First Learning Company Limited – Provisional Acceptance of a Settlement Agreement and Order, CSPC Docket
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38406 Federal Register/Vol. 74, No. 147/Monday, August 3, 2009/Notices 16 CFR 1118.20(e). In accordance with 16 M. Reza Malihi, the Office of the Secretary by August 18, CFR 1118.20(f), if the Commission does not Trial Attorney, Office of the General Counsel. 2009. receive any written request not to accept the By: lllllllllllllllllll ADDRESSES: Persons wishing to Agreement within fifteen (15) days, the Neal S. Cohen, comment on this Settlement Agreement Agreement shall be deemed finally accepted should send written comments to the on the sixteenth (16th) day after the date it United States of America—Consumer Comment 09–C0026, Office of the is published in the Federal Register. Product Safety Commission 18. Upon the Commission’s final Secretary, Consumer Product Safety acceptance of the Agreement and issuance of In the Matter of Downeast Concepts, Inc., Commission, 4330 East West Highway, the final Order, Downeast knowingly, CPSC Docket No. 09–C0022. Room 502, Bethesda, Maryland 20814– voluntarily, and completely waives any 4408. Order rights it may have in this matter to the FOR FURTHER INFORMATION CONTACT: M. following: (1) An administrative or judicial Upon consideration of the Settlement Reza Malihi, Trial Attorney, Division of hearing; (2) judicial review or other challenge Agreement entered into between Downeast Compliance, Office of the General or contest of the validity of the Commission’s Concepts, Inc. (‘‘Downeast’’) and the U.S. Counsel, ...
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38406
Federal Register/ Vol.74, No. 147/ Notices/ Monday,August 3, 2009
16 CFR 1118.20(e). In accordance with 16M. Reza Malihi, the Office of the Secretary by August 18, CFR 1118.20(f), if the Commission does notTrial Attorney, Office of the General Counsel. 2009. receive any written request not to accept the By:lllllllllllllllllll ADDRESSES:Persons wishing to Agreement within fifteen (15) days, the Neal S. Cohen, comment on this Settlement Agreement Agreement shall be deemed finally accepted Trial Attorney, Office of the General Counsel. should send written comments to the on the sixteenth (16th) day after the date it United States of America—ConsumerComment 09–C0026, Office of the is published in theFederal Register. Product Safety Commission 18. Upon the Commission’s finalSecretary, Consumer Product Safety acceptance of the Agreement and issuance ofIn the Matter of Downeast Concepts, Inc.,Commission, 4330 East West Highway, the final Order, Downeast knowingly,CPSC Docket No. 09–C0022.Room 502, Bethesda, Maryland 20814– voluntarily, and completely waives any 4408. Order rights it may have in this matter to the FOR FURTHER INFORMATION CONTACT:M. following: (1) An administrative or judicialUpon consideration of the Settlement Reza Malihi, Trial Attorney, Division of hearing; (2) judicial review or other challengeAgreement entered into between Downeast Compliance, Office of the General or contest of the validity of the Commission’sConcepts, Inc. (‘‘Downeast’’) and the U.S. Counsel, Consumer Product Safety Order or actions; (3) a determination by theConsumer Product Safety Commission Commission of whether Downeast failed to(‘‘Commission’’) staff, and the CommissionCommission, 4330 East West Highway, comply with the CPSA and its underlyinghaving jurisdiction over the subject matterBethesda, Maryland 20814–4408; regulations; (4) a statement of findings of factand over Downeast, and it appearing that the telephone (301) 504–7733. and conclusions of law; and (5) any claimsSettlement Agreement and Order are in the SUPPLEMENTARY INFORMATION:The text of under the Equal Access to Justice Act.public interest, it is the Agreement and Order appears 19. The Commission may publicize theOrdered,that the Settlement Agreement be, below. terms of the Agreement and Order.and hereby is, accepted; and it is 20. The Agreement and Order shall applyFurther ordered,that Downeast shall pay aDated: July 28, 2009. to, and be binding upon, Downeast and eachcivil penalty in the amount of thirty Todd A. Stevenson, of its successors and assigns.thousand dollars ($30,000.00). The civil Secretary. 21. The Commission issues the Orderpenalty shall be paid within twenty (20) under the provisions of the CPSA, andcalendar days of service of the Commission’sUnited States of America—Consumer violation of the Order may subject Downeastfinal Order accepting the Agreement. TheProduct Safety Commission and each of its successors and assigns topayment shall be made by check payable to In the Matter of First Learning Company appropriate legal action.the order of the United States Treasury. Upon Limited CPSC Docket No.09–C0026. 