[Federal Register Volume 61, Number 114 (Wednesday, June 12, 1996)]
[Rules and Regulations]
[Pages 29646-29650]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-14760]
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CONSUMER PRODUCT SAFETY COMMISSION
16 CFR Parts 1010 and 1019
Noncomplying, Misbranded, or Banned Products: Recodification of
Statement of Policy Concerning Export and Procedures for Export
AGENCY: Consumer Product Safety Commission.
ACTION: Amendment of rules.
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SUMMARY: The Commission is recodifying and consolidating its
regulations governing Procedures for Export of Noncomplying Products
and policy statement concerning Exportation of Noncomplying,
Misbranded, or Banned Products. The regulations governing procedures
for export of noncomplying products, originally codified as 16 CFR part
1019, are recodified as 16 CFR part 1019, subpart
[[Page 29647]]
A. The policy statement, originally codified at 16 CFR part 1010, is
recodified as 16 CFR part 1019, subpart B. Because both the regulations
and the policy statement are applicable to export of noncomplying,
misbranded, or banned products, the Commission is combining them in one
place in the Code of Federal Regulations for the convenience of people
interested in the export of such products. The substantive provisions
of the regulations and policy statement are unchanged.
EFFECTIVE DATE: This amendment is effective June 12, 1996.
FOR FURTHER INFORMATION CONTACT: Dennis C. Kacoyanis, Trial Attorney,
Consumer Product Safety Commission, Division of Administrative
Litigation, Washington, DC 20207; telephone (301) 504-0262, extension
1346.
SUPPLEMENTARY INFORMATION:
A. Notification of Proposed Export of Noncomplying Products
The Consumer Product Safety Authorization Act of 1978 (Pub. L. 95-
631, November 10, 1978) amended the Consumer Product Safety Act (CPSA),
the Federal Hazardous Substances Act (FHSA) and the Flammable Fabrics
Act (FFA) by adding certain export notification requirements to those
statutes. In particular, persons and firms who intend to export
products that do not comply with applicable requirements of those
statutes or regulations issued under their authority must notify the
Commission at least 30 days before the proposed exportation. The 1978
amendments also require the Commission to transmit any notification of
proposed export of noncomplying products to the country of intended
destination. The export notification requirements are codified in
section 18(b) of the CPSA (15 U.S.C. 2067(b)), in section 14(d) of the
FHSA (15 U.S.C. 1273(d), and in section 15(c) of the FFA (15 U.S.C.
1202(c)).
In 1980, the Commission issued regulations to implement the export
notification provisions of the 1978 amendments. 45 FR 5306 (August 8,
1980). These regulations set forth the procedures to be used (i) by
persons and firms to give notice of proposed exportation of
noncomplying products, and (ii) by the Commission to notify the
government of the country of intended destination. 16 CFR part 1019.
B. Policy Statement on Export of Noncomplying Products
In 1984, the Commission published a statement of policy concerning
the circumstances where the CPSA, FHSA, and FFA permit export of
products that fail to comply with an applicable statute, standard, or
regulation. 49 FR 39663 (October 10, 1984). 16 CFR part 1010.
C. Recodification
For the convenience of people interested in exporting noncomplying
products, the Commission is combining and recodifying parts 1010 and
1019 into part 1019 of Title 16 of the Code of Federal Regulations. The
regulations governing procedures for export of noncomplying products,
originally codified at 16 CFR part 1019, are recodified as 16 CFR part
1019, subpart A. The policy statement, originally codified at 16 CFR
part 1010, is recodified as 16 CFR part 1019, subpart B. The
substantive provisions of the regulations and policy statement are
unchanged. However, references in the export notification regulations
to the ``Associate Executive Director for Compliance and Enforcement''
have been changed to ``Assistant Executive Director for Compliance,''
to reflect recent changes to the organization of the Commission staff.
Generally, the Administrative Procedure Act (APA) requires agencies
to publish a notice of proposed rulemaking and provide opportunity for
public comment before issuing, amending, or revoking a regulation. 5
U.S.C. 553. However, the APA provides that the requirement for notice
of proposed rulemaking is not applicable when the agency finds for good
cause that notice of proposed rulemaking and public participation are
``impracticable, unnecessary, or contrary to the public interest.'' 5
U.S.C. 553(b)(B).
