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CPSC Seeking Information Regarding Third Party Testing for Lead, Phthalates and the Solubility of Certain Chemicals
Grunfeld, Desiderio, Lebowitz, Silverman & Klestadt LLP  (David J. Evan or Christina M. Leonard) /

The Consumer Product Safety Commission (“CPSC”) has issued a request for information on whether there are materials used in children’s products which do not contain certain prohibited elements (e.g., lead) or chemicals (phthalates), and whether there are any materials that do not contain such elements or chemicals above the applicable maximum limit.

Based on the information collected, the CPSC may consider exempting certain materials from the third party testing requirements. Comments must be submitted by June 17, 2013.

The request for information is seeking data concerning four specific children’s products and materials:

1.     Toys subject to safety standard ASTM F963-11: 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. The CPSC seeks information as to materials that could be determined to be compliant with the applicable ASTM F963-11 limits without third party testing and materials that contain the elements within allowable limits.

2.     Toys and certain child care articles: The sale of any toy or child care article containing a concentration of more than 0.1 percent of any of six specified phthalates (DBP; BBP; DEHP; DnOP; DINP; and DIDP) is prohibited. The CPSC seeks information concerning materials that either do not contain the prohibited phthalates or contain these plasticizers in amounts that do not exceed 1000 parts per million.

3.     Manufactured woods: “Manufactured woods” refers to “composite wood products that are wood-based materials, such as particle board, medium density fiber board, and plywood, consisting largely of natural, untreated wood and glues, adhesives, waxes, resins, and similar materials.” Manufactured wood that is accessible in children’s products is subject to a lead limit of 100 parts per million. The CPSC seeks comments on materials that are not already exempt and either do not contain lead or contain lead in allowable limits.

4.     Synthetic food additives: The CPSC has requested comments as to synthetic food additives accessible in children’s products. Such additives are subject to a lead limit of 100 parts per million. The CPSC seeks information on any synthetic food additives that can be shown to either not contain lead or consistently not contain lead over this limit.

FAA Says Furlough Delays Affecting New York, Los Angeles, Dallas
Rueters /

The U.S. Federal Aviation Administration warned on Monday that air travelers should expect "wide-ranging delays" because of staffing cuts at air-traffic control facilities, and the agency is using traffic management plans at airports around the country to address the problem.  More

United States and Republic of Nigeria Sign Customs Mutual Assistance Agreement
U.S. Customs & Border Protection /

Washington— On behalf of the United States and the Federal Republic of Nigeria, U.S. Customs and Border Protection (CBP) Acting Commissioner Winkowski and Nigeria Customs Service Comptroller General Abdullahi Dikko Inde signed a Customs Mutual Assistance Agreement (CMAA) today, which marks a significant milestone in collaboration between the two countries.

The bilateral agreement is a valuable tool for CBP and U.S. Immigration and Customs Enforcement (ICE) in cooperation with the Nigeria Customs Service to prevent, repress, and, investigate customs offenses. CMAAs provide for mutual assistance to ensure the accurate assessment of customs duties and taxes, and in efforts to combat illicit cross-border activities to include contraband smuggling, financial crimes such as customs fraud and money laundering, and international terrorism.

“Customs authorities around the globe are on the frontline, securing nations and communities against the threat of terrorism and transnational crime while facilitating legitimate commerce,” said Acting Commissioner Thomas S. Winkowski. “This agreement strengthens our nations’ resilience against threats by expanding cooperation and information sharing.”

“This agreement will enable our customs authorities to expand efforts to protect our borders through the timely and secure exchange of information. We look forward to future opportunities for collaborative enforcement efforts with the Nigeria Customs Service,” said ICE Homeland Security Investigations, Office of International Affairs, Acting Assistant Director Peter S. Vincent.

CBP and ICE have used bilateral CMAAs as a valuable part of law enforcement efforts. These agreements provide a legal framework for information sharing and cooperation between customs administrations as they combat transnational crime and endeavor to protect their respective national frontiers.

Currently, CBP and ICE have 66 CMAAs with other countries and the American Institute in Taiwan.

CBP is one of the Department of Homeland Security’s largest and most complex components, with a priority mission of keeping terrorists and their weapons out of the U.S. It also has a responsibility for securing the border and facilitating lawful international trade and travel while enforcing hundreds of U.S. laws and regulations, including immigration and drug laws.

