[Federal Register: September 10, 2009 (Volume 74, Number 174)]
[Notices]
[Page 46574-46576]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr10se09-40]
=======================================================================
-----------------------------------------------------------------------
CONSUMER PRODUCT SAFETY COMMISSION
[CPSC Docket No. 09-C0034]
Hill Sportswear, Inc., Provisional Acceptance of a Settlement
Agreement and Order
AGENCY: Consumer Product Safety Commission.
ACTION: Notice.
-----------------------------------------------------------------------
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
Hill Sportswear, Inc., containing a civil penalty of $100,000.00.
Commissioner Nancy Nord issued a statement that is available on the
Commission's Web site, http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www.cpsc.gov.
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 September 25, 2009.
ADDRESSES: Persons wishing to comment on this Settlement Agreement
should send written comments to the Comment 09-C0034, Office of the
Secretary, Consumer Product Safety Commission, 4330 East-West Highway,
Room 502, Bethesda, Maryland 20814-4408.
FOR FURTHER INFORMATION CONTACT: Seth B. Popkin, Lead Trial Attorney,
Division of Compliance, Office of the General Counsel, Consumer Product
Safety Commission, 4330 East-West Highway, Bethesda, Maryland 20814-
4408; telephone (301) 504-7612 and Renee K. Haslett, Trial Attorney,
(same address); telephone (301) 504-7673.
[[Page 46575]]
SUPPLEMENTARY INFORMATION: The text of the Agreement and Order appears
below.
Dated: September 3, 2009.
Todd A. Stevenson,
Secretary.
Settlement Agreement
1. In accordance with 16 CFR. 1118.20, Hill Sportswear, Inc.
(``Hill'') 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. Hill is a corporation organized and existing under the laws of
California, with its principal offices located in Paramount,
California. At all times relevant hereto, Hill sold apparel.
Staff Allegations
4. From 2003 through 2008, Hill manufactured, held for sale, and/or
sold children's hooded pullover and zipper sweatshirts with drawstrings
at the neck, style numbers HK008 and HK009 (collectively,
``Sweatshirts'').
5. Hill sold Sweatshirts to retailers.
6. The Sweatshirts are ``consumer product[s],'' and, at all times
relevant hereto, Hill 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.
10. In November 2008, a three-year old boy reportedly strangled to
death when his Sweatshirt's drawstring became stuck on a playground
slide.
11. Hill's distribution in commerce of the 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 February 12, 2009, the Commission announced Hill's recall of
the Sweatshirts.
13. Hill had presumed and actual knowledge that the 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). Hill had obtained information that reasonably
supported the conclusion that the 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 Hill to immediately
inform the Commission of the defect and risk.
14. Hill knowingly failed to immediately inform the Commission
about the 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 Hill to civil penalties.
Hill's Responsive Allegations
15. Hill denies the Staff's allegations that Hill knowingly
violated the CPSA and denies the other allegations above, including,
but not limited to, the allegations that Hill had actual knowledge (i)
that the Sweatshirts posed a strangulation risk; (ii) that the
Sweatshirts presented a substantial risk of injury to children; and
(iii) that Hill failed to immediately inform the Commission about the
Sweatshirts. Hill further denies the Staff's allegations that Hill
obtained information that reasonably supported the conclusion that the
Sweatshirts contained a defect that could create a substantial product
hazard or an unreasonable risk of serious injury or death. To the
contrary, Hill alleges that as soon as it had actual notice of the
Commission's guidelines, it promptly complied with all such guidelines.
Agreement of the Parties
16. Under the CPSA, the Commission has jurisdiction over this
matter and over Hill.
17. The parties enter into the Agreement for settlement purposes
only. The Agreement does not constitute an admission by Hill, or a
determination by the Commission, that Hill knowingly violated the CPSA.
18. In settlement of the Staff's allegations, Hill shall pay a
civil penalty in the amount of one hundred thousand dollars
($100,000.00). The civil penalty shall be paid in four (4) installments
as follows: $25,000.00 shall be paid within twenty (20) calendar days
of service of the Commission's final Order accepting the Agreement;
$25,000.00 shall be paid within one hundred twenty (120) calendar days
of service of the Commission's final Order accepting the Agreement;
$25,000.00 shall be paid within two hundred forty (240) calendar days
of service of the Commission's final Order accepting the Agreement; and
$25,000.00 shall be paid within three hundred sixty-five (365) calendar
days of service of the Commission's final Order accepting the
Agreement. Each payment shall be made 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, Hill 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
[[Page 46576]]
contest of the validity of the Order or of the Commission's actions;
(3) a determination by the Commission of whether Hill 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, Hill 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 Hill and each of its
successors and assigns 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 Hill agree that severing the provision materially affects the
purpose of the Agreement and the Order.
Hill Sportswear, Inc.
Dated: August 6, 2009.
By:--------------------------------------------------------------------
Young Min Park, President,
Hill Sportswear, Inc.,
16250 Gundry Avenue,
Paramount, CA 90723.
Dated: August 10, 2009.
By:--------------------------------------------------------------------
Michael D. McCaffrey, Esq.,
Law Offices of Michael D. McCaffrey,
2030 Main Street, Suite 1200,
Irvine, CA 92614-7256,
Counsel for Hill Sportswear, Inc.
U.S. Consumer Product Safety Commission Staff
Cheryl A. Falvey,
General Counsel.
Ronald G. Yelenik,
Assistant General Counsel, Office of the General Counsel.
Dated: August 12, 2009.
By:--------------------------------------------------------------------
Seth B. Popkin,
Lead Trial Attorney,
Renee K. Haslett,
Trial Attorney, Division of Compliance, Office of the General
Counsel.
Order
Upon consideration of the Settlement Agreement entered into between
Hill Sportswear, Inc. (``Hill'') and the U.S. Consumer Product Safety
Commission (``Commission'') staff, and the Commission having
jurisdiction over the subject matter and over Hill, 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 Hill shall pay a civil penalty in the amount
of one hundred thousand dollars ($100,000.00). The civil penalty shall
be paid in four (4) installments as follows: $25,000.00 shall be paid
within twenty (20) calendar days of service of the Commission's final
Order accepting the Agreement; $25,000.00 shall be paid within one
hundred twenty (120) calendar days of service of the Commission's final
Order accepting the Agreement; $25,000.00 shall be paid within two
hundred forty (240) calendar days of service of the Commission's final
Order accepting the Agreement; and $25,000.00 shall be paid within
three hundred sixty-five (365) calendar days of service of the
Commission's final Order accepting the Agreement. Each payment shall be
made by check payable to the order of the United States Treasury. Upon
the failure of Hill to make any of the foregoing payments when due, the
total amount of the civil penalty shall become immediately due and
payable, and interest on the unpaid amount shall accrue and be paid by
Hill 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 3rd
day of September 2009.
By Order of the Commission:
Todd A. Stevenson,
Secretary, U.S. Consumer Product Safety Commission.
[FR Doc. E9-21763 Filed 9-9-09; 8:45 am]
BILLING CODE 6355-01-P