Settlement agreements: Schneitter Fireworks & Importing Co., Inc.,

[Federal Register: October 14, 1998 (Volume 63, Number 198)]

[Notices]

[Page 55092-55095]

From the Federal Register Online via GPO Access [wais.access.gpo.gov]

[DOCID:fr14oc98-46]

CONSUMER PRODUCT SAFETY COMMISSION

[CPSC Docket No. 99-C0001]

Schneitter Fireworks and Importing Co., Inc., Provisional Acceptance of a Settlement Agreement and Order

AGENCY: Consumer Product Safety Commission.

ACTION: Notice.

SUMMARY: It is the policy of the Commission to publish settlements which it provisionally accepts under the Federal Hazardous Substance Act in the Federal Register in accordance with the terms of 16 CFR 1118.20(e)-(h). Published below is a provisionally-accepted Settlement Agreement with Schneitter Fireworks and Importing Co.,

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Inc., a corporation, containing a civil penalty of $60,000.

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 29, 1998.

ADDRESSES: Persons wishing to comment on this Settlement Agreement should send written comments to the Comment 99-C0001, Office of the Secretary, Consumer Product Safety Commission, Washington, D.C. 20207.

FOR FURTHER INFORMATION CONTACT: Dennis C. Kacoyanis, Trial Attorney, Office of Compliance and Enforcement, Consumer Product Safety Commission, Washington, D.C. 20207; telephone (301) 504-0626.

SUPPLEMENTARY INFORMATION: The text of the Agreement and Order appears below.

Dated: October 7, 1998. Sadye E. Dunn, Secretary.

Settlement Agreement and Order

In the matter of Schneitter Fireworks and Importing Co., Inc., a corporation.

[CPSC Docket No. 99-C0001]

1. Schneitter Fireworks and Importing Co., Inc. (hereinafter, ``Schneitter''), a corporation, enters into this Settlement Agreement and Order (hereinafter, ``Settlement Agreement'' or ``Agreement'') with the staff on the Consumer Product Safety Commission, and agrees to the Order described herein. The purpose of the Settlement Agreement is to settle the staff's allegations that Schneitter knowingly violated sections 4(a) and (c) of the Federal Hazardous Substances Act (FHSA), 15 U.S.C. 1263(a) and (c).

   1. The Parties

2. The ``staff'' is the staff of the Consumer Product Safety Commission (hereinafter, ``Commission''), an independent regulatory commission of the United States government established pursuant to section 4 of the Consumer Product Safety Act (CPSA), 15 U.S.C. 2053.

3. Schneitter is a corporation organized and existing under the laws of the State of Missouri since 1967. Schneitter's principal place of business is located at N.E. Highway I-29 and 71 Highway, Saint Joseph, MO 64501. Schneitter is an importer and wholesaler of fireworks.

   2. Allegations of the Staff

4. On 15 occasions between June 5, 1991, and April 9, 1997, Schneitter introduced or caused to be introduced into interstate commerce; or received in interstate commerce 33 different kinds of fireworks (4,926,072 retail units) identified and described below that failed to comply with the Commission's Fireworks Regulations at 16 CFR Part 1507 and 16 CFR 1500.14(b)(7) and 1500.17(a)(3):

   Collection date

   Sample No.

   Product

   Violation

   06/20/91..................... M-830-0642................... Cherry Blossom.......... Pyrotechnic Leak. 06/20/91..................... M-830-0643................... Triple Whistling Rocket. Fuse Burn Time, Stick Rigidity. 06/20/91..................... M-830-0644................... Assorted Rocket......... Side Ignition, Fuse Burn Time. 06/20/91..................... M-830-0645................... Sound of Music.......... Side Ignition, Fuse Burn Time. 06/20/91..................... M-830-0646................... Crackling Blue Assorted Fuse Burn Time, Fuse Rocket.

   Attachment. 06/20/91..................... M-830-0647................... Phoenix Playgun......... Fuse Burn Time. 06/05/91..................... M-830-7055................... Whistling Jupiter

   Fuse Burn Time, Fuse Missile.

   Attachment. 04/16/92..................... P-830-6545................... Shot Saturn With

   Fuse Burn Time. Crackers. 06/18/92..................... P-830-6558................... Honey Flowers........... Fuse Attachment. 05/24/93..................... R-830-6847................... General Custer's Last Fuse Attachment, Excess Stand.

