CPSC Update
Grunfeld, Desiderio, Lebowitz, Silverman & Klestadt LLP
The Consumer Product Safety Commission (“CPSC”) and State of Vermont have enacted new requirements relating to the regulation of children’s toys and other children’s products.
I. CPSC Amendment to Testing Requirements for Unfinished and Untreated Wood Toys and Wood Component Parts of Toys
In a Federal Register notice dated December 17, 2015, the CPSC published a final rule amending the requirements of ASTM F963-11 to eliminate third party testing requirements for certain unfinished and untreated woods toys and wood component parts of toys.
ASTM F963-11 is a mandatory product safety standard that restricts the maximum solubility of eight elements (antimony; arsenic; barium; cadmium; chromium; lead; mercury; and selenium) in the coatings and substrates of certain toys. Third party testing is required to certify compliance with the limits on these elements, and testing is required when there are material changes to a previously-certified product. Moreover, toys subject to the ASTM F963-11 standard are required to undergo periodic testing to demonstrate continued compliance with the limits. For certain materials, compliance with ASTM F963-11 is guaranteed without third party testing due to the inherent characteristics of the material.
Beginning in 2013, in order to reduce the burden of third party testing, the CPSC began researching materials with inherent characteristics that guarantee compliance with ASTM F963-11. Ultimately, the CPSC hired a contractor to research whether unfinished and untreated woods, bamboo, beeswax, undyed and untreated fibers and textiles, and uncoated or coated paper contain any of the eight specified heavy elements in concentrations above the ASTM F963-11 maximum solubility limits. The results of the research were inconclusive for all of the materials except for unfinished and untreated woods.
With respect to unfinished and untreated woods, the research indicated that heavy elements were not present in tree trunks above the solubility limits, but heavy elements may be present in wood from other portions of the tree. Although heavy elements may be present in parts of the tree other than the trunk, the CPSC noted that commercial timber harvesting eliminates other portions of the tree through a process that creates logs from the trunks of trees.
Based on its findings, the CPSC amended testing requirements to eliminate third party testing for certain unfinished and untreated woods toys or wood component parts of toys. This rule will go into effect on January 16, 2016.
II. Vermont Law on the Regulation of Children’s Products Containing Chemicals of High Concern to Children
On November 19, 2015, the State of Vermont approved a final rule that requires the reporting of certain chemicals of high concern (“CHCC”) in children’s products. The law was originally enacted in June 2014 and was modelled on a similar law enacted by the State of Washington.
Children’s products include any consumer product marketed for use by, marketed to, sold, offered for sale, or distributed to children under the age of 12 in the State of Vermont. Children’s products specifically include: toys; children’s cosmetics; children’s jewellery; teething products; products to facilitate sleep, relaxation, or feeding of a child; clothing items for children; and child car seats.
Under the Vermont law, manufacturers of children’s products are required to submit a notice to the State of Vermont for each CHCC in a children’s product if the CHCC is intentionally added above a certain level or is present as a contaminant at a concentration of 100 parts per million or greater.
For each notice, manufacturers are required to pay a fee of $200. Failure to comply with the law may result in civil investigation by the Attorney General, discontinuance of any products at issue, and civil action.
Manufactures must begin submitting notices on July 1, 2016, with notices to be resubmitted biennially thereafter.
Fact Sheet: Update to the National Terrorism Advisory System
U.S. Homeland Security
In 2011, the Department of Homeland Security (DHS) replaced the color-coded alerts of the Homeland Security Advisory System (HSAS) with the National Terrorism Advisory System (NTAS), designed to more effectively communicate information about terrorist threats by providing timely, detailed information to the American public.
Background: The National Terrorism Advisory System (NTAS)
When it was launched, NTAS featured an advisory system that consisted of two types of “Alerts”: Elevated and Imminent. An “Elevated Alert” is intended to warn of a credible terrorist threat against the United States and its territories that is general in both timing and potential location such that it is reasonable to recommend implementation of protective measures to thwart or mitigate against an attack. An “Imminent Alert” is intended to warn of a credible, specific, and impending terrorist threat or on-going attack. DHS has continuously evaluated intelligence threat streams through the NTAS process since the system’s creation, but it has never issued an Alert because neither the circumstances nor threat streams have risen to the required level or purpose of the system.
In order to determine how DHS can more effectively and quickly communicate information to the public and other partners regarding threats to the homeland in the evolving threat environment, and following discussions with homeland security stakeholders, Secretary of Homeland Security Jeh Johnson directed a review of the NTAS to consider possible revisions. Based on this review, DHS is updating the NTAS to add a new form of advisory – the NTAS “Bulletin” – to the existing NTAS “Alerts.”
NEW: NTAS “Bulletins”
DHS will achieve the objective of more flexible, timely, and useful communication with the public regarding terrorist threats through the introduction of an additional component of NTAS to accompany the existing NTAS Alerts: the NTAS “Bulletin.” NTAS Bulletins will provide information describing broader or more general trends and current developments regarding threats of terrorism. They will share important terrorism-related information with the American public and various partners and stakeholders, including in those situations where additional precautions may be warranted, but where the circumstances do not warrant the issuance of an “elevated” or “imminent” Alert. An NTAS Bulletin will summarize the issue and why it is important for public awareness, outline U.S. Government counterterrorism efforts, and offer recommendations to the public on how it can contribute to the overall counterterrorism effort.
