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The Commission proposes to revise the rule for certificates, codified at 16 CFR part (part or the rule) to clarify certificate requirements for all regulated products and substances, to align the rule with other testing rules, and to implement electronic filing of certificates for imported products with CBP (eFiling).[ ] Only finished products or substances that are subject to a CPSC rule, ban, standard, or regulation, are required to be tested and certified, and only such finished products that are imported into the United States for consumption or warehousing would be required to eFile certificates with CBP. Section 14(g)(4) of the Consumer Product Safety Act (CPSA) (15 U.S.C. (g)(4)) gives CPSC the authority to require eFiling, by rule.[ ]

The Commission established part to implement sections 14(a) and (g) of the CPSA (15 U.S.C. (a) and (g)), which provide requirements for the content, form, and availability of certificates. After passage of the Consumer Product Safety Improvement Act of (CPSIA), which amended section 14 of the CPSA to add testing and certification requirements for CPSC-regulated consumer products and substances, the Commission sought to bring clarity and reduce burden to stakeholders through part , by, among other things, limiting the parties required to issue certificates and allowing electronic certificates (available through or a worldwide web link) to “accompany” product shipments instead of paper certificates. 73 FR (Nov. 18, ).

After gaining experience with certificates in , the Commission issued a notice of proposed rulemaking (NPR) to revise part to align with rules for testing children's products under 16 CFR part (part or the rule) and component part testing under 16 CFR part (part or the rule), and to require eFiling of certificates for imported consumer products with CBP at the time of filing the CBP entry, or the time of filing the entry and entry summary, if both are filed together. 15 U.S.C. (g)(4)); 78 FR (May 13, ) ( NPR).[ ] As described in section II.D of this preamble, since the Commission has undertaken a series of projects to support an eFiling program. Building on the NPR, this SNPR proposes to amend part to, among other things: revise terminology to integrate concepts introduced in the and rules; broaden the definition of “importer” to address commenters' concerns about the product certifier having control over and knowledge of the goods; allow private labelers to test and certify products; and implement eFiling for imported, CPSC-regulated consumer products and substances.

I. Statutory Authority

Section 102 of the CPSIA amended section 14(a) of the CPSA to require that manufacturers (including importers) and private labelers issue certificates for all consumer products subject to a consumer product safety rule under the CPSA, or a similar rule, ban, standard, or regulation under any other law enforced by the Commission, that are imported for consumption or warehousing, or distributed in commerce. 15 U.S.C. (a)(11) and ( printed page ) (a)(1). Certificates for children's products (Children's Product Certificates or CPCs) must be based on testing performed by a third party conformity assessment body whose accreditation to perform such testing has been accepted by the Commission. 15 U.S.C. (a)(2). Certificates for non-children's products (General Certificates of Conformity or GCCs) must be based on a test of each product or a reasonable testing program. 15 U.S.C. (a)(1)(A). Section 14(a)(1)(B) of the CPSA requires that certificates specify each rule, ban, standard, or regulation applicable to the product. 15 U.S.C. (a)(1)(B).

Section 14(g) of the CPSA contains additional requirements for the form, content, and availability of certificates. 15 U.S.C. (g). Section 14(g)(1) of the CPSA requires that each certificate identify the manufacturer (including importer) or private labeler issuing the certificate, as well as any third party conformity assessment body on whose testing the certificate depends. 15 U.S.C. (g)(1). At a minimum, certificates must include the date and place of manufacture; the date and place where the product was tested; each party's name, full mailing address, and number; and contact information for the individual responsible for maintaining records of test results. Id. Section 14(g)(2) of the CPSA requires that every certificate be legible and that all contents be in English; contents can additionally be in another language. 15 U.S.C. (g)(2).

Certificates must accompany the applicable product or shipment of products covered by the certificate, and a copy of the certificate must be furnished to each distributor or retailer of the product. Upon request, the manufacturer (including importer) or private labeler issuing the certificate must provide a copy of the certificate to the Commission. 15 U.S.C. (g)(3). Finally, section 14(g)(4) of the CPSA states that in consultation with the Commissioner of Customs, CPSC may, by rule, provide for the electronic filing of certificates up to 24 hours before arrival of an imported product. Upon request, the manufacturer (including importer) or private labeler issuing the certificate must provide a copy of such certificate to the Commission and to CBP. 15 U.S.C. (g)(4).

In addition to the statutory authority to require certificates for regulated products and substances, as outlined in sections 14(a) and (g) of the CPSA, the Commission has general authority with regard to certificates pursuant to section 3 of the CPSIA, which provides that “the Commission may issue regulations, as necessary, to implement this Act and the amendments made by this Act.” Notes to 15 U.S.C. (citing Pub. L. 110-314, 3, Aug. 14, , 122 Stat. ).