The Commission finds for good cause that notice of proposed
rulemaking and public participation are unnecessary because the only
purpose of this amendment is to recodify the regulations and policy
statement for ease of reference. No substantive changes are being made.
The APA also requires that a substantive rule must be published at
least 30 days before its effective date unless the agency finds for
good cause that such delay is not needed. 5 U.S.C. 553(d). For the
reasons stated above, the Commission finds good cause not to delay the
effective date of the recodification and amendment. Consequently, they
shall become effective immediately.
D. Conclusion
Under the authority of section 553 of the Administrative Procedure
Act, the Consumer Product Safety Act (15 U.S.C. 2067), the Federal
Hazardous Substances Act (15 U.S.C. 1263, 1264, and 1273), and the
Flammable Fabrics Act (15 U.S.C. 1202) the Commission hereby amends
title 16 of the Code of Federal Regulations, Chapter II, Subchapter A
to read as follows:
PART 1010--[REMOVED AND RESERVED]
1. Part 1010 is removed and reserved.
2. Part 1019 is revised to read as follows:
PART 1019--EXPORT OF NONCOMPLYING, MISBRANDED, OR BANNED PRODUCTS
Subpart A--Procedures for Export of Noncomplying, Misbranded, or Banned
Products
Sec.
1019.1 Purpose, applicability, and exemptions.
1019.2 Definitions.
1019.3 General requirements for notifying the Commission.
1019.4 Procedures for notifying the Commission; content of
notification.
1019.5 Time notification must be made to Commission; reductions of
time.
1019.6 Changes to notification.
1019.7 Commission notification of foreign governments.
1019.8 Confidentiality.
Subpart B--Statement of Policy and Interpretation Concerning Export of
Noncomplying, Misbranded, or Banned Products
1019.31 Purpose and scope.
1019.32 Statutory provisions.
1019.33 Statement of policy and interpretation.
Authority: 15 U.S.C. 1196, 1202, 1263, 1264, 1273, 2067, 2068.
Subpart A--Procedures for Export of Noncomplying, Misbranded, or
Banned Products
Sec. 1019.1 Purpose, applicability, and exemptions.
(a) Purpose. The regulations in this subpart A of this part 1019
establish the procedures exporters must use to notify the Consumer
Product Safety Commission of their intent to export from the United
States products which are banned or fail to comply with an applicable
safety standard, regulation, or statute. These regulations also set
forth the procedures the Commission uses in transmitting the
notification of export of noncomplying products to the country to which
those products will be sent. The Consumer Product Safety Act
Authorization Act of 1978 (Pub. L. 95-631), which became effective
November 10, 1978, established these notification requirements and
authorizes the Commission to issue regulations to implement them.
[[Page 29648]]
(b) Applicability. These regulations apply to any person or firm
which exports from the United States and item which is:
(1) A consumer product that does not conform to an applicable
consumer product safety rule issued under sections 7 and 9 of the
Consumer Product Safety Act (15 U.S.C. 2056, 2058), or which has been
declared to be a banned hazardous product under provisions of sections
8 and 9 of that Act (15 U.S.C. 2057, 2058); or
(2) A misbranded hazardous substance or a banned hazardous
substance within the meaning of sections 2(p) and 2(q) of the Federal
Hazardous Substances Act (15 U.S.C. 1261); or
(3) A fabric or related material or an item of wearing apparel or
interior furnishing made of fabric or related material which fails to
conform with an applicable flammability standard or regulations issued
under section 4 of the Flammable Fabrics Act (15 U.S.C. 1191, 1193).
(c) Exemption for certain items with noncomplying labeling. The
exporter of an item that fails to comply with a standard or regulation
only because it is labeled in a language other than English need not
notify the Commission prior to export if the product is labeled with
the required information in the language of the country to which the
product will be sent.
(d) Exemption for samples. The exporter of an item that fails to
comply with a standard or regulation, but which is intended for use
only as a sample and not for resale, need not notify the Commission
prior to export, if the item is conspicuously and labeled in English
with the statement: ``Sample only. Not for resale.'' (The Commission
encourages exporters to provide this label, in addition, in the
language of the importing country, but does not require the foreign
language labeling.) To qualify as a sample shipment under this
exemption, the quantity of goods involved must be consistent with
prevalent trade practices with respect to the specific product.
