[Federal Register: September 20, 2004 (Volume 69, Number 181)]
[Notices]
[Page 56202-56203]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr20se04-46]
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CONSUMER PRODUCT SAFETY COMMISSION
[CPSC Docket No. 04-C0006]
Battat Incorporated, 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
Battat Incorporated, containing a civil penalty of $125,000.
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 5, 2004.
ADDRESSES: Persons wishing to comment on this Settlement Agreement
should send written comments to the Comment 04-C0006, Office of the
Secretary, Consumer Product Safety Commission, Washington, DC 20207.
FOR FURTHER INFORMATION CONTACT: Michelle Faust Gillice, Trial
Attorney, Office of Compliance, Consumer Product Safety Commission,
Washington, DC 20207; telephone (301) 504-7667.
SUPPLEMENTARY INFORMATION: The text of the Agreement and Order appears
below.
Dated: September 13, 2004.
Todd A. Stevenson,
Secretary.
Settlement Agreement and Order
1. Battat Incorporated (hereinafter ``Battat'' or ``Respondent'')
enters into this Settlement Agreement and Order (hereinafter,
``Settlement Agreement'' or ``Agreement'') with the staff of the
Consumer Product Safety Commission (the ``Commission''), and agrees to
the entry of the attached Order incorporated by reference herein. The
Settlement Agreement resolves the Commission staff's allegations set
forth below.
I. The Parties
2. The Commission is an independent federal regulatory commission
responsible for the enforcement of the Consumer Product Safety Act
(``CPSA''), 15 U.S.C. 2051-2084.
3. Respondent was incorporated on December 30, 1981. It is
organized and existing under the laws of the State of Delaware. Its
principal office is located at 44 Martina Circle, Plattsburgh, NY
12901. Respondent manufactures games, toys and children's vehicles.
II. Staff Allegations
4. Between November 2001 and January 2003 (one month prior to the
Commission's request for a full report under section 15(b) of the CPSA,
15 U.S.C. 2064(b)), Respondent manufactured and distributed
approximately 300,000 toys called the ``Bee Bop Band Drum Set'' (``drum
sets''). The drum sets are intended and labeled for children eighteen
months and up. The drum sets contain several musical objects including
a pair of ten inch long drumsticks shaped like centipedes. The
drumsticks are the subject of this Settlement Agreement and Order.
5. The drum sets were produced and distributed for sale to
consumers for use in or around a permanent or temporary household or
residence, a school, in recreation, or otherwise and are therefore,
``consumer products'' as defined in section 3(a)(1) of the CPSA, 15
U.S.C. 2052(a)(1). Respondent was a ``manufacturer'' of the drum sets
which were ``distributed in commerce'' as those terms are defined in
sections 3(a)(4), (11) and (12) of the CPSA, 15 U.S.C. 2052(a)(4), (11)
and (12).
6. The drumsticks contained in the Bee Bop Band Drum Set are
defective because the rubber end cap, the screw affixing some end caps
and the ball tip could break off or detach during use. These pieces are
of a size that present choking and aspiration hazards and fit into the
``small parts'' test cylinder specified in 16 CFR 1501.4.
7. The drumsticks are defective and could create a substantial
product hazard under the CPSA, 15 U.S.C. 2064(b)(2) because the parts
may present choking and aspiration hazards to small children. Further,
the drumsticks created an unreasonable risk of serious injury or death
under the CPSA, 15 U.S.C. 2064(b)(3).
8. While the drum sets when subjected to ``use and abuse'' tests of
16 CFR 1500(51) & (52) (conducted on behalf of Respondent, Respondent's
retail customers, and the Commission) did not produce small parts, the
drumsticks produced small parts in actual use by young children.
9. Between November 2001 and January 2003, Respondent received over
330 complaints from consumers that either the end cap, the screw, or
the tip detached from the drumstick. There were no injuries reported.
10. Respondent modified the product six times between the
aforementioned dates in an attempt to eliminate the end cap, screw, and
ball tip failures.
11. By the time Respondent modified the drumsticks by adding screws
to affix the rubber end caps on May 24, 2002, it had received at least
45 consumer complaints concerning the small parts problem. Certainly by
this point in time, Respondent had obtained information which
reasonably supported the conclusion that the drumsticks were defective
and could create a substantial product hazard or created an
unreasonable risk of serious injury or death, but failed to report such
information in a timely manner to the Commission as required by
sections 15(b)(2) and (3) of the CPSA, 15 U.S.C. 2064(b)(2), (3).
12. On February 6, 2003, after receiving notice of 25 incidents,
the Commission requested that Respondent submit a full report pursuant
to section 15(b) of the CPSA. Respondent did so on February 25, 2003.
13. By failing to furnish information to the Commission in a timely
manner as required by section 15(b) of the CPSA 15 U.S.C. 2064(b),
Respondent violated section 19(a)(4) of the CPSA, 15 U.S.C. 2068(a)(4).
14. Respondent committed this failure to report to the Commission
``knowingly'' as the term ``knowingly'' is defined in section 20(d) of
the CPSA, 15 U.S.C. Sec. 2069(d), thus, subjecting Respondent to civil
penalties under section 20 of the CPSA, 15 U.S.C. Sec. 2069.
III. Response of Battat Incorporated
15. Respondent denies the staff's allegations that the drumsticks
are defective and that it violated the CPSA as set forth in paragraphs
4 through 14.
