[Federal Register Volume 75, Number 92 (Thursday, May 13, 2010)]
[Notices]
[Pages 26939-26941]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-11460]


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CONSUMER PRODUCT SAFETY COMMISSION

[CPSC Docket No. 09-C0037]


Target 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 1118.20(e). 
Published below is a provisionally-accepted Settlement Agreement with 
Target Corporation, containing a civil penalty of $600,000.00.

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 28, 2010.

ADDRESSES: Persons wishing to comment on this Settlement Agreement 
should send written comments to the Comment 09-C0037, Office of the 
Secretary, Consumer Product Safety Commission, 4330 East West Highway, 
Room 820, Bethesda, Maryland 20814-4408.

FOR FURTHER INFORMATION CONTACT: Sean R. Ward, 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) 504-7602.

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

    Dated: May 6, 2010.
Todd A. Stevenson,
Secretary.

Settlement Agreement and Order

    1. In accordance with 16 CFR 1118.20, Target Corporation (``Target 
'') and the staff (``Staff '') of the United States Consumer Product 
Safety Commission (``CPSC '' or the ``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 the Consumer Product Safety Act, 15 U.S.C. 
2051-2089 (``CPSA''). The Commission is responsible for the enforcement 
of the CPSA.
    3. Target is a corporation organized and existing under the laws of 
Minnesota, with its principal offices located in Minneapolis, 
Minnesota. At all times relevant hereto, Target imported and sold toys 
and children's products.

Staff Allegations

    4. From May 2006 through October 2006, Target imported into the 
United States approximately 156,300 units of Various Kool Toyz 
children's products consisting of the following models: Truck Carry 
Case; Tiny Playground Set/Dream House Play Set; Discovery Dinosaur 
Habitat; Air, Land and Sea Defender Play Set; and the Tank and 
Helicopter Action Figure Play Set (``Kool Toyz''). Target sold the Kool 
Toyz to consumers at retail stores nationwide owned or operated by 
Target from July 2006 through September 2006 for between $10 and $20 
per unit.
    5. On approximately November 2006, Target imported into the United 
States about 5,000 Anima-Bamboo Collection Games (``Collection Games'') 
units. Target sold the Collection Games to consumers at retail stores 
nationwide owned or operated by Target from approximately December 2006 
through April 2007 for $10 per unit.
    6. From June 2006 through June 2007, Target imported into the 
United States about 350,000 units of the Happy Giddy Gardening Tools 
(``Toy Tools''). Target sold the Toy Tools to consumers at retail 
stores nationwide owned or operated by Target from approximately August 
2006 through August 2007 for between $3 and $10 per unit.
    7. From June 2007 through August 2007, Target imported into the 
United States about 1900 units of Sunny Patch Chairs (``Toy Chairs''). 
Target sold the Toy Chairs to consumers at retail stores nationwide 
owned or operated by Target from approximately June 2007 through August 
2007 for about $10 per unit.
    8. The Kool Toyz, Collection Games, Toy Tools and Toy Chairs 
(collectively, ``Target Products'') are ``consumer products,'' and, at 
all times relevant hereto, Target was a ``manufacturer'' and/or 
``retailer'' of those consumer product(s), which were ``distributed in 
commerce,'' as those terms are defined in CPSA section 3(a)(3), (5), 
(8), (11) and (13), 15 U.S.C. Sec. Sec.  2052(a)(3), (5), (8), (11) and 
(13).
    9. The Target Products are articles intended to be entrusted to or 
for use by children, and, therefore, are subject to the requirements of 
the Commission's Ban of Lead-Containing Paint and Certain Consumer 
Products bearing

[[Page 26940]]

