Whirlpool Corporation, 58561-58564 [2023-18460]
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Federal Register / Vol. 88, No. 165 / Monday, August 28, 2023 / Notices
Other business will be discussed as
necessary.
Although non-emergency issues not
contained on the agenda may come
before this Council for discussion, those
issues may not be the subject of formal
action during this meeting. Council
action will be restricted to those issues
specifically listed in this notice and any
issues arising after publication of this
notice that require emergency action
under section 305(c) of the MagnusonStevens Act, provided the public has
been notified of the Council’s intent to
take final action to address the
emergency. The public also should be
aware that the meeting will be recorded.
Consistent with 16 U.S.C. 1852, a copy
of the recording is available upon
request.
ADDRESSES:
Special Accommodations
This meeting is physically accessible
to people with disabilities. Requests for
sign language interpretation or other
auxiliary aids should be directed to
Thomas A. Nies, Executive Director, at
(978) 465–0492, at least 5 days prior to
the meeting date.
Authority: 16 U.S.C. 1801 et seq.
Dated: August 23, 2023.
Alberta E. Mills,
Secretary.
Dated: August 22, 2023.
Rey Israel Marquez,
Acting Deputy Director, Office of Sustainable
Fisheries, National Marine Fisheries Service.
[FR Doc. 2023–18434 Filed 8–25–23; 8:45 am]
BILLING CODE 3510–22–P
CONSUMER PRODUCT SAFETY
COMMISSION
[CPSC Docket No. 23–C0003]
Whirlpool Corporation
Consumer Product Safety
Commission.
ACTION: Notice.
AGENCY:
The Commission publishes in
the Federal Register any settlement that
it provisionally accepts under the
Consumer Product Safety Act.
Published below is a provisionally
accepted Settlement Agreement with
Whirlpool Corporation containing a
civil penalty in the amount of
$11,500,000, subject to the terms and
conditions of the Settlement Agreement.
The Commission voted unanimously (4–
0) to provisionally accept the proposed
Settlement Agreement and Order
pertaining to Whirlpool Corporation.
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 September
12, 2023.
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SUMMARY:
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Persons wishing to
comment on this Settlement Agreement
should send written comments to
Comment 23–C0003, Office of the
Secretary, Consumer Product Safety
Commission, 4330 East West Highway,
Bethesda, MD 20814; telephone: (240)
863–8938 (mobile), (301) 504–7479
(office); email: cpsc-os@cpsc.gov.
FOR FURTHER INFORMATION CONTACT:
Joseph Kessler, Trial Attorney, Division
of Enforcement and Litigation, Office of
Compliance and Field Operations,
Consumer Product Safety Commission,
4330 East West Highway, Bethesda,
Maryland 20814; jkessler@cpsc.gov,
301–504–7602 (office).
SUPPLEMENTARY INFORMATION: The text of
the Settlement Agreement and Order
appear below.
58561
KCES956HBL, WCE97US0HS,
WCE97US0HB, WCE97US6HS,
WCE97US6HB, JEC4430HS, JEC4430HB,
JEC4536HS, JEC4536HB, JEC4424HB,
JED4430GB, JED4430GS, JED4536GB,
and JED4536GS (‘‘Subject Products’’).
5. The Subject Products are
‘‘consumer products’’ that were
‘‘manufactured’’ and ‘‘distribut[ed] in
commerce,’’ as those terms are defined
or used in sections 3(a)(5), (7), and (10)
of the CPSA, 15 U.S.C. 2052(a)(5), (8),
and (10). Whirlpool is a ‘‘manufacturer’’
of the Subject Products, as such term is
defined in section 3(a)(11) of the CPSA,
15 U.S.C. 2052(a)(11).
The Parties
2. The Commission is an independent
federal regulatory agency, established
pursuant to, and responsible for, the
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. Whirlpool is a corporation,
organized and existing under the laws of
the state of Delaware, with its principal
place of business in Benton Harbor,
Michigan.
Violation of CPSA Section 19(a)(4)
6. The Subject Products contain a
defect which could create a substantial
product hazard or create an
unreasonable risk of serious injury or
death because one or more cooktop
surface elements can turn on by
themselves, posing a fire and burn
hazard.
7. Beginning in November 2017 and
continuing into 2019, Whirlpool
received numerous reports from
consumers that cooktop surface
elements turned on by themselves.
