[Federal Register: March 30, 2000 (Volume 65, Number 62)]
[Notices]
[Page 16896-16899]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr30mr00-51]
=======================================================================
-----------------------------------------------------------------------
CONSUMER PRODUCT SAFETY COMMISSION
[CPSC Docket No. 00-C0008]
Standard Mattress Company, 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 1605.13(4).
Published below is a provisionally-accepted Settlement Agreement with
Standard Mattress Company, containing a civil penalty of $60,000.\1\
---------------------------------------------------------------------------
\1\ Chairman Ann Brown and Commissioner Thomas H. Moore voted to
provisionally accept the agreement. Vice Chairman Mary Sheila Gall
voted to approve the agreement with the section VII delegation of
authority deleted. Commissioner Moore accompanied his vote with a
letter requesting that the staff brief him before exercising the
section VII delegated authority.
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 April 14, 2000.
ADDRESSES: Persons wishing to comment on this Settlement Agreement
should send written comments to the Comment 00-C0008, Office of the
Secretary, Consumer Product Safety Commission, Washington, DC 20207.
FOR FURTHER INFORMATION CONTACT: Michael J. Gidding, Trial Attorney,
Office of Compliance and Enforcement, Consumer Product Safety
Commission, Washington, DC 20207; telephone (301) 504-0626, 1344.
SUPPLEMENTARY INFORMATION: The text of the Agreement and Order appears
below.
Dated: March 24, 2000.
Sadye E. Dunn,
Secretary.
Consent Order Agreement
Standard Mattress Company (``Respondent''), enters into this
Consent Order Agreement (``Agreement'') with the staff of the Consumer
Product Safety Commission (hereinafter, ``Commission'') pursuant to the
procedures for Consent Order Agreements contained in section 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 that Respondent violated sections 3(a) and 5(c) of the
Flammable Fabrics Act (FFA), as amended 15 U.S.C. 1192(a) and 1194(c),
by failing to comply with requirements under the Standard for the
Flammability of Mattresses and Mattress Pads, 16 CFR part 1632 (FF 4-
72, amended) (the ``Mattress Standard''), as is more fully
[[Page 16897]]
set forth in the Complaint accompanying this Agreement. With respect to
the matters alleged in the Complaint, the purpose of the Agreement is
to settle all claims and potential claims that Respondent violated the
FFA, the Federal Trade Commission Act (FTCA), 15 U.S.C. 41 et seq. (to
the extent functions under that act related to the administration and
enforcement of the FAA have been transferred to the Commission), the
Consumer Product Safety Act (CPSA), 15 U.S.C. 2051, et seq., and all
regulations promulgated under those statutes.
Respondent and the Staff Agree
1. The Consumer Product Safety Commission has jurisdiction in this
matter under the FFA, the FTCA, and the CPSA.
2. Respondent is a corporation organized under the laws of the
State of Connecticut, with its principal place of business located at
261 Weston Street, Hartford, Connecticut. Respondent manufactures
futons.
3. Respondent is now, and has been engaged in, the manufacture for
sale, and the sale in commerce, of futons which are subject to the
requirements of the Mattress Standard and the FFA.
4. Respondent denies the allegations of the Complaint that it
knowingly or otherwise violated the Mattress Standard and sections 3(a)
and 5(c) of the FFA, as amended, 15 U.S.C. 1192(a) and 1194(c), or any
provision of the FTCA or the CPSA.
5. This Agreement is entered into for the purposes of settlement
only and does not constitute a determination by the Commission that
Respondent knowingly or otherwise violated the Mattress Standard, the
FAA, the FTCA, or the CPSA.
6. Upon final acceptance of this Agreement, Respondent agrees to
conduct a consumer level recall of style 605, 608, 611, and 613 futons
sold by retailers from May 1, 1998 through October 31, 1998 by (1)
joining with the Commission in issuing a joint press release that is
mutually acceptable to the parties; (2) notifying all retailers to
whom, during this period, Standard sold such futons of the terms of
recall and providing those retailers with mutually agreed upon point-
of-purchase posters describing those terms; and (3) offering each
consumer who owns a futon described above a replacement futon upon
completion of a form and return of the law label, brand name tag, and a
portion of the old futon to demonstrate its destruction, and upon
identification of the retailer from whom the consumer purchased the
futon, provided that no consumer shall be required to document proof of
purchase as a condition for obtaining a replacement futon.
7. Without admitting to the commission of any violation, Respondent
agrees to pay, in settlement of the staff's allegations, a civil
penalty of $60,000 as set forth in the attached incorporated Order.
