[Federal Register Volume 60, Number 71 (Thursday, April 13, 1995)]
[Notices]
[Pages 18801-18804]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-9047]



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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