16. The drum set, manufactured by Respondent's subcontractor, was
tested by third party testing facilities for the presence of small
parts under the testing requirements set forth in the Commission's
regulations at 16 CFR 1501 in each of the subcontractor's 167
individual shipments for the years 2002 through April 2004. A single
failure of the test for small parts would have resulted in the
rejection of the entire lot. At no time did the testing of the
drumsticks produce small parts.
[[Page 56203]]
17. The Commission staff tested 12 drum sets in April 2002 and
tested another 12 drum sets in October 2002, pursuant to 16 CFR 1501,
and on neither occasion did the drumsticks produce small parts.
18. Outside laboratories employed by various customers of
Respondent tested the drum sets pursuant to 16 CFR 1501 and none of the
drumsticks produced small parts.
19. Because testing results always evidenced compliance with the
Commission's small parts regulations, Respondent believes the
drumsticks can not be considered defective under 15 U.S.C. 2064.
20. Respondent further alleges that at no time did its products
injure or choke a child or present a risk of a choking, aspiration or
ingestion hazard to children.
IV. Agreement of The Parties
21. The Consumer Product Safety Commission has jurisdiction over
this matter and over Respondent under the Consumer Product Safety Act,
15 U.S.C. 2051-2084.
22. Respondent agrees to be bound by, and comply with, this
Settlement Agreement and Order.
23. This Agreement is entered into for settlement purposes only and
does not constitute an admission by Respondent, or a determination by
the Commission, that Respondent knowingly violated the CPSA's reporting
requirement.
24. In settlement of the staff's allegations, Respondent agrees to
pay in three installments a civil penalty of one hundred and twenty-
five thousand 00/100 dollars ($125,000.00) in full settlement of this
matter. The first payment of $41,000.00 shall be paid within twenty
(20) calendar days of service of the final Settlement Agreement and
Order. The second payment of $41,000.00 shall be paid within 110 days
of such service. The third and final payment of $43,000.00 shall be
paid within 200 days of such service.
25. Upon provisional acceptance of this Agreement by the
Commission, this Agreement shall be placed on the public record and
shall be 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 objections within 15 days, the Agreement will be
deemed finally accepted on the 16th day after the date it is published
in the Federal Register.
26. Upon final acceptance of this Agreement by the Commission, and
issuance of the Final Order, Respondent knowingly, voluntarily, and
completely waives any rights it may have in this matter (1) To an
administrative hearing, (2) to judicial review or other challenge or
contest of the validity of the Commission's actions, (3) to a
determination by the Commission as to whether Respondent failed to
comply with CPSA and the underlying regulations, (4) to a statement of
findings of fact and conclusion of law, and (5) to any claims under the
Equal Access to Justice Act.
27. The Commission may publicize the terms of the Settlement
Agreement and Order.
28. The Commission's Order in this matter is issued under the
provisions of the CPSA, 15 U.S.C. 2051-2084. Violation of this Order
may subject Respondent to appropriate legal action.
29. This Settlement Agreement may be used in interpreting the
Order. Agreements, understandings, representations, or interpretations
apart from those contained in this Settlement Agreement and Order may
not be used to vary or contradict its terms.
30. If, after the effective date hereof, any provision of this
Settlement Agreement and Order is held to be illegal, invalid, or
unenforceable under present or future laws effective during the terms
of the Settlement Agreement and Order, such provision shall be fully
severable. The rest of the Settlement Agreement and Order shall remain
in full effect, unless the Commission and Respondent determine that
severing the provision materially affects the purpose of the Settlement
Agreement and Order.
31. This Settlement Agreement and Order shall not be waived,
changed, amended, modified, or otherwise altered, except in writing
executed by the party against whom such amendment, modification,
alteration, or waiver is sought to be enforced and approved by the
Commission.
32. The provisions of this Settlement Agreement and Order shall
apply to Respondent and each of its successors and assigns.
Dated: July 22, 2004.
Battat Incorporated
Joseph Battat,
President.
Aaron Locker,
Respondent's Attorney.
The U.S. Consumer Product Safety Commission
Alan H. Schoem,
Director, Office of Compliance.
Eric L. Stone,
Director, Legal Division, Office of Compliance.
Dated: July 30, 2004.
Michelle Faust Gillice,
Trial Attorney, Legal Division, Office of Compliance.
Order
Upon consideration of the Settlement Agreement between Respondent
Battat Incorporated and the staff of the Consumer Product Safety
Commission, and the Commission having jurisdiction over the subject
matter and over Battat Incorporated, and it appearing that the
Settlement Agreement and Order is in the public interest, it is Ordered
that the Settlement Agreement be, and hereby is, accepted, and it is
Further ordered that Battat Incorporated shall pay the United States
Treasury in three installments a civil penalty in the amount of one
hundred and twenty-five thousand and 00/100 dollars, ($125,000.00). The
first payment of $41,000.00 shall be paid within twenty (20) calendar
days of service of the final Settlement Agreement and Order. The second
payment of $41,000.00 shall be paid within 110 days of such service.
The third and final payment of $43,000.00 shall be paid within 200 days
of such service. Upon the failure of Respondent Battat Incorporate to
make a payment or upon the making of a late payment by Respondent
Battat Incorporated (a) the entire amount of the civil penalty shall be
due and payable, and (b) interest on the outstanding balance shall
accrue and be paid at the federal legal rate of interest under the
provisions of 28 U.S.C. 1961(a) and (b).
Provisionally accepted and Provisional Order issued on the 13th
day of September, 2004.
By Order of the Commission:
Todd A. Stevenson,
Secretary Consumer Product Safety Commission.
[FR Doc. 04-21025 Filed 9-17-04; 8:45 am]
BILLING CODE 6355-01-M