22. The Agreement may be used inthe failure of Downeast to make the foregoing Settlement Agreement and Order interpreting the Order. Understandings,payment when due, interest on the agreements, representations, oroutstanding balance shall accrue and be paid 1. In accordance with 16 CFR 1118.20, interpretations apart from those contained inby Downeast at the Federal legal rate of First Learning Company Limited (‘‘First the Agreement and Order may not be used tointerest set forth at 28 U.S.C. 1961(a) and (b). Learning’’) and the staff (‘‘Staff’’) of the vary or contradict its terms. The Agreement Provisionally accepted and provisionalUnited States Consumer Product Safety shall not be waived, amended, modified, or Order issued on the8thday ofJuly,2009. Commission(‘‘CPSC’’or the ‘‘Commission’’) otherwise altered, except in a writing that is enter into this Settlement Agreement By Order of the Commission. executed by the party against whom such (‘‘Agreement’’). The Agreement and the Todd A. Stevenson, waiver, amendment, modification, or incorporated attached Order (‘‘Order’’) settle Secretary, U.S. Consumer Product Safety alteration is sought to be enforced.the Staff’s allegations set forth below. Commission. 23. If any provision of the Agreement and Parties Order is held to be illegal, invalid, or[FR Doc. E9–18520 Filed 7–31–09; 8:45 am] unenforceable under present or future lawsBILLING CODE 6355–01–P2. The Commission is an independent effective during the terms of the AgreementFederal regulatory agency established and Order, such provision shall be fullypursuant to, and responsible for the severable. The balance of the Agreement andenforcement of, the Consumer Product Safety CONSUMER PRODUCT SAFETY Order shall remain in full force and effect,Act, 15 U.S.C. 2051–2089 (‘‘CPSA’’). COMMISSION unless the Commission and Downeast agree3. First Learning is a corporation organized that severing the provision materially affects[CPSC Docket No. 09–C0026]and existing under the laws of Hong Kong, the purpose of the Agreement and Order.People’s Republic of China (PRC), with its First Learning Company Limited,principal offices located in Kowloon, Hong Downeast Concepts, Inc. Kong, PRC. First Learning’s network of Provisional Acceptance of a Dated: 3/18/09. manufacturer representatives conduct Settlement Agreement and Order By:lllllllllllllllllll business on its behalf through offices located Frederick H. Palmer, AGENCY:Consumer Product Safetyin the United States. At all times relevant President, Downeast Concepts, Inc., 86 hereto, First Learning manufactured and/or Commission. Downeast Drive, Yarmouth, ME 04096. sold toys and other children’s products, ACTION:Notice. Dated: 3/20/09. among other merchandise. By:lllllllllllllllllll SUMMARY:It is the policy of the Staff Allegations David W. Bertoni, Esq., Commission to publish settlements Brann & Isaacson, 184 Main Street, P.O. Box4. Between April 2006 and August 2006, which it provisionally accepts under the 3070, Lewiston, ME 04243, Counsel forFirst Learning manufactured in China for sale Consumer Product Safety Act in the Downeast Concepts, Inc.in the United States about 9,400 units of Federal Registerin accordance with the U.S. Consumer Product Safety Commissioncertain ‘‘Soldier Bear’’ toys, including the terms of 16 CFR 1118.20(e). PublishedSoldier Bear Wooden PullAlong Learning Staff. below is a provisionallyacceptedBlocks Wagon, style number 6320, UPC code Cheryl A. Falvey, number 834162002158; the Soldier Bear Settlement Agreement with First General Counsel, Office of the General Time Teacher, style #6231, UPC Counsel.Learning Company Limited, containing #834162002646; and the Soldier Bear a civil penalty of $50,000.00. Ronald G. Yelenik, Wooden Riding Horse, style number 6349, Assistant General Counsel, Office of the DATES:Any interested person may ask and UPC code number 834162003698 General Counsel. the Commission not to accept this (collectively, ‘‘Soldier Bear Toy(s)’’). From Dated: 4/14/09. agreement or otherwise comment on itsAugust 2006 through October 2007, First By:lllllllllllllllllllcontents by filing a written request withLearning offered the Soldier Bear Toys for
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Federal Register/ Notices/ Monday,August 3, 200974, No. 147/ Vol.
