The Bon-Ton Stores, Inc., Provisional Acceptance of a Settlement Agreement and Order, 17652-17653 [E9-8710]

Agencies

• Consumer Product Safety Commission

[Federal Register Volume 74, Number 72 (Thursday, April 16, 2009)]
[Notices]
[Pages 17652-17653]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E9-8710]


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CONSUMER PRODUCT SAFETY COMMISSION

[CPSC Docket No. 09-C0016]


The Bon-Ton Stores, 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 
The Bon-Ton Stores, Inc., containing a civil penalty of $50,000.00.

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 May 1, 2009.

ADDRESSES: Persons wishing to comment on this Settlement Agreement 
should send written comments to the Comment 09-C0016, Office of the 
Secretary, Consumer Product Safety Commission, 4330 East West Highway, 
Room 502, Bethesda, Maryland 20814-4408.

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

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

    Dated: April 9, 2009.
Todd A. Stevenson,
Secretary.

Settlement Agreement

    1. In accordance with 16 CFR 1118.20, The Bon-Ton Stores, Inc. 
(``Bon-Ton'') and the staff (``Staff'') of the United States Consumer 
Product Safety Commission (``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. Bon-Ton is a corporation organized and existing under the laws 
of the State of Pennsylvania, with its principal offices located in 
York, PA. Bon-Ton is a retailer selling a wide selection of apparel, 
shoes, jewelry, fragrances, and accessories.

Staff Allegations

    4. On or about August 30, 2007, Bon-Ton purchased from a U.S. 
importer approximately 12, 200 boys' hooded sweatshirts with 
drawstrings (``Drawstring Sweatshirts'').
    5. From August 2007 through November 2007, Bon-Ton sold and/or 
offered for sale the Drawstring Sweatshirts to consumers.
    6. The Drawstring Sweatshirts are ``consumer product[s],'' and, at 
all times relevant hereto, Bon-Ton was a ``retailer'' of those consumer 
products, which were ``distributed in commerce,'' as those terms are 
defined in CPSA sections 3(a)(5), (8), and (13), 15 U.S.C. 2052(a)(5), 
(8), and (13).
    7. In February 1996, the Staff issued the Guidelines for 
Drawstrings on Children's Upper Outerwear (``Guidelines'') to help 
prevent children from strangling or entangling on neck and waist 
drawstrings. The Guidelines state that drawstrings can cause, and have 
caused, injuries and deaths when they catch on items such as playground 
equipment, bus doors, or cribs. In the Guidelines, the Staff recommends 
that there be no hood and neck drawstrings in children's upper 
outerwear sized 2T to 12.
    8. In June 1997, ASTM adopted a voluntary standard, ASTM F1816-97, 
that incorporated the Guidelines. The Guidelines state that firms 
should be aware of the hazards and should be sure garments they sell 
conform to the voluntary standard.
    9. On May 19, 2006, the Commission posted on its Web site a letter 
from the Commission's Director of the Office of Compliance to 
manufacturers, importers, and retailers of children's upper outerwear. 
The letter urges them to make certain that all children's upper 
outerwear sold in the United States complies with ASTM F1816-97. The 
letter states that the Staff considers children's upper outerwear with 
drawstrings at the hood or neck area to be defective and to present a 
substantial risk of injury to young children under Federal Hazardous 
Substances Act (``FHSA'') section 15(c), 15 U.S.C. 1274(c). The letter 
also notes the CPSA's section 15(b) reporting requirements.
    10. Bon-Ton reported to the Commission there had been no incidents 
or injuries involving the Drawstring Sweatshirts.
    11. Bon-Ton's distribution in commerce of the Drawstring 
Sweatshirts did not meet the Guidelines or ASTM F1816-97, failed to 
comport with the Staff's May 2006 defect notice, and posed a 
strangulation hazard to children.
    12. On November 27, 2007, the Commission and Bon-Ton announced a 
recall of the Drawstring Sweatshirts. The recall informed consumers 
that they should immediately remove the drawstrings to eliminate the 
hazard.
    13. Bon-Ton had presumed and actual knowledge that the Drawstring 
Sweatshirts distributed in commerce posed a strangulation hazard and 
presented a substantial risk of injury to children under FHSA section 
15(c)(1), 15 U.S.C. 1274(c)(1). Bon-Ton had obtained information that 
reasonably supported the conclusion that the Drawstring Sweatshirts 
contained a defect that could create a substantial product hazard or 
that they created an unreasonable risk of serious injury or death. CPSA 
sections 15(b)(3) and (4), 15 U.S.C. 2064(b)(3) and (4), required Bon-
Ton to immediately inform the Commission of the defect and risk.
    14. Bon-Ton knowingly failed to immediately inform the Commission 
about the Drawstring Sweatshirts as

[[Page 17653]]

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 Bon-Ton to civil penalties.

