[Federal Register Volume 60, Number 136 (Monday, July 17, 1995)]
[Notices]
[Pages 36402-36405]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-17376]



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CONSUMER PRODUCT SAFETY COMMISSION

[CPSC Docket No. 95-C0013]


Howland Caribbean Corporation, 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 Howland Caribbean Corporation, 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 August 1, 1995.

ADDRESSES: Persons wishing to comment on this Settlement Agreement 
should send written comments to the Comment 95-C0013, 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: July 10, 1995.
Sadye E. Dunn,
Secretary.

[CPSC Docket No. 95-C0013]

Settlement Agreement and Order

    In the Matter of Howland Caribbean Corporation a corporation.

    1. Howland Caribbean Corporation (hereinafter, ``Howland''), a 
corporation, enters into this Settlement Agreement and Order 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 and Order is to settle the staff's allegations that Howland 
knowingly caused the introduction into interstate commerce of certain 
banned hazardous toys and rattles, in violation of section 4(a) of the 
Federal Hazardous Substances Act, 15 U.S.C. 1263(a).

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 CPSA, 15 U.S.C. 2053.
    3. Howland is a corporation organized and existing under the laws 
of the Commonwealth of Puerto Rico, since 1972, with its principal 
corporate offices located at 1679 Ponce De Leon, Santurce, Puerto Rico 
00909. The firm also has an office in Ridgefield, Connecticut. Howland 
imports and distributes housewares and toys in Puerto Rico, and sells 
those products in Puerto Rico. Approximately 45 percent of its sales 
are from toys.

II. Allegations of the Staff

A. Toys

    4. On eight occasions between July 23, 1991, and October 10, 1993, 
Howland caused the introduction into interstate commerce of 10 kinds of 
toys consisting of approximately 6,600 units intended for use by 
children under 3 years of age. All the toys were purchased through same 
exporter, Swatow International, Ltd., but were manufactured by, and 
purchased from, different manufacturers. These toys are identified and 
described below:

------------------------------------------------------------------------
       Sample No.                 Product           Entry date    Units 
------------------------------------------------------------------------
M-807-1704..............  Happy Loco.............      07/23/91      480
P-807-2057..............  Pull-Along-Funny             09/17/91      720
                           Telephone.                                   
P-807-2068..............  Old Timer Car Pull Toy.      10/06/91       72
P-807-2081..............  Choo Choo Phone........      10/17/91       96
P-807-2082..............  Push Telephone.........      10/17/91      480
R-800-2050..............  Happy Hippo Trolley Car      08/17/92       72
R-800-2051..............  Funny Plane............      08/17/92      360
R-800-2718..............  Musical Sand Buggy.....      07/10/93      360
R-800-2722..............  Maracas................      07/14/93     2880
R-800-2086; R-800-2087;   Press-Go-Mobile Toys         10/10/93     1080
 R-800-2088.               (Police Car, Fire                            
                           Truck, and Pick-Up                           
                           Truck).                                      
------------------------------------------------------------------------

    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 tested 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 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).
    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. 1261(f)(1)(D).
    8. Each of the toys identified in paragraph 4 above is a ``banned 
hazardous substance'' pursuant to (a) section 2(q)(1)(A) of the FHSA, 
15 U.S.C. 1261(q)(1)(A) (any toy or other article intended for use by 
children which bears or contains a hazardous substance); and (b) 16 CFR 
Sec. 1500.18(a)(9).
    9. Howland knowingly caused the introduction into interstate 
commerce of the aforesaid banned hazardous toys, in 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).

B. Baby Rattles

    10. On October 17, 1991, Howland caused the introduction into 
interstate commerce of 1,296 units of a plastic baby rattle 
(``Rattle''), purchased through Swatow International, Ltd. (Sample No. 
P-807-2083).
    11. When tested under the methods and procedures prescribed in 16 
CFR Sec. 1500.51, the handle of the rattle entered and penetrated the 
full depth of the cavity of the test fixture specified in 16 CFR 
Sec. 1510.4.

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    12. Pursuant 16 CFR Sec. 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 Sec. 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 Sec. 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. Howland knowingly caused 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).