sale or sold them to a retailer, which, in turn, offered for sale or sold these products to consumers. 5. Beginning in or before October 2006, First Learning manufactured in China for sale in the United States about 15,000 units of certain Big Wooden Learning Blocks and Jumbo Wooden Train Sets. The Big Wooden Learning Blocks consisted of 30 or 60 block pieces, sold as either the Big Wooden Learning Blocks (30 pieces), style number 7210, UPC code number 14559211, or the Big Wooden Learning Blocks (60 pieces), style number 7211, UPC code number 14559235 (collectively, the ‘‘Learning Block(s)’’). The Jumbo Wooden Train Sets consisted of 70 wooden pieces, sold as style number 13275A, and UPC code number 14217340 (‘‘Train Set(s)’’). From October 2006 through November 2007, First Learning offered the Learning Blocks and Train Sets for sale or sold them to a retailer, which, in turn, offered for sale or sold these products to consumers. 6. The Soldier Bear Toys, Learning Blocks, and Train Sets are ‘‘consumer product(s),’’ and, at all times relevant hereto, First Learning was a ‘‘manufacturer’’ of those consumer product(s), which were ‘‘distributed in commerce,’’ as those terms are defined in CPSA sections 3(a)(3), (5), (8), and (11), 15 U.S.C. §§ 2052(a)(3), (5), (8), and (11). 7. The Soldier Bear Toys, Learning Blocks, and Train Sets are articles intended to be entrusted to or for use by children, and, therefore, are subject to the requirements of the Commission’s Ban of LeadContaining Paint and Certain Consumer Products Bearing LeadContaining Paint, 16 CFR part 1303 (the ‘‘Ban’’). Under the Ban, toys and other children’s articles must not bear ‘‘lead containing paint,’’ defined as paint or other surface coating materials whose lead content is more than 0.06 percent of the weight of the total nonvolatile content of the paint or the weight of the dried paint film. 16 CFR 1303.2(b)(1). 8. In October and November 2007, the Staff obtained the results of testing conducted by an independent testing laboratory, showing that multiple samples of the Soldier Bear Toys failed to comply with the Ban. The testing demonstrated that the red surface coating on certain components of the Soldier Bear Wooden PullAlong Learning Blocks Wagon contained a total lead content of 1,400 mg/kg; that the black, green, orange, and red surface coatings on certain components of the Soldier Bear Time Teacher contained a total lead content from 820 mg/kg to 13,000 mg/ kg; and that the orange/yellow surface coating on the Soldier Bear Wooden Riding Horse contained a total lead content of 18,000 mg/kg. These levels of lead are in excess of the permissible 0.06 percent limit set forth in the Ban. First Learning learned of these failing test results shortly after completion of this testing. 9. On October 15, 2007, the Staff obtained samples of the Learning Blocks and Train Sets from a retail store. In November 2007, the staff tested these samples. The testing demonstrated that the orange paint on a component of the Big Wooden Learning Blocks (30 pieces) contained a total lead content of 2.633 percent; that orange paint on
a component of the Big Wooden Learning Blocks (60 pieces) contained a total lead content of 0.07 percent; and that yellow paint on a component of the Train Set contained a total lead content of 0.065 percent. These levels of lead are in excess of the permissible 0.06 percent limit set forth in the Ban. Through contacts with the retailer and/or the staff, First Learning learned of these failing test results shortly after completion of this testing. 10. On December 19, 2007, the Commission and the retailer announced a consumerlevel recall of products, including, but not limited to, about 9,400 Soldier Bear Toys, because ‘‘[t]he surface paint on the toys contains excessive levels of lead, violating the Federal lead paint standard.’’ 11. On January 24, 2008, the Commission and the retailer announced a consumerlevel recall of about 15,000 units of the Learning Blocks and Train Sets because ‘‘[s]urface paint on some pieces of the toys contains excessive levels of lead, violating the Federal lead paint standard.’’ 