[Federal Register: July 17, 1995 (Volume 60, Number 136)] [Notices] [Page 36403-36405] From the Federal Register Online via GPO Access [wais.access.gpo.gov] ======================================================================= ----------------------------------------------------------------------- [[Page 36403]] CONSUMER PRODUCT SAFETY COMMISSION [CPSC Docket No. 95-C0013] Howland Caribbean Corporation, 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)- (h). Published below is a provisionally-accepted Settlement Agreement with Howland Caribbean Corporation, 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 August 1, 1995. ADDRESSES: Persons wishing to comment on this Settlement Agreement should send written comments to the Comment 95-C0013, Office of the Secretary, Consumer Product Safety Commission, Washington, DC 20207. FOR FURTHER INFORMATION CONTACT: Earl A. Gershenow, Trial Attorney, Office of Compliance and Enforcement, Consumer Product Safety Commission, Washington, DC 20207; telephone (301) 504-0626. SUPPLEMENTARY INFORMATION: The text of the Agreement and Order appears below. Dated: July 10, 1995. Sadye E. Dunn, Secretary. [CPSC Docket No. 95-C0013] Settlement Agreement and Order In the Matter of Howland Caribbean Corporation a corporation. 1. Howland Caribbean Corporation (hereinafter, ``Howland''), a corporation, enters into this Settlement Agreement and Order with the staff of the Consumer Product Safety Commission, and agrees to the entry of the Order described herein. The purpose of the Settlement Agreement and Order is to settle the staff's allegations that Howland knowingly caused the introduction into interstate commerce of certain banned hazardous toys and rattles, in violation of section 4(a) of the Federal Hazardous Substances Act, 15 U.S.C. 1263(a). I. The Parties 2. 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. 3. Howland is a corporation organized and existing under the laws of the Commonwealth of Puerto Rico, since 1972, with its principal corporate offices located at 1679 Ponce De Leon, Santurce, Puerto Rico 00909. The firm also has an office in Ridgefield, Connecticut. Howland imports and distributes housewares and toys in Puerto Rico, and sells those products in Puerto Rico. Approximately 45 percent of its sales are from toys. II. Allegations of the Staff A. Toys 4. On eight occasions between July 23, 1991, and October 10, 1993, Howland caused the introduction into interstate commerce of 10 kinds of toys consisting of approximately 6,600 units intended for use by children under 3 years of age. All the toys were purchased through same exporter, Swatow International, Ltd., but were manufactured by, and purchased from, different manufacturers. These toys are identified and described below: ------------------------------------------------------------------------ Sample No. Product Entry date Units ------------------------------------------------------------------------ M-807-1704.............. Happy Loco............. 07/23/91 480 P-807-2057.............. Pull-Along-Funny 09/17/91 720 Telephone. P-807-2068.............. Old Timer Car Pull Toy. 10/06/91 72 P-807-2081.............. Choo Choo Phone........ 10/17/91 96 P-807-2082.............. Push Telephone......... 10/17/91 480 R-800-2050.............. Happy Hippo Trolley Car 08/17/92 72 R-800-2051.............. Funny Plane............ 08/17/92 360 R-800-2718.............. Musical Sand Buggy..... 07/10/93 360 R-800-2722.............. Maracas................ 07/14/93 2880 R-800-2086; R-800-2087; Press-Go-Mobile Toys 10/10/93 1080 R-800-2088. (Police Car, Fire Truck, and Pick-Up Truck). ------------------------------------------------------------------------ 5. The toys identified in paragraph 4 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 Secs. 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 Sec. 1501.4. 6. 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). 7. Each of the toys identified in paragraph 4 above is a ``hazardous substance'' pursuant to section 2(f)(1)(D) of the FHSA, 15 U.S.C. 1261(f)(1)(D). 8. Each of the toys identified in paragraph 4 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 Sec. 1500.18(a)(9). 9. Howland 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. Baby Rattles 10. On October 17, 1991, Howland caused the introduction into interstate commerce of 1,296 units of a plastic baby rattle (``Rattle''), purchased through Swatow International, Ltd. (Sample No. P-807-2083). 11. When tested under the methods and procedures prescribed in 16 CFR Sec. 1500.51, the handle of the rattle entered and penetrated the full depth of the cavity of the test fixture specified in 16 CFR Sec. 1510.4. [[Page 36404]] 12. Pursuant 16 CFR Sec. 1500.18(a)(15), the Rattle presents a ``mechanical hazard'' (i.e., choking, aspiration, and/or ingestion of small parts) within the meaning of section 2(s) of the FHSA, 15 U.S.C. 1261(s), because it failed to comply with 16 CFR Sec. 1510.4. 13. The Rattle is a ``hazardous substance'' pursuant to section 2(f)(1)(D) of the FHSA, 15 U.S.C. 1261(f)(1)(D), because it is a toy or other article intended for use by children which presents a ``mechanical hazard'' under 16 CFR Sec. 1500.18(a)(15). 