03-30555. Daisy Manufacturing Company, Provisional Acceptance of Settlement Agreement and Order

AGENCY:

Consumer Product Safety Commission.

ACTION:

Notice.

SUMMARY:

The Commission publishes in the Federal Register settlements that it provisionally accepts under the Consumer Product Safety Act, in accordance with 16 CFR. 1115.20. Published below is a provisionally-accepted Settlement Agreement with Daisy Manufacturing Co., Inc. Referenced exhibits are available at the Office of the Secretary or at http://www.cpsc.gov.

DATE:

Any interested person may request the Commission not to accept this agreement by December 26, 2003.

ADDRESS:

Send written requests to CPSC Docket No. 02-2, Office of the Secretary, Consumer Product Safety Commission, Washington, DC 20207.

FOR FURTHER INFORMATION CONTACT:

Todd A. Stevenson, Consumer Product Safety Commission, Washington, DC 20207; telephone: [phone]; e-mail: [e-mail].

SUPPLEMENTARY INFORMATION:

The text of the Consent Agreement and Order appears below.

Consent Agreement and Order

1. This Consent Agreement and Order is a settlement proposal by Daisy Manufacturing Company (hereinafter “Respondent” or “Daisy”) pursuant to provisions set forth in 16 CFR 1025.26. It proposes a compromise resolution of the matter described herein, without a hearing or a determination of issues of law and fact.

2. Respondent Daisy Manufacturing Company is a corporation organized and existing under the laws of the State of Delaware. Its office is located at 400 West Stribling Drive, Rogers, Arkansas 72756. Respondent is a manufacturer of Daisy brand airguns and Powerline airguns.

The Complaint

3. A description of the alleged hazards, as set forth in the complaint is attached hereto as Exhibit A.

The Position of Respondent

4. Respondent denies all of the staff's allegations as set forth in the complaint as set forth in the Answer attached hereto as Exhibit B.

5. Respondent denies that the airguns described in the complaint contain a defect which creates or could create a substantial product hazard under section 15 of the CPSA, 15 U.S.C. 2064 and section 15 of the FHSA, 15 U.S.C. 1274.

The Proposed Settlement

6. Respondent admits all of the jurisdictional facts as set forth in the complaint herein.

7. Upon final acceptance of this Consent Agreement by the Commission and the issuance of the Final Order herein, Respondent knowingly, voluntarily and expressly 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 Respondent failed to comply with the CPSA and FHSA, as alleged, (4) to a statement of findings of fact and conclusions of law, and all further procedural steps and all rights to seek judicial review or otherwise to contest the validity of the Commission Order approving this Consent Agreement and (5) to any claims under the Equal Access to Justice Act.

8. The allegations of the complaint herein are resolved by this settlement consisting of a Consent Agreement and Order.

9. This Consent Agreement is entered into for settlement purposes only and does not constitute an admission by Respondent or a determination by the Commission, and settles any claim raised in the complaint by the Commission under Section 15(a) and (d) of the CPSA, and under Section 15 of the FHSA.

10. Upon provisional acceptance of this Consent Agreement and Order by the Commission, this Consent Agreement and Order 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).

11. The Commission and Respondent propose to take the following action to settle this proceeding:

A. The following issues raised by the complaint in this proceeding, namely:

(i) The possibility of uniform industry standards for loading and feeding of BB's in all multishot airguns to insure that an airgun, when operated in accordance with the manufacturer's operating instructions, will load, feed or fire properly.

(ii) What is the appropriate age for intended users of airguns that fire projectiles at more than 350 feet per second? (The parties recognize that the present standard is 16 years of age.)

shall be submitted for resolution to ASTM Subcommittee F15.06 for the purpose of consideration and determination, in the sole discretion of the Subcommittee, of the extent to which, if at all, they shall be addressed in the voluntary standards ASTM F589 and F590.

The remaining allegations in the complaint are withdrawn and resolved.

B. Respondent will undertake an intensive campaign to instruct users in the safe handling and use of its airguns, at its sole cost and expense during each of the next five (5) years, under the title “Take Aim At Safety”. The campaign will include:

(i) a comprehensive media advertising effort titled “Take Aim at Safety”. It will be conducted in each year, which began in 2002/2003, for five (5) years, at a cost to Respondent of in excess of $300,000 per year, for a total of $1,500,000. The campaign is described in detail in Exhibit C annexed hereto.

(ii) Daisy will promote safety by the publication and distribution of ten important safety rules, which, if followed, would eliminate every incident, injury or death associated with Daisy's high velocity airguns. Consumers will be encouraged to visit Daisy's Web site to learn Daisy's ten shooting safety rules and earn a safety certificate. They will be eligible to enter a contest to win a VIP tour of the USA Shooting Team Training facility in Colorado Springs, Colorado, annexed as Exhibit D. Each participant will receive a free copy of Daisy's shooting safety rules.

(iii) A sample ad, to be placed in trade and consumer publications, is annexed as Exhibit E.

(iv) Respondent will apply a “Take Aim At Safety” label to the face of all Daisy brand and Powerline brand long gun packaging. The objectives, audiences, and strategies of the media and packaging campaign to be conducted by Respondent is broadly outlined in Exhibit F.

(v) In February 2004 and in each of the four succeeding years thereafter, Daisy will advise the U.S. Consumer Product Safety Commission in writing of the extent to which the Daisy “Take Aim At Safety” campaign was conducted for the preceding year in the same detail as above set forth.

(vi) Manufacture. Respondent agrees to manufacture the Model 856 Powerline Airgun with the same single pellet ammunition and feed system as currently being manufactured.