8. Between 2007 and 2015, CPSC had
publicly announced at least five recalls
involving gas or electric cooktops
manufactured by other firms reportedly
turning on by themselves or not turning
off, with each recall announcement
warning that the defect presented a fire
or burn hazard.
9. Despite possessing information that
reasonably supported the conclusion
that the Subject Products contained a
defect that could create a substantial
product hazard or created an
unreasonable risk of serious injury or
death, Whirlpool did not immediately
report to the Commission.
10. By the time Whirlpool filed an
initial report with the Commission
under 15 U.S.C. 2064(b) concerning the
Subject Products, the Firm had received
at least 157 reports of Subject Products
turning on by themselves, including 14
reports of property damage, four reports
of objects igniting, and two reports of
minor burns.
11. The Commission and Whirlpool
jointly announced the recall of the
Subject Products on August 28, 2019.
Staff Charges
4. Between December 2016 and July
2019, Whirlpool manufactured and
distributed in the United States
approximately 20,000 units of various
KitchenAid, Whirlpool, and JennAir
electric radiant heat glass cooktops,
model numbers KCES950HSS,
KCES950HBL, KCES956HSS,
Failure to Timely Report
12. Despite having information
reasonably supporting the conclusion
that the Subject Products contained a
defect or created an unreasonable risk of
serious injury or death, Whirlpool did
not notify the Commission immediately
of such defect or risk, as required by
section 15(b)(4) of the CPSA, 15 U.S.C.
United States of America
Consumer Product Safety Commission
In the Matter of: Whirlpool Corporation
CPSC Docket No.: 23–C0003
Settlement Agreement
1. In accordance with the Consumer
Product Safety Act, 15 U.S.C. 2051–
2089 (‘‘CPSA’’), and 16 CFR 1118.20,
Whirlpool Corporation (‘‘Whirlpool’’ or
the ‘‘Firm’’), 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.
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Federal Register / Vol. 88, No. 165 / Monday, August 28, 2023 / Notices
2064(b)(4), in violation of section
19(a)(4) of the CPSA, 15 U.S.C.
2068(a)(4).
13. Because the information in
Whirlpool’s possession about the
Subject Products constituted actual and
presumed knowledge, Whirlpool
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).
14. Pursuant to section 20 of the
CPSA, 15 U.S.C. 2069, Whirlpool 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 Whirlpool
15. This agreement does not
constitute an admission by Whirlpool to
the staff’s charges as set forth in
paragraphs 4 through 14 above,
including without limitation that the
Subject Products contained a defect that
could create a substantial product
hazard or created an unreasonable risk
of serious injury or death; that
Whirlpool failed to notify the
Commission in a timely matter in
accordance with section 15(b) of the
CPSA, 15 U.S.C. 2064(b); and that
Whirlpool 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).
16. Whirlpool enters into this
Agreement to settle this matter and to
avoid the cost, distraction, delay,
uncertainty, and inconvenience of
protracted litigation or other
proceedings. Whirlpool does not admit
that it violated the CPSA or any other
law, and Whirlpool’s willingness to
enter into this Agreement and Order
does not constitute, nor is it evidence of,
an admission by Whirlpool of liability
or violation of any law.
17. At all relevant times, Whirlpool
has had a product safety compliance
program, both to help ensure the safety
of its products before they are marketed
and to identify, monitor and evaluate
potential product safety issues on an
ongoing basis. Whirlpool maintains that
upon identifying the reported issue,
Whirlpool promptly notified CPSC and
voluntarily recalled the Subject
Products pursuant to CPSC’s Fast Track
recall program.
Agreement of the Parties
18. Under the CPSA, the Commission
has jurisdiction over the matter
involving the Subject Products and over
Whirlpool.
19. The parties enter into the
Agreement for settlement purposes only.
The Agreement does not constitute an
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admission by Whirlpool or a
determination by the Commission that
Whirlpool violated the CPSA.
20. In settlement of staff’s charges,
Whirlpool shall pay a civil penalty in
the amount of eleven million, five
hundred thousand dollars ($11,500,000)
(‘‘Total Civil Penalty Amount’’). The
$11,500,000 payment shall be paid
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 Whirlpool under
this Agreement. Failure to make such
payment by the date specified in the
Commission’s final Order shall
constitute Default.
21. The Commission or the United
States may seek enforcement for any
breach of, or any failure to comply with,
any provision of this Agreement and
Order in United States District Court, to
seek relief including, but not limited to,
collecting amounts due.
