[Federal Register Volume 82, Number 166 (Tuesday, August 29, 2017)]
[Notices]
[Pages 41002-41005]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-18251]


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CONSUMER PRODUCT SAFETY COMMISSION

[CPSC Docket No. 17-C0005]


Home Depot U.S.A., 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 the Consumer 
Product Safety Commission's regulations. Published below is a 
provisionally-accepted Settlement Agreement with Home Depot U.S.A., 
Inc. containing a civil penalty in the amount of five million, seven 
hundred thousand dollars ($5,700,000), within thirty (30) 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 September 13, 2017.

ADDRESSES: Persons wishing to comment on this Settlement Agreement 
should send written comments to the Comment 17-C0005, Office of the 
Secretary, Consumer Product Safety Commission, 4330 East West Highway, 
Room 820, Bethesda, Maryland 20814-4408.

FOR FURTHER INFORMATION CONTACT: Noah AnStraus, Trial Attorney, 
Division of Compliance, Office of the General Counsel, Consumer Product 
Safety Commission, 4330 East West Highway, Bethesda, Maryland 20814-
4408; telephone (301) 504-6963. SUPPLEMENTARY INFORMATION: The text of 
the Agreement and Order appears below.\1\
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    \1\ The Commission voted (4-1) to provisionally accept the 
Settlement Agreement and Order regarding Home Depot U.S.A., Inc. 
Commissioner Adler, Commissioner Robinson, Commissioner Kaye and 
Commissioner Mohorovic voted to provisionally accept the Settlement 
Agreement and Order. Acting Chairman Buerkle voted to take other 
action as follows: Provisionally accept the Settlement Agreement and 
Order with an amendment so as to reduce the penalty amount to $1.0 
million.

    Dated: August 24, 2017.
Todd A. Stevenson,
Secretary.

UNITED STATES OF AMERICA

CONSUMER PRODUCT SAFETY COMMISSION

    In the Matter of:

Home Depot U.S.A., Inc.
CPSC Docket No.: 17-C0005
    SETTLEMENT AGREEMENT
    1. In accordance with the Consumer Product Safety Act, 15 U.S.C. 
2051-2089 (``CPSA'') and 16 CFR 1118.20, Home Depot U.S.A., Inc., and 
its subsidiaries (collectively, ``Home Depot'' 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. By executing the Agreement, staff is acting on behalf of the 
Commission, pursuant to 16 CFR Sec.  1118.20(b). The Commission issues 
the Order under the provisions of the CPSA.
    3. Home Depot is a corporation, organized and existing under the 
laws of the state of Delaware, with its principal place of business in 
Atlanta, GA.

STAFF CHARGES

    4. Between August 2012 and November 2016, Home Depot knowingly 
sold, offered for sale, and distributed in commerce recalled consumer 
products in violation of Section 19(a)(2)(B) of the CPSA, 15 U.S.C. 
2068(a)(2)(B). Over the course of 4 years, Home Depot sold, offered for 
sale, and distributed in commerce products from 33 separate voluntary 
corrective actions (``Recalls'') announced by the Commission, totaling 
approximately 2,816 units of recalled products (the ``Recalled 
Products'').
    5. The Recalls and the Recalled Products are:
    <bullet> HeathCo Motion-Activated Outdoor Lights, recalled on 
October 30, 2013;
    <bullet> Soleil Portable Heaters, recalled on July 25, 2013;
    <bullet> Kidde Smoke/Co Alarms, recalled on September 11, 2014;
    <bullet> CE Tech Riser Cable, recalled on April 9, 2013;
    <bullet> Lithonia Quantum[supreg] ELM and ELM2 Two-Light Emergency 
Light Fixtures, recalled on May 28, 2014;

[[Page 41003]]

