[Federal Register Volume 74, Number 129 (Wednesday, July 8, 2009)]
[Notices]
[Pages 32574-32578]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-16013]


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CONSUMER PRODUCT SAFETY COMMISSION

[CPSC Docket No. 09-C0020]


OKK Trading, Inc., Provisional Acceptance of a Settlement 
Agreement and Order

AGENCY: Consumer Product Safety Commission.

ACTION: Notice.

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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). 
Published below is a provisionally-accepted Settlement Agreement with 
OKK Trading, Inc., containing a civil penalty of $665,000.00.

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 July 23, 2009.

ADDRESSES: Persons wishing to comment on this Settlement Agreement 
should send written comments to the Comment 09-C0020, Office of the 
Secretary, Consumer Product Safety Commission, 4330 East-West Highway, 
Room 502, Bethesda, Maryland 20814-4408.

FOR FURTHER INFORMATION CONTACT: Seth B. Popkin, Lead Trial Attorney, 
Division of Compliance, Office of the General Counsel, Consumer Product 
Safety Commission, 4330 East-West Highway, Bethesda, Maryland 20814-
4408; telephone (301) 504-7612.

SUPPLEMENTARY INFORMATION: The text of the Agreement and Order appears 
below.

    Dated: June 29, 2009.
Todd A. Stevenson,
Secretary.
In the Matter of OKK Trading, Inc.:

Settlement Agreement

    1. In accordance with 16 CFR 1118.20, OKK Trading, Inc. (``OKK'') 
and the staff (``Staff'') of the United States Consumer Product Safety 
Commission (``Commission'') enter into this Settlement Agreement 
(``Agreement''). The Agreement and the incorporated attached Order 
(``Order'') settle the Staff's allegations set forth below.

Parties

    2. The Commission is an independent federal regulatory agency 
established pursuant to, and responsible for the enforcement of, the 
Consumer Product Safety Act, 15 U.S.C. 2051-2089 (``CPSA''). The 
Commission is also responsible for the enforcement of the Federal 
Hazardous Substances Act, 15 U.S.C. 1264-1278 (``FHSA'').
    3. OKK is a corporation organized and existing under the laws of 
California, with its principal offices located in Commerce, California. 
At all times relevant hereto, OKK sold toys and other children's 
articles.

[[Page 32575]]

Staff Allegations--Violation of the Lead Paint Ban

    4. The Ban of Lead-Containing Paint and Certain Consumer Products 
Bearing Lead-Containing Paint, found at 16 CFR Part 1303 (``Lead Paint 
Ban''), bans toys and other children's articles that bear or contain 
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 of the weight of the dried paint film. Pursuant to CPSA 
section 8, 15 U.S.C. 2057, and 16 CFR 1303.1(a)(1) and 1303.4(b), a 
product that fails to comply with this regulation is a ``banned 
hazardous product.''
    5. From approximately November 2007 through August 2008, OKK 
imported into the United States, offered for sale, and distributed in 
commerce, units of different types of toys or other children's articles 
that violated the Lead Paint Ban. OKK provided the Commission staff 
with information about these violative toys or other children's 
articles, and, thereafter, the Commission staff accepted OKK's 
corrective action plans concerning them. The toys or other children's 
articles referred to in this paragraph are collectively referred to 
herein as ``Painted Toys.''
    6. Tests on samples of the Painted Toys demonstrated that the 
Painted Toys bore or contained 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 of the weight of the dried paint 
film. Therefore, the Painted Toys failed to comply with the Lead Paint 
Ban.
    7. The Painted Toys are ``consumer product[s],'' and, at all times 
relevant hereto, OKK was a ``manufacturer'' of those consumer products, 
which were ``distributed in commerce,'' as those terms are defined in 
CPSA sections 3(a)(5), (8), and (11), 15 U.S.C. 2052(a)(5), (8), and 
(11).
    8. OKK informed the Commission that it had received no reports of 
incidents or injuries relating to the Painted Toys.
    9. Pursuant to CPSA section 8, 15 U.S.C. 2057, and 16 CFR 
1303.1(a)(1) and 1303.4(b), the Painted Toys are ``banned hazardous 
products.''
    10. Under CPSA section 19(a)(1), 15 U.S.C. 2068(a)(1), the offer 
for sale, distribution in commerce, or importation into the United 
States of a banned hazardous product is a prohibited act.
    11. Under CPSA section 20(d), 15 U.S.C. 2069(d), OKK had actual 
knowledge that the Painted Toys were banned hazardous products, or it 
is presumed to have had knowledge deemed to be possessed by a 
reasonable person acting in the circumstances, and, therefore, OKK 
knowingly committed prohibited acts concerning the Painted Toys. 
Pursuant to CPSA section 20, 15 U.S.C. 2069, OKK's prohibited acts 
concerning the Painted Toys subjected it to civil penalties.

