[Federal Register Volume 79, Number 182 (Friday, September 19, 2014)]
[Notices]
[Pages 56345-56348]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-22344]
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CONSUMER PRODUCT SAFETY COMMISSION
[CPSC Docket No. 14-C0004]
Meijer, Inc., Provisional Acceptance of a Settlement Agreement
and Order
AGENCY: Consumer Product Safety Commission.
ACTION: Notice.
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SUMMARY: It is the policy of the Commission to publish settlements
which it provisionally accepts under the Consumer Product Safety Act in
the Federal Register in accordance with the terms of 16 CFR 1118.20(e).
Published below is a provisionally-accepted Settlement Agreement with
Meijer, Inc., containing a civil penalty of two million dollars
($2,000,000.00 U.S. dollars), within twenty (20) days of service of the
Commission's final Order accepting the Settlement Agreement.
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 October 6, 2014.
ADDRESSES: Persons wishing to comment on this Settlement Agreement
should send written comments to the Comment 14-C0004 Office of the
Secretary, Consumer Product Safety Commission, 4330 East West Highway,
Room 820, Bethesda, Maryland 20814-4408.
FOR FURTHER INFORMATION CONTACT: Ray M. Aragon, General Attorney,
Office of the General Counsel, Consumer Product Safety Commission, 4330
East West Highway, Bethesda, Maryland 20814-4408; telephone (301) 504-
6883.
SUPPLEMENTARY INFORMATION: The text of the Agreement and Order appears
below.
Dated: September 16, 2014.
Todd A. Stevenson,
Secretary.
United States of America Consumer Product Safety Commission
In the Matter of: Meijer, Inc.
CPSC Docket No.: 14-C0004
SETTLEMENT AGREEMENT
1. In accordance with the Consumer Product Safety Act (``CPSA''),
15 U.S.C. Sec. Sec. 2051-2089 and 16 C.F.R. Sec. 1118.20,
[[Page 56346]]
Meijer, Inc. (``Meijer''), and the U.S. Consumer Product Safety
Commission (``Commission''), through its staff (``staff''), hereby
enter into this Settlement Agreement (``Agreement''). The Agreement and
the incorporated attached Order (``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. 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. Meijer is a corporation organized and existing under the laws of
the state of Michigan. Its principal corporate offices are located at
2929 Walker Avenue NW., Grand Rapids, Michigan 49544. Meijer operates
more than 200 stores in Michigan, Ohio, Indiana, Illinois and Kentucky.
STAFF CHARGES
4. CPSC staff charges that on multiple occasions between April 2010
and April 2011, Meijer knowingly sold, offered for sale, and
distributed recalled consumer products in commerce, in violation of
section 19(a)(2)(B) of the Consumer Product Safety Act (CPSA), 15
U.S.C. 2068(a)(2)(B). Meijer distributed at least twelve separate
recalled consumer products, totaling approximately 1,692 individual
units of recalled products (the ``Recalled Products''), through the
reverse logistics system it operated with a third party contractor.
5. Each of the Recalled Products was recalled by its manufacturer
pursuant to section 15 of the CPSA, and each was subject to a voluntary
corrective action plan taken by the manufacturer, in consultation with
the Commission. Each of the recalls was also publicized by each
respective manufacturer and by the Commission.
6. The Recalled Products are ``consumer products,'' and at all
relevant times Meijer was a ``retailer'' and/or manufacturer of these
consumer products, which were ``distributed in commerce,'' as those
terms are defined or used in sections 3(a)(5), (7) (11) and (13), of
the CPSA, 15 U.S.C. 2052(a)(5), (7) and (11) (13).
7. Under CPSA section 19(a)(2)(B), it is unlawful for any person to
sell, offer for sale, manufacture for sale, distribute in commerce, or
import into the United States any consumer product that is subject to
voluntary corrective action taken by the manufacturer, in consultation
with the Commission, of which action the Commission has notified the
public, or if the seller, distributor, or manufacturer knew, or should
have known, of such voluntary corrective action.
8. Pursuant to section 20(a)(l) of the CPSA, 15 U.S.C. 2069(a)(1),
any person who ``knowingly'' violates CPSA section 19 is subject to
civil penalties. Under section 20(d) of the CPSA, 15 U.S.C. Sec.
2069(d), the term ``knowingly'' means: ``(1) the having of actual
knowledge, or (2) the presumed having of knowledge deemed to be
possessed by a reasonable man who acts in the circumstances, including
knowledge obtainable upon the exercise of due care to ascertain the
truth of representations.''
9. CPSC staff charges that beginning in or about April 2010, and
including until at least in or about April 2011, Meijer received
information from the third party contractor regarding the sale of all
products handled by its third party contractor but failed to prevent
the distribution of the Recalled Products.
