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Notice

Jake's Fireworks, Inc., Far East Imports, Inc., Wholesale Fireworks Enterprises LLC, Pacific Northwest Fireworks, Inc., Provisional Acceptance of a Settlement Agreement and Order

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Information about this document as published in the Federal Register.

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AGENCY:

Consumer Product Safety Commission.

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ACTION:

Notice.

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 1118.20(e). Published below is a provisionally-accepted Settlement Agreement with Jake's Fireworks, Inc., Far East Imports, Inc., Wholesale Fireworks Enterprises LLC, Pacific Northwest Fireworks, Inc., containing a civil penalty of $100,000.00.

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 December 15, 2010.

ADDRESSES:

Persons wishing to comment on this Settlement Agreement should send written comments to the Comment 11-C0001, Office of the Secretary, Consumer Product Safety Commission, 4330 East West Highway, Room 820, Bethesda, Maryland 20814-4408.

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FOR FURTHER INFORMATION CONTACT:

Michelle Faust Gillice, Trial Attorney, Division of Enforcement and Information, Office of the General Counsel, Consumer Product Safety Commission, 4330 East West Highway, Bethesda, Maryland 20814-4408; telephone (301) 504-7667. SUPPLEMENTARY INFORMATION: The text of the Agreement and Order appears below.

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Dated: November 24, 2010.

Todd A. Stevenson,

Secretary.

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Settlement Agreement

1. In accordance with 16 CFR 1118.20, Jake's Fireworks, Inc., Far East Imports, Inc., Wholesale Fireworks Enterprises, LLC and Pacific Northwest Fireworks, Inc., and the staff (“Staff”) of the United States Consumer Product Safety Commission (“Commission”) enter into this Settlement Agreement (“Agreement”). This Agreement and the incorporated attached Order resolve the staff's allegations set forth below.

The Parties

2. The Staff is the staff of the Commission, an independent federal regulatory agency responsible for the enforcement of the Consumer Product Safety Act (“CPSA”), 15 U.S.C. 2051-2089 and the Federal Hazardous Substances Act (“FHSA”), 15 U.S.C. 1261-1278.

3. Jake's Fireworks, Inc. is a corporation organized and existing under the laws of Kansas, with its principal offices located in Pittsburg, Kansas. Far East Imports, Inc. and Wholesale Fireworks Enterprises, LLC are incorporated under the laws of Kansas and share the same address as Jake's Fireworks in Pittsburg, Kansas. Pacific Northwest Fireworks, Inc. is a Washington corporation located in Aberdeen, Washington. At all times relevant hereto, Jake's Fireworks, Inc., Far East Imports, Inc., Wholesale Fireworks Enterprises, LLC, and Pacific Northwest Fireworks, Inc. (hereinafter collectively referred to as the “Respondents”) introduced or caused to be introduced into interstate commerce certain violative fireworks.

Staff Allegations

4. Between December 2006 and September 2007, Respondents imported over 200,000 fireworks that failed to comply with the Commission's fireworks regulations at 16 CFR 1500.17(a)(3) and 16 CFR Part 1507. (Fireworks subject to this Agreement and Order are identified in Attachment A.)

5. Between December 2006 and September 2007, Commission staff issued 98 separate Letters of Advice to Respondents notifying the firms that the fireworks devices sampled at import were in violation of the Commission's fireworks regulations. Of the 98 violations, 81 violations were for failure to comply with the regulation set forth at 16 CFR 1500.17(a)(3). Section 1500.17(a)(3) requires that fireworks intended to produce an audible effect contain no more than two (2) grains of pyrotechnic composition.

6. The fireworks devices referenced in paragraph 4 are banned hazardous substances pursuant to section 2(q)(1)(B) of the FHSA, 15 U.S.C. 1261(q)(1)(B), and 16 CFR 1500.17(a)(3).

7. Respondents knowingly introduced or caused the introduction into interstate commerce or received in interstate commerce and delivered or proffered delivery thereof for pay or otherwise, the banned hazardous substances referenced in paragraph 4 above, in violation of sections 4(a) and (c) of the FHSA, 15 U.S.C. 1263(a) and (c).

