B & B Amusements, Inc., a Corporation, and B & B Spectaculars, L.L.C., a Limited Liability Corporation; Provisional Acceptance of a Settlement Agreement and Order

AGENCY:

Consumer Product Safety Commission.

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 C.F.R. 1115.20(b). Published below is a provisionally-accepted Settlement Agreement with B & B Amusements, Inc., a corporation, and B & B Spectaculars, L.L.C., a limited liability 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 25, 2000.

ADDRESSES:

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

SUPPLEMENTARY INFORMATION:

The text of the Agreement and Order appears below.

Consent Order Agreement

1. This Consent Order Agreement (hereinafter, “Agreement”), entered between B&B Amusements, Inc. (hereinafter, “Respondent B & B Amusements”), a corporation, B&B Spectaculars, L.L.C., a limited liability corporation (hereinafter, “B&B Spectaculars”) and the staff of the Consumer Product Safety Commission (hereinafter, “Commission”) pursuant to the procedures set forth in section 1115.20(b) of the Commission's Procedures for Consent Order Agreements, 16 C.F.R. 1115.20(b), is a compromise resolution of the matter described herein, without a hearing or a determination of issues of law and fact.

I. The Parties

2. The “staff” is the staff on the Consumer Product Safety Commission, an independent regulatory commission of the United States established pursuant to section 4 of the CPSA, 15 U.S.C. 2053.

3. Respondent B&B Amusements, Inc. is a corporate organized and existing under the laws of the State of Arizona with its principal corporate offices located at 4491 South 4th Avenue, Yuma, AZ 85365. Respondent is the operator of the Himalaya amusement ride.

4. Respondent B&B Spectaculars, L.L.C. is a limited liability corporation organized and existing under the laws of the State of Oregon with its principal corporate offices located at 4491 South 4th Avenue, Yuma, AZ 85365. Respondent is the owner of the Himalaya amusement ride.

II. Staff's Allegations

5. The staff conducted an investigation of an incident that occurred on or about March 19, 1998 at the Travis County Livestock and Rodeo Show in Austin, TX involving the Himalaya amusement ride owned by Respondent B&B Spectaculars and operated by Respondent B&B Amusements. The incident resulted in the death of a female passenger and in injuries to two other passengers.

6. The staff alleges that the Himalaya amusement ride owned by Respondent B&B Spectaculars and operated by Respondent B&B Amusements contains a defect that creates a substantial risk of injury to the public because Respondents failed to properly maintain, inspect, and operate the ride at the time of the incident involving two injuries and one death.

III. Response of Respondents

7. Respondents deny the allegations set forth by the staff in paragraphs 5 and 6 above.

8. Respondents specifically deny that the Himalaya amusement ride owned by Respondent B&B Spectaculars and operated by Respondent B&B Amusements contains a defect that creates a substantial risk of injury to the public because Respondents failed to properly maintain, inspect, and operate the ride at the time of the incident involving two injuries and one death.

IV. Agreement of the Parties

9. The Commission has jurisdiction over this matter under the Consumer Product Safety Act (CPSA), 15 U.S.C. 2051 et seq.

10. Upon final acceptance by the Commission of this Consent Order Agreement, the Commission shall issue the attached Order incorporated herein by reference.

11. This Agreement is entered into for the purposes of settlement only and does not constitute an admission by Respondents or a determination by the Commission that the Himalaya amusement ride owned by Respondent B&B Spectaculars and operated by Respondent B&B Amusements contains a defect that creates a substantial risk of injury to the public because Respondents failed to properly maintain, inspect, and operate the ride at the time of the incident involving two injuries and one death.

12. Upon final acceptance of this Consent Order Agreement by the Commission, Respondents knowingly, voluntarily, and completely waive any rights they may have in this matter (a) to the issuance of a complaint; (b) to an administrative or judicial hearing; (c) to judicial review or other challenge or contest of the validity of the Commission's actions; (d) to a determination by the Commission as to whether Respondents failed to comply with the CPSA as aforesaid, (e) to a statement of findings of facts and conclusions of law; and (f) to any claims under the Equal Access to Justice Act.

