[Federal Register Volume 65, Number 62 (Thursday, March 30, 2000)]
[Notices]
[Pages 16896-16899]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-7786]


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CONSUMER PRODUCT SAFETY COMMISSION

[CPSC Docket No. 00-C0008]


Standard Mattress Company, 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 1605.13(4). 
Published below is a provisionally-accepted Settlement Agreement with 
Standard Mattress Company, containing a civil penalty of $60,000.\1\
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    \1\ Chairman Ann Brown and Commissioner Thomas H. Moore voted to 
provisionally accept the agreement. Vice Chairman Mary Sheila Gall 
voted to approve the agreement with the section VII delegation of 
authority deleted. Commissioner Moore accompanied his vote with a 
letter requesting that the staff brief him before exercising the 
section VII delegated authority.

DATES: Any interested person may ask the Commission not to accept this 
agreement or otherwise comment on its contents by filing a written 
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request with the Office of the Secretary by April 14, 2000.

ADDRESSES: Persons wishing to comment on this Settlement Agreement 
should send written comments to the Comment 00-C0008, Office of the 
Secretary, Consumer Product Safety Commission, Washington, DC 20207.

FOR FURTHER INFORMATION CONTACT: Michael J. Gidding, Trial Attorney, 
Office of Compliance and Enforcement, Consumer Product Safety 
Commission, Washington, DC 20207; telephone (301) 504-0626, 1344.

SUPPLEMENTARY INFORMATION: The text of the Agreement and Order appears 
below.

    Dated: March 24, 2000.
Sadye E. Dunn,
Secretary.

Consent Order Agreement

    Standard Mattress Company (``Respondent''), enters into this 
Consent Order Agreement (``Agreement'') with the staff of the Consumer 
Product Safety Commission (hereinafter, ``Commission'') pursuant to the 
procedures for Consent Order Agreements contained in section 1605.13 of 
the Commission's Procedures for Investigations, Inspections, and 
Inquiries under the Flammable Fabrics Act (FFA), 16 CFR 1605.13. This 
Agreement and Order are for the sole purpose of settling allegations of 
the staff that Respondent violated sections 3(a) and 5(c) of the 
Flammable Fabrics Act (FFA), as amended 15 U.S.C. 1192(a) and 1194(c), 
by failing to comply with requirements under the Standard for the 
Flammability of Mattresses and Mattress Pads, 16 CFR part 1632 (FF 4-
72, amended) (the ``Mattress Standard''), as is more fully

[[Page 16897]]

set forth in the Complaint accompanying this Agreement. With respect to 
the matters alleged in the Complaint, the purpose of the Agreement is 
to settle all claims and potential claims that Respondent violated the 
FFA, the Federal Trade Commission Act (FTCA), 15 U.S.C. 41 et seq. (to 
the extent functions under that act related to the administration and 
enforcement of the FAA have been transferred to the Commission), the 
Consumer Product Safety Act (CPSA), 15 U.S.C. 2051, et seq., and all 
regulations promulgated under those statutes.

