Cinmar, LLC, Inc., Provisional Acceptance of a Settlement Agreement and Order, 33177-33179 [2014-13483]
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Federal Register / Vol. 79, No. 111 / Tuesday, June 10, 2014 / Notices
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Dated: June 5, 2014.
Kathy D. Smith,
Chief Counsel, National Telecommunications
and Information Administration.
[FR Doc. 2014–13501 Filed 6–9–14; 8:45 am]
BILLING CODE 3510–60–P
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 June 25,
2014.
ADDRESSES: Persons wishing to
comment on this Settlement Agreement
should send written comments to the
Comment 14–C0002 Office of the
Secretary, Consumer Product Safety
Commission, 4330 East West Highway,
Room 820, Bethesda, Maryland 20814–
4408.
FOR FURTHER INFORMATION CONTACT:
Kelly M. Moore, Trial Attorney,
Division of Compliance, Office of the
General Counsel, Consumer Product
Safety Commission, 4330 East West
Highway, Bethesda, Maryland 20814–
4408; telephone (301) 504–7447.
SUPPLEMENTARY INFORMATION: The text of
the Agreement and Order appears
below.
DATES:
Dated: June 5, 2014.
Todd A. Stevenson,
Secretary.
Settlement Agreement
1. In accordance with the Consumer
Product Safety Act (CPSA), 15 U.S.C.
2051–2089 and 16 CFR 1118.20,
Cinmar, LLC (Cinmar), and the U.S.
Consumer Product Safety Commission
(Commission), through its staff (staff),
hereby enter into this Settlement
Agreement (Agreement). The Agreement
and the incorporated attached Order
(Order) resolve staff’s charges set forth
below.
The Parties
CONSUMER PRODUCT SAFETY
COMMISSION
[CPSC Docket No. 14–C0002]
Cinmar, LLC, Inc., Provisional
Acceptance of a Settlement Agreement
and Order
Consumer Product Safety
Commission.
ACTION: Notice.
AGENCY:
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 Cinmar,
LLC, containing a civil penalty of
$3,100,000.00, within twenty (20) days
of service of the Commission’s final
Order accepting the Settlement
Agreement.
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SUMMARY:
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16:55 Jun 09, 2014
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2. The Commission is an independent
federal regulatory agency, established
pursuant to, and responsible for, the
enforcement of the CPSA. By executing
the Agreement, staff is acting on behalf
of the Commission, pursuant to 16 CFR
1118.20(b). The Commission issues the
Order under the provisions of the CPSA.
3. Cinmar (d/b/a Frontgate) is a
limited liability company, organized
and existing under the laws of the state
of Delaware, with its principal corporate
office located at 5566 West Chester
Road, West Chester, OH 45069. Cinmar
is a retailer of home furnishings and
decorative household items.
Staff Charges
4. Between November 2005 and July
2010, Cinmar sold approximately 38,000
Frontgate foldaway closet two- and
three-step ladders made of mahogany
wood and designed for use in walk-in
closets (Subject Products, or Ladders).
Cinmar sold the Ladders to consumers
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33177
nationwide for between $89.95 and
$149.50.
5. The Ladders are ‘‘consumer
products,’’ and at all relevant times,
Cinmar was a ‘‘retailer’’ of these
consumer products, which were
‘‘distributed in commerce,’’ as those
terms are defined or used in sections
3(a)(5), (7) and (13), of the CPSA, 15
U.S.C. 2052(a)(5), (7) and (13).
6. The Ladders are defective because
the steps can break unexpectedly,
posing a fall hazard to consumers.
7. CPSC staff charges that Cinmar
received notice of the defect shortly
after Ladder sales began in November
2005. Between 2005 and 2010, Cinmar
received hundreds of reports of step
breakage during first and early use,
including reports of injuries to
consumers. During that same time,
Cinmar implemented design changes to
eliminate the hazard posed by the
Subject Products. Throughout this
period, Cinmar also paid out claims
filed by consumers who reported that
they had been injured when the Ladders
broke during use.
