[Federal Register: December 9, 1994]
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CONSUMER PRODUCT SAFETY COMMISSION
[CPSC Docket No. 95-C0004]
Bethany Sales Co., Inc., a Corporation; Provisional Acceptance of
a Settlement Agreement and Order
AGENCY: Consumer Product Safety Commission.
ACTION: Provisional Acceptance of a Settlement Agreement under the
Consumer Product Safety Act.
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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 16 CFR 1118.20(e)-
(h). Published below is a provisionally-accepted Settlement Agreement
with Bethany Sales Company, Inc., a corporation.
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 December 27, 1994.
ADDRESSES: Persons wishing to comment on this Settlement Agreement
should send written comments to the Comment 95-C0004, 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.
SUPPLEMENTARY INFORMATION: The text of the Agreement and Order appears
below.
Dated: December 5, 1994.
Sadye E. Dunn,
Secretary.
Settlement Agreement and Order
1. Bethany Sales Company, Inc. (hereinafter, ``Bethany''), a
corporation, enters into this Settlement Agreement and Order
(hereinafter, ``Settlement Agreement'') with the staff of the Consumer
Product Safety Commission, and agrees to the entry of the Order
attached. The purpose of the Settlement Agreement is to settle the
staff's allegations that Bethany 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, an independent regulatory Commission of the United States
established pursuant to section 4 of the Consumer Product Safety Act
(CPSA), 15 U.S.C. 2053.
3. Bethany is a corporation organized and existing under the laws
of the State of Illinois, since 1956. The firm's principal place of
business is located at 131 West Main Street, Bethany, IL 61914.
II. Allegations of the Staff
4. On seven occasions between May 8, 1991, and April 1, 1994,
Bethany introduced or caused the introduction into interstate commerce;
or received in interstate commerce and delivered or proffered delivery
thereof for pay or otherwise eight different kinds of non-complying
fireworks (5,833,574 retail units) which are identified and described
below:
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Entry date,
Sample No. Product collec date*
Expt/Mfg
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M-830-0434..................... Dragon Trill 37 Shots.......... 05/08/91
Kwongyuen Hangkee Co.
P-830-5087..................... Jumping Jacks.................. 03/13/92
United Fireworks.
R-830-4091..................... General Custer's Last Stand.... 05/07/93
Kwongyuen Hangkee Co.
S-830-4123..................... Warhead Launcher............... 12/10/93
Panda Fireworks.
S-830-4131..................... Small Festival Balls........... *01/13/94
Panda Fireworks.
S-830-4143..................... Warhead Launcher............... 03/01/94
Panda Fireworks.
S-830-4144..................... News Transmitter............... 03/01/94
Panda Fireworks.
S-830-4152..................... Kaleidoscope................... 04/01/94
Panda Fireworks.
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5. The firework device identified as Dragon Trill 37 Shots, No.
Y03-021, Sample No. M-830-0434 in paragraph 4 above is subject to, but
failed to comply with, the Commission's Fireworks Regulations, 16 CFR
part 1507, in that when tested, it failed to comply with the fuse burn
time and fuse attachment requirements in 16 CFR 1507.3(a)(2) and
1507.3(b).
6. The firework device identified as Jumping Jack Fireworks, No.
T3500, Sample No. P-830-5087 in paragraph 4 above is subject to, but
failed to comply with, the Commission's Fireworks Regulations, 16 CFR
part 1507, in that when tested, it failed to comply with the fuse burn
time requirement in 16 CFR 1507.3(a)(2).
7. The firework device identified as General Custer's Last Stand,
No. K7783E, Sample No. R-830-4091 in paragraph 4 above is subject to,
but failed to comply with, the Commission's Fireworks Regulations, 16
CFR part 1507 and 16 CFR 1500.17(a)(3), in that when tested, it failed
to comply with the fuse attachment and excessive pyrotechnic
composition requirements in 16 CFR 1507.3(b) and 16 CFR 1500.17(a)(3).
8. The firework device identified as Warhead Launcher, No. K4426,
Sample No. S-830-4123 in paragraph 4 above is subject to, but failed to
comply with, the Commission's Fireworks Regulations, 16 CFR part 1507,
in that when tested, it failed to comply with the base to height ratio
and pyrotechnic leakage requirements contained in 16 CFR 1507.4 and
1507.5.
9. The firework device identified as Small Festival Balls, No.
0008, Sample No. S-830-4131 in paragraph 4 above is subject to, but
failed to comply with, the Commission's Fireworks Regulations, 16 CFR
part 1507, in that when tested, it failed to comply with the fuse burn
time and fuse attachment requirements contained in 16 CFR 1507.3(a)(2)
and 1507.3(b).