13. 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 and conditions of this Consent Order Agreement.

14. Upon provisional acceptance of this Consent Order Agreement by the Commission, this Consent Order Agreement shall be placed on the public record and shall be published in the Federal Register in accordance with the procedures set forth in 16 CFR 1115.20(b)(4) and (b)(5). If the Commission does not receive any written request not to accept the Consent Order Agreement within 15 days, the Consent Order Agreement will be deemed finally accepted on the 20th day after the date it is published in the Federal Register.

15. This Consent Order Agreement is a Commission order issued under section 15 of the CPSA, 15 U.S.C. 2064.

16. A violation of the incorporated Consent Order Agreement is a prohibited act under section 19(a)(5) of the CPSA, 15 U.S.C. 2068(a)(5) and may subject Respondents to civil and/or criminal penalties pursuant to sections 20 and 21 of the CPSA, 15 U.S.C. 2069 and 2070.

17. Any interested person may bring an action pursuant to section 24 of the CPSA, 15 U.S.C. 2073 in any U.S. District Court for the district where the Respondents are found or are transacting business for the purpose of enforcing the Consent Order Agreement and/or obtaining appropriate injunctive relief.

18. The provisions of the Consent Order Agreement shall apply to Respondents and each of their successors and assigns.

19. Agreements, understandings, representations, or interpretations made outside of this Consent Order Agreement may not be used to vary or to contradict its terms.

Respondent B&B Amusements, Inc.

Respondent B&B Spectaculars, L.L.C.

Commission Staff

Order

Upon consideration of the foregoing Consent Agreement entered into between Respondent B&B Amusements, Inc., a corporation, B&B Spectaculars, L.L.C., a limited liability corporation, and the staff of the Consumer Product Safety Commission; and the Commission having jurisdiction over the subject matter and the Respondents; and it appearing that the Consent Order Agreement is in the public interest,

I. It Is Ordered that the Consent Agreement be, and hereby is, accepted.

II. It is Further Ordered that Respondents will not operate the Himalaya amusement ride unless they take the actions set forth in sections III, IV, and V of this Order.

III. It Is Further Ordered That Respondents and each of their successors and assigns notify the Commission in writing at least 60 days prior to placing the Himpalay in service at each location in which Responsents intend to operate the Himalaya.

IV. It Is Further Ordered That Respondents and each of their successors and assigns allow the Commission or an entity acting on behalf of the Commission including, but not limited to state amusement ride safety inspectors and private amusement ride safety inspectors, to inspect the Himalaya prior to the ride being placed in service at each location in which Respondents intent to operate it.

V. It Is Further Ordered That Respondents and each of their successors and assigns comply with all manufacturer's recommendations and specifications including, but not limited to, parts, operation, inspection, secondary restraints, and maintenance of the Himalaya.

VI. It Is Further Ordered That Respondent B & B Spectaculars and each of its successors and assigns notify the Commission in writing at least 60 days prior to sale of all parts of the Himalaya. Such notice shall include the name(s), address(es), and telephone number(s) of the purchaser(s).

VII. It Is Further Ordered That Respondent B&B Spectaculars and each of its successors and assigns notify the Commission in writing at least 60 days prior to destroying and/or disposing of the Himalaya. Such notice shall include the name, address, and telephone number of the entity charged with destroying and/or disposing of the Himalaya and the location of the destruction and/or disposal.

VIII. It Is Further Ordered That Respondents and each of their successors and assigns direct all required notices under the Consent Order Agreement to Alan Alan H. Schoem, Assistant Executive Director, Office of Compliance, U.S. Consumer Product Safety Commission, Washington, D.C. 20207-0001.

Provisionally accepted and Provisional Order issued on the 3rd day of April, 2000.