Respondent and the Staff Agree

    1. The Consumer Product Safety Commission has jurisdiction in this 
matter under the FFA, the FTCA, and the CPSA.
    2. Respondent is a corporation organized under the laws of the 
State of Connecticut, with its principal place of business located at 
261 Weston Street, Hartford, Connecticut. Respondent manufactures 
futons.
    3. Respondent is now, and has been engaged in, the manufacture for 
sale, and the sale in commerce, of futons which are subject to the 
requirements of the Mattress Standard and the FFA.
    4. Respondent denies the allegations of the Complaint that it 
knowingly or otherwise violated the Mattress Standard and sections 3(a) 
and 5(c) of the FFA, as amended, 15 U.S.C. 1192(a) and 1194(c), or any 
provision of the FTCA or the CPSA.
    5. This Agreement is entered into for the purposes of settlement 
only and does not constitute a determination by the Commission that 
Respondent knowingly or otherwise violated the Mattress Standard, the 
FAA, the FTCA, or the CPSA.
    6. Upon final acceptance of this Agreement, Respondent agrees to 
conduct a consumer level recall of style 605, 608, 611, and 613 futons 
sold by retailers from May 1, 1998 through October 31, 1998 by (1) 
joining with the Commission in issuing a joint press release that is 
mutually acceptable to the parties; (2) notifying all retailers to 
whom, during this period, Standard sold such futons of the terms of 
recall and providing those retailers with mutually agreed upon point-
of-purchase posters describing those terms; and (3) offering each 
consumer who owns a futon described above a replacement futon upon 
completion of a form and return of the law label, brand name tag, and a 
portion of the old futon to demonstrate its destruction, and upon 
identification of the retailer from whom the consumer purchased the 
futon, provided that no consumer shall be required to document proof of 
purchase as a condition for obtaining a replacement futon.
    7. Without admitting to the commission of any violation, Respondent 
agrees to pay, in settlement of the staff's allegations, a civil 
penalty of $60,000 as set forth in the attached incorporated Order.
    8. This Agreement becomes effective only upon its final acceptance 
by the Commission and service of the incorporated Final Order upon 
Respondent.
    9. Upon final acceptance of this Agreement by the Commission and 
issuance of the Final Order, Respondent knowingly, voluntarily, and 
completely waives any rights it may have in this matter (1) to an 
administrative or judicial hearing, (2) to judicial review or other 
challenge or contest of the validity of the Commission's actions, (3) 
to a determination by the Commission as to whether Respondent failed to 
comply with the FFA or FTCA, (4) to a statement of findings of fact and 
conclusions of law by the Commission, (5) to any claims under the Equal 
Access to Justice Act, and (6) to a determination by the Commission 
under section 30(d) of the CPSA, 15 U.S.C. 2079(d), that it is in the 
public interest to regulate the risk of injury associated with futons 
manufactured by Respondent for the purpose of implementing the recall 
referenced in paragraph 6 of this Agreement.
    10. Violation of the provisions of the Order may subject Respondent 
to a civil and/or criminal penalty for each such violation, as 
prescribed by law.
    11. The Commission may disclose the terms of this Agreement to the 
public.
    12. This Agreement may be used in interpreting the Provisional and 
Final Orders. Agreements, understandings, representations, or 
interpretations apart from those contained in this Agreement may not be 
used to vary or to contradict its terms.
    13. Upon acceptance of this Agreement, the Commission shall issue 
the following Order incorporated herein.

    Dated: March 8, 2000.

Standard Mattress Company
Robert Naboicheck,
President.
The Commission Staff
Alan H. Schoem,
Director, Office of Compliance.
Eric L. Stone,
Director, Legal Division.
    Dated: March 7, 2000.
Michael J. Gidding,
Attorney.

Order

    Upon consideration of the Consent Order Agreement entered into 
between Standard Mattress Company (``Respondent'') and the staff of the 
Consumer Product Safety Commission; and it appearing that the 
Commission has jurisdiction over the subject matter and Respondent and 
that the Consent Order Agreement is in the public interest.

I

    It Is Ordered That the Consent Order Agreement be and hereby is 
accepted, and

II

    It Is Further Ordered That Respondent, and its successors and 
assigns, agents, representatives, and employees of the Respondent, 
acting directly or through any corporation, subsidiary, division, or 
other business entity, or through any agency, device or 
instrumentality, do forthwith cease and desist from manufacturing for 
sale, selling, or offering for sale, in commerce, any futon or other 
product which is subject to, and fails to conform with, the 
requirements of the Standard for the Flammability of Mattresses and 
Mattress Pads (FF 4-72, amended), 16 CFR part 1632.

III

    It Is Further Ordered That Respondent conduct prototype testing for 
each futon design, prior to production, and conduct prototype testing 
or, if appropriate, obtain supplier certification to support any 
substitution of materials after initial prototype testing, in 
accordance with the applicable provisions of the Standard for the 
Flammability of Mattresses and Mattress Pads (FF 4-72, amended), 16 CFR 
part 1632.

