[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]
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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.
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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:
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Ship date(*) Entry
CPSC samples No. Product No. Statute Description Date Quantity
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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.
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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:
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Product Ship Date(*)Entry
CPSC sample No. No. Statute Description Date Quantity
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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
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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