[Federal Register: August 3, 2009 (Volume 74, Number 147)]
[Notices]
[Page 38405-38406]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr03au09-43]
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CONSUMER PRODUCT SAFETY COMMISSION
[CPSC Docket No. 09-C0022]
Downeast Concepts, Inc., 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
Downeast Concepts, Inc., containing a civil penalty of $30,000.00.
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 August 18, 2009.
ADDRESSES: Persons wishing to comment on this Settlement Agreement
should send written comments to the Comment 09-C0022, 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 or Neal S. Cohen, Trial Attorney, (same
address); telephone (301) 504-7504.
SUPPLEMENTARY INFORMATION: The text of the Agreement and Order appears
below.
Dated: July 28, 2009.
Todd A. Stevenson,
Secretary.
United States of America--Consumer Product Safety Commission
In the Matter of Downeast Concepts, Inc., CPSC Docket No. 09-
C0022.
Settlement Agreement
1. In accordance with 16 CFR 1118.20, Downeast Concepts, Inc.
(``Downeast'') 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. Downeast is a corporation organized and existing under the
laws of Maine, with its principal offices located in Yarmouth,
Maine. At all times relevant hereto, Downeast imported and/or sold
painted metal water bottles.
Staff Allegations
4. Between February 2006 and February 2007, Downeast imported
into the United States about 18,000 units of metal water bottles,
marketed under the ``Backyard and Beyond'' brand and painted with
assorted animal and insect graphics on the exterior (Model Numbers:
60442, 60448, 67402, 67404, 67442, 67444, 67742, 67744, 67746 and
67748 (``Bottle(s)'')). Downeast distributed most of the subject
products to major retailers, gift shops, convenience stores, mass
merchandise and drug stores nationwide from February 2006 through
January 2008 and said products were then sold for about $8.00 per
unit.
5. The Bottles are ``consumer product(s),'' and, at all times
relevant hereto, Downeast was a ``manufacturer'' of those consumer
product(s), which were ``distributed in commerce,'' as those terms
are defined in CPSA sections 3(a)(3), (5), (8), and (11), 15 U.S.C.
Sec. Sec. 2052(a)(3), (5), (8), and (11).
6. The Bottles 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 CFR 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).
7. Downeast reported to CPSC on January 25, 2008 that recent
testing of samples of the Bottles by an independent laboratory had
demonstrated that various colors of paints used to create the
designs on the outside surface of the Bottles contained a total lead
content ranging from 0.07 percent to as high as 59.78 percent. These
levels of lead are in excess of the permissible 0.06 percent limit
set forth in the Ban.
8. On March 25, 2008, the Commission and Downeast announced a
consumer-level recall of about 18,000 units of the Bottles because
``Surface paint on the metal water bottles contains excessive levels
of lead, violating the Federal lead paint standard.''
9. Although Downeast reported no incidents or injuries
associated with the Bottles, 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.
10. The Bottles 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.
11. Between February 2006 and January 2008, Downeast
manufactured 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 Bottles, in violation of section
19(a)(1) of the CPSA, 15 U.S.C. 2068(a)(1). Downeast committed these
prohibited acts ``knowingly,'' as that term is defined in section
20(d) of the CPSA, 15 U.S.C. 2069(d).
12. Pursuant to section 20 of the CPSA, 15 U.S.C. 2069, Downeast
is subject to civil penalties for the aforementioned violations.
Downeast's Responsive Allegations
13. Downeast denies the Staff's allegations set forth above that
Downeast knowingly violated the CPSA.
Agreement of the Parties
14. Under the CPSA, the Commission has jurisdiction over this
matter and over Downeast.
15. The parties enter into the Agreement for settlement purposes
only. The Agreement does not constitute an admission by Downeast, or
a determination by the Commission, that Downeast has knowingly
violated the CPSA.
16. In settlement of the Staff's allegations, Downeast shall pay
a civil penalty in the amount of thirty thousand dollars
($30,000.00). The civil penalty shall be paid 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.
17. 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
[[Page 38406]]
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.
18. Upon the Commission's final acceptance of the Agreement and
issuance of the final Order, Downeast 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 Downeast 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.
19. The Commission may publicize the terms of the Agreement and
Order.
20. The Agreement and Order shall apply to, and be binding upon,
Downeast and each of its successors and assigns.
21. The Commission issues the Order under the provisions of the
CPSA, and violation of the Order may subject Downeast and each of
its successors and assigns to appropriate legal action.
22. 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,
modification, or alteration is sought to be enforced.
23. 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 Downeast agree that severing the provision materially affects
the purpose of the Agreement and Order.
Downeast Concepts, Inc.
Dated: 3/18/09.
By:--------------------------------------------------------------------
Frederick H. Palmer,
President, Downeast Concepts, Inc., 86 Downeast Drive, Yarmouth, ME
04096.
Dated: 3/20/09.
By:--------------------------------------------------------------------
David W. Bertoni, Esq.,
Brann & Isaacson, 184 Main Street, P.O. Box 3070, Lewiston, ME
04243, Counsel for Downeast Concepts, Inc.
U.S. Consumer Product Safety Commission Staff.
Cheryl A. Falvey,
General Counsel, Office of the General Counsel.
Ronald G. Yelenik,
Assistant General Counsel, Office of the General Counsel.
Dated: 4/14/09.
By:--------------------------------------------------------------------
M. Reza Malihi,
Trial Attorney, Office of the General Counsel.
By:--------------------------------------------------------------------
Neal S. Cohen,
Trial Attorney, Office of the General Counsel.
United States of America--Consumer Product Safety Commission
In the Matter of Downeast Concepts, Inc., CPSC Docket No. 09-
C0022.
Order
Upon consideration of the Settlement Agreement entered into
between Downeast Concepts, Inc. (``Downeast'') and the U.S. Consumer
Product Safety Commission (``Commission'') staff, and the Commission
having jurisdiction over the subject matter and over Downeast, 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 Downeast shall pay a civil penalty in the
amount of thirty thousand dollars ($30,000.00). The civil penalty
shall be paid 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 Downeast to make the foregoing payment when due,
interest on the outstanding balance shall accrue and be paid by
Downeast 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 8th
day of July, 2009.
By Order of the Commission.
Todd A. Stevenson,
Secretary, U.S. Consumer Product Safety Commission.
[FR Doc. E9-18520 Filed 7-31-09; 8:45 am]
BILLING CODE 6355-01-P