CPSC Revises Requirements for Certificates of Compliance

On January 8, 2025, the Consumer Product Safety Commission (“CPSC”) published in the Federal Register a Final Rule that significantly changes the requirements for filing certificates of compliance for imported products under the Consumer Product Safety Act (“CPSA”). The publication of the Final Rule followed the CPSC’s vote to approve the Final Rule on December 18, 2024.

The Final Rule is intended to provide the CPSC and Customs and Border Protection (“CBP”) with significantly more information about imported products, which will likely enhance enforcement against noncompliant products. Companies should take proactive measures to ensure that all imported products comply with the CPSA. They should also prepare for increased scrutiny of products upon import, which may result in delays and potential seizures of products, and ensure that they have processes in place for complying with all aspects of the Final Rule.

The Final Rule makes two major changes to existing CPSC requirements for filing certificates of compliance, which will take effect on July 8, 2026 (except that for products entering from a foreign trade zone for consumption or warehousing, the rule will take effect on January 8, 2027).

First, the Final Rule requires that for all imported products subject to a mandatory safety standard under the CPSA, importers must electronically file (“eFile”) the requisite certificate of compliance at the time of entry with Customs and Border Protection (“CBP”), which will then share the certificate with CPSC. Notably, products claiming a de minimis duty exemption under 19 U.S.C. § 1321 (“Section 321”)—i.e., products valued at less than $800—are also subject to this eFiling requirement. By requiring eFiling of certificates of compliance, including for de minimis products, the Final Rule is intended to improve the CPSC and CBP’s ability to collect data on imported products and bolster their monitoring and enforcement capabilities.

Second, the Final Rule newly defines the term “importer” in the CPSC regulations to be synonymous with the importer of record (“IOR”). This change places the responsibility for filing certificates of compliance for most imported products on the IOR. However, if the IOR is a customs broker, the broker is responsible for filing the certificate but can designate the “owner, purchaser, or consignee” as legally responsible for complying with the CPSC’s testing and certification requirements, including for the accuracy and validity of the data submitted on the certificate.

For mail and de minimis shipments, which do not have an IOR, the Final Rule clarifies that the “importer” can be an owner, purchaser, consignee, or authorized customs broker. Similar to products that do not fall under the de minimis exemption, the customs broker may file the certificate for a de minimis shipment but identify the owner, purchaser, or consignee as the party responsible for compliance. 

Section 14(a) of the CPSA requires that “every manufacturer of a product” that is imported and is subject to any consumer product safety rule under the CPSA, or any ban, standard, or regulation under any other Act administered by the CPSC, must issue a certificate of compliance. 15 U.S.C. § 2063(a). Such certificate must certify, “based on a test of each product or upon a reasonable testing program, that such product complies with all rules, bans, standards, or regulations applicable to the product.” 15 U.S.C. § 2063(a)(1).

Section 14(g) of the CPSA specifies additional requirements regarding the form, content, and availability of certificates. 15 U.S.C. § 2063(g). For example, the certificate must include the following information:

• The date and place of manufacture;
• the date and place where the product was tested; and
• each party’s name, full mailing address, and telephone number, and contact information for the individual responsible for maintaining records of test results. 15 U.S.C. § 2063(g)(1).

Children’s products are subject to additional certification and testing requirements. 15 U.S.C. § 2063(a)(2); 16 C.F.R. Part 1107.

The CPSA defines a “manufacturer” to include importers. See 15 U.S.C. § 2052 (defining a manufacturer  as “any person who manufactures or imports a consumer product”). CPSC regulations limit the entities required to provide certificates under 15 U.S.C. § 2063(a) to “importers and U.S. domestic manufacturers.” 16 C.F.R. § 1110.1(a)(1). Furthermore, CPSC regulations specify that for goods imported into the United States, the importer is responsible for submitting the certificate of compliance. 16 C.F.R. § 1110.7.

Prior to the Final Rule, CPSC staff only collected certificates after they identified a shipment for examination; although companies had to make these certificates available to the Commission, the CPSC did not generally collect certificate data for all imported products subject to a mandatory safety standard.

