[Federal Register Volume 60, Number 221 (Thursday, November 16, 1995)]
[Notices]
[Pages 57577-57579]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-28347]



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CONSUMER PRODUCT SAFETY COMMISSION

[CPSC Docket No. 96-C0001]


J.B.I., Inc., a Corporation; Provisional Acceptance of a 
Settlement Agreement and Order

AGENCY: Consumer Product Safety Commission.

ACTION: Provisional acceptance of a settlement agreement under the 
Consumer Product Safety Act.

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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)-
(h). Published below is a provisionally-

[[Page 57578]]
accepted Settlement Agreement with J.B.I., Inc., a corporation.

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 December 1, 1995.

ADDRESSES: Persons wishing to comment on this Settlement Agreement 
should send written comments to the Comment 96-C0001, Office of the 
Secretary, Consumer Product Safety Commission, Washington, D.C. 20207.

FOR FURTHER INFORMATION CONTACT:
Ronald G. Yelenik, Trial Attorney, Office of Compliance and 
Enforcement, Consumer Product Safety Commission, Washington, D.C. 
20207; telephone (301) 504-0626.

SUPPLEMENTARY INFORMATION: The text of the Agreement and Order appears 
below.

    Dated: November 8, 1995.
Sadye E. Dunn,
Secretary.

Settlement Agreement and Order

    1. J.B.I., Inc. (``J.B.I.'' or ``Respondent'') enters into this 
Settlement Agreement and Order with the staff of the Consumer Product 
Safety Commission pursuant to the procedures set forth in section 
1118.20 of the Commission's Procedures for Investigations, Inspections, 
and Inquiries under the Consumer Product Safety Act (``CPSA''), 16 CFR 
1118.20.

The Parties

    2. The ``Staff'' is the staff of the Consumer Product Safety 
Commission (``the Commission'' or ``CPSC''), an independent regulatory 
agency of the United States government responsible for the enforcement 
of the CPSA, 15 U.S.C. 2051 et seq.
    3. Respondent J.B.I. is a corporation organized and existing under 
the laws of the state of California with its principal corporate 
offices located in Long Beach, California.

Staff Allegations

    The Staff contends, as set forth in paragraphs 4 through 9, that:
    4. Between 1982 and 1987, J.B.I. manufactured approximately 1,200 
units of Tug-N-Turn playground equipment exclusively for and together 
with a fast food restaurant operator. The Tug-N-Turns were installed at 
the fast food restaurants nationwide. J.B.I. is a ``manufacturer'' of 
the Tug-N-Turns as that term is defined in section 3(a)(4) of the CPSA, 
15 U.S.C. 2052(a)(4).
    5. The Tug-N-Turn is a ride designed and intended for use by 
children. A child can spin the ride by turning the steering wheel, or 
an individual can cause the ride to spin by pushing it from the 
outside. The Tug-N-Turn is a ``consumer product'' which was 
``distributed in commerce'' as those terms are defined in sections 3(a) 
(1) and (11) of the CPSA, 15 U.S.C. 2052(a) (1) and (11).
    6. The Tug-N-Turn created an unreasonable risk of serious injury or 
contained a defect which could create a substantial product hazard in 
that hardware protruded from the stationary center column of the unit, 
creating the possibility that children's shoe laces or pants cuffs 
could become entangled, causing serious injury. In cooperation with the 
CPSA staff investigation, J.B.I. voluntarily produced information 
showing that it became aware of approximately 70 reports of injuries 
between 1982 and 1991 involving the Tug-N-Turn, at least 40 of which 
allegedly were fractured legs or ankles.
    7. On or about November 24, 1982, J.B.I. first became aware of an 
injury involving a Tug-N-Turn.
    8. Both prior to and during the period in which J.B.I. received 
notice of injuries involving Tug-N-Turns, J.B.I. voluntarily attempted, 
without success, to remedy the protruding hardware problem.
    9. Although J.B.I. obtained sufficient information to reasonably 
support the conclusion that the Tug-N-Turns, described in paragraphs 
five and six above, contained a defect which could create a substantial 
product hazard, or created an unreasonable risk of serious injury, it 
failed to report such information to the Commission as required by 
section 15(b) of the CPSA, 15 U.S.C. 2064(b). This is a knowing 
violation of section 15(b) of the CPSA, is a violation of section 
19(a)(4) of the CPSA, 15 U.S.C. 2068(a)(4), and subjects Respondents to 
civil penalties under section 20 of the CPSA, 15 U.S.C. 2069.

Response of J.B.I.

