Henry Gordy International, Inc., Provisional Acceptance of a Settlement Agreement and Order, 63906-63908 [2011-26662]
Download as PDF
63906
Federal Register / Vol. 76, No. 199 / Friday, October 14, 2011 / Notices
Telephone: (703) 603–7740, Fax: (703)
603–0655, or e-mail
CMTEFedReg@AbilityOne.gov.
This
notice is published pursuant to 41 U.S.C
47(a)(2) and 41 CFR 51–2.3. Its purpose
is to provide interested persons an
opportunity to submit comments on the
proposed actions.
SUPPLEMENTARY INFORMATION:
Additions
If the Committee approves the
proposed additions, the entities of the
Federal Government identified in this
notice will be required to procure the
product and services listed below from
nonprofit agencies employing persons
who are blind or have other severe
disabilities.
Regulatory Flexibility Act Certification
I certify that the following action will
not have a significant impact on a
substantial number of small entities.
The major factors considered for this
certification were:
1. If approved, the action will not
result in any additional reporting,
recordkeeping or other compliance
requirements for small entities other
than the small organizations that will
furnish the product and services to the
Government.
2. If approved, the action will result
in authorizing small entities to furnish
the product and services to the
Government.
3. There are no known regulatory
alternatives which would accomplish
the objectives of the Javits-WagnerO’Day Act (41 U.S.C. 46–48c) in
connection with the product and
services proposed for addition to the
Procurement List.
Comments on this certification are
invited. Commenters should identify the
statement(s) underlying the certification
on which they are providing additional
information.
Services
Service Type/Location: Custodial and
Grounds Maintenance, Keyport Three
Dimensional Range, Bldg. 475, NAVFAC
NW., Zelatched Point, WA.
NPA: Skookum Educational Programs,
Bremerton, WA.
Contracting Activity: Dept of the Navy,
NAVFAC Northwest, Silverdale, WA.
Service Type/Location: Custodial Service,
White Mountain National Forest, Saco
Ranger Administrative Site, Routes 112,
33 Kancamagus Highway, Conway, NH.
NPA: Northern New England Employment
Services, Portland, ME.
Contracting Activity: Department of
Agriculture, Forest Service, Allegheny
National Forest, Warren, PA.
Service Type/Location: Grounds
Maintenance, United States Southern
Command, 9301 NW., 33rd Street, Doral,
FL.
NPA: Goodwill Industries of South Florida,
Inc., Miami, FL.
Contracting Activity: Department of the
Army, BASOPS Act Westside Plaza II,
Miami, FL.
Deletion
Regulatory Flexibility Act Certification
I certify that the following action will
not have a significant impact on a
substantial number of small entities.
The major factors considered for this
certification were:
1. If approved, the action will not
result in additional reporting,
recordkeeping or other compliance
requirements for small entities.
2. If approved, the action may result
in authorizing a small entity to provide
the service to the Government.
3. There are no known regulatory
alternatives which would accomplish
the objectives of the Javits-WagnerO’Day Act (41 U.S.C. 46–48c) in
connection with the service proposed
for deletion from the Procurement List.
End of Certification
The following product and services
are proposed for addition to
Procurement List for production by the
nonprofit agencies listed:
tkelley on DSK3SPTVN1PROD with NOTICES
End of Certification
The following service is proposed for
deletion from the Procurement List:
Product
NSN: 6140–01–413–3926—Rechargeable
Battery, AA, Nickel Metal Hydride.
NPA: North Jersey Friendship House, Inc.,
Hackensack, NJ.
Contracting Activity: Defense Logistics
Agency Land and Maritime, Columbus,
OH.
Coverage: C–List for 100% of the requirement
of the Department of Defense, as
aggregated by the Defense Logistics
Agency Land and Maritime, Columbus,
OH.
VerDate Mar<15>2010
15:20 Oct 13, 2011
Jkt 226001
Service
Service Type/Location: Removal of Tool
Identification Numbers, Tinker Air Force
Base, OK.
NPA: Work Activity Center, Inc., Moore, OK.
Contracting Activity: Dept of the Air Force,
FA8101 OC ALC PKO, Tinker AFB, OK.
Patricia Briscoe,
Deputy Director, Business Operations,
(Pricing and Information Management).