   Pyro. Comp. 05/24/93..................... R-830-6848................... Three stage Missile Base Side Ignition, Fuse Burn Time. 05/24/93..................... R-830-6849................... 19 Shot Small Festival Pyro. Leak. Balls. 01/24/94..................... S-830-6008................... Small Festival Balls.... Burnout/Blowout. 01/24/94..................... S-830-6009................... Kaleidoscope............ Fuse Burn Time. 03/01/94..................... S-830-6020................... Small Festival Ball..... Fuse Burn Time, Pyro. Leak. 03/01/94..................... S-830-6021................... Whistling Moon Traveller Fuse Burn Time, Stick Rigidity. 04/21/94..................... S-830-6033................... Nebula 19 Shot.......... Side Ignition, Fuse Burn Time. 04/21/94..................... S-830-6034................... Nebula 9 Shot........... Fuse Burn Time. 05/10/94..................... S-830-6042................... 25 Shot Thunder......... Fuse Burn Time, Burnout/ Blowout, Excess Pyro. Comp. 05/10/94..................... S-830-6043................... Nuclear Bomb............ Fuse Attachment, Burnout/ Blowout. 11/22/94..................... T-830-6111................... Whistling Bottle Rocket. Fuse Burn Time. 11/22/94..................... T-830-6112................... Crackling Golden Palms.. Burnout/Blowout. 04/03/95..................... T-830-6120................... Cosmic Destroyer........ Burnout/Blowout. 05/16/95..................... T-830-6015................... Moon Travel............. Stick Rigidity. 05/16/95..................... T-830-6018................... Moon Travel............. Stick Rigidity. 05/16/95..................... T-830-6019................... Kaleidoscope............ Side Ignition, Fuse Burn Time. 04/11/96..................... 96-830-4125.................. Red Ball Rocket......... Excess Pyro. Comp, Label. 05/16/96..................... 96-830-4090.................. Shot News Transmitter... Fuse Burn Time, Side Ignition. 05/16/96..................... 96-830-4091.................. Kaleidoscope............ Fuse Burn Time. 05/16/96..................... 96-830-4093.................. Moon Travellers......... Fuse Burn Time, Stick Rigidity. 05/16/96..................... 96-830-4094.................. Small Festival Balls.... Fuse Burn Time, Label. 04/09/97..................... 97-830-3866.................. Colour Smoke Ball....... Fuse Burn Time, Label. 04/09/97..................... 97-830-3870.................. Super Stallion.......... Excess Pyro. Comp, Label.

5. Each of the fireworks identified in paragraph 4 above is a ``banned hazardous substance'' pursuant to section 2(q)(1)(B) of the FHSA, 15 U.S.C. Sec. 1261(q)(1)(B) 16 CFR Part 1507, and 16 CFR 1500.17(a)(3).

6. Each of the firework devices identified in paragraph 4 that failed to comply with the labeling requirements are ``misbranded hazardous substances'' pursuant to section 3(b) of the FHSA, 15 U.S.C. 1262(b) and 16 CFR 1500.14(b)(7).

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7. Schneitter knowingly introduced or caused to be introduced into interstate commerce; or received in interstate commerce and delivered or proffered delivery thereof for pay or otherwise, the banned and misbranded hazardous fireworks identified in paragraph 4 above, in violation of sections 4(a) and (c) of the FHSA, 15 U.S.C. 1263(a) and (c).

   3. Response of Schneitter

8. Schneitter denies the allegations of the staff set forth in paragraph 4 through 7 above.

9. Schneitter's products comply with all federal statutes and regulations (including those cited above) and are specifically manufactured to comply with such laws.

10. Schneitter uses the American Fireworks Standard Laboratory (AFSL), an independent testing laboratory, to test its fireworks products for compliance with the FHSA and the Commission's Fireworks Regulations. For those fireworks products not tested by the AFSL, Schneitter employees conduct testing pursuant to the American Pyrotechnic Association's (APA) testing program for compliance with the FHSA and the Commission's Fireworks Regulations.

11. Schneitter vehemently denies it knowingly introduced or caused the introduction in interstate commerce; or received in interstate commerce and delivered or proffered delivery thereof for pay or otherwise, the banned and misbranded hazardous fireworks identified in paragraph 4 above, in violation of section 4(a) and (c) of the FHSA, 15 U.S.C. 1263(a) and (c).

12. Schneitter is only entering into this Settlement Agreement because of the tremendous legal cost of contesting a fine action against the Commission in Court as well as the negative publicity that could be associated with a long drawn out trial.

    4. Agreement of the Parties

13. The Consumer Product Safety Commission has jurisdiction over Schneitter and the subject matter of this Settlement Agreement under the following acts: Consumer Product Safety Act, 15 U.S.C. 2051 et seq., and the Federal Hazardous Substances Act, 15 U.S.C. 1261 et seq.

14. This Settlement Agreement and Order is entered into for the purposes of settlement only and does not constitute a determination by the Commission or an admission by Scheneitter that Scheneitter knowingly violated the FHSA and the Commission's Fireworks Regulations.

15. Upon final acceptance of this Settlement Agreement by the Commission and issuance of the Final Order, Scheneitter knowingly, voluntarily, and completely waives any rights it may have in this matter (1) to an administrative or judicial hearing, (2) to judicial review or other challenge or contest of the validity of the Commission's actions (3) to a determination by the Commission as to whether Schneitter failed to comply with the FHSA as aforesaid, (4) to a statement of findings of fact and conclusion of law, and (5) to any claims under the Equal Access of Justice Act.

16. For purposes of section 6(b) of the CPSA, 15 U.S.C. 2055(b), this matter shall be treated as if a Complaint had issued, and the Commission may publicize the terms of the Settlement Agreement and Order.

