[Federal Register: June 9, 2000 (Volume 65, Number 112)]
[Notices]
[Page 36670-36672]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr09jn00-46]
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CONSUMER PRODUCT SAFETY COMMISSION
[CPSC Docket No. 00-C0010]
Red Rock Trading Co., Inc., a Corporation, and Blackjack
Fireworks, Inc., a Corporation, 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 Substances
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 Red Rock Trading Co., Inc., a corporation, and Blackjack
Fireworks, Inc., a corporation, containing a civil penalty of
$90,000.\1\
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\1\ Chairman Ann Brown and Commissioner Thomas H. Moore voted to
provisionally accept the agreement. Commissioner Mary Sheila Gall
voted to reject the agreement. Chairman Brown and Commissioner Gall
filed statements concerning their respective votes, copies of which
are available from the Office of the Secretary, Consumer Product
Safety Commission, Washington, DC 20207.
DATES: Any interested person may ask the Commission not to accept this
agreement or otherwise comment on its contents by filing a written
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request with the Office of the Secretary by June 24, 2000.
ADDRESSES: Persons wishing to comment on this Settlement Agreement
should send written comments to the Comment 00-C0010, Office of the
Secretary, Consumer Product Safety Commission, Washington, DC 20207.
FOR FURTHER INFORMATION CONTACT: Dennis C. Kacoyanis, Trial Attorney,
Office of Compliance and Enforcement, Consumer Product Safety
Commission, Washington, DC 20207; telephone (301) 504-0626, 1346.
SUPPLEMENTARY INFORMATION: The text of the Agreement and Order appears
below.
Dated: June 5, 2000.
Sadye E. Dunn,
Secretary.
Settlement Agreement and Order
1. Red Rock Trading Company, Inc. (hereinafter, ``Red Rock''), a
corporation and Blackjack Fireworks, Inc. (hereinafter, ``Blackjack''),
a corporation enter into this Settlement Agreement and Order
(hereinafter, ``Settlement Agreement'' or ``Agreement'') with the staff
of the Consumer Product Safety Commission, and agree to the entry of
the attached Order incorporated by reference herein. The purpose of the
Settlement Agreement is to settle the staff's allegations that Red Rock
and Blackjack 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. Red Rock is a corporation organized and existing under the laws
of the State of Nevada. Red Rock's corporate address is 6000 South
Eastern, Suite 11E, Las Vegas, NV 89119, Red Rock imports and
distributes consumer fireworks.
4. Blackjack is a corporation organized and existing under the laws
of the State of Nevada. Blackjack's corporate address is 6000 South
Eastern, Suite 11E, Las Vegas, NV 89119. Blackjack sells consumer
fireworks.
II. Allegations of the Staff
5. On 19 occasions between December 14, 1994 and May 20, 1999, Red
Rock and Blackjack introduced or caused the introduction in interstate
commerce of 36 different kinds of fireworks devices (703,823 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).
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Collection date * Entry date Sample No. Product Violation
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12/14/94 *.............................. T-830-7216 Bottle Rockets.................. Fuse Attachment.
05/08/95................................ T-830-4030 Candle Star..................... Fuse Burn Time, Side Ignition.
05/08/95................................ T-830-4162 News Transmitter................ Fuse Attachment, Fuse Burn Time.
06/02/95................................ T-830-7345 Moon Traveller.................. Fuse Burn Time, Fuse Attachment.
09/26/96 *.............................. 96-860-6467 Jumping Jacks................... Fuse Burn Time.
09/26/96 *.............................. 96-860-6468 Whistling Moon Traveller........ Stick Rigidity.
09/26/96 *.............................. 96-860-6470 General Custer's Last Stand..... Fuse Burn Time.
09/26/96 *.............................. 96-860-6472 Artillery Shell................. Fuse Burn Time.
04/21/97 *.............................. 97-830-3219 Cobra Black Snake............... Excess Arsenic.
04/21/97 *.............................. 97-860-3220 Battle of Colors................ Excess Pyrotechnic, Composition.
05/15/97................................ 97-830-4214 Night Shell..................... Fuse Burn Time.
05/15/97................................ 97-830-4215 Overlord in Sky................. Excess Pyrotechnic, Composition, Pyrotechnic Leakage.
05/15/97................................ 97-830-4216 Battle of Colors................ Excess Pyrotechnic, Compositon, Fuse Burn Time, Burnout/
Blowout.