    J.B.I. contends, as set forth in paragraphs 10 through 14, that:
    10. The Tug-N-Turn does not contain a defect which creates or which 
could create a substantial product hazard or create an unreasonable 
risk of serious injury within the meaning of section 15 of the CPSA, 15 
U.S.C. 2064.
    11. The leg and ankle injuries reported to J.B.I. were sustained on 
Tug-N-Turns that were improperly installed or maintained, and where 
original hardware was substituted. As a result of improper installation 
or maintenance, children's clothing became entangled on hardware that 
protruded from the center column.
    12. J.B.I. is unaware of any instance where a child was injured on 
a properly installed and maintained Tug-N-Turn unit as a result of 
clothing becoming entangled on hardware. A Tug-N-Turn that is properly 
installed and maintained neither creates a substantial product hazard 
nor an unreasonable risk of serious injury.
    13. Between 1982 and 1991, J.B.I. voluntarily took significant 
actions to ensure proper installation of the Tug-N-Turn units, 
including the dissemination of Safety Notices, Warning Labels, and 
ultimately a Removal/Retrofit program.
    14. Prior to receiving a letter from the CPSC in January 1992, 
J.B.I. was unaware of the reporting provisions of the CPSA. J.B.I. 
never ``knowingly'' failed to report to the Commission under section 
15(b) of the CPSA, 15 U.S.C. Sec. 2064(b), with respect to these Tug-N-
Turn units.

Agreement of the Parties

    15. The Commission has jurisdiction over this matter under the 
Consumer Product Safety Act (CPSA), 15 U.S.C. 2051 et seq. 
    16. This Settlement Agreement and Order becomes effective only upon 
its final acceptance by the Commission and service of the incorporated 
Order upon Respondent.
    17. J.B.I. waives any rights it may have (1) to an administrative 
or judicial hearing with respect to the Commission's claim for a civil 
penalty, (2) to judicial review or other challenge or contest of the 
validity of the Commission's action with regard to its claim for a 
civil penalty, (3) to a determination by the Commission as to whether a 
violation of Section 15(b) of the CPSA, 15 U.S.C. 2064(b), has 
occurred, (4) to a statement of findings of fact and conclusions of law 
with regard to the Commission's claim for a civil penalty, and (5) to 
any claims under the Equal Access to Justice Act, 28 U.S.C. 2412.
    18. For purposes of section 6(b) of the CPSA, 15 U.S.C. 2055(b), 
this matter shall be treated as if a complaint had issued, and the 
Commission may publicize the terms of the Settlement Agreement and 
Order, as stated herein.
    19. No agreement, understanding, representation, or interpretation 
not contained in this Settlement Agreement and Order may be used to 
vary or to contradict its terms.
    20. The provisions of this Settlement Agreement and Order shall 
apply to J.B.I. and its successors and assigns.
    21. J.B.I. shall inform the Commission if it learns of any 
additional Tug-N-Turn incidents not previously reported to the 
Commission or information indicating 

[[Page 57579]]
that any Tug-N-Turns in use are still capable of turning.
    22. J.B.I. shall not contest a United States government subpoena 
for J.B.I. representatives to testify at a trial related to the Tug-N-
Turn in any court in the United States. The government will provide 
fees and allowances to any subpoenaed witness in accordance with 28 
U.S.C. 1821.
    23. Upon provisional acceptance of this Settlement Agreement and 
Order by the Commission, the Commission shall place this Agreement and 
Order on the public record and publish it in the Federal Register in 
accordance with the procedures set forth in 16 CFR 1118.20(e)-(h). If 
the Commission does not to accept the Settlement Agreement and Order 
within 15 days of such publication, the Agreement and Order shall be 
deemed finally accepted and the Final Order shall issue on the 16th 
day.
    24. Upon final acceptance of this Settlement Agreement and Order, 
the Commission shall issue the attached Order.
    25. A violation of the Order shall subject the parties to 
appropriate legal action.

        J.B.I. Inc.
Jay Buchbinder,
President, J.B.I., Inc.

The Consumer Product Safety Commission

Eric A. Rubel,
General Counsel.
David Schmeltzer,
Associate Executive Director, Office of Compliance and Enforcement.
Eric L. Stone,
Acting Director, Division of Administrative Litigation, Office of 
Compliance and Enforcement.

    Dated: February 1, 1995.
Ronald G. Yelenik,
Trial Attorney, Division of Administrative Litigation, Office of 
Compliance and Enforcement.

    Dated: February 1, 1995.
Jayme Rizzolo Epstein,
Attorney, Office of General Counsel.

Order

    Upon consideration of the Settlement Agreement between the staff 
and Respondent, and it appearing the Settlement Agreement is in the 
public interest, it is
    Ordered, that the Settlement Agreement be and hereby is accepted, 
as indicated below; and it is
    Further ordered, that Respondent upon final acceptance of the 
Settlement Agreement, shall pay to the U.S. Treasury a civil penalty in 
the amount of two hundred twenty five thousand dollars ($225,000), 
within twenty (20) days after service of this Final Order.

    Provisionally accepted and Provisional Order issued on the 8th 
day of November, 1995.

    By Order of the Commission.
Sadye E. Dunn,
Secretary, Consumer Product Safety Commission.
[FR Doc. 95-28347 Filed 11-15-95; 8:45 am]
BILLING CODE 6355-01-M