10. CPSC staff charges that the Recalled Products that were resold
include:
1,173 Touch Point Oscillating Ceramic Heaters manufactured
by Ningbo Dongji Electronic Tech Co. LTC and imported by Meijer (CPSC
Release No. 11-053, Nov. 23, 2010);
136 Bathtub Subs imported by Munchkin, Inc. (CPSC Release
No. 11-012, Oct. 18, 2010);
114 Fisher-Price Trikes and Tough Trikes toddler tricycles
manufactured by Fisher-Price (CPSC Release No. 10-359, Sept. 30, 2010);
93 Hoover WindTunnel T-Series Bagless Upright Vacuum
Cleaners with Cord Rewind Feature imported by Hoover Inc. CPSC Release
No. 10-248, May 27, 2010);
69 Little People Wheelies Stand `n Play Rampways imported
by Fisher Price (CPSC Release No. 10-360, Sept. 30, 2010);
50 Discovery Kids Animated Marine and Safari Lamps
imported by Innovage LLC (CPSC Release No. 10-135, Feb. 9, 2010);
27 Ocean Wonders Kick & Crawl Aquariums imported by
Fisher-Price (CPSC Release No. 10-362, Sept. 30, 2010);
17 Refreshing Rings Infant Teethers/Rattles imported by
Sassy (CPSC Release No. 11-114, Jan. 31, 2011);
6 SlingRider Baby Slings manufactured by Infantino (CPSC
Release No. 10-177, Mar. 24, 2010);
5 Box Fans manufactured by Lasko (CPSC Release No. 11-183,
Mar. 24, 2011);
1 Harmony High Chair manufactured by Graco Children's
Products (CPSC Release No. 10-171, Mar. 18, 2010, revised Mar. 21,
2011); and
1 Random Orbit Sander manufactured by Black & Decker (CPSC
Release No. 10-339, Sept. 9, 2010).
11. Staff charges that Meijer's sale and distribution of these
Recalled Products was knowing, as that term is defined in Section 20(d)
of the CPSA, 15 U.S.C. 2069(d).
12. Pursuant to section 20 of the CPSA, 15 U.S.C. 2069, Meijer is
subject to a civil penalty for its knowing resale of the Recalled
Products, which was in violation of section 19(a)(2)(B) of the CPSA, 15
U.S.C. 2068(a)(2)(B).
MEIJER'S RESPONSE
13. Meijer neither admits nor denies the charges set forth in
paragraphs 4 through 12 including, but not limited to, the charge that
Meijer knowingly sold, offered for sale, and distributed recalled
consumer products in commerce, in violation of section 19(a)(2)(B) of
the Consumer Product Safety Act (CPSA), 15 U.S.C. 2068(a)(2)(B).
14. Meijer reasonably relied upon the reverse logistics system
operated through an independent third party it hired to handle its
disposition of the Recalled Products. Meijer believed that adequate
safeguards were in place to prevent Recalled Products from being
distributed into commerce and states that any distribution of the
Recalled Products was inadvertent and occurred without Meijer's
knowledge.
15. In March 2011, Meijer, in conjunction with CPSC, voluntarily
re-announced a recall of the Recalled Products that had been
inadvertently distributed through the reverse logistics system operated
through an independent third party.
16. Meijer has informed the Commission that it is not aware of any
reported incidents or injuries associated with the Recalled Products.
AGREEMENT OF THE PARTIES
17. Under the CPSA, the Commission has jurisdiction over the matter
involving the Recalled Products described herein and over Meijer.
18. In settlement of staff's charges, and to avoid the cost,
distraction, delay, uncertainty, and inconvenience of protracted
litigation or other proceedings, Meijer shall pay a civil penalty in
the amount of two million dollars ($2,000,000.00 U.S. dollars), which
shall be due and payable within twenty (20) 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
[[Page 56347]]
States and shall be made by electronic wire transfer to the United
States via: http://www.pay.gov.
19. The parties agree that this settlement figure is predicated,
among other things, upon the accuracy of oral and written
representations of, and statements by, Meijer and Meijer's
representatives (including representations set forth in the Agreement).
20. The parties enter into the Agreement for settlement purposes
only. The Agreement does not constitute any legal or factual admission
by Meijer or a determination by the Commission that Meijer violated the
CPSA.
21. Following staff's receipt of the Agreement executed on behalf
of Meijer, 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, within fifteen
(15) calendar days, the Commission does not receive any written request
not to accept the Agreement, the Agreement shall be deemed finally
accepted on the sixteenth (16th) calendar day after the date the
Agreement is published in the Federal Register, in accordance with 16
CFR 1118.20(f).
22. The Agreement is conditioned upon, and subject to, the
Commission's final acceptance, as set forth above, and is subject to
the provisions of 16 CFR Sec. 1118.20(h). Upon the later of: (i) The
Commission's final acceptance of the Agreement and service of the
accepted Agreement upon Meijer, and (ii) the date of issuance of the
final Order, the Agreement shall be in full force and effect and shall
be binding upon the parties.
