15 CFR 981.525 Review, modification and revision of license terms and
conditions.
(a) NOAA review. Periodically, at intervals not to exceed 3 years,
the Administrator will conduct a review of each licensed OTEC facility
or plantship operation in conjunction with the licensee to determine the
need, if any, for modification of license terms and conditions.
(b) Modification. As the result of a review conducted under
paragraph (a) of this section or at any other time, the Administrator,
after consultation with interested Federal and State departments and
agencies and the licensee, and after an opportunity for public comment,
may modify any term or condition in a license consistent with the
purposes of the Act and this part.
(c) Revision. (1) At any time during the term of a license, the
licensee may submit to the Administrator a request for a revision of a
license.
(2) The Administrator will approve such requests for a revision upon
a finding in writing that the license with such revision would continue
to meet the requirements of the Act and this part.
(3) A change which would require a request to and approval by the
Administrator as a revision is any change:
(i) Which would have significance for the findings contained in
981.470(a) which would permit the Administrator to refuse to issue a
license; or
(ii) Which would result in ownership, construction, location or
operation of an OTEC facility or plantship contrary to existing terms
and conditions in the license.
(d) Public notice and opportunity to comment. The Administrator will
publish in the Federal Register notice of each proposed modification,
and of each request for revision, of a license term or condition.
Interested persons will be allowed at least 30 days after publication of
the notice to submit written comments to the Administrator. On a
case-by-case basis, the Administrator will determine whether to provide
additional public participation procedures, such as conducting an
informal public hearing in a potentially affected adjacent coastal
State.
(e) Notice to the licensee and to Federal agencies and adjacent
coastal States. (1) The Administrator will issue written notice of each
proposed modification, and of each proposed revision, of a license term
or condition, to:
(i) The licensee;
(ii) Each Federal department or agency with jurisdiction over any
aspect of the ownership, construction, location, or operation of the
OTEC facility or plantship, which aspect may be affected by the proposed
modification or revision; and
(iii) The Governor of each adjacent coastal State designated with
respect to the OTEC facility or plantship involved.
(2) Each recipient of the notice may submit to the Administrator such
written comments or recommendations regarding the proposed modification
or revision as the recipient deems appropriate. Each Federal or State
department or agency also may take such actions as may be required by
law. If a Federal or State department or agency recommends that the
proposed modification or revision not be approved, it shall set forth in
detail:
(i) The manner in which the proposed modification or revision does
not comply with any law or regulation within its area of responsibility;
and
(ii) The manner in which the proposed modification or revision may be
amended so as to bring it into compliance with the law or regulation
involved.
(3) Each recipient of the notice issued under paragraph (e)(1) of
this section will be allowed 30 days from the date of issuance of that
notice, or until the last day of the public comment period allowed under
paragraph (d) of this section, whichever time period extends longer, in
which to submit written comments and recommendations to the
Administrator.
(f) Initial decision. (1) After the close of the opportunity for
comment provided in paragraphs (d) and (e) of this section, the
Administrator will initially approve or disapprove the proposed
modification or revision.
(2) The Administrator will publish notice of the initial decision in
the Federal Register and provide written notice of the initial decision
to the licensee and to each Federal department and agency, and to the
Governor of each adjacent coastal State, to which notice was issued
under paragraph (e) of this section.
(g) Acceptance or objection by licensee. (1) The licensee will be
deemed conclusively to have accepted the initial decision of the
Administrator, if the licensee does not notify the Administrator, within
30 days after issuance of the written notice to the licensee under
paragraph (f)(2) of this section, that the licensee objects to the
initial decision. Any objection filed by a licensee must state, in
writing:
(i) Why the initial decision is legally inconsistent with the Act or
this part; and
(ii) Information concerning any underlying factual issue deemed by
the licensee to be necessary to the Administrator's decision upon the
objection.
(2) The Administrator will promptly take action on any licensee's
objection which meets the requirements of paragraph (g)(1) of this
section. If the Administrator determines that there exist one or more
specific and material issues of fact pertaining to the initial decision
on the proposed modification or revision, which must be resolved by a
formal evidentiary hearing, the Administrator will provide for a formal
hearing which will proceed in accordance with Subpart E of this part,
except that for the purposes of a formal hearing under this section,
references in Subpart E to:
(i) The ''applicant'' will be deemed to mean the ''licensee'';
(ii) The ''application'' will be deemed to mean ''the modification or
revision of the license''; and
(iii) ''Issuance, transfer or renewal of a license'' will be deemed
to mean ''modification or revision of a license.''
(h) Final action by the Administrator. (1) After the close of the
30-day period described in paragraph (g)(1) of this section, or after
taking action on a licensee's objection under paragraph (g)(2) of this
section, the Administrator will take final action on the license
modification or revision.
(2) The Administrator will implement a license modification or
revision by issuing an appropriate document amending the license.
15 CFR 981.530 Renewal of a license.
Each licensee shall have a preferential right to renew a license
subject to the requirements of this part, upon such terms and conditions
and for such period of years, not to exceed an additional 10 years for
each renewal, as the Administrator determines to be reasonable and
appropriate.
15 CFR 981.540 Transfer of license.
Upon application, a license issued under this part may be transferred
if the Administrator determines that such transfer is in the public
interest and that the prospective transferee meets the requirements, and
the prerequisites to issuance, of this part. When a licensee intends to
apply for transfer of the license, the licensee and the prospective
transferee shall consult with the Administrator regarding applicability
of the requirements of this part to the proposed transfer.
15 CFR 981.550 Suspension, revocation, termination, relinquishment or
surrender of a license.
(a) Suspension or revocation. Whenever a licensee fails to comply
with any applicable provision of the Act or any applicable rule,
restriction, or license term or condition issued or imposed by the
Administrator under this part, the Administrator may request that the
Attorney General file an action in an appropriate United States district
court:
(1) To suspend the license; or
(2) To revoke such license, if such failure is knowing and continues
for a period of 30 days after the Administrator sends notification of
such failure by registered letter to the licensee at his record post
office address.
(b) Automatic operation of license terms. The Administrator may
provide in the terms of a license for automatic suspension or
termination of the license upon the occurrence of a fixed or agreed-upon
condition, event, or time. In such cases, judicial proceedings under
paragraph (a) of this section are not required to effect a suspension or
termination.
(c) Emergency orders. The Administrator may order the licensee to
cease or alter construction or operation activities pending the
completion of a judicial proceeding pursuant to paragraph (a) of this
section if the Administrator determines that immediate suspension of
such activities is necessary to protect public health and safety or to
eliminate any imminent and substanial danger to the environment.
(d) Relinquishment or surrender. (1) Any licensee may at any time,
without penalty, surrender to the Administrator a license issued to him,
or relinquish to the Administrator, in whole or in part, any right to
conduct construction or operation of an OTEC facility or plantship,
including part or all of any right of way which may have been granted in
conjunction with such license. However, such surrender or
relinquishment shall not relieve the licensee of any obligation or
liability established by applicable law, or of any obligation or
liability for actions taken by him prior to such surrender or
reliquishment, or during disposal or removal of any components required
to be disposed of or removed pursuant to this part.
(2) If part of all of a right of way which is relinquished, or for
which the license is surrendered, to the Administrator under paragraph
(d)(1) of this section contains an electric transmission cable or
pipeline which is used in conjunction with another license for an OTEC
facility, the Administrator shall allow the other licensee an
opportunity to add such right of way to his license before informing the
Secretary of the Interior that the right of way has been vacated.
(46 FR 39394, July 31, 1986, as amended at 51 FR 20960, June 10,
1986)
15 CFR 981.550 Subpart E -- Formal Hearing Procedures
15 CFR 981.560 Formal hearing procedures.
(a)(1) General. All formal hearings described in 981.350 and
981.525 of this part are governed by 5 U.S.C. 554 through 557 and the
procedures contained in this section.
(2) Hearings held under this section will be consolidated insofar as
practicable with hearings held by other agencies.
(b) Decision to hold a hearing. (1) Whenever, after holding an
informal hearing under 981.340 of this part, the Administrator
determines that there are one or more specific and material issues of
fact pertaining to the application which must be resolved by a formal
hearing, he will provide for a formal hearing.
(2) Whenever, under 981.525 of this part, the Administrator
determines that there are one or more specific and material issues of
fact pertaining to the proposed modification or revision to the terms or
conditions of the license which must be resolved by a formal hearing, he
will provide for a formal hearing.
(3) The record developed in any formal hearing under this paragraph
will be part of the basis for the Administrator's decision to approve or
deny issuance, modification, or revision of a license, as applicable.
(c) Assignment of Administrative Law Judge. Upon deciding to hold a
formal hearing, the Administrator will refer the proceeding to the NOAA
Office of Administrative Law Judges for assignment to an Administrative
Law Judge (judge) to serve as presiding officer for the hearing.
(d) Notice. (1) The Administrator will publish public notice of the
formal hearing in the Federal Register at least 15 days before the
beginning of the hearing, and will send written notice by registered or
certified mail or by personal delivery to:
(i) Each applicant;
(ii) The Governor of each adjacent coastal State;
(iii) Each person who submitted written comments upon the
application, or testified at any prior informal hearing on the
application; and
(iv) Each person who requests a copy of the notice.
(2) Notice of a formal hearing will include, among other things:
(i) Time and place of the hearing;
(ii) The issues in dispute which are to be resolved in the formal
hearing;
(iii) The due date for filing a written request to participate in the
hearing in accordance with paragraphs (f)(2) and (f)(3) of this section;
and
(iv) Reference to any prior informal hearing from which the issues to
be determined arose.
(e) Powers and duties of the administrative law judge. Judges have
all the powers and duties necessary to preside over the parties and
proceedings and to conduct fair and impartial hearings, as specified by
5 U.S.C. 554 through 557 and this section, including the power to:
(1) Regulate the course of the hearing and the conduct of the
parties, interested persons and others submitting evidence, including
but not limited to the power to require the submission of part or all of
the evidence in written form if the judge determines a party will not be
prejudiced thereby and if otherwise in accordance with law;
(2) Rule upon requests submitted in accordance with paragraph (f)(2)
of this section to participate as a party, or requests submitted in
accordance with paragraph (f)(3) of this section to participate as an
interested person in a proceeding, by allowing, denying, or limiting
such participation;
(3) Hold conferences in accordance with paragraph (i) of this section
for the simplification or, if appropriate, settlement of the issues by
consent of the parties or to otherwise expedite the proceedings;
(4) Administer oaths and affirmations;
(5) Rule upon requests for, and issue subpoenas for the attendance
and testimony of witnesses and the production of books, records, and
other evidence upon proper application under paragraph (p) of this
section;
(6) Rule on discovery requests, establish discovery schedules, and
take or cause to be taken depositions or interrogatories;
(7) Rule on requests for protective orders to protect persons in the
discovery process from undue burden or expense, or for other good cause;
(8) Require, at or prior to any hearing, the submission and exchange
of evidence;
(9) Rule upon offers of proof and evidence and receive, exclude, and
limit evidence as set forth in paragraph (j)(3) of this section;
(10) Introduce documentary or other evidence into the record;
(11) Examine and cross-examine witnesses;
(12) Consider and rule upon motions, procedural requests, and similar
matters;
(13) Take such measures as may be necessary (such as sealing portions
of the hearing record) to protect information consisting of trade
secrets or commercial or financial information which is privileged or
confidential;
(14) Schedule the time and place of the hearing (in accordance with
the Act), or the hearing conference, continue the hearing from day to
day, adjourn the hearing to a later date, or a different place, and
reopen the hearing at any time before issuance of the recommended or
initial decision, having due regard for the convenience and necessity of
the parties;
(15) Establish rules, consistent with applicable law, for media
coverage of the proceedings and for the closure of the hearing in the
interest of justice;
(16) Strike testimony of a witness refusing to answer a question
ruled to be proper;
(17) Make and file decisions in conformity with this subpart; and
(18) Take any action authorized by the rules in this section or in
conformance with 5 U.S.C. 554 through 557.
(f) Hearings: Participation. (1) Parties to the formal hearing will
include:
(i) The NOAA General Counsel;
(ii) The applicant; and
(iii) Any other person determined by the judge, in accordance with
paragraph (f)(2) of this section, to be eligible to participate as a
full party.
(2)(i) Any person desiring to participate as a party in a formal
hearing must submit a request to the judge to be admitted as a party.
Such person will be allowed to participate as a party if the judge finds
that the interests of justice and a fair determination of the issues
would be served by granting the request. The judge will give special
consideration to each request from a designated adjacent coastal State
to participate as a party.
(ii) Any request to participate as a party must be submitted to the
judge within 10 days after the date of mailing or publication of notice
of a decision to hold a formal hearing under paragraph (d) of this
section, whichever occurs later. The judge may entertain a request
submitted after the expiration of the 10 days, but such a late request
may be granted only upon an express finding on the record that:
(A) Special circumstances justify granting the request;
(B) The interests of justice and a fair determination of the issues
would be served by granting the request;
(C) The requestor has consented to be bound by all prior written
agreements and stipulations agreed to by the existing parties, and all
prior orders entered in the proceedings; and
(D) Granting the request will not cause undue delay or prejudice the
rights of the existing parties.
(3)(i) Any interested person who desires to submit evidence in a
formal hearing must submit a request to the judge within 10 days after
the date of mailing or publication of notice of a decision to hold a
formal hearing, whichever occurs later. The judge may waive the 10 day
rule for good cause, such as if the interested person, making this
request after the expiration of the 10 days, shows that he lacked actual
knowledge of the formal hearing during the 10 days, and the evidence he
proposes to submit may significantly affect the outcome of the
proceedings.
(ii) The judge may permit any interested person to submit evidence at
any formal hearing if the judge determines that such evidence is
relevant to facts in dispute concerning an issue being adjudicated. The
fact that an interested person may submit evidence under this paragraph
at a hearing does not entitle the interested person to participate in
other ways in the hearing unless allowed by the judge under paragraph
(f)(3)(iii) of this section.
(iii) The judge may allow any interested person to submit oral
testimony, oral arugments, briefs, or to cross-examine witnesses or
participate in other ways if the judge determines that the interests of
justice and a fair determination of the issues would be better served by
allowing such participation by the interested person.
(g) Certification of issues. Whenever a formal hearing is conducted
pursuant to this section, the Administrator will certify the issues for
decision to the judge and the formal hearing will be limited to those
issues.
(h) Obligation to submit evidence and raise issues before a formal
hearing is held. No party or interested person may submit evidence
which was not submitted previously for the administrative record as part
of the comment on the application for issuance, transfer or renewal of a
license, unless the judge finds that good cause exists for the failure
to submit it. Good cause includes the case where the person seeking to
raise the new issues or introduce new information shows that the person
could not reasonably have ascertained the issues or made the information
available at a prior stage in the administrative process; or that the
person could not have reasonably anticipated the relevance or
materiality of the information sought to be introduced.
(i) Conferences. (1) At any time the judge considers appropriate, he
may, upon his own motion or the motion of any party or interested
person, direct the parties and interested persons, or their attorneys to
meet (in person, by telephone conference call, or otherwise) in a
conference to consider:
(i) Simplification of the issues;
(ii) Settlements in appropriate cases;
(iii) Stipulations and admissions of fact, and contents and
authenticity of documents;
(iv) Exchange of evidence, witness lists, and summaries of expected
testimony;
(v) Limitation of the number of witnesses; and
(vi) Such other matters as may tend to expedite the disposition of
the proceedings.
(2) The record will show how the matters were disposed of by order
and by agreement in such conferences.
(j) Hearings: Appearance and presentation of evidence -- (1)
Representative. A party or interested person may appear at a hearing
under this part in person, by attorney, or by other representative.
(2) Failure to appear. (i) Absent a showing of good cause, failure
of a party to appear at a hearing:
(A) Constitutes waiver of the right to a hearing under this section;
(B) Constitutes consent of the party to the making of a decision on
the record of the hearing; but
(C) Will not be deemed to be a waiver of the right to be served with
a copy of the judge's decision.
(ii) If a party fails to appear for a hearing, the judge will cause
to be placed in the record all of the facts concerning the issuance and
service of the notice of the time and place of the hearing.
(3) Evidence. (i) The order of presentation of evidence will be at
the judge's discretion.
(ii) The testimony of witnesses will be upon oath or affirmation
administered by the judge and will be subject to such cross-examination
as may be required for a full and true disclosure of the facts. The
formal rules of evidence do not apply, but the judge will exclude
evidence which is immaterial, irrelevant, non-probative, or unduly
repetitious. Hearsay evidence is not inadmissable as such.
(iii) If a party objects to the admission or rejection of any
evidence or to the limitation of the scope of any examination or
cross-examination or the failure to limit such scope, the party must
state briefly the grounds for such objections. Rulings on each
objection will appear in the record.
(iv) Formal exception to an adverse ruling is not required.
(v) At any time during the proceedings, the judge may require a party
or a witness to state his position on any issue, and the theory in
support of such position.
(vi) Upon the failure of a party or interested person to effect the
appearance of a witness or the production of a document or other
evidence ruled relevant and necessary to the proceeding, the judge may
take appropriate action, as authorized by law.
(vii) The parties may, by stipulation, agree upon any facts involved
in the proceedings and include them in the record with the consent of
the judge. Written stipulations shall be signed in accordance with
paragraph (r)(2) of this section, and shall be served upon all parties
of record within the time period specified by the judge.
(4) Authority of judge to expedite adjudication. To prevent
unnecessary delays or an unnecessarily large record, the judge may:
(i) Limit the number of witnesses whose testimony may be cumulative;
(ii) Strike argumentative, repetitious, cumulative, immaterial,
non-probative, or irrelevant evidence;
(iii) Take necessary and proper measurses to prevent argumentative,
repetitious, or cumulative cross-examination; and
(iv) Impose such time limitations on arguments as the judge
determines appropriate, having regard for the volume of the evidence and
the importance and complexity of the issues involved.
(5) Argument. At the close of any formal hearing any party shall be
given the opportunity to submit written arguments on issues before the
judge.
(6) Official notice. Official notice may be taken of any matter not
appearing in evidence in the record, which is among the traditional
matters of judicial notice, or concerning which the Department of
Commerce, by reason of its functions, is deemed to be expert, or of a
non-privileged document required by law to be filed with, prepared or
published by a government body, or of any reasonably available public
document. The parties will be given adequate notice, at the hearing or
otherwise before the judge's decision, of the matters so noticed, and
upon timely request by a party will be given reasonable opportunity to
show the contrary.
(7) Record. (i) The judge or the Administrator will arrange for a
verbatim tape or other record of any oral hearing proceedings. An
official transcript of the proceedings will be prepared and copies may
be obtained upon written request filed with the reporter and upon
payment of the fees at the rate provided in the agreement with the
reporter.
(ii) The official transcript, exhibits, briefs, reply briefs,
proposed findings of fact, requests and other documents and papers filed
will constitute the exclusive record for decision on the issues
concerning which the hearing was held.
(iii) The record developed in any hearing held pursuant to 981.350
of this part will be part of the basis for the Administrator's decision
to approve or deny the license.
(k) Interlocutory appeals. (1) At the request of a party or on the
judge's own motion, the judge may certify to the Administrator for
review a ruling which does not finally dispose of the proceeding if the
judge determines that such a ruling involves a controlling question of
law and that an immediate appeal therefrom may materially advance the
ultimate disposition of the matter.
(2) Upon certification by the judge of an interlocutory ruling for
review, the Administrator will expeditiously decide the matter, taking
into account any briefs in this respect filed by the parties within 10
days after certification. The Administrator's order on an interlocutory
appeal will not be considered the final decision of the Administrator
except by operation of other provisions in this section.
(3) No interlocutory appeal will lie as to any ruling not certified
to the Administrator by the judge. Objections to rulings not certified
to the Administrator by the judge will be a part of the record and will
be subject to review at the same time and in the same manner as the
Administrator's review of the recommended or initial decision of the
judge.
(l) Decision -- (1) Proposed findings of fact. The judge will allow
each party to file with the judge proposed findings of fact together
with a supporting brief expressing the reasons for such proposals. Such
proposals and briefs must be filed on or before the date specified by
the judge. Such proposals and briefs must refer to all portions of the
record and to all authorities relied upon in support of each proposal.
Reply briefs must be submitted within 10 days after receipt of the
proposed findings to which they respond, unless the judge allows
additional time.
(2) Recommended decision. As soon as practicable, but normally not
later than 30 days after the close of the record in the proceedings, the
judge will evaluate the record of the formal hearing and prepare and
file a recommended decision with the Administrator. The formal hearing
must be concluded within 240 days after the publication of the notice of
application pursuant to 981.290(a) of this part.
(3) Final decision. (i) As soon as practicable, but normally not
later than 30 days after receipt of the recommended decision, the
Administrator will issue a final decision. The final decision may accept
or reject all or part of the recommended decision.
(ii) The Administrator will base the final decision upon the record
already made, except that the Administrator may issue orders:
(A) Specifying the filing of supplemental briefs; or
(B) Remanding the matter to a judge for the receipt of further
evidence, or for other assistance in the determination of the matter.
(iii) With respect to hearings to resolve material issues of fact
pursuant to 981.350 of this part, the Administrator may defer
announcement of his final decision on the findings of fact until the
time he takes final action on the issuance, transfer or renewal of a
license.
(m) Motions and requests. Motions and requests must be filed in
writing with the judge or must be stated orally and made part of the
hearing record. Each motion or request must state the particular order,
ruling, or action desired, and the legal and factual grounds therefor.
(n) Witnesses and fees. Witnesses subpoenaed will be paid the same
fees and mileage, and in the same manner, as are paid for like services
in the District Court of the United States for the district in which the
hearing is located.
(o) Depositions. (1) Any party desiring to take the deposition of a
witness shall make application in writing to the judge, setting forth
the reasons why such deposition should be taken; the time when, the
place where, and the name and mailing address of the person before whom
the deposition is requested to be taken; the name and address of each
witness to appear for deposition; and the subject matter concerning
which each witness is expected to testify.
(2) Depositions may be taken orally or upon written interrogatories
before any person designated by the judge.
(3) Such notice as the judge shall order will be given for the taking
of a deposition, but this ordinarily will not be less than 5 days'
written notice when the deposition is to be taken within the United
States and ordinarily will not be less than 20 days' written notice when
the deposition is to be taken elsewhere.
(4) Each witness testifying upon deposition will be sworn and any
party will have the right to cross-examine. The questions propounded and
the answers thereto, together with all objections made, will be reduced
to writing, read to the witness, signed by the witness unless waived,
and certified by the person presiding. Thereafter, the person presiding
will deliver or mail a copy of the document to each party. Subject to
such objection to the questions and answers as were noted at the time of
taking the deposition which would be valid were the witness personally
present and testifying, such deposition may be read and offered in
evidence by any party taking it as against any party who was present or
represented at the taking of the deposition or who had due notice
thereof.
(p) Subpoenas. A party may request the judge to issue or the judge
on the judge's own motion may issue a subpoena for the attendance and
testimony of witnesses and for the production of documentary or other
evidence. Applications for subpoenas must be in writing, and must
specify the general relevance and reasonable scope of the evidence
sought to be produced.
(q) Extension of time. The time for the filing of any document under
this section may be extended by the judge if:
(1) The request for the extension of time is made before or on the
final date allowed for the filing; and
(2) The judge, after giving written or oral notice to and considering
the views of all other parties (when practicable), determines that there
is good reason for the extension.
(r) Filing, submission and service of documents. (1) Whenever the
regulations in this subpart or an order issued hereunder require a
document to be filed within a certain period of time, such document will
be considered filed as of the date of the postmark, if mailed, or (if
not mailed) as of the date actually delivered to the office where filing
is required. Time periods will begin to run on the day following the
date of the document or event which begins the time period.
(2) All submissions must be signed by the person making the
submission, or by the person's attorney or other authorized agent or
representative.
(3) Service of a document must be made by delivering or mailing a
copy of the document to the known address of the person being served.
(4) Whenever the regulations in this subpart require service of a
document, such service may effectively be made on the agent for the
service of process or on the attorney for the person to be served.
(5) Refusal of service of a document by the person to be served, his
agent, or attorney, will be deemed effective service of the document as
of the date of such refusal.
(6) A certificate of the person serving the document by personal
delivery or by mailing, setting forth the manner of the service, will be
proof of the service.
15 CFR 981.570 Ex parte communications.
(a) ''Ex parte communication'' means an oral or written communication
not on the public record with respect to which reasonable prior notice
to all parties is not given, but does not include requests for status
reports.