Reminder: Late Shipment Clauses
Grunfeld, Desiderio, Lebowitz, Silverman & Klestadt LLP /

The United States Court of International Trade recently denied a request to deduct certain freight charges that the importer argued were included in the transaction value of the goods as a result of the vendors’ late shipment.

In Cutter & Buck, Inc. v. United States, Slip Op. 13-45 (April 3, 2013), the court primarily found that because the terms of the purchase order did not specifically provide for a change in negotiated price and a change in the terms of sale from FOB to CFR to reflect the inclusion of freight costs in the price, the importer was unable to claim deduction of the freight costs from the invoice price.

These entries in issue involved “late shipments” and were governed by the provisions of a late delivery clause contained in the importer’s purchase orders. While the clause shifted responsibility for the payment of freight charges from the importer to the foreign seller, it did not expressly change the terms of sale, i.e., from FOB to cost and freight (“CFR”), or provide for a reduction in the price of the goods. The importer paid the “FOB” price for the goods. The port liquidated the entries at the “FOB” price without a reduction for the airfreight charges. The Court synthesized Customs’ approach to this issue in three questions:

1. Whether the price of the imported merchandise was renegotiated prior to the exportation of the merchandise?

2. Whether the delivery terms were changed from FOB to CFR?

3. Whether the CFR price includes freight charges?

The Court held that nothing on the court record proved that the price actually paid by the importer included shipping costs because the applicable terms and conditions neither called for a price reduction nor mandated a change in the shipment terms from FOB to CFR. Moreover, the bulk of the shipping documents identified FOB or FCA as the relevant shipping term.

In light of this decision, importers should reexamine their “Late Shipment” procedures to assure they can properly claim and support deductions for freight and/or other price adjustments.

USDA Modifies Regulations on the Importation of Plants for Planting; Two Final Rules and Two Proposals for Comment
U.S. Department of Agricuture /

WASHINGTON, April 22 2013--The U.S. Department of Agriculture’s Animal and Plant Health Inspection Service (APHIS) is advising the public of two final rules and two proposals (one notice and one proposed rule) for comment.  The changes will streamline and strengthen the regulations for the importation of plants and plant material. These initiatives have been in progress for several years. Strengthening the plants for planting import regulations was recommended by the National Plant Board and other stakeholders in recent years.  With these actions, APHIS will continue to modernize the plants for planting import regulations, increase transparency, and better control high-risk pest pathways.  

Notice of Addition of Taxa of Plants for Planting to the List of Taxa whose Importation is Not Authorized Pending a Pest Risk Analysis

APHIS is posting a final notice, adding 31 quarantine pests from all countries and 107 hosts of 13 quarantine pests from nearly all countries that would be added to the list of plants whose importation is not authorized pending a pest risk analysis (NAPPRA).  This rule will go into effect on May 20, 2013. This is the first addition to the NAPPRA category.  More information can be found here.

In 2011, APHIS established a new category of plants for planting whose importation is not authorized pending pest risk analysis in order to prevent the introduction of quarantine pests into the United States.  The final rule established two lists of taxa:  a list of plants for planting that are quarantine pests and a list of plants for planting that are hosts of quarantine pests.  For taxa of plants for planting that have been determined to be quarantine pests, the list will include the names of the taxa.  For taxa of plants for planting that are hosts of quarantine pests, the list will include the names of the taxa, the foreign places from which the taxa's importation is not authorized, and the quarantine pests of concern.  NAPPRA allows APHIS to take prompt action on evidence that the importation of a taxon poses a risk while continuing to allow for public participation in the process.

This action is published in today’s Federal Register.

APHIS anticipates the following final rule and proposals to be published within the next few days.

Restructuring of Regulations on the Importation of Plants for Planting

APHIS is posting a proposed rule for the restructuring of regulations on the importation of plants for planting to the Federal Register for comment.  This proposal would move some of the restrictions on the importation of specific types of plants for planting currently in the regulations to the Plants for Planting Manual; group together restrictions that apply to the importation of most or all plants for planting; and add general requirements for the development of integrated pest risk management measures.  The manual is user-friendly and available on the APHIS website.  This proposal does not make any major changes to current restrictions that apply to importation of plants for planting, but would set up a system for making changes more efficiently and transparently in the future.

