[Federal Register Volume 74, Number 72 (Thursday, April 16, 2009)]
[Notices]
[Pages 17662-17664]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-8725]


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CONSUMER PRODUCT SAFETY COMMISSION

[CPSC Docket No. 09-C0007]


Concord Buying Group, Inc., d/b/a A.J. Wright, 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 
Concord Buying Group, Inc., d/b/a A.J. Wright, containing a civil 
penalty of $70,000.00.

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 1, 2009.

ADDRESSES: Persons wishing to comment on this Settlement Agreement 
should send written comments to the Comment 09-C0007, 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, Lead Trial Attorney, 
Division of Compliance, Office of the General Counsel, 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 9, 2009.
Todd A. Stevenson,
Secretary.

Settlement Agreement

    1. In accordance with 16 CFR 1118.20, Concord Buying Group, Inc., 
d/b/a A.J. Wright (``A.J. Wright'') 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. 2051-2089 (``CPSA'').
    3. A.J. Wright is a corporation organized and existing under the 
laws of New Hampshire, with its principal offices located in 
Framingham, Massachusetts. At all times relevant hereto, A.J. Wright 
sold apparel.

Staff Allegations

    4. From August to November, 2007, A.J. Wright held for sale and/or 
sold various quantities of the following children's upper outerwear 
products with drawstrings at the hood or neck: Scope Imports boys' 
hooded sweatshirts; Raw Blue sweatshirts; and Kidz World Inc. High 
Energy USA boys' sweatshirts (collectively referred to herein as 
``Sweatshirts''). These Sweatshirts' identifications correspond to and 
are coextensive with information A.J. Wright reported to the Staff 
about the Sweatshirts.
    5. A.J. Wright sold Sweatshirts to consumers.
    6. The Sweatshirts are ``consumer product[s],'' and, at all times 
relevant hereto, A.J. Wright was a ``retailer'' of those consumer 
products, which were ``distributed in commerce,'' as those terms are 
defined in CPSA sections 3(a)(5), (8), and (13), 15 U.S.C. 2052(a)(5), 
(8), and (13).
    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.

[[Page 17663]]

    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. A.J. Wright informed the Commission that there had been no 
incidents or injuries from the Sweatshirts.
    11. A.J. Wright'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.
    12. After distribution in commerce, recalls were announced 
regarding the Sweatshirts.
    13. A.J. Wright had presumed an 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). A.J. Wright 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) and (4), 15 U.S.C. 2064(b)(3) and (4), required A.J. Wright to 
immediately inform the Commission of the defect and risk.
    14. A.J. Wright 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 A.J. Wright to civil 
penalties.

A.J. Wright's Response

    15. A.J. Wright denies the Staff's allegations set forth above, 
including, but not limited to, any allegation that A.J. Wright failed 
timely to notify the Commission in accordance with section 15 of the 
CPSA.
    16. A.J. Wright requires that its vendors represent and warrant 
that all products sold to A.J. Wright comply with all applicable 
regulations, standards and requirements.
    17. A.J. Wright promptly notified the Commission pursuant to 
section 15 of the CPSA without first being contacted by the Commission 
upon verifying that certain garments contained drawstrings at the hood 
or neck.
    18. A.J. Wright fully cooperated with the Commission in providing 
information necessary for the Commission to determine, with the vendor, 
whether a recall was warranted and whether the vendor had sold affected 
garments to any other retailers.
    19. A.J. Wright has entered into the Agreement for settlement 
purposes only, to avoid incurring additional expenses and the 
distraction of litigation. The Agreement and Order do not constitute 
and are not evidence of any fault or wrongdoing by A.J. Wright.

Agreement of the Parties

    20. Under the CPSA, the Commission has jurisdiction over this 
matter and over A.J. Wright.
    21. The parties enter into the Agreement for settlement purposes 
only. The Agreement does not constitute an admission by A.J. Wright, or 
a determination by the Commission, that A.J. Wright knowingly violated 
the CPSA.
    22. In settlement of the Staff's allegations, A.J. Wright shall pay 
a civil penalty in the amount of seventy thousand dollars ($70,000.00) 
within twenty (20) calendar days of service of the Commission's final 
Order accepting the Agreement. The payment shall be by check payable to 
the order of the United States Treasury.
    23. 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.
    24. Upon the Commission's final acceptance of the Agreement and 
issuance of the final Order, A.J. Wright 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 A.J. Wright 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.
    25. The Commission may publicize the terms of the Agreement and the 
Order.
    26. The Agreement and the Order shall apply to, and be binding 
upon, A.J. Wright and each of its successors and assigns.
    27. The Commission issues the Order under the provisions of the 
CPSA, and violation of the Order may subject A.J. Wright to appropriate 
legal action.
    28. 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.
    29. 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 A.J. Wright agree that severing the provision materially affects 
the purpose of the Agreement and the Order.

Concord Buying Group, Inc., d/b/a A.J. Wright.

    Dated: March 2, 2009.
    By:

Ann McCauley,
Secretary, Concord Buying Group, Inc., d/b/a A.J. Wright, 770 
Cochituate Road, Framingham, MA 01701.

Dated: March 3, 2009.
By:

Eric A. Rubel, Esq.,
Arnold & Porter LLP, 555 12th Street, NW., Washington, DC 20004-
1206, Counsel for Concord Buying Group, Inc., d/b/a A.J. Wright.

U.S. Consumer Product Safety Commission Staff.

Cheryl A. Falvey,

[[Page 17664]]

General Counsel.

Ronald G. Yelenik,
Assistant General Counsel, Division of Compliance, Office of the 
General Counsel.

    Dated: March 6, 2009.
    By:

Seth B. Popkin,
Lead Trial Attorney, Division of Compliance, Office of the General 
Counsel.

Order

    Upon consideration of the Settlement Agreement entered into between 
Concord Buying Group, Inc., d/b/a A.J. Wright (``A.J. Wright'') and the 
U.S. Consumer Product Safety Commission (``Commission'') staff, and the 
Commission having jurisdiction over the subject matter and over A.J. 
Wright, 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 A.J. Wright shall pay a civil penalty in the 
amount of seventy thousand dollars ($70,000.00) 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 A.J. Wright to make the 
foregoing payment when due, interest on the unpaid amount shall accrue 
and be paid by A.J. Wright 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 8th 
day of April, 2009.

    By Order of the Commission.

Todd A. Stevenson,
Secretary, U.S. Consumer Product Safety Commission.

[FR Doc. E9-8725 Filed 4-15-09; 8:45 am]
BILLING CODE 6355-01-P