[Federal Register: November 4, 1996 (Volume 61, Number 214)]
[Notices]
[Page 56669-56673]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr04no96-45]
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CONSUMER PRODUCT SAFETY COMMISSION
[CPSC Docket No. 97-C0003]
Four Seasons General Merchandise, Inc. a corporation; Settlement
Agreement and Order
1. Four Seasons General Merchandise, Inc. (hereinafter, ``Four
Seasons''), 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 staffs
allegations that Four Seasons knowingly introduced or caused the
introduction in interstate commerce; and received in interstate
commerce and delivered or proffered delivery thereof for pay or
otherwise, certain banned hazardous toys, baby rattles, pacifiers,
water timers, and magic diamond and certain misbranded hazardous art
materials and butane lighters, in violation of sections 4(a) and (c) of
the Federal Hazardous Substances. Act (FHSA), 15 U.S.C. Secs. 1263(a)
and (c).
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 Consumer Product Safety Act
(CPSA), 15 U.S.C. Sec. 2053.
3. Four Seasons is a corporation organized and existing under the
laws of the State of California, since 1995, with its principal
corporate offices located at 2801 E. Vernon Avenue, Vernon, CA 90058.
Four Seasons is engaged in the import, distribution, and re-export of a
wide variety of consumer products. Approximately 5% of Four Seasons'
business involves toys or other articles intended for children.
II. Allegations of the Staff
A. Toys With Small Parts
4. On five occasions between October 16, 1991, and January 11,
1995, Four Seasons introduced or caused the introduction in interstate
commerce; and received in interstate commerce and delivered or
proffered delivery thereof for pay or otherwise, eight kinds of toys
(96,530 units) intended for use by
[[Page 56670]]
children under three years of age. These
toys are identified and described as follows:
----------------------------------------------------------------------------------------------------------------
Collect date*
Sample No. Product Entry date Expt./Mfg. Quantity
----------------------------------------------------------------------------------------------------------------
P-867-7637............. Toy Train.................. 10/16/91 CSK World.................. 24,336
P-867-7638............. Toy Elephant............... ................ ........................... ...........
P-867-7745............. Telephone Money Box........ 01/22/92 Canada, Inc................ 20,304
P-867-7746............. Boy/Girl Doll Set.......... 01/22/92 CSK World Wide Ltd......... 18,864
R-867-8215............. Hexagon Telephone.......... 04/17/93 Lee Shing Fat Industries... 2,400
R-867-8216............. Hexagon Clock.............. 04/17/93 Lee Shing Fat Industries... 2,400
R-867-8217............. Hexagon Speaker............ 04/17/93 Lee Shing Fat Industries... 2,400
S-867-8220............. Toy Train.................. 04/16/94 Lee Shing Fat Industries... 25,751
S-867-8221............. Toy Elephant............... ................ ........................... ...........
T-830-4906............. Pull Along Wooden Snail.... *01/11/95 Unknown.................... 75
----------------------------------------------------------------------------------------------------------------
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 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 5 above, each of the toys identified
in paragraph 4 above presents a ``mechanical hazard'' within the
meaning of section 2(s) of the FHSA, 15 U.S.C. Sec. 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. Sec. 1261(f)(1)(D).
8. Each of the toys identified in paragraph 4 above is a ``banned
hazardous substance'' pursuant to section 2(q)(1)(A) of the FHSA, 15
U.S.C. Sec. 1261(q)(1)(A) and 16 CFR Sec. 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 6 above.
9. Four Seasons knowingly introduced or caused the introduction in
interstate commerce; and received in interstate commerce and delivered
or proffered delivery thereof 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. Secs. 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. Sec. 1264(c)(1).