(e) Exemption for items not in child-resistant packaging. The
exporter of an item which is a ``misbranded hazardous substance''
within the meaning of section 2(p) of the Federal Hazardous Substances
Act (15 U.S.C. 1261(p)) only because it fails to comply with an
applicable requirement for child-resistant packaging under the Poison
Prevention Packaging Act of 1970 (15 U.S.C. 1471 et seq.) need not
notify the Commission prior to export.
Sec. 1019.2 Definitions.
As used in this subpart A of this part 1019:
(a) Consignee means the person, partnership, corporation or entity
in a foreign country to whom noncomplying goods are sent;
(b) Export means to send goods outside the United States or United
States possessions for purposes of trade, except the term does not
apply to sending goods to United States installations located outside
the United States or its possessions;
(c) Exporter means the person, partnership, corporation or entity
that initiates the export of noncomplying goods;
(d) Noncomplying goods means any item described in Sec. 1019.1(b),
except for those items excluded from the requirements of these
regulations by Sec. 1019.1 (c), (d), and (e).
Sec. 1019.3 General requirements for notifying the Commission.
Not less than 30 days before exporting any noncomplying goods
described in Sec. 1019.1(b), the exporter must file a statement with
the Consumer Product Safety Commission, as described in Secs. 1019.4
and 1019.5 of this subpart A. The exporter need not notify the
Commission about the export of items described in Sec. 1019.1 (c), (d),
or (e). As described in Sec. 1019.5, the exporter may request the
Commission to allow the statement to be filed between 10 and 29 days
before the intended export, and the request may be granted for good
cause.
Sec. 1019.4 Procedures for notifying the Commission; content of the
notification.
(a) Where notification must be filed. The notification of intent to
export shall be addressed to the Assistant Executive Director for
Compliance, Consumer Product Safety Commission, Washington, DC 20207.
(b) Coverage of notification. An exporter must file a separate
notification for each country to which noncomplying goods are to be
exported. Each notification may include a variety of noncomplying goods
being shipped to one country. The notification may include goods
intended to be shipped to one country in any one year, unless the
Assistant Executive Director of Compliance directs otherwise in
writing.
(c) Form of notification. The notification of intent to export must
be in writing and must be entitled: ``Notification of Intent to Export
Noncomplying Goods to [indicate name of country].'' The Commission has
no notification forms, but encourages exporters to provide the required
information in the order listed in paragraphs (d) and (e) of this
section.
(d) Content of notification; required information. The notification
of intent to export shall contain the information required by this
subsection. If the notification covers a variety of noncomplying goods
the exporter intends to export to one country, the information required
below must be clearly provided for each class of goods, and may include
an estimate of the information required in paragraphs (d) (3) and (5)
of this section. The required information is:
(1) Name, address and telephone number of the exporter;
(2) Name and address of each consignee;
(3) Quantity and description of the goods to be exported to each
consignee, including brand or trade names or model or other identifying
numbers;
(4) Identification of the standards, bans, regulations and
statutory provisions applicable to the goods being exported, and an
accurate description of the manner in which the goods fail to comply
with applicable requirements; and
(5) Anticipated date of shipment and port of destination.
(e) Optional information. In addition to the information required
by paragraph (d) of this section, the notification of intent to export
may contain, at the exporter's option, the following information:
(1) Copies of any correspondence from the government of the country
of destination of the goods indicating whether the noncomplying goods
may be imported into that country; and
(2) Any other safety-related information that the exporter believes
is relevant or useful to the Commission or to the government of the
country of intended destination.
(f) Signature. The notification of intent to export shall be signed
by the owner of the exporting firm if the exporter is a sole-
proprietorship, by a partner if the exporter is a partnership, or by a
corporate officer if the exporter is a corporation.
Sec. 1019.5 Time notification must be made to Commission; reductions
of time.
(a) Time of notification. The notification of intent to export must
be received by the Commission's Assistant Executive Director for
Compliance at least 30 days before the noncomplying goods are to leave
the customs territory of the United States. If the notification of
intent to export includes more than one shipment of noncomplying goods
to a foreign country, the Assistant Executive Director for Compliance
must
[[Page 29649]]
receive the notification at least 30 days before the first shipment of
noncomplying goods is to leave the customs territory of the United
States.
(b) Incomplete notification. Promptly after receiving notification
of intent to export, the Assistant Executive Director will inform the
exporter if the notification of intent to export is incomplete and will
described which requirements of Sec. 1019.4 are not satisfied. The
Assistant Executive Director may inform the exporter that the 30-day
advance notification period will not begin until the Assistant
Executive Director receives all the required information.