12. Although no incidents or injuries were reported by First Learning or the retailers in connection with the Soldier Bear Toys, Learning Blocks and Train Sets, First Learning failed to take adequate action to ensure that none would bear or contain lead containing paint, thereby creating a risk of lead poisoning and adverse health effects to children. 13. The Soldier Bear Toys, Learning Blocks and Train Sets constitute ‘‘banned hazardous products’’ under CPSA section 8 and the Ban, 15 U.S.C. 2057 and 16 CFR 1303.1(a)(1), 1303.4(b), in that they bear or contain paint or other surface coating materials whose lead content exceeds the permissible limit of 0.06 percent of the weight of the total nonvolatile content of the paint or the weight of the dried paint film. 14. Between April 2006 and November 2007, First Learning sold, manufactured for sale, offered for sale, or distributed in commerce in the United States, or caused one or more of such acts, with respect to the Soldier Bear Toys, Learning Blocks and Train Sets, in violation of section 19(a)(1) of the CPSA, 15 U.S.C. 2068(a)(1). First Learning committed these prohibited acts ‘‘knowingly,’’ as that term is defined in section 20(d) of the CPSA, 15 U.S.C. 2069(d). 15. Pursuant to section 20 of the CPSA, 15 U.S.C. 2069, First Learning is subject to civil penalties for the aforementioned violations. First Learning Response 16. First Learning denies the Staff’s allegations set forth above that First Learning knowingly violated the CPSA. Agreement of the Parties 17. Under the CPSA, the Commission has jurisdiction over this matter and over First Learning. 18. The parties enter into the Agreement for settlement purposes only. The Agreement does not constitute an admission by First Learning, or a determination by the Commission, that First Learning has knowingly violated the CPSA. 19. In settlement of the Staff’s allegations, First Learning shall pay a civil penalty in the
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amount of fifty thousand dollars ($50,000.00). The civil penalty shall be paid in three (3) installments as follows: $10,000.00 shall be paid within thirty (30) calendar days of service of the Commission’s final Order accepting the Agreement; $15,000.00 shall be paid within one hundred and twenty (120) calendar days of service of the Commission’s final Order accepting the Agreement; and $25,000.00 shall be paid within one hundred and eighty (180) calendar days of service of the Commission’s final Order accepting the Agreement. Each payment shall be made by check payable to the order of the United States Treasury. 20. Upon the Commission’s provisional acceptance of the Agreement, the Agreement shall be placed on the public record and published in theFederal Registerin accordance with the procedures set forth in 16 CFR 1118.20(e). In accordance with 16 CFR 1118.20(f), if the Commission does not receive any written request not to accept the Agreement within fifteen (15) days, the Agreement shall be deemed finally accepted on the sixteenth (16th) day after the date it is published in theFederal Register. 21. Upon the Commission’s final acceptance of the Agreement and issuance of the final Order, First Learning knowingly, voluntarily, and completely waives any rights it may have in this matter to the following: (1) An administrative or judicial hearing; (2) judicial review or other challenge or contest of the validity of the Commission’s Order or actions; (3) a determination by the Commission of whether First Learning failed to comply with the CPSA and its underlying regulations; (4) a statement of findings of fact and conclusions of law; and (5) any claims under the Equal Access to Justice Act. 22. The Commission may publicize the terms of the Agreement and Order. 23. The Agreement and Order shall apply to, and be binding upon, First Learning and each of its successors and assigns. 24. The Commission issues the Order under the provisions of the CPSA, and violation of the Order may subject First Learning to appropriate legal action. 