23. Effective upon the later of: (i) The Commission's final
acceptance of the Agreement and service of the accepted Agreement upon
Meijer, and (ii) the date of issuance of the final Order, for good and
valuable consideration, Meijer hereby expressly and irrevocably waives
and agrees not to assert any past, present, or future rights to the
following actions or remedies in connection with the matters described
in the Agreement: (a) An administrative or judicial hearing; (b)
judicial review or other challenge or contest of the validity of the
Order or of the Commission's actions; (c) a determination by the
Commission of whether Meijer failed to comply with the CPSA and the
underlying regulations; (d) a statement of findings of fact and
conclusions of law; and (e) any claims under the Equal Access to
Justice Act.
24. Meijer represents and agrees that it will maintain a reverse
logistics compliance program designed to avoid violations by Meijer of
CPSA Sec. 19(a)(2)(B) by introducing recalled consumer products into
the stream of commerce. Meijer represents that its ongoing reverse
logistics program will contain (i) written standards, policies, and
procedures for the appropriate disposition of recalled goods; (ii)
mechanisms to communicate to all applicable Meijer employees through
training programs or otherwise, company policies and procedures to
prevent violations of CPSA Sec. 19(a)(2)(B); (iii) management
oversight of a reverse logistics program, including a mechanism for
Meijer employees' confidential reporting to a Meijer official with the
authority to act as necessary; (iv) a policy to retain Meijer reverse
logistics records related to the recalled product collection and
disposition, for at least five (5) years from the date of the recall;
and (v) availability of such records to Commission staff, upon
reasonable request.
25. The parties acknowledge and agree that the Commission may make
public disclosure of the terms of the Agreement and the Order.
26. Meijer 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 Meijer, and each of its successors and/
or assigns, enforceable against Meijer in accordance with the
Agreement's terms. The individuals signing the Agreement on behalf of
Meijer represent and warrant that they are duly authorized by Meijer to
execute the Agreement.
27. The Commission signatories represent that they are signing the
Agreement in their official capacities and that they are authorized to
execute the Agreement.
28. The Agreement is governed by the laws of the United States.
29. The Agreement and the Order shall apply to, and be binding
upon, Meijer and each of its companies, subsidiaries, successors,
transferees, and assigns, and a violation of the Agreement or Order may
subject Meijer and each of its companies, subsidiaries, successors,
transferees, and assigns to appropriate legal action.
30. The Agreement and the Order constitute the complete agreement
between the parties on the subject matter contained herein and therein.
31. 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 be construed against any party for that reason in any
subsequent dispute.
32. The Agreement shall 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.
33. 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 Meijer agree that severing the provision materially affects the
purpose of the Agreement and Order.
Meijer, Inc.
Dated: September 3, 2014.
Janet G. Kelley, Senior Vice President,
General Counsel and Secretary,
Meijer, Inc.,
2929 Walker Avenue NW.,
Grand Rapids, Michigan 49544.
Dated: September 3, 2014.
Georgia C. Ravitz, Esq.,
Arent Fox LLP,
1717 K Street NW.,
Washington, DC 20036,
Counsel for Meijer, Inc.
U.S. Consumer Product Safety, Commission Staff.
Stephanie Tsacoumis,
General Counsel.
Mary T. Boyle,
Deputy General Counsel.
Mary B. Murphy,
Assistant General Counsel.
Dated: September 3, 2014.
Ray M. Aragon,
General Attorney.
UNITED STATES OF AMERICA CONSUMER PRODUCT SAFETY COMMISSION
In the Matter of: Meijer, Inc.
CPSC Docket No.: 14-C0004
ORDER
Upon consideration of the Settlement Agreement entered into between
Meijer, Inc. (``Meijer''), and the U.S. Consumer Product Safety
Commission (``Commission''), and the Commission having jurisdiction
over the subject matter and over Meijer, and it appearing
[[Page 56348]]
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 Meijer shall comply with the terms of the
Settlement Agreement and shall pay a civil penalty of two million
dollars ($2,000,000.00 U.S. dollars), within twenty (20) calendar days
after receiving service of the Commission's final Order accepting the
Settlement Agreement. Upon failure of Meijer to make the foregoing
payment when due, interest on the unpaid amount shall accrue and be
paid by Meijer at the federal legal rate of interest set forth at 28
U.S.C. 1961(a) and (b). If Meijer fails to make such a payment or to
comply in full with any other provision as set forth in the Settlement
Agreement, such conduct will be considered a violation of the
Settlement Agreement and Order.
Provisionally accepted and provisional Order issued on the16th day
of September, 2014.
By Order of the Commission.
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Todd A. Stevenson,
Secretary, U.S. Consumer Product Safety Commission.
[FR Doc. 2014-22344 Filed 9-18-14; 8:45 am]
BILLING CODE 6355-01-P