[Federal Register: August 12, 2008 (Volume 73, Number 156)]
[Notices]
[Page 46886-46888]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr12au08-45]
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CONSUMER PRODUCT SAFETY COMMISSION
[CPSC Docket No. 08-C0020]
Vacation Clothing Exchange, Inc., d/b/a Basix USA, 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
Vacation Clothing Exchange, Inc., d/b/a Basix USA, 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 August 27, 2008.
ADDRESSES: Persons wishing to comment on this Settlement Agreement
should send written comments to the Comment 08-C0020, 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.
Dated: August 5, 2008.
Todd A. Stevenson,
Secretary.
United States of America
Consumer Product Safety Commission
In the Matter of
Vacation Clothing Exchange, Inc. d/b/a Basix USA.
CPSC Docket No. 08-C0020.
Settlement Agreement
1. In accordance with 16 CFR 1118.20, Vacation Clothing
Exchange, Inc., d/b/a Basix USA (``Vacation Clothing'') 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.
[[Page 46887]]
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. Vacation Clothing is a corporation organized and existing
under the laws of Florida, with its principal offices located in
Lauderdale Lakes, FL. At all times relevant hereto, Vacation
Clothing imported and sold apparel.
Staff Allegations
4. Between May 2003 and December 2006, Vacation Clothing
imported and/or sold to retailers at least 22,420 children's
sweatshirts and windbreakers with drawstrings in the hoods
(``Drawstring Sweatshirts and Windbreakers'').
5. Retailers sold the Drawstring Sweatshirts and Windbreakers to
consumers.
6. The Drawstring Sweatshirts and Windbreakers are ``consumer
product[s],'' and, at all times relevant hereto, Vacation Clothing
was a ``manufacturer'' of those consumer products, which were
``distributed in commerce,'' as those terms are defined in CPSA
sections 3(a)(1), (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 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. The Commission was not informed of any incidents or injuries
from the Drawstring Sweatshirts and Windbreakers.
11. Vacation Clothing's distribution in commerce of the
Drawstring Sweatshirts and Windbreakers 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 February 13, 2007, the Commission and Vacation Clothing
announced a recall of the Drawstring Sweatshirts and Windbreakers,
informing consumers that they should immediately remove the
drawstrings to eliminate the hazard.
13. Vacation Clothing had presumed and actual knowledge that the
Drawstring Sweatshirts and Windbreakers 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). Vacation Clothing had obtained information that
reasonably supported the conclusion that the Drawstring Sweatshirts
and Windbreakers 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 Vacation Clothing to immediately inform
the Commission of the defect and risk.
14. Vacation Clothing knowingly failed to immediately inform the
Commission about the Drawstring Sweatshirts and Windbreakers 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 l9(a)(4), 15
U.S.C. 2068(a)(4). Pursuant to CPSA section 20, 15 U.S.C. 2069, this
failure subjected Vacation Clothing to civil penalties.
Vacation Clothing Response
15. Vacation Clothing denies the Staff's allegations above that
Vacation Clothing knowingly violated the CPSA.
Agreement of the Parties
16. Under the CPSA, the Commission has jurisdiction over this
matter and over Vacation Clothing.
17. The parties enter into the Agreement for settlement purposes
only. The Agreement does not constitute an admission by Vacation
Clothing, or a determination by the Commission, that Vacation
Clothing has knowingly violated the CPSA.
18. In settlement of the Staff's allegations, Vacation Clothing
shall pay a civil penalty in the amount of twenty-five thousand
dollars ($25,000.00) in five (5) installments as follows: The first
installment of five-thousand dollars ($5,000.00) shall be paid
within twenty (20) calendar days of service of the Commission's
final Order accepting the Agreement; the second payment of five-
thousand dollars ($5,000.00) shall be paid within six (6) months of
service of the Commission's final Order accepting the Agreement; the
third payment of five-thousand dollars ($5,000.00) shall be paid
within twelve (12) months of service of the Commission's final Order
accepting the Agreement; the fourth payment of five-thousand dollars
($5,000.00) shall be paid within eighteen (18) months of service of
the Commission's final Order accepting the Agreement; and the fifth
payment of five-thousand dollars ($5,000.00) shall be paid within
twenty-four (24) months 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.
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, Vacation Clothing knowingly,
voluntarily, and completely waives any rights it may have regarding
the Staffs 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 Vacation Clothing 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, Vacation Clothing 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 Vacation Clothing 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 Vacation Clothing 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.
Vacation Clothing Exchange, Inc. d/b/a Basix USA
Dated: 7/21/08 By:
Benjamin Perelmutter,
[[Page 46888]]
Vice President, Vacation Clothing Exchange, Inc., d/b/a Basix USA.
2778 NW 31st Avenue.
Lauderdale Lakes, FL 33311.
Dated: 7/21/08 By:
Brian Kopelowitz, Esquire,
The Kopelowitz Ostrow Law Firm, P.A.
200 SW 1st Avenue, 12th Floor
Fort Lauderdale, FL 33301
Attorney for Vacation Clothing Exchange, Inc., d/b/a Basix USA.
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: 7/31/08 By:
Dennis C. Kacoyanis,
Trial Attorney,
Legal Division,
Office of Compliance and Field Operations.
United States of America
Consumer Product Safety Commission
In the Matter of Vacation Clothing Exchange, Inc. d/b/a Basix USA.
CPSC Docket No. 08-C0020
Order
Upon consideration of the Settlement Agreement entered into
between Vacation Clothing Exchange, Inc., d/b/a Basix USA
(``Vacation Clothing'') and the U.S. Consumer Product Safety
Commission (``Commission'') staff, and the Commission having
jurisdiction over the subject matter and over Vacation Clothing, 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 Vacation Clothing shall pay a civil
penalty in the amount of twenty-five thousand dollars ($25,000.00)
in five (5) installments as follows: The first payment of five-
thousand dollars ($5,000.00) shall be paid within twenty (20)
calendar days of service of the Commission's final Order accepting
the Agreement; the second payment of five-thousand dollars
($5,000.00) shall be paid within six (6) months of service of the
Commission's final Order accepting the Agreement; the third payment
of five-thousand dollars ($5,000.00) shall be paid within twelve
(12) months of service of the Commission's final Order accepting the
Agreement; the fourth payment of five-thousand dollars ($5,000.00)
shall be paid within eighteen (18) months of service of the
Commission's final Order accepting the Agreement; and the fifth
payment of five-thousand dollars ($5,000.00) shall be paid within
twenty-four (24) months of service of the Commission's final Order
accepting the Agreement. Each payment shall be made by check payable
to the order of the United States Treasury. Upon the failure
Vacation Clothing to make the foregoing payments when due, interest
on the unpaid amount shall accrue and be paid by Vacation Clothing
at the federal legal rate of interest set forth at 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. E8-18400 Filed 8-11-08; 8:45 am]
BILLING CODE 6355-01-M