and it's not my intention to spend any time discussing the facts unless the court has any particular questions regarding them instead this case presents to peer issues along both the issues the first impression and both  that met our relatively straightforward issues relating to statutory construction the first issue logically i believe to address is the question of whether or not as a matter of la and approximately eleven month period of time and did you investigate any of those twenty three incidents yes or there was an investigation sure did you did you conclude that there was no defect with respect to any one of the twenty three we concluded factors with reference to fixing a penalty specifically the statute says that indeed in determining the amount of the penalty the commission shall consider and it makes a number of factors that the first factor unless there's the nature of the product the fact therefore i submit that as a matter of law it was incumbent on the united states before even addressing the court with reference to an allocation of a penalty reporting violation because according to i believe it's fifteen u s c twenty sixty four there's an obligation to report if there are sufficient information from which the manufacturer could conclude that there was a product  if there's a finding of either if there's a find either of a product the fact or that there was sufficient information from which a reasonable consumer should have concluded a reasonable risk like honks for well that wasn't that was it was the refining no there was no finding that there was a product the fact there was there was a finding in the context of the preliminary motion for summary judgment that aroma had sufficient information from which it should have concluded there was exactly the problem as you as you frame the question your honor i think that sounds a little bit silly too but what i'm suggesting is something a little bit different that at the time of the the the statute sets forth that the for the relevant considerations with respect to fixing a penalty it says what the government shall investigate and i submit submit evidence on the primary consideration with respect to assessing a penalty or penalty which i argue and will turn the corner to their second point in just a minute the panel the no more up to five thousand dollars per violation that there's no way for the government to request the penalty or for the district court to finally fix the penalty well having heard evidence of what the nature of the fact was and here there was no such evidence whatsoever on the nature of the facts in order that the trial court have sufficient information to assess a penalty somewhere in the penalty range of zero to five thousand dollars per violation that's my first argument in light of my time constraints the issue in this case is whether or not the trial court erred of the matter of law in assessing a penalty in excess of the statutory maximum where the statute specifically provides for a maximum penalty of no more than five thousand dollars per violation and i began my argument by saying that we don't contest the facts what of this case what i meant by that was we don't contest the fact that there were twenty three separate reports the product obligation the trial court didn't ruin our playground i'm not challenging that finding again we accept that we accept that there was a reporting violated thank you so ok but the point here though your honor again i category of products such that i think aroma could reasonably have argued that only a single penalty would have been appropriate in this case because there is only a single product that is to say the single juice or the a j c two product that's in the marketplace well again you're on i'm back to the for i think the violation is the failure to report the violation it's not the fact of having products out in the market place the violation is the failure to report again and i can much of a penalty to assess is expressed only as number of products in the marketplace my point is that i believe we can infer from that that the legislature expressly considered the very point your honor just makes that is that the amount of the penalty should vary according to the nature of the deed the severity of the injuries in the number of products in the marketplace so the number of products in the marketplace is expressly provided for by statute expressly determining the amount of the peril the violation i submit it's the latter i submit that the proper interpretation and i see that my time is well gone and i would like to have a few moments to rebut if i may so let me conclude by saying that i stand on my proposition that as a matter of law the maximum penalty here per violation is five thousand dollars the maximum number of reporting violations is twenty three hence the maximum civil penalty assessed should have been  hundred fifteen thousand dollars as the final point i submit that is a substantial and meaningful amount of money and which effects a real meaningful penalty aroma and i don't believe that it's necessary to accomplish the statutory progress that the court what i regard and bending the statutory language in an effort to afford broader deference for the trial court that i'd like reserve a few moments  please the car patrick jost first with the department of justice on behalf of the united states the plain language of the consumer product safety act supports the district court's interpretation that each individual hazardous product council is a separate offens sixty nine a one any person who knowingly violates section twenty sixty eight of this title shall be subject to a civil penalty and then it clarifies unambiguous lee a violation of section twenty sixty eight eighty four of this title shall constitute a separate of fans with respect to each consumer product involved ok when you get a four for says it shall be unlawful for any person to fail to that the company has to report when they have changed information