[Federal Register Volume 76, Number 37 (Thursday, February 24, 2011)]
[Notices]
[Pages 10339-10340]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-4068]
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CONSUMER PRODUCT SAFETY COMMISSION
[CPSC Docket No. 11-C0004]
Ms. Bubbles, 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 Ms. Bubbles, Inc., containing a civil penalty of
$40,000.00.
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\1\ The Commission voted 5-0 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 March 11, 2011.
ADDRESSES: Persons wishing to comment on this Settlement Agreement
should send written comments to the Comment 11-C0004, Office of the
Secretary, Consumer Product Safety Commission, 4330 East West Highway,
Room 820, Bethesda, Maryland 20814-4408.
FOR FURTHER INFORMATION CONTACT: Dennis C. Kacoyanis, General 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) 504-7587.
SUPPLEMENTARY INFORMATION: The text of the Agreement and Order appears
below.
Dated: February 16, 2011.
Todd A. Stevenson,
Secretary.
In the Matter of Ms. Bubbles, Inc.;
SETTLEMENT AGREEMENT
1. In accordance with 16 C.F.R. Sec. 1118.20, Ms. Bubbles, Inc.
(``Ms. Bubbles'') 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.
Sec. Sec. 2051--2089 (``CPSA'').
3. Ms. Bubbles 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, Ms. Bubbles sold
apparel.
STAFF ALLEGATIONS
4. Beginning in May 2007, Ms. Bubbles imported and further
distributed in commerce, through sale and/or holding for sale,
girl's denim passport jackets with terrycloth and drawstrings
(collectively, ``Jackets'').
5. Ms. Bubbles sold Jackets to retailers.
6. The Jackets are ``consumer product[s],'' and, at all times
relevant hereto, Ms. Bubbles 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.
Sec. 2052(a)(5), (8), and (11).
[[Page 10340]]
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.
Sec. 1274(c). The letter also notes the CPSA's section 15(b)
reporting requirements.
10. Ms. Bubbles's distribution in commerce of the 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.
11. On January 6, 2009, the Commission announced Ms. Bubbles's
recall of the Jackets.
12. Ms. Bubbles had presumed and actual knowledge that the
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. Sec. 1274(c)(1). Ms. Bubbles had
obtained information that reasonably supported the conclusion that
the 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. Sec.
2064(b)(3) and (4), required Ms. Bubbles to immediately inform the
Commission of the defect and risk.
13. Ms. Bubbles knowingly failed to immediately inform the
Commission about the Jackets as required by CPSA sections 15(b)(3)
and (4), 15 U.S.C. Sec. 2064(b)(3) and (4), and as the term
``knowingly'' is defined in CPSA section 20(d), 15 U.S.C. Sec.
2069(d). This failure violated CPSA section 19(a)(4), 15 U.S.C.
Sec. 2068(a)(4). Pursuant to CPSA section 20, 15 U.S.C. Sec. 2069,
this failure subjected Ms. Bubbles to civil penalties.
MS. BUBBLES'S RESPONSE
14. Ms. Bubbles denies the Staff's allegations above that Ms.
Bubbles knowingly violated the CPSA or that the Jackets contained
drawstrings.
AGREEMENT OF THE PARTIES
15. Under the CPSA, the Commission has jurisdiction over this
matter and over Ms. Bubbles.
16. The parties enter into the Agreement for settlement purposes
only. The Agreement does not constitute an admission by Ms. Bubbles,
or a determination by the Commission, that Ms. Bubbles knowingly
violated the CPSA.
17. In settlement of the Staff's allegations, Ms. Bubbles shall
pay a civil penalty in the amount of forty thousand dollars
($40,000.00). The civil penalty shall be paid 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.
18. 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 C.F.R.
Sec. 1118.20(e). In accordance with 16 C.F.R. Sec. 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.
19. Upon the Commission's final acceptance of the Agreement and
issuance of the final Order, Ms. Bubbles 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 Ms. Bubbles 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.
20. The Commission may publicize the terms of the Agreement and
the Order.
21. The Agreement and the Order shall apply to, and be binding
upon, Ms. Bubbles and each of its successors and assigns.
22. The Commission issues the Order under the provisions of the
CPSA, and violation of the Order may subject Ms. Bubbles and each of
its successors and assigns to appropriate legal action.
23. 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.
24. 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 Ms. Bubbles agree that severing the provision
materially affects the purpose of the Agreement and the Order.
MS. BUBBLES, INC.
Dated: January 4, 2011
By:--------------------------------------------------------------------
Anil Chugh,
Controller, Ms. Bubbles, Inc., 2731 South Alameda Street, Los
Angeles, CA 90058.
Dated: January 10, 2011
By:--------------------------------------------------------------------
John V. Tamborelli,
Esquire, Stone Rosenblatt Cha, 21550 Oxnard Street, Main Plaza,
Suite 200, Woodland Hills, CA 91367, Counsel for Ms. Bubbles, 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: 01/10/2011 By: ------
Dennis C. Kacoyanis,
General Attorney, Division of Enforcement and Information, Office of
the General Counsel.
ORDER
Upon consideration of the Settlement Agreement entered into
between Ms. Bubbles, Inc. (``Ms. Bubbles'') and the U.S. Consumer
Product Safety Commission (``Commission'') staff, and the Commission
having jurisdiction over the subject matter and over Ms. Bubbles,
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 Ms. Bubbles shall pay a civil penalty in
the amount of forty thousand dollars ($40,000.00) 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 Ms. Bubbles
to make the foregoing payment when due, interest on the unpaid
amount shall accrue and be paid by Ms. Bubbles at the federal legal
rate of interest set forth at 28 U.S.C. Sec. 1961(a) and (b).
(continued on next page)
Provisionally accepted and provisional Order issued on the 11th
day of February, 2011.
BY ORDER OF THE COMMISSION:
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Todd A. Stevenson,
Secretary, U.S. Consumer Product Safety Commission.
[FR Doc. 2011-4068 Filed 2-23-11; 8:45 am]
BILLING CODE 6355-01-P