    <bullet> HDX/Powermate Two-Gallon Air Compressor, recalled on 
February 12, 2014;
    <bullet> Gree Dehumidifiers, recalled on September 12, 2013, 
expanded in January 2014, and reannounced in May 2014;
    <bullet> RSI Bathroom Medicine Cabinets, recalled on January 16, 
2014;
    <bullet> Homelite Blower Vacuum, recalled on April 16, 2015;
    <bullet> Husky Vertical Bike Hook, recalled on April 15, 2015;
    <bullet> Westinghouse Lighting Glass Shade Holder recalled on March 
12, 2015;
    <bullet> Mohawk Home Rugs, recalled on November 19, 2014;
    <bullet> Vornado Air Electric Space Heaters, recalled on August 14, 
2014;
    <bullet> Fiskar Bypass Lopper, recalled on October 8, 2014;
    <bullet> Harris Products Group Welding Torch, recalled on July 31, 
2014;
    <bullet> Legrand Under Cabinet Power and Light Strip, recalled on 
September 6, 2012, and expanded on May 15, 2014;
    <bullet> Lota Touchless Single-Handle, Pull-Down Sprayer Faucet, 
recalled on September 10, 2015;
    <bullet> Kidde Fire Extinguisher, recalled on February 12, 2015;
    <bullet> Cordelia Shop Light, recalled on May 22, 2014;
    <bullet> LG Electronics Electric Range, recalled on November 8, 
2012;
    <bullet> Genie Garage Door Opener, recalled on February 25, 2014;
    <bullet> Honda Mini Tillers, recalled on May 25, 2016;
    <bullet> Nourison Rugs, recalled on May 23, 2013;
    <bullet> Wing Enterprises Stepladder, recalled on December 11, 
2012;
    <bullet> Gerber Cohort Folding Knife, recalled on May 26, 2015;
    <bullet> Nest Labs Smoke/CO Alarms, recalled on May 21, 2014;
    <bullet> LG Electronics, Inc., Top Loading Washer, recalled on 
December 18, 2012;
    <bullet> HeathCo Motion Activated Outdoor Lights, recalled on July 
26, 2012;
    <bullet> Phillips Lighting Halogen Flood Lights, recalled on 
September 10, 2015;
    <bullet> Bosch Slim Grinder, recalled on May 11, 2016;
    <bullet> Technical Consumer Products LED Down Light Fixture, 
recalled on September 8, 2015;
    <bullet> Pramac America LLC Powermate Portable Generator, recalled 
on November 13, 2012; and
    <bullet> Dyson Bladeless Portable Heater, recalled on April 1, 
2014.
    6. The hazards posed by the Recalled Products include, but are not 
limited to, fire hazards, laceration hazards, and electrocution and 
shock hazards.
    7. The Recalled Products were subject to voluntary corrective 
action taken by the manufacturers in consultation with the Commission 
of which action the Commission notified the public. Each Recall listed 
above in paragraph 5 was publicized by the manufacturer and by the 
Commission.
    8. The Recalled Products are ``consumer products,'' and, at all 
relevant times, Home Depot was a ``retailer'' of these consumer 
products, which were ``distributed in commerce,'' as those terms are 
defined or used in sections 3(a)(5), (8), and (13) of the CPSA, 15 
U.S.C. 2052(a)(5), (8) and (13).
    9. 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.
    10. 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. 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.''
    11. Home Depot sold and distributed Recalled Products because Home 
Depot's procedures failed to accurately identify, quarantine, and 
prevent the sale, offer for sale, and distribution of the Recalled 
Products. Home Depot sold and distributed Recalled Products through the 
Firm's traditional register lanes, Special Services Desks, sales for 
salvage from its reverse logistic centers, Internet sales, and 
donations through the Framing Hope program.
    12. On May 29, 2015, Home Depot notified Commission staff that Home 
Depot had sold or transferred to its reverse logistics centers for 
potential sale approximately 595 units of seven different Recalled 
Products. Staff conducted an investigation and, based on information 
provided by Home Depot, the Commission and Home Depot issued a joint 
press release on November 18, 2015, announcing that Home Depot had sold 
approximately 2,310 units of 28 different Recalled Products between 
2012 and November 2015.
    13. After the press release announcing Home Depot's sale of the 
Recalled Products, Home Depot sold or distributed approximately 40 
units of Recalled Products over the course of an additional year, with 
the last reported sale occurring in November 2016. Home Depot had also 
sold or distributed additional units of the Recalled Products that were 
listed in the November 2015 press release, as well as units of other 
Recalled Products that were either: (i) recalled after the November 
2015 press release, or (ii) had not been discovered by the time the 
November 2015 press release was issued. In total, staff's investigation 
revealed that Home Depot sold or distributed at least 2,816 units of 33 
different Recalled Products.
    14. Home Depot knew and/or should have known of the sales of 
Recalled Products.
    15. Home Depot's sale and distribution of the Recalled Products was 
``knowing,'' as that term is defined in section 20(d) of the CPSA, 15 
U.S.C. 2069(d).
    16. Pursuant to section 20 of the CPSA, 15 U.S.C. 2069, Home Depot 
is subject to civil penalties for its knowing sale and distribution of 
the Recalled Products, in violation of section 19(a)(2)(B) of the CPSA, 
15 U.S.C. 2068(a)(2)(B).