B. Baby Rattle
10. On one occasion in 1992, Four Seasons introduced or caused the
introduction in interstate commerce; and received in interstate
commerce and delivered or proffered delivery thereof for pay or
otherwise, one kind of baby rattle (14,400 units) intended for use by
children. This baby rattle is identified and described as follows:
----------------------------------------------------------------------------------------------------------------
Collect date*
Sample No. Product Entry date Expt./Mfg. Quantity
----------------------------------------------------------------------------------------------------------------
P-867-8580............. Baby Rattle................ 08/16/92 Lee Shing Fat Industries... 14,400
----------------------------------------------------------------------------------------------------------------
11. The baby rattle identified in paragraph 10 above is subject to,
but failed to comply with, the Commission's Rattle Regulations, 16 CFR
Part 1510, in that when tested under the procedures specified in 16 CFR
Sec. 1510.4, the handle of the baby rattle penetrated the full depth of
the cavity of the test fixture.
12. Because the handle of the baby rattle identified in paragraph
10 above penetrated the full depth of the cavity of the test fixture as
specified in 16 CFR Sec. 1510.4 and described in paragraph 11 above,
the baby rattle identified in paragraph 10 above presents a
``mechanical hazard'' within the meaning of section 2(s) of the FHSA,
15 U.S.C. Sec. 1261(s) (choking).
13. The rattle identified in paragraph 10 above is a ``hazardous
substance'' pursuant to section 2(f)(1)(D) of the FHSA, 15 U.S.C.
Sec. 1261(f)(1)(D).
14. The rattle identified in paragraph 10 above is a ``banned
hazardous substance'' pursuant to section 2(q)(1)(A) of the FHSA, 15
U.S.C. Sec. 1261(q)(1)(A) and 16 CFR Sec. 1500.18(a)(15) because it is
intended for use by children and bears and contains a hazardous
substance; and because it presents a mechanical hazard as defined in
paragraph 12 above.
15. Four Seasons knowingly introduced or caused the introduction in
interstate commerce; and received in interstate commerce and delivered
or proffered delivery thereof for pay or otherwise, the aforesaid
banned hazardous baby rattle identified in paragraph 10 above, in
violation of sections 4 (a) and (c) of the FHSA, 15 U.S.C. Secs. 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. Sec. 1264(c)(1).
C. Art Material
16. On one occasion in 1993, Four Seasons introduced or caused the
introduction in interstate commerce; and received in interstate
commerce and delivered or proffered delivery thereof for pay or
otherwise, one type of art material (41,520 units). This art material
product is identified and described as follows:
----------------------------------------------------------------------------------------------------------------
Collect date*
Sample No. Product Entry date Expt./Mfg. Quantity
----------------------------------------------------------------------------------------------------------------
R-867-8321............. Multi-Colored Crayons...... *06/07/93 CSK World Wide Ltd......... 41,520
----------------------------------------------------------------------------------------------------------------
[[Page 56671]]
17. The art material product identified in paragraph 16 above is
subject to, but failed to comply with the requirements for the Labeling
of Art Materials Act in that (a) Four Seasons did not submit this art
material product for review by a toxicologist as required by section
23(a) of the FHSA, 15 U.S.C. Sec. 1277(a) and 16 CFR
Sec. 1500.14(b)(8)(C)(1); and (b) this art material product did not
bear the statement of conformance with ASTM D-4236, as required by
section 23(a) of the FHSA, 15 U.S.C. Sec. 1277(a) and 16 CFR
Sec. 1500.14(b)(8)(C)(7).
18. The art material product identified in paragraph 16 above is a
``misbranded hazardous substance'' pursuant to section 3(b) of the
FHSA, 15 U.S.C. Sec. 1262(b) and 16 CFR Secs. 1500.14(b)(8)(C) (1) and
(7).
19. Four Seasons knowingly introduced or caused the introduction in
interstate commerce; and received in interstate commerce and delivered
or proffered delivery thereof for pay or otherwise, the aforesaid
misbranded hazardous art material product identified in paragraph 16
above, in violation of sections 4 (a) and (c) of the FHSA, 15 U.S.C.
Secs. 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. Sec. 1264(c)(1).
