New ICM L.P., Provisional Acceptance of a Settlement Agreement and Order, 793-795 [05-112]

Agencies

• Consumer Product Safety Commission

[Federal Register Volume 70, Number 3 (Wednesday, January 5, 2005)]
[Notices]
[Pages 793-795]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 05-112]


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CONSUMER PRODUCT SAFETY COMMISSION

[CPSC Docket No. 05-C0004]


New ICM L.P., 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 Flammable Fabrics Act in the 
Federal Register in accordance with the terms of 16 CFR 1605.13. 
Published below is a provisionally-accepted Settlement Agreement with 
New ICM L.P.

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 January 20, 2005.

ADDRESSES: Persons wishing to comment on this Settlement Agreement 
should send written comments to the Comment 05-C0004, Office of the 
Secretary, Consumer Product Safety Commission, Washington, DC 20207.

FOR FURTHER INFORMATION CONTACT: Dennis C. Kacoyanis, Trial Attorney, 
Office of Compliance, Consumer Product Safety Commission, Washington, 
DC 20207; telephone (301) 504-7587.

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

    Dated: December 29, 2004.
Todd A. Stevenson,
Secretary.

Consent Order Agreement

    NEW ICM L.P. (``Respondent'' or ``NEW ICM'') a limited partnership, 
enters into this Consent Order Agreement (``Agreement'') with the staff 
of the Consumer Product Safety Commission (``the staff'') pursuant to 
the procedures set forth in section 1605.13 of the Commission's 
Procedures for Investigations, Inspections, and Inquiries under the 
Flammable Fabrics Act, 16 CFR 1605.
    This Agreement and Order are for the purpose of settling 
allegations of the

[[Page 794]]

staff that Respondent manufactured and sold purple satin pajamas made 
from 100% polyester and rosebud print nightgowns made from 100% 
polyester that failed to comply with the Standards for the Flammability 
of Children's Sleepwear (``Sleepwear Standards''), 16 CFR parts 1615 
and 1616.