8. CPSC staff charges that (i) by
September 28, 2007, Cinmar had
sufficient information that reasonably
supported the conclusion that the
Ladders contained a defect that could
create a substantial product hazard or
created an unreasonable risk of serious
injury or death and (ii) that Cinmar was
required to inform the Commission
immediately of such defect or risk, as
required by sections 15(b)(3) and (4) of
the CPSA, 15 U.S.C. 2064(b)(3) and (4).
By that date, Cinmar had received more
than 600 Ladder returns due to breakage
and had been notified of at least one
personal injury lawsuit filed by a
consumer alleging injury from a broken
Ladder.
9. CPSC staff charges that, when
consumers contacted Cinmar regarding
their broken Ladders, Cinmar routinely
provided the consumers with
replacement Ladders which Cinmar
knew were just as likely to break.
10. Despite having information
regarding the Ladders’ defect or risk,
Cinmar failed to inform the Commission
immediately, as required by sections
15(b)(3) and (4) of the CPSA, 15 U.S.C.
2064(b)(3) and (4).
11. Cinmar did not file its Full Report
with the Commission until July 29,
2010. By that time, more than 1,200
consumers had returned their Ladders
to Cinmar, most citing breakage, and
others citing cosmetic problems. Also by
that time, Cinmar had received notice of
at least two dozen injuries, one of which
required surgery and another
necessitated hospitalization.
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Federal Register / Vol. 79, No. 111 / Tuesday, June 10, 2014 / Notices
12. In failing to inform the
Commission about the Subject Products
immediately, Cinmar knowingly
violated section 19(a)(4) of the CPSA, 15
U.S.C. 2068(a)(4), as the term
‘‘knowingly’’ is defined in section 20(d)
of the CPSA, 15 U.S.C. 2069(d).
13. Pursuant to section 20 of the
CPSA, 15 U.S.C. 2069, Cinmar is subject
to civil penalties for its knowing failure
to report, as required by section 15(b) of
the CPSA, 15 U.S.C. 2064(b).
emcdonald on DSK67QTVN1PROD with NOTICES
Cinmar’s Response
14. Cinmar neither admits nor denies
the charges set forth in paragraphs 4
through 13, including, but not limited
to, the charge that the Ladders
contained a defect which could create a
substantial product hazard or created an
unreasonable risk of serious injury or
death, and the contention that Cinmar
failed to notify the Commission in a
timely manner, in accordance with
section 15(b) of the CPSA, 15 U.S.C.
2064(b).
Agreement of the Parties
15. Under the CPSA, the Commission
has jurisdiction over the matter
involving the Ladders described herein
and over Cinmar.
16. In settlement of staff’s charges,
and to avoid the cost, distraction, delay,
uncertainty, and inconvenience of
protracted litigation or other
proceedings, Cinmar shall pay a civil
penalty in the amount of three million
one hundred thousand dollars
($3,100,000.00), which shall be due and
payable within twenty (20) calendar
days after receiving service of the
Commission’s final Order accepting the
Agreement. All payments to be made
under the Agreement shall constitute
debts owing to the United States and
shall be made by electronic wire transfer
to the United States via: https://
www.pay.gov.
17. The parties agree that this
settlement figure is predicated, among
other things, upon the accuracy of oral
and written representations of, and
statements by, Cinmar and Cinmar’s
representatives (including
representations and warranties set forth
in the Agreement).
18. The parties enter into the
Agreement for settlement purposes only.
The Agreement does not constitute an
admission by Cinmar or a determination
by the Commission that Cinmar violated
the CPSA.
19. Following staff’s receipt of the
Agreement executed on behalf of
Cinmar, staff shall promptly submit the
Agreement to the Commission for
provisional acceptance. Promptly
following provisional acceptance of the
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16:55 Jun 09, 2014
Jkt 232001
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, within fifteen (15)
calendar days, the Commission does not
receive any written request not to accept
the Agreement, the Agreement shall be
deemed finally accepted on the
sixteenth (16th) calendar day after the
date the Agreement is published in the
Federal Register, in accordance with 16
CFR 1118.20(f).
