First Learning Company Limited, Provisional Acceptance of a Settlement Agreement and Order, 38406-38408 [E9-18514]

Agencies

• Consumer Product Safety Commission

[Federal Register Volume 74, Number 147 (Monday, August 3, 2009)]
[Notices]
[Pages 38406-38408]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E9-18514]


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CONSUMER PRODUCT SAFETY COMMISSION

[CPSC Docket No. 09-C0026]


First Learning Company Limited, 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 
First Learning Company Limited, containing a civil penalty of 
$50,000.00.

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 August 18, 2009.

ADDRESSES: Persons wishing to comment on this Settlement Agreement 
should send written comments to the Comment 09-C0026, 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: July 28, 2009.
Todd A. Stevenson,
Secretary.

United States of America--Consumer Product Safety Commission

    In the Matter of First Learning Company Limited CPSC Docket No. 
09-C0026.

Settlement Agreement and Order

    1. In accordance with 16 CFR 1118.20, First Learning Company 
Limited (``First Learning'') 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. First Learning is a corporation organized and existing under 
the laws of Hong Kong, People's Republic of China (PRC), with its 
principal offices located in Kowloon, Hong Kong, PRC. First 
Learning's network of manufacturer representatives conduct business 
on its behalf through offices located in the United States. At all 
times relevant hereto, First Learning manufactured and/or sold toys 
and other children's products, among other merchandise.

Staff Allegations

    4. Between April 2006 and August 2006, First Learning 
manufactured in China for sale in the United States about 9,400 
units of certain ``Soldier Bear'' toys, including the Soldier Bear 
Wooden Pull-Along Learning Blocks Wagon, style number 6320, UPC code 
number 834162002158; the Soldier Bear Time Teacher, style 
6231, UPC 834162002646; and the Soldier Bear 
Wooden Riding Horse, style number 6349, and UPC code number 
834162003698 (collectively, ``Soldier Bear Toy(s)''). From August 
2006 through October 2007, First Learning offered the Soldier Bear 
Toys for

[[Page 38407]]

sale or sold them to a retailer, which, in turn, offered for sale or 
sold these products to consumers.
    5. Beginning in or before October 2006, First Learning 
manufactured in China for sale in the United States about 15,000 
units of certain Big Wooden Learning Blocks and Jumbo Wooden Train 
Sets. The Big Wooden Learning Blocks consisted of 30 or 60 block 
pieces, sold as either the Big Wooden Learning Blocks (30 pieces), 
style number 7210, UPC code number 14559211, or the Big Wooden 
Learning Blocks (60 pieces), style number 7211, UPC code number 
14559235 (collectively, the ``Learning Block(s)''). The Jumbo Wooden 
Train Sets consisted of 70 wooden pieces, sold as style number 
13275A, and UPC code number 14217340 (``Train Set(s)''). From 
October 2006 through November 2007, First Learning offered the 
Learning Blocks and Train Sets for sale or sold them to a retailer, 
which, in turn, offered for sale or sold these products to 
consumers.
    6. The Soldier Bear Toys, Learning Blocks, and Train Sets are 
``consumer product(s),'' and, at all times relevant hereto, First 
Learning was a ``manufacturer'' of those consumer product(s), which 
were ``distributed in commerce,'' as those terms are defined in CPSA 
sections 3(a)(3), (5), (8), and (11), 15 U.S.C. Sec. Sec.  
2052(a)(3), (5), (8), and (11).
    7. The Soldier Bear Toys, Learning Blocks, and Train Sets 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 CFR 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).
    8. In October and November 2007, the Staff obtained the results 
of testing conducted by an independent testing laboratory, showing 
that multiple samples of the Soldier Bear Toys failed to comply with 
the Ban. The testing demonstrated that the red surface coating on 
certain components of the Soldier Bear Wooden Pull-Along Learning 
Blocks Wagon contained a total lead content of 1,400 mg/kg; that the 
black, green, orange, and red surface coatings on certain components 
of the Soldier Bear Time Teacher contained a total lead content from 
820 mg/kg to 13,000 mg/kg; and that the orange/yellow surface 
coating on the Soldier Bear Wooden Riding Horse contained a total 
lead content of 18,000 mg/kg. These levels of lead are in excess of 
the permissible 0.06 percent limit set forth in the Ban. First 
Learning learned of these failing test results shortly after 
completion of this testing.
    9. On October 15, 2007, the Staff obtained samples of the 
Learning Blocks and Train Sets from a retail store. In November 
2007, the staff tested these samples. The testing demonstrated that 
the orange paint on a component of the Big Wooden Learning Blocks 
(30 pieces) contained a total lead content of 2.633 percent; that 
orange paint on a component of the Big Wooden Learning Blocks (60 
pieces) contained a total lead content of 0.07 percent; and that 
yellow paint on a component of the Train Set contained a total lead 
content of 0.065 percent. These levels of lead are in excess of the 
permissible 0.06 percent limit set forth in the Ban. Through 
contacts with the retailer and/or the staff, First Learning learned 
of these failing test results shortly after completion of this 
testing.
    10. On December 19, 2007, the Commission and the retailer 
announced a consumer-level recall of products, including, but not 
limited to, about 9,400 Soldier Bear Toys, because ``[t]he surface 
paint on the toys contains excessive levels of lead, violating the 
Federal lead paint standard.''
    11. On January 24, 2008, the Commission and the retailer 
announced a consumer-level recall of about 15,000 units of the 
Learning Blocks and Train Sets because ``[s]urface paint on some 
pieces of the toys contains excessive levels of lead, violating the 
Federal lead paint standard.''
    12. Although no incidents or injuries were reported by First 
Learning or the retailers in connection with the Soldier Bear Toys, 
Learning Blocks and Train Sets, First Learning 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.
    13. The Soldier Bear Toys, Learning Blocks and Train Sets 
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.
    14. Between April 2006 and November 2007, First Learning sold, 
manufactured for sale, offered for sale, or distributed in commerce 
in the United States, or caused one or more of such acts, with 
respect to the Soldier Bear Toys, Learning Blocks and Train Sets, in 
violation of section 19(a)(1) of the CPSA, 15 U.S.C. 2068(a)(1). 
First Learning committed these prohibited acts ``knowingly,'' as 
that term is defined in section 20(d) of the CPSA, 15 U.S.C. 
2069(d).
    15. Pursuant to section 20 of the CPSA, 15 U.S.C. 2069, First 
Learning is subject to civil penalties for the aforementioned 
violations.