RESPONSE OF HOME DEPOT

    17. Home Depot's settlement of this matter does not constitute an 
admission of staff's charges as set forth in paragraphs 4 to 16 above.
    18. Home Depot prohibits the sale of recalled products and took 
reasonable measures to prevent recalled products from being sold or 
distributed for use by consumers through ``stop sale'' procedures and 
other internal controls.
    19. Home Depot identified the post-recall sale and distribution of 
certain products through an internal review of its stop sale 
procedures. Home Depot voluntarily notified the Commission, and Home 
Depot then worked cooperatively with Commission staff to expand the 
scope of the review and address the identified issues.
    20. Home Depot has enhanced its processes and systems to further 
reduce the risk of selling or distributing recalled products.
    21. Home Depot enters into this Agreement to settle this matter 
without the delay and avoid the unnecessary expense of litigation.

AGREEMENT OF THE PARTIES

    22. Under the CPSA, the Commission has jurisdiction over the matter 
involving the Recalled Products described in this Agreement and over 
Home Depot.

[[Page 41004]]

    23. The parties enter into the Agreement for settlement purposes 
only. The Agreement does not constitute an admission by Home Depot, or 
a determination by the Commission, that Home Depot knowingly violated 
the CPSA.
    24. In settlement of staff's charges, and to avoid the cost, 
distraction, delay, uncertainty, and inconvenience of protracted 
litigation or other proceedings, Home Depot shall pay a civil penalty 
in the amount of $5.7 million (five million, seven hundred thousand) 
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 Home Depot under this Agreement. Failure to 
make such payment by the date specified in the Commission's final Order 
shall constitute Default.
    25. All unpaid amounts, if any, due and owing under the Agreement, 
shall constitute a debt due and immediately owing by Home Depot to the 
United States, and interest shall accrue and be paid by Home Depot at 
the federal legal rate of interest set forth at 28 U.S.C. Sec.  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''). Home Depot 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 Home Depot 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. Home Depot shall pay the 
United States all reasonable costs of collection and enforcement under 
this paragraph, respectively, including reasonable attorney's fees and 
expenses.
    26. After staff receives this Agreement executed on behalf of Home 
Depot, 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 C.F.R. Sec.  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 
C.F.R. Sec.  1118.20(f).
    27. 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 C.F.R. Sec.  1118.20(h). Upon the later of: (i) 
Commission's final acceptance of this Agreement and service of the 
accepted Agreement upon Home Depot, 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.
    28. Effective upon the later of: (i) the Commission's final 
acceptance of the Agreement and service of the accepted Agreement upon 
Home Depot, and (ii) the date of issuance of the final Order, for good 
and valuable consideration, Home Depot 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 Home Depot 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.
    29. Home Depot represents and agrees that it has and will maintain 
a compliance program designed to ensure compliance with the CPSA with 
respect to any consumer product imported, manufactured, distributed or 
sold by the Firm. The compliance program shall contain the following 
elements: written standards, policies, and procedures designed to 
ensure compliance with CPSA statutes and regulations; procedures to 
ensure that relevant information is conveyed effectively to appropriate 
personnel responsible for CPSA compliance; mechanisms to communicate to 
all applicable Home Depot employees through training programs or 
otherwise, company policies and procedures to prevent violations of 
CPSA Sec.  19; a program for the appropriate disposition of recalled 
goods; management oversight of that program, including 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; senior management responsibility 
for, and general board oversight of, CPSA compliance; retention of all 
CPSA compliance-related records for at least five (5) years; and 
availability of such records to staff upon reasonable request.
    30. Home Depot represents and agrees that it has and will maintain 
and enforce a system of internal controls and procedures designed to 
ensure that, with respect to all consumer products manufactured, 
imported, distributed, or sold by Home Depot: information required to 
be disclosed by Home Depot to the Commission is recorded, processed, 
and reported in accordance with applicable law; all reporting made to 
the Commission is timely, truthful, complete, accurate, and in 
accordance with applicable law; and prompt disclosure is made to Home 
Depot'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, 
Home Depot's ability to record, process, and report to the Commission 
in accordance with applicable law.
    31. Upon reasonable request of staff, Home Depot shall provide 
written documentation of its internal controls and procedures, 
including, but not limited to, the effective dates of the procedures 
and improvements thereto. Home Depot 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 Home Depot's compliance with the terms of the Agreement.
    32. The parties acknowledge and agree that the Commission may 
publicize the terms of the Agreement and the Order.
    33. Home Depot 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 Home Depot, and each of its successors, 
transferees, and assigns, enforceable against Home Depot in accordance 
with the Agreement's terms. The individuals signing the Agreement on 
behalf of Home Depot represent and warrant that they are duly 
authorized by Home Depot to execute the Agreement.
    34. The signatories represent that they are authorized to execute 
this Agreement.
    35. The Agreement is governed by the laws of the United States.
    36. The Agreement and the Order shall apply to, and be binding 
upon,

