[Federal Register Volume 75, Number 235 (Wednesday, December 8, 2010)]
[Notices]
[Pages 76405-76408]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-30834]
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CONSUMER PRODUCT SAFETY COMMISSION
[CPSC Docket No. 11-C0002]
Winter Bee, 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).\1\ Published below is a provisionally-accepted Settlement
Agreement with Winter Bee, Inc., containing a civil penalty of
$200,000.00, to be suspended except for $40,000.00, to be paid over a
period of 20 months as specified in the Order.
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\1\ The Commission voted 4-1 to publish this notice of the
provisional Settlement Agreement and Order. Commissioner Nord issued
a statement, and the statement can be found at http://www.cpsc.gov/pr/statements.html.
DATES: Any interested person may ask the Commission not to accept this
agreement or otherwise comment on its contents by filing a written
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request with the Office of the Secretary by December 23, 2010.
ADDRESSES: Persons wishing to comment on this Settlement Agreement
should send written comments to the Comment 11-C0002, Office of the
Secretary, Consumer Product Safety Commission, 4330 East West Highway,
Room 820, Bethesda, Maryland 20814-4408.
FOR FURTHER INFORMATION CONTACT: Seth B. Popkin, Lead Trial Attorney,
Division of Enforcement and Information, 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.
[[Page 76406]]
Dated: December 1, 2010.
Todd A. Stevenson,
Secretary.
Settlement Agreement
1. In accordance with 16 CFR 1118.20, Winter Bee, Inc. (``Winter
Bee'') 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 Staff is the staff of the Commission, 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. Winter Bee is a corporation organized and existing under the
laws of California, with its principal offices located in Los Angeles,
California. At all times relevant hereto, Winter Bee sold apparel.
Staff Allegations
4. From December 2004 to December 2008, Winter Bee manufactured and
distributed in commerce children's hooded pullover and zipper
sweatshirts with drawstrings at the neck (``Sweatshirts'').
5. Winter Bee sold Sweatshirts to retailers.
6. The Sweatshirts are ``consumer product[s],'' and, at all times
relevant hereto, Winter Bee 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.
10. Winter Bee informed the Commission that there had been no
incidents or injuries associated with the Sweatshirts.
11. Winter Bee'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. On June 10, 2009, the Commission announced Winter Bee's recall
of the Sweatshirts.
13. Winter Bee had presumed and 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). Winter Bee 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 Winter Bee to
immediately inform the Commission of the defect and risk.
14. Winter Bee 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 Winter Bee to civil
penalties.
Winter Bee's Response
15. Winter Bee denies the Staff's allegations above that Winter Bee
knowingly violated the CPSA.
Agreement of the Parties
16. Under the CPSA, the Commission has jurisdiction over this
matter and over Winter Bee.
17. The parties enter into the Agreement for settlement purposes
only. The Agreement does not constitute an admission by Winter Bee, or
a determination by the Commission, that Winter Bee knowingly violated
the CPSA.
18. In settlement of the Staff's allegations, a civil penalty in
the amount of two hundred thousand dollars ($200,000.00) shall be
imposed against Winter Bee. Based upon Winter Bee's representations in
the correspondence and other documents that Winter Bee and its counsel
submitted to the Staff concerning Winter Bee's financial condition and
concerning Winter Bee's stated inability to pay the foregoing penalty
(collectively, ``Financial Representations''), and contingent upon the
truthfulness, accuracy, and completeness of the Financial
Representations, the foregoing civil penalty shall be suspended except
for the amount of forty thousand dollars ($40,000.00).
19. Winter Bee shall pay the $40,000.00 nonsuspended portion of the
civil penalty in four (4) installments as follows: $25,000.00 shall be
paid within twenty (20) calendar days of service of the Commission's
final Order accepting the Agreement; $5,000.00 shall be paid within one
(1) year of the date of service of the Commission's final Order
accepting the Agreement; $5,000.00 shall be paid within sixteen (16)
months of the date of service of the Commission's final Order accepting
the Agreement; and $5,000.00 shall be paid within twenty (20) months of
the date 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.
20. In negotiating and consenting to the terms of the Agreement,
and in advising the Commission, the Staff has relied upon the Financial
Representations. If, at any time, the Staff finds that any information
provided as part of the Financial Representations was materially false,
inaccurate, or incomplete, or that Winter Bee failed to disclose in the
Financial Representations any asset or income, materially
misrepresented in the Financial Representations the value of any asset
or income, or made any other material misrepresentation or omission in
or relating to the Financial Representations and the information
therein, the Staff may petition the Commission to, or the Commission
may on its own initiative, modify the Order: (a) By lifting the
suspension of the $200,000.00 civil penalty; (b) by requiring that
Winter Bee immediately pay the unpaid portion of the
[[Page 76407]]
$200,000.00 civil penalty; and/or (c) in any other manner that the
Commission deems appropriate. Unless the Commission otherwise orders,
the Agreement shall in all other respects remain in full force and
effect.
