[Federal Register Volume 78, Number 24 (Tuesday, February 5, 2013)]
[Notices]
[Pages 8117-8118]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-02442]
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CONSUMER PRODUCT SAFETY COMMISSION
[CPSC Docket No. 13-C0003]
Whalen Furniture Manufacturing, Inc., d/b/a Bayside Furnishings,
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
Whalen Furniture Manufacturing, Inc., d/b/a Bayside Furnishings,
containing a civil penalty of $725,000.00, within twenty (20) days of
service of the Commission's final Order accepting the Settlement
Agreement.
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 February 20, 2013.
ADDRESSES: Persons wishing to comment on this Settlement Agreement
should send written comments to the Comment 13-C0003, Office of the
Secretary, Consumer Product Safety Commission, 4330 East West Highway,
Room 820, Bethesda, Maryland 20814-4408.
FOR FURTHER INFORMATION CONTACT: Mary B. Murphy, Assistant General
Counsel, Division of Compliance, Office of the General Counsel,
Consumer Product Safety Commission, 4330 East West Highway, Bethesda,
Maryland 20814-4408; telephone (301) 504-7809.
SUPPLEMENTARY INFORMATION: The text of the Agreement and Order appears
below.
Dated: January 31, 2013.
Todd A. Stevenson,
Secretary.
UNITED STATES OF AMERICA
CONSUMER PRODUCT SAFETY COMMISSION
In the Matter of: WHALEN FURNITURE MANUFACTURING, INC. d/b/a
Bayside Furnishings
CPSC Docket No.: 13-C0003
SETTLEMENT AGREEMENT
1. In accordance with 16 C.F.R. Sec. 1118.20, Whalen Furniture
Manufacturing, Inc., d/b/a Bayside Furnishings (``Whalen''), and the
staff (``Staff'') of the United States Consumer Product Safety
Commission (``Commission'') hereby enter into this Settlement Agreement
(``Agreement'') under the Consumer Product Safety Act, 15 U.S.C.
Sec. Sec. 2051-2089 (``CPSA''). The Agreement and the incorporated
attached Order resolve the Staff's allegations set forth below.
THE PARTIES
2. The 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. Sec. Sec. 2051-2089.
3. Whalen is a corporation organized and existing under the laws of
the State of California, with its principal corporate office located at
1578 Air Wing Road, San Diego, California, 92154.
STAFF ALLEGATIONS
4. Between January 2006 and April 2008, Whalen imported and
distributed into the United States approximately 7,739 juvenile beds in
the shape of a boat (``Boat Beds'') under the Bayside Furnishings
brand. The Boat Beds were sold nationwide, for between $699.00 and
$999.00.
5. The Boat Beds included toy chests located as the ``bow'' of each
unit with a 20 pound lid that could be placed up and remain in a fully
opened or closed position. The Boat Beds are ``consumer products''
``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. Sec. 2052(a)(5),
(8) and (11).
6. The Boat Beds are defective because the toy chest lid hinge
support mechanism could fail during use, allowing the lid to fall down
rapidly. This poses a serious trauma and strangulation hazard and risk
of death.
7. On November 2, 2007, Whalen received a report that a toddler
died when a toy chest lid fell on his head, trapping his neck and head
inside the toy chest.
8. Whalen obtained sufficient information to reasonably support the
conclusion that the Boat Beds contained a defect which could create a
substantial product hazard, or created an unreasonable risk of serious
injury or death. Whalen failed to immediately inform the Commission of
such defect or risk as required by sections 15(b)(3) and (4) of the
CPSA, 15 U.S.C. Sec. Sec. 2064(b)(3) and (4).
9. Despite having information regarding the Boat Bed's defect,
Whalen did not file its Full Report with the Commission until March 20,
2008, after the Staff directed Whalen to do so. Whalen knowingly
violated section 19(a)(4) of the CPSA, 15 U.S.C. Sec. 2068(a)(4) as
the term ``knowingly'' is defined in section 20(d) of the CPSA, 15
U.S.C. Sec. 2069(d).
10. Pursuant to section 20 of the CPSA, 15 U.S.C. Sec. 2069,
Whalen is subject to civil penalties for its knowing failure to report
as required under section 15(b) of the CPSA, 15 U.S.C. Sec. 2064(b).
