This bill has been amended

Bill S7070-2009

Relates to regulation of toxic chemicals in children's products

Relates to regulation of toxic chemicals in children's products; establishes the interstate chemical clearinghouse.

Details

Actions

  • Jun 15, 2010: COMMITTEE DISCHARGED AND COMMITTED TO RULES
  • May 18, 2010: REPORTED AND COMMITTED TO CODES
  • May 3, 2010: NOTICE OF COMMITTEE CONSIDERATION - REQUESTED
  • Mar 10, 2010: REFERRED TO ENVIRONMENTAL CONSERVATION

Memo

 BILL NUMBER:  S7070

TITLE OF BILL : An act to amend the environmental conservation law, in relation to regulation of toxic chemicals in children's products

PURPOSE OR GENERAL IDEA OF BILL : The purpose of this bill is to provide greater regulation of children's products.

SUMMARY OF SPECIFIC PROVISIONS : This bill would:

* define chemicals of high, low, moderate and unknown concern;

* define "children's product" to mean a consumer product intended for use by someone aged twelve or under such as toys, car seats and baby products;

* define "consumer product" to mean any item sold for residential or commercial use, not including a food or drug regulated by the Food and Drug Administration or pesticides;

* define "safer alternative" to mean a chemical that would reduce the potential for harm to human health or the environment;

* require DEC of Environmental Conservation (DEC), in consultation with DEC of Health (DOH) to publish a list of chemicals of high concern including chemicals identified as carcinogens or persistent, bioaccumulative and toxic;

* permit designation of a priority chemical if:

o found to be present in humans;

o found to be present in household dust, indoor air, or drinking water;

o found to be present in fish, wildlife or the natural environment;

o found to be present in a consumer product or present in the home, school or children's day care center;

o identified as a high production volume chemical by the federal Environmental protection Administration; or,

o banned for sale in another state

* require DEC to designate at least two priority chemicals within three months of the effective date;

* require DEC to review the list of chemicals of high concern at least every three years;

* require a person who is a manufacturer or distributor of a children's product for sale or distribution to notify DEC of the following:

o the identification of the product,

o the number of units sold or distributed,

o the name of the priority chemical,

o the amount of chemicals in each unit of children's product, and, o the intended purpose of the chemicals

* authorize DEC to waive all or part of the notification requirement

* permit DEC to assess a fee, following adoption of rules and regulations, requiring payment by the manufacturer or distributor to cover DEC's reasonable costs in managing the information collected;

* require DEC to prohibit the manufacture, sale or distribution of a children's product containing a priority chemical upon a finding:

o distribution of the children's product directly or indirectly exposes children to the priority chemical; or

o one or more safer alternatives to the priority chemical are available at a comparable cost and performance.

* allow DEC, for the purpose of determining whether a safer alternative is available, to:

o presume that an alternative is a safer alternative if the alternative is not a chemical of high concern;

o presume that a safer alternative is available if the sale of the children's product has been banned by another state;

o presume that a safer alternative is available if the children's product is an item of apparel or a novelty;

o presume that a safer alternative is available if the alternative is sold in the us; or,

o presume that if a chemical appears on the State's list of chemicals of high priority it is not eligible for consideration as a safer alternative,

* require the manufacturer or distributor of a children's product that contains a priority chemical to file a compliance plan to include:

o identification of the product;

o specification as to whether compliance will be achieved by discontinuing the sale or by substituting a safer alternative; and,

o identification of the safer alternative and the timetable for substitution;

* require the manufacturer or distributor to notify persons that offer the product for sale or distribution of the requirement

* authorize the manufacturer or distributor to apply to the Commissioner for a waiver;

* require the waiver application to: o identify the specific product use or uses for which the waiver would apply;

o identify the alternatives considered for substitution;

o explain the basis for the determination including an explanation of why the use of an alternative Is not feasible; and,

o identify the steps that will be taken b minimize the use of the priority chemical.



* authorize DEC to grant a waiver for up to three years upon a finding that there Is a need for the children's product and that there are no technically or economically feasible alternatives;

* specify that the provisions of this act shall apply only to new products;

o exempt the following uses:

o in or for manufacturing;

o motor vehicles, watercrafts, combustion by-products;

o retailers who do not knowingly sell a prohibited children's product;

* require DEC to develop a public website;

* prohibit the sale or distribution of a children's product if the manufacturer or distributor has failed to provide the required information; and,

* require the development of an initial list of chemical of high concern within six months of the effective date.

JUSTIFICATION : Currently, New York identifies or prohibits the use of dangerous chemicals on a chemical by chemical basis. This approach is especially problematic for children's products since children are often more vulnerable to smaller amounts of chemicals. Several other states, including Washington and California, have adopted more comprehensive chemical policies. This legislation is modeled after those states and is intended to prevent the use of dangerous chemicals and ensure the use of safer chemical alternatives in children's products.

