Notice2023-18460
Whirlpool Corporation
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
August 28, 2023
Issuing agencies
Consumer Product Safety Commission
Abstract
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.
Full Text
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<title>Federal Register, Volume 88 Issue 165 (Monday, August 28, 2023)</title>
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[Federal Register Volume 88, Number 165 (Monday, August 28, 2023)]
[Notices]
[Pages 58561-58564]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[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: <a href="/cdn-cgi/l/email-protection#583b282b3b75372b183b282b3b763f372e"><span class="__cf_email__" data-cfemail="9bf8ebe8f8b6f4e8dbf8ebe8f8b5fcf4ed">[email protected]</span></a>.
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; <a href="/cdn-cgi/l/email-protection#244e4f41575748415664475457470a434b52"><span class="__cf_email__" data-cfemail="b9d3d2dccacad5dccbf9dac9cada97ded6cf">[email protected]</span></a>, 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 <a href="http://www.pay.gov">http://www.pay.gov</a>, 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
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