[Federal Register Volume 76, Number 196 (Tuesday, October 11, 2011)]
[Notices]
[Pages 62785-62787]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-26162]


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CONSUMER PRODUCT SAFETY COMMISSION

[CPSC Docket No. 12-C0001]


Nordica USA, 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 
Nordica USA, containing a civil penalty of $214,000.00.

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 October 26, 2011.

ADDRESSES: Persons wishing to comment on this Settlement Agreement 
should send written comments to the Comment 12-C0001, Office of the 
Secretary, Consumer Product Safety Commission, 4330 East West Highway, 
Room 820, Bethesda, Maryland 20814-4408.

FOR FURTHER INFORMATION CONTACT: Dennis C. Kacoyanis, General Attorney, 
Division of Enforcement and Information, Office of the General Counsel, 
Consumer Product Safety Commission, 4330 East West Highway, Bethesda, 
Maryland 20814-4408; telephone (301) 504-7587.

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

    Dated: October 4, 2011.
Todd A. Stevenson,
 Secretary.

Settlement Agreement

    1. In accordance with 16 CFR 1118.20, Nordica USA (``Nordica'') and 
staff of the United States Consumer Product Safety Commission 
(``Commission'') enter into this Settlement Agreement

[[Page 62786]]

(``Agreement'') under the Consumer Product Safety Act (``CPSC''). The 
Agreement and the incorporated attached Order (``Order'') resolve the 
allegations set forth below.

Parties

    2. ``Staff'' is staff of the United States Consumer Product Safety 
Commission, 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. Nordica is a corporation organized and existing under the laws 
of New Hampshire, with its principal corporate offices located in West 
Lebanon, New Hampshire. Nordica is a division of Tecnica Group USA.

Staff Allegations

    4. From August 2006 through December 2008, Nordica imported and 
sold to ski retailers about 4,500 pairs of XBI ALU Skis (``Skis''). The 
binding plates on the skis could crack or break causing the skier to 
lose control or fall and suffer injuries.
    5. The Skis are ``consumer products,'' and, at all relevant times, 
Nordica was a ``manufacturer'' of those consumer products, which were 
``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. Beginning in December 2007, one of Nordica's retail customers 
advised Nordica that it had received calls with comments about the 
Skis' binding plates cracking and breaking. The retail customer 
requested replacement parts for the broken binding plates.
    7. In March 2008, Nordica received a report from another retail 
customer about the Skis' binding plates breaking. Also in March 2008, 
Nordica employees identified numerous incidents of the Skis' binding 
plates cracking and breaking. Nordica advised the foreign manufacturer 
of the retail customers' claims of the Skis' binding plates cracking 
and breaking. Nordica asked the foreign manufacturer to provide Nordica 
with 25 pairs of replacement binding plates for the Skis.
    8. Through April 2008, Nordica continued to receive reports of the 
Skis' binding plates breaking. By the end of April 2008, Nordica knew 
of at least 20 claims of broken Skis binding plates.
    9. On or about Aug. 4, 2008, Nordica received an in-depth 
epidemiologic investigation report from the Commission about the Skis' 
binding plates breaking.
    10. In September 2008, Nordica learned that the foreign 
manufacturer had redesigned the Ski's binding plate. Nordica did not 
ask the foreign manufacturer until December 2008, why it had redesigned 
the Ski's binding plate. At that time, Nordica learned that the foreign 
manufacturer had redesigned the Ski's binding plate because of the 
cracking and breakage problem.
    11. Nordica continued to investigate the binding plate problem 
throughout the fall of 2008. Nordica discovered that it had about 200 
reports of warranty claims related to the Skis' binding plates cracking 
and breaking.
    12. Despite being aware of the information in paragraphs 7 through 
12, Nordica did not report to the Commission until December 3, 2008. By 
that time, Nordica was aware of at least 200 reports of the Skis' 
binding plates cracking and breaking.
    13. Nordica obtained information that reasonably supported the 
conclusion that the Skis' binding plates contained a defect that could 
create a substantial product hazard or that the Skis' binding plates 
created an unreasonable risk of serious injury or death. This knowledge 
required Nordica to immediately inform the Commission of the defect and 
risk associated with the Skis' binding plates, as required by section 
15(b)(3) and (4) of the CPSA, 15 U.S.C. 2064(b)(3) and (4).
    14. Nordica knowingly failed to inform the Commission immediately 
about the Skis' binding plates, as required by CPSA sections 15(b)(3) 
and (4), 15 U.S.C. 2064(b)(3) and (4), and as the term ``knowingly'' is 
defined in CPSA section 20(d), 15 U.S.C. 2069(d). This failure violated 
CPSA section 19(a)(4), 15 U.S.C. 2068(a)(4). Pursuant to CPSA section 
20, 15 U.S.C. 2069, this failure subjected Nordica to civil penalties.

