[Federal Register Volume 59, Number 20 (Monday, January 31, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-1981]


[[Page Unknown]]

[Federal Register: January 31, 1994]


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CONSUMER PRODUCT SAFETY COMMISSION

[CPSC Docket No. 94-C0007]

 

Neeley Sales 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 
Federal Hazardous Substances Act and the Consumer Product Safety Act.

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SUMMARY: It is the policy of the Commission to publish settlements 
which it provisionally accepts in the Federal Register in accordance 
with the terms of 16 CFR part 1118.20(e)-(h). Published below is a 
provisionally-accepted Settlement Agreement with Neeley Sales 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 February 14, 1994.

ADDRESSES: Persons wishing to comment on this Settlement Agreement 
should send written comments to the Comment 94-C0007, Office of the 
Secretary, Consumer Product Safety Commission, Washington, DC 20207.

FOR FURTHER INFORMATION CONTACT:
Dennis C. Kacoyanis, Trial Attorney, Office of Compliance and 
Enforcement, Consumer Product Safety Commission, Washington, DC 20207; 
telephone (301) 504-0626.

SUPPLEMENTARY INFORMATION: (attached).

    Dated: January 21, 1994.
Sheldon D. Butts,
Deputy Secretary.
[CPSC Docket No. 94-C0007]

Neeley Sales Company, Inc., a Corporation; Settlement Agreement and 
Order

    1. Neeley Sales Company, Inc., (hereinafter, ``Neeley''), a 
corporation, enters into this Settlement Agreement (hereinafter, 
``Agreement'') with the staff of the Consumer Product Safety 
Commission, and agrees to the entry of the Order described herein. The 
purpose of the Agreement and Order is to settle the staff's allegations 
that Neeley Sales Company knowingly received for introduction into 
interstate commerce certain banned hazardous fireworks in violation of 
section 4(a) of the Federal Hazardous Substances Act, 15 U.S.C. 
1263(a).

I. Jurisdiction

    2. The Commission has jurisdiction over Neeley and the subject 
matter of this Settlement Agreement pursuant to section 30(a) of the 
Consumer Product Safety Act (hereinafter, ``CPSA''), 15 U.S.C. 2079(a), 
and sections 2(q)(1)(B), 4(a), and 5(c) of the Federal Hazardous 
Substances Act (hereinafter, ``FHSA''), 15 U.S.C. 1261(q)(1)(B), 
1263(a), and 1264(c).

II. The Parties

    3. 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 CPSA, 15 U.S.C. 2053.
    4. Neeley is a corporation organized and existing under the laws of 
the State of South Carolina, with its principal corporate offices 
located at Highway 25 South, Post Office Box 523, Greenwood, SC 29646. 
Neeley is engaged in the import and wholesale business of fireworks. 
All of its sales are derived from the wholesale distribution of 
fireworks.

III. Allegations of the Staff

    5. The staff alleges that between May 11, 1991, and November 16, 
1991, Neeley caused the introduction into interstate commerce of 
approximately 12,000 retail units of non-complying fireworks which are 
identified and described below:

------------------------------------------------------------------------
 CPSC Sample                                                            
     No.                        Description                   Entry date
------------------------------------------------------------------------
M-806-1792...  Assorted Large Rockets, Inter-Oriental           05/11/91
                Fireworks.                                              
P-830-6006...  Air Travel With Report, Hop-Key Pyrotechnics.    11/16/91
P-830-6007...  Small Festival Balls, Hop-Key Pyrotechnics...    11/16/91
------------------------------------------------------------------------

    6. The staff alleges that the firework device identified as 
Assorted Large Rockets, No. L143, Sample No. M-806-1792 in paragraph 
five above is subject to, but failed to comply with, the Commission's 
Fireworks Regulations, 16 CFR part 1507, in that when tested, failed to 
comply with the performance requirements contained in 16 CFR 
1507.3(a)(2), 1507.3(b), and 1507.10 regarding fuse burn time, fuse 
support, and stick rigidity.
    7. The staff alleges that the firework device identified as Air 
Travel With Report, No. T0001, Sample No. P-830-6006 in paragraph 5 
above is subject to, but failed to comply with the Commission's 
Fireworks Regulations, 16 CFR part 1507, in that when tested, failed to 
comply with the performance requirements contained in 16 CFR 
1507.3(a)(2) regarding fuse burn time.
    8. The staff alleges that the firework device identified as Small 
Festival Balls, No. 0008, Sample No. P-830-6007 in paragraph 5 above is 
subject to, but failed to comply with the Commission's Fireworks 
Regulations in that when tested, failed to comply with the performance 
requirements contained in 16 CFR 1507.3(a)(2) regarding fuse burn time.
    9. The staff alleges that the fireworks identified in paragraph 
five above is a ``banned hazardous substance'' pursuant to (a) section 
2(q)(1)(B) of the FHSA, 15 U.S.C. 1261(q)(1)(B); and (b) 16 CFR part 
1507.
    10. The staff alleges that Neeley knowingly received for 
introduction into interstate commerce of the aforesaid banned hazardous 
fireworks, in violation of section 4(a) of the FHSA, 15 U.S.C. 1263(a), 
for which a civil penalty may be imposed pursuant to section 5(c) of 
the FHSA, 15 U.S.C. 1264(c).

IV. Response of Neeley

    11. Neeley denies the allegations of the staff set forth in 
paragraphs five through ten above that it has knowingly received for 
introduction into commerce any of the aforesaid banned hazardous 
fireworks, or that it has violated the FHSA as alleged by the staff.

