Hank Tapy, Director, Western Region Import Surveillance U.S. Consumer Product Safety Commission

1
Hank Tapy, Director, Western RegionImport
Surveillance U.S. Consumer Product Safety
Commission

• This presentation has not been reviewed or
  approved by the Commission and may not reflect
  its views

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Outline of Session

• CPSC Background
• Products Under CPSC Jurisdiction
• Major Requirements of the Consumer Product Safety
  Improvement Act (CPSIA)
• General Conformity Certification and Third Party
• Accreditation
• Enforcement
• Avoiding the Pitfalls that could delay entry

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Background

• Independent Federal Agency 1973
• Headed by 5 Commissioners (1 Chair)
• Approximately 400 staff total
• Annual Budget 100M
• 3 main Sections of the Agency
• Office of Compliance and Field Operations
• Division of Import Surveillance (Feb 2008)
• Compliance Officers (Subject Matter Experts)
• Field Investigators

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Jurisdictional Authority Many Acts

• Consumer Product Safety Improvement Act (CPSIA)
• Consumer Product Safety Act (CPSA)
• Lighters
• Federal Hazardous Substances Act (FHSA)
• Flammable Fabrics Act (FFA)
• Sleepwear/mattresses
• Poison Prevention Packaging Act (PPPA)
• Dietary Supplements, Packaging
• Refrigerator Safety Act (RSA)
• Virginia Graham Baker Pool and Spa Act

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CPSC Does NOT Have Authority Over

• Tobacco products
• Medical Devices
• Food and Drugs
• Boats or Motor Vehicles or Aircraft
• Firearms
• Pesticides
• Workplace products
• Alcohol

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Definition of a Consumer Product

• Any article or component of an article which is
  customarily produced or distributed for sale to
  or for the personal use, consumption, or
  enjoyment of consumers in a residential, school,
  recreational or other environment. It does not
  include a product intended for commercial or
  industrial use, unless it is sold to or used by
  consumers more than occasionally.

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Definition of Durable Infant or Toddler Product

• Intended for use, or reasonable expected to be
  used by children under the age of 5.
• Cribs
• Toddler beds
• High chairs, booster seats and hook on chairs
• Bath seats
• Gates and other closures for confining a child
• Play yards
• Stationary activity centers

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Durable Products Continued

• Infant Carriers
• Strollers
• Walkers
• Swings
• Bassinets and cradles

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Whats New

• Laboratory
• New Public Database
• GAO Report
• Generic Defect Rules
• Targeting Center
• Penalties
• Public Notice of Violations

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Laboratory

• August 2010 New Lab will be completed
• CPSC Rockville
• Modern, purpose built facility
• Local storage of samples

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Public Database

• OMB released 8M in FY09
• CPSC plan goes beyond merely making consumer
  complaints public
• March 2011 completion date for public portal

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GAO Report

• Recognized that CPSC has limited staff at the
  ports of entry
• Three recommendations
• Implement key provisions of CPSIA
• Update agreements with CBP
• Update strategic plan

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Generic Defect Rules

• Section 223(a) of CPSIA
• Allows commission, by rule, to define the
  presence or absence of certain characteristics as
  a defect for a class of products

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CTAC

• Commercial Targeting Analysis Center
• Operated by CBP
• Staffed by CBP, CPSC, and other agencies
  responsible for import safety

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Penalties

• Record number of firms agreed to civil penalties
  in FY2009
• Closing in on record amount for civil penalites

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Penalty Issues

• Increase in potential penalties for violations

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Public Notice of Violations
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CPSIA Focus

• Childrens Products
• Lead
• Phthalates
• Certification
• 3rd Party Testing
• Tracking Labels
• New standards for durable nursery products
• Product Registration Cards
• Mandatory Toy Standards

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New Lead Content Limits

• 300ppm
• Retroactive
• Must be Accessible
• Interim final rule exempting certain electronics
• Exclusions
• Stays of Enforcement
• Periodic Review of Standard

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New Lead Paint Standard

• 90ppm
• Retroactive
• Standard applies to same items as previously

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Lead Screening

• XRF used in field to screen for lead
• Highly accurate in screening homogenous plastic
  materials
• Demonstration
• Anyone have an item that they would like tested?

