Futon Factory; Provisional Acceptance of a Consent Order Agreement

CONSUMER PRODUCT SAFETY COMMISSION

[CPSC Docket No. 94-C0009]

Futon Factory; Provisional Acceptance of a Consent Order

Agreement

AGENCY: Consumer Product Safety Commission.

ACTION: Provisional Acceptance of a Consent Order Agreement under the

Flammable Fabrics Act (FFA).

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SUMMARY: It is the policy of the Commission to publish settlements

which it provisionally accepts in the Federal Register in accordance

with the terms of 16 CFR section 1605.13. Published below is a

provisionally-accepted Consent Order Agreement with Ted Imel, d/b/a

Futon Factory.

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 March 14, 1994.

ADDRESSES: Persons wishing to comment on this Settlement Agreement

should send written comments to the Comment 94-C0009, Office of the

Secretary, Consumer Product Safety Commission, Washington, DC 20207.

FOR FURTHER INFORMATION CONTACT:

Melvin I. Kramer, Trial Attorney, Office of Compliance and Enforcement,

Consumer Product Safety Commission, Washington, DC 20207; telephone

(301) 504-0626.

SUPPLEMENTARY INFORMATION: (Attached).

Dated: February 17, 1994.

Sheldon D. Butts,

Deputy Secretary.

Consent Order Agreement

Ted Imel, doing business as Futon Factory (hereinafter,

``Respondent'') enter into this Consent Order Agreement (hereinafter,

``Agreement'') with the staff (hereinafter, ``staff'') of the Consumer

Product Safety Commission (hereinafter, ``Commission'') pursuant to the

procedure 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 part 1605.

This Agreement and Order are for the sole purpose of settling

allegations of the staff that the Respondent sold futon mattresses that

are subject to the Flammable Fabrics Act, the Federal Trade Commission

Act, and the Standard for the Flammability of Mattresses and Mattress

Pads (FF 4-72), amended), 16 CFR part 1632, (hereinafter, ``Mattress

Standard''); and that those futon mattresses failed to comply with

those Acts and the Mattress Standard issued thereunder, as more fully

set forth in the complaint accompanying this Agreement.

Respondent and the Staff Agree

1. The Consumer Product Safety Commission has jurisdiction in this

matter under the following acts: Consumer Product Safety Act (15 U.S.C.

2051 et seq.), Flammable Fabrics Act (15 U.S.C. 1191 et seq.), and the

Federal Trade Commission Act (15 U.S.C. 41 et seq.).

2. Respondent is a sole proprietorship organized and existing under

the laws of the State of Oregon with its principal place of business

located at 220 SW Ankeny, Portland, Oregon 97204.

3. Respondent Ted Imel is the sole proprietor of the Futon Factory

and, in this capacity, is responsible for its acts, practices, and

policies.

4. Respondent is now and has been engaged in one or more of the

following: The manufacture for sale, the sale, or the offering for

sale, in commerce, of a product, fabric, or related material which is

subject to the requirements of the Flammable Fabrics Act, 15 U.S.C.

1191 et seq., and the Standard for the Flammability of Mattresses and

Mattress Pads (FF 4-72, amended), 16 CFR part 1632.

5. This Agreement is for settlement purposes only, does not

constitute an admission by Respondent that he has violated the law, and

becomes effective only upon its final acceptance by the Commission and

service of the Final Order upon Respondent.

6. Respondent waives (a) all requirements for finding of fact and

conclusions of law in the disposition of this matter, and (b)

administrative and judicial review of the facts and proceedings.

7. The requirements of this Order are in addition to, and not to

the exclusion of, other remedies such as criminal penalties which may

be pursued under section 7 of the FFA, 15 U.S.C. 1196, and civil

penalties which may be pursued under section 5 of the FFA, 15 U.S.C.

1194.

8. Violation of the provisions of the Order may subject Respondent

to a civil penalty not to exceed $10,000 for each such violation, as

prescribed by law.

