[Federal Register Volume 61, Number 200 (Tuesday, October 15, 1996)]
[Notices]
[Pages 53720-53722]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-26224]


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CONSUMER PRODUCT SAFETY COMMISSION

[CPSC Docket No. 97-C0001]


The Brinkmann Corporation, 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 Section 
1118.20(e). Published below is a provisionally-accepted Settlement 
Agreement with the Brinkmann Corporation, 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 October 30, 1996.

ADDRESSES: Persons wishing to comment on this Settlement Agreement 
should send written comments to the Comment 97-C0001, Office of the 
Secretary, Consumer Product Safety Commission, Washington, D.C. 20207.

FOR FURTHER INFORMATION CONTACT: Jeanne M.Siebert, 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 8, 1996.
Sadye E. Dunn,
Secretary.

Settlement Agreement and Order

    1. The Brinkmann Corporation (``TBC''), a corporation, enters into 
this Settlement Agreement and Order with the staff (``the staff'') of 
the Consumer Product Safety Commission (``The Commission'') in 
accordance with the procedures set forth in section 1118.20 of the 
Commission's Procedure for Investigations, Inspections, and Inquiries 
under the Consumer Product Safety Act (``CPSA''), 16 C.F.R. Sec. 1118. 
This agreement is a compromise resolution of the matter described 
herein, without a hearing or determination by the COMMISSION of any 
issues of law or fact or the issuance of any findings whatsoever.

I. The Parties

    2. The Consumer Product Safety Commission is an independent federal 
regulatory agency responsible for the enforcement of the Consumer 
Product Safety Act, 15 U.S.C. 2051-2084.
    3. TBC is a corporation organized and existing under the laws of 
the State of Texas. Its principal offices are located at 4215 McEwen 
Road, Dallas, TX 75244. TBC is a manufacturer of outdoor cooking and 
lighting equipment.

II. Staff Allegations

    4. In the 15 years from 1979 to 1993, TBC manufactured and 
distributed over 100,000 cooker/fryers, over 100,000 electric smokers 
and over 1,000,000 charcoal water smokers. Those products were 
distributed to consumers throughout the United States for use outside a 
residence or in recreation. TBC, therefore, is a ``manufacturer'' of 
``consumer products'' which are ``distributed in commerce,'' as those 
terms are defined in sections 3(a) (4) and (11) of the CPSA, 15 U.S.C. 
Secs. 2052(a) (4) and (11).

[[Page 53721]]