[FR Doc. 2011–26575 Filed 10–13–11; 8:45 am]
BILLING CODE 6353–01–P
PO 00000
Frm 00006
Fmt 4703
Sfmt 4703
CONSUMER PRODUCT SAFETY
COMMISSION
[CPSC Docket No. 12–C0002]
Henry Gordy International, Inc.,
Provisional Acceptance of a
Settlement Agreement and Order
Consumer Product Safety
Commission.
ACTION: Notice.
AGENCY:
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 Henry
Gordy International, Inc., containing a
civil penalty of $1,100,000.00.
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 October
31, 2011.
ADDRESSES: Persons wishing to
comment on this Settlement Agreement
should send written comments to the
Comment 12–C0002, Office of the
Secretary, Consumer Product Safety
Commission, 4330 East West Highway,
Room 820, Bethesda, Maryland 20814–
4408.
FOR FURTHER INFORMATION CONTACT:
Patricia Kennedy Vieira, Esquire,
Division of Enforcement and
Information, Office of the General
Counsel, Consumer Product Safety
Commission, 4330 East West Highway,
Bethesda, Maryland 20814–4408;
telephone (301) 504–7623.
SUPPLEMENTARY INFORMATION: The text of
the Agreement and Order appears
below.
SUMMARY:
Dated: October 7, 2011,
Todd A. Stevenson,
Secretary.
Settlement Agreement
1. In accordance with 16 CFR 1118.20,
Henry Gordy International, Inc., its
current and/or former corporate
parent(s), affiliates, successors, and/or
assigns, and any and/or all current and/
or former directors, officers, agents and
employees (collectively ‘‘Henry Gordy’’)
and staff (‘‘staff’’) of the United States
Consumer Product Safety Commission
(‘‘Commission’’) hereby enter into this
Settlement Agreement (‘‘Agreement’’)
under the Consumer Product Safety Act
(‘‘CPSA’’). The Agreement and the
incorporated attached Order resolve
staff’s allegations and settle any and all
E:\FR\FM\14OCN1.SGM
14OCN1
Federal Register / Vol. 76, No. 199 / Friday, October 14, 2011 / Notices
claims under the CPSA and the Child
Safety Protection Act, Public Law 103–
267, 108 Stat. 722 (1994), which exist or
arise from staff’s allegations set forth
below.
tkelley on DSK3SPTVN1PROD with NOTICES
The Parties
2. Staff is the staff of the Consumer
Product Safety Commission, an
independent federal regulatory agency
established pursuant to, and responsible
for, the enforcement of the CPSA, 15
U.S.C. 2051–2089, and the CSPA, Public
Law 103–267, 108 Stat. 722.
3. Henry Gordy is a corporation,
organized and existing under the laws of
the State of Delaware, with its principal
corporate office located at P.O. Box
2769, 900 North Avenue, Plainfield,
New Jersey 07062–0769.
Staff Allegations
4. Between September 2005 and
February 2008, Henry Gordy imported
approximately 1,806,048 units of the
‘‘Auto Fire Target Set’’ (‘‘Target Set’’).
Each Target Set consisted of the
following: A toy gun; soft, pliable,
plastic toy darts; and a small target. The
Target Sets were sold for $1.50
nationwide by Family Dollar Stores,
Inc., exclusively during the period
September 2005 through January 2009.
5. The Target Sets are ‘‘consumer
products.’’ At all relevant times, Henry
Gordy, as importer of the Target Sets, is
a ‘‘manufacturer’’ of these consumer
products, which were ‘‘distributed in
commerce,’’ as those terms are defined
or used in sections 3(a)(5), (8) and (11)
of the CPSA, 15 U.S.C. 2052(a)(5), (8)
and (11).
6. The Target Sets are defective
because if a child places the soft, pliable
plastic toy dart in their mouth, the dart
can be inhaled into the throat and it can
prevent the child from breathing.
7. Henry Gordy received its first
report of a death involving a Target Set
on or about May 1, 2006, after an 8-yearold boy choked on a dart and died on
March 9, 2006.
8. In response to the death reported
on or about May 1, 2006, Henry Gordy
implemented a design change, on or
about August 3, 2006, to add a product
warning to the Target Set’s packaging,
which stated: ‘‘Parental Supervision
Suggested.’’