20. The Agreement is conditioned
upon, and subject to, the Commission’s
final acceptance, as set forth above, and
is subject to the provisions of 16 CFR
1118.20(h). Upon the later of: (i) The
Commission’s final acceptance of the
Agreement and service of the accepted
Agreement upon Cinmar, and (ii) the
date of issuance of the final Order, the
Agreement shall be in full force and
effect and shall be binding upon the
parties.
21. Effective upon the later of: (i) The
Commission’s final acceptance of the
Agreement and service of the accepted
Agreement upon Cinmar, and (ii) the
date of issuance of the final Order, for
good and valuable consideration,
Cinmar hereby expressly and
irrevocably waives and agrees not to
assert any past, present, or future rights
to the following, in connection with the
matter described in the Agreement: (a)
An administrative or judicial hearing;
(b) judicial review or other challenge or
contest of the validity of the Order or of
the Commission’s actions; (c) a
determination by the Commission of
whether Cinmar 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.
22. Cinmar shall implement and
maintain a formal compliance program
designed to ensure compliance with the
statutes and regulations enforced by the
Commission that, at a minimum,
contains the following elements: (i)
Written standards and policies; (ii)
procedures for reviewing claims and
reports for safety concerns and for
implementing corrective and preventive
actions when compliance deficiencies
or violations are identified (including
procedures to prevent defective
products from being introduced into
commerce); (iii) a mechanism for
confidential employee reporting of
compliance-related questions or
concerns to either a compliance officer
or to another senior manager with
authority to act as necessary; (iv)
effective communication of company
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compliance-related policies and
procedures to all employees, through
training programs, or otherwise; (v)
senior manager responsibility for
compliance and accountability for
violations of the statutes and regulations
enforced by the Commission; (vi)
oversight of compliance by Cinmar’s
governing body; and (vii) retention of all
compliance-related records for at least
five (5) years, and availability of such
records to staff upon request.
23. Cinmar shall maintain and enforce
a system of internal controls and
procedures designed to ensure that: (i)
Information required to be disclosed by
Cinmar to the Commission is recorded,
processed, and reported in accordance
with applicable law; (ii) all reporting
made to the Commission is timely,
truthful, complete, and accurate; and
(iii) prompt disclosure is made to
Cinmar management of any significant
deficiencies or material weaknesses in
the design or operation of such internal
controls that are reasonably likely to
adversely affect in any material respect
Cinmar’s ability to record, process, and
report to the Commission in accordance
with applicable law.
24. Upon request of staff, Cinmar shall
provide written documentation of such
improvements, processes, and controls,
including, but not limited to, the
effective dates of such improvements,
processes, and controls. Cinmar shall
cooperate fully and truthfully with staff
and shall make available all
information, materials, and personnel
deemed necessary by staff to evaluate
Cinmar’s compliance with the terms of
the Agreement.
25. The parties acknowledge and
agree that the Commission may make
public disclosure of the terms of the
Agreement and the Order.
26. Cinmar represents that the
Agreement: (i) Is entered into freely and
voluntarily, without any degree of
duress or compulsion whatsoever; (ii)
has been duly authorized; and (iii)
constitutes the valid and binding
obligation of Cinmar, and each of its
successors and/or assigns, enforceable
against Cinmar in accordance with the
Agreement’s terms. The individuals
signing the Agreement on behalf of
Cinmar represent and warrant that they
are duly authorized by Cinmar to
execute the Agreement.
27. The Commission signatories
represent that they are signing the
Agreement in their official capacities
and that they are authorized to execute
the Agreement.
28. The Agreement is governed by the
laws of the United States.