With the introduction of the Bulletin, NTAS will now consist of two types of advisories: Bulletins and Alerts. As under the existing system, if there is sufficient information regarding a credible, specific terrorist threat against the United States, such that it is reasonable to recommend implementation of protective measures to thwart or mitigate against an attack, DHS will share an NTAS Alert – either Elevated or Imminent – with the American public. The Alert may include specific information, if available, about the nature of the threat, including the geographic region, mode of transportation, or critical infrastructure potentially affected by the threat, as well as steps that individuals and communities can take to protect themselves and help prevent, mitigate, or respond to the threat.
The update to the NTAS announced today will allow us to better achieve the goal of making sure Americans across the country have the information they need to keep themselves and their communities safer. This action is not in response to a specific, credible threat to the homeland, but is a prudent measure to ensure that Americans are better prepared and aware of the evolving terrorist threats.
Port Authority Prepared to Assist Travelers During Upcoming Christmas/New Year's Season
Port of New York/New Jersey
More than 18 million travelers expected to use agency's airports, tunnels, bridges and mass transit system
The Port Authority is prepared to handle more than 18 million travelers projected to use its airports, bridges, tunnels and PATH system during the upcoming Christmas and New Year's holiday period.
To accommodate heavy travel volume, the agency will provide a full complement of customer service representatives at the airports and toll collectors and Port Authority Police officers at tunnels and bridges to make the trip as smooth as possible.
From December 17 through January 1, more than 5.4 million passengers will travel through the agency's major airports. About 2.5 million passengers are expected at John F. Kennedy International Airport, 1.7 million at Newark Liberty International Airport, 1.6 million at LaGuardia Airport, 55,000 at Atlantic City International Airport and almost 12,000 at Stewart International Airport. Travelers should allow extra time when going to the airport during the holiday period, and should check with their carrier before leaving home to ensure their flight will depart on schedule.
To encourage travelers to use safe and convenient parking facilities at John F. Kennedy International and Newark Liberty International airports, the agency is offering a coupon that provides $2 off every $18 spent on standard long-term airport parking rates. The coupons are available at www.parkintheairport.com and are valid through January 8, 2016.
The Port Authority is prepared to assist air travelers at Welcome Centers, which provide information about ground transportation, hotels and other useful information. Airport customers also will find helpful features on the Port Authority website that can be accessed at the Welcome Centers where travelers can check flight status and familiarize themselves with other airport-related services. Travelers also can check http://www.paalerts.com/recent_airportalerts.aspx for the most up to the minute information on the agency's airports.
The Port Authority also offers AirTrain service to both John F. Kennedy and Newark Liberty airports. AirTrain JFK connects to Amtrak and NJ Transit via the Northeast Corridor line. More information on AirTrain and other public transportation alternatives is available by calling 800-AIR-RIDE.
At the Port Authority's four bridges and two tunnels, an estimated 10 million vehicles are expected between December 17 and January 1, 2016. All construction work is cancelled for the Christmas and New Year's holiday period at the George Washington Bridge, the Holland and Lincoln tunnels and the three Staten Island bridges. At the Bayonne Bridge, the crossing will remain open from 5 a.m. Wednesday, December 23, through 9 a.m. Monday, January 4. Passenger traffic is also expected to be heavier than normal at the Port Authority Bus Terminal, so customers are urged to allow extra travel time.
For the most up-to-date information on construction, travelers can call the agency's tunnels and bridges "Customer Connection" line at 800-221-9903 or visit the agency's website at www.panynj.gov/alerts-advisories/advisories.html.
The Port Authority projects approximately 2.6 million passenger trips on PATH between December 17 and January 1. PATH will operate additional service as needed prior to the evening peak period on Christmas Eve, December 24. On Christmas Day, December 25, PATH will operate on a Saturday schedule. On New Year's Eve, December 31, additional late night and overnight service will be provided to customers who are planning to attend the Times Square events. On New Year's Day, January 1, a Saturday schedule will be in effect.
Travelers can check http://www.paalerts.com/recent_pathalerts.aspx for up-to-the-minute information on PATH.
To report suspicious activity throughout the holiday period, travelers can call the Port Authority Police Department at (800) 828 7273.
Endangered Species Act Listing Protects Lions in Africa and India, Director’s Order Strengthens Wildlife Import Restrictions for Violators of Wildlife Laws
U.S. Fish & Wildlife
In response to the dramatic decline of lion populations in the wild, the U.S. Fish and Wildlife Service (Service) today announced it will list two lion subspecies under the Endangered Species Act (ESA). Panthera leo leo, located in India and western and central Africa, will be listed as endangered, and Panthera leo melanochaita, located in eastern and southern Africa, will be listed as threatened.