9. On January 8, 2007, Henry Gordy
was notified that a 10-year-old boy had
died after he swallowed a dart and
asphyxiated.
10. On October 31, 2007, Henry Gordy
was notified that a 9-year-old boy had
died after he swallowed a dart and
asphyxiated.
11. Despite being aware of the
information set forth in Paragraphs 7
VerDate Mar<15>2010
15:20 Oct 13, 2011
Jkt 226001
through 10, Henry Gordy did not report
to the Commission until May 29, 2009,
after staff asked Henry Gordy to do so.
By May 29, 2009, Henry Gordy was
aware of three deaths involving the
Target Sets.
12. In its report to the Commission on
May 29, 2009, Henry Gordy did not
include the death on March 9, 2006, of
the 8-year-old boy; nor did Henry Gordy
notify the Commission of the packaging
design change it made in response to
that death.
13. On June 30, 2009, staff informed
Henry Gordy that the Target Sets should
be recalled.
14. On September 28, 2009, Henry
Gordy notified staff that it would not
agree to staff’s request for a recall of the
Target Sets.
15. Ultimately, the Target Sets were
recalled on May 17, 2010, by the
exclusive retailer, Family Dollar Stores,
Inc.
16. On May 23, 2010, six days after
the recall was announced, another 8year-old boy died after he swallowed a
dart and asphyxiated.
17. Although Henry Gordy had
obtained sufficient information to
reasonably support the conclusion that
the Target Sets contained a defect which
could create a substantial product
hazard, or created an unreasonable risk
of serious injury or death, Henry Gordy
failed to inform the Commission
immediately of such defect or risk, as
required by sections 15(b)(3) and (4) of
the CPSA, 15 U.S.C. 2064(b)(3) and (4).
In failing to report to the Commission,
Henry Gordy knowingly violated section
19(a)(4) of the CPSA, 15 U.S.C.
2068(a)(4), as the term ‘‘knowingly’’ is
defined in section 20(d) of the CPSA, 15
U.S.C. 2069(d).
18. Henry Gordy also had obtained
information to reasonably support the
conclusion that a child had choked on
a small part contained in a toy or game,
and learned that the child had died as
a result of that incident. Nevertheless,
Henry Gordy did not report within 24
hours of obtaining that information, as
it was required to do under section
102(a) of the CSPA, Public Law 103–
267, 108 Stat. 722; 16 CFR 1117.4. By
failing to report within 24 hours of
obtaining the information about a child
who had choked on a small part
contained in a toy or game, Henry Gordy
knowingly violated section 19(a)(3) of
the CPSA, 15 U.S.C. 2068(a)(3), as the
term ‘‘knowingly’’ is defined in section
20(d) of the CPSA, 15 U.S.C. 2069(d).
19. Henry Gordy made a material
misrepresentation to staff in the course
of an investigation under section 15(b)
of the CPSA, by failing to report the
March 9, 2006, death of an 8-year-old
PO 00000
Frm 00007
Fmt 4703
Sfmt 4703
63907
boy and also by failing to report the
packaging design change that it had
made to the Target Sets. In failing to
provide this information to the
Commission in its report under section
15(b), Henry Gordy knowingly violated
section 19(a)(13) of the CPSA, 15 U.S.C.
2068(a)(13), as the term ‘‘knowingly’’ is
defined in section 20(d) of the CPSA, 15
U.S.C. 2069(d).
20. Pursuant to section 20 of the
CPSA, 15 U.S.C. 2069, Henry Gordy is
subject to civil penalties for its knowing
failure to report under section 15(b) of
the CPSA, as required under section
19(a)(4) of the CPSA. Pursuant the
CPSA, 15 U.S.C. 2069, Henry Gordy is
also subject to civil penalties under
section 19(a)(13) of the CPSA for
knowingly making a material
misrepresentation to staff in the course
of its section 15(b) investigation.
21. Pursuant to section 20 of the
CPSA, 15 U.S.C. 2069, Henry Gordy is
subject to civil penalties for its knowing
failure to report under the automatic
reporting provisions of section 102(a) of
the CSPA, pertaining to small parts
incident reporting, Public Law 103–267,
108 Stat. 722.
Response of Henry Gordy
22. Henry Gordy denies all of staff’s
allegations in this Agreement and Order.
