that are delivered directly to a consumer in the United States; and imported finished products after importation, such as when requested by CPSC or CBP, or when certificates are furnished to retailers and distributors.

Second, proposed § 1110.9(c) would still allow for use of a “unique identifier” to access a certificate electronically, but it would require that the unique identifier be “identified prominently on the finished product, shipping carton, or invoice.” Experience with electronic certificates has shown that they can be effective as long as they are easily accessible. Searching products and paperwork for a certificate identifier should not require significant time and resources because it detracts from the efficiencies achieved by allowing electronic certificates. Requiring the placement of a unique identifier to be “prominent” and limiting the placement to three distinct options is intended to ensure the efficiency of allowing electronic certificates.

Third, proposed § 1110.9(c) would state that electronic certificates must be accessible “without password protection.” This amendment would ensure that access to electronic certificates is easy and efficient and does not require significant CPSC time and resources. If accessing information electronically is cumbersome, it defeats any efficiency achieved by electronic certificates. Thousands of entities, including manufacturers, private labelers, and importers, likely must certify consumer products. Maintenance of password information by the CPSC could become burdensome for CPSC's import surveillance and other enforcement efforts. Accordingly, we propose that electronic certificates be accessible without password protection.

Finally, existing § 1110.13(a)(1) requires that electronic certificates be available to “the Commission or to the Customs authorities as soon as the product or shipment itself is available for inspection.” Neither CPSC nor CBP regulations define or interpret this phrase, so it is currently unclear when the obligation to present a certificate on demand actually vests. Proposed § 1110.9(c) would clarify that electronic certificates, the URL, or other electronic means, and the unique identifier be accessible to the Commission, CBP, distributors, and retailers, “on or before the date the finished product is distributed in commerce,” to set forth a definite point in a finished product's distribution chain when the certificate must be available. This requirement is intended to prevent a scenario where the CPSC or a retailer or distributor attempts to access an electronic certificate to find that it does not exist yet or is unavailable.

F. What must the certificate contain?—Proposed § 1110.11

Existing § 1110.11 restates and interprets the requirements for the contents of certificates, as provided in sections 14(a) and 14(g) of the CPSA. Proposed § 1110.11 would revise content requirements to reflect that such content requirements apply to all three types of certificates: GCCs, CPCs, and component part certificates. In addition, proposed § 1110.11 would add three content requirements to a certificate: (a) Date of initial certification (proposed § 1110.11(a)(2)); (b) scope of the certificate (proposed § 1110.11(a)(3)); and (c) an attestation of compliance (proposed § 1110.11(a)(10)). Each requirement in the proposed rule is discussed below.

1. Identification of the Component Part or Finished Product—Proposed § 1110.11(a)(1)

The existing rule requires: “Identification of the product covered by the certificate.” Proposed § 1110.11(a) would state that each certificate must contain the information described therein, and then list each piece of information as numbered items 1 through 10, under proposed § 1110.11(a). Thus, proposed § 1110.11(a)(1) would incorporate the requirement to identify the product being certified, but it would broaden the nature of the “product” that can be covered by a certificate to include component parts as well as finished products. The proposed rule would require the certificate to state whether it covers a finished product or a component part to assist with enforcement and to clarify for all other parties the scope of the certificate.

Proposed § 1110.11(a)(1) would further state that “[a] model number, style, or other unique identifier of the product should be provided, if any, along with a description of the finished product or component part. Certifiers may also include an identifier, such as a universal product code (UPC), a global trade item number (GTIN), or other identifying code that may assist with product identification.” This clarification is intended to provide guidance on the type of information that would be considered to be identifying information for a product. Providing a model number or style number, if they exist, would be the most useful way for the CPSC to identify the product, along with a narrative description of the product. Certifiers may also provide a stock-keeping unit, or SKU, to assist in product identification. Additionally, the CPSC is aware that many manufacturers use codes for purposes of product identification, such as UPC codes and GTINs. This type of information is also useful for CPSC to identify products. Certifiers would be encouraged to include any type of identifying code on the certificate, if it would aid in product identification. UPCs and GTINs are examples of identifying codes. Stakeholders are encouraged to comment on whether other types of codes should be stated specifically in the codified text. Although harmonized tariff codes may be placed on a certificate, they are insufficient, alone, to identify a product on a certificate. Similarly, a registered identification number, or RN, on wearing apparel, alone, is insufficient to identify a product on a certificate. An RN is a number, assigned by the Federal Trade Commission, which identifies a business, and does not distinguish products. This type of information can be used in conjunction with other identifying information to identify a product adequately on a certificate but is not sufficient by itself to identify a product.

Certifiers are reminded that they may rely on one certificate to certify more than one product, if products are manufactured at the same facility and the tests apply to all of the products on the certificate. For example, several sizes of a garment may be listed on one certificate, if they were manufactured at the same facility and the testing on the component parts (e.g., fabric, buttons, and zippers) is applicable to each size garment produced. Certificates can be based on the one set of tests. The manufacturer could create one certificate, or it could create a certificate for each product. For example, under the Component Part Rule, a manufacturer of plastic trains that uses the same plastic resin in five different molds to create five different types of trains may test the plastic resin under the 1109 rule and then use those test results to support certification of all products made with the plastic resin. If that were the only testing required, the manufacturer could create one certificate for all five types of trains, or it could create five separate certificates relying on the same testing. The certificate must be explicit as to which product or products it is intended to cover. If additional testing is required that is unique to each product, certifiers should certify each product, but may rely on the same testing, where warranted.

2. Date of Initial Certification—Proposed § 1110.11(a)(2)

Proposed § 1110.11(a)(2) would require the certificate to: “[s]tate the date of initial certification of the finished product(s) or component part(s) to which the certificate refers.” This would be a new content requirement on the certificate, but the requirement is drawn from a current requirement in existing § 1110.13(b), which requires that electronic certificates have a means to verify the date of creation or last modification. In practice, many certificates, regardless of whether they are electronic or paper based, contain a date. The proposed rule would standardize the date required to be provided to reflect the date the product was originally certified. If a children's product undergoes a material change, a new certificate must be issued, pursuant to the Testing Rule. Accordingly, we anticipate that the certification date would be updated after a material change to reflect that the product was subjected to testing for applicable consumer product safety rules affected by the material change, and a new certificate was issued, as required.

3. Identification of Certificate Scope—Proposed § 1110.11(a)(3)

Proposed § 1110.11(a)(3) would require the certificate to: “[i]dentify the scope of finished product(s) or component part(s) for which the certificate applies, such as by a start date, a start and end date, by a lot number, starting serial number, serial number range, or other means to identify the set of finished product(s) or component part(s) that are covered by the certificate.” This would be a new content requirement on the certificate that would assist the Commission in understanding the scope of the products covered by a certificate. By adding this requirement, the Commission does not intend to require certifiers to modify or create certificates to change the scope of the certificate for each shipment. Certifiers can identify the scope of products covered by a certificate through any reasonable means, such as a date or dates, lot numbers, or serial numbers, providing such information will assist the Commission in understanding the scope of each certificate. Certifiers are required to maintain information on the scope of certificates for children's products, pursuant to § 1107.26 of the Testing Rule and § 1109.5(g) and (j) of the Component Part Rule, when applicable.

4. List of Rules Being Certified—Proposed § 1110.11(a)(4)

Existing § 1110.11(b) requires: “Citation to each CPSC product safety regulation or statutory requirement to which the product is being certified. Specifically, the certificate shall identify separately each applicable consumer product safety rule under the Consumer Product Safety Act and any similar rule, ban, standard or regulation under any other Act enforced by the Commission that is applicable to the product.” Proposed § 1110.11(a)(4) would incorporate the statutory requirement in section 14(a) of the CPSA to specify each rule on a certificate, but it would broaden the nature of the “product” that can be covered by the certificate to include component parts of a product. Accordingly, the first sentence in proposed § 1110.11(a)(4) would require the certifier to: “State each consumer product safety rule under the CPSA, or similar rule, ban, standard, or regulation under any law enforced by the Commission, to which the finished product(s) or component part(s) are being certified.”

Moreover, proposed § 1110.11(a)(4) would clarify the different requirements for finished product certificates versus component part certificates. A finished product certificate would need to “identify separately all applicable rules, bans, standards, or regulations.” A finished product certifier is responsible for knowing what rules, bans, standards, or regulations apply to each product and for listing all of them on the certificate, or providing a certificate for each applicable rule. However, a component part certifier would have the option to certify a component part to specific rules or parts of rules, even though such certification may not ultimately cover all applicable rules. This is because the component part certifier might not know the final use of the component part, and thus, not know the scope of all applicable rules or because additional tests may be required to be conducted on a finished product. Accordingly, a component part certificate would need to “identify all rules, or parts of rules, standards, bans, or regulations for which the component part(s) are being certified.” The proposed component part requirement recognizes that some component parts can be certified to portions of a standard. For example, an accessory used on a children's product may be tested separately from the children's product with regard to lead in paint. It would remain the responsibility of a finished product certifier, relying on a component part test or certification, to ensure that all component parts of a finished children's product are tested and certified not only to the lead in paint standard, but also to all other applicable rules, bans, standards, and regulations.

5. Identification of the Certifying Party—Proposed § 1110.11(a)(5)

Existing § 1110.11(c) requires: “Identification of the importer or domestic manufacturer certifying compliance of the product, including the importer or domestic manufacturer's name, full mailing address, and telephone number.” Proposed § 1110.11(a)(5) would incorporate the statutory requirement in section 14(g)(1) of the CPSA to “identify the manufacturer or private labeler issuing the certificate” and provide “each party's name, full mailing address, telephone number,” but would broaden the requirement to include certificates for both finished products and component parts. Regardless of the type of certificate being issued, proposed § 1110.11(a)(5) would require the certificate to “[i]dentify the party certifying compliance of the finished product(s) or component part(s), including the party's name, electronic mail (email) address, full mailing address, including the street address, and telephone number.” Note that the proposed rule would broaden the identification requirement to include an electronic mail (email) address and a street address. The email address would provide CPSC with an additional means of contacting and communicating with certifiers, including those located overseas or in different time zones. Providing a street address would ensure that CPSC staff can locate the certifier's place of business should an investigation require a site visit.

6. Contact Information for Records Custodian—Proposed § 1110.11(a)(6)

Existing § 1110.11(d) requires: “Contact information for the individual maintaining records of test results, including the custodian's name, email address, full mailing address, and telephone number. (CPSC suggests that each issuer maintain test records supporting the certification for at least three years as is currently required by certain consumer product specific CPSC standards, for example at 16 CFR 1508.10 for full-size baby cribs.)”

Proposed § 1110.11(a)(6) would incorporate the statutory requirement in section 14(g)(1) of the CPSA to provide contact information for the individual maintaining records of test results but would broaden it to include contact information for the custodian of all records required for each type of certificate, as set forth in the Testing Rule and the Component Part Rule. Proposed § 1110.11(a)(6)(ii) would require contact information for the individual “maintaining records of test results and other records on which a CPC is based.” Proposed § 1110.11(a)(6)(iii) would require contact information for the individual “maintaining records of test results and other records on which a component part certificate is based.” As in proposed § 1110.11(a)(5), proposed § 1110.11(a)(6) would require the record custodian's email address, in addition to a full mailing address and telephone number to provide additional means for CPSC to contact the custodian of records. Further, the proposed rule would delete the portion of existing § 1110.11(d) that requires records be maintained “for at least three years” for all records, because the 1107 and 1109 rules require certificates and test results to be maintained for 5 years. Recordkeeping requirements are discussed in section II.I of this preamble.

7. Date and Place of Manufacture—Proposed § 1110.11(a)(7)

Existing § 1110.11(e) requires: “Date (month and year at a minimum) and place (including city and state, country, or administrative region) where the product was manufactured. If the same manufacturer operates more than one location in the same city, the street address of the factory in question should be provided.”

In addition to requiring that a certificate contain the date and place of manufacture of a product, proposed § 1110.11(a)(7) would use the newly defined term “finished product” and broaden the nature of the “product” to include component parts. Moreover, proposed § 1110.11(a)(7) would interpret “place” to include a street address in all circumstances, not just when a manufacturer operates more than one location in the same city. A post office box would be insufficient to meet this requirement. In addition, the proposed rule would clarify that “place” also includes either the name of a state or a province, as well as either the name of a country or an administrative region. To clarify where a product has been “manufactured,” the definition of “manufactured” is included in the proposed rule. Section 3(a)(10) of the CPSA states: “manufactured” means “to manufacture, produce, or assemble.” The Commission is also requesting comment on the possibility of requiring additional information on a certificate, such as the name of the manufacturer, including foreign manufacturers. Please see section III.1 of this preamble for further discussion of this issue.

8. Date and Place of Testing To Support the Certificate—Proposed § 1110.11(a)(8)

Existing § 1110.11(f) requires: “Date and place (including city and state, country or administrative region) where the product was tested for compliance with the regulation(s) cited above in subsection (b).” In addition to requiring that a certificate contain the date and place where the product was tested, proposed § 1110.11(a)(8) would use the newly defined term “finished product” and broaden the nature of the “product” to include component parts. Moreover, proposed § 1110.11(a)(8) would make the words “date” and “place” plural, recognizing that finished products and component parts may be tested in multiple or different locations. The Commission's preference is that all required information be condensed into one certificate, but we acknowledge that section 14(a)(2) of the CPSA allows for a certificate for each applicable standard. Supporting documentation, such as test results, component part certificates, and other finished product certificates, should be available for review upon request, or may be bundled with the required certificate but do not take the place of a required certificate that contains the 10 elements in proposed § 1110.11(a). The proposed rule would also require “place” to include a street address, city, state, or province, and country or administrative region. Thus, proposed § 1110.11(a)(8) would state: “Provide the dates and places (including a street address, city, state or province, and country or administrative region) where the finished product(s) or component part(s) were tested for compliance with the rule(s), ban(s), standard(s), or regulation(s) cited in § 1110.11(a)(4) of this part.”

9. Identification of Parties That Conducted Testing To Support the Certificate—Proposed § 1110.11(a)(9)

Existing § 1110.11(g) requires: “Identification of any third party laboratory on whose testing the certificate depends, including name, full mailing address and telephone number of the laboratory.” In addition to requiring that a certificate identify and provide contact information for any third party conformity assessment body on whose testing the certificate depends, proposed § 1110.11(a)(9) would use the statutory language for a third party laboratory, i.e.,“third party conformity assessment body,” and would broaden the scope to include all parties who conducted testing on which the certificate depends. This provision would allow all parties, including the CPSC, to identify whether a GCC or a CPC is based on first or third party testing. Finally, required contact information would be broadened to include an email address and a street address, in addition to a name, mailing address, and telephone number. Providing an email address would provide CPSC with additional means of contacting and communicating with parties conducting testing, including those located overseas or in different time zones. Providing a street address would ensure that CPSC staff can locate the third party conformity assessment body if an on-site visit becomes necessary.