D. Pacifier
20. On one occasion in 1993, Four Seasons knowingly introduced or
caused the introduction in interstate commerce; and received in
interstate commerce and delivered or proffer delivery thereof for pay
or otherwise, one kind of pacifier (24 units) intended for use by
children. The pacifier is identified and described below:
----------------------------------------------------------------------------------------------------------------
Collect date*
Sample No. Product Entry date Expt./Mfg. Quantity
----------------------------------------------------------------------------------------------------------------
R-863-7316............. Diplomat Pacifier.......... *07/30/93 Unknown.................... 24
----------------------------------------------------------------------------------------------------------------
21. The pacifier identified in paragraph 20 above failed to comply
with the Requirements For Pacifiers, 16 CFR Part 1511 (structural
integrity of nipples, guard or shield requirements, and labeling
requirements).
22. Because the pacifier identified in paragraph 20 failed to
comply with the Requirements For Pacifiers, 16 CFR Part 1511, the
pacifier presents a ``mechanical hazard'' within the meaning of section
2(s) of the FHSA, 15 U.S.C. Sec. 1261(s) (choking).
23. The pacifier identified in paragraph 20 above is a ``hazardous
substance'' pursuant to section 2(f)(1)(D) of the FHSA, 15 U.S.C.
Sec. 1261(f)(1)(D).
24. The pacifier identified in paragraph 20 above is a ``banned
hazardous substance'' pursuant to section 2(q)(1)(A) of the FHSA, 15
U.S.C. Sec. 1261(q)(1)(A) and 16 CFR 1500.18(a)(8) because it is
intended for use by children and bears or contains a hazardous
substance; and because it presents a mechanical hazard as described in
paragraph 22 above.
25. Four Seasons knowingly introduced or caused the introduction in
interstate commerce; and received in interstate commerce and delivered
or proffered delivery thereof for pay or otherwise, the aforesaid
banned hazardous pacifier, in violation of sections 4 (a) and (c) of
the FHSA, 15 U.S.C. Secs. 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.
Sec. 1264(c)(1).
E. Water Timers
26. On one occasion in 1995, Four Seasons introduced or caused the
introduction in interstate commerce; and received in interstate
commerce and delivered or proffered delivery thereof for pay or
otherwise, two kinds of water timers with adjacent tubes (384 units)
intended for use by children. The tubes contain fluid of various
colors. Within each tube there is an upper chamber from which fluid
drops into a lower chamber that spins an internal wheel as the fluid
drops. The water timers are identified and described as follows:
----------------------------------------------------------------------------------------------------------------
Collect date*
Sample No. Product Entry date Expt./Mfg. Quantity
----------------------------------------------------------------------------------------------------------------
T-800-3386............... Two Column Water Timer.... * 02/13/95 Unknown................... 240
T-800-3387............... Three-Tube Water Timer.... * 02/13/95 Unknown................... 144
----------------------------------------------------------------------------------------------------------------
27. Because each tube of water timers identified in paragraph 26
above contains 10 percent or more by weight of ethylene glycol, each
water timer is a ``hazardous substance'' pursuant to section
2(f)(1)(A)(i) of the FHSA, 15 U.S.C. Sec. 1261(f)(1)(A)(i) and 16 CFR
Sec. 1500.14(a)(2).
28. Each of the water timers identified in paragraph 26 above is a
``banned hazardous substance'' pursuant to section 2(q)(1)(A) of the
FHSA, 15 U.S.C. Sec. 1261(q)(1)(A), because it is intended for use by
children and bears or contains 10 percent or more by weight of ethylene
glycol, a hazardous substance.
29. Four Seasons knowingly introduced or caused the introduction in
interstate commerce; and received in interstate commerce and delivered
or proffered delivery thereof for pay or otherwise, the aforesaid
banned hazardous water timers, identified in paragraph 26 above, in
violation of sections 4(a) and (c) of the FHSA, 15 U.S.C. Secs. 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. Sec. 1264(c)(1).
