[Federal Register: August 12, 2008 (Volume 73, Number 156)]
[Notices]
[Page 46883-46885]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr12au08-43]
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CONSUMER PRODUCT SAFETY COMMISSION
(CPSC Docket No. 08-C0021)
Sears Holdings Management 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 Sec.
1118.20(e). Published below is a provisionally-accepted Settlement
Agreement with Sears Holdings Management Corporation, 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 August 27, 2008.
ADDRESSES: Persons wishing to comment on this Settlement Agreement
should send written comments to the Comment 08-C0021, 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: August 5, 2008.
Todd A. Stevenson,
Secretary.
United States of America
Consumer Product Safety Commission
In the Matter of Sears Holdings Management Corporation.
CPSC Docket No. 08-C0021
Settlement Agreement
1. In accordance with 16 CFR Sec. 1118.20, Sears Holdings
Management Corporation (``Sears'') 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 Staffs
allegations set forth below.
Parties
2. The Commission is an independent federal regulatory agency
established
[[Page 46884]]
pursuant to, and responsible for the enforcement of, the Consumer
Product Safety Act, 15 U.S.C. Sec. Sec. 2051-2084 (``CPSA'').
3. Sears is a corporation organized and existing under the laws
of Delaware, with its principal offices located in Hoffman Estates,
IL. At all times relevant hereto, Sears sold apparel.
Staff Allegations
4. From September 13, 2007, to September 18, 2007, Sears held
for sale and/or sold to consumers at least 5,214 Personal Identity
v-neck sweaters with hood and neck drawstrings (``Drawstring
Sweaters'').
5. The Drawstring Sweaters are ``consumer product[s],'' and, at
all times relevant hereto, Sears was a ``retailer'' of those
consumer products, which were ``distributed in commerce,'' as those
terms are defined in CPSA sections 3(a)(1), (6), (11), and (12), 15
U.S.C. 2052(a)(l), (6), (11), and (12).
6. 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 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.
7. 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.
8. 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.
Sec. 1274(c). The letter also notes the CPSA's section 15(b)
reporting requirements.
9. Sears informed the Commission that there had been no
incidents or injuries from the Drawstring Sweaters.
10. Sears's distribution in commerce of the Drawstring Sweaters
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.
11. On December 6, 2007, the Commission and Sears announced a
recall of the Drawstring Sweaters, informing consumers that they
should immediately remove the drawstrings to eliminate the hazard.
12. Sears had presumed and actual knowledge that the Drawstring
Sweaters distributed in commerce posed a strangulation hazard and
presented a substantial risk of injury to children under FHSA
section 15(c)(l), 15 U.S.C. Sec. 1274(c)(1). Sears had obtained
information that reasonably supported the conclusion that the
Drawstring Sweaters 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 Sears to immediately inform the
Commission of the defect and risk.
13. Sears knowingly failed to immediately inform the Commission
about the Drawstring Sweaters 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 Sears to
civil penalties.
Sears Response
14. Sears denies the Staff's allegations above that Sears
knowingly violated the CPSA.
Agreement of the Parties
15. Under the CPSA, the Commission has jurisdiction over this
matter and over Sears.
16. The parties enter into the Agreement for settlement purposes
only. The Agreement does not constitute an admission by Sears, or a
determination by the Commission, that Sears has knowingly violated
the CPSA.
17. In settlement of the Staff's allegations, Sears 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 by check
payable to the order of the United States Treasury.
18. 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.
19. Upon the Commission's final acceptance of the Agreement and
issuance of the final Order, Sears knowingly, voluntarily, and
completely waives any rights it may have regarding the Staff's
allegations 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 Sears 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.
20. The Commission may publicize the terms of the Agreement and
the Order.
21. The Agreement and the Order shall apply to, and be binding
upon, Sears and each of its successors and assigns.
22. The Commission issues the Order under the provisions of the
CPSA, and violation of the Order may subject Sears to appropriate
legal action.
23. 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.
24. 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 Sears agree that severing the provision materially
affects the purpose of the Agreement and the Order.
25. 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
C.F.R. Sec. 1118.20 with respect to Staff allegations that any
person or firm violated 15 U.S.C. Sec. 2068, where the total amount
of the settlement involves no more than $100,000.
SEARS HOLDINGS MANAGEMENT CORPORATION
Dated: 7-22-08 By:
Mary Tortorice
Vice President and Deputy General Counsel
Sears Holdings Management Corporation
3333 Beverly Road
Hoffman Estates, IL 60179
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: 8-1-08 By:
Dennis C. Kacoyanis
Trial Attorney
Legal Division
Office of Compliance and Field Operations
United States of America
Consumer Product Safety Commission
In the Matter of Sears Holdings Management Corporation )
CPSC Docket No. 08-C0021
Order
Upon consideration of the Settlement Agreement entered into
between Sears Holdings Management Corporation (``Sears'') and the
U.S. Consumer Product Safety Commission (``Commission'') staff, and
the Commission having jurisdiction over the subject matter and over
Sears, and pursuant to the authority delegated in
[[Page 46885]]
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 Sears 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
Sears to make the foregoing payment when due, interest on the unpaid
amount shall accrue and be paid by Sears at the federal legal rate
of interest set forth at 28 U.S.C. Sec. 1961(a) and (b).
Provisionally accepted and provisional Order issued on the 4th
day of August, 2008.
By Order of the Commission.
Todd A. Stevenson
Secretary
U.S. Consumer Product Safety Commission
[FR Doc. E8-18401 Filed 8-11-08; 8:45 am]
BILLING CODE 6355-01-M