Nordica's Response

    15. Nordica denies Staff's allegations that the Skis' binding 
plates contain defects that could create a substantial product hazard 
or create an unreasonable risk of serious injury or death, and further 
denies that it violated the reporting requirements of Section 15(b) of 
the CPSA, 15 U.S.C. 2064(b).
    16. Nordica states that it is not aware of any reports of injury 
associated with cracking or breakage of the binding plates any time 
from the beginning of distribution (2006) up to and including the 
present date (2011).
    17. On or about August 4, 2008, Nordica received a CPSC Incident 
Report that had been submitted by a consumer concerning breakage of an 
XBI Alu Ski. Nordica immediately began investigating whether cracking 
or breakage of the XBI Alu Ski presented a potential safety concern. 
Following extensive investigation, and based upon review of the 
available information--including, but not limited to, the absence of 
any reported injuries and test results provided by the manufacturer--
Nordica did not and still does not believe that the XBI Alu binding 
plate ski contained a defect that could present a substantial product 
hazard or created an unreasonable risk of serious injury or death. Out 
of an abundance of caution, Nordica wished to replace any binding 
plates due to potential risk of cracking. Nordica therefore notified 
CPSC in December 2008 of its willingness to conduct a Fast Track recall 
in full cooperation with CPSC.

Agreement of the Parties

    18. Under the CPSA, the Commission has jurisdiction over this 
matter and over Nordica.
    19. The parties enter into the Agreement for settlement purposes 
only. The Agreement does not constitute an admission by Nordica, or a 
determination by the Commission, that Nordica knowingly violated the 
CPSA.
    20. In settlement of Staff's allegations, Nordica must pay a civil 
penalty in the amount of two hundred-fourteen thousand dollars 
($214,000.00). The civil penalty shall be paid 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 http://www.pay.gov.
    21. The parties enter into this Agreement for settlement purposes. 
The Agreement does not constitute an admission by Nordica or a 
determination by the Commission that Nordica violated the CPSA's 
reporting requirements, or that the Skis' binding plates presented a 
substantial product hazard.
    22. Upon 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 16 CFR 
1118.20(e). Pursuant to 16 CFR 1118.20(f), 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 sixteenth (16th) calendar day after the date it is published in the 
Federal Register, in accordance with 16 CFR 1118.20(f).
    23. Upon the Commission's final acceptance of the Agreement and 
issuance of the final Order, Nordica knowingly, voluntarily, and 
completely waives any rights it may have in this matter to the 
following: (1) An

[[Page 62787]]

administrative or judicial hearing; (2) judicial review or other 
challenge or contest of the validity of the Order or of the 
Commission's actions; (3) a determination by the Commission of whether 
Nordica 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.
    24. The Commission may publicize the terms of the Agreement and the 
Order.
    25. The Agreement and the Order shall apply to, and be binding 
upon, Nordica and each of its successors and assigns.
    26. The Commission issues the Order under the provisions of the 
CPSA, and a violation of the Order may subject Nordica and each of its 
successors and assigns to appropriate legal action.
    27. 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 cannot 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.
    28. If any provision of the Agreement and 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 provisions in 
the Agreement and the Order shall remain in full force and effect, 
unless the Commission and Nordica agree that the severed provision 
materially affects the purpose of the Agreement and the Order.

Nordica Usa

Dated: September 6, 2011.
By:--------------------------------------------------------------------
Willy Booker,
President, Nordica USA, 19 Technology Drive, West Lebanon, NH 03784.

Dated: September 12, 2011.
By:--------------------------------------------------------------------
Eric A. Rubel, Esquire,
Arnold & Porter, LLP, 555 Twelfth Street, NW., Washington, DC 20004-
1206, Counsel for Nordica USA.

U.S. Consumer Product Safety Commission Staff.

Cheryl A. Falvey,
General Counsel.

Melissa V. Hampshire,
Assistant General Counsel, Office of the General Counsel.

Dated: September 22, 2011.
By:--------------------------------------------------------------------
Dennis C. Kacoyanis,
General Attorney, Division of Enforcement and Information, Office of 
the General Counsel.

Order

    Upon consideration of the Settlement Agreement entered into between 
Nordica USA (``Nordica'') and U.S. Consumer Product Safety Commission 
(``Commission'') staff, and the Commission having jurisdiction over the 
subject matter and over Nordica, and it appearing that the Settlement 
Agreement and the Order are in the public interest, it is
    Ordered, that the Settlement Agreement be, and hereby is, accepted; 
and it is
    Further Ordered, that Nordica shall pay a civil penalty in the 
amount of two hundred-fourteen thousand dollars ($214,000.00) within 
twenty (20) calendar days of service of the Commission's final Order 
accepting the Agreement. The payment shall be made electronically to 
the CPSC via http://www.pay.gov. Upon the failure of Nordica to make 
the foregoing payment when due, interest on the unpaid amount shall 
accrue and be paid by Nordica 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 4th 
day of October, 2011.

    By Order of the Commission.
Todd A. Stevenson,
Secretary, U.S. Consumer Product Safety Commission.
[FR Doc. 2011-26162 Filed 10-7-11; 8:45 am]
BILLING CODE 6355-01-P