10. Attestation of Compliance—Proposed § 1110.11(a)(10)

Proposed § 1110.11(a)(10) would be a new section of the certificate that would require an attestation that the finished products or component parts covered by the certificate are compliant with the applicable rules. The attestation would be made by the party identified as the certifier under proposed § 1110.11(a)(5). The certifier would attest that the finished products or component parts covered under the certificate comply with the rules, bans, standards, and regulations stated in the certificate, at proposed § 1110.11(a)(4), and that the information in the certificate is true and accurate to the best of the certifier's knowledge, information, and belief. Finally, the certifier would acknowledge an understanding that it is a federal crime to knowingly and willfully make any materially false, fictitious, or fraudulent statements, representations, or omissions, on the certificate. The proposed language stems from 18 U.S.C. 1001. The language in this section serves several purposes. First, the certificate is an attestation of compliance. The existing certificate requirements do not state explicitly what attestation or affirmation the certifier is making with regard to the products covered by the certificate. Thus, the proposed language would make plain to everyone the scope and gravity of the obligation being made. Second, requiring each certificate to include this language would educate the certifier, including foreign certifiers, of the certifier's obligations under United States law. Finally, some portions of the applicable consumer product safety rules that require compliance, such as certain labeling requirements, are not subject to testing. The attestation is an affirmation by the certifier that the product complies with all the requirements of the applicable rules, not only those provisions for which there are test results.

11. Electronic Access to Records—Proposed § 1110.11(b)

Proposed § 1110.11 would contain a new subsection (b) regarding electronic access to records. This new provision would allow a certificate to include a Web address that links to required records, in addition to identification of the custodian of records, as described in proposed § 1110.11(a)(6). Providing contact information for a custodian of records is a statutory requirement, but certifiers may find it efficient for business and regulatory purposes also to provide a direct link to the required records. For example, § 1109.5(g) of the Component Part Rule requires that “testing parties” and “certifiers,” as defined in that rule, must provide certain documentation, which may include, for example, a component part certificate to certifiers intending to rely upon such documentation to certify a product. Thus, to the extent that such records already exist in an easily accessible electronic format to meet recordkeeping requirements in other rules, access to this same electronic format can be provided on a certificate.

12. Statutory or Regulatory Testing Exclusions—Proposed § 1110.11(c)

Proposed § 1110.11(c) is a new provision that would describe what certifiers must put on a certificate when a certifier is claiming statutory or regulatory testing exclusions for any applicable rules. In such a case, the certifier must list all of the applicable rules, and then state when the product is not subject to testing for a specific rule, and the statutory or regulatory basis for such claim, instead of providing the date and place where testing was conducted. Certifiers are already doing this in many instances, but this requirement would ensure that certifiers are consistent in how they document exceptions on a certificate. So, for example, if a manufacturer makes a children's product (not a toy) that is made entirely of untreated wood, but the product is painted, then the certifier will need to issue a certificate of compliance stating that the paint on the product is compliant with 16 CFR part 1303, the Commission's rule on lead in paint. The children's product is also subject to the lead content requirement in section 101 of the CPSIA, but the manufacturer can rely on the Commission's determination at 16 CFR 1500.91 that untreated wood does not contain more than 100 ppm lead content. The manufacturer must list both the lead in paint and the lead content rule on the certificate. Applicable information on the date and place of testing, and the third party conformity assessment body that conducted testing, must be provided for the testing conducted on lead in paint. For lead content testing, however, the certifier must state on the certificate that it is relying on § 1500.91 to meet the requirement.

13. Duplicative Testing Not Required—Proposed § 1110.11(d)

Finally, proposed § 1110.11(d) is a new section of the rule that would explain that “[a]lthough certificates must list each applicable rule, ban, standard, or regulation separately, 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 law enforced by the Commission.” It has come to the attention of the Commission that some standards, such as some of the durable infant and toddler standards, may fully incorporate or refer to an existing mandatory rule for children's products, such as the rule on lead in paint, codified at 16 CFR part 1303, and the rule on small parts, codified at 16 CFR part 1501. Some testing laboratories have advised their clients that such testing must be conducted twice; once as a standalone requirement and once as part of another, larger standard. This is not the position of the Commission. Although each applicable standard must be listed on the certificate, a certifier may certify compliance to both the standalone rule and the rule as incorporated into another standard, by testing it once as part of the larger standard where it is incorporated. For example, the mandatory standard for toddler beds, codified at 16 CFR part 1217, incorporates the Commission's standard for lead in paint (16 CFR part 1303) and for small parts (16 CFR part 1501). A certificate for a toddler bed must list all three mandatory standards, but may rely on the lead in paint and small parts testing conducted as part of the testing for the toddler bed standard to meet the requirements for 16 CFR parts 1303 and 1501.

G. When must certificates be made available?—Proposed § 1110.13

Existing § 1110.13 states the requirement in section 14(g)(3) of the CPSA that certificates required by section 14(a) “accompany” each product or product shipment and be “furnished to each distributor and retailer of the product in question.” Existing § 1110.13 states that an electronic certificate satisfies the “accompany” requirement if the certificate is identified by a unique identifier and can be accessed via a World Wide Web URL or other electronic means, provided the URL or other electronic means and the unique identifier are created in advance and are available, along with access to the electronic certificate itself, to the Commission or to the Customs authorities as soon as the product or shipment itself is available for inspection. The existing section also states that an electronic certificate satisfies the “furnish” requirement if the distributor(s) and retailer(s) of the product are provided a reasonable means to access the certificate and it further provides that “[a]n electronic certificate shall have a means to verify the date of its creation or last modification.”

Proposed § 1110.13 would modify the existing section in several ways, and incorporate the concept of availability in existing § 1110.7(c). Unlike the current provision, proposed § 1110.13 would not be limited to requirements for electronic certificates because requirements for electronic certificates generally have been moved to proposed § 1110.9(c). Accordingly, proposed § 1110.13 would set forth requirements for when certificates must accompany regulated products, and when they must be made available to CPSC and furnished to retailers or distributors.

The proposed rule would describe requirements for when a certificate must accompany a finished product or finished product shipment that is required to be certified pursuant to § 1110.5. It would require that such certificates be issued by a finished product certifier and state that only finished products would be required to be accompanied by a certificate. The Commission would limit the requirement for products to be accompanied by a certificate to finished products because component part certification is voluntary, and not all component parts are certified. Component part certificates must be maintained as supporting documentation, as described in the 1109 rule, if such component part certificates are being relied upon by a required finished product certifier to issue a finished product certificate.

1. Accompanying Certificates for Imported Products—Proposed § 1110.13(a)(1)

Proposed § 1110.13(a)(1) would require that for finished products that are manufactured outside the United States and are imported for consumption or warehousing, the importer must file the required GCC or CPC electronically with the CBP at the time of filing the CBP entry or at the time of filing the entry and entry summary, if both are filed together. Such a change would aid the Commission in enforcing the requirement to certify regulated products that require a certificate; and, if the certificate were required to be filed with CBP in the form of data elements, would aid the Commission to search the data elements on a certificate by uploading the information into a database. A database containing certificate information would enhance the Commission's ability to target shipments for inspection and track the accuracy of certificates. Because the proposed rule would require filing certificates electronically with CBP, the certificate, of necessity, would be available to the Commission and to CBP upon import; accordingly, the “accompany” requirement does not need to be restated as in the existing version of § 1110.13(a)(1).

Note that the requirements for certificates filed electronically with CBP in proposed § 1110.13(a)(1) would be specifically excluded from electronic certificate requirements for all other purposes as described in proposed § 1110.9(c). The Commission would leave the technical requirements for filing certificates electronically with CBP broad, to accommodate CBP's system resources. The Commission's ultimate goal would be to require filing of certificates with CBP in the form of data elements so that certificate contents can be uploaded into a database for targeting purposes. However, we realize that such a requirement may require software upgrades by CBP, CPSC, and stakeholders that must be completed in stages. Additionally, CPSC requires the assistance and cooperation of CBP to implement and maintain the receipt of certificates in an electronic format, and the CPSC must be mindful of resource limitations and stakeholder adjustments in implementing this new requirement. Initially, if the Commission requires electronic filing of certificates at the point of entry, we would likely allow such filing of certificates in two ways: (1) Inserting an electronic copy of the certificate with the entry, such as a pdf file of the document; or (2) uploading the 10 required data points on a certificate into CBP's designated system of record. [1]

We welcome comments on the resources required to file the certificates electronically with CBP. Stakeholders are encouraged to comment on the format for filing certificates with CBP, including the two formats discussed (pdf format versus data elements format). The Commission is requesting comment on an additional option for filing electronic certificates at an earlier point in the import process, at manifest, in section III.2 of this preamble.

2. Accompanying Certificates for Products Made in the United States—Proposed § 1110.13(a)(2)

Proposed § 1110.13(a)(2) would require that in the case of finished products manufactured in the United States, certificates shall not be filed with CPSC. Instead, the “accompany” requirement is met if a finished product certifier, as defined in proposed § 1110.3(11), makes a certificate available for inspection by CPSC on or before the date the finished product is distributed in commerce. Pursuant to proposed § 1110.9(b), this may be accomplished, for example, by placing a copy of the certificate in the shipping container with the product, or by meeting the requirements for an electronic certificate. Unlike imported products, we do not want certificates for products made in the United States to be filed with the government as a matter of course. We do not have the infrastructure in place to accommodate or review certificates for all regulated products made in the United States. Enforcement of these certificates will continue to be based on Commission resources and targeting efforts.

3. Accompanying Certificates for Imported Products Delivered Directly to Consumers in the United States—Proposed § 1110.13(a)(3)

Proposed § 1110.13(a)(3) would require that in the case of finished products that are manufactured outside the United States and are imported for consumption or warehousing, that are delivered directly to consumers in the United States, the foreign manufacturer or the importer, as provided in § 1110.7(a), has the option to either file the required GCC or CPC electronically with the CBP as provided for in paragraph (1), or may make the certificate available for inspection by CPSC on or before the date the finished product is distributed in commerce as provided in paragraph (2). Whether the certificates are filed with CBP depends on whether formal entry is made. If no formal entry is made for these products with CBP, then the certificate must still be made available to the Commission, either in hard copy or electronically, as set forth in § 1110.9, on or before the products are distributed into United States commerce.

4. Furnishing Certificates—Proposed § 1110.13(b)

Existing § 1110.13(b) states that an electronic certificate must have a means to verify the date of its creation or the last modification. The proposed rule would delete this provision because proposed § 1110.11(a)(2) would require the certificate to state the date of initial certification. Proposed § 1110.13(b) would state the statutory requirement in section 14(g)(3) of the CPSA that a copy of the certificate shall be furnished to each distributor or retailer of the product. The proposed rule would clarify who must provide such a certificate (a “finished product certifier,” which is defined in § 1110.3(11) as a party that is required to issue a finished product certificate pursuant to § 1110.7), and for what types of products (finished products).

5. Availability of Certificates—Proposed § 1110.13(c)

Proposed § 1110.13(c) is a new section that would state the requirement contained in sections 14(g)(3) and (g)(4) of the CPSA, that certificates must be provided to the Commission and to CBP upon request. The proposed rule would state: “Certifiers must make certificates available for inspection immediately upon request by CPSC or CBP.” This provision would apply to all types of certifiers, to all types of certificates (GCCs, CPCs, and component part), and at any time after a product is offered for import or distributed in commerce. The Commission interprets the word “immediately” consistent with other CPSC rules, to mean “within 24 hours.” However, we would expect that GCCs and CPCs would be made available to CPSC in a very short time, either at the time of request, or shortly afterward, because finished products are required to be accompanied by a certificate that is generated before importation or distribution in commerce, and must be either in hard copy with the product, or electronically available, as described in proposed § 1110.9(c).

H. Who is responsible for the information in a certificate?—Proposed § 1110.15

Existing § 1110.15 states: “Any entity or entities may maintain an electronic certificate platform and may enter the requisite data. However, the entity or entities required by CPSA section 14(a) to issue the certificate remain legally responsible for the accuracy and completeness of the certificate information required by statute and its availability in timely fashion.” This provision was intended to allow third parties to assist with electronic certificate maintenance, while ensuring that the party certifying the product remained responsible for its contents.

Proposed § 1110.15 would maintain this concept but would broaden it to include component part certifiers by using the term “certifiers” in the first sentence. Certifiers may have any entity maintain an electronic certificate platform, or enter the requisite data, but the certifier would remain responsible for the contents of a certificate. The description of the certifier's responsibility with regard to certificate content would be broadened in the proposed rule to include its validity, accuracy, completeness, and availability, as applicable.

I. What recordkeeping requirements apply to certificates?—§ 1110.17

Proposed § 1110.17 would be a new provision intended to summarize the existing recordkeeping requirements that apply to certificates. The requirement to create and maintain certificates based on third party testing of children's products arises from § 1107.26 of the Testing Rule. Recordkeeping for component part certificates, and reliance on another party's certificate or testing to certify a finished product, arises out of §§ 1109.5(g) and 1109.5(j) of the Component Part Rule. To assist stakeholders in understanding the various recordkeeping provisions that apply to certificates, proposed § 1110.17 restates such requirements.

While some consumer product safety rules, and other similar rules, bans, standards, or regulations, may already have a recordkeeping requirement; other regulations may not be subject to a recordkeeping provision. For example, the Commission's safety standard for bicycle helmets (16 CFR part 1203) contains a recordkeeping provision, but the safety standard for swimming pool slides (16 CFR part 1207) does not. For all GCCs, regardless of whether there are underlying record keeping requirements or not, the proposed rule states that certifiers of GCCs must maintain the certificate and supporting test records where required for at least 5 years. Maintenance of such records, for example, may aid both the certifier and the Commission in the event of an investigation or product recall.

J. What requirements apply to component part certificates?—§ 1110.19

Proposed § 1110.19 would be a new provision to explain which requirements in part 1110 apply to component part certificates. It would state that component part certificates are voluntary and that component parts of consumer products would not be required to be accompanied by a certificate, nor would such certificates need to be furnished to retailers and distributors, as described in proposed § 1110.13(b). CPSC also would not want component part certificates to be filed with CBP upon importation of component parts. Instead, certifiers of component parts would need to meet the requirements in the Component Part Rule, and component part certificates would also need to meet the form, content, and availability requirements described in the proposed rule in sections 1110.9, 1110.11, 1110.13(c), 1110.15, and 1110.17.

III. Request for Comments Back to Top

The Commission encourages stakeholders to comment on all sections of the proposed amendments to 16 CFR part 1110, and specifically request comment on the following additional issues. Comments should be submitted in accordance with the instructions in the ADDRESSES section at the beginning of this notice.