[[Page 41005]]

Home Depot and each of its successors, transferees, and assigns, and a 
violation of the Agreement or Order may subject Home Depot, and each of 
its successors, transferees, and assigns, to appropriate legal action.
    37. The Agreement and the Order constitute the complete agreement 
between the parties on the subject matter contained therein.
    38. 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.
    39. 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.
    40. 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 Home Depot agree in writing that severing the provision materially 
affects the purpose of the Agreement and the Order.
HOME DEPOT U.S.A., INC.

Dated: August 10, 2017

By:--------------------------------------------------------------------

Dated: August 10, 2017
By:--------------------------------------------------------------------

Eric Rubel, Esq., Arnold & Porter Kaye Scholer LLP, 601 Massachusetts 
Ave. NW., Washington, DC 20001-3743, Counsel for Home Depot

U.S. CONSUMER PRODUCT SAFETY COMMISSION

Mary T. Boyle, General Counsel

Mary B. Murphy, Assistant General Counsel
Dated: August 10, 2017

By:--------------------------------------------------------------------

Noah AnStraus, Trial Attorney, Division of Compliance, Office of the 
General Counsel

UNITED STATES OF AMERICA

CONSUMER PRODUCT SAFETY COMMISSION

    In the Matter of:

Home Depot U.S.A., Inc.
CPSC Docket No.: 17-C0005

ORDER

    Upon consideration of the Settlement Agreement entered into between 
Home Depot U.S.A., Inc. (``Home Depot'' and ``the Firm''), and the U.S. 
Consumer Product Safety Commission (``Commission''), and the Commission 
having jurisdiction over the subject matter and over Home Depot, and it 
appearing that the Settlement Agreement and the Order are in the public 
interest, it is:
    ORDERED that the Settlement Agreement be, and is, hereby, accepted; 
and it is
    FURTHER ORDERED that Home Depot shall comply with the terms of the 
Settlement Agreement and shall pay a civil penalty in the amount of 
$5.7 million (five million, seven hundred thousand) within thirty (30) 
days after service of the Commission's final Order accepting the 
Settlement Agreement. The payment shall be made by electronic wire 
transfer to the Commission via: https://www.pay.gov. Upon the failure 
of Home Depot to make the foregoing payment when due, interest on the 
unpaid amount shall accrue and be paid by Home Depot at the federal 
legal rate of interest set forth at 28 U.S.C. 1961(a) and (b). If Home 
Depot fails to make such payment or to comply in full with any other 
provision of the Settlement Agreement, such conduct will be considered 
a violation of the Settlement Agreement and Order.

Provisionally accepted and provisional Order issued on the 24th day of 
August, 2017.

By Order of the Commission:

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Todd A. Stevenson, Secretariat
U.S. Consumer Product Safety Commission.

[FR Doc. 2017-18251 Filed 8-28-17; 8:45 am]
 BILLING CODE 6355-01-P