[Federal Register Volume 74, Number 240 (Wednesday, December 16, 2009)]
[Notices]
[Pages 66624-66626]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-29943]


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CONSUMER PRODUCT SAFETY COMMISSION

[CPSC Docket No. 10-C0001]


Excelligence Learning Corporation, d/b/a Discount School Supply, 
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 
Excelligence Learning Corporation, d/b/a/Discount School Supply, 
containing a civil penalty of $25,000.00.

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 December 31, 2009.

ADDRESSES: Persons wishing to comment on this Settlement Agreement 
should send written comments to the Comment 10-C0001, Office of the 
Secretary, Consumer Product Safety Commission, 4330 East West Highway, 
Room 502, Bethesda, Maryland 20814-4408.

FOR FURTHER INFORMATION CONTACT: M. Reza Malihi, Trial Attorney, 
Division of Compliance, Office of the General Counsel, Consumer Product 
Safety Commission, 4330 East West Highway, Bethesda, Maryland 20814-
4408; telephone (301) 504-7733.

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

    Dated: December 10, 2009.
Todd A. Stevenson,
Secretary.

United States of America Consumer Product Safety Commission

CPSC Docket No. 10-C0001

In the Matter of: Excelligence Learning Corporation d/b/a Discount 
School Supply

Settlement Agreement

    1. In accordance with 16 CFR 1118.20, Excelligence Learning 
Corporation, d/b/a Discount School Supply (``Excelligence'') and the 
staff (``Staff'') of the United States Consumer Product Safety 
Commission (``CPSC'' or the ``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'').
    3. Excelligence is a corporation organized and existing under the 
laws of Delaware, with its principal offices located in Monterey, 
California. At all times relevant hereto, Excelligence imported and/or 
sold educational toys and school products.

Staff Allegations

    4. Between May 2004 and May 2007, Excelligence imported into the 
United States about 20,000 units of certain ``shaving-style'' paint 
brushes, each about 4-inches long, with handles that are painted blue, 
purple, orange, yellow, lime green, or pink, and the item number 
SHVBRSH printed on the product's packaging (``Brush(es)''). 
The Brushes were sold as a set of six consisting of a variety of the 
aforementioned colors, and also sold as part of the ``BioColor[supreg] 
Foam Paint Starter Kit'' and ``Colorations[supreg] Foam Paint Starter 
Kit.'' The Brushes were, in turn, offered for sale or sold to schools, 
childcare centers, and other organizations, and directly to consumers, 
via Discount School Supply catalogs and the company's Web site, as 
follows: Sets were sold from May 2004 through August 2007 for about $5 
per unit; the BioColor[supreg] kits were sold from May 2004 through 
June 2006 for about $60 per kit; and the Colorations[supreg] kits were 
sold from July 2006 through August 2007 for about $60 per kit.
    5. Between August 2000 and August 2007, Excelligence imported into 
the United States about 13,000 units of ``Giant Grow'' measuring 
charts, each consisting of a giant yellow ruler-shaped plastic chart 
for measuring a child's growth with a picture of a bean stalk painted 
on it from top to bottom (``Chart(s)''). The Charts were, in turn, 
offered for sale or sold to schools, childcare centers, and other 
organizations, and directly to consumers, from August 2000 through 
August 2007 for about $10 per unit, via Discount School Supply catalogs 
and the company's Web site.
    6. During June 2007, Excelligence imported into the United States 
about 60 units of ``Tic Tac Turtle Toss'' play mats, each consisting of 
a 50-inch vinyl/polyester play mat that is double-sided, with a number 
design on one side and a turtle design on the other, the ``Discount 
School Supply'' name and logo printed in the corner on both sides, and 
numbers and designs painted in red, blue, green and black over a yellow 
background (``Mat(s)''). The Mats were, in turn, offered for sale or 
sold to schools, childcare centers, and other organizations, and 
directly to consumers, from June 2007 through September 2007 for about 
$40 per unit, via Discount School Supply catalogs and the company's Web 
site.
    7. The Brushes, Charts and Mats are ``consumer product(s),'' and, 
at all times relevant hereto, Excelligence was a ``manufacturer'' and/
or a ``retailer'' of those consumer product(s), which were 
``distributed in commerce,'' as those terms are defined in CPSA 
sections 3(a)(3), (5), (8), (11), and (13), 15 U.S.C. 2052(a)(3), (5), 
(8), (11), and (13).
    8. The Brushes, Charts and Mats 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 Lead-Containing Paint and 
Certain Consumer Products Bearing Lead-Containing Paint, 16 C.F.R. 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)
    9. On August 20, 2007, Excelligence reportedly received 
``preliminary'' test results from an independent laboratory indicating 
the presence of excessive lead levels in surface coatings of tested 
Brush handles. Ten days later, on August 30, 2007, Excelligence 
reported to CPSC that it had commissioned an independent laboratory to 
conduct

