CPSC Asks for its Own Authority to Sample and Seize Consumer Products, Etc.

(See ITT’s Online Archives or 09/19/11 news, 11091910, for related BP summary of CPSC’s report on establishing a RAM that would analyze 100% of shipments by risk.)

Suggests Amendments to Sampling, Detention, Seizure, Importer of Record, Marking, Etc.

CPSC states that the following proposed changes would effectively implement its risk assessment methodologies, correct inconsistencies among current statutory authorities, and allow CPSC to operate in a more consistent manner with U.S. Customs and Border Protection in enforcing U.S. laws:

Authority to obtain samples at import - Section 17 of the Consumer Product Safety Act (CPSA) and section 14 of the Federal Hazardous Substances Act (FHSA) should be amended to authorize CPSC officers to draw samples of products with the approval of the Secretary of the Treasury from shipments imported or offered for import. This would make it easier to implement legal policy with regard to sampling. CBP could then appoint CPSC officers to draw samples, easing demands on CBP resources and limiting chain of custody issues.

Detention authority -- CPSC suggests amending the CPSA and FHSA to provide for specific detention authority for CPSC. CBP has detention authority under section 499 of the Tariff Act (codified at 19 USC 1499), but that authority (and the procedures to be followed with regard to notices, protests of detentions, and judicial action) do not apply to detained products whose admissibility is determined by a Government agency other than CBP. This amendment would make clear that CPSC has detention authority and that administrative challenges to that detention occur under CPSC, not CBP, law. This proposed change would authorize CPSC to hold merchandise in the manner afforded to other government agencies. (For example, per 21 U.S.C. 381(m)(2)(B)(i), FDA is authorized to hold imported food products at the port of entry if prior notice of arrival of that product is not given.)

Exportation of merchandise after refusal at import - Section 17 of the CPSA and section 14 of the FHSA should be amended to authorize the Secretary of the Treasury to promulgate regulations to afford the Government the discretion to limit exportation of product refused under section 17 or section 14 either to non-contiguous countries or the country of the product’s origin. This change would limit the possibility of attempted re-importation of refused product (i.e., port shopping.)

Marking product refused at import -- A new statutory provision should be added both to the CPSA and FHSA to authorize the Commission to require any consumer product that has been refused entry, to bear the statement: “UNITED STATES: REFUSED ENTRY”. The mark should be clear and conspicuous and be affixed by the importer, owner or consignee of the product. CPSC state that this proposed amendment is consistent with the provisions of the Federal Food, Drug and Cosmetic Act, particularly 21 U.S.C. 381(n).

Seizures of product not properly reconditioned -- Section 17 of the CPSA should be amended to allow for seizure of product that has not been reconditioned under any authority that allows seizure, not just under a CPSA authority that requires filing a judicial seizure action. CPSC states that current CPSA authority is cumbersome as it does not allow seizure in anticipation of more efficient administrative forfeiture proceedings.

Refused merchandise, exportation or destruction -- According to CPSC, Section 17 of the CPSA and section 14 of the FHSA are not consistent on the issue of disposition of product after it has been refused admission. Section 17 provides that products shall be destroyed unless, upon application by the owner, consignee, or importer of record, the Secretary of the Treasury permits the export of the product in lieu of destruction. If the product is not exported within 90 days of approval to export, such product shall be destroyed. Section 14 of the FHSA states that the Secretary of the Treasury shall cause destruction of any hazardous substance refused admission unless such hazardous substance is exported, under regulations prescribed by the Secretary of the Treasury, within 90 days of notice of such refusal or such additional time as may be permitted pursuant to such regulations.

The acts that initiate commencement of the obligation to export refused merchandise (and thereby triggering the 90-day time period to do so) are not consistent -- application for export (CPSA) versus issuance of the notice of refusal (FHSA.) The two statutes should be brought into confluence, preferably using the Government-initiated date of issuance of the notice of refusal.

Prohibited Acts -- Section 17(a) of the CPSA should be amended so that language describing the reasons for refusal of admission of products is consistent with language in Section 19 of the CPSA concerning prohibited acts. Under current authority, it is possible to have a product that is the subject of a prohibited act not be the subject of a refusal of admission. This anomaly should be corrected.

Importers of record, owners, and consignees -- Section 17 of the CPSA and section 14 of the FHSA should be amended to be internally consistent with regard to describing obligations and rights of importers of record, owners, and consignees of imported products.

Customs territory of the United States versus United States -- The provisions of FHSA section 14 refer to jurisdiction over products imported or offered for importation into the United States. The provisions of CPSA section 17 refer to products imported or offered for importation into the customs territory of the United States as defined by General Note 2 of the Harmonized Tariff Schedules. General Note 2 defines the term “customs territory of the United States as including only the States, the District of Columbia and Puerto Rico.”

CPSC says to contrast this with the CPSC definition of the United States that appears at CPSA section 3(a) (17) which refers to section 3(a) (15) that defines the term “State” as including a State, the District of Columbia, the Commonwealth of Puerto Rico, the Virgin Islands, Guam, Wake Island, Midway Island, Kingman Reef, Johnston Island, the Canal Zone, American Samoa, or the Trust Territory of the Pacific Islands. Adopting this change would extend the jurisdiction of the CPSA to the named territories and bring the CPSA and the FHSA into harmony.

Administrative Procedure Act (APA) hearing -- Section 17(b) of the CPSA allows an importer, owner, or consignee of detained merchandise to demand a full hearing under APA rules. The provisions of section 14 of the FHSA allow the owner or consignee to immediately introduce testimony to resolve a possible violation. APA hearings are lengthy and considerable product storage costs will be incurred during the pendency of the proceeding. This level of formal administrative review is otherwise unknown in the importation process. The provisions of the CPSA should be brought into conformity with the FHSA’s more streamlined approach with regard to administrative review of decisions concerning the admissibility of consumer products.