22. All unpaid amounts, if any, due
and owing under the Agreement, shall
constitute a debt due and immediately
owing by Whirlpool to the United
States, and interest shall accrue and be
paid by Whirlpool 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’’). Whirlpool 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
Whirlpool 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. Whirlpool shall pay the
United States all reasonable costs of
collection and enforcement under this
paragraph, respectively, including
reasonable attorney’s fees and expenses.
23. After staff receives this Agreement
executed on behalf of Whirlpool, 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
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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).
24. 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 Whirlpool, 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.
25. Effective upon the later of: (1) the
Commission’s final acceptance of the
Agreement and service of the accepted
Agreement upon Whirlpool and (2) and
the date of issuance of the final Order,
for good and valuable consideration,
Whirlpool 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 Whirlpool
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.
26. Whirlpool shall maintain its
compliance program (‘‘Compliance
Program’’) designed to ensure
compliance with the CPSA (‘‘applicable
law’’) with respect to any consumer
product imported, manufactured,
distributed or sold by Whirlpool, which
shall contain the following elements:
(i) written standards, policies, and
procedures, including those designed to
ensure that information that may relate
to or impact CPSA compliance are
conveyed effectively to personnel
responsible for CPSA compliance,
whether or not an injury has been
reported;
(ii) procedures and systems for
tracking and reviewing claims,
including warranty claims, and reports
for safety concerns and for
implementing corrective and preventive
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actions when compliance deficiencies
or violations are identified;
(iii) procedures requiring that
information required to be disclosed by
Whirlpool to the Commission is
recorded, processed, and reported in
accordance with applicable law;
(iv) procedures requiring that all
reporting made to the Commission is
timely, truthful, complete, accurate, and
in accordance with applicable law;
(v) procedures requiring that prompt
disclosure is made to Whirlpool’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,
Whirlpool’s ability to record, process
and report to the Commission in
accordance with applicable law;
(vi) mechanisms to effectively
communicate to all applicable
Whirlpool employees, through training
programs or other means, compliancerelated company policies and
procedures to prevent violations of the
CPSA;
(vii) 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;
(viii) Whirlpool’s senior management
responsibility for, and general board
oversight of, CPSA compliance,
including enhancements to the Firm’s
compliance program to ensure that
incident and injury data are reviewed
and analyzed for purposes of CPSA
Section 15(b) reporting;
(ix) for at least three (3) years, an
annual internal audit of the
effectiveness of policies, procedures,
systems, and training related to CPSA
compliance that evaluates opportunities
for improvement, deficiencies or
weaknesses, and the Firm’s overall
culture of compliance; and
(x) retention of all CPSA compliancerelated records for at least five (5) years,
and availability of such records to CPSC
staff upon request.
27. Whirlpool shall submit a report
under CPSA Section 16(b), sworn to
under penalty of perjury:
(i) describing in detail its compliance
program and internal controls and the
actions Whirlpool has taken to comply
with each subparagraph of paragraph
26;
(ii) affirming that during the reporting
period, Whirlpool has reviewed its
compliance program and internal
controls, including the actions
referenced in subparagraph (i) of this
paragraph, for effectiveness, and that it
complies with each subparagraph of
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15:55 Aug 25, 2023
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paragraph 26, or describing in detail any
non-compliance with any such
subparagraph; and
(iii) identifying the results of the
annual internal audit referenced in
paragraph 26(ix) and any changes or
modifications made during the reporting
period to Whirlpool’s compliance
program or internal controls to ensure
compliance with the terms of the CPSA
and, in particular, the requirements of
CPSA Section 15 related to timely
reporting.
Such reports shall be submitted
annually to the Director, Office of
Compliance, Division of Enforcement
and Litigation, for a period of three (3)
years. The first report shall be submitted
30 days after the close of the first 12month reporting period, which begins
on the date of the Commission’s Final
Order of Acceptance of the Agreement,
and successive reports shall be due
annually on the same date thereafter.
Whirlpool is aware of the Commission’s
position that failure to make such timely
and accurate reports as required by this
Agreement and Order may, without
limitation, constitute a violation of
Section 19(a)(3) of the CPSA and may
subject the Firm to enforcement under
Section 22 of the CPSA.
28. Notwithstanding and in addition
to the above, upon request of staff,
Whirlpool shall promptly provide
written documentation of any changes
or modifications to its compliance
program or internal controls and
procedures, including the effective dates
of the changes or modifications thereto.
Whirlpool shall cooperate fully and
truthfully with staff and shall make
available all non-privileged information
and materials and personnel deemed
necessary by staff to evaluate
Whirlpool’s compliance with the terms
of the Agreement.
