Philips Lighting North America Corporation, Provisional Acceptance of a Settlement Agreement and Order, 74088-74091 [2015-30129]
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Federal Register / Vol. 80, No. 228 / Friday, November 27, 2015 / Notices
services and could continue to perform
with the best stewardship of the
taxpayers’ money. The firm questioned
whether the proposed nonprofit agency
could perform the required services
within the restraints of the AbilityOne
Program’s requirement to employ
people with severe disabilities and
noted that some of its employees were
contacted by the nonprofit agency and
offered employment. Finally, while
noting that the contract was not a major
portion of the contractor’s business
portfolio, the loss of the contract would
have a significant financial impact since
it would result in the loss of a major
profit margin contract without
providing specific information to
substantiate the impact or how the
impact would be measured.
The U.S. AbilityOne Commission
(statutorily identified as the Committee
for Purchase from People Who Are
Blind or Severely Disabled)
(Commission) administers the
AbilityOne® program under the
authority of the Javits-Wagner-O’Day
Act. Commission responsibilities
include identifying products and
services produced or provided by
qualified nonprofit agencies employing
people who are blind or severely
disabled that the Commission
determines are suitable for procurement
by the Government. Prior to adding any
project to the Procurement List (PL), the
Commission reviews each project for
suitability including, employment
potential, nonprofit agency
qualifications, capability, and level of
impact on the current contractor. If the
Commission is satisfied that each of
these four criteria are met, then the
service can be added to the PL and it
becomes a mandatory requirement for
the government agency to obtain the
service from the designated nonprofit
agency if available within the required
time frame.
The Commission does not dispute
that the contractor is effectively
performing the required services;
however, that does not mean that it is
the only contractor that can effectively
perform the services or that the
AbilityOne Commission cannot add the
work to the Procurement List for
performance by a nonprofit agency in
the AbilityOne Program. The
Commission has reviewed and
determined that the project will result
in employment for people with severe
disabilities and the designated nonprofit
agency is qualified under the
Commission’s 75% ratio requirement
and otherwise and capable of
performing the services. Additionally,
the Commission reviews financial
information provided by current
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contractors to determine whether severe
adverse impact will occur if a project is
added to the PL. The Commission did
so in this instance and disagrees with
the contractor’s assertion that the
addition of this project to the PL will
result in severe adverse impact to the
contractor company. The Commission
has reviewed the specific requirements
of this project and determined that this
project is suitable for performance by a
nonprofit agency employing people who
are blind or severely disabled. Placing
this project on the PL will result in
employment and training opportunities
for people with severe disabilities.
Accordingly, following a deliberative
review of the facts of this project, the
Commission determines that this project
is appropriate for the AbilityOne
Program and will be added to the
Procurement List.
Service Type: Removal/Clean-up Bird
Dropping Service
Service Is Mandatory For: Defense Logistics
Agency, Defense Supply Center, 8000
Jefferson Davis Highway, Richmond, VA
Mandatory Source(s) of Supply: Richmond
Area Association for Retarded Citizens,
Richmond, VA
Contracting Activity: Defense Logistics
Agency Contracting Services Office,
Richmond, VA
Service Type: Custodial and Related
Service
Service Is Mandatory For: GSA PBS Region
4, Benjamin P. Grogan and Jerry L. Dove
Federal Building, 2030 SW. 145th Avenue,
Miramar, FL
Mandatory Source(s) of Supply: CW
Resources, Inc., New Britain, CT
Contracting Activity: Public Buildings
Service, Acquisition Division/Services
Branch, Atlanta, GA
Barry S. Lineback,
Director, Business Operations.
[FR Doc. 2015–30145 Filed 11–25–15; 8:45 am]
BILLING CODE 6353–01–P
CONSUMER PRODUCT SAFETY
COMMISSION
[CPSC Docket No. 16–C0001]
Philips Lighting North America
Corporation, Provisional Acceptance
of a Settlement Agreement and Order
Lighting North America Corporation
containing a civil penalty in the amount
of two million dollars ($2,000,000),
within thirty (30) days of service of the
Commission’s final Order accepting the
Settlement Agreement.1
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 December
14, 2015.
ADDRESSES: Persons wishing to
comment on this Settlement Agreement
should send written comments to the
Comment 16–C0001, Office of the
Secretary, Consumer Product Safety
Commission, 4330 East West Highway,
Room 820, Bethesda, Maryland 20814–
4408.
FOR FURTHER INFORMATION CONTACT:
Amy S. Colvin, Attorney, Office of the
General Counsel, Division of
Enforcement and Information,
Consumer Product Safety Commission,
4330 East West Highway, Bethesda,
Maryland 20814–4408; telephone (301)
504–7639.