Respondents Response to Allegations

8. Respondents deny the allegations of the staff set forth in paragraphs 4 through 7 above.

Agreement of the Parties

9. The Commission has jurisdiction over this matter and over Respondents under the CPSA and the FHSA.

10. The parties enter this Agreement for settlement purposes only. The Agreement does not constitute an admission by Respondents nor a determination by the Commission that Respondents knowingly violated the FHSA.

11. In settlement of the staff's allegations, Respondents shall pay a civil penalty of one hundred thousand dollars ($100,000.00), for which all Respondents are jointly and severally liable, within twenty (20) calendar days of service of the Commission's final Order accepting this Agreement. The payment shall be by check and made payable to the order of the United States Treasury.

12. Within six (6) months of service of the Commission's final Order, Respondents shall destroy at their own cost, the inventory of all violative fireworks referenced in Attachment A, subject to the terms and conditions set forth in paragraphs 13 through 16. Destruction of the fireworks shall be in accordance with all federal, state and local laws and regulations.

13. Respondents shall provide the Commission staff with seven (7) days advance notice of the time and place of each destruction event so that a Commission investigator may witness the destruction. By witnessing a destruction event, CPSC does not prescribe nor approve specific methods of destruction as safe. At each destruction event, a principal or an employee authorized by a Respondent company principal shall complete and sign an affidavit of destruction, under the penalty of perjury. The affidavit shall identify the fireworks destroyed by model name, Commission sample number, and the number of units of destroyed. Respondents shall submit the signed Affidavit of Destruction to Michelle Gillice, Trial Attorney, Office of the General Counsel, U.S. Consumer Product Safety Commission, 4330 East West Highway, Bethesda, MD 20814, no later than seven (7) days after the destruction event.

14. Should Respondents fail to destroy the entire inventory of violative fireworks referenced in Attachment A within six (6) months of service of the final Order, they shall be subject to additional penalties as set forth in paragraphs 15 and 16.

15. Should Respondents fail to comply with the terms of destruction set forth in paragraphs 12 and 13 of this Agreement, Respondents shall pay a penalty of five thousand dollars ($5,000.00) in liquidated damages for each day such violation continues, for which all Respondents are jointly and severally liable, to the United States Start Printed Page 74010Treasury. The amount of liquidated damages in this paragraph shall not exceed seven hundred and fifty thousand dollars ($750,000.00) in any one calendar year. The remedy in this paragraph shall be in addition to any other remedies available to the United States under the law.

16. The penalties referenced in paragraph 15 will not be imposed if Respondents fail to meet the deadline in performing hereunder if such delay or default is caused by the following events or conditions beyond its reasonable control: force majeure or “Acts of God”, wars, insurrections, and Government restrictions, and Respondents notify the Commission within seven (7) days of such event or condition with documentation evidencing the occurrence. Force majeure does not refer to: staff shortages; sick leaves; late supplies or shortcomings on the part of a third party contracted by Respondents. In case of force majeure or one of the above referenced events or conditions, provided Respondents notify the Commission within the allotted time frame, the destruction obligation will be temporarily suspended during the event or condition period to the extent that such performance is reasonably affected thereby.

17. Upon the Commission's provisional acceptance of the Agreement, the Agreement shall be placed on the public record and published in the Federal Register in accordance with the procedures set forth in 16 CFR 1118.20(e). In accordance with 16 CFR 1118.20(f), if the Commission does not receive any written requests not to accept the Agreement within 15 calendar days, the Agreement shall be deemed finally accepted on the 16th calendar day after the date it is published in the Federal Register.

18. Upon the Commission's final acceptance of the Agreement and issuance of the final Order, Respondents knowingly, voluntarily and completely waive any rights they may have in this matter to the following: (i) An administrative or judicial hearing; (ii) judicial review or other challenge or contest of the validity of the Commission's Order or actions; (iii) a determination by the Commission as to whether Respondents failed to comply with the FHSA and the underlying regulations; (iv) a statement of findings of fact and conclusions of law; and (v) any claims under the Equal Access to Justice Act.