Respondent and the Staff Agree

    1. The Consumer Product Safety Commission (``Commission'') is an 
independent regulatory agency of the United States Government. The 
Commission has jurisdiction over this matter under the Consumer Product 
Safety Act (CPSA), 15 U.S.C. 2051 et seq., the Flammable Fabrics Act 
(FFA), 15 U.S.C. 1191 et seq., and the Federal Trade Commission Act 
(FTCA), 15 U.S.C. 41 et seq.
    2. Respondent is a limited partnership organized and existing under 
the laws of the State of Texas with its principal corporate offices 
located at 220 Sam Bishkin Dr., El Campo, Texas 77437.
    3. Respondent is now, and has been engaged in one or more of the 
following activities: the manufacture for sale, the sale, or the 
offering for sale, in commerce, or the importation into the United 
States, or the introduction, delivery for introduction, transportation 
or causing to be transported, in commerce, or the sale or delivery 
after sale or shipment in commerce, children's sleepwear garments that 
are subject to the Sleepwear Standards.
    4. This Agreement is for the purpose of settling the allegations of 
the accompanying Complaint. This Agreement does not constitute an 
admission by Respondent that it violated the law. The Agreement becomes 
effective only upon its final acceptance by the Commission and service 
of the incorporated Order upon Respondent.
    5. The parties agree that this Consent Order Agreement resolves the 
allegations of the Complaint and the Commission shall not initiate any 
civil or administrative action against Respondent for those alleged 
violations set forth in the Complaint.
    6. Upon final acceptance of this Agreement by the Commission and 
issuance of the Final Order, Respondent knowingly, voluntarily, and 
completely waives any rights it may have in this matter (a) To an 
administrative or judicial hearing, (b) to judicial review or other 
challenge or contest of the validity of the Commission's actions, (c) 
to a determination by the Commission as to whether Respondent failed to 
comply with the CPSA, FFA, FTCA, and the underlying regualtions, (d) to 
a statement of findings of fact and conclusions of law, and (e) to any 
claims under the Equal Access to Justice Act.
    7. Upon provisional acceptance of this Agreement by the Commission, 
this Agreement shall be placed on the public record and shall be 
published in the Federal Register in accordance with the procedures set 
forth in 16 CFR 1605.13(d). If the Commission does not receive any 
written objections within 15 days, the Agreement will be deemed finally 
accepted on the 20th day after the date it is published in the Federal 
Register.
    8. In settlement of the staff's allegations of the Compliant, 
Respondent agrees to comply with the attached Order incorporated herein 
by reference.
    9. Upon a violation of the attached Order by Respondent, the 
Commission reserves the right to take appropriate legal action against 
Respondent for all violations listed in the Complaint and for all 
violations occurring after the date of this Agreement and Respondent 
waives the statute of limitations.
    10. For any violation occurring after the date of this Agreement, 
if the Commission finds that Respondent has manufactured for sale, 
sold, or offered for sale, in commerce, or imported into the United 
States, or introduced, delivered for introduction, transported or 
caused to be transported, in commerce, of any product, fabric, or 
related material which fails to comply with the Flammable Fabrics Act 
and the underlying regulations, Respondent will pay to the Commission 
upon demand a penalty in the amount of five (5) times the retail value 
of the product(s) in question. For purposes of this Agreement the term 
``product(s) in questions'' shall mean product(s) that fail to comply 
with the FFA and the implementing regulations. This provision does not 
preclude the Commission from taking additional action under sections 5, 
6, and 7 of the FFA, 15 U.S.C. 1194, 1195, and 1196; sections 10 and 
17(b) of the FTCA, 15 U.S.C. 50 and 57(b); and any other pertinent 
legal provisions.
    11. Respondent reserves its right to challenge the Commission's 
findings under paragraphs 9 and 10 of this Agreement before the 
Commission and to have the court review whether the Commission's 
decision was arbitrary and capricious.
    12. The Commission may publicize the terms of this Consent Order 
Agreement.
    13. This Agreement, and the Complaint accompanying the Agreement, 
may be used in interpreting the Order. Agreements, understandings, 
representations, or interpretations made outside this Consent Order 
Agreement may not be used to vary or contradict its terms.
    14. Upon acceptance of the Agreement, the Commission shall issue 
the following Order.
    15. The provisions of this Agreement shall apply to Respondent and 
each of its successors and assigns.

Respondent New ICM L.P.

    Dated: September 22, 2004.

Daniel Zalman, President,
New ICM L.P., 220 Sam Bishkin Dr., El Campo, Texas 77437.

    Dated: September 21, 2004.

J. Michael Jordan, Esquire,
Gardere Wynne Sewell LLP, Attorneys for New ICM L.P., 1000 
Louisiana, Suite 3400, Houston, Texas 77002-5007.

Commissions Staff

Alan H. Schoem,
Assistant Executive Director, Office of Compliance, Consumer Product 
Safety Commission, Washington, DC 20207-0001.
Eric L. Stone,
Director, Legal Division, Office of Compliance.

Dated: September 29, 2004.

Dennis G. Kacoyanis,
Trial Attorney, Office of Compliance.

Complaint

Nature of Proceedings

    Pursuant to the provisions of the Flammable Fabrics Act (FFA), as 
amended, 15 U.S.C. 1191 et seq.; the Federal Trade Commission Act 
(FTCA), as amended, 15 U.S.C. 41 et seq.; and the Standards for the 
Flammability of Children's Sleepwear (Sleepwear Standards), 16 CFR 
parts 1615 and 1616, the Consumer Product Safety Commission having 
reason to believe that NEW ICM L.P., 220 Sam Bishkin Dr., El Campo, TX 
77437 has violated the provisions of said Acts; and further it 
appearing to the Commission that a proceeding by it in respect to those 
violations would be in the public interest, therefore, it hereby issues 
its Complaint stating its charges as follows:
    1. Respondent NEW ICM, L.P. is a limited partnership organized and 
existing under the laws of the State of Texas, with its principal place 
of business located at 220 Sam Bishkin Dr., El Campo, TX 77437.
    2. Respondent NEW ICM L.P. is now and has been engaged in the 
manufacture for sale, the sale, or the offering for sale, in commerce, 
or the importation into the United States, or the introduction, 
delivery for introduction, transportation or causing to be transported, 
in commerce, or the sale or delivery after a sale or shipment in 
commerce, as the term ``commerce''

