[Federal Register: August 1, 1995 (Volume 60, Number 147)] [Notices] [Page 39154-39156] From the Federal Register Online via GPO Access [wais.access.gpo.gov] ======================================================================= ----------------------------------------------------------------------- CONSUMER PRODUCT SAFETY COMMISSION [CPSC Docket No. 95-C0014] Provisional Acceptance of a Settlement Agreement and Order In the matter of Terri Treat, Individually and as the sole proprietor of Clouds d/b/a, Cotton Cloud Futon corporation. AGENCY: Consumer Product Safety Commission. ACTION: Provisional acceptance of a settlement agreement under the Consumer Product Safety Act. ----------------------------------------------------------------------- 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 1605.13. Published below is a provisionally-accepted Settlement Agreement with Cotton Cloud Futon corporation. 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 August 16, 1995. ADDRESSES: Persons wishing to comment on this Settlement Agreement should sent written comments to the Comment 95-C0014, Office of the Secretary, Consumer Product Safety Commission, Washington, DC 20207. FOR FURTHER INFORMATION CONTACT: Dennis C. Kacoyanis, Trial Attorney, Office of Compliance and Enforcement, Consumer Product Safety Commission, Washington, DC 20207; telephone (301) 504-0626. SUPPLEMENTARY INFORMATION: The text of the Agreement and Order appears below. Dated: July 26, 1995. Sadye E. Dunn, Secretary. In the matter of Terri Treat, individually and as the sole proprietor of Clouds, DBA, Cotton Cloud Futon Corporation. [CPSC Docket No. 95-C0014] Complaint; Nature of Proceedings Pursuant to the provisions of the Flammable Fabrics Act, as amended, (15 U.S.C. 1191 et seq.; hereinafter the ``FFA''); the Federal Trade Commission Act, as amended, (15 U.S.C. 41 et seq.; hereinafter, the ``FTCA''); and the Standard for the Flammability of Mattresses and Mattress Pads (FF 4-72, as amended), 16 CFR part 1632 (hereinafter, the ``Mattress Standard''), the Consumer Product Safety Commission having reason to believe that Terri Treat, individually and as the sole proprietor of Clouds DBA, Cotton Cloud Futon Corporation hereinafter, ``Respondent''), 1916 N.E. Broadway, Portland, OR 97232, has violated the provisions of said Acts; and further, it appearing to the Commission that a proceeding by it in respect those violations would be in the public interest, therefore, it hereby issues its Complaint stating its charges as follows: 1. Respondent Terri Treat is the sole proprietor of Clouds DBA, Cotton Cloud Futon Corporation, 1916 N.E. Broadway, Portland, OR 97005; and in that capacity, is responsible for the acts, practices, and policies of Clouds DBA, Cotton Cloud Futon Corporation. 2. Respondent is now and has been engaged in the manufacturing for sale, sale, and offering for sale, in commerce, and has introduced, delivered for introduction, transported and caused to be transported in commerce, and has sold or delivered after sale or shipment in commerce, as the term ``commerce'' is defined in section 2(b) of the FFA, 15 U.S.C. 1191(b), futon mattresses described as follows: (a) All cotton, (b) cotton-foam core, (c) poly-cotton, (d) poly-cotton foam core, (e) wool-cotton, (f) wool-cotton foam core, (g) wool-poly/cotton, (h) wool-poly/cotton foam core, (i) infant, (j) artland feather bed, and (k) 100% recycled dacron. 3. Each futon mattress identified in paragraph 3 of the complaint is intended or promoted for sleeping upon. 4. Each futon mattress identified in paragraph 3 of the complaint is, therefore: (a) A ``mattress'' within the meaning of Sec. 1632.1(a) of the Mattress Standard (FF 4-72, as amended), 1632.1(a); and (b) An ``interior furnishing'' and a ``product'' as these terms are defined in sections 2 (e) and (h) of the FFA, as amended, 15 U.S.C. 1191 (e) and (h). [[Page 39155]] 5. Respondent is subject to, and has failed to comply with, the Mattress Standard in that: (a) Respondent failed to do prototype testing of the ticking substitution procedure required by Sec. 1632.3 or 1632.6 of the Mattress Standard, 16 CFR 1632.3 or 1632.6. (b) Respondent failed to maintain the manufacturing or test specifications or test records, ticking substitution specifications or test records, or other records required by Sec. 1632.31 (c)(1) or (c)(5) and (c)(6), 16 CFR 1632.31 (c)(1) or (c)(5) and (c)(6). 6. The acts by Respondent set forth in paragraph 5 of the complaint are unlawful and constitute an unfair method of competition and an unfair and deceptive practice in commerce under the FTCA, in violation of section 3(a) of the FFA, 15 U.S.C. 1192(a), for which a cease and desist order may be issued against Respondent pursuant to section 5(b) of the FFA, 15 U.S.C. 1194(b), and section 5 of the FTCA, 15 U.S.C. 45. Relief Sought 7. The staff seeks issuance of a cease and desist order against Respondent pursuant to section 5(b) of the FFA, 15 U.S.C. 1194(b), and section 5 of the FTCA, 15 U.S.C. 45. Wherefore, the premises considered, the Commission hereby issues this Complaint on the ________ day of ____________, 1995. By direction of the Commission: Dated:____________ David Schmeltzer, Assistant Executive Director, Office of Compliance and Enforcement. In the matter of Terri Treat, individually and as sole proprietor of Clouds, DBA, Cotton Cloud Futon Corporation. [CPSC Docket