21. 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.
22. Upon the Commission's final acceptance of the Agreement and
issuance of the final Order, Winter Bee 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 Winter Bee 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.
23. The Commission may publicize the terms of the Agreement and the
Order.
24. The Agreement and the Order shall apply to, and be binding
upon, Winter Bee and each of its successors and assigns.
25. The Commission issues the Order under the provisions of the
CPSA, and violation of the Order may subject Winter Bee and each of its
successors and assigns to appropriate legal action.
26. 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.
27. 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 Winter Bee agree that severing the provision materially affects the
purpose of the Agreement and the Order.
Winter Bee, Inc.
Dated: 10/15/10
By:
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Jai Nam Lee, President,
Winter Bee, Inc.,
4150 S. Main Street,
Los Angeles, CA 90037
Dated: 10/15/10.
By:
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John N. Politis, Esq.
Politis, Nangano & Politis,
1055 West 7th Street, Suite 2288,
Los Angeles, CA 90017,
Counsel for Winter Bee, Inc.
U.S. Consumer Product Safety Commission Staff
Cheryl A. Falvey,
General Counsel.
Ronald G. Yelenik,
Assistant General Counsel
Office of the General Counsel.
Dated: 11/5/10.
By:
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Seth B. Popkin, Lead Trial Attorney,
Division of Compliance,
Office of the General Counsel.
Order
Upon consideration of the Settlement Agreement entered into between
Winter Bee, Inc. (``Winter Bee'') and the U.S. Consumer Product Safety
Commission (``Commission'') staff, and the Commission having
jurisdiction over the subject matter and over Winter Bee, 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 civil penalty in the amount of two hundred
thousand dollars ($200,000.00) be, and hereby is, imposed against
Winter Bee. Based upon Winter Bee's representations in the
correspondence and other documents that Winter Bee and its counsel
submitted to the Commission staff concerning Winter Bee's financial
condition and concerning Winter Bee's stated inability to pay the
foregoing penalty (collectively, ``Financial Representations''), and
contingent upon the truthfulness, accuracy, and completeness of the
Financial Representations, the Commission suspends the foregoing civil
penalty except for the amount of forty thousand dollars ($40,000.00).
Further ordered, that Winter Bee shall pay the $40,000.00
nonsuspended portion of the civil penalty in four (4) installments as
follows: $25,000.00 shall be paid within twenty (20) calendar days of
service of the Commission's final Order accepting the Agreement;
$5,000.00 shall be paid within one (1) year of the date of service of
the Commission's final Order accepting the Agreement; $5,000.00 shall
be paid within sixteen (16) months of the date of service of the
Commission's final Order accepting the Agreement; and $5,000.00 shall
be paid within twenty (20) months of the date 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.
Further ordered, that the Commission staff's consent to this Order
and the Commission's entry of this Order are premised upon the
truthfulness, accuracy, and completeness of the Financial
Representations. If, upon petition of the Commission staff, or upon the
Commission's own initiative, the Commission finds that any information
provided as part of the Financial Representations was materially false,
inaccurate, or incomplete, or that Winter Bee failed to disclose in the
Financial Representations any asset or income, materially
misrepresented in the Financial Representations the value of any asset
or income, or made any other material misrepresentation or omission in
or relating to the Financial Representations and the information
therein, then the Commission may modify the Order by lifting the
suspension of the $200,000.00 civil penalty, by requiring that Winter
Bee immediately pay the unpaid portion of the $200,000.00 civil
penalty, and/or by making any other change to the Order that the
Commission deems appropriate. Unless the Commission otherwise orders,
the Agreement shall in all other respects remain in full force and
effect.
Further Ordered, that upon the failure of Winter Bee to make any of
the foregoing payments when due, the total amount of the $40,000.00
nonsuspended portion of the civil penalty shall become immediately due
and payable, and interest on the unpaid amount shall accrue and be paid
by Winter Bee 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 1st day
of December, 2010.
By Order of the Commission.
Todd A. Stevenson,
Secretary, U.S. Consumer Product Safety
[[Page 76408]]
Commission.
[FR Doc. 2010-30834 Filed 12-7-10; 8:45 am]
BILLING CODE 6355-01-P