[Federal Register: April 16, 2009 (Volume 74, Number 72)]
[Notices]
[Page 17658-17660]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr16ap09-35]
-----------------------------------------------------------------------
CONSUMER PRODUCT SAFETY COMMISSION
[CPSC Docket No. 09-C0009]
Outfitter Trading Company LLC, 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
[[Page 17659]]
Settlement Agreement with Outfitter Trading Company LLC, 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 the Comment 09-C0009, Office of the
Secretary, Consumer Product Safety Commission, 4330 East West Highway,
Room 502, Bethesda, Maryland 20814-4408.
FOR FURTHER INFORMATION CONTACT: Renee K. Haslett, Trial Attorney,
Division of Compliance, Office of the General Counsel, Consumer Product
Safety Commission, 4330 East West Highway, Bethesda, Maryland 20814-
4408; telephone (301) 504-7673.
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, Outfitter Trading Company LLC
(``Outfitter'') 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. Outfitter is a corporation organized and existing under the laws
of Colorado with its principal offices located in Littleton, Colorado.
At all times relevant hereto, Outfitter sold apparel.
Staff Allegations
4. From at least September 2005 to May 2008, Outfitter distributed
in commerce children's hooded sweatshirts and jackets with drawstrings
at the hood or neck, which were later recalled on August 28, 2008
(``Garments'').
5. A retailer sold the Garments to consumers.
6. The Garments are ``consumer product[s],'' and, at all times
relevant hereto, Outfitter was a ``distributor'' of those consumer
products, which were ``distributed in commerce,'' as those terms are
defined in CPSA sections 3(a)(5), (7), and (8), 15 U.S.C. 2052(a)(5),
(7), and (8).
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. Outfitter informed the Commission that there had been no
incidents or injuries from the Garments.
11. Outfitter's distribution in commerce of the Garments 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 August 28, 2008, the Commission, in cooperation with the
importer of the Garments, announced a recall of the Garments.
13. Outfitter had presumed an 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). Outfitter 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 Outfitter to
immediately inform the Commission of the defect and risk.
14. Outfitter knowingly failed to immediately inform the Commission
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 Outfitter to civil penalties.
Outfitter's Responsive Allegation
15. Outfitter denies the Staff's allegations above that Outfitter
knowingly violated the CPSA.
Agreement of the Parties
16. Under the CPSA, the Commission has jurisdiction over this
matter and over Outfitter.
17. The parties enter into the Agreement for settlement purposes
only. The Agreement does not constitute an admission by Outfitter, or a
determination by the Commission, that Outfitter knowingly violated the
CPSA.
18. In settlement of the Staff's allegations, Outfitter shall pay a
civil penalty in the amount of thirty-five thousand dollars
($35,000.00). The civil penalty shall be paid in two (2) installments
as follows: $20,000.00 shall be paid within twenty (20) calendar days
of service of the Commission's final Order accepting the Agreement; and
$15,000.00 shall be paid within one hundred and twenty (120) calendar
days of service of the Commission's final Order accepting the
Agreement. Each payment shall be made 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, Outfitter knowingly, voluntarily, and
completely waives any rights it may have in this matter to the
following: (1) An
[[Page 17660]]
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
Outfitter 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, Outfitter 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 Outfitter and each of its
successors and assigns 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 Outfitter agree that severing the provision materially affects the
purpose of the Agreement and the Order.
Outfitter Trading Company LLC.
Dated: March 11, 2009.
By:
Patrick Somers,
President, Outfitter Trading Company LLC, 7540 S. Grant Street,
Littleton, Colorado 80122.
U.S. Consumer Product Safety Commission Staff.
Cheryl A. Falvey,
General Counsel.
Ronald G. Yelenik,
Assistant General Counsel, Office of the General Counsel.
Dated: March 18, 2009.
By:
Renee K. Haslett,
Trial Attorney, Division of Compliance, Office of the General
Counsel.
Order
Upon consideration of the Settlement Agreement entered into between
Outfitter Trading Company LLC (``Outfitter'') and the U.S. Consumer
Product Safety Commission (``Commission'') staff, and the Commission
having jurisdiction over the subject matter and over Outfitter, 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 Outfitter shall pay a civil penalty in the
amount of thirty-five thousand dollars ($35,000.00). The civil penalty
shall be paid in two (2) installments as follows: $20,000.00 shall be
paid within twenty (20) calendar days of service of the Commission's
final Order accepting the Agreement; and $15,000.00 shall be paid
within one hundred and twenty (120) calendar days of service of the
Commission's final Order accepting the Agreement. Each payment shall be
made by check payable to the order of the United States Treasury. Upon
the failure of Outfitter to make any of the foregoing payments when
due, the total amount of the civil penalty shall become immediately due
and payable, and interest on the unpaid amount shall accrue and be paid
by Outfitter 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. E9-8728 Filed 4-15-09; 8:45 am]
BILLING CODE 6355-01-P