II. Background: Certificates and eFiling

A. The Rule

As noted, the CPSIA expanded section 14 of the CPSA to require testing and certification of consumer products subject to a consumer product safety rule, or to a similar rule, ban, standard, or regulation under any other act enforced by the Commission. 15 U.S.C. (a)(1). When the Commission initially issued the rule to implement this requirement, it adopted an approach that was “streamlined, at least in its initial phase.” 73 FR (Nov. 18, ). The rule designated the importer as the sole entity responsible for issuing certificates for imported consumer products, stating that to “accompany” a product or product shipment, the certificate must be available to the Commission no later than the time when the product or shipment is available for inspection in the United States. Id. The rule designated domestic manufacturers as the sole entity responsible for issuing certificates for domestically manufactured products, stating that such certificates must be available to the Commission upon request before the product or shipment is introduced into domestic commerce. Id.

The rule provided that the requirements in section 14(g)(1) and (3) of the CPSA that a certificate “accompany” a product or product shipment, be furnished to retailers and distributors, and be provided to CPSC upon request, could be satisfied by providing the statutorily required certificate information by electronic means. The rule explained that the certificate must be reasonably accessed by information on the product or accompanying the product or shipment, for example, a unique identifier that can be accessed via a Uniform Resource Locator (URL) or other electronic means. 73 FR -31. In practice, many importers and manufacturers certificates to CPSC in PDF format, when requested. The existing rule did not implement the authority in section 14(g)(4) of the CPSA to have certificates for imported products be eFiled with CBP. 15 U.S.C. (g)(4).

The rule was not expected to be permanent. Instead, the Commission explained at the time that it “expects that with time CPSIA's expanded certification requirements will become more routine and it then would consider whether this rule needs to be revised based on actual experience.” 73 FR .

B. The Notice of Proposed Rulemaking

By , CPSC staff had worked to refine the Risk Assessment Methodology (RAM) required by section 222 of the CPSIA, and had begun to grapple with the rise of internet-based companies selling consumer products (eCommerce) and direct-to-consumer shipments, which made CPSC's interdiction of non-compliant products more challenging. To address those concerns, and to be able to use certificate data for targeting and enforcement of CPSC's rules at the ports, CPSC proposed in the NPR to implement eFiling of certificates with CBP for regulated, imported products, pursuant to section 14(g)(4) of the CPSA.

The NPR also sought to revise part to integrate the rule into the testing and certification regime contemplated in then-new parts and . The rule sets forth requirements for children's product testing and certification, including when and how products must be tested and certified, and recordkeeping requirements. The rule sets forth conditions and requirements for component part testing and certification for both children's and non-children's products. Both rules introduced new concepts and terminology related to certificates that are not present in the rule of .

CPSC received over 500 comments from more than 70 commenters, as summarized in section III of this preamble, many asserting that implementation of the proposed eFiling requirement was infeasible and unreasonable due to the lack of information technology (IT) infrastructure for CBP to accept such data. At that time, CBP had not yet completed its Automated Commercial Environment (ACE) interface nor the Partner Government Agency (PGA) Message Set, which now enable importers or their brokers to submit electronic import data. For its part, CPSC had not yet fully implemented the RAM.

Since publication of the NPR, CPSC has implemented RAM 2.0 and CBP has implemented ACE and developed the PGA Message Set.[ ] In ( printed page ) and , CPSC conducted an eFiling Alpha Pilot, in coordination with CBP, involving eight volunteer participants who successfully eFiled a limited set of targeting/enforcement data for regulated products. Also, in , CPSC conducted a Certificate Study to assess CPCS's ability to use certificates and the information on them for risk assessment and targeting of regulated, imported consumer products. In December , the Commission approved of a multi-year plan to implement an eFiling program at CPSC.[ ] The next steps in this eFiling plan include the ongoing eFiling Beta Pilot, which is scheduled to begin accepting data in the fall of , and developing this SNPR.[ ]

C. CPSC's Risk Assessment and Targeting Efforts for Imported Consumer Products

CPSC's RAM currently receives an electronic feed of import entry data collected by CBP. The RAM is optimized to ingest CBP's data, using algorithms to identify potentially noncompliant consumer product shipments for CPSC's inspection. However, the data ingested by RAM are collected by CBP for its enforcement and tariff purposes, which do not always align with CPSC's risk assessment purposes. CPSC's Certificate Study confirmed that CPSC can analyze certificate data focused specifically on product manufacturing and testing to improve RAM's precision in targeting and identifying high-risk shipments for examination.