23. Henry Gordy specifically denies
that the Target Sets contain a defect
which could create a substantial
product hazard or create an
unreasonable risk of serious injury or
death, and Henry Gordy denies that it
knowingly violated the reporting
requirements of Section 15(b) of the
CPSA, 15 U.S.C. 2064(b).
24. Henry Gordy specifically denies
that it had sufficient information to
reasonably support the conclusion that
the Target Sets contain a defect which
could create a substantial product
hazard or create an unreasonable risk of
serious injury or death.
25. Henry Gordy specifically denies
that it had information to reasonably
support the conclusion that a child had
choked on a small part contained in a
toy or game that it imported and as a
result of that incident had died, and
further denies that it knowingly violated
the reporting requirements of the CSPA,
Public Law 103–267, 108 Stat. 722; 16
CFR 1117.4.
26. Henry Gordy specifically denies
that any of the four deaths described in
staff’s allegations were caused by the
Target Sets imported by Henry Gordy.
27. Henry Gordy specifically denies
that it made a material
misrepresentation to staff in the course
of staff’s investigation.
E:\FR\FM\14OCN1.SGM
14OCN1
63908
Federal Register / Vol. 76, No. 199 / Friday, October 14, 2011 / Notices
28. Henry Gordy is entering into this
Agreement for settlement purposes only,
and it has made a business decision to
avoid additional expenses and
distractions related to further
administrative process and litigation.
tkelley on DSK3SPTVN1PROD with NOTICES
Agreement of the Parties
29. Under the CPSA, the Commission
has jurisdiction over this matter and
over Henry Gordy.
30. In settlement of staff’s allegations,
Henry Gordy shall pay a civil penalty in
the amount of one million, one hundred
thousand dollars ($1,100,000.00) within
twenty (20) calendar days of receiving
service of the Commission’s final Order
accepting the Agreement. The payment
shall be made electronically to the CPSC
via: https://www.pay.gov.
31. The parties enter into this
Agreement for settlement purposes only.
The Agreement does not constitute an
admission by Henry Gordy or a
determination by the Commission, that
Henry Gordy knowingly violated the
CPSA or the CSPA.
32. Upon provisional acceptance of
the Agreement by the Commission, 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). If the Commission does not
receive any written request(s) not to
accept the Agreement within fifteen (15)
calendar days, the Agreement shall be
deemed finally accepted on the 16th
calendar day after the date it is
published in the Federal Register, in
accordance with 16 CFR 1118.20(f).
33. Upon the Commission’s final
acceptance of the Agreement and
issuance of the final Order, Henry Gordy
knowingly, voluntarily, and completely
waives any rights it may have in this
matter to the following: (i) An
administrative or judicial hearing; (ii)
judicial review or other challenge or
contest of the Commission’s actions; (iii)
a determination by the Commission of
whether Henry Gordy failed to comply
with the CPSA and the underlying
regulations; (iv) a determination by the
Commission of whether Henry Gordy
failed to comply with the CSPA and the
underlying regulations; (v) a statement
of findings of fact and conclusions of
law; and (vi) any claims under the Equal
Access to Justice Act.
34. The Commission may publicize
the terms of the Agreement and the
Order.
35. Henry Gordy shall comply with
the provisions of the Agreement and
Order.
36. The Commission issues the Order
under the provisions of the CPSA, and
VerDate Mar<15>2010
15:20 Oct 13, 2011
Jkt 226001
a violation of the Order may subject
Henry Gordy to appropriate legal action.
37. 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.
38. If any provision of the Agreement
or 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 Henry
Gordy agree that severing the provision
materially affects the purpose of the
Agreement and the Order. The
Agreement may be signed in
counterparts.
Henry Gordy International, Inc.
Dated: September 23, 2011.
By: lllllllllllllllllll
David Segal,
President,
Henry Gordy International, Inc.,
P.O. Box 2769, 900 North Avenue,
Plainfield, New Jersey 07062–0769, and
Dated: September 26, 2011.
By: lllllllllllllllllll
Bridget E. Calhoun,
Esq.,
Crowell & Moring LLP,
1001 Pennsylvania Ave., NW.,
Washington, D.C. 20004.
