[Federal Register Volume 71, Number 247 (Tuesday, December 26, 2006)]
[Notices]
[Pages 77390-77392]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 06-9840]


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CONSUMER PRODUCT SAFETY COMMISSION

[CPSC Docket No. 07-C0001]


Black Dog Tavern Company, Inc., 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 
Black Dog Tavern Company, Inc., containing a civil penalty of $50,000.

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 January 10, 2007.

ADDRESSES: Persons wishing to comment on this Settlement Agreement 
should send written comments to the Comment 07-C0001, Office of the 
Secretary, Consumer Product Safety Commission, Washington, DC 20207.

FOR FURTHER INFORMATION CONTACT: Seth B. Popkin, Trial Attorney, Office 
of Compliance, Consumer Product Safety Commission, Washington, DC 
20207; telephone (301) 504-7612.

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

    Dated: December 18, 2006.
Todd A. Stevenson,
Secretary.

Settlement Agreement and Order

    1. In accordance with 16 CFR 1118.20, Black Dog Tavern Company, 
Inc. (``BDT'') 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'') settle the Staff's allegations set forth below.

Parties

    2. The Commission in 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. BDT is a corporation organized and existing under the laws of 
Massachusetts, with its principal offices located in Vineyard Haven,

[[Page 77391]]

Massachusetts. At all times relevant hereto, BDT sold apparel and 
accessories.

Staff Allegations

    4. From May 2004 through January 2006, BDT sold approximately 9,700 
children's hooded sweatshirts with drawstrings through the hoods, style 
numbers K086, K088, K090, K062, and K0639 (``Drawstring Sweatshirts'').
    5. The Drawstring Sweatshirts are ``consumer product(s),'' and, at 
all times relevant hereto, BDT was a ``retailer'' of those consumer 
product(s), which were ``distributed in commerce,'' as those terms are 
defined in CPSA sections 3(a)(1), (6), (11), and (12), 15 U.S.C. 
2052(a)(1), (6), (11), and (12).
    6. Although BDT reported no incidents or injuries from the 
Drawstring Sweatshirts, the Drawstring Sweatshirts did not meet ASTM 
F1816-97 and posed a strangulation hazard to children.
    7. On February 15, 2006, the Commission and BDT announced a recall 
of the Drawstring Sweatshirts, informing consumers that they should 
immediately remove the drawstrings to eliminate the hazard. The recall 
plan, in part, required BDT to remove the drawstrings from the 7,326 
Drawstring Sweatshirts in its inventory.
    8. On May 19, 2006, the Commission posted on its website a letter 
from the Commission's Director of the Office of Compliance to 
manufacturers, importers, and retailers of children's upper outerwear. 
The letter urged them to make certain that all children's upper 
outerwear sold in the Untied States complies with the ASTM standard. 
The letter stated 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 noted the CPSA's section 15(b) reporting requirements.
    9. On August 29, 2006, CPSC investigators listed two BDT stores, 
observed a total of 12 Drawstring Sweatshirts for sale, and purchased a 
total of three Drawstring Sweatshirts.
    10. BDT's distribution in commerce of the Drawstring Sweatshirts 
through August 2006 failed to abide by the February 2006 corrective 
action plan and recall, the ASTM standard, and the staff's May 2006 
defect notice.
    11. BDT has presumed and actual knowledge that the Drawstring 
Sweatshirts distributed and sold after the recall 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). BDT had obtained 
information that reasonably supported the conclusion that the 
Drawstring Sweatshirts distributed and sold after the recall 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 BDT to 
immediately inform the Commission of the defect and risk.
    12. BDT did not report to the Commission regarding the post-recall 
distribution and sale of the Drawstring Sweatshirts until after the 
Staff informed BDT of the CPSC's August 29, 2006 purchase of the 
Drawstring Sweatshirts. BDT thereby failed to immediately inform the 
Commission as required by CPSA sections 15(b)(2) and (3), 15 U.S.C. 
2064(b)(2) and (3). This failure violated CPSA section 19(a)(4), 15 
U.S.C. 2068(a)(4).
    13. BDT knowingly failed to immediately inform the Commission of 
the defect and risk posed by the post-recall distribution and sale of 
the Drawstring Sweatshirts, as the term ``knowingly'' is defined in 
CPSA section 20(d), 15 U.S.C. 2069(d). Pursuant to CPSA section 20, 15 
U.S.C. 2069, this failure subjected BDT to civil penalties.