(b) Except to the extent required for disposition of ex parte matters
as authorized by law, upon assignment of a matter to an administrative
law judge and until the final decision of the Administrator is effective
under these regulations, no ex parte communication relevant to the
merits of the proceeding shall be made, or knowingly caused to be made:
(1) By the judge or by an agency employee involved in the decisional
process of the proceeding to any interested person outside NOAA; or
(2) By an interested person outside NOAA to the judge or to any
agency employee involved in the decisional process of the proceeding.
(c) The judge may not consult any person or party on a fact in issue
unless on notice and opportunity for all parties to participate.
(d) An agency employee or judge who makes or receives a prohibited
communication must place in the hearing record the communication and any
response thereto, and the judge, or Administrator, as appropriate, may
take action in this respect consistent with these regulations, the Act,
and 5 U.S.C. 556(d) and 557(d).
(e) This section does not apply to communications to or from the
attorney representing the Administrator in the proceedings (agency
representative). However, the agency representative may not participate
or advise in the initial or recommended decision of the judge or the
Administrator's review thereof except as witness or counsel in the
proceeding in accordance with these regulations.
(f)(1) Paragraphs (b) through (d) of this section do not apply to
communications concerning national defense or foreign policy matters.
Such Ex Parte communications:
(i) On national defense or foreign policy matters to or from an
agency employee; or
(ii) From employees of the United States Government involving
inter-governmental negotiations;
are permitted if the communicator's position with respect to those
matters cannot otherwise be fairly presented for reasons of foreign
policy or national defense.
(2) Ex Parte communications subject to paragraph (f) of this section
shall be made a part of the public record to the extent that they do not
include information classified pursuant to Executive Order. Classified
information shall be included in a classified portion of the record
which shall be available for review only in accordance with applicable
law.
15 CFR 981.570 Subpart F -- Enforcement Procedures
15 CFR 981.580 General.
(a) Purpose and scope. (1) Section 302 of the Act authorizes the
Administrator to assess a civil penalty, in an amount not to exceed
twenty-five thousand dollars ($25,000) for each violation, against any
person found to have committed an act prohibited by section 301 of the
Act. Each day of a continuing violation is a separate offense.
(2) Section 111 of the Act describes the circumstances under which
the Administrator may suspend or terminate a license, or seek revocation
of a license, for violation of the Act or of any regulation, restriction
or condition issued under the Act.
(3) Section 302 of the Act authorizes the Administrator to issue
orders directing any person subject to section 301 of the Act to comply
with the Act, or any rule, regulation, order, license, term, or
condition issued under the Act. Section 302 also authorizes the
Administrator to bring a civil action for appropriate relief, including
temporary or permanent injunctive relief, to halt or redress any such
violation.
(4) Section 110 of the Act authorizes the Administrator to place
observers on ocean thermal energy conversion facilities and plantships
licensed under the Act to monitor compliance and environmental effects
of activities under the license.
(5) Section 114 of the Act describes the circumstances under which a
person may bring a civil action against an alleged violator or against
the Administrator for failure to perform a nondiscretionary duty, and
directs the Administrator to issue regulations governing procedures
prerequisite to such a civil action.
(6) The regulations in this subpart provide uniform rules and
procedures for the assessment of civil penalties ( 981.590 and 981.600
of this part); establishment of license sanctions ( 981.610 of this
part); issuance of compliance orders ( 981.620 of this part);
placement of observers on or in OTEC facilities and plantships ( 981.630
of this part); and the giving of advance notice of private civil
actions ( 981.640 of this part).
(b) Filing and service of documents. (1) Filing and service of
documents required by this subpart shall be in accordance with
981.560(r) and 981.158 of this part. The method for computing time
periods set forth in 981.560(r) and 981.158 of this part also applies
to any action or event, such as payment of a civil penalty, required by
this subpart to take place within a specified period of time.
(2) If an oral or written request is made to the Administrator within
10 days after the expiration of a time period established in this
subpart for the required filing of documents, the Administrator may
permit a late filing if the Administrator finds reasonable grounds for
an inability or failure to file within the time period. All extensions
will be in writing. Except as provided by this paragraph, by 15 CFR
904.102 or by order of an administrative law judge, no requests for an
extension of time may be granted.
(46 FR 39394, July 13, 1981; 47 FR 31861, July 23, 1982)
15 CFR 981.590 Assessment procedure.
Subpart B of 15 CFR Part 904 governs the procedures for assessing a
civil penalty under the Act, and the rights of any person against whom a
civil penalty is assessed.
(46 FR 61652, Dec. 18, 1981)
15 CFR 981.600 Hearing and appeal procedures.
Subpart C of 15 CFR Part 904 governs the hearing and appeal
procedures for civil penalties assessed under the Act.
(46 FR 61652, Dec. 18, 1981)
15 CFR 981.610 License sanctions.
(a) Application of section. This section governs the suspension,
revocation, termination or modification of any license issued under this
part for failure to comply with any provision of the Act, or any
regulation, order, license condition or restriction issued under the
Act.
(b) Basis for sanctions. (1) The Administrator may act under this
section with respect to a license issued under the Act, if:
(i) The terms of the license call for suspension or termination of
the license upon the occurrence of a fixed or agreed upon condition,
event or time and the Administrator determines that such condition,
event, or time has occurred; or
(ii) The Administrator determines in accordance with paragraph
(d)(1)(ii) of this section that immediate suspension of the license, or
immediate suspension or modification of any activity under the license,
is necessary; or
(iii) An appropriate court issues an order of suspension or
revocation with respect to the license.
(2) The Administrator may suspend a license in accordance with
paragraph (b)(1) and the other provisions of this section, on the basis
that the licensee has failed to pay any penalty assessed, or fine
imposed, under section 302 of the Act. The license may be reinstated by
affirmative order of the Administrator upon receipt, as prescribed in
paragraph (d) of this section, of full payment of the penalty assessed,
together with interest thereon at the annual rate provided by current
regulations of the Department of the Treasury as to late payments of
amounts due the Government, computed from the date payment first became
overdue, or upon full payment, in accordance with any applicable court
order, of the fine imposed.
(c) Nature of sanctions. In the Administrator's discretion and
subject to the requirements of this section, the Administrator may take
any of the following actions or combinations thereof with respect to a
license issued under the Act:
(1) Revoke the license;
(2) Suspend the license or any activity under the license, either for
a specified period of time or until certain stated requirements are met,
or both;
(3) Modify the license, for example by imposing additional conditions
and restrictions in order to aid future enforcement efforts; or
(4) Terminate the license in accordance with the provisions of this
subpart.
(d) Notice of license sanction. (1) If the Administrator determines,
on the basis of available information, that the licensee is not in
compliance with any applicable provision of the Act, or any regulation,
order or any license condition or restriction issued under the Act, the
Administrator may issue the licensee a notice of license sanction (NOLS)
stating that the Administrator has requested the Attorney General to
file an action in an appropriate United States district court, seeking a
sanction against the license involved. The NOLS will state the sanction
proposed by the Administrator to be imposed as provided in paragraph (c)
of this section, and the basis therefor and will advise that issuance of
the NOLS does not preclude the Administrator from taking, at any time,
any other enforcement action under section 302 or any other applicable
provision of the Act.
(i) If the Administrator expects to seek revocation of the license,
the NOLS will advise that:
(A) If the violation set forth in the NOLS continues for a period of
30 days from the date of issuing the NOLS, the Administrator may request
the Attorney General to seek revocation of the license in an appropriate
United States district court;
(B) The licensee may, within 30 days after the date of issuing the
NOLS, submit to the Administrator evidence of compliance; and
(C) If the Administrator determines, on the basis of evidence
submitted during the 30-day period, that the licensee has complied, the
Administrator will not seek revocation of the license.
(ii) The Administrator may immediately suspend the license or suspend
or modify any activity under the license pending completion of judicial
proceedings under section 111(a) of the Act if the Administrator finds,
and issues an emergency order summarizing the finding and the basis
therefor, that such action is necessary to:
(A) Protect public health and safety; or
(B) Eliminate imminent and substantial danger to the environment.
(iii) If the Administrator acts under paragraph (d)(1)(ii) of this
section, the Administrator will serve the emergency order in the manner
described in paragraph (d)(4) of this section, and will seek to expedite
judicial proceedings.
(iv) The licensee may request the Administrator to review any
emergency order issued under paragraph (d)(1)(ii) of this section. The
Administrator will determine whether any review of the emergency order
should be granted, and whether any review granted will be in the form of
an informal or formal hearing. The Administrator's granting of a review
will not change the effective date of the emergency order unless the
Administrator specifies such a change in writing when granting the
review of the emergency order.
(2) If the Administrator determines, on the basis of available
information, that the licensee is not in compliance with the license,
and if the license provides for a license sanction on the basis of such
failure to comply, the Administrator may issue a NOLS setting forth the
sanction to be imposed and the basis therefor. If an opportunity for a
hearing is provided by paragraph (e) of this section, the NOLS will
advise that the licensee has 30 days from receipt of the notice in which
to request or waive a hearing. The notice will further state the
effective date of the sanction, which will not be earlier than 30 days
after the date of the notice except as provided in paragraph (d)(1)(ii)
of this section or in the license. If a hearing opportunity is provided
and a hearing is requested in a timely manner, the sanction becomes
effective under paragraph (h) of this section.
(3) If a United States district court issues an order calling for a
license sanction, the Administrator will issue a NOLS setting forth the
sanction to be imposed and the effective date of the sanction. The NOLS
will advise that an appeal of the district court's order will not stay
the taking effect of the sanction, unless provided otherwise by the
court.
(4) The NOLS will be served personally or by registered or certified
mail, return receipt requested, on the licensee.
(e) Opportunity for hearing on an NOLS issued under paragraph (d)(2)
of the section. (1) The licensee has 30 days from receipt of the NOLS
to request a hearing with respect to an NOLS issued under paragraph
(d)(2) of this section. However, no hearing is required with respect to
matters previously adjudicated in an administrative or judical hearing
in which the licensee has been given notice and has had an opportunity
to participate.
(2) If the licensee wishes a hearing, a written and dated request
shall be served on the Administrator either in person or by certified or
registered mail, return receipt requested, at the address specified in
the NOLS. The request shall either attach a copy of the relevant NOLS
or refer to the relevant NOAA case number.
(3) If no hearing is required by or requested under paragraph (e)(1)
of this section, the Administrator may nonetheless order a hearing if
the Administrator determines that there are material issues of fact, law
or equity to be further explored.
(4) The Administrator may apply to the administrative law judge for
an interim order suspending the license, or suspending or modifying any
activity under the license, pending completion of proceedings under this
section if the Administrator serves prior notice of the application for
an interim order on the licensee in the manner described in paragraph
(d)(4) of this section. The judge may issue an interim order consistent
with the purposes of the Act, unless preliminary evidence presented to
the judge indicates a likelihood that the licensee will prevail in the
matters at issue.
(5) If the license provides an effective date for the sanction, a
request for hearing will not delay the effectiveness of the sanction,
except to the extent extended by the Administrator for good cause shown.
(f) Hearing and initial decision. If a timely request for a hearing
under paragraph (e)(1) of this section is received or the Administrator
orders a hearing under paragraph (e)(3) of this section, the
Administrator will appoint a hearing officer to hear the matter and
render an initial decision.
(g) Appeals. (1) Any party may appeal the initial decision of the
hearing officer by filing a notice of appeal with the Administrator
within 30 days after the date of the initial decision. The notice of
appeal shall concisely state such exceptions as the appellant takes to
the initial decision and shall contain citations to the record or other
authority relied upon. The appellant shall serve a copy of the notice
of appeal on each other party.
(2)(i) The Administrator will decide the appeal upon the record
already made, except that the Administrator may issue orders:
(A) Specifying the filing of supplemental briefs; or
(B) Remanding the matter to a hearing officer for the receipt of
further evidence, or other assistance in the determination of the
matter.
(ii) The decision of the Administrator will be in writing and will
state the reasons for accepting or rejecting the exceptions taken by the
appellant. To the extent the Administrator's decision is silent as to a
material issue of fact, law, or discretion at issue in the hearing, the
decision will be deemed to adopt the findings and conclusions, and the
reasons and basis therefor, contained in the initial decision.
(h) Final decision. (1) Unless a notice of appeal is timely filed in
accordance with paragraph (g) of this section, the initial decision of
the hearing officer becomes effective and constitutes the final decision
and order of the Administrator on the 30th calendar day after the date
it is rendered.
(2) If a notice of appeal is timely filed as provided in paragraph
(g) of this section, the Administrator's decision becomes effective and
constitutes the final decision and order of the Administrator on the
date it is issued, or as otherwise specified by the Administrator in the
decision. The Administrator will serve notice of the decision on the
licensee in the manner described in paragraph (d)(4) of this section.
15 CFR 981.620 Compliance orders.
(a) The Administrator may issue a compliance order, served personally
or by registered or certified mail, return receipt requested, to any
person subject to section 301 of the Act who is found by the
Administrator, on the basis of available information, to be in violation
of the Act, or any regulation, order, license term or condition issued
under the Act or this part. Although no specific form is prescribed,
the compliance order will contain:
(1) A concise statement of the facts determined to show a violation;
(2) A specific reference to the provisions of the Act, regulation,
order or license determined to be violated; and
(3) The time period in which the person shall comply with the order.
(b) With respect to the time period for compliance with the order,
the Administrator will specify a reasonable time period, up to 30 days,
taking into account the seriousness of the violation and any good faith
efforts to comply with applicable requirements.
(c) The compliance order will advise the person to whom it is issued
that:
(1) Failure to comply within the specified time period will subject
that person to adverse enforcement action under the Act (in addition to
any such action already begun); and
(2) The order may be challenged during any enforcement proceeding
brought under the Act as a result of the violation specified in the
order or an alleged failure to comply with the order.
(d) The person to whom a compliance order is issued may seek
amendment or modification of the order to conform to the facts or law as
that person sees them by notifying the Administrator at the telephone
number or address specified in the order. The Administrator will either
amend the order, or decline to amend it, and will so notify the person
concerned.
(e) Evidence of compliance with an order issued under this section
shall be presented to the Administrator in writing within the time
period specified in the order. The Administrator will, as soon as
practicable, determine whether or not there is timely compliance with
the order, and advise the person concerned of the determination.
(f) Issuing a compliance order under this section, or complying with
such an order, does not preclude other enforcement proceedings under the
Act or this part if such proceedings serve the purposes of the Act,
except if expressly so stated in the order, or as provided in section
111 of the Act with respect to license revocation.
15 CFR 981.630 Observers.
(a) Purpose of observers. Each licensee shall allow, at such times
and to such extent as the Administrator deems reasonable and necessary,
an observer (as used in this section, the term ''observer'' means ''one
or more observers'') duly authorized by the Administrator to board,
enter or accompany any OTEC facility or plantship to which a license
applies, for the purposes of observing and reporting on:
(1) The effectiveness of the terms and conditions of the license;
(2) Compliance with the Act, regulations and orders issued under the
Act, and the license terms and conditions; and
(3) The environmental and other effects of the licensee's activities
under the license.
(b) Notice to licensee. (1) The Administrator may notify a licensee
that the Administrator plans to place an observer in or aboard the OTEC
facility or plantship to which the license applies.
(2) The Administrator normally will issue any such notice as far in
advance of placement of the observer as is practicable.
(3) Contents of notice. The notice given by the Administrator may
include, among other things:
(i) The name of the observer, if known at the time the notice is
issued;
(ii) The length of time which the observer likely will be in or
aboard the OTEC facility or plantship;
(iii) Information concerning activities the observer is likely to
conduct; and
(iv) Information concerning any special requirements for the
handling, storage, location, or operation of, or the power supply for,
equipment to be used by the observer.
(c) Licensee's response. Upon request by the Administrator, each
licensee shall promptly notify the Administrator regarding the suggested
time and method for transporting the observer to the OTEC facility or
plantship.
(d) Duties of licensee. Each licensee of an OTEC facility or
plantship to which an observer is assigned shall assure that the
observer is provided:
(1) Access to and use of the OTEC facility or plantship's
communications equipment and personnel when the observer deems such
access necessary for the transmission and receipt of messages;
(2) Access to and use of the OTEC facility or plantship's navigation
equipment and personnel when the observer deems such access necessary to
determine the facility or plantship's location;
(3) All other reasonable cooperation and assistance to enable the
observer to carry out the observer's duties; and
(4) Temporary accommodations and food to the observer in or aboard
the OTEC facility or plantship which are equivalent to those provided to
officers or senior operations personnel of the OTEC facility or
plantship.
(e) Reasonableness of observer activities. (1) To the maximum extent
practicable, observation duties will be carried out in a manner that
minimizes interference with the licensee's activities under the license.
(2) The Administrator will assure that equipment brought into or
aboard an OTEC facility or plantship by the observer is reasonable as to
size, weight, and electric power and storage requirements, taking into
consideration the necessity of the equipment for carrying out the
observer's functions.
(3) The observer will have no authority over the operation of the
OTEC facility or plantship or its activities, or the officers, crew, or
personnel of the OTEC facility or plantship. The observer will comply
with all orders of the master or senior operations official which are
necessary to ensure the safe operation of the OTEC facility or plantship
and the safety of its personnel.
(f) Non-interference with observer. Licensees and other persons are
reminded that the Act (see, for example, sections 301(2) and 301(3))
makes it unlawful for any person subject to section 301 of the Act to
interfere with any observer in the performance of the observer's duties.
(g) Confidentiality of information. NOAA recognizes the possibility
that an observer, in performing observer functions, will record
information which the licensee considers to be proprietary. NOAA
intends to protect such information consistent with applicable law. The
Administrator may in appropriate cases provide the licensee an
opportunity:
(1) To review those parts of the observer's reports which may contain
proprietary information; and
(2) To request confidential treatment of such information under
981.100 of this part.
15 CFR 981.640 Advance notice of civil actions.
(a) Actions against alleged violators. (1) No civil action may be
filed in a United States district court under section 114 of the Act
against any person for alleged violation of the Act, or any regulation,
or license term or condition issued under the Act, until 60 days after
the Administrator and any alleged violator receive written and dated
notice of the alleged violation.
(2) The notice shall contain:
(i) A concise statement of the facts believed to show a violation;
(ii) A specific reference to the provisions of the Act, regulation or
license allegedly violated; and
(iii) Any documentary or other evidence of the alleged violation.
(b) Actions against the Administrator. (1) No civil action may be
filed in a United States district court under section 114 of the Act
against the Administrator for an alleged failure to perform any act or
duty under the Act which is not discretionary until 60 days after the
Administrator receives a written and dated notice of intent to file the
action.
(2) The notice shall contain:
(i) A specific reference to the provisions of the Act, regulations or
license believed to require the Administrator to perform a
nondiscretionary act or duty;
(ii) A precise description of the act or duty believed to be required
by such provisions;
(iii) A concise statement of the facts believed to show a failure to
perform the act or duty; and
(iv) Any documentary or other evidence of the alleged failure to
perform the act or duty.
15 CFR 981.640 Subpart G -- Upper Limits on the Number or Total Capacity of OTEC Facilities and Plantships to be Licensed Under This Part -- (Reserved)
15 CFR 981.640 Subpart H -- OTEC Site Evaluation and Preconstruction Testing Regulations -- (Reserved)
15 CFR 981.640 Subpart I -- Procedures for Mediation of Disputes Among Licensees Regarding Interference Between OTEC Facilities or Plantships -- (Reserved)
15 CFR 981.640 15 CFR Ch. XI (1-1-92 Edition)
15 CFR 981.640 Technology Administration, Commerce
15 CFR 981.640 CHAPTER XI -- TECHNOLOGY ADMINISTRATION, DEPARTMENT OF COMMERCE
15 CFR 981.640 (Part 1150)
Part
Page
1150 Marking of toy, look-alike and imitation firearms
1160 Productivity, technology and innovation
1170 Metric conversion policy for Federal agencies
15 CFR 981.640
15 CFR 981.640 15 CFR Ch. XI (1-1-92 Edition)
15 CFR 981.640 Technology Administration, Commerce
15 CFR 981.640 Pt. 1150
15 CFR 981.640 PART 1150 -- MARKING OF TOY, LOOK-ALIKE AND IMITATION
FIREARMS
Sec.
1150.1 Applicability.
1150.2 Prohibitions.
1150.3 Approved markings.
1150.4 Waiver.
1150.5 Preemption.
Authority: Section 4 of the Federal Energy Management Improvement
Act of 1988, 15 U.S.C. 5001.
Source: 54 FR 19358, May 5, 1989, unless otherwise noted.
15 CFR 1150.1 Applicability.
This part applies to toy, look-alike and imitation firearms
(''devices'') having the general appearance, shape, and/or configuration
of a firearm and produced or manufactured and entered into commerce on
or after May 5, 1989. including devices modelled on real firearms
manufactured, designed, and produced since 1898. This part does not
apply to any toy, look-alike, or imitation firearm that is a non-firing
replica of an antique firearm modelled on a real firearm designed,
manufactured, and produced prior to 1898, nor to traditional B-B,
paint-ball, or pellet-firing air guns that expel a projectile through
the force of compressed air, compressed gas or mechanical spring action,
or any combination thereof, as described in American Society for Testing
and Materials standard F 589-85, Standard Consumer Safety Specification
for Non-Powder Guns, June 28, 1985. This incorporation by reference was
approved by the Director of the Federal Register in accordance with 5
U.S.C. 552(a) and 1 CFR Part 51. Copies may be obtained from the
American Society for Testing and Materials, 1916 Race Street,
Philadelphia, Pa. 19103. Copies may be inspected at the office of the
Associate Director for Industry and Standards, National Institute for
Standards and Technology, Gaithersburg, Maryland, or at the Office of
the Federal Register, 1100 L Street, NW., Room 8401, Washington, DC.
15 CFR 1150.2 Prohibitions.
No person shall manufacture, enter into commerce, ship, transport, or
receive any toy, look-alike, or imitation firearm (''device'') covered
by this Part as set forth in 1150.1 of this part unless such device
contains, or has affixed to it, one of the markings set forth in 1150.3
of this part, or unless this prohibition has been waived by 1150.4 of
this part.
15 CFR 1150.3 Approved markings.
The following markings are approved by the Secretary of Commerce:
(a) A blaze orange (Federal Standard 595a, February, 1987, color
number 12199, issued by the General Services Administration) solid plug
permanently affixed to the muzzle end of the barrel as an integral part
of the entire device and recessed no more than 6 millimeters from the
muzzle end of the barrel. This incorporation by reference was approved
by the Director of the Federal Register in accordance with 5 U.S.C.
552(a) and 1 CFR Part 51. Copies of Federal Standard 595a may be
obtained from the Office of Engineering and Technical Management,
Chemical Technology Division, Paints Branch, General Services
Administration, Washington DC 20406. Copies may be inspected at the
office of the Associate Director for Industry and Standards, National
Institute for Standards and Technology, Gaithersburg, Maryland, or at
the Office of the Federal Register. 1100 L Street, NW., Room 8401,
Washington DC.
(b) For any water gun, air-soft gun, light-emitting gun or other
ejecting toy, look-alike or imitation firearm having an opening to
discharge such things as water, non-metallic projectiles, and light, a
blaze orange (Federal Standard 595a, February, 1987, color number 12199,
issued by the General Services Administration) marking permanently
affixed to the exterior surface of the barrel, covering the
circumference of the barrel from the muzzle end for a depth of at least
6 millimeters. This incorporation by reference was approved by the
Director of the Federal Register in accordance with 5 U.S C. 552(a) and
1 CFR Part 51. Copies of Federal Standard 595a may be obtained from the
Office of Engineering and Technical Management, Chemical Technology
Division, Paints Branch, General Services Administration, Washington, DC
20406. Copies may be inspected at the office of the Associate Director
for Industry and Standards, National Institute for Standards and
Technology, Gaithersburg, Maryland, or at the Office of the Federal
Register, 1100 L Street, NW., Room 8401, Washington, DC.
(c) Construction of the device entirely of transparent or translucent
materials which permits unmistakable observation of the device's
complete contents.
(d) Coloration of the entire exterior surface of the device in bright
red, bright orange, bright yellow, bright green, or bright blue, either
singly or as the predominant color in combination with other colors in
any pattern.
(e) Coloration of the entire exterior surface of the device
predominantly in white in combination with one or more of the colors
bright red, bright orange, bright yellow, bright green, or bright blue
in any pattern.
15 CFR 1150.4 Waiver.
The prohibitions set forth in 1150.2 of this part are waived for any
toy, look-alike or imitation firearm that will be used only in the
theatrical, movie or television industries.
15 CFR 1150.5 Preemption.
In accordance with section 4(g) of the Federal Energy Management
Improvement Act of 1988 (15 U.S.C. 5001(g)), the provisions of section
4(a) of that Act and the provisions of this part supersede any provision
of State or local laws or ordinances which provides for markings or
identification inconsistent with the provisions of section 4 of that Act
or the provisions of this part.