Currently, CPSC's import enforcement methodology is labor-intensive and lacks an efficient means of using product-specific data to identify potentially non-compliant products. CPSC co-locates staff alongside CBP staff at ports of entry to target shipments for examination. Once identified, staff request that CBP place a shipment on hold and transport it to an examination station for CPSC inspection; an examination hold creates delay that costs businesses and CPSC time and money. Accordingly, stakeholders and CPSC have a common interest in reducing examinations of compliant products and maximizing examinations of products that are likely to be violative. Currently, certificates are collected only after a shipment is stopped for examination; certificate data are not used to target shipments for examination. Using certificate data for more precise targeting would maximize examination efficiency for stakeholders and staff; keep hazardous, violative products out of consumer's hands; and reduce burden by not delaying compliant product and not holding up shipments at the port while waiting to receive a certificate.

Using certificate data can also improve CPSC's ability to target low-value shipments. CPSC's current targeting capabilities were designed for larger commercial shipments for which the Commission receives CBP data. CPSC's port staff are currently unable to pinpoint with a high degree of certainty potentially non-compliant and hazardous products in low-value shipments, which CBP refers to as “ de minimis shipments,” and international mail shipments, which can lead to CPSC inspections that delay release of compliant products. Specifically, using product-specific certificate information such as product description, finished product manufacturer, date of manufacture, and date and place of testing, would provide CPSC with greater insights into all imported products and substances, including de minimis shipments. Hundreds of thousands of de minimis shipments enter the United States daily; the ability to use algorithms to assess the data and identify higher-risk shipments, even those of low value that occur frequently, would enhance CPSC's ability to focus limited resources to identify and interdict higher risk shipments.

Finally, although CBP is unable to process any certificate data collected for international mail shipments subject to CPSC requirements via ACE, the SNPR proposes a modified eFiling requirement for international mail. Importers using international mail would be required to enter certificate data into the Product Registry [ ] before the shipment arrives in the United States, so that staff can analyze this data and target mail shipments for examination.

D. CPSC eFiling Related Projects Since the NPR

1. eFiling Alpha Pilot ()

After publication of the NPR, CPSC conducted a pilot to test the feasibility of eFiling certain “targeting/enforcement data elements” on a certificate by participant industry volunteers. The eFiling Alpha Pilot was a 6-month, joint initiative between CPSC, CBP, and eight volunteer importers to establish and assess the infrastructure and processes required for a successful eFiling program. Participants used a process similar to that used in the current eFiling Beta Pilot, having a choice between entering data elements in a Product Registry, and providing a reference number to the Product Registry when filing PGA Message Set data with CBP, or filing all data elements in a PGA Message Set. CPSC staff issued a report detailing the procedure and results of the eFiling Alpha Pilot, available on CPSC's website: https://www.cpsc.gov/​s3fs-public/​eFiling_​Alpha_​Pilot_​Evaluation_​Report-May_​24_​.pdf?​uK.UhjHabKD5yjQ.1w06tudrnvuuWIra.

2. Certificate Study ()

Following the eFiling Alpha Pilot, from October to February , CPSC staff conducted a Certificate of Compliance Study to assess any correlation between the timing and availability of a certificate, the data provided on a certificate, and the violation rate of imported finished consumer products. Staff's eFiling Certificate of Compliance Study Assessment is available on CPSC's website at: https://www.cpsc.gov/​s3fs-public/​eFiling-Certificate-Study-Evaluation-Report-FINAL.pdf.

Staff's analysis of the data collected in this study indicates that the ability to provide a certificate within 24 hours of CPSC's request is strongly associated with product compliance. The limited data set indicated that an entry is five times more likely to have a violation if a certificate is never provided to CPSC, and three times more likely if one is provided later than 24 hours after CPSC's request. Staff also identified four data elements from certificates that show potential correlations to the rate of violations. Other data elements on a certificate, such as the list of applicable citations, would allow CPSC similarly to apply algorithms to target certain products and/or rules. ( printed page )

3. eFiling Beta Pilot (Current)

On December 18, , the Commission approved staff's recommended plan to implement eFiling and to conduct an eFiling Beta Pilot, in collaboration with CBP, that would collect certificate data via a PGA Message Set.[ ] Following this, on June 10, , the Commission issued a Federal Register Notice (87 FR (June 10, )) [ ] to announce the eFiling Beta Pilot and recruit volunteers. The eFiling Beta Pilot has a product scope of approximately 300 Harmonized Tariff Schedule (HTS) codes prioritized for imports and includes all data fields on a certificate. CPSC updated the Product Registry used in the Alpha Pilot, to create a one-time data entry repository of certificate data that can be referenced in a PGA Message Set multiple times as a product is offered for importation. Additionally, staff has been meeting with a subset of nine participant volunteers to advise in IT development for the eFiling Beta Pilot. Meeting logs and related material for this work are available on https://www.regulations.gov on docket number CPSC--. CPSC's website also includes information on eFiling and the eFiling Beta Pilot, available at: https://www.cpsc.gov/​eFiling.