SUPPLEMENTARY INFORMATION: The text of
the Agreement and Order appears
below.
Dated: November 23, 2015.
Todd A. Stevenson,
Secretary.
United States of America Consumer
Product Safety Commission
In the Matter of: Philips Lighting North
America Corporation
CPSC Docket No.: 16–C0001
Settlement Agreement
1. In accordance with the Consumer
Product Safety Act, 15 U.S.C.
2051¥2089 (‘‘CPSA’’) and 16 CFR
1118.20, Philips Lighting North America
Corporation (‘‘Philips’’), and the United
States Consumer Product Safety
Commission (‘‘Commission’’), through
its staff, hereby enter into this
Settlement Agreement (‘‘Agreement’’).
The Agreement, and the incorporated
attached Order, resolve staff’s charges
set forth below.
Consumer Product Safety
Commission.
ACTION: Notice.
The Parties
2. The Commission is an independent
federal regulatory agency, established
pursuant to, and responsible for the
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 Philips
1 The Commission voted (4–1) to provisionally
accept the Settlement Agreement and Order
regarding Philips Lighting North America
Corporation. Chairman Kaye, Commissioner Adler,
Commissioner Robinson and Commissioner
Mohorovic voted to provisionally accept the
Settlement Agreement and Order. Commissioner
Buerkle voted to reject the Settlement Agreement
and Order.
AGENCY:
SUMMARY:
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enforcement of, the CPSA, 15 U.S.C.
2051–2089. By executing the
Agreement, staff is acting on behalf of
the Commission, pursuant to 16 CFR
1118.20(b). The Commission issues the
Order under the provisions of the CPSA.
3. Philips is a corporation, organized
and existing under the laws of the state
of Delaware, with its principal corporate
offices located in Somerset, New Jersey.
Staff Charges
4. Between March 2007 and July 2011,
grocery and home center stores
nationwide, online retailers, and
professional electrical distributors sold
in the United States approximately 1.86
million EnergySaver (a/k/a ‘‘Marathon’’
or ‘‘Marathon Classic’’) compact
fluorescent lamps enclosed inside glass
envelopes (‘‘Lamps’’). Philips
manufactured the Lamps.
5. The Lamps are a ‘‘consumer
product’’ that was ‘‘distributed in
commerce’’ as those terms are defined
or used in sections 3(a)(5) and (8) of the
CPSA, 15 U.S.C. 2052(a)(5) and (8).
Philips is a ‘‘manufacturer’’ of the
Lamps, as such term is defined in
section 3(a)(11) of the CPSA, 15 U.S.C.
2052(a)(11).
6. The Lamps are defective and create
an unreasonable risk of serious injury or
death because the glue that attaches the
glass outer envelope to the body of the
Lamp can fail, allowing the glass
envelope to fall and strike persons and
objects below. This poses a laceration
hazard to consumers.
7. Philips received numerous reports
that glass envelopes separated or were
loose, including 10 reports of
lacerations and seven reports of
property damage.
8. In response to these incident
reports, Philips implemented multiple
design changes to remedy the defect and
unreasonable risk of serious injury or
death associated with the Lamps.
9. Despite having information of a
defect and the unreasonable risk of
serious injury or death associated with
the Lamps, Philips did not notify the
Commission immediately of such defect
or risk, as required by sections 15(b)(3)
and (4) of the CPSA, 15 U.S.C.
2064(b)(3) and (4).
10. Because the information in
Philips’s possession constituted actual
and presumed knowledge, Philips
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).
11. Pursuant to section 20 of the
CPSA, 15 U.S.C. 2069, Philips is subject
to civil penalties for its knowing
violation of section 19(a)(4) of the
CPSA, 15 U.S.C. 2068(a)(4).
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Response of Philips
12. Philips’ settlement of this matter
does not constitute an admission that
Philips knew that the Lamps were
defective and created an unreasonable
risk of serious injury or death pursuant
to section 15(a) of the CPSA, 15 U.S.C.
2064(a), or that Philips knowingly
violated the reporting requirements of
section 15(b) of the CPSA, 15 U.S.C.
2064(b). In particular, Philips notes that
the ten reported injuries were minor,
requiring no medical attention.
Agreement of the Parties
13. Under the CPSA, the Commission
has jurisdiction over the matter
involving the Lamps and over Philips.
14. The parties enter into the
Agreement for settlement purposes only.
The Agreement does not constitute an
admission by Philips or a determination
by the Commission that Philips violated
the CPSA’s reporting requirements.
