[Federal Register Volume 65, Number 112 (Friday, June 9, 2000)]
[Notices]
[Pages 36670-36672]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-14543]


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CONSUMER PRODUCT SAFETY COMMISSION

[CPSC Docket No. 00-C0010]


Red Rock Trading Co., Inc., a Corporation, and Blackjack 
Fireworks, Inc., a Corporation, 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 Substances 
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 Red Rock Trading Co., Inc., a corporation, and Blackjack 
Fireworks, Inc., a corporation, containing a civil penalty of 
$90,000.\1\
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    \1\ Chairman Ann Brown and Commissioner Thomas H. Moore voted to 
provisionally accept the agreement. Commissioner Mary Sheila Gall 
voted to reject the agreement. Chairman Brown and Commissioner Gall 
filed statements concerning their respective votes, copies of which 
are available from the Office of the Secretary, Consumer Product 
Safety Commission, Washington, DC 20207.

DATES: Any interested person may ask the Commission not to accept this 
agreement or otherwise comment on its contents by filing a written 
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request with the Office of the Secretary by June 24, 2000.

ADDRESSES: Persons wishing to comment on this Settlement Agreement 
should send written comments to the Comment 00-C0010, 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, 1346.

SUPPLEMENTARY INFORMATION: The text of the Agreement and Order appears 
below.

    Dated: June 5, 2000.
Sadye E. Dunn,
Secretary.

Settlement Agreement and Order

    1. Red Rock Trading Company, Inc. (hereinafter, ``Red Rock''), a 
corporation and Blackjack Fireworks, Inc. (hereinafter, ``Blackjack''), 
a corporation enter into this Settlement Agreement and Order 
(hereinafter, ``Settlement Agreement'' or ``Agreement'') with the staff 
of the Consumer Product Safety Commission, and agree to the entry of 
the attached Order incorporated by reference herein. The purpose of the 
Settlement Agreement is to settle the staff's allegations that Red Rock 
and Blackjack 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. Red Rock is a corporation organized and existing under the laws 
of the State of Nevada. Red Rock's corporate address is 6000 South 
Eastern, Suite 11E, Las Vegas, NV 89119, Red Rock imports and 
distributes consumer fireworks.
    4. Blackjack is a corporation organized and existing under the laws 
of the State of Nevada. Blackjack's corporate address is 6000 South 
Eastern, Suite 11E, Las Vegas, NV 89119. Blackjack sells consumer 
fireworks.

II. Allegations of the Staff

    5. On 19 occasions between December 14, 1994 and May 20, 1999, Red 
Rock and Blackjack introduced or caused the introduction in interstate 
commerce of 36 different kinds of fireworks devices (703,823 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).

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      Collection date *  Entry date         Sample No.                 Product                                        Violation
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12/14/94 *..............................      T-830-7216  Bottle Rockets..................  Fuse Attachment.
05/08/95................................      T-830-4030  Candle Star.....................  Fuse Burn Time, Side Ignition.
05/08/95................................      T-830-4162  News Transmitter................  Fuse Attachment, Fuse Burn Time.
06/02/95................................      T-830-7345  Moon Traveller..................  Fuse Burn Time, Fuse Attachment.
09/26/96 *..............................     96-860-6467  Jumping Jacks...................  Fuse Burn Time.
09/26/96 *..............................     96-860-6468  Whistling Moon Traveller........  Stick Rigidity.
09/26/96 *..............................     96-860-6470  General Custer's Last Stand.....  Fuse Burn Time.
09/26/96 *..............................     96-860-6472  Artillery Shell.................  Fuse Burn Time.
04/21/97 *..............................     97-830-3219  Cobra Black Snake...............  Excess Arsenic.
04/21/97 *..............................     97-860-3220  Battle of Colors................  Excess Pyrotechnic, Composition.
05/15/97................................     97-830-4214  Night Shell.....................  Fuse Burn Time.
05/15/97................................     97-830-4215  Overlord in Sky.................  Excess Pyrotechnic, Composition, Pyrotechnic Leakage.
05/15/97................................     97-830-4216  Battle of Colors................  Excess Pyrotechnic, Compositon, Fuse Burn Time, Burnout/
                                                                                             Blowout.
06/19/97................................     97-830-3259  Spring Thunder..................  Excess Pyrotechnic, Composition.
06/19/97................................     97-830-3530  Rattles Colored Snakes..........  Excess Arsenic.
07/11/97................................     97-830-6350  Ninja Shell.....................  Fuse Burn Time.
04/09/98................................     98-860-6074  News Transmitter................  Fuse Burn Time.
04/09/98................................     98-860-6079  7 Shot Night Shell..............  Fuse Attachment, Tipover.
05/05/98................................     98-860-6848  Sky Travel Barrage..............  Fuse Burn Time.
05/21/98................................     98-860-6999  Victory Celebration.............  Fuse Attachment.

