Forman Mills, Inc., Provisional Acceptance of a Settlement Agreement and Order, 17650-17652 [E9-8711]
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17650
Federal Register / Vol. 74, No. 72 / Thursday, April 16, 2009 / Notices
mstockstill on PROD1PC66 with NOTICES
issuance of the final Order, Marshalls
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 Order or of
the Commission’s actions; (3) a
determination by the Commission of
whether Marshalls 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.
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,
Marshalls 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
Marshalls 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 Marshalls
agree that severing the provision
materially affects the purpose of the
Agreement and the Order.
Assistant General Counsel, Division of
Compliance, Office of the General Counsel.
Dated: March 6, 2009.
By:
Seth B. Popkin,
Lead Trial Attorney, Division of Compliance,
Office of the General Counsel.
Marshalls of MA, Inc.
Dated: March 2, 2009.
By:
Ann McCauley,
Secretary, Marshalls of MA, Inc., 770
Cochituate Road, Framingham, MA 01701.
Dated: March 3, 2009.
By:
Eric A. Rubel, Esq.,
Arnold & Porter LLP, 555 12th Street, NW.,
Washington, DC 20004–1206.
Counsel for Marshalls of MA, Inc.
U.S. Consumer Product Safety Commission
Staff.
Cheryl A. Falvey,
General Counsel.
Ronald G. Yelenik,
Forman Mills, Inc., Provisional
Acceptance of a Settlement Agreement
and Order
VerDate Nov<24>2008
16:47 Apr 15, 2009
Jkt 217001
Order
Upon consideration of the Settlement
Agreement entered into between
Marshalls of MA, Inc. (‘‘Marshalls’’) and
the U.S. Consumer Product Safety
Commission (‘‘Commission’’) staff, and
the Commission having jurisdiction
over the subject matter and over
Marshalls, 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 Marshalls shall
pay a civil penalty in the amount of two
hundred thirty-five thousand dollars
($235,000.00) 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 Marshalls to make the foregoing
payment when due, interest on the
unpaid amount shall accrue and be paid
by Marshalls 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. E9–8712 Filed 4–15–09; 8:45 am]
BILLING CODE 6355–01–P
CONSUMER PRODUCT SAFETY
COMMISSION
[CPSC Docket No. 09–C0015]
Consumer Product Safety
Commission.
ACTION: Notice.
AGENCY:
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 Forman
Mills, Inc, containing a civil penalty of
$35,000.00.
PO 00000
Frm 00019
Fmt 4703
Sfmt 4703
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–C0015, 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.
April 9, 2009.
Todd A. Stevenson,
Secretary.
Settlement Agreement
1. In accordance with 16 CFR 1118.20,
Forman Mills, Inc. (‘‘Forman Mills’’)
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. Forman Mills is a corporation
organized and existing under the laws of
the State of Pennsylvania, with its
principal offices located in Pennsauken,
NJ. Forman Mills is a clothing retailer.
Staff Allegations
4. On or about August 30, 2007,
Forman Mills purchased from a U.S.
importer approximately 2,292 boy’s
hooded sweatshirts with drawstrings
(‘‘Drawstring Sweatshirts’’).
5. Forman Mills sold the Drawstring
Sweatshirts to consumers.
6. The Drawstring Sweatshirts are
‘‘consumer product[s],’’ and, at all times
relevant hereto, Forman Mills was a
‘‘retailer’’ of those consumer products,
which were ‘‘distributed in commerce,’’
as those terms are defined in CPSA
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16APN1
mstockstill on PROD1PC66 with NOTICES
Federal Register / Vol. 74, No. 72 / Thursday, April 16, 2009 / Notices
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. Forman Mills reported to the
Commission there had been no
incidents or injuries involving the
Drawstring Sweatshirts.
11. Forman Mills’ 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 December 6, 2007, the
Commission and the importer of the
Drawstring Sweatshirts announced a
recall of the garments. The recall
informed consumers that they should
immediately remove the drawstrings to
eliminate the hazard.
13. Forman Mills 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). Forman Mills had
obtained information that reasonably
supported the conclusion that the
Drawstring Sweatshirts contained a
VerDate Nov<24>2008
16:47 Apr 15, 2009
Jkt 217001
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
Forman Mills to immediately inform the
Commission of the defect and risk.
14. Forman Mills knowingly failed to
immediately inform the Commission
about the Drawstring Sweatshirts 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 Forman Mills to civil
penalties.
Forman Mills Response
15. Forman Mills denies the Staff’s
allegations that Forman Mills violated
the CPSA.
Agreement of the Parties
16. Under the CPSA, the Commission
has jurisdiction over this matter and
over Forman Mills.
17. The parties enter into the
Agreement for settlement purposes only.
The Agreement does not constitute an
admission by Forman Mills, or a
determination by the Commission, that
Forman Mills has knowingly violated
the CPSA.
18. In settlement of the Staff’s
allegations, Forman Mills shall pay a
civil penalty in the amount of thirty-five
thousand dollars ($35,000.00) within
forty-five (45) calendar days of service
of the Commission’s final Order
accepting the Agreement. The payment
shall be by check payable to the order
of the United States Treasury.
19. 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.
20. Upon the Commission’s final
acceptance of the Agreement and
issuance of the final Order, Forman
Mills 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
PO 00000
Frm 00020
Fmt 4703
Sfmt 4703
17651
actions; (3) a determination by the
Commission of whether Forman Mills
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.
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,
Forman Mills and each of its successors
and assigns.
23. The Commission issues the Order
under the provisions of the CPSA, and
violation of the Order may subject
Forman Mills 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 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.
25. 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 Forman
Mills agree that severing the provision
materially affects the purpose of the
Agreement and the Order.