Violation of the Small Parts Regulation

    12. From approximately December 2004 through August 2008, OKK 
introduced and/or delivered for introduction into interstate commerce, 
received in interstate commerce, and/or delivered or proffered delivery 
for pay or otherwise, units of different types of toys, intended for 
use by children under three years of age, that failed to comply with 
the Commission's Small Parts Regulation at 16 CFR Part 1501. OKK 
provided the Commission staff with information about these violative 
toys, and, thereafter, the Commission staff accepted OKK's corrective 
action plans concerning them. The toys referred to in this paragraph 
are collectively referred to herein as ``Toys.''
    13. The Toys failed to comply with 16 CFR Part 1501 in that, when 
tested under the ``use and abuse'' test methods specified in 16 CFR 
1500.51 and .52, one or more parts of each tested Toy separated, and 
one or more of the separated parts fit completely within the small 
parts cylinder identified in 16 CFR 1501.4.
    14. OKK informed the Commission that it had received no reports of 
incidents or injuries relating to the Toys.
    15. Because each Toy failed to comply with the Commission's Small 
Parts Regulation at 16 CFR Part 1501, it presented a ``mechanical 
hazard'' within the meaning of FHSA section 2(s), 15 U.S.C. 1261(s), 
and was a ``hazardous substance'' in accordance with FHSA section 
2(f)(1)(D), 15 U.S.C. 1261(f)(1)(D).
    16. Under 16 CFR 1500.18(a)(9), each Toy presented an unreasonable 
risk of personal injury or illness and was a ``banned hazardous 
substance'' within the meaning of FHSA section 2(q)(1)(A), 15 U.S.C. 
1261(q)(1)(A).
    17. Under FHSA section 4(a), 15 U.S.C. 1263(a), the introduction or 
delivery for introduction into interstate commerce of any banned 
hazardous substance, or the causing thereof, is a prohibited act. Under 
FHSA section 4(c), 15 U.S.C. 1263(c), the receipt in interstate 
commerce, and the delivery or proffered delivery for pay or otherwise, 
of any banned hazardous substance, and the causing thereof, is a 
prohibited act.
    18. Under FHSA section 5(c)(5), 15 U.S.C. 1264(c)(5), OKK had 
actual knowledge that the Toys were banned hazardous substances, or it 
is presumed to have had knowledge deemed to be possessed by a 
reasonable person acting in the circumstances, and, therefore, OKK 
knowingly committed prohibited acts concerning the Toys. Pursuant to 
FHSA section 5(c)(1), 15 U.S.C. 1264(c)(1), OKK's prohibited acts 
concerning the Toys subjected it to civil penalties.