15. In settlement of staff’s charges as
set forth in paragraphs 4 through 11
above, and to avoid the cost, distraction,
delay, uncertainty, and inconvenience
of protracted litigation or other
proceedings, Philips shall pay a civil
penalty in the amount of two million
dollars ($2,000,000) within thirty (30)
calendar days after receiving service of
the Commission’s final Order accepting
the Agreement. All payments to be
made under the Agreement shall
constitute debts owing to the United
States and shall be made by electronic
wire transfer to the United States via:
https://www.pay.gov for allocation to and
credit against the payment obligations of
Philips under this Agreement. Failure to
make such payment by the date
specified in the Commission’s final
Order shall constitute Default.
16. All unpaid amounts, if any, due
and owing under the Agreement shall
constitute a debt due and immediately
owing by Philips to the United States,
and interest shall accrue and be paid by
Philips at the federal legal rate of
interest set forth at 28 U.S.C. 1961(a)
and (b) from the date of Default until all
amounts due have been paid in full
(hereinafter ‘‘Default Payment Amount’’
and ‘‘Default Interest Balance’’). Philips
shall consent to a Consent Judgment in
the amount of the Default Payment
Amount and Default Interest Balance;
and the United States, at its sole option,
may collect the entire Default Payment
Amount and Default Interest Balance, or
exercise any other rights granted by law
or in equity, including, but not limited
to, referring such matters for private
collection, and Philips agrees not to
contest, and hereby waives and
discharges any defenses to, any
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collection action undertaken by the
United States or its agents or contractors
pursuant to this paragraph. Philips shall
pay the United States all reasonable
costs of collection and enforcement
under this paragraph, respectively,
including reasonable attorney’s fees and
expenses.
17. After staff receives this Agreement
executed on behalf of Philips, staff shall
promptly submit the Agreement to the
Commission for provisional acceptance.
Promptly following 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 the Agreement is
published in the Federal Register, in
accordance with 16 CFR 1118.20(f).
18. This Agreement is conditioned
upon, and subject to, the Commission’s
final acceptance, as set forth above, and
it is subject to the provisions of 16 CFR
1118.20(h). Upon the later of: (i)
Commission’s final acceptance of this
Agreement and service of the accepted
Agreement upon Philips, and (ii) the
date of issuance of the final Order, this
Agreement shall be in full force and
effect and shall be binding upon the
parties.
19. Effective upon the later of: (i) the
Commission’s final acceptance of the
Agreement and service of the accepted
Agreement upon Philips, and (ii) and
the date of issuance of the final Order,
for good and valuable consideration,
Philips hereby expressly and
irrevocably waives and agrees not to
assert any past, present, or future rights
to the following, in connection with the
matter described in this Agreement: (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 of
whether Philips 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.
20. Philips shall implement, maintain,
and enforce a system of internal controls
and procedures designed to ensure that,
with respect to all consumer products,
as that term is defined or used in section
3(a)(5) of the CPSA, 15 U.S.C. 2052(a)(5)
(‘‘consumer products’’), imported,
manufactured, distributed, or sold by
Philips in the United States:
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a. information required to be
disclosed by Philips to the Commission
is recorded, processed, and reported in
accordance with applicable law;
b. all reporting made to the
Commission is timely, truthful,
complete, accurate, and in accordance
with applicable law; and
c. prompt disclosure is made to
Philips’s management of any significant
deficiencies or material weaknesses in
the design or operation of such internal
controls that are reasonably likely to
affect adversely, in any material respect,
Philips’s ability to record, process, and
report to the Commission in accordance
with applicable law.
21. Philips shall implement and
maintain a compliance program
designed to ensure compliance with the
CPSA and regulations enforced by the
Commission with respect to any
consumer product imported,
manufactured, distributed, or sold by
Philips in the United States, and which,
at a minimum, shall contain the
following elements:
a. written standards and policies;
b. written procedures that provide for
the appropriate forwarding to
compliance personnel of all information
that may relate to, or impact, CPSA
compliance, including all reports and
complaints involving consumer
products, whether an injury is
referenced or not, and corresponding
engineering analyses and risk
assessments;
c. a mechanism for confidential
employee reporting of compliancerelated questions or concerns to either a
compliance officer or to another senior
manager with authority to act as
necessary;
d. effective communication of
company compliance-related policies
and procedures regarding the CPSA to
all applicable employees through
training programs or otherwise;
e. Philips senior management
responsibility for CPSA compliance and
accountability for violations of the
statutes and regulations enforced by the
Commission;
f. Philips board oversight of CPSA
compliance; and
g. retention of all CPSA compliancerelated records for at least five (5) years,
and availability of such records to staff
upon reasonable request.
22. Upon reasonable request of staff,
Philips shall provide written
documentation of its improvements,
processes, and controls, including, but
not limited to, the effective dates of
such improvements, processes, and
controls as set forth in paragraphs 20
through 21 above. Philips shall
cooperate fully and truthfully with staff
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and shall make available all
information, materials, and personnel
deemed necessary by staff to evaluate
Philips’s compliance with the terms of
the Agreement.