V. Agreement of the Parties

    12. The Consumer Product Safety Commission has jurisdiction over 
Neeley and the subject matter of this Settlement Agreement and Order 
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.
    13. Upon final acceptance by the Commission of this Settlement 
Agreement, Neeley agrees to pay to the Commission a civil penalty in 
the amount of TEN-THOUSAND AND 00/100 DOLLARS ($10,000.00), in two (2) 
installment payments of FIVE-THOUSAND AND 00/100 DOLLARS each. The 
first installment payment of FIVE-THOUSAND AND 00/100 DOLLARS 
($5,000.00) shall be due (20) days after service of the Final Order of 
the Commission accepting the Settlement Agreement. The second and final 
installment payment of FIVE-THOUSAND AND 00/100 DOLLARS is due and 
payable no later than 365 days after service of the Final Order. For 
any payment that is overdue less than thirty (30) days, Neeley shall be 
charged interest, payable to the Commission, in accordance with the 
rate and method of calculation set forth in 28 U.S.C. 1961 (a) and (b), 
during the period that payment is overdue. Any payment that is thirty 
(30) days or more overdue shall cause the entire outstanding balance to 
become due immediately and payable with interest in accordance with 28 
U.S.C. 1961 (a) and (b) as set forth above, during the period that the 
outstanding balance is overdue. Payment of the full amount of the civil 
penalty shall settle fully the staff's allegations set forth in 
paragraphs five through ten above that Neeley Sales Company, Inc. or 
Dennis Neeley, individually, or any of Neeley's officers, agents, or 
employees has violated the FHSA.
    14. The Commission does not make any determination that Neeley 
knowingly violated the FHSA. The Commission and Neeley agree that this 
Agreement is entered into for the purposes of settlement only.
    15. Upon final acceptance of this Settlement Agreement by the 
Commission and issuance of the Final Order, Neeley 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 Neeley failed to comply with the FHSA as aforesaid, and (4) to 
a statement of findings of fact and conclusions of law.
    16. 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.
    17. Upon provisional acceptance of this Settlement Agreement and 
Order by the Commission, this Settlement 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 
1118.20(e)-(h). If the Commission does not receive any written request 
not to accept the Settlement Agreement and Order within 15 days, the 
Settlement Agreement and Order will be deemed finally accepted on the 
16th day after the date it is published in the Federal Register.
    18. The parties further agree that the Commission shall issue the 
attached Order incorporated herein by reference; and that a violation 
of the Order shall subject Neeley to appropriate legal action.
    19. No agreement, understanding, representation, or interpretation 
not contained in this Settlement Agreement and Order may be used to 
vary or to contradict its terms.
    20. The provisions of the Settlement Agreement and order shall 
apply to Neeley and each of its successors and assigns.
Respondent Neeley Sales Company, Inc.

    Dated: November 8, 1993.

    By:
G. Dennis Neeley,
President, Neeley Sales Company, Inc., Highway 25 South, Post Office 
Box 523, Greenwood, SC 29646.
Commision Staff
David Schmeltzer,
Assistant Executive Director, Office of Compliance and Enforcement
Alan H. Schoem,
Director, Division of Administrative Litigation Office of Compliance 
and Enforcement.
    Dated: November 22, 1993.

    By:
Dennis C. Kacoyanis,
Trial Attorney, Division of Administrative Litigation Office of 
Compliance and Enforcement.
[CPSC Docket No. 94-C0007]

Neeley Sales Company, Inc., a Corporation; Order

    Upon consideration of the Settlement Agreement entered into between 
respondent Neeley Sales Company, Inc., a corporation, and the staff of 
the Consumer Product Safety Commission; and the Commission having 
jurisdiction over the subject matter and Neeley Sales Company; and it 
appearing that the Settlement Agreement 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, Neeley Sales Company, Inc. shall pay to the Commission a 
civil penalty in the amount of TEN THOUSAND AND 00/100 DOLLARS 
($10,000.00) in two (2) installment payments of FIVE-THOUSAND AND 00/
100 DOLLARS ($5,000.00). The first installment payment of FIVE-THOUSAND 
AND 00/100 DOLLARS ($5,000.00) shall be due twenty (20) days after 
service of the Final Order of the Commission accepting the Settlement 
Agreement. The second installment payment of FIVE-THOUSAND AND 00/100 
DOLLARS ($5,000.00) is due and payable no later than 365 days after 
service of the Final Order. For any payment that is overdue less than 
thirty (30) days, Neeley Sales Company, Inc. shall be charged interest, 
payable to the Commission, in accordance with the rate and method of 
calculation set forth in 28 U.S.C. 1961 (a) and (b), during the period 
that the payment is overdue. Any payment that is thirty (30) days or 
more overdue shall cause the entire outstanding balance to become due 
immediately and payable with interest in accordance with 28 U.S.C. 1961 
(a) and (b) as set forth above, during the period that the outstanding 
balance is overdue. Payment of the full amount of the civil penalty 
shall settle fully the staff's allegations set forth in paragraphs five 
through ten in the Settlement Agreement that Neeley Sales Company, Inc. 
or Dennis Neeley, individually, or any of Neeley's officers, agents, or 
employees has violated the FHSA.
    Provisionally accepted and Provisional Order issued on the 24th day 
of January, 1994.

    By Order of the Commission.
Sadye E. Dunn,
Secretary, Consumer Product Safety Commission.
[FR Doc. 94-1981 Filed 1-28-94; 8:45 am]
BILLING CODE 6355-01-M