Lead-Containing Paint, 16 CFR Part 1303 (the ``Ban''). Under the Ban, 
toys and other children's articles must not bear ``lead-containing 
paint,'' defined as paint or other surface coating materials whose lead 
content is more than 0.06 percent of the weight of the total 
nonvolatile content of the paint or the weight of the dried paint film. 
16 CFR 1303.2(b)(1).
    10. On October 6, 2006, Target submitted a Full Report to CPSC 
containing information that it had commissioned an independent 
laboratory to conduct testing for the presence of lead in surface 
coatings on multiple models of the Kool Toyz in response to a consumer 
complaint that parts of the product were breaking. As expressed in 
several test reports, the test results demonstrated that the samples of 
the Kool Toyz contained a total lead content in excess of the 
permissible 0.06 percent limit set forth in the Ban.
    11. On April 17, 2007, Target submitted a Full Report to CPSC 
containing information that it had commissioned an independent 
laboratory to conduct testing of samples for the presence of lead in 
surface coatings on multiple models of the Collection Games from a 
store audit. As expressed in several test reports, the test results 
demonstrated that the samples of the Collection Games contained lead 
content in excess of the permissible 0.06 percent limit set forth in 
the Ban.
    12. On August 10, 2007, the Staff informed Target that it had 
tested a store sample of Toy Tools using the Association of Official 
Analytical Chemists (``AOAC'') method 974.02 lead analysis of paint 
which demonstrated that orange surface coating on the tested sample 
contained a total lead content in excess of the permissible 0.06 
percent limit set forth in the Ban.
    13. On September 14, 2007, Target submitted a Full Report to CPSC 
containing information that it had commissioned an independent 
laboratory to conduct testing of store samples of the Toy Chairs. As 
expressed in its test reports, the test result demonstrated that the 
sample of the Toy Chairs contained lead content in excess of the 
permissible 0.06 percent limit set forth in the Ban.
    14. On November 15, 2006, the Commission and Target announced a 
consumer-level recall of about 156,300 units of the Kool Toyz because 
``[s]ome of the toys contain lead paint, which is toxic if ingested by 
young children and can cause adverse health effects.'' On May 2, 2007, 
the Commission and Target announced a consumer-level recall of about 
5,000 units of Collection Games because ``[t]he toys in the bamboo game 
sets could contain lead paint, which is toxic if ingested by young 
children and can cause adverse health effects.'' On September 26, 2007, 
the Commission and Target announced a consumer-level recall of about 
350,000 Toy Tools and Toy Chairs because ``[t]he surface paint on the 
recalled gardening tools and chairs contains excessive levels of lead, 
violating the federal lead paint standard.''
    15. Although Target reported no incidents or injuries associated 
with the Kool Toyz, Collection Games, Toy Tools and Toys Chairs, it 
failed to take adequate action to ensure that none would bear or 
contain lead-containing paint, thereby creating a risk of lead 
poisoning and adverse health effects to children.
    16. The Kool Toyz, Collection Games, Toy Tools and Toy Chairs 
constitute ``banned hazardous products'' under CPSA section 8 and the 
Ban, 15 U.S.C. 2057 and 16 CFR 1303.1(a)(1), 1303.4(b), in that they 
bear or contain paint or other surface coating materials whose lead 
content exceeds the permissible limit of 0.06 percent of the weight of 
the total nonvolatile content of the paint or the weight of the of 
dried paint film. Between May 2006 and August 2007, Target sold, 
manufactured for sale, offered for sale, distributed in commerce, or 
imported into the United States, or caused one or more of such acts, 
with respect to the aforesaid banned hazardous Kool Toyz, Collection 
Games, Toy Tools and Toy Chairs, in violation of section 19(a)(1) of 
the CPSA, 15 U.S.C. 2068(a)(1). Target committed these prohibited acts 
``knowingly,'' as that term is defined in section 20(d) of the CPSA, 15 
U.S.C. 2069(d).
    17. Pursuant to section 20 of the CPSA, 15 U.S.C. 2069, Target is 
subject to civil penalties for the aforementioned violations.

Target's Responsive Allegations

    18. Target denies the Staff's allegations set forth above that it 
violated the CPSA or that it failed to take adequate action to ensure 
that none of its products contained excessive levels of lead-containing 
paint.
    19. At all times relevant to this matter, Target's quality 
assurance procedures were reasonable and satisfied the standard of 
care. Target's knowledge when the subject products were imported and 
offered for sale was that they complied with the lead paint standard. 
Notwithstanding satisfactory pre-production test results, certain units 
were subsequently found to contain impermissible levels of lead paint.
    20. Target notified CPSC of the Kool Toyz and Collection Games 
issues promptly upon discovering them. CPSC discovered the Toy Tools/
Toy Chairs issue and brought it to Target's attention. After promptly 
investigating the facts, Target voluntarily conducted each of the three 
subject product recalls in cooperation with CPSC.
    21. Before the Target Products were manufactured, Target had 
already begun implementing Multi-Stage Testing (``MST'') and a Quality 
Assurance Initiative as part of its overall process designed to help 
ensure the quality and safety of the products that Target sells. Target 
enhanced its procedures by addressing through MST the monitoring of 
product quality both before and during production by conducting three 
stages of testing--pre-production, top of production, and ongoing 
random testing of production units.