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Phthalates

• What are Phthalates?
• Permanent Ban
• DEHP
• DBP
• BBP
• Interim Ban
• DINP
• DIDP
• DnOP
• Revised lab test

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Certification

• Certification generally means vouching that a
  product complies with a certain requirement, such
  as a government standard
• Sometimes called a suppliers declaration of
  conformity
• May or may not involve any test laboratory
• May or may not involve a label on the product

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What Are Similar Rules?

• CPSA standards and bans not section 27 rules
• FHSA bans and requirements adopted by Commission,
  not bans solely by definition
• FHSA labeling rules for specific products
• FFA standards
• PPPA special packaging standards
• RSA standard for refrigerators
• Generic Defect Rule

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Who Must Certify?

• Every manufacturer of a product that is subject
  to a consumer product safety rule or similar
  rule, ban, standard or regulation and which is
  imported for consumption or warehousing or
  distributed in commerce

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Certification vs. Compliance

• Certification does not exempt any product from
  the requirement to comply with an applicable
  rule, standard, ban or regulation.
• Manufacturers (including importers), distributors
  and retailers must report to the CPSC immediately
  if they learn that one of their products fails to
  comply with an applicable consumer product
  safety rule or any other rule, regulation,
  standard, or ban under the CPSA or any other Act
  enforced by the Commission.

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Are All Imports Covered?

• Certification is required for products that are
  imported for consumption or warehousing

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What Testing Is Required As a Basis for
Certification?

• Certification must be based on a test of each
  product or upon a reasonable testing program

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Content of Certificates

• Certificates must
• identify the product, manufacturer (importer) or
  private labeler issuing the certificate, and any
  third party on whose testing the certificate
  depends, by name, address and phone number
• Must spell out the date and place where the
  product was manufactured and date and place of
  testing
• Must show contact information for person
  maintaining test records
• Must specify each applicable standard, ban, etc.

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Availability of Certificates

• Certificates must accompany each product or
  shipment of products covered by the same
  certificate
• A copy of the certificate must be furnished to
  each distributor or retailer of the product (no
  requirement to provide to ultimate consumer)
• Not necessarily a paper copy
• A copy of the certificate must be made available
  to the Commission and Customs upon request

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Certification at the Ports

• There is currently no requirement to file a
  certificate with CBP or any government agency as
  part of the entry process or otherwise

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Certification Violations

• CPSA Section 19(a)(6) makes it unlawful for any
  person either
• to fail to furnish a certificate required by
  section 14 or
• to issue a false certificate if the issuer in
  exercise of due care has reason to know it is
  false or misleading in any material respect
• Knowing violations of section 19 are subject to
  civil penalties knowing and willful violations
  could lead to imprisonment

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Third-Party Testing

• For childrens products, certification will have
  to be based on testing by an independent,
  third-party laboratory that is accredited under
  rules issued by the Commission
• The Commission must promulgate rules over time to
  give greater specificity to the requirements for
  third-party testing

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Laboratory Accreditation

• Baseline Accreditation
• ISO 17025, specific scope
• ILAC recognized
• Proprietary Labs
• Government Labs

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Is Third-Party Testing Required for All
Childrens Products?

• The requirement for third party testing applies
  to every childrens product that is subject to a
  childrens product safety rule

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Products Currently Requiring Certificates

• Adult ATVs (GCC)
• Childrens Products (3P)
• Lead Paint
• Lead Content in Childrens Jewelry
• Cribs
• Pacifiers
• Small parts

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Products Requiring Certificates Manufactured
afterFebruary 10, 2010

• Bicycle Helmets (GCC/3P)
• Bunk Beds (GCC/3P)
• Rattles (3P)
• Dive Sticks (3P)
• Portable Gas Containers (GCC)
• Special Packaging subject to the Poison
  Prevention Packaging Act (GCC)

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Products Requiring Certificates Manufactured
afterFebruary 10, 2010

• Ban on Extremely Flammable Contact Adhesives
  (GCC)
• Ban on Unstable Refuse Bins (GCC)
• Standard for Refrigerator Door Latches (GCC)
• Mattresses (GCC)
• Architectural Glazing (GCC)
• Matchbooks (GCC)

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Products Requiring Certificates Manufactured
afterFebruary 10, 2010

