[Federal Register Volume 76, Number 153 (Tuesday, August 9, 2011)]
[Notices]
[Pages 48808-48810]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-20086]


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CONSUMER PRODUCT SAFETY COMMISSION

[CPSC Docket No. 11-C0008]


Black & Decker (U.S.) 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

[[Page 48809]]

below is a provisionally accepted Settlement Agreement with Black & 
Decker (U.S.) Inc., containing a civil penalty of $960,000.00.

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 24, 2011.

ADDRESSES: Persons wishing to comment on this Settlement Agreement 
should send written comments to Comment 11-C0008, Office of the 
Secretary, Consumer Product Safety Commission, 4330 East West Highway, 
Room 820, Bethesda, Maryland 20814-4408.

FOR FURTHER INFORMATION CONTACT: William J. Moore, Jr., Trial Attorney, 
Division of Enforcement and Information, Office of the General Counsel, 
Consumer Product Safety Commission, 4330 East West Highway, Bethesda, 
Maryland 20814-4408; telephone (301) 504-7583.

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

    Dated: August 2, 2011.
Todd A. Stevenson,
Secretary.

Settlement Agreement

    (1) In accordance with 16 CFR 1118.20, Black & Decker (U.S.) Inc., 
its responsible officials, and its foreign and domestic corporate 
parents, affiliates, agents and employees (collectively ``Black & 
Decker'' or ``the Firm'') and the staff (``Staff'') of the United 
States Consumer Product Safety Commission (``Commission'') hereby enter 
into this Settlement Agreement (``Agreement'') under the Consumer 
Product Safety Act (``CPSA''). The Agreement and the incorporated 
attached Order resolve the Staff's allegations set forth below.

The Parties

    (2) The Staff is the staff of the Consumer Product Safety 
Commission, an independent federal regulatory agency established 
pursuant to, and responsible for, the enforcement of the CPSA, 15 
U.S.C. 2051-2089.
    (3) Black & Decker is a corporation organized and existing under 
the laws of the State of Maryland, with its principal corporate office 
located at 701 East Joppa Road, Towson, Maryland.

Staff Allegations

    (4) Between November 2005 and October 2006, Black & Decker imported 
and distributed approximately one hundred thirty-six thousand (136,000) 
newly designed electric, hand-held grass trimmer/edgers known as model 
GH1000 Grasshog XP (``Grasshog XP''). The Grasshog XPs were sold 
through retailers nationwide for approximately $70.00.
    (5) The Grasshog XPs are ``consumer products'' and, at all times 
relevant hereto, Black & Decker was a ``manufacturer'' of these 
consumer products, which were ``distributed in commerce,'' as those 
terms are defined or used in sections 3(a)(5), (8) and (11) of the 
CPSA, 15 U.S.C. 2052(a)(5), (8) and (11).
    (6) The Grasshog XPs contained several defects that presented four 
failure modes: (1) The cutting string spool covers and spools can be 
projected off the Grasshog XP at high speed in unpredictable 
directions, allowing these components to strike the user or bystanders; 
(2) the dual cutting lines were fed and cut off at high speed and at 
irregular intervals during use, allowing the line to strike the user; 
(3) the spool line feed guard can fall off during use, exposing the 
user to injury from overly long high speed cutting line; and (4) the 
spool housing may overheat, exposing users to risks of burn injuries.
    (7) Black & Decker first learned of defects in its Grasshog XP 
spool cover in December 2005. It modified the defective spool cover 
manufacturing process and changed the spool cover to a different 
material (``the new spool cover'') for future production. In January 
2006, the firm recalled 9,000 Grasshogs. In February 2006, Black & 
Decker informed the CPSC staff of what it termed a ``quality'' problem 
involving the original spool cover but did not file a report under 15 
U.S.C. 2064(b) at that time.

