The Bon-Ton Stores, Inc., Provisional Acceptance of a Settlement Agreement and Order, 3883-3885 [2013-00893]

Agencies

• Consumer Product Safety Commission

[Federal Register Volume 78, Number 12 (Thursday, January 17, 2013)]
[Notices]
[Pages 3883-3885]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-00893]


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CONSUMER PRODUCT SAFETY COMMISSION

[CPSC Docket No. 13-C0002]


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 $450,000.00, 
within twenty (20) days of service of the Commission's final Order 
accepting the Settlement Agreement.

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 February 1, 2013.

ADDRESSES: Persons wishing to comment on this Settlement Agreement 
should send written comments to the Comment 13-C0002, Office of the 
Secretary, Consumer Product Safety Commission, 4330 East West Highway, 
Room 820, Bethesda, Maryland 20814-4408.

FOR FURTHER INFORMATION CONTACT: Sean R. Ward, Trial Attorney, Division 
of Compliance, Office of the General Counsel, Consumer Product Safety 
Commission, 4330 East West Highway, Bethesda, Maryland 20814-4408; 
telephone (301) 504-7602.

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

    Dated: December 12, 2012.
 Todd A. Stevenson,
 Secretary.

Settlement Agreement

    1. In accordance with the Consumer Product Safety Act, 15 U.S.C. 
2051-2089 (CPSA) and 16 CFR 1118.20, The Bon-Ton Stores, Inc. (Bon-Ton) 
and staff of the U.S. Consumer Product Safety Commission (staff and 
Commission) hereby enter into this Settlement Agreement (Agreement). 
The Agreement and the incorporated attached Order resolve staff's 
allegations set forth below.

[[Page 3884]]

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. Bon-Ton is a corporation, organized and existing under the laws 
of the Commonwealth of Pennsylvania, with its principal corporate 
office located in York, PA. Bon-Ton is a retailer, selling a wide 
selection of apparel, shoes, jewelry, fragrances, and accessories.

Staff Allegations

    4. Between September 2006 and September 2009, Bon-Ton purchased 
from three U.S. importers and distributed in commerce, approximately 
812 children's upper outerwear garments with drawstrings (Garments) to 
consumers. The Garments were sold at retail stores in the United States 
for between $5 and $100.
    5. The Garments are ``consumer products'' and, at all relevant 
times, Bon-Ton was a ``retailer'' of these consumer products, which 
were ``distributed in commerce,'' as those terms are defined or used in 
sections 3(a)(5), (8), and (13) of the CPSA, 15 U.S.C. 2052(a)(5), (8), 
and (13).
    6. In February 1996, 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, staff recommends that there be no hood and 
neck drawstrings in children's upper outerwear sized 2T to 12.
    7. In June 1997, ASTM adopted a voluntary standard, ASTM F1816-97, 
which 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.
    8. On May 19, 2006, the Commission posted on its Web site a letter 
from the Commission's Director of the Office of Compliance directed 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 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.
    9. On December 7, 2007, the Deputy Director of the Commission's 
Office of Compliance sent directly to retailers, including Bon-Ton, an 
electronic mail reminder that children's upper outerwear must comply 
with ASTM F1816-97.
    10. Bon-Ton's distribution in commerce of the Garments did not meet 
the Guidelines or ASTM F1816-97; it failed to comport with staff's May 
2006 defect notice; and it posed a strangulation hazard to children.
    11. On February 18, 2010, March 10, 2010, and May 27, 2010, the 
Commission and three U.S. importers announced three recalls of the 
Garments that were distributed in commerce by Bon-Ton. Bon Ton was 
identified as a retailer of the Garments in the press release 
announcing the three recalls. The recalls informed consumers that they 
should immediately remove the drawstrings to eliminate the hazard.
    12. Bon-Ton had presumed and actual knowledge that the Garments 
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 Garments 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 inform the 
Commission immediately of the defect and risk.
    13. Bon-Ton knowingly failed to inform the Commission immediately 
about the Garments, 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 Bon-Ton to civil penalties.

Bon-Ton's Response

    14. Bon-Ton denies staff's allegations set forth in paragraphs 4 
through 13, supra, including, but not limited to, the allegations that 
the Garments contained a defect which could create a substantial 
product hazard pursuant to section 15(a) of the CPSA, and that Bon-Ton 
failed to inform the Commission immediately about the Garments, as 
required by section 15(b) of the CPSA, supra. This payment is made in 
settlement of the staff allegations. Neither the payment, nor the fact 
of entering into this Settlement Agreement, constitutes evidence of, or 
an admission of, any fault, liability, or statutory or regulatory 
violation by Bon-Ton or any admission by Bon-Ton of the accuracy of any 
allegations made by staff.

Agreement of the Parties

    15. Under the CPSA, the Commission has jurisdiction over this 
matter and over Bon-Ton.
    16. In settlement of staff's allegations, Bon-Ton shall pay a civil 
penalty in the amount of $450,000.00 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 
www.pay.gov.
    17. The parties enter into this Agreement for settlement purposes 
only. The Agreement does not constitute any admission by Bon-Ton, nor 
does it constitute any determination by the Commission that Bon-Ton 
violated CPSA's reporting requirements.
    18. 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).
    19. 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 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 Bon-Ton 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.
    20. The Commission may publicize the terms of the Agreement and the 
Order.
    21. The Agreement and the Order shall apply to, and be binding 
upon, Bon-Ton and each of its successors and/or assigns.
    22. The Commission issues the Order under the provisions of the 
CPSA, and a violation of the Order may subject Bon-Ton and each of its 
successors and/or assigns to appropriate legal action.

[[Page 3885]]

    23. 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.
    24. 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 Bon-Ton agree that severing the provision materially affects the 
purpose of the Agreement and Order. This agreement may be signed in 
counterparts.
THE BON-TON STORES, INC.
Dated: 11/28/12.
By:
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J. Gregory Yawman, Esquire,
Vice President and General Counsel.
The Bon-Ton Stores, Inc., 2801 East Market Street, York, PA 17402.
Dated: 11/30/12
By:
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Timothy L. Mullin, Jr., Esquire,
Miles & Stockbridge P.C.
10 Light Street, Baltimore, MD 21202-1487, Counsel for The Bon-Ton 
Stores, Inc.


U.S. CONSUMER PRODUCT SAFETY COMMISSION STAFF

Mary T. Boyle,
Acting General Counsel.
Mary B. Murphy,
Assistant General Counsel.
Dated: 11/30/12.
By:
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Sean R. Ward,
 Trial Attorney, 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 is, hereby, accepted; 
and it is
    Further ordered, that Bon-Ton shall pay a civil penalty in the 
amount of $450,000.00 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 www.pay.gov. 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 7th day 
of December, 2012.

By Order of the Commission:
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Todd A. Stevenson,
Secretary, U.S. Consumer Product Safety Commission.

[FR Doc. 2013-00893 Filed 1-16-13; 8:45 am]
BILLING CODE 6355-01-P