[Federal Register: May 5, 1994]
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CONSUMER PRODUCT SAFETY COMMISSION
[CPSC Docket No. 94-C0010]
Victor Reichenbach d/b/a Reichenbach Fireworks; Provisional
Acceptance of a Consent Order Agreement
AGENCY: Consumer Product Safety Commission.
ACTION: Provisional acceptance of a consent order agreement under the
Federal Hazardous Substances Act (FHSA).
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SUMMARY: It is the policy of the Commission to publish settlements
which it provisionally accepts in the Federal Register in accordance
with the terms of 16 CFR 1605.13. Published below is a provisionally
accepted Consent Order Agreement with Victor Reichenbach d/b/a
Reichenbach Fireworks.
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 May 20, 1994.
ADDRESSES: Persons wishing to comment on this Settlement Agreement
should send written comments to the Comment 94-C0010, Office of the
Secretary, Consumer Product Safety Commission, Washington, DC 20207.
FOR FURTHER INFORMATION CONTACT:
William J. Moore, Trial Attorney, Office of Compliance and Enforcement,
Consumer Product Safety Commission, Washington, DC 20207; telephone
(301) 504-0626.
SUPPLEMENTARY INFORMATION: (Attached)
Dated: April 28, 1994.
Sheldon D. Butts,
Deputy Secretary.
Victor Reichenbach, d/b/a Reichenbach Fireworks; Settlement Agreement
and Order
1. Victor Reichenbach, owner of Reichenbach Fireworks (hereinafter,
``Reichenbach''), a sole proprietorship, enters into this Settlement
Agreement (hereinafter, ``Agreement'') with the staff of the Consumer
Product Safety Commission, and agrees to the entry of the Order
described herein. The purpose of the Agreement and Order is to settle
the staff's allegations that Reichenbach knowingly caused delivery for
introduction into, and/or the receipt in interstate commerce of,
certain banned hazardous substances and/or misbranded hazardous
substances, to wit, fireworks, in violation of sections 4 (a) and (c)
of the Federal Hazardous Substances Act, 15 U.S.C. 1263 (a) and (c).
I. Jurisdiction
2. The Commission has jurisdiction over Reichenbach and the subject
matter of this Settlement Agreement pursuant to section 30(a) of the
Consumer Product Safety Act (hereinafter, ``CPSA''), 15 U.S.C. 2079(a),
and sections 2(f)(1) (A) and (B), 4 (a) and (c), and 5(c) of the
Federal Hazardous Substances Act (hereinafter, ``FHSA''), 15 U.S.C.
1261(f)(1) (A) and (B), 1263 (a) and (c), and 1264(c).
II. The Parties
3. The ``staff'' is the staff of the Consumer Product Safety
Commission, an independent regulatory commission of the United States
established pursuant to section 4 of the CPSA 15 U.S.C. 2053.
4. Victor Reichenbach is the sole proprietor of Reichenbach
Fireworks, located in the state of Montana, with its principal
corporate offices located at 815 High Ridge Drive, Billings, Montana
59105. Reichenbach fireworks is engaged in the business of importing
and selling fireworks in the United States.
III. Allegations of the Staff
5. Between April 2, 1991, and June 18, 1991, Reichenbach Fireworks
caused the delivery for introduction into interstate commerce, and/or
received in interstate commerce, banned hazardous substances and
misbranded hazardous substances, to wit, fireworks, which are
identified and described below:
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CPSC collection CPSC sample No./
date location fireworks device Violation(s)
------------------------------------------------------------------------
April 16, 1991, M-870-6319/Color Excessive pyrotechnic leakage,
Billings, MN. Pearl flowers (mines/ 16 CFR 1507.5.
shells).
Side ignition occurred, 16 CFR
1507.3(a)(1).
Misbranded, 16 CFR
1500.14(b)(7).
April 16, 1991, M-870-6320/Kaleidosco Excessive pyrotechnic leakage,
Billings MN. pe (flaming balls/ 16 CFR 1507.5.
report).
Fuse burn time too short, 16
CFR 1507.3(a)(2).
Failed blowout requirement, 16
CFR 1507.6.
M-870-6713/Small Excess pyrotechnic leakage, 16
festival balls (100 CFR 1507.5.
foot shells).
Fuse burn time too short, 16
CFR 1507.3(a)(2).
Failed fuse weight support
test, 16 CFR 1507.3(b).
M-870-6316/White Fuse burn time too short, 16
Orchid (flaming CFR 1507.3(a)(2).
balls, 50 feet).
Misbranded, 16 CFR
1500.14(b)(7).
M-870-6315/Celebratin Excess pyrotechnic leakage, 16
g Fireworks w/ CFR 1507.5.
