[Federal Register Volume 74, Number 154 (Wednesday, August 12, 2009)]
[Notices]
[Pages 40570-40572]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-19370]


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CONSUMER PRODUCT SAFETY COMMISSION

[CPSC Docket No. 09-C0031]


Ross Stores, 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 
Ross Stores, Inc., containing a civil penalty of $500,000.00.

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, 2009.

ADDRESSES: Persons wishing to comment on this Settlement Agreement 
should send written comments to Comment 09-C0031, Office of the 
Secretary, Consumer Product Safety Commission, 4330 East-West Highway, 
Room 502, Bethesda, Maryland 20814-4408.

FOR FURTHER INFORMATION CONTACT: Renee K. Haslett, Trial Attorney, 
Division of Compliance, Office of the General Counsel, Consumer Product 
Safety Commission, 4330 East-West Highway, Bethesda, Maryland 20814-
4408; telephone (301) 504-7673.

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

    Dated: August 6, 2009.
Todd A. Stevenson,
Secretary.

In the Matter of Ross Stores, Inc.; Settlement Agreement

    1. In accordance with 16 CFR 1118.20, Ross Stores, Inc. (``Ross'') 
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 40571]]

Safety Act, 15 U.S.C. 2051-2089 (``CPSA'').
    3. Ross is a corporation organized and existing under the laws of 
Delaware, with its principal offices located in Pleasanton, California. 
At all times relevant hereto, Ross sold apparel.

Staff Allegations

    4. From September to December, 2006, Ross held for sale and/or sold 
the following children's upper outerwear product with drawstrings at 
the neck: Seena International, Inc., Brooklyn Express children's hooded 
sweatshirts. From July 2007 to January 2008, Ross held for sale and/or 
sold the following children's upper outerwear products with drawstrings 
at the neck: Scope Imports, Inc., boys' hooded sweatshirts; Liberty 
Apparel Company, Inc., Jewel brand girls' hooded sweatshirts; and 
Siegfried & Parzifal, Inc., Karl Kani boys' fleece hooded sweatshirts. 
The products identified in this paragraph are collectively referred to 
herein as ``Sweatshirts.''
    5. Ross sold Sweatshirts to consumers.
    6. The Sweatshirts are ``consumer product[s],'' and, at all times 
relevant hereto, Ross 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 Sweatshirts 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. Ross informed the Commission that there had been no incidents 
or injuries associated with the Sweatshirts.
    11. Ross'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.
    13. Ross 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). Ross 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 Ross to immediately 
inform the Commission of the defect and risk.
    14. Ross 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 Ross to civil penalties.

Ross's Responsive Allegations

    15. Ross denies the Staff's allegations above, including, but not 
limited to, any allegation that Ross knowingly violated the CPSA.
    16. Ross has entered into this Agreement solely to avoid protracted 
litigation. The Agreement and Order do not constitute and are not 
evidence of any fault or wrongdoing on the part of Ross.

Agreement of the Parties

    17. Under the CPSA, the Commission has jurisdiction over this 
matter and over Ross.
    18. The parties enter into the Agreement for settlement purposes 
only. The Agreement does not constitute an admission by Ross, or a 
determination by the Commission, that Ross knowingly violated the CPSA.
    19. In settlement of the Staff's allegations, Ross shall pay a 
civil penalty in the amount of five hundred thousand dollars 
($500,000.00) 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.
    20. 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.
    21. Upon the Commission's final acceptance of the Agreement and 
issuance of the final Order, Ross 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 Ross 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.
    22. The Commission may publicize the terms of the Agreement and the 
Order.
    23. The Agreement and the Order shall apply to, and be binding 
upon, Ross and each of its successors and assigns.
    24. The Commission issues the Order under the provisions of the 
CPSA, and violation of the Order may subject Ross and each of its 
successors and assigns to appropriate legal action.
    25. 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.
    26. 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

[[Page 40572]]

provision shall be fully severable. The balance of the Agreement and 
the Order shall remain in full force and effect, unless the Commission 
and Ross agree that severing the provision materially affects the 
purpose of the Agreement and the Order.

Ross Stores, Inc.

    Dated: 6/25/09
    By:

Mark LeHocky,

Senior Vice President
General Counsel & Corporate Secretary
ROSS STORES, INC.
4440 Rosewood Drive
Pleasanton, CA 94588

    Dated: 6/26/09
    By:

Jeffrey B. Margulies,

Fulbright & Jaworski L.L.P.
555 South Flower Street, Forty-First Floor
Los Angeles, CA 90071
Counsel for Ross 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: 6/29/09
    By:

Renee K. Haslett,

Trial Attorney
Division of Compliance,
Office of the General Counsel.

In the Matter of Ross Stores, Inc.; Order

    Upon consideration of the Settlement Agreement entered into 
between Ross Stores, Inc. (``Ross'') and the U.S. Consumer Product 
Safety Commission (``Commission'') staff, and the Commission having 
jurisdiction over the subject matter and over Ross, 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 Ross shall pay a civil penalty in the 
amount of five hundred thousand dollars ($500,000.00) 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 Ross 
to make the foregoing payment when due, interest on the unpaid 
amount shall accrue and be paid by Ross 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 5th 
day August, 2009.

BY ORDER OF THE COMMISSION:

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

[FR Doc. E9-19370 Filed 8-11-09; 8:45 am]
BILLING CODE 6355-01-P