23. The parties acknowledge and
agree that the Commission may
publicize the terms of the Agreement
and the Order.
24. Philips represents that the
Agreement: (i) is entered into freely and
voluntarily, without any degree of
duress or compulsion whatsoever; (ii)
has been duly authorized; and (iii)
constitutes the valid and binding
obligation of Philips, enforceable against
Philips in accordance with its terms.
Philips will not directly or indirectly
receive any reimbursement,
indemnification, insurance-related
payment, or other payment in
connection with the civil penalty to be
paid by Philips pursuant to the
Agreement and Order. The individuals
signing the Agreement on behalf of
Philips represent and warrant that they
are duly authorized by Philips to
execute the Agreement.
25. The signatories represent that they
are authorized to execute this
Agreement.
26. The Agreement is governed by the
laws of the United States.
27. The Agreement and the Order
shall apply to, and be binding upon,
Philips and each of its successors,
transferees, and assigns, and a violation
of the Agreement or Order may subject
Philips, and each of its successors,
transferees, and assigns, to appropriate
legal action.
28. The Agreement and the Order
constitute the complete agreement
between the parties on the subject
matter contained therein.
29. 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. For purposes of
construction, the Agreement shall be
deemed to have been drafted by both of
the parties and shall not, therefore, be
construed against any party for that
reason in any subsequent dispute.
30. The Agreement may not be
waived, amended, modified, or
otherwise altered, except as in
accordance with the provisions of 16
CFR 1118.20(h). The Agreement may be
executed in counterparts.
31. 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
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balance of the Agreement and the Order
shall remain in full force and effect,
unless the Commission and Philips
agree in writing that severing the
provision materially affects the purpose
of the Agreement and the Order.
Philips Lighting North America Corporation
Dated: November 9, 2015
By:
Michael L. Manning lllllllllll
Vice President and General Counsel
Philips Lighting North America Corporation
3000 Minuteman Road
Andover, MA 01810
Dated: November 9, 2015
By:
Kathleen M. Sanzo llllllllllll
Counsel to Philips Lighting North America
Corporation
Morgan, Lewis & Bockius LLP
1111 Pennsylvania Avenue NW
Washington, DC 20004
U.S. Consumer Product Safety Commission
Stephanie Tsacoumis
General Counsel
Mary T. Boyle
Deputy General Counsel
Melissa V. Hampshire
Assistant General Counsel
Dated: November 10, 2015
By:
Amy S. Colvin llllllllllllll
Attorney
Division of Enforcement and Information
Office of the General Counsel
United States of America Consumer
Product Safety Commission
In the Matter of: Philips Lighting North
America Corporation
CPSC Docket No.: 16–C0001
Order
Upon consideration of the Settlement
Agreement entered into between Philips
Lighting North America Corporation
(‘‘Philips’’), and the U.S. Consumer
Product Safety Commission
(‘‘Commission’’), and the Commission
having jurisdiction over the subject
matter and over Philips, 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 Philips
shall comply with the terms of the
Settlement Agreement and shall pay a
civil penalty in the amount of two
million dollars ($2,000,000) within
thirty (30) days after service of the
Commission’s final Order accepting the
Settlement Agreement. The payment
shall be made by electronic wire transfer
to the Commission via: https://
www.pay.gov. Upon the failure of
Philips to make the foregoing payment
when due, interest on the unpaid
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amount shall accrue and be paid by
Philips at the federal legal rate of
interest set forth at 28 U.S.C. 1961(a)
and (b). If Philips fails to make such
payment or to comply in full with any
other provision of the Settlement
Agreement, such conduct will be
considered a violation of the Settlement
Agreement and Order.
Frequency: On occasion.
Respondent’s Obligation: Required to
obtain or retain benefits.
OMB Desk Officer: Ms. Jasmeet
Seehra.
Comments and recommendations on
the proposed information collection
should be emailed to Ms. Jasmeet
Seehra, DoD Desk Officer, at Oira_
Provisionally accepted and provisional Order submission@omb.eop.gov. Please
identify the proposed information
issued on the 23th day of November, 2015.
collection by DoD Desk Officer and the
By Order of the Commission:
Docket ID number and title of the
lllllllllllllllllllll information collection.
Todd A. Stevenson, Secretary,
You may also submit comments and
U.S. Consumer Product Safety Commission
recommendations, identified by Docket
ID number and title, by the following
[FR Doc. 2015–30129 Filed 11–25–15; 8:45 am]
method:
BILLING CODE 6355–01–P
• Federal eRulemaking Portal: https://
www.regulations.gov. Follow the
instructions for submitting comments.