Firecracker.
Fuse burn time too long, 16 CFR
1507.3(a)(2).
Exceeded grain (2) grains=130
mg) report weight, 16 CFR
1500.17(a)(3).
Misbranded, 16 CFR
1500.14(b)(7).
April 16, 1991, M-870-6314/Blossom Fuse burn time too short, 16
Billings, MN. After Thunder CFR 1507.3(b).
(flaming balls, 30-
70 feet).
Failed fuse weight support
test, 16 CFR 1507.3(b).
Excess report weight, 16 CFR
1500.17(a)(3).
Misbranded, 16 CFR
1500.14(b)(7).
M-870-6310/Flashing Fuse burn time too long, 16 CFR
Thunder (Flaming 1507.3(a)(2).
balls, 25 feet with
report).
Excess report weight, 16 CFR
1500.17(a)(3).
M-870-1281/96 Shot Fuse burn time too short, 16
Color Peak Flames. CFR 1507.3(a)(2).
Excess pyrotechnic leakage, 16
CFR 1507.5.
M-870-1282/News Exhibited blowout, 16 CFR
Transmitter (flaming 1507.6.
balls 5-50 Feet).
Excess pyrotechnic leakage, 16
CFR 1507.5.
Fuse burn time too short, 16
CFR 1507.3(a)(2).
April 30, 1991, M-870-2722(A)/Sky Fuse burn time too short, 16
Port of Boom Rockets. CFR 1507.3(a)(2).
Portland, OR.
Failed stick rigidity test, 16
CFR 1507.10.
April 30, 1991, M-870-2722(B)/Color Fuse burn time too short, 16
Port of Silk Rocket. CFR 1507.3(a)(2).
Portland, OR.
Failed stick rigidity test, 16
CFR 1507.10.
M-870-2772(c)/Aerial Fuse burn time too short, 16
Flash Rocket. CFR 1507.3(a)(2).
Failed stick rigidity test, 16
CFR 1501.10.
M-870-2722(D)/Willow Fuse burn time too short, 16
Rocket. CFR 1507.3(a)(2).
Failed stick rigidity test, 16
CFR 1507.10.
M-870-2723/B-3 Exhibited blowout, 16 CFR
Bomber. 1507.6.
May 22, 1991, M-872-2809/Twitter Fuse burn time too long, 16 CFR
Port of Glitter. 1507.3(a)(2).
Seattle, WA.
Excess pyrotechnic leakage, 16
CFR 1507.5.
Failed blowout requirement, 16
CFR 1507.6.
Excess report weight, 16 CFR
1500.17(a)(3).
Failed fuse weight support
test, 16 CFR 1507.3(b).
M-872-2810/Lawman- Fuse burn time too long, 16 CFR
Lawman-25 Shots 1507.3(a)(2).
(flaming balls with
whistles and
reports).
Fuse missing.
June 9, 1992, P-863-8074/Color Excessive pyrotechnic leakage,
Port of Denver, Pearl Flowers 16 CFR 1507.5.
CO. (flaming balls 10-40
feet high with
report).
Burning debris fell to ground
in 8 of 8 tested.
Report discharged on ground.
P-863-8075/Saturn Exhibited side ignition in less
Missile Battery. than 5 seconds,16 CFR
1507.3(a)(1).
P-863-8080/Artillery Excess pyrotechnic leakage, 16
Shell. CFR 1507.5.
June 10, 1991, M-870-2731/Fireworks Fuse burn time too short, 16
Port of for Celebration. CFR 1507.3(a)(2).
Portland, OR.
Excess pyrotechnic composition
for report weight, 16 CFR
1500.17(a)(3).
Misbranded, 16 CFR 1500.121.
M-870-2733/Spring Fuse burn time too short, 16
Prevails over Garden CFR 1507.3(a)(2).
(shoots flaming
balls 40-50 feet
into air).
Misbranded, 16 CFR 1500.121.
Burning debris fell to earth on
test analyst and ignited grass
fires.
M-870-2735/Celebratio All three sets exhibited excess
n Crackers (Three report weight, 16 CFR
different sizes of 1500.17(a)(3).
fire cracker sets).
------------------------------------------------------------------------
With regard to samples M-870-6315 (Celebrating Fireworks with
Firecrackers), M-870-6314 (Blossom after Thunder), and M-870-6310
(Flashing Thunder) noted above, these are ``Class B'' fireworks.
Reichenbach Fireworks imported them in consumer packaging and sold them
to retailers licensed to sell only ``Class C'' fireworks to consumers.