PRIOR LEGISLATIVE HISTORY : This is a new bill.

FISCAL IMPLICATIONS FOR STATE AND LOCAL GOVERNMENTS : Minimal implications to the State

EFFECTIVE DATE : This act shall take effect on the 120th day.

Text

STATE OF NEW YORK ________________________________________________________________________ 7070 IN SENATE March 10, 2010 ___________
Introduced by Sen. PERKINS -- read twice and ordered printed, and when printed to be committed to the Committee on Environmental Conservation AN ACT to amend the environmental conservation law, in relation to regu- lation of toxic chemicals in children's products THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM- BLY, DO ENACT AS FOLLOWS: Section 1. Article 37 of the environmental conservation law is amended by adding a new title V to read as follows: TITLE V TOXIC CHEMICALS IN CHILDREN'S PRODUCTS SECTION 37-0501. DEFINITIONS. 37-0503. IDENTIFICATION OF CHEMICALS OF HIGH CONCERN. 37-0505. IDENTIFICATION OF PRIORITY CHEMICALS. 37-0507. DISCLOSURE OF INFORMATION ON PRIORITY CHEMICALS. 37-0509. SALES PROHIBITION; RULES; SAFER ALTERNATIVES TO PRIORI- TY CHEMICALS. 37-0511. APPLICABILITY. 37-0513. EDUCATION AND ASSISTANCE. 37-0515. ENFORCEMENT AND IMPLEMENTATION. S 37-0501. DEFINITIONS. AS USED IN THIS TITLE, UNLESS THE CONTEXT OTHERWISE INDICATES, THE FOLLOWING TERMS HAVE THE FOLLOWING MEANINGS. 1. ALTERNATIVE. "ALTERNATIVE" MEANS A SUBSTITUTE PROCESS, PRODUCT, MATERIAL, CHEMICAL, STRATEGY OR COMBINATION OF THESE THAT SERVES A FUNC- TIONALLY EQUIVALENT PURPOSE TO A CHEMICAL IN A CHILDREN'S PRODUCT. 2. CHEMICAL. "CHEMICAL" MEANS A SUBSTANCE WITH A DISTINCT MOLECULAR COMPOSITION OR A GROUP OF STRUCTURALLY RELATED SUBSTANCES AND INCLUDES THE BREAKDOWN PRODUCTS OF THE SUBSTANCE OR SUBSTANCES THAT FORM THROUGH DECOMPOSITION, DEGRADATION OR METABOLISM. 3. CHEMICAL OF HIGH CONCERN. "CHEMICAL OF HIGH CONCERN" MEANS A CHEMI- CAL IDENTIFIED BY THE DEPARTMENT PURSUANT TO SECTION 37-0503 OF THIS TITLE. 4. CHEMICAL OF LOW CONCERN. "CHEMICAL OF LOW CONCERN" MEANS A CHEMICAL FOR WHICH ADEQUATE TOXICITY AND ENVIRONMENTAL DATA ARE AVAILABLE TO
DETERMINE THAT IT IS NOT A CHEMICAL OF HIGH CONCERN, A CHEMICAL OF MODERATE CONCERN OR A CHEMICAL OF UNKNOWN CONCERN. 5. CHEMICAL OF MODERATE CONCERN. "CHEMICAL OF MODERATE CONCERN" MEANS A CHEMICAL IDENTIFIED BY AN AUTHORITATIVE GOVERNMENTAL ENTITY ON THE BASIS OF CREDIBLE SCIENTIFIC EVIDENCE AS BEING SUSPECTED OF CAUSING AN ADVERSE HEALTH OR ENVIRONMENTAL EFFECT LISTED IN SUBDIVISION ONE OF SECTION 37-0503 OF THIS TITLE. 6. CHEMICAL OF UNKNOWN CONCERN. "CHEMICAL OF UNKNOWN CONCERN" MEANS A CHEMICAL FOR WHICH INSUFFICIENT DATA ARE AVAILABLE TO CLASSIFY IT AS A CHEMICAL OF HIGH CONCERN, A CHEMICAL OF MODERATE CONCERN OR A CHEMICAL OF LOW CONCERN. 7. CHILDREN. "CHILDREN" MEANS PERSON OR PERSONS AGED TWELVE AND UNDER. 8. CHILDREN'S PRODUCT. "CHILDREN'S PRODUCT" MEANS A CONSUMER PRODUCT INTENDED FOR USE BY CHILDREN, SUCH AS BABY PRODUCTS, TOYS, CAR SEATS, PERSONAL CARE PRODUCTS AND CLOTHING, AND ANY CONSUMER PRODUCT CONTAINING A CHEMICAL OF HIGH CONCERN THAT WHEN USED OR DISPOSED OF WILL LIKELY RESULT IN A CHILD OR A PREGNANT WOMAN BEING EXPOSED TO THAT CHEMICAL. 