15 CFR 1150.5 Pt. 1160
15 CFR 1150.5 PART 1160 -- PRODUCTIVITY, TECHNOLOGY AND INNOVATION
15 CFR 1150.5 Subpart A -- Promotion of Private Sector Industrial
Technology Partnerships
Sec.
1160.1 Purpose.
1160.2 Definitions.
1160.3 Assistance to industrial technology partnerships.
1160.4 Antitrust considerations.
1160.5 Coordination/cooperation with other Federal agencies.
1160.6 Proprietary data.
1160.7 Amendment of procedures.
15 CFR 1150.5 Subpart B -- Strategic Partnership Initiative
1160.20 Purpose.
1160.21 Definitions.
1160.22 Goal of the Strategic Partnership Initiative.
1160.23 Assistance in establishing Strategic Partnerships.
1160.24 Antitrust considerations.
1160.25 Coordination/cooperation with other federal agencies.
1160.26 Proprietary data.
1160.27 Amendment of procedures.
Authority: 15 U.S.C. 1512 and 3710, 15 U.S.C. 205a, DOO 10-17 and
DOO 10-18.
15 CFR 1150.5 Subpart A -- Promotion of Private Sector Industrial
Technology Partnerships
Source: 48 FR 52289, Nov. 17, 1983. Redesignated at 56 FR 41282,
Aug. 20, 1991, unless otherwise noted.
15 CFR 1160.1 Purpose.
The purpose of this part is to establish procedures under which the
Department of Commerce will provide assistance for the establishment by
the private sector of Industrial Technology Partnerships (as defined in
1160.2).
15 CFR 1160.2 Definitions.
(a) Industrial Technology Partnerships (ITPs). As used in this
subpart, ITPs include research and development limited partnerships
(RDLPs) and cooperative R&D arrangements of companies, non-profit
organizations, and Federal agencies or some combination thereof.
(b) Research and Development Limited Partnership (RDLP). In general,
the RDLP is a type of business organization to raise venture capital
from the private sector to fund specified research and development
projects. Additional characteristics are as follows:
(1) Establishment in general. An RDLP can be established by an
existing firm, or by an independent entrepreneur, to finance specified
research and development projects. It can effectively finance both
small and large scale projects. It is established by a partnership
agreement tailored to the particular projects to be funded.
(2) Classes of partners. In general, a partnership agreement
establishing an RDLP will provide for two classes of partners, as
follows:
(i) The General Partner or partners provide the management for the
partnership, obtain funding, make arrangements for the conduct of
research, and ultimately either manufacture any new products resulting
from the research and development or license out the resulting
technology; and
(ii) The Limited Partners invest in the partnership, bear most or all
of the financial risk, share in the financial success from proceeds of
manufacture, royalties or other paybacks, and receive tax benefits, but
exercise no active management role in the partnership.
15 CFR 1160.3 Assistance to industrial technology partnerships.
(a) General. The types of assistance available to Industrial
Technology Partnerships (ITPs) are described in the following
subsections. Additional assistance which is specific to Research and
Development Limited Partnerships (RDLPs) is described in paragraph (f)
of this section.
(b) Workshops. Upon request, the Secretary may hold workshops with
representatives from the private sector and government in order to
further the objectives of this part. Such workshops are designed to
explore interest in specific potential ITPs. They will be structured to
avoid antitrust problems.
(c) Clearinghouse. The Department's experience with Industrial
Technology Partnerships, notably RDLPs, indicates that numerous
potential participants in RDLPs, especially General Partners, need
access to specialized information. Accordingly, the Department will
develop and maintain a list of specific public and private sector
specialists in such categories as venture capitalists, tax accountants,
legal specialists, university and non-profit laboratories, brokers,
technical and economic feasibility analysts, and proprietary information
specialists (especially in patents). Persons wishing to be included in
the list or wishing to received a copy of the list should write to the
following address:
Industrial Technology Partnerships Program, Herbert C. Hoover
Building, Room 4816, Box B, U.S. Department of Commerce, Washington,
D.C. 20230.
Inclusion on the list is voluntary, and is free of charge to all
parties, as is receipt of the list. The Department of Commerce,
however, makes no representation about the qualifications, experience or
ability of any individual identified in these lists.
(d) Small business. The Department is aware of the significant
contributions of technology-related small business to the economic
health of the Nation. Accordingly, the Department shall identify
sources of information for them on innovation services and resources
including, for example: Technologies available for licensing; markets
for new technology-based products and services; financing; techniques
and incentives for innovation; organizations providing feasibility
testing and demonstration services; and information on production and
distribution methods. This assistance may be supplemented by the list
of referrals described in paragraph (c) of this section.
(e) Patent licensing. To assist industrial technology partnerships,
the Patent Licensing Program of the National Technical Information
Service (NTIS) will provide ITPs with current announcements of the
availability of licenses to use government-owned technology (on an
exclusive or non-exclusive basis). Write to:
David T. Mowry, Director, Center for the Utilization of Federal
Technology, NTIS, 5285 Port Royal Road, Springfield, Virginia 22101.
(f) Additional assistance for Research and Development Partnerships
(RDLPs). The Department has no funds available for direct financial
support for the establishment or operation of any ITP. Anyone wishing
to apply for any of the services listed below should direct their
inquiry to:
Industrial Technology Parternships Program, Herbert C. Hoover
Building, Room 4816, Box B, U.S. Department of Commerce, Washington,
D.C. 20230.
(1) Introductory training. The Department will accept a limited
number of businesspersons, academicians and other persons for purposes
of providing introductory training in the concept of RDLPs. Such
training will be tailored to the needs of the trainee, wherever
possible. Travel and other expenses of the trainees will be borne by
the trainees.
(2) Information on RDLPs. The Department will make available
information on research and development limited partnerships. A fee may
be charged for the printing costs of Departmental publications.
(3) Data bases. The Department will provide after May, 1984 as
available, technical and marketing data on specific technologies, which
may be useful to potential general partners in drafting business plans.
15 CFR 1160.4 Antitrust considerations.
The Department of Commerce will offer no opinion on the antitrust
merits of the formation of any industrial technology partnership. The
Secretary, upon request, may seek the Attorney General's opinion as to
whether proposed joint research activities would violate any of the
antitrust laws.
15 CFR 1160.5 Coordination/cooperation with other Federal agencies.
Where relevant, the Department may seek the cooperation of other
Federal agencies and laboratories that may be of assistance to
industrial technology partnerships.
15 CFR 1160.6 Proprietary data.
All persons making a request under this part are cautioned that data
submitted to the Department may be available for dissemination under the
Freedom of Information Act. The Department would, however, withhold any
information it deemed proprietary on the basis of the provision of 5
U.S.C. 552(b)(4). The Department will consult with the submitter of any
data requested under the Freedom of Information Act prior to the release
of such information, if the data is clearly marked ''Proprietary'' or
''Company-Confidential.''
15 CFR 1160.7 Amendment of procedures.
The right to amend or withdraw these procedures is expressly
reserved.
15 CFR 1160.7 Subpart B -- Strategic Partnership Initiative
Source: 56 FR 41282, Aug. 20, 1991, unless otherwise noted.
15 CFR 1160.20 Purpose.
The purpose of this notice is to notify interested parties of
procedures under which the Department of Commerce provides a forum for
discussion by private sector interests on the feasibility of
establishing strategic partnerships, especially for the development and
exploitation of large scale enabling technologies.
15 CFR 1160.21 Definitions.
(a) Strategic Partnerships. Strategic Partnerships are
multi-industry teams of firms and others formed to create and
commercialize proprietary technologies, especially large scale enabling
technologies, using a systems management approach. The design of and
participants in a specific partnership will be solely at the discretion
of the private sector. However, since these partnerships will be most
effective when comprised of firms which can share proprietary
information, it will probably be most useful if there are no competitors
in the venture.
(b) Large Scale Enabling Technologies. Large Scale Enabling
Technologies are technologies that are too complex and costly for a
single firm to create and that have more potential applications than a
single firm or a single industry can readily exploit. In some cases
investments in these technologies may only be recouped if the results
are used in several applications, often in different industries. Since
speed of recoupment is often critical to continued competitiveness, it
is often essential that multiple major applications are introduced
simultaneously.
(56 FR 41282, Aug. 20, 1991; 56 FR 51257, Oct. 10, 1991)
15 CFR 1160.22 Goal of the Strategic Partnership initiative.
(a) This new initiative is designed to provide the private sector
with the opportunity to discuss the possible benefits of forming
Strategic Partnerships among firms representing the entire food chain of
specific technologies. By focusing on a specific technology, these
partnerships will have the capability to integrate the innovation
activities for a broad range of applications made possible by that
technology. The integrative function differentiates this initiative
from earlier Department of Commerce initiatives which deal with only one
stage of the commercial process. Strategic Partnerships differ from
traditional cooperative R&D consortia which are composed primarily of
competitors who cooperate only in the early precompetitive stage of
innovation. In contrast, Strategic Partnerships are made up generally
of noncompeting companies (see 1160.21(a)) and are capable of
accomplishing the entire process of innovation working on a proprietary
basis.
(b) The immediate goal of this initiative is to hold workshops upon a
request from the private sector in key technologies at which the
stakeholder industries in the food chain for each technology will have a
chance to consider potential applications of the technology, current
status of the technology, what R&D needs to be performed, the
competitive position of U.S. industry in that technology, including the
status of foreign competition, and the ways in which U.S. stakeholders
might organize themselves to maximize commercial benefits. The ultimate
outcome of such workshops will be entirely at the discretion of the
private sector and may include the formation of one or more Strategic
Partnerships, other types of multifirm ventures, or no action at all.
The Department will not undertake to form specific partnerships. This
will be solely at the discretion of the participants.
(56 FR 41282, Aug. 20, 1991; 56 FR 51257, Oct. 10, 1991)
15 CFR 1160.23 Assistance in establishing Strategic Partnerships.
(a) General. The Department has no funds available for direct
financial support for the establishment or operation of a Strategic
Partnership.
(b) Information Briefings. The Department plans to hold an initial
briefing to acquaint the private sector with the dynamics of the systems
approach used in Strategic Partnerships, including how they may offer a
means for firms to collaborate primarily in large scale enabling
technologies. Additional information and technical assistance may be
obtained from the Director, Office of Technology Policy Analyses and
Studies, Technology Administration, room 4835, Herbert C. Hoover
Building, U.S. Department of Commerce, Washington, DC 20230 (202)
377-1518.
(c) Workshops. Upon request the Department may hold workshops to
explore interest in Strategic Partnerships for a specific technology.
Working with the requester, Commerce will determine which industries
have a stake in the technology, invite the firms from those industries,
and design the meeting agenda and background materials. Anyone wishing
to apply for such a workshop should direct their inquiry to the
Assistant Secretary for Technology Policy, Technology Administration,
room 4818, Herbert C. Hoover Building, U.S. Department of Commerce,
Washington, DC 20230.
(d) All workshops will be held on a fee basis at no cost to the
Department.
15 CFR 1160.24 Antitrust considerations.
(a) The Department of Commerce will offer no opinion on the antitrust
merits of the formation of any proposed Strategic Partnership. The
Department may seek an opinion from the Antitrust Division of the
Department of Justice as to whether a proposed Strategic Partnership
would raise antitrust issues. Furthermore, the role played by the
Department of Commerce confers no special immunity to any given
Strategic Partnership.
(b) Strategic Partnerships may be formed without any consultation
with or involvement by the Department of Commerce; the purpose of the
Strategic Partnership Initiative is to make the private sector aware of
this vehicle and, where requested, conduct workshops to discuss the
formation of such partnerships in general. Commerce will not select the
technologies, the number of partnerships, or the specific firms in a
given partnership.
15 CFR 1160.25 Coordination/cooperation with other federal agencies.
Where relevant, the Department may seek the cooperation of other
Federal agencies and laboratories that may be of assistance to Strategic
Partnerships.
15 CFR 1160.26 Proprietary data.
All persons making a request under this part are cautioned that data
submitted to the Department may be available for dissemination under the
Freedom of Information Act. The Department, however, would withhold any
information it deemed proprietary (confidential commercial or financial)
on the basis of 5 U.S.C. 552(b)(4). The Department will consult with the
submitter of any data requested under the Act, prior to release of such
information, if the data is clearly marked ''Company Confidential.''
(See 15 CFR 4.7).
15 CFR 1160.27 Amendment of procedures.
The right to amend or withdraw these procedures is expressly
reserved.
15 CFR 1160.27 Pt. 1170
15 CFR 1160.27 PART 1170 -- METRIC CONVERSION POLICY FOR FEDERAL
AGENCIES
Sec.
1170.1 Purpose.
1170.2 Definition.
1170.3 General Policy.
1170.4 Guidelines.
1170.5 Recommendations for agency organization.
1170.6 Reporting requirement.
1170.7 -- 1170.199 (Reserved)
Authority: 15 U.S.C. 1512 and 3710, 15 U.S.C. 205a, DOO 10-17 and
DOO 10-18.
Source: 56 FR 160, Jan. 2, 1991. Redesignated at 56 FR 41283, Aug.
20, 1991 and corrected at 56 FR 60059, Nov. 27, 1991, unless otherwise
noted.
15 CFR 1170.0 Purpose.
To provide policy direction for Federal agencies in their transition
to use of the metric system of measurement.
15 CFR 1170.2 Definition.
Metric system means the International System of Units (SI)
established by the General Conference of Weights and Measures in 1960,
as interpreted or modified from time to time for the United States by
the Secretary of Commerce under the authority of the Metric Conversion
Act of 1975 and the Metric Education Act of 1978.
Other business-related activities means measurement sensitive
commerical or business directed transactions or programs, i.e., standard
or specification development, publications, or agency statements of
general applicability and future effect designed to implement,
interpret, or prescribe law or policy or describing the procedure or
practice requirements of an agency. ''Measurement sensitive'' means the
choice of measurement unit is a critical component of the activity,
i.e., an agency rule/regulation to collect samples or measure something
at specific distances or to specific depths, specifications requiring
intake or discharge of a product to certain volumes or flow rates,
guidelines for clearances between objects for safety, security or
environmental purposes, etc.
15 CFR 1170.3 General policy.
The Omnibus Trade and Competitiveness Act of 1988 (Pub. L. 100-418,
section 5164) amended the Metric Conversion Act of 1975 to, among other
things, require that each Federal agency, by a date certain and to the
extent economically feasible by the end of the fiscal year 1992, use the
metric system of measurement in its procurements, grants, and other
business-related activities, except to the extent that such use is
impractical or is likely to cause significant inefficiencies or loss of
markets to United States firms, such as when foreign competitors are
producting competing products in non-metric units.
(a) The Secretary of Commerce will appoint a Commerce Department
Under Secretary to assist in coordinating the efforts of Federal
agencies in meeting their obligations under the Metric Conversion Act,
as amended.
(b) Federal agencies shall coordinate and plan for the use of the
metric system in their procurements, grants and other business-related
activities consistent with the requirements of the Metric Conversion
Act, as amended. Federal agencies shall encourage and support an
environment which will facilitate the transition process. When taking
initiatives, they shall give due consideration to known effects of their
actions on State and local governments and the private sector, paying
particular attention to effects on small business.
(c) Each Federal agency shall be responsible for developing plans,
establishing necessary organizational structure, and allocating
appropriate resources to carry out this policy.
15 CFR 1170.4 Guidelines.
Each agency shall:
(a) Establish plans and dates for use of the metric system in
procurements, grants and other business-related activities;
(b) Coordinate metric transition plans with other Federal agencies,
State and local governments and the private sector;
(c) Require maximum practical use of metric in areas where Federal
procurement and activity represents a predominant influence on industry
standards (e.g.: weapon systems or space exploration). Strongly
encourage metrication in industry standards where Federal procurement
and activity is not the predominant influence, consistent with the legal
status of the metric system as the preferred system of weights and
measures for United States trade and commerce;
(d) Assist in resolving metric-related problems brought to the
attention of the agency that are associated with agency actions,
activities or programs undertaken in compliance with these guidelines or
other laws or regulations;
(e) Identify measurement-sensitive agency policies and procedures and
ensure that regulations, standards, specifications, procurement policies
and appropriate legislative proposals are updated to remove barriers to
transition to the metric system;
(f) Consider cost effects of metric use in setting agency policies,
programs and actions and determine criteria for the assessment of their
economic feasibility. Such criteria should appropriately weigh both
agency costs and national economic benefits related to changing to the
use of metric;
(g) Provide for full public involvement and timely information about
significant metrication policies, programs and actions;
(h) Seek out ways to increase understanding of the metric system of
measurement through educational information and guidance and in agency
publications;
(i) Consider, particularly, the effects of agency metric policies and
practices on small business; and
(j) Consistent with the Federal Acquisition Regulation System (48
CFR), accept, without prejudice, products and services dimensioned in
metric when they are offered at competitive prices and meet the needs of
the Government, and ensure that acquisition planning considers metric
requirements.
15 CFR 1170.5 Recommendations for agency organization.
Each agency shall:
(a) Participate, as appropriate, in the Interagency Council on Metric
Policy (ICMP), and/or its working committee, the Metrication Operating
Committee (MOC), in coordinating and providing policy guidance for the
U.S. Government's transtion to use of the metric system.
(b) Designate a senior policy official to be responsible for agency
metric policy and to represent the agency on the ICMP.
(c) Designate an appropriate official to represent the agency on the
Metrication Operating Committee (MOC), an interagency committee
reporting to the ICMP.
(d) Maintain liaison with private sector groups (such as the American
National Metric Council and the U.S Metric Association) that are
involved in planning for or coordinating National transition to the
metric system.
(e) Provide for internal guidelines, training and documentation to
assure employee awareness and understanding of agency metric policies
and programs.
15 CFR 1170.6 Reporting requirement.
Each Federal agency shall, as part of its annual budget submission
each fiscal year, report to the Congress on the metric implementation
actions it has taken during the previous fiscal year. The report will
include the agency's implementation plans, with a current timetable for
the agency's transition to the metric system, as well as actions planned
for the budget year involved to implement fully the metric system, in
accordance with this policy. Reporting shall cease for an agency in the
fiscal year after it has fully implemented metric usage, as prescribed
by the Metric Conversion Act (15 U.S.C. 205b(2).)
1170.7 -- 1170.199 (Reserved)
15 CFR 1170.6 15 CFR Ch. XII (1-1-92 Edition)
15 CFR 1170.6 United States Travel Service, Commerce
15 CFR 1170.6 CHAPTER XII -- UNITED STATES TRAVEL AND TOURISM
ADMINISTRATION, DEPARTMENT OF COMMERCE
Part
Page
1200 Issuance of grants to promote travel to States or their
political subdivisions by foreign residents
1201 United States Travel and Tourism Administration Facilitation
Fee.
15 CFR 1170.6
15 CFR 1170.6 15 CFR Ch. XII (1-1-92 Edition)
15 CFR 1170.6 United States Travel and Tourism Administration, Commerce
15 CFR 1170.6 Pt. 1200
15 CFR 1170.6 PART 1200 -- ISSUANCE OF GRANTS TO PROMOTE TRAVEL TO
STATES OR THEIR POLITICAL SUBDIVISIONS BY FOREIGN RESIDENTS
Sec.
1200.1 Background and purpose.
1200.2 Definitions.
1200.3 Applications for Federal grant for travel promotional
projects.
1200.4 Action on application.
1200.5 Grant accounting and records.
1200.6 Reports.
1200.7 Inspection and audit.
1200.8 Publications.
1200.9 Collection of information.
1200.10 Termination.
1200.11 Repayment.
1200.12 Federal coordination.
Authority: Pub. L. 87-63, as amended by Pub. L. 88-420 and Pub. L.
91-477; Department of Commerce Organization Order 10-7 of November 12,
1970.
Source: 36 FR 17036, Aug. 27, 1971, unless otherwise noted.
15 CFR 1200.1 Background and purpose.
The regulations in this part are issued under the authority of the
International Travel Act of 1961, as amended. The purpose of the Act is
to strengthen the domestic and foreign commerce of the United States;
promote friendly understanding and appreciation of the United States by
encouraging foreign residents to visit the States, as defined in
1200.2; and facilitate international travel in general. On October 21,
1970, the Act was amended by Pub. L. 91-477. One of the amendments made
to the Act by Pub. L. 91-477 authorized the U.S. Travel and Tourism
Administration to make matching Federal grants to States or their
political subdivisions, or private or public nonprofit organizations, in
an effort to encourage foreign residents to visit the United States and
to upgrade and improve the tourist host and reception facilities in this
country thereby furthering the stated purposes of the Act.
(36 FR 17036, Aug. 27, 1971, as amended at 55 FR 53489, December 31,
1990)
15 CFR 1200.2 Definitions.
(a) Act means the International Travel Act of 1961, as amended (22
U.S.C. 2121 et seq.).
(b) Assistant Secretary means the Assistant Secretary of Commerce for
Tourism or such official as may be designated to act in his behalf.
(c) State means one of the several States of the United States, the
District of Columbia, the Commonwealth of Puerto Rico, the Virgin
Islands, Guam, American Samoa, and the Trust Territory of the Pacific
Islands.
(d) Political subdivision means a unit of local government, including
specifically, a county, municipality, city, town, township, or other
special district created by or pursuant to law.
(e) Private or public non-profit organizations means an institution,
organization, or association, either private or public, which has tax
exempt status as defined in section 501(a) of the Internal Revenue Code.
(f) Applicant means a State or political subdivision or combination
thereof, or private or public nonprofit organization seeking a Federal
grant for a travel promotional project.
(g) Travel promotional project means an activity or program designed
to enhance a State or political subdivision as a desired travel
destination of residents of foreign countries or to inform such
residents and to encourage them to visit a State or political
subdivision through such means as:
(1) Preparing and disseminating materials, including brochures,
leaflets, booklets, posters, and displays featuring domestic regional
and local attractions in appropriate foreign languages in foreign cities
and countries that constitute a potential travel market to the States;
(2) Carrying out either singly or in conjunction with other States
and/or other political subdivisions and/or with U.S. Travel and Tourism
Administration, special promotions of facilities, attractions, events
and services of an area by means of exhibits, shows, films, etc.;
(3) Planning, developing and sponsoring advertising campaigns in
foreign countries to inform and encourage foreign residents to visit;
(4) Undertaking projects to upgrade and improve tourist facilities
and services to better serve the foreign resident;
(5) Carrying out other projects that indicate a high probability of
increasing foreign tourism;
(h) Matching funds means funds that are provided by the State or
political subdivision or by a combination thereof, or from other
non-Federal sources and may include fees, contributions, donations,
gifts of money, and special user charges from persons and private profit
or nonprofit firms, organizations, or institutions.
(36 FR 17036, Aug. 27, 1971, as amended at 55 FR 53489, December 31,
1990)
15 CFR 1200.3 Applications for Federal grant for travel promotional
projects.
(a) Each applicant seeking a Federal grant for a travel promotional
project shall file an application, as further specified below, with the
Assistant Secretary.
(b) Every application, exhibit, or enclosure, except where
specifically waived by the Assistant Secretary, shall be in
quadruplicate, duly authenticated and referenced, and addressed to the
Assistant Secretary of Commerce for Tourism, U.S. Travel and Tourism
Administration, U.S. Department of Commerce, Washington, DC 20230.
(c) Every application shall be on USTS Form, ''Request for Travel
Promotion Project Grant,'' which is available from the U.S. Travel and
Tourism Administration. This application form incorporates assurances
of compliance with the nondiscrimination requirements of title VI of the
Civil Rights Act of 1964 (42 U.S.C. 2000d-1 et seq.) and implementing
regulations ( 8.1 et seq. of this title). Also, the form shall contain
the date, address, and official title of the applicant and shall be
signed by an authorized representative.
(d) Every application, except where specifically waived by the
Assistant Secretary, shall be accompanied by the following exhibits:
(1) Exhibit No. 1. A statement setting forth in detail the current
level of tourism in area in terms of (i) numbers of tourists in area,
both foreign and domestic; (ii) impact of tourism on area economy
(i.e., employment and income); and (iii) current efforts to develop and
promote tourism in area.
(2) Exhibit No. 2. A project statement setting forth in detail the
existing need for Federal assistance, the goals and objective thereof,
in terms of tourism receipts and their effects on area jobs and income,
the specific methods proposed for accomplishing these objectives in
terms of personnel and funds and the procedures that will be used to
evaluate the project.
(3) Exhibit No. 3. A statement setting forth in detail the budget
proposed for the project, together with procedures for fiscal control,
funding, accounting and auditing to assure proper disbursement of funds
paid to the applicant.