RESPONSE OF WHALEN FURNITURE MANUFACTURING COMPANY, INC.
11. Whalen denies the Staff's allegations, including but not
limited to, that the Boat Beds contained a defect that could create a
substantial product hazard or create an unreasonable risk of serious
injury or death and that Whalen failed to timely notify the Commission
in accordance with section 15(b) of the CPSA, 15 U.S.C. Sec. 2064(b).
12. Whalen believed that the report it received did not represent a
legitimate incident. Whalen was aware of no prior injuries involving
the lid hinge. The products were tested by a third-party testing agency
and passed toy chest safety tests.
AGREEMENT OF THE PARTIES
13. Under the CPSA, the Commission has jurisdiction over this
matter and over Whalen.
14. In settlement of the Staff's allegations, Whalen shall pay a
civil penalty in the amount of seven hundred twenty-five thousand
dollars ($725,000.00) 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 www.pay.gov.
15. The parties enter into this Agreement for settlement purposes
only. Neither the Agreement, nor the fact of entering into this
Settlement Agreement, constitutes the evidence of, or an admission of,
any fault, liability, or
[[Page 8118]]
statutory or regulatory violation by Whalen or any admission by Whalen
of the accuracy of any allegations made by staff.
16. 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
C.F.R. Sec. 1118.20(e). If the Commission does not receive any written
request 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 C.F.R. Sec. 1118.20(f).
17. Upon the Commission's final acceptance of the Agreement and
issuance of the final Order, Whalen 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 as to whether Whalen failed to comply
with the CPSA and the underlying regulations; (iv) a statement of
findings of fact and conclusions of law; and (v) any claims under the
Equal Access to Justice Act.
18. The Commission may publicize the terms of the Agreement and the
Order.
19. The Agreement and the Order shall apply to and be binding upon
Whalen and each of its successors and/or assigns.
20. The Commission issues the Order under the provisions of the
CPSA, and a violation of the Order may subject Whalen and each of its
successors and/or assigns to appropriate legal action.
21. 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.
22. 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 Whalen agree that severing the provision materially affects the
purpose of the Agreement and the Order.
Dated: January 1, 2013.
WHALEN FURNITURE MANUFACTURING, INC.
By:
Kenneth J. Whalen,
President, Whalen Furniture Manufacturing, Inc., 1578 Air Wing Road,
San Diego, CA 92154.
Dated: January 1, 2013.
By:
Sheila A. Millar, Esquire.
Keller and Heckman, LLP,
1001 G Street, NW., Washington, DC 20001, Counsel for Whalen
Furniture Manufacturing, Inc.
U.S. CONSUMER PRODUCT SAFETY COMMISSION STAFF
Mary T. Boyle,
Acting General Counsel.
William J. Moore, Jr.,
Trial Attorney, Division of Compliance, Office of the General
Counsel.
Dated: January 3, 2013.
By:
Mary B. Murphy,
Assistant General Counsel, Division of Compliance, Office of the
General Counsel.
UNITED STATES OF AMERICA
CONSUMER PRODUCT SAFETY COMMISSION
In the Matter of: WHALEN FURNITURE MANUFACTURING, INC. d/b/a
Bayside Furnishings
CPSC Docket No.: 13-C0003
ORDER
Upon consideration of the Settlement Agreement entered into between
Whalen Furniture Manufacturing, Inc. (``Whalen''), and the U.S.
Consumer Product Safety Commission (``Commission'') staff, and the
Commission having jurisdiction over the subject matter and over Whalen,
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 Whalen shall pay a civil penalty in the amount
of seven hundred twenty-five thousand dollars ($725,000.00) 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 www.pay.gov. Upon the failure of Whalen to make the
foregoing payment when due, interest on the unpaid amount shall accrue
and be paid by Whalen at the federal legal rate of interest set forth
at 28 U.S.C. Sec. 1961(a) and (b).
Provisionally accepted and provisional Order issued on the 31st day
of January, 2013.
BY ORDER OF THE COMMISSION:
Todd A. Stevenson,
Secretary, U.S. Consumer Product Safety Commission.
[FR Doc. 2013-02442 Filed 2-4-13; 8:45 am]
BILLING CODE 6355-01-P