9. The Commission may disclose the terms of this Consent Order

Agreement.

10. This Agreement and the Complaint accompanying the Agreement may

be used in interpreting the Order.

11. No agreement, understanding, representation or interpretation

not contained in this Agreement, Order, and accompanying Complaint may

be used to vary or contradict the terms of the Order.

Upon acceptance of this Agreement, the Commission shall issue the

following Order:

Order

I

It is hereby ordered that respondent, and his successors and

assigns, agents, representatives, and employees of the Respondent,

directly or through any corporation, subsidiary, division, or other

business entity, or through any agency, device or instrumentality, do

forthwith cease and desist from selling or offering for sale, in

commerce, or manufacturing for sale, in commerce, or importing into the

United States or introducing, delivering for introduction, transporting

or causing to be transported, in commerce, or selling or delivering

after sale or shipment in commerce, any product, fabric or related

material which fails to conform to the Standard for the Flammability of

Mattresses and Mattress Pads (FF 4-72), amended 16 CFR part 1632.

II

It is further ordered that respondent conduct prototype testing for

each futon mattress design, prior to production, in accordance with

applicable provisions 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 prepare and maintain written

records of the prototype testing specified in paragraph II of this

Order for each futon mattress design, including photographs of the

tested futon mattresses, in accordance with applicable provision 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 record of the manufacturing specifications of each futon

mattress prototype 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 conduct prototype testing or,

if appropriate, obtain supplier certification to support any

substitution of materials after prototype testing, in accordance with

all applicable provisions of the Standard for the Flammability of

Mattresses and Mattress Pads (FF 4-72, amended), 16 CFR part 1632.

VI

It is further ordered that respondent prepare and maintain a

written record of the manufacturing specifications of any new ticking

or tape edge material substituted for those 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.

VII

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,

including:

(a) Records to support any determination that a particular material

other than ticking or tape edge material did not influence ignition

resistance;

(b) Ticking classification test results or a certification from the

ticking supplier;

(c) Tape edge substitution test results;

(d) Photographs of any futon mattress tested for purposes of making

a tape edge substitution; and,

(e) Records describing the disposition of all failing or rejected

prototype futon mattresses.

VIII

It is further ordered that respondent shall forthwith distribute a

copy of this Order to each of its operating divisions.

IX

It is further ordered that respondent shall within sixty (60) days

after service upon them of this Order, file with the Commission a

report, in writing, setting forth in detail the manner and form in

which he has complied with this Order.

X

It is further ordered that, for a period of ten (10) years from the

date this Order becomes final within the meaning of the Federal Trade

Commission Act, Respondent notify the Commission at least thirty (30)

days prior to any proposed change in the way Respondent does business

which may affect his compliance obligations arising out of this Order.

XI

It is further ordered that the Consent Order Agreement is

provisionally accepted pursuant to 16 CFR section 1605.13, and shall be

placed on the public record, and the Commission shall announce

provisional acceptance of the Consent Order Agreement in the

Commission's Public Calendar and in the Federal Register.

Signed this 22nd day of November, 1993.

Ted Imel,

d/b/a Futon Factory, 220 SW Ankery, Portland, OR 97204.

David Schmeltzer,

Associate Executive Director, Office of Compliance and Enforcement.

Alan H. Schoem,

Director, Division of Administrative Litigation, Office of Compliance

and Enforcement.

Melvin I. Kramer,

Trial Attorney, Division of Administrative Litigation, Office of

Compliance and Enforcement.

By direction of the Commission, this Consent Order Agreement is

provisionally accepted pursuant to 16 CFR section 1605.13, and shall be

placed on the public record, and the Commission shall announce

provisional acceptance of the Consent Order Agreement in the

Commission's Public Calendar and in the Federal Register.

So ordered by the Commission, this 18th day of February, 1994.

Sadye E. Dunn,

Secretary, Consumer Product Safety Commission.

[FR Doc. 94-4358 Filed 2-24-94; 8:45 am]

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