Life is Good, Inc., Provisional Acceptance of a Settlement Agreement and Order, CPSC Docket No. 08-C0011

Life is Good, Inc., Provisional Acceptance of a Settlement Agreement and Order, CPSC Docket No. 08-C0011

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23200 Federal Register/Vol. 73, No. 83/Tuesday, April 29, 2008/Notices 23. The Commission issues the Order In the Matter of Gildan Activewear contents by filing a written request with under the provisions of the CPSA, and SRL, a corporation.; CPSC DOCKET the Office of the Secretary by May 14, violation of the Order subjects Gildan to NO. 08–C0012 2008. appropriate legal action in any United ADDRESSES: Persons wishing to Order States District Court. For purposes of comment on this Settlement Agreement Upon consideration of the Settlement any such action, counsel of record should send written comments to the Agreement entered into between Gildan agrees to accept service of process. Comment 08–COO11, Office of the Activewear SRL (‘‘Gildan’’) and the U.S. Secretary, Consumer Product Safety 24. This Agreement may be used in Consumer Product Safety Commission Commission, 4330 East West Highway, interpreting the Order. (‘‘Commission’’) staff, and the Room 502, Bethesda, Maryland 20814– Understandings, agreements, Commission having jurisdiction over 4408. representations, or interpretations apart the subject matter and over Gildan, and FOR FURTHER INFORMATION CONTACT: Seth from those contained in the Agreement pursuant to the authority delegated in B. Popkin, Trial Attorney, Legal and the Order may not be used to vary section 6(d) of the Interim Delegation of Division, Office of Compliance and Authority ordered by the Commission or contradict their terms. The ...

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23200
Federal Register73, No. 83/ Vol.April 29, 2008/ Tuesday,/ Notices
23. The Commission issues the OrderIn the Matter of Gildan Activewearcontents by filing a written request with under the provisions of the CPSA, andSRL, a corporation.; CPSC DOCKETthe Office of the Secretary by May 14, violation of the Order subjects Gildan toNO. 08C00122008. appropriate legal action in any UnitedADDRESSES:Persons wishing to Order States District Court. For purposes ofcomment on this Settlement Agreement Upon consideration of the Settlement any such action, counsel of recordshould send written comments to the Agreement entered into between Gildan agrees to accept service of process.Comment 08COO11, Office of the Activewear SRL (‘‘Gildan’’) and the U.S. Secretary, Consumer Product Safety 24. This Agreement may be used in Consumer Product Safety Commission Commission, 4330 East West Highway, interpreting the Order. (‘‘Commission’’) staff, and the Room 502, Bethesda, Maryland 20814Understandings, agreements,Commission having jurisdiction over 4408. representations, or interpretations apartthe subject matter and over Gildan, and FOR FURTHER INFORMATION CONTACT:Seth from those contained in the Agreementpursuant to the authority delegated in B. Popkin, Trial Attorney, Legal and the Order may not be used to varysection 6(d) of the Interim Delegation of Division, Office of Compliance and or contradict their terms. TheAuthority ordered by the Commission Field Operations, Consumer Product Agreement shall not be waived,on February 1, 2008, and it appearing Safety Commission, 4330 East West amended, modified, or otherwise alteredthat the Settlement Agreement and the Highway, Bethesda, Maryland 20814without written agreement theretoOrder are in the public interest, it is 4408; telephone (301) 5047612. executed by the party against whomOrdered, that the Settlement Agreement SUPPLEMENTARY INFORMATION:The text of such waiver, amendment, modification,be, and hereby is, accepted; and it is the Agreement and Order appears or alteration is sought to be enforced.Further Ordered, that Gildan shall pay below. a civil penalty in the amount of thirty 25. If any provision of the Agreement five thousand dollars ($35,000.00). ThisDated: April 23, 2008. and the Order is held to be illegal, payment shall be made by checkTodd A. Stevenson, invalid, or unenforceable under present payable to the order of the United StatesSecretary. or future laws effective during the terms Treasury within (20) calendar days of of the Agreement and the Order, such In the Matter of Life is Good, Inc.; CPSC service of the Commissions Final Order provision shall be fully severable. The Docket No. 08C0011 accepting the Agreement. Upon the balance of the Agreement and the Order failure of Gildan to make the foregoingSettlement Agreement shall remain in full force and effect, payment when due, interest on the 1. In accordance with 16 CFR 1118.20, unless the Commission and Gildan unpaid amount shall accrue and be paid Life is Good, Inc. (‘‘LIG’’) and the staff agree that severing the provision by Gildan at the federal rate of interest (‘‘Staff’’) of the United States Consumer materially affects the purpose of the set forth at 28 U.S.C. 1961(a) and (b). Product Safety Commission Agreement and the Order. Provisionally accepted and (‘‘Commission’’) enter