The Brinkmann Corporation, a Corporation; Provisional Acceptance of a Settlement Agreement and Order

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