8. This Agreement becomes effective only upon its final acceptance
by the Commission and service of the incorporated Final Order upon
Respondent.
9. Upon final acceptance of this Agreement by the Commission and
issuance of the Final Order, Respondent knowingly, voluntarily, and
completely waives any rights it 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 FFA or FTCA, (4) to a statement of findings of fact and
conclusions of law by the Commission, (5) to any claims under the Equal
Access to Justice Act, and (6) to a determination by the Commission
under section 30(d) of the CPSA, 15 U.S.C. 2079(d), that it is in the
public interest to regulate the risk of injury associated with futons
manufactured by Respondent for the purpose of implementing the recall
referenced in paragraph 6 of this Agreement.
10. 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.
11. The Commission may disclose the terms of this Agreement to the
public.
12. This Agreement may be used in interpreting the Provisional and
Final Orders. Agreements, understandings, representations, or
interpretations apart from those contained in this Agreement may not be
used to vary or to contradict its terms.
13. Upon acceptance of this Agreement, the Commission shall issue
the following Order incorporated herein.
Dated: March 8, 2000.
Standard Mattress Company
Robert Naboicheck,
President.
The Commission Staff
Alan H. Schoem,
Director, Office of Compliance.
Eric L. Stone,
Director, Legal Division.
Dated: March 7, 2000.
Michael J. Gidding,
Attorney.
Order
Upon consideration of the Consent Order Agreement entered into
between Standard Mattress Company (``Respondent'') and the staff of the
Consumer Product Safety Commission; and it appearing that the
Commission has jurisdiction over the subject matter and Respondent and
that the Consent Order Agreement is in the public interest.
I
It Is Ordered That the Consent Order Agreement be and hereby is
accepted, and
II
It Is Further Ordered That Respondent, and its successors and
assigns, agents, representatives, and employees of the Respondent,
acting directly or through any corporation, subsidiary, division, or
other business entity, or through any agency, device or
instrumentality, do forthwith cease and desist from manufacturing for
sale, selling, or offering for sale, in commerce, any futon or other
product which is subject to, and fails to conform with, the
requirements of the Standard for the Flammability of Mattresses and
Mattress Pads (FF 4-72, amended), 16 CFR part 1632.
III
It Is Further Ordered That Respondent conduct prototype testing for
each futon design, prior to production, and conduct prototype testing
or, if appropriate, obtain supplier certification to support any
substitution of materials after initial prototype testing, in
accordance with the applicable provisions of the Standard for the
Flammability of Mattresses and Mattress Pads (FF 4-72, amended), 16 CFR
part 1632.
IV
It Is Further Ordered That Respondent prepare and maintain: (a)
Written records of all prototype tests specified in paragraph III of
this Order for each futon design, including photographs of the tested
futons; (b) a written record of the manufacturing specifications of
each
[[Page 16898]]
futon prototype; and (c) written records of the manufacturing
specifications of any material substituted for that 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, amended), 16 CFR part 1632.
V
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, amended), 16 CFR part 1632, for
Respondent's futons, and comply with all applicable labeling
requirements of the Standard for the Flammability of Mattresses and
Mattress Pads (FF 4-72, amended), 16 CFR part 1632, with respect to
those futons.
VI
It Is Further Ordered That Respondent conduct a consumer level
recall of style 605, 608, 611, and 613 futons sold by retailers from
May 1, 1998 through October 31, 1998 by (1) joining with the Commission
in issuing a joint press release that is mutually acceptable to the
parties; (2) notifying all retailers to whom, during this period,
Respondent sold such futons of the terms of recall and providing those
retailers with mutually acceptable point-of-purchase posters describing
those terms; and (3) offering each consumer who owns a futon described
above a replacement futon upon completion of a form and return of the
law label, brand name tag, and a portion of the old futon to
demonstrate its destruction, and upon identification of the retailer
from whom the consumer purchased the futon, provided that no consumer
shall be required to document proof of purchase as a condition for
obtaining a replacement futon.
VII
It Is Further Ordered That, no later than one year after final
acceptance of the Consent Order Agreement by the Commission, Respondent
pay to the Commission a civil penalty in the amount of SIXTY THOUSAND
AND 00/100 DOLLARS ($60,000.00). If Respondent's financial condition
deteriorates to a degree that payment within the prescribed time period
would impose an undue financial hardship on the company, Respondent may
request an extension of the payment schedule. Upon a showing of good
cause, the Commission delegates to the Director of the Office of
Compliance the authority to modify the terms of this order to provide
an alternative payment schedule. Upon failure by Respondent to make
full payment in the time specified by this agreement or any
modification thereto, 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).