``Class B'' devices are defined by the U.S. Department of
Transportation, 44 CFR 173.88(a) and (d) and 173.100 (a) and (r) and
have significantly greater pyrotechnic composition than ``Class C''
fireworks. For this reason, they pose a greater risk of injury to
consumers.
6. For the specific reasons set out in paragraph 5 above, the
fireworks described therein failed to comply with the Commission's
fireworks regulations.
7. Each of the fireworks devices named in paragraph 5 above,
therefore, is a banned hazardous substance. 15 U.S.C. 1261(q)(1)(B), 16
CFR 1500.17(a)(3) and 16 CFR part 1507.
8. Certain fireworks identified in paragraph 5 above also fail to
comply with the Commission's labeling requirements for fireworks and,
therefore, are misbranded hazardous substances. 15 USC 1261(p) (1) and
(2), 15 U.S.C. 1262(b); 16 CFR 1500.14(b)(7) and 16 CFR 1500.121.
9. Reichenback Fireworks knowingly received and caused the
introduction into interstate commerce of the aforesaid banned and
misbranded hazardous substances, in violation of section 4 (a) and (c)
of the FHSA, 15 U.S.C. 1263 (a) and (c). The Commission may impose a
civil penalty for these violations pursuant to section 5 (c) of the
FHSA, 15 U.S.C. 1264(c).
IV. Response of Reichenbach Fireworks
10. Reichenbach Fireworks denies the allegations of the staff that
it knowingly received or caused the introduction into commerce of the
aforesaid banned or misbranded hazardous substances, or that it
violated the FHSA as alleged by the staff.
V. Agreement of the Parties
11. The Consumer Product Safety Commission has jurisdiction over
Reichenbach and the subject matter of this Settlement Agreement and
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.,
12. Reichenbach agrees to pay to the Commission a civil penalty in
the amount of Fifteen Thousand and 00/100 Dollars ($15,000.00) within
ten (10) days after service of the Final Order of the Commission
accepting this Settlement Agreement.
13. The Commission does not make any determination that Reichenbach
knowingly violated the FHSA. The Commission and Reichenbach agree that
this Agreement is entered into for the purposes of settlement only.
14. Upon provisional acceptance of this Settlement Agreement and
Order by the Commission, this Settlement Agreement and Order shall be
placed on the public record and shall be published 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 request
not to accept the Settlement Agreement and Order within 15 days, the
Settlement Agreement and Order will be deemed finally accepted on the
16th day after the date it is published in the Federal Register.
15. Upon final acceptance of this Settlement Agreement by the
Commission and issuance of the Final Order, Reichenbach 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 Reichenbach failed to comply with the FHSA as aforesaid, and
(4) to a statement of findings of fact and conclusions of law.
16. For purposes of section 6(b)(5) of the CPSA, 15 U.S.C.
2055(b)(5), this matter shall be treated as if a complaint had been
issued.
17. The parties further agree that the Commission shall issue the
attached Order incorporated herein by reference; and that a violation
of the Order shall subject Reichenbach to appropriate legal action.
18. No agreement, understanding, representation, or interpretation
not contained in this Settlement Agreement and Order may be used to
vary or to contradict its terms.
19. The provisions of the Settlement Agreement and Order shall
apply to Reichenbach and each of his successors and assigns.
Dated: January 26, 1994.
Reichenbach Fireworks
Victor Reichenbach,
Owner, Reichenbach Fireworks, 815 High Ridge Drive, Billings, Montana
59105.
Commission Staff
David Schmeltzer,
Assistant Executive Director, Office of Compliance and Enforcement.
Alan H. Schoem,
Director, Division of Administrative Litigation, Office of Compliance
and Enforcement.
Dated: February 2, 1994.
By: William J. Moore,
Trial Attorney, division of Administrative Litigation, Office of
Compliance and Enforcement.
Victor Reichenbach, d/b/a Reichenbach Fireworks; Order
Upon consideration of the Settlement Agreement entered into between
respondent Victor Reichenbach, d/b/a Reichenbach Fireworks, a sole
proprietorship, and the staff of the Consumer Product Safety
Commission; and the Commission having jurisdiction over the subject
matter and Reichenbach Fireworks; and it appearing that the Settlement
Agreement is in the public interest, it is, hereby
Ordered, That Victor Reichenbach shall pay, within 10 days of final
acceptance of this Settlement Agreement and service of this Order, a
civil penalty in the amount of $15,000.00 to the U.S. Consumer Product
Safety Commission.
Provisionally accepted on the 28th day of April, 1994.
By Order of the Commission.
Sadye E. Dunn,
Secretary, Consumer Product Safety Commission.
[FR Doc. 94-10858 Filed 5-4-94; 8:45 am]
BILLING CODE 6355-01-M