Violation of the Rattle Requirements

    19. From approximately November 2004 to January 2005, OKK 
introduced and/or delivered for introduction into interstate commerce, 
received in interstate commerce, and/or delivered or proffered delivery 
for pay or otherwise, units of different types of rattles that failed 
to comply with the Commission's requirements for rattles at 16 CFR Part 
1510. OKK provided the Commission staff with information about these 
violative rattles, and, thereafter, the Commission staff accepted OKK's 
corrective action plans concerning them. The rattles referred to in 
this paragraph are collectively referred to herein as ``Rattles.''
    20. The Rattles failed to comply with 16 CFR Part 1510 in that, 
when tested under the procedures set forth in 16 CFR 1510.4, the 
Rattles penetrated to the full depth of the test fixture.
    21. OKK informed the Commission that it had received no reports of 
incidents or injuries relating to the Rattles.
    22. Because each Rattle failed to comply with the Commission's 
requirements for rattles at 16 CFR Part 1510, it presented a 
``mechanical hazard'' within the meaning of FHSA section 2(s), 15 
U.S.C. 1261(s), and was a ``hazardous substance'' in accordance with 
FHSA section 2(f)(1)(D), 15 U.S.C. 1261(f)(1)(D).
    23. Under 16 CFR 1500.18(a)(15), each Rattle presented an 
unreasonable risk of personal injury or illness and was a ``banned 
hazardous substance'' within the meaning of FHSA section 2(q)(1)(A), 15 
U.S.C. 1261(q)(1)(A).
    24. Under FHSA section 4(a), 15 U.S.C. 1263(a), the introduction or 
delivery for introduction into interstate commerce of any banned 
hazardous substance, or the causing thereof, is a prohibited act. Under 
FHSA section 4(c), 15 U.S.C. 1263(c), the receipt in interstate 
commerce, and the delivery or proffered delivery for pay or otherwise, 
of any banned hazardous substance, and the causing thereof, is a 
prohibited act.
    25. Under FHSA section 5(c)(5), 15 U.S.C. 1264(c)(5), OKK had 
actual

[[Page 32576]]

knowledge that the Rattles were banned hazardous substances, or it is 
presumed to have had knowledge deemed to be possessed by a reasonable 
person acting in the circumstances, and, therefore, OKK knowingly 
committed prohibited acts concerning the Rattles. Pursuant to FHSA 
section 5(c)(1), 15 U.S.C. 1264(c)(1), OKK's prohibited acts concerning 
the Rattles subjected it to civil penalties.

Violation of the Toys and Games Labeling Requirements

    26. From approximately January 2005 through April 2007, OKK 
introduced and/or delivered for introduction into interstate commerce, 
received in interstate commerce, and/or delivered or proffered delivery 
for pay or otherwise, units of different types of toys and games, 
intended for children three years of age or older, that failed to 
comply with the Commission's labeling requirements for balloons, small 
balls, and/or small parts found in FHSA section 24(b)(2)(A), (b)(2)(B), 
and (b)(2)(C), 15 U.S.C. 1278(b)(2)(A), (b)(2)(B), and (b)(2)(C), 16 
CFR 1500.19(b)(2), (b)(3)(ii), (b)(4)(i), and (d). OKK provided the 
Commission staff with information about these violative toys and games, 
and, thereafter, the Commission staff accepted OKK's corrective action 
plans concerning them. The toys and games referred to in this paragraph 
are collectively referred to herein as ``Toys/Games.''
    27. OKK informed the Commission that it had received no reports of 
incidents or injuries relating to the Toys/Games.
    28. Each of the Toys/Games presented a ``mechanical hazard'' within 
the meaning of FHSA section 2(s), 15 U.S.C. 1261(s), and was a 
``hazardous substance'' in accordance with FHSA section 2(f)(1)(D), 15 
U.S.C. 1261(f)(1)(D).
    29. Under FHSA sections (3)(b) and 24(d), 15 U.S.C. 1262(b) and 
1278(d), each of the Toys/Games was a ``misbranded hazardous 
substance'' within the meaning of FHSA section 2(p), 15 U.S.C. 1261(p).
    30. Under FHSA section 4(a), 15 U.S.C. 1263(a), the introduction or 
delivery for introduction into interstate commerce of any misbranded 
hazardous substance, or the causing thereof, is a prohibited act. Under 
FHSA section 4(c), 15 U.S.C. 1263(c), the receipt in interstate 
commerce, and the delivery or proffered delivery for pay or otherwise, 
of any misbranded hazardous substance, and the causing thereof, is a 
prohibited act.
    31. Under FHSA section 5(c)(5), 15 U.S.C. 1264(c)(5), OKK had 
actual knowledge that the Toys/Games were misbranded hazardous 
substances, or it is presumed to have had knowledge deemed to be 
possessed by a reasonable person acting in the circumstances, and, 
therefore, OKK knowingly committed prohibited acts concerning the Toys/
Games. Pursuant to FHSA section 5(c)(1), 15 U.S.C. 1264(c)(1), OKK's 
prohibited acts concerning the Toys/Games subjected it to civil 
penalties.