No. 95-C0014] Consent Order Agreement Terri Treat, individually, and as the sole proprietor of Clouds, DBA, Cotton Cloud Futon Corporation (hereinafter, ``Respondent''), enters into this Consent Order Agreement (hereinafter, ``Agreement'') with the staff of the Consumer Product Safety Commission (hereinafter, ``Commission'') pursuant to the procedures for Consent Order Agreements contained in Sec. 1605.13 of the Commission's Procedures for Investigations, Inspections, and Inquiries under the Flammable Fabrics Act (FFA), 16 CFR 1605.13. This Agreement and Order are for the sole purpose of settling allegations of the staff (1) that Respondent violated section 3(a) of the Flammable Fabrics Act (FFA), as amended, 15 U.S.C. 1192(a) and the Standard for the Flammability of Mattresses and Mattress Pads, as amended, 16 CFR part 1632 (FF 4-72) (hereinafter, the ``Mattress Standard''), as more fully set forth in the Complaint accompanying this Agreement; and (2) that Respondent knowingly violated section 3(a) of the FFA, as amended, 15 U.S.C. 1192(a) and the Mattress Standard. Respondent and the Staff Agree 1. The Consumer Product Safety Commission has jurisdiction in this matter under the following Acts: Consumer Product Safety Act (15 U.S.C. 2051 et seq.), Flammable Fabrics Act (15 U.S.C. 1191 et seq.), and the Federal Trade Commission Act (15 U.S.C. 41 et seq.). 2. Respondent Terri Treat is the sole proprietor of Clouds DBA, Cotton Cloud Futon Corporation, 1916 N.E. Broadway, Portland, OR 97005; and in that capacity is responsible for the acts, practices, and policies of Clouds DBA, Cotton Cloud Futon Corporation. 3. Respondent is now and has been engaged in one or more of the following: the manufacture for sale, the sale, or the offering for sale, in commerce, or the importation, delivery for introduction, transportation in commerce, or the sale or delivery after sale or shipment in commerce, of a product, fabric, or related material which is subject to the requirements of the Flammable Fabrics Act, as amended, 15 U.S.C. 1191 et seq., and the Standard for the Flammability of Mattresses and Mattress Pads (FF 4-72), as amended, 16 CFR part 1632. 4. Respondent denies the allegations of paragraphs 1 through 6 of the Complaint that Respondent violated section 3(a) of the FFA, as amended, 15 U.S.C. 1192(a); and the Mattress Standard. 5. Respondent denies that she knowingly violated section 3(a) of the FFA, as amended, 15 U.S.C. 1192(a); and the Mattress Standard. 6. This Agreement is entered into for the purposes of settlement only and does not constitute a determination by the Commission that Respondent (a) violated or (b) knowingly violated the FFA and the Mattress Standard. 7. Respondent agrees to pay in settlement of the staff's allegations a civil penalty as set forth in the incorporated Order. 8. This Agreement does not constitute an admission by Respondent that a civil penalty is appropriate. 9. This Agreement becomes effective only upon its final acceptance by the Commission and service of the incorporated Order upon Respondent. 10. Upon final acceptance of this Consent Order Agreement by the Commission and issuance of the Final Order, Respondent knowingly, voluntarily, and completely waives any rights she may have in this matter (1) to an administrative or judicial hearing, (2) to judicial review or other challenge or contest of the validity of the Commission's actions, (3) to a determination by the Commission as to whether Respondent failed to comply with the Flammable Fabrics Act as aforesaid, (4) to a statement of findings of fact and conclusions of law, and (5) to any claims under the Equal Access to Justice Act. 11. Violation of the provisions of the Order may subject Respondent to a civil and/or criminal penalty for each such violation, as prescribed by law. 12. For purposes of section 6(b) of the CPSA, 15 U.S.C. 2055(b), this matter shall be treated as if a complaint had issued; and the Commission may publicize the terms of the Consent Order Agreement. 13. Agreements, understandings, representations, or interpretations made outside the Consent Order Agreement may not be used to vary or to contradict its terms. 14. Upon acceptance of this Agreement, the Commission shall issue the following Order incorporated herein by reference. Dated: June 26, 1995. Respondent Terri Treat Terri Treat, individually and as sole proprietor of Clouds, DBA, Cotton Cloud Futon Corporation Commission Staff David Schmeltzer, Assistant Executive Director, Office of Compliance. Eric L. Stone, Acting Director, Division of Administrative Litigation, Office of Compliance. Dated: July 5, 1995. Dennis C. Kacoyanis, Trial Attorney, Division of Administrative Litigation, Office of Compliance. [CPSC Docket No. 95-C0014] In the matter of Terri Treat, individually and as sole proprietor of Clouds, DBA, Cotton Cloud Futon Corporation. Order Upon consideration of the Consent Order Agreement entered into between Respondent Terri Treat, individually and as sole proprietor of Clouds, DBA, Cotton Cloud Futon Corporation and the staff of the Consumer Product Safety Commission; and the Commission having jurisdiction over the subject matter and Respondent Terri Treat, individually and as sole proprietor of Clouds, DBA, Cotton Cloud Futon Corporation; and it appearing that the Consent Order Agreement is in the public interest, I It is ordered that the Consent Order Agreement