VIII
It Is Further Ordered That Respondent shall within 90 days of
service upon it of this Order file with the Commission a written report
setting forth in detail the manner and form in which it has complied
with this Order.
IX
It Is Further Ordered That Respondent: (a) Maintain records
identifying each retail customer notified of the recall pursuant to
paragraph VI, each consumer who receives a replacement futon pursuant
to paragraph VI, and any consumer who requests but does not receive a
replacement futon and the reason therefore; (b) make such records
available for inspection by the Commission staff upon request; and (c)
provide the Commission staff with a monthly summary, in a form
designated by the staff, of the number of consumer contacts and the
number of replacement futons shipped during that period.
X
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 material
proposed change in the way Respondent does business which may adversely
affect its 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 24th day of March 2000.
Sadye E. Dunn,
Secretary, Consumer Product Safety Commission.
Complaint
1. The staff of the Legal Division of the Office of Compliance,
U.S. Consumer Product Safety Commission, brings this action for
issuance of a cease and desist order against Respondent pursuant to
section 5 of the Flammable Fabrics Act (FFA), 15 U.S.C. 1194, to
section 5 of the Federal Trade Commission Act (FTCA), 15 U.S.C. 45, and
to section 30(b) of the Consumer Product Safety Act, 15 U.S.C. 2079(b),
which gives the Commission the authority to carry out certain functions
under the FTCA related to the administration and enforcement of the
FFA.
2. Respondent is a corporation organized under the laws of the
State of Connecticut, with its principal place of business located at
261 Weston Street, Hartford, Connecticut. Respondent is a manufacturer
of futons.
3. Respondent is now, and has been engaged in, the manufacture for
sale and the sale in commerce, as the term ``commerce'' is defined in
section 2(b) of the Flammable Fabrics Act (FFA), 15 U.S.C. 1191(b), of
futons which are subject to the requirements of the Standard for the
Flammability of Mattresses and Mattress Pads (FF 4-72, amended) (the
``Mattress Standard''), 16 CFR part 1632, and sections 3, 4, and 5 of
the FFA, 15 U.S.C. 1192, 1193, and 1194.
4. Each futon identified in paragraph 2 is intended or promoted for
sleeping upon.
5. Each futon identified in paragraph 2, is therefore:
(a) A ``mattress'' within the meaning of section 1632.1(a) of the
Mattress Standard (FF 4-72, as amended), 16 CFR 1632.1(a); and
(b) An ``interior furnishing'' and a ``product'' as defined in
sections 2(e) and (h) of the FFA, as amended, 16 U.S.C. 1191(e), (h).
6. Between May, 1995 and October, 1998, Respondent manufactured
futons that were subject to, and failed to comply with, the Mattress
Standard in that:
(a) Respondent failed to conduct new prototype testing as required
by section 1632.3 of the Mattress Standard, 16 CFR 1632.3, upon opening
a new manufacturing facility.
(b) Respondent failed to maintain manufacturing and test records as
required by sections 1632.31(c)(1), (2), (3), (10), and (12) of the
Mattress Standard, 16 CFR 1632.31(c)(1), (2), (3), (10), and (12).
(c) Respondent failed to label the futons in accordance with
section 1632.31(a)(3) of the Mattress Standard, 16 CFR 1632.31(a)(3).
7. Tests conducted in accordance with section 1632.4 of the
Mattress Standard, 16 CFR 1632.4, by the California Bureau of Home
Furnishings and by the Commission technical staff on futon models 605,
608, 611, and 613 manufactured by Respondent and offered for retail
sale in August, 1998 demonstrated that certain futons failed
[[Page 16899]]
to meet the ignition resistance requirements of section 1632.3 of the
Mattress Standard, 16 CFR 1632.3.
8. The acts by Respondent set forth in paragraphs 5 and 6 of the
complaint are unlawful and constitute an unfair method of competition
and an unfair and deceptive practice in commerce under section 5(a) of
the Federal Trade Commission Act (FTCA), 15 U.S.C. 45(a), 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 FAA, 15 U.S.C. 1194(b), and section 5 of the FTCA, 15 U.S.C. 45.
Relief Sought
9. 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 ______, 2000.
By direction of the Commission.
Dated:-----------------------------------------------------------------
----------------------------------------------------------------------
Alan H. Schoem,
Director, Office of Compliance.
[FR Doc. 00-7786 Filed 3-29-00; 8:45 am]
BILLING CODE 6355-01-M