[Federal Register: December 26, 2006 (Volume 71, Number 247)]
[Notices]
[Page 77390-77392]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr26de06-43]
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CONSUMER PRODUCT SAFETY COMMISSION
[CPSC Docket No. 07-C0001]
Black Dog Tavern Company, 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).
Published below is a provisionally-accepted Settlement Agreement with
Black Dog Tavern Company, Inc., containing a civil penalty of $50,000.
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 January 10, 2007.
ADDRESSES: Persons wishing to comment on this Settlement Agreement
should send written comments to the Comment 07-C0001, Office of the
Secretary, Consumer Product Safety Commission, Washington, DC 20207.
FOR FURTHER INFORMATION CONTACT: Seth B. Popkin, Trial Attorney, Office
of Compliance, Consumer Product Safety Commission, Washington, DC
20207; telephone (301) 504-7612.
SUPPLEMENTARY INFORMATION: The text of the Agreement and Order appears
below.
Dated: December 18, 2006.
Todd A. Stevenson,
Secretary.
Settlement Agreement and Order
1. In accordance with 16 CFR 1118.20, Black Dog Tavern Company,
Inc. (``BDT'') 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'') settle the Staff's allegations set forth below.
Parties
2. The Commission in an independent federal regulatory agency
established pursuant to, and responsible for the enforcement of, the
Consumer Product Safety Act, 15 U.S.C. 2051-2084 (``CPSA'').
3. BDT is a corporation organized and existing under the laws of
Massachusetts, with its principal offices located in Vineyard Haven,
[[Page 77391]]
Massachusetts. At all times relevant hereto, BDT sold apparel and
accessories.
Staff Allegations
4. From May 2004 through January 2006, BDT sold approximately 9,700
children's hooded sweatshirts with drawstrings through the hoods, style
numbers K086, K088, K090, K062, and K0639 (``Drawstring Sweatshirts'').
5. The Drawstring Sweatshirts are ``consumer product(s),'' and, at
all times relevant hereto, BDT was a ``retailer'' of those consumer
product(s), which were ``distributed in commerce,'' as those terms are
defined in CPSA sections 3(a)(1), (6), (11), and (12), 15 U.S.C.
2052(a)(1), (6), (11), and (12).
6. Although BDT reported no incidents or injuries from the
Drawstring Sweatshirts, the Drawstring Sweatshirts did not meet ASTM
F1816-97 and posed a strangulation hazard to children.
7. On February 15, 2006, the Commission and BDT announced a recall
of the Drawstring Sweatshirts, informing consumers that they should
immediately remove the drawstrings to eliminate the hazard. The recall
plan, in part, required BDT to remove the drawstrings from the 7,326
Drawstring Sweatshirts in its inventory.
8. On May 19, 2006, the Commission posted on its website a letter
from the Commission's Director of the Office of Compliance to
manufacturers, importers, and retailers of children's upper outerwear.
The letter urged them to make certain that all children's upper
outerwear sold in the Untied States complies with the ASTM standard.
The letter stated 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 noted the CPSA's section 15(b) reporting requirements.
9. On August 29, 2006, CPSC investigators listed two BDT stores,
observed a total of 12 Drawstring Sweatshirts for sale, and purchased a
total of three Drawstring Sweatshirts.
10. BDT's distribution in commerce of the Drawstring Sweatshirts
through August 2006 failed to abide by the February 2006 corrective
action plan and recall, the ASTM standard, and the staff's May 2006
defect notice.
11. BDT has presumed and actual knowledge that the Drawstring
Sweatshirts distributed and sold after the recall 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). BDT had obtained
information that reasonably supported the conclusion that the
Drawstring Sweatshirts distributed and sold after the recall 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)(2) and (3), 15 U.S.C. 2064(b)(2) and (3), required BDT to
immediately inform the Commission of the defect and risk.
12. BDT did not report to the Commission regarding the post-recall
distribution and sale of the Drawstring Sweatshirts until after the
Staff informed BDT of the CPSC's August 29, 2006 purchase of the
Drawstring Sweatshirts. BDT thereby failed to immediately inform the
Commission as required by CPSA sections 15(b)(2) and (3), 15 U.S.C.
2064(b)(2) and (3). This failure violated CPSA section 19(a)(4), 15
U.S.C. 2068(a)(4).
13. BDT knowingly failed to immediately inform the Commission of
the defect and risk posed by the post-recall distribution and sale of
the Drawstring Sweatshirts, as the term ``knowingly'' is defined in
CPSA section 20(d), 15 U.S.C. 2069(d). Pursuant to CPSA section 20, 15
U.S.C. 2069, this failure subjected BDT to civil penalties.