25. The Agreement may be used in interpreting the Order. Understandings, agreements, representations, or interpretations apart from those contained in the Agreement and Order may not be used to vary or contradict its terms. The Agreement shall not be waived, amended, modified, or otherwise altered, except in a writing that is executed by the party against whom such waiver, amendment, modification, or alteration is sought to be enforced. 26. If any provision of the Agreement and Order is held to be illegal, invalid, or unenforceable under present or future laws effective during the terms of the Agreement and Order, such provision shall be fully severable. The balance of the Agreement and Order shall remain in full force and effect, unless the Commission and First Learning agree that severing the provision materially affects the purpose of the Agreement and Order. First Learning Company Limited. Dated: 12/10/2008. By:lllllllllllllllllll Leung Suk Yue,
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Federal Register74, No. 147/ Vol./ NoticesAugust 3, 2009/ Monday,
Secretary and Director, First LearningParties CONSUMER PRODUCT SAFETY Company Limited, Room 401, 4th Floor, COMMISSION2. The Commission is an independent Block A, Sun Fung Centre, 88 Kwok Shui federal regulatory agency established Road, Kwai Hing, Hong Kong. pursuant to, and responsible for the [CPSC Docket No. 09–C0027] Dated: 12/12/2008. enforcement of, the Consumer Product Safety By:lllllllllllllllllllAct, 15 U.S.C. 2051–2089 (‘‘CPSA’’). A&A Global Industries, Inc., Bob Casey, Esq.,3. A&A is a corporation organized and Provisional Acceptance of a 1205 NW 25th Avenue, Portland, OR 97210–existing under the laws of Maryland, with its Settlement Agreement and Order 2422, Counsel for First Learning Companyprincipal office located in Cockeysville, Limited.Maryland. At all times relevant hereto, A&A AGENCY:Consumer Product Safety imported and/or distributed in commerce toy U.S. Consumer Product Safety Commission Commission.jewelry. Staff. ACTION:Notice. Cheryl A. Falvey,Staff Allegations General Counsel, Office of the General 4. From approximately January 2005 to Counsel.SUMMARY:It is the policy of the March 2007, A&A imported and/or Ronald G. Yelenik,Commission to publish settlements distributed about 3.95 million units of which it provisionally accepts under thechildren’s ‘‘Groovy Grabber’’ bracelets Assistant General Counsel, Division of Compliance, Office of the General Counsel. Consumer Product Safety Act in the(‘‘Bracelets’’), which ultimately were sold to Dated: 3/6/09.Federal Registerin accordance with theconsumers in vending machines located in malls, discount, department and grocery By:lllllllllllllllllllterms of 16 CFR 1118.20(e). Published stores nationwide from November 2005 to M. Reza Malihi,below is a provisionallyaccepted March 2007 for $.25 per unit. Trial Attorney, Division of Compliance, Settlement Agreement with A&A Global 5. The Bracelets are ‘‘consumer Office of the General Counsel. Industries, Inc., containing a civil product(s),’’ and, at all times relevant hereto, penalty of $40,000.00. United States of America—ConsumerA&A was an ‘‘importer’’ and/or ‘‘distributor’’ Product Safety Commissionof those consumer product(s), which were DATES:Any interested person may ask ‘‘distributed in commerce,’’ as those terms In the Matter of First Learning Company the Commission not to accept this are defined in CPSA sections 3(a)(5), (7), (8), Limited, CPSC Docket No.09–C0026. agreement or otherwise comment on its (9), and (11), 15 U.S.C. 2052(a)(5), (7), (8), (9), contents by filing a written request with Order and (11). the Office of the Secretary by August 18, 6. The Bracelets are articles intended to be Upon consideration of the Settlement 2009.entrusted to or for use by children, and, Agreement entered into between First therefore, are subject to the requirements of Learning Company Limited (‘‘First ADDRESSES:Persons wishing to the Commission’s Ban of LeadContaining Learning’’) and the U.S. Consumer Product comment on this Settlement Agreement Paint and Certain Consumer Products Safety Commission (‘‘Commission’’) staff, should send written comments to the Bearing LeadContaining