The Cooker/Fryer
    5. The cooker/fryer is a portable type of outdoor cooking equipment 
used to deep fry or boil food. It was manufactured and distributed 
under the name ``Country Cooker''. It consists of a three part set, 
including: a burner unit, pan, and frying basket. The burner unit 
consists of a stand, a regulator, a burner, and a hose assembly.
    6. The cooker/fryer had a design susceptible to spillage of hot 
liquids and food. The base of the cooker/fryer lacked a protective lip 
around its burner grate to help prevent the pan from being dislodged 
from the grate. In addition, the pan and basket design enabled the 
consumer to hang the basket component to the outside of the pan which 
could tip the pan and the basket off the cooker/fryer. In the 13 years 
from 1981-1993, TBC received complaints, several of which involved 
grievous injury, from consumers who were burned by hot liquids or 
solids when the pan was dislodged from the grate. In 1992, TBC added a 
warning to the cooker cautioning consumers against hanging the basket 
component on the outside of the pan.
    7. Although TBC obtained information alleging that the cooker/fryer 
was defective and that the defects exposed consumers to a risk of 
injury from burning liquids or solids, it failed to provide information 
concerning the defects to the Commission as required by section 15(b) 
of the CPSA, as amended, 15 U.S.C. 2064(b).
The Charcoal Water Smoker
    8. The charcoal water smoker is a portable type of outdoor cooking 
equipment used to slow cook, self-baste, and smoke foods. It was 
manufactured under the ``Brinkmann'' label and the ``COOK'N CA'JUN'' 
label. The charcoal water smoker has a barrel shaped body containing 
brackets which support two grills, a water pan, and a charcoal pan. The 
charcoal pan is located beneath the water pan. The unit is equipped 
with a lid and a temperature gauge.
    9. The charcoal water smoker had a hole in the center of the 
charcoal pan through which hot embers could fall. If the hot embers 
fell on a combustible surface, they could cause a fire. In the 14 years 
from 1980 to 1993, TBC received information on at least 25 incidents 
involving fires or charring caused by burning embers falling through 
the hole in the center of the charcoal pan; in one of the alleged fire 
incidents the smoker allegedly caused a fatal house fire. In 1992, TBC 
closed the hole in the charcoal pan and provided additional warnings in 
1993.
    10. Although TBC obtained information alleging that the hole in the 
charcoal pan could expose consumers to a risk of fire, it failed to 
provide information concerning the defect to the Commission as required 
by section 15(b) of the CPSA, as amended, 15 U.S.C. 2064(b).
    11. The charcoal water smokers also had metal brackets and other 
parts with sharp edges that exposed consumers to a risk of laceration. 
In the 13 years from 1981 to 1993, TBC received information on at least 
13 incidents involving consumers receiving lacerations, some of which 
involved serious lacerations, as a result of the sharp edges. In 1993, 
TBC retooled the dies used to produce the brackets and rounded the 
square corners to reduce the risk of injury.
    12. Although TBC obtained information alleging that the charcoal 
water smokers had brackets and other components with sharp edges and 
could expose consumers to a risk of laceration, it failed to provide 
information concerning the defect to the Commission as required by 
section 15(b) of the CPSA, as amended, 15 U.S.C. 2064(b).
The Electric Smoker
    13. The electric smoker is a type of portable outdoor cooking 
equipment used to slow cook, self-baste, and smoke foods. This product 
was sold under the name ``Smoke 'N Grill Electric.'' The electric 
smoker is similar to the charcoal water smoker, but instead of a 
charcoal pan, the electric water smoker is equipped with a solid bottom 
with an electric heating element and lava rocks.
    14. The electric smoker had loose fitting brackets which enabled 
the water pan to be dislodged during use allowing the water pan to 
spill its contents. In the eight years from 1985-1992, TBC received at 
least 7 complaints from consumers who received burns when the water pan 
slipped off its base and spilled scalding liquids. TBC responded in 
1989 by incorporating additional product warnings and in 1991 by 
changing the type of brackets used and their placement in the smoker.
    15. Although TBC obtained information alleging that the brackets of 
the electric smoker were defective and could expose consumers to a risk 
of injury from burns, it failed to provide information concerning the 
defect to the Commission as required by section 15(b) of the CPSA, as 
amended, 15 U.S.C. Sec. 2064(b).

III. Brinkmann's Position

    16. TBC denies each and all of the staff's allegations with respect 
to the outdoor cooking equipment identified in this agreement, 
including that TBC at any time possessed information which reasonably 
supported the conclusion that: (i) its products contained defects which 
could create a substantial product hazard within the meaning of section 
15(a) of the CPSA, 15 U.S.C. 2064(a), or (ii) its products created an 
unreasonable risk of serious injury or death, 15 U.S.C. 2064(b); and 
therefore, denies that it knowingly failed to meet its obligation to 
report to the Commission under section 15(b) of the CPSA.
    17. The cooker/fryer does not contain any defects. The use of the 
cooker/fryer, similar to a stove top, requires that any cooking utensil 
placed on the burner be situated in such a manner so that the cooking 
utensil does not become imbalanced or dislodged. Further, after TBC 
received notice of the one (1) claim where someone had been injured by 
placing the frying basket outside of the pan, TBC, in 1992, 
incorporated additional warnings with the product.
    18. As to the allegations concerning the alleged risk of fires 
caused by the charcoal water smoker, the design used was prevalent 
among the industry. The air hole in the bottom of the charcoal pan was 
open and obvious, and TBC advised that the charcoal water smoker should 
not be used on flammable surfaces and that a fire-retardant shield 
should be placed under the charcoal pan to guard against falling 
embers.
    19. TBC denies all allegations concerning the alleged risks 
regarding the electric smoker.