29. The Agreement and the Order
shall apply to, and be binding upon,
E:\FR\FM\10JNN1.SGM
10JNN1
emcdonald on DSK67QTVN1PROD with NOTICES
Federal Register / Vol. 79, No. 111 / Tuesday, June 10, 2014 / Notices
Cinmar and each of its subsidiaries,
successors, transferees, and assigns, and
a violation of the Agreement or Order
may subject Cinmar and each of its
successors, transferees, and assigns to
appropriate legal action.
30. The Agreement and the Order
constitute the complete agreement
between the parties on the subject
matter contained herein and therein.
31. 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. For purposes of
construction, the Agreement shall be
deemed to have been drafted by both of
the parties, and therefore, shall not be
construed against any party for that
reason in any subsequent dispute.
32. The Agreement shall not be
waived, amended, modified, or
otherwise altered, except as in
accordance with the provisions of 16
CFR 1118.20(h). The Agreement may be
executed in counterparts.
33. 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 Cinmar
agree that severing the provision
materially affects the purpose of the
Agreement and Order.
CINMAR, LLC
Dated: 5/27/2014
By: llllllllllllllll
H.R. Harvey,
President, Cinmar, LLC, 5566 West
Chester Road, West Chester, OH
45069.
Dated: 5/28/2014
By: llllllllllllllll
Ivan J. Wasserman
Manatt, Phelps & Phillips, LLP, 700 12th
Street NW., Suite 1100, Washington,
DC 20005, Counsel for Cinmar, LLC.
U.S. CONSUMER PRODUCT SAFETY
COMMISSION STAFF
Stephanie Tsacoumis
General Counsel.
Mary B. Murphy
Assistant General Counsel.
Dated: 5/28/2014
By: llllllllllllllll
Kelly Moore,
Trial Attorney, Division of Compliance,
Attorney.
Order
Upon consideration of the Settlement
Agreement entered into between
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16:55 Jun 09, 2014
Jkt 232001
Cinmar, LLC (Cinmar), and the U.S.
Consumer Product Safety Commission
(Commission), and the Commission
having jurisdiction over the subject
matter and over Cinmar, 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 Cinmar
shall comply with the terms of the
Settlement Agreement and shall pay a
civil penalty of $3,100,000.00, within
twenty (20) calendar days after receiving
service of the Commission’s final Order
accepting the Settlement Agreement.
Upon failure of Cinmar to make the
foregoing payment when due, interest
on the unpaid amount shall accrue and
be paid by Cinmar at the federal legal
rate of interst set forth at 28 U.S.C.
1961(a) and (b). If Cinmar fails to make
such a payment or to comply in full
with any other provision as set forth in
the Settlement Agreement, such conduct
will be considered a violation of the
Settlement Agreement and Order.
Provisionally accepted and provisional
Order issued on the 5th day of June, 2014.
By Order of the Commission.
lllllllllllllllllllll
Todd A. Stevenson,
Secretary, U.S. Consumer Product Safety
Commission.
[FR Doc. 2014–13483 Filed 6–9–14; 8:45 am]
BILLING CODE 6355–01–P
DEPARTMENT OF DEFENSE
Office of the Secretary
Response Systems To Adult Sexual
Assault Crimes Panel; Notice of
Federal Advisory Committee Meeting
Department of Defense.
Notice of meeting.
AGENCY:
ACTION:
On May 28, 2014, the
Department of Defense published a
notice titled Response Systems to Adult
Sexual Assault Crimes Panel; Notice of
Federal Advisory Committee Meeting
(79 FR 30566–30567). Subsequent to the
publication of that notice, the location
of the meeting changed. This notice
amends the location.
DATES: A meeting of the Response
Systems to Adult Sexual Assault Crimes
Panel (‘‘the Panel’’) will be held June 16,
2014 from 9:00 a.m. to 5:00 p.m.
ADDRESSES: U.S. District Court for the
Southern District of New York, Marshall
Courthouse, Courtroom 506, 40 Centre
Street (40 Foley Square), New York, NY
10007.