[[Page 36671]]

 
05/22/98................................     98-860-6810  Smoke Toy Device................  Fuse Burn Time, Side Ignition, External Flame.
05/22/98................................     98-860-6811  2 Color Smoke...................  Fuse Burn Time, External Flame.
06/19/98................................     98-830-3830  Night Shell.....................  Tipover, Side Ignition.
06/19/98................................     98-830-3831  Thunder Crackling...............  Labeling, Excess Pyrotechnic, Composition, Fuse Burn Time,
                                                                                             Side Ignition.
06/19/98................................     09-830-3832  Thunder & Rain..................  Labeling Excess Pyrotechnic, Composition, Fuse Burn Time,
                                                                                             Side Ignition.
06/19/98................................     98-830-3833  Command Teste...................  Excess Pyrotechnic, Composition.
06/19/98................................     98-830-3834  Sunglow.........................  Excess Pyrotechnic, Composition.
06/15/98................................     98-830-6843  Moon Travellers.................  Stick Rigidly.
06/15/98................................     98-830-6844  Air Travel......................  Fuse Burn Time.
12/09/98................................     99-830-3311  96 Color Peal...................  Fuse Burn Time, Side Ignition.
03/30/99................................     99-860-5662  10 Ball Roman Candle............  Fuse Burn Time.
03/30/99................................     99-860-5663  10 Ball Roman Candle............  Excess Pyrotechnic, Composition.
04/19/99................................     99-860-6063  Jumping Jacks...................  Pyrotechnic, Leakage.
05/12/99................................     99-860-5654  Small Festival Balls............  Fuse Burn Time.
05/12/99................................     99-860-5658  Dragon Dancing..................  Side Ignition.
05/20/99................................     99-860-6192  Artillery Shell.................  Pyrotechnic, Leakage.
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    6. Each of the fireworks devices identified in paragraph 5 above is 
a ``banned hazardous substance'' 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).
    7. Each of the fireworks devices identified in paragraph 5 above 
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).
    8. Red Rock and Blackjack 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 5 
above, in violation of sections 4(a) and (c) of the FHSA, 15 U.S.C. 
1263(a) and (c).

III. Response of Red Rock and Blackjack

    9. Red Rock and blackjack deny the allegations of the staff set 
forth in paragraphs 5 through 8 above.
    10. Red Rock's and Blackjack's products comply with all federal 
statutes and regulations (including those cited above) and are 
specifically manufactured to comply with such laws. Red Rock and 
Blackjack, in fact, have arranged for many of their products to be 
tested by qualified individuals to ensure compliance with all such 
laws. Moreover, Red Rock and Blackjack are aware of no injuries 
associated with any products imported by them over the years.
    11. Red Rock and Blackjack vehemently deny they knowingly 
introduced or caused the introduction in interstate commerce; or 
received in interstate commerce and delivered or proffered delivery 
thereof for pay or otherwise any banned hazardous substances and/or 
misbranded hazardous substances, including the alleged banned hazardous 
substances and/or alleged misbranded hazardous substances described 
above in paragraph 5.
    12. Red Rock and Blackjack are 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 
Red Rock and Blackjack, and the subject matter of this Settlement 
Agreement and incorporated 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.
    14. Red Rock and Blackjack agree to the entry of the attached Order 
which is incorporated herein by reference.
    15. 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 Red Rock and Blackjack that Red Rock 
and Blackjack knowingly violated the FHSA and the Commission's 
Fireworks Regulations.
    16. Upon final acceptance of this Settlement Agreement by the 
Commission and issuance of the Final Order, Red Rock and Blackjack 
knowingly, voluntarily, and completely waived any rights they 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 Red Rock and Blackjack failed to comply with the FHSA, (4) to a 
statement of findings of fact and conclusions of law, and (5) to any 
claims under the Equal Access to Justice Act.
    17. 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 
incorporated Order.
    18. In settlement of the staff's allegations, Red Rock and 
Blackjack agree to pay a civil penalty of $90,000.00 as set forth in 
the incorporated Order.
    19. Upon the full payment of the civil penalty as set forth in the 
Final Order, the Commission fully releases, acquits, and forever 
discharges Red Rock and Blackjack 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 December 14, 1994 through December 31, 1999 for which the 
Commission has issued letters of advice to Red Rock and Blackjack.
    20. Upon provisional acceptance of this Settlement Agreement by the 
Commission, the Commission will place the Settlement Agreement and the 
incorporated 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

