The TJX Companies, Inc., d/b/a T.J. Maxx, Provisional Acceptance of a Settlement Agreement and Order, 17660-17662 [E9-8726]

Agencies

• Consumer Product Safety Commission

[Federal Register Volume 74, Number 72 (Thursday, April 16, 2009)]
[Notices]
[Pages 17660-17662]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E9-8726]


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CONSUMER PRODUCT SAFETY COMMISSION

[CPSC Docket No. 09-C0006]


The TJX Companies, Inc., d/b/a T.J. Maxx, 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 
The TJX Companies, Inc., d/b/a T.J. Maxx, containing a civil penalty of 
$315,000.00.

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 1, 2009.

ADDRESSES: Persons wishing to comment on this Settlement Agreement 
should send written comments to the Comment 09-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, 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.

SUPPLEMENTARY INFORMATION: The text of the Agreement and Order appears 
below.

    Dated: April 9, 2009.
Todd A. Stevenson,
Secretary.

Settlement Agreement

    1. In accordance with 16 CFR 1118.20, The TJX Companies, Inc., d/b/
a T.J. Maxx (``T.J. Maxx'') 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. T.J. Maxx is a corporation organized and existing under the laws 
of Delaware, with its principal offices located in Framingham, 
Massachusetts. At all times relevant hereto, T.J. Maxx sold apparel.

Staff Allegations

    4. From June 2007 to January 2008, T.J. Maxx held for sale and/or 
sold various quantities of the following children's upper outerwear 
products with drawstrings at the hood or neck: Scope Imports boys' 
hooded sweatshirts; Ms. Bubbles Passport girls' blue denim jackets; GWB 
II LLC French Fries/Heartbreakers Club hooded

[[Page 17661]]

henleys; Maran Squeeze Kids girls' corduroy jackets; and Oved Apparel 
Corp. Company 81 sweatshirts. From July to September, 2008, T.J. Maxx 
held for sale and/or sold the following children's upper outerwear 
products with drawstrings at the hood or neck: nZania/Element hoodies; 
Lost assorted hoodies; Ed Hardy sweatshirts; and Kids Headquarters 
Calvin Klein garments. The products identified in this paragraph are 
collectively referred to herein as ``Sweatshirts.'' These Sweatshirts 
identifications correspond to and are coextensive with information T.J. 
Maxx reported to the Staff about the Sweatshirts.
    5. T.J. Maxx sold Sweatshirts to consumers.
    6. The Sweatshirts are ``consumer product[s],'' and, at all times 
relevant hereto, T.J. Maxx was a ``retailer'' of those consumer 
products, which were ``distributed in commerce,'' as those terms are 
defined in CPSA sections 3(a)(5), (8), and (13), 15 U.S.C. 2052(a)(5), 
(8), and (13).
    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. T.J. Maxx informed the Commission that there had been no 
incidents or injuries from the Sweatshirts.
    11. T.J. Maxx'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. Recalls have been announced regarding the Sweatshirts as 
warranted.
    13. T.J. Maxx had presumed an 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). T.J. Maxx 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 T.J. Maxx to 
immediately inform the Commission of the defect and risk.
    14. T.J. Maxx 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 T.J. Maxx to civil penalties.

T.J. Maxx's Response

    15. T.J. Maxx denies the Staff's allegations set forth above, 
including, but not limited to, any allegation that T.J. Maxx failed 
timely to notify the Commission in accordance with section 15 of the 
CPSA.
    16. T.J. Maxx requires that its vendors represent and warrant that 
all products sold to T.J. Maxx comply with all applicable regulations, 
standards and requirements.
    17. T.J. Maxx promptly notified the Commission pursuant to section 
15 of the CPSA without first being contacted by the Commission upon 
verifying that certain garments contained drawstrings at the hood or 
neck.
    18. T.J. Maxx fully cooperated with the Commission in providing 
information necessary for the Commission to determine, with the vendor, 
whether a recall was warranted and whether the vendor had sold affected 
garments to any other retailers.
    19. T.J. Maxx has entered into the Agreement for settlement 
purposes only, to avoid incurring additional expenses and the 
distraction of litigation. The Agreement and Order do not constitute 
and are not evidence of any fault or wrongdoing by T.J. Maxx.

Agreement of the Parties

    20. Under the CPSA, the Commission has jurisdiction over this 
matter and over T.J. Maxx.
    21. The parties enter into the Agreement for settlement purposes 
only. The Agreement does not constitute an admission by T.J. Maxx, or a 
determination by the Commission, that T.J. Maxx knowingly violated the 
CPSA.
    22. In settlement of the Staff's allegations, T.J. Maxx shall pay a 
civil penalty in the amount of three hundred fifteen thousand dollars 
($315,000.00) within twenty (20) calendar days of service of the 
Commission's final Order accepting the Agreement. The payment shall be 
by check payable to the order of the United States Treasury.
    23. 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.
    24. Upon the Commission's final acceptance of the Agreement and 
issuance of the final Order, T.J. Maxx 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 T.J. Maxx 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.
    25. The Commission may publicize the terms of the Agreement and the 
Order.
    26. The Agreement and the Order shall apply to, and be binding 
upon, T.J. Maxx and each of its successors and assigns.
    27. The Commission issues the Order under the provisions of the 
CPSA, and violation of the Order may subject T.J. Maxx to appropriate 
legal action.
    28. The Agreement may be used in interpreting the Order. 
Understandings, agreements, representations, or interpretations apart 
from those contained in the Agreement and the

[[Page 17662]]

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.
    29. 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 T.J. Maxx agree that severing the provision materially affects the 
purpose of the Agreement and the Order.

The TJX Companies, Inc., d/b/a T.J. Maxx.

    Dated: March 2, 2009.
    By:

Ann McCauley,
Exec. Vice President, General Counsel, and Secretary. The TJX 
Companies, Inc., d/b/a T.J. Maxx, 770 Cochituate Road, Framingham, 
MA 01701.

    Dated: March 3, 2009.
    By:

Eric A. Rubel, Esq.,
 Arnold & Porter LLP, 555 12th Street, NW., Washington, DC 20004-
1206. Counsel for The TJX Companies, Inc., d/b/a T.J. Maxx.

U.S. Consumer Product Safety Commission Staff.

Cheryl A. Falvey,
General Counsel.

Ronald G. Yelenik,
Assistant General Counsel, Division of Compliance, Office of the 
General Counsel.

Dated: March 6, 2009.
    By:

Seth B. Popkin,
Lead Trial Attorney, Division of Compliance, Office of the General 
Counsel.

Order

    Upon consideration of the Settlement Agreement entered into between 
The TJX Companies, Inc., d/b/a T.J. Maxx (``T.J. Maxx'') and the U.S. 
Consumer Product Safety Commission (``Commission'') staff, and the 
Commission having jurisdiction over the subject matter and over T.J. 
Maxx, 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 T.J. Maxx shall pay a civil penalty in the 
amount of three hundred fifteen thousand dollars ($315,000.00) 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 T.J. Maxx 
to make the foregoing payment when due, interest on the unpaid amount 
shall accrue and be paid by T.J. Maxx 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 8th 
day of April, 2009.

    By Order of the Commission.

Todd A. Stevenson,
Secretary, U.S. Consumer Product Safety Commission.

[FR Doc. E9-8726 Filed 4-15-09; 8:45 am]
BILLING CODE 6355-01-P