IV

    It Is Further Ordered That Respondent prepare and maintain: (a) 
Written records of all prototype tests specified in paragraph III of 
this Order for each futon design, including photographs of the tested 
futons; (b) a written record of the manufacturing specifications of 
each

[[Page 16898]]

futon prototype; and (c) written records of the manufacturing 
specifications of any material substituted for that used in the 
original prototype testing, in accordance with applicable provisions of 
the Standard for the Flammability of Mattresses and Mattress Pads (FF 
4-72, amended), 16 CFR part 1632.

V

    It Is Further Ordered That Respondent prepare and maintain all 
other records required by the Standard for the Flammability of 
Mattresses and Mattress Pads (FF 4-72, amended), 16 CFR part 1632, for 
Respondent's futons, and comply with all applicable labeling 
requirements of the Standard for the Flammability of Mattresses and 
Mattress Pads (FF 4-72, amended), 16 CFR part 1632, with respect to 
those futons.

VI

    It Is Further Ordered That Respondent conduct a consumer level 
recall of style 605, 608, 611, and 613 futons sold by retailers from 
May 1, 1998 through October 31, 1998 by (1) joining with the Commission 
in issuing a joint press release that is mutually acceptable to the 
parties; (2) notifying all retailers to whom, during this period, 
Respondent sold such futons of the terms of recall and providing those 
retailers with mutually acceptable point-of-purchase posters describing 
those terms; and (3) offering each consumer who owns a futon described 
above a replacement futon upon completion of a form and return of the 
law label, brand name tag, and a portion of the old futon to 
demonstrate its destruction, and upon identification of the retailer 
from whom the consumer purchased the futon, provided that no consumer 
shall be required to document proof of purchase as a condition for 
obtaining a replacement futon.

VII

    It Is Further Ordered That, no later than one year after final 
acceptance of the Consent Order Agreement by the Commission, Respondent 
pay to the Commission a civil penalty in the amount of SIXTY THOUSAND 
AND 00/100 DOLLARS ($60,000.00). If Respondent's financial condition 
deteriorates to a degree that payment within the prescribed time period 
would impose an undue financial hardship on the company, Respondent may 
request an extension of the payment schedule. Upon a showing of good 
cause, the Commission delegates to the Director of the Office of 
Compliance the authority to modify the terms of this order to provide 
an alternative payment schedule. Upon failure by Respondent to make 
full payment in the time specified by this agreement or any 
modification thereto, interest on the outstanding balance shall accrue 
and be paid at the federal legal rate of interest under the provisions 
of 28 U.S.C. 1961 (a) and (b).

VIII

    It Is Further Ordered That Respondent shall within 90 days of 
service upon it of this Order file with the Commission a written report 
setting forth in detail the manner and form in which it has complied 
with this Order.

IX

    It Is Further Ordered That Respondent: (a) Maintain records 
identifying each retail customer notified of the recall pursuant to 
paragraph VI, each consumer who receives a replacement futon pursuant 
to paragraph VI, and any consumer who requests but does not receive a 
replacement futon and the reason therefore; (b) make such records 
available for inspection by the Commission staff upon request; and (c) 
provide the Commission staff with a monthly summary, in a form 
designated by the staff, of the number of consumer contacts and the 
number of replacement futons shipped during that period.

X

    It Is Further Ordered That for a period of three (3) years from the 
date this Order becomes final pursuant to 16 CFR 1605.13(e), Respondent 
notify the Commission at least thirty (30) days prior to any material 
proposed change in the way Respondent does business which may adversely 
affect its compliance obligations arising out of this Order.

    By direction of the Commission, this Consent Order Agreement is 
provisionally accepted pursuant to 16 CFR 1605.13, and shall be 
placed on the public record, and the Commission shall announce the 
provisional acceptance of the Consent Order Agreement in the 
Commission's Public Calendar and in the Federal Register.

    So Ordered by the Commission, this 24th day of March 2000.
Sadye E. Dunn,
Secretary, Consumer Product Safety Commission.