SUMMARY:
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33179
Ms.
Shannon Green, Response Systems
Panel, One Liberty Center, 875 N.
Randolph Street, Suite 150, Arlington,
VA 22203. Email:
Shannon.l.green8.civ@mail.mil. Phone:
(703) 693–3837. Web site: https://
responsesystemspanel.whs.mil.
SUPPLEMENTARY INFORMATION: Due to a
change in the location of the scheduled
meeting on June 16, 2014, of the
Response Systems Adult Sexual Assault
Crimes Panel, the requirements of 41
CFR 102–3.150(a) were not met.
Accordingly, the Advisory Committee
Management Officer for the Department
of Defense, pursuant to 41 CFR 102–
3.150(b), waives the 15-calendar day
notification requirement.
The location of the June 16, 2014
meeting is revised to read as set forth in
the ADDRESSES section. All other
information in the Federal Register
notice of May 28, 2014 (79 FR 30566–
30567) remains the same.
FOR FURTHER INFORMATION CONTACT:
Dated: June 4, 2014.
Aaron Siegel,
Alternate OSD Federal Register Liaison
Officer, Department of Defense.
[FR Doc. 2014–13430 Filed 6–9–14; 8:45 am]
BILLING CODE 5001–06–P
DEPARTMENT OF DEFENSE
Department of the Navy
Extension of Public Comment Period
for the Draft Supplemental
Environmental Impact Statement for
the Guam and Commonwealth of the
Northern Mariana Islands Military
Relocation (2012 Roadmap
Adjustments)
Department of the Navy, DOD.
Notice.
AGENCY:
ACTION:
On April 18, 2014, the
Department of Navy (DoN) published a
Notice of Availability and Notice of
Public Meetings, including a request for
public comments, on the Draft
Supplemental Environmental Impact
Statement (SEIS) for the Guam and
Commonwealth of the Northern Mariana
Islands Military Relocation (2012
Adjustment)(79 FR 21907, April 18,
2014). The purpose of this notice is to
announce an extension of the 60-day
public comment period. The public
comment period will be extended by 15
days to end on July 1, 2014 Eastern
Daylight Time (E.D.T.) [July 2, 2014,
Chamorro Standard Time (ChST)].
DATES: The extended 75-day public
comment period for the Draft SEIS
began on April 18, 2014, EDT [April 19,
2014, ChST) with the publication of the
SUMMARY:
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]]>Agencies
[Federal Register Volume 79, Number 111 (Tuesday, June 10, 2014)]
[Notices]
[Pages 33177-33179]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2014-13483]
=======================================================================
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CONSUMER PRODUCT SAFETY COMMISSION
[CPSC Docket No. 14-C0002]
Cinmar, LLC, 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
Cinmar, LLC, containing a civil penalty of $3,100,000.00, 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 June 25, 2014.
ADDRESSES: Persons wishing to comment on this Settlement Agreement
should send written comments to the Comment 14-C0002 Office of the
Secretary, Consumer Product Safety Commission, 4330 East West Highway,
Room 820, Bethesda, Maryland 20814-4408.
FOR FURTHER INFORMATION CONTACT: Kelly M. Moore, Trial Attorney,
Division of Compliance, Office of the General Counsel, Consumer Product
Safety Commission, 4330 East West Highway, Bethesda, Maryland 20814-
4408; telephone (301) 504-7447.
SUPPLEMENTARY INFORMATION: The text of the Agreement and Order appears
below.
Dated: June 5, 2014.
Todd A. Stevenson,
Secretary.
Settlement Agreement
1. In accordance with the Consumer Product Safety Act (CPSA), 15
U.S.C. 2051-2089 and 16 CFR 1118.20, Cinmar, LLC (Cinmar), and the U.S.
Consumer Product Safety Commission (Commission), through its staff
(staff), hereby enter into this Settlement Agreement (Agreement). The
Agreement and the incorporated attached Order (Order) resolve staff's
charges set forth below.