Counsel for Henry Gordy International, Inc.,
U.S. Consumer Product Safety Commission
Staff,
Cheryl A. Falvey,
General Counsel.
Melissa V. Hampshire,
Assistant General Counsel.
Dated: September 28, 2011.
By: lllllllllllllllllll
Patricia Kennedy Vieira, Esq.,
Division of Enforcement and Information,
Office of the General Counsel.
lllllllllllllllllllll
lllllllllllllllllllll
Order
Upon consideration of the Settlement
Agreement entered into between Henry
Gordy International, Inc., its current
and/or former corporate parent(s),
affiliates, successors, and/or assigns,
and any and/or all current and/or
former directors, officers, agents, and
employees (collectively ‘‘Henry Gordy’’)
and the U.S. Consumer Product Safety
Commission (‘‘Commission’’) staff, and
the Commission having jurisdiction
PO 00000
Frm 00008
Fmt 4703
Sfmt 4703
over the subject matter and over Henry
Gordy, and it appearing that the
Settlement Agreement and the Order are
in the public interest, it is:
Ordered that the Settlement
Agreement be, and is, hereby, accepted;
and it is
Further Ordered that Henry Gordy
shall pay a civil penalty in the amount
of one million one hundred thousand
dollars ($1,100,000.00) within twenty
(20) days of service of the Commission’s
final Order accepting the Settlement
Agreement. The payment shall be made
electronically to the CPSC via: https://
www.pay.gov. Upon the failure of Henry
Gordy to make the foregoing payment
when due, interest on the unpaid
amount shall accrue and be paid by
Henry Gordy at the Federal legal rate of
interest set forth at 28 U.S.C. 1961(a)
and (b). (continued on next page)
Provisionally accepted and provisional
Order issued on the 7th day of October, 2011.
BY ORDER OF THE COMMISSION:
lllllllllllllllllllll
Todd A. Stevenson,
Secretary,
U.S. Consumer Product Safety Commission.
[FR Doc. 2011–26662 Filed 10–13–11; 8:45 am]
BILLING CODE 6355–01–P
CORPORATION FOR NATIONAL AND
COMMUNITY SERVICE
Sunshine Act Notice
The Board of Directors of the
Corporation for National and
Community Service gives notice of the
following meeting:
DATE AND TIME: Thursday, October 20,
2011, 10:30 a.m.–12 p.m.
PLACE: Corporation for National and
Community Service, 1201 New York
Avenue, NW., Suite 8312, Washington,
DC 20525 (Please go to 10th floor
reception area for escort).
CALL-IN INFORMATION: This meeting is
available to the public through the
following toll-free call-in number: 888–
946–3503 conference call access code
number 6754733. Any interested
member of the public may call this
number and listen to the meeting.
Callers can expect to incur charges for
calls they initiate over wireless lines,
and the Corporation will not refund any
incurred charges. Callers will incur no
charge for calls they initiate over landline connections to the toll-free
telephone number. Replays are
generally available one hour after a call
ends. The toll-free phone number for the
replay is 402–220–9658. The end replay
date is October 27, 2011 10:59 p.m.
Central Time. This meeting will also be
broadcast live on the Web. Members of
E:\FR\FM\14OCN1.SGM
14OCN1
Agencies
[Federal Register Volume 76, Number 199 (Friday, October 14, 2011)]
[Notices]
[Pages 63906-63908]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-26662]
=======================================================================
-----------------------------------------------------------------------
CONSUMER PRODUCT SAFETY COMMISSION
[CPSC Docket No. 12-C0002]
Henry Gordy International, Inc., Provisional Acceptance of a
Settlement Agreement and Order
AGENCY: Consumer Product Safety Commission.
ACTION: Notice.
-----------------------------------------------------------------------
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
Henry Gordy International, Inc., containing a civil penalty of
$1,100,000.00.
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 October 31, 2011.
ADDRESSES: Persons wishing to comment on this Settlement Agreement
should send written comments to the Comment 12-C0002, Office of the
Secretary, Consumer Product Safety Commission, 4330 East West Highway,
Room 820, Bethesda, Maryland 20814-4408.