Violation of the Art Materials Labeling Requirements

    32. From approximately September 2005 through April 2007, OKK 
introduced and/or delivered for introduction into interstate commerce, 
received in interstate commerce, and/or delivered or proffered delivery 
for pay or otherwise, units of different types of art materials that 
failed to comply with the labeling requirements for art materials found 
in FHSA section 23, 15 U.S.C. 1277. OKK provided the Commission staff 
with information about these violative art materials, and, thereafter, 
the Commission staff accepted OKK's corrective action plans concerning 
them. The art materials referred to in this paragraph are collectively 
referred to herein as ``Art Materials.''
    33. OKK informed the Commission that it had received no reports of 
incidents or injuries relating to the Art Materials.
    34. Each of the Art Materials presented a ``mechanical hazard'' 
within the meaning of FHSA section 2(s), 15 U.S.C. 1261(s), and was a 
``hazardous substance'' in accordance with FHSA section 2(f)(1)(D), 15 
U.S.C. 1261(f)(1)(D).
    35. Under FHSA sections (3)(b) and 23, 15 U.S.C. 1262(b) and 1277, 
each of the Art Materials was a ``misbranded hazardous substance'' 
within the meaning of FHSA section 2(p), 15 U.S.C. 1261(p).
    36. Under FHSA section 4(a), 15 U.S.C. 1263(a), the introduction or 
delivery for introduction into interstate commerce of any misbranded 
hazardous substance, or the causing thereof, is a prohibited act. Under 
FHSA section 4(c), 15 U.S.C. 1263(c), the receipt in interstate 
commerce, and the delivery or proffered delivery for pay or otherwise, 
of any misbranded hazardous substance, and the causing thereof, is a 
prohibited act.
    37. Under FHSA Sec.  5(c)(5), 15 U.S.C. 1264(c)(5), OKK had actual 
knowledge that the Art Materials were misbranded hazardous substances, 
or it is presumed to have had knowledge deemed to be possessed by a 
reasonable person acting in the circumstances, and, therefore, OKK 
knowingly committed prohibited acts concerning the Art Materials. 
Pursuant to FHSA section 5(c)(1), 15 U.S.C. 1264(c)(1), OKK's 
prohibited acts concerning the Art Materials subjected it to civil 
penalties.

Violation of the Pacifier Requirements

    38. From approximately July 2007 to January 2008, OKK introduced 
and/or delivered for introduction into interstate commerce, received in 
interstate commerce, and/or delivered or proffered delivery for pay or 
otherwise, units of a pacifier that failed to comply with the 
Commission's requirements for pacifiers at 16 CFR Part 1511. OKK 
provided the Commission staff with information about these violative 
pacifiers, and, thereafter, the Commission staff accepted OKK's 
corrective action plans concerning them. The pacifiers referred to in 
this paragraph are collectively referred to herein as ``Pacifiers.''
    39. The Pacifiers failed to comply with 16 CFR Part 1511 in that: 
(a) When tested under the procedures set forth in 16 CFR 1511.5, the 
Pacifiers released parts that fit completely within the small parts 
cylinder identified in 16 CFR 1511.5; and (b) the Pacifiers' packaging 
failed to contain the labeling statement required by 16 CFR 1511.7.
    40. OKK informed the Commission that it had received no reports of 
incidents or injuries relating to the Pacifiers.
    41. Because each Pacifier failed to comply with the Commission's 
requirements for pacifiers at 16 CFR Part 1511, it presented a 
``mechanical hazard'' within the meaning of FHSA section 2(s), 15 
U.S.C. 1261(s), and was a ``hazardous substance'' in accordance with 
FHSA section 2(f)(1)(D), 15 U.S.C. 1261(f)(1)(D).
    42. Under 16 CFR 1500.18(a)(8), each Pacifier presented an 
unreasonable risk of personal injury or illness and was a ``banned 
hazardous substance'' within the meaning of FHSA section 2(q)(1)(A), 15 
U.S.C. 1261(q)(1)(A). Each of the Pacifiers was also a ``misbranded 
hazardous substance'' within the meaning of FHSA section 2(p), 15 
U.S.C. 1261(p).
    43. Under FHSA section 4(a), 15 U.S.C. 1263(a), the introduction or 
delivery for introduction into interstate commerce of any banned 
hazardous substance or misbranded hazardous substance, or the causing 
thereof, is a prohibited act. Under FHSA section 4(c), 15 U.S.C. 
1263(c), the receipt in interstate commerce, and the delivery or 
proffered delivery for pay or otherwise, of any banned hazardous 
substance or misbranded hazardous substance, and the causing thereof, 
is a prohibited act.

