[Federal Register: April 13, 1995]
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CONSUMER PRODUCT SAFETY COMMISSION
[CPSC Docket No. 95-C0009]
Neptune Fireworks Company, 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 of publish settlements
which it provisionally accepts under the Consumer Product Safety Act in
the Federal Register in accordance with the terms of 16 C.F.R.
1118.20(e)-(h). Published below is a provisionally-accepted Settlement
Agreement with Neptune Fireworks 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 April 28, 1995.
ADDRESSES: Persons wishing to comment on this Settlement Agreement
should send written comments to the Comment 95-C0009, 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: April 7, 1995.
Sadye E. Dunn,
Secretary.
Settlement Agreement and Order
1. Neptune Fireworks Company, Inc. (hereinafter, ``Neptune''), 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
described herein. The purpose of the Settlement Agreement is to settle
the staff's allegations that Neptune 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. Neptune is a corporation organized and existing under the laws
of the State of Florida, since 1984. The firm's principal place of
business is located at 768 East Dania Beach Boulevard, Dania, FL 3304.
Neptune is an importer and distributor of fireworks.
II. Allegations of the Staff
4. On ten occasions between April 14, 1991, and May 12, 1994,
Neptune introduced or caused to be introduced into interstate commerce;
or received in interstate commerce and delivered or proffered delivery
thereof for pay or otherwise, 23 different kinds of non-complying
fireworks (8,116,614 retail units) which are identified and described
below:
------------------------------------------------------------------------
Expt/
Sample No. Product Collect. date* entry date mfg
------------------------------------------------------------------------
M-807-1367............ Festival 04/14/91.................... Kwong
Balls yen
Hangk
ee.
M-807-1370............ News 04/14/91.................... Kwong
Transmitter yen
Hangk
ee.
[[Page 18802]]
M-807-3107............ Small 04/14/91.................... Kwong
Festival yen
Balls Hangk
ee.
M-807-3109............ Blue Palm 04/14/91.................... Kwong
yen
Hangk
ee.
M-807-3110............ Killer Bees 04/14/91.................... Kwong
yen
Hangk
ee.
M-807-1374............ Air Travel 04/14/91.................... Kwong
With Report yen
Hangk
ee.
M-807-1691............ Twitter 04/27/91.................... Kwong
Glitter yen
Hangk
ee.
P-807-2093............ Tiger 12/28/91.................... Hop
Cluster Kee.
Cicada
P-807-2095............ Red Lantern 12/28/91.................... Hop
Festival Kee.
Balls
P-807-2533............ Moon 03/25/92.................... Hop
Traveler Kee.
P-807-2536............ Blue Palm 03/25/92.................... Hop
Kee.
P-807-2545............ Artillery 04/22/92.................... Hop
Shells Kee.
P-807-2547............ Twitter 04/22/92.................... Hop
Glitter Kee.
P-807-2549............ Jumping 04/25/92.................... Hop
Jack Kee.
P-807-2555............ Small 05/16/92.................... Glori
Festival ous
Balls Compa
ny.
S-800-2094............ Moon Travel 01/17/94.................... Glori
ous
Compa
ny.
S-800-2095............ Jumping 01/17/94.................... Glori
Jacks ous
Compa
ny.
S-800-2096............ Artillery 01/17/94.................... Glori
Shell ous
Compa
ny.
S-800-2097............ Artillery 01/17/94.................... Glori
Shell ous
Compa
ny.
S-800-2616............ Jumping 04/18/94.................... Glori
Jack ous
Compa
ny.
S-800-2617............ Artillery 04/18/94.................... Glori
Shells ous
Compa
ny.
S-800-2618............ Festival 04/18/94.................... Glori
Balls ous
Compa
ny.
S-800-2625............ Kaleidoscop 05/12/94.................... Unite
e d
Firew
orks.
