[Federal Register Volume 74, Number 72 (Thursday, April 16, 2009)]
[Notices]
[Pages 17645-17647]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-8701]


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CONSUMER PRODUCT SAFETY COMMISSION

[CPSC Docket No. 09-C0012]


Urgent Gear, 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 
Urgent Gear, Inc., containing a civil penalty of $35,000.00.

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 Comment 09-C0012, 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, 
Division of Compliance, Office of the General Counsel, 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: April 9, 2009.
Todd A. Stevenson,
Secretary.

Settlement Agreement

    1. In accordance with 16 CFR 1118.20, Urgent Gear, Inc. (``Urgent 
Gear'') 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. Urgent Gear is a corporation organized and existing under the 
laws of the State of California, with its principal offices located in 
Los Angeles, CA. At all times relevant hereto, Urgent Gear imported and 
sold apparel.

Staff Allegations

    4. Urgent Gear imported about 700 Micros boy's hooded jackets 
drawstrings (``Drawstring Jackets'').
    5. From October through December 2007, Urgent Gear sold the 
Drawstring Jackets to a nationwide retailer.
    6. The Drawstring Jackets are ``consumer product[s],'' and, at all 
times relevant hereto, Urgent Gear 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.

[[Page 17646]]

    10. Urgent Gear reported to the Commission there had been no 
incidents or injuries from the Drawstring Jackets.
    11. Urgent Gear's distribution in commerce of the Drawstring 
Jackets 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 March 11, 2008, the Commission and Urgent Gear announced a 
recall of the Drawstring Jackets. The recall informed consumers that 
they should immediately remove the drawstrings to eliminate the hazard.
    13. Urgent Gear had presumed and actual knowledge that the 
Drawstring Jackets 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). Urgent Gear had obtained 
information that reasonably supported the conclusion that the 
Drawstring Jackets 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 Urgent Gear to immediately inform the Commission of 
the defect and risk.
    14. Urgent Gear knowingly failed to immediately inform the 
Commission about the Drawstring Jackets 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 Urgent Gear 
to civil penalties.

Urgent Gear Response

    15. Urgent Gear denies the Staff's allegations that Urgent Gear 
violated the CPSA.

Agreement of the Parties

    16. Under the CPSA, the Commission has jurisdiction over this 
matter and over Urgent Gear.
    17. The parties enter into the Agreement for settlement purposes 
only. The Agreement does not constitute an admission by Urgent Gear, or 
a determination by the Commission, that Urgent Gear has knowingly 
violated the CPSA.
    18. In settlement of the Staff's allegations, Urgent Gear shall pay 
a civil penalty in the amount of thirty-five thousand dollars 
($35,000.00) in four (4) installment payments as follows: The first 
installment payment of eight thousand seven hundred-fifty dollars 
($8,750.00) shall be paid within twenty (20) calendar days of service 
of the Commission's final Order accepting the Agreement; the second 
installment payment of eight thousand seven hundred-fifty dollars 
($8,750.00) shall be paid within four (4) months of service of the 
Commission's final Order accepting the Agreement; the third installment 
payment of eight thousand seven hundred-fifty dollars ($8,750.00) shall 
be paid within eight (8) months of the Commission's final Order 
accepting the Agreement; and the fourth installment payment of eight 
thousand seven hundred-fifty dollars ($8,750.00) shall be paid within 
twelve (12) months of the Commission's final Order accepting the 
Agreement. The 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, Urgent Gear knowingly, voluntarily, and 
completely waives any rights it may have regarding the Staff's 
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 Urgent Gear 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, Urgent Gear 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 Urgent Gear 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 Urgent Gear agree that severing the provision materially affects 
the purpose of the Agreement and the Order.

Urgent Gear, Inc.

Dated: November 5, 2008.
By:

Bob Roofian,
CEO, Urgent Gear, Inc., 728 E. Commercial Street, Los Angeles, CA 
90012.

    Dated: November 5, 2008.
    By:

Barry E. Powell, Esquire,
Grunfeld, Desiderio, Lebowitz, Silverman & Klestadt, LLP, Attorneys 
for Urgent Gear, Inc., 707 Wilshire Boulevard, Suite 4150, Los 
Angeles, CA 90017.

U.S. Consumer Product Safety Commission.

Cheryl A. Falvey,
General Counsel.

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

    Dated: November 5, 2008.
    By:

Dennis C. Kacoyanis,
Trial Attorney, Division of Compliance, Office of the General 
Counsel.

Order

    Upon consideration of the Settlement Agreement entered into between 
Urgent Gear, Inc. (``Urgent Gear'') and the U.S. Consumer Product 
Safety Commission (``Commission'') staff, and the Commission having 
jurisdiction over the subject matter and over Urgent Gear, 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 Urgent Gear shall pay a civil penalty in the 
amount of thirty-five thousand dollars ($35,000.00) in four (4) 
installment payments as follows: The first installment payment of eight 
thousand seven hundred-fifty dollars ($8,750.00) shall be paid within 
twenty (20) calendar days of service of the Commission's final Order 
accepting the Agreement; the second installment payment of eight 
thousand seven

[[Page 17647]]

hundred-fifty dollars ($8,750.00) shall be paid within four (4) months 
of service of the Commission's final Order accepting the Agreement; the 
third installment payment of eight thousand seven hundred-fifty dollars 
($8,750.00) shall be paid within eight (8) months of the Commission's 
final Order accepting the Agreement; and the fourth installment payment 
of eight thousand seven hundred-fifty dollars ($8,750.00) shall be paid 
within twelve (12) months 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 Urgent Gear to make the 
foregoing payment when due, interest on the unpaid amount shall accrue 
and be paid by Urgent Gear 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. E9-8701 Filed 4-15-09; 8:45 am]
BILLING CODE 6355-01-P