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[Federal Register Volume 78, Number 24 (Tuesday, February 5, 2013)]
[Notices]
[Pages 8117-8118]
From the Federal Register Online via the Government Printing 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
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