(4) Exhibit No. 4. Documentation establishing that the applicant has
coordinated the travel promotion project with other States (when
regional cooperation is desirable) and with other publicly supported
activities within the States or political subdivision, as appropriate,
and the extent and manner in which such coordination has been carried
out by identifying such projects and activities and indicating how any
duplication of other travel promotion project in the area has been
avoided.
(5) Exhibit No. 5. Certification by the Governor of the State or the
chief political officer of the political subdivision or the president of
the private or public nonprofit organization, as the case may be, that
the applicant has:
(i) Established adequate standards and rules to insure that no
officer or employee of the State or political subdivision or their
designated agencies, or private or public organization, shall receive
compensation from sources other than his employer for tourism
development or promotional services for which funds are provided under
the Act and that no such officer or employee shall otherwise maintain
any private interest in conflict with his public responsibility. Each
applicant will furnish a copy of the standards and rules which are
established to avoid any conflict of interest in connection with the
administration of a grant which may be made under the Act. Such rules
shall clearly set forth the standards and procedures which officers,
employees, and consultants can follow to avoid any conflict of interest.
(ii) Determined that matching funds will be available from States or
other non-Federal sources. In addition, each applicant shall indicate
the basis for the determination by identifying such sources.
(iii) Determined that such travel promotional project supported by a
grant under the Act does not provide or arrange transportation for, or
accommodations to, persons traveling between foreign countries and the
States in competition with any private business engaged in providing or
arranging for such transportation and accommodations.
(iv) Planned no services specially related to a particular firm or
company, public work or other capital project except insofar as the
services are of general concern to the industry and commerce of the
State or political subdivision. If the applicant has planned services
which are specially related to a particular firm or company, public work
or other capital project, a statement shall be furnished by the
applicant to the Assistant Secretary describing such services and the
basis for the determination that such services are of general concern to
the industry and commerce of the State or political subdivision.
(36 FR 17036, Aug. 27, 1971, as amended at 55 FR 53489, December 31,
1990)
15 CFR 1200.4 Action on application.
(a) Upon receipt of an application, the Assistant Secretary shall
designate an employee of the U.S. Travel and Tourism Administration who
will investigate the application and accompanying exhibits for
compliance with the provisions of 1200.3 and report his findings with
respect thereto to the Assistant Secretary.
(b) The Assistant Secretary, within a reasonable time after receipt
of the report referred to in paragraph (a) of this section, may
authorize a grant to the applicant provided he finds that (1) the travel
promotional project is designed to carry out the purposes of the Act;
(2) the project will facilitate and encourage travel to the State or
political subdivision or combination thereof by foreign residents; and
(3) matching funds will be available from State or other non-Federal
sources.
(c) In no event shall the amount of any grant made under the
regulations of this part for any travel promotion project exceed 50
percent of the total cost of the project.
(36 FR 17036, Aug. 27, 1971, as amended at 55 FR 53489, December 31,
1990)
15 CFR 1200.5 Grant accounting and records.
(a) Accounting for grants funds shall consist of any generally
accepted accounting system and internal control procedures, including
provisions for audit, provided that they meet the following
requirements:
(1) Separate ledger accounts are established for each grant or grant
project which conforms to or permits ready identification with grant
budget categories. Such accounts should provide separate and specific
accountability of receipts, expenditures, and balances. Separate
accounts may be maintained for each annual period, but are not required.
(2) Supporting records of project expenditures are maintained in
sufficient detail and itemization to show the exact nature of each
expenditure. Such records should clearly indicate to which major budget
category and subitems within the category an expenditure is charged.
(3) Reimbursements of travel expenses are supported by vouchers
containing the signature of the individual performing the travel and the
person authorized by the applicant to approve such travel. Vouchers
should show the starting point and destination of travel, dates of
travel, itemization of amounts expended for transportation and a
statement of the amounts expended for transportation and a statement of
the amount of per diem due (not to exceed the per diem authorized by the
State or political subdivision or the rate of $25 per day (whichever is
less)).
(4) Each expenditure is referenced to a supporting purchase order,
contract, voucher, invoice, or bill, properly approved. Special voucher
forms are not necessary since ordinarily the documents used by a
designated agency to support expenditures from its own funds will be
sufficient. Whenever possible, separate orders should be issued for
purchases charged to grant funds in order that bills or invoices will
not contain items charged to other funds.
(5) Grant number, account number, date, and expense classification
are identified on invoices or vouchers charged to other funds.
(6) Payroll authorizations are maintained to effect control on
salaries and wages charged against grant funds. These authorizations
shall be approved by the appropriate authority in the State or political
subdivision.
(7) Some objective evidence of time devoted to the grant project is
maintained. As a minimum, a statement should be prepared at the end of
each pay period showing the names of employees, the percentage of time
each devoted to grant projects, the gross amounts of salaries and
approval by appropriate authority in the designated agency.
(8) Adequate records are maintained supporting charges for fringe
benefits, such as pensions, retirement, social security tax (FICA),
etc., when included in the project budgets.
(9) All canceled checks are filed and are readily accessible for
examination. When cash disbursements are made, they must be supported
by receipts approved by appropriate authority.
(10) The accounting system is adequate to permit immediate
identification of project balances and funds in general accounts, or
separate bank accounts may be established for project funds.
(11) Inventory records are maintained for all equipment purchased
with grant funds.
(12) The applicant receiving Federal funds under the Act shall
require all subcontractors to provide documentation covering receipt and
expenditure of grant and matching funds for which the designated agency
is held responsible.
(13) The grant accounting system provides for adequate internal
audits and the use of written policies and instructions defining
accounting policies, procedures and controls.
(14) All income from project activity (sale of publications, entrance
fees, user charges, etc.) is accounted for and clearly identified in
financial reports.
(36 FR 17036, Aug. 27, 1971, as amended at 55 FR 53489, Dec. 31,
1990)
15 CFR 1200.6 Reports.
Financial reports and descriptive reports will be required as the
Assistant Secretary may specify. Each applicant is also required to
submit to the Assistant Secretary within 90 days after the official
termination date of the grant (a) a final financial report, and (b) a
descriptive report describing and evaluating the project
accomplishments.
15 CFR 1200.7 Inspection and audit.
(a) The Assistant Secretary and the Comptroller General of the United
States, or any of their duly authorized representatives, shall have
access for the purpose of audit and examination, any books, documents,
papers, and records of the designated agency that are pertinent to
Federal assistance received under the Act.
(b) Financial records must be kept on file for a minimum of 3 years
following the termination of the grant. The required retention period
may be extended by written notification by the Assistant Secretary.
15 CFR 1200.8 Publications.
(a) If the applicant desires to publish information resulting from
the grant, the general provisions accompanying the grant will contain
regulations regarding acknowledgment and disclaimer requirements.
(b) A determination as to responsibilities will be made on a
case-by-case basis; however, the Government reserves a nonexclusive
license to use and reproduce for Government purposes, without payment,
any publishable matter or information collected, including copyrighted
material, arising out of the applicant's activities.
15 CFR 1200.9 Collection of information.
If the applicant collects information from the public on its own
initiative in connection with a research or other general purpose
project, it will not, without prior written approval of the Assistant
Secretary, in any way represent that the information is being collected
by or for a Federal agency.
15 CFR 1200.10 Termination.
(a) Grants may be terminated, in whole or in part, by the Assistant
Secretary if he finds that any of the following conditions exist:
(1) The applicant, or those with whom such agency has contracted or
subcontracted, is not complying with the provisions of the Act, with the
regulations in this part, or with any of the provisions of the grant;
or
(2) Any funds paid to the applicant under the provisions of the Act
or the regulations in this part have been lost, misapplied, or otherwise
diverted from or improperly used or expended for other than the purposes
for which they were paid.
(b) The Assistant Secretary may, in his sole discretion, terminate
the grant, in whole or in part, if he finds that any of the conditions
described in paragraph (a) of this section exist. Such termination
shall be effective 30 days after the mailing of a written notice of
termination to the applicant.
15 CFR 1200.11 Repayment.
In the event that the grant is terminated, any funds that have been
paid to the applicant by the U.S. Travel and Tourism Administration
which have not been expended or contracted for upon receipt of the
notice of termination shall be repaid to the Assistant Secretary within
30 days of such notice.
(36 FR 17036, Aug. 27, 1971, as amended at 55 FR 53489, December 31,
1990)
15 CFR 1200.12 Federal coordination.
The Assistant Secretary may, prior to approving any travel
promotional project, take such steps as he deems appropriate, to
coordinate such project with other Federal agencies or seek the advice
of such committees as may be established for the purpose of reviewing
tourist development or promotion plans and programs.
15 CFR 1200.12 PART 1201 -- UNITED STATES TRAVEL AND TOURISM
ADMINISTRATION FACILITATION FEE
Authority: Sections 306 and 307 of the International Travel Act of
1961, as added by section 10301 of the Omnibus Budget Reconciliation Act
of 1990, Pub. L. No. 101-508.
15 CFR 1201.1 United States Travel and Tourism Administration
Facilitation Fee.
Beginning with the calendar quarter starting January 1, 1991, each
commercial airline and passenger cruise ship line transporting
passengers to the United States is assessed a quarterly United States
Travel and Tourism Administration Facilitation Fee, in the amount of one
dollar multiplied by the number of aliens described in section
101(a)(15)(B) of the Immigration and Nationality Act (8 U.S.C.
1101(a)(15)(B)) arriving at any port within the United States aboard a
commercial aircraft or cruise ship of such airline or passenger cruise
ship line during that calendar quarter.
(56 FR 179, Jan. 3, 1991)
15 CFR 1201.1 15 CFR Ch. XIII (1-1-92 Edition)
15 CFR 1201.1 East-West Foreign Trade Board
15 CFR 1201.1 CHAPTER XIII -- EAST-WEST FOREIGN
15 CFR 1201.1 TRADE BOARD
Part
Page
1300 Reports on exports of technology.
15 CFR 1201.1
15 CFR 1201.1 15 CFR Ch. XIII (1-1-92 Edition)
15 CFR 1201.1 East-West Foreign Trade Board
15 CFR 1201.1 PART 1300 -- REPORTS ON EXPORTS OF TECHNOLOGY
15 CFR 1300.1 Reporting of exports of technology to nonmarket economy
countries.
(a) For purposes of complying with the reporting requirements of
section 411 of the Trade Act of 1974 (19 U.S.C. 2441) relating to the
export of technology to a nonmarket economy country, exporters of such
technology shall be deemed to have complied with the requirements of
such section by complying with the applicable provisions of the export
control regulations of the Department of Commerce (15 CFR 368.1 through
399.2) issued pursuant to the Export Administration Act of 1969, as
amended, (50 U.S.C. App. 2401 through 2413).
(b) Nonmarket Economy Country. For purposes of section 411(b) of the
Trade Act of 1974 (19 U.S.C. 2441) the term ''nonmarket economy
country'' includes those countries included in Country Groups Q, W, Y,
and Z of the export control regulations of the Department of Commerce
(15 CFR Part 370 (Supplement 1)).
(Sec. 411, Pub. L. 93-618, 88 Stat. 2065 (19 U.S.C. 2441); E.O.
11846 (40 FR 14291))
(40 FR 29534, July 14, 1975)
15 CFR 1300.1 15 CFR Ch. XIV (1-1-92 Edition)
15 CFR 1300.1 Minority Business Development Agency
15 CFR 1300.1 CHAPTER XIV -- MINORITY BUSINESS
15 CFR 1300.1 DEVELOPMENT AGENCY
Part
Page
1400 Determination of group eligibility for MBDA assistance
15 CFR 1300.1
15 CFR 1300.1 15 CFR Ch. XIV (1-1-92 Edition)
15 CFR 1300.1 Minority Business Development Agency
15 CFR 1300.1 PART 1400 -- DETERMINATION OF GROUP ELIGIBILITY FOR MBDA
ASSISTANCE
Sec.
1400.1 Purpose and scope.
1400.2 Definitions.
1400.3 Request for determination.
1400.4 Evidence of social or economic disadvantage.
1400.5 Decision.
1400.6 Construction.
Authority: 15 U.S.C. 1512, E.O. 11625, 3 CFR 616 (1971-75), 36 FR
19967 (1971); and E.O. 12432, 3 CFR 198 (1983), 48 FR 32551 (1983).
Source: 49 FR 42698, Oct. 24, 1984, unless otherwise noted.
15 CFR 1400.1 Purpose and scope.
(a) The purpose of this part is to set forth regulations for
determination of group eligibility for MBDA assistance.
(b) In order to be eligible to receive assistance from MBDA funded
organizations, a concern must be a minority business enterprise. A
minority business enterprise is a business enterprise that is owned or
controlled by one or more socially or economically disadvantaged
persons. Executive Order 11625 designates Blacks, Puerto-Ricans,
Spanish-speaking Americans, American Indians, Eskimos, and Aleuts as
persons who are socially or economically disadvantaged and thus eligible
for MBDA assistance. Other groups designated are listed below in
paragraph (c). The purpose of this regulation is to provide guidance to
groups not previously designated as eligible for assistance who believe
they are entitled to formal designation as ''socially or economically
disadvantage'' under the Executive Order. Upon adequate showing by
representatives of the group that the group is, as a whole, socially or
economically disadvantaged the group will be so designated and its
members will be eligible for MBDA assistance. Designation under
Executive Order 11625 establishes eligibility status only for MBDA
funded programs. It will not establish eligibility for any other
Federal or Federally funded program.
(c) In addition to those listed in E.O. 11625, members of the
following groups have been designated as eligible to receive assistance:
Hasidic Jews, Asian Pacific Americans, and Asian Indians.
15 CFR 1400.2 Definitions.
For the purpose of this part:
(a) Minority business enterprise means a business which is owned or
controlled by one or more socially or economically disadvantaged
persons.
(b) Socially disadvantaged persons means those persons who have been
subjected to cultural, racial or ethnic prejudice because of their
identity as members of a group without regard to their individual
qualities.
(c) Economically disadvantaged persons means those persons whose
ability to compete in the free enterprise system has been impaired due
to diminished capital and credit opportunities because of their identity
as members of a group without regard to their individual qualities, as
compared to others in the same line of business and competitive market
area.
(d) Person means a citizen of the United States or an alien lawfully
admitted for permanent residence.
15 CFR 1400.3 Request for determination.
A group wishing to apply for designation as socially or economically
disadvantaged under Executive Order 11625 shall submit a written
application to the Director of the Minority Business Development Agency,
United States Department of Commerce, Washington, D.C., 20230,
containing the following information:
(a) Statement of request: a brief statement clearly indicating that
the applicant seeks formal recognition as socially or economically
disadvantaged.
(b) Description of applicants: a detailed sociological, ethnic
and/or racial description, as appropriate, of the group they represent
which indicates that the group and the traits of its members are
sufficiently distinctive to warrant a determination of social or
economic disadvantage.
(c) Summary of the applicant's submission: a brief summary of their
Submission.
(d) Presentation of argument: a narrative description of the
documentation in support of their claim of social or economic
disadvantage.
(Applicants should support their claim of social or economic
disadvantage with the criteria described under 1400.4 ''Evidence of
Social or Economic Disadvantage'')
(e) Conclusion: summary of applicant's arguments in support of the
claims of social or economic disadvantage.
(Approved by the Office of Management and Budget under control number
0640-0011)
15 CFR 1400.4 Evidence of social or economic disadvantage.
(a) The representatives of the group requesting formal designation
should establish social or economic disadvantage by a preponderance of
the evidence. Social or economic disadvantage must be chronic, long
standing, and substantial, not fleeting or insignificant. In
determining whether a group has made an adequate showing that it has
suffered chronic racial or ethnic prejudice or cultural bias for the
purposes of this regulation, a determination will be made as to whether
this group has suffered the effects of discriminatory practices over
which its members have no control. Applicants must demonstrate that
such social or economic conditions have produced impediments in the
business world for members of the group which are not common to all
business people in the same or similar business and market place.
(b) Evidence which will be considered in determining whether groups
are socially or economically disadvantaged includes but is not limited
to:
(1) Statistical profile outlining the national income level and
standard of living enjoyed by members of the group in comparison to the
income level and standard of living enjoyed by individuals not
considered to be members of socially or economically disadvantaged
groups.
(2) Evidence of employment discrimination suffered by members of the
group in comparison to employment opportunities available to individuals
not considered to be members of socially or economically disadvantaged
groups.
(3) Evidence of educational discrimination in comparison to
educational opportunities available to individuals not considered to be
members of socially or economically disadvantaged groups.
(4) Evidence of denial of access to organizations, groups, or
professional societies, whether in business or in school, based solely
upon racial and/or ethnic considerations.
(5) Kinds of businesses and business opportunities available to group
members in comparison to the kinds of businesses and business
opportunities available to individuals not considered to be members of
socially or economically disadvantaged groups.
(6) Availability of capital to group members in comparison to the
availability of capital to individuals not considered to be members of
socially or economically disadvantaged groups.
(7) Availability of technical and managerial resources to group
members in comparison to the technical and managerial resources
available to individuals not considered to be members of socially or
economically disadvantaged groups.
(8) Any other evidence of denial of opportunity or access to those
things which would enable the individual to participate more
successfully in the American economic system, available to individuals
not considered to be members of social or economically disadvantaged
groups.
15 CFR 1400.5 Decision.
(a) Procedure. After receipt of an application requesting formal
designation as a socially or economically disadvantaged group, the
Department of Commerce will publish a notice in the Federal Register
that formal designation of this group will be considered. This notice
will request comment from the public on the propriety of such a
designation. The Department may gather additional information which
supports or refutes the group's request. Any member of the public,
including Government representatives, may submit information in written
form. It is the responsibility of the applicant, however, to submit all
relevant information which it wishes considered in its request for a
determination of group eligibility.
(b) Decision. A decision will be made within 180 days of the receipt
of the request. The decision will be published in the Federal Register.
Applicants will also be informed in writing.
(c) Appeal. All questions of eligibility and procedural requirements
shall be resolved by the Director, MBDA whose decision shall be final.
An applicant may appeal this decision to the Secretary of Commerce.
Applicants requesting an appeal should provide any information
discovered subsequent to the Director's initial decision which would
further their claim. The right to appeal shall be granted at the
absolute discretion of the Secretary.
15 CFR 1400.6 Construction.
Nothing in this regulation shall be construed as subjecting any
functions vested in, or assigned pursuant to law to any Federal
department or agency or head thereof to the authority of any other
agency or office exclusively, or as abrogating or restricting such
functions in any manner.
15 CFR 1400.6 Subtitle C -- Regulations Relating
15 CFR 1400.6 to Foreign Trade Agreements
15 CFR 1400.6 15 CFR Ch. XX (1-1-92 Edition)
15 CFR 1400.6 Office of the United States Trade Representative
15 CFR 1400.6 CHAPTER XX -- OFFICE OF THE
15 CFR 1400.6 UNITED STATES
15 CFR 1400.6 TRADE REPRESENTATIVE
Part
Page
2001 Creation, organization, and functions
2002 Operation of committees
2003 Regulations of Trade Policy Staff Committee
2004 Freedom of information policies and procedures
2005 Safeguarding individual privacy
2006 Procedures for filing petitions for action under section 301 of
the Trade Act of 1974, as amended
2007 Regulations of the U.S. Trade Representative pertaining to
eligibility of articles and countries for the Generalized System of
Preference Program (GSP (15 CFR Part 2007))
2008 Regulations to implement E.O. 12065; Office of the United
States Trade Representative
2009 Procedures for representations under section 422 of the Trade
Agreements Act of 1979
2011 Allocation of tariff-rate quota on imported sugars, syrups and
molasses
15 CFR 1400.6
15 CFR 1400.6 15 CFR Ch. XX (1-1-92 Edition)
15 CFR 1400.6 Office of the United States Trade Representative
15 CFR 1400.6 Pt. 2001
15 CFR 1400.6 PART 2001 -- CREATION, ORGANIZATION, AND FUNCTIONS
Sec.
2001.0 Scope and purpose.
2001.1 Creation and location.
2001.2 Organization.
2001.3 Functions.
Authority: Pub. L. 93-618, 88 Stat. 1978; 76 Stat. 902, 19 U.S.C.
1872, as amended; E.O. 11846 of March 27, 1975, 40 FR 14291, March 31,
1975.
Source: 40 FR 18419, Apr. 28, 1975, unless otherwise noted.
15 CFR 2001.0 Scope and purpose.
(a) This chapter sets out terms of reference of the Office of the
United States Trade Representative (hereinafter the ''Office''), and the
procedures whereby it carries out its general responsibilities under the
trade agreements program.
(b) One of the primary purposes of these regulations is to inform the
public of the unit known as the Trade Policy Staff Committee, which
replaces and assumes the functions formerly performed by The Trade Staff
Committee and the Trade Information Committee. One of the functions of
the Trade Policy Staff Committee is to afford an opportunity for
interested parties to present oral and written statements concerning the
trade agreements program and related matters.
15 CFR 2001.1 Creation and location.
(a) The Office was established as an agency in the Executive Office
of the President by Executive Order 11075 of January 15, 1963 (28 FR
473), as amended by Executive Order 11106 of April 18, 1963 (28 FR
3911), and Executive Order 11113 of June 13, 1963 (28 FR 6183). The
Office subsequently was reestablished as an agency in the Executive
Office of the President by section 141 of the Trade Act of 1974 (Pub. L.
93-618, 88 Stat. 1978, hereinafter referred to as the ''Trade Act''),
and was delegated certain functions under the Trade Act by Executive
Order 11846 of March 27, 1975. 1123
(b) The Office is located at 1800 G Street NW., Washington, DC 20506.
123140 FR 14291, March 31, 1975.
15 CFR 2001.2 Organization.
(a) The Office is headed by the United States Trade Representative
(hereinafter, the ''Trade Representative'') as provided in section
141(b)(1) of the Trade Act. The Trade Representative reports directly
to the President and the Congress as described in 2001.3(a)(2) of this
part, and has the rank of Ambassador Extraordinary and Plenipotentiary.
(b) The Office also consists of two Deputy Trade Representatives
(hereinafter ''Deputy Trade Representatives'') as provided in section
141(b)(2) of the Trade Act, each of whom holds the rank of Ambassador,
and of a professional and nonprofessional staff.
(c) The Trade Policy Committee, an interagency committee composed of
the heads of specified Executive departments and offices, was
established by section 3 of Executive Order 11846 (see Appendix), as
authorized by section 242(a) of the Trade Expansion Act of 1962, as
amended,2124 under the chairmanship of the United States Trade
Representative, as provided by section 141(c)(1)(E) of the Trade Act.
Two subordinate bodies of the Trade Policy Committee, the Trade Policy
Committee Review Group, and the Trade Policy Staff Committee, provided
for in 2002.1 and 2002.2 respectively, are established by, and under
the direction and administrative control of the Trade Representative.
124276 Stat. 902, 19 U.S.C. 1872; Pub. L. 93-618, 88 Stat. 1978,
section 602(b).