[[Page 32577]]

    44. Under FHSA section 5(c)(5), 15 U.S.C. 1264(c)(5), OKK had 
actual knowledge that the Pacifiers were banned hazardous substances 
and misbranded hazardous substances, or it is presumed to have had 
knowledge deemed to be possessed by a reasonable person acting in the 
circumstances, and, therefore, OKK knowingly committed prohibited acts 
concerning the Pacifiers. Pursuant to FHSA section 5(c)(1), 15 U.S.C. 
1264(c)(1), OKK's prohibited acts concerning the Pacifiers subjected it 
to civil penalties.

Violation of the Export Notification Requirements

    45. From approximately May to December 2007, without notifying the 
Commission as required under FHSA section 14(d), 15 U.S.C. 1273(d), OKK 
exported units of different types of banned and/or misbranded hazardous 
substances (collectively, ``Exported Substances''). OKK shipped the 
Exported Substances in separate shipments, each shipment constituting a 
separate series of violations.
    46. Under FHSA section 4(i), 15 U.S.C. 1263(i), the failure to 
notify the Commission with respect to exports as required by FHSA 
section 14(d), 15 U.S.C. 1273(d), is a prohibited act.
    47. Under FHSA section 5(c)(5), 15 U.S.C. 1264(c)(5), OKK had 
actual knowledge that the Exported Substances were banned and/or 
misbranded hazardous substances and that OKK failed to notify the 
Commission prior to their exportation as required under FHSA section 
14(d), 15 U.S.C. 1273(d), or OKK is presumed to have had knowledge 
deemed to be possessed by a reasonable person acting in the 
circumstances. Therefore, OKK knowingly committed prohibited acts 
concerning the Exported Substances. Pursuant to FHSA section 5(c)(1), 
15 U.S.C. 1264(c)(1), OKK's prohibited acts concerning the Exported 
Substances subjected it to civil penalties.