Complaint

    1. The staff of the Legal Division of the Office of Compliance, 
U.S. Consumer Product Safety Commission, brings this action for 
issuance of a cease and desist order against Respondent pursuant to 
section 5 of the Flammable Fabrics Act (FFA), 15 U.S.C. 1194, to 
section 5 of the Federal Trade Commission Act (FTCA), 15 U.S.C. 45, and 
to section 30(b) of the Consumer Product Safety Act, 15 U.S.C. 2079(b), 
which gives the Commission the authority to carry out certain functions 
under the FTCA related to the administration and enforcement of the 
FFA.
    2. Respondent is a corporation organized under the laws of the 
State of Connecticut, with its principal place of business located at 
261 Weston Street, Hartford, Connecticut. Respondent is a manufacturer 
of futons.
    3. Respondent is now, and has been engaged in, the manufacture for 
sale and the sale in commerce, as the term ``commerce'' is defined in 
section 2(b) of the Flammable Fabrics Act (FFA), 15 U.S.C. 1191(b), of 
futons which are subject to the requirements of the Standard for the 
Flammability of Mattresses and Mattress Pads (FF 4-72, amended) (the 
``Mattress Standard''), 16 CFR part 1632, and sections 3, 4, and 5 of 
the FFA, 15 U.S.C. 1192, 1193, and 1194.
    4. Each futon identified in paragraph 2 is intended or promoted for 
sleeping upon.
    5. Each futon identified in paragraph 2, is therefore:
    (a) A ``mattress'' within the meaning of section 1632.1(a) of the 
Mattress Standard (FF 4-72, as amended), 16 CFR 1632.1(a); and
    (b) An ``interior furnishing'' and a ``product'' as defined in 
sections 2(e) and (h) of the FFA, as amended, 16 U.S.C. 1191(e), (h).
    6. Between May, 1995 and October, 1998, Respondent manufactured 
futons that were subject to, and failed to comply with, the Mattress 
Standard in that:
    (a) Respondent failed to conduct new prototype testing as required 
by section 1632.3 of the Mattress Standard, 16 CFR 1632.3, upon opening 
a new manufacturing facility.
    (b) Respondent failed to maintain manufacturing and test records as 
required by sections 1632.31(c)(1), (2), (3), (10), and (12) of the 
Mattress Standard, 16 CFR 1632.31(c)(1), (2), (3), (10), and (12).
    (c) Respondent failed to label the futons in accordance with 
section 1632.31(a)(3) of the Mattress Standard, 16 CFR 1632.31(a)(3).
    7. Tests conducted in accordance with section 1632.4 of the 
Mattress Standard, 16 CFR 1632.4, by the California Bureau of Home 
Furnishings and by the Commission technical staff on futon models 605, 
608, 611, and 613 manufactured by Respondent and offered for retail 
sale in August, 1998 demonstrated that certain futons failed

[[Page 16899]]

to meet the ignition resistance requirements of section 1632.3 of the 
Mattress Standard, 16 CFR 1632.3.
    8. The acts by Respondent set forth in paragraphs 5 and 6 of the 
complaint are unlawful and constitute an unfair method of competition 
and an unfair and deceptive practice in commerce under section 5(a) of 
the Federal Trade Commission Act (FTCA), 15 U.S.C. 45(a), in violation 
of section 3(a) of the FFA, 15 U.S.C. 1192(a), for which a cease and 
desist order may be issued against Respondent pursuant to section 5(b) 
of the FAA, 15 U.S.C. 1194(b), and section 5 of the FTCA, 15 U.S.C. 45.

Relief Sought

    9. The staff seeks issuance of a cease and desist order against 
Respondent pursuant to section 5(b) of the FFA, 15 U.S.C. 1194(b), and 
section 5 of the FTCA, 15 U.S.C. 45.

Wherefore, the premises considered, the Commission hereby issues 
this Complaint on the ___ day of ______, 2000.

    By direction of the Commission.

Dated:-----------------------------------------------------------------
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Alan H. Schoem,
Director, Office of Compliance.
[FR Doc. 00-7786 Filed 3-29-00; 8:45 am]
BILLING CODE 6355-01-M