F. Magic Diamond
30. On one occasion in 1995, Four Seasons knowingly introduced or
caused the introduction in interstate commerce; and received in
interstate commerce and delivered or proffered delivery thereof for pay
or otherwise, the Magic Diamond (864 units) intended for use by
children. The Magic Diamond is identified and described as follows:
----------------------------------------------------------------------------------------------------------------
Collect date*
Sample No. Product Entry date Expt/Mfg. Quantity
----------------------------------------------------------------------------------------------------------------
T-867-8196......................... Magic Diamond........ *03/09/95 Kab Trade............ 864
----------------------------------------------------------------------------------------------------------------
[[Page 56672]]
31. Because the Magic Diamond identified in paragraph 30 above is
filled with 10 percent or more by weight of petroleum distillates, the
Magic Diamond is a ``hazardous substance'' pursuant to section
2(f)(1)(A) (i) and (v) of the FHSA, 15 U.S.C. Sec. 1261(f)(1)(A) (i)
and (v) and 16 C.F.R. Sec. 1500.14(a)(3).
32. The Magic Diamond identified in paragraph 30 above is a
``banned hazardous substance'' pursuant to section 2(q)(1)(A) of the
FHSA, 15 U.S.C. Sec. 1261(q)(1)(A) because it is intended for use by
children and bears or contains 10 percent or more by weight of
petroleum distillates, a hazardous substance.
33. Four Seasons knowingly introduced or caused the introduction in
interstate commerce; and received in interstate commerce and delivered
or proffered delivery thereof for pay or otherwise, the aforesaid
banned hazardous Magic Diamond, identified in paragraph 30 above, in
violation of sections 4(a) and (c) of the FHSA, 15 U.S.C. Secs. 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. Sec. 1264(c)(1).
G. Butane Lighter
34. On one occasion in 1995, Four Seasons introduced or caused the
introduction in interstate commerce; and received in interstate
commerce and delivered or proffered delivery thereof for pay or
otherwise, one kind of butane lighter (480 units). The butane lighter
is identified and described as follows:
----------------------------------------------------------------------------------------------------------------
Collect date*
Sample No. Product Entry date Expt/Mfg. Quantity
----------------------------------------------------------------------------------------------------------------
T-867-6231......................... Butane Utility *04/06/95 Rubin's.............. 480
Lighter.
----------------------------------------------------------------------------------------------------------------
35. The butane lighter identified in paragraph 34 above contains a
flammable gas that generates pressure and is, therefore, a ``hazardous
substance'' pursuant to sections 2(f)(1)(A)(v) and (vi) of the FHSA, 15
U.S.C. Secs. 1261(f)(1)(A) (v) and (vi).
36. The butane lighter identified in paragraph 34 above is a
``misbranded hazardous substance'' pursuant to section 2(p)(1) of the
FHSA, 15 U.S.C. Sec. 1261(p)(1), because it is a hazardous substance
intended, or packaged in a form suitable, for use in the household, and
fails to bear on the front panel of the lighters and their packaging,
as required by section 2(p)(1) of the FHSA, 15 U.S.C. Sec. 1261(p)(1)
and 16 CFR Sec. 1500.130(b) the signal word, ``DANGER;'' the statement
of hazards: ``EXTREMELY FLAMMABLE. CONTENTS UNDER PRESSURE;'' and the
additional statements of the product and packaging: ``Do not use near
sparks or flame,'' and ``Do not store at a temperature above 120
degrees F.''
37. Four Seasons knowingly introduced or caused the introduction in
interstate commerce; and received in interstate commerce and delivered
or proffered delivery thereof for pay or otherwise, the aforesaid
misbranded hazardous butane lighter, identified in paragraph 34 above,
in violation of sections 4 (a) and (c) of the FHSA, 15 U.S.C. Sec. 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. Sec. 1264(c)(1).
III. Response of Four Seasons
38. Four Seasons denies the allegations of the staff set forth in
paragraphs 4 through 37 above that it has knowingly introduced or
caused the introduction in interstate commerce; and received in
interstate commerce and delivered or proffered delivery thereof for pay
or otherwise, the banned hazardous toys, baby rattle, pacifier, water
timers, and magic diamond and the misbranded hazardous art material and
butane lighter, in violation of the FHSA. Four Seasons states that (i)
it has acted reasonably and in good faith to comply with the
aforementioned regulations promulgated under the FHSA, (ii) the
violations of those regulations were inadvertent, (iii) many of the
violations involved differences of opinion as to appropriate age
grading, (iv) it cooperated fully with the Commission's compliance
actions, and (v) most of the products were detained at the port of
entry and never sold or distributed after receipt in interstate
commerce.
