[Federal Register Volume 59, Number 216 (Wednesday, November 9, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-27681]
[[Page Unknown]]
[Federal Register: November 9, 1994]
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CONSUMER PRODUCT SAFETY COMMISSION
[CPSC Docket No. 95-C0003]
Concord Enterprises, 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)-(h). Published below is a provisionally-accepted Settlement
Agreement with Concord Enterprises, 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 November 25, 1994.
ADDRESSES: Persons wishing to comment on this Settlement Agreement
should send written comments to the Comment 95-C0003, 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: November 3, 1994.
Sadye E. Dunn,
Secretary.
Settlement Agreement
1. Concord Enterprises, Inc. (hereinafter ``Concord''), a
corporation, enters into this Settlement Agreement and Order
(hereinafter ``Settlement Agreement'') 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 is to settle
the staff's allegations that Concord 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).
I. Jurisdiction
2. The Commission has jurisdiction over Concord and the subject
matter of this Settlement Agreement pursuant to section 30(a) of the
Consumer Product Safety Act (hereinafter ``CPSA''), 15 U.S.C. 2079(a),
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. Concord is a corporation organized and existing under the laws
of the State of California, with its principal corporate offices
located at 2957 E. 46th Street, Los Angeles, California 90058. Concord
is a wholesaler of general and non-durable merchandise, including toys.
III. Allegations of the Staff
A. Toys
5. On five occasions between June 27, 1991, and December 17, 1991,
Concord caused the introduction into interstate commerce of 7 kinds of
toys (107,040 units) intended for use by children under three years of
age, which are identified and described below:
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Sample No. Product Entry date Expt/Mfg
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P-860-7237...... Baby Angela..... 6/27/91 L&A Company.
M-867-2954...... 3-Piece Doll.... 7/20/91 L&A Company.
P-867-7694...... Plastic Doll.... 10/31/91 L&A Company.
P-867-7695...... Plastic Wind Up 10/31/91 L&A Company.
Family Car.
P-867-7716...... Soft Vinyl 11/11/91 Manley Toys.
Animal In
Plastic Box.
P-860-7238...... Baby & Bear..... 12/17/91 Sunlight Industries.
P-860-7236...... Two Dolls in 12/17/91 Rewinner Enterprises.
Plastic Vinyl.
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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 test
cylinder, as set forth in 16 CFR 1501.4.
7. Because separated parts fit completely within the test cylinder
as described in paragraph 6 above, each of the toys identified in
paragraph 5 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(g)(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).
B. Baby Rattles
10. On November 21, 1990, Concord caused the introduction into
interstate commerce of 4,320 units of a baby rattle, ``Set of Two
Assorted Baby Rattles'' (``Rattle''), purchased from Manley Toys
(Sample No. M-867-2411).
11. When tested under the methods and procedures prescribed in 16
CFR 1500.51, the Rattle entered and penetrated the full depth of the
cavity of the test fixture specified in 16 CFR 1510.4.
12. Pursuant to 16 CFR 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 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 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. 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).
IV. Response of Concord
16. Concord denies the allegations of the staff set forth in
paragraphs 5 through 15 above that it has knowingly caused the
introduction into commerce of the aforesaid banned hazardous toys or
rattles, or that it has violated the FHSA as alleged by the staff.
V. Agreement of the Parties
17. The Consumer Product Safety Commission has jurisdiction over
Concord and the subject matter of this Settlement Agreement 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.
18. Upon final acceptance by the Commission of this Settlement
Agreement and issuance of the Final Order, Concord agrees to pay to the
Commission a civil penalty in the amount of SIXTY THOUSAND AND 00/100
DOLLARS ($60,000.00), in three (3) payments of TWENTY THOUSAND AND 00/
100 ($20,000.00) each. The first payment shall be due within twenty
(20) days after service of the Final Order of the Commission accepting
the Agreement, hereinafter, the ``anniversary date.'' The second
payment shall be made within one year of the anniversary date, and the
third payment shall be made within two years of the anniversary date.
Payment of the full amount of the civil penalty shall settle fully the
staff's allegations set forth in paragraphs 5 through 15 above that
Concord violated the FHSA. Upon the failure by Concord to make a
payment or upon the making of a late payment by Concord (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).
19. The Commission does not make any determination that Concord
knowingly violated the FHSA. The Commission and Concord agree that this
Agreement is entered into for the purposes of settlement only.
20. Upon final acceptance of this Settlement Agreement by the
Commission and issuance of the Final Order, Concord 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 Concord failed to comply with the FHSA as aforesaid, and (4) to
a settlement of findings of fact and conclusions of law.
21. 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 the
Order.
22. Upon provisional acceptance of this Settlement Agreement by the
Commission, this Settlement Agreement and the Provisional 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 within 15 days, the Settlement
Agreement shall be deemed finally accepted and the Final Order shall be
deemed issued on the 16th day after the date the Settlement Agreement
is published in the Federal Register.
23. 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 Concord to appropriate legal action.
24. No agreement, understanding, representation, or interpretation
not contained in this Settlement Agreement may be used to vary or to
contradict its terms.
25. The provisions of the Settlement Agreement and Final Order
shall apply to Concord and each of its successors and assigns.
Dated: May 10, 1994.
Respondent Concord Enterprises, Inc.
Hamid Shayan,
President, Concord Enterprises, Inc., 2957 E 46th Street, Los Angeles,
CA 90058.
Commission Staff.
David Schmeltzer,
Assistant Executive Director, Office of Compliance and Enforcement.
Eric L. Stone,
Acting Director, Division of Administrative Litigation, Office of
Compliance and Enforcement.
Dated: May 13, 1994 by:
Earl A. Gershenow,
Trial Attorney, Division of Administrative Litigation, Office of
Compliance and Enforcement.
Dated: May 31, 1994 by:
Dennis C. Kacoyanis,
Trial Attorney, Division of Administrative Litigation, Office of
Compliance and Enforcement.
Order
Upon consideration of the Settlement Agreement entered into between
respondent Concord Enterprises, Inc., a corporation, and the staff of
the Consumer Product Safety Commission; and the Commission having
jurisdiction over the subject matter and Concord Enterprises, 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, Concord Enterprises, Inc. shall pay to the
Commission a civil penalty in the amount of SIXTY THOUSAND-FIVE AND 00/
100 DOLLARS ($60,000.00) in three (3) payments of TWENTY THOUSAND AND
00/100 DOLLARS ($20,000.00) each. The first payment shall be due within
twenty (20) days after service of the Final Order of the Commission
accepting the Settlement Agreement, hereinafter, the ``anniversary
date.'' The second payment shall be made within one year of the
anniversary date, and the third payment shall be made within two years
of the anniversary date. Payment of the full amount of the civil
penalty shall settle fully the staff's allegations set forth in
paragraphs 5 through 15 of the Settlement Agreement and Order that
Concord Enterprises, Inc. violated the FHSA. Upon the failure by
Concord to make a payment or upon the making of a late payment by
Concord (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 3rd day
of November, 1994.
By Order of the Commission
Sadye E. Dunn,
Secretary, Consumer Product Safety Commission.
[FR Doc. 94-27681 Filed 11-8-94; 8:45 am]
BILLING CODE 6355-01-M