BDT Response

    14. BDT denies the Staff's allegations set forth above that BDT 
knowingly violated the CPSA.

Agreement of the Parties

    15. Under the CPSA, the Commission has jurisdiction over this 
matter and over BDT.
    16. The parties enter into the Agreement for settlement purposes 
only. The Agreement does not constitute an admission by BDT, or a 
determination by the Commission, that BDT has knowingly violated the 
CPSA.
    17. In settlement of the Staff's allegations, BDT shall pay a civil 
penalty in the amount of fifty thousand dollars ($50,000.00). The civil 
penalty shall be paid in four (4) installments as follows: $12,500.00 
shall be paid within twenty (20) calendar days of service of the 
Commission's final Order accepting the Agreement; $12,500.00 shall be 
paid on or before the six-month anniversary of service of the 
Commission's final Order accepting the Agreement; $12,500.00 shall be 
paid on or before the one-year anniversary of service of the 
Commission's final Order accepting the Agreement; and $12,500.00 shall 
be paid on or before the eighteen-month anniversary 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.
    18. Upon the Commission's 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). If the Commission does not receive any written request not 
to accept the Agreement within fifteen (15) days, the Agreement shall 
be deemed finally accepted on the sixteenth (16th) 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, BDT 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 Commission's Order or 
actions; (3) a determination by the Commission of whether BDT 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 
Order.
    21. The Agreement and Order shall apply to, and be binding upon, 
BDT 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 BDT 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 Order may not be used to vary 
or contradict its terms. The Agreement shall not be waived, amended, 
modified, or otherwise altered, except in a writing that is executed by 
the party against whom such waiver, amendment, modification, or 
alteration is sought to be enforced.
    24. If after the effective date hereof, any provision of the 
Agreement and Order is held to be illegal, invalid, or unenforceable 
under present or future laws effective during the terms of the 
Agreement and Order, such provision shall be fully severable. The 
balance of the Agreement and Order shall remain in full force and 
effect, unless the Commission and BDT agree that severing the provision 
materially affects the purpose of the Agreement and Order.

Black Dog Tavern Company, Inc.


[[Page 77392]]


    Dated: December 1, 2006.

Robert S. Douglas, Sr.,
President, Black Dog Tavern Company, Inc., P.O. Box 2219, Beach 
Street Extension, Vineyard Haven, MA 02568.

    Dated: November 20, 2006.

Counsel for Black Dog Tavern Company, Inc.

Michael J. Gidding, Esq.,
Brown & Gidding, PC, 3201 New Mexico Avenue, NW., Washington, DC 
20016.


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: December 6, 2006.

Seth B. Popkin,
Trial Attorney, Legal Division, Office of Compliance and Field 
Operations.

Order

    Upon consideration of the Settlement Agreement entered into between 
Black Dog Tavern Company, Inc. (``BDT'') and the U.S. Consumer Product 
Safety Commission (``Commission'') staff, and the Commission having 
jurisdiction over the subject matter and over BDT, and it appearing 
that the Settlement Agreement and Order is in the public interest, it 
is
    Ordered, that the Settlement Agreement be, and hereby is, accepted; 
and it is
    Further ordered, that BDT shall pay a civil penalty in the amount 
of fifty thousand dollars ($50,000.00). The civil penalty shall be paid 
in four (4) installments as follows: $12,500.00 shall be paid within 
twenty (20) calendar days of service of the final Order upon BDT; 
$12,500.00 shall be paid on or before the six-month anniversary of 
service of the final Order upon BDT; $12,500.00 shall be paid on or 
before the one-year anniversary of service of the final Order upon BDT; 
and $12,500.00 shall be paid on or before the eighteen-month 
anniversary of service of the final Order upon BDT. The payment shall 
be made by check payable to the order of the United States Treasury. 
Upon the failure of BDT to make any of the foregoing payments when due, 
interest on the unpaid amount shall accrue and be paid by BDT 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 18th day 
of December, 2006.

By Order of the Commission.
Todd A. Stevenson,
Secretary, U.S. Consumer Product Safety Commission.
[FR Doc. 06-9840 Filed 12-22-06; 8:45 am]
BILLING CODE 6355-01-M