The Parties
2. The Commission is an independent federal regulatory agency,
established pursuant to, and responsible for, the enforcement of the
CPSA. By executing the Agreement, staff is acting on behalf of the
Commission, pursuant to 16 CFR 1118.20(b). The Commission issues the
Order under the provisions of the CPSA.
3. Cinmar (d/b/a Frontgate) is a limited liability company,
organized and existing under the laws of the state of Delaware, with
its principal corporate office located at 5566 West Chester Road, West
Chester, OH 45069. Cinmar is a retailer of home furnishings and
decorative household items.
Staff Charges
4. Between November 2005 and July 2010, Cinmar sold approximately
38,000 Frontgate foldaway closet two- and three-step ladders made of
mahogany wood and designed for use in walk-in closets (Subject
Products, or Ladders). Cinmar sold the Ladders to consumers nationwide
for between $89.95 and $149.50.
5. The Ladders are ``consumer products,'' and at all relevant
times, Cinmar was a ``retailer'' of these consumer products, which were
``distributed in commerce,'' as those terms are defined or used in
sections 3(a)(5), (7) and (13), of the CPSA, 15 U.S.C. 2052(a)(5), (7)
and (13).
6. The Ladders are defective because the steps can break
unexpectedly, posing a fall hazard to consumers.
7. CPSC staff charges that Cinmar received notice of the defect
shortly after Ladder sales began in November 2005. Between 2005 and
2010, Cinmar received hundreds of reports of step breakage during first
and early use, including reports of injuries to consumers. During that
same time, Cinmar implemented design changes to eliminate the hazard
posed by the Subject Products. Throughout this period, Cinmar also paid
out claims filed by consumers who reported that they had been injured
when the Ladders broke during use.
8. CPSC staff charges that (i) by September 28, 2007, Cinmar had
sufficient information that reasonably supported the conclusion that
the Ladders contained a defect that could create a substantial product
hazard or created an unreasonable risk of serious injury or death and
(ii) that Cinmar was required to inform the Commission immediately of
such defect or risk, as required by sections 15(b)(3) and (4) of the
CPSA, 15 U.S.C. 2064(b)(3) and (4). By that date, Cinmar had received
more than 600 Ladder returns due to breakage and had been notified of
at least one personal injury lawsuit filed by a consumer alleging
injury from a broken Ladder.
9. CPSC staff charges that, when consumers contacted Cinmar
regarding their broken Ladders, Cinmar routinely provided the consumers
with replacement Ladders which Cinmar knew were just as likely to
break.
10. Despite having information regarding the Ladders' defect or
risk, Cinmar failed to inform the Commission immediately, as required
by sections 15(b)(3) and (4) of the CPSA, 15 U.S.C. 2064(b)(3) and (4).
11. Cinmar did not file its Full Report with the Commission until
July 29, 2010. By that time, more than 1,200 consumers had returned
their Ladders to Cinmar, most citing breakage, and others citing
cosmetic problems. Also by that time, Cinmar had received notice of at
least two dozen injuries, one of which required surgery and another
necessitated hospitalization.
[[Page 33178]]
12. In failing to inform the Commission about the Subject Products
immediately, Cinmar knowingly violated section 19(a)(4) of the CPSA, 15
U.S.C. 2068(a)(4), as the term ``knowingly'' is defined in section
20(d) of the CPSA, 15 U.S.C. 2069(d).
13. Pursuant to section 20 of the CPSA, 15 U.S.C. 2069, Cinmar is
subject to civil penalties for its knowing failure to report, as
required by section 15(b) of the CPSA, 15 U.S.C. 2064(b).
Cinmar's Response
14. Cinmar neither admits nor denies the charges set forth in
paragraphs 4 through 13, including, but not limited to, the charge that
the Ladders contained a defect which could create a substantial product
hazard or created an unreasonable risk of serious injury or death, and
the contention that Cinmar failed to notify the Commission in a timely
manner, in accordance with section 15(b) of the CPSA, 15 U.S.C.