1. The Commission is considering requiring certificates to state not only the place of manufacture in proposed § 1110.11(a)(7), but also to identify the name of the manufacturer, including foreign manufacturers. Stakeholders have argued in other contexts that the name of a foreign manufacturer is proprietary. This information, however, would be useful to the Commission and distributors in recall situations, and it would also be useful to the Commission for enforcement purposes. Investigating facts and limiting recalls would be enhanced, and thus, enforcement would be enhanced. We welcome comments on the nature of the information, whether, why, and how it may be confidential, and how the information being available outside the Commission advances, or does not advance, safety. The Commission is also interested in ideas that would allow manufacturers to be named on a certificate for disclosure to the Commission, but would protect their name from others, should it be an issue. The Commission, for example, could allow a private labeler or distributor to redact the name of a foreign manufacturer or supplier, as long as this information is readily available to CPSC. What reasons are there for retailers or others to know the names of suppliers on a certificate, if the CPSC has ready access to this information?

2. The Commission is also considering allowing, but not requiring, certificates to be filed electronically with CBP in advance of filing an entry, such as at the time of manifest. We welcome stakeholder input on this concept.

3. Proposed § 1110.5 states that finished products subject to a ban enforced by the Commission, which are imported for consumption or warehousing or are distributed in commerce, must be accompanied by a GCC or CPC. The Commission has provided guidance regarding which bans require certification because we recognize it may be difficult at times to distinguish those bans that ban an entire product category leaving no products left to certify. Some bans enforced by the Commission apply to multiple products or more than one product category. For example, when the ban on products containing soluble cyanide salts, (16 CFR 1500.17(a)(5)) was first established in 1972, it was known that cyanide salts were used in different products or product categories such as soldering solutions, coin cleaning solutions, and some silver polishes. The banning rule excludes unavoidable manufacturing residues of cyanide salts in other chemicals that under reasonable and foreseeable conditions of use will not result in a concentration of cyanide greater than 25 part per million. The Commission seeks comments from stakeholders regarding the current use of cyanide salts in consumer products as it considers its guidance as to whether manufacturers must issue a GCC to show compliance with the ban on soluble cyanide salts.

4. When the Commission originally issued part 1110 in 2008, it did so as a direct final rule and without performing a Paperwork Reduction Act analysis. Therefore, the Commission seeks comments now from the public on ways that the economic burden of part 1110 could be reduced, consistent with the Commission's underlying obligation to enforce 15 U.S.C. 2063.

5. The Commission has proposed language at § 1110.5 that identifies the products subject to a ban that would be required to provide certificates under this rule. Table A in section II.C of this preamble provides the agency staff's assessment identifying which banning rules apply to products that would require a certificate. The Commission seeks comments regarding Table A.

6. Although the Commission believes that the recordkeeping provision to harmonize the time period for keeping GCCs and CPCs will not present any significant compliance challenges, we seek comments on whether any recordkeeping provisions contained in a specific CPSC rule will present difficult or unusual compliance challenges due to the unique recordkeeping requirements of the specific rule.

7. Proposed § 1110.9(c) states that an electronic certificate can meet the requirements of the relevant provisions if it is identified prominently by a unique identifier and can be accessed via a World Wide Web uniform resource locature (URL) or other electronic means by the Commission (and others) without password protection. The Commission seeks comments on ways to make that information available only to the agency, CBP, distributors, and retailers.

IV. Environmental Impact Back to Top

Generally, the Commission's regulations are considered to have little or no potential for affecting the human environment, and environmental assessments and impact statements are not usually required. See 16 CFR 1021.5(a). The certificate requirements in the proposed rule are not expected to have an adverse impact on the environment, and fall within the categorical exclusion in 16 CFR 1021.5(c)(2) for product certification rules. Accordingly, an environmental assessment or environmental impact statement is not required.

Executive Order 12988 (February 5, 1996) requires agencies to state in clear language the preemptive effect, if any, of new regulations. The proposed rule would be issued under the authority of the CPSA and the CPSIA. The CPSA provision on preemption appears at section 26 of the CPSA. The CPSIA provision on preemption appears at section 231 of the CPSIA. The preemptive effect of this rule would be determined in an appropriate proceeding by a court of competent jurisdiction.

VI. Regulatory Flexibility Act Back to Top

The Regulatory Flexibility Act (RFA) requires that proposed rules be reviewed for the potential economic impact on small entities, including small businesses. Section 603 of the RFA requires agencies to prepare and make available for public comment an Initial Regulatory Flexibility Analysis (IRFA), describing the impact of the proposed rule on small entities and identifying impact-reducing alternatives. In addition, the IRFA must contain a description of any significant alternatives to the proposed rule that would minimize any significant economic impact of the proposed rule on small entities. This section summarizes CPSC staff's initial regulatory flexibility analysis for the proposed rule amending 16 CFR part 1110.

A. Reasons for Agency Action and Objective of the Proposed Rule

The proposed revisions to 16 CFR Part 1110: Certificates of Compliance are needed to add definitions, clarify language, and make the requirements consistent with new regulations, Testing and Labeling Pertaining to Certification (16 CFR part 1107) and Conditions and Requirements for Relying on Component Part Testing or Certification, or Another Party's Finished Product Testing or Certification, to Meet Testing and Certification Requirements (16 CFR part 1109). The proposed rule would also implement part of section 14(g) of the CPSA by requiring that importers of regulated finished products file the required certificate electronically with CBP.

More specifically, the proposed rule revises the existing regulation by adding 13 new definitions. The new definitions clarify the three different types of certificates of compliance: General Conformity Certificates, Children's Product Certificates, and component part certificates. The definitions also clarify the types of products that can be certified as either finished products or component parts. The proposed rule clarifies when certificates are required to accompany a finished product, who must certify a finished product, as well as the form and content requirements for certificates. Among these clarifications is new language holding foreign manufacturers responsible for certification of products delivered directly to consumers in the United States, such as products purchased through an Internet Web site, unless private labelers certify the products. The proposed rule revises the certificate requirement for domestically manufactured products to require a private labeler to certify a privately labeled product, unless a domestic manufacturer certifies the product. Finally, the proposed rule requires importers of regulated finished products manufactured outside of the United States to file the required certificate electronically with CBP at the time of filing the CBP entry or at the time of filing the entry and entry summary, if both are filed together.

B. Small Entities Subject to the Proposed Rule

The proposed revisions to part 1110 will apply to importers and domestic manufacturers, and will be extended to include private labelers for privately labeled domestic products (unless certificates are provided by manufacturers). It is difficult to know the number of small businesses that would, with certainty, be affected by the rule. Research of CBP data by CPSC staff found that during 2009, there were 231,094 distinct importers of products categorized in import codes likely to include products under CPSC's jurisdiction. The great majority of these firms (perhaps 90 percent or more) are likely to be small businesses under U.S. Small Business Administration (SBA) size standards for manufacturers, wholesalers, or retailers. On the basis of this information, each year as many as 210,000 small businesses might import products under CPSC jurisdiction that would make them subject to the proposed rule. However, firms that only import consumer products that are not subject to product safety rules requiring certification would not be affected by the electronic filing requirement.

In most cases, domestic manufacturers will continue to have the responsibility of providing certificates for products subject to a consumer product safety rule under the CPSA or other laws enforced by the Commission. According to Census of Manufactures data for 2007, about 104,000 companies manufactured products in the North American Industry Classification System (NAICS) codes that are likely to have included products under CPSC jurisdiction. [2] Although more than 90 percent of these firms (i.e., close to 100,000) are considered small businesses under SBA guidelines, a significant percentage probably are not engaged in manufacturing products that are subject to a product safety rule. Still, tens of thousands of small manufacturers currently are responsible for providing certificates. Under the proposed rule, some of the burden of providing certificates could be transferred to small private labelers.

C. Reporting, Recordkeeping, and Other Compliance Requirements of the Proposed Rule

The proposed revisions to part 1110 include the imposition of the new reporting requirement on importers of regulated finished products to file certificates of compliance (General Conformity Certificates or Children's Product Certificates) electronically with CBP at the time of filing the CBP entry or at the time of filing the entry and entry summary, if both are filed together. This electronic filing requirement would be in addition to other electronic importer security filing requirements already imposed by CBP. It is important to note that many importers, including those that are small businesses, already make electronic certificates available under the existing part 1110, to satisfy the requirement that certificates accompany products, are furnished to distributors and retailers, and are available to the CPSC “as soon as the product or shipment is available for inspection.” Thus, for these firms, the incremental requirement would simply call for these certificates also to be provided electronically to the CBP.

Because the proposed requirement for electronic filing of certificates for imported products does not specify how that is to be accomplished, importers will have some flexibility in their method of compliance. For example, the preamble of the proposed rule discusses that certificates could be maintained as pdf files, or certificates could be provided in the form of data elements and uploaded to CBP's system of records. Importers relying on paper certificates of compliance for distributors and retailers would have to create electronic certificates; however, these firms are likely to have the necessary office equipment and personnel to create and transmit these certificates electronically. Since 2010, small businesses that import merchandise (including products under CPSC jurisdiction) by ocean vessel have been required to file information related to the shipments electronically with CBP no later than 24 hours prior to the ship's arrival at a U.S. port, pursuant to CBP's rule titled, Importer Security Filing and Additional Carrier Requirements (commonly known as “10+2”). Small importers often hire Customs brokers licensed by CBP to handle the procedures that must be followed to import goods; the proposed requirement of electronic filing of certificates will likely be added to the duties performed by these brokers.

Based on the current business practices of small businesses that import consumer products, the incremental costs of the requirement to file an electronic certificate of compliance should be minor. If electronic filing costs are similar to typical fees reportedly charged by Customs brokers for filing the required Importer Security Filing data elements, they might be $25 or less, per filing. CBP estimated that “in 2005, more than 70 to 85 percent of all importers imported fewer than 12 shipments.” [3] Assuming this applies to importers of consumer products, annual incremental costs of electronic filing of certificates of compliance could be less than $275 for most small businesses that import products that require certificates of compliance. This estimate is based on the assumption that one certificate of conformance would be required per shipment. If multiple certificates are required per shipment, costs could be higher. As noted by CBP in its assessment of costs of security filing requirements, some small importers of consumer products subject to electronic filing of certificates under part 1110 could choose to file the certificates electronically themselves with CBP, if their own filing costs are lower than fees charged by brokers. [4]

Another proposed revision to part 1110 revises the requirement for certification of domestically manufactured products to require that privately labeled products be certified by the private labeler, unless the domestic manufacturer issues a certificate. This amendment would result in a shift in the obligation to provide certificates from some small manufacturers to some small private labelers. However, these small private labelers can choose to continue to rely on the certificates that the manufacturers are currently required to provide, or they can use such certificates as a basis for issuing their own certificates. Moreover, the revisions would grant private labelers the authority to issue certificates, which some may prefer. While some private labelers may experience some impact, this impact should not be significant because it is expected that some manufacturers will continue to issue certificates as they are now legally required to do.

D. Other Federal Rules

For small businesses importing consumer products by containerized shipping vessel, this electronic filing requirement would be in addition to other electronic importer security filing requirements already imposed by CBP. Since 2010, small businesses that import merchandise (including products under CPSC jurisdiction) by ocean vessel have been required to file information related to the shipments electronically with CBP no later than 24 hours prior to the ship's arrival at a U.S. port. One of the elements required to be filed under the CBP's rule (Importer Security Filing and Additional Carrier Requirements, or “10+2 rule”) is the name and address of the manufacturer or supplier of the finished goods in the country or origin, although alternative forms of manufacturer identification, such as identification numbers, are also acceptable. This CBP element is similar, but not identical, to the required information on date and place of manufacture required by certificates of compliance.

E. Alternatives to the Proposed Rule

One alternative to the proposed rule would be allowing, rather than requiring certificates for imported products to be filed at entry. If this alternative were to be adopted, the certificate would still have to be available for inspection upon request, as it is now. Allowing, instead of requiring certificates to be filed electronically at entry would reduce the burden on small businesses, but it might not enhance the Commission's ability to target shipments for inspection and to track the accuracy of certificates.

VII. Paperwork Reduction Act Back to Top

This proposed rule to amend 16 CFR part 1110 would create a new 5-year recordkeeping retention burden for GCCs and would also create a new reporting requirement by mandating that certificates for imported products be filed electronically with CBP. Accordingly, this proposed rule contains information collection requirements that are subject to public comment and review by the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

In addition to the new recordkeeping and reporting burden associated with the proposed rule, our burden estimates presented below provide additional estimates to cover categories of burdens omitted in previous information collections. The existing 1110 rule was issued by direct final rule in November 2008, and implemented the requirements in sections 14(a) and (g) of the CPSA to issue certificates for regulated products. For over four years now, regulated entities have incurred the costs associated with complying with these statutory requirements. Because a burden analysis for the creation and disclosure of certificates was not conducted in 2008, we provide here an estimated burden of $118,166,724 for those statutory requirements imposed by existing 16 CFR 1110 for costs associated with documenting test results, creating GCCs, and disclosing GCCs to third parties. We note these costs are separate from the $56,118,876 in estimated costs associated with filing GCCs with CBP and retaining GCCs and supporting test records for at least five years as required by this proposed amendment to 16 CFR 1110.

The recordkeeping burden analysis for the creation and maintenance of certificates based on third party testing of regulated children's products, CPCs, was set forth in 2011, in the Testing Rule and the Component Part Rule, culminating in a collection of information titled, Third Party Testing of Children's Products. That analysis did not cover third party disclosure of certificates for regulated children's products. Therefore, we provide here an estimated burden of $14,936,000 for third party disclosure of certificates for regulated children's products as required by 16 CFR 1107. We note this cost is separate from the $18,700,000 in estimated costs associated with filing CPCs with CBP as required by this proposed amendment to 16 CFR 1110.

Pursuant to section 14(a)(1) of the CPSA, non-children's products that are 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, must be certified as compliant with such rules, bans, standards or regulations. Certificates must meet the content, form, and availability requirements in the 1110 rule. For non-children's products that are required to be certified, the CPSC intends to create a new collection of information to estimate the burden of: recording test results or other information to support GCCs; creating GCCs; disclosing certificates to retailers or distributors, CPSC, and CBP; and maintaining GCCs and supporting test records for 5 years. Some of the applicable underlying rules already have certificate and recordkeeping requirements that have previously been described in an information collection request to OMB, but many do not. In addition to recordkeeping requirements in an underlying rule, the proposed rule would require that GCCs and supporting test records be maintained for at least 5 years.

Even where some rules have certificate requirements, such certificate requirements are not uniform and do not meet the minimum certificate content requirements set forth in section 14(g) of the CPSA, as implemented in the 1110 rule. Pursuant to section 14(g) of the CPSA, each certificate must accompany the applicable product or product shipment, be furnished to each distributor or retailer of the product, and furnished to CPSC, upon request. Additionally, each certificate must identify: The issuer of the certificate; any third party conformity assessment body that performed testing on which the certificate relies; the date and place of manufacture; the date and place of testing; each party's name, full mailing address, telephone number; and contact information for the individual responsible for maintaining records of test results. Thus, the certificate requirement in section 14(g) of the CPSA, as implemented in the 1110 rule, may be seen as an additional requirement for rules that require an on-product certificate, such as 16 CFR part 1205, Safety Standard for Walk-Behind Power Lawn Mowers. The statutory certificate requirement also may be seen as adding content requirements to the certificates described in rules that already require a certificate, such as 16 CFR part 1204, Safety Standard for Omnidirectional Citizens Band Base Station Antennas.

