[Federal Register Volume 74, Number 147 (Monday, August 3, 2009)]
[Notices]
[Pages 38405-38406]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-18520]


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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