FORMAN MILLS, INC.
Dated: December 30, 2008.
By:
Richard P. Forman,
President Forman Mills, Inc. 1070 Thomas
Busch Memorial Highway Pennsauken, NJ
08110.
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
Forman Mills, Inc. (‘‘Forman Mills’’)
and the U.S. Consumer Product Safety
E:\FR\FM\16APN1.SGM
16APN1
17652
Federal Register / Vol. 74, No. 72 / Thursday, April 16, 2009 / Notices
Commission (‘‘Commission’’) staff, and
the Commission having jurisdiction
over the subject matter and over Forman
Mills, 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 Forman Mills
shall pay a civil penalty in the amount
of thirty-five thousand dollars
($35,000.00) within forty-five (45)
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 Forman Mills to make the foregoing
payment when due, interest on the
unpaid amount shall accrue and be paid
by Forman Mills 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. E9–8711 Filed 4–15–09; 8:45 am]
BILLING CODE 6355–01–P
CONSUMER PRODUCT SAFETY
COMMISSION
[CPSC Docket No. 09–C0016]
The Bon-Ton Stores, Inc., Provisional
Acceptance of a Settlement Agreement
and Order
mstockstill on PROD1PC66 with NOTICES
AGENCY: Consumer Product Safety
Commission.
ACTION: Notice.
16:47 Apr 15, 2009
Jkt 217001
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
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 BonTon 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,
VerDate Nov<24>2008
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.
4. On or about August 30, 2007, BonTon 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
PO 00000
Frm 00021
Fmt 4703
Sfmt 4703
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
E:\FR\FM\16APN1.SGM
16APN1
Agencies
[Federal Register Volume 74, Number 72 (Thursday, April 16, 2009)]
[Notices]
[Pages 17650-17652]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E9-8711]
-----------------------------------------------------------------------
CONSUMER PRODUCT SAFETY COMMISSION
[CPSC Docket No. 09-C0015]
Forman Mills, Inc., Provisional Acceptance of a Settlement
Agreement and Order
AGENCY: Consumer Product Safety Commission.
ACTION: Notice.
-----------------------------------------------------------------------
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
Forman Mills, Inc, containing a civil penalty of $35,000.00.
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-C0015, 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.
April 9, 2009.
Todd A. Stevenson,
Secretary.
Settlement Agreement
1. In accordance with 16 CFR 1118.20, Forman Mills, Inc. (``Forman
Mills'') 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. Forman Mills is a corporation organized and existing under the
laws of the State of Pennsylvania, with its principal offices located
in Pennsauken, NJ. Forman Mills is a clothing retailer.
Staff Allegations
4. On or about August 30, 2007, Forman Mills purchased from a U.S.
importer approximately 2,292 boy's hooded sweatshirts with drawstrings
(``Drawstring Sweatshirts'').
5. Forman Mills sold the Drawstring Sweatshirts to consumers.
6. The Drawstring Sweatshirts are ``consumer product[s],'' and, at
all times relevant hereto, Forman Mills was a ``retailer'' of those
consumer products, which were ``distributed in commerce,'' as those
terms are defined in CPSA
[[Page 17651]]
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. Forman Mills reported to the Commission there had been no
incidents or injuries involving the Drawstring Sweatshirts.
11. Forman Mills' 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 December 6, 2007, the Commission and the importer of the
Drawstring Sweatshirts announced a recall of the garments. The recall
informed consumers that they should immediately remove the drawstrings
to eliminate the hazard.
13. Forman Mills 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). Forman Mills 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 Forman Mills to immediately inform the
Commission of the defect and risk.
14. Forman Mills knowingly failed to immediately inform the
Commission about the Drawstring Sweatshirts 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
Forman Mills to civil penalties.
Forman Mills Response
15. Forman Mills denies the Staff's allegations that Forman Mills
violated the CPSA.
Agreement of the Parties
16. Under the CPSA, the Commission has jurisdiction over this
matter and over Forman Mills.
17. The parties enter into the Agreement for settlement purposes
only. The Agreement does not constitute an admission by Forman Mills,
or a determination by the Commission, that Forman Mills has knowingly
violated the CPSA.
18. In settlement of the Staff's allegations, Forman Mills shall
pay a civil penalty in the amount of thirty-five thousand dollars
($35,000.00) within forty-five (45) calendar days of service of the
Commission's final Order accepting the Agreement. The payment shall be
by check payable to the order of the United States Treasury.
19. 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.
20. Upon the Commission's final acceptance of the Agreement and
issuance of the final Order, Forman Mills 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 Forman Mills 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.
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, Forman Mills and each of its successors and assigns.
23. The Commission issues the Order under the provisions of the
CPSA, and violation of the Order may subject Forman Mills 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 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.
25. 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 Forman Mills agree that severing the provision materially affects
the purpose of the Agreement and the Order.
FORMAN MILLS, INC.
Dated: December 30, 2008.
By:
Richard P. Forman,
President Forman Mills, Inc. 1070 Thomas Busch Memorial Highway
Pennsauken, NJ 08110.
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
Forman Mills, Inc. (``Forman Mills'') and the U.S. Consumer Product
Safety
[[Page 17652]]
Commission (``Commission'') staff, and the Commission having
jurisdiction over the subject matter and over Forman Mills, 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 Forman Mills shall pay a civil penalty in the
amount of thirty-five thousand dollars ($35,000.00) within forty-five
(45) 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 Forman Mills to make
the foregoing payment when due, interest on the unpaid amount shall
accrue and be paid by Forman Mills 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. E9-8711 Filed 4-15-09; 8:45 am]
BILLING CODE 6355-01-P