DEPARTMENT OF DEFENSE
Instructions: All submissions received
Department of the Army
must include the agency name, Docket
ID number and title for this Federal
[Docket ID: USA–2015–0011]
Register document. The general policy
for comments and other submissions
Submission for OMB Review;
from members of the public is to make
Comment Request
these submissions available for public
ACTION: Notice.
viewing on the Internet at https://
www.regulations.gov as they are
SUMMARY: The Department of Defense
received without change, including any
has submitted to OMB for clearance, the personal identifiers or contact
following proposal for collection of
information.
information under the provisions of the
DOD Clearance Officer: Mr. Frederick
Paperwork Reduction Act.
Licari.
DATES: Consideration will be given to all
Written requests for copies of the
comments received by December 28,
information collection proposal should
2015.
be sent to Mr. Licari at WHS/ESD
FOR FURTHER INFORMATION CONTACT: Fred Directives Division, 4800 Mark Center
Licari, 571–372–0493.
Drive, East Tower, Suite 02G09,
Alexandria, VA 22350–3100.
SUPPLEMENTARY INFORMATION:
Title, Associated Form and OMB
Dated: November 23, 2015.
Number: Employee Travel Files; 0702–
Aaron Siegel,
XXXX.
Alternate OSD Federal Register Liaison
Type of Request: Existing collection in Officer, Department of Defense.
use without an OMB Control Number.
[FR Doc. 2015–30126 Filed 11–25–15; 8:45 am]
Number of Respondents: 350.
BILLING CODE 5001–06–P
Responses per Respondent: 1.
Annual Responses: 350.
Average Burden per Response: 45
DEPARTMENT OF DEFENSE
minutes.
Annual Burden Hours: 263.
Office of the Secretary
Needs and Uses: The information
collection requirement is necessary to
National Commission on the Future of
process official travel requests for
the Army; Notice of Federal Advisory
military and civilian employees of the
Committee Meeting
Army and Air Force Exchange Service;
AGENCY: Deputy Chief Management
to determine eligibility of the
Officer, Department of Defense (DoD).
individual’s dependents to travel; to
obtain the necessary clearance where
ACTION: Notice of Federal Advisory
foreign travel is involved, including
Committee meeting.
assisting individuals in applying for
SUMMARY: The DoD is publishing this
passports and visas and counseling
where proposed travel involves visiting/ notice to announce two days of
meetings of the National Commission on
transiting communist countries and
the Future of the Army (‘‘the
danger zones.
Commission’’). The meetings will be
Affected Public: Individuals or
partially closed to the public.
households.
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74091
Date of the Closed Meetings:
Wednesday, December 16, 2015, from
1:00 p.m. to 5:00 p.m. and Thursday,
December 17, 2015, from 8:00 a.m. to
12:00 p.m.
Date of the Open Meeting: Thursday,
December 17, 2015, from 3:00 p.m. to
5:00 p.m.
ADDRESSES: Address of Closed Meetings,
December 16 and 17, 2015: Rm. 12110,
5th Floor, Zachary Taylor Building,
2530 Crystal Dr., Arlington, VA 22202.
Address of Open Meeting, December
17, 2015: Polk Conference Room, Room
12158, James Polk Building, 2521 S.
Clark St., Arlington, VA 22202.
FOR FURTHER INFORMATION CONTACT: Mr.
Don Tison, Designated Federal Officer,
National Commission on the Future of
the Army, 700 Army Pentagon, Room
3E406, Washington, DC 20310–0700,
Email: dfo.public@ncfa.ncr.gov. Desk
(703) 692–9099. Facsimile (703) 697–
8242.
DATES:
This
meeting will be held under the
provisions of the Federal Advisory
Committee Act (FACA) of 1972 (5
U.S.C., Appendix, as amended), the
Government in the Sunshine Act of
1976 (5 U.S.C. 552b, as amended), and
41 CFR 102–3.150.
Purpose of Meetings:
During the closed meeting on
Wednesday, December 16, 2015, the
Commission will review the rationale
for potential recommendations sourced
by classified data.
During the closed meeting on
Thursday, December 17, 2015, the
Commission will continue the review of
the rationale for potential
recommendations sourced by classified
data.
During the open meeting on
Thursday, December 17, 2015, the
Commission will hear subcommittee
interim reports and the public will have
an opportunity to provide remarks.
Agendas:
December 16, 2015—Closed Meeting:
The Commission will hold a closed
meeting to discuss the rationale for
proposals which the cited information
will exceed report classification. All
presentations and resulting discussion
are classified.
December 17, 2015—Closed Meeting:
The Commission will continue the
discussion on the rationale for proposals
which the cited information will exceed
report classification. All presentations
and resulting discussion are classified.