The recordkeeping burden for the creation and maintenance of certificates required by sections 14(a) and (g) of the CPSA for children's products is already described in the collection of information on Third Party Testing of Children's Products. We propose to amend the collection of information on Third Party Testing of Children's Products to estimate the increase in burden for third party disclosure of CPCs to retailers, distributors, and to CBP, as set forth in the proposed rule.

We invite comments on: (1) Whether the amendment to the collection of information on Third Party Testing of Children's Products, and the new collection of information on Certification of Non-Children's Products, are necessary for the proper performance of the CPSC's functions, including whether the information will have practical utility; (2) the accuracy of the CPSC's estimate of the burden of the proposed collection of information, including the validity of the method and assumptions used; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques, when appropriate, and other forms of information technology.

Title: Non-Children's Products—Certification of Non-Children's Products.

Children's Products—Amendment to collection on Third Party Testing of Children's Products (OMB control number 3041-0159).

Description: We would create a new collection of information for regulated non-children's products describing the annual reporting burden to: document test results or other information on which a certificate is based; create GCCs; furnish GCCs to retailers or distributors, the CPSC, and CBP; file certificates for imported products electronically with CBP; and maintain GCCs and supporting test records for 5 years. We would also amend the collection of information related to Third Party Testing of Children's Products to estimate the increase in the annual reporting burden for certifiers of children's products to furnish CPCs to retailers and distributors, and for importers of children's products to file electronic CPCs with CBP.

The burden analysis for GCCs is comprehensive: it includes not only the new burdens associated with the proposed rule but also covers burdens not accounted for in previous rulemakings or in burden analysis submissions to OMB. As noted above, the proposed rule includes a new disclosure requirement for finished products manufactured outside the United States. When products manufactured outside the United States are imported for consumption or warehousing, the importer would be required to file either a CPC or GCC electronically with the CBP at the time of filing the CBP entry or the time of filing the entry and entry summary, if both are filed together. Such a requirement would implement section 14(g)(4) of the CPSA, which states that the Commission, in consultation with the Commissioner of Customs, may, by rule, provide for the electronic filing of certificates up to 24 hours before arrival of an imported product. All other burdens for GCCs are due to the statutory requirements for certificates, as set forth in the direct final rule for part 1110 issued in November 2008.

The burden estimates provided below are broken into four main categories: Creating GCCs for Non-Children's Products; Furnishing Certificates to Third Parties; Filing Certificates for Imported Products with CBP; and Maintaining GCCs and Test Records. These estimates reflect the burden to the finished product certifier only. We have made no attempt to estimate the additional burden, if any, to the federal government. Our estimates include the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing each collection of information.

Description of the Respondents: Finished product certifiers of 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, which are imported for consumption or warehousing, or are distributed in commerce.

Estimate of the Burden

A. Creating GCCs for Non-Children's Products

The estimates provided are intended to reflect the recordkeeping burden per product per year. In the collection of information for children's products, we estimated that the recordkeeping burden was about 3 to 5 hours per product, per year, on average. For non-children's products, we generally estimate that the recordkeeping burden to create GCCs and to document testing or other information on which the certificate is based is about 1.5 hours per product per year. This estimate reflects the fact that non-children's products are subject to fewer product safety rules than are children's products. Moreover, although some non-children's products manufacturers use third party testing, non-children's products are not subject to mandatory third party certification, material change, and periodic testing. The 1.5 hours per product estimate is consistent with comments that were received in response to the notice of proposed rulemaking for the Testing Rule. However, where we have information for specific products or rules that deviate from the general estimate, we use the more specific information.

Like children's products, great diversity exists among regulated non-children's products. Thus, certifiers of non-children's products have significant flexibility in procedures for testing and certifying their products. Although each regulated product must have a GCC, the reasonable testing program that generates test results or other information upon which a GCC relies may vary greatly. For example, the criteria for meeting the requirements of 16 CFR part 1202, Safety Standard for Matchbooks, can likely be met out of a quality assurance or quality management program, in contrast to the specific testing program that is required in 16 CFR part 1209, Interim Safety Standard for Cellulose Insulation. For this reason, as with children's products, we do not have a strong basis for estimating the recordkeeping burden based on specific records for each product or rule.

For each product or rule where no certificate or other recordkeeping requirement is currently in place, or where we have not previously provided an estimate of the recordkeeping burden to OMB, we estimate the burden to document testing or other information on which the certificate is based and to create GCCs to generally be 1.5 hours on average per product. For rules that already have a certificate requirement based on a testing program, we use estimates of less than 1.5 hours, generally 15 to 30 minutes per product, to create the GCC required by part 1110. The reduced burden for these rules reflects the fact that the recordkeeping burden associated with just creating a GCC in the required format should be less than the burden associated with both documenting the results of a reasonable testing program and creating a GCC.

We further note that in many, if not most cases, these records might be prepared several times a year per product. Thus, even if completing the required records for a single set of tests or preparing one GCC might seem to take only a few minutes, if multiple batches are certified annually, or the product is manufactured at more than one location, then the total burden during the year will be higher.

1. Glazing Materials (16 CFR part 1201)

Glazing materials used in or intended for use in doors and storm doors (including combination doors), bathtub doors and enclosures, shower doors and enclosures, and patio type sliding glass doors, are subject to the safety standard for architectural glazing materials (16 CFR part 1201). Part 1201 requires that manufacturers and private labelers of glazing materials certify their products in accordance with the requirements of section 14 of the CPSA. Although the Commission has previously submitted recordkeeping burden estimates to OMB, OMB approval of this collection of information expired in 1985. Accordingly, we will estimate the burden of creating GCCs for compliance with part 1201, as well as documenting test results demonstrating compliance.

The Glass Association of North America reports that it has about 400 members that are engaged in the manufacture, fabrication, and installation of glass and glazing products for residential and commercial applications. [5] The Safety Glass Certification Council (SGCC) maintains a third party certification program for glass and glazing products. SGCC states that it has certified 1,726 individual products from 262 individual participant manufacturers. SGCC believes that its members represent about 70 percent of the square footage of safety glazing materials. [6] Based on the SGCC figures, their 262 industry participants each have an average of just over six products. The estimates below are based on the assumption that the firms that do not participate in the SGCC program have the same number of products. We are estimating that it takes about 1.5 hours per product to document test results and to create GCCs.

Firms Total models Hours/Model Total hours
400 2,400 1.5 3,600

2. Matchbooks (16 CFR part 1202)

Matchbooks are subject to the safety standard for matchbooks (16 CFR part 1202). Although the Commission has submitted previously recordkeeping burden estimates to OMB, OMB approval of this collection of information expired in 1982.

Part 1202 is relatively straightforward, in that compliance to the standard can be determined by simply examining several samples of the product to ensure, for example, that the friction plate is on the outside back cover of the matchbook and that no match head is bridged, split or crumbling. Although the time spent keeping records of compliance for each batch or lot is probably low, multiple batches or lots of each product are likely manufactured annually.

According to one source, four matchbook manufacturers operate in the United States. [7] Although the printed covers might include a wide variety of designs, depending upon the customers, matchbooks generally come in just a few sizes, such as 20 strike, 30 strike, or 40 strike. We assume for purposes of this analysis that certification is based on the broader category of matchbook size, and not each individual matchbook cover design. Based on this assumption, each manufacturer would be certifying 3 different products or models annually.

Firms Total models Hours/Model Total hours
4 12 1.5 18

3. Bicycle Helmets (16 CFR Part 1203)

Bicycle helmets are subject to the safety standard for bicycle helmets (16 CFR part 1203). CPSC has provided some estimates of the recordkeeping burden to OMB in an earlier submission, which includes records for a reasonable testing program, the requirement to place a certification label on bicycle helmets, and a 3-year minimum record retention period. A GCC that meets the requirements specified in section 14(g) of the CPSA and the 1110 rule is now additionally required. Although it could take as little as 10 minutes to prepare a GCC for a given model of bicycle helmet, it is likely that models will be recertified several times during a year.

The most recent submission to OMB regarding bicycle helmets estimates that there are about 30 manufacturers and about 200 models of bicycle helmets. If we assume that about 17.5 percent of the models are intended for children aged 12 years or younger (based on the percentage of such children in the population), we can assume that about 165 of the models are not intended for children and require a GCC.

Firms Total models Hours/Model Total hours
30 165 0.5 83

4. Omnidirectional Citizens Band Base Station Antennas (16 CFR part 1204)

Omnidirectional citizens band base station antennas are subject to a product safety standard that is intended to reduce electrocution hazards associated with the antennas (16 CFR part 1204). Part 1204 requires specific types of testing, certificates, and certain records to be maintained for 3 years. An estimate of the burden for these requirements has previously been detailed in a submission to OMB. The content of the certificate required in part 1204, however, does not contain all of the information required by section 14(g) of the CPSA and the 1110 rule. Therefore, it is necessary to estimate the increased burden of creating GCCs with all of the required information.

One approach to estimating this burden is to assume that it takes about half an hour to prepare a GCC with the required information. Each certificate might take less time to prepare, but there could be multiple batches or lots of product in a given year that must be certified.

The existing PRA submission indicates that five firms manufacture these products. A Google search indicated that each firm might have more than one model, but only one company appeared to have more than three models. Thus, we estimate that each firm has three models.

Firms Total models Hours/Model Total hours
5 15 0.5 8

5. Walk-Behind Power Lawn Mowers (16 CFR part 1205)

Walk behind power lawn mowers are subject to the safety standard for walk-behind power lawn mowers (16 CFR part 1205). Part 1205 prescribes certain testing and recordkeeping requirements, including records of a reasonable testing program and certificates which are on-product labels. Such labels do not require the same content information required by section 14(g) of the CPSA and the 1110 rule. Burden estimates for part 1205 have been submitted to OMB previously. Thus, here we estimate only the increased burden of creating GCCs with all of the required information.

According to the existing PRA submission for part 1205, 1 hour per production day, per manufacturer, is added to the recordkeeping and testing burden to collect the information required for the certificate and to place it on the label. Our existing OMB submission for part 1205 assumes 130 production days a year. Thus, we assumed that each day's production will be certified individually or that there are multiple batches, and therefore, that multiple certificates will be issued for each model annually. We will use the same methodology to estimate the increased burden of creating the required GCC here. Accordingly, we assume 1 hour per day, per manufacturer to create the required GCCs for 130 production days out of the year. The existing PRA submission estimates that there are 20 manufacturers of walk-behind lawn mowers. If each manufacturer is in production 130 days per year and requires 1 hour per day for recordkeeping, then the annual burden per manufacturer will be 130 hours, or 2,600 hours for all manufacturers together.

Firms Total models Hours/Mfr. Total hours
20   130 2,600

6. Swimming Pool Slides (16 CFR part 1207)

Swimming pool slides are subject to the safety standard for swimming pool slides (16 CFR part 1207). Part 1207 includes requirements for testing swimming pools slides and for issuing a certificate based on a reasonable testing program, but no record retention period is provided. The certificate required in the rule contains fewer data elements than required by section 14(g) of the CPSA and the 1110 rule. We do not appear to have previously reported burden estimates for recordkeeping to OMB for part 1207. Therefore, we estimate the burden for recording test results for a reasonable testing program on which the GCC relies and for creating a GCC.

A retailer's Web site, which states that it offers swimming pool slides from most major manufacturers, has between 100 and 120 different models of pool slides. Some slide models appeared to be duplicates, however, and some of the products might not actually be covered by the standard. Given that the retailer might not offer all models, and allowing for duplicates and for the proposition that some products are not subject to the standard, we assume that there are a total 120 models of swimming pool slides.

Firms Total models Hours/Model Total hours
a few 120 1.5 180

7. Cellulose Insulation (16 CFR part 1209)

Cellulose insulation is subject to the interim cellulose insulation standard (16 CFR part 1209). Part 1209 includes comprehensive testing, recordkeeping, and certification requirements, including a 2-year record retention period. The certification required in part 1209 is in the form of a label on the product, and includes the day, month, and year of production. No prior OMB submission exists for this product, likely because part 1209 was implemented before enactment of the PRA. Therefore, for part 1209, we estimate the burden of documenting test results from the testing program required in part 1209, and creating a GCC.

Thirty-six producer members of the Cellulose Insulation Manufacturers Association (CIMA) were listed on its Web site (www.cellulose.org). Additionally, in 2000, CPSC staff identified a few manufacturers that were not members of CIMA, bringing the total estimated number of manufacturers to 44. Because the on-product certificate requirement in part 1209 requires specification of the date, month, and year of manufacture, and because the testing interval required in part 1209 must be short enough to demonstrate compliance with the standard, testing and certification of cellulose insulation is likely to occur several times a year. Thus, the recordkeeping for the required reasonable testing program and for certification is likely to take several hours each year for each manufacturer. Assuming that each manufacturer must issue a new certificate with the date of manufacture, that each manufacturer is in production 240 days a year, and that the recordkeeping requires 15 minutes per day, then the burden per manufacturer per year would be 60 hours.

The estimate of 44 manufacturers is significantly lower than the estimates of the number of firms in the market in the late 1970s. In 1976, there were 100 manufacturers with 125 plants. In 1978, the Federal Trade Commission compiled a list of more than 700 manufacturers. [8] If the current estimate of 44 manufacturers is an underestimate, or if some manufacturers have more than one plant, the total recordkeeping burden would also be underestimated.

Firms Total models Hours/Mfr. Total hours
44 n.a. 60 2,640

8. Cigarette Lighters (16 CFR part 1210) and Multipurpose Lighters (16 CFR part 1212)

Cigarette lighters and multipurpose lighters are subject to the child-resistance requirements established by 16 CFR parts 1210 and 1212, respectively. Parts 1210 and 1212 set forth comprehensive testing, certification, and recordkeeping requirements, including a 3-year minimum retention period. Estimates of the recordkeeping burden for parts 1210 and 1212 have been submitted to OMB previously. Here, we estimate the incremental burden associated with creating a certificate containing the information required by section 14(g) of the CPSA and the 1110 rule because the certificates provided in parts 1210 and 1212 require less information.

