[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]



=======================================================================
-----------------------------------------------------------------------

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.

-----------------------------------------------------------------------

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