17. In settlement of the staff's allegations, Schneitter agrees to pay a civil penalty of $60,000.00 as set forth in the incorporated Order.

18. Upon the full payment of the civil penalty as set forth in the Final Order, the Commission fully releases, acquits, and forever discharges Schneitter and its officers, directors, and/or employees from all claims for civil penalties, demands for civil penalties, liabilities for civil penalties, actions for civil penalties, or causes of actions for civil penalties for all violations from June 5, 1991 through July 22, 1998 for which the Commission has issued letters of advice to Schneitter.

19. Based on current data, the Commission staff believes that fireworks imported under the American Fireworks Standards Laboratory (AFSL) testing and certification program are more likely to comply with the Commission's Fireworks Regulations than non-AFSL fireworks are. Accordingly, the Commission will not pursue FHSA violations against Schneitter for those fireworks products tested and certified by the AFSL as complying with the Commission's Fireworks Regulations, as the AFSL program is currently structured and administered. However, the Commission staff will continue to monitor the AFSL program. If the Commission staff determines that the AFSL program does not adequately assure compliance with the fireworks regulations it will notify Schneitter in writing. After providing such written notice to Schneitter, the Commission staff will have the enforcement discretion to pursue violations of the FHSA and the Commission's Fireworks Regulations against Schneitter for AFSL tested fireworks products received and/or imported by Schneitter after such notification date. The Commission staff's determination on the adequacy of the AFSL testing and certification program is neither reviewable nor subject to challenge by Schneitter nor provides a basis for Schneitter to challenge this Agreement.

20. Upon provisional acceptance of this Settlement Agreement by the Commission, the Commission will place the Settlement Agreement and the Provisional Order on the public record, and publish it in the Federal Register in accordance with the procedures set forth in 16 CFR 118.20(e)-(h). If the Commission does not receive any written requests not to accept the Settlement Agreement within 15 days, the Settlement Agreement shall be deemed finally accepted and the Final Order issued on the 16th day.

21. This Settlement Agreement may be used in interpreting the Order. Agreements, understandings, representations, or interpretations apart from those contained in this Settlement Agreement and Order may not be used to vary or contradict its terms.

22. The provisions of this Settlement Agreement and Order shall apply to Schneitter and each of its successors and assigns.

23. Upon final acceptance of this Agreement, the Commission shall issue the attached Final Order.

    Respondent Schneitter Fireworks and Importing Company, Inc.

    Dated: August 19, 1998. H.E. Schneitter, Jr., President, Schneitter Fireworks and Importing Company, Inc., N.E. Highways I-29 and 71, Box 547, St. Joseph, MO 64502.

    Dated: August 20, 1998. Robert B. Hopkins, Counsel For Respondent Schneitter Fireworks, and Importing Company, Inc., Ober, Kaler, Grimes & Shriver, 120 East Baltimore Street, Baltimore, MD 21202-1643.

    Commission Staff

    Alan H. Schoem, Assistant Executive Director, Consumer Product Safety Commission, Office of Compliance, Washington, D.C. 20207-001. Eric L. Stone, Director, Legal Division, Office of Compliance.

    Dated: August 31, 1998. Dennis C. Kacoyanis, Trial Attorney, Legal Division, Office of Compliance.

    Order

    Upon consideration of the Settlement Agreement entered into between Respondent Schneitter Fireworks and Importing Company, Inc., a corporation, and the staff of the Consumer Product Safety Commission; and the

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    Commission having jurisdiction over the subject matter and Schneitter Fireworks and Importing Company, Inc.; and it appearing that the Settlement Agreement and Order is in the public interest, it is

    Ordered, that the Settlement Agreement be and hereby is accepted; and it is

    Further Ordered, that upon final acceptance of the Settlement Agreement Order, Schneitter Fireworks and Importing Company, Inc. shall pay to the Commission a civil penalty in the amount of SIXTY THOUSAND AND 00/100 DOLLARS ($60,000.00) in three (3) payments each. The first payment of TWENTY THOUSAND AND 00/100 DOLLARS ($20,000.00) shall be due within twenty (20) days after service upon Respondent of the Final Order of the Commission accepting the Settlement Agreement (hereinafter, the ``anniversary date''). The second payment of TWENTY THOUSAND AND 00/100 DOLLARS ($20,000.00) shall be made within one (1) year of the anniversary date. The third payment of TWENTY THOUSAND AND 00/100 DOLLARS ($20,000.00) shall be made within two (2) years of the anniversary date. Upon the failure by Schneitter Fireworks and Importing Co., Inc. to make a payment or upon Schneitter Fireworks and Importing Co., Inc. making a late payment (a) the entire amount of the civil penalty shall be due and payable, and (b) interest on the outstanding balance shall accrue and be paid at the federal legal rate of interest under the provisions of 28 U.S.C. 1961(a) and (c).

    Provisionally accepted and Provisional Order issued on the 7th day of October, 1998.

    By Order of the Commission. Sadye E. Dunn, Secretary, Consumer Product Safety Commission.

    [FR Doc. 98-27410Filed10-13-98; 8:45 am]

    BILLING CODE 6355-01-M