The Final Rule imposes the new requirement that for all imported finished products that require a certificate of compliance under the CPSA, these certificates must be eFiled in the Automated Commercial Environment (“ACE”), an electronic system maintained by CBP to track imports. 16 C.F.R. §§ 1110.9, 1110.13 (to be codified). The certificates must be filed in the CPSC’s Partner Government Agency (“PGA”) Message Set within ACE, which allows the CBP to share the certificate data with the CPSC. 16 C.F.R. § 1110.13 (to be codified).

This new rule will require all importers, in collaboration with their customs brokers, to develop new procedures to ensure that appropriate documentation is electronically filed upon entry via ACE. These changes will be most notable for Section 321 “de minimis” shipments. Previously, products subject to CPSC certification requirements that were valued under $800 could be imported duty-free under the Section 321 “release from manifest” entry process. This “release from manifest” process allowed importers to enter their low-value shipments while providing minimal documentation to CBP, making it difficult for the agency to identify non-compliant shipments. Under this Final Rule, importers with de minimis entries will need to use CBP’s ACE Entry Type 86, which allows duty-free treatment, but requires more detailed documentation and information, including a CPSC certification.

Significantly, the Final Rule defines the term “importer,” which was previously undefined in the CPSC regulations, clarifying which parties are responsible for filing certificates of compliance. According to the Final Rule, an “importer” at 16 C.F.R. § 1110.3 is defined as the “Importer of Record (IOR) eligible to make entry for imported finished products under the Tariff Act of 1930, as amended (19 U.S.C. § 1484(a)(2)(B)), who may be an owner, purchaser, or authorized customs broker.” The new definition of “importer” further provides that, where the IOR is an authorized customs broker, the broker may identify on the certificate of compliance “the owner, purchaser, or consignee of the finished products who authorized the customs broker to make entry, as the party responsible for compliance with CPSC certificate requirements.” The CPSC explained in the Final Rule that this provision is intended to address a situation in which a broker is the IOR but lacks sufficient knowledge of the product to provide the information necessary for certification. 90 Fed. Reg. 1,800, 1,823 (Jan. 8, 2024). In such a scenario, although the broker (as the IOR) is still responsible for eFiling the certificate of compliance upon import (and obtaining the information necessary to complete that certificate), the CPSC “would expect” the identified owner, purchaser, or consignee to be the party that would “have sufficient knowledge of the products being imported and to understand that such finished products must now comply with U.S. laws and regulations, including compliance with CPSC’s testing and certification requirements.” Id.

Additionally, the Final Rule provides at 16 C.F.R. § 1110.3 that for “finished products imported by mail, or for which a de minimis duty exemption under 19 U.S.C. 1321(a)(2)(C) is claimed,” which do not have an IOR, “the importer for purposes of CPSC’s certificate requirements is a party eligible to make entry for the finished products pursuant to CBP statutes and regulations, who may be an owner, purchaser, consignee, or authorized customs broker.” The CPSC clarified in its accompanying preamble to the Final Rule that, as with products that do not fall under the de minimis exemption, the customs broker may file the certificate for a de minimis shipment but identify the owner, purchaser, or consignee who authorized the entry as the party responsible for compliance. 90 Fed. Reg. at 1,808. The Final Rule also clarifies that although a consumer could fall within the definition of purchaser or consignee, the CPSC “will not typically consider a consumer purchasing or receiving products for personal use or enjoyment to be the importer responsible for certification.” 16 C.F.R. § 1110.3 (to be codified).