December 17, 2015—Open Meeting:
The Commission will receive interim
reports from representatives from the
various subcommittees and time will be
allotted for public comments.
SUPPLEMENTARY INFORMATION:
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]]>Agencies
[Federal Register Volume 80, Number 228 (Friday, November 27, 2015)]
[Notices]
[Pages 74088-74091]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-30129]
=======================================================================
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CONSUMER PRODUCT SAFETY COMMISSION
[CPSC Docket No. 16-C0001]
Philips Lighting North America Corporation, 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
Philips Lighting North America Corporation containing a civil penalty
in the amount of two million dollars ($2,000,000), within thirty (30)
days of service of the Commission's final Order accepting the
Settlement Agreement.\1\
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\1\ The Commission voted (4-1) to provisionally accept the
Settlement Agreement and Order regarding Philips Lighting North
America Corporation. Chairman Kaye, Commissioner Adler, Commissioner
Robinson and Commissioner Mohorovic voted to provisionally accept
the Settlement Agreement and Order. Commissioner Buerkle voted to
reject the Settlement Agreement and Order.
DATES: Any interested person may ask the Commission not to accept this
agreement or otherwise comment on its contents by filing a written
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request with the Office of the Secretary by December 14, 2015.
ADDRESSES: Persons wishing to comment on this Settlement Agreement
should send written comments to the Comment 16-C0001, Office of the
Secretary, Consumer Product Safety Commission, 4330 East West Highway,
Room 820, Bethesda, Maryland 20814-4408.
FOR FURTHER INFORMATION CONTACT: Amy S. Colvin, Attorney, Office of the
General Counsel, Division of Enforcement and Information, Consumer
Product Safety Commission, 4330 East West Highway, Bethesda, Maryland
20814-4408; telephone (301) 504-7639.
SUPPLEMENTARY INFORMATION: The text of the Agreement and Order appears
below.
Dated: November 23, 2015.
Todd A. Stevenson,
Secretary.
United States of America Consumer Product Safety Commission
In the Matter of: Philips Lighting North America Corporation
CPSC Docket No.: 16-C0001
Settlement Agreement
1. In accordance with the Consumer Product Safety Act, 15 U.S.C.
2051-2089 (``CPSA'') and 16 CFR 1118.20, Philips Lighting North America
Corporation (``Philips''), and the United States Consumer Product
Safety Commission (``Commission''), through its staff, hereby enter
into this Settlement Agreement (``Agreement''). The Agreement, and the
incorporated attached Order, resolve staff's charges set forth below.
The Parties
2. The Commission is an independent federal regulatory agency,
established pursuant to, and responsible for the
[[Page 74089]]
enforcement of, the CPSA, 15 U.S.C. 2051-2089. By executing the
Agreement, staff is acting on behalf of the Commission, pursuant to 16
CFR 1118.20(b). The Commission issues the Order under the provisions of
the CPSA.
3. Philips is a corporation, organized and existing under the laws
of the state of Delaware, with its principal corporate offices located
in Somerset, New Jersey.
Staff Charges
4. Between March 2007 and July 2011, grocery and home center stores
nationwide, online retailers, and professional electrical distributors
sold in the United States approximately 1.86 million EnergySaver (a/k/a
``Marathon'' or ``Marathon Classic'') compact fluorescent lamps
enclosed inside glass envelopes (``Lamps''). Philips manufactured the
Lamps.
5. The Lamps are a ``consumer product'' that was ``distributed in
commerce'' as those terms are defined or used in sections 3(a)(5) and
(8) of the CPSA, 15 U.S.C. 2052(a)(5) and (8). Philips is a
``manufacturer'' of the Lamps, as such term is defined in section
3(a)(11) of the CPSA, 15 U.S.C. 2052(a)(11).
6. The Lamps are defective and create an unreasonable risk of
serious injury or death because the glue that attaches the glass outer
envelope to the body of the Lamp can fail, allowing the glass envelope
to fall and strike persons and objects below. This poses a laceration
hazard to consumers.
7. Philips received numerous reports that glass envelopes separated
or were loose, including 10 reports of lacerations and seven reports of
property damage.
8. In response to these incident reports, Philips implemented
multiple design changes to remedy the defect and unreasonable risk of
serious injury or death associated with the Lamps.
9. Despite having information of a defect and the unreasonable risk
of serious injury or death associated with the Lamps, Philips did not
notify the Commission immediately of such defect or risk, as required
by sections 15(b)(3) and (4) of the CPSA, 15 U.S.C. 2064(b)(3) and (4).
10. Because the information in Philips's possession constituted
actual and presumed knowledge, Philips 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).
11. Pursuant to section 20 of the CPSA, 15 U.S.C. 2069, Philips is
subject to civil penalties for its knowing violation of section
19(a)(4) of the CPSA, 15 U.S.C. 2068(a)(4).
