[Federal Register: August 4, 1994]
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CONSUMER PRODUCT SAFETY COMMISSION
[CPSC Docket No. 94-C0012]
S&D Importing Co., a Limited Partnership; 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 S&D Importing Co., a limited partnership.
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 19, 1994.
ADDRESSES: Persons wishing to comment on this Settlement Agreement
should send written comments to the Comment 94-C0012, Office of the
Secretary, Consumer Product Safety Commission, Washington, DC 20207.
FOR FURTHER INFORMATION CONTACT:
Leonard H. Goldstein, Trial Attorney, Office of Compliance and
Enforcement, Consumer Product Safety Commission, Washington, D.C.
20207; telephone (301) 504-0626.
SUPPLEMENTARY INFORMATION: (attached)
Dated: July 28, 1994.
Sadye E. Dunn,
Secretary.
Settlement Agreement and Order
1. S&D Importing Co. (hereinafter, ``S&D''), a limited partnership,
enters into this Settlement Agreement with 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
allegations of the Commission staff that S&D knowingly caused the
introduction or delivery for introduction into interstate commerce of
certain banned hazardous toys, in violation of Section 4(a) of the
Federal Hazardous Substances Act, 15 U.S.C. 1263(a).
I. Jurisdiction
2. The Commission has jurisdiction over S&D and the subject matter
of this Settlement Agreement pursuant to Section 30(a) of the Consumer
Product Safety Act (hereinafter, ``CPSA''), 15 U.S.C. 2079(a), and
Sections 2(f)(1)(D), 4(a), and 5(c) of the Federal Hazardous Substances
Act (hereinafter, ``FHSA''), 15 U.S.C. 1261(f)(1)(D), 1263(a), and
1264(c).
II. The Parties
3. The ``staff'' is the staff of the Consumer Product Safety
Commission, an independent regulatory agency of the United States
established pursuant to section 4 of the CPSA, 15 U.S.C. 2053.
4. S&D is a limited partnership created on December 24, 1987, under
the laws of the State of New York, with its principal offices located
at 1200 Shames Drive, Westbury, New York. The sole general partner of
S&D is Gem Fulfillment Corp., 1530 McDonald Ave., Brooklyn, New York.
The president of Gem Fulfillment Corp. is David Weldler. The limited
partners of S&D are Jerry Williams and Steven Brown. S&D is engaged in
the business of importing general merchandise for resale to other
companies.
III. Allegations of the Staff
5. In 1988, S&D imported approximately 698,000 ``Santa Bear''
stuffed toy animals from China. The toys are subject to, but some
failed to comply with, the Commission's Small Parts Regulation, 16 CFR
part 1501, in that when tested by the staff in 1990 under 16 CFR
1500.52, (a) one or more parts of some of the tested toys separated and
(b) one or more of the parts that separated from the tested toys fit
completely within the test cylinder, as set forth in 16 CFR 1501.4.
Accordingly, some of the Santa Bears present a ``mechanical hazard''
within the meaning of section 2(s) of the FHSA, 15 U.S.C. 1261(s).
6. Most of the Santa Bears identified in paragraph 5 above were
sold to the public by Raffoler, Ltd., a mail order business that is
owned by Jerry Williams and Stephen Brown and is located at the same
address as S&D.
7. Some of the Santa Bears identified in paragraph 5 above are a
``hazardous substance'' pursuant to section 2(f)(1)(D) of the FHSA, 15
U.S.C. 1261(f)(1)(D). Some of the Santa Bears identified in paragraph 5
above are also 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)(9).
8. On November 7, 1990, the staff sent a certified letter to S&D
advising the firm that the Santa Bear contains small parts and is
considered to be a banned hazardous substance. Notice was provided that
continued sale of the product is prohibited by section 4 of the FHSA,
15 U.S.C. 1263, and is punishable by penalties described in section 5
of the Act, 15 U.S.C. Sec. 1264. At this time, S&D had an unsold
inventory of approximately 110,000 Santa Bears.
9. On November 15, 1990, S&D attempted to return its inventory of
Santa Bears to the import agent from whom S&D had purchasedthe goods.
On November 20, 1990, the import agent advised S&D that it would not
accept return of the Santa Bears.
10. In or around early December 1990, an employee of S&D asked a
third party to attempt to find prospective purchasers of the Santa
Bears. The third party found a prospective purchaser and so advised the
employee of S&D. The sale of the Santa Bears was consummated and S&D
received proceeds from the sale in the form of credit from the import
agent for goods previously purchased and for goods to be purchased in
the future.
11. After receipt of the certified letter of November 7, 1990, from
the staff, as described in paragraph 8 above, S&D knowingly caused the
introduction or delivery for introduction into interstate commerce of
its remaining inventory of approximately 110,000 Santa Bears, in
violation of section 4(a) of the FHSA, 15 U.S.C. 1263(a), and for which
a civil penalty may be improved pursuant to section 5(c) of the FHSA,
15 U.S.C. 1264(c).
IV. Response of S&D Importing Co.
12. S&D denies the allegations of the staff set forth in paragraphs
5 through 11 above, including the allegations that it has knowingly
caused the introduction into commerce of the aforesaid banned hazardous
toys and that it has violated the FHSA.