that recently supports the conclusion that a product contains of the facts or creates one reasonable risk of serious injury or death so the first issue on appeal is what is the meaning of consumer products in twenty sixty four b and the statute defines consumer product section twenty fifty two a one defines consumer product as any article posing council does not contravene well if i don't understand how you get from there to forty thousand products failure to furnish information is with respect to each consumer product worth twenty six the a four is referring to twenty six d for the one i wait a minute there are twenty three instances of the report is that correct yes so you multiply twenty three times forty thousand and that gives you the total number of products that are ok there there are there are just too many going to space of eleven months they can't have sold that many more than that this forty thousand which appears to be kind of the average number now this whole number of products that were in the marketplace were thirty to forty thousand what the government proved in the district court is that the information that are all received about the twenty three were twenty three incidents of the report each one had to do with forty thousand juicers and therefore you could have a penalty which would be measured by forty thousand times twenty degrees the last part of what you said in our theory is that it's it's a violation through fail to report each consumer product which contains a defect or that creates an unreasonable risk and there were forty thousand such products that can that there was information to support the reasonable conclusion contain such a defect or create an unreasonable risk there is if the twenty three report mean somewhere from report one to twenty three fact a defect yes to your honor the commission made a preliminary determination in february one thousand nine hundred nine that the juicer contained at the fact fortunately it's not in the united states excerpts of the record it's exhibit summary judgment exhibit fifty and the underline district partners that's subject to some sort of due process review was a challenge to the manufacture of an opportunity to contest that your honor they would have they did not i mean the way that most of these recalls work is that the commission makes a preliminary determination that there's a de facto and then goes to the company and says we need to do something about this please recall the product and in most cases including this one the company cooperate and the recall is voluntary the company does have the right for a formal review and for due process and if that happens through the reason why the commission prefers not to go a recall generally would apply to products that are in the hands of consumers and that are out of the store shelves waiting to be purchased and the ones that you have been sold will just be pulled back corr if that is true i think in most cases the commission would work with the company and the company would send out a letter to everyone in their database that they have in this case the card both of the people who have to wri the ones that came to the attention of the preppy or whether all the laws are out the marketplace her acts and again the statute defines consumer product to mean each individual item not a class and i mean the se issues of how you interpret the statutory language clearly is a matter of fact or interpretation against in our review but the district court made a factual finding it's on pages two under forty three to forty four of the united states excerpts of the record that the information a roma received about these twenty three shattered juicers reasonably supported the conclusion that all thirty to forty thousand juicers that were out in the stream of commerce contain your honor what section twenty sixty nine b the word shall there is directed to the commission not to the courts and they're not required to do so courts can apply these factors as appropriate along with the usual civil penalty factors occurrence of the absence of injury the number of defective products distributed where in the record could i find findings of made by the commission to establish that there was a product defect and the number of defective products that were found to have been  in this country and what we're trying to find out is what is it that permits the commission to impose a three hundred thousand dollar fine with respect to this manufacture and that and i i haven't found i have been able to connect the dots yet are you under the commission didn't impose a few hundred have thousand dollar fine the district court imposed a three hundred thousand dollars fine well is the test any different is it still twenty sixty nine b that were  mean i believe that when this case is reached the district court the district court should look at the factors and twenty sixty ninety which the district court in this case just record is also free to consider the general range of work legal finding that there was a defect and found that the number of defective products that were distributed know your honor the district court found there was a roman knew about the twenty three created a duty to report about the thirty thousand to forty five concentrating on the computation of the fine this this case raises the question of whether this three hundred thousand dollar fine was for the government you have to prove the fact that the penalty stage even though there's no requirement for the government to prove the fact of life bill it's stage and generally the burden for the government as we have the statutory construction problem i'm not sure that's really an issue on appeal your honor they're saying that if you don't prove the fact you don't get a penalty at all they're not saying that based on the number of products involved based on the nature of the defect this fine should have been one hundred thousand dollars instead of three hundred thousand dollars it's not really i think