FOR FURTHER INFORMATION CONTACT: Patricia Kennedy Vieira, Esquire,
Division of Enforcement and Information, Office of the General Counsel,
Consumer Product Safety Commission, 4330 East West Highway, Bethesda,
Maryland 20814-4408; telephone (301) 504-7623.
SUPPLEMENTARY INFORMATION: The text of the Agreement and Order appears
below.
Dated: October 7, 2011,
Todd A. Stevenson,
Secretary.
Settlement Agreement
1. In accordance with 16 CFR 1118.20, Henry Gordy International,
Inc., its current and/or former corporate parent(s), affiliates,
successors, and/or assigns, and any and/or all current and/or former
directors, officers, agents and employees (collectively ``Henry
Gordy'') and staff (``staff'') of the United States Consumer Product
Safety Commission (``Commission'') hereby enter into this Settlement
Agreement (``Agreement'') under the Consumer Product Safety Act
(``CPSA''). The Agreement and the incorporated attached Order resolve
staff's allegations and settle any and all
[[Page 63907]]
claims under the CPSA and the Child Safety Protection Act, Public Law
103-267, 108 Stat. 722 (1994), which exist or arise from staff's
allegations set forth below.
The Parties
2. Staff is the staff of the Consumer Product Safety Commission, an
independent federal regulatory agency established pursuant to, and
responsible for, the enforcement of the CPSA, 15 U.S.C. 2051-2089, and
the CSPA, Public Law 103-267, 108 Stat. 722.
3. Henry Gordy is a corporation, organized and existing under the
laws of the State of Delaware, with its principal corporate office
located at P.O. Box 2769, 900 North Avenue, Plainfield, New Jersey
07062-0769.
Staff Allegations
4. Between September 2005 and February 2008, Henry Gordy imported
approximately 1,806,048 units of the ``Auto Fire Target Set'' (``Target
Set''). Each Target Set consisted of the following: A toy gun; soft,
pliable, plastic toy darts; and a small target. The Target Sets were
sold for $1.50 nationwide by Family Dollar Stores, Inc., exclusively
during the period September 2005 through January 2009.
5. The Target Sets are ``consumer products.'' At all relevant
times, Henry Gordy, as importer of the Target Sets, is a
``manufacturer'' of these consumer products, which were ``distributed
in commerce,'' as those terms are defined or used in sections 3(a)(5),
(8) and (11) of the CPSA, 15 U.S.C. 2052(a)(5), (8) and (11).
6. The Target Sets are defective because if a child places the
soft, pliable plastic toy dart in their mouth, the dart can be inhaled
into the throat and it can prevent the child from breathing.
7. Henry Gordy received its first report of a death involving a
Target Set on or about May 1, 2006, after an 8-year-old boy choked on a
dart and died on March 9, 2006.
8. In response to the death reported on or about May 1, 2006, Henry
Gordy implemented a design change, on or about August 3, 2006, to add a
product warning to the Target Set's packaging, which stated: ``Parental
Supervision Suggested.''
9. On January 8, 2007, Henry Gordy was notified that a 10-year-old
boy had died after he swallowed a dart and asphyxiated.
10. On October 31, 2007, Henry Gordy was notified that a 9-year-old
boy had died after he swallowed a dart and asphyxiated.
11. Despite being aware of the information set forth in Paragraphs
7 through 10, Henry Gordy did not report to the Commission until May
29, 2009, after staff asked Henry Gordy to do so. By May 29, 2009,
Henry Gordy was aware of three deaths involving the Target Sets.
12. In its report to the Commission on May 29, 2009, Henry Gordy
did not include the death on March 9, 2006, of the 8-year-old boy; nor
did Henry Gordy notify the Commission of the packaging design change it
made in response to that death.
13. On June 30, 2009, staff informed Henry Gordy that the Target
Sets should be recalled.
14. On September 28, 2009, Henry Gordy notified staff that it would
not agree to staff's request for a recall of the Target Sets.
15. Ultimately, the Target Sets were recalled on May 17, 2010, by
the exclusive retailer, Family Dollar Stores, Inc.
16. On May 23, 2010, six days after the recall was announced,
another 8-year-old boy died after he swallowed a dart and asphyxiated.