Paint, 16 CFR Part and the Commission having jurisdiction over Comment 09–C0027, Office of the 1303 (the ‘‘Ban’’). Under the Ban, toys and the subject matter and over First Learning, Secretary, Consumer Product Safetyother children’s articles must not bear ‘‘lead and it appearing that the Settlement Commission, 4330 East West Highway,containing paint,’’ defined as paint or other Agreement and Order are in the public surface coating materials whose lead content interest, it isRoom 502, Bethesda, Maryland 20814– is more than 0.06 percent of the weight of the Ordered,that the Settlement Agreement be, 4408. total nonvolatile content of the paint or the and hereby is, accepted; and it is FOR FURTHER INFORMATION CONTACT:M. Further ordered,that First Learning shallweight of the dried paint film. 16 CFR Reza Malihi, Trial Attorney, Division of pay a civil penalty in the amount of fifty1303.2(b)(1) thousand dollars ($50,000.00). The civilCompliance, Office of the General7. On February 2, 2007, the Staff obtained penalty shall be paid in three (3) installmentsCounsel, Consumer Product SafetyBracelet samples from one of A&A’s as follows: $10,000.00 shall be paid withincustomers based in New York, which Commission, 4330 East West Highway, thirty (30) calendar days of service of thesubsequently were tested at the CPSC Bethesda, Maryland 20814–4408; Commission’s final Order accepting theLaboratory for the presence of lead. The test telephone (301) 504–7733 or Renee K. Agreement; $15,000.00 shall be paid withinresults demonstrated that the yellow paint on Haslett, Trial Attorney, (same address); one hundred and twenty (120) calendar dayscertain Bracelet samples contained a total telephone (301) 504–7673. of service of the Commission’s final Orderlead content from 7.114 percent to 7.742 accepting the Agreement; and $25,000.00percent. These levels of lead are in excess of SUPPLEMENTARY INFORMATION:The text of shall be paid within one hundred and eightythe permissible 0.06 percent limit set forth in the Agreement and Order appears (180) calendar days of service of thethe Ban. below. Commission’s final Order accepting the8. On April 3, 2007, the Commission and Dated: July 28, 2009. Agreement. Each payment shall be made byA&A announced a consumerlevel recall of check payable to the order of the UnitedTodd A. Stevenson,about four million units of the Bracelets States Treasury. Upon the failure of Firstbecause ‘‘[t]he paint on the metallic band Secretary. Learning to make any of the foregoingbeneath the decorative cover contains high United States of America, Consumer Product payments when due, (i) the entire amount oflevels of lead. Lead is toxic if ingested by Safety Commission the civil penalty shall become due andyoung children and can cause adverse health payable, and (ii) interest on the outstandingIn the Matter of A&A Global Industries,effects.’’ balance shall accrue and be paid by First Inc. 9.Although A&A reported no incidents or Learning at the Federal legal rate of interest injuries associated with the Bracelets, it Settlement Agreement and Order set forth at 28 U.S.C. 1961(a) and (b). failed to take adequate action to ensure that Provisionally accepted and provisional1. In accordance with 16 CFR 1118.20,none would bear or contain leadcontaining Order issued on the8thday ofJuly,2009. A&AGlobal Industries, Inc. (‘‘A&Apaint, thereby creating a risk of lead’’) and the staff (‘‘Staffpoisoning and adverse health effects to’’) of the United States Consumer By Order of the Commission. Product Safety Commission (‘‘CPSCchildren.’’ or the Todd A. Stevenson, ‘‘Commission’’) enter into this Settlement10. The Bracelets constitute ‘‘banned Secretary, U.S. Consumer Product Safety Agreement (‘‘Agreementhazardous products’’ under CPSA section 8’’). The Agreement Commission. and the incorporated attached Orderand the Ban, 15 U.S.C. 2057 and 16 CFR [FR Doc. E9–18514 Filed 7–31–09; 8:45 am] (‘‘Order1303.1(a)(1), 1303.4(b), in that they bear or’’) settle the Staff’s allegations set BILLING CODE 6355–01–Pcontain paint or other surface coatingforth below.
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