[[Page 795]]

is defined in section 2(b) of the FFA, 15 U.S.C. 1191(b), ``children's 
sleepwear'' as defined in 16 CFR 1615.1 and 1616.1.
    3. In 2001, Respondent NEW ICM L.P. manufactured for sale, sold, 
and offered for sale, in commerce, introduced, delivered for 
introduction, transported or caused for to be transported, in commerce, 
and sold or delivered after a sale or shipment in commerce 2,103 pairs 
of purple satin pajamas, GPU 072899, made from 100% polyester that 
failed to meet the flammability requirements of the Children's 
Sleepwear Standards, 16 CFR parts 1615 and 1615, in violation of 
section 3(a) of the FFA, 15 U.S.C. 1192(a).
    4. In 2001, Respondent NEW ICM L.P. manufactured for sale, sold, 
and offered for sale, in commerce, introduced, delivered for 
introduction, transported or caused to be transported, in commerce, and 
sold or delivered after a sale or shipment in commerce 3,564 rosebud 
print nightgowns, GPU 072600, made from 100% polyester that failed to 
meet the flammability requirements of the Children's Sleepwear 
Standards, 16 CFR parts 1615 and 1616, in violation of section 3(a) of 
the FFA, 15 U.S.C. 1192(a).
    5. The acts by Respondent NEW ICM L.P. set forth in paragraphs 3 
and 4 of the complaint are unlawful and constitute an unfair method of 
competition and an unfair and deceptive practice in commerce under the 
FTCA, in violation of section 3(a) of the FFA, 15 U.S.C. 1192(a), for 
which a cease and desist order may be issued against Respondent 
pursuant to section 5(b) of the FFA, 15 U.S.C. 1194(b), and section 5 
of the FTCA, 15 U.S.C. 45.

Relief Sought

    6. The staff seeks the issuance of a cease and desist order against 
Respondent NEW ICM L.P. pursuant to section 5(b) of the FFA, 15 U.S.C. 
1194(b), and section 5 of the FTCA, 15 U.S.C. 45.

    Wherefore, the premises considered, the Commission hereby issues 
this Complaint on the 29th day of December, 2004.

    By direction of the Commission.

Nicholas V. Marchica,
Acting Assistant Executive Director, Office of Compliance.

Order

I.

    The Commission having jurisdiction over Respondent NEW ICM L.P. and 
over this matter under the Consumer Product Safety Act (CPSA), 15 
U.S.C. 2051 et seq., the Flammable Fabrics Act (FFA), 15 U.S.C. 1191 et 
seq., and the Federal Trade Commission Act (FTCA), 15 U.S.C. 41 et 
seq., it is hereby ordered that Respondent NEW ICM L.P. its successors, 
and assigns, agents, representatives, and employees, directly or 
through any corporation, subsidiary, division, or other business 
entity, or through any agency, device, or instrumentality, do forthwith 
cease and desist from manufacturing for sale, selling, or offering for 
sale, in commerce, or importing into the United States or introducing, 
delivering for introduction, transporting or causing to be transported, 
in commerce, any product, fabric, or related material that fails to 
comply with the Flammable Fabrics Act and the underlying regulations.
    It is further ordered that following service upon Respondent NEW 
ICM L.P. of the Final Order in this matter, Respondent NEW ICM L.P. 
will notify the Commission within 30 days following the consummation of 
the sale of a majority of its stock or following a change in any of its 
corporate officers responsible for compliance with the terms of this 
Consent Agreement and Order.
    By direction of the Commission, this Consent Agreement and Order is 
provisionally accepted pursuant to 16 CFR 1605.13, and shall be placed 
on the public record, and the Secretary is directed to publish the 
provisional acceptance of the Consent Order Agreement in the 
Commission's Public Calendar and in the Federal Register.

    So ordered by the Commission, this 29th day of December 2004.

Todd A. Stevenson,
Secretary,
Consumer Product Safety Commission.

[FR Doc. 05-112 Filed 1-4-04; 8:45 am]
BILLING CODE 6355-01-M