Before a manufacturer or importer can distribute a lighter model in the United States, it must first file a report with the CPSC. From October, 2005 to February 12, 2013, CPSC has accepted 6,667 reports of new cigarette or multipurpose lighter models from a total 145 companies. We believe this is a reasonable estimate for the number of lighter models for which GCCs will be required in a given year for the following reasons. First, once CPSC accepts a report of a new model, the lighter model can continue to be distributed without future reports. Second, although only one or two lots of some lighter models might be manufactured or imported, multiple lots of some lighter models might be manufactured in some years. Finally, there are probably some lighter models that were reported to CPSC prior to FY 2005, which are still being distributed. More than 600 million individual lighters are manufactured or imported into the United States annually.

We estimate the burden to create a GCC to be about 15 minutes per model. Once the certificates are modified, the incremental cost of including additional data could be negligible.

Firms Total models Hours/Model Total hours
145 6,667 0.25 1,667

9. Residential Automatic Garage Door Openers (16 CFR part 1211)

The automatic residential garage door opener standard (16 CFR part 1211) contains guidance for a reasonable testing program, an on-product certificate requirement, and recordkeeping requirements, including a minimum 3-year record retention period. The on-product certificate required by part 1211 does not contain all of the data elements required for a GCC in section 14(g) of the CPSA and the 1110 rule. Moreover, an exemption for on-product certificates is provided under certain circumstances. An estimate of the recordkeeping burden of the rule has been provided to OMB previously. The most recent PRA submission to OMB estimates that there are 21 respondents that require about 40 hours each for maintaining the records required by the regulation. Therefore, here we will estimate only the burden of issuing certificates with the required information. We estimate the annual burden of creating compliant GCCs, separate from the label, to be about 30 minutes per model.

Based on a review of the garage door openers available at some home or building supply retailers, each manufacturer could offer a few different models (e.g., 1/2horsepower,3/4horsepower, with and without battery backup). For purposes of these estimates, we assume that each manufacturer has about four different models.

Firms Total models Hours/Model Total hours
21 84 0.5 42

10. Furniture (16 CFR parts 1303 and 1213)

General use furniture, which is furniture that is not designed or primarily intended for children 12 years of age or younger, is subject to the rule banning the use of lead paint in excess of 90 parts per million (ppm) (16 CFR part 1303). General use bunk beds are also subject to a standard intended to reduce entrapment hazards (16 CFR part 1213). Neither of these rules has explicit recordkeeping or certification requirements, and no recordkeeping burden estimates have previously been submitted to OMB. Furniture subject to parts 1303 and 1213 must be certified as compliant, based on a test of each product, or on a reasonable testing program pursuant to section 14(a)(1) of the CPSA.

16 CFR Part 1303—Lead-in-Paint

When we estimated the recordkeeping burden for testing and certification of furniture that would be considered a children's product in 16 CFR part 1107, we estimated that there were 54,000 models of furniture intended for children 12 years of age or younger. We estimated 54,000 models by counting the models of children's furniture offered by one large online retailer and estimating that it carried only about one-quarter of all the models of furniture available. If we assume that 54,000 models represents about 17.5 percent of all furniture models intended for children and adults, based on the percentage of the U.S. population that is 12 years of age or younger, one could infer that approximately 250,000 [9] furniture models are intended for people over 12 years of age. Metal furniture and furniture that does not have a paint or coating are not subject to part 1303. Unless the bunk bed standard applies, such furniture does not require a certificate. We assume that about half of the furniture items might be subject to the part 1303 lead-in-paint requirement. Based on a comment from a furniture industry trade association, which was submitted in response to the proposed Testing Rule, we derived an estimate of 30 to 45 minutes per model for the recordkeeping associated with a reasonable testing program for part 1303. [10] For purposes of these estimates, we have used the low end of this range.

16 CFR Part 1213—Bunk Beds

One large online retailer had about 1,200 items listed under “bunk bed.” If this retailer carries about one-quarter of all bunk bed models, this indicates that there are approximately 4,800 bunk bed models available. A review of the first 75 models indicates that about 12% of the models might be appropriate for people over the age of 12 years. Accordingly, there may be about 600 general use bunk bed models intended for people over the age of 12 years. We estimate the cost to document the reasonable testing program for bunk beds and to create a certificate to be 1.5 hour per model.

Regulation Total models Hours/Model Total hours
1303 125,000 0.5 62,500
1213 600 1.5 900
Total     63,400

11. Consumer Paints and Coatings (16 CFR part 1303)

In addition to paints and coatings applied to some furniture, paints and coatings for consumers' use are also subject to the 90 ppm lead limit (16 CFR part 1303). Exemptions to the scope of the paint lead limit include: coatings that are not intended for consumer use, agricultural and industrial products, mirrors, some metal furniture with factory-applied coatings, and artist paints. The recordkeeping burden to create GCCs for consumer paints and coatings has not been submitted to OMB previously.

Based on information available from the American Coatings Association (http://www.paint.org/about-our-industry/types-of-coatings.html), just over 50 percent of the paints, by value, would be subject to part 1303. Products subject to part 1303 include architectural coatings and aerosol coatings. Products that are not subject to part 1303 include industrial paints, marine paints, automotive paints, and industrial maintenance coatings. [11] The Bureau of the Census reports that there are 1,002 manufacturers of paint and coatings in the United States. [12] Based on data from the ACA, we assume that half of these manufacturers, 501, create paints and coating that are subject to part 1303. [13] One large manufacturer lists 82 different consumer products on its Web site. While this estimate might not account for all different colors offered by this manufacturer, some smaller manufacturers might not have the full range of products that a large manufacturer might have. Therefore, we estimate that the average number of products, per manufacturer, is 82.

The testing of paint is reasonably simple; therefore, maintaining the records of a reasonable testing program and preparing the required certificate should not be overly time consuming. However, each batch is probably certified and dated, and multiple batches of each product are likely to be produced annually. Accordingly, we assume that 30 minutes, per product, to document testing and to create a GCC.

Firms Total models Hours/Model Total hours
501 41,082 0.5 20,541

12. All-Terrain Vehicles (ATVs) (16 CFR part 1420)

The CPSIA mandated that the Commission adopt the voluntary standard for ATVs as a mandatory standard. The mandatory standard for ATVs is codified at 16 CFR part 1420. No PRA submission has been made previously to OMB regarding part 1420 because that part does not contain specific recordkeeping or certification requirements. Pursuant to section 14(a)(1) of the CPSA, however, ATV manufacturers and private labelers are required to certify that their products meet the requirements of part 1420, based on a reasonable testing program or a test of each product.

While ATV testing is likely to take a minimum of several hours and could take more than a day, documenting the results of testing will likely take less time. We estimate that the burden to document a reasonable testing program for ATVs and to create the required GCC will be about 1.5 hours. One and a half hours could be a low estimate if multiple lots or shipments of ATVs are tested and certified annually. Based on information from the Motorcycle Industry Council and Power Products Marketing, we estimate that there are 32 manufacturers of ATVs that produce a total of 132 general use, non-children's, ATVs.

Firms Total models Hours/Model Total hours
32 132 1.5 198

13. Pools and Spas (16 CFR part 1450)

All pool and spa drain covers must meet the requirements of the Virginia Graeme Baker Pool and Spa Safety Act, which is codified at 16 CFR part 1450. The Commission has not previously estimated a recordkeeping burden associated with testing and certifying drain covers subject to part 1450. Accordingly, we estimate the burden to document a reasonable testing program for drain covers and to create the required GCC. A manufacturer directory, located at www.poolspanews.com, listed 12 manufacturers of drain covers. An examination of the Web sites of each of the manufacturers indicates a total of 136 different drain covers that are advertised as being compliant with the VGB requirements. Although this list might not be complete, it likely represents most of the industry. We assume that the recordkeeping burden to document a reasonable testing program and to create the required GCC will be about 1.5 hours per product, per year.

Firms Total models Hours/Model Total hours
12 136 1.5 204

14. Fireworks Devices (16 CFR part 1507; 16 CFR 1500.17(3) and 1500.17(8))

Fireworks that are not banned are subject to requirements set forth in 16 CFR part 1507 and sections 1500.17(3), and 1500.17(8). These fireworks provisions do not contain specific recordkeeping or certification requirements. Thus, the Commission has not provided a paperwork burden estimate to OMB previously. Here, we estimate the burden to document a reasonable testing program for fireworks and to create the required GCC.

Based on its knowledge of the industry, the Office of Compliance estimates that 115,000 different lots of fireworks devices are certified annually. The recordkeeping burden for documenting the testing and creating the GCCs is estimated to be about one hour per lot.

Firms Total lots Hours/Lot Total hours
  115,000 1 115,000

15. Bicycles (16 CFR part 1512)

Bicycles are subject to the requirements of the safety standard for bicycles, which is codified at 16 CFR part 1512. Part 1512 sets forth test requirements for bicycles and requires certain instructions and an on-product label, but the rule does not provide for specific recordkeeping requirements or a record-retention period. Therefore, no estimate of the recordkeeping burden has been submitted to OMB previously.

When considering children's bicycles previously for part 1107, we estimated that there were approximately 400 models of children's bicycles. Assuming that children's bicycles account for 17.5 percent of bicycle models, based on the percentage of the population that is 12 years of age or younger, there are approximately 1,900 [14] models of non-children's bicycles. Based on a review of a database of bicycle manufacturers, there may be 150 to 200 bicycle manufacturers whose products are sold in the United States. Testing a bicycle to part 1512 takes about 1 day. However, the time to record test results and to create a compliant GCC is likely about 1.5 hours.

Firms Total models Hours/Model Total hours
150 1,900 1.5 2,850

16. Clothing and Apparel (16 CFR parts 1610 and 1611)

Two standards apply to clothing and apparel that are intended to classify fabrics according to their burning rate and prohibit the introduction of dangerously flammable goods into commerce: (1) Standard for the flammability of clothing textiles (16 CFR part 1610), and (2) standard for the flammability of vinyl plastic film (16 CFR part 1611). Parts 1610 and 1611 set forth test requirements and recordkeeping requirements for issuing guaranties, not certificates. Both rules contain a 3-year record retention period. We previously estimated the recordkeeping burden for parts 1610 and 1611 to OMB. Although the certificate requirement in section 14 may be based on the testing required in the rules, creating a GCC is an additional recordkeeping burden. Here, we estimate the time required to create the required GCC.

Certain hats, gloves, footwear, and interlining fabrics are excluded from the scope of part 1610, as set forth in § 1610.1(c). No certificate is required for apparel that is not subject to part 1610. Many fabrics are within the scope of part 1610, but are exempt from testing because they meet the standard based on construction and fabric weight, or fiber content, regardless of construction or fabric weight, as set forth in § 1610.1(d). A GCC is required for all apparel within the scope of the rule, regardless of whether the fabric is exempt from testing. Accordingly, many certificates might state that the fabric is in compliance with part 1610 because the fabric meets one of the testing exemptions specified in § 1610.1(d).

The American Apparel and Footwear Association (AAFA) estimates that there are 20 billion units of clothing sold annually. A representative of AAFA estimated that on average each SKU of clothing has only about 100 units. On the assumption that one SKU is a size and color combination of a particular item, and further based on a review of several catalogs, we estimate an average of about 30 SKUs per clothing item. Based on this assumption, we estimate that approximately 6.7 million apparel items must be certified annually. We further assume that 17.5 percent of the 6.7 million apparel items are intended for people 12 years of age or younger (based on their percentage of the general population). Thus, we estimate that about 5.5 million apparel items require GCCs.

Given that many clothing items are likely produced seasonally, and the total number of units of some apparel items is fairly low, we assume that only a few batches of many items will be certified each year. Many apparel items will be exempt from testing under part 1610 based on the exemptions in § 1610.1(d), and other apparel items will be certified based on testing, guaranties, or certificates from fabric suppliers. Therefore, we assume that the recordkeeping burden per apparel item might be as little as 15 minutes. If multiple certificates must be issued for some apparel items or models, perhaps because different colors or sizes are produced on different dates or at different locations, the estimate could be low.

Firms Total models Hours/Model Total hours
(thousands) 5.5 million 0.25 1,375,000

17. Carpets and Rugs (16 CFR parts 1630 and 1631)

Carpets and rugs are subject to flammability requirements codified at 16 CFR parts 1630 and 1631. Parts 1630 and 1631 set forth testing and recordkeeping requirements, including a 3-year record retention period. However, the recordkeeping requirements apply to persons furnishing guaranties, not necessarily to manufacturers and private labelers. Although the existing OMB submission on these rules discusses the requirement to issue certificates, the burden estimate includes the burden associated with third party testing and certification of children's products only, and does not consider certification of general use carpets and rugs. Accordingly, here we provide an estimate for documenting a reasonable testing program and for creating the required GCC for non-children's carpets and rugs.

The existing PRA submission to OMB on carpets and rugs estimates that there are 120 firms subject to the information collection requirements, and that each of these firms is required to conduct between 0 and 200 tests per year. We use the midpoint of 100 tests per year per firm for the current burden estimate. The 2010 County Business Patterns report from the Census Bureau shows that there are close to 240 carpet and rug mills. The lower estimate in the PRA submission is based on an assumption that only half of the firms would either issue guaranties or certify children's products. We estimate that the time to create the certificate and the records of the tests on which it is based is about 1.5 hours per style. The time to conduct the tests is not included in this estimate.

On the assumption that GCCs for non-children's products could simply replace guaranties, one could use most of the assumption in the existing PRA submission, but assume that all firms will have to conduct testing and issue GCCs. Thus, there would be approximately 240 firms conducting about 100 tests annually. However, these estimates are only for domestic manufacturers. If there are a significant number of carpets and rugs that are imported, these estimates are low.

Firms Total styles Hours/Style Total hours
240 24,000 1.5 36,000

18. Mattresses (16 CFR parts 1632 and 1633)

Mattresses are subject to two flammability standards: (1) a smoldering ignition resistance standard codified at 16 CFR part 1632, and (2) an open-flame ignition resistance standard codified at 16 CFR part 1633. Parts 1632 and 1633 have comprehensive testing and recordkeeping requirements, including a 3 year minimum record retention requirement. Part 1633 has an on-product certificate requirement. The Commission previously provided a burden estimate for the recordkeeping requirements in parts 1632 and 1633 to OMB. Accordingly, here we only estimate the burden of creating the GCC required by section 14(g) of the CPSA and the 1110 rule.

The burden for all recordkeeping in these two rules except the generation of a GCC has already been included in the previous PRA submission to OMB. Because the only additional burden is to generate a GCC, we estimate this task to take 15 minutes per mattress. Estimates of the number of manufacturers and models are taken from the existing PRA submission for parts 1632 and 1633.

Firms Total models Hours/Model Total hours
671 13,420 0.25 3,355

19. Poison Prevention Packaging Act (16 CFR part 1700)

The Commission enforces the Poison Prevention Packaging Act (PPPA), which requires special packaging for some hazardous products to reduce the risk of children under 5 years of age from accidently coming into contact with, or ingesting the product, but still allows seniors the ability to access their medication. The Commission has promulgated 32 regulations that require a wide variety of products to be in special packaging. Products requiring special packaging include: All oral prescription drugs, oral prescription drugs that have been switched from requiring a prescription to being available for sale over-the-counter (OTC), many types of OTC drug products and preparations, some personal care products (including baby oil and many mouthwashes), and some hazardous household products (including many drain openers, furniture polishes, kindling and illuminating preparations, methanol, and kerosene). The full list of substances that require special packaging is codified at 16 CFR 1700.14.