15 CFR 2001.3 Functions.
(a) The Trade Representative:
(1) Except where otherwise provided by statute, Executive order, or
instructions of the President, is the chief representative of the United
States for each negotiation under the trade agreements program as
defined in section 1 of Executive Order 11846, and participates in other
negotiations which may have a direct and significant impact on trade;
(2) Reports directly to the President and the Congress, and is
responsible to the President and the Congress, with respect to the
administration of the trade agreements program as defined in section 1
of Executive Order 11846;
(3) Advises the President and the Congress with respect to tariff and
nontariff barriers to international trade, international commodity
agreements, and other matters which are related to the trade agreements
program;
(4) Performs the functions of the President under section 102 of the
Trade Act concerning notice to, and consultation with, Congress, in
connection with agreements on nontariff barriers to, and other
distortions of, trade, and prepares for the President's transmission to
Congress all proposed legislation and other documents necessary or
appropriate for the implementation of, or otherwise required in
connection with, trade agreements (except that where implementation of
an agreement on nontariff barriers to, and other distortions of trade
requires a change in a domestic law, the department or agency having the
primary interest in the administration of such domestic law prepares and
transmits to the Trade Representative any proposed legislation necessary
for such implementation);
(5) Is responsible for making reports to Congress with respect to the
matters set forth in paragraphs (a) (1) and (2) of this section and
prepares, for the President's transmission to Congress, the annual
report on the trade agreements program required by section 163(a) of the
Trade Act ;
(6) Is chairman of the Trade Policy Committee, and designates the
chairman of the Trade Policy Committee Review Group and the Trade Policy
Staff Committee, which are provided for in Part 2002 of these
regulations;
(7) Is responsible for the preparation and submission of any
Proclamation which relates wholly or primarily to the trade agreements
program;
(8) Performs the functions of the President under section 131(c) of
the Trade Act concerning requests for, and receipt of, advice from the
International Trade Commission with respect to modifications of barriers
to (and other distortions of) international trade;
(9) Performs the functions of the President under section 132 of the
Trade Act with respect to advice of departments of the Federal
government and other sources, and under section 133 of the Trade Act
with respect to certain public hearings;
(10) Performs the functions of the President under section 135 of the
Trade Act with respect to advisory committees, (including functions
under the Federal Advisory Committee Act, 86 Stat. 770, 5 U.S.C. App. 1,
which are applicable to such committees, except that of reporting
annually to Congress), and, acting through the Secretaries of Commerce,
Labor, and Agriculture, as appropriate, performs the functions of the
President in establishing and organizing general policy advisory
committees and sector advisory committees under section 135(c) of the
Trade Act;
(11) Determines ad valorem amounts and equivalents pursuant to
sections 601 (3) and (4) of the Trade Act, taking into account advice
from the International Trade Commission and in consultation with the
Trade Policy Committee;
(12) Requests, where appropriate, information from the International
Trade Commission in connection with import relief findings or actions
under sections 202(d) and 203(i) (1) and (2) of the Trade Act;
(13) Acting through the Section 301 Committee provided for in 2002.3
of this chapter as appropriate, provides opportunities for the
presentation of views under sections 301(d) and 301(e) of the Trade Act,
with respect to certain foreign restrictions, acts, practices or
policies and United States actions in response thereto;
(14) At the request of a complainant, made in accordance with 2003.3
of these regulations, under section 301(d)(2) of the Trade Act, or of an
interested person under section 301(e)(2), provides for appropriate
public hearings by the Trade Policy Staff Committee on alleged foreign
restrictions, acts, policies, or practices under section 301(d)(2), and
on any action by the United States with respect to the import treatment
of any foreign product or the treatment of any foreign service under
section 301(e)(2);
(15) Requests, where appropriate, the views of the International
Trade Commission as to the probable impact on the economy of the United
States of any action under section 301(a) of the Trade Act;
(16) Is responsible, in consultation with the Secretary of State, for
the administration of the generalized system of preferences under Title
V of the Trade Act;
(17) Is responsible for such other functions as the President may
direct.
(b)(1) Each Deputy Trade Representative shall have as his principal
function the conduct of trade negotiations under this Act, and shall
have such other functions as the Trade Representative may direct;
(2) A Deputy Trade Representative, designated by the Trade
Representative, is chairman of the Trade Policy Committee Review Group
provided for in 2002.1;
(3) A Deputy Trade Representative, designated by the Trade
Representative, is chairman of the Adjustment Assistance Coordinating
Committee established by section 281 of the Trade Act.
(40 FR 18419, Apr. 28, 1975, as amended at 40 FR 39497, Aug. 28,
1975)
15 CFR 2001.3 Pt. 2002
15 CFR 2001.3 PART 2002 -- OPERATION OF COMMITTEES
Sec.
2002.0 Trade Policy Committee.
2002.1 Trade Policy Committee Review Group.
2002.2 Trade Policy Staff Committee.
2002.3 Section 301 Committee.
2002.4 Participation by other agencies.
Authority: Pub. L. 93-618, 88 Stat. 1978; 76 Stat. 902, 19 U.S.C.
1872, as amended; E.O. 11846 of March 27, 1975, 40 FR 14291, March 31,
1975.
15 CFR 2002.0 Trade Policy Committee.
(a) The Trade Policy Committee was created by section 3 of Executive
Order 11846 of March 27, 1975 (40 FR 14291, March 31, 1975), as
authorized by section 242(a) of the Trade Expansion Act of 1962 (19
U.S.C. 1872), as amended by section 602(b) of the Trade Act.
(b) The Trade Policy Committee is composed of:
(1) The Special Representative for Trade Negotiations, Chairman;
(2) The Secretary of State;
(3) The Secretary of the Treasury;
(4) The Secretary of Defense;
(5) The Attorney General;
(6) The Secretary of the Interior;
(7) The Secretary of Agriculture;
(8) The Secretary of Commerce;
(9) The Secretary of Labor;
(10) The Assistant to the President for Economic Affairs;
(11) The Executive Director of the Council on International Economic
Policy.
In addition, the Committee may invite the participation in its
activities of any agency or office not listed above when matters of
interest to such agency or office are under consideration.
(c) The Trade Policy Committee meets at such times and with respect
to such functions as the President or the Chairman of the Committee
directs. It has the functions conferred by the Trade Expansion Act of
1962, as amended, upon the interagency organization referred to in
section 242 thereof, as amended, the functions delegated to it by the
provisions of Executive Order 11846 (see Appendix), and such other
functions as the President or the chairman may from time to time direct.
Recommendations and advice of the Committee are submitted to the
President by the chairman.
(40 FR 18420, Apr. 28, 1975)
15 CFR 2002.1 Trade Policy Committee Review Group.
(a) The Trade Executive Committee, established by regulations
appearing by 36 FR 23620, December 11, 1971 (15 CFR 2002.1), is
abolished and there is hereby established as a subordinate body of the
Trade Policy Committee the Trade Policy Committee Review Group
(hereinafter referred to as the ''Review Group''). The Review Group
consists of a Deputy Trade Representative, designated by the Trade
Representative, as chairman, and of high level officials designated from
their respective agencies or offices by the Secretaries of Agriculture,
Commerce, Defense, Interior, Labor, State and Treasury, and the
Executive Director of the Council on International Economic Policy. The
Special Representative or the Deputy Special Representative, as
appropriate, and each head of an agency or office, may designate from
his respective agency or office high level officials to serve as
alternate members of the Review Group in the event the regular member is
unable to attend any meeting of the Review Group.
(b) The Review Group performs the following functions unless such
functions are assigned to a different body by the Special Representative
or his designee:
(1) Coordinates interagency activities concerning the trade
agreements program and related matters;
(2) Recommends policies and actions, and transmits appropriate
materials, to the Special Representative concerning the trade agreements
program and related matters, or, when appropriate, approves such
policies and actions; and
(3) As appropriate, reviews and approves recommendations of the Trade
Policy Staff Committee on policies and actions concerning any proposed
trade agreements, the trade agreements program, and related matters.
(4) (Reserved)
(5) Performs such other functions as the Special Representative or a
Deputy Special Representative may from time to time direct.
(40 FR 18420, Apr. 28, 1975, as amended at 40 FR 39497, Aug. 28,
1975; 40 FR 60042, Dec. 31, 1975; 42 FR 55611, Oct. 18, 1977)
15 CFR 2002.2 Trade Policy Staff Committee.
(a) The Trade Staff Committee and the Trade Information Committee,
established by regulations appearing at 36 FR 23620, December 11, 1971
(15 CFR 2002.2, and 2002.3, respectively) are abolished and there is
hereby established as a subordinate body of the Trade Policy Committee
and the Trade Policy Review Group the Trade Policy Staff Committee
(hereinafter referred to as ''the Committee''). The Committee consists
of a chairman designated by the Special Representative from his Office,
and of senior trade policy staff officials designated from their
respective agencies or offices by the Secretaries of Agriculture,
Commerce, Defense, Interior, Labor, State, and Treasury, by the
Executive Director of the Council on International Economic Policy,'' so
that the sentence reads: The Committee consists of a chairman
designated by the Special Representative from his Office, and of senior
trade policy staff officials designated from their respective agencies
or offices by the Secretaries of Agriculture, Commerce, Defense,
Interior, Labor, State, and Treasury, by the Executive Director of the
Council on International Economic Policy, and by the Chairman of the
International Trade Commission. Each Secretary or head of an agency or
office and the Chairman of the Commission may designate from his
respective agency officials to serve as alternate members of the
Committee in the event the regular member is unable to attend any
meeting of the Committee. The Special Representative may from time to
time designate officials from his agency other than the chairman, to
serve as acting chairmen of the Committee. The representative of the
International Trade Commission shall be a nonvoting member of the
Committee.
(b) The Committee performs the following functions unless such
functions are assigned to a different body by the Special Representative
or his designee:
(1) Monitors the trade agreements programs, reviews the information
received pursuant to paragraphs (b) (2) through (8) of this section, and
transmits summaries of such information together with recommendations of
action to the Special Representative, or through him to the Trade Policy
Review Group or the Trade Policy Committee, concerning the trade
agreements program and related matters, or when appropriate approves
such policies and actions.
(2) Obtains information and advice from the Departments of
Agriculture, Commerce, Defense, Interior, Labor, State and the Treasury,
from the Office of the Special Representative for Trade Negotiations,
and from such other sources as the Special Representative, a Deputy
Special Representative, or the Chairman of the Committee may deem
appropriate concerning any proposed trade agreement and other aspects of
the trade agreements program and related matters, and concerning the
Generalized System of Preferences in accordance with Title V of the
Trade Act;
(3) Provides an opportunity, by the holding of public hearing and by
such other means as the Special Representative, the Deputy Special
Representative or the Chairman of the Committee deems appropriate, for
interested persons to present their views concerning any article on a
list published pursuant to section 131 of the Trade Act, any article
which should be so listed, any concession which should be sought by the
United States, or any other matter relevant to a proposed trade
agreement;
(4) Provides an opportunity, by the holding of public hearings and by
such other means as the Special Representative, a Deputy Special
Representative, or the Chairman of the Committee deems appropriate, for
any interested party to present by oral or written statement his views
concerning articles being considered for designation as eligible
articles for purposes of the Generalized System of Preferences;
(5) (Reserved)
(6) Provides an opportunity where deemed appropriate by the Special
Representative, the Deputy Special Representative, or the Chairman, by
the holding of public hearings upon request by an interested party, and
by such other means as the Special Representative, the Deputy Special
Representative or the Chairman deems appropriate, for any interested
party to present an oral or written statement concerning any other
aspect of the trade agreements program and related matters;
(7) Reviews all materials required to be furnished by the
International Trade Commission to the President through the Special
Representative, and transmits such materials, together, where
appropriate with recommendations of action with respect thereto, to the
Special Representative or a Deputy Special Representative.
(8) Reviews reports of hearings and reviews conducted by the section
301 Committee provided for in 2002.3 and recommendations resulting
therefrom, and makes recommendations to the Special Representative with
respect thereto.
(9) When circumstances warrant, terminates section 301 reviews
provided for in 2002.3
(10) Receives and reviews requests pertaining to the duty-free
treatment accorded to articles under the Generalized System of
Preferences, and handles such requests and reviews in accordance with
Part 2007 of these regulations;
(11) Issues regulations governing the conduct of its public hearings
and the performance of such of its other functions as it deems
necessary;
(12) Performs such other functions as the Special Representative or
the Deputy Special Representative may from time to time direct.
(40 FR 18420, Apr. 28, 1975, as amended at 40 FR 39497, Aug. 28,
1975; 40 FR 60042, Dec. 31, 1975; 42 FR 55611, Oct, 18, 1977)
15 CFR 2002.3 Section 301 Committee.
(a) There is hereby established, as a subordinate body of the Trade
Policy Staff Committee, the Section 301 Committee. The Chairman of the
Section 301 Committee shall be designated by the Deputy Special
Representative from the Office of the Special Representative for Trade
Negotiations. The Committee shall consist of the Chairman and, with
respect to each complaint, such members as may be designated by agencies
which have an interest in the issues raised by the particular complaint
and whose participation is invited by the Chairman of the Committee.
(b) The Section 301 Committee performs the following functions unless
such functions are assigned to a different body by the Special
Representative, or his designee:
(1) Reviews complaints received pursuant to section 301 of the Trade
Act of 1974.
(2) Provides an opportunity by the holding of public hearings upon
request by a complainant or an interested party, as appropriate, and by
such other means as the Special Representative, a Deputy Special
Representative or the Chairman of the section 301 Committee deems
appropriate, for any interested party to present his views to the
section 301 Committee concerning foreign restrictions, acts, policies,
and practices affecting U.S. commerce, and United States actions in
response thereto, as provided for in section 301 of the Trade Act (Pub.
L. 93-618, 88 Stat. 1978).
(3) Reports to the Trade Policy Staff Committee the results of
reviews and hearings conducted with respect to complaints received
pursuant to section 301 of the Trade Act.
(4) On the basis of its review of petitions filed under section 301
and of the views received through hearings or otherwise on such
petitions, makes recommendations to the TPSC for review by that
committee.
(40 FR 39497, Aug. 28, 1975, as amended at 42 FR 55611, Oct 18, 1977)
15 CFR 2002.4 Participation by other agencies.
The chairman of the Trade Policy Committee, the Trade Policy
Committee Review Group, the Section 301 Committee, and the Trade Policy
Staff Committee may invite the participation in the activities of their
committees of any other agencies when matters of interest to such
agencies are under consideration.
(40 FR 18420, Apr. 28, 1975. Redesignated and amended at 40 FR 39497,
Aug. 28, 1975)
15 CFR 2002.4 Pt. 2003
15 CFR 2002.4 PART 2003 -- REGULATIONS OF TRADE POLICY STAFF COMMITTEE
Sec.
2003.0 Office, mailing address, telephone number, and hours.
2003.1 Notice of public hearings.
2003.2 Testimony and submission of written briefs.
2003.3 (Reserved)
2003.4 Presentation of oral testimony at public hearings.
2003.5 Information open to public inspection.
2003.6 Information exempt from public inspection.
Authority: Pub. L. 93-618, 88 Stat. 1978; 76 Stat. 902, 19 U.S.C.
1872, as amended; E.O. 11846 of March 27, 1975, 40 FR 14291, March 31,
1975.
Source: 40 FR 18421, Apr. 28, 1975, unless otherwise noted.
15 CFR 2003.0 Office, mailing address, telephone number, and hours.
(a) The office of the Committee is at Room 729, 1800 G Street NW.,
Washington, DC 20506.
(b) All communications to the Committee should be addressed to the
''Secretary, Trade Policy Staff Committee, Office of the Special
Representative for Trade Negotiations, Room 729, 1800 G Street, NW.,
Washington, DC 20506.''
(c) The telephone number of the office of the Committee is (202)
395-3395.
(d) The regular hours of the office of the Committee are from 9 a.m.
to 5:30 p.m. on each business day, Monday through Friday.
15 CFR 2003.1 Notice of public hearings.
The Committee shall publish in the Federal Register a notice of a
proposed public hearing, the subject matter of the proposed public
hearing, the period during which written briefs may be submitted, the
period during which requests may be submitted to present oral testimony,
and the time and place of the proposed public hearing, in the following
instances:
(a) Upon publication of lists of articles by the President under
section 131(a), or sections 503(a) and 131(a), of the Trade Act as a
result of which public hearings are required to be held by section 133
of the Trade Act with respect to any matter relevant to a proposed trade
agreement, or with respect to any matter relevant to the granting of
generalized tariff preferences for the listed articles;
(b) Whenever the Special Representative or the Deputy Special
Representative determines that public hearings in connection with the
review of a request submitted pursuant to Part 2007 of these
regulations, pertaining to the duty-free treatment accorded to articles
under the GSP, are in the public interest.
(c) Upon instructions of the Special Representative.
(40 FR 18421, Apr. 28, 1975, as amended at 40 FR 39498, Aug. 28,
1975; 40 FR 60042, Dec. 31, 1975)
15 CFR 2003.2 Testimony and submission of written briefs.
(a) Participation by an interested party in a public hearing
announced under 2003.1 shall require the submission of a written brief
before the close of the period announced, in the public notice for its
submission. Such brief may be, but need not be, supplemented by the
presentation of oral testimony in accordance with 2003.4.
(b) A written brief by an interested party concerning any aspect of
the trade agreements program or any related matter not subject to
paragraph (a) of this section, and submitted pursuant to a public notice
shall be submitted before the close of the period announced in the
public notice for its submission.
(c) A written brief shall state clearly the position taken and shall
describe with particularity the evidence supporting such position. It
shall be submitted in not less than twenty (20) copies which shall be
legibly typed, printed, or duplicated.
(d) In order to assure each party an opportunity to contest the
information provided by other interested parties, the Committee will
entertain rebuttal briefs filed by any party within a time limit
specified by the Committee. Rebuttal briefs shall conform, in form and
number, to the provisions of paragraph (c) of this section. Rebuttal
briefs should be strictly limited to demonstrating errors of fact or
analysis not pointed out in the briefs or hearings and should be as
concise as possible.
(e) A written brief by an interested party concerning any aspect of
the Trade Agreements Program or any related matter not subject to
paragraph (a) or (b) of this section may be submitted at any time.
(f) The requirements in paragraphs (a) through (d) of this section
may be waived by the Special Representative, the Deputy Special
Representative, or the Chairman of the Committee for reasons of equity
and the public interest.
(40 FR 18421, Apr. 28, 1975, as amended at 40 FR 39498, Aug. 28,
1975)
2003.3 (Reserved)
15 CFR 2003.4 Presentation of oral testimony at public hearings.
(a) A request by an interested party to present oral testimony at a
public hearing shall be submitted in writing before the close of the
period announced in the public notice for its submission, and shall
state briefly the interest of the applicant and the position to be taken
by the applicant. Such request will be granted only if a written brief
has been prepared and submitted in accordance with 2003.2. The
requirements of this subpart may be waived by the Special
Representative, the Deputy Special Representative or the Chairman of the
Committee for reasons of equity and the public interest.
(b) After receipt and consideration of a request to present oral
testimony at a public hearing, the Secretary of the Committee shall
notify the applicant whether the request conforms to the requirements of
paragraph (a) of this section, and if so, the time and place for the
hearing and for his appearance, and the amount of time allotted for his
oral testimony, and if not, will give the reasons why the request does
not conform to the requirements.
(c) In presenting testimony, the interested party should supplement
the information contained in the written brief, and should be prepared
to answer questions relating to such information.
(d) A stenographic record shall be made of every public hearing.
(40 FR 18421, Apr. 28, 1975, as amended at 40 FR 39498, Aug. 28,
1975)
15 CFR 2003.5 Information open to public inspection.
(a) With the exception of information subject to 2003.6, an
interested party may, upon request, inspect at the office of the
Committee:
(1) Any written request, brief, or similar submission of information;
(2) Any stenographic record of a public hearing;
(3) Other public written information concerning the trade agreements
program and related matters.
15 CFR 2003.6 Information exempt from public inspection.
(a) The Committee shall exempt from public inspection business
information submitted by an interested party if the Committee determines
that such information concerns or relates to trade secrets and
commercial and financial information the disclosure of which is not
authorized by the interested party furnishing such information and is
not required by law.
(b) A party requesting that the Committee exempt from public
inspection business information submitted in writing shall clearly mark
each page ''Business Confidential'' at the top.
(c) The Committee may deny a request that it exempt from public
inspection any particular business information if it determines that
such information is not entitled to exemption under paragraph (a) of
this section. In the event of such denial, the party submitting the
particular business information will be notified of the reasons for the
denial and will be permitted to withdraw his submission.
15 CFR 2003.6 Pt. 2004
15 CFR 2003.6 PART 2004 -- FREEDOM OF INFORMATION POLICIES AND
PROCEDURES
Sec.
2004.1 General.
2004.2 Availability of records.
2004.3 (Reserved)
2004.4 Records which may be exempt from disclosure.
2004.5 Classified records and information from other agencies.
2004.6 Release or denial of request for records.
2004.7 Appeals.
2004.8 Time limits.
2004.9 Fees schedule.
2004.10 Fee payments.
2004.11 Current index.
2004.12 Annual report to Congress.
Authority: Pub. L. 93-618, 88 Stat. 1978, (5 U.S.C. 552), as
amended by Pub. L. 93-502; (19 U.S.C. 2171).
Source: 40 FR 30934, July 24, 1975, unless otherwise noted.
15 CFR 2004.1 General.
This information is furnished for the guidance of the public and in
compliance with the requirements of section 552 of Title 5, U.S.C. as
amended.
15 CFR 2004.2 Availability of records.
(a) All identifiable records of the Office of the Special
Representative shall be made available to the public upon compliance
with the procedures established in this part, except to the extent that
a determination is made to withhold a record subject to exemption under
5 U.S.C. 552(b).
(b) All requests for records must be in writing and shall be
addressed to Freedom of Information Officer, Office of the Special
Representative for Trade Negotiations, 1800 G Street, NW., Washington,
DC 20506. Requests should reasonably identify the particular record or
records sought. Such a description, if possible, should include date,
format, subject matter, office originating or receiving the record, and
the name of any person to whom the record is known to relate.
2004.3 (Reserved)
15 CFR 2004.4 Records which may be exempt from disclosure.
(a) The following categories of records maintained by the Office of
the STR may be exempted from disclosure:
(1) Records specifically authorized under criteria established by an
executive order to be kept secret in the interest of national defense or
foreign policy and are in fact properly classified pursuant to such
executive order.
(2) Records related solely to the internal personnel rules and
practices of the agency.
(3) Records specifically exempted from disclosure by statute,
including but not limited to information relating to trade negotiations
exempted under trade negotiations exempted under Pub. L. 93-618,
section 135(g)(1) (A) and B and section 135(g)(2).
(4) Records of trade secrets and commercial or financial information
obtained from a person and privileged or confidential.
(5) Records which are inter-agency or intra-agency memorandums,
letters, telegrams, or airgrams which would not be available by law to a
party other than an agency in litigation with the agency.
(6) Records such as personnel and medical files and similar files the
public disclosure of which would constitute a clearly unwarranted
invasion of personal privacy.
(7) Such other records that fall within exceptions noted in 5 U.S.C.
552(b) (7), (8) and (9).
(b) Any reasonably segregable nonexempt portion of a record shall be
provided to any person requesting such record after deletion of the
portions which are exempt under paragraph (a) of this section. Normally
a portion of a record shall be considered reasonably segregable when
segregation can produce an intelligible record which is not distorted
out of context and does not contradict the record being withheld.
15 CFR 2004.5 Classified records and information from other agencies.
(a) A Classification Review Committee is hereby established within
STR to make determinations on the applicability of the exemption for
classified documents. The Committee will be chaired by a staff official
designated by the Special Representative and will consist of the
Chairman and 2 STR Officials designated by him who have authority to
classify and declassify documents.
(b) The applicability of the exemption for classified information
requires a determination that the record in question is specifically
authorized under the criteria established by Executive Order 11652 to be
kept classified and is in fact properly classified pursuant to that
order. This determination shall be made whenever possible before the
initial denial under 204.4(a)(1). It must in any case be made prior to
the decision of an appeal under 2004.7. No denial should be based
solely on the existence of a classification marking on the record, and
there shall be a substantive review of the validity of the
classification to the maximum extent feasible within the time limits for
a denial under 2004.4.
(c) When a request for a STR record encompasses classified
information originated or received from another department or agency,
the request for that information shall be referred to the originator or
other source. The person requesting the record will be advised of the
date and the addressee of the referral.
(d) The Classification Review Committee will, at the request of
another agency, make recommendations on the release of material
concerning ''national defense or foreign policy'' originally classified
by another agency but which is of significant subject-matter interest to
STR.
15 CFR 2004.6 Release or denial of request for records.
Written requests for inspection or copying of records shall be
granted or denied only by the Freedom of Information Officer or his
designee. Responses to written requests shall be in writing, shall
specify the reasons for any denial therefore, and shall advise the
person requesting of the right to appeal any denial to the Freedom of
Information Appeals Committee.
15 CFR 2004.7 Appeals.
(a) A Freedom of Information Appeals Committee is hereby established,
consisting of the Special Representative or his designee as chairman,
and 3 STR staff officials designated by the Special Representative, none
of whom were members of the Classification Committee which originally
made the determination on the requested information.
(b) Review of an initial denial under 2004.6 may be requested by the
person who submitted the original request for a record. The review
(hereinafter the appeal) must be requested in writing within 30 days of
the date that the person requesting the record is informed either:
(1) That the request is denied completely, or
(2) That all records which are being furnished in response to his
request have been released and he has been so informed.
(c) If the appeal is granted, the person making the appeal shall be
immediately notified and copies of the releaseable documents shall be
made available promptly thereafter upon receipt of appropriate fees as
set forth in 2004.9. If the appeal is denied in whole or part, the
person making the request shall be immediately notified of the decision
and of the provisions of judicial review of STR's denial of the request.
(d) In the event a determination is not issued within the appropriate
time limit and the person making the request chooses to initiate a court
action against STR, the determination process shall continue and the
Freedom of Information Appeals Committee may review any initial denial
of the requested record.