A. Violation of 15 U.S.C. 2068(a)(3), Failure To Provide Information 
Requested by CPSC Staff

    Paragraphs one through seven, above, are hereby incorporated herein 
by reference.
    (8) Black & Decker received its first complaints involving Grasshog 
XP defects, including problems with the new replacement spool cover, in 
mid-March and April 2006. By the end of May 2006, the Firm had received 
80 safety complaints, personal injury reports and hundreds of warranty 
claims involving the Grasshog XP. The subject of the complaints, 
reports and warranty claims were the defects set forth in Paragraph 6, 
supra.
    (9) In a letter dated May 9, 2006, CPSC staff asked Black & Decker 
for full report information with regard to the Grasshog XP, including, 
but not limited to, the defective spool covers the Firm discovered in 
December 2005 and replaced in January 2006.
    (10) Despite an awareness of the information set forth in 
Paragraphs six and eight, supra, and other information germane to 
written questions posed by the staff on May 9, 2006, Black & Decker did 
not comply with the staff written request to provide a full report 
concerning the Grasshog XP. In late May 2006, the firm provided 
limited, incomplete information regarding its January spool cover 
recall. Among other acts of omission, it failed to provide information 
about defects it discovered in the replacement spool cover system used 
in production from January 2006 forward. These new, defective spool 
covers had been intended as the remedy and were provided as replacement 
covers in the firm's January 2006 recall.
    (11) Based upon the incomplete information provided by Black & 
Decker, on June 30, 2006, the staff sent Black & Decker a letter 
closing the case file that had been opened on May 9, 2006. The staff 
letter of June 30, 2006 reminded Black & Decker of its duty to 
immediately report information that the risk or hazard posed by the 
Grasshog XP was greater than or different from that indicated by the 
information that had been supplied by the firm to date.
    (12) By June 2006, Black & Decker had received 216 Grasshog XP 
safety complaints and approximately 14 reports of injury. Despite the 
Commission staff letters of May 2 and June 30, 2006 requesting this 
information, Black & Decker silently acquiesced in the file closure 
without revealing this information.
    (13) Black & Decker waited until October 2006 to provide 
information requested by the staff on May 9, 2006. By its acts and 
omissions, the Firm knowingly violated Section 19(a)(3) of the CPSA, 15 
U.S.C. 2068(a)(3), as the term ``knowingly'' is defined in section 
20(d) of the CPSA, 15 U.S.C. 2069(d).

B. Violation of 15 U.S.C. 2068(a)(4) Failure To Furnish Information 
Required by Sections 15(b)(3) and (b)(4) of the CPSA

    Paragraphs one through thirteen, above, are hereby incorporated 
herein by reference.
    (14) From July through September 2006, Black & Decker continued to 
receive large numbers of safety complaints, injury reports and warranty 
claims involving defects in the Grasshog XP new spool cover, the spool 
line feeder, the spool line feed guard and the spool feed housing (as 
set forth in Paragraph 6 above.) Although Black & Decker had obtained 
sufficient information to reasonably support the

[[Page 48810]]

conclusion that the Grasshog XP contained defects which could create a 
substantial product hazard, or created an unreasonable risk of serious 
injury or death on or before May 1, 2006, Black & Decker failed to 
immediately inform the Commission of such defects or risks as required 
by sections 15(b)(3) and (4) of the CPSA, 15 U.S.C. 2064(b)(3) and (4). 
In failing to do so, Black & Decker knowingly violated section 19(a)(4) 
of the CPSA, 15 U.S.C. 2068(a)(4) as the term ``knowingly'' is defined 
in section 20(d) of the CPSA, 15 U.S.C. 2069(d).
    (15) Pursuant to section 20 of the CPSA, 15 U.S.C. 2069, Black & 
Decker is subject to civil penalties for its knowing failure to report 
as required under section 15(b) of the CPSA, 15 U.S.C. Sec.  2064(b).

Response of Black & Decker (U.S.) Inc.

    (16) Black & Decker denies Staff's allegations that the Grasshog 
XP, contains defects which could create a substantial product hazard or 
create an unreasonable risk of serious injury or death, and denies that 
it knowingly violated Sections 19(a)(3) or 19(a)(4) of the CPSA. This 
payment is made in settlement of the staff allegations. Neither the 
payment nor the fact of entering into this Settlement Agreement, 
constitute evidence of or an admission of, any fault, liability or 
statutory or regulatory violation by Black & Decker or of the truth of 
any allegations made by the staff.