The finished product certifier that must issue a GCC is the importer or the domestic party that packages a PPPA regulated substance in special packaging. Each distinct product subject to the PPPA must be covered by a GCC. For example, if a company sells a regulated OTC drug in four different types of special packaging, the company might require four different GCCs to cover each package type. A GCC is required for each type of child-resistant packaging.

We do not have a comprehensive database of all products, by all manufacturers (including but not limited to product manufacturers, packagers, package manufactures, and contract repackagers), that require special packaging. However, based on knowledge we have gained through various actions over the years concerning affected markets, we believe there could be more than 1,000 companies that might be responsible for issuing a GCC for covered products. The number of products that require GCCs may be between 100,000 and 200,000. This includes different packages of the same brand of a product packaged by one company.

The child resistance and senior use effectiveness of each special package type must be established by testing with panels of children and adults according to the protocols codified at 16 CFR § 1700.20. We estimate that the record keeping burden associated with the testing is about 20 hours per package type based on the burden estimate used for the cigarette lighter standard. [15]

One package might be used for many different products. Therefore, the recordkeeping burden could be spread over many different final products. A regulatory summary of the PPPA on the CPSC's Web site that was prepared by Commission staff states:

The importer or the domestic party that packages a PPPA regulated substance in special packaging must issue the general conformity certificate. The child resistance and senior friendly testing data (also known as protocol data) obtained in accordance with the procedures described under 16 CFR 1700.20 may be used by the importer or domestic packager to support its certification. The packager can rely upon this data as the basis for the reasonable testing program. There is no expiration date on these tests and no requirement to retest so long as the tests adequately reflect the current packaging used.

http://www.cpsc.gov/en/Regulations-Laws—Standards/Statutes/Poison-Prevention-Packaging-Act/. This means that a manufacturer of a PPPA-regulated product can rely on test data provided by the package manufacturer. Finished product certifiers that rely on another party's testing or certification to issue a finished product certificate must follow the Component Part Rule, 16 CFR part 1109.

Furthermore, each package does not have to be retested at regular intervals. Testing will generally occur only when a change is made to an existing package that could affect its compliance or a new package is introduced. Sometimes the manufacturer or packager of the final product (i.e., the drug or household substance) will conduct its own compliance testing to ensure that its products meet the requirements of the PPPA. Likewise, the GCCs might not need to be revised or reissued at regular intervals. Manufacturers of a product regulated under the PPPA may be able to rely upon the same GCC for a product until it changes the package or the certification or testing of the package changes.

We do not have concrete data regarding the average number of products for which a typical package is used; nor do we have concrete data on how frequently packages are retested, or how often manufacturers, importers, or private labelers of the final products will issue new GCCs. For purposes of this analysis, however, we are assuming that, on average, each different package is used for 100 different products. We are also assuming that, on average, each package is used for 4 years before it is retested because of a material change, the manufacturer has substituted a new package, or for any other reason. We assume further that the manufacturers, importers, or private labelers of the final products, on average, only issue new GCCs for a product once every 4 years.

As noted above, the recordkeeping burden associated with the protocol testing of a package is about 20 hours. If each package is used for 100 different products, and the testing is conducted, on average, every 4 years, then the average recordkeeping burden of the testing is about 3 minutes annually, per final regulated consumer product (e.g., drug or household product). We believe that it might take about 15 minutes to create and maintain the GCC for each consumer product regulated under the PPPA. If the GCC is created only once every 4 years for the average regulated product, then the annual recordkeeping burden for creating and maintaining the GCC will be about 4 minutes. Therefore, on average, the total recordkeeping burden per product regulated under the PPPA will be about 7 minutes. This includes the time required to create and maintain the records of the protocol testing of the packages and the time to create and maintain the GCC.

Firms Total products Minutes/product Total hours
1,000 150,000 7 17,500

These estimates above are probably low, especially if the month and date of production must be included on the certificates. If so, at least one new certificate would have to be created each year that a product is in production, more if the product is in production more than 1 month per year. If so, the estimate above would be low, by at least a factor of 4.

20. Refrigerators (16 CFR part 1750)

Refrigerators are subject to the Refrigerator Safety Act. A standard to permit the opening of household refrigerator doors from the inside is codified at 16 CFR part 1750. Part 1750 contains a test procedure but does not contain specific recordkeeping or retention requirements. Regardless of the lack of specific recordkeeping requirements, it is likely that most manufacturers keep records demonstrating compliance with part 1750. Because of the lack of recordkeeping requirements in part 1750, we estimate the burden to record results of a reasonable testing program and to create a GCC.

According to the 2010 census, there are 19 manufacturers of household refrigerators and freezers. One major manufacturer had 120 different models of refrigerators listed on a major retailer's Web site, including similar models in different capacities. Assuming that each model requires testing and certification, there could be as many as 2,280 different models of refrigerators that need certification to the Refrigerator Safety Act. If the recordkeeping burden is about 1.5 hours, the total burden for the entire industry would be about 4,200 hours. The number of models estimated here could be high if some smaller manufacturers do not have as many individual models, or if the same component part is used on more than one model, and may be certified based on the same testing. The number of models estimated could be low if some refrigerator manufacturers are not domestic companies and are not listed as refrigerator manufacturers in the 2010 census.

Firms Total models Hours/model Total hours
19 2,280 1.5 3,420

21. Candles with Metal Core Wicks (16 CFR 1500.17(a)(13))

Under the Federal Hazardous Substances Act (FHSA), candles with metal core wicks that contain lead content greater than 0.06 percent of the weight of the metal core are banned. (16 CFR 1500.17(a)(13)). The outer package or wrapper of candles and candle wicks subject to the ban, meaning candles with metal core wicks and metal-cored wicks sold separately, and shipping cartons, must be labeled “Conforms to 16 CFR 1500.17(a)(13).” When the regulation was initially proposed, the proposal contained requirements that would have obligated candle manufacturers and importers to test or maintain records of testing performed by the supplier of the metal cored wicks and to label each shipping container with a statement that the candles conformed to the regulation, including a means to identify the test results applicable to that shipment of candles. 67 FR 20062, 20069 (Apr. 24, 2002). Certification and recordkeeping were dropped from the final rule. 68 FR 19142 (Apr. 18, 2003). Accordingly, we have not submitted a burden analysis for § 1500.17(a)(13) previously to OMB for review.

We estimate the recordkeeping burden associated with documenting test records and creating GCCs for metal-cored candle wicks to be 40 hours per firm, based on the analysis presented in the 2002 proposed rule on metal-cored candle wicks. The National Candle Association states that there are more than 400 commercial, religious, and institutional manufacturers of candles in the United States. The National Candle Association states that the major manufacturers have between 1,000 and 2,000 varieties of candles, which implies that the number of varieties offered by the smaller manufacturers would be less. In comments submitted in response to the proposed rule on metal-cored candle wicks, the National Candle Association estimated that between 10 to 20 percent of the market used metal-core wicks. If we assume that the average candle manufacturer has about 1,000 varieties (to allow for the fact that the non-major manufacturers would be expected to have fewer varieties than the major manufacturers) and that 15 percent of those have metal cores, then the average manufacturer would have approximately 150 varieties that would be subject to the regulation.

Firms Total lines Hours/firm Total hours
400 60,000 40 16,000

The estimates above assume that all manufacturers of candles use metal wicks in some of their products. To the extent that some manufacturers do not use metal core wicks at all, these estimates could be high. On the other hand, the estimates do not include any importers of candles. To the extent that importers of candles use metal-core wicks, the estimates above would be low.

22. Ban of Unstable Refuse Bins (16 CFR part 1301)

The rule banning unstable refuse bins (16 CFR part 1301) applies to metal refuse bins having an internal volume of one cubic yard or greater, which are produced or distributed for the personal use of consumers for in or around a residence, school, in recreation, or otherwise. If such a bin will tip when tested according to the method described in the rule, it is banned. If it does not tip, it must be so certified, based upon a reasonable test program, or a test of each product. Although part 1301 contains test criteria, it does not contain specific recordkeeping provisions. Accordingly, CPSC has not previously submitted a burden estimate to OMB regarding part 1301. A very small subset of refuse bins are not subject to the rule. CPSC staff was unable to find any metal refuse bin that met the criteria for exclusion from part 1301.

In the course of an Internet search on February 8, 2013, we identified 19 suppliers of refuse bins and a total of 358 individual bin models that could be used for refuse collection or storage around a residence, such as an apartment building, or a school or recreation area. Refuse bins that appeared to be intended for industrial or nonresidential use, based on CPSC staff's judgment, were not included. However, many refuse bins may have both consumer and industrial use. Thus, it is possible that some of the suppliers included within this count do not sell refuse bins for consumer use. Moreover, we may not have discovered all suppliers during the Internet search.

The test method in part 1301 is fairly straightforward. We estimate that the recordkeeping for documenting test results and creating a GCC will take an average of 30 minutes per model refuse bin.

Firms Total models Hours/model Total hours
19 358 0.5 179

23. Ban of Lawn Darts (16 CFR part 1306)

Here, we estimate the burden to document testing and to create a GCC for the ban on general use lawn darts in 16 CFR part 1306. We do not estimate the burden for lawn darts intended for children, which are banned by 16 CFR 1500.18. Recordkeeping related to the creation of certificates for children's products is covered in the Testing Rule.

The purpose of part 1306 is to prohibit the sale of lawn darts that have been found to present an unreasonable risk of skull puncture injuries to children. The rule also states that “any lawn dart is a banned hazardous product.” For purposes of these estimates, we have counted as lawn darts, products that appear to be intended to be used in a similar manner as the banned lawn darts in that they consist of an elongated projectile that can be thrown toward a target on the ground and that contact the ground tip first. We have attempted to eliminate any product that appears to be primarily intended for children. Moreover, we have not included games such as horse shoes and ring toss. We estimate that the recordkeeping burden for recording test results and creating a GCC is about 1.5 hours per product.

A search of several large Internet retailers on February 13, 2013, turned up six products by six different manufacturers that could be considered to be lawn darts; although none of the products appeared to have sharp tips designed to stick into the ground. Other similar products may be available that were not discovered during this Internet search. The actual number of lawn dart products available could be higher if some of the available products were not found during the Internet search. The number of products could be lower if some products that were found are intended for children 12 years of age and younger. [16]

Firms Total models Hours/model Total hours
6 6 1.5 9

24. Ban of Artificial Emberizing Materials Containing Asbestos (16 CFR part 1305)

Artificial emberizing materials are used in decorative gas fireplace systems to simulate the ashes and embers in wood-burning fireplaces. The use of respirable, free-form asbestos in these products is banned by 16 CFR part 1305. Not banned are emberizing materials that consist of other materials, such as vermiculite, rock wool, mica, or synthetic fibers. The emberizing materials that are not banned must be certified as not containing respirable, free-form asbestos, based on a test of each product or on a reasonable testing program. We estimate that the recordkeeping burden for recording test results and creating GCCs is about 1.5 hours per product per year.

Included in these estimates are any materials that are intended for use with fireplace logs to simulate ashes or embers. An Internet search on November 14, 2013, identified a total of 56 different products, by 14 different suppliers, that could be used to simulate ashes or embers in non-working fireplaces. Because there are likely many products that were not identified during this search, this is probably a low estimate.

Firms Total models Hours/model Total hours
14 56 1.5 84

25. Ban of Patching Compounds Containing Respirable Free-Form Asbestos (16 CFR part 1304)

Part 1304 bans any patching compounds to which asbestos has been added deliberately as an ingredient or contained in the final product as the result of knowingly using a raw material containing asbestos. “Patching compounds” are described as being mixtures of talc, pigments, clays, casein, ground marble, mica, or other similar materials, and a binding material. Patching compounds are used to cover, seal, or mask cracks, joints, holes, and similar openings in the trim, walls, and ceilings of building interiors. They are applied in a wet form, and after drying, are sanded to a smooth finish. They are commonly referred to as “spackling,” “joint compounds,” and “mud.” In the past, asbestos was sometimes used as the binding material.

Part 1304 does not contain a test method. However, all certifiers of patching compounds intended for consumer use must certify that asbestos has not been added intentionally as an ingredient, and that the final product does not contain asbestos as the result of knowingly using a raw material containing asbestos. We estimate that the recordkeeping burden to create GCCs will be at least 15 minutes per product annually.

A total of 148 patching compounds by about 35 different manufacturers were found during an Internet search on February 21, 2013. If we failed to identify all patching compounds available, 148 products would be a low estimate of the total number of patching compounds available. Assuming that the time required preparing a GCC for each product averaged 15 minutes per year, the total recordkeeping burden would be about 37 hours.

Firms Total models Hours/model Total hours
35 148 0.25 37

B. Furnishing Certificates to Third Parties

Section 14(g)(3) of the CPSA, as amended by the CPSIA, requires that every certificate required in section 14(a) of the CPSA “accompany the applicable product or shipment of products covered by the same certificate” and that “a copy of the certificate . . . be furnished to each distributor or retailer of the product.” Moreover, manufacturers and private labelers must furnish a copy of the certificate to the Commission upon request.

The draft proposed rule continues to allow manufacturers, importers, and private labelers flexibility in how to provide certificates to retailers or distributors, and to the CPSC. Section 1110.9 provides that, except for the certificate that is required to be filed with CBP for imported products in § 1110.13(a)(1), certificates may be provided in hard copy or electronically. Electronic certificates are acceptable if they are identified “prominently on the finished product, shipping carton, or invoice by a unique identifier, and they can be accessed via” the Internet or other electronic means. The draft proposed rule further states that an electronic certificate must be available, without password protection, on or before the date the finished product is distributed in commerce. In practice, “hard copy” certificates are usually in the form of a paper certificate that physically accompanies each shipment by being placed in a shipping container. Certifiers using electronic certificates often place a Web address to access the certificate on the product, shipping carton, or invoice.

We do not have a strong basis for estimating the average third party reporting burden per product because the requirement to disclose certificates applies to a very diverse group of consumer products and manufacturers. Moreover, the reporting burden is most likely related to the number of shipments of the product from the manufacturers, importers, or private labelers to the distributors or retailers, which is information that is not available. For purposes of preparing this initial estimate of the third party reporting burden, we are estimating that the burden is 15 minutes per product, per year to place a paper copy of the certificate in the shipping carton, or provide a Web address for certificates on the product, carton, or invoice, and to maintain the Web site. We welcome comments on the accuracy of this estimate.