Agreement of the Parties

    22. Under the CPSA, the Commission has jurisdiction over this 
matter and over Target.
    23. The parties enter into the Agreement for settlement purposes 
only. The Agreement does not constitute an admission by Target, or a 
determination by the Commission, that Target has knowingly violated the 
CPSA.
    24. In settlement of the Staff's allegations, Target shall pay a 
civil penalty in the amount of six-hundred thousand dollars 
($600,000.00) 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 the Commission's 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 C.F.R. Sec.  1118.20(f), if the 
Commission does not receive any written request not to accept the 
Agreement within fifteen (15) days, the Agreement shall be deemed 
finally accepted on the sixteenth (16th) day after the date it is 
published in the Federal Register.
    26. Upon the Commission's final acceptance of the Agreement and 
issuance of the final Order, Target 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 
Commission's Order or actions; (3) a determination by the Commission of

[[Page 26941]]

whether Target 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.
    27. The Commission may publicize the terms of the Agreement and 
Order.
    28. The Agreement and Order shall apply to, and be binding upon, 
Target and each of its successors and assigns.
    29. The Commission issues the Order under the provisions of the 
CPSA, and violation of the Order may subject Target and each of its 
successors and assigns to appropriate legal action.
    30. The Agreement may be used in interpreting the Order. 
Understandings, agreements, representations, or interpretations apart 
from those contained in the Agreement and Order may not be used to vary 
or contradict its terms. The Agreement shall not be waived, amended, 
modified, or otherwise altered, except in a writing that is executed by 
the party against whom such waiver, amendment, modification, or 
alteration is sought to be enforced.
    31. If after the effective date hereof, any provision of the 
Agreement and Order is held to be illegal, invalid, or unenforceable 
under present or future laws effective during the terms of the 
Agreement and Order, such provision shall be fully severable. The 
balance of the Agreement and Order shall remain in full force and 
effect, unless the Commission and Target agree that severing the 
provision materially affects the purpose of the Agreement and Order.

     Target Corporation:

Dated: 9-17-09
By:--------------------------------------------------------------------
Stacia Andersen, President
Target Sourcing Services
1000 Nicollet Mall
Minneapolis, MN 55403

Dated: 9-17-09
By:--------------------------------------------------------------------
Eric A. Rubel, Esq.
Arnold & Porter LLP
555 Twelfth Street, NW.
Washington, DC 20004-1206
Counsel for Target Corporation

 U.S. Consumer Product Safety Commission Staff

Cheryl A. Falvey
General Counsel
Office of the General Counsel

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

Dated: 9-17-09
By:--------------------------------------------------------------------
Sean R. Ward
Trial Attorney, Division of Compliance
Office of the General Counsel

Order

    Upon consideration of the Settlement Agreement entered into between 
Target Corporation (``Target'') and the U.S. Consumer Product Safety 
Commission (``Commission'') staff, and the Commission having 
jurisdiction over the subject matter and over Target, and it appearing 
that the Settlement Agreement and Order are in the public interest, it 
is
    Ordered, that the Settlement Agreement be, and hereby is, accepted; 
and it is
    Further ordered, that Target shall pay a civil penalty in the 
amount of six-hundred thousand dollars ($600,000.00) 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 Target to make any of the foregoing payments 
when due, interest on the unpaid amount shall accrue and be paid by 
Target 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 30th day 
of September, 2009.

 By Order of the Commission:
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Todd A. Stevenson, Secretary
U.S. Consumer Product Safety Commission

[FR Doc. 2010-11460 Filed 5-12-10; 8:45 am]
BILLING CODE 6355-01-P