Kohl's Department Stores, Inc., Provisional Acceptance of a Settlement Agreement and Order, 46576-46578 [E9-21764]
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46576
Federal Register / Vol. 74, No. 174 / Thursday, September 10, 2009 / Notices
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.
Seth B. Popkin,
Lead Trial Attorney,
Renee K. Haslett,
Trial Attorney, Division of Compliance,
Office of the General Counsel.
Order
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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
Hill Sportswear, Inc.
make any of the foregoing payments
Dated: August 6, 2009.
when due, the total amount of the civil
By: lllllllllllllllllll penalty shall become immediately due
and payable, and interest on the unpaid
Young Min Park, President,
Hill Sportswear, Inc.,
amount shall accrue and be paid by Hill
16250 Gundry Avenue,
at the Federal legal rate of interest set
Paramount, CA 90723.
forth at 28 U.S.C. 1961(a) and (b).
Dated: August 10, 2009.
By: lllllllllllllllllll
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: lllllllllllllllllll
VerDate Nov<24>2008
15:13 Sep 09, 2009
Jkt 217001
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
PO 00000
CONSUMER PRODUCT SAFETY
COMMISSION
[CPSC Docket No. 09–C0033]
Kohl’s Department Stores, Inc.,
Provisional Acceptance of a
Settlement Agreement and Order
AGENCY: Consumer Product Safety
Commission.
ACTION: Notice.
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 Kohl’s
Department Stores, Inc., containing a
civil penalty of $425,000.00.
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 September
25, 2009.
ADDRESSES: Persons wishing to
comment on this Settlement Agreement
should send written comments to the
Comment 09–C0033, 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: September 3, 2009.
Todd A. Stevenson,
Secretary.
Settlement Agreement
1. In accordance with 16 CFR 1118.20,
Kohl’s Department Stores, Inc.
(‘‘Kohl’s’’) 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
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Safety Act, 15 U.S.C. 2051—2089
(‘‘CPSA’’).
3. Kohl’s is a corporation organized
and existing under the laws of
Delaware, with its principal offices
located in Menomonee Falls, Wisconsin.
At all times relevant hereto, Kohl’s sold
apparel, accessories, and other products.
Staff Allegations
4. From January to February, 2009,
Kohl’s held for sale and/or sold Seattle
Cotton Works hooded sweatshirts with
drawstrings at the neck (‘‘Sweatshirts’’).
5. Kohl’s sold Sweatshirts to
consumers.
6. The Sweatshirts are ‘‘consumer
product[s],’’ and, at all times relevant
hereto, Kohl’s 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. Kohl’s informed the Commission
that there had been no incidents or
injuries associated with the Sweatshirts.
11. Kohl’s distribution in commerce
of the Sweatshirts did not meet the
Guidelines or ASTM F1816–97, failed to
VerDate Nov<24>2008
15:13 Sep 09, 2009
Jkt 217001
comport with the Staff’s May 2006
defect notice, and posed a strangulation
hazard to children.
12. On March 12, 2009, the
Commission, in cooperation with the
Sweatshirts’ distributor, announced a
recall of the Sweatshirts, informing
consumers that they should
immediately remove the drawstrings
from the Sweatshirts to eliminate the
hazard, or call the manufacturer to
arrange for a full refund.
13. Kohl’s 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). Kohl’s 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 Kohl’s to immediately inform
the Commission of the defect and risk.
14. Kohl’s 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 Kohl’s to civil penalties.
Kohl’s Responsive Allegations
15. Kohl’s denies the Staff’s
allegations above, including, but not
limited to, the allegations that Kohl’s
failed to timely notify the Commission
about the Sweatshirts as required by
CPSA sections 15(b)(3) and (4). Kohl’s
denies that it otherwise violated the
CPSA or FHSA.
16. In order to supply products to
Kohl’s, vendors are required to
represent and warrant to Kohl’s that all
merchandise delivered to Kohl’s will
comply with all existing laws,
regulations, standards, orders, and
rulings, including, but not limited to,
the CPSA and the FHSA.
17. After confirming that the
Sweatshirts contained drawstrings,
Kohl’s immediately (i) sent notice to all
Kohl’s stores to pull the Sweatshirts
from the shelves, (ii) had the
Sweatshirts pulled from the Kohls.com
Web site, and (iii) took additional steps
to prevent further sales of the
Sweatshirts.