V. Agreement of the Parties
13. The Consumer Product Safety Commission has jurisdiction over
S&D and the subject matter of this Settlement Agreement and Order under
the following Acts: Consumer Product Safety Act, 15 U.S.C. 2051, et
seq., and the Federal Hazardous Substances Act, 15 U.S.C. 1261, et seq.
14. S&D agrees to pay to the Commission a civil penalty in the
amount of ONE HUNDRED AND SEVENTY FIVE THOUSAND DOLLARS ($175,000).
Payment of the civil penalty shall settle fully all claims by the
United States Gvernment arising out of the staff's allegations set
forth in paragraphs 5 through 11.
15. The Commission does not make any determination that S&D
violated the FHSA. The Commission and S&D agree that this Settlement
Agreement is entered into for the purposes of settlement only.
16. Upon final acceptance of this Settlement Agreement by the
Commission and issuance of the Final Order, S&D 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 S&D failed to comply
with the FHSA as alleged, and (4) to a statement of findings of fact
and conclusions of law.
17. For purposes of section 6(b) of the CPSA, 15 U.S.C. 2055(b),
this matter shall be treated as if a compliant had issued; and, the
Commission may publicize the terms of the Settlement Agreement and
Order.
18. 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
118.20(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 finally accepted on the
16th day after the date it is published in the Federal Register.
19. The parties further agree that the Commission shall issue the
attached Order incorporated herein by reference; and that a violation
of the Order shall subject S&D to appropriate legal action.
20. No agreement, understanding, representation, or interpretation
not contained in this Settlement Agreement and Order may be used to
vary or to contradict its terms.
21. The provisions of the Settlement Agreement and Order shall
apply to S&D and each of its successors and assigns.
22. By their signatures set forth below, Raffoler, Ltd., a
corporation, and Jerry Williams and Stephen Brown, individually, agree
to serve as guarantors of payment to the Commission of the civil
penalty specified in paragraph 14 of this Settlement Agreement.
Respondent S&D Importing Co.
By: GEM Fulfillment Corp. General Partner
Dated: June 14, 1994.
David Weldler,
President.
Guarantors of Payment of Civil Penalty
Dated: June 9, 1994.
Jerry Williams,
Individually, and as an officer of Raffoler, Ltd.
Dated: June 9, 1994.
Stephen Brown,
Individually, and as an officer of Raffoler, Ltd.
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.
Leonard H. Goldstein,
Trial Attorney, Division of Administrative Litigation, Office of
Compliance and Enforcement.
Order
Upon consideration of the Settlement Agreement entered into between
S&D Importing Co., a limited partnership, and the Consumer Product
Safety Commission; and the Commission having jurisdiction over the
subject matter and S&D Importing Co.; and it appearing that the
Settlement Agreement is the public interest, it is
Ordered, That the Settlement Agreement be and hereby is accepted,
as indicated below; and it is
Further ordered, That, within twenty (20) days after service of the
Final Order of the Commission accepting the Settlement Agreement, S&D
Importing Co. shall pay to the Commission a civil penalty in the amount
of one hundred and seventy-five thousand dollars ($175,000). Payment of
the civil penalty shall settle fully all claims of the United States
government arising out of the allegations of the Commission's staff set
forth in paragraphs five through eleven of the Settlement Agreement.
Provisionally accepted and Provisional Order issued on the 28th
day of July, 1994.
By order of the Commission.
Sadye E. Dunn,
Secretary, Consumer Product Safety Commission.
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DEPARTMENT OF DEFENSE
Office of the Secretary
Advisors to the National Security Education Board
AGENCY: Office of the Assistant Secretary of Defense, Strategy and
Requirements.
ACTION: Notice of meeting.
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SUMMARY: Purusant to Public Law 92-463, notice is hereby given of a
forthcoming meeting of advisors to the National Security Education
Board. The purpose of the meeting is to review and make recommendations
to the National Security Education Board concerning the requirements
established by the David L. Boren National Security Education Act,
Title VIII of Public Law 102-183, as amended.
DATES: September 19-20, 1994.
ADDRESSES: University of Arizona Tucson, Arizona.
FOR FURTHER INFORMATION CONTACT:
Mr. Edmond J. Collier, Assistant Director for External Affairs,
National Security Education Program, 1101 Wilson Blvd.--suite 1210,
Rosslyn, VA 22209; (703) 696-1991.
SUPPLEMENTARY INFORMATION: The advisors meeting is open to the public.
Dated: August 1, 1994.
Patricia L. Toppings,
Alternate OSD Federal Register Liaison Officer, Department of Defense.
[FR Doc. 94-19022 Filed 8-3-94; 8:45 am]
BILLING CODE 5000-04-M