------------------------------------------------------------------------
5. The firework device identified as Small Festival Balls, No.
0008, Sample No. M-807-1367 in paragraph 4 above is subject to, but
failed to comply with, the Commission's Fireworks Regulations, 16
C.F.R. part 1507, in that when tested, it failed to comply with the
fuse burn time requirement in 16 C.F.R. 1507.3(a)(2).
6. The firework device identified as News Transmitter, No. T2508,
Sample No. M-807-1370 in paragraph 4 above is subject to, but failed to
comply with, the Commission's Fireworks Regulations, 16 C.F.R. part
1507 and 16 C.F.R. 1500.14, in that when tested, it failed to comply
with the side ignition and labeling requirements in 16 C.F.R.
1507.3(a)(1), and 16 C.F.R. 1500.14(a)(7)(ix).
7. The firework device identified as Small Festival Balls, No.
0008, Sample No. M-807-3107 in paragraph 4 above is subject to, but
failed to comply with, the Commission's Fireworks Regulations, 16
C.F.R. part 1507, in that when tested, it failed to comply with the
side ignition and fuse burn time requirements in 16 C.F.R. 1507.3(a)(1)
and (a)(2).
8. The firework device identified as Blue Palm, No. W442, Sample
No. M-807-3109 in paragraph 4 above is subject to, but failed to comply
with, the Commission's Fireworks Regulations, 16 C.F.R. Part 1507, in
that when tested, it failed to comply with the fuse burn time and
pyrotechnic leakage requirements in 16 C.F.R. 1507.3(a)(2) and 1507.5.
9. The firework device identified as Killer Bees, No. W499A, Sample
No. M-807-3110 in paragraph 4 above is subject to, but failed to comply
with, the Commission's Fireworks Regulations, 16 C.F.R. part 1507, in
that when tested, it failed to comply with the fuse attachment and
pyrotechnic leakage requirements in 16 C.F.R. 1507.3(b) and 1507.5.
10. The firework device identified as Air Travel With Report, No.
T0001, Sample No. M-807-1374 in paragraph 4 above is subject to, but
failed to comply with, the Commission's Fireworks Regulations, 16
C.F.R. part 1507, in that when tested, it failed to comply with the
fuse burn time requirement in 16 C.F.R. 1507.3(a)(2).
11. The firework device identified as Twitter Glitter, No. 0530,
Sample No. M-807-1691 in paragraph 4 above is subject to, but failed to
comply with, the Commission's Fireworks Regulations, 16 C.F.R. part
1507, in that when tested, it failed to comply with the pyrotechnic
leakage requirement in 16 C.F.R. 1507.5.
12. The firework device identified as Tiger Cluster Cicada, No.
2011, Sample No. P-807-2093 in paragraph 4 above is subject to, but
failed to comply with, the Commission's Fireworks Regulations, 16
C.F.R. part 1507, in that when tested, it failed to comply with the
burnout/blowout requirement in 16 C.F.R. 1507.6.
13. The firework device identified as Red Lantern Festival Balls,
No. 0008, Sample No. P-807-2095 in paragraph 4 above is subject to, but
failed to comply with, the Commission's Fireworks Regulations, 16
C.F.R. part 1507, in that when tested, it failed to comply with the
fuse burn time requirement in 16 C.F.R. 1507.3(a)(2).
14. The firework device identified as Moon Traveler, No. 0495,
Sample No. P-807-2533 in paragraph 4 above is subject to, but failed to
comply with, the Commission's Fireworks Regulations, 16 C.F.R. part
1507, in that when tested, it failed to comply with the fuse burn time
requirement in 16 C.F.R. 1507.3(a)(2).
15. The firework device identified as Blue Palm, No. W441, Sample
No. P-807-2536 in paragraph 4 above is subject to, but failed to comply
with, the Commission's Fireworks Regulations, 16 C.F.R. part 1507, in
that when tested, it failed to comply with the pyrotechnic leakage
requirement in 16 C.F.R. 1507.5.