(c) Requests for reduction in 30-day notification requirement. Any
exporter may request an exemption from the requirement of 30-day
advance notification of intent to export by filing with the
Commission's Assistant Executive Director for Compliance (Washington,
DC 20207) a written request that the time be reduced to a time between
10 and 30 days before the intended export. The request for reduction in
time must be received by the Assistant Executive Director for
Compliance at least 3 working days before the exporter wishes the
reduced time period to begin. The request must:
(1) Be in writing;
(2) Be entitled ``Request for Reduction of Time to File
Notification of Intent to Export Noncomplying Goods to [indicate name
of country]'';
(3) Contain a specific request for the time reduction requested to
a time between 10 and 30 days before the intended export); and
(4) Provide reasons for the request for reduction in time.
(d) Response to requests for reduction of time. The Assistant
Executive Director for Compliance has the authority to approve or
disapprove requests for reduction of time. The Assistant Executive
Director shall indicate the amount of time before export that the
exporter must provide the notification. If the request is not granted,
the Assistant Executive Director shall explain the reasons in writing.
Sec. 1019.6 Changes to notification.
If the exporter causes any change to any of the information
required by Sec. 1019.4, or learns of any change to any of that
information, at any time before the noncomplying goods reach the
country of destination, the exporter must notify the Assistant
Executive Director for Compliance within two working days after causing
or learning of such change, and must state the reason for any such
change. The Assistant Executive Director will promptly inform the
exporter whether the 30-day advance notification period will be
discontinued, and whether the exporter must take any other steps to
comply with the advance notification requirement.
Sec. 1019.7 Commission notification of foreign governments.
After receiving notification from the exporter, or any changes in
notification, the Assistant Executive Director for Compliance shall
inform on a priority basis the appropriate government agency of the
country to which the noncomplying goods are to be sent of the
exportation and the basis on which the goods are banned or fail to
comply with Commission standards, regulations, or statutes, and shall
send all information supplied by the exporter in accordance with
Sec. 1019.4(d). The Assistant Executive Director shall also enclose any
information supplied in accordance with Sec. 1019.4(e), but he or she
may also state that the Commission disagrees with or takes no position
on its content, including its relevance or accuracy. The Assistant
Executive Director shall take whatever other action is necessary to
provide full information to foreign countries and shall also work with
and inform the U.S. State Department and foreign embassies and
international organizations, as appropriate. The Assistant Executive
Director shall also seek acknowledgment of the notification from the
foreign government. Foreign governments intending to prohibit entry of
goods that are the subject of a notification from the Commission should
initiate action to prevent such entry and should notify the exporter
directly of that intent.
Sec. 1019.8 Confidentiality.
If the exporter believes any of the information submitted should be
considered trade secret or confidential commercial or financial
information, the exporter must request confidential treatment, in
writing, at the time the information is submitted or must indicate that
a request will be made within 10 working days. The Commission's
regulations under the Freedom of Information Act, 16 CFR part 1015,
govern confidential treatment of information submitted to the
Commission.
Subpart B--Statement of Policy and Interpretation Concerning Export
of Noncomplying, Misbranded, or Banned Products
Sec. 1019.31 Purpose and scope.
(a) This subpart B of this part 1019 states the policy of the
Consumer Product Safety Commission and its interpretation of the
Consumer Product Safety Act and the Federal Hazardous Substances Act
with regard to exportation of products which have been sold, offered
for sale, or distributed in commerce for use in the United States
which:
(1) Fail to comply with an applicable consumer product safety
standard or banning rule issued under provisions of the Consumer
Product Safety Act (15 U.S.C. 2051 et seq.); or
(2) Are ``misbranded hazardous substances'' or ``banned hazardous
substances'' as those terms are used in the Federal Hazardous
Substances Act (15 U.S.C. 1261 et seq.).
(b) The policy expressed in this subpart B of part 1019 does not
apply to any of the following products:
(1) Products which could be regulated only under provisions of the
Consumer Product Safety Act but which are not subject to a consumer
product safety standard or banning rule issued under that Act.
(2) Consumer products which are subject to and fail to comply with
an applicable standard or banning rule issued under provisions of the
Consumer Product Safety Act but which have never been distributed in
commerce for use in the United States. See section 18(b) of the
Consumer Product Safety Act 15, U.S.C. 2067(b), and subpart A of this
part 1019 for requirements governing export of such products.)