2064(b).
Agreement of the Parties
15. Under the CPSA, the Commission has jurisdiction over the matter
involving the Ladders described herein and over Cinmar.
16. In settlement of staff's charges, and to avoid the cost,
distraction, delay, uncertainty, and inconvenience of protracted
litigation or other proceedings, Cinmar shall pay a civil penalty in
the amount of three million one hundred thousand dollars
($3,100,000.00), which shall be due and payable within twenty (20)
calendar days after receiving service of the Commission's final Order
accepting the Agreement. All payments to be made under the Agreement
shall constitute debts owing to the United States and shall be made by
electronic wire transfer to the United States via: https://www.pay.gov.
17. The parties agree that this settlement figure is predicated,
among other things, upon the accuracy of oral and written
representations of, and statements by, Cinmar and Cinmar's
representatives (including representations and warranties set forth in
the Agreement).
18. The parties enter into the Agreement for settlement purposes
only. The Agreement does not constitute an admission by Cinmar or a
determination by the Commission that Cinmar violated the CPSA.
19. Following staff's receipt of the Agreement executed on behalf
of Cinmar, staff shall promptly submit the Agreement to the Commission
for provisional acceptance. Promptly following 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, within fifteen
(15) calendar days, the Commission does not receive any written request
not to accept the Agreement, the Agreement shall be deemed finally
accepted on the sixteenth (16th) calendar day after the date the
Agreement is published in the Federal Register, in accordance with 16
CFR 1118.20(f).
20. The Agreement is conditioned upon, and subject to, the
Commission's final acceptance, as set forth above, and is subject to
the provisions of 16 CFR 1118.20(h). Upon the later of: (i) The
Commission's final acceptance of the Agreement and service of the
accepted Agreement upon Cinmar, and (ii) the date of issuance of the
final Order, the Agreement shall be in full force and effect and shall
be binding upon the parties.
21. Effective upon the later of: (i) The Commission's final
acceptance of the Agreement and service of the accepted Agreement upon
Cinmar, and (ii) the date of issuance of the final Order, for good and
valuable consideration, Cinmar hereby expressly and irrevocably waives
and agrees not to assert any past, present, or future rights to the
following, in connection with the matter described in the Agreement:
(a) An administrative or judicial hearing; (b) judicial review or other
challenge or contest of the validity of the Order or of the
Commission's actions; (c) a determination by the Commission of whether
Cinmar 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.
22. Cinmar shall implement and maintain a formal compliance program
designed to ensure compliance with the statutes and regulations
enforced by the Commission that, at a minimum, contains the following
elements: (i) Written standards and policies; (ii) procedures for
reviewing claims and reports for safety concerns and for implementing
corrective and preventive actions when compliance deficiencies or
violations are identified (including procedures to prevent defective
products from being introduced into commerce); (iii) a mechanism for
confidential employee reporting of compliance-related questions or
concerns to either a compliance officer or to another senior manager
with authority to act as necessary; (iv) effective communication of
company compliance-related policies and procedures to all employees,
through training programs, or otherwise; (v) senior manager
responsibility for compliance and accountability for violations of the
statutes and regulations enforced by the Commission; (vi) oversight of
compliance by Cinmar's governing body; and (vii) retention of all
compliance-related records for at least five (5) years, and
availability of such records to staff upon request.
23. Cinmar shall maintain and enforce a system of internal controls
and procedures designed to ensure that: (i) Information required to be
disclosed by Cinmar to the Commission is recorded, processed, and
reported in accordance with applicable law; (ii) all reporting made to
the Commission is timely, truthful, complete, and accurate; and (iii)
prompt disclosure is made to Cinmar management of any significant
deficiencies or material weaknesses in the design or operation of such
internal controls that are reasonably likely to adversely affect in any
material respect Cinmar's ability to record, process, and report to the
Commission in accordance with applicable law.