Response of Philips
12. Philips' settlement of this matter does not constitute an
admission that Philips knew that the Lamps were defective and created
an unreasonable risk of serious injury or death pursuant to section
15(a) of the CPSA, 15 U.S.C. 2064(a), or that Philips knowingly
violated the reporting requirements of section 15(b) of the CPSA, 15
U.S.C. 2064(b). In particular, Philips notes that the ten reported
injuries were minor, requiring no medical attention.
Agreement of the Parties
13. Under the CPSA, the Commission has jurisdiction over the matter
involving the Lamps and over Philips.
14. The parties enter into the Agreement for settlement purposes
only. The Agreement does not constitute an admission by Philips or a
determination by the Commission that Philips violated the CPSA's
reporting requirements.
15. In settlement of staff's charges as set forth in paragraphs 4
through 11 above, and to avoid the cost, distraction, delay,
uncertainty, and inconvenience of protracted litigation or other
proceedings, Philips shall pay a civil penalty in the amount of two
million dollars ($2,000,000) within thirty (30) calendar days after
receiving service of the Commission's final Order accepting the
Agreement. All payments to be made under the Agreement shall constitute
debts owing to the United States and shall be made by electronic wire
transfer to the United States via: https://www.pay.gov for allocation to
and credit against the payment obligations of Philips under this
Agreement. Failure to make such payment by the date specified in the
Commission's final Order shall constitute Default.
16. All unpaid amounts, if any, due and owing under the Agreement
shall constitute a debt due and immediately owing by Philips to the
United States, and interest shall accrue and be paid by Philips at the
federal legal rate of interest set forth at 28 U.S.C. 1961(a) and (b)
from the date of Default until all amounts due have been paid in full
(hereinafter ``Default Payment Amount'' and ``Default Interest
Balance''). Philips shall consent to a Consent Judgment in the amount
of the Default Payment Amount and Default Interest Balance; and the
United States, at its sole option, may collect the entire Default
Payment Amount and Default Interest Balance, or exercise any other
rights granted by law or in equity, including, but not limited to,
referring such matters for private collection, and Philips agrees not
to contest, and hereby waives and discharges any defenses to, any
collection action undertaken by the United States or its agents or
contractors pursuant to this paragraph. Philips shall pay the United
States all reasonable costs of collection and enforcement under this
paragraph, respectively, including reasonable attorney's fees and
expenses.
17. After staff receives this Agreement executed on behalf of
Philips, staff shall promptly submit the Agreement to the Commission
for provisional acceptance. Promptly following 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 the Agreement is
published in the Federal Register, in accordance with 16 CFR
1118.20(f).
18. This Agreement is conditioned upon, and subject to, the
Commission's final acceptance, as set forth above, and it is subject to
the provisions of 16 CFR 1118.20(h). Upon the later of: (i)
Commission's final acceptance of this Agreement and service of the
accepted Agreement upon Philips, and (ii) the date of issuance of the
final Order, this Agreement shall be in full force and effect and shall
be binding upon the parties.
19. Effective upon the later of: (i) the Commission's final
acceptance of the Agreement and service of the accepted Agreement upon
Philips, and (ii) and the date of issuance of the final Order, for good
and valuable consideration, Philips hereby expressly and irrevocably
waives and agrees not to assert any past, present, or future rights to
the following, in connection with the matter described in this
Agreement: (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 of whether Philips 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.
20. Philips shall implement, maintain, and enforce a system of
internal controls and procedures designed to ensure that, with respect
to all consumer products, as that term is defined or used in section
3(a)(5) of the CPSA, 15 U.S.C. 2052(a)(5) (``consumer products''),
imported, manufactured, distributed, or sold by Philips in the United
States:
[[Page 74090]]
a. information required to be disclosed by Philips to the
Commission is recorded, processed, and reported in accordance with
applicable law;
b. all reporting made to the Commission is timely, truthful,
complete, accurate, and in accordance with applicable law; and
c. prompt disclosure is made to Philips's management of any
significant deficiencies or material weaknesses in the design or
operation of such internal controls that are reasonably likely to
affect adversely, in any material respect, Philips's ability to record,
process, and report to the Commission in accordance with applicable
law.
