[Federal Register Volume 74, Number 174 (Thursday, September 10, 2009)]
[Notices]
[Pages 46574-46576]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-21763]


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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.

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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 
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://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