29. The parties acknowledge and
agree that the Commission may
publicize the terms of the Agreement
and the Order.
30. Whirlpool 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 Whirlpool, enforceable
against Whirlpool in accordance with its
terms. The individuals signing the
Agreement on behalf of Whirlpool
represent and warrant that they are duly
authorized by Whirlpool to execute the
Agreement.
31. The signatories represent that they
are authorized to execute this
Agreement.
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58563
32. The Agreement is governed by the
laws of the United States.
33. The Agreement and the Order
shall apply to, and be binding upon,
Whirlpool and each of its parents,
successors, transferees, and assigns; and
a violation of the Agreement or Order
may subject Whirlpool, and each of its
parents, successors, transferees, and
assigns, to appropriate legal action.
34. The Agreement, any attachments,
and the Order constitute the complete
agreement between the parties on the
subject matter contained therein.
35. 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.
36. 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.
37. 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 Whirlpool
agree in writing that severing the
provision materially affects the purpose
of the Agreement and the Order.
(Signatures on next page)
Whirlpool Corporation
By: /s/ lllllllllllllllll
Dated: August 7, 2023.
Nathan A. Mouw,
Whirlpool Corporation, Senior Director—
Global Product Safety and Regulatory
Affairs.
Dated: August 7, 2023.
By: /s/ lllllllllllllllll
Eric Rubel,
Arnold & Porter Kaye Scholer LLP, Counsel
to Whirlpool Corporation.
U.S. Consumer Product Safety Commission
Mary B. Murphy, Director,
Howard Tarnoff, Deputy Director, Division of
Enforcement and Litigation.
Dated: August 8, 2023.
By: /s/ lllllllllllllllll
Joseph Kessler,
Trial Attorney, Division of Enforcement and
Litigation, Office of Compliance and Field
Operations.
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United States of America
Consumer Product Safety Commission
In the Matter of: WHIRLPOOL
CORPORATION
CPSC Docket No.: 23–C0003
Order
Upon consideration of the Settlement
Agreement entered into between
Whirlpool Corporation (‘‘Whirlpool’’)
and the U.S. Consumer Product Safety
Commission (‘‘Commission’’ or
‘‘CPSC’’), and the Commission having
jurisdiction over the subject matter and
over Whirlpool, and it appearing that
the Settlement Agreement is in the
public interest, the Settlement
Agreement is incorporated by reference
and it is:
Provisionally accepted and this Order
issued on the 22nd day of August, 2023.
By order of the commission.
Alberta E. Mills, Secretary,
U.S. Consumer Product Safety Commission.
[FR Doc. 2023–18460 Filed 8–25–23; 8:45 am]
BILLING CODE 6355–01–P
CONSUMER PRODUCT SAFETY
COMMISSION
[Docket No. CPSC–2010–0055]
Agency Information Collection
Activities; Submission for OMB
Review; Comment Request; Standard
for the Flammability of Mattresses and
Mattress Pads and Standard for the
Flammability (Open Flame) of Mattress
Sets
Consumer Product Safety
Commission.
ACTION: Notice.
AGENCY:
As required by the Paperwork
Reduction Act of 1995, the Consumer
Product Safety Commission (CPSC or
Commission) announces that the
Commission has submitted to the Office
of Management and Budget (OMB) a
request for extension of approval for
information collection requirements set
forth in the Standard for the
Flammability of Mattresses and Mattress
Pads, and the Standard for the
Flammability (Open Flame) of Mattress
Sets, approved previously under OMB
control number 3041–0014. On June 20,
2023, CPSC published a notice in the
Federal Register to announce the
agency’s intention to seek extension of
approval of the collection of
information. The Commission has
received no comments. Therefore, by
publication of this notice, the
Commission announces that CPSC has
submitted to the OMB a request for
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extension of approval of that collection
of information, without change.
DATES: Submit written or electronic
comments not later than September 27,
2023.
ADDRESSES: Submit comments about
this request by email:
OIRA_submission@omb.eop.gov or fax:
202–395–6881. Comments by mail
should be sent to the Office of
Information and Regulatory Affairs,
Attn: OMB Desk Officer for the CPSC,
Office of Management and Budget,
Room 10235, 725 17th Street NW,
Washington, DC 20503. Comments by
mail should be sent to the Office of
Information and Regulatory Affairs,
Attn: OMB Desk Officer for the CPSC,
Office of Management and Budget,
Room 10235, 725 17th Street NW,
Washington, DC 20503. Written
comments that are sent to OMB also
should be submitted electronically at:
https://www.regulations.gov, under
Docket No. CPSC–2010–0055.