21. Philips shall implement and maintain a compliance program
designed to ensure compliance with the CPSA and regulations enforced by
the Commission with respect to any consumer product imported,
manufactured, distributed, or sold by Philips in the United States, and
which, at a minimum, shall contain the following elements:
a. written standards and policies;
b. written procedures that provide for the appropriate forwarding
to compliance personnel of all information that may relate to, or
impact, CPSA compliance, including all reports and complaints involving
consumer products, whether an injury is referenced or not, and
corresponding engineering analyses and risk assessments;
c. a mechanism for confidential employee reporting of compliance-
related questions or concerns to either a compliance officer or to
another senior manager with authority to act as necessary;
d. effective communication of company compliance-related policies
and procedures regarding the CPSA to all applicable employees through
training programs or otherwise;
e. Philips senior management responsibility for CPSA compliance and
accountability for violations of the statutes and regulations enforced
by the Commission;
f. Philips board oversight of CPSA compliance; and
g. retention of all CPSA compliance-related records for at least
five (5) years, and availability of such records to staff upon
reasonable request.
22. Upon reasonable request of staff, Philips shall provide written
documentation of its improvements, processes, and controls, including,
but not limited to, the effective dates of such improvements,
processes, and controls as set forth in paragraphs 20 through 21 above.
Philips shall cooperate fully and truthfully with staff and shall make
available all information, materials, and personnel deemed necessary by
staff to evaluate Philips's compliance with the terms of the Agreement.
23. The parties acknowledge and agree that the Commission may
publicize the terms of the Agreement and the Order.
24. Philips represents that the Agreement: (i) is entered into
freely and voluntarily, without any degree of duress or compulsion
whatsoever; (ii) has been duly authorized; and (iii) constitutes the
valid and binding obligation of Philips, enforceable against Philips in
accordance with its terms. Philips will not directly or indirectly
receive any reimbursement, indemnification, insurance-related payment,
or other payment in connection with the civil penalty to be paid by
Philips pursuant to the Agreement and Order. The individuals signing
the Agreement on behalf of Philips represent and warrant that they are
duly authorized by Philips to execute the Agreement.
25. The signatories represent that they are authorized to execute
this Agreement.
26. The Agreement is governed by the laws of the United States.
27. The Agreement and the Order shall apply to, and be binding
upon, Philips and each of its successors, transferees, and assigns, and
a violation of the Agreement or Order may subject Philips, and each of
its successors, transferees, and assigns, to appropriate legal action.
28. The Agreement and the Order constitute the complete agreement
between the parties on the subject matter contained therein.
29. 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. For purposes of construction, the
Agreement shall be deemed to have been drafted by both of the parties
and shall not, therefore, be construed against any party for that
reason in any subsequent dispute.
30. The Agreement may not be waived, amended, modified, or
otherwise altered, except as in accordance with the provisions of 16
CFR 1118.20(h). The Agreement may be executed in counterparts.
31. 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 Philips agree in writing that severing the provision materially
affects the purpose of the Agreement and the Order.
Philips Lighting North America Corporation
Dated: November 9, 2015
By:
Michael L. Manning-----------------------------------------------------
Vice President and General Counsel
Philips Lighting North America Corporation
3000 Minuteman Road
Andover, MA 01810
Dated: November 9, 2015
By:
Kathleen M. Sanzo------------------------------------------------------
Counsel to Philips Lighting North America Corporation
Morgan, Lewis & Bockius LLP
1111 Pennsylvania Avenue NW
Washington, DC 20004
U.S. Consumer Product Safety Commission
Stephanie Tsacoumis
General Counsel
Mary T. Boyle
Deputy General Counsel
Melissa V. Hampshire
Assistant General Counsel
Dated: November 10, 2015
By:
Amy S. Colvin----------------------------------------------------------
Attorney
Division of Enforcement and Information
Office of the General Counsel
United States of America Consumer Product Safety Commission
In the Matter of: Philips Lighting North America Corporation
CPSC Docket No.: 16-C0001
Order
Upon consideration of the Settlement Agreement entered into between
Philips Lighting North America Corporation (``Philips''), and the U.S.
Consumer Product Safety Commission (``Commission''), and the Commission
having jurisdiction over the subject matter and over Philips, 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 Philips shall comply with the terms of the
Settlement Agreement and shall pay a civil penalty in the amount of two
million dollars ($2,000,000) within thirty (30) days after service of
the Commission's final Order accepting the Settlement Agreement. The
payment shall be made by electronic wire transfer to the Commission
via: https://www.pay.gov. Upon the failure of Philips to make the
foregoing payment when due, interest on the unpaid
[[Page 74091]]
amount shall accrue and be paid by Philips at the federal legal rate of
interest set forth at 28 U.S.C. 1961(a) and (b). If Philips fails to
make such payment or to comply in full with any other provision of the
Settlement Agreement, such conduct will be considered a violation of
the Settlement Agreement and Order.
Provisionally accepted and provisional Order issued on the 23th day
of November, 2015.
By Order of the Commission:
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Todd A. Stevenson, Secretary,
U.S. Consumer Product Safety Commission
[FR Doc. 2015-30129 Filed 11-25-15; 8:45 am]
BILLING CODE 6355-01-P
