[Federal Register Volume 60, Number 67 (Friday, April 7, 1995)]
[Notices]
[Pages 17777-17779]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-8521]
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CONSUMER PRODUCT SAFETY COMMISSION
[CPSC Docket No. 95-C0008]
Toy Wonders, 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 Toy Wonders, 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 April 24, 1995.
ADDRESSES: Persons wishing to comment on this Settlement Agreement
should send written comments to the Comment 95-C0008, Office of the
Secretary, Consumer Product Safety Commission, Washington, DC 20207.
FOR FURTHER INFORMATION CONTACT:
Dennis C. Kacoyanis, 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: April 3, 1995.
Sadye E. Dunn,
Secretary.
Settlement Agreement and Order
1. Toy Wonders, Inc. (hereinafter, ``Toy Wonders''), 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 Toy Wonders knowingly
introduced or caused to be introduced into interstate commerce; or
received in interstate commerce and delivered or proffered delivery
thereof, certain banned hazardous toys and misbranded hazardous art
materials, in violation of sections 4 (a) and (c) of the Federal
Hazardous Substances Act, 15 U.S.C. 1263 (a) and (c).
I. Jurisdiction
2. The Commission has jurisdiction over Toy Wonders and the subject
matter of this Settlement Agreement pursuant to sections 3(a)(1) and
30(a) of the Consumer Product Safety Act (hereinafter, ``CPSA''), 15
U.S.C. 2051(a)(1) and 2079(a); and sections 2 (f)(1)(D), and (q)(1)(A),
3(b), 4 (a) and (c), 5(c), and 23(a) of the Federal Hazardous
Substances Act (hereinafter, ``FHSA''), 15 U.S.C. 1261 (f)(1)(D) and
(q)(1)(A), 1262(b), 1263 (a) and (c), 1264(c), and
1277(a). [[Page 17778]]
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. Toy Wonders is a corporation organized and existing under the
laws of the State of New York, since 1983, with its principal corporate
offices located at 234 Moonachie Road, Moonachie, NJ 07074. Toy Wonders
is an importer and distributor of toys.
III. Allegations of the Staff
A. Toys
5. On six occasions between September 8, 1991, and January 13,
1994, Toy Wonders introduced or caused to be introduced into interstate
commerce; or received in interstate commerce and delivered or proffered
delivery thereof for pay or otherwise, 11 kinds of toys (36,693 units)
intended for use by children under 3 years of age. These toys are
identified and described below:
----------------------------------------------------------------------------------------------------------------
Collect
Sample No. Product date* entry Expt./Mfg. Quantity
date
----------------------------------------------------------------------------------------------------------------
M-800-8664.................. Cartoon Police Car......... 09/08/91 Chiang Kiang Trading Co.... 1,200
M-800-8665.................. Cartoon Train.............. 09/08/91 Chiang Kiang Trading Co.... 1,200
M-800-8666.................. Cartoon Car................ 09/08/91 Chiang Kiang Trading Co.... 1,200
R-800-1031.................. Musical Instruments........ *06/16/93 Lian Huat Hang............. 1,920
R-800-1032.................. Action Sound Instruments... *06/16/93 Lian Huat Hang............. 2,160
R-800-1033.................. Musical Set................ *06/16/93 Lian Huat Hang............. 1,440
R-800-1034.................. Alphabet Frame............. *06/16/93 Lian Huat Hang............. 5,133
R-800-1035.................. Alphabet Frame............. *06/16/93 Lian Huat Hang............. 11,592
R-800-3050.................. Riding Pets................ *01/22/93 Toy Wonders................ 7,200
R-800-1122.................. (Bear and Cat)............. *07/27/93
S-800-2504.................. Elephant Piano............. 10/03/93 Ching Enterprises.......... 1,200
S-800-1017.................. Airplane................... 01/13/94 Unknown.................... 2,448
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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 section 2(q)(1)(A) of the FHSA, 15
U.S.C. 1261(q)(1)(A) and 16 CFR 1500.18(a)(9) because it is intended
for use by children under three years of age and bears or contains a
hazardous substance; and because it presents a mechanical hazard as
described in paragraph 7 above.
10. Toy Wonders knowingly introduced or caused to be introduced
into interstate commerce; or received in interstate commerce and
delivered or proffered delivery therof for pay or otherwise, the
aforesaid banned hazardous toys, identified in paragraph 5 above, in
violation of sections 4 (a) and (c) of the FHSA, 15 U.S.C. 1263 (a) and
(c), for which a civil penalty may be imposed pursuant to section
5(c)(1) of the FHSA, 15 U.S.C. 1264(c)(1).
B. Art Materials
11. On two occasions between June 16, 1993, and January 13, 1994,
Toy Wonders introduced or caused to be introduced into interstate
commerce; or received in interstate commerce and delivered or proffered
delivery thereof for pay or otherwise, two different types of art
materials (4,020 units). These art materials are identified and
described below:
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Collect.