06/19/97................................ 97-830-3259 Spring Thunder.................. Excess Pyrotechnic, Composition.
06/19/97................................ 97-830-3530 Rattles Colored Snakes.......... Excess Arsenic.
07/11/97................................ 97-830-6350 Ninja Shell..................... Fuse Burn Time.
04/09/98................................ 98-860-6074 News Transmitter................ Fuse Burn Time.
04/09/98................................ 98-860-6079 7 Shot Night Shell.............. Fuse Attachment, Tipover.
05/05/98................................ 98-860-6848 Sky Travel Barrage.............. Fuse Burn Time.
05/21/98................................ 98-860-6999 Victory Celebration............. Fuse Attachment.
[[Page 36671]]
05/22/98................................ 98-860-6810 Smoke Toy Device................ Fuse Burn Time, Side Ignition, External Flame.
05/22/98................................ 98-860-6811 2 Color Smoke................... Fuse Burn Time, External Flame.
06/19/98................................ 98-830-3830 Night Shell..................... Tipover, Side Ignition.
06/19/98................................ 98-830-3831 Thunder Crackling............... Labeling, Excess Pyrotechnic, Composition, Fuse Burn Time,
Side Ignition.
06/19/98................................ 09-830-3832 Thunder & Rain.................. Labeling Excess Pyrotechnic, Composition, Fuse Burn Time,
Side Ignition.
06/19/98................................ 98-830-3833 Command Teste................... Excess Pyrotechnic, Composition.
06/19/98................................ 98-830-3834 Sunglow......................... Excess Pyrotechnic, Composition.
06/15/98................................ 98-830-6843 Moon Travellers................. Stick Rigidly.
06/15/98................................ 98-830-6844 Air Travel...................... Fuse Burn Time.
12/09/98................................ 99-830-3311 96 Color Peal................... Fuse Burn Time, Side Ignition.
03/30/99................................ 99-860-5662 10 Ball Roman Candle............ Fuse Burn Time.
03/30/99................................ 99-860-5663 10 Ball Roman Candle............ Excess Pyrotechnic, Composition.
04/19/99................................ 99-860-6063 Jumping Jacks................... Pyrotechnic, Leakage.
05/12/99................................ 99-860-5654 Small Festival Balls............ Fuse Burn Time.
05/12/99................................ 99-860-5658 Dragon Dancing.................. Side Ignition.
05/20/99................................ 99-860-6192 Artillery Shell................. Pyrotechnic, Leakage.
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6. Each of the fireworks devices identified in paragraph 5 above is
a ``banned hazardous substance'' pursuant to section 2(q)(1)(B) of the
FHSA, 15 U.S.C. 1261(q)(1)(B), 16 CFR Part 1507, and 16 CFR
1500.17(a)(3).
7. Each of the fireworks devices identified in paragraph 5 above
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).
8. Red Rock and Blackjack 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 5
above, in violation of sections 4(a) and (c) of the FHSA, 15 U.S.C.
1263(a) and (c).
III. Response of Red Rock and Blackjack
9. Red Rock and blackjack deny the allegations of the staff set
forth in paragraphs 5 through 8 above.
10. Red Rock's and Blackjack's products comply with all federal
statutes and regulations (including those cited above) and are
specifically manufactured to comply with such laws. Red Rock and
Blackjack, in fact, have arranged for many of their products to be
tested by qualified individuals to ensure compliance with all such
laws. Moreover, Red Rock and Blackjack are aware of no injuries
associated with any products imported by them over the years.
11. Red Rock and Blackjack vehemently deny they knowingly
introduced or caused the introduction in interstate commerce; or
received in interstate commerce and delivered or proffered delivery
thereof for pay or otherwise any banned hazardous substances and/or
misbranded hazardous substances, including the alleged banned hazardous
substances and/or alleged misbranded hazardous substances described
above in paragraph 5.
12. Red Rock and Blackjack are 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
Red Rock and Blackjack, and the subject matter of this Settlement
Agreement and incorporated Order 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. Red Rock and Blackjack agree to the entry of the attached Order
which is incorporated herein by reference.
15. 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 Red Rock and Blackjack that Red Rock
and Blackjack knowingly violated the FHSA and the Commission's
Fireworks Regulations.
16. Upon final acceptance of this Settlement Agreement by the
Commission and issuance of the Final Order, Red Rock and Blackjack
knowingly, voluntarily, and completely waived any rights they 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 Red Rock and Blackjack failed to comply with the FHSA, (4) to a
statement of findings of fact and conclusions of law, and (5) to any
claims under the Equal Access to Justice Act.
