[Federal Register Volume 74, Number 72 (Thursday, April 16, 2009)]
[Notices]
[Pages 17650-17652]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-8711]


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CONSUMER PRODUCT SAFETY COMMISSION

[CPSC Docket No. 09-C0015]


Forman Mills, 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 
Forman Mills, 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 the Comment 09-C0015, 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.

    April 9, 2009.
Todd A. Stevenson,
Secretary.

Settlement Agreement

    1. In accordance with 16 CFR 1118.20, Forman Mills, Inc. (``Forman 
Mills'') 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. Forman Mills is a corporation organized and existing under the 
laws of the State of Pennsylvania, with its principal offices located 
in Pennsauken, NJ. Forman Mills is a clothing retailer.

Staff Allegations

    4. On or about August 30, 2007, Forman Mills purchased from a U.S. 
importer approximately 2,292 boy's hooded sweatshirts with drawstrings 
(``Drawstring Sweatshirts'').
    5. Forman Mills sold the Drawstring Sweatshirts to consumers.
    6. The Drawstring Sweatshirts are ``consumer product[s],'' and, at 
all times relevant hereto, Forman Mills was a ``retailer'' of those 
consumer products, which were ``distributed in commerce,'' as those 
terms are defined in CPSA

[[Page 17651]]

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.
    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. Forman Mills reported to the Commission there had been no 
incidents or injuries involving the Drawstring Sweatshirts.
    11. Forman Mills' distribution in commerce of the Drawstring 
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. On December 6, 2007, the Commission and the importer of the 
Drawstring Sweatshirts announced a recall of the garments. The recall 
informed consumers that they should immediately remove the drawstrings 
to eliminate the hazard.
    13. Forman Mills had presumed and actual knowledge that the 
Drawstring 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). Forman Mills had obtained 
information that reasonably supported the conclusion that the 
Drawstring 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 Forman Mills to immediately inform the 
Commission of the defect and risk.
    14. Forman Mills knowingly failed to immediately inform the 
Commission about the Drawstring 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 
Forman Mills to civil penalties.

Forman Mills Response

    15. Forman Mills denies the Staff's allegations that Forman Mills 
violated the CPSA.

Agreement of the Parties

    16. Under the CPSA, the Commission has jurisdiction over this 
matter and over Forman Mills.
    17. The parties enter into the Agreement for settlement purposes 
only. The Agreement does not constitute an admission by Forman Mills, 
or a determination by the Commission, that Forman Mills has knowingly 
violated the CPSA.
    18. In settlement of the Staff's allegations, Forman Mills shall 
pay a civil penalty in the amount of thirty-five thousand dollars 
($35,000.00) within forty-five (45) 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.
    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, Forman Mills 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 Forman Mills 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, Forman Mills 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 Forman Mills 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 Forman Mills agree that severing the provision materially affects 
the purpose of the Agreement and the Order.

FORMAN MILLS, INC.
    Dated: December 30, 2008.
    By:

Richard P. Forman,
President Forman Mills, Inc. 1070 Thomas Busch Memorial Highway 
Pennsauken, NJ 08110.

U.S. CONSUMER PRODUCT SAFETY COMMISSION.

Cheryl A. Falvey,
General Counsel.

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

    Dated: January 6, 2009.
    By:

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

Order

    Upon consideration of the Settlement Agreement entered into between 
Forman Mills, Inc. (``Forman Mills'') and the U.S. Consumer Product 
Safety

[[Page 17652]]

Commission (``Commission'') staff, and the Commission having 
jurisdiction over the subject matter and over Forman Mills, 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 Forman Mills shall pay a civil penalty in the 
amount of thirty-five thousand dollars ($35,000.00) within forty-five 
(45) 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 Forman Mills to make 
the foregoing payment when due, interest on the unpaid amount shall 
accrue and be paid by Forman Mills 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. E9-8711 Filed 4-15-09; 8:45 am]
BILLING CODE 6355-01-P