• CB Antennas (GCC)
• Lawnmowers (GCC)
• Swimming Pool Slides (GCC)
• Candles with Metal Wicks (GCC)
• Cellulose Insulation (GCC)
• Garage Door Openers (GCC)
• Cigarette Lighters (GCC)

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Products Requiring Certificates Manufactured
afterFebruary 10, 2010

• Multi-purpose Lighters (GCC)
• Fireworks (GCC)

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Products Requiring Certificates Subject to Stays
of Enforcement

• 5/17/2010 Bicycles (GCC/3P)
• 2/10/2011 Lead content in Childrens
• Products (3P)

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Stays of Enforcement until 90 Days After List of
Accredited Laboratories is Issued

• Carpets and Rugs (3P)
• Vinyl Plastic Film (3P)
• Wearing Apparel (3P)
• Caps and Toy Guns (3P)
• Phthalates (3P)
• ASTM F963 Toy Standard (3P)
• Clacker Balls (3P)

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Stays of Enforcement until 90 Days After List of
Accredited Laboratories is Issued

• Baby Walkers (3P)
• Bath Seats (3P)
• Childrens Sleepwear (3P)
• Electronically Operated Toys (3P)
• Durable Infant Products (3P)
• Childrens ATVs (3P)
• Childrens Mattresses (3P)

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Tracking Labels

• Required on childrens products
• Requires permanent mark on product and packaging

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Standards for Durable Infant Toddler Products

• Most will become effective in 2011.
• First standards
• Baby Walkers
• Bath Seats

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Product Registration Cards

• For durable infant and toddler products
• Effective Date 6/28/2010
• Will apply to 12 products initially
• 6 Additional products to be added 12/29/2010

Cribs Toddler Beds
High Chairs/Booster Chairs Bath Seats
Gates Other Enclosures Play Yards
Stationary Activity Centers Infant Carriers
Strollers Walkers
Swings Basinets Cradles
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Mandatory Toy Standard

• ASTM F963

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Refusal of Admission

• Products refused admission under Section 17
  (a)(2) of the CPSA must be destroyed unless the
  Secretary of Treasury permits export
• All expenses of destruction (including salaries,
  travel, per diem, etc) shall be paid by the owner
  or consignee
• If expenses of destruction are not paid, they
  become a lien against future imports by the same
  owner or consignee.

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Prohibited Acts Sec. 216

• Sale of a Recalled Product
• Also applies to voluntary corrective action taken
  with the manufacturer jointly with CPSC
• Use of a registered safety certification mark
  owned by an accredited conformity assessment
  body. (UL,ASTM,etc.)
• Misrepresentation to CPSC in the course of an
  investigation
• Exporting banned products unless made solely for
  export

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Enforcement

• Yearly Programs Coordinated with CBP for routine
  enforcement of Mandatory standards
• Rule sets developed in partnership with CBP
• Local Operations formulated based on port
  specific activity
• Targeted Exams

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How are potential violations investigated?

• Common Sense Approach
• Counterfeit versus Safety Defect
• Pre-screening of products containing lead for
  rapid decision making of shipment
• Importer Inspections (sometimes jointly with CBP)
• Domestic visits to retailers, wholesalers and
  consumers

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Avoiding the Pitfalls that could Delay Entry

• Make certificates readily available
• Ensure goods are classified appropriately
• Include product detail on invoice
• If importing ATVs have a CPSC approved action
  plan on file
• Make sure 3rd party testing body is accredited by
  CPSC
• Sign up for ISA

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Pitfalls Continued

• Ensure the correct citation to each CPSC product
  safety regulation or statutory requirement to
  which the product is being certified on the
  certificate.
• Dont import children's upper and outerwear with
  drawstrings.

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Childrens Jewelry

• Same relevant factors as any other childrens
  article
• Lead content lt 300ppm
• Certificate of Conformity
• Tracking Label

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Rules of Thumb

• Bracelets
• Elastic less than 6 ¾ in length
• Pins
• Simple post and clutch backing
• Earrings
• Small in size brightly colored backing not
  relevant
• Necklaces
• Less than 16 in length (12 up to age four)
• Rings
• Less than ¾ (sizes 3-5)

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Questions?

• Getting the most up-to-date information GO TO
• www.cpsc.gov under CPSIA legislation
• Hank Tapy, Director, Western Region
• [phone]