The purpose of the eFiling Beta Pilot is to build upon the Alpha Pilot, develop and test the infrastructure necessary to support a full-scale eFiling requirement, inform CPSC's rulemaking effort, and develop internal procedures to support enforcement. The Beta Pilot will also advance the “Single Window” [ ] concept to facilitate electronic collection, processing, sharing, and reviewing of trade data and documents required by CPSC during the cargo import process, and will assist CPSC in targeting imports more accurately to facilitate the flow of legitimate trade and enhance targeting of noncompliant trade.

The eFiling Beta Pilot also will assess CPSC and importer capabilities for eFiling certificate data elements via the PGA Message Set and incorporating the data elements into CPSC's RAM to risk score and interdict noncompliant products. The Beta Pilot will include more participants than the Alpha Pilot (over 30, more than in the Alpha Pilot), include more data elements (dates of manufacture and testing), and involve more varied consumer products under CPSC's jurisdiction (products classified under approximately 300 HTS codes).

4. Developing an eFiling System

To minimize burden, CPSC's eFiling System will allow importers to enter certificate data through two means: Full Message Set or Reference Message Set using the Product Registry.[ ] When using the Full Message Set, the importer will submit all certificate data elements via CBP's ACE. When using the Reference Message Set, the importer will enter all certificate data elements into the Product Registry prior to filing entry with CBP, and they will submit a unique reference identifier (ID) via ACE.[ ] Tab B of Staff's SNPR Briefing Package contains the CBP and Trade Automated Interface Requirement, which details the technical requirements to file each Message Set in ACE.

The Product Registry allows importers, or their designees, to enter the certificate data elements via a user interface, batch upload, and/or Application Programing Interface (API) upload. The user interface is a step-by-step process, where the importer submits one certificate at a time. The batch upload allows the importer to submit multiple certificates using a Comma-Separated Value (CSV) template. The API upload allows the importer to build an API connection via the Product Registry and their data systems to instantaneously enter certificates.

Additionally, the Product Registry provides multiple features to improve the importer's interaction. The importer has a business account in the Product Registry where users representing the importer can view all certificates submitted into the registry. The importer can also provide other third parties, such as a broker or test laboratory, with different levels of permission to submit certificate data on their behalf. Tab A of Staff's SNPR Briefing Package contains a detailed user guide for the Product Registry as used during the eFiling Beta Pilot.

III. Response to Comments

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

A. Section .3—Definitions

Comment 1: A commenter (C35) stated that proposed 16 CFR .3(b) causes confusion with too many certificate types.

Response 1: The terms and definitions described in proposed § .3(b) are for the reader's clarity; neither the NPR nor SNPR create new certificate types. Indeed, most of the terms in proposed § .3 are already used in section 14 of the CPSA or in another CPSC rule, such as 16 CFR parts and .

Comment 2: A commenter (C18) was concerned about CPSC's proposed definition of “importer” in the NPR to be the “importer of record” or IOR (as defined in the Tariff Act of , as amended), because the proposed definition could conflict with other CPSC rules. For example, the commenter stated that the “importer” required to certify products in 16 CFR part (the component part rule), may not be the IOR, who is the required certifier in the NPR. The commenter suggested that CPSC not make the IOR responsible for certification, because the IOR is the party making the official import declaration to CBP, not the party causing the goods to enter the country, who is the party with the most knowledge of the product. The commenter recommended that CPSC change the definition of “importer” to include a party with an ownership or beneficial interest in the imported products, so that the party with the most information about the product would be responsible for testing and certification.

Similarly, other commenters questioned who should be an “importer” with certification responsibilities under part . For example, several commenters (C12, C16, C19, C20, C32, C44, C67, C71, C82) stated that customs brokers should not fall within the definition of “importer” because they do not have sufficient knowledge of the products to ensure compliance nor are they the “beneficial party in interest.” Commenter C18 stated the same argument with regard to consignees acting as importers of record, and other commenters (C7, C14, C36) asserted that private labelers should not be responsible for certifying for the same reasons.

Response 2: The CPSA does not define “importer.” [ ] We agree that expanding the definition of who can be an “importer” in part beyond the IOR, for the purposes of testing and certification, is beneficial to stakeholders and to CPSC's eFiling and enforcement efforts. Accordingly, the SNPR proposes to broaden the definition of “importer” in proposed § .3(b) to include any party that could be an importer under CBP's definition of importer, as found under 19 CFR 101.1, as well as other parties that have a financial interest in the consumer product being offered for import and effectively caused the consumer product to be imported into the United States. Thus, the SNPR proposes that an “importer” may be the importer of record; consignee; or owner, purchaser, or party that has financial interest in the consumer product being offered for import and effectively caused the consumer product to be imported into the United States.