18. Kohl’s timely notified the
Commission of the Sweatshirts pursuant
to section 15 of the CPSA.
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46577
19. Kohl’s fully cooperated with the
Commission and the Sweatshirts’
distributor in providing information
necessary for the Commission to
determine, with the Sweatshirts’
distributor, whether a recall was
warranted.
20. Kohl’s implemented the recall
announced by the Commission and the
Sweatshirts’ distributor.
21. Kohl’s has entered into the
Agreement 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 Kohl’s.
Agreement of the Parties
22. Under the CPSA, the Commission
has jurisdiction over this matter and
over Kohl’s.
23. The parties enter into the
Agreement for settlement purposes only.
The Agreement does not constitute an
admission by Kohl’s, or a determination
by the Commission, that Kohl’s
knowingly violated the CPSA.
24. In settlement of the Staff’s
allegations, Kohl’s shall pay a civil
penalty in the amount of four hundred
twenty-five thousand dollars
($425,000.00) 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.
25. Upon issuance of, and Kohl’s
compliance with, the final Order, the
Commission regards this matter as
resolved and agrees not to bring a civil
penalty action against Kohl’s based
upon the Staff’s allegations contained
herein regarding the Sweatshirts.
26. 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.
27. Upon the Commission’s final
acceptance of the Agreement and
issuance of the final Order, Kohl’s
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
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Federal Register / Vol. 74, No. 174 / Thursday, September 10, 2009 / Notices
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whether Kohl’s 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.
28. The Commission may publicize
the terms of the Agreement and the
Order.
29. The Agreement and the Order
shall apply to, and be binding upon,
Kohl’s and each of its successors and
assigns.
30. The Commission issues the Order
under the provisions of the CPSA, and
violation of the Order may subject
Kohl’s and each of its successors and
assigns to appropriate legal action.
31. 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.
32. 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 Kohl’s agree
that severing the provision materially
affects the purpose of the Agreement
and the Order.
Order
Kohl’s Department Stores, Inc.
Dated: July 29, 2009.
Jeff Manby,
Executive VP, GMM—Men’s/YMen’s/
Children’s, Kohl’s Department Stores, Inc.,
N56 W17000 Ridgewood Drive, Menomonee
Falls, WI 53051.
Dated: August 3, 2009.
Paul Izzo, Esq.,
One Post Office Square, Sharon, MA 02067.
Counsel for Kohl’s Department Stores, 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 11, 2009.
Seth B. Popkin,
Lead Trial Attorney, Division of Compliance,
Office of the General Counsel.
Uniform Formulary Beneficiary
Advisory Panel Meeting
VerDate Nov<24>2008
15:13 Sep 09, 2009
Jkt 217001
Upon consideration of the Settlement
Agreement entered into between Kohl’s
Department Stores, Inc. (‘‘Kohl’s’’) and
the U.S. Consumer Product Safety
Commission (‘‘Commission’’) staff, and
the Commission having jurisdiction
over the subject matter and over Kohl’s,
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 Kohl’s shall pay
a civil penalty in the amount of four
hundred twenty-five thousand dollars
($425,000.00) 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 Kohl’s to make the foregoing payment
when due, interest on the unpaid
amount shall accrue and be paid by
Kohl’s 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 2nd day
of September, 2009.
By Order of the Commission.
Todd A. Stevenson,
Secretary, U.S. Consumer Product Safety
Commission.
[FR Doc. E9–21764 Filed 9–9–09; 8:45 am]
BILLING CODE 6355–01–P
Advisory Panel was unable to finalize
its agenda in time to publish notice of
its meeting in the Federal Register for
the 15 calendar days required by 41 CFR
102–3.150(a). Accordingly, the
Committee Management Officer for the
Department of Defense, pursuant to 41
CFR 102–3.150(b), waives the 15
calendar-day notification requirement.
DATES: The meeting will be held
September 24, 2009, from 8 a.m. to 5
p.m. and is open to the public, but
seating is limited. The panel will also
conduct an Administrative Work
Meeting from 7 a.m. to 8 a.m. that is
closed to the public.
ADDRESSES: The meetings will be held at
the Naval Heritage Center Theater, 701
Pennsylvania Avenue, NW.,
Washington, DC 20004.