OKK's Response

    48. OKK denies the Staff's allegations above that OKK knowingly 
violated the CPSA and FHSA.

Agreement of the Parties

    49. Under the CPSA and FHSA, the Commission has jurisdiction over 
this matter and over OKK.
    50. The parties enter into the Agreement for settlement purposes 
only. The Agreement does not constitute an admission by OKK, or a 
determination by the Commission, that OKK knowingly violated the CPSA 
and FHSA.
    51. In settlement of the Staff's allegations, OKK shall pay a civil 
penalty in the total amount of six hundred sixty-five thousand dollars 
($665,000.00). The civil penalty shall be paid in four (4) installments 
as follows: $200,000.00 shall be paid within twenty (20) calendar days 
of service of the Commission's final Order accepting the Agreement; 
$170,000 shall be paid on or before January 10, 2010; $170,000 shall be 
paid on or before January 10, 2011; and $125,000 shall be paid on or 
before July 10, 2011. Each payment shall be made by check payable to 
the order of the United States Treasury.
    52. Upon provisional acceptance of the Agreement, the Agreement 
shall be placed on the public record and published in the Federal 
Register in 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) calendar days, the Agreement shall be deemed finally 
accepted on the sixteenth (16th) calendar day after the date it is 
published in the Federal Register.
    53. Upon the Commission's final acceptance of the Agreement and 
issuance of the final Order, OKK 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 Order or of the 
Commission's actions; (3) a determination by the Commission of whether 
OKK failed to comply with the CPSA, the FHSA, and their underlying 
regulations; (4) a statement of findings of fact and conclusions of 
law; and (5) any claims under the Equal Access to Justice Act.
    54. The Commission may publicize the terms of the Agreement and the 
Order.
    55. The Agreement and the Order shall apply to, and be binding 
upon, OKK and each of its successors and assigns.
    56. The Commission issues the Order under the provisions of the 
CPSA and FHSA, and violation of the Order may subject those persons or 
entities referenced in the preceding paragraph to appropriate legal 
action.
    57. The Agreement may be used in interpreting the Order. 
Understandings, agreements, representations, or interpretations apart 
from those contained in the Agreement and the Order may not be used to 
vary or contradict their terms. The Agreement shall not be waived, 
amended, modified, or otherwise altered without written agreement 
thereto executed by the party against whom such waiver, amendment, 
modification, or alteration is sought to be enforced.
    58. If any provision of the Agreement and the Order is held to be 
illegal, invalid, or unenforceable under present or future laws 
effective during the terms of the Agreement and the Order, such 
provision shall be fully severable. The balance of the Agreement and 
the Order shall remain in full force and effect, unless the Commission 
and OKK agree that severing the provision materially affects the 
purpose of the Agreement and the Order.
    59. The Agreement covers only those products that OKK distributed 
in commerce for which recalls or other corrective actions were 
undertaken in cooperation with the Commission prior to the date on 
which OKK executed the Agreement.

OKK Trading, Inc.

Dated: 4/7/2009
By:--------------------------------------------------------------------
William Hung, CEO, OKK Trading, Inc., 5705 Union Pacific Ave., 
Commerce, CA 90022
Dated: 4/9/2009
By:--------------------------------------------------------------------
Barry E. Powell, Esq., Grunfeld, Desiderio, Lebowitz, Silverman & 
Klestadt LLP, 707 Wilshire Blvd., Suite 4900, Los Angeles, CA 90017, 
Counsel for OKK Trading, Inc.

U.S. CONSUMER PRODUCT SAFETY COMMISSION STAFF

Cheryl A. Falvey,
General Counsel.
Ronald G. Yelenik
Assistant General Counsel Office of the General Counsel.
Dated: 4/30/09
By:--------------------------------------------------------------------
Seth B. Popkin, Lead Trial Attorney, Division of Compliance, Office 
of the General Counsel.

In the Matter of KK Trading, Inc.:

Order

    Upon consideration of the Settlement Agreement entered into between 
OKK Trading, Inc. (``OKK'') and the U.S. Consumer Product Safety 
Commission (``Commission'') staff, and the Commission having 
jurisdiction over the subject matter and over OKK, and it appearing 
that the Settlement Agreement and the Order are in the public interest, 
it is
    Ordered, that the Settlement Agreement be, and hereby is, accepted; 
and it is
    Further ordered, that OKK shall pay a civil penalty in the total 
amount of six hundred sixty-five thousand dollars ($665,000.00). The 
civil penalty shall be paid in four (4) installments as follows: 
$200,000.00 shall be paid within twenty (20) calendar days of service 
of the

[[Page 32578]]

Commission's final Order accepting the Agreement; $170,000 shall be 
paid on or before January 10, 2010; $170,000 shall be paid on or before 
January 10, 2011; and $125,000 shall be paid on or before July 10, 
2011. Each payment shall be made by check payable to the order of the 
United States Treasury. Upon the failure of OKK to make any of the 
foregoing payments when due, the total amount of the civil penalty 
shall become immediately due and payable, and interest on the unpaid 
amount shall accrue and be paid by OKK at the federal legal rate of 
interest set forth at 28 U.S.C. 1961(a) and (b).
    Provisionally accepted and provisional Order issued on the 26th 
day of June, 2009.

    By Order of the Commission.

Todd A. Stevenson,
Secretary, U.S. Consumer Product Safety Commission.
[FR Doc. E9-16013 Filed 7-7-09; 8:45 am]
BILLING CODE 6355-01-P