IV. Agreement of the Parties

    20. TBC and the staff agree that the Commission has jurisdiction in 
this matter for purposes of entry and enforcement of this Settlement 
Agreement and Order.
    21. TBC agrees to entry of the attached Order, which is 
incorporated herein by reference, and to be bound by its terms.
    22. By entering into this Settlement Agreement and Order, TBC does 
not admit any liability, statutory violation, or wrongdoing and this 
Settlement Agreement and Order does not constitute, and is not evidence 
of, or an admission of, any liability, statutory violation, or the 
existence of a product defect. This Settlement Agreement and Order are 
entered into for purposes of settlement only.
    23. In accepting this Settlement Agreement, the Commission makes 
and will make no findings as to whether any of the consumer products 
mentioned above contain a defect which creates or could create a 
substantial product hazard or creates or could create an unreasonable 
risk of serious injury or

[[Page 53722]]

death; or that TBC knowingly violated the reporting provisions of 
section 15(b) of the CPSA, 15 U.S.C. 2064(b) pursuant to section 
19(a)(4) of the CPSA, 15 U.S.C. 2068(a)(4).
    24. The Commission may publicize the terms of the Settlement 
Agreement and Order.
    25. The Settlement Agreement and Order shall be placed on the 
public record and shall be published in the Federal Register in 
accordance with the procedure set forth in 16 CFR Sec. 1118.20(e). If, 
within 15 days of publication, the Commission has not received any 
written request not to accept the Settlement Agreement and Order, the 
Settlement Agreement and Order will be deemed to be finally accepted on 
the 16th day after the date it is published in the Federal Register (16 
CFR Sec. 1118.20(f)). Upon final acceptance, the Commission shall issue 
and serve upon TBC the attached order incorporated herein by reference.
    26. Upon final acceptance of this Settlement Agreement and Order by 
the Commission, TBC knowingly, voluntarily, and completely waives any 
rights it might have only as to the allegations in this Settlement 
Agreement: (1) to an administrative or judicial hearing with respect to 
the Commission's claim for a civil penalty, (2) to judicial review or 
other challenge to or contest of the validity of the Commission's 
attached Order, (3) to a determination by the Commission as to whether 
a violation of section 15(b) of the CPSA, 15 U.S.C. 2064(b), has 
occurred, (4) to a statement of findings of fact and conclusions of law 
with regard to the Commission's claim for a civil penalty and (5) to 
any claims under the Equal Access to Justice Act. TBC reserves all 
rights not specifically waived above.
    27. The parties further agree that the Commission shall issue the 
incorporated order under the CPSA, 15 U.S.C. Sec. 2051 et seq. and that 
a violation of the Order will subject TBC to appropriate legal action.
    28. Agreements, understandings, representations, or interpretations 
made outside this Settlement Agreement and Order may not be used to 
vary or contradict its terms.

The Brinkmann Corporation

    Dated: August 8, 1996.

J. Baxter Brinkmann,
President.
The Consumer Product Safety Commission.

    Dated: October 3, 1996.

David Schmeltzer,
Associate Executive Director, Office of Compliance.

Eric L. Stone,
Acting Director, Division of Administrative Litigation, Office of 
Compliance.

Jeanne M. Siebert,
Attorney, Division of Administrative Litigation, Office of 
Compliance.

Order

    Upon consideration of the Settlement Agreement between Respondent, 
The Brinkmann Corporation (``TBC''), a corporation, and the staff of 
the Consumer Product Safety Commission; and the Commission having 
jurisdiction over the subject matter and TBC; and it appearing that the 
Settlement Agreement is in the public interest, it is
    Ordered, that the Settlement Agreement be and hereby is accepted, 
as indicated below; and it is
    Further ordered, that upon final acceptance of the Settlement 
Agreement, TBC shall pay to the order of the United States Treasury a 
civil penalty in the amount of ONE HUNDRED SEVENTH FIVE THOUSAND 
DOLLARS ($175,000). The first payment of $35,000 is due twenty (20) 
days after service of this Final Order upon the Respondent, TBC, and 
the remaining four payments of $35,000 are due on the last day of the 
month for each of the four months following the initial payment. Upon 
the failure of TBC to make a payment or upon the making of a late 
payment by TBC, the entire amount of the civil penalty shall be due and 
payable, and 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 8th day 
of October, 1996.

    By Order of the Commission:
Sadye E. Dunn,
Secretary, Consumer Product Safety Commission.
[FR Doc. 96-26224 Filed 10-11-96; 8:45 am]
BILLING CODE 6355-01-M