Bob's Stores Corp., Provisional Acceptance of a Settlement Agreement and Order, 17655-17657 [E9-8727]

Agencies

• Consumer Product Safety Commission

[Federal Register Volume 74, Number 72 (Thursday, April 16, 2009)]
[Notices]
[Pages 17655-17657]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E9-8727]


-----------------------------------------------------------------------

CONSUMER PRODUCT SAFETY COMMISSION

[CPSC Docket No. 09-C0005]


Bob's Stores Corp., 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 
Bob's Stores Corp., containing a civil penalty of $55,000.00.

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-C0005, Office of the 
Secretary, Consumer Product Safety Commission, 4330 East West Highway, 
Room 502, Bethesda, Maryland 20814-4408.

FOR FURTHER INFORMATION CONTACT: Seth B. Popkin, Lead Trial Attorney, 
Division of Compliance, Office of the General Counsel, Consumer Product 
Safety Commission, 4330 East West Highway, Bethesda, Maryland 20814-
4408; telephone (301) 504-7612.

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, Bob's Stores Corp. 
(``Bob's'') 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. Bob's is a corporation organized and existing under the laws of 
New Hampshire, with its principal offices located in Meriden, 
Connecticut. At all times relevant hereto, Bob's sold apparel.

Staff Allegations

    4. From August to December, 2007, Bob's held for sale and/or sold 
various quantities of the following children's upper outerwear products 
with drawstrings at the hood or neck: Scope

[[Page 17656]]

Imports boys' hooded sweatshirts; and Earth Products Adio Champ Custom 
boys' hooded zip fleece sweatshirts (collectively referred to herein as 
``Sweatshirts''). These Sweatshirts identifications correspond to and 
are coextensive with information Bob's reported to the Staff about the 
Sweatshirts.
    5. Bob's sold Sweatshirts to consumers.
    6. The Sweatshirts are ``consumer product[s],'' and, at all times 
relevant hereto, Bob's 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. Bob's informed the Commission that there had been no incidents 
or injuries from the Sweatshirts.
    11. Bob's distribution in commerce of the 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. After distribution in commerce, recalls were announced 
regarding the Sweatshirts.
    13. Bob's had presumed an actual knowledge that the 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). Bob's had obtained information that reasonably 
supported the conclusion that the 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 Bob's to immediately 
inform the Commission of the defect and risk.
    14. Bob's knowingly failed to immediately inform the Commission 
about the 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 Bob's to civil penalties.

Bob's Response

    15. Bob's denies the Staff's allegations set forth above, 
including, but not limited to, any allegation that Bob's failed timely 
to notify the Commission in accordance with section 15 of the CPSA.
    16. Bob's requires that its vendors represent and warrant that all 
products sold to Bob's comply with all applicable regulations, 
standards and requirements.
    17. Bob's promptly notified the Commission pursuant to section 15 
of the CPSA without first being contacted by the Commission upon 
verifying that certain garments contained drawstrings at the hood or 
neck.
    18. Bob's fully cooperated with the Commission in providing 
information necessary for the Commission to determine, with the vendor, 
whether a recall was warranted and whether the vendor had sold affected 
garments to any other retailers.
    19. Bob's has entered into the Agreement for settlement purposes 
only, to avoid incurring additional expenses and the distraction of 
litigation. The Agreement and Order do not constitute and are not 
evidence of any fault or wrongdoing by Bob's.

Agreement of the Parties

    20. Under the CPSA, the Commission has jurisdiction over this 
matter and over Bob's.
    21. The parties enter into the Agreement for settlement purposes 
only. The Agreement does not constitute an admission by Bob's, or a 
determination by the Commission, that Bob's knowingly violated the 
CPSA.
    22. In settlement of the Staff's allegations, Bob's shall pay a 
civil penalty in the amount of fifty-five thousand dollars ($55,000.00) 
within twenty (20) 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.
    23. 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.
    24. Upon the Commission's final acceptance of the Agreement and 
issuance of the final Order, Bob's 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 Bob's 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, Bob's 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 Bob's 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.

[[Page 17657]]

    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 Bob's agree that severing the provision materially affects the 
purpose of the Agreement and the Order.

Bob's Stores Corp.

    Dated: March 2, 2009.
    By:

Kelly Toussaint,
President, Bob's Stores Corp., 160 Corporate Court, Meriden, CT 
06450.

    Dated: March 5, 2009.
    By:

Eric A. Rubel, Esq.,
Arnold & Porter LLP, 555 12th Street, NW., Washington, DC 20004-
1206, Counsel for Bob's Stores Corp.

U.S. CONSUMER PRODUCT SAFETY COMMISSION STAFF.

Cheryl A. Falvey,
General Counsel.

Ronald G. Yelenik,
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.

Order

    Upon consideration of the Settlement Agreement entered into between 
Bob's Stores Corp. (``Bob's'') and the U.S. Consumer Product Safety 
Commission (``Commission'') staff, and the Commission having 
jurisdiction over the subject matter and over Bob's, 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 Bob's shall pay a civil penalty in the amount 
of fifty-five thousand dollars ($55,000.00) 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 Bob's to make the 
foregoing payment when due, interest on the unpaid amount shall accrue 
and be paid by Bob's 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. E9-8727 Filed 4-15-09; 8:45 am]
BILLING CODE 6355-01-P