it's about whether the district court have the discretion to go where it did it's a case about whether under the statute the government is entitle to a penalty at all  put that off to one side the question still remains did judge properly assess the three hundred thousand dollars fine in this case is that am i right so far ye court to consider when appropriate ok and where would i find that the court indeed considered these factors your honor the court made oral findings the fact that the end entitled to skidmore deference and i believe that if you look at the regulations they are logical they are reasonable on the court should give deference to the commission's interpretation  and if i could go back to your scan one concern about twenty sixty nine b however this court interprets section twenty sixty nine it is going to govern all of the requirements selling products that have been declared banned hazardous products banned hazardous product is not necessarily defective so requiring proof of the facts makes no sense when applied to that's provisions similarly but aren't you relying on twenty the violation here is twenty sixty eight for however the argument that the fact is required to assess the penalty is rooted in twenty sixty nine b and however the court interprets section twenty sixty nine b covers all of two thousand and sixty eight and there are a number of provisions under twenty sixty eight which have nothing to do with the fact for example twenty six the a three six eight and ten all contain various information sharing requirements requiring the government to prove the facts simply makes no sense when applied to those provisions and most relevant to the subpoena will section twenty six before v three requires the company to report when there is information that reasonably supports the conclusion that a product contains creates an unreasonable risk of serious injury or death the whole purpose of twenty sixty four of the three the very reason it was to the statute was to make clear that companies should report dangerous products aside from any defect analysis and if the court requires if if the statute is interpreted in such a way that there is a duty to report but there's no way to enforce the duty to report it simply becomes a hollow statute would regulation of the you should defer to bears on how you calculate the fine i don't think there's anything in the regulations that say anything more than these list of penalty factors and twenty sixty nine look instead she's right and i think the question was asked before do we give deference to the agency and we talked about regulations and trying to find some regulation that bears on this i think that i can recall my reading of the  regulations them for putting the statute or all at sixteen c f r eleven fifteen point one and forward as i recall i don't think there are any regulations specifically points in terms of what factors should be considered that elucidate anything more than the list of factors that are in the statute itself that's what i thought you were nothing to defer to on that point and i think the what trouble those two issues and if you know i think there are regulations on points that go to the first issue on appeal which is which is interpretating how many what you multiply  i believe in the regulations that states very clearly that test results could trigger the reporting duty scientific studies could be could trigger the recording to the quality control of the company has to trigger the reporting dollars and that's the maximum fine reporting duty however is it's triggered by information that reasonably supports the conclusion that the product is we would find that eleven fifteen point twelve fifteen point twelve half and eleven fifteen point fourteen see all the scouts what types of information and create a duty to report the end which is the reg that deals with the assessment of the fine one i don't know if there's a regulation or goes to the penalty factors i think the like you said earlier that there was an atlanta didn't say any more than the statute i may have misspoken about that your honor i'm not entirely certain there are regulations that i attempted to assess the penalty or before the district court could impose one it was incumbent on the government to introduce at least some evidence of a product the fact merely indicating evidence of report incidents is was not sufficient that's argument one argument about this reasonable likelihood issue oh i accept it that i think it's your are exactly the same product defect or no it's not the same it's different but in the with respect to the fundamental reporting obligation those two are presented as either or you have an obligation to report if you either have knowledge of the back or if you have knowledge of the reasonable risk of harm we expect that we had the latter we and with reference to all of the above the violation right thousand oh yes oh yes when the report was originally filed in november and it's in the record it's a like page one twenty nine i forget it's in the record there are the other report once there's an obligation to report triggered once that the penalty can be assessed with reference to the number of products in the marketplace then i submit that it would lead to a totally illogical result whereby in any factor who had even as many as three hundred products in the marketplace and i mean anything actually would have three hundred products in the marketplace in any substantial manufacture the single failure to report respect to the three hundred except the government's argument and the gun first time with the local record and we have more than three hundred products in the marketplace we've already submitted our itself to a potential liability of one point five million if i should we report now and maybe we'll get away with it appropriate that penalty should be restricted to the number of reporting violations and not be made with reference to the number of products in the marketplace thank you