[[Page 66625]]

further testing for the presence of lead in surface coatings on 
additional Brush samples. As expressed in two test reports of the same 
date, the confirmatory testing demonstrated that the green, yellow and 
orange paints on handles of a Brush set each contained a total lead 
content of more than 10,000 parts per million (ppm); and that the 
green, yellow and orange paints of another Brush set each contained a 
total lead content of more than 10,000 ppm. These levels of lead are in 
excess of the permissible 0.06 percent limit set forth in the Ban.
    10. On August 29, 2007, Excelligence reported to CPSC that it had 
received ``preliminary'' test results showing that surface paint on the 
Charts had excessive levels of lead, but indicated that it was in the 
process of obtaining further results to determine the scope of affected 
units. On October 25, 2007, Excelligence reported to CPSC that it had 
commissioned an independent laboratory to conduct confirmatory testing 
for the presence of lead in surface coatings on additional Chart 
samples, and determined that product units received by customers in 
2002 and in 2005 failed to comply with the Ban. As expressed in two 
test reports dated October 12, 2007, the testing of a Chart sample 
manufactured in 2005 demonstrated that the ``Black Coating on Plastic 
Sheet (Scale)'' contained a total lead content of more than 0.390 
percent, and the ``Coatings (Green & White) on Plastic Sheet (Tree)'' 
contained a total lead content of more than 0.204 percent; and testing 
of a Chart sample manufactured in 2002 demonstrated that corresponding 
paints contained a total lead content of more than 0.260 percent, and 
more than 0.262 percent, respectively. These levels of lead are in 
excess of the permissible 0.06 percent limit set forth in the Ban.
    11. After learning on September 17, 2007 that ``preliminary'' test 
results on a pre-production run of the Mats had indicated the presence 
of excessive lead levels in surface coatings, Excelligence sent 
production samples of Mats from current warehouse inventory for further 
testing by an independent laboratory. On October 24, 2007, Excelligence 
reported to CPSC that confirmatory testing by the laboratory testing 
for lead in surface coatings on the additional Mat samples, whose 
results were set forth in an October 15, 2007 test report, demonstrated 
that the blue, red, yellow, black and green surface coatings of the 
plastic patterns contained a total lead content from 4,440 ppm to 9,110 
ppm. These levels of lead are in excess of the permissible 0.06 percent 
limit set forth in the Ban.
    12. On November 21, 2007, the Commission and Excelligence announced 
a consumer-level recall of about 20,000 units of the Brushes because 
``Surface paint on the brush handles can contain excessive levels of 
lead, violating the federal lead paint standard.'' On December 19, 
2007, the Commission and Excelligence announced a recall of about 
13,000 units of the Charts because ``The paint on the grow chart 
contains excess levels of lead, violating the federal lead paint 
standard.'' The next month, on January 16, 2008, the Commission and 
Excelligence likewise announced a recall of about 60 units of the Mats 
because ``The paint on the Tic Tac Turtle Toss mats contains excess 
levels of lead, violating the federal lead paint standard.''
    13. Although Excelligence reported no incidents or injuries 
associated with the Brushes, Charts and Mats, it 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.
    14. The Brushes, Charts and Mats 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.
    15. Between August 2000 and September 2007, Excelligence sold, 
manufactured for sale, offered for sale, distributed in commerce, or 
imported into the United States, or caused one or more of such acts, 
with respect to the aforesaid banned hazardous Brushes, Charts and 
Mats, in violation of section 19(a)(1) of the CPSA, 15 U.S.C. 
2068(a)(1). Excelligence committed these prohibited acts ``knowingly,'' 
as that term is defined in section 20(d) of the CPSA, 15 U.S.C. 
2069(d).
    16. Pursuant to section 20 of the CPSA, 15 U.S.C. Sec.  2069, 
Excelligence is subject to civil penalties for the aforementioned 
violations.

