[Federal Register: April 29, 2008 (Volume 73, Number 83)]
[Notices]
[Page 23198-23200]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr29ap08-43]
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CONSUMER PRODUCT SAFETY COMMISSION
[CPSC Docket No. 08-COO12]
Gildan Activewear SRL, a corporation, 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
Gildan Activewear SRL, 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 14, 2008.
ADDRESSES: Persons wishing to comment on this Settlement Agreement
should send written comments to the Comment 08-COO12, 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,
Legal Division, Office of Compliance and Field Operations, 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.
Dated: April 23, 2008.
Todd A. Stevenson,
Secretary.
In the Matter of Gildan Activewear SRL, a Corporation.; CPSC DOCKET NO.
08-C0012
Settlement Agreement
1. In accordance with 16 CFR 1118.20, Gildan Activewear SRL
(``Gildan'') 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
[[Page 23199]]
pursuant to, and responsible for the enforcement of, the Consumer
Product Safety Act, 15 U.S.C. 2051-2084 (``CPSA'').
3. Gildan is a corporation organized and existing under the laws of
Barbados, with its principal offices located in St. Michael, Barbados.
At all times relevant hereto, Gildan sold apparel and accessories.
Staff Allegations
4. Between January 2006 and September 2006, Gildan manufactured
146,466 youth hooded sweatshirts with drawstrings through the hoods for
sale in the United States (``Drawstring Sweatshirts'').
5. Wholesale distributors sold the Drawstring Sweatshirts to
consumers.
6. The Drawstring Sweatshirts are ``consumer product[s],'' and, at
all times relevant hereto, Gildan was a ``manufacturer'' of those
consumer products, which were ``distributed in commerce,'' as those
terms are defined in CPSA sections 3(a)(1), (4), (11), and (12), 15
U.S.C. 2052(a)(1), (4), (11), and (12).
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. Gildan reported to the Commission that there had been no
incidents or injuries from the Drawstring Sweatshirts.
11. Gildan's manufacture and 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 September 20, 2006, the Commission, in cooperation with
Gildan, announced a recall of Drawstring Sweatshirts, informing
consumers that they should immediately remove the drawstrings to
eliminate the hazard.
13. Gildan 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). Gildan 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)(2) and (3), 15 U.S.C. 2064(b)(2) and (3), required
Gildan to immediately inform the Commission of the defect and risk.
14. Gildan knowingly failed to inform the Commission about the
Drawstring Sweatshirts immediately 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 Gildan to
civil penalties.
Gildan's Response
15. Gildan denies the Staff's allegations; specifically, as
follows:
(a) Gildan did not knowingly violate the CPSA;
(b) Gildan sold the Drawstring Sweatshirts to wholesale
distributors, who then, directly or indirectly, sold less than 70,000
to consumers;
(c) Gildan, in cooperation with the Commission, announced the
recall of Drawstring Sweatshirts and recovered all Drawstring
Sweatshirts still in the possession of wholesale distributors;
(d) Gildan had access to information that could support the
conclusion that the Drawstring Sweatshirts were a potential hazard;
(e) Gildan reported the existence of the potential hazard to the
Commission immediately upon having actual knowledge of the potential
hazard; and
(f) Gildan has reported to the Commission that it had received no
reports of any injuries from the Drawstring Sweatshirts.
Agreement of the Parties
16. Under the CPSA, the Commission has jurisdiction over this
matter and over Gildan.
17. The parties enter into the Agreement for settlement purposes
only. The Agreement does not constitute an admission by Gildan, or a
determination by the Commission, that Gildan knowingly violated the
CPSA.
18. In settlement of the Staff's allegations, Gildan shall pay a
civil penalty in the amount of thirty-five thousand dollars
($35,000.00) within twenty (20) calendar days of service of the
Commission's final Order accepting the Agreement. This 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, Gildan 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 Commission's actions; (3) a determination by the Commission of
whether Gildan 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. Upon
issuance of, and Gildan's compliance with, the final Order, the
Commission agrees not to bring a civil penalty action against Gildan
and each of its successors and assigns based upon the Staff's
allegations contained herein regarding the Drawstring Sweatshirts.
21. The Commission may publicize the terms of the Agreement and the
Order.
22. The Agreement and Order shall apply to, and be binding upon,
Gildan and each of its successors and assigns.
[[Page 23200]]
23. The Commission issues the Order under the provisions of the
CPSA, and violation of the Order subjects Gildan to appropriate legal
action in any United States District Court. For purposes of any such
action, counsel of record agrees to accept service of process.
24. This 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 Gildan 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 by the Commission on February 1, 2008, the Commission delegated
to the Assistant Executive Director for Compliance and Field Operations
the authority to act, with the concurrence of the General Counsel, for
the Commission under 16 CFR 1118.20 with respect to Staff allegations
that any person or firm violated 15 U.S.C. 2068, where the total amount
of the settlement involves no more than $100,000.
Gildan Activewear SRL.
Dated: 04/08/08.
By: Michael R. Hoffman,
President, Gildan Activewear SRL, 34 Warrens Street,St. Michael,
Barbados.
Dated: 04/08/08.
By: Thomas D. Myriek, Esquire,
Moore & Van Allen, PLLC,
Counsel for Gildan Activewear SRL,
100 North Tryon Street, Suite 4700,
Charlotte, NC 28202-4003.
U.S. Consumer Product
Safety Commission Staff.
J. Gibson Mullen,
Assistant Executive Director, Office of Compliance and Field
Operations.
Ronald G. Yelenik,
Acting Director, Legal Division,
Office of Compliance and Field Operations.
Dated: 04/11/08.
By: Dennis C. Kacoyanis, Trial Attorney, Legal Division, Office of
Compliance and Field Operations.
In the Matter of Gildan Activewear SRL, a corporation.; CPSC DOCKET NO.
08-C0012
Order
Upon consideration of the Settlement Agreement entered into between
Gildan Activewear SRL (``Gildan'') and the U.S. Consumer Product Safety
Commission (``Commission'') staff, and the Commission having
jurisdiction over the subject matter and over Gildan, and pursuant to
the authority delegated in section 6(d) of the Interim Delegation of
Authority ordered by the Commission on February 1, 2008, 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 Gildan shall pay a civil
penalty in the amount of thirty-five thousand dollars ($35,000.00).
This payment shall be made by check payable to the order of the United
States Treasury within (20) calendar days of service of the
Commission's Final Order accepting the Agreement. Upon the failure of
Gildan to make the foregoing payment when due, interest on the unpaid
amount shall accrue and be paid by Gildan at the federal rate of
interest set forth at 28 U.S.C. 1961(a) and (b).
Provisionally accepted and provisional Order issued on the 22nd day
of April, 2008.
By Order of the Commission.
Todd A. Stevenson,
Secretary, Consumer Product Safety Commission.
[FR Doc. E8-9263 Filed 4-28-08; 8:45 am]
BILLING CODE 6355-01-M