[[Page 36672]]

be deemed finally accepted and the Final Order issued on the 16th day.
    21. Red Rock and Blackjack have recently become members of the 
American Fireworks Standards Laboratory (AFSL). Based on current data, 
the Commission staff believes that fireworks imported under the 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 Red 
Rock and Blackjack for those fireworks products legitimately tested and 
certified by 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 Red Rock and Blackjack in writing. After 
providing such written notice to Red Rock and Blackjack, the Commission 
staff will have the enforcement discretion to pursue violations of the 
FHSA and the Commission's Fireworks Regulations against Red Rock and 
Blackjack for AFSL tested fireworks products received and/or imported 
by Red Rock and Blackjack 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 
Red Rock and Blackjack nor provides a basis for Red Rock and Blackjack 
to challenge this Agreement.
    22. This Settlement Agreement may be used in interpreting the 
Order. Agreements, understandings, representations, or interpretations 
apart from those contained in this Settlement Agreement and 
incorporated Order may not be used to vary or contradict its terms.
    23. The provisions of this Settlement Agreement and Order shall 
apply to Red Rock and Blackjack and each of their successors and 
assigns.
    24. Upon final acceptance of this Agreement, the Commission shall 
issue the attached Final Order.

    Respondent's Red Rock Trading Company, Inc. and Blackjack 
Fireworks, Inc.

    Dated: March 13, 2000.
Tim McCoy,
President, Red Rock Trading Company, Inc. and Blackjack Fireworks, 
Inc., 6000 South Eastern, Suite 11E, Las Vegas, NV 89119.
    Commission Staff
Alan H. Schoem,
Assistant Executive Director, Consumer Product Safety Commission, 
Office of Compliance, Washington, D.C. 20207-0001.
Eric L. Stone,
Director, Legal Division, Office of Compliance.
    Dated: March 16, 2000.
Dennis C. Kacoyanis,
Trial Attorney, Legal Division, Office of Compliance.

Order

    Upon consideration of the Settlement Agreement entered into between 
Respondents Red Rock Trading Company, Inc., a corporation, Blackjack 
Fireworks, Inc., a corporation, and the staff of the Consumer Product 
Safety Commission; and the Commission having jurisdiction over the 
subject matter and Red Rock Trading Company, Inc. and Blackjack 
Fireworks, 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, Red Rock Trading Company, Inc. and Blackjack 
Fireworks, Inc. shall pay a civil penalty in the amount of ninety 
thousand and 00/100 dollars ($90,000.00) in three (3) payments. The 
first payment of forty thousand and 00/100 dollars ($40,000.00) shall 
be due within twenty (20) days after service upon Red Rock Trading 
Company, Inc. and Blackjack Fireworks, Inc. of the Final Order of the 
Commission accepting the Settlement Agreement (hereinafter, the 
``anniversary date''). The second payment of twenty-five thousand and 
00/100 dollars ($25,000.00) shall be paid on or before August 1, 2000. 
The third payment of twenty-five thousand and 00/100 dollars 
($25,000.00) shall be made within one year of the anniversary date. 
Upon the failure of Red Rock Trading Company, Inc. and Blackjack 
Fireworks, Inc. to make a payment or upon Red Rock Trading Company, 
Inc. and Blackjack Fireworks, 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 5th 
day of June, 2000.

    By order of the Commission.
Sadye E. Dunn,
Secretary, Consumer Product Safety Commission.
[FR Doc. 00-14543 Filed 6-8-00; 8:45 am]
BILLING CODE 6355-01-M