into this 26. Pursuant to section 6(d) of the provisional Order issued on the 22nd Settlement Agreement (‘‘Agreement’’). Interim Delegation of Authority ordered day of April, 2008. The Agreement and the incorporated by the Commission on February 1, 2008, By Order of the Commission. attached Order (‘‘Order’’) settle the the Commission delegated to the Todd A. Stevenson,Staffs allegations set forth below. Assistant Executive Director for Secretary,Consumer Product Safety Compliance and Field Operations theParties Commission. authority to act, with the concurrence of [FR Doc. E89263 Filed 42808; 8:45 am]2. The Commission is an independent the General Counsel, for the BILLING CODE 635501Mfederal regulatory agency established Commission under 16 CFR 1118.20 with pursuant to, and responsible for the respect to Staff allegations that any enforcement of, the Consumer Product person or firm violated 15 U.S.C. 2068, CONSUMER PRODUCT SAFETYSafety Act, 15 U.S.C. 20512084 where the total amount of the settlement COMMISSION(‘‘CPSA’’). involves no more than $100,000. 3. LIG is a corporation organized and [CPSC Docket No. 08COO11] Gildan Activewear SRL.existing under the laws of Dated: 04/08/08.Massachusetts, with its principal offices Life is Good, Inc., Provisional By: Michael R. Hoffman, located in Boston, Massachusetts. At all Acceptance of a Settlement Agreement President,Gildan Activewear SRL, 34 times relevant hereto, LIG sold apparel and Order Warrens Street,St. Michael, Barbados. and accessories. Dated: 04/08/08.AGENCY:Consumer Product Safety Staff Allegations By: Thomas D. Myriek, Esquire, Commission. Moore & Van Allen, PLLC, ACTION:Beginning in or about March 2006,Notice. 4. Counsel for Gildan Activewear SRL, LIG distributed 2,493 childrens hooded 100 North Tryon Street, Suite 4700, SUMMARY:It is the policy of the sweatshirts with drawstrings through Charlotte, NC 282024003. Commission to publish settlements the hoods, and, beginning in or about U.S. Consumer Productwhich it provisionally accepts under the July 2007, LIG sold and/or held for sale Safety Commission Staff. Consumer Product Safety Act in the or distribution after introduction into J. Gibson Mullen, Federal Registerin accordance with the commerce, 7,793 Zippity Hoodie and Assistant Executive Director,Office of terms of 16 CFR 1118.20(e). Published Sherpa Full Zip childrens hooded Compliance and Field Operations. below is a provisionally accepted sweatshirts with drawstrings through Ronald G. Yelenik, Settlement Agreement with Life is the hood (collectively‘‘Drawstring Acting Director,Legal Division, Good, Inc., containing a civil penalty of Sweatshirts’’). Office of Compliance and Field Operations. $50,000.00. 5. Retailers sold Drawstring Dated: 04/11/08. DATES:Any interested person may ask By: Dennis C. Kacoyanis,Trial Attorney,Sweatshirts to consumers. Legal Division, Office of Compliance and6. The Drawstring Sweatshirts arethe Commission not to accept this Field Operations.agreement or otherwise comment on its‘‘consumer product[s],’’and, at all times
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Federal Register73, No. 83/ Tuesday,/ Vol./ NoticesApril 29, 2008
relevant hereto, LIG was a‘‘distributor’’of those consumer products, which were ‘‘distributed in commerce,’’as those terms are defined in CPSA sections 3(a)(1), (5), (11), and (12), 15 U.S.C. 2052(a)(1), (5), (11), and (12). 7. In February 1996, the Staff issued the Guidelines for Drawstrings on Childrens 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 childrens upper outerwear sized 2T to 12. 8. In June 1997, ASTM adopted a voluntary standard, ASTM F181697, 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 Commissions Director of the Office of Compliance to manufacturers, importers, and retailers of childrens upper outerwear. The letter urges them to make certain that all childrens upper outerwear sold in the United States complies with ASTM F181697. The letter states that the Staff considers childrens 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 CPSAs section 15(b) reporting requirements. 10. LIG reported to the Commission that there had been no incidents or injuries from the Drawstring Sweatshirts. 11. LIGs distribution in commerce of the Drawstring Sweatshirts did not meet the Guidelines or ASTM F181697, failed to abide by the Staffs May 2006 defect notice, and posed a strangulation hazard to children. 12. On April 17, 2007 and August 30, 2007, recalls of the Drawstring Sweatshirts were announced, informing consumers that they should immediately remove the drawstrings to eliminate the hazard. 13. LIG 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). LIG 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 1 5(b)(2) and (3), 15 U.S.C. 2064(b)(2) and (3), required LIG to immediately inform the Commission of the defect and risk. 14. LIG knowingly failed to immediately inform the Commission about the Drawstring Sweatshirts as required by CPSA sections 15(b)(2) and (3), 15 U.S.C. 2064(b)(2) and (3), 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 LIG to civil penalties.