15 CFR 2004.8 Time limits.
(a) An initial response under 2004.6 shall be made within 10 days
(exempting Saturdays, Sundays, and legal public holidays) after the
receipt of a request for a record under this Part by the Freedom of
Information Officer or his designee. An appeal under 2004.7 shall be
decided within 20 days (excepting Saturdays, Sundays and legal public
holidays) after the receipt of such an appeal by the Appeals Committee.
(b) The time limits for initial decision and for an appeal decision
begins on the date the request or appeal is actually received by STR.
If requests or appeals not properly marked ''Freedom of Information
Request'' or ''Freedom of Information Act Appeal'' on the request or
appeal are inadvertently delayed in reaching the Freedom of Information
Officer or the Appeals Committee they will not be deemed received by STR
until actually received by the Freedom of Information Officer or Appeals
Committee. In such event, the person making the request or appeal will
be furnished a notice of the effective date of receipt.
(c) In unusual circumstances as specified in this paragraph, the
Freedom of Information Officer or his designee may extend the time
limits in paragraph (a) of this section by written notice to the person
requesting a record under this part, which notice shall set forth the
reasons for such extension and the date on which a determination or
appeal decision is expected to be dispatched. No such notice shall
specify a date which would result in an extension of either the initial
determination period, or the appeal period, or both, for more than 10
working days. As used in this paragraph ''unusual circumstances''
means, but only to the extent reasonably necessary to the proper
processing of the particular request:
(1) The need to search for and collect the requested records from
overseas posts or other establishments that are separate from the office
processing the request;
(2) The need to search for, collect, and appropriately examine a
voluminous amount of separate and distinct records which are demanded in
a single request; or
(3) The need for consultations, which shall be conducted with all
practicable speed, with another agency having a substantial interest in
the determination of the request, or among two or more components of the
agency having substantial subject matter interest therein.
(d) Where the responsible official believes that further
consideration of a request may result in the release of additional
records or portions thereof, the expiration of the time period allocated
by the Freedom of Information Officer or his designee does not require
the termination of that consideration, and it should be continued with a
view to maximum disclosure of requested records within a reasonable
period of time.
15 CFR 2004.9 Fees schedule.
(a) Fees schedule for the search and reproduction of information
available under the Freedom of Information Act (5 U.S.C. 552), as
amended:
(1) Search for records. Five dollars per hour when the search is
conducted by a clerical employee. Eight dollars per hour when the
search is conducted by a professional employee. No charge for searches
of less than one hour.
(2) Duplication of records. Records will be duplicated at a rate of
$.15 per page for all copying of 4 pages or more.
(3) Other. When no specific fee has been established for a service,
or the request for a service does not fall under one of the above
categories due to the amount or type thereof, the Freedom of Information
Act Officer is authorized to establish an appropriate fee based on
''direct costs'' as provided in the Freedom of Information Act.
Examples of services covered by this provision include searches
involving computer time or special travel, transportation, or
communications costs.
(b) Search costs are due and payable even if the record which was
requested cannot be located after all reasonable efforts have been made,
or if the Freedom of Information Officer or his designee or the Freedom
of Information Appeals Committee determines that a record which has been
requested, but which is exempt from disclosure under the Act, is to be
withheld. Processing of a request for records will not be undertaken
until the person requesting a record has paid in full for search and
duplication charges for any previous document request under the Act.
(c) Where it is anticipated that the fees chargeable under this
section will amount to more than $25, and the person requesting the
record has not indicated in advance his willingness to pay fees as high
as are anticipated, the person so requesting shall be promptly notified
of the amount of the anticipated fee or such portion thereof as can
readily be estimated. In instances where the estimated fees will
greatly exceed $25, an advance deposit may be required. The notice or
request for an advance deposit shall extend an offer to the person
requesting the record to consult with the Administrative Officer of STR
in an attempt to reformulate the request in a manner which will reduce
the fees and meet the needs of the person requesting the record.
Dispatch of such a notice or request shall suspend the running of the
period for response by the Office of the STR until a reply is received
from the person requesting the record.
(d) Fees must be paid in full prior to issuance of requested copies.
15 CFR 2004.10 Fee payments.
(a) Remittances shall be in the form either of a personal check or
bank draft drawn on a bank in the United States, or a postal money
order. Remittances shall be made payable to the Treasurer of the United
States and mailed to ''the Administrative Officer'', STR, 1800 G St.
NW., Washington, DC 20506.
(b) A receipt for fees paid will be given only upon request. Refund
of fees paid for services actually rendered will not be made.
(c) The STR Administrative Officer, may in accordance with the
Freedom of Information Act, as amended, waive all or part of any fee
provided for in this section which it is deemed to be in either the
interest of STR or in the public interest.
15 CFR 2004.11 Current index.
The Office of the STR maintains and makes available for public
inspection and copying a current index providing identifying information
for the public as to any matter which is issued, adopted, or promulgated
after July 4, 1967, and which is retained as a record and is required by
2004.2 to be made available or published. Publication of an index is
deemed both unnecessary and impractical. However, copies of the index
are available upon request for a fee of the direct cost of duplication.
15 CFR 2004.12 Annual report to Congress.
(a) On or before March 1st of each calendar year, a report of STR's
activities over the preceding calendar year relating to the Freedom of
Information Act will be submitted to the Speaker of the House of
Representatives and the President of the Senate.
(b) The above report will include:
(1) The number of determinations made by STR not to comply with
requests for records made to it under the Act and the reasons for each
such determination;
(2) The number of appeals made by persons under the Act, the results
of such appeals, and the reasons for the action by STR upon each appeal
that results in a denial of information;
(3) The names and titles or positions of each person responsible for
the denial of records requested under the Act, and the number of
instances of participation for each;
(4) The results of each (Civil Service Commission) proceeding
conducted pursuant to the Act, including a report of the disciplinary
action taken against the officer or employee who was primarily
responsible for improperly withholding records or an explanation of why
disciplinary action was not taken;
(5) A copy of every rule made by STR regarding the Act;
(6) A copy of the fee schedule and the total amount of fees collected
by STR for making records available under the Act; and
(7) Such other information as indicates efforts by STR to administer
fully the Act. (This should include, to the extent possible, data on
the costs to STR of administering the Act.)
(c) STR, based in part on the information compiled for its annual
report to Congress, will provide upon request assistance to the
Department of Justice in the preparation of its annual report (also due
each March 1st) to Congress concerning judicial cases arising under the
provisions of the Act.
15 CFR 2004.12 Pt. 2005
15 CFR 2004.12 PART 2005 -- SAFEGUARDING INDIVIDUAL PRIVACY
Sec.
2005.0 Purpose and scope.
2005.1 Rules for determining if an individual is the subject of a
record.
2005.2 Requests for access.
2005.3 Access to the accounting of disclosures from records.
2005.4 Requests for copies of records.
2005.5 Requests to amend records.
2005.6 Request for review.
2005.7 Schedule of fees.
Authority: Pub. L. 93-579, 88 Stat. 1896 (5 U.S.C. 552a(f)).
Source: 40 FR 48331, Oct. 14, 1975, unless otherwise noted.
15 CFR 2005.0 Purpose and scope.
The purpose of these regulations is to provide certain safeguards for
an individual against the invasion of his or her personal privacy by the
Office of the Special Representative for Trade Negotiations (hereinafter
frequently referred to as ''STR''). These regulations are promulgated
pursuant to the requirements for all Federal Agencies contained in 5
U.S.C. 552a(f).
15 CFR 2005.1 Rules for determining if an individual is the subject of
a record.
(a) Individuals desiring to know if a specific system of records
maintained by STR contains a record pertaining to them should address
their inquiries to the Administrative Officer, Office of the Special
Representative for Trade Negotiations, Washington, DC 20506. The
written inquiry should contain a specific reference to the system of
records maintained by the STR listed in the STR Notice of Systems of
Records or it should describe the type of record in sufficient detail to
reasonably identify the system of records. Notice of STR systems of
records subject to the Privacy Act will be published in the Federal
Register and copies of the notices will be available upon request to the
Administrative Officer when so published. A compilation of such notices
will also be made and published by the Office of Federal Register, in
accordance with section 5 U.S.C. 552a(f).
(b) At a minimum, the request should also contain sufficient
identifying information to allow STR to determine if there is a record
pertaining to the individual making the request in a particular system
of records. In instances when the identification is insufficient to
insure disclosure to the individual to whom the information pertains in
view of the sensitivity of the information, STR reserves the right to
solicit from the person requesting access to a record additional
identifying information.
(c) Ordinarily the person requesting will be informed whether the
named system of records contains a record pertaining to such person
within 10 days of such a request (excluding Saturdays, Sundays, and
legal Federal holidays). Such a response will also contain or reference
the procedures which must be followed by the individual making the
request in order to gain access to the record.
(d) Whenever a response cannot be made within the 10 days, the
Administrative Officer will inform the person making the request the
reasons for the delay and the date of which a response may be
anticipated.
15 CFR 2005.2 Requests for access.
(a) Requirement for written requests. Individuals desiring to gain
access to a record pertaining to them in a system of records maintained
by STR must submit their request in writing in accordance with the
procedures set forth in paragraph (b) of this section. Individuals who
are employed by the STR may make their request on a regularly scheduled
workday (Monday through Friday, excluding legal Federal holidays)
between the hours of 9 am and 5:30 pm. Such requests for access by
individuals employed by STR need not be made in writing.
(b) Procedures -- (1) Content of the request. The request for access
to a record in a system of records shall be addressed to the
Administrative Officer at the address cited above, and shall name the
system of records or contain a description (as concise as possible) of
such system of records. The request should state that the request is
pursuant to the Privacy Act of 1974. In the absence of such a
statement, if the request is for a record pertaining to the person
requesting access which is maintained by STR in a system of records, the
request will be presumed to be made under the Privacy Act of 1974. The
request should contain necessary information to verify the identity of
the person requesting access (see paragraph (b)(2)(vi) of this section).
In addition, such person should include any other information which may
assist in the rapid identification of the record for which access is
being requested (e.g. maiden name, dates of employment, etc.) as well as
any other identifying information contained in and required by the STR
Notice of Systems of Records.
(i) If the request for access follows a prior request under 2005.1,
the same identifying information need not be included in the request for
access if a reference is made to that prior correspondence or a copy of
the STR response to that request is attached. If the individual
specifically desires a copy of the record, the request should so specify
under 2005.4.
(2) STR action on request. A request for access will ordinarily be
answered within 10 days, except when the Administrative Officer
determines otherwise, in which case the person making the request will
be informed of the reasons for the delay and an estimated date by which
the request will be answered. When the request can be answered within
10 days, it shall include the following:
(i) A statement that there is a record as request or a statement that
there is not a record in the systems of records maintained by STR;
(ii) A statement as to whether access will be granted only by
providing a copy of the record through the mail; or the address of the
location and the date and time at which the record may be examined. In
the event the person requesting access is unable to meet the specified
date and time, alternative arrangements may be made with the official
specified in paragraph (b)(1) of this section.
(iii) A statement, when appropriate, that examination in person will
be the sole means of granting access only when the Administrative
Officer has determined that it would not unduly impede the right of
access of the person making the request.
(iv) The amount of fees charged, if any (see 2005.6 and 2005.7).
(Fees are applicable only to requests for copies);
(v) The name, title, and telephone number of the STR official having
operational control over the record; and
(vi) The documentation required by STR to verify the identity of the
person making the request. At a minimum, STR verification standards
include the following:
(A) Current or former STR Employees. Current or former STR employees
requesting access to a record pertaining to them in a system of records
maintained by STR may, in addition to the other requirements of this
section, and at the sole discretion of the official having operational
control over the record, have his or her identity verified by visual
observation. If the current or former STR employee cannot be so
identified by the official having operational control over the records,
identification documentation will be required. Employee identification
cards, annuitant identification, driver licenses, or the ''employee
copy'' of any official personnel document in the record are examples of
acceptable identification validation.
(B) Other than current or former STR employees. Individuals other
than current or former STR employees requesting access to a record
pertaining to them in a system of records maintained by STR must produce
identification documentation of the type described in paragraph
(b)(2)(vi)(A) of this section, prior to being granted access. The
extent of the identification documentation required will depend on the
type of record for which access is requested. In most cases,
identification verification will be accomplished by the presentation of
two forms of identification. Any additional requirements will be
specified in the system notices published pursuant to 5 U.S.C.
552a(e)(4).
(C) Access granted by mail. For records to be made accessible by
mail, the Administrative Officer shall, to the extent possible,
establish identity by a comparison of signatures in situations where the
data in the record is not so sensitive that unauthorized access could
cause harm or embarrassment to the individual to whom they pertain. No
identification documentation will be required for the disclosure to the
person making the request of information required to be made available
to the public by 5 U.S.C. 552. When, in the opinion of the
Administrative Officer the granting of access through the mail could
reasonably be expected to result in harm or embarrassment if disclosed
to a person other than the individual to whom the record pertains, a
notarized statement of identity or some similar assurance of identity
will be required.
(D) Unavailability of identification documentation. If an individual
is unable to produce adequate identification documentation the
individual will be required to sign a statement asserting identity and
acknowledging that knowingly or willfully seeking or obtaining access to
records about another person under false pretenses may result in a fine
of up to $5,000. In addition, depending upon the sensitivity of the
records to which access is sought, the official having operational
control over the records may require such further reasonable assurances
as may be considered appropriate; e.g., statements of other individuals
who can attest to the identity of the person making the request.
(E) Access by the parent of a minor, or by a legal guardian. A
parent of a minor, upon presenting suitable personal identification, may
act on behalf of the minor to gain access to any record pertaining to
the minor maintained by STR in a system of records. A legal guardian
may similarly act on behalf of an individual declared to be incompetent
due to physical or mental incapacity or age by a court of competent
jurisdiction, upon the presentation of the documents authorizing the
legal guardian to so act, and upon suitable personal identification of
the guardian.
(F) Granting access when accompanied by another individual. When an
individual requesting access to his or her record in a system of records
maintained by STR wishes to be accompanied by another individual during
the course of the examination of the record, the individual making the
request shall submit to the official having operational control of the
record, a signed statement authorizing that person access to the record.
(G) Denial of access for inadequate identification documentation. If
the official having operation control over the records in a system of
records maintained by STR determines that an individual seeking access
has not provided sufficient identification documentation to permit
access, the official shall consult with the Administrative officer prior
to finally denying the individual access.
(vii) Medical records. The records in a system of records which are
medical records shall be disclosed to the individual to whom they
pertain in such manner and following such procedures as the
Administrative Officer shall direct. When STR in consultation with a
physician, determines that the disclosure of medical information could
have an adverse effect upon the individual to whom it pertains, STR may
transmit such information to a physician named by the individual.
(viii) Exceptions. Nothing in this section shall be construed to
entitle an individual the right to access to any information compiled in
reasonable anticipation of a civil action or proceedings.
15 CFR 2005.3 Access to the accounting of disclosures from records.
Rules governing the granting of access to the accounting of
disclosures are the same as those for granting access to the records
(including verification of identity) outlined in 2005.2.
15 CFR 2005.4 Requests for copies of records.
Rules governing requests for copies of records are the same as those
for the granting of access to the records (including verification of
identity) outlined in 2005.2. (See also 2005.7 for rules regarding
fees.)
15 CFR 2005.5 Requests to amend records.
(a) Requirement for written requests. Individuals desiring to amend
a record that pertains to them in a system of records maintained by STR
must submit their request in writing in accordance with the procedures
set forth herein unless this requirement is waived by the official
having responsibility for the system of records. Records not subject to
the Privacy Act of 1974 will not be amended in accordance with these
provisions. However, individuals who believe that such records are
inaccurate may bring this to the attention of STR.
(b) Procedures. (1) (i) The request to amend a record in a system of
records shall be addressed to the Administrative Officer. Included in
the request shall be the name of the system and a brief description of
the record proposed for amendment. In the event the request to amend
the record is the result of the individual's having gained access to the
record in accordance with the provisions concerning access to records as
set forth above, copies of previous correspondence between the
individual and STR will serve in lieu of a separate description of the
record.
(ii) When the individual's identity has been previously verified
pursuant to 2005.2(b)(2)(vi) herein, further verification of identity
is not required as long as the communication does not suggest that a
need for verification has reappeared. If the individual's identity has
not been previously verified, STR may require identification validation
as described in 2005.2(b)(2)(vi). Individuals desiring assistance in
the preparation of a request to amend a record should contact the
Administrative Officer at the address cited above.
(iii) The exact portion of the record the individual seeks to have
amended should be clearly indicated. If possible, the proposed
alternative language should also be set forth, or at a minimum, the
facts which the individual believes are not accurate, relevant, timely,
or complete should be set forth with such particularity as to permit STR
not only to understand the individual's basis for the request, but also
to make an appropriate amendment to the record.
(iv) The request must also set forth the reasons why the individual
believes his record is not accurate, relevant, timely, or complete. In
order to avoid the retention by STR of personal information merely to
permit verification of records, the burden of persuading STR to amend a
record will be upon the individual. The individual must furnish
sufficient facts to persuade the official in charge of the system of the
inaccuracy, irrelevancy, untimeliness, or incompleteness of the record.
(2) STR action on the request. To the extent possible, a decision
upon a request to amend a record will be made within 10 days, excluding
Saturdays, Sundays, and legal Federal holidays. In the event a decision
cannot be made within this time frame, the individual making the request
will be informed within 10 days of the expected date for a decision.
The decision upon a request for amendment will include the following:
(i) The decision of the STR whether to grant in whole, or deny any
part of the request to amend the record.
(ii) The reasons for the determination for any portion of the request
which is denied.
(iii) The name and address of the official with whom an appeal of the
denial may be lodged.
(iv) The name and address of the official designated to assist, as
necessary, and upon request of, the individual making the request in the
preparation of the appeal.
(v) A description of the review of the appeal within STR (see
2005.6).
(vi) A description of any other procedures which may be required of
the individual in order to process the appeal.
15 CFR 2005.6 Request for review.
(a) Individuals wishing to request a review of the decision by STR
with regard to an initial request to amend a record in accordance with
the provisions of 2005.5, should submit the request for review in
writing and, to the extent possible, include the information specified
in 2005.5(a). Individuals desiring assistance in the preparation of
their request for review should contact the Administrative Officer at
the address provided herein.
(b) The request for review should contain a brief description of the
record involved or in lieu thereof, copies of the correspondence from
STR in which the request to amend was denied and also the reasons why
the individual believes that the disputed information should be amended.
The request for review should make reference to the information
furnished by the individual in support of his claim and the reasons, as
required by 2005.5, set forth by STR in its decision denying the
amendment. Appeals filed without a complete statement by the person
making the request setting forth the reasons for the review will, of
course, be processed. However, in order to make the appellate process
as meaningful as possible, such person's disagreement should be
understandably set forth. In order to avoid the unnecessary retention
of personal information, STR reserves the right to dispose of the
material concerning the request to amend a record if no request for
review in accordance with this section is received by STR within 180
days of the mailing by STR of its decision upon an initial request. A
request for review received after the 180 day period may, at the
discretion of the Administrative Officer, be treated as an initial
request to amend a record.
(c) The request for review should be addressed to the Freedom of
Information Appeals Committee (established in 15 CFR 2004.7) Office of
the Special Representative for Trade Negotiations, Room 719, 1800 G St.
NW., Washington, DC 20506.
(d) Final determinations on requests for reviews within STR will be
made by the Freedom of Information Appeals Committee, chaired by the
Special Representative for Trade Negotiations. Additional information
may be requested by the Committee from the person requesting a review if
necessary to make a determination.
(e) The FOI Appeals Committee will inform the person making the
request in writing of the decision on the request for review within 30
days (excluding Saturdays, Sundays, and legal Federal holidays) from the
date of receipt by STR of the individual's request for review, unless
the Committee extends the 30 day period for good cause. The extension
and the reasons therefor will be sent by STR to the individual within
the initial 30 day period. Included in the notice of a decision being
reviewed, if the decision does not grant in full the request for review,
will be a description of the steps the individual may take to obtain
judicial review of such a decision, and a statement that the individual
may file a concise statement with STR setting forth the individual's
reasons for his disagreement with the decision upon the request for
review. The STR Administrative Officer has the authority to determine
the ''conciseness'' of the statement, taking into account the scope of
the disagreement and the complexity of the issues. Upon the filing of a
proper concise statement by the individual, any subsequent disclosure of
the information in dispute will have the information in dispute clearly
noted and a copy of the concise statement furnished, setting forth its
reasons for not making the requested changes, if STR chooses to file
such a statement. A copy of the individual's statement, and if it
chooses, STR's statement, will be sent to any prior transferee of the
disputed information who is listed on the accounting required by 5
U.S.C. 552a(c).
15 CFR 2005.7 Schedule of fees.
(a) Prohibitions against charging fees. Individuals will not be
charged for:
(1) The search and review of the record;
(2) Any copies of the record produced as a necessary part of the
process of making the record available for access; or
(3) Any copies of the requested record when it has been determined
that access can only be accomplished by providing a copy of the record
through the mail.
(b) Waiver. The Administrative Officer may, at no charge, provide
copies of a record if it is determined the production of the copies is
in the interest of the Government.
(c) Fee schedule and method of payment. Fees will be charged as
provided below except as provided in paragraphs (a) and (b) of this
section.
(1) Duplication of records. Records will be duplicated at a rate of
$.10 per page for all copying of 4 pages or more. There is no charge
for duplicating 3 or fewer pages.
(2) Where it is anticipated that the fees chargeable under this
section will amount to more than $25, the person making the request
shall be promptly notified of the amount of the anticipated fee or such
portion thereof as can readily be estimated. In instances where the
estimated fees will greatly exceed $25, an advance deposit may be
required. The notice or request for an advance deposit shall extend an
offer to the person requesting to consult with the Administrative
Officer in order to reformulate the request in a manner which will
reduce the fees, yet still meet the needs of individuals making the
request.
(3) Fees must be paid in full prior to issuance of requested copies.
In the event the person requesting is in arrears for previous requests
copies will not be provided for any subsequent request until the arrears
have been paid in full.
(4) Remittances shall be in the form either of a personal check or
bank draft drawn on a bank in the United States, or a postal money
order. Remittances shall be made payable to the order of the Treasury
of the United States and mailed or delivered to the Administrative
Officer, Office of the Special Representative for Trade Negotiations,
1800 G St., NW., Washington, DC, 20506.
(5) A receipt for fees paid will be given upon request.
15 CFR 2005.7 PART 2006 -- PROCEDURES FOR FILING PETITIONS FOR ACTION
UNDER SECTION 301 OF THE TRADE ACT OF 1974, AS AMENDED
Sec.
2006.0 Submission of petitions requesting action under section 301.
2006.1 Information to be included in petition.
2006.2 Adequacy of the petition.
2006.3 Determinations regarding petitions.
2006.4 Requests for information made to foreign governments or
instrumentalities.
2006.5 Consultations with the foreign government.
2006.6 Formal dispute settlement.
2006.7 Public hearings.
2006.8 Submission of written briefs.
2006.9 Presentation of oral testimony at public hearings.
2006.10 Waiver of requirements.
2006.11 Consultations before making determinations.
2006.12 Determinations; time limits.
2006.13 Information open to public inspection.
2006.14 Information not available.
2006.15 Information exempt from public inspection.
Authority: Sec. 309(a)(1), Trade Act of 1974, as amended by sec.
1301 of the Omnibus Trade and Competitiveness Act of 1988, Pub. L.
100-418, 102 Stat. 1176 (19 U.S.C. 2419).
Source: 55 FR 20595, May 18, 1990, unless otherwise noted.
15 CFR 2006.0 Submission of petitions requesting action under section
301.
(a) Section 301 of the Trade Act of 1974, as amended (the ''Trade
Act'') requires the United States Trade Representative, subject to the
specific direction, if any, of the President regarding such action, to
take appropriate and feasible action in response to a foreign
government's violation of a trade agreement, or any other international
agreement the breach of which burdens or restricts United States
commerce; and authorizes the Trade Representative, subject to the
specific direction of the President, if any, to take action to obtain
the elimination of acts, policies, and practices of foreign countries
that are unjustifiable, unreasonable, or discriminatory and burden or
restrict United States commerce. Section 302 of the Trade Act provides
for petitions to be filed with the Trade Representative requesting that
action be taken under section 301. Petitions filed under section 302
will be treated as specified in these regulations.
(b) Petitions may be submitted by an interested person. An
interested person is deemed to be any party who has a significant
interest affected by the act, policy, or practice complained of, for
example: A producer, a commercial importer, or an exporter of an
affected product or service; a United States person seeking to invest
directly abroad, with implications for trade in goods or services; a
person who relies on protection of intellectual property rights; a
trade association, a certified union or recognized union or group of
workers which is representative of an industry engaged in the
manufacture, production or wholesale distribution in the United States
of a product or service so affected; or any other private party
representing a significant economic interest affected directly by the
act, policy or practice complained of in the petition.