FOR FURTHER INFORMATION CONTACT:
Cynthia Gillham, Consumer Product
Safety Commission, 4330 East West
Highway, Bethesda, MD 20814; (301)
504–7791, or by email to: cgillham@
cpsc.gov.
SUPPLEMENTARY INFORMATION:
A. Background
In 1972, the Commission promulgated
under section 4 of the Flammable
Fabrics Act (FFA), 15 U.S.C. 1193, the
Standard for the Flammability of
Mattresses and Mattresses Pads, 16 CFR
part 1632 (part 1632), to reduce the
unreasonable risk of burn injuries and
deaths from fires associated with
mattresses and mattress pads. 49 FR
19796. Part 1632 prescribes
requirements to test whether a mattress
or mattress pad will resist ignition from
a smoldering cigarette. Part 1632 also
requires manufacturers to perform
successfully prototype tests of each
combination of materials and
construction methods used to produce
their mattresses or mattress pads.
Manufacturers and importers must
maintain the records and test results
specified under the standard for three
years.
Also, to reduce deaths and injuries
related to mattress fires, particularly
those ignited by open-flame sources,
such as lighters, candles, and matches,
the Commission promulgated the
Standard for the Flammability (Open
Flame) of Mattress Sets, 16 CFR part
1633 (part 1633), under section 4 of the
FFA. Part 1633 requires manufacturers
to maintain certain records to document
compliance with the standard,
including maintaining records
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concerning prototype testing, pooling,
and confirmation testing, and quality
assurance procedures and any
associated testing. The required records
must be maintained for as long as
mattress sets based on the prototype are
in production and be retained for three
years thereafter.
OMB previously approved the
collection of information for parts 1632
and 1633 under control number 3041–
0014, with an expiration date of August
31, 2023. On June 20, 2023, the
Commission published a notice in the
Federal Register (88 FR 39832), to
announce the agency’s intention to seek
extension of approval of the collection
of information for control number 3041–
0014. The Commission has received no
comments. Therefore, by publication of
this notice, the Commission announces
that CPSC has submitted to the OMB a
request for extension of approval of that
collection of information, without
change.
B. Burden Hours
Part 1632: Commission staff estimates
403 respondents produce mattresses,
and that each respondent will spend 26
hours for testing and record keeping
annually, for a total of 10,478 hours (403
establishments × 26 hours = 10,478).
The hourly compensation for the time
required for record keeping is $72.68
(for management, professional, and
related occupations in goods-producing
industries, Bureau of Labor Statistics,
March 2023). Staff’s estimated
annualized cost to respondents is
approximately $761,541 (10,478 hours ×
$72.68 per hour).
Part 1633: Part 1633 requires detailed
documentation of prototype
identification and testing records, model
and prototype specifications, inputs
used, name and location of suppliers,
and confirmation of test records, if
establishments choose to pool a
prototype. This documentation is in
addition to documentation already
conducted by mattress manufacturers to
meet part 1632. Staff again estimates
that there are 403 respondents.
Using these estimates, including
records of reported burden hours since
2017, Commission staff estimates the
recordkeeping requirements to require
about 4 hours and 44 minutes per
establishment, per qualified prototype.
Most mattress manufacturers base their
complying production on 15 to 20
prototypes, although some larger
manufacturers reportedly are producing
mattresses based on more than 100
prototypes. Assuming that
establishments qualify their production
with an average of 20 different qualified
prototypes, recordkeeping time is about
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]]>Agencies
[Federal Register Volume 88, Number 165 (Monday, August 28, 2023)]
[Notices]
[Pages 58561-58564]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-18460]
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CONSUMER PRODUCT SAFETY COMMISSION
[CPSC Docket No. 23-C0003]
Whirlpool Corporation
AGENCY: Consumer Product Safety Commission.
ACTION: Notice.
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SUMMARY: The Commission publishes in the Federal Register any
settlement that it provisionally accepts under the Consumer Product
Safety Act. Published below is a provisionally accepted Settlement
Agreement with Whirlpool Corporation containing a civil penalty in the
amount of $11,500,000, subject to the terms and conditions of the
Settlement Agreement. The Commission voted unanimously (4-0) to
provisionally accept the proposed Settlement Agreement and Order
pertaining to Whirlpool Corporation.