10. The firework device identified as Warhead Launcher, No. K4426,
Sample No. S-830-4143 in paragraph 4 above is subject to, but failed to
comply with, the Commission's Fireworks Regulations, 16 CFR part 1507,
in that when tested, it failed to comply with the base to height ratio
requirement contained in 16 CFR 1507.4.
11. The firework device identified as News Transmitter, No. T2508,
Sample No. S-830-4144 in paragraph 4 above is subject to, but failed to
comply with, the Commission's Fireworks Regulations, 16 CFR part 1507,
in that when tested, it failed to comply with the pyrotechnic leakage
requirement contained in 16 CFR 1507.5.
12. The firework device identified as Kaleidoscope, No. T2512,
Sample No. S-830-4152 in paragraph 4 above is subject to, but failed to
comply with, the Commission's Fireworks Regulations, 16 CFR part 1507,
in that when tested, it failed to comply with the pyrotechnic leakage
requirement contained in 16 CFR 1507.5.
13. Each of the fireworks identified in paragraph 4 above are
``banned hazardous substances'' 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).
14. Bethany knowingly introduced or caused the introduction into
interstate commerce; or received in interstate commerce and delivered
or proffered delivery thereof for pay or otherwise, the banned
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 Bethany
15. Bethany denies the allegations of the staff set forth in
paragraphs 4 through 14 above that it knowingly introduced or caused
the introduction into interstate commerce; or received in interstate
commerce and delivered or proffered delivery thereof for pay or
otherwise the banned 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).
IV. Agreement of the Parties
16. The Consumer Product Safety Commission has jurisdiction over
Bethany 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.
17. The Commission and Bethany agree that this Agreement is entered
into for the purposes of settlement only and does not constitute an
admission that Bethany knowingly violated the FHSA.
18. Upon final acceptance of this Settlement Agreement by the
Commission and issuance of the Final Order, Bethany 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 Bethany failed to comply with the FHSA as aforesaid, (4) to a
statement of findings of fact and conclusions of law, and (5) to any
claims under the Equal Access to Justice Act, 5 U.S.C. 504.
19. 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.
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 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 be deemed finally accepted and the Final Order shall be
deemed issued on the 16th day.
21. This Settlement Agreement may be used in interpreting the
Provisional and Final Orders. Agreements, understandings,
representations, or interpretations apart from those contained in this
Settlement Agreement may not be used to vary or to contradict its
terms.
22. The provisions of the Settlement Agreement and Final Order
shall apply to Bethany and each of its successors and assigns.
23. Upon final acceptance of this Agreement, the Commission shall
issue the attached Order.
Dated: October 28, 1994.
Respondent Bethany Sales Company, Inc.
By:
Jack Scott, Sr.,
Chairman and Chief Executive Officer, Bethany Sales Company, Inc., Box
248, 131 West Main Street, Bethany, IL 61914.
Dated: October 28, 1994.
By:
Jack Scott, Jr.,
President, Bethany Sales Company, Inc., Box 248, 131 West Main Street,
Bethany, IL 61914.
Commission Staff.
David Schmeltzer,
Assistant Executive Director, Office of Compliance and Enforcement.
Eric L. Stone,
Acting Director, Division of Administrative Litigation, Office of
Compliance and Enforcement.
Dated: October 31, 1994.
By:
Dennis C. Kacoyanis,
Trial Attorney, Division of Administrative Litigation, Office of
Compliance and Enforcement.
Order
Upon consideration of the Settlement Agreement entered into between
respondent Bethany Sales Company, Inc., a corporation, and the staff of
the Consumer Product Safety Commission; and the Commission having
jurisdiction over the subject matter and Bethany Sales 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 and Order, Bethany Sales Company, Inc. shall pay to the
Commission a civil penalty in the amount of ten thousand and 00/100
dollars ($10,000) in three (3) payments consisting of two payments of
two thousand five hundred dollars and 00/100 (2,500.00) and one (1)
payment of five thousand and 00/100 dollars ($5,000.00) each. The first
payment of two thousand five hundred and 00/100 dollars ($2,500.00)
shall be due within twenty (20) days after service of the Final Order
of the Commission accepting the Settlement Agreement, hereinafter, the
``anniversary date.'' The second payment of two thousand five hundred
and 00/100 dollars ($2,500.00) shall be made within 180 days of the
anniversary date. The third payment of five thousand and 00/100 dollars
($5,000.00) shall be made within 365 days of the anniversary date. Upon
the failure by Bethany Sales Company, Inc. to make a payment or upon
the making of a late payment by Bethany Sales Company, Inc. (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 (b).
Provisionally accepted and Provisional Order issued on the 5th day
of December 1994.
By Order of the Commission.
Sadye E. Dunn,
Secretary, Consumer Product Safety Commission.
[FR Doc. 94-30248 Filed 12-8-94; 8:45 am]
BILLING CODE 6355-01-M