[Federal Register Volume 76, Number 241 (Thursday, December 15, 2011)]
[Notices]
[Pages 77981-77982]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-32116]



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CONSUMER PRODUCT SAFETY COMMISSION

[CPSC Docket No. 12-C0004]


Build-A-Bear Workshop, 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 
Build-A-Bear Workshop, Inc., containing a civil penalty of $600,000.00.

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 December 30, 2011.

ADDRESSES: Persons wishing to comment on this Settlement Agreement 
should send written comments to the Comment 12-C0004, Office of the 
Secretary, Consumer Product Safety Commission, 4330 East-West Highway, 
Room 820, Bethesda, Maryland 20814-4408.

FOR FURTHER INFORMATION CONTACT: Belinda V. Bell, Trial Attorney, 
Division of Compliance, Office of the General Counsel, Consumer Product 
Safety Commission, 4330 East-West Highway, Bethesda, Maryland 20814-
4408; telephone (301) 504-7592.

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

    Dated: December 9, 2011.
Todd A. Stevenson,
Secretary.

Settlement Agreement

    1. In accordance with 16 CFR 1118.20, Build-A-Bear Workshop, Inc. 
(``Build-A-Bear'') and staff of the United States Consumer Product 
Safety Commission (``Commission'') hereby enter into this Settlement 
Agreement (``Agreement'') under the Consumer Product Safety Act 
(``CPSA''). The Agreement and the incorporated attached Order resolve 
staff's allegations set forth below.

The Parties

    2. Staff is the staff of the Commission, an independent federal 
regulatory agency established pursuant to, and responsible for, the 
enforcement of the CPSA, 15 U.S.C. 2051-2089.
    3. Build-A-Bear is a corporation, organized and existing under the 
laws of the State of Delaware, with its principal corporate office 
located at 1954 Innerbelt Business Center Drive, St. Louis, Missouri 
63114.

Staff Allegations

    4. Between March 2001 and October 2008, Build-A-Bear imported and 
sold to consumers approximately 260,000 folding wooden frame toy beach 
chairs (``Chairs''). The Chairs were sold through the Build-A-Bear Web 
site and at Build-A-Bear stores in the United States, the United 
Kingdom, and Canada for approximately $8.00 each.
    5. The Chairs are ``consumer products'' and, at all relevant times, 
Build-A-Bear was an ``importer'' of these 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. The Chairs are defective because the sharp edges of the Chair's 
folding wooden frame can pinch, lacerate, or amputate a child's 
fingertip if the finger is caught between the frame as the Chair is 
folded.
    7. In July 2007, Build-A-Bear received its first complaint of 
injury involving the Chairs' folding wooden frame.
    8. In October 2008, Build-A-Bear stopped sale of the Chairs and 
issued a notice to its stores to return all Chairs in inventory to the 
Build-A-Bear storage warehouse.
    9. Between July 2007 and January 2009, Build-A-Bear became aware of 
10 injury complaints caused by the Chairs.
    10. Despite knowledge of the information set forth in Paragraphs 6 
through 9, Build-A-Bear did not report to the Commission until March 
10, 2009. Build-A-Bear recalled the Chairs on May 14, 2009.
    11. Build-A-Bear had obtained sufficient information to reasonably 
support the conclusion that the Chairs contained a defect which could 
create a substantial product hazard, or that the Chairs created an 
unreasonable risk of serious injury or death, but Build-A-Bear failed 
to inform the Commission immediately of such defect or risk, as 
required by sections 15(b)(3) and (4) of the CPSA, 15 U.S.C. 2064(b)(3) 
and (4). In failing to inform the Commission about the Chairs 
immediately, Build-A-Bear knowingly violated section 19(a)(4) of the 
CPSA, 15 U.S.C. 2068(a)(4), as the term ``knowingly'' 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, Build-A-
Bear is subject to civil penalties for its knowing failure to report, 
as required under section 15(b) of the CPSA, 15 U.S.C. 2064(b).

Response of Build-A-Bear Workshop, Inc.

    13. Build-A-Bear denies the aforementioned staff allegations.
    14. On March 10, 2009 Build-A-Bear filed a Section 15 Report under 
the Commission's Fast Track Program initiating a voluntary recall. 
Prior to that time, Build-A-Bear denies that it had sufficient 
information regarding injuries associated with the product to conclude 
that the Chairs contained a defect which could create a substantial 
product hazard or create an unreasonable risk of serious injury or 
death. Therefore, Build-A-Bear denies that it violated the reporting 
requirements of Section 15(b) of the CPSA, 15 U.S.C. 2064(b).