9. CONSUMER PRODUCT. "CONSUMER PRODUCT" MEANS ANY ITEM SOLD FOR RESI- DENTIAL OR COMMERCIAL USE, INCLUDING ANY COMPONENT PARTS AND PACKAGING. "CONSUMER PRODUCT" DOES NOT INCLUDE A FOOD OR BEVERAGE OR AN ADDITIVE TO A FOOD OR BEVERAGE REGULATED BY THE FEDERAL FOOD AND DRUG ADMINIS- TRATION, A TOBACCO PRODUCT OR PAPER OR FOREST PRODUCTS OR A PESTICIDE REGULATED BY THE FEDERAL ENVIRONMENTAL PROTECTION AGENCY. "CONSUMER PRODUCT" ALSO DOES NOT INCLUDE A DRUG OR BIOLOGIC REGULATED BY THE FEDERAL FOOD AND DRUG ADMINISTRATION OR THE PACKAGING OF A DRUG OR BIOLOGIC REGULATED BY THE FEDERAL FOOD AND DRUG ADMINISTRATION IF THE PACKAGING IS REGULATED BY THE FEDERAL FOOD AND DRUG ADMINISTRATION. 10. DISTRIBUTOR. "DISTRIBUTOR" MEANS A PERSON WHO SELLS CONSUMER PRODUCTS TO RETAIL ESTABLISHMENTS ON A WHOLESALE BASIS. 11. MANUFACTURER. "MANUFACTURER" MEANS ANY PERSON WHO CURRENTLY MANU- FACTURES A FINAL CONSUMER PRODUCT OR WHOSE BRAND NAME IS AFFIXED TO THE CONSUMER PRODUCT. IN THE CASE OF A CONSUMER PRODUCT THAT WAS IMPORTED INTO THE UNITED STATES, "MANUFACTURER" INCLUDES THE IMPORTER OR FIRST DOMESTIC DISTRIBUTOR OF THE CONSUMER PRODUCT IF THE PERSON WHO CURRENTLY MANUFACTURES OR ASSEMBLES THE CONSUMER PRODUCT OR WHOSE BRAND NAME IS AFFIXED TO THE CONSUMER PRODUCT DOES NOT HAVE A PRESENCE IN THE UNITED STATES. 12. PRIORITY CHEMICAL. "PRIORITY CHEMICAL" MEANS A CHEMICAL IDENTIFIED AS SUCH BY THE COMMISSIONER PURSUANT TO SUBDIVISION ONE OF SECTION 37-0505 OF THIS TITLE. 13. SAFER ALTERNATIVE. "SAFER ALTERNATIVE" MEANS AN ALTERNATIVE THAT, WHEN COMPARED TO A PRIORITY CHEMICAL THAT IT COULD REPLACE, WOULD REDUCE THE POTENTIAL FOR HARM TO HUMAN HEALTH OR THE ENVIRONMENT OR THAT HAS NOT BEEN SHOWN TO POSE THE SAME OR GREATER POTENTIAL FOR HARM TO HUMAN HEALTH OR THE ENVIRONMENT AS THAT PRIORITY CHEMICAL. S 37-0503. IDENTIFICATION OF CHEMICALS OF HIGH CONCERN. 1. CRITERIA. WITHIN ONE YEAR OF THE EFFECTIVE DATE OF THIS TITLE THE DEPARTMENT, IN CONCURRENCE WITH THE DEPARTMENT OF HEALTH SHALL PUBLISH A LIST OF CHEMICALS OF HIGH CONCERN. A CHEMICAL MAY BE INCLUDED ON THE LIST ONLY IF IT HAS BEEN IDENTIFIED BY AN AUTHORITATIVE GOVERNMENTAL ENTITY ON THE BASIS OF CREDIBLE SCIENTIFIC EVIDENCE AS BEING KNOWN AS: (A) A CARCINOGEN, A REPRODUCTIVE OR DEVELOPMENTAL TOXICANT OR AN ENDOCRINE DISRUPTOR; (B) PERSISTENT, BIOACCUMULATIVE AND TOXIC; OR (C) VERY PERSISTENT AND VERY BIOACCUMULATIVE.
2. REVISIONS. THE DEPARTMENT MAY PERIODICALLY REVIEW AND REVISE THE LIST OF CHEMICALS OF HIGH CONCERN NO LESS THAN ONCE EVERY THREE YEARS. THE DEPARTMENT SHALL ADD CHEMICALS TO THE LIST IF, IN THE JUDGMENT OF THE DEPARTMENT OF HEALTH, THE CHEMICAL MEETS ONE OR MORE OF THE CRITERIA IN SUBDIVISION ONE OF THIS SECTION. IN THE EVENT THAT A NEW DETERMI- NATION IS MADE BY A GOVERNMENTAL ENTITY THAT A CHEMICAL MEETS THE HIGH CONCERN CRITERIA, NOTHING HEREIN SHALL PREVENT THE DEPARTMENT FROM ACTING TO ADD SUCH CHEMICALS OUTSIDE OF THE PERIODIC REVIEW PROCESS. THE DEPARTMENT MAY REMOVE A CHEMICAL FROM THE LIST OF CHEMICALS OF HIGH CONCERN BASED ON EVIDENCE THAT THE CHEMICAL IS NOT PRESENT IN A CHIL- DREN'S PRODUCT OR OTHERWISE WOULD NOT BE SUBJECT TO THE REQUIREMENTS OF THIS TITLE. S 37-0505. IDENTIFICATION OF PRIORITY CHEMICALS. 