FOR FURTHER INFORMATION CONTACT:
Lieutenant Colonel Thomas Bacon,
Designated Federal Officer, Uniform
Formulary Beneficiary Advisory Panel,
Skyline 5, Suite 810, 5111 Leesburg
Pike, Falls Church, VA 22041–3206;
(703) 681–2890 (phone), (703) 681–1940
(fax), e-mail: Baprequests@tma.osd.mil.
SUPPLEMENTARY INFORMATION:
Meeting Accessibility
Pursuant to 5 U.S.C. 552b, as
amended, and 41 CFR 102–3.140
through 102–3.165, and the availability
of space this meeting is open to the
public. Seating is limited and will be
provided only to the first 220 people
signing in. All persons must sign in
legibly.
Meeting Agenda
DEPARTMENT OF DEFENSE
Office of the Secretary
AGENCY: Department of Defense,
Assistant Secretary of Defense (Health
Affairs).
ACTION: Notice of meeting.
SUMMARY: Under the provisions of the
Federal Advisory Committee Act of
1972 (5 U.S.C., Appendix, as amended)
and the Government in the Sunshine
Act of 1976 (5 U.S.C. 552b, as amended)
the Department of Defense announces
that the Uniform Formulary Beneficiary
Advisory Panel (hereafter referred to as
the Panel) will meet to review and
comment on recommendations made to
the Director, TRICARE Management
Activity, by the Pharmacy and
Therapeutics Committee regarding the
Uniform Formulary.
Due to scheduling difficulties the
Uniform Formulary Beneficiary
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Sign-In; Welcome and Opening
Remarks; Public Citizen Comments;
Scheduled Therapeutic Class Reviews—
Phosphodiesterase-5 Inhibitors and New
Drugs in Previously Reviewed Classes;
Drugs recommended for non-formulary
placement due to non-compliance with
2008 NDAA Section 703; Panel
Discussions and Vote, and comments
following each therapeutic class review.
Administrative Work Meeting
Prior to the public meeting the Panel
will conduct an Administrative Work
Meeting from 7 a.m. to 8 a.m. to discuss
administrative matters of the Panel.
Pursuant to 41 CFR 102–3.160, the
Administrative Work Meeting will be
closed to the public.
Written Statements
Pursuant to 41 CFR 102–3.105(j) and
102–3.140, the public or interested
organizations may submit written
statements to the membership of the
Panel at any time or in response to the
stated agenda of a planned meeting.
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]]>Agencies
[Federal Register Volume 74, Number 174 (Thursday, September 10, 2009)]
[Notices]
[Pages 46576-46578]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E9-21764]
-----------------------------------------------------------------------
CONSUMER PRODUCT SAFETY COMMISSION
[CPSC Docket No. 09-C0033]
Kohl's Department Stores, Inc., Provisional Acceptance of a
Settlement Agreement and Order
AGENCY: Consumer Product Safety Commission.
ACTION: Notice.
-----------------------------------------------------------------------
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
Kohl's Department Stores, Inc., containing a civil penalty of
$425,000.00.
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 September 25, 2009.
ADDRESSES: Persons wishing to comment on this Settlement Agreement
should send written comments to the Comment 09-C0033, 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: September 3, 2009.
Todd A. Stevenson,
Secretary.
Settlement Agreement
1. In accordance with 16 CFR 1118.20, Kohl's Department Stores,
Inc. (``Kohl's'') 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
[[Page 46577]]
Safety Act, 15 U.S.C. 2051--2089 (``CPSA'').
3. Kohl's is a corporation organized and existing under the laws of
Delaware, with its principal offices located in Menomonee Falls,
Wisconsin. At all times relevant hereto, Kohl's sold apparel,
accessories, and other products.
Staff Allegations
4. From January to February, 2009, Kohl's held for sale and/or sold
Seattle Cotton Works hooded sweatshirts with drawstrings at the neck
(``Sweatshirts'').
5. Kohl's sold Sweatshirts to consumers.
6. The Sweatshirts are ``consumer product[s],'' and, at all times
relevant hereto, Kohl's 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. Kohl's informed the Commission that there had been no incidents
or injuries associated with the Sweatshirts.