1. Non-children's Products

As summarized in Table B-1, we estimate that there are about 6 million [17] non-children's products for which GCCs are required. Thus, we estimate the total burden hours for third party disclosure of GCCs to be 1.5 million hours (6,000,000 models × .25 hours = 1.5 million burden hours). We are estimating that the cost per hour of the recordkeeping and reporting burden is $37.34 [18] an hour, which represents a mixture of professional and administrative staff labor. Accordingly, the estimated cost of third party disclosures for GCCs is $56,010,000 (1,500,000 burden hours × $37.34 per hour = $56,010,000).

2. Children's Products

The collection of information on Third Party Testing of Children's Products currently does not include an estimate for third party disclosure of CPCs to retailers, distributors, or the CPSC. In that collection, we estimated that there were a total of 1.6 million children's products for which CPCs would be required. The number of children's products includes 1.3 million apparel and footwear products and 0.3 million non-apparel products. If the burden of providing a CPC to retailers, distributors, and the CPSC is an estimated 15 minutes per product, per year, then the total burden would be approximately 400,000 hours (1.6 million models × 0.25 hours = 400,000). We propose to amend the collection of information on Third Party Testing of Children's Products to increase the burden hours by 400,000 to account for third party disclosures of CPCs. The estimated cost of third party disclosure of CPCs is $14,936,000 (400,000 burden hours × $37.34 per hour = $14,936,000).

C. Filing Certificates for Imported Products With CBP

Section 14(g)(4) of the CPSA provides that the Commission, by rule, in consultation with CBP, may provide for electronic filing of certificates for imported products up to 24 hours before arrival of the imported product. The draft proposed rule would require that importers of regulated finished products file the required GCC or CPC electronically with CBP at the time of filing the CBP entry or the time of filing the entry and the entry summary, if both are filed together. The rule does not specify the electronic format for certificates filed with CBP, but we anticipate that importers will be able to file the certificate information in the form of data elements or by filing the certificate in a PDF format through CBP's system of records. The increased time required to file certificates electronically with CBP would be attributable to associating the proper certificates to individual shipments for import, converting certificates to an electronic format, and transmitting the certificates to CBP (or to a customs broker, if the importer does not self-file).

1. Non-children's Products

The initial regulatory flexibility analysis for this draft proposed rule cites research of CBP data by CPSC staff, which found that during 2009, there were 231,094 distinct importers of products categorized in import codes likely to include products under the CPSC's jurisdiction. [19] Data on the number of importers of children's versus non-children's products is not publicly available. However, based on inspection of product trade codes, we know that the number of distinct products or models requiring GCCs exceeds the number of children's product models requiring CPCs. [20] Thus, there might be on the order of 100,000 importers of children's products and 150,000 importers of non-children's products.

If 150,000 firms import products subject to electronic filing of GCCs, and these firms average 20 shipments with products requiring certificates, the annual number of electronic filings of GCCs with CBP could total 3 million. [21] According to a customs broker contacted by the Directorate for Economic Analysis, all importers might average about three product lines per Customs entry. If electronic filing requires an average of 30 minutes per shipment, the estimated annual incremental burden would be about $56 million, using an estimated average employee compensation cost of $37.34 per hour (3 million electronic filings × 0.5 hours per filing × $37.34 per hour). [22]

2. Children's Products

Research of CBP data by CPSC staff found that during 2009, there were 231,094 distinct importers of products categorized in import codes likely to include products under the CPSC's jurisdiction. Data on the number of importers of children's versus non-children's products is not publicly available. However, as stated above for non-children's products, we know that the number of children's products requiring certificates of conformance is substantially lower than the number of non-children's products requiring general certificates of conformance. Thus, we assume 100,000 importers of children's products in this analysis.

CBP estimated that “in 2005 more than 70 to 85 percent of all importers imported fewer than 12 shipments.” [23] Based on this information, if 100,000 firms import children's products annually that are subject to electronic filing of certificates, and these firms average 10 shipments a year, the annual number of electronic filings of CPCs with CBP could total 1 million. According to a customs broker contacted by the Directorate for Economic Analysis, all importers might average about three product lines per Customs entry. If electronic filing requires an average of 30 minutes per shipment, total incremental costs of recordkeeping for the Testing Rule would be about $18.7 million (1 million electronic filings × 0.5 hours per filing × $37.34 per hour). [24]

These costs would be in addition to the estimated recordkeeping costs already described in the collection of information on Third Party Testing of Children's Products as well as the increased burden described for third party disclosures to retailers, distributors, and the CPSC. Total estimated incremental costs for disclosing CPCs to third parties is summarized in Table C-1.

D. Maintaining GCCs and Test Records

Proposed § 1110.17 would require that GCCs for non-children's products and supporting test records be maintained for at least 5 years. Certifiers may maintain the required records on paper or electronically, because the proposed rule would not require any particular medium for records. Storing records electronically is the less expensive option and consequently, we assume for purposes of this analysis that certifiers will choose this option most frequently. However, some certifiers may choose to store paper records, so we also include an estimate of the burden for storing paper records. For purposes of this analysis, we will assume that 90 percent of the required records will be maintained electronically, and 10 percent will be stored as paper records.

1. Estimated Cost of Storing Required Records on Paper

Once a paper record is created and is no longer required for ongoing reporting or disclosure purposes, the record will be likely archived in a warehouse. We reviewed rental prices for a 5′ × 5′ warehouse space in two parts of the country. We chose the 5′ × 5′ warehouse space because it was generally the smallest unit available and could be appropriate for a small to medium size company. A large company might require more space but probably could obtain a larger warehouse space at a lower cost per square foot. The low price was $41/month and the high price was $80/month, for an estimated average cost to rent a warehouse of about $60.50 per month. Therefore, the estimated average price of warehouse space for 1 year would be $726 ($60.50 × 12 months).

Records are often stored in standard 10″ × 12″ × 15″ archive boxes, which can be obtained for about $3.00 each. Our calculations show that it would be possible to get about 80 of these boxes into a 5′ × 5′ warehouse space and leave sufficient aisles so that each box could be easily accessed if needed. Therefore, the estimated cost of storing one box in a warehouse for 1 year would be $12.08 ($726 divided by 80 boxes = 9.08, plus $3 for the cost of the box).

We assume for this analysis that a GCC for a product and supporting test records require an average of 10 pages. Accordingly, each archive box should be able to hold required records for about 375 products. We estimate that there are 6 million distinct non-children's product varieties that require certification annually (see Table B-1). If all GCCs were stored on paper, assuming 6 million GCCs and supporting test records would need be to be stored annually, a total of about 16,000 archive boxes would be needed each year (6 million products divided by 375 records per box). For purposes of this analysis, however, we assume that only 10 percent of the 6 million distinct non-children's product varieties will maintain records on paper, or an estimated 600,000 products, requiring 1,600 archive boxes (600,000 products divided by 375 product records per box). The estimated cost of storing one archive box for a year is $12.08, which includes the cost of the warehouse space ($9.08) and the cost of the box ($3.00). Accordingly, the estimated cost of storing 1,600 boxes of records for a year is $19,320 (1,600 boxes × $12.08 per box). On the assumption that at any one time, the records associated with 5 years of production or shipments must be maintained, the estimated annual cost of storage for 5 years' worth of records per product is $96,640 (1,600 boxes × 5 years × $12.08 per box).

In addition to the cost of storing records, labor or other personnel costs would be incurred to manage the required records stored on paper. Managing records would include the labor time required to box up the records for the current year's production or shipments, label the boxes, move the boxes to the warehouse, and dispose of records that are more than 5 years old. We estimate that about 20 minutes will be required to box, label, and place into storage the estimated 1,600 boxes containing records for the current year's production or shipments, and about 10 minutes per box to dispose of the estimated 1,600 boxes containing records more than 5 years old, or 800 hours per year in total. We assume that this work will be done mostly by office or administrative workers. In December 2012, the total compensation for sales and office workers in private industry was $27.12 per hour. [25] Therefore, the estimated total labor cost per year involved in managing required records that are stored on paper would be about $21,696 (800 hours × $27.12).

Based on the above analysis, assuming that 10 percent of the estimated 6 million distinct non-children's product varieties that require certification annually are stored in paper format, the estimated total cost would be $118,336. This estimate includes the cost of warehouse space and the archive boxes ($96,640), and the labor required to manage and transport the records ($21,696).

2. Estimated Cost of Storing Required Records Electronically

Storing records electronically is much less expensive than storing records in paper format. A 1 terabyte (i.e. 1 million megabytes) hard drive can be purchased for about $100, so the cost per megabyte for electronic storage is about $0.0001 or about one-hundredth of one cent. If the required records (GCC and supporting test records) for each product was about 1 megabyte, then the estimated total cost of electronically storing the records for 90 percent of the estimated 6 million distinct non-children's product varieties that require certification annually, or 5,400,000 products, would be $540 annually ($0.0001 × 5,400,000 products). Little, if any, additional labor would be required to manage required records stored in an electronic format. Therefore, the total cost of storing the required records electronically is $540, which is essentially limited to the cost of the space on a hard drive.

The estimated total cost of retaining GCCs and supporting test reports for the estimated 6 million distinct non-children's product varieties that require certification for 5 years, assuming that 90 percent of the records are stored electronically and 10 percent of the records are stored on paper, is $18,876 annually. Of this, $118,336 is associated with storing 10 percent of the records on paper and $540 is associated with storing 90 percent of the records electronically.

Table B-1—Summary of PRA Burden Estimates by Rule for Non-Children's Products That Require a General Conformity Certificate (GCC) Attributable To Existing 16 CFR 1110 (November 2008) Requirements Back to Top
Product categories Number of Mfrs. Number of models* Hours per model Total estimated burden hours
* Estimated number of distinct product varieties that require certification.
Architectural Glazing Materials 400 2,400 1.5 3,600
Matchbooks 4 12 1.5 18
Bicycle Helmets 30 165 0.5 83
CB Band Base Station Antennas 5 15 0.5 8
Walk Behind Power Mowers 20 130 2,600
Swimming Pool Slides 120 1.5 180
Cellulose Insulation 44 60 2,640
Cigarette and Multipurpose Lighters 145 6,667 0.25 1,667
Garage Door Openers 21 84 0.5 42
Furniture (paint) 125,000 0.5 62,500
Furniture (bunk beds) 600 1.5 900
Paints and Coatings 501 41,082 0.5 20,541
ATVs 32 132 1.5 198
Pools and Spas (VGB Act) 12 136 1.5 204
Fireworks Devices 44 115,000 1.0 115,000
Bicycles 150 1,900 1.5 2,850
Clothing and Apparel 1,000s 5,500,000 0.25 1,375,000
Carpets and Rugs 240 24,000 1.5 36,000
Mattresses 671 13,420 0.25 3,355
PPPA 1,000 150,000 0.12 17,500
Refrigerators 19 2,800 1.5 3,420
Candles w/Metal Core Wicks 400 60,000 40 16,000
Refuse Bins 19 358 0.50 179
Lawn Darts 6 6 1.5 9
Artificial Emberizing Materials 14 56 1.5 84
Patching Compounds 35 148 0.25 37
Burden Hours to Document Test Results and Create GCCs       1,664,615
Burden Hours for Third Party Disclosure of GCCs   6,000,000 0.25 1,500,000
Subtotal Burden Hours for GCCs       3,164,615
Estimated Cost: 3,164,615 Burden Hours × $37.34 per Burden Hour $118,166,724      
Table B-2—Summary of PRA Burden Estimates for Non-Children's Products That Require a General Conformity Certificate (GCC) Attributable to the Proposed Amendment To Existing 16 CFR 1110 (March 2013) Requirements Back to Top
Estimated Cost of Retaining GCCs and Supporting Test Records $118,876
Estimated Average Cost of Filing GCCs for Imports with CBP 56,000,000
GCC Costs Attributable to the Proposed Amendments 56,118,876
Table C-1—Summary of PRA Burden Estimates for Third Party Disclosure of Children's Product Certificates (CPCs) Attributable To Existing 16 CFR 1107 (November 2011) Requirements Back to Top
Estimated Average Cost of Third Party Disclosure of CPCs $14,936,000
Table C-2—PRA Burden Estimates for Children's Products That Require a CPC to be Filed With CBP for Import Attributable to the Proposed Amendment To Existing 16 CFR 1110 (March 2013) Requirements Back to Top
Estimated Average Cost of Filing CPCs for Imports with CBP $18,700,000

VIII. Effective Date Back to Top

The Administrative Procedure Act (APA) generally requires that the effective date of a rule be at least 30 days after publication of a final rule. 5 U.S.C. 553(d). The Commission proposes that any final rule based on this proposal would become effective 90 days after the final rule is published in the Federal Register. Certifiers should not require a lengthy period of time to come into compliance with a final rule because certificates are already required to be issued, and changes to the existing regulation are not extensive but merely clarifying expectations in light of new testing regulations. The most substantive amendment to the existing part 1110 would require that in the case of finished products that are manufactured outside the United States and that are imported for consumption or warehousing, the importer must file the required GCC or CPC electronically with the CBP. Stakeholders should provide information and evidence if they believe that implementing such a requirement would require longer than 90 days from the issuance of a final rule.

List of Subjects in 16 CFR Part 1110 Back to Top

For the reasons stated in the preamble, the Commission proposes to revise16 CFR part 1110 to read as follows:

 begin regulatory text 

PART 1110—CERTIFICATES OF COMPLIANCE Back to Top

Authority:

15 U.S.C. 2063, Sec. 3, 102 Pub. L. 110-314, 122 Stat. 3016, 3017 (2008), Pub. L. 112-28 (2011).

§ 1110.1 What is the purpose and scope of this part?

(a) This part:

(1) Specifies the entities that must issue certificates for finished products in accordance with section 14(a) of the Consumer Product Safety Act (CPSA), as amended, 15 U.S.C. 2063(a);

(2) Clarifies which provisions of this part apply to component part certificates;

(3) Specifies certificate content, form, and availability requirements that must be met to satisfy the requirements of section 14 of the CPSA; and

(4) Requires importers to file certificates electronically with CBP for imported finished products that are required to be certified.

(b) This part does not address issues related to type or frequency of testing necessary to support a certificate.

§ 1110.3 What definitions apply to this part?

(a) The definitions of section 3 of the CPSA and additional definitions in the Consumer Product Safety Improvement Act of 2008 (CPSIA), Pub. L. 110-314, apply to this part.

