[Federal Register: April 16, 2009 (Volume 74, Number 72)]
[Notices]
[Page 17645-17647]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr16ap09-27]
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CONSUMER PRODUCT SAFETY COMMISSION
[CPSC Docket No. 09-C0012]
Urgent Gear, 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
Urgent Gear, 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 Comment 09-C0012, Office of the
Secretary, Consumer Product Safety Commission, 4330 East West Highway,
Room 502, Bethesda, Maryland 20814-4408.
FOR FURTHER INFORMATION CONTACT: Dennis C. Kacoyanis, Trial Attorney,
Division of Compliance, Office of the General Counsel, Consumer Product
Safety Commission, 4330 East West Highway, Bethesda, Maryland 20814-
4408; telephone (301) 504-7587.
SUPPLEMENTARY INFORMATION: The text of the Agreement and Order appears
below.
Dated: April 9, 2009.
Todd A. Stevenson,
Secretary.
Settlement Agreement
1. In accordance with 16 CFR 1118.20, Urgent Gear, Inc. (``Urgent
Gear'') 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. Urgent Gear is a corporation organized and existing under the
laws of the State of California, with its principal offices located in
Los Angeles, CA. At all times relevant hereto, Urgent Gear imported and
sold apparel.
Staff Allegations
4. Urgent Gear imported about 700 Micros boy's hooded jackets
drawstrings (``Drawstring Jackets'').
5. From October through December 2007, Urgent Gear sold the
Drawstring Jackets to a nationwide retailer.
6. The Drawstring Jackets are ``consumer product[s],'' and, at all
times relevant hereto, Urgent Gear was a ``manufacturer'' of those
consumer products, which were ``distributed in commerce,'' as those
terms are defined in CPSA sections 3(a)(5), (8), and (11), 15 U.S.C.
2052(a)(5), (8), and (11).
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.
[[Page 17646]]
10. Urgent Gear reported to the Commission there had been no
incidents or injuries from the Drawstring Jackets.
11. Urgent Gear's distribution in commerce of the Drawstring
Jackets 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 March 11, 2008, the Commission and Urgent Gear announced a
recall of the Drawstring Jackets. The recall informed consumers that
they should immediately remove the drawstrings to eliminate the hazard.
13. Urgent Gear had presumed and actual knowledge that the
Drawstring Jackets 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). Urgent Gear had obtained
information that reasonably supported the conclusion that the
Drawstring Jackets 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 Urgent Gear to immediately inform the Commission of
the defect and risk.
14. Urgent Gear knowingly failed to immediately inform the
Commission about the Drawstring Jackets 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 Urgent Gear
to civil penalties.
Urgent Gear Response
15. Urgent Gear denies the Staff's allegations that Urgent Gear
violated the CPSA.
Agreement of the Parties
16. Under the CPSA, the Commission has jurisdiction over this
matter and over Urgent Gear.
17. The parties enter into the Agreement for settlement purposes
only. The Agreement does not constitute an admission by Urgent Gear, or
a determination by the Commission, that Urgent Gear has knowingly
violated the CPSA.
18. In settlement of the Staff's allegations, Urgent Gear shall pay
a civil penalty in the amount of thirty-five thousand dollars
($35,000.00) in four (4) installment payments as follows: The first
installment payment of eight thousand seven hundred-fifty dollars
($8,750.00) shall be paid within twenty (20) calendar days of service
of the Commission's final Order accepting the Agreement; the second
installment payment of eight thousand seven hundred-fifty dollars
($8,750.00) shall be paid within four (4) months of service of the
Commission's final Order accepting the Agreement; the third installment
payment of eight thousand seven hundred-fifty dollars ($8,750.00) shall
be paid within eight (8) months of the Commission's final Order
accepting the Agreement; and the fourth installment payment of eight
thousand seven hundred-fifty dollars ($8,750.00) shall be paid within
twelve (12) months 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, Urgent Gear 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 Urgent Gear 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, Urgent Gear 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 Urgent Gear 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 Urgent Gear agree that severing the provision materially affects
the purpose of the Agreement and the Order.
Urgent Gear, Inc.
Dated: November 5, 2008.
By:
Bob Roofian,
CEO, Urgent Gear, Inc., 728 E. Commercial Street, Los Angeles, CA
90012.
Dated: November 5, 2008.
By:
Barry E. Powell, Esquire,
Grunfeld, Desiderio, Lebowitz, Silverman & Klestadt, LLP, Attorneys
for Urgent Gear, Inc., 707 Wilshire Boulevard, Suite 4150, Los
Angeles, CA 90017.
U.S. Consumer Product Safety Commission.
Cheryl A. Falvey,
General Counsel.
Ronald G. Yelenik,
Assistant General Counsel, Division of Compliance, Office of the
General Counsel.
Dated: November 5, 2008.
By:
Dennis C. Kacoyanis,
Trial Attorney, Division of Compliance, Office of the General
Counsel.
Order
Upon consideration of the Settlement Agreement entered into between
Urgent Gear, Inc. (``Urgent Gear'') and the U.S. Consumer Product
Safety Commission (``Commission'') staff, and the Commission having
jurisdiction over the subject matter and over Urgent Gear, 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 Urgent Gear shall pay a civil penalty in the
amount of thirty-five thousand dollars ($35,000.00) in four (4)
installment payments as follows: The first installment payment of eight
thousand seven hundred-fifty dollars ($8,750.00) shall be paid within
twenty (20) calendar days of service of the Commission's final Order
accepting the Agreement; the second installment payment of eight
thousand seven
[[Page 17647]]
hundred-fifty dollars ($8,750.00) shall be paid within four (4) months
of service of the Commission's final Order accepting the Agreement; the
third installment payment of eight thousand seven hundred-fifty dollars
($8,750.00) shall be paid within eight (8) months of the Commission's
final Order accepting the Agreement; and the fourth installment payment
of eight thousand seven hundred-fifty dollars ($8,750.00) shall be paid
within twelve (12) months 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 Urgent Gear to make the
foregoing payment when due, interest on the unpaid amount shall accrue
and be paid by Urgent Gear 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. E9-8701 Filed 4-15-09; 8:45 am]
BILLING CODE 6355-01-P