(3) Products which could be regulated under one or more sections of
the Federal Hazardous Substances Act but which are neither ``misbranded
hazardous substances'' nor ``banned hazardous substances'' as those
terms are used in the Act.
(4) Products which are ``misbranded hazardous substances'' or
``banned hazardous substances'' as those terms are used in the Federal
Hazardous Substances Act but which have never been sold or offered for
sale in domestic commerce. (See sections 5(b) and 14(d) of the Federal
Hazardous Substances Act (15 U.S.C. 1264(b) and 1273(d) and subpart A
of this part 1019 for requirements governing export of such products.)
(5) Products for which the Commission has granted an exemption from
an applicable standard, ban, or
[[Page 29650]]
labeling requirement under the CPSA, FHSA, or FFA, in accordance with
provisions of 16 CFR 1009.9. (These products remain subject to the
notification requirements of subpart A of this part 1019.)
(6) Products which fail to comply with an applicable standard of
flammability issued under provisions of the Flammable Fabrics Act (15
U.S.C. 1191 et seq.). The Commission's policy regarding export of such
products is set forth in the Commission's Memorandum Decision and Order
In the Matter of Imperial Carpet Mills, Inc., CPSC Docket No. 80-2,
July 7, 1983, and allows export without regard to whether the products
have been distributed in domestic commerce. (See section 15 of the
Flammable Fabrics Act, 15 U.S.C. 1202, and subpart A of this part 1019
for requirements governing export of such products.)
Sec. 1019.32 Statutory provisions.
(a) Section 18(a) of the Consumer Product Safety Act (15 U.S.C.
2057(a)) states:
This Act [the Consumer Product Safety Act] shall not apply to
any consumer product if: (1) It can be shown that such product is
manufactured, sold, or held for sale for export from the United
States (or that such product was imported for export), unless (A)
such consumer product is in fact distributed in commerce for use in
the United States, or (B) the Commission determines that exportation
of such product presents an unreasonable risk of injury to consumers
within the United States, and (2) such consumer product when
distributed in commerce, or any container in which it is enclosed
when so distributed, bears a stamp or label stating that such
consumer product is intended for export; except that this Act shall
apply to any consumer product manufactured for sale, offered for
sale, or sold for shipment to any installation of the United States
located outside of the United States.
(b) Section 4 of the Federal Hazardous Substances Act (15 U.S.C.
1263) states in part:
The following acts and the causing thereof are hereby
prohibited: (a) The introduction or delivery for introduction into
interstate commerce of any misbranded hazardous substance or banned
hazardous substance. * * * (c) The receipt in interstate commerce of
any misbranded hazardous substance or banned hazardous substance and
the delivery or proffered delivery thereof for pay or otherwise.
(c) Section 5(b) of the Federal Hazardous Substances Act (15 U.S.C.
1264(b)) provides in part:
No person shall be subject to the penalties of this section * *
* (3) for having violated subsection (a) or (c) of section 4 with
respect to any hazardous substance shipped or delivered for shipment
for export to any foreign country, in a package marked for export on
the outside of the shipping container and labeled in accordance with
the specifications of the foreign purchaser and in accordance with
the laws of the foreign country, but if such hazardous substance is
sold or offered for sale in domestic commerce, or if the Consumer
Product Safety Commission determines that exportation of such
substance presents an unreasonable risk of injury to persons
residing within the United States, this clause shall not apply.
Sec. 1019.33 Statement of policy and interpretation.
(a) In its enforcement of the Consumer Product Safety Act, the
Commission interprets the provisions of that Act to prohibit the export
of products which fail to comply with an applicable consumer product
safety standard or banning rule issued under that Act if those products
have at any time been distributed in commerce for use in the United
States.
(b) In its enforcement of the Federal Hazardous Substances Act, the
Commission interprets the provisions of the Act to prohibit the export
of products which are misbranded substances or banned hazardous
substances as those terms are used in that Act if those products have
at any time been sold or offered for sale in domestic commerce.
Dated: June 6, 1996.
Sadye E. Dunn,
Secretary, Consumer Product Safety Commission.
[FR Doc. 96-14760 Filed 6-11-96; 8:45 am]
BILLING CODE 6355-01-P