14. The Rattle is a ``banned hazardous substance'' pursuant to section 2(q)(1)(A) of the FHSA, 15 U.S.C. 1261(q)(1)(A), because it is a toy or other article intended for use by children which bears or contains a hazardous substance. 15. Howland knowingly caused the introduction into interstate commerce of the aforesaid banned hazardous Rattle is a 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). III. Response of Howland Caribbean Corporation 16. Howland denies the allegations of the staff set forth in paragraphs 4 through 15, and alleges that it never knowingly introduced or caused the introduction into interstate commerce of banned hazardous toys and rattles in violation of the FHSA, as alleged by the staff. Howland further alleges that in each instance specified in paragraphs 4 and 10, above, the firm acted on a reasonable belief either that each product was not intended for children under the age of three or that it otherwise complied with the CPSC's safety standards. Howland further alleges that in each instance, the firm fully cooperated with the staff and took the necessary actions to assure that none of the toys or rattles were distributed in the Commonwealth of Puerto Rico, or in the United States. IV. Agreement of the Parties 17. The Consumer Product Safety Commission has jurisdiction over Howland and the subject matter of this Settlement Agreement and Order under the Consumer Product Safety Act, 15 U.S.C. 2051 et seq., and the Federal Hazardous Substances Act, 15 U.S.C. 1261 et seq. 18. The Commission does not make any determination that Howland knowingly violated the FHSA or the CPSA. The Commission and Howland agree that this Agreement is entered into for the purposes of settlement only; does not constitute an admission by Howland that it knowingly violated the FHSA; and, upon final acceptance by the Commission, shall settle finally all allegations by the staff of violations of the FHSA by Howland of which the staff has knowledge as of the date of execution of this Settlement Agreement. 19. 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 Sec. 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 shall be deemed finally accepted on the 16th day after the date it is published in the Federal Register. 20. Upon final acceptance by the Commission of this Settlement Agreement and Order, the Commission shall issue the attached Order. 21. Upon final acceptance this Settlement Agreement and Order and the issuance of the Final Order by the Commission, Howland 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 Howland failed to comply with the FHSA as aforesaid, (4) to a statement of findings of fact and conclusions of law, and (5) to any claims under the Equal Access to Justice Act. 22. 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. 23. A violation of the Order shall subject Howland to appropriate legal action. 24. Agreements, understandings, representations, or interpretations made outside of this Settlement Agreement and Order may not be used to vary or to contradict its terms. 25. The provisions of the Settlement Agreement and Order shall apply to Howland and each of its successors and assigns. Respondent Howland Caribbean Corporation. Dated: June 5, 1995. By: T.G. Howland, President, Howland Caribbean Corporation. Commission Staff. David Schmeltzer, Assistant Executive Director, Office of Compliance. Eric L. Stone, Acting Director, Division of Administrative Litigation, Office of Compliance. Dated: June 12, 1995. By: Earl A. Gershenow, Trial Attorney, Division of Administrative Litigation, Office of Compliance. [CPSC Docket No. 95-C0013] Order In the Matter of Howland Caribbean Corporation, a corporation. Upon consideration of the Settlement Agreement entered into between respondent Howland Caribbean Corporation, a corporation, and the staff of the Consumer Product Safety Commission; and the Commission having jurisdiction over the subject matter and Howland Caribbean Corporation; 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, Howland Caribbean Corporation shall pay to the Commission a civil penalty in the amount of seventy-five thousand dollars and 00/100 ($75,000.00) in three payments: Twenty-five thousand and 00/100 dollars ($25,000.00) within twenty (20) days after service on Howland Caribbean Corporation of the Final Order accepting the Settlement Agreement, twenty-five thousand and 00/100 dollars ($25,000.00) within one year from the date of the first payment, and twenty-five thousand and 00/100 dollars ($25,000.00) 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 16 of the Settlement Agreement and Order that Howland Caribbean Corporation violated the FHSA. Upon failure by Howland Caribbean Corporation to make payment or upon the making of a late payment by Howland Caribbean Corporation (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 [[Page 36405]] interest under the provisions of 28 U.S.C. 1961 (a) and (b). Provisionally accepted and Provisional Order issued on the 10th day of July, 1995. By Order of the Commission. Sadye E. Dunn, Secretary, Consumer Product Safety Commission. [FR Doc. 95-17376 filed 7-14-95; 8:45 am] BILLING CODE 6355-01-M