19. The Commission may publicize the terms of the Agreement and Order.

20. The Agreement and Order shall apply to, and be binding upon, Respondents and each of their successors and assigns.

21. The Commission issues the Order under the provisions of the FHSA, and a violation of the Order may subject those referenced in paragraph 20 above to appropriate legal action.

22. This Agreement may be used in interpreting the Order. Understandings, agreements, representations, or interpretations apart from those contained in the Agreement and the Order may not be used to vary or contradict their terms. The Agreement shall not be waived, amended, modified, or otherwise altered without written agreement thereto executed by the party against whom such waiver, amendment, modification, or alteration is sought to be enforced.

23. If any provision of this Agreement and Order is held to be illegal, invalid, or unenforceable under present or future laws effective during the terms of the Agreement and Order, such provision shall be fully severable. The balance of the Agreement and Order shall remain in full force and effect, unless the Commission and Respondents determine that severing the provision materially affects the purpose of the Agreement and Order.

RESPONDENTS

Dated: 10/5/10

By:

Michael Marietta,

President, Jake's Fireworks, Inc., 2311 West 4th Street, Pittsburg, KS 66762.

Michael Marietta,

President, Far East Imports, Inc., 2311 West 4th Street, Pittsburg, KS 66762.

Jason Marietta,

Managing Member, Wholesale Fireworks Enterprises, LLC, 2311 West 4th Street, Pittsburg, KS 66762.

Joan Ross,

President, Pacific Northwest Fireworks, Inc., 100 S. I Street, Aberdeen, Washington.

By:

Hal Stratton,

Counsel for Jake's Fireworks, Inc., Far East Imports, Inc., Wholesale Fireworks Enterprises, LLC, Pacific Northwest Fireworks, Inc., Brownstein Hyatt Farber Schreck, LLP, Albuquerque, NM 87102.

U.S. Consumer Product Safety Commission

Cheryl Falvey,

General Counsel.

Ronald G. Yelenik,

Assistant General Counsel, Office of the General Counsel.

Dated: 11/18/10

By:

Michelle Faust Gillice,

Trial Attorney, Division of Compliance, Office of the General Counsel.

