[Federal Register: September 14, 2010 (Volume 75, Number 177)]
[Notices]
[Page 55777-55778]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr14se10-48]
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CONSUMER PRODUCT SAFETY COMMISSION
[CPSC Docket No. 10-C0005]
Pro-Pac Distributing Corp., 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
Pro-Pac Distributing Corp., containing a civil penalty of $125,000.00.
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 September 29, 2010.
ADDRESSES: Persons wishing to comment on this Settlement Agreement
should send written comments to the Comment 10-C0005, Office of the
Secretary, Consumer Product Safety Commission, 4330 East West Highway,
Room 820, Bethesda, Maryland 20814-4408.
FOR FURTHER INFORMATION CONTACT: Jason E. Yearout, Trial Attorney,
Division of Enforcement and Information, Office of the General Counsel,
Consumer Product Safety Commission, 4330 East West Highway, Bethesda,
Maryland 20814-4408; telephone (301) 504-7733.
SUPPLEMENTARY INFORMATION: The text of the Agreement and Order appears
below.
Dated: September 8, 2010.
Todd A. Stevenson,
Secretary.
UNITED STATES OF AMERICA CONSUMER PRODUCT SAFETY COMMISSION
[CPSC Docket No. 10-C0005]
In the Matter of: Pro-Pac Distributing Corp.
Settlement Agreement
1. In accordance with 16 CFR 1118.20, Pro-Pac Distributing
Corporation (``Pro-Pac'') 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 Staff is the staff of the Commission, an independent federal
regulatory agency established pursuant to, and responsible for the
enforcement of, the Consumer Product Safety Act, 15 U.S.C. 2051-2089
(``CPSA'').
3. Pro-Pac is a corporation organized and existing under the laws
of California, with its principal offices located in Gardena,
California. At all times relevant hereto, Pro-Pac sold apparel.
Staff Allegations
4. In November of 2008, Pro-Pac imported and further distributed in
commerce, through sale and/or holding for sale, children's hooded
pullover and zipper sweatshirts with drawstrings at the neck, in sizes
Youth S-L (collectively, ``Sweatshirts'').
5. Pro-Pac sold Sweatshirts to retailers.
6. The Sweatshirts are ``consumer product[s],'' and, at all times
relevant hereto, Pro-Pac was a ``manufacturer'' of those consumer
products, which were ``distributed in commerce,'' as those terms are
defined in CPSA sections 3(a)(5), (8), and (11), 15 U.S.C. 2052(a)(5),
(8), and (11).
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. Pro-Pac's distribution in commerce of the Sweatshirts 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.
11. On July 15, 2009, the Commission announced Pro-Pac's recall of
the Sweatshirts.
12. Pro-Pac had presumed and actual knowledge that the Sweatshirts
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)(1). Pro-Pac had obtained information that reasonably
supported the conclusion that the Sweatshirts 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)(3)
[[Page 55778]]
and (4), 15 U.S.C. 2064(b)(3) and (4), required Pro-Pac to immediately
inform the Commission of the defect and risk.
13. Pro-Pac knowingly failed to immediately inform the Commission
about the Sweatshirts as required by CPSA sections 15(b)(3) and (4), 15
U.S.C. 2064(b)(3) and (4), 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 Pro-Pac to civil penalties.
Pro-Pac's Response
14. Pro-Pac denies the Staff's allegations above that Pro-Pac
knowingly violated the CPSA.
Agreement of the Parties
15. Under the CPSA, the Commission has jurisdiction over this
matter and over Pro-Pac.
16. The parties enter into the Agreement for settlement purposes
only. The Agreement does not constitute an admission by Pro-Pac, or a
determination by the Commission, that Pro-Pac knowingly violated the
CPSA.
17. In settlement of the Staff's allegations, Pro-Pac shall pay a
civil penalty in the amount of one hundred twenty-five thousand dollars
($125,000.00). The civil penalty shall be paid within twenty (20)
calendar days of service of the Commission's final Order accepting the
Agreement. The payment shall be made by check payable to the order of
the United States Treasury.
18. 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.
19. Upon the Commission's final acceptance of the Agreement and
issuance of the final Order, Pro-Pac 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 Pro-Pac 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 the
Order.
21. The Agreement and the Order shall apply to, and be binding
upon, Pro-Pac 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 Pro-Pac and each of its
successors and assigns 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 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.
24. 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 Pro-Pac agree that severing the provision materially affects the
purpose of the Agreement and the Order.
Pro-Pac Distributing Corp.
Dated: August 11, 2010. By:
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Young-Geun Lee
President and Owner, Pro-Pac Distributing Corp., 204 W. Rosecrans
Avenue, Gardena, CA 90248.
Dated: August 15, 2010. By:
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Simon Langer,
Law Offices of David Marh & Associates, 3325 Wilshire Blvd., Suite
1350, Los Angeles, CA 90010, Counsel for Pro-Pac Distributing Corp.
U.S. Consumer Product Safety,
Commission Staff.
Cheryl A. Falvey,
General Counsel.
Ronald G. Yelenik,
Assistant General Counsel, Office of the General Counsel.
Dated: August 24, 2010.
Jason E. Yearout,
Trial Attorney, Division of Compliance, Office of the General
Counsel.
UNITED STATES OF AMERICA CONSUMER PRODUCT SAFETY COMMISSION
[CPSC Docket No. 10-C0005]
In the Matter of: Pro-Pac Distributing Corp.
Order
Upon consideration of the Settlement Agreement entered into between
Pro-Pac Distributing Corp. (``Pro-Pac'') and the U.S. Consumer Product
Safety Commission (``Commission'') staff, and the Commission having
jurisdiction over the subject matter and over Pro-Pac, 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 Pro-Pac shall pay a civil penalty in the
amount of one hundred twenty-five thousand dollars ($125,000.00) within
twenty (20) calendar days of service of the Commission's final Order
accepting the Agreement. The payment shall be made by check payable to
the order of the United States Treasury. Upon the failure of Pro-Pac to
make the foregoing payment when due, interest on the unpaid amount
shall accrue and be paid by Pro-Pac 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 7th day
of September, 2010.
BY ORDER OF THE COMMISSION:
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Todd A. Stevenson,
Secretary, U.S. Consumer Product Safety Commission
[FR Doc. 2010-22779 Filed 9-13-10; 8:45 am]
BILLING CODE 6355-01-P