Concurrent with this listing rule, to protect lions and other foreign and domestic wildlife from criminal activity, Service Director Dan Ashe also issued a Director’s Order to strengthen enforcement of wildlife permitting requirements. The order, which aligns with President Obama’s National Strategy for Combating Wildlife Trafficking, will ensure that violators of wildlife laws are not subsequently granted permits for future wildlife-related activities, including the import of sport-hunted trophies.
In the last 20 years, lion populations have declined by 43 percent due to habitat loss, loss of prey base, and retaliatory killing of lions by a growing human population. Coupled with inadequate financial and other resources for countries to effectively manage protected areas, the impact on lions in the wild has been substantial.
“The lion is one of the planet’s most beloved species and an irreplaceable part of our shared global heritage,” said Ashe. “If we want to ensure that healthy lion populations continue to roam the African savannas and forests of India, it’s up to all of us – not just the people of Africa and India – to take action.”
In March 2011, the Service received a petition to list the African lion subspecies (P. l. leo) as endangered under the ESA. In October 2014, the Service published a 12-month finding and proposed a rule to list the African lion as threatened with a special rule under section 4(d) of the ESA.
Based on newly available scientific information on the genetics and taxonomy of lions, the Service assessed the status of the entire lion species and subsequently changed its earlier finding.
The new science resolved that the western and central populations of African lion are more genetically related to the Asiatic lion. These lions are now considered the same subspecies, P. l. leo. There are only about 1,400 of these lions remaining; 900 in 14 African populations and 523 in India. Considering the size and distribution of the populations, population trends and the severity of the threats, the Service has found that this subspecies meets the definition of endangered under the ESA.
The subspecies of P. l. melanochaita likely numbers between 17,000-19,000 and is found across southern and eastern Africa. The Service determined that this subspecies is less vulnerable and is not currently in danger of extinction. However, although lion numbers in southern Africa are increasing overall, there are populations that are declining due to ongoing threats. As a result, the Service finds the subspecies meets the definition of a threatened species under the ESA.
With an endangered listing, imports of P. l. leo will generally be prohibited, except in certain cases, such as when it can be found that the import will enhance the survival of the species. To further strengthen conservation measures for the threatened P. l. melanochaita, the Service is also finalizing a rule under section 4(d) of the ESA to establish a permitting mechanism regulating the import of all P. l. melanochaita parts and products, including live animals and sport-hunted trophies, into the United States. The process will ensure that imported specimens are legally obtained in range countries as part of a scientifically sound management program that benefits the subspecies in the wild.
The final 4(d) rule will allow the Service to support changes that strengthen the governance and accountability of conservation programs in other nations. Well-managed conservation programs use trophy hunting revenues to sustain lion conservation, research and anti-poaching activities.
“Sustainable trophy hunting as part of a well-managed conservation program can and does contribute to the survival of the species in the wild, providing real incentives to oppose poaching and conserve lion populations,” said Ashe. “Implementing a permit requirement will give us the authority we need to work with African countries to help them improve their lion management programs.”
Permits would also be required for scientific purposes, activities that enhance the propagation or survival of the subspecies in the wild, zoological exhibitions, educational purposes or other purposes consistent with the ESA.
Through the Director’s Order, the Service is redoubling its efforts to ensure that the world’s rarest species are protected from those who violate wildlife laws. The Service has the authority to deny future permit applications for activities such as sport-hunted trophy imports to anyone who has previously been convicted of or pled guilty to violations of wildlife laws. The order will ensure that this authority will be exercised to the fullest extent.
“Importing sport-hunted trophies and other wildlife or animal parts into the United States is a privilege, not a right; a privilege that violators of wildlife laws have demonstrated they do not deserve,” said Ashe. “We are going to strengthen our efforts to ensure those individuals – people who have acted illegally to deprive our children of their wildlife heritage – are not rewarded by receipt of wildlife permits in the future.”
The Service is also working to increase the fees it charges for these permit applications. Application fees facilitate the permit review process, including the evaluation of sport hunting programs to determine whether permits for the import of trophies may be granted. If finalized, the Service estimates an increase in permit fees could result in full cost recovery for the permitting program that would be used to make the necessary determinations.
The final lion rule will publish in the Federal Register on December 23, 2015, and will go into effect 30 days after publication on January 22, 2016. For more information, a copy of the final rule and Director’s Order, please visit: http://www.fws.gov/endangered/what-we-do/lion.html.
The ESA provides numerous benefits to foreign species, primarily by prohibiting certain activities including import, export, commercial activity, interstate commerce and foreign commerce. By regulating these activities, the United States ensures that people under the jurisdiction of the United States do not contribute to the further decline of listed species. Since 1973, the ESA has prevented the extinction of more than 99 percent of the species listed as threatened or endangered. In addition, more than 30 once endangered or threatened species have been delisted due to recovery, including the bald eagle, American alligator and peregrine falcon. Others, such as the manatee, whooping crane and California condor, have been pulled back from the edge of extinction.
To learn more about the Endangered Species program’s Branch of Foreign Species, visit: http://www.fws.gov/endangered/what-we-do/international-activities.html.
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