Excelligence Response

    17. Excelligence denies the Staff's allegations set forth above 
that Excelligence knowingly violated the CPSA.

Agreement of the Parties

    18. Under the CPSA, the Commission has jurisdiction over this 
matter and over Excelligence.
    19. The parties enter into the Agreement for settlement purposes 
only. The Agreement does not constitute an admission by Excelligence, 
or a determination by the Commission, that Excelligence has knowingly 
violated the CPSA.
    20. In settlement of the Staff's allegations, Excelligence shall 
pay a civil penalty in the amount of twenty five thousand dollars 
($25,000.00) within twenty (20) calendar days of service of the 
Commission's final Order accepting the Agreement. This payment shall be 
made by check payable to the order of the United States Treasury.
    21. Upon the Commission's 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) days, the Agreement shall be deemed finally accepted on 
the sixteenth (16th) day after the date it is published in the Federal 
Register.
    22. Upon the Commission's final acceptance of the Agreement and 
issuance of the final Order, Excelligence 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 Excelligence 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.
    23. The Commission may publicize the terms of the Agreement and 
Order.
    24. The Agreement and Order shall apply to, and be binding upon, 
Excelligence and each of its successors and assigns.
    25. The Commission issues the Order under the provisions of the 
CPSA, and violation of the Order may subject Excelligence to 
appropriate legal action.
    26. 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,

[[Page 66626]]

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 Excelligence 
agree that severing the provision materially affects the purpose of the 
Agreement and Order.

Excelligence Learning Corporation

Dated: 10-28-08

By:
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Kelly Crampton, Chief Executive Officer
Excelligence Learning Corporation
d/b/a Discount School Supply
2 Lower Ragsdale Drive, Suite 200
Monterey, CA 93940

Dated: 10-27-08

By:
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Jonathan I. Price, Esq.
Goodwin Procter LLP
The New York Times Building
620 Eighth Avenue
New York, NY 10018-1405
Counsel for Excelligence Learning Corporation

U.S. Consumer Product Safety Commission Staff

Cheryl A. Falvey
General Counsel
Office of the General Counsel

Ronald G. Yelenik
Assistant General Counsel
Division of Compliance
Office of the General Counsel
Dated: 11-17-09

By:
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M. Reza Malihi, Trial Attorney
Division of Compliance
Office of the General Counsel

United States of America Consumer Product Safety Commission

CPSC Docket No. 10-C0001

In the Matter of: Excelligence Learning Corporation D/B/A Discount 
School Supply

Order

    Upon consideration of the Settlement Agreement entered into between 
Excelligence Learning Corporation, d/b/a Discount School Supply 
(``Excelligence'') and the U.S. Consumer Product Safety Commission 
(``Commission'') staff, and the Commission having jurisdiction over the 
subject matter and over Excelligence, and it appearing that the 
Settlement Agreement and Order are in the public interest, it is
    Ordered, that the Settlement Agreement be, and hereby is, accepted; 
and it is Further ordered, that Excelligence shall pay a civil penalty 
in the amount of twenty five thousand dollars ($25,000.00) within 
twenty (20) calendar days of service of the Commission's final Order 
accepting the Agreement. The payment shall be made by check payable to 
the order of the United States Treasury. Upon the failure of 
Excelligence to make the foregoing payment when due, interest on the 
unpaid amount shall accrue and be paid by Excelligence 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 4th day 
of December 2009.

    By Order of the Commission:

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Todd A. Stevenson, Secretary
U.S. Consumer Product Safety Commission

[FR Doc. E9-29943 Filed 12-15-09; 8:45 am]
BILLING CODE 6355-01-P