[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]
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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.
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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.,
[[Page 55093]]
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).
I. 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.
II. 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).
[[Page 55094]]
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).
III. 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.
IV. 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
[[Page 55095]]
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. 98-27410 Filed 10-13-98; 8:45 am]
BILLING CODE 6355-01-M