[Federal Register: December 16, 2009 (Volume 74, Number 240)]
[Notices]
[Page 66624-66626]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr16de09-40]
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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