17. 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
incorporated Order.
18. In settlement of the staff's allegations, Red Rock and
Blackjack agree to pay a civil penalty of $90,000.00 as set forth in
the incorporated Order.
19. Upon the full payment of the civil penalty as set forth in the
Final Order, the Commission fully releases, acquits, and forever
discharges Red Rock and Blackjack 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 December 14, 1994 through December 31, 1999 for which the
Commission has issued letters of advice to Red Rock and Blackjack.
20. Upon provisional acceptance of this Settlement Agreement by the
Commission, the Commission will place the Settlement Agreement and the
incorporated Order on the public record, and publish it in the Federal
Register in accordance with the procedures set forth in 16 CFR
1118.20(e)-(h). If the Commission does not receive any written requests
not to accept the Settlement Agreement within 15 days, the Settlement
Agreement shall
[[Page 36672]]
be deemed finally accepted and the Final Order issued on the 16th day.
21. Red Rock and Blackjack have recently become members of the
American Fireworks Standards Laboratory (AFSL). Based on current data,
the Commission staff believes that fireworks imported under the 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 Red
Rock and Blackjack for those fireworks products legitimately tested and
certified by 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 Red Rock and Blackjack in writing. After
providing such written notice to Red Rock and Blackjack, the Commission
staff will have the enforcement discretion to pursue violations of the
FHSA and the Commission's Fireworks Regulations against Red Rock and
Blackjack for AFSL tested fireworks products received and/or imported
by Red Rock and Blackjack 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
Red Rock and Blackjack nor provides a basis for Red Rock and Blackjack
to challenge this Agreement.
22. This Settlement Agreement may be used in interpreting the
Order. Agreements, understandings, representations, or interpretations
apart from those contained in this Settlement Agreement and
incorporated Order may not be used to vary or contradict its terms.
23. The provisions of this Settlement Agreement and Order shall
apply to Red Rock and Blackjack and each of their successors and
assigns.
24. Upon final acceptance of this Agreement, the Commission shall
issue the attached Final Order.
Respondent's Red Rock Trading Company, Inc. and Blackjack
Fireworks, Inc.
Dated: March 13, 2000.
Tim McCoy,
President, Red Rock Trading Company, Inc. and Blackjack Fireworks,
Inc., 6000 South Eastern, Suite 11E, Las Vegas, NV 89119.
Commission Staff
Alan H. Schoem,
Assistant Executive Director, Consumer Product Safety Commission,
Office of Compliance, Washington, D.C. 20207-0001.
Eric L. Stone,
Director, Legal Division, Office of Compliance.
Dated: March 16, 2000.
Dennis C. Kacoyanis,
Trial Attorney, Legal Division, Office of Compliance.
Order
Upon consideration of the Settlement Agreement entered into between
Respondents Red Rock Trading Company, Inc., a corporation, Blackjack
Fireworks, Inc., a corporation, and the staff of the Consumer Product
Safety Commission; and the Commission having jurisdiction over the
subject matter and Red Rock Trading Company, Inc. and Blackjack
Fireworks, 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 and Order, Red Rock Trading Company, Inc. and Blackjack
Fireworks, Inc. shall pay a civil penalty in the amount of ninety
thousand and 00/100 dollars ($90,000.00) in three (3) payments. The
first payment of forty thousand and 00/100 dollars ($40,000.00) shall
be due within twenty (20) days after service upon Red Rock Trading
Company, Inc. and Blackjack Fireworks, Inc. of the Final Order of the
Commission accepting the Settlement Agreement (hereinafter, the
``anniversary date''). The second payment of twenty-five thousand and
00/100 dollars ($25,000.00) shall be paid on or before August 1, 2000.
The third payment of twenty-five thousand and 00/100 dollars
($25,000.00) shall be made within one year of the anniversary date.
Upon the failure of Red Rock Trading Company, Inc. and Blackjack
Fireworks, Inc. to make a payment or upon Red Rock Trading Company,
Inc. and Blackjack Fireworks, 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 5th
day of June, 2000.
By order of the Commission.
Sadye E. Dunn,
Secretary, Consumer Product Safety Commission.
[FR Doc. 00-14543 Filed 6-8-00; 8:45 am]
BILLING CODE 6355-01-M