1. DESIGNATION. THE COMMISSIONER MAY DESIGNATE A CHEMICAL OF HIGH CONCERN AS A PRIORITY CHEMICAL IF THE COMMISSIONER FINDS, IN CONCURRENCE WITH THE DEPARTMENT OF HEALTH: (A) THE CHEMICAL OR ITS METABOLITES HAVE BEEN FOUND THROUGH BIOMONI- TORING TO BE PRESENT IN HUMANS, INCLUDING HUMAN BLOOD, UMBILICAL CORD BLOOD, BREAST MILK, URINE OR OTHER BODILY TISSUES OR FLUIDS; (B) THE CHEMICAL HAS BEEN FOUND THROUGH SAMPLING AND ANALYSIS TO BE PRESENT IN HOUSEHOLD DUST, INDOOR AIR, DRINKING WATER OR ELSEWHERE IN THE HOME ENVIRONMENT; (C) THE CHEMICAL HAS BEEN FOUND THROUGH MONITORING TO BE PRESENT IN FISH, WILDLIFE OR THE NATURAL ENVIRONMENT; (D) THE CHEMICAL IS PRESENT IN A CONSUMER PRODUCT USED OR PRESENT IN THE HOME, SCHOOL, OR CHILDCARE CENTER; (E) THE CHEMICAL HAS BEEN IDENTIFIED AS A HIGH PRODUCTION VOLUME CHEM- ICAL BY THE FEDERAL ENVIRONMENTAL PROTECTION AGENCY; OR (F) THE SALE OR USE OF THE CHEMICAL OR A PRODUCT CONTAINING THE CHEMI- CAL HAS BEEN BANNED IN ANOTHER STATE OR STATES WITHIN THE UNITED STATES. THE COMMISSIONER SHALL DESIGNATE AT LEAST TWO PRIORITY CHEMICALS WITH- IN THREE MONTHS OF THE EFFECTIVE DATE OF THIS TITLE. 2. UPDATES. THE COMMISSIONER SHALL REVIEW THE LIST OF CHEMICALS OF HIGH CONCERN AT LEAST ONCE EVERY THREE YEARS AND MAY DESIGNATE ADDI- TIONAL PRIORITY CHEMICALS IF THE COMMISSIONER FINDS THAT THE CHEMICALS MEET ONE OF THE CRITERIA LISTED IN SUBDIVISION ONE OF THIS SECTION. 3. REGULATIONS. THE COMMISSIONER SHALL ADOPT RULES AND REGULATIONS TO IMPLEMENT THE PROVISIONS OF THIS SECTION. S 37-0507. DISCLOSURE OF INFORMATION ON PRIORITY CHEMICALS. 1. REPORTING OF CHEMICAL USE. NOT LATER THAN ONE HUNDRED EIGHTY DAYS AFTER A PRIORITY CHEMICAL IS IDENTIFIED PURSUANT TO SECTION 37-0505 OF THIS TITLE, A PERSON WHO IS A MANUFACTURER OR DISTRIBUTOR OF A CHIL- DREN'S PRODUCT FOR SALE OR DISTRIBUTION IN THIS STATE THAT CONTAINS A PRIORITY CHEMICAL SHALL NOTIFY THE DEPARTMENT IN WRITING UNLESS WAIVED BY THE COMMISSIONER PURSUANT TO THIS SECTION OR EXEMPT FROM THIS TITLE PURSUANT TO SECTION 37-0511 OF THIS TITLE. THIS WRITTEN NOTICE MUST IDENTIFY THE CHILDREN'S PRODUCT, THE NUMBER OF UNITS SOLD OR DISTRIBUTED FOR SALE IN THE STATE OR NATIONALLY, THE PRIORITY CHEMICAL OR CHEMICALS CONTAINED IN THE CHILDREN'S PRODUCT, THE AMOUNT OF SUCH CHEMICALS IN EACH UNIT OF CHILDREN'S PRODUCT AND THE INTENDED PURPOSE OF THE CHEMI- CALS IN THE CHILDREN'S PRODUCT. 2. SUPPLEMENTAL INFORMATION. THE MANUFACTURER OR DISTRIBUTOR OF A CHILDREN'S PRODUCT THAT CONTAINS A PRIORITY CHEMICAL SHALL PROVIDE THE FOLLOWING ADDITIONAL INFORMATION IF REQUESTED BY THE DEPARTMENT: (A) INFORMATION ON THE LIKELIHOOD THAT THE CHEMICAL WILL BE RELEASED FROM THE CHILDREN'S PRODUCT TO THE ENVIRONMENT DURING THE CHILDREN'S