Controlled Import Permits

APHIS is publishing a final rule to establish the Controlled Import Permit (CIP) as the single type of authorization for the importation of plants and plant products that are prohibited within 7 CFR 319.  The CIP will replace the Departmental permit and will also be the authorization for importing plants that currently require a different APHIS permit plus a post entry quarantine permit.  The CIP will consolidate and harmonize the various conditions that APHIS imposes on holders of PPQ 588 permits to reduce the possibility of bringing a pest into the United States along with the plant material.

Notice of Availability of Data Sheets for Taxa of Plants for Planting that are Quarantine Pests or Hosts of Quarantine Pests to be added to NAPPRA

APHIS is publishing a notice presenting scientific evidence on 22 quarantine pests and 39 hosts of 8 quarantine pests from certain countries that we are considering adding to the list of plants whose importation is not authorized pending pest risk analysis (NAPPRA).  This is the second proposal to add taxa to the NAPPRA list.

APHIS encourages comments on the above proposed notice and rule when they are published in the Federal Register.   

Comments on the proposed notice and rule will be posted on the website and may also be reviewed at USDA, Room 1141, South Building, 14th St. and Independence Ave., SW., Washington, DC, between 8 a.m. and 4:30 p.m., Monday through Friday, excluding holidays.  To facilitate entry into the comment reading room, please call (202) 690-2817.

The Obama Administration, with Agriculture Secretary Vilsack's leadership, has aggressively worked to expand export opportunities and reduce barriers to trade, helping to push agricultural exports to record levels. U.S. agriculture is currently experiencing its best period in history thanks to the productivity, resiliency, and resourcefulness of our producers and agribusinesses. Today, net farm income is at record levels while debt has been cut in half since the 1980s. Overall, American agriculture supports 1 in 12 jobs in the United States and provides American consumers with 83 percent of the food we consume, while maintaining affordability and choice. Strong agricultural exports contribute to a positive U.S. trade balance, create jobs, boost economic growth and support President Obama's National Export Initiative goal of doubling all U.S. exports by the end of 2014.

Note to Reporters: USDA news releases, program announcements and media advisories are available on the Internet and through Really Simple Syndication (RSS) feeds.  

FTC Survey for 2011 Shows an Estimated 25.6 Million Americans Fell Victim to Fraud
Federal Trade Commission /

The Federal Trade Commission today released a statistical survey of fraud in the United States during 2011, which showed that an estimated 25.6 million adults – 10.8 percent of the adult population – were fraud victims.

cover of fraud survey report“The FTC fights fraud every day by taking scammers to court and telling consumers how to avoid being scammed.  Studieslike this one help us fine-tune both our enforcement and education efforts,” said Charles Harwood, Acting Director of the FTC’s Bureau of Consumer Protection.

While fast-growing online commerce has benefitted consumers with greater choice and convenience, the survey indicates that, as of 2011, the Internet was also the place where consumers most often learned about fraudulent offers.  The Internet category, which included email, social media, auction sites and classified ads, was followed by print advertising, and TV and radio.  Most consumers bought fraudulent items via the Internet; telephone purchases ranked second.

The  survey asked consumers about 15 specific categories of fraud, and two general categories, and of the specific categories the top 10 were:
Weight-loss Products (5.1 million estimated)
Prize Promotions (2.4 million est.)
Unauthorized Billing for Buyers’ Club Memberships (1.9 million est.)
Unauthorized Billing for Internet Services (1.9 million est.)
Work-at-Home Programs (1.8 million est.)
Credit Repair Scams (1.7 million est.)
Debt Relief (1.5 million est.)
Credit Card Insurance (1.3 million est.)
Business Opportunities (1.1 million est.)
Mortgage Relief Scams (800,000 est.)

An estimated 17.3 percent of African Americans and 13.4 percent of Hispanics were victims; the rate for non- Hispanic whites was 9 percent.  The survey found that high school graduates were the least likely to have been fraud victims; those who did not complete high school were the most likely to have been victims.  Consumers who were more willing to take risks and those who had recently experienced a negative life event (such as a divorce, death of a family member or close friend, serious injury or illness in their family, or the loss of a job) were much more likely to have been victims.  Consumers who indicated they had more debt than they could handle were significantly more likely to have been fraud victims than those who were more comfortable with the amount of debt they had.

The FTC offers more information for consumers in 10 Ways to Avoid Fraud,   Avoiding Online Scams and Common Online Scams.

The Commission vote to release the survey was 4-0.

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