be and hereby is accepted. II It is further ordered that Respondent, and her successors and assigns, agents, representatives, and employees of the Respondent, directly or through any corporation, subsidiary, division, or other business entity, or through any agency, device or instrumentality, do forthwith cease and desist from selling or offering for sale, in commerce, or manufacturing for sale, in commerce, or importing into the United States or introducing, delivering for introduction, transporting or causing to be transported, in commerce, or selling or delivering after sale or shipment in commerce, any product, fabric or related material which is subject to and fails to conform to the Standard for the Flammability of Mattresses and Mattress Pads (FF 4-72), as amended, 16 CFR part 1632. III It is further ordered that Respondent conduct prototype testing for each mattress design, prior to production, in accordance with applicable provisions of the Standard for the Flammability of Mattresses and Mattress Pads (FF 4-72), as amended, 16 CFR part 1632. IV It is further ordered that Respondent prepare and maintain written records of the prototype testing specified in paragraph III of [[Page 39156]] this Order for each mattress design, including photographs of the tested mattresses, in accordance with applicable provisions of the Standard for the Flammability of Mattresses and Mattress Pads (FF 4- 72), as amended, 16 CFR part 1632. V It is further ordered that Respondent prepare and maintain a written record of the manufacturing specifications of each mattress prototype in accordance with applicable provisions of the Standard for the Flammability of Mattresses and Mattress Pads (FF 4-72), as amended, 16 CFR part 1632. VI It is further ordered that Respondent conduct prototype testing or, if appropriate, obtain supplier certification to support any substitution of materials after prototype testing, in accordance with all applicable provisions of the Standard for the Flammability of Mattresses and Mattress Pads (FF 4-72), as amended, 16 CFR part 1632. VII It is further ordered that Respondents prepare and maintain a written record of the manufacturing specifications of any new ticking or tape edge material substituted for those used in the original prototype testing, in accordance with applicable provisions of the Standard for the Flammability of Mattresses and Mattress Pads (FF 4-72), as amended, 16 CFR part 1632. VIII It is further ordered that Respondent prepare and maintain a written record of the manufacturing specifications of any new foam core material substituted for those used in the original prototype testing, in accordance with applicable provisions of the Standard for the Flammability of Mattresses and Mattress Pads (FF 4-72), as amended, 16 CFR part 1632. IX It is further ordered that Respondent prepare and maintain all other records required by the Standard for the Flammability of Mattresses and Mattress Pads (FF 4-72), as amended, 16 CFR part 1632, including: (a) Records to support any determination that a particular material other than ticking or tape edge did not influence ignition resistance; (b) Ticking certification test results or a certification from the ticking supplier; and (c) Records describing the disposition of all failing and rejected prototype mattresses. X It is further ordered that upon final acceptance of the Consent Order Agreement by the Commission, Respondent Terri Treat pay to the Commission a civil penalty in the amount of Ten Thousand And 00/100 Dollars ($10,000.00) in two payments of Five Thousand And 00/100 Dollars ($5,000.00) each. The first payment of Five Thousand And 00/ 100 Dollars ($5,000.00) shall be due on July 1, 1995 or within twenty (20) days after service of the Final Order of the Commission accepting this Consent Order Agreement (hereinafter, the ``anniversary date''), whichever is later. The second payment of Five Thousand And 00/100 Dollars ($5,000.00) shall be paid on July 1, 1996 or within one year of the anniversary date. Upon failure by Respondent to make payment or upon the making of a late payment by Respondent, the entire amount of the civil penalty shall be due and payable, and interest on the outstanding balance shall accrue and be paid at the federal legal rate of interest under the provisions of 28 U.S.C. 1961 (a) and (b). XI It is further ordered that Respondent shall within ninety (90) days after service upon her of this Order, file with the Commission a report, in writing, setting forth in detail the manner and form in which she has complied with this Order. XII It is further ordered that for a period of three (3) years from the date this Order becomes final pursuant to 16 CFR 1605.13(e), Respondent notify the Commission at least thirty (30) days prior to any proposed change in the way Respondent does business which may affect her compliance obligations arising out of this Order. By direction of the Commission, this Consent Order Agreement is provisionally accepted pursuant to 16 CFR 1605.13, and shall be placed on the public record, and the Commission shall announce the provisional acceptance of the Consent Order Agreement in the Commission's Public Calendar and in the Federal Register. So ordered by the Commission, this 26th day of July, 1995. Sadye E. Dunn, Secretary, Consumer Product Safety Commission. [FR Doc. 95-18750 Filed 7-31-95; 8:45 am] BILLING CODE 6335-01-M