PRODUCT'S LIFE CYCLE AND THE EXTENT TO WHICH USERS OF THE CHILDREN'S PRODUCT ARE LIKELY TO BE EXPOSED TO THE CHEMICAL; (B) INFORMATION ON THE EXTENT TO WHICH THE CHEMICAL IS PRESENT IN THE ENVIRONMENT OR HUMAN BODY; AND (C) AN ASSESSMENT OF THE AVAILABILITY, COST, FEASIBILITY AND PERFORM- ANCE, INCLUDING POTENTIAL FOR HARM TO HUMAN HEALTH AND THE ENVIRONMENT, OF ALTERNATIVES TO THE PRIORITY CHEMICAL AND THE REASON THE PRIORITY CHEMICAL IS USED IN THE MANUFACTURE OF THE CHILDREN'S PRODUCT IN LIEU OF IDENTIFIED ALTERNATIVES. IF AN ASSESSMENT ACCEPTABLE TO THE DEPARTMENT IS NOT SUBMITTED IN A TIMELY MANNER, THE DEPARTMENT MAY ASSESS A FEE ON THE MANUFACTURER OR DISTRIBUTOR TO COVER THE COSTS TO PREPARE AN INDE- PENDENT REPORT ON THE AVAILABILITY OF SAFER ALTERNATIVES BY A CONTRACTOR OF THE DEPARTMENT'S CHOICE. THE MANUFACTURER OR DISTRIBUTOR OF A CHILDREN'S PRODUCT THAT CONTAINS A PRIORITY CHEMICAL MAY PROVIDE ADDITIONAL INFORMATION TO THE DEPARTMENT REGARDING THE POTENTIAL FOR HARM TO HUMAN HEALTH AND THE ENVIRONMENT FROM SPECIFIC USES OF THE PRIORITY CHEMICAL. 3. WAIVER OF REPORTING; FEE; EXTENSION OF DEADLINE. THE COMMISSIONER MAY WAIVE ALL OR PART OF THE NOTIFICATION REQUIREMENT UNDER SUBDIVISION ONE OF THIS SECTION FOR ONE OR MORE SPECIFIED USES OF A PRIORITY CHEMI- CAL IF THE COMMISSIONER DETERMINES THAT; SUBSTANTIALLY EQUIVALENT INFOR- MATION IS ALREADY PUBLICLY AVAILABLE, INCLUDING INFORMATION PROVIDED AS PART OF PROGRAMS IN OTHER STATES; THAT THE INFORMATION IS NOT NEEDED FOR THE PURPOSES OF THIS TITLE OR THAT THE SPECIFIED USE OR USES ARE MINOR IN VOLUME. THE DEPARTMENT MAY ASSESS A FEE PAYABLE BY THE MANUFACTURER OR DISTRIBUTOR UPON SUBMISSION OF THE NOTIFICATION TO COVER THE DEPART- MENT'S REASONABLE COSTS IN MANAGING THE INFORMATION COLLECTED. THE DEPARTMENT MAY EXTEND THE DEADLINE FOR SUBMISSION OF THE INFORMATION REQUIRED UNDER SUBDIVISION ONE OF THIS SECTION FOR ONE OR MORE SPECIFIED USES OF A PRIORITY CHEMICAL IN A CHILDREN'S PRODUCT IF IT DETERMINES THAT MORE TIME IS NEEDED BY THE MANUFACTURER OR DISTRIBUTOR TO COMPLY WITH THE SUBMISSION REQUIREMENT OR IF THE INFORMATION IS NOT NEEDED AT THAT TIME. 4. RULEMAKING TO DETERMINE FEES. IF THE DEPARTMENT ASSESSES A FEE PURSUANT TO SUBDIVISION TWO OR THREE OF THIS SECTION THE DEPARTMENT SHALL DETERMINE THE APPROPRIATE FEE FOLLOWING THE ADOPTION OF RULES AND REGULATIONS. S 37-0509. SALES PROHIBITION; RULES; SAFER ALTERNATIVES TO PRIORITY CHEMICALS. 1. AUTHORITY. THE DEPARTMENT SHALL ADOPT RULES PROHIBITING THE MANU- FACTURE, SALE OR DISTRIBUTION IN THIS STATE OF A CHILDREN'S PRODUCT CONTAINING A PRIORITY CHEMICAL IF THE DEPARTMENT FINDS, AFTER CONSIDER- ATION OF INFORMATION FILED UNDER SECTION 37-0507 OF THIS TITLE AND OTHER RELEVANT INFORMATION SUBMITTED TO OR OBTAINED BY THE DEPARTMENT, INCLUD- ING INFORMATION PROVIDED AS PART OF PROGRAMS IN OTHER STATES, THAT: (A) DISTRIBUTION OF THE CHILDREN'S PRODUCT DIRECTLY OR INDIRECTLY EXPOSES CHILDREN TO THE PRIORITY CHEMICAL; AND (B) ONE OR MORE SAFER ALTERNATIVES TO THE PRIORITY CHEMICAL ARE AVAIL- ABLE AT A COMPARABLE COST AND PERFORMANCE. IF THERE ARE SEVERAL AVAILABLE SAFER ALTERNATIVES TO A PRIORITY CHEMI- CAL WITH DISTINGUISHABLE RELATIVE TOXICITIES, THE DEPARTMENT MAY PROHIB- IT THE SALE OR DISTRIBUTION OF CHILDREN'S PRODUCTS THAT DO NOT CONTAIN THE SAFER ALTERNATIVE THAT IS LEAST TOXIC TO HUMAN HEALTH OR LEAST HARM- FUL TO THE ENVIRONMENT.