Under the proposed definition of “importer,” a person holding a valid customs broker's license can be an importer. Retaining customs brokers in the definition gives them the option to assume responsibility for certification on behalf of their clients if that is a service they wish to provide. Additionally, because of the expanded definition of “importer” and CPSC's need to recognize the party assuming responsibility, the SNPR requires the party certifying compliance be identified in § .11(a)(5).

Comment 3: Two commenters (C36, C50) stated that under section 3(b) of the CPSA, CPSC does not have the authority to include common carriers in the definition of “importer.”

Response 3: Section 3(b) of the CPSA prohibits CPSC from deeming common carriers, contract carriers, third party logistics providers, and freight forwarders to be a manufacturer (including importer), distributor, or retailer “solely by reason of receiving or transporting a consumer product in the ordinary course of its business as such a carrier or forwarder.” 15 U.S.C. (b). Neither the NPR or this SNPR would deem such carriers as manufacturers or importers for receiving or transporting goods. However, if a common carrier, contract carrier, third party logistics provider, or freight forwarder contracts with another party to provide services as a licensed customs broker, and in that capacity chooses to act as the IOR and attests to ( printed page ) the content of the certificate at the time it is eFiled, CPSC is justified in holding that carrier responsible for the information on a certificate. In that case, the carrier is not acting in the ordinary course of its business as a carrier or forwarder, but is instead acting as the IOR or a customs broker. The revised definition of “importer” in the SNPR should alleviate some concern, because an IOR is not the only party that can certify a product. However, a common carrier can remove themselves from any responsibility to certify consumer products by choosing not to act as a customs broker, choosing not to act as the IOR, or ensuring that the importer, as defined in proposed § .3(b), certifies the product.

Comment 4: Several commenters (C17, C35, C38) remarked that the definition of private labeler is unclear. Commenter C17 stated that the terms “brand,” “trademark,” and “to carry” a brand or trademark are vague terms that may not be applied consistently. Commenter C38 requested clarification whether a private labeler must certify when the product does not contain the name or trademark of the manufacturer.

Response 4: Section 3(a)(12)(A) of the CPSA defines “private labeler” as the “owner of a brand or trademark on the label of a consumer product which bears a private label.” 15 U.S.C. (a)(12)(A). Section 3(a)(12)(B) further explains that a consumer product bears a private label when the product (or its container) is labeled with the brand of a person other than a manufacturer, the person with whose brand the product (or container) is labeled has caused the product to be so labeled, and the brand of a manufacturer does not appear on the label. 15 U.S.C. (a)(12)(B). Consistent with the statute, the term “private labeler” is generally understood to refer to products manufactured by one company but sold under the brand name of another company. The private labeler is one of the three parties stated in section 14 of the CPSA that may certify a product. Section .7(b) of the SNPR proposes that for domestically manufactured products, the private labeler must issue a certificate that meets the requirements of part , unless the manufacturer issues the certificate.

B. Section .5—Products Required To Be Certified

Comment 5: Several commenters (C31, C36, C48, C49, C52, C63) urged CPSC to specifically accommodate small businesses, which have fewer compliance resources. Several commenters (C31, C49) stating specifically that the extra security, IT infrastructure, and customs broker fees associated with eFiling, will be “out of range,” “catastrophic,” or a “significant burden” on small manufacturers and businesses in general. Two commenters (C52, C63) suggested that eFiling should be optional for small importers, instead of a mandatory requirement, to assist small businesses with small volumes or those that are from countries that do not have any competitive options for third party testing. Other commenters (C49, C52, C63) stated that small businesses usually issue paper certificates and are not prepared to file electronically. One commenter (C52) proposed that the CPSC should differentiate between importers/producers of “low risk” and “high risk” toys and children's products to avoid excessive burdens on small producers and importers.

Additionally, commenter C8 recommended that CPSC create a new set of requirements for “micro-businesses” that would be exempted from third party testing for component parts and finished products. Instead of a certificate, the commenter proposed that these “micro-businesses” could provide a supplier's Material Safety Data Sheet (MSDS).

Response 5: The CPSA's certificate requirements do not contain a small business exception. Indeed, an exception for imported products could undermine the goal of protecting consumer safety by using certificate data to target non-compliant and potentially hazardous consumer products. However, section 14(i)(4) of the CPSA does provide third party testing relief for certain rules for Small Batch Manufacturers of children's products, which allows for testing of certain product safety standards at any third party laboratory, instead of a CPSC-accredited laboratory.[ ] Moreover, CPSC has a Small Business Ombudsman to assist small businesses with questions related to compliance with CPSC rules.

CPSC developed a web-based application, the Product Registry, to reduce burden for importers, especially for small businesses. CPSC's Product Registry is a web-accessible database that will not require any additional IT infrastructure for certifiers to use and has its own internal security. Firms do not need to create their own web infrastructure to host certificate data. Small businesses can enter the information into the Product Registry and use the system to maintain certificates. Firms can also enter data using batch uploads, which are available in several formats. Additionally, firms can choose to have a third party, such as a test lab, enter data into the Product Registry on their behalf. The Product Registry is designed to be flexible to allow businesses to use the system in a manner that reduces cost and burden.