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 September 12, 2023.
ADDRESSES: Persons wishing to comment on this Settlement Agreement
should send written comments to Comment 23-C0003, Office of the
Secretary, Consumer Product Safety Commission, 4330 East West Highway,
Bethesda, MD 20814; telephone: (240) 863-8938 (mobile), (301) 504-7479
(office); email: [email protected].
FOR FURTHER INFORMATION CONTACT: Joseph Kessler, Trial Attorney,
Division of Enforcement and Litigation, Office of Compliance and Field
Operations, Consumer Product Safety Commission, 4330 East West Highway,
Bethesda, Maryland 20814; [email protected], 301-504-7602 (office).
SUPPLEMENTARY INFORMATION: The text of the Settlement Agreement and
Order appear below.
Dated: August 23, 2023.
Alberta E. Mills,
Secretary.
United States of America
Consumer Product Safety Commission
In the Matter of: Whirlpool Corporation
CPSC Docket No.: 23-C0003
Settlement Agreement
1. In accordance with the Consumer Product Safety Act, 15 U.S.C.
2051-2089 (``CPSA''), and 16 CFR 1118.20, Whirlpool Corporation
(``Whirlpool'' or the ``Firm''), 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 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. Whirlpool is a corporation, organized and existing under the
laws of the state of Delaware, with its principal place of business in
Benton Harbor, Michigan.
Staff Charges
4. Between December 2016 and July 2019, Whirlpool manufactured and
distributed in the United States approximately 20,000 units of various
KitchenAid, Whirlpool, and JennAir electric radiant heat glass
cooktops, model numbers KCES950HSS, KCES950HBL, KCES956HSS, KCES956HBL,
WCE97US0HS, WCE97US0HB, WCE97US6HS, WCE97US6HB, JEC4430HS, JEC4430HB,
JEC4536HS, JEC4536HB, JEC4424HB, JED4430GB, JED4430GS, JED4536GB, and
JED4536GS (``Subject Products'').
5. The Subject Products are ``consumer products'' that were
``manufactured'' and ``distribut[ed] in commerce,'' as those terms are
defined or used in sections 3(a)(5), (7), and (10) of the CPSA, 15
U.S.C. 2052(a)(5), (8), and (10). Whirlpool is a ``manufacturer'' of
the Subject Products, as such term is defined in section 3(a)(11) of
the CPSA, 15 U.S.C. 2052(a)(11).
Violation of CPSA Section 19(a)(4)
6. The Subject Products contain a defect which could create a
substantial product hazard or create an unreasonable risk of serious
injury or death because one or more cooktop surface elements can turn
on by themselves, posing a fire and burn hazard.
7. Beginning in November 2017 and continuing into 2019, Whirlpool
received numerous reports from consumers that cooktop surface elements
turned on by themselves.
8. Between 2007 and 2015, CPSC had publicly announced at least five
recalls involving gas or electric cooktops manufactured by other firms
reportedly turning on by themselves or not turning off, with each
recall announcement warning that the defect presented a fire or burn
hazard.
9. Despite possessing information that reasonably supported the
conclusion that the Subject Products contained a defect that could
create a substantial product hazard or created an unreasonable risk of
serious injury or death, Whirlpool did not immediately report to the
Commission.
10. By the time Whirlpool filed an initial report with the
Commission under 15 U.S.C. 2064(b) concerning the Subject Products, the
Firm had received at least 157 reports of Subject Products turning on
by themselves, including 14 reports of property damage, four reports of
objects igniting, and two reports of minor burns.
11. The Commission and Whirlpool jointly announced the recall of
the Subject Products on August 28, 2019.
Failure to Timely Report
12. Despite having information reasonably supporting the conclusion
that the Subject Products contained a defect or created an unreasonable
risk of serious injury or death, Whirlpool did not notify the
Commission immediately of such defect or risk, as required by section
15(b)(4) of the CPSA, 15 U.S.C.
[[Page 58562]]
2064(b)(4), in violation of section 19(a)(4) of the CPSA, 15 U.S.C.
2068(a)(4).
13. Because the information in Whirlpool's possession about the
Subject Products constituted actual and presumed knowledge, Whirlpool
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).
14. Pursuant to section 20 of the CPSA, 15 U.S.C. 2069, Whirlpool
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 Whirlpool
15. This agreement does not constitute an admission by Whirlpool to
the staff's charges as set forth in paragraphs 4 through 14 above,
including without limitation that the Subject Products contained a
defect that could create a substantial product hazard or created an
unreasonable risk of serious injury or death; that Whirlpool failed to
notify the Commission in a timely matter in accordance with section
15(b) of the CPSA, 15 U.S.C. 2064(b); and that Whirlpool 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).