A REGULATION ESTABLISHED PURSUANT TO THIS SUBDIVISION MUST SPECIFY THE EFFECTIVE DATE OF THE PROHIBITION, WHICH MAY NOT BE SOONER THAN TWELVE MONTHS AFTER NOTICE OF THE PROPOSED RULE IS PUBLISHED. 2. ALTERNATIVES ASSESSMENT; PRESUMPTIONS. FOR THE PURPOSE OF DETERMIN- ING WHETHER A SAFER ALTERNATIVE IS AVAILABLE UNDER PARAGRAPH (B) OF SUBDIVISION ONE OF THIS SECTION, THE DEPARTMENT MAY, IN THE ABSENCE OF PERSUASIVE EVIDENCE TO THE CONTRARY: (A) PRESUME THAT AN ALTERNATIVE IS A SAFER ALTERNATIVE IF THE ALTERNA- TIVE IS NOT A CHEMICAL OF HIGH CONCERN; (B) PRESUME THAT A SAFER ALTERNATIVE IS AVAILABLE IF THE SALE OF THE CHILDREN'S PRODUCT CONTAINING THE PRIORITY CHEMICAL HAS BEEN BANNED BY ANOTHER STATE OR STATES WITHIN THE UNITED STATES; (C) PRESUME THAT A SAFER ALTERNATIVE IS AVAILABLE IF THE CHILDREN'S PRODUCT CONTAINING THE PRIORITY CHEMICAL IS AN ITEM OF APPAREL OR A NOVELTY; (D) PRESUME THAT A SAFER ALTERNATIVE IS AVAILABLE IF THE ALTERNATIVE IS SOLD IN THE UNITED STATES; AND (E) PRESUME THAT IF A CHEMICAL APPEARS ON THE STATE'S LIST OF CHEMI- CALS OF HIGH CONCERN THAT IT IS NOT ELIGIBLE FOR CONSIDERATION AS A SAFER ALTERNATIVE. 3. IMPLEMENTATION. NO LATER THAN ONE HUNDRED EIGHTY DAYS PRIOR TO THE EFFECTIVE DATE OF A PROHIBITION ADOPTED UNDER SUBDIVISION ONE OF THIS SECTION, THE MANUFACTURER OR DISTRIBUTOR OF A CHILDREN'S PRODUCT THAT CONTAINS THE PRIORITY CHEMICAL AND THAT IS SUBJECT TO THE PROHIBITION AT THE TIME OF ADOPTION SHALL FILE A COMPLIANCE PLAN WITH THE COMMISSIONER OR SEEK A WAIVER UNDER SUBDIVISION FIVE OF THIS SECTION. A COMPLIANCE PLAN MUST: (A) IDENTIFY THE CHILDREN'S PRODUCT THAT CONTAINS THE PRIORITY CHEMI- CAL; (B) SPECIFY WHETHER COMPLIANCE WILL BE ACHIEVED BY DISCONTINUING THE SALE OF THE CHILDREN'S PRODUCT IN THE STATE OR BY SUBSTITUTING A SAFER ALTERNATIVE IN THE PRODUCT; AND (C) IF COMPLIANCE IS ACHIEVED BY SUBSTITUTION OF A SAFER ALTERNATIVE IN THE PRODUCT, IDENTIFY THE SAFER ALTERNATIVE AND THE TIMETABLE FOR SUBSTITUTION. 4. RESPONSIBILITY. A MANUFACTURER OR DISTRIBUTOR OF A CHILDREN'S PROD- UCT CONTAINING A PRIORITY CHEMICAL SHALL NOTIFY PERSONS THAT OFFER THE PRODUCT FOR SALE OR DISTRIBUTION IN THE STATE OF THE REQUIREMENTS OF THIS TITLE. 5. WAIVER FOR SPECIFIC USES. THE MANUFACTURER OR DISTRIBUTOR OF A CHILDREN'S PRODUCT THAT CONTAINS A PRIORITY CHEMICAL AND THAT IS SUBJECT TO A PROHIBITION ADOPTED PURSUANT TO SUBDIVISION ONE OF THIS SECTION MAY APPLY TO THE COMMISSIONER FOR A WAIVER FOR ONE OR MORE SPECIFIC USES OF THE PRIORITY CHEMICAL. THE WAIVER APPLICATION MUST, AT A MINIMUM: (A) IDENTIFY THE SPECIFIC CHILDREN'S PRODUCT USE OR USES FOR WHICH THE WAIVER IS SOUGHT; (B) IDENTIFY THE ALTERNATIVES CONSIDERED FOR SUBSTITUTION OF THE PRIORITY CHEMICAL; (C) EXPLAIN THE BASIS FOR CONCLUDING THAT THE USE OF AN ALTERNATIVE IS NOT FEASIBLE; AND (D) IDENTIFY THE STEPS THAT HAVE AND WILL BE TAKEN TO MINIMIZE THE USE OF THE PRIORITY CHEMICAL. THE COMMISSIONER MAY GRANT A WAIVER WITH OR WITHOUT CONDITIONS UPON FINDING THAT THERE IS A NEED FOR THE CHILDREN'S PRODUCT IN WHICH THE PRIORITY CHEMICAL IS USED AND THERE ARE NO TECHNICALLY OR ECONOMICALLY FEASIBLE ALTERNATIVES FOR THE USE OF THE PRIORITY CHEMICAL IN THE CHIL-
