[Federal Register: August 12, 2008 (Volume 73, Number 156)]
[Notices]
[Page 46877-46879]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr12au08-39]
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CONSUMER PRODUCT SAFETY COMMISSION
(CPSC Docket No. 08-C0018)
Cobmex, 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
Cobmex, Inc., containing a civil penalty of $25,000.00.
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 (insert date that is 15
calendar days from publication date).
ADDRESSES: Persons wishing to comment on this Settlement Agreement
should send written comments to the Comment 08-C0018, Office of the
Secretary, Consumer Product Safety Commission, 4330 East West Highway,
Room 502, Bethesda, Maryland 20814-4408.
FOR FURTHER INFORMATION CONTACT: Dennis C. Kacoyanis, Trial Attorney,
Legal Division, Office of Compliance and Field Operations, 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.
August 5, 2008
Todd A. Stevenson
Secretary
United States of America
Consumer Product Safety Commission
In the Matter of Cobmex, Inc., CPSC Docket No. 08-C0018.
[[Page 46878]]
Settlement Agreement
1. In accordance with 16 CFR 1118.20, Cobmex, Inc. (``Cobmex'')
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 Staffs allegations set forth
below.
Parties
2. The Commission is 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. Cobmex is a corporation organized and existing under the laws
of California, with its principal offices located in Lakewood, CA.
At all times relevant hereto, Cobmex imported and sold apparel.
Staff Allegations
4. Between January 2006 and March 2007, Cobmex imported and/or
sold to retailers at least 30,020 youth jackets with drawstrings
(``Drawstring Jackets'')
5. Retailers sold the Drawstring Jackets to consumers.
6. The Drawstring Jackets are ``consumer product[s],'' and, at
all times relevant hereto, Cobmex was a ``manufacturer'' of those
consumer products, which were ``distributed in commerce,'' as those
terms are defined in CPSA sections 3(a)(l), (4), (11), and (12), 15
U.S.C. 2052(a)(1), (4), (11), and (12).
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 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 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. Cobmex reported to the Commission that there had been no
incidents or injuries from the Drawstring Jackets.
11. Cobmex's distribution in commerce of the Drawstring 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.
12. On March 8, 2007, the Commission and Cobmex announced a
recall of the Drawstring Jackets, informing consumers that they
should immediately remove the drawstrings to eliminate the hazard.
13. Cobmex had presumed and actual knowledge that the Drawstring
Jackets distributed in commerce posed a strangulation hazard and
presented a substantial risk of injury to children under FHSA
section 15(c)(l), 15 U.S.C. 1274(c)(1). Cobmex had obtained
information that reasonably supported the conclusion that the
Drawstring 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)(2) and (3), 15
U.S.C. 2064(b)(2) and (3), required Cobmex to immediately inform the
Commission of the defect and risk.
14. Cobmex knowingly failed to immediately inform the Commission
about the Drawstring Jackets as required by CPSA sections 15(b)(2)
and (3), 15 U.S.C. 2064(b)(2) and (3), and as the term ``knowingly''
is defined in CPSA section 20(d), 15 U.S.C. 2069(d). This failure
violated CPSA section 1 9(a)(4), 15 U.S.C. 2068(a)(4). Pursuant to
CPSA section 20, 15 U.S.C. 2069, this failure subjected Cobmex to
civil penalties.
Cobmex Response
15. Cobmex denies the Staff's allegations above that Cobmex
knowingly violated the CPSA.
Agreement of the Parties
16. Under the CPSA, the Commission has jurisdiction over this
matter and over Cobmex.
17. The parties enter into the Agreement for settlement purposes
only. The Agreement does not constitute an admission by Cobmex, or a
determination by the Commission, that Cobmex has knowingly violated
the CPSA.
18. In settlement of the Staff's allegations, Cobmex shall pay a
civil penalty in the amount of twenty-five thousand dollars
($25,000.00) in two (2) installments as follows: The first
installment payment of $10,000 shall be paid within twenty (20)
calendar days of service of the Commission's final Order accepting
the Agreement; the second installment payment of $15,000 shall be
paid within one (1) year of service of the Commission's final Order
accepting the Agreement. Each installment payment shall be by check
payable to the order of the United States Treasury.
19. 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.
20. Upon the Commission's final acceptance of the Agreement and
issuance of the final Order, Cobmex knowingly, voluntarily, and
completely waives any rights it may have regarding the Staff's
allegations 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 Cobmex 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.
21. The Commission may publicize the terms of the Agreement and
the Order.
22. The Agreement and the Order shall apply to, and be binding
upon, Cobmex and each of its successors and assigns.
23. The Commission issues the Order under the provisions of the
CPSA, and violation of the Order may subject Cobmex to appropriate
legal action.
24. 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.
25. 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 Cobmex agree that severing the provision materially
affects the purpose of the Agreement and the Order.
26. Pursuant to section 6(d) of the Interim Delegation of
Authority ordered by the Commission on February 1, 2008, the
Commission delegated to the Assistant Executive Director for
Compliance and Field Operations the authority to act, with the
concurrence of the General Counsel, for the Commission under 16 CFR
1118.20 with respect to Staff allegations that any person or firm
violated 15 U.S.C. 2068, where the total amount of the settlement
involves no more than $100,000.
Cobmex, Inc.
Dated: 5-29-08.
By: Scott Schwartz,
President and Chief Executive Officer, Cobmex, Inc., 3673 Industry
Avenue, Unit 106, Lakewood, CA 90058.
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: 5/30/08.
By: Dennis C. Kacoyanis,
Trial Attorney, Legal Division, Office of Compliance and Field
Operations.
[[Page 46879]]
United States of America
Consumer Product Safety Commission
In the Matter of Cobmex, Inc., CPSC Docket No. 08-C0018.
Order
Upon consideration of the Settlement Agreement entered into
between Cobmex, Inc. (``Cobmex'') and the U.S. Consumer Product
Safety Commission (``Commission'') staff, and the Commission having
jurisdiction over the subject matter and over Cobmex, and pursuant
to the authority delegated in section 6(d) of the Interim Delegation
of Authority ordered by the Commission on February 1, 2008, 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 Cobmex
shall pay a civil penalty in the amount of twenty five thousand
dollars ($25,000.00) in two (2) installments as follows: The first
installment payment of $10,000 shall be paid within twenty (20)
calendar days of service of the Commission's final Order accepting
the Agreement; the second installment payment of $15,000 shall be
paid within one (1) year of service of the Commission's final Order
accepting the Agreement. Each installment payment shall be made by
check payable to the order of the United States Treasury. Upon the
failure of Cobmex to make the foregoing payments when due, interest
on the unpaid amount shall accrue and be paid by Cobmex 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 4th
day of August, 2008.
By Order of the Commission.
Todd A. Stevenson,
Secretary, U.S. Consumer Product Safety Commission.
[FR Doc. E8-18395 Filed 08-11-08; 8:45 am]
BILLING CODE 6355-01-M