After attending lectures, discussions with logistics managers, as well as importers, I got a sense of big confusion that is occurring in the trade community regarding their responsibilities and regulations under CPSC. This belief was solidified by browsing (on Google) through various “Certificates of Compliance,” in which some listed absurdly general statements such as “Consumer Product Safety Act” in the applicable CPSC section, while others shifted this burden on producers, neglecting the regulatory language that explicitly provides this burden on importers.
Perhaps, one can make better sense of it if s/he departs from the mentality of customs broker, at least for time being. Do not try to associate harmonized tariff with specific regulations. Unlike previous OGAs/PGAs (FCC, FDA, FWS, etc.), CPSC scope of jurisdiction – consumer – goods is very broad. See 16 CFR 1145.1, where scope is broadly established to extend to any consumer product from which the risk of injury could occur (and try to fit it in the reasonable HTSUS range). Or take 16 CFR 1500 definition of solid flammable (including exceptions), and again one comes across unclear and broad range of products that can fall under it. While establishing very broad scope of consumer goods jurisdiction, CPSC teases customs broker mind by providing specifics: mattresses, matchbooks, swimming pool slides. But then, it departs from specifics by only citing some furniture but not all, or citing some gloves, but not all. The key ingredient that is CPSC missed, and importers are now paying the price, is the clearer guidance on the interpretative methodology one should adopt (something like GRIs in classification).
What interpretative methodology should one use in jurisdiction determination under CPSC? There is not clear rules on how it should be read, which means there may be more then one correct answer. But I would recommend not to look at others for an answer (at least for those of us who make a living of it) and determine which one bests suits you, but try to figure it out on your own (and only then compare it with others). It would be difficult and time consuming at first, but then would become more and more clear.
Maybe, it would help to start by looking at the original text – 5 Acts that CPSC claims to have jurisdiction over. While reading these Acts, it would be helpful to pose various questions (What products does this Act cover? How are this products different / similar to other products in different Act? Is the product jurisdiction under this Act exclusive or concurrent?) and make notes. Then, go to regulations (upon which these statutes are based). Read them, and see how CPSC interpreted the statutes and codified them. Then, go to advisory opinions, review voluntary standards, frequently asked questions, and other literature that further expresses CPSC views on regulations (that in turn express CPSC views of the statutes under the Act). If one looks at CPSC opinions before becoming familiar with statutes, there is ample room for confusion due to lack of regulatory background and interpretative methodology.
Personally, I found it easiest to go Act by Act. “Certificate of Compliance” imposed knowledge responsibility of all Acts by the importer: “certificate shall identify separately each applicable consumer product safety rule under the Consumer Product Safety Act and any similar rule, ban, standard or regulation under any other Act enforced by the Commission that is applicable to the product.” See 16 CFR 1110. All potentially applicable questions / clauses are broken down to questions or tables. The product specifics of the Act are further broken down into sections (I like to call them dimensions), which may have the overlap with other sections. Once finished with first Act, I would go to the next, and continue until finished. While the resulting product is still messy, it makes a lot of sense (because it is though of not in terms of general jurisdiction, but rather specific subsection of the specific Act of Congress).
Feel free to examine this strategy by clicking here, but remember, it is your own adaptation that would work best for you.
Happy New 2009!