24. Upon request of staff, Cinmar shall provide written
documentation of such improvements, processes, and controls, including,
but not limited to, the effective dates of such improvements,
processes, and controls. Cinmar shall cooperate fully and truthfully
with staff and shall make available all information, materials, and
personnel deemed necessary by staff to evaluate Cinmar's compliance
with the terms of the Agreement.
25. The parties acknowledge and agree that the Commission may make
public disclosure of the terms of the Agreement and the Order.
26. Cinmar represents that the Agreement: (i) Is entered into
freely and voluntarily, without any degree of duress or compulsion
whatsoever; (ii) has been duly authorized; and (iii) constitutes the
valid and binding obligation of Cinmar, and each of its successors and/
or assigns, enforceable against Cinmar in accordance with the
Agreement's terms. The individuals signing the Agreement on behalf of
Cinmar represent and warrant that they are duly authorized by Cinmar to
execute the Agreement.
27. The Commission signatories represent that they are signing the
Agreement in their official capacities and that they are authorized to
execute the Agreement.
28. The Agreement is governed by the laws of the United States.
29. The Agreement and the Order shall apply to, and be binding
upon,
[[Page 33179]]
Cinmar and each of its subsidiaries, successors, transferees, and
assigns, and a violation of the Agreement or Order may subject Cinmar
and each of its successors, transferees, and assigns to appropriate
legal action.
30. The Agreement and the Order constitute the complete agreement
between the parties on the subject matter contained herein and therein.
31. 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. For purposes of construction, the
Agreement shall be deemed to have been drafted by both of the parties,
and therefore, shall not be construed against any party for that reason
in any subsequent dispute.
32. The Agreement shall not be waived, amended, modified, or
otherwise altered, except as in accordance with the provisions of 16
CFR 1118.20(h). The Agreement may be executed in counterparts.
33. 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 Cinmar agree that severing the provision materially affects the
purpose of the Agreement and Order.
CINMAR, LLC
Dated: 5/27/2014
By:--------------------------------------------------------------------
H.R. Harvey,
President, Cinmar, LLC, 5566 West Chester Road, West Chester, OH 45069.
Dated: 5/28/2014
By:--------------------------------------------------------------------
Ivan J. Wasserman
Manatt, Phelps & Phillips, LLP, 700 12th Street NW., Suite 1100,
Washington, DC 20005, Counsel for Cinmar, LLC.
U.S. CONSUMER PRODUCT SAFETY COMMISSION STAFF
Stephanie Tsacoumis
General Counsel.
Mary B. Murphy
Assistant General Counsel.
Dated: 5/28/2014
By:--------------------------------------------------------------------
Kelly Moore,
Trial Attorney, Division of Compliance, Attorney.
Order
Upon consideration of the Settlement Agreement entered into between
Cinmar, LLC (Cinmar), and the U.S. Consumer Product Safety Commission
(Commission), and the Commission having jurisdiction over the subject
matter and over Cinmar, 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 Cinmar shall comply with the terms of the
Settlement Agreement and shall pay a civil penalty of $3,100,000.00,
within twenty (20) calendar days after receiving service of the
Commission's final Order accepting the Settlement Agreement. Upon
failure of Cinmar to make the foregoing payment when due, interest on
the unpaid amount shall accrue and be paid by Cinmar at the federal
legal rate of interst set forth at 28 U.S.C. 1961(a) and (b). If Cinmar
fails to make such a payment or to comply in full with any other
provision as set forth in the Settlement Agreement, such conduct will
be considered a violation of the Settlement Agreement and Order.
Provisionally accepted and provisional Order issued on the 5th
day of June, 2014.
By Order of the Commission.
-----------------------------------------------------------------------
Todd A. Stevenson,
Secretary, U.S. Consumer Product Safety Commission.
[FR Doc. 2014-13483 Filed 6-9-14; 8:45 am]
BILLING CODE 6355-01-P