16. The firework device identified as Artillery Shells, No. N515,
Sample No. P-807-2545 in paragraph 4 above is subject to, but failed to
comply with, the Commission's Fireworks Regulations, 16 C.F.R. part
1507, in that when tested, it failed to comply with the pyrotechnic
leakage requirement in 16 C.F.R. part 1507, in that when tested, it
failed to comply with the pyrotechnic leakage requirement in 16 C.F.R.
part 1507.5.
17. The firework device identified as Twitter Glitter, No. 0530L,
Sample No. P-807-2547 in paragraph 4 above is subject to, but failed to
comply with, the Commission's Fireworks Regulations, 16 C.F.R. part
1507, in that when tested, it failed to comply with the pyrotechnic
leakage requirement in 16 C.F.R. 1507.5.
18. The firwork device identified as Jumping Jack, No. T3500,
Sample No. P-807-2459 in paragraph 4 above is subject to, but failed to
comply with, the Commission's Fireworks Regulations, 16 C.F.R. part
1507, in that when tested, it failed to comply with the fuse burn time
requirement in 16 C.F.R. part 1507.3(a)(2).
19. The firework device identified as Small Festival Balls, No.
0008, Sample No. P-807-2555 in paragraph 4 above is subject to, but
failed to comply with, the [[Page 18803]] Commission's Fireworks
Regulations, 16 C.F.R. part 1507, in that when tested, it failed to
comply with the fuse burn time requirement in 16 C.F.R. 1507.3(a)(2).
20. The firework device identified as Moon Travel, No. 0445, Sample
No. S-800-2094 in paragraph 4 above is subject to, but failed to comply
with, the Commission's Fireworks Regulations, 16 C.F.R. part 1507, in
that when tested, it failed to comply with the fuse burn time, fuse
attachment, and stick rigidity requirements in 16 C.F.R. 1507.3(a)(2),
1507.3(b) and 1507.10.
21. The firework device identified as Jumping Jacks, No. T3500,
Sample No. S-800-2095 in paragraph 4 above is subject to, but failed to
comply with, the Commission's Fireworks Regulations, 16 C.F.R. part
1507, in that when tested, it failed to comply with the fuse burn time
and burnout/blowout requirements in 16 C.F.R. 1507.3(a)(2) and 1507.6.
22. The firework device identified as Artillery Shell, No. W515B,
Sample No. S-800-2096 in paragraph 4 above is subject to, but failed to
comply with, the Commission's Fireworks Regulations, 16 C.F.R. part
1507, in that when tested, it failed to comply with the fuse burn time
requirement in 16 C.F.R. 1507.3(a)(2).
23. The firework device identified as Artillery Shell, No. 515A,
Sample No. S-800-2097 in paragraph 4 above is subject to, but failed to
comply with, the Commission's Fireworks Regulations, 16 C.F.R. part
1507, in that when tested, it failed to comply with the fuse burn time
requirement in 16 C.F.R. 1507.3(a)(2).
24. The firework device identified as Jumping Jack, No. T3500,
Sample No. S-800-2616 in paragraph 4 above is subject to, but failed to
comply with, the Commission's Fireworks Regulations, 16 C.F.R. part
1507 in that when tested, it failed to comply with the fuse burn time
requirement in 16 C.F.R. 1507.3(a)(2).
25. The firework device identified as Artillery Shells, No. W515A,
Sample No. S-800-2617 in paragraph 4 above is subject to, but failed to
comply with, the Commission's Fireworks Regulations, 16 C.F.R. part
1507, in that when tested, it failed to comply with the fuse burn time
requirement in 16 C.F.R. 1507.3(a)(2).
26. The firwork device identified as Festival Balls, No. 0008,
Sample No. S-800-2618 identified in paragraph 4 above is subject to,
but failed to comply with the Commission's Fireworks Regulations, 16
C.F.R. part 1507, in that when tested, it failed to comply with the
fuse burn time requirement in 16 C.F.R. 1507.3(a)(2).