Agreement of the Parties

    (17) Under the CPSA, the Commission has jurisdiction over this 
matter and over Black & Decker and the Grasshog XP.
    (18) In settlement of the Staff's allegations stemming from the 
Firm's importation and distribution of the Grasshog XP and in reporting 
to the Commission, Black & Decker shall pay a civil penalty in the 
amount of nine hundred sixty thousand dollars ($960,000.00) within ten 
(10) calendar days of receiving service of the Commission's final Order 
accepting the Agreement. The payment shall be made electronically to 
the CPSC via http://www.pay.gov .
    (19) The parties enter into this Agreement for settlement purposes 
only. The Agreement does not constitute an admission by Black & Decker 
or a determination by the Commission that Black & Decker knowingly 
violated Sections 19(a)(3) or 19(a)(4) of the CPSA.
    (20) Upon provisional acceptance of the Agreement by the 
Commission, 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). 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 
16th calendar day after the date it is published in the Federal 
Register, in accordance with 16 CFR 1118.20(f).
    (21) Upon the Commission's final acceptance of the Agreement and 
issuance of the final Order, Black & Decker knowingly, voluntarily and 
completely waives any rights it may have in this matter to the 
following: (i) An administrative or judicial hearing; (ii) judicial 
review or other challenge or contest of the Commission's actions; (iii) 
a determination by the Commission as to whether Black & Decker failed 
to comply with the CPSA and the underlying regulations; (iv) a 
statement of findings of fact and conclusions of law; and (v) 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 
Black & Decker and each of its parent corporation(s), successors and/or 
assigns.
    (24) The Commission issues the Order under the provisions of the 
CPSA, and a violation of the Order may subject Black & Decker and each 
of its parent corporation(s), successors and/or 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 or 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 Black & Decker agree that severing the provision materially affects 
the purpose of the Agreement and Order.

    Black & Decker (U.S.) Inc.

    Dated: 6/27/2011.
By:--------------------------------------------------------------------
James R. O'Brien, Esquire,
Vice President and Product Liability Counsel, Black & Decker (U.S.) 
Inc., 701 East Joppa Road, Towson, MD 21286.

    Dated: 6/27/2011.
By:--------------------------------------------------------------------
Timothy L. Mullin, Jr.,
Miles & Stockbridge P.C., 10 Light Street, Baltimore, MD 21202, 
Counsel for Black & Decker (U.S.) Inc.

U.S. Consumer Product Safety,
Commission Staff.

Cheryl A. Falvey,
General Counsel.

Mary B. Murphy,
Assistant General Counsel.

    Dated: 8/2/2011.
By:--------------------------------------------------------------------
William J. Moore, Jr.,
Trial Attorney, Division of Compliance, Office of the General 
Counsel.

Order

    Upon consideration of the Settlement Agreement entered into between 
Black & Decker (U.S.) Inc., its responsible officials, and their 
foreign and domestic corporate parents, affiliates, agents and 
employees (collectively ``Black & Decker''), and the U.S. Consumer 
Product Safety Commission (``Commission'') staff, and the Commission 
having jurisdiction over the subject matter and over Black & Decker, 
and it appearing that the Settlement Agreement and the Order are in the 
public interest, it is
    Ordered that the Settlement Agreement be, and is, hereby, accepted; 
and it is
    Further Ordered, that Black & Decker shall pay a civil penalty in 
the amount of nine hundred sixty thousand dollars ($960,000.00) within 
ten (10) days of service of the Commission's final Order accepting the 
Settlement Agreement upon counsel for Black & Decker identified in the 
Settlement Agreement. The payment shall be made electronically to the 
CPSC via http://www.pay.gov. Upon the failure of Black & Decker to make 
the foregoing payment when due, interest on the unpaid amount shall 
accrue and be paid by Black & Decker 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 August, 2011.

    By Order of the Commission.
Todd A. Stevenson,
Secretary, U.S. Consumer Product Safety Commission.
[FR Doc. 2011-20086 Filed 8-8-11; 8:45 am]
BILLING CODE 6355-01-P