(c) The petitioner shall submit 20 copies of the petition in English,
clearly typed, photocopied, or printed to: Chairman, Section 301
Committee, Office of the United States Trade Representative, 600 17th
Street, NW., Washington, DC 20506.
To ensure proper docketing, petitions may be filed only during the
following hours on days when the Federal Government is open for
business: between 9 a.m. and 12 noon and 1 p.m. to 5 p.m.
(d) Recorded information on section 302 petitions and investigations
may be obtained by calling (202) 395-3871.
15 CFR 2006.1 Information to be included in petition.
(a) General information. Petitions submitted pursuant to section 302
of the Trade Act shall clearly state on the first page that the petition
requests that action be taken under section 301 of the Trade Act and
shall contain allegations and information reasonably available to
petitioner in support of the request, in the form specified below.
Petitioners for whom such information is difficult or impossible to
obtain shall provide as much information as possible, and assistance in
filing their petition may be obtained through the Chairman of the
Section 301 Committee. All petitions shall:
(1) Identify the petitioner and the person, firm or association, if
any, which petitioner represents and describe briefly the economic
interest of the petitioner which is directly affected by the failure of
a foreign government or instrumentality to grant rights of the United
States under a trade agreement, or which is otherwise directly affected
economically by an act, policy, or practice which is actionable under
section 301.
(2) Describe the rights of the United States being violated or denied
under the trade agreement which petitioner seeks to enforce or the other
act, policy or practice which is the subject of the petition, and
provide a reference to the particular part of section 301 related to the
assertion in the petition.
(3) Include, wherever possible, copies of laws or regulations which
are the subject of the petition. If this is not possible, the laws and
regulations shall be identified with the greatest possible
particularity, such as by citation.
(4) Identify the foreign country or instrumentality with whom the
United States has an agreement under which petitioner is asserting
rights claimed to be denied or whose acts, policies or practices are the
subject of the petition.
(5) Identify the product, service, intellectual property right, or
foreign direct investment matter for which the rights of the United
States under the agreement claimed to be violated or denied are sought,
or which is subject to the act, policy or practice of the foreign
government or instrumentality named in paragraph (a)(4) of this section.
(6) Demonstrate that rights of the United States under a trade
agreement are not being provided; or show the manner in which the act,
policy or practice violates or is inconsistent with the provisions of a
trade agreement or otherwise denies benefits accruing to the United
States under a trade agreement, or is unjustifiable, unreasonable, or
discriminatory and burdens or restricts United States commerce.
(7) Provide information concerning
(i) The degree to which U.S. commerce is burdened or restricted by
the denial of rights under a trade agreement or by any other act,
policy, or practice which is actionable under section 301,
(ii) The volume of trade in the goods or services involved, and
(iii) A description of the methodology used to calculate the burden
or restriction on U.S. commerce.
(8) State whether petitioner has filed or is filing for other forms
of relief under the Trade Act or any other provision of law. If the
foreign government practice at issue is the subject of investigation
under any other provision of law, the USTR may determine not to initiate
an investigation; or if the same matter is subsequently subject to
investigation under some other provision of law, USTR may terminate the
section 302 investigation.
(b) Additional specific information -- (1) Subsidies. If the
petition includes an assertion that subsidy payments are having an
adverse effect upon products or services of the United States in United
States' markets or in other foreign markets, it shall include an
analysis supporting any claim that the subsidy complained of is
inconsistent with any trade agreement and describe the manner in which
it burdens or restricts United States commerce.
(2) Certain unreasonable practices. If the petition asserts that an
unreasonable practice defined in section 301(d) (3) denies fair and
equitable opportunities for the establishment of an enterprise, or
denies adequate and effective protection of intellectual property
rights, or denies fair and equitable market opportunities, and burdens
or restricts U.S. commerce, the petition should include, to the extent
possible, identification of reciprocal opportunities in the United
States that may exist for foreign nationals and firms; and
(i) If the petition asserts that fair and equitable opportunities for
the establishment of an enterprise in a foreign country are denied, the
petition shall
(A) Describe in detail the nature of any foreign direct investment
proposed by the United States person, including estimates of trade in
goods and services that could reasonably be expected to result from that
investment,
(B) Indicate the manner in which the foreign government is denying
the United States person a fair and equitable opportunity for the
establishment of an enterprise,
(C) State whether action by the foreign government is in violation of
or inconsistent with the international legal rights of the United
States, citing the relevant provisions of any international agreements
to which the United States and the foreign government are party, and
(D) To the extent possible, provide copies of all relevant foreign
government statutes, regulations, directives, public policy statements
and correspondence with the United States person with respect to the
proposed investment.
(ii) If the petition asserts that fair and equitable provision of
adequate and effective protection of intellectual property rights in a
foreign country is denied, the petition shall
(A) Identify the intellectual property right for which protection has
been sought,
(B) Indicate how persons who are not citizens or nationals of such
foreign country are denied the opportunity to secure, exercise, and
enforce rights relating to patents, process patents, registered
trademarks, copyrights, or mask works, and
(C) Provide information on the relevant laws of the foreign country
and an analysis of how the foreign country's law or policies conform to
provisions of international law or international agreements to which
both the United States and the foreign country are parties;
(iii) If the petition asserts that fair and equitable market
opportunities are denied through the toleration by a foreign government
of systematic private anticompetitive activities, the petition shall
specifically
(A) Identify the private firms in the foreign country whose
systematic anticompetitive activities have the effect of restricting
access of United States goods to purchasing by those firms, inconsistent
with commercial considerations,
(B) Describe in detail the private activities in question,
(C) State whether evidence of such activities has been provided (by
petitioner or others) to the appropriate foreign government authorities,
and describe the evidence indicating that the foreign government is
aware of and supports, encourages, or tolerates such activities,
(D) Describe the duration and pervasiveness of such activities,
(E) Indicate whether such activities are inconsistent with the laws
of the foreign country involved, making specific reference to any laws
in question, and
(F) Indicate whether the foreign government's enforcement of (or
failure to enforce) its relevant laws with respect to the private
activities at issue is inconsistent with its enforcement practices in
other situations;
(iv) If the petition asserts that an act, policy or practice, or
combination thereof constitutes export targeting, the petition shall
(A) Identify the specific enterprise, industry, or group thereof
which has been assisted in becoming more competitive in the export of
the affected product or products,
(B) Describe the elements of the foreign government's plan or scheme
consisting of coordinated actions to assist that enterprise, industry,
or group, and
(C) Provide information on how and to what degree exports of the
affected products by that enterprise, industry, or group have become
more competitive as a result of the foreign government's plan or scheme;
and
(v) If the petition asserts that an act, policy or practice, or
combination thereof constitutes a persistent pattern of conduct that
denies workers the right of association or the right to organize and
bargain collectively, or permits forced or compulsory labor, or fails to
provide a minimum age for employment of children or standards for
minimum wages, hours, and occupational safety and health of workers, the
petition shall
(A) Describe the rights or standards denied and provide information
on the laws, policies and practices of the foreign country involved, if
any, that relate to such rights or standards, and
(B) Indicate, to the extent such information is available to
petitioner, whether the foreign country has taken, or is taking, actions
that demonstrate a significant and tangible overall advancement in
providing these rights or standards.
15 CFR 2006.2 Adequacy of the petition.
If the petition filed pursuant to section 302 does not conform
substantially to the requirements of 2006.0 and 2006.1, the Chairman
of the Section 301 Committee may decline to docket the petition as filed
and, if requested by petitioner, return it to petitioner with guidance
on making the petition conform to the requirements, or may nevertheless
determine that there is sufficient information on which to proceed to a
determination whether to initiate an investigation.
15 CFR 2006.3 Determinations regarding petitions.
Within 45 days after the day on which the petition is received, the
Trade Representative shall determine, after receiving the advice of the
Section 301 Committee, whether to initiate an investigation.
(a) If the Trade Representative determines not to initiate an
investigation, the Section 301 Chairman shall notify the petitioner of
the reasons and shall publish notice of the negative determination and a
summary of the reasons therefor in the Federal Register.
(b) If the Trade Representative determines to initiate an
investigation regarding the petition, the Section 301 Chairman shall
publish a summary of the petition in the Federal Register, and provide
an opportunity for the presentation of views concerning the issues,
including a public hearing if requested. A hearing may be requested by
the petitioner or any interested person, including but not limited to a
domestic firm or worker, a representative of consumer interests, a
United States product exporter, or any industrial user of any goods or
services that may be affected by actions taken under section 301 with
respect to the act, policy or practice that is the subject of the
petition.
15 CFR 2006.4 Requests for information made to Foreign Governments or
Instrumentalities.
If the U.S. Trade Representative receives a petition alleging
violations of any international agreement, he will notify the foreign
government or instrumentality of the allegations and may request
information, in English, necessary to a determination under section
304(a)(1)(A) of the Trade Act. The Trade Representative may proceed on
the basis of best information available if, within a reasonable time, no
information is received in response to the request.
15 CFR 2006.5 Consultations with the Foreign Government.
(a) If the Trade Representative determines to initiate an
investigation on the basis of a petition he shall, on behalf of the
United States, request consultations with the foreign country concerned
regarding the issues involved in such an investigation. In preparing
United States presentations for consultations and dispute settlement
proceedings, the Trade Representative shall seek information and advice
from the petitioner and any appropriate private sector representatives,
including committees established pursuant to section 135 of the Trade
Act.
(b) To ensure an adequate basis for consultation, the Trade
Representative may, after consulting with the petitioner, delay requests
for consultations for up to 90 days in order to verify or improve the
petition. If consultations are delayed, the time limits referred to in
2006.12 below shall be extended for the period of such delay.
15 CFR 2006.6 Formal dispute settlement.
If the issues in a petition are covered by a trade agreement between
the United States and the foreign government involved and a mutually
acceptable resolution cannot be reached within the consultation period
provided for in the agreement, or by 150 days after consultations begin,
whichever is earlier, the Trade Representative shall institute the
formal dispute settlement proceedings, if any, provided for in the trade
agreement.
15 CFR 2006.7 Public hearings.
(a) A public hearing for the purpose of receiving views on the issues
raised in a petition shall be held by the Section 301 Committee:
(1) Within 30 days after the date that an investigation is initiated
under section 302(a)(2) if a hearing is requested in the petition (or
later, if agreed to by the petitioner); or
(2) Within a reasonable period if, after the investigation is
initiated, a timely request is made by the petitioner, or any other
interested person as defined in 2006.3(b).
(b) Prior to making a recommendation on what action, if any, should
be taken in response to issues raised in the petition, the Section 301
Committee shall hold a public hearing upon the written request of any
interested person. An interested person should submit an application to
the Section 301 Chairman stating briefly the interest of the person
requesting the hearing, the firm, person, or association he represents,
and the position to be taken. A hearing so requested shall be held:
(1) Prior to determining what action should be taken under section
301, and after at least 30 days' notice; or
(2) Within 30 days after the determination of action is made, if the
Trade Representative determines that expeditious action is required.
(c) After receipt of a request for a public hearing under sections
302(a)(4)(B) or 304(b)(1)(A) of the Trade Act, the Chairman of the
Section 301 Committee will notify the applicant whether the request
meets the requirements of this part, and if not, the reasons therefor.
If the applicant has met the requirements of this part, he will receive
at least 30 days' notice of the time and place of the hearing.
(d) Notice of public hearings to be held under sections 302(a)(4)(B)
and 304(b)(1)(A) shall be published in the Federal Register by the
Chairman of the Section 301 Committee.
15 CFR 2006.8 Submission of written briefs.
(a) In order to participate in the presentation of views either at a
public hearing or otherwise, an interested person must submit a written
brief before the close of the period of submission announced in the
public notice. The brief may be, but need not be, supplemented by the
presentation of oral testimony in any public hearing scheduled in
accordance with 2006.7.
(b) The brief shall state clearly the position taken and shall
describe with particularity the supporting rationale. It shall be
submitted in 20 copies, which must be legibly typed, printed, or
duplicated.
(c) In order to assure each interested person an opportunity to
contest the information provided by other parties, the Section 301
Committee will entertain rebuttal briefs filed by any interested person
within a time limit specified in the public notice. Rebuttal briefs
should be strictly limited to demonstrating errors of fact or analysis
not pointed out in the briefs or hearing and should be as concise as
possible.
15 CFR 2006.9 Presentation of oral testimony at public hearings.
(a) A request by an interested person to present oral testimony at a
public hearing shall be submitted in writing before the close of the
period of submission announced in the public notice and shall state
briefly the interest of the applicant. Such request will be granted if
a brief has been submitted in accordance with 2006.8.
(b) After consideration of a request to present oral testimony at a
public hearing, the Chairman of the Section 301 Committee will notify
the applicant whether the request conforms to the requirements of
2006.8(a) and, if it does not, will give the reasons. If the applicant
has submitted a conforming request he shall be notified of the time and
place for the hearing and for his oral testimony.
15 CFR 2006.10 Waiver of requirements.
To the extent consistent with the requirements of the Trade Act, the
requirements of 2006.0 through 2006.3 and 2006.8 may be waived by the
Trade Representative or the Chairman of the Section 301 Committee upon a
showing of good cause and for reasons of equity and the public interest.
15 CFR 2006.11 Consultations before making determinations.
Prior to making a determination on what action, if any, should be
taken in regard to issues raised in the petition, the Trade
Representative shall obtain advice from any appropriate private sector
advisory representatives, including committees established pursuant to
section 135 of the Trade Act, unless expeditious action is required, in
which case he shall seek such advice after making the determination.
The Trade Representative may also request the views of the International
Trade Commission regarding the probable economic impact of the proposed
action.
15 CFR 2006.12 Determinations; Time limits.
On the basis of the petition, investigation and consultations, and
after receiving the advice of the Section 301 Committee, the Trade
Representative shall determine whether U.S. rights under any trade
agreement are being denied, or whether any other act, policy, or
practice actionable under section 301 exists and, if so, what action (if
any) should be taken under section 301. These determinations shall be
made:
(a) In the case of an investigation involving a trade agreement
(other than the agreement on subsidies and countervailing measures
described in section 2(c)(5) of the Trade Agreements Act of 1979),
within 30 days after the dispute settlement procedure concludes, or 18
months after the initiation of the investigation, whichever is earlier.
(b) In all other cases, within 12 months after initiating an
investigation.
15 CFR 2006.13 Information open to public inspection.
(a) With the exception of information subject to 2006.15, an
interested person may, upon advance request, inspect at a public reading
room in the Office of the United States Trade Representative:
(1) Any written petition, brief, or similar submission of information
(other than that to which confidentiality applies) made in the course of
a section 302 proceeding;
(2) Any stenographic record of a public hearing held pursuant to
section 302 or 304.
(b) In addition, upon written request submitted in accordance with
section 308 of the Trade Act, any person may obtain from the Section 301
Chairman the following, to the extent that such information is available
to the Office of the U.S. Trade Representative or other Federal
agencies:
(1) Information on the nature and extent of a specific trade policy
or practice of a foreign government or instrumentality with respect to
particular goods, services, investment, or intellectual property rights;
(2) Information on United States rights under any trade agreement and
the remedies which may be available under that agreement and under the
laws of the United States; and
(3) Information on past and present domestic and international
proceedings or actions with respect to the policy or practice concerned.
(c) An appropriate fee will be charged for duplication of documents
requested under 2006.13.
15 CFR 2006.14 Information not available.
If the Office of the U.S. Trade Representative does not have, and
cannot obtain from other Federal agencies, information requested in
writing by any person, the Section 301 Chairman shall, within 30 days
after the receipt of the request:
(a) Request the information from the foreign government involved; or
(b) Decline to request the information and inform the person in
writing of the reasons for the refusal.
15 CFR 2006.15 Information exempt from public inspection.
(a) The Chairman of the Section 301 Committee shall exempt from
public inspection business information submitted in confidence if he
determines that such information involves trade secrets or commercial
and financial information the disclosure of which is not authorized by
the person furnishing such information nor required by law.
(b) An interested person requesting that the Chairman exempt from
public inspection confidential business information submitted in writing
must certify in writing that such information is business confidential,
the disclosure of such information would endanger trade secrets or
profitability, and such information is not generally available. The
information submitted must be clearly marked ''BUSINESS CONFIDENTIAL''
in a contrasting color ink at the top of each page on each copy, and
shall be accompanied by a nonconfidential summary of the confidential
information.
(c) The Section 301 Chairman may use such information, or make such
information available (in his own discretion) to any employee of the
Federal Government for use in any investigation under section 302, or
make such information available to any other person in a form which
cannot be associated with, or otherwise identify, the person providing
the information.
(d) The Section 301 Chairman may deny a request that he exempt from
public inspection any particular business information if he determines
that such information is not entitled to exemption under law. In the
event of a denial, the interested person submitting the particular
business information will be notified of the reasons for the denial and
will be permitted to withdraw the submission.
15 CFR 2006.15 PART 2007 -- REGULATIONS OF THE U.S. TRADE
REPRESENTATIVE PERTAINING TO ELIGIBILITY OF ARTICLES AND COUNTRIES FOR
THE GENERALIZED SYSTEM OF PREFERENCE PROGRAM (GSP (15 CFR PART 2007))
Sec.
2007.0 Requests for reviews.
2007.1 Information required of interested parties in submitting
requests for modifications in the list of eligible articles.
2007.2 Action following receipt of requests for modifications in the
list of eligible articles and for reviews of the GSP status of eligible
beneficiary countries with respect to designation criteria.
2007.3 Timetable for reviews.
2007.4 Publication regarding requests.
2007.5 Written briefs and oral testimony.
2007.6 Information open to public inspection.
2007.7 Information exempt from public inspection.
2007.8 Other reviews of article eligibilities.
Authority: 19 U.S.C. 2461-65, 88 Stat. 2066-2071, as amended by
Title V of the Trade and Tariff Act of 1984, Pub. L. No. 98-573, 98
Stat. 3018-3024; E.O. 11846 of March 27, 1975 (40 FR 14291), E.O.
12188 of January 2, 1980 (45 FR 989).
Source: 51 FR 5037, Feb. 11, 1986, unless otherwise noted.
15 CFR 2007.0 Requests for reviews.
(a) An interested party may submit a request (1) that additional
articles be designated as eligible for GSP duty-free treatment, provided
that the article has not been accepted for review within the three
preceding calendar years; or (2) that the duty-free treatment accorded
to eligible articles under the GSP be withdrawn, suspended or limited;
or (3) for a determination of whether a like or directly competitive
product was produced in the United States on January 3, 1985 for the
purposes of section 504(d)(1) (19 U.S. 2464(d)(1)); or (4) that the
President exercise his waiver authority with respect to a specific
article or articles pursuant to section 504(c)(3) (19 U.S.C.
2464(c)(3)); or (5) that product coverage be otherwise modified.
(b) During the annual reviews and general reviews conducted pursuant
to the schedule set out in 2007.3 any person may file a request to have
the GSP status of any eligible beneficiary developing country reviewed
with respect to any of the designation criteria listed in section 502(b)
or 502(c) (19 U.S.C. 2642 (b) and (c)). Such requests must (1) specify
the name of the person or the group requesting the review; (2) identify
the beneficiary country that would be subject to the review; (3)
indicate the specific section 502(b) or 502(c) criteria which the
requestor believes warrants review; (4) provide a statement of reasons
why the beneficiary country's status should be reviewed along with all
available supporting information; (5) supply any other relevant
information as requested by the GSP Subcommittee. If the subject matter
of the request has been reviewed pursuant to a previous request, the
request must include substantial new information warranting further
consideration of the issue.
(c) An interested party or any other person may make submissions
supporting, opposing or otherwise commenting on a request submitted
pursuant to either paragraph (a) or (b) of this section.
(d) For the purposes of the regulations set out under 2007.0 et
seq., an interested party is defined as a party who has significant
economic interest in the subject matter of the request, or any other
party representing a significant economic interest that would be
materially affected by the action requested, such as a domestic producer
of a like or directly competitive article, a commercial importer or
retailer of an article which is eligible for the GSP or for which such
eligibility is requested, or a foreign government.
(e) All requests and other submissions should be submitted in 20
copies, and should be addressed to the Chairman, GSP Subcommittee, Trade
Policy Staff Committee, Office of the United States Trade
Representative, 600 17th Street, NW., Washington, D.C. 20506. Requests
by foreign governments may be made in the form of diplomatic
correspondence provided that such requests comply with the requirements
of 2007.1.
(f) The Trade Policy Staff Committee (TPSC) may at any time, on its
own motion, initiate any of the actions described in paragraph (a) or
(b) of this section.
15 CFR 2007.1 Information required of interested parties in submitting
requests for modifications in the last of eligible articles.
(a) General Information Required. A request submitted pursuant to
this part, hereinafter also referred to as a petition, except requests
submitted pursuant to 2007.0(b), shall state clearly on the first page
that it is a request for action with respect to the provision of
duty-free treatment for an article or articles under the GSP, and must
contain all information listed in this paragraph and in paragraphs (b)
and (c). Petitions which do not contain the information required by
this paragraph shall not be accepted for review except upon a showing
that the petitioner made a good faith effort to obtain the information
required. Petitions shall contain, in addition to any other information
specifically requested, the following information:
(1) The name of the petitioner, the person, firm or association
represented by the petitioner, and a brief description of the interest
of the petitioner claiming to be affected by the operation of the GSP;
(2) An identification of the product or products of interest to the
petitioner, including a detailed description of products and their uses
and the identification of the pertinent item number of the Tariff
Schedules of the United States (TSUS). Where the product or products of
interest are included with other products in a basket category of the
TSUS, provide a detailed description of the product or products of
interest;
(3) A description of the action requested, together with a statement
of the reasons therefor and any supporting information;
(4) A statement of whether to the best of the Petitioner's knowledge,
the reasoning and information has been presented to the TPSC previously
either by the petitioner or another party. If the Petitioner has
knowledge the request has been made previously, it must include either
new information which indicates changed circumstances or a rebuttal of
the factors supporting the denial of the previous request. If it is a
request for a product addition, the previous request must not have been
formally accepted for review within the preceding three calendar year
period; and
(5) A statement of the benefits anticipated by the petitioner if the
request is granted, along with supporting facts or arguments.
(b) Requests to withdraw, limit or suspend eligibility with respect
to designated articles. Petitions requesting withdrawal or limitation
of duty-free treatment accorded under GSP to an eligible article or
articles must include the following information with respect to the
relevant United States industry for the most recent three year period:
(1) The names, number and locations of the firms producing a like or
directly competitive product;
(2) Actual production figures;
(3) Production capacity and capacity utilization;
(4) Employment figures, including number, type, wage rate, location,
and changes in any of these elements;
(5) Sales figures in terms of quantity, value and price;
(6) Quantity and value of exports, as well as principal export
markets;
(7) Profitability of firm on firms producing the like product, if
possible show profit data by product line;
(8) Analysis of cost including materials, labor and overhead;
(9) A discussion of the competitive situation of the domestic
industry;
(10) Identification of competitors; analysis of the effect imports
receiving duty-free treatment under the GSP have on competition and the
business of the interest on whose behalf the request is made;
(11) Any relevant information relating to the factors listed in
section 501 and 502(c) of Title V of the Trade Act of 1974, as amended
(19 U.S.C. 2501, 502(c)) such as identification of tariff and non-tariff
barriers to sales in foreign markets;
(12) Any other relevant information including any additional
information that may be requested by the GSP Subcommittee.
This information should be submitted with the request for each
article that is the subject of the request, both for the party making
the request, and to the extent possible, for the industry to which the
request pertains.
(c) Requests to designate new articles. Information to be provided
in petitions requesting the designation of new articles submitted by
interested parties must include for the most recent three year period
the following information for the beneficiary country on whose behalf
the request is being made and, to the extent possible, other principal
beneficiary country suppliers:
(1) Identification of the principal beneficiary country suppliers
expected to benefit from proposed modification;
(2) Name and location of firms;
(3) Actual production figures (and estimated increase in GSP status
is granted);
(4) Actual production and capacity utilization (and estimated
increase if GSP status is granted);
(5) Employment figures, including numbers, type, wage rate, location
and changes in any of these elements if GSP treatment is granted;
(6) Sales figures in terms of quantity, value and prices;
(7) Information on total exports including principal markets, the
distribution of products, existing tariff preferences in such markets,
total quantity, value and trends in exports;
(8) Information on exports to the United States in terms of quantity,
value and price, as well as considerations which affect the
competitiveness of these exports relative to exports to the United
States by other beneficiary countries of a like or directly competitive
product. Where possible, petitioners should provide information on the
development of the industry in beneficiary countries and trends in their
production and promotional activities;
(9) Analysis of cost including materials, labor and overhead;
(10) Profitability of firms producing the product;
(11) Information on unit prices and a statement of other
considerations such as variations in quality or use that affect price
competition;
(12) If the petition is submitted by a foreign government or a
government controlled entity, it should include a statement of the
manner in which the requested action would further the economic
development of the country submitting the petition;
(13) If appropriate, an assessment of how the article would qualify
under the GSP's 35 percent value-added requirements; and
(14) Any other relevant information, including any information that
may be requested by the GSP Subcommittee.