First Learning Response

    16. First Learning denies the Staff's allegations set forth 
above that First Learning knowingly violated the CPSA.

Agreement of the Parties

    17. Under the CPSA, the Commission has jurisdiction over this 
matter and over First Learning.
    18. The parties enter into the Agreement for settlement purposes 
only. The Agreement does not constitute an admission by First 
Learning, or a determination by the Commission, that First Learning 
has knowingly violated the CPSA.
    19. In settlement of the Staff's allegations, First Learning 
shall pay a civil penalty in the amount of fifty thousand dollars 
($50,000.00). The civil penalty shall be paid in three (3) 
installments as follows: $10,000.00 shall be paid within thirty (30) 
calendar days of service of the Commission's final Order accepting 
the Agreement; $15,000.00 shall be paid within one hundred and 
twenty (120) calendar days of service of the Commission's final 
Order accepting the Agreement; and $25,000.00 shall be paid within 
one hundred and eighty (180) calendar days of service of the 
Commission's final Order accepting the Agreement. Each payment shall 
be made by check payable to the order of the United States Treasury.
    20. 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.
    21. Upon the Commission's final acceptance of the Agreement and 
issuance of the final Order, First Learning 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 First Learning 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.
    22. The Commission may publicize the terms of the Agreement and 
Order.
    23. The Agreement and Order shall apply to, and be binding upon, 
First Learning and each of its successors and assigns.
    24. The Commission issues the Order under the provisions of the 
CPSA, and violation of the Order may subject First Learning to 
appropriate legal action.
    25. 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, 
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 First Learning agree that severing the provision materially 
affects the purpose of the Agreement and Order.

First Learning Company Limited.

Dated: 12/10/2008.

By:--------------------------------------------------------------------
Leung Suk Yue,

[[Page 38408]]

Secretary and Director, First Learning Company Limited, Room 401, 
4th Floor, Block A, Sun Fung Centre, 88 Kwok Shui Road, Kwai Hing, 
Hong Kong.

Dated: 12/12/2008.

By:--------------------------------------------------------------------
Bob Casey, Esq.,
1205 NW 25th Avenue, Portland, OR 97210-2422, Counsel for First 
Learning Company Limited.

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: 3/6/09.

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

United States of America--Consumer Product Safety Commission

    In the Matter of First Learning Company Limited, CPSC Docket No. 
09-C0026.

Order

    Upon consideration of the Settlement Agreement entered into 
between First Learning Company Limited (``First Learning'') and the 
U.S. Consumer Product Safety Commission (``Commission'') staff, and 
the Commission having jurisdiction over the subject matter and over 
First Learning, 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 First Learning shall pay a civil penalty 
in the amount of fifty thousand dollars ($50,000.00). The civil 
penalty shall be paid in three (3) installments as follows: 
$10,000.00 shall be paid within thirty (30) calendar days of service 
of the Commission's final Order accepting the Agreement; $15,000.00 
shall be paid within one hundred and twenty (120) calendar days of 
service of the Commission's final Order accepting the Agreement; and 
$25,000.00 shall be paid within one hundred and eighty (180) 
calendar days of service of the Commission's final Order accepting 
the Agreement. Each payment shall be made by check payable to the 
order of the United States Treasury. Upon the failure of First 
Learning to make any of the foregoing payments when due, (i) the 
entire amount of the civil penalty shall become due and payable, and 
(ii) interest on the outstanding balance shall accrue and be paid by 
First Learning 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 8th 
day of July, 2009.

    By Order of the Commission.
Todd A. Stevenson,
Secretary, U.S. Consumer Product Safety Commission.

[FR Doc. E9-18514 Filed 7-31-09; 8:45 am]
BILLING CODE 6355-01-P