11. Kohl'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 March 12, 2009, the Commission, in cooperation with the
Sweatshirts' distributor, announced a recall of the Sweatshirts,
informing consumers that they should immediately remove the drawstrings
from the Sweatshirts to eliminate the hazard, or call the manufacturer
to arrange for a full refund.
13. Kohl's 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). Kohl's 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 Kohl's to immediately
inform the Commission of the defect and risk.
14. Kohl's 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 Kohl's to civil penalties.
Kohl's Responsive Allegations
15. Kohl's denies the Staff's allegations above, including, but not
limited to, the allegations that Kohl's failed to timely notify the
Commission about the Sweatshirts as required by CPSA sections 15(b)(3)
and (4). Kohl's denies that it otherwise violated the CPSA or FHSA.
16. In order to supply products to Kohl's, vendors are required to
represent and warrant to Kohl's that all merchandise delivered to
Kohl's will comply with all existing laws, regulations, standards,
orders, and rulings, including, but not limited to, the CPSA and the
FHSA.
17. After confirming that the Sweatshirts contained drawstrings,
Kohl's immediately (i) sent notice to all Kohl's stores to pull the
Sweatshirts from the shelves, (ii) had the Sweatshirts pulled from the
Kohls.com Web site, and (iii) took additional steps to prevent further
sales of the Sweatshirts.
18. Kohl's timely notified the Commission of the Sweatshirts
pursuant to section 15 of the CPSA.
19. Kohl's fully cooperated with the Commission and the
Sweatshirts' distributor in providing information necessary for the
Commission to determine, with the Sweatshirts' distributor, whether a
recall was warranted.
20. Kohl's implemented the recall announced by the Commission and
the Sweatshirts' distributor.
21. Kohl's has entered into the Agreement 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 Kohl's.
Agreement of the Parties
22. Under the CPSA, the Commission has jurisdiction over this
matter and over Kohl's.
23. The parties enter into the Agreement for settlement purposes
only. The Agreement does not constitute an admission by Kohl's, or a
determination by the Commission, that Kohl's knowingly violated the
CPSA.
24. In settlement of the Staff's allegations, Kohl's shall pay a
civil penalty in the amount of four hundred twenty-five thousand
dollars ($425,000.00) 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.
25. Upon issuance of, and Kohl's compliance with, the final Order,
the Commission regards this matter as resolved and agrees not to bring
a civil penalty action against Kohl's based upon the Staff's
allegations contained herein regarding the Sweatshirts.
26. 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.
27. Upon the Commission's final acceptance of the Agreement and
issuance of the final Order, Kohl's 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
[[Page 46578]]
whether Kohl's 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.
28. The Commission may publicize the terms of the Agreement and the
Order.
29. The Agreement and the Order shall apply to, and be binding
upon, Kohl's and each of its successors and assigns.
30. The Commission issues the Order under the provisions of the
CPSA, and violation of the Order may subject Kohl's and each of its
successors and assigns to appropriate legal action.
31. 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.
32. 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 Kohl's agree that severing the provision materially affects the
purpose of the Agreement and the Order.
Kohl's Department Stores, Inc.
Dated: July 29, 2009.
Jeff Manby,
Executive VP, GMM--Men's/YMen's/Children's, Kohl's Department
Stores, Inc., N56 W17000 Ridgewood Drive, Menomonee Falls, WI 53051.
Dated: August 3, 2009.
Paul Izzo, Esq.,
One Post Office Square, Sharon, MA 02067. Counsel for Kohl's
Department Stores, 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 11, 2009.
Seth B. Popkin,
Lead Trial Attorney, Division of Compliance, Office of the General
Counsel.
Order
Upon consideration of the Settlement Agreement entered into between
Kohl's Department Stores, Inc. (``Kohl's'') and the U.S. Consumer
Product Safety Commission (``Commission'') staff, and the Commission
having jurisdiction over the subject matter and over Kohl's, 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 Kohl's shall pay a civil penalty in the
amount of four hundred twenty-five thousand dollars ($425,000.00)
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
Kohl's to make the foregoing payment when due, interest on the unpaid
amount shall accrue and be paid by Kohl's 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 2nd day
of September, 2009.
By Order of the Commission.
Todd A. Stevenson,
Secretary, U.S. Consumer Product Safety Commission.
[FR Doc. E9-21764 Filed 9-9-09; 8:45 am]
BILLING CODE 6355-01-P
