[Federal Register: April 29, 2008 (Volume 73, Number 83)]
[Notices]
[Page 23207-23209]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr29ap08-48]
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CONSUMER PRODUCT SAFETY COMMISSION
[CPSC Docket No. 08-C0006]
True Religion Apparel, 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
True Religion Apparel, Inc., containing a civil penalty of $50,000.00.
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-C0006, 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, Trial Attorney, Legal
Division, Office of Compliance and Field Operations, Consumer Product
Safety Commission, 4330 East West Highway, Bethesda, Maryland 20814-
4408; telephone (301) 504-7612.
SUPPLEMENTARY INFORMATION: The text of the Agreement and Order appears
below.
Dated: April 23, 2008,
Todd A. Stevenson,
Secretary.
United States of America Consumer Product Safety Commission
In the Matter of True Religion Apparel, Inc.; CPSC Docket No. 08-C0006
Settlement Agreement
1. In accordance with 16 CFR 1118.20, True Religion Apparel, Inc.
(``TRA''), 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.
[[Page 23208]]
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. 2051-2084 (``CPSA'').
3. TRA is a corporation organized and existing under the laws of
Delaware, with its principal offices located in Vernon, California. At
all times relevant hereto, IRA sold apparel and accessories.
Staff Allegations
4. From March to April 2006, TRA imported and sold to retailers
True Religion Brand Jeans fleece hoodies with drawstrings through the
hoods (``Drawstring Sweatshirts'').
5. Retailers sold the Drawstring Sweatshirts to consumers.
6. The Drawstring Sweatshirts are ``consumer product[s],'' and, at
all times relevant hereto, TRA 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 arid 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 Fl 816-97,
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 F 1816-97. 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. TRA reported to the Commission that there had been no incidents
or injuries from the Drawstring Sweatshirts.
11. TRA' s 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 14, 2006, the Commission, in cooperation with TRA,
announced a recall of 150 of the Drawstring Sweatshirts, informing
consumers that they should immediately stop using the Drawstring
Sweatshirts.
13. TRA 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). TRA 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 TRA
to immediately inform the Commission of the defect and risk.
14. TRA knowingly failed to immediately inform the Commission about
the Drawstring Sweatshirts, including the 150 referenced above and
additional ones, 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 TRA to civil penalties.
TRA Response
15. TRA denies the Staff's allegations above that TRA knowingly
violated the CPSA, denies that it unknowingly violated the CPSA, denies
any wrongdoing, and states that no lawsuit has been filed against TRA
relating to the subject matter of the Agreement.
Agreement of the Parties
16. Under the CPSA, the Commission has jurisdiction over this
matter and over TRA.
17. The parties enter into the Agreement for settlement purposes
only. The Agreement does not constitute an admission by TRA, or a
determination by the Commission, that TRA has knowingly or unknowingly
violated the CPSA.
18. In settlement of the Staffs allegations, TRA shall pay a civil
penalty in the amount of fifty thousand dollars ($50,000.00) within
twenty (20) calendar days of service of the Commission's final Order
accepting the Agreement. Each 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, TRA 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
TRA 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, TRA 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 TRA 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
[[Page 23209]]
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 TRA 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.
True Religion Apparel, Inc.,
Dated: 4/2/08,
By: Michael Buckley,
President,
True Religion Apparel, Inc.
2263 E. Vernon Avenue,
Vernon, CA 90058.
Dated: 4/3/08,
By: William E. Potts, Jr., Esq.,
Akin, Gump, Strauss, Hauer & Feld,
1333 New Hampshire Ave., NW.,
Washington, DC 20036,
Counsel to True Religion Apparel, Inc.
U.S. Consumer Product Safety Commission Staff,
J. Gibson Mullan,
Assistant Executive Director,
Office of Compliance and Field Operations,
Ronald G. Yelenik,
Acting Director Legal Division,
Office of Compliance and Field Operations.
Dated: 4-16-08,
By: Seth B. Popkin,
Trial Attorney,
Legal Division,
Office of Compliance and Field Operations.
United States of America Consumer Product Safety Commission
In the Matter of True Religion Apparel, Inc.; CPSC Docket No. 08-
C0006
Order
Upon consideration of the Settlement Agreement entered into
between True Religion Apparel, Inc. (``TRA'') and the U.S. Consumer
Product Safety Commission (``Commission'') staff, and the Commission
having jurisdiction over the subject matter and over TRA, 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 TRA shall pay a civil penalty in the amount of fifty thousand
dollars ($50,000.00) within twenty (20) calendar days of service of
the Commission's final Order accepting the Agreement. The payment
shall be made by check payable to the order of the United States
Treasury. Upon the failure of TRA to make the foregoing payment when
due, interest on the unpaid amount shall accrue and be paid by TRA
at the federal legal rate of interest set forth at 28 U.S.C. 1961(a)
and (b).
A Provisionally accepted and provisional Order issued on the
22nd day of April 2008.
By Order of the Commission:
Todd A. Stevenson,
Secretary,
U.S. Consumer Product Safety Commission.
[FR Doc. E8-9268 Filed 4-28-08; 8:45 am]
BILLING CODE 6355-01-M