[Federal Register Volume 61, Number 214 (Monday, November 4, 1996)]
[Notices]
[Pages 56669-56673]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-28289]


-----------------------------------------------------------------------

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