[Federal Register: July 7, 1995 (Volume 60, Number 130)] [Notices] [Page 35380-35382] From the Federal Register Online via GPO Access [wais.access.gpo.gov] ======================================================================= ----------------------------------------------------------------------- CONSUMER PRODUCT SAFETY COMMISSION [CPSC Docket No. 95-C0012] ABC School Supply, Inc., a Corporation; Provisional Acceptance of a Settlement Agreement and Order AGENCY: Consumer Product Safety Commission. ACTION: Provisional Acceptance of a Settlement Agreement under the Consumer Product Safety Act. ----------------------------------------------------------------------- SUMMARY: It is the policy of the Commission to publish settlements which it provisionally accepts under the Consumer Product Safety Act in the Federal Register in accordance with the terms of 16 CFR 1118.20(e). Published below is a provisionally-accepted Settlement Agreement with ABC School Supply, Inc., a corporation. DATES: Any interested person may ask the Commission not to accept this agreement or otherwise comment on its contents by filing a written request with the Office of the Secretary by July 24, 1995. ADDRESSES: Persons wishing to comment on this Settlement Agreement should send written comments to Comment 95-C0012, Office of the Secretary, Consumer Product Safety Commission, Washington, DC 20207. FOR FURTHER INFORMATION CONTACT: Earl A. Gershenow, Trial Attorney, Office of Compliance, Consumer Product Safety Commission, Washington, DC 20207; telephone 301-504- 0626. SUPPLEMENTARY INFORMATION: The text of the Agreement and Order appears below. Dated: June 30, 1995. Sadye E. Dunn, Secretary, Consumer Product Safety Commission. In the Matter of ABC School Supply, Inc., a corporation. Settlement Agreement and Order 1. ABC School Supply, Inc. (hereinafter, ``ABC School Supply''), a corporation, enters into this Settlement Agreement (hereinafter, ``Agreement'') with the staff of the Consumer Product Safety Commission, and agrees to the entry of the Order described herein. The purpose of the Agreement and Order is to settle the staff's allegations that ABC School Supply knowingly caused the introduction into interstate commerce of certain banned hazardous toys, in violation of section 4(a) of the Federal Hazardous Substances Act, 15 U.S.C. 1263(a), and section 19(a)(2) of the Consumer Product Safety Act, U.S.C. 2068(a)(2). I. Jurisdiction 2. The Commission has jurisdiction over ABC School Supply and the subject matter of this Settlement Agreement pursuant to section 3(a)(1) of the Consumer Product Safety Act (hereinafter, ``CPSA''), 15 U.S.C. 2051(a)(1), section 30(a) of the CPSA, 15 U.S.C. 2079(a); section 20(a)(1) of the CPSA, 15 U.S.C. 2069(a)(1); and sections 2(f)(1)(D), 4(a), and 5(c) of the Federal Hazardous Substances Act (hereinafter, ``FHSA''), 15 U.S.C. 1261(f)(1)(D), 1263(a), and 1264(c). II. The Parties 3. The ``staff'' is the staff of the Consumer Product Safety Commission, an independent regulatory commission of the United States established pursuant to section 4 of the CPSA, 15 U.S.C. 2053. 4. ABC School Supply is a corporation organized and existing under the laws of the State of Georgia, since 1952, with its principal corporate offices located at 3312 Berkley Lake Road, Duluth, Georgia 30136. ABC School Supply is an importer and, principally, a mail order distributor of various products, including toys, for sale to schools, churches, kindergartens, and day care enters. III. Allegations of the State A. Toys 5. On ten occasions between March 5, 1991, and January 7, 1993, ABC School Supply, Inc. caused the introduction into interstate commerce of 18 kinds of toys consisting of approximately 16,108 units intended for use by children under 3 years of age. These toys are identified and described below: ------------------------------------------------------------------------------ Ship date(*) Entry CPSC samples No. Product No. Statute Description Date Quantity ------------------------------------------------------------------------------ M-830-0925............. 1901 FHSA Shovel-Plastic... 03/05/91 3888 [[Page 35381]] M-830-0926............. 1940 FHSA Sand Mill........ 03/05/91 1200 M-830-0927............. 1945 FHSA Water Wheel II... 03/05/91 624 M-830-0928............. 1959 FHSA Sand-Wheel II.... 03/05/91 1200 M-830-0942............. 105-910 FHSA Delux Alphabet 11/29/90 1200 Puzzle with Knobs. P-830-6102............. 105-281 FHSA Uncle Bee The 10/23/91 144 Eagle School Pull Toy. P-830-6205............. T-804 FHSA Baby Car......... 12/06/91 288 P-830-6327............. 1940 FHSA Sand Mill........ 06/04/92 1632 P-830-6328............. 