(vii) Tape Around Airgun Boxes. Respondent will incorporate a tape band 11/2 to 2 inches wide around the Model 856 and 880 gun boxes which will have a repeating message on the pre-printed tape, which will include the “Take Aim at Safety” logo and state:

Warning: This Gun is for Ages 16 and Over. Adult Supervision Required. Careless Use or Misuse of this Gun May Kill Someone”

The tape would have to be cut through, in addition to industrial staples to open the box. This would increase the likelihood that the consumer reads the warning.

(viii) Hang Tag, Zip Tie or Sticker. A zip tie is placed over the pumping mechanism of the gun, which must be cut through to use the gun. A hang tag will be attached to the zip tie and will state:

Warning: Always treat this gun as if it is loaded, whether you think it is loaded or not. Even if the gun fails to fire a BB or Pellet one or more times, do not assume it is unloaded. Any airgun may fail to fire for a variety of reasons. Never point the gun in an unsafe direction or at another person.

In lieu of a zip tie or hang tag, a sticker may be replaced on the product featuring the same warning.

(ix) Poster, Sticker, Counter Card, or Video for Retailers. For a period of five (5) years, an 81/2 X 11 poster, sticker, counter card or video will be sent to retailers for posting during the Christmas season. The poster will contain the 10 Shooting Safety Rules and alert users to free training programs.

Take Aim at Safety—Learn and Practice 10 Shooting Safety Rules. Airguns Are Real Guns, Not Toys. Only Use Age Appropriate Airguns. You or Others Could Be Seriously Injured or Killed If These Rules Are Not Followed.

1. Always Keep the Muzzle Pointed in Safe Direction. There are several safe “carries” depending on the situation. Never allow the muzzle to point in the direction of a person.

2. Treat Every Gun as if it Were Loaded. You can never be positive that you were the last person to handle the gun. Never take anyone's word about whether or not a gun is loaded. Always check a gun to see if it is loaded when removed from storage or received from another person. Even if you have fired an airgun one or more times and no pellet or BB was expelled from the barrel, it does not mean that the magazine of gun is empty of ammunition. Any airgun can fail to feed for any number of reasons. Continue to treat the airgun as loaded and ready to fire. Always treat a gun as if it is loaded even if you know it isn't.

3. Only Load or Cock a Gun When You Are Shooting. A loaded gun has no place in your home or other public place.

4. Check Your Target and Beyond Your Target. Be sure all persons are well clear of the target area before you shoot. Check behind and beyond your target to be certain you have a safe backstop and that no person or property could be endangered.

5. Anyone Shooting or Near a Shooter Should Wear Shooting Glasses. Also, all other persons should remain behind the shooter.

6. Never Climb or Jump with a Gun. You can't control the direction of the muzzle if you stumble or fall. You should safely lay the gun down or hand it to a companion while you climb or jump over anything.

7. Avoid Ricochet. Never shoot at a flat hard surface or at the surface of water. Ammunition can ricochet off of water just like a skipped rock.

8. Keep the Muzzle Clear. Never let anything obstruct the muzzle of a gun. Don't allow the muzzle to come in contact with the ground.

9. Guns Not in Use Should Always Be Unloaded. Keeping guns unloaded when not in use is critical to the safety of you and others. When you are finished shooting, put the trigger safety in the “on” position and unload the gun. Store guns so that they are inaccessible to untrained shooters and store ammunition separately from the gun.

10. Respect Other People's Property. Whether you're target shooting or hunting, if you're a guest on others' land, you should leave it exactly as you found it.

(x) Free Training. Respondent will provide an enclosure in the package and notation on the retail poster, sticker or counter card alerting users as to the availability of free training at their local Jaycee or shooting organization and a toll free 800 number for the dissemination of such information and will report progress to the Commission.

(xi) BB Package. An insert or package label shall be added to all boxes of BBs alerting the consumers that (1) Always point the gun in a safe direction; (2) Always treat every gun as if it were loaded; (3) Any gun may fail to load, feed or fire a BB for a variety of reasons. Even if the gun fails to fire a BB one or more times, do not assume it is unloaded; (4) A BB can seriously injure or kill you or other humans if it is fired in an unsafe direction; (5) Shoot safely.

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

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

14. This Consent Agreement in no way constitutes an admission of liability of any kind and Respondent has disputed and continues to dispute the allegations made in the complaint of the Consumer Product Safety Commission. Pursuant to Federal Rules of Evidence 403 and applicable case law, it is the parties' intent and they agree that the Consent Agreement and the action itself is not a finding of liability of any kind and not admissible as evidence for any purpose in any proceeding or in any action in state or federal courts.

15. The provisions of this Consent Agreement and Order shall apply to Respondent and Commission and each of their successors and assigns.

Dated: November 14, 2003.

Respondent: Daisy Manufacturing Company.

By: (signed by) William M. Griffin, III,

400 West Stribling Drive, Rogers, AR 72756.

Dated: December 3, 2003.

Consumer Product Safety Commission

By: (signed by) Patricia Semple,

4330 East West Highway, Bethesda, Maryland 20814.

Upon consideration of the Consent Agreement submitted by Respondent Daisy Manufacturing Company, Inc., (hereinafter “Respondent”), a corporation, and the Consumer Product Safety Commission (“Commission”), having jurisdiction over the subject matter and Respondent; and it appearing that the Consent Agreement and Order is in the public interest; It is ordered, that the Consent Agreement be and hereby is accepted by Order of the Commission.^[1]

For the Commission.

Dated: December 4, 2003.

Todd A. Stevenson,

Secretary.

Footnotes

1.  Chairman Stratton and Commissioner Gall voted to accept the proposed Offer of Settlement. Commissioner Moore voted to reject the proposed Offer of Settlement.