Comment 6: Commenters C44 and C82 suggested that the CPSC consider implementing a certificate exception for de minimis shipments. The commenter maintains that a de minimis exception would leave CPSC and CBP with a greater ability to use its resources to monitor and target product safety compliance of higher-value shipments that contain larger quantities of consumer goods.

Response 6: Congress did not provide a de minimis exception from certificate requirements. Furthermore, one of the emerging hazards since the NPR is the growth in direct-to-consumer shipments, which are often de minimis. These shipments may be of lower value, but the volume of such shipments is growing rapidly, and they are particularly challenging to monitor. Staff has found hazardous, non-compliant products in de minimis shipments. The ability to collect certificate data at entry for these lower-value shipments, and to assess these shipments for targeting purposes, will enhance CPSC's ability to enforce our rules, bans, standards, and regulations, and to protect consumer safety.

Regarding compliance burden, CBP has standardized the means of collecting additional data elements for PGAs using entry type 86 (ET86) for lower-value shipments. A broker may now use ET86 for de minimis shipments to append the CPSC PGA Message Set.

Comment 7: Commenter C53 argues that, as an IOR for returned goods, they are unable to test and certify such goods. The commenter urges CPSC to “consider products exported by U.S. retailers and then returned (reimported) to that retailer as `Goods Returned' and exempt from the certificate requirement,” regardless of entry type.

Response 7: Section 14 of the CPSA does not provide an exemption from the certificate requirements for returned goods. As with the existing rule and consistent with the statute, under the proposed rule certificates are required for finished products that are imported for consumption or warehousing and subject to a consumer product safety rule. ( printed page )

C. Section .7—Who Must Certify Finished Products

Comment 8: Several commenters (C14, C36, C39) opposed the proposed changes to § .7 in the NPR, which expanded who could be a certifier for both imported and domestic products and required private labelers to certify products that are privately labeled, unless another party certifies the product. Commenters encouraged CPSC to retain the existing language in current 16 CFR .7, which they believe clearly identifies the party responsible for issuing the certificate. Commenter C36 stated that CPSC should recognize that either the importer, domestic manufacturer, or private labeler may certify, as provided in section 14 of the CPSA.

Response 8: Upon consideration of the comments, the SNPR simplifies the NPR proposal in § .7 for imported consumer products. CPSC has more information on imported consumer products than the agency had in , because CPSC now receives a data feed from CBP that, while focused on trade enforcement and tariff collection rather than safety, identifies the relevant firms for each shipment. Moreover, with the additional certificate data collected via a PGA Message Set, CPSC can enforce the certificate requirement against an importer or a private labeler, even if neither firm is the entity submitting the required certificate data.

The SNPR proposes a revision to the definition of “importer,” allowing any party that can be the importer of record under proposed § .3 to certify. Currently, CPSC expects the IOR to issue a certificate; however, in some cases the IOR is not the party with a beneficial ownership in the goods that causes importation of the consumer product, which makes enforcement challenging. The proposed expansion of the “importer” definition both responds to comments and should assist CPSC in identifying responsible parties.

For domestically manufactured products, the SNPR retains the NPR's proposal that privately labeled products be certified by the private labeler, unless the manufacturer issued the certificate. CPSC proposed this requirement because products that are privately labeled do not display the manufacturer's name or contact information. Such products are typically designed and produced according to the specifications and requirements of the brand owner. Firms that do not want to be responsible for issuing a certificate as a private labeler for domestically manufactured products need only ensure that the name of the manufacturer appears on the product. 15 U.S.C. (a)(12).

Comment 9: Commenters (C36, C45, C47, C50, C71) suggested that any party in the supply chain should be allowed to certify, including brand owners/private labelers and foreign manufacturers. Other commenters (C15, C74) stated that foreign manufacturers of direct-to-consumer products should be required to certify, but certification by brand owners/private labelers should be optional. One commenter (C35) was unclear if the brand owner/private labeler or foreign manufacturer should certify under proposed § .7(a) for imported direct-to-consumer products. Another commenter (C14) stated that responsibility for certifying should be placed on importers because foreign manufacturers might not comply.

Response 9: As stated in response to comment 2, the SNPR broadens the definition of “importer” in part to include any firm that could be an importer under CBP's definition in 19 CFR 101.1. Therefore, any entity that falls within this definition would be allowed to provide certificate data for imported consumer products. For direct-to-consumer imports not involving a broker, the party with financial interest in the product being offered for import and who effectively caused the consumer product to be imported into the United States, which could be the foreign manufacturer or the seller who sold the product on an online marketplace, would be considered the importer and the party responsible for certifying. Regarding foreign manufacturers that supply products for U.S. distribution, they are subject to the requirements of the CPSA and CPSC has the authority to refuse admission for noncompliant products under section 17(a) of the CPSA. 15 U.S.C. (a).