DREN'S PRODUCT. WAIVERS MAY BE GRANTED FOR A TERM NOT TO EXCEED THREE YEARS AND MAY BE RENEWED FOR ONE OR MORE ADDITIONAL THREE-YEAR TERMS UPON WRITTEN APPLICATION DEMONSTRATING THAT TECHNICALLY OR ECONOMICALLY FEASIBLE ALTERNATIVES REMAIN UNAVAILABLE. THE COMMISSIONER SHALL DENY OR GRANT WAIVER REQUESTS WITHIN SIXTY DAYS AFTER RECEIPT OF A COMPLETED WAIVER APPLICATION. S 37-0511. APPLICABILITY. 1. NEW PRODUCTS. THE PROVISIONS OF THIS TITLE SHALL APPLY TO CHEMICALS IN PRODUCTS SOLD OR DISTRIBUTED AS NEW AND DOES NOT APPLY TO USED PRODUCTS THAT ARE SOLD OR DISTRIBUTED FOR FREE AT SECONDHAND STORES, YARD SALES, ON THE INTERNET OR DONATED TO CHARITIES. 2. INDUSTRY. THE REQUIREMENTS OF THIS TITLE SHALL NOT APPLY TO PRIORI- TY CHEMICALS USED IN OR FOR INDUSTRY OR MANUFACTURING, INCLUDING CHEMI- CALS PROCESSED OR OTHERWISE USED IN OR FOR INDUSTRIAL OR MANUFACTURING PROCESSES. 3. TRANSPORTATION. THE REQUIREMENTS OF THIS TITLE SHALL NOT APPLY TO MOTOR VEHICLES OR THEIR COMPONENT PARTS, OR WATERCRAFT OR THEIR COMPO- NENT PARTS, EXCEPT THAT THE USE OF PRIORITY CHEMICALS IN DETACHABLE CAR SEATS IS NOT EXEMPT. 4. COMBUSTION. THE REQUIREMENTS OF THIS TITLE SHALL NOT APPLY TO PRIORITY CHEMICALS GENERATED SOLELY AS COMBUSTION BY-PRODUCTS OR THAT ARE PRESENT IN COMBUSTIBLE FUELS. 5. RETAILERS. A RETAILER IS EXEMPT FROM THE REQUIREMENTS OF THIS TITLE UNLESS THAT RETAILER KNOWINGLY SELLS A CHILDREN'S PRODUCT CONTAINING A PRIORITY CHEMICAL AFTER THE EFFECTIVE DATE OF ITS PROHIBITION FOR WHICH THAT RETAILER HAS RECEIVED PRIOR NOTIFICATION FROM A MANUFACTURER, DISTRIBUTOR OR THE STATE. S 37-0513. EDUCATION AND ASSISTANCE. WITHIN ONE HUNDRED EIGHTY DAYS AFTER THE EFFECTIVE DATE OF THIS TITLE THE DEPARTMENT SHALL DEVELOP A WEBSITE ACCESSIBLE BY THE PUBLIC, TO EDUCATE AND ASSIST CONSUMERS AND RETAILERS IN IDENTIFYING CHILDREN'S PRODUCTS THAT MAY CONTAIN PRIORITY CHEMICALS. S 37-0515. ENFORCEMENT AND IMPLEMENTATION. 1. FAILURE TO PROVIDE NOTICE. A CHILDREN'S PRODUCT CONTAINING A PRIOR- ITY CHEMICAL MAY NOT BE SOLD, OFFERED FOR SALE OR DISTRIBUTED FOR SALE IN THIS STATE IF THE MANUFACTURER OR DISTRIBUTOR HAS FAILED TO PROVIDE INFORMATION REQUIRED UNDER SECTION 37-0509 OF THIS TITLE BY THE DATE REQUIRED IN THAT SECTION. THE COMMISSIONER MAY EXEMPT A CHILDREN'S PROD- UCT FROM THIS PROHIBITION IF, IN THE COMMISSIONER'S JUDGMENT, THE LACK OF AVAILABILITY OF THE CHILDREN'S PRODUCT COULD POSE AN UNREASONABLE RISK TO PUBLIC HEALTH, SAFETY OR WELFARE. 2. CERTIFICATE OF COMPLIANCE. IF THERE ARE GROUNDS TO SUSPECT THAT A CHILDREN'S PRODUCT IS BEING OFFERED FOR SALE IN VIOLATION OF THIS TITLE, THE DEPARTMENT MAY REQUEST THE MANUFACTURER OR DISTRIBUTOR OF THE PROD- UCT TO PROVIDE A CERTIFICATE OF COMPLIANCE WITH THE PROVISIONS OF THIS TITLE. WITHIN TEN DAYS OF RECEIPT OF A REQUEST UNDER THIS SECTION, THE MANUFACTURER OR DISTRIBUTOR SHALL: (A) PROVIDE THE DEPARTMENT WITH THE CERTIFICATE ATTESTING THAT THE CHILDREN'S PRODUCT DOES NOT CONTAIN THE PRIORITY CHEMICAL; OR (B) NOTIFY PERSONS WHO SELL THE PRODUCT IN THIS STATE THAT THE SALE OF THE CHILDREN'S PRODUCT IS PROHIBITED AND PROVIDE THE DEPARTMENT WITH A LIST OF THE NAMES AND ADDRESSES OF THOSE NOTIFIED. S 2. Within six months of the effective date of this act the depart- ment of environmental conservation, in consultation with the department of health, shall identify an initial list of chemicals of high concern in accordance with title 5 of article 37 of the environmental conserva-
