Noncomplying, Misbranded, or Banned Products: Recodification of Statement of Policy Concerning Export and Procedures for Export

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.

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(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