Comment 10: A commenter (C16) claimed that requiring brokers to be responsible for certification duplicates work being done by the importer, because the importer is already responsible for producing the certificates. The commenter argued that the proposal in the NPR would increase brokerage costs to importers, damage the importers' ability to be profitable, dilute the information chain, and increase the risk of mistaken reporting. Another commenter (C20) stated that holding brokers responsible for certification will result in increased requests by brokers for powers of attorney, which in turn will require greater CBP staffing, and ultimately, increased costs to the consumer. Another commenter (C44) asserted that CPSC's cost estimates for filing certificates are too low because they do not account for a necessary increase in broker's fees to offset the extra labor associated with becoming familiar with the products being imported and applicable requirements. The commenter also stated that requiring certificate information to be filed at the time of entry will slow the filing and delay delivery and increase warehouse costs. The commenter suggested reducing the burden of the proposed rule by paring down the required information to only that necessary for effective targeting and allowing the upload of the required information by PDF to cut down on the amount of data entry.

Response 10: As previously noted, the proposed definition of “importer” in this SNPR has been expanded to include firms that could be an importer under CBP's definition. Consequently, customs brokers are not the only entity that can certify. They can, however, assume that responsibility as a service provided to clients if they choose. Moreover, the Product Registry will allow importers to store certificate data for repeated imports of the same product, which will lessen the burden of preparing certificates.

Because entry filing most often occurs in advance of a shipment's arrival, adding a PGA Message Set with entry or entry summary will not impede the movement of a shipment, so warehousing costs and delivery times should not be impacted. Finally, CBP will not accept large amounts of data in PDF format, because it is difficult to store and search or manipulate. Since , CBP and CPSC have built and demonstrated the necessary infrastructure to receive entry data and associated PGA Message Set data, which has been successfully tested and will be further developed through the Beta Pilot, making PDF submission outmoded.

Comment 11: A commenter (C39) stated that if the Commission changes who is responsible for issuing certificates from a domestic manufacturer to a private labeler, private labelers such as retailers who are removed from the manufacturing process would be required to establish compliance programs to exercise due diligence over domestic manufacturers. The commenter stated that such programs will impose new burdens on the supply chain, increase end-use consumer prices, and have a potential negative impact on interstate commerce, costs for which are not accounted for in the proposed rule. The commenter also asserted that the Commission should not change the requirement of who must issue a certificate from the manufacturer ( printed page ) to the private labeler for domestically produced products, because CPSC has not identified a rational basis for the change. Another commenter (C14) asserted that often the importer or private labeler does not know the actual manufacturer. Commenter (C49) stated that burden will increase for small manufacturers, because the same material will be tested by multiple private labelers. Similarly, commenter (C4) stated that burden will increase for their firm, because the commenter does not know whether their end customer will use their manufactured products for children's products.

Response 11: Private labelers who do not want to test and certify can contract with their manufacturers to ensure that the products they are responsible for introducing into commerce are compliant with all applicable consumer product safety rules and meet testing and certification requirements. For enforcement purposes, the NPR proposed to require either the domestic manufacturer or the private labeler to issue the certificate, because no other party would have the necessary knowledge of the product to be able to certify. This SNPR retains the language in proposed § .7(b) of the NPR.

Comment 12: Commenters (C44, C82) noted that the United States Postal Service (USPS) does not act as the IOR for mail shipments and cannot be held responsible for issuing certificate information. Due to that, the commenters asked how the proposed rule will govern mail operations and what party would issue the certificate.

Response 12: While the SNPR's proposed definition of importer in § .3(b) does not include the USPS, the definition does include several parties who could be considered the importer. Section .13(a)(1) of the SNPR would require certificates for international mail shipments to be entered in the Product Registry before the product arrives in the United States. Under the proposed definition of “importer,” either the U.S.-based firm receiving the shipment or the foreign firm that sent the shipment could be considered the importer. Staff recommends that only one of those firms enter certificate data into the Product Registry and attest to the accuracy of the information, preferably the U.S.-based firm so that the certifier can be more easily contacted.

Comment 13: Several commenters (C33, C38, C45, C52, C74) urged that recertification not be required for each batch of a product if there has not been a material change to the product. The commenters also suggested that if the certificate scope is allowed to cover several years of production, then the burden on the manufacturer will be greatly reduced.

Response 13: For regulated children's products, certifiers are required to follow testing and certification requirements as described in 16 CFR parts and . Part requires three types of testing for children's products: initial certification testing; periodic testing; and material change testing. Children's product certificates must be updated after periodic and material change testing, because when new testing is conducted, the information on the certificate, namely the testing date, will have changed. This SNPR does not change any of these requirements.