BDT Response
14. BDT denies the Staff's allegations set forth above that BDT
knowingly violated the CPSA.
Agreement of the Parties
15. Under the CPSA, the Commission has jurisdiction over this
matter and over BDT.
16. The parties enter into the Agreement for settlement purposes
only. The Agreement does not constitute an admission by BDT, or a
determination by the Commission, that BDT has knowingly violated the
CPSA.
17. In settlement of the Staff's allegations, BDT shall pay a civil
penalty in the amount of fifty thousand dollars ($50,000.00). The civil
penalty shall be paid in four (4) installments as follows: $12,500.00
shall be paid within twenty (20) calendar days of service of the
Commission's final Order accepting the Agreement; $12,500.00 shall be
paid on or before the six-month anniversary of service of the
Commission's final Order accepting the Agreement; $12,500.00 shall be
paid on or before the one-year anniversary of service of the
Commission's final Order accepting the Agreement; and $12,500.00 shall
be paid on or before the eighteen-month anniversary of service of the
Commission's final Order accepting the Agreement. Each payment shall be
by check payable to the order of the United States Treasury.
18. Upon the Commission's 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). If the Commission does not receive any written request not
to accept the Agreement within fifteen (15) days, the Agreement shall
be deemed finally accepted on the sixteenth (16th) 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, BDT 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 Commission's Order or
actions; (3) a determination by the Commission of whether BDT 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
Order.
21. The Agreement and Order shall apply to, and be binding upon,
BDT 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 BDT 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 Order may not be used to vary
or contradict its terms. The Agreement shall not be waived, amended,
modified, or otherwise altered, except in a writing that is executed by
the party against whom such waiver, amendment, modification, or
alteration is sought to be enforced.
24. If after the effective date hereof, any provision of the
Agreement and Order is held to be illegal, invalid, or unenforceable
under present or future laws effective during the terms of the
Agreement and Order, such provision shall be fully severable. The
balance of the Agreement and Order shall remain in full force and
effect, unless the Commission and BDT agree that severing the provision
materially affects the purpose of the Agreement and Order.
Black Dog Tavern Company, Inc.
[[Page 77392]]
Dated: December 1, 2006.
Robert S. Douglas, Sr.,
President, Black Dog Tavern Company, Inc., P.O. Box 2219, Beach
Street Extension, Vineyard Haven, MA 02568.
Dated: November 20, 2006.
Counsel for Black Dog Tavern Company, Inc.
Michael J. Gidding, Esq.,
Brown & Gidding, PC, 3201 New Mexico Avenue, NW., Washington, DC
20016.
U.S. Consumer Product Safety Commission Staff.
J. Gibson Mullan,
Assistant Executive Director, Office of Compliance and Field
Operations.
Ronald G. Yelenik,
Acting Director, Legal Division, Office of Compliance and Field
Operations.
Dated: December 6, 2006.
Seth B. Popkin,
Trial Attorney, Legal Division, Office of Compliance and Field
Operations.
Order
Upon consideration of the Settlement Agreement entered into between
Black Dog Tavern Company, Inc. (``BDT'') and the U.S. Consumer Product
Safety Commission (``Commission'') staff, and the Commission having
jurisdiction over the subject matter and over BDT, and it appearing
that the Settlement Agreement and Order is in the public interest, it
is
Ordered, that the Settlement Agreement be, and hereby is, accepted;
and it is
Further ordered, that BDT shall pay a civil penalty in the amount
of fifty thousand dollars ($50,000.00). The civil penalty shall be paid
in four (4) installments as follows: $12,500.00 shall be paid within
twenty (20) calendar days of service of the final Order upon BDT;
$12,500.00 shall be paid on or before the six-month anniversary of
service of the final Order upon BDT; $12,500.00 shall be paid on or
before the one-year anniversary of service of the final Order upon BDT;
and $12,500.00 shall be paid on or before the eighteen-month
anniversary of service of the final Order upon BDT. The payment shall
be made by check payable to the order of the United States Treasury.
Upon the failure of BDT to make any of the foregoing payments when due,
interest on the unpaid amount shall accrue and be paid by BDT 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 18th day
of December, 2006.
By Order of the Commission.
Todd A. Stevenson,
Secretary, U.S. Consumer Product Safety Commission.
[FR Doc. 06-9840 Filed 12-22-06; 8:45 am]
BILLING CODE 6355-01-M