III. Response of Howland Caribbean Corporation

    16. Howland denies the allegations of the staff set forth in 
paragraphs 4 through 15, and alleges that it never knowingly introduced 
or caused the introduction into interstate commerce of banned hazardous 
toys and rattles in violation of the FHSA, as alleged by the staff. 
Howland further alleges that in each instance specified in paragraphs 4 
and 10, above, the firm acted on a reasonable belief either that each 
product was not intended for children under the age of three or that it 
otherwise complied with the CPSC's safety standards. Howland further 
alleges that in each instance, the firm fully cooperated with the staff 
and took the necessary actions to assure that none of the toys or 
rattles were distributed in the Commonwealth of Puerto Rico, or in the 
United States.

IV. Agreement of the Parties

    17. The Consumer Product Safety Commission has jurisdiction over 
Howland 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.
    18. The Commission does not make any determination that Howland 
knowingly violated the FHSA or the CPSA. The Commission and Howland 
agree that this Agreement is entered into for the purposes of 
settlement only; does not constitute an admission by Howland that it 
knowingly violated the FHSA; and, upon final acceptance by the 
Commission, shall settle finally all allegations by the staff of 
violations of the FHSA by Howland of which the staff has knowledge as 
of the date of execution of this Settlement Agreement.
    19. 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 shall be deemed finally 
accepted on the 16th day after the date it is published in the Federal 
Register.
    20. Upon final acceptance by the Commission of this Settlement 
Agreement and Order, the Commission shall issue the attached Order.
    21. Upon final acceptance this Settlement Agreement and Order and 
the issuance of the Final Order by the Commission, Howland 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 Howland 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.
    22. 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.
    23. A violation of the Order shall subject Howland to appropriate 
legal action.
    24. Agreements, understandings, representations, or interpretations 
made outside of this Settlement Agreement and Order may not be used to 
vary or to contradict its terms.
    25. The provisions of the Settlement Agreement and Order shall 
apply to Howland and each of its successors and assigns.

Respondent Howland Caribbean Corporation.

    Dated: June 5, 1995.

    By:
T.G. Howland,
President, Howland Caribbean Corporation.

Commission Staff.

David Schmeltzer,
Assistant Executive Director, Office of Compliance.
Eric L. Stone,
Acting Director, Division of Administrative Litigation, Office of 
Compliance.

    Dated: June 12, 1995.

    By:
Earl A. Gershenow,
Trial Attorney, Division of Administrative Litigation, Office of 
Compliance.

[CPSC Docket No. 95-C0013]

Order

    In the Matter of Howland Caribbean Corporation, a corporation.

    Upon consideration of the Settlement Agreement entered into between 
respondent Howland Caribbean Corporation, a corporation, and the staff 
of the Consumer Product Safety Commission; and the Commission having 
jurisdiction over the subject matter and Howland Caribbean Corporation; 
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, Howland Caribbean Corporation shall pay to the 
Commission a civil penalty in the amount of seventy-five thousand 
dollars and 00/100 ($75,000.00) in three payments: Twenty-five thousand 
and 00/100 dollars ($25,000.00) within twenty (20) days after service 
on Howland Caribbean Corporation of the Final Order accepting the 
Settlement Agreement, twenty-five thousand and 00/100 dollars 
($25,000.00) within one year from the date of the first payment, and 
twenty-five thousand and 00/100 dollars ($25,000.00) within two years 
from the date of the first payment. Payment of the full amount of the 
civil penalty shall settle fully the staff's allegations set forth in 
paragraphs 5 through 16 of the Settlement Agreement and Order that 
Howland Caribbean Corporation violated the FHSA. Upon failure by 
Howland Caribbean Corporation to make payment or upon the making of a 
late payment by Howland Caribbean Corporation (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 

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interest under the provisions of 28 U.S.C. 1961 (a) and (b).
    Provisionally accepted and Provisional Order issued on the 10th day 
of July, 1995.

    By Order of the Commission.
Sadye E. Dunn,
Secretary, Consumer Product Safety Commission.
[FR Doc. 95-17376 filed 7-14-95; 8:45 am]
BILLING CODE 6355-01-M