27. The firework device identified as Kaleidoscope, No. 2512,
Sample No. S-800-2625 identified in paragraph 4 above is subject to,
but failed to comply with the Commission's Fireworks Regulations, 16
C.F.R. part 1507, in that when tested, it failed to comply with the
fuse burn time and burnout/blowout requirements in 16 C.F.R.
1507.3(a)(2) and 1507.6.
28. 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. 1261(q)(1)(B); and 16 C.F.R. part 1507 et seq.
29. The fireworks device identified as News Transmitter, No. T2508,
Sample No. M-807-1370 in paragraph 4 above is a ``misbranded hazardous
substance'' pursuant to section 3(b) of the FHSA, 15 U.S.C. 1262(b) and
16 CFR 1500.14 et seq.
30. Neptune 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
hazardous fireworks 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 Neptune
31. Neptune denies the allegations of the staff set forth in
paragraphs 4 through 30 above. Neptune denies it knowingly, or
otherwise, introduced or caused to be introduced into interstate
commerce; or received in interstate commerce and delivered or proferred
delivery thereof for pay or otherwise, the banned hazardous fireworks
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) and/or 16 CFR part 1507 et seq. and 15 CFR 1500.14 et seq.
32. Neptune enters into this Settlement Agreement with the sole
purpose of avoiding the costs of litigation.
IV. Agreement of the Parties
33. The Consumer Product Safety Commission has jurisdiction over
Neptune 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.
34. The Commission and Neptune agree, notwithstanding any other
statements to the contrary in this Settlement Agreement and Order, that
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 Neptune that Neptune violated the CPSA,
FHSA and/or the Commission's regulations.
35. Upon final acceptance of this Settlement Agreement by the
Commission and issuance of the Final order, Neptune 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 Neptune failed to comply with the FHSA as foresaid, (4) to a
statement of findings of fact and conclusions of law, and (5) to any
claims under the Equal Access to Justice Act.
36. 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.
37. 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.
38. 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.
39. The provisions of the Settlement Agreement and Final order
shall apply to Neptune and each of its successors and assigns.
40. Upon final acceptance of this Agreement, the Commission shall
issue the Final Order.
Dated: March 20, 1995.
[[Page 18804]] Respondent Neptune Fireworks Co., Inc.
Itzhak Dickstein,
President, Neptune Fireworks Company, Inc.
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: March 24, 1995.
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 Neptune Fireworks Company, Inc., a corporation, and the
staff of the Consumer Product Safety Commission; and the Commission
having jurisdiction over the subject matter and Neptune Fireworks
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, Neptune Fireworks Company, Inc. shall pay to the
Commission a civil penalty in the amount of Forty-Five Thousand and 00/
100 Dollars ($45,000.00) in three (3) payments each. The first payment
of Fifteen Thousand and 00/100 dollars ($15,000.00) shall be paid by
August 15, 1995 or within twenty (20) days after service of the Final
Order of the Commission accepting the Settlement Agreement
(hereinafter, the ``anniversary date''), whichever is later. The second
payment of fifteen thousand and 00/100 dollars ($15,000.00) shall be
paid on August 15, 1996 or within one (1) year of the anniversary date.
The third payment of fifteen thousand and 00/100 dollars ($15,000.00)
shall be paid on August 15, 1997 or within (2) years of the anniversary
date. Upon the failure by Neptune Fireworks Company, Inc. to make a
payment or upon the making of a late payment by Neptune Fireworks
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 provision
of 28 U.S.C. 1961 (a) and (b).
Provisionally accepted and Provisional Order issued on the 75
day of April, 1995.
By order of the Commission.
Sadye E. Dunn,
Secretary, Consumer Product Safety Commission.
[FR Doc. 95-9047 Filed 4-12-95; 8:45 am]
BILLING CODE 6335-01-M