IV. Agreement of the Parties
39. The Consumer Product Safety Commission has jurisdiction over
Four Seasons 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.
40. Upon final acceptance by the Commission of this Settlement
Agreement and Order, the Commission shall issue the attached Order
incorporated herein by reference.
41. The Commission does not make any determination that Four
Seasons knowingly violated the FHSA. The Commission and Four Seasons
agree that this Agreement is entered into for the purposes of
settlement only.
42. Upon final acceptance of this Settlement Agreement by the
Commission and Issuance of the Final Order, Four Seasons 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 Four Seasons 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.
43. For purposes of section 6(b) of the FHSA, 15 U.S.C.
Sec. 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.
44. 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 will be deemed to be finally
accepted on the 16th day after the date it is published in the Federal
Register.
45. The parties further agree that the Commission shall issue the
attached Order; and that a violation of the Order shall subject Four
Seasons to appropriate legal action.
46. Agreements, understandings, representations, or interpretations
made outside this Settlement Agreement and Order may not be used to
vary or contradict its terms.
47. The provisions of the Settlement Agreement and Order shall
apply to Four Seasons and each of its successors and assigns.
[[Page 56673]]
Dated: September 19, 1996.
John Pourmoradi,
President, Four Seasons General Merchandise, Inc., 2801 E. Vernon
Avenue, Vernon, 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: September 25, 1996.
Earl A. Gershenow,
Trial Attorney, Division of Administrative Litigation, Office of
Compliance and Enforcement.
Dated: September 25, 1996.
Dennis C. Kacoyanis,
Trial Attorney, Division of Administrative Litigation, Office of
Compliance and Enforcement.
Consumer Product Safety Commission
Order
In the Matter of FOUR SEASONS GENERAL MERCHANDISE, INC. a
corporation. [CPSC Docket No. 97-C0003].
Upon consideration of the Settlement Agreement entered into between
respondent Four Seasons General Merchandise, Inc., a corporation, and
the staff of the Consumer Product Safety Commission; and the Commission
having jurisdiction over the subject matter and Four Seasons General
Merchandise, 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 is
Further Ordered, That upon final acceptance of the Settlement
Agreement and Order, Four Seasons General Merchandise, Inc. shall pay
to the Commission a civil penalty in the amount of ONE HUNDRED AND TEN
THOUSAND AND 00/100 DOLLARS ($110,000.00) in four payments consisting
of TWENTY-SEVEN THOUSAND FIVE HUNDRED AND 00/100 DOLLARS ($27,500.00)
each. The first payment of TWENTY-SEVEN THOUSAND FIVE HUNDRED AND 00/
100 DOLLARS ($27,500.00) shall be due within twenty (20) days after the
service of the Final Order accepting the Settlement Agreement and Order
(hereinafter the anniversary date). The second payment of TWENTY-SEVEN
THOUSAND FIVE HUNDRED AND 00/100 DOLLARS ($27,500.00) shall be paid
within one year of the anniversary date. The third payment of TWENTY-
SEVEN THOUSAND FIVE HUNDRED AND 00/100 DOLLARS ($27,500.00) shall be
paid within two years of the anniversary date. The fourth payment of
TWENTY-SEVEN THOUSAND FIVE HUNDRED AND 00/100 DOLLARS ($27,500.00)
shall be paid within three 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 4 through 37 of the Settlement
Agreement and Order that Four Seasons General Merchandise, Inc.
violated the FHSA. Upon failure of Four Seasons General Merchandise,
Inc. to make payment or upon the making of a late payment by Four
Seasons General Merchandise, 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 under the
provisions of 28 U.S.C. Secs. 1961 (a) and (b).
Provisionally accepted and Provisional Order issued on the 30th
day of October, 1996.
By Order of the Commission.
Sadye E. Dunn,
Secretary, Consumer Product Safety Commission.
[FR Doc. 96-28289 Filed 11-1-96; 8:45 am]
BILLING CODE 6355-01-M