16. Whirlpool enters into this Agreement to settle this matter and
to avoid the cost, distraction, delay, uncertainty, and inconvenience
of protracted litigation or other proceedings. Whirlpool does not admit
that it violated the CPSA or any other law, and Whirlpool's willingness
to enter into this Agreement and Order does not constitute, nor is it
evidence of, an admission by Whirlpool of liability or violation of any
law.
17. At all relevant times, Whirlpool has had a product safety
compliance program, both to help ensure the safety of its products
before they are marketed and to identify, monitor and evaluate
potential product safety issues on an ongoing basis. Whirlpool
maintains that upon identifying the reported issue, Whirlpool promptly
notified CPSC and voluntarily recalled the Subject Products pursuant to
CPSC's Fast Track recall program.
Agreement of the Parties
18. Under the CPSA, the Commission has jurisdiction over the matter
involving the Subject Products and over Whirlpool.
19. The parties enter into the Agreement for settlement purposes
only. The Agreement does not constitute an admission by Whirlpool or a
determination by the Commission that Whirlpool violated the CPSA.
20. In settlement of staff's charges, Whirlpool shall pay a civil
penalty in the amount of eleven million, five hundred thousand dollars
($11,500,000) (``Total Civil Penalty Amount''). The $11,500,000 payment
shall be paid 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 Whirlpool under this Agreement.
Failure to make such payment by the date specified in the Commission's
final Order shall constitute Default.
21. The Commission or the United States may seek enforcement for
any breach of, or any failure to comply with, any provision of this
Agreement and Order in United States District Court, to seek relief
including, but not limited to, collecting amounts due.
22. All unpaid amounts, if any, due and owing under the Agreement,
shall constitute a debt due and immediately owing by Whirlpool to the
United States, and interest shall accrue and be paid by Whirlpool 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''). Whirlpool 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 Whirlpool 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. Whirlpool shall pay the United
States all reasonable costs of collection and enforcement under this
paragraph, respectively, including reasonable attorney's fees and
expenses.
23. After staff receives this Agreement executed on behalf of
Whirlpool, 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).
24. 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 Whirlpool, 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.
25. Effective upon the later of: (1) the Commission's final
acceptance of the Agreement and service of the accepted Agreement upon
Whirlpool and (2) and the date of issuance of the final Order, for good
and valuable consideration, Whirlpool 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 Whirlpool 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.
26. Whirlpool shall maintain its compliance program (``Compliance
Program'') designed to ensure compliance with the CPSA (``applicable
law'') with respect to any consumer product imported, manufactured,
distributed or sold by Whirlpool, which shall contain the following
elements:
(i) written standards, policies, and procedures, including those
designed to ensure that information that may relate to or impact CPSA
compliance are conveyed effectively to personnel responsible for CPSA
compliance, whether or not an injury has been reported;
(ii) procedures and systems for tracking and reviewing claims,
including warranty claims, and reports for safety concerns and for
implementing corrective and preventive
[[Page 58563]]
actions when compliance deficiencies or violations are identified;
(iii) procedures requiring that information required to be
disclosed by Whirlpool to the Commission is recorded, processed, and
reported in accordance with applicable law;
(iv) procedures requiring that all reporting made to the Commission
is timely, truthful, complete, accurate, and in accordance with
applicable law;
(v) procedures requiring that prompt disclosure is made to
Whirlpool'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,
Whirlpool's ability to record, process and report to the Commission in
accordance with applicable law;
(vi) mechanisms to effectively communicate to all applicable
Whirlpool employees, through training programs or other means,
compliance-related company policies and procedures to prevent
violations of the CPSA;
(vii) 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;
(viii) Whirlpool's senior management responsibility for, and
general board oversight of, CPSA compliance, including enhancements to
the Firm's compliance program to ensure that incident and injury data
are reviewed and analyzed for purposes of CPSA Section 15(b) reporting;
(ix) for at least three (3) years, an annual internal audit of the
effectiveness of policies, procedures, systems, and training related to
CPSA compliance that evaluates opportunities for improvement,
deficiencies or weaknesses, and the Firm's overall culture of
compliance; and
(x) retention of all CPSA compliance-related records for at least
five (5) years, and availability of such records to CPSC staff upon
request.