Sample No. Product date* entry Expt./Mfg. Quantity
date
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R-800-1036.................. Paint and Crayon Set....... *06/16/93 Lian Huat Hang............. 2,580
S-800-1016.................. Stationary Gift............ *01/13/94 Unknown.................... 1,440
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12. The art materials identified in paragraph 11 above are subject
to, but failed to comply with the requirements for the Labeling of Art
Materials Act in that (a) Toy Wonders did not submit those art
materials for review by a toxicologist as required by section 23(a) of
the FHSA, 15 U.S.C. 1277(a) and 16 CFR 1500.14(b)(8)(C)(1); and (b)
those art materials did not bear the statement of conformance with ASTM
D-4236, as required by section 23(a) of the FHSA, 15 U.S.C. 1277(a) and
16 CFR 1500.14(b)(8)(C)(7).
13. Each of these art materials identified in paragraph 11 above is
a ``misbranded hazardous substance pursuant to section 3(b) of the
FHSA, 15 U.S.C. 1262(b) and 16 CFR 1500.14(b)(8)(C) (1) and (7).
14. Toy Wonders knowingly introduced or caused to be introduced
into interstate commerce; or received in interstate commerce and
delivered or proffered delivery thereof for pay or otherwise, the
aforesaid misbranded hazardous art materials identified in paragraph 11
above, in violation of sections 4 (a) and (c) of the FHSA, 15 U.S.C.
1263 (a) and (c), for which a civil penalty may be imposed pursuant to
section 5(c)(1) of the FHSA, 15 U.S.C. 1264(c)(1). [[Page 17779]]
IV. Response of Toy Wonders, Inc.
15. Toy Wonders denies the allegations of the staff set forth in
paragraphs 5 through 14 above that it has knowingly introduced or
caused to be introduced into interstate commerce; or received in
interstate commerce and delivered or proffered delivery thereof for pay
or otherwise, the banned hazardous toys and misbranded hazardous art
materials, identified in paragraphs 5 and 11 above, in violation of the
FHSA.
V. Agreement of the Parties
16. The Consumer Product Safety Commission has jurisdiction over
Toy Wonders 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.
17. Upon final acceptance by the Commission of this Settlement
Agreement and Order, the Commission shall issue the attached Order
incorporated herein by this reference.
18. The Commission does not make any determination that Toy Wonders
knowingly violated the FHSA. The Commission and Toy Wonders agree that
this Agreement is entered into for the purposes of settlement only.
19. Upon final acceptance of this Settlement Agreement by the
Commission and issuance of the Final Order, Toy Wonders 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 Toy Wonders
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.
20. 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.
21. 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.
22. The parties further agree that the Commission shall issue the
attached Order; and that a violation of the Order shall subject Toy
Wonders to appropriate legal action.
23. Agreements, understandings, representations, or interpretations
made outside of this Settlement Agreement and Order may not be used to
vary or to contradict its terms.
24. The provisions of the Settlement Agreement and Order shall
apply to Toy Wonders, Inc. and each of its successors and assigns.
Respondent Toy Wonders, Inc.
Dated March 16, 1995.
Samuel Su,
President Toy Wonders, Inc.
Dated: March 16, 1995.
Lu Su,
Manager, Toy Wonders, Inc.
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: March 17, 1995.
Earl A. Gershenow,
Trial Attorney, Division of Administrative Litigation, Office of
Compliance and Enforcement.
Dated March 17, 1995.
Dennis C. Kacoyanis,
Trial Attorney, Division of Administrative Litigation, Office of
Compliance and Enforcement.
Order
Under consideration of the Settlement Agreement entered into
between respondent Toy Wonders, Inc., a corporation, and the staff of
the Consumer Product Safety Commission; and the Commission having
jurisdiction over the subject matter and Toy Wonders, 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, Toy Wonders, Inc. shall pay to the Commission a
civil penalty in the amount of SEVENTY-FIVE THOUSAND AND 00/100 DOLLARS
($75,000.00) in three payments consisting of TWENTY-FIVE THOUSAND AND
00/100 DOLLARS ($25,000.00) each. The first payment of TWENTY-FIVE
THOUSAND AND 00/100 DOLLARS ($25,000.00) shall be due within twenty
(20) days after service of the Final Order accepting the Settlement
Agreement and Order (hereinafter, the anniversary date). The second
payment of TWENTY-FIVE THOUSAND AND 00/100 DOLLARS ($25,000.00) shall
be paid within one year of the anniversary date. The third payment of
TWENTY-FIVE THOUSAND AND 00/100 DOLLARS ($25,000.00) shall be paid
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 14 of the Settlement Agreement and Order that
Toy Wonders, Inc. violated the FHSA. Upon failure by Toy Wonders, Inc.
to make payment or upon the making of a late payment by Toy Wonders,
Inc. (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 April, 1995.
By order of the Commission.
Sadye E. Dunn,
Secretary, Consumer Product Safety Commission.
[FR Doc. 95-8521 Filed 4-6-95; 8:45 am]
BILLING CODE 6355-01-M