1945 FHSA Water Wheel II... 06/04/92 1248 P-830-6329............. 1959 FHSA Sand Wheel II.... 06/04/92 1200 P-830-6330............. 8102 FHSA Dump Car......... 06/04/92 336 P-830-6331............. 8104 FHSA Tow Truck........ 06/04/92 336 P-830-6332............. 8106 FHSA Police Car....... 03/04/92 336 P-830-6333............. 8107 FHSA Fire Engine...... 06/04/92 336 P-830-6334............. 8105 FHSA Royal Minimobile 06/04/92 14 Ambulance. P-830-6335............. 8101 FHSA Royal Minimobile 06/04/92 336 Sports Car. P-830-6857............. 67832 FHSA Li'l Playmates 08/31/92 532 Farm Play Set. R-830-6002............. 1947 FHSA Baby Dump Truck.. 11/30/92(*) 432 R-830-6003............. 1965 FHSA Bulldozer........ 01/07/93(*) 432 R-830-6006............. 1959 FHSA Sand Wheel II.... 01/07/93(*) 300 R-830-6500............. KK501WR FHSA Little Knob 10/01/92 48 Breakfast Puzzle. R-830-6514............. 5861 FHSA Little Driver Toy 10/14/92(*) 46 Steering Wheel and Dash board. ------------------------------------------------------------------------------ 6. The toys identified in paragraph 5 above are subject to, but failed to comply with, the Commission's Small Parts Regulation, 16 CFR Part 1501, in that when tested under the ``use and abuse'' test methods specified in 16 CFR 1500.51 and 1500.52, (a) one or more parts of each tested toy separated and (b) one or more of the separated parts from each of the tested toys fit completely within the small parts test cylinder, as set forth in 16 CFR 1501.4. 7. Because the separated parts fit completely within the test cylinder as described in paragraph 6 above, each of the toys identified in paragraph 5 above presents a ``mechanical hazard'' within the meaning of section 2(s) of the FHSA, 15 U.S.C. 1261(s) (choking, aspiration and/or ingestion of small parts). 8. Each of the toys identified in paragraph 5 above is a ``hazardous substance'' pursuant to section 2(f)(1)(D) of the FHSA, 15 U.S.C. 1261(f)(1)(D). 9. Each of the toys identified in paragraph 5 above is a ``banned hazardous substance'' pursuant to (a) section 2(q)(1)(A) of the FHSA, 15 U.S.C. 1261(q)(1)(A) (any toy or other article intended for use by children which bears or contains a hazardous substance); and (b) 16 CFR 1500.18(a)(9). 10. ABC School Supply knowingly caused the introduction into interstate commerce of the aforesaid banned hazardous toys, in violation of section 4(a) of the FHSA, 15 U.S.C. 1263(a), for which a civil penalty may be imposed pursuant to section 5(c) of the FHSA, 15 U.S.C. 1264(c). B. Lead-Containing Toys 11. On three occasions between January 3, 1992, and August 24, 1992, ABC School Supply caused the introduction into interstate commerce of 6 kinds of lead-containing toys consisting of approximately 4,173 units intended for use by children under 3 years of age. These toys are identified and described below: ------------------------------------------------------------------------------ Product Ship Date(*)Entry CPSC sample No. No. Statute Description Date Quantity ------------------------------------------------------------------------------ P-830-6122............... 025-261 CPSC Mini Traffic Sign 02/07/92 1200 Set. P-830-6123............... 429-806 CPSC Color Stacking 02/07/92 385 Disks. P-830-6220............... 109-441 CPSC Fruit Play Set.... 01/03/92 288 P-830-6221............... 109-442 CPSC Vegetable Play Set.01/03/92 600 P-830-6222............... 109-437 CPSC Desc. Geometrical 01/03/92 1200 Pegboard. P-830-6340............... 002-455 CPSC Numerical Blocks...08/24/92(*)500 ------------------------------------------------------------------------------ 12. The lead-containing toys identified in paragraph 11 above were subject to, but failed to comply with the Commission's Ban on Lead- Containing Paint and Certain Consumer Products Bearing Lead-Containing Paint, 16 CFR Part 1303, promulgated pursuant to sections 8 and 9 of the CPSA, 15 U.S.C. 2057 and 2058, in that each of those toys contained lead in excess of 0.06 percent. 13. ABC School Supply knowingly caused the introduction into interstate commerce of the banned hazardous toys identified in paragraph 11 above, in violation of section 19(a)(2) of the CPSA, 15 U.S.C. 2068(a)(2), for which a [[Page 35382]] civil penalty may be imposed pursuant to section 20(a)(1) of the CPSA, 15 U.S.C. 2069(a)(1). IV. Response of ABC School Supply, Inc. 14. ABC School Supply denies the allegations of the staff set forth in paragraphs 5 through 13 above that it has knowingly caused the introduction into interstate commerce of banned hazardous toys in violation of the FHSA, or that it has knowingly caused the introduction into commerce of banned hazardous toys in violation of the CPSA, as alleged by the staff. V. Agreement of the Parties 15. The Consumer Product Safety Commission has jurisdiction over ABC School Supply and the subject matter of this Settlement Agreement and Order under the following acts: Consumer Product Safety Act, 15 U.S.C. 2051 et seq., and the Federal Hazardous Substances Act, 15 U.S.C. 1261 et seq. 16. Upon final acceptance by the Commission of this Settlement Agreement and Order, the Commission shall issue the attached Order incorporated herein by this reference. 