[Federal Register: April 29, 2008 (Volume 73, Number 83)]
[Notices]
[Page 23196-23198]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr29ap08-42]
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CONSUMER PRODUCT SAFETY COMMISSION
[CPSC Docket No. 08-C00l0]
DollarDays International, LLC, Provisional Acceptance of a
Settlement Agreement and Order
AGENCY: Consumer Product Safety Commission.
ACTION: Notice.
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[[Page 23197]]
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
DollarDays International, LLC, 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 May 14, 2008.
ADDRESSES: Persons wishing to comment on this Settlement Agreement
should send written comments to the Comment 08-C0010, Office of the
Secretary, Consumer Product Safety Commission, 4330 East West Highway,
Room 502, Bethesda, Maryland 20814-4408.
FOR FURTHER INFORMATION CONTACT: Seth B. Popkin, Trial Attorney, Legal
Division, Office of Compliance and Field Operations, Consumer Product
Safety Commission, 4330 East West Highway, Bethesda, Maryland 20814-
4408; telephone (301) 504-7612.
SUPPLEMENTARY INFORMATION: The text of the Agreement and Order appears
below.
Dated: April 23, 2008.
Todd A. Stevenson,
Secretary.
In the Matter of DollarDays International, LLC; CPSC Docket No. 08-
C0010
Settlement Agreement
1. In accordance with 16 CFR 1118.20, DollarDays International, LLC
(``DDI'') 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 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. DDI is a corporation organized and existing under the laws of
Delaware, with its principal offices located in Scottsdale, Arizona. At
all times relevant hereto, DDI sold apparel and accessories.
Staff Allegations
4. From December 2005 through November 2006, DDI sold to retailers
or other persons 180 children's parka jackets with drawstrings through
the hoods (``Drawstring Jackets'').
5. Retailers sold the Drawstring Jackets to consumers,
6. The Drawstring Jackets are ``consumer product[s],'' and, at all
times relevant hereto, DDI was a ``distributor'' of those consumer
products, which were ``distributed in commerce,'' as those terms are
defined in CPSA sections 3(a)(l), (5), (11), and (12), 15 U.S.C. Sec.
2052(a)(l), (5), (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 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. 1274(c). The letter
also notes the CPSA's section 15(b) reporting requirements.
10. DDI reported to the Commission that there had been no incidents
or injuries from the Drawstring Jackets.
11. DDI'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 November 30, 2006, the Commission, in cooperation with DDI,
announced a recall of the Drawstring Jackets, informing consumers that
they should immediately remove the drawstrings to eliminate the hazard.
13. DDI 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)(1), 15 U.S.C. 1274(c)(l). DDI 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 DDI
to immediately inform the Commission of the defect and risk.
14. DDI 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 19(a)(4), 15 U.S.C. 2068(a)(4). Pursuant to CPSA section 20, 15
U.S.C. 2069, this failure subjected DDI to civil penalties.
DDI Response
15. DDI denies the Staff's allegations above that DDI knowingly
violated the CPSA.
Agreement of the Parties
16. Under the CPSA, the Commission has jurisdiction over this
matter and over DDI.
17. The parties enter into the Agreement for settlement purposes
only. The Agreement does not constitute an admission by DDI, or a
determination by the Commission, that DDI has knowingly violated the
CPSA.
18. In settlement of the Staff's allegations, DDI shall pay a civil
penalty in the amount of twenty-five thousand dollars ($25,000.00) in
three (3) installments as follows: $5,000.00 shall be paid within
twenty (20) calendar days of service of the Commission's final Order
accepting the Agreement; $10,000.00 shall be paid on or before May 1,
2008; and $10,000.00 shall be paid on or before August 1, 2008. Each
payment shall be made 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
[[Page 23198]]
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, DDI 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
DDI 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, DDI 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 DDI 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 DDI 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.
DollarDays International, LLC
Dated: 3/19/08.
By: Marc Joseph,
President, DollarDays International, LLC
7575 E. Redfield Rd., Suite 201,
Scottsdale, AZ 85260
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: 4-16-08.
By: Seth B. Popkin,
Trial Attorney, Legal Division, Office of Compliance and Field
Operations
In the Matter of DollarDays International, LLC; CPSC Docket No. 08-
C0010
Order
Upon consideration of the Settlement Agreement entered into between
DollarDays International, LLC (``DDI'') and the U.S. Consumer Product
Safety Commission (``Commission'') staff, and the Commission having
jurisdiction over the subject matter and over DDI, 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 DDI shall pay a civil
penalty in the amount of twenty-five thousand dollars ($25,000.00) in
three (3) installments as follows: $5,000.00 shall be paid within
twenty (20) calendar days of service of the Commission's final Order
accepting the Agreement; $10,000.00 shall be paid on or before May 1,
2008; and $10,000.00 shall be paid on or before August 1, 2008. The
payment shall be made by check payable to the order of the United
States Treasury. Upon the failure of DDI to make any of the foregoing
payments when due, interest on the unpaid amount shall accrue and be
paid by DDI 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 22nd day
of April, 2008.
By Order of the Commission:
Todd A. Stevenson,
Secretary, U.S. Consumer Product Safety Commission
[FR Doc. E8-9290 Filed 4-28-08; 8:45 am]
BILLING CODE 6355-01-M