[Federal Register: April 16, 2009 (Volume 74, Number 72)]
[Notices]
[Page 17662-17664]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr16ap09-37]
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CONSUMER PRODUCT SAFETY COMMISSION
[CPSC Docket No. 09-C0007]
Concord Buying Group, Inc., d/b/a A.J. Wright, 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
Concord Buying Group, Inc., d/b/a A.J. Wright, containing a civil
penalty of $70,000.00.
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-C0007, 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.
Dated: April 9, 2009.
Todd A. Stevenson,
Secretary.
Settlement Agreement
1. In accordance with 16 CFR 1118.20, Concord Buying Group, Inc.,
d/b/a A.J. Wright (``A.J. Wright'') 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. A.J. Wright is a corporation organized and existing under the
laws of New Hampshire, with its principal offices located in
Framingham, Massachusetts. At all times relevant hereto, A.J. Wright
sold apparel.
Staff Allegations
4. From August to November, 2007, A.J. Wright held for sale and/or
sold various quantities of the following children's upper outerwear
products with drawstrings at the hood or neck: Scope Imports boys'
hooded sweatshirts; Raw Blue sweatshirts; and Kidz World Inc. High
Energy USA boys' sweatshirts (collectively referred to herein as
``Sweatshirts''). These Sweatshirts' identifications correspond to and
are coextensive with information A.J. Wright reported to the Staff
about the Sweatshirts.
5. A.J. Wright sold Sweatshirts to consumers.
6. The Sweatshirts are ``consumer product[s],'' and, at all times
relevant hereto, A.J. Wright 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.
[[Page 17663]]
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. A.J. Wright informed the Commission that there had been no
incidents or injuries from the Sweatshirts.
11. A.J. Wright'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. A.J. Wright 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). A.J. Wright 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 A.J. Wright to
immediately inform the Commission of the defect and risk.
14. A.J. Wright 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 A.J. Wright to civil
penalties.
A.J. Wright's Response
15. A.J. Wright denies the Staff's allegations set forth above,
including, but not limited to, any allegation that A.J. Wright failed
timely to notify the Commission in accordance with section 15 of the
CPSA.
16. A.J. Wright requires that its vendors represent and warrant
that all products sold to A.J. Wright comply with all applicable
regulations, standards and requirements.
17. A.J. Wright 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. A.J. Wright 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. A.J. Wright 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 A.J. Wright.
Agreement of the Parties
20. Under the CPSA, the Commission has jurisdiction over this
matter and over A.J. Wright.
21. The parties enter into the Agreement for settlement purposes
only. The Agreement does not constitute an admission by A.J. Wright, or
a determination by the Commission, that A.J. Wright knowingly violated
the CPSA.
22. In settlement of the Staff's allegations, A.J. Wright shall pay
a civil penalty in the amount of seventy thousand dollars ($70,000.00)
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, A.J. Wright 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 A.J. Wright 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, A.J. Wright 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 A.J. Wright 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 A.J. Wright agree that severing the provision materially affects
the purpose of the Agreement and the Order.
Concord Buying Group, Inc., d/b/a A.J. Wright.
Dated: March 2, 2009.
By:
Ann McCauley,
Secretary, Concord Buying Group, Inc., d/b/a A.J. Wright, 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 Concord Buying Group, Inc., d/b/a A.J. Wright.
U.S. Consumer Product Safety Commission Staff.
Cheryl A. Falvey,
[[Page 17664]]
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
Concord Buying Group, Inc., d/b/a A.J. Wright (``A.J. Wright'') and the
U.S. Consumer Product Safety Commission (``Commission'') staff, and the
Commission having jurisdiction over the subject matter and over A.J.
Wright, 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 A.J. Wright shall pay a civil penalty in the
amount of seventy thousand dollars ($70,000.00) 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 A.J. Wright to make the
foregoing payment when due, interest on the unpaid amount shall accrue
and be paid by A.J. Wright 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. E9-8725 Filed 4-15-09; 8:45 am]
BILLING CODE 6355-01-P