17. Although Henry Gordy had obtained sufficient information to
reasonably support the conclusion that the Target Sets contained a
defect which could create a substantial product hazard, or created an
unreasonable risk of serious injury or death, Henry Gordy failed to
inform the Commission immediately of such defect or risk, as required
by sections 15(b)(3) and (4) of the CPSA, 15 U.S.C. 2064(b)(3) and (4).
In failing to report to the Commission, Henry Gordy knowingly violated
section 19(a)(4) of the CPSA, 15 U.S.C. 2068(a)(4), as the term
``knowingly'' is defined in section 20(d) of the CPSA, 15 U.S.C.
2069(d).
18. Henry Gordy also had obtained information to reasonably support
the conclusion that a child had choked on a small part contained in a
toy or game, and learned that the child had died as a result of that
incident. Nevertheless, Henry Gordy did not report within 24 hours of
obtaining that information, as it was required to do under section
102(a) of the CSPA, Public Law 103-267, 108 Stat. 722; 16 CFR 1117.4.
By failing to report within 24 hours of obtaining the information about
a child who had choked on a small part contained in a toy or game,
Henry Gordy knowingly violated section 19(a)(3) of the CPSA, 15 U.S.C.
2068(a)(3), as the term ``knowingly'' is defined in section 20(d) of
the CPSA, 15 U.S.C. 2069(d).
19. Henry Gordy made a material misrepresentation to staff in the
course of an investigation under section 15(b) of the CPSA, by failing
to report the March 9, 2006, death of an 8-year-old boy and also by
failing to report the packaging design change that it had made to the
Target Sets. In failing to provide this information to the Commission
in its report under section 15(b), Henry Gordy knowingly violated
section 19(a)(13) of the CPSA, 15 U.S.C. 2068(a)(13), as the term
``knowingly'' is defined in section 20(d) of the CPSA, 15 U.S.C.
2069(d).
20. Pursuant to section 20 of the CPSA, 15 U.S.C. 2069, Henry Gordy
is subject to civil penalties for its knowing failure to report under
section 15(b) of the CPSA, as required under section 19(a)(4) of the
CPSA. Pursuant the CPSA, 15 U.S.C. 2069, Henry Gordy is also subject to
civil penalties under section 19(a)(13) of the CPSA for knowingly
making a material misrepresentation to staff in the course of its
section 15(b) investigation.
21. Pursuant to section 20 of the CPSA, 15 U.S.C. 2069, Henry Gordy
is subject to civil penalties for its knowing failure to report under
the automatic reporting provisions of section 102(a) of the CSPA,
pertaining to small parts incident reporting, Public Law 103-267, 108
Stat. 722.
Response of Henry Gordy
22. Henry Gordy denies all of staff's allegations in this Agreement
and Order.
23. Henry Gordy specifically denies that the Target Sets contain a
defect which could create a substantial product hazard or create an
unreasonable risk of serious injury or death, and Henry Gordy denies
that it knowingly violated the reporting requirements of Section 15(b)
of the CPSA, 15 U.S.C. 2064(b).
24. Henry Gordy specifically denies that it had sufficient
information to reasonably support the conclusion that the Target Sets
contain a defect which could create a substantial product hazard or
create an unreasonable risk of serious injury or death.
25. Henry Gordy specifically denies that it had information to
reasonably support the conclusion that a child had choked on a small
part contained in a toy or game that it imported and as a result of
that incident had died, and further denies that it knowingly violated
the reporting requirements of the CSPA, Public Law 103-267, 108 Stat.
722; 16 CFR 1117.4.
26. Henry Gordy specifically denies that any of the four deaths
described in staff's allegations were caused by the Target Sets
imported by Henry Gordy.
27. Henry Gordy specifically denies that it made a material
misrepresentation to staff in the course of staff's investigation.
[[Page 63908]]
28. Henry Gordy is entering into this Agreement for settlement
purposes only, and it has made a business decision to avoid additional
expenses and distractions related to further administrative process and
litigation.
Agreement of the Parties
29. Under the CPSA, the Commission has jurisdiction over this
matter and over Henry Gordy.