27. Whirlpool shall submit a report under CPSA Section 16(b), sworn
to under penalty of perjury:
(i) describing in detail its compliance program and internal
controls and the actions Whirlpool has taken to comply with each
subparagraph of paragraph 26;
(ii) affirming that during the reporting period, Whirlpool has
reviewed its compliance program and internal controls, including the
actions referenced in subparagraph (i) of this paragraph, for
effectiveness, and that it complies with each subparagraph of paragraph
26, or describing in detail any non-compliance with any such
subparagraph; and
(iii) identifying the results of the annual internal audit
referenced in paragraph 26(ix) and any changes or modifications made
during the reporting period to Whirlpool's compliance program or
internal controls to ensure compliance with the terms of the CPSA and,
in particular, the requirements of CPSA Section 15 related to timely
reporting.
Such reports shall be submitted annually to the Director, Office of
Compliance, Division of Enforcement and Litigation, for a period of
three (3) years. The first report shall be submitted 30 days after the
close of the first 12-month reporting period, which begins on the date
of the Commission's Final Order of Acceptance of the Agreement, and
successive reports shall be due annually on the same date thereafter.
Whirlpool is aware of the Commission's position that failure to make
such timely and accurate reports as required by this Agreement and
Order may, without limitation, constitute a violation of Section
19(a)(3) of the CPSA and may subject the Firm to enforcement under
Section 22 of the CPSA.
28. Notwithstanding and in addition to the above, upon request of
staff, Whirlpool shall promptly provide written documentation of any
changes or modifications to its compliance program or internal controls
and procedures, including the effective dates of the changes or
modifications thereto. Whirlpool shall cooperate fully and truthfully
with staff and shall make available all non-privileged information and
materials and personnel deemed necessary by staff to evaluate
Whirlpool's compliance with the terms of the Agreement.
29. The parties acknowledge and agree that the Commission may
publicize the terms of the Agreement and the Order.
30. Whirlpool 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 Whirlpool,
enforceable against Whirlpool in accordance with its terms. The
individuals signing the Agreement on behalf of Whirlpool represent and
warrant that they are duly authorized by Whirlpool to execute the
Agreement.
31. The signatories represent that they are authorized to execute
this Agreement.
32. The Agreement is governed by the laws of the United States.
33. The Agreement and the Order shall apply to, and be binding
upon, Whirlpool and each of its parents, successors, transferees, and
assigns; and a violation of the Agreement or Order may subject
Whirlpool, and each of its parents, successors, transferees, and
assigns, to appropriate legal action.
34. The Agreement, any attachments, and the Order constitute the
complete agreement between the parties on the subject matter contained
therein.
35. 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.
36. 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.
37. 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 Whirlpool agree in writing that severing the provision materially
affects the purpose of the Agreement and the Order.
(Signatures on next page)
Whirlpool Corporation
By: /s/----------------------------------------------------------------
Dated: August 7, 2023.
Nathan A. Mouw,
Whirlpool Corporation, Senior Director--Global Product Safety and
Regulatory Affairs.
Dated: August 7, 2023.
By: /s/----------------------------------------------------------------
Eric Rubel,
Arnold & Porter Kaye Scholer LLP, Counsel to Whirlpool Corporation.
U.S. Consumer Product Safety Commission
Mary B. Murphy, Director,
Howard Tarnoff, Deputy Director, Division of Enforcement and
Litigation.
Dated: August 8, 2023.
By: /s/----------------------------------------------------------------
Joseph Kessler,
Trial Attorney, Division of Enforcement and Litigation, Office of
Compliance and Field Operations.
[[Page 58564]]
United States of America
Consumer Product Safety Commission
In the Matter of: WHIRLPOOL CORPORATION
CPSC Docket No.: 23-C0003
Order
Upon consideration of the Settlement Agreement entered into between
Whirlpool Corporation (``Whirlpool'') and the U.S. Consumer Product
Safety Commission (``Commission'' or ``CPSC''), and the Commission
having jurisdiction over the subject matter and over Whirlpool, and it
appearing that the Settlement Agreement is in the public interest, the
Settlement Agreement is incorporated by reference and it is:
Provisionally accepted and this Order issued on the 22nd day of
August, 2023.
By order of the commission.
Alberta E. Mills, Secretary,
U.S. Consumer Product Safety Commission.
[FR Doc. 2023-18460 Filed 8-25-23; 8:45 am]
BILLING CODE 6355-01-P
