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

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:

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CPSC Sample

No. Description Entry date

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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

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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