[Federal Register Volume 63, Number 198 (Wednesday, October 14, 1998)]
[Notices]
[Pages 55092-55095]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-27410]


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CONSUMER PRODUCT SAFETY COMMISSION

[CPSC Docket No. 99-C0001]


Schneitter Fireworks and Importing Co., Inc., 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 Substance 
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 Schneitter Fireworks and Importing Co.,

[[Page 55093]]

Inc., a corporation, containing a civil penalty of $60,000.

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 29, 1998.

ADDRESSES: Persons wishing to comment on this Settlement Agreement 
should send written comments to the Comment 99-C0001, 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: October 7, 1998.
Sadye E. Dunn,
Secretary.

Settlement Agreement and Order

    In the matter of Schneitter Fireworks and Importing Co., Inc., a 
corporation.

[CPSC Docket No. 99-C0001]

    1. Schneitter Fireworks and Importing Co., Inc. (hereinafter, 
``Schneitter''), a corporation, enters into this Settlement Agreement 
and Order (hereinafter, ``Settlement Agreement'' or ``Agreement'') with 
the staff on the Consumer Product Safety Commission, and agrees to the 
Order described herein. The purpose of the Settlement Agreement is to 
settle the staff's allegations that Schneitter 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. Schneitter is a corporation organized and existing under the 
laws of the State of Missouri since 1967. Schneitter's principal place 
of business is located at N.E. Highway I-29 and 71 Highway, Saint 
Joseph, MO 64501. Schneitter is an importer and wholesaler of 
fireworks.

II. Allegations of the Staff

    4. On 15 occasions between June 5, 1991, and April 9, 1997, 
Schneitter introduced or caused to be introduced into interstate 
commerce; or received in interstate commerce 33 different kinds of 
fireworks (4,926,072 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):

----------------------------------------------------------------------------------------------------------------
       Collection date                   Sample No.                    Product                  Violation
----------------------------------------------------------------------------------------------------------------
06/20/91.....................  M-830-0642...................  Cherry Blossom..........  Pyrotechnic Leak.
06/20/91.....................  M-830-0643...................  Triple Whistling Rocket.  Fuse Burn Time, Stick
                                                                                         Rigidity.
06/20/91.....................  M-830-0644...................  Assorted Rocket.........  Side Ignition, Fuse Burn
                                                                                         Time.
06/20/91.....................  M-830-0645...................  Sound of Music..........  Side Ignition, Fuse Burn
                                                                                         Time.
06/20/91.....................  M-830-0646...................  Crackling Blue Assorted   Fuse Burn Time, Fuse
                                                               Rocket.                   Attachment.
06/20/91.....................  M-830-0647...................  Phoenix Playgun.........  Fuse Burn Time.
06/05/91.....................  M-830-7055...................  Whistling Jupiter         Fuse Burn Time, Fuse
                                                               Missile.                  Attachment.
04/16/92.....................  P-830-6545...................  Shot Saturn With          Fuse Burn Time.
                                                               Crackers.
06/18/92.....................  P-830-6558...................  Honey Flowers...........  Fuse Attachment.
05/24/93.....................  R-830-6847...................  General Custer's Last     Fuse Attachment, Excess
                                                               Stand.                    Pyro. Comp.
05/24/93.....................  R-830-6848...................  Three stage Missile Base  Side Ignition, Fuse Burn
                                                                                         Time.
05/24/93.....................  R-830-6849...................  19 Shot Small Festival    Pyro. Leak.
                                                               Balls.
01/24/94.....................  S-830-6008...................  Small Festival Balls....  Burnout/Blowout.
01/24/94.....................  S-830-6009...................  Kaleidoscope............  Fuse Burn Time.
03/01/94.....................  S-830-6020...................  Small Festival Ball.....  Fuse Burn Time, Pyro.
                                                                                         Leak.
03/01/94.....................  S-830-6021...................  Whistling Moon Traveller  Fuse Burn Time, Stick
                                                                                         Rigidity.
04/21/94.....................  S-830-6033...................  Nebula 19 Shot..........  Side Ignition, Fuse Burn
                                                                                         Time.
04/21/94.....................  S-830-6034...................  Nebula 9 Shot...........  Fuse Burn Time.
05/10/94.....................  S-830-6042...................  25 Shot Thunder.........  Fuse Burn Time, Burnout/
                                                                                         Blowout, Excess Pyro.
                                                                                         Comp.
05/10/94.....................  S-830-6043...................  Nuclear Bomb............  Fuse Attachment, Burnout/
                                                                                         Blowout.
11/22/94.....................  T-830-6111...................  Whistling Bottle Rocket.  Fuse Burn Time.
11/22/94.....................  T-830-6112...................  Crackling Golden Palms..  Burnout/Blowout.
04/03/95.....................  T-830-6120...................  Cosmic Destroyer........  Burnout/Blowout.
05/16/95.....................  T-830-6015...................  Moon Travel.............  Stick Rigidity.
05/16/95.....................  T-830-6018...................  Moon Travel.............  Stick Rigidity.
05/16/95.....................  T-830-6019...................  Kaleidoscope............  Side Ignition, Fuse Burn
                                                                                         Time.
04/11/96.....................  96-830-4125..................  Red Ball Rocket.........  Excess Pyro. Comp,
                                                                                         Label.
05/16/96.....................  96-830-4090..................  Shot News Transmitter...  Fuse Burn Time, Side
                                                                                         Ignition.
05/16/96.....................  96-830-4091..................  Kaleidoscope............  Fuse Burn Time.
05/16/96.....................  96-830-4093..................  Moon Travellers.........  Fuse Burn Time, Stick
                                                                                         Rigidity.
05/16/96.....................  96-830-4094..................  Small Festival Balls....  Fuse Burn Time, Label.
04/09/97.....................  97-830-3866..................  Colour Smoke Ball.......  Fuse Burn Time, Label.
04/09/97.....................  97-830-3870..................  Super Stallion..........  Excess Pyro. Comp,
                                                                                         Label.
----------------------------------------------------------------------------------------------------------------

    5. 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. Sec. 1261(q)(1)(B) 16 CFR Part 1507, and 16 CFR 
1500.17(a)(3).
    6. Each of the firework devices identified in paragraph 4 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).