17. The Commission does not make any determination that ABC School Supply knowingly violated the FHSA or the CPSA. The Commission and ABC School Supply agree that this Agreement is entered into for the purposes of settlement only. 18. Upon final acceptance of this Settlement Agreement by the Commission and issuance of the Final Order, ABC School Supply knowingly, voluntarily and completely waives any rights it may have in this matter (1) to an administrative or judicial hearing, (2) to judicial review or other challenge or contest of the validity of the Commission's actions, (3) to a determination by the Commission as to whether ABC School Supply failed to comply with the FHSA and the CPSA as aforesaid, and (4) to a statement of findings of fact and conclusions of law. 19. For purposes of section 6(b) of the CPSA, 15 U.S.C. 2055(b), this matter shall be treated as if a complaint had issued; and, the Commission may publicize the terms of the Settlement Agreement and Order. 20. Upon provisional acceptance of this Settlement Agreement and Order by the Commission, this Settlement Agreement and Order shall be placed on the public record and shall be published in the Federal Register in accordance with the procedures set forth in 16 CFR 1118.20(e)-(h). If the Commission does not receive any written request not to accept the Settlement Agreement and Order within 15 days, the Settlement Agreement and Order will be deemed finally accepted on the 16th day after the date it is published in the Federal Register. 21. The parties further agree that the Commission shall issue the attached Order incorporated herein by reference; and that a violation of the Order shall subject ABC School Supply to appropriate legal action. 22. Agreements, understandings, representations, or interpretations made outside of this Settlement Agreement and Order may not be used to vary or to contradict its terms. 23. The provisions of the Settlement Agreement and Order shall apply to ABC School Supply, Inc. and each of its successors and assigns. Order In the Matter of ABC SCHOOL SUPPLY, INC., a corporation. Upon consideration of the Settlement Agreement entered into between respondent ABC School Supply, Inc., a corporation, and the staff of the Consumer Product Safety Commission; and the Commission having jurisdiction over the subject matter and ABC School Supply, Inc.; and it appearing that the Settlement Agreement and Order is in the public interest, it is Ordered, that the Settlement Agreement and Order be and hereby is accepted, as indicated below; and it is Further Ordered, that upon final acceptance of the Settlement Agreement and Order, ABC School Supply, Inc. shall pay to the Commission a civil penalty in the amount of Forty-Five Thousand and 00/ 100 Dollars ($45,000.00) in three payments: Twenty-Five Thousand and 00/100 Dollars $25,000.00) within twenty (20) days after service on ABC School Supply, Inc. of the Final Order accepting the Settlement Agreement, Ten Thousand and 00/100 Dollars ($10,000.00) within one year from the date of this first payment, and Ten Thousand Dollars and 00/ 100 ($10,000.00) within two years from the date of the first payment. Payment of the full amount of the civil penalty shall settle fully the staff's allegations set forth in paragraphs 5 through 13 of the Settlement Agreement and Order that ABC School Supply, Inc. violated the FHSA. Upon failure by ABC School Supply to make payment or upon the making of a late payment by ABC School Supply (a) the entire amount of the civil penalty shall be due and payable, and (b) interest on the outstanding balance shall accrue and be paid at the federal legal rate of interest under the provisions of 28 U.S.C. 1961(a) and (b). Provisionally accepted and Provisional Order issued on the 30th day of June, 1995. By Order of the Commission. Sayde E. Dunn, Secretary, Consumer Product Safety Commission. Finally accepted and Final Order issued on the ________ day of ________, 1995. By order of the Commission. Sayde E. Dunn, Secretary, Consumer Product Safety Commission. [FR Doc. 95-16634 Filed 7-6-95; 8:45 am] BILLING CODE 6355-01-M