LIG Response
15. LIG denies the Staffs allegations above that LIG: (i) Had actual knowledge of the risk posed by Drawstring Sweatshirts and (ii) knowingly violated the CPSA. LIG states that the Drawstring Sweatshirts sold by a retailer beginning in March 2006 were reported to the Commission by the retailer, and that the retailer, in cooperation with the Commission, voluntarily recalled them in April 2007. LIG provided information to the retailer in connection with the retailers report to the Commission. In August 2007, LIG voluntarily reported to the Commission about the Drawstring Sweatshirts it began distributing in July 2007. In August 2007, LIG, in cooperation with the Commission, conducted a voluntary recall of the Drawstring Sweatshirts distributed in July and August 2007. That recall succeeded in recovering all but five of such Drawstring Sweatshirts.
Agreement of the Parties
16. Under the CPSA, the Commission has jurisdiction over this matter and over LIG. 17. The parties enter into the Agreement for settlement purposes only. The Agreement does not constitute an admission by LIG, or a determination by the Commission, that LIG has knowingly violated the CPSA. 18. In settlement of the Staffs allegations, LIG shall pay a civil penalty in the amount of fifty thousand dollars ($50,000.00). The civil penalty shall be paid in two (2) installments as follows: $25,000.00 shall be paid within twenty (20) calendar days of service of the Commissions final Order accepting the Agreement; and $25,000.00 shall be paid within one hundred eighty (180) calendar days of service of the Commissions final Order accepting the Agreement. Each payment shall be by
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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 theFederal Registerin accordance with the procedures set forth in 16 CFR 1118.20(e). In accordance with 16 CFR 11 18.20(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 theFederal Register. 20. Upon the Commissions final acceptance of the Agreement and issuance of the final Order, LIG 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 contest of the validity of the Order or of the Commissions actions; (3) a determination by the Commission of whether LIG 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, LIG 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 LIG 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 LIG agree that severing the provision materially affects the purpose of the Agreement and the Order. 26. Pursuant to section 6(d) of the Interim Delegation of Authority ordered
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Federal Register73, No. 83/ Tuesday,April 29, 2008/ Notices/ Vol.
Dated: April 23, 2008. by the Commission on February 1, 2008,legal rate of interest set forth at 28 the Commission delegated to theU.S.C. 961(a) and (b).Todd A. Stevenson, Assistant Executive Director forSecretary. Provisionally accepted and Compliance and Field Operations the Provisional Order issued on the 22nd In the Matter of Seena International, authority to act, with the concurrence of day of April, 2008. Inc.; CPSC Docket No. 08C0009 the General Counsel, for the By Order of the Commission. Commission under 16 CFR 1118.20 withSettlement Agreement respect to Staff allegations that anyTodd A. Stevenson, 1. In accordance with 16 CFR 1118.20, person or firm violated 15 U.S.C. 2068,Secretary, U.S. Consumer Product Safety Seena International, Inc. (‘‘Seena’’) and where the total amount of the settlementCommission. the staff (‘‘Staff’’) of the United States involves no more than $100,000.[FR Doc. E89265 Filed 42808; 8:45 am] Consumer Product Safety Commission Life is Good, Inc.BILLING CODE 635501M (‘‘Commission’’) enter into this Dated: 3/17/08. Settlement Agreement (‘‘Agreement’’). By: Roy Heffem, The Agreement and the incorporated Chief Financial Optimist,Life is Good, Inc., CONSUMER PRODUCT SAFETY attached Order (‘‘Order’’) settle the 283285 Newbury Street, Boston, MA 02115. COMMISSION Staffs allegations set forth below. Dated: 3/17/08. By: Jo Banse,General Counsel,Life is Good,Parties [CPSC Docket No. 08C0009] Inc., 283285 Newbury Street, Boston, MA 2. The Commission is an independent 02115. Seena International, Inc., Provisionalfederal regulatory agency established U.S. Consumer Product Safety Commission Acceptance of a Settlement Agreementpursuant to, and responsible for the Staff. enforcement of, the Consumer Product J. Gibson Mullan,and Order Assistant Executive Director, Office ofSafety Act, 15 U.S.C. 20512084 Compliance and Field Operations.AGENCY:(Consumer Product Safety‘‘CPSA’’). Ronald G. Yelenik,Commission. 