[[Page 55094]]

    7. Schneitter 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 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 Schneitter

    8. Schneitter denies the allegations of the staff set forth in 
paragraph 4 through 7 above.
    9. Schneitter's products comply with all federal statutes and 
regulations (including those cited above) and are specifically 
manufactured to comply with such laws.
    10. Schneitter uses the American Fireworks Standard Laboratory 
(AFSL), an independent testing laboratory, to test its fireworks 
products for compliance with the FHSA and the Commission's Fireworks 
Regulations. For those fireworks products not tested by the AFSL, 
Schneitter employees conduct testing pursuant to the American 
Pyrotechnic Association's (APA) testing program for compliance with the 
FHSA and the Commission's Fireworks Regulations.
    11. Schneitter vehemently denies it 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 4 above, in violation of section 4(a) and (c) of the FHSA, 15 
U.S.C. 1263(a) and (c).
    12. Schneitter is 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 
Schneitter 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.
    14. 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 Scheneitter that Scheneitter 
knowingly violated the FHSA and the Commission's Fireworks Regulations.
    15. Upon final acceptance of this Settlement Agreement by the 
Commission and issuance of the Final Order, Scheneitter 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 Schneitter failed to comply with the FHSA as aforesaid, (4) to 
a statement of findings of fact and conclusion of law, and (5) to any 
claims under the Equal Access of Justice Act.
    16. 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.
    17. In settlement of the staff's allegations, Schneitter agrees to 
pay a civil penalty of $60,000.00 as set forth in the incorporated 
Order.
    18. Upon the full payment of the civil penalty as set forth in the 
Final Order, the Commission fully releases, acquits, and forever 
discharges Schneitter 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 June 5, 1991 
through July 22, 1998 for which the Commission has issued letters of 
advice to Schneitter.
    19. Based on current data, the Commission staff believes that 
fireworks imported under the American Fireworks Standards Laboratory 
(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 
Schneitter for those fireworks products tested and certified by the 
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 
Schneitter in writing. After providing such written notice to 
Schneitter, the Commission staff will have the enforcement discretion 
to pursue violations of the FHSA and the Commission's Fireworks 
Regulations against Schneitter for AFSL tested fireworks products 
received and/or imported by Schneitter 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 Schneitter nor provides a basis for Schneitter to 
challenge this Agreement.
    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 
118.20(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 issued 
on the 16th day.
    21. This Settlement Agreement may be used in interpreting the 
Order. Agreements, understandings, representations, or interpretations 
apart from those contained in this Settlement Agreement and Order may 
not be used to vary or contradict its terms.
    22. The provisions of this Settlement Agreement and Order shall 
apply to Schneitter and each of its successors and assigns.
    23. Upon final acceptance of this Agreement, the Commission shall 
issue the attached Final Order.

Respondent Schneitter Fireworks and Importing Company, Inc.

    Dated: August 19, 1998.
H.E. Schneitter, Jr.,
President, Schneitter Fireworks and Importing Company, Inc., N.E. 
Highways I-29 and 71, Box 547, St. Joseph, MO 64502.

    Dated: August 20, 1998.
Robert B. Hopkins,
Counsel For Respondent Schneitter Fireworks, and Importing Company, 
Inc., Ober, Kaler, Grimes & Shriver, 120 East Baltimore Street, 
Baltimore, MD 21202-1643.

Commission Staff

Alan H. Schoem,
Assistant Executive Director, Consumer Product Safety Commission, 
Office of Compliance, Washington, D.C. 20207-001.
Eric L. Stone,
Director, Legal Division, Office of Compliance.

    Dated: August 31, 1998.
Dennis C. Kacoyanis,
Trial Attorney, Legal Division, Office of Compliance.

Order

    Upon consideration of the Settlement Agreement entered into between 
Respondent Schneitter Fireworks and Importing Company, Inc., a 
corporation, and the staff of the Consumer Product Safety Commission; 
and the

[[Page 55095]]

Commission having jurisdiction over the subject matter and Schneitter 
Fireworks and Importing 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 Order, Schneitter Fireworks and Importing Company, Inc. shall 
pay to the Commission a civil penalty in the amount of SIXTY THOUSAND 
AND 00/100 DOLLARS ($60,000.00) in three (3) payments each. The first 
payment of TWENTY THOUSAND AND 00/100 DOLLARS ($20,000.00) shall be due 
within twenty (20) days after service upon Respondent of the Final 
Order of the Commission accepting the Settlement Agreement 
(hereinafter, the ``anniversary date''). The second payment of TWENTY 
THOUSAND AND 00/100 DOLLARS ($20,000.00) shall be made within one (1) 
year of the anniversary date. The third payment of TWENTY THOUSAND AND 
00/100 DOLLARS ($20,000.00) shall be made within two (2) years of the 
anniversary date. Upon the failure by Schneitter Fireworks and 
Importing Co., Inc. to make a payment or upon Schneitter Fireworks and 
Importing Co., 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 7th day 
of October, 1998.

    By Order of the Commission.
Sadye E. Dunn,
Secretary, Consumer Product Safety Commission.
[FR Doc. 98-27410 Filed 10-13-98; 8:45 am]
BILLING CODE 6355-01-M