Bon-Ton Response

    15. Bon-Ton denies the Staff's allegations that Bon-Ton violated 
the CPSA or the FHSA including, but not limited to the allegations that 
Bon-Ton failed to immediately inform the Commission about the 
Drawstring Sweatshirts as required by section 15(b) of the CPSA, supra.
    16. Bon-Ton contends that within 24 hours of learning of the 
presence of Drawstring Sweatshirts in its stores, Bon-Ton had the 
Drawstring Sweatshirts removed and took steps to prevent the further 
sales of Drawstring Sweatshirts.
    17. Bon-Ton asserts that within 24 hours of learning of the 
presence of Drawstring Sweatshirts in its stores, Bon-Ton filed a 
section 15(b) report to the Commission.
    18. In cooperation with the Commission, Bon-Ton announced the 
recall of Drawstring Sweatshirts. As part of the recall, Bon-Ton posted 
recall notices in its stores, provided a toll-free telephone line for 
consumers and posted information regarding the recall on its website.

Agreement of the Parties

    19. Under the CPSA, the Commission has jurisdiction over this 
matter and over Bon-Ton.
    20. The parties enter into the Agreement for settlement purposes 
only. The Agreement does not constitute an admission by Bon-Ton, or a 
determination by the Commission, that Bon-Ton has knowingly violated 
the CPSA.
    21. In settlement of the Staff's allegations, Bon-Ton shall pay a 
civil penalty in the amount of fifty-thousand dollars ($50,000.00) 
within forty-five (45) days of receipt of the Commission's final Order 
accepting the Agreement. The payment shall be by check payable to the 
order of the United States Treasury.
    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). 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) 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.
    23. Upon the Commission's final acceptance of the Agreement and 
issuance of the final Order, Bon-Ton knowingly, voluntarily, and 
completely waives any rights it may have regarding the Staff's 
allegations to the following: (1) An 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 Bon-Ton 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. Upon issuance of, and Bon-Ton's compliance with the final 
Order, the Commission regards this matter as resolved and agrees not to 
bring a civil penalty action against Bon-Ton based upon the Staff's 
allegations set forth in paragraphs 4-14 above regarding the Drawstring 
Sweatshirts.
    25. The Commission may publicize the terms of the Agreement and the 
Order.
    26. The Agreement and the Order shall apply to, and be binding 
upon, Bon-Ton and each of its successors and assigns.
    27. The Commission issues the Order under the provisions of the 
CPSA, and violation of the Order may subject those named in paragraph 
26 to appropriate legal action.
    28. 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 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.
    29. 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 Agreement and 
the Order shall remain in full force and effect, unless the Commission 
and Bon-Ton agree that severing the provision materially affects the 
purpose of the Agreement and the Order.

THE BON-TON STORES, INC.

    Dated: January 6, 2009.
    By:

Mark H. Pettigrew, Esquire,
Associate General Counsel, The Bon-Ton Stores, Inc., 2801 East 
Market Street, York, PA 17402.

U.S. CONSUMER PRODUCT SAFETY COMMISSION.

Cheryl A. Falvey,
General Counsel.

Ronald G. Yelenik,
Assistant General Counsel, Office of the General Counsel.

    Dated: January 6, 2009.
    By:

Dennis C. Kacoyanis,
Trial Attorney, Division of Compliance Office of the General Counsel

Order

    Upon consideration of the Settlement Agreement entered into between 
The Bon-Ton Stores, Inc. (``Bon-Ton'') and the U.S. Consumer Product 
Safety Commission (``Commission'') staff, and the Commission having 
jurisdiction over the subject matter and over Bon-Ton, 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 Bon-Ton shall pay a civil penalty in the 
amount of fifty-thousand dollars ($50,000.00) within forty-five (45) 
days of receipt 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 Bon-Ton to make the 
foregoing payment when due, interest on the unpaid amount shall accrue 
and be paid by Bon-Ton 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 April, 2009.

    BY ORDER OF THE COMMISSION.

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

[FR Doc. E9-8710 Filed 4-15-09; 8:45 am]
BILLING CODE 6355-01-P