[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] ======================================================================= ----------------------------------------------------------------------- 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. ----------------------------------------------------------------------- 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 ---------------------------------------------------------------------------------------------------------------- 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: ---------------------------------------------------------------------------------------------------------------- Collect. Sample No. Product date* entry Expt./Mfg. Quantity date ---------------------------------------------------------------------------------------------------------------- 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 ---------------------------------------------------------------------------------------------------------------- 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