3.Seena is a corporation organized and existing under the laws of New Acting Director, Legal Division,Office of ACTION:Notice. Compliance and Field Operations. York, with its principal offices located Dated: 4/16/08. in Yaphank, New York. At all times SUMMARY:It is the policy of the By: Seth B. Popkin,relevant hereto, Seena sold apparel. Trial Attorney,Legal Division, Office ofCommission to publish settlements Staff Allegations Compliance and Field Operations.which it provisionally accepts under the Consumer Product Safety Act in the4. From June to December 2006, Seena In the Matter of Life is Good, Inc.; CPSC Federal Registerimported and sold childrenin accordance with thes hooded Docket No. 08C0011 terms of 16 CFR 1118.20(e). Publishedsweatshirts with drawstrings through Order below is a provisionallyacceptedthe hoods (‘‘Drawstring Sweatshirts’’). Upon consideration of the SettlementSettlement Agreement with SeenaSeena imported 61,714 Drawstring Agreement entered into between Life isSweatshirts and sold to retailers and International Inc., containing a civil Good, Inc. (‘‘LIG’’distributors 45,810 of these Drawstring) and the U.S. penalty of $35,000.00. Consumer Product Safety CommissionSweatshirts. DATES:Any interested person may ask (‘‘Commission’’) staff, and the5. Retailers sold Drawstring the Commission not to accept this Commission having jurisdiction overSweatshirts to consumers. agreement or otherwise comment on its the subject matter and over LIG, and6. The Drawstring Sweatshirts are contents by filing a written request with pursuant to the authority delegated in‘‘consumer product[s],’’and, at all times the Office of the Secretary by May 14, section 6(d) of the Interim Delegation ofrelevant hereto, Seena was a 2008. Authority ordered by the Commission‘‘manufacturer’’of those consumer on February 1, 2008, and it appearingproducts, which were‘‘distributed in ADDRESSES:Persons wishing to that the Settlement Agreement and thecommerce,’’as those terms are defined comment on this Settlement Agreement Order are in the public interest, itin CPSA sections 3(a)(1), (4), (11), and should send written comments to the isOrdered, that the Settlement(12), 15 U.S.C. 2052(a)(1), (4), (11), and Comment 08C0009, Office of the Agreement be, and hereby is, accepted;(12). Secretary, Consumer Product Safety and it isFurther Ordered, that LIG shall7. In February 1996, the Staff issued Commission, 4330 East West Highway, pay a civil penalty in the amount of fiftythe Guidelines for Drawstrings on Room 502, Bethesda, Maryland 20814thousand dollars ($50,000.00). The civilChildrens Upper Outerwear 4408. penalty shall be paid in two (2)(‘‘Guidelines’’) to help prevent children installments as follows: $25,000.00 shallfrom strangling or entangling on neck FOR FURTHER INFORMATION CONTACT:Seth be paid within twenty (20) calendarand waist drawstrings. The Guidelines B. Popkin, Trial Attorney, Legal days of service of the Commissionthat drawstrings can cause, ands state Division, Office of Compliance and final Order accepting the Agreement;have caused, injuries and deaths when Field Operations, Consumer Product and $25,000.00 shall be paid within onethey catch on items such as playground Safety Commission, 4330 East West hundred eighty (180) calendar days ofequipment, bus doors, or cribs. In the Highway, Bethesda, Maryland 20814service of the CommissionGuidelines, the Staff recommends thats final Order 4408; telephone (301) 5047612. accepting the Agreement. The paymentthere be no hood and neck drawstrings shall be made by check payable to theSUPPLEMENTARY INFORMATION:in childrenThe text ofs upper outerwear sized 2T order of the United States Treasury.the Agreement and Order appearsto 12. Upon the failure of LIG to make any ofbelow. 8.In June 1997, ASTM adopted a the foregoing payments when due,voluntary standard, ASTM F181697, interest on the unpaid amount shallthat incorporated the Guidelines. The accrue and be paid by LIG at the federalGuidelines state that firms should be
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