tion law. In developing the list, the departments may consider but are not limited to considering: 1. Chemicals identified as "Group 1 carcinogens" or "Group 2A carcino- gens" by the World Health Organization, International Agency for Research on Cancer; 2. Chemicals identified as "known to be a human carcinogen" and "reasonably anticipated to be a human carcinogen" by the Secretary of the United States Department of Health and Human Services pursuant to the Public Health Service Act, 42 United States Code, Section 241(b)(4), as amended; 3. Chemicals identified as "Group A carcinogens" or "Group B carcino- gens" by the United States Environmental Protection Agency; 4. Chemicals identified as reproductive or developmental toxicants by: (a) The United States Department of Health and Human Services, National Toxicology Program, Center for the Evaluation of Risks to Human Reproduction; and (b) The California Environmental Protection Agency, Office of Environ- mental Health Hazard Assessment pursuant to the California Health and Safety Code, Safe Drinking Water and Toxic Enforcement Act of 1986, Chapter 6.6, Section 25249.8; 5. Chemicals identified as known or likely endocrine disruptors through screening or testing conducted in accordance with protocols developed by the United States Environmental Protection Agency pursuant to the federal Food, Drug and Cosmetic Act, 21 United States Code, 346a(p), as amended by the federal Food Quality Protection Act (Public Law 104-170) or the federal Safe Drinking Water Act, 42 United States Code, Section 300j-17; 6. Chemicals listed on the basis of endocrine-disrupting properties in Annex XIV, List of Substances Subject to Authorisation, Regulation (EC) No 1907/2006 of the European Parliament concerning the Registration, Evaluation, Authorisation and Restriction of Chemicals; 7. Persistent, bioaccumulative and toxic chemicals identified by other states or the environmental protection agency; and 8. A very persistent, very bioaccumulative chemical listed in Annex XIV, List of Substances Subject to Authorisation, Regulation (EC) No 1907/2006 of the European Parliament concerning the Registration, Evalu- ation, Authorisation and Restriction of Chemicals. S 3. This act shall take effect on the one hundred twentieth day after it shall have become a law.

Comments

Open Legislation comments facilitate discussion of New York State legislation. All comments are subject to moderation. Comments deemed off-topic, commercial, campaign-related, self-promotional; or that contain profanity or hate speech; or that link to sites outside of the nysenate.gov domain are not permitted, and will not be published. Comment moderation is generally performed Monday through Friday.

By contributing or voting you agree to the Terms of Participation and verify you are over 13.

Discuss!

blog comments powered by Disqus