30. In settlement of staff's allegations, Henry Gordy shall pay a
civil penalty in the amount of one million, one hundred thousand
dollars ($1,100,000.00) within twenty (20) calendar days of receiving
service of the Commission's final Order accepting the Agreement. The
payment shall be made electronically to the CPSC via: https://www.pay.gov.
31. The parties enter into this Agreement for settlement purposes
only. The Agreement does not constitute an admission by Henry Gordy or
a determination by the Commission, that Henry Gordy knowingly violated
the CPSA or the CSPA.
32. Upon provisional acceptance of the Agreement by the Commission,
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). If the Commission does not receive any written request(s)
not to accept the Agreement within fifteen (15) calendar days, the
Agreement shall be deemed finally accepted on the 16th calendar day
after the date it is published in the Federal Register, in accordance
with 16 CFR 1118.20(f).
33. Upon the Commission's final acceptance of the Agreement and
issuance of the final Order, Henry Gordy knowingly, voluntarily, and
completely waives any rights it may have in this matter to the
following: (i) An administrative or judicial hearing; (ii) judicial
review or other challenge or contest of the Commission's actions; (iii)
a determination by the Commission of whether Henry Gordy failed to
comply with the CPSA and the underlying regulations; (iv) a
determination by the Commission of whether Henry Gordy failed to comply
with the CSPA and the underlying regulations; (v) a statement of
findings of fact and conclusions of law; and (vi) any claims under the
Equal Access to Justice Act.
34. The Commission may publicize the terms of the Agreement and the
Order.
35. Henry Gordy shall comply with the provisions of the Agreement
and Order.
36. The Commission issues the Order under the provisions of the
CPSA, and a violation of the Order may subject Henry Gordy to
appropriate legal action.
37. 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.
38. If any provision of the Agreement or 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 Henry Gordy agree that severing the provision materially affects
the purpose of the Agreement and the Order. The Agreement may be signed
in counterparts.
Henry Gordy International, Inc.
Dated: September 23, 2011.
By:--------------------------------------------------------------------
David Segal,
President,
Henry Gordy International, Inc.,
P.O. Box 2769, 900 North Avenue,
Plainfield, New Jersey 07062-0769, and
Dated: September 26, 2011.
By:--------------------------------------------------------------------
Bridget E. Calhoun,
Esq.,
Crowell & Moring LLP,
1001 Pennsylvania Ave., NW.,
Washington, D.C. 20004.
Counsel for Henry Gordy International, Inc.,
U.S. Consumer Product Safety Commission Staff,
Cheryl A. Falvey,
General Counsel.
Melissa V. Hampshire,
Assistant General Counsel.
Dated: September 28, 2011.
By:--------------------------------------------------------------------
Patricia Kennedy Vieira, Esq.,
Division of Enforcement and Information,
Office of the General Counsel.
-----------------------------------------------------------------------
-----------------------------------------------------------------------
Order
Upon consideration of the Settlement Agreement entered into between
Henry Gordy International, Inc., its current and/or former corporate
parent(s), affiliates, successors, and/or assigns, and any and/or all
current and/or former directors, officers, agents, and employees
(collectively ``Henry Gordy'') and the U.S. Consumer Product Safety
Commission (``Commission'') staff, and the Commission having
jurisdiction over the subject matter and over Henry Gordy, and it
appearing that the Settlement Agreement and the Order are in the public
interest, it is:
Ordered that the Settlement Agreement be, and is, hereby, accepted;
and it is
Further Ordered that Henry Gordy shall pay a civil penalty in the
amount of one million one hundred thousand dollars ($1,100,000.00)
within twenty (20) days of service of the Commission's final Order
accepting the Settlement Agreement. The payment shall be made
electronically to the CPSC via: https://www.pay.gov. Upon the failure of
Henry Gordy to make the foregoing payment when due, interest on the
unpaid amount shall accrue and be paid by Henry Gordy at the Federal
legal rate of interest set forth at 28 U.S.C. 1961(a) and (b).
(continued on next page)
Provisionally accepted and provisional Order issued on the 7th
day of October, 2011.
BY ORDER OF THE COMMISSION:
-----------------------------------------------------------------------
Todd A. Stevenson,
Secretary,
U.S. Consumer Product Safety Commission.
[FR Doc. 2011-26662 Filed 10-13-11; 8:45 am]
BILLING CODE 6355-01-P