Attachment A—Violative Fireworks

Sample No.Model name
07-810-4038Loyal To None.
07-810-4039Megabanger Firecracker.
07-810-4042One Bad Mother.
07-810-4044One Bad Mother.
07-810-4045Loyal To None.
07-810-4046Megatron.
07-810-4103Cooking with Gas.
07-810-4104The Big Dog.
07-810-4106One Bad Mother 16 Shot.
07-810-4111Time Is On My Side.
07-810-4118Loyal To None.
07-810-4119Scorpions.
07-810-4212Loyal To None.
07-810-4420Megabanger Megatron.
07-810-4565One Bad Mother.
07-810-4584Extreme Machine.
07-810-4587Vendicator.
07-810-4588The Big Package.
07-810-4589Return To Glory.
07-801-4590One Bad Mother.
07-810-4624Loyal To None.
07-810-4627World Class Boom Boom.
07-810-4828Loyal To None.
07-810-4830Return To Glory.
07-810-4914Catastrophic 9 Shot.
07-810-5008Truckin Home.
07-810-5009Professional 3 Pack.
07-810-5010BF Assorted Cakes.
07-810-5012Spyder, Brown Label.
07-810-50187 Wonders of the World.
07-810-5048Not In My Yard.
07-810-5064Loyal To None.
07-810-5066Megatron.
07-810-5095One Bad Mother.
07-810-5096Loyal To None.
07-810-5098Megatron.
07-810-5330Spyder, Brown Label.
07-810-5332Cocky.
07-810-547410 Ball Bang.
07-810-5475Can You Handle It?
07-810-5476Megabanger Megatron.
07-810-5481One Bad Mother.
07-810-5482Loyal To None.
07-810-5483One Bad Mother.
07-810-5484Loyal To None.
07-810-5490Loyal To None.
07-810-5491One Bad Mother.
07-810-5511B.M.F.
07-810-5512Big Sexy.
07-810-5514Perfection.
07-810-5656The Big Package.
07-810-5793One Bad Mother.
07-810-5794Red White & Blue Forever.
07-840-6029Loyal To None.
07-840-6030The Big Package.
07-840-6263Multishot Shell.
07-840-6371Hydrogen Bomb.
07-840-6542Festival Balls.
07-840-6548One Bad Mother.
07-840-6551Premium Bottle Rocket.
07-840-6552One Bad Mother.
07-840-6603Loyal To None.
07-840-6681One Bad Mother/Shell.
07-840-6682Loyal To None/Shell.
07-840-6683Megatron/Shell.
07-840-6737Loyal To None.
07-840-6846One Bad Mother.
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07-840-6847Merlin's Match.
07-840-6849Vendicator.
07-840-6865The Best of the Best.
07-840-6867Flashing Thunder.
07-840-6869Loyal To None.
07-840-6904Loyal To None.
07-840-7267The Big Package.
07-840-7269One Bad Mother.
07-840-7283One Bad Mother.
07-840-7291One Bad Mother.
07-840-7292Loyal To None.
07-840-7297Instigator.
07-840-7304Loyal To None.
07-840-7305One Bad Mother.
07-840-7317Saturn Missle Battery.
07-840-7319Loyal To None.
07-840-7320One Bad Mother.
07-840-7321One Bad Mother.
07-840-7324Red White & Blue Forever.
07-840-7328Festival Balls.
07-840-7467Loyal To None.
07-840-7468So What Are You Looking At?
07-840-7486Loyal To None.
07-840-7289Whistling Chaser.
07-810-5036Return To Glory.
07-810-5037One Bad Mother 9 Shot.
07-810-5041World Class Loyal To None.
07-840-6890Grave Digger.
07-840-6891Megabanger Megatron.
07-840-6892Megabanger Just Bad.
07-840-7091Loyal To None.
07-840-7197One Bad Mother.
07-840-7207Loyal To None.
07-840-7208The Big Package.
07-840-7209Jumbo Smoke Balls.
07-810-5494Loyal To None.
07-810-5738Loyal To None.
07-810-5739Loyal To None.
07-810-5740Loyal To None.
07-810-5781So What Are You Looking At?
07-810-5782Saturn Missle Battery.
07-810-5785Loyal To None.
07-810-5786The Big Dog.
07-810-5788Extreme Machine.
07-810-5790Loyal To None.
07-810-5791Loyal to None.
07-810-5792Loyal To None.
07-840-7282Loyal To None.
07-840-7288Loyal To None.

Order

Upon consideration of the Settlement Agreement entered into between Jake's Fireworks, Inc., Far East Imports, Inc., Wholesale Fireworks Enterprises, LLC and Pacific Northwest Fireworks, Inc., (hereinafter, “Respondents”) and the staff of the United States Consumer Product Safety Commission (“Commission”), and the Commission having jurisdiction over the subject matter and over Respondents, and it appearing that the Settlement Agreement and Order are in the public interest, it is

Ordered, that the Settlement Agreement, be and hereby is, accepted; and it is

Further ordered, that Respondents shall pay a civil penalty in the amount of one hundred thousand dollars ($100,000.00) within twenty (20) calendar days of service of the Commission's final Order accepting the Agreement. The payment shall be made by check payable to the order of the United States Treasury. Upon the failure of Respondents to make the foregoing payment when due, interest on the unpaid amount shall accrue and be paid by Respondents at the federal legal rate of interest set forth at 28 U.S.C. 1961(a) and (b); and it is

Further ordered, that within six (6) months of service of the Final Order, in accordance with the terms set forth in the Settlement Agreement, Respondents shall destroy at their own cost, the entire inventory of violative fireworks referenced in Attachment A to the Settlement Agreement. Upon the failure of Respondents to comply with the terms of destruction set forth in the Settlement Agreement, the firm agrees to pay to the United States of America, five thousand dollars in liquidated damages for each day such violation continues. The amount of liquidated damages in this paragraph shall not exceed $750,000.00 in any one calendar year;

Provisionally accepted and provisional Order issued on the 24th day of November 2010.

By Order of the Commission.

Todd A. Stevenson,

Secretary, U.S. Consumer Product Safety Commission.

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[FR Doc. 2010-30073 Filed 11-29-10; 8:45 am]

BILLING CODE 6355-01-P