(b) Additionally, the following definitions apply for purposes of this part:

(1) CBP or Customs means United States Customs and Border Protection;

(2) Certificate or certificate of compliance means a certification that the finished products or component parts within the scope of the certificate comply with the consumer product safety rules under the CPSA, or similar rules, bans, standards, or regulations under any other law enforced by the Commission, as set forth on the certificate. “Certificate” and “certificate of compliance” generally refer to all three types of certificates: General Conformity Certificates, Children's Product Certificates, and component part certificates;

(3) Certifier means the party who issues a certificate of compliance;

(4) Children's Product Certificate (CPC) means a certificate of compliance for a finished product issued pursuant to section 14(a)(2) of the CPSA and part 1107 of this chapter;

(5) Commission or CPSC means the United States Consumer Product Safety Commission;

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

(7) Component part certificate means a certificate of compliance for a component part of a consumer product, as defined in paragraph (b)(6) of this section;

(8) Electronic certificate means a set of information available in, and accessible by, electronic means that sets forth the information required by sections 14(a) and 14(g) of the CPSA, § 1110.11, and that meets all other certificate requirements set forth in this part;

(9) Finished product means a consumer product or other product or substance regulated by the Commission that is imported for consumption or warehousing or is distributed in commerce. Parts of consumer products, including replacement parts, that are imported for consumption or warehousing or are distributed in commerce that are packaged, sold, or held for sale to, or use by, consumers are considered finished products;

(10) Finished product certificate means a certificate of compliance for a finished product, as defined in paragraph (b)(9) of this section. There are two types of finished product certificates: Children's Product Certificates and General Conformity Certificates;

(11) Finished product certifier means a party who is required to issue a finished product certificate pursuant to § 1110.7;

(12) General Conformity Certificate (GCC) means a certificate of compliance for a finished product issued pursuant to section 14(a)(1) of the CPSA; and

(13) Importer means importer of record as defined under the Tariff Act of 1930 (19 U.S.C. 1484(a)(2)(B));

(14) Third party conformity assessment body means a testing laboratory whose accreditation has been accepted by the CPSC to conduct certification testing on children's products.

§ 1110.5 When are certificates required?

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, which are imported for consumption or warehousing or are distributed in commerce, must be accompanied by a GCC or a CPC, as applicable.

§ 1110.7 Who must certify finished products?

(a) Imports. Except as otherwise provided in a specific rule, ban, standard, or regulation, for a finished product manufactured outside of the United States that must be accompanied by a certificate, as set forth in § 1110.5, the importer must issue a certificate that meets the requirements of this part. However, if a finished product manufactured outside the United States is delivered directly to a consumer in the United States, such as products purchased through an Internet Web site, the foreign manufacturer must issue a certificate that meets the requirements of this part, unless the product bears a private label. The private labeler must issue a certificate that meets the requirements of this part for such products that bear a private label and are delivered directly to a consumer in the United States, unless the foreign manufacturer issues the certificate.

(b) Domestic products. Except as otherwise provided in a specific rule, ban, standard, or regulation, for a finished product manufactured in the United States that must be accompanied by a certificate, as set forth in § 1110.5, the manufacturer must issue a certificate that meets the requirements of this part. However, if a finished product manufactured in the United States is privately labeled, the private labeler must issue a certificate that meets the requirements of this part, unless the manufacturer issues the certificate.

§ 1110.9 What form(s) may the certificate take?

(a) Language. Certificates must be in the English language and may also contain the same content in any other language.

(b) Format. Except as required in § 1110.13(a)(1), certificates may be provided in hard copy or electronically.

(c) Electronic certificates. An electronic certificate meets the requirements of §§ 1110.13(a)(2), 1110.13(a)(3), 1110.13(b), and 1110.13(c) if it is identified prominently on the finished product, shipping carton, or invoice by a unique identifier and can be accessed via a World Wide Web uniform resource locator (URL) or other electronic means, provided that the certificate, the URL or other electronic means, and the unique identifier are accessible, along with access to the electronic certificate itself, without password protection, to the Commission, CBP, distributors, and retailers, on or before the date the finished product is distributed in commerce.

§ 1110.11 What must the certificate contain?

(a) Content requirements. Each certificate must:

(1) Identify the component part(s) or finished product(s) covered by the certificate and state whether the certificate is for a finished product or a component part. A model, style, or other unique identifier of the product should be provided, if any, along with a description of the finished product or component part. Certifiers may also include an identifier, such as a universal product code (UPC), a global trade item number (GTIN), or other identifying code that may assist with product identification;

(2) State the date of initial certification of the finished product(s) or component part(s) to which the certificate refers;

(3) Identify the scope of finished product(s) or component part(s) for which the certificate applies, such as by a start date, start and end date, lot number, starting serial number or serial number range, or other means to identify the set of finished product(s) or component part(s) that are covered by the certificate;

(4) State each consumer product safety rule under the CPSA, or similar rule, ban, standard, or regulation under any law enforced by the Commission, to which the finished product(s) or component part(s) are being certified. Finished product certificates must identify separately all applicable rules, bans, standards, or regulations. Component part certificates must identify all rules, or parts of rules, bans, standards, or regulations for which the component part(s) are being certified;

(5) Identify the party certifying compliance of the finished product(s) or component part(s), including the party's name, electronic mail (email) address, full mailing address, including the street address, and telephone number;

(6) Identify and provide contact information (consisting, at a minimum, of the individual's name, email address, full mailing address, and telephone number) for the individual:

(i) Maintaining records of test results on which a GCC is based, and records described in §§ 1109.5(g) and (j) of this chapter (where applicable); or

(ii) Maintaining records of test results and other records on which a CPC is based, as required by § 1107.26, and § 1109.5(g) and (j) of this chapter (where applicable); or

(iii) Maintaining records of test results and other records on which a component part certificate is based, as required by § 1109.5(g) and (j) of this chapter;

(7) Provide the date (month and year, at a minimum) and place (including a street address, city, state or province, and country or administrative region) where the finished product(s) or component part(s) were manufactured, produced, or assembled;

(8) Provide the dates and places (including a street address, city, state or province, and country or administrative region) where the finished product(s) or component part(s) were tested for compliance with the rule(s), ban(s), standard(s), or regulation(s) cited in § 1110.11(a)(4);

(9) Identify all parties, including third party conformity assessment bodies, on whose testing the certificate depends, including name, email address, full mailing address, including the street address, and telephone number; and

(10) Include the following attestation:

I hereby certify that the finished product(s) or component part(s) covered by this certificate comply with the rules, bans, standards, and regulations stated herein, and that the information in this certificate is true and accurate to the best of my knowledge, information, and belief. I understand and acknowledge that it is a United States federal crime to knowingly and willfully make any materially false, fictitious, or fraudulent statements, representations, or omissions, on this certificate.

(b) Electronic access to records. In addition to identification of the custodian of records, as described in § 1110.11(a)(6), a certificate may include a World Wide Web URL, or other electronic means, which provides electronic access to the required records.

(c) Statutory or regulatory testing exclusions: If a certifier is claiming a statutory or regulatory testing exclusion to an applicable consumer product safety rule or similar rule, ban, standard, or regulation, in addition to listing all applicable rules, bans, standards, and regulations as required under § 1110.11(a)(4), a certifier shall list all applicable testing exclusions and include on the certificate the basis for the statutory or regulatory testing exclusion to such regulation, instead of providing the date and place where testing was conducted for that regulation in § 1110.11(a)(8).

(d) Duplicative testing not required. Although certificates must list each applicable rule, ban, standard, or regulation separately, 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.

§ 1110.13 When must certificates be made available?

(a) Accompanying certificates. A certificate issued by a finished product certifier must accompany each finished product or finished product shipment required to be certified pursuant to § 1110.5 .

(1) In the case of finished products that are manufactured outside the United States and are imported for consumption or warehousing, the importer must file the required GCC or CPC electronically with the CBP at the time of filing the CBP entry or the time of filing the entry and entry summary, if both are filed together.

(2) In the case of finished products manufactured in the United States, certificates shall not be filed with CPSC. A finished product certifier, pursuant to § 1110.7(b), must make the required GCC or CPC available for inspection by the CPSC on or before the date the finished product is distributed in commerce.

(3) In the case of finished products that are manufactured outside the United States and are imported for consumption or warehousing, that are delivered directly to a consumer in the United States, the foreign manufacturer or the private labeler, as set forth in § 1110.7(a), must either file the required GCC or CPC electronically with CBP as described in paragraph (a)(1) of this section, or make the certificate available for inspection by CPSC on or before the date the finished product is distributed in commerce, as described in paragraph (a)(2) of this section.

(b) Furnishing certificates. A finished product certifier must furnish a required GCC or CPC to each distributor or retailer of the finished product.

(c) Availability. Certifiers must make certificates available for inspection immediately upon request by CPSC or CBP.

§ 1110.15 Who is responsible for the information in a certificate?

Certifiers may have any entity maintain an electronic certificate platform and enter the requisite data. However, the certifier is responsible for the information in a certificate, including its validity, accuracy, completeness, and availability, as applicable.

§ 1110.17 What recordkeeping requirements apply to certificates?

For CPCs and component part certificates, certifiers must follow the recordkeeping provisions contained in §§ 1107.26, 1109.5(g), and 1109.5(j) of this chapter, as applicable. For GCCs, certifiers must maintain the certificate and supporting test records where required for at least 5 years.

§ 1110.19 What requirements apply to component part certificates?

Pursuant to part 1109 of this chapter, component part certificates are voluntary. Accordingly, component parts of consumer products, as defined in § 1110.3(b)(6), are not required to be accompanied by a certificate, and component part certificates are not required to be furnished to retailers and distributors, as described in § 1110.13(b). Component part certificates shall not be filed with CBP upon importation of component parts. Instead, certifiers of component parts must meet the requirements in part 1109 of this chapter, and component part certificates must also meet the form, content, and availability requirements described in §§ 1110.9, 1110.11, 1110.13(c), 1110.15, and 1110.17

Dated May 7, 2013.

Todd A. Stevenson,

Secretary, Consumer Product Safety Commission.

 end regulatory text 

[FR Doc. 2013-11164 Filed 5-10-13; 8:45 am]

BILLING CODE 6355-01-P

Footnotes Back to Top

1. Electronic filing of entries is required by CBP rule, titled, Importer Security Filing and Additional Carrier Requirements commonly known as “10+2.”

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2. U.S. Census Bureau, 2007 Economic Census, Manufacturing: Industry Series: Detailed Statistics by Industry for the United States: 2007. http://factfinder2.census.gov/faces/tableservices/jsf/pages/productview.xhtml?pid=ECN_2007_US_31I1&prodType=table.

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3. Department of Homeland Security, Bureau of Customs and Border Protection, Importer Security Filing and Additional Carrier Requirements, Interim final rule. Federal Register, Vol. 73, No. 228, November 25, 2008, p. 11765. Retrieved from http://www.gpo.gov/fdsys/pkg/FR-2008-11-25/pdf/E8-27048.pdf.

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4. Industrial Economics, Incorporated, Importer Security Filing and Additional Carrier Requirements: Regulatory Assessment and Final Regulatory Flexibility Analysis for the Interim Final Rule, November 6, 2008, p. 4-7 (97 of 266). Retrieved from http://www.cbp.gov/linkhandler/cgov/trade/cargo_security/carriers/security_filing/ra.ctt/ra.pdf.

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5. Public comment from the Glass Association of North America submitted in response to the notice of proposed rulemaking on the testing and certification rule (16 CFR part 1107).

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6. Information from SGCC provided to Robert Squibb on January 28, 2013.

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7. Information about the industry was obtained from a Web site called, “The Matchcover Vault,” which is a site aimed at collectors of matchbook covers. The specific URL for the industry information is http://matchpro.org/Matchindustryhistory.html (accessed on 01/16/2013).

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8. Robert D. Kurtz, “Environmental and Economic Impacts of the Interim Safety Standard for Cellulosic Insulation,” U.S. Consumer Product Safety Commission, Office of Hazard Identification (June 15, 1978).

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9. The calculation is (54,000/0.175) × 0.825 = 254,571. This could be a low estimate because most children's furniture is limited to the bedroom furniture category. However, general use furniture also includes categories such as “dining room” and “living room” furniture. The estimate in the memorandum has been rounded.

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10. To derive the estimate, we had to make assumptions concerning the employee compensation and the number of models per manufacturer that were not explicitly stated in the comment.

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11. Technically some industrial coatings might be subject to the limits on lead in paint in Part 1303 if they are applied on a consumer product. However, in these cases it would be the product manufacturer (e.g., furniture or children's product manufacturer) that would be responsible for the certification.

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12. United States Department of Commerce, Bureau of the Census, 2010 County Business Patterns.

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13. In fact, many large paint manufacturers manufacture both industrial and consumer paints.

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14. This estimate is rounded.

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15. This estimate could be low because the cigarette lighter standard does not include an adult use effectiveness protocol. The total time to conduct the tests would exceed 90 hours per package type.

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16. One product was found that was obviously intended for children under the age of 13 years and is not included in these estimates.

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17. This estimate is rounded.

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18. The hourly compensation rate used is based on the hourly compensation rate used for estimating the recordkeeping burden in the 1107 and 1109 rules, which relate to the testing and certification of children's products and component part testing. In order to recognize that both clerical and professional staff could be involved in recordkeeping, we assumed that personnel in “management, professional, and related occupations” would be responsible for half of the activities involving the recordkeeping and that personnel in “office and administrative support” occupations would be responsible for the other half. We assume that the same occupational mix of employees will also be involved in performing the tasks necessary to file certificates electronically with CBP (as required by the proposed amendments to part 1110). As of June 2012 total compensation (i.e. wages and benefits) for these occupational categories averaged $37.34 per hour.

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19. Blachere, John, International Trade Specialist, Office of Import Surveillance, CPSC. December 8, 2010, email to Charles Smith, Directorate for Economic Analysis, CPSC.

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20. A large percentage of these firms (such as importers of adult clothing) also would be included in the estimate of importers of products requiring CPCs.

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21. In the paperwork burden analysis for 16 CFR Part 1110, we found that there are about 3.75 products requiring GCCs for every product requiring a CPC. The estimate of 20 shipments per importer was used to generally maintain this relationship between GCCs and CPCs. See Robert Franklin, Directorate for Economic Analysis, CPSC. Recordkeeping Burden Associated with Direct Final Rule for 16 CFR Part 1110 Issued in November 2008 (March 14, 2013).

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22. In the paperwork burden analysis for 16 CFR Part 1110, third party disclosure was estimated to require about 15 minutes per product. In this case, it is reasonable for this estimate to reflect efficiency in filing multiple electronic certificates simultaneously and with other paperwork required for entry. For this reason, we use an estimate of 10 minutes per product rather than 15 minutes per product. Id.

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23. Department of Homeland Security, Bureau of Customs and Border Protection, Importer Security Filing and Additional Carrier Requirements, Interim final rule. Federal Register, Vol. 73, No. 228, November 25, 2008, p. 11765. Retrieved from http://www.gpo.gov/fdsys/pkg/FR-2008-11-25/pdf/E8-27048.pdf.

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24. As with non-children's products, it is reasonable for this estimate to reflect efficiency in filing multiple electronic certificates simultaneously and with other paperwork required for entry. For this reason, we use an estimate of 10 minutes per product rather than 15 minutes per product.

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25. Bureau of Labor Statistics, “Employer Costs for Employee Compensation, Table 9” (March 2013). Available at http://www.bls.gov/ncs.

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