Non-children's products are required to meet part , meaning that each product must be compliant based on a test of each product or a reasonable testing program, and must remain compliant. CPSC recommends, but does not require, that non-children's products also be periodically tested (most companies do so yearly) and re-tested when there is a material change in the products' design or manufacture that could affect compliance. Again, the SNPR does not propose to change these requirements.

D. Section .9—Certificate Language and Format

Comment 14: Many commenters (C7, C10, C11, C13, C17, C31, C35, C36, C39, C41, C42, C43, C45, C46, C47, C50, C56, C60) opposed proposed revisions to § .09(c) in the NPR, which provided that an electronic certificate must be accessible “without password protection, to the Commission, CBP, distributors, and retailers.” Several commenters stated that preventing password protection for delivery of certificates to distributors and retailers would constitute a disclosure of proprietary information, which would be in violation of section 6(a) of the CPSA, 15 U.S.C. (a). Other commenters similarly expressed concern that the lack of password protection would allow fraudulent companies to falsify certificates and competitors to access commercial secrets.

Response 14: In light of the comments received, the SNPR does not propose to prohibit password protection but rather leaves this issue for resolution between certifiers and their retailers and distributers. To date, in the absence of a prohibition on password protection, no retailer or distributor has complained to the Commission that they do not have access to certificate data.

E. Section .11—Certificate Content

Comment 15: Several commenters (C39, C64, C78) stated that the proposed certificate data elements to be collected at import are “unclear,” “unobtainable,” and “unnecessary” and question the utility of the data elements in enhancing CPSC's risk assessment. These commenters further stated that CPSC should work with stakeholders to identify necessary data elements to limit industry's burden. Commenters (C64, C78) expressed that CPSC should not collect duplicative information already provided on CBP entry forms.

Response 15: Section 14(g) of the CPSA sets forth the minimum requirements for certificates and provides CPSC with the authority to add more requirements through rulemaking. As described in section II.D.2 of this preamble, CPSC previously conducted a Certificate Study in and found that several data elements indicate a higher risk of a noncompliant, hazardous product. Staff advises that the data elements proposed in the SNPR are necessary to match the certificate to the product being examined and to enhance CPSC's risk assessment, and are not duplicative of information already provided on CBP entry forms. If CPSC required eFiling of only a subset of the data elements for a certificate, importers would have the burden to maintain two sets of certificate data.

Comment 16: One commenter (C78) expressed that the proposed required description of the product is duplicative of the information provided by the HTS code and the quantity of units.

Response 16: HTS codes are typically very broad and will contain multiple products under one code. For example, .20. contains “Toddler beds, bassinets, cradles, play yards and other enclosures for confining children” made of metal. The code alone does not necessarily indicate which product a certificate would reference. Instead, the SNPR proposes that the certifier provide at least one specified unique identifier, as well as a sufficient description, to match the finished products to the certificate.

Comment 17: Commenter C9 suggested that CPSC allow the use of other product identifiers, such as a GS1 Global Trade Item Number (GTIN), to be used as an identifier of products covered by a certificate. The commenter stated that the use of this bar code system with the electronic certificate will allow industry to use the same information currently on their products and minimize the cost of compliance.

Response 17: A GTIN provides useful information for product identification. ( printed page ) Accordingly, the SNPR proposes to allow it as one of up to five product identifiers on a certificate: GTIN, model number, serial number, Stock Keeping Unit (SKU), or Universal Product Code (UPC). CPSC is developing capabilities to retrieve the required certificate data from the Global Data Synchronization Network (GDSN).

Comment 18: Several commenters (C24, C45, C46, C47, C50) expressed confusion regarding the date of initial certification and requested clarification as to how it differs from other dates, including the date of manufacture. A few commenters believe this data element is unnecessary.

Response 18: After considering the comments and enforcement efforts, the SNPR does not propose to include a separate date of initial certification. Analysis of certificates demonstrates that the date of manufacture and the date of testing, required by section 14(g) of the CPSA, and the date of entry, are sufficient to meet the statutory requirements as well as for CPSC's risk assessment.

Comment 19: Several commenters (C38, C45, C47, C51, C78, C80) opposed the NPR's proposal to require an indication of the scope of products covered by the certificate, claiming it to be difficult to determine.

Response 19: After considering the comments and gaining additional experience through the development of eFiling, CPSC does not include in the SNPR a new data element for the scope of products covered by the certificate. Instead, CPSC will rely on the product description and other identifiers on the certificate, along with CBP's entry data, to match a finished product to the certificate.

Comment 20: Several commenters (C38, C46, C49, C78) questioned the value of including a list of all applicable consumer product safety rules for CPSC's targeting efforts and does not believe that inclusion of this information is warranted. Another commenter (C47) stated