Federal Register / Vol. 78, No. 24 / Tuesday, February 5, 2013 / Notices 8117 

(e.g., do they sign up for additional 

products and services)? 

Dated: January 30, 2013. 

Garry Reeder, 

Chief of Staff, Bureau of Consumer Financial 

Protection. 

[FR Doc. 2013–02428 Filed 2–4–13; 8:45 am] 

BILLING CODE 4810–AM–P 

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. 

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. 

§ 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. §§ 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. §§ 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. § 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. 

§§ 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. 

§ 2068(a)(4) as the term ‘‘knowingly’’ is 

defined in section 20(d) of the CPSA, 15 

U.S.C. § 2069(d). 

10. Pursuant to section 20 of the 

CPSA, 15 U.S.C. § 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. 

§ 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. § 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 


tkelley on DSK3SPTVN1PROD with NOTICES
8118 Federal Register / Vol. 78, No. 24 / Tuesday, February 5, 2013 / Notices 

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. 

§ 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. § 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. § 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 

DEPARTMENT OF DEFENSE 

Department of the Army; Corps of 

Engineers 

Cancellation of the Notice of Intent To 

Prepare a Draft and Final Supplemental 

Environmental Impact Statement for 

Reach 1A on the Herbert Hoover Dike 

Major Rehabilitation Project, Martin 

and Palm Beach Counties 

AGENCY: Department of the Army, U.S. 

Army Corps of Engineers, DOD. 

ACTION: Notice; cancellation. 

SUMMARY: The Jacksonville District, U.S. 

Army Corps of Engineers (USACE) 

hereby cancels its Notice of Intent (NOI) 

to prepare a Supplemental 

Environmental Impact Statement (SEIS) 

for Reach 1A on the Herbert Hoover 

Dike (HHD) Major Rehabilitation 

Project, as published in the Federal 

Register, March 9, 2009 (74 FR 10038). 

The USACE issued a Notice of 

Availability (NOA) for the Draft SEIS on 

June 25, 2010 (75 FR 36386). A public 

meeting was held in Canal Point on July 

22, 2010 to present the Draft SEIS. 

The cancellation of the subject SEIS is 

necessitated due to a change in scope of 

the rehabilitation project. The initial 

focus of the HHD Major Rehabilitation 

Report (MRR) from 2000 divided the 

143 miles dike into eight Reaches with 

the initial focus on Reach 1. This Reach 

by Reach approach is being replaced 

with a system-wide risk reduction 

approach as required for safety 

modifications to dams. 

FOR FURTHER INFORMATION CONTACT: 

Questions may be forwarded to Ms. 

Angela Dunn, Environmental Branch, 

Planning Division, Jacksonville District, 

Corps of Engineers, Post Office Box 

4970, Jacksonville, FL 32232–0019, 

Phone: 904–232–2108. 

SUPPLEMENTARY INFORMATION: The 

supplemental MRR will be replaced 

with a system-wide Dam Safety 

Modification (DSM) Report. 

Environmental documentation will be 

prepared and coordinated in 

conjunction with the system wide DSM 

Report as required by the National 

Environmental Policy Act. 


tkelley on DSK3SPTVN1PROD with NOTICES