Agreement of the Parties

    15. Under the CPSA, the Commission has jurisdiction over this 
matter and over Build-A-Bear.
    16. In settlement of staff's allegations, Build-A-Bear shall pay a 
civil penalty in the amount of $600,000.00 within 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.
    17. Build-A-Bear agrees that it will not seek or accept, directly 
or indirectly, indemnification, reimbursement, insurance, or any other 
form of compensation or payment, including, but not limited to, cash, 
account credit, or setoff, from any manufacturer, importer, or retail 
store, or from any other firm or person, for the civil penalty that 
Build-A-Bear agrees to pay pursuant to this Agreement and Order.
    18. The parties enter into this Agreement for settlement purposes 
only. The Agreement does not constitute an admission by Build-A-Bear, 
nor does it constitute a determination by the Commission, that Build-A-
Bear violated the CPSA's reporting requirements.
    19. Upon provisional acceptance of the Agreement by the Commission, 
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). If the Commission does not receive any written request not 
to accept the Agreement within 15 calendar days, the Agreement shall be 
deemed finally accepted on the 16th calendar day after the date it is 
published in the Federal Register, in accordance with 16 CFR 
1118.20(f).
    20. Upon the Commission's final acceptance of the Agreement and 
issuance of the final Order, Build-A-

[[Page 77982]]

Bear knowingly, voluntarily, and completely waives any rights it may 
have in this matter to the following: (a) An administrative or judicial 
hearing; (b) judicial review or other challenge or contest of the 
Commission's actions; (c) a determination by the Commission of whether 
Build-A-Bear failed to comply with the CPSA and the underlying 
regulations; (d) a statement of findings of fact and conclusions of 
law; and (e) any claims under the Equal Access to Justice Act.
    21. The Commission may publicize the terms of the Agreement and the 
Order.
    22. The Agreement and the Order shall apply to, and be binding 
upon, Build-A-Bear and each of its successors and/or assigns.
    23. The Commission issues the Order under the provisions of the 
CPSA, and a violation of the Order may subject Build-A-Bear and each of 
its successors and/or assigns to appropriate legal action.
    24. 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 the terms or the Agreement and the Order. The 
Agreement shall not 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.
    25. If any provision of the Agreement or 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 Agreement and 
the Order shall remain in full force and effect, unless the Commission 
and Build-A-Bear agree that severing the provision materially affects 
the purpose of the Agreement and Order.

Build-A-Bear Workshop, Inc.

Dated: September 27, 2011.

By:--------------------------------------------------------------------

Eric R. Fencl,
General Counsel,

Build-A-Bear Workshop, Inc.
1954 Innerbelt Business Center Drive
St. Louis, MO 63114.

Dated: September 27, 2011.

By:--------------------------------------------------------------------

Stephen L. Hill,
Esquire,

Husch Blackwell LLP
4801 Main Street, Suite 1000
Kansas City, MO 64112
Counsel for Build-A-Bear Workshop, Inc.

U.S. Consumer Product Safety Commission Staff

Cheryl A. Falvey,
General Counsel.

Mary B. Murphy,
Assistant General Counsel.

Dated: December 2, 2011.

By:--------------------------------------------------------------------

Belinda V. Bell,
Trial Attorney,

Division of Compliance
Office of the General Counsel.

Order

    Upon consideration of the Settlement Agreement entered into between 
Build-A-Bear Workshop, Inc. (``Build-A-Bear''), and the U.S. Consumer 
Product Safety Commission (``Commission'') staff, and the Commission 
having jurisdiction over the subject matter and over Build-A-Bear, and 
it appearing that the Settlement Agreement and the Order are in the 
public interest, it is
    Ordered that the Settlement Agreement be, and is, hereby, accepted; 
and it is
    Further Ordered, that Build-A-Bear shall pay a civil penalty in the 
amount of $600,000.00 within 20 calendar days of receiving service of 
the Commission's final Order accepting the Settlement Agreement. The 
payment shall be made electronically to the CPSC via http://www.pay.gov. Upon the failure of Build-A-Bear to make the foregoing 
payment when due, interest on the unpaid amount shall accrue and be 
paid by Build-A-Bear 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 9th 
day of December, 2011.
    By order of the Commission.
Todd A. Stevenson,
Secretary, U.S. Consumer Product Safety Commission.
[FR Doc. 2011-32116 Filed 12-14-11; 8:45 am]
BILLING CODE 6355-01-P