Although the new definition of “importer” narrows responsibility for filing certificates of compliance to the IOR (except for mail and de minimis shipments), a much broader range of actors can still be held responsible for the data on the certificate under the provision allowing customs brokers to designate the “owner, purchaser, or consignee of the finished products” as the “party responsible for compliance with CPSC certificate requirements.” The Final Rule defines “consignee” at 16 CFR § 1110.3 as “a party who takes custody or delivery of imported finished products for which CPSC certificate data are required, and may be held legally responsible by CPSC for the required finished product certificate data as set forth in § 1110.15.”  “Owner or purchaser” is defined as “a party who has a financial interest in imported finished products for which CPSC certificate data are required, including the actual owner of the finished products, who may be held legally responsible by CPSC for the required finished product certificate data as set forth in § 1110.15.” Section 1110.15 in turn clarifies that being “legally responsible” for the finished product certificate data includes responsibility for its “validity, accuracy, completeness, and availability.”

The Final Rule does not define the term “financial interest” within the definition of “owner or purchaser.” However, given the CPSC’s statement in the preamble to the Final Rule that its definition of “owner or purchaser” is intended to “harmonize with the Tariff Act and CBP’s implementing regulations,” 90 Fed. Reg. at 1,823, CBP guidance regarding these terms may be instructive. Over the years, CBP has issued various guidance documents and rulings further addressing the definitions of these terms.

If the CPSC applies CBP guidance to interpret the term “financial interest” broadly, extending beyond a narrow definition of “owner or purchaser,” a number of other parties beyond the actual owner or purchaser of the imported goods might be considered to fall within the definition of “owner or purchaser,” such that the customs broker could list these additional parties as responsible for the data on the certificates of compliance. In the absence of further guidance, the plain text of the Final Rule leaves some uncertainty about which entities could ultimately be held responsible for the data on certificates of compliance.

The CPSC believes that by implementing an eFiling requirement for certificates of compliance, it will be able to collect data on imported products more effectively and efficiently, thereby improving its ability to enforce CPSC rules at ports of entry. As noted in the preamble to the Final Rule, “The purpose of eFiling is to allow CPSC to use data from a certificate to assess the health and safety risk of consumer products when they are being imported into the United States, and to better focus CPSC’s resources for examinations and holds at the ports on products that are more likely to be non-complaint, while reducing inspection delays for compliant products.” 90 Fed. Reg. at 1,800. The CPSC further stated that eFiling will allow for “more precise targeting” that will “maximize examination efficiency for stakeholders and staff; keep hazardous, violative products out of consumer’s hands; and reduce burden by not delaying compliant products and not holding up shipments at the port while waiting to receive a certificate.” Id. at 1802. This is consistent with the CPSC’s stated priorities, including the strategic goal in the CPSC’s 2025 Operating Plan to “[i]ncrease capability to identify and stop imported hazardous consumer products.”

Notably, the CPSC plans to use artificial intelligence (“AI”) to analyze the eFiled certificate data, which could also increase CPSC enforcement activities. The preamble to the Final Rule notes that eFiling provides the CPSC with the “the ability to use algorithms to assess certificate data and identify higher-risk shipments, even those of low value that occur frequently,” thus “enhanc[ing] CPSC’s ability to focus limited resources to identify and interdict higher risk shipments.” 90 Fed. Reg. at 1,802. Whether the use of AI to analyze certificate data will result in more improper stops of compliant shipments remains to be seen.     

Moreover, by requiring Section 321 de minimis shipments to eFile certificates of compliance, the Final Rule aims to prevent importers from using the de minimis exemption to circumvent consumer protection testing and certification requirements. In this way, the Final Rule is part of a broader policy effort by the Biden Administration to address the alleged abuse of the de minimis exemption and improve CBP and CPSC targeting of non-compliant shipments, such as those containing illegal drugs or presenting a public safety hazard. It is unclear whether the incoming administration will maintain this policy direction.

Companies should carefully consider how the Final Rule may impact their compliance efforts. In particular, companies should develop a robust compliance plan to ensure adherence to the eFiling requirement and other aspects of the Final Rule. Additionally, companies involved in imports for which an authorized customs broker serves as the IOR should consider which parties may be eligible for designation by the customs broker as responsible for compliance with CPSC testing and certification requirements. 

If you have any questions concerning the material discussed in this client alert, please contact the members of our Litigation and Investigations practice.