Submissions made by persons in support of or opposition to a request
made under this part should conform to the requirements for requests
contained in 2007.1(a) (3) and (4), and should supply such other
relevant information as is available.
15 CFR 2007.2 Action following receipt of requests for modifications in
the list of eligible articles and for reviews of the GSP status of
eligible beneficiary countries with respect to designation criteria.
(a)(1) If a request submitted pursuant to 2007.0(a) does not conform
to the requirements set forth above, or if it is clear from available
information that the request does not warrant further consideration, the
request shall not be accepted for review. Upon written request,
requests which are not accepted for review will be returned together
with a written statement of the reasons why the request was not
accepted.
(2) If a request submitted pursuant to 2007.0(b) does not conform to
the requirements set forth above, or if the request does not provide
sufficient information relevant to subsection 502(b) or 502(c) (19
U.S.C. 2642 (b) and (c)) to warrant review, or if it is clear from
available information that the request does not fall within the criteria
of subsection 502(b) or 502(c), the request shall not be accepted for
review. Upon written request, requests which are not accepted for
review will be returned together with a written statement of the reasons
why the request was not accepted.
(b) Requests which conform to the requirements set forth above or for
which petitioners have demonstrated a good faith effort to obtain
information in order to meet the requirements set forth above, and for
which further consideration is deemed warranted, shall be accepted for
review.
(c) The TPSC shall announce in the Federal Register those requests
which will be considered for full examination in the annual review and
the deadlines for submissions made pursuant to the review, including the
deadlines for submission of comments on the U.S. International Trade
Commission (USITC) report in instances in which USITC advice is
requested.
(d) In conducting annual reviews, the TPSC shall hold public hearings
in order to provide the opportunity for public testimony on petitions
and requests filed pursuant to paragraphs (a) and (b) of 2007.0.
(e) As appropriate, the USTR on behalf of the President will request
advice from the USITC.
(f) The GSP Subcommittee of the TPSC shall conduct the first level of
interagency consideration under this part, and shall submit the results
of its review to the TPSC.
(g) The TPSC shall review the work of the GSP Subcommittee and shall
conduct, as necessary, further reviews of requests submitted and
accepted under this part. Unless subject to additional review, the TPSC
shall prepare recommendations for the President on any modifications to
the GSP under this part. The Chairman of the TPSC shall report the
results of the TPSC's review to the U.S. Trade Representative who may
convene the Trade Policy Review Group (TPRG) or the Trade Policy
Committee (TPC) for further review of recommendations and other
decisions as necessary. The U.S. Trade Representative, after receiving
the advice of the TPSC, TPRG or TPC, shall make recommendations to the
President on any modifications to the GSP under this part, including
recommendations that no modifications be made.
(h) In considering whether to recommend: (1) That additional
articles be designated as eligible for the GSP; (2) that the duty-free
treatment accorded to eligible articles under the GSP be withdrawn,
suspended or limited; (3) that product coverage be otherwise modified;
or (4) that changes be made with respect to the GSP status of eligible
beneficiary countries, the GSP Subcommittee on behalf of the TPSC, TPRG,
or TPC shall review the relevant information submitted in connection
with or concerning a request under this part together with any other
information which may be available relevant to the statutory
prerequisites for Presidential action contained in Title V of the Trade
Act of 1974, as amended (19 U.S.C. 2461-2465).
15 CFR 2007.3 Timetable for reviews.
(a) Annual review. Beginning in calendar year 1986, reviews of
pending requests shall be conducted at least once each year, according
to the following schedule, unless otherwise specified by Federal
Register notice:
(1) June 1, deadline for acceptance of petitions for review;
(2) July 15, Federal Register announcement of petitions accepted for
review;
(3) September/October -- public hearings and submission of written
briefs and rebuttal materials;
(4) December/January -- opportunity for public comment on USITC
public reports;
(5) Results announced on April 1 will be implemented on July 1, the
statutory effective date of modifications to the program. If the date
specified is on or immediately follows a weekend or holiday, the
effective date will be on the second working day following such weekend
or holiday.
(b) Requests filed pursuant to paragraph (a) or (b) of 2007.0 which
indicate the existence of unusual circumstances warranting an immediate
review may be considered separately. Requests for such urgent
consideration should contain a statement of reasons indicating why an
expedited review is warranted.
(c) General Review. Section 504(c)(2) of Title V of the Trade Act of
1974 (19 U.S.C. 2464(c)(2)) requires that, not later than January 4,
1987 and periodically thereafter, the President conduct a general review
of eligible articles based on the considerations in sections 501 and
502(c) of Title V. The initiation and scheduling of such reviews as
well as the timetable for submission of comments and statements will be
announced in the Federal Register. The first general review was
initiated on February 14, 1985 and will be completed by January 3, 1987.
The initiation of the review and deadlines for submission of comments
and statements were announced in the Federal Register on February 14,
1985 (50 FR 6294).
15 CFR 2007.4 Publication regarding requests.
(a) Whenever a request is received which conforms to these
regulations or which is accepted pursuant to 2007.2 a statement of the
fact that the request has been received, the subject matter of the
request (including if appropriate, the TSUS item number or numbers and
description of the article or articles covered by the request), and a
request for public comment on the petitions received shall be published
in the Federal Register.
(b) Upon the completion of a review and publication of any
Presidential action modifying the GSP, a summary of the decisions made
will be published in the Federal Register including:
(1) A list of actions taken in response to requests; and
(2) A list of requests which are pending.
(c) Whenever, following a review, there is to be no change in the
status of an article with respect to the GSP in response to a request
filed under 2007.0(a), the party submitting a request with respect to
such articles may request an explanation of factors considered.
(d) Whenever, following a review, there is to be no change in the
status of a beneficiary country with respect to the GSP in response to a
request filed under 2007.0(b), the GSP Subcommittee will notify the
party submitting the request in writing of the reasons why the requested
action was not taken.
15 CFR 2007.5 Written briefs and oral testimony.
Sections 2003.2 and 2003.4 of this chapter shall be applicable to the
submission of any written briefs or requests to present oral testimony
in connection with a review under this part. For the purposes of this
section, the term ''interested party'' as used in 2003.2 and 2003.4
shall be interpreted as including parties submitting petitions and
requests pursuant to 2007.0(a) or (b) as well as any other person
wishing to file written briefs or present oral testimony.
15 CFR 2007.6 Information open to public inspection.
With exception of information subject to 2007.7 any person may, upon
request inspect at the Office of the United States Trade Representative:
(a) Any written request, brief, or similar submission of information
made pursuant to this part; and
(b) Any stenographic record of any public hearings which may be held
pursuant to this part.
15 CFR 2007.7 Information exempt from public inspection.
(a) Information submitted in confidence shall be exempt from public
inspection if it is determined that the disclosure of such information
is not required by law.
(b) A party requesting an exemption from public inspection for
information submitted in writing shall clearly mark each page
''Submitted in Confidence'' at the top, and shall submit a
nonconfidential summary of the confidential information. Such person
shall also provide a written explanation of why the material should be
so protected.
(c) A request for exemption of any particular information may be
denied if it is determined that such information is not entitled to
exemption under law. In the event of such a denial, the information
will be returned to the person who submitted it, with a statement of the
reasons for the denial.
15 CFR 2007.8 Other reviews of article eligibilities.
(a) As soon after the beginning of each calendar year as relevant
trade data for the preceding year are available, modifications of the
GSP in accordance with section 504(c) of the Trade Act of 1974 as
amended (19 U.S.C. 2464) will be considered.
(b) General Review. Section 504(c)(2) of Title V of the Trade Act of
1974 as amended (19 U.S.C. 2464(c)(2)) requires that not later than
January 4, 1987 and periodically thereafter, the President conduct a
general review of eligible articles based on the considerations in
sections 501 and 502 of Title V. The purpose of these reviews is to
determine which articles from which beneficiary countries are
''sufficiently competitive'' to warrant a reduced competitive need
limit. Those articles determined to be ''sufficiently competitive''
will be subject to a new lower competitive need limit set at 25 percent
of the value of total U.S imports of the article, or $25 million (this
figure will be adjusted annually in accordance with nominal changes in
U.S. gross national product (GNP), using 1984 as the base year). All
other articles will continue to be subject to the original competitive
need limits of 50 percent or $25 million (this figure is adjusted
annually using 1974 as the base year).
(1) Scope of General Reviews. In addition to an examination the
competitiveness of specific articles from particular beneficiary
countries, the general review will also include consideration of
requests for competitive need limit waivers pursuant to section
504(c)(3)(A) of Title V of the Trade Act of 1974 as amended (19 U.S.C.
2464(c)) and requests for a determination of no domestic production
under section 504(d)(1) of Title V of the Trade Act of 1974 as amended
(19 U.S.C. 2464(d)(1)).
(2) Factors To Be Considered. In determining whether a beneficiary
country should be subjected to the lower competitive need limits with
respect to a particular article, the President shall consider the
following factors contained in sections 501 and 502(c) of Title V:
(i) The effect such action will have on furthering the economic
development of developing countries through expansion of their exports;
(ii) The extent to which other major developed countries are
undertaking a comparable effort to assist developing countries by
granting generalized preferences with respect to imports of products of
such countries;
(iii) The anticipated impact of such action on the United States
producers of like or directly competitive products;
(iv) The extent of the beneficiary developing country's
competitiveness with respect to eligible articles;
(v) The level of economic development of such country, including its
per capita GNP, the living standard of its inhabitants and any other
economic factors the President deems appropriate;
(vi) Whether or not the other major developed countries are extending
generalized preferential tariff treatment to such country;
(vii) The extent to which such country has assured the United States
it will provide equitable and reasonable access to the markets and basic
commodity resources of such country and the extent to which such country
has assured the United States that it will refrain from engaging in
unreasonable export practices;
(viii) The extent to which such country is providing adequate and
effective means under its laws for foreign nationals to secure, to
exercise and to enforce exclusive rights in intellectual property,
including patents, trademarks and copyrights;
(ix) The extent to which such country has taken action to --
(A) Reduce trade distorting investment practices and policies
(including export performance requirements); and
(B) Reduce or eliminate barriers to trade in services; and
(x) Whether or not such country has taken or is taking steps to
afford workers in that country (including any designated zone in that
country) internationally recognized worker rights.
15 CFR 2007.8 Pt. 2008
15 CFR 2007.8 PART 2008 -- REGULATIONS TO IMPLEMENT E.O. 12065; OFFICE OF THE UNITED STATES TRADE REPRESENTATIVE
15 CFR 2007.8 Subpart A -- General Provisions
Sec.
2008.1 References.
2008.2 Purpose.
2008.3 Applicability.
15 CFR 2007.8 Subpart B -- Classification
2008.4 Basic policy.
2008.5 Level of original classification.
2008.6 Duration of original classification.
2008.7 Challenges to classification.
15 CFR 2007.8 Subpart C -- Derivative Classification
2008.8 Definition and application.
2008.9 Classification guides.
15 CFR 2007.8 Subpart D -- Declassification and Downgrading
2008.10 Declassification authority.
2008.11 Mandatory review for declassification.
2008.12 Foreign government information.
2008.13 Systematic review guidelines.
15 CFR 2007.8 Subpart E -- Safeguards
2008.14 Storage.
2008.15 General restrictions on access.
2008.16 Security education program.
2008.17 Historical researchers and former Presidential appointees.
15 CFR 2007.8 Subpart F -- Implementation and Review
2008.18 Information Security Oversight Committee.
2008.19 Classification Review Committee.
Authority: E.O. 12065.
Source: 44 FR 55329, Sept. 26, 1979, unless otherwise noted.
15 CFR 2007.8 Subpart A -- General Provisions
15 CFR 2008.1 References.
(a) Executive Order 12065, ''National Security Information,'' dated
June 28, 1978.
(b) Information Security Oversight Office, Directive No. 1,
''National Security Information,'' dated October 2, 1978.
15 CFR 2008.2 Purpose.
The purpose of this regulation is to ensure, consistent with the
authorities listed in section 1-1 of Executive Order 12065, that
national security information originated or held by the Office of the
Special Representative for Trade Negotiations is protected but only to
the extent, and for the period, necessary to safeguard the national
security.
15 CFR 2008.3 Applicability.
This regulation governs the Office of the Special Representative for
Trade Negotiations. In consonance with the authorities listed in
section 1-1, it establishes the general policy and certain procedures
for the security classification, downgrading, declassification, and
safeguarding of information that is owned by, is produced for or by, or
is under the control of the Office of the Special Representative for
Trade Negotiations.
15 CFR 2008.3 Subpart B -- Classification
15 CFR 2008.4 Basic policy.
It is the policy of the Office of the Special Representative for
Trade Negotiations to make available to the public as much information
concerning its activities as is possible, consistent with its
responsibility to protect the national security.
15 CFR 2008.5 Level of original classification.
Unnecessary classification, and classification at a level higher than
is necessary, shall be avoided. If there is reasonable doubt as to
which designation in section 1-1 of Executive Order 12065 is
appropriate, or whether information should be classified at all, the
less restrictive designation should be used, or the information should
not be classified.
15 CFR 2008.6 Duration of original classification.
(a) Except as permitted below, in paragraphs (b) and (c) of this
section, information or material which is classified after December 1,
1978, shall be marked at the declassification no more than six years
following its original classification.
(b) Original classification may be extended beyond six years only by
officials with Top Secret classification authority and agency heads
listed in section 1-2 of the order. This extension authority shall be
used only when these officials determine that the basis for original
classification will continue throughout the entire period that the
classification will be in effect and only for the following reasons:
(1) The information is ''foreign government information'' as defined
by the authorities in section 1.1;
(2) The information reveals intelligence sources and methods;
(3) The information pertains to communications security;
(4) The information reveals vulnerability or capability data, the
unauthorized disclosure of which can reasonably be expected to render
ineffective a system, installation, or project important to the national
security;
(5) The information concerns plans important to the national
security, the unauthorized disclosure of which reasonably can be
expected to nullify the effectiveness of the plan;
(6) The information concerns specific foreign relations matters, the
continued protection of which is essential to the national security;
(7) The continued protection of the information is specifically
required by statute.
(c) Even when the extension of authority is exercised, the period of
original classification shall not be greater than twenty years from the
date of original classification, except that the original classification
of ''foreign government information'' pursuant to paragraph (b)(1) of
this section may be for a period of thirty years.
15 CFR 2008.7 Challenges to classification.
If holders of classified information believe that the information is
improperly or unnecessarily classified, or that original classification
has been extended for too long a period, they should discuss the matter
with their immediate superiors or the classifier of the information. If
these discussions do not satisfy the concerns of the challenger, the
matter should be brought to the attention of the chairperson of the
Information Security Oversight Committee. Action on such challenges
shall be taken 30 days from date of receipt and the challenger shall be
notified of the results. When requested, anonymity of the challenger
shall be preserved.
15 CFR 2008.7 Subpart C -- Derivative Classification
15 CFR 2008.8 Definition and application.
Derivative classification is the act of assigning a level of
classification to information that is determined to be the same in
substance as information that is currently classified. Thus, derivative
classification may be accomplished by any person cleared for access to
that level of information, regardless of whether the person has original
classification authority at that level.
15 CFR 2008.9 Classification guides.
Classification guides shall be issued by the Management Office
pursuant to section 2-2 of the order. These guides, which shall be used
to direct derivative classification, shall identify the information to
be protected in specific and uniform terms so that the information
involved can be identified readily.
15 CFR 2008.9 Subpart D -- Declassification and Downgrading
15 CFR 2008.10 Declassification authority.
The Special Representative for Trade Negotiations is authorized to
declassify documents in accordance with section 3-3 of Executive Order
12065 and shall designate additional officials at the lowest practicable
level to exercise declassification and downgrading authority.
15 CFR 2008.11 Mandatory review for declassification.
(a) Requests for mandatory review. (1) Requests for mandatory review
for declassification under section 3-501 of Executive Order 12065 must
be in writing and should be addressed to:
Attn.: General Counsel (Mandatory Review Request), Office of the
Special Representative for Trade Negotiations, 1800 G Street, NW.,
Washington, DC 20506.
(2) The requestor shall be informed of the date of receipt of the
request. This date will be the basis for the time limits specified in
paragraph (b) of this section.
(3) If the request does not reasonably describe the information
sought, the requestor shall be notified that, unless additional
information is provided or the request is made more specific, no further
action will be taken.
(b) Review. (1) The requestor shall be informed of the Special Trade
Representative's determination within sixty days of receipt of the
initial request.
(2) If the determination is to withhold some or all of the material
requested, the requestor may appeal the determination. The requestor
shall be informed that such an appeal must be made in writing within
sixty days of receipt of the denial and should be addressed to the
chairperson of the Office of the Special Representative for Trade
Negotiations Classification Review Committee.
(3) The requestor shall be informed of the appellate determination
within thirty days of receipt of the appeal.
(c) Fees. (1) Fees for the location and reproduction of information
that is the subject of a mandatory review request shall be assessed
according to the following schedule:
(i) Search for records: $5.00 per hour when the search is conducted
by a clerical employee; $8.00 per hour when the search is conducted by
a professional employee. No fee shall be assessed for searches of less
than one hour.
(ii) Reproduction of documents: Documents will be reproduced at a
rate of $.25 per page for all copying of four pages or more. No fee
shall be assessed for reproducing documents that are three pages or
less, or for the first three pages of longer documents.
(2) When fees chargeable under this section will amount to more than
$25, and the requestor has not indicated in advance a willingness to pay
fees higher than that amount, the requestor shall be promptly notified
of the amount of the anticipated fee or such portion thereof as can
readily be estimated. In instances where the estimated fees will
greatly exceed $25, an advance deposit may be required. Dispatch of
such a notice or request shall suspend the running of the period for
response by the Office of the Special Representative for Trade
Negotiations until a reply is received from the requestor.
(3) Remittances shall be in the form either of a personal check or
bank draft drawn on a bank in the United States, or a postal money
order. Remittances shall be made payable to U.S. Treasurer and mailed
to the Office of the Special Representative for Trade Negotiations, 1800
G St., NW., Washington, DC.
(4) A receipt for fees paid will be given only upon request. No
refund of fees paid for services actually rendered will be made.
(5) The Office of the Special Representative for Trade Negotiations
may waive all or part of any fee provided for in this section when it is
deemed to be in the interest of either the Agency or the general public.
15 CFR 2008.12 Foreign government information.
The Office of the Special Representative for Trade Negotiations
shall, in consultation with the Archivist and in accordance with the
provisions of section 3-404 of Executive Order 12065, develop systematic
review guidelines for review of foreign government information for
declassification thirty years from the date of original classification.
15 CFR 2008.13 Systematic review guidelines.
Within 180 days after the effective date of the order, the Office of
the Special Representative for Trade Negotiations shall, after
consultation with the Archivist of the United States and review by the
Information Security Oversight Office, issue and maintain guidelines for
systematic review of classified information originated by the Office of
the Special Representative for Trade Negotiations twenty years from the
date of original classification. These guidelines shall state specific
limited categories of information which, because of their national
security sensitivity, should not be declassified automatically but
should be reviewed item-by-item to determine whether continued
protection beyond twenty years is needed. Information not identified in
these guidelines as requiring review and for which a prior automatic
declassification date has not been established shall be declassified
automatically twenty years from the date of original classification.
15 CFR 2008.13 Subpart E -- Safeguards
15 CFR 2008.14 Storage.
The Office of the Special Representative for Trade Negotiations shall
store all classified material in accordance with ISOO Directive of
October 5, 1978 (43 FR 46281).
15 CFR 2008.15 General restrictions on access.
Access to classified information shall be restricted as required by
section 4-1 of Executive Order 12065.
15 CFR 2008.16 Security education program.
(a) The Office of the Special Representative for Trade Negotiations
will inform agency personnel having access to classified information of
all requirements of Executive Order 12065 and ISOO Directive I.
(b) The Director, Office of Management, shall be charged with the
implementation of this security education program and shall issue
detailed procedures for the use of the agency personnel in fulfilling
their day-to-day security responsibilities.
15 CFR 2008.17 Historical researchers and former Presidential
appointees.
The requirement in section 4-101 of Executive Order 12065 with
respect to access to classified information may be waived for historical
researchers and former Presidential appointees in accordance with
section 4-301 of that order.
15 CFR 2008.17 Subpart F -- Implementation and Review
15 CFR 2008.18 Information Security Oversight Committee.
The Office of the Special Representative for Trade Negotiations
Information Security Oversight Committee shall be co-chaired by the
General Counsel of the Office of the Special Representative for Trade
Negotiations and the Director, Office of Management. The chairs shall
also be responsible with the Committee for conducting and active
oversight program to ensure effective implementation of Executive Order
12065, and ISOO implementing directives. The Committee shall:
(a) Establish a security education program to inform personnel who
have access to classified information with the requirements of Executive
Order 12065, and ISOO implementing directives.
(b) Establish controls to ensure that classified information is used,
processed, stored, reproduced, and transmitted only under conditions
that will provide adequate protection and prevent access by unauthorized
persons.
(c) Act on all suggestions and complaints concerning the
administration of the information security program.
(d) Establish and monitor policies and procedures within the Office
of the Special Representative for Trade Negotiations to ensure the
orderly and effective declassification of documents.
(e) Recommend to the Special Trade Representative appropriate
administrative action to correct abuses or violations of any provision
of Executive Order 12065.
(f) Consider and decide other questions concerning classification and
declassification that may be brought before it.
15 CFR 2008.19 Classification Review Committee.
The Classification Review Committee shall be chaired by the Special
Trade Representative. The Committee shall decide appeals from denials
of declassification requests submitted pursuant to section 3-5 of
Executive Order 12065. The Committee shall consist of Special
Representative, two Deputies and the General Counsel.
15 CFR 2008.19 Pt. 2009
15 CFR 2008.19 PART 2009 -- PROCEDURES FOR REPRESENTATIONS UNDER
SECTION 422 OF THE TRADE AGREEMENTS ACT OF 1979
Sec.
2009.0 Submission of representation.
2009.1 Information required in representation.
15 CFR 2009.0 Submission of representation.
(a) Any -- (1) Part to the Agreement; or
(2) Foreign country that is not a Party to the Agreement but is found
by the United States Trade Representative, (''Trade Representative'') to
extend rights and privileges to the United States that are substantially
the same as those that would be so extended if that foreign country were
a Party to the Agreement, may make a representation to the Trade
Representative alleging that a standards-related activity engaged in
within the United States violates the obligations of the United States
under the Agreement on Technical Barriers to Trade.
(b) All representations under section 422 of the Trade Agreements Act
of 1979 (''section 422'') shall be addressed to the United States Trade
Representative, Office of the United States Trade Representative, 600
17th Street, NW., Washington, DC 20506. Alternatively, such a
representation may be made by diplomatic correspondence and may be
accepted by the Trade Representative.
(c) ''The Agreement'', a ''Party to the Agreement'' and
''standards-related activity'' are defined as in section 451 of the Act
(19 U.S.C. 2561).
(5 U.S.C. 301; 19 U.S.C. 2504(b), 2551-2554; E.O. 11846, 40 FR
14291; Reorganization Plan No. 3 of 1979, 44 FR 69173; E.O. 12188, 45
FR 989)
(47 FR 50207, Nov. 5, 1982)
15 CFR 2009.1 Information required in representation.
(a) Each representation submitted under section 422 should state
clearly on the first page that the representation is a request for
action with respect to the obligations of the United States under the
Agreement, and should contain the following information:
(1) The foreign country making the representation, the division of
the foreign country's government representing that country's interest,
the person(s) within the division who is (are) coordinating the foreign
country's representation.
(2) A description of the standards-related activity at issues,
including, whenever possible, copies of the standards-related activity's
provisions.
(3) Identification of the foreign goods or services affected by the
standards-related activity at issue.
(4) A statement of how the standards-related activity concerned is
alleged to violate the obligations of the United States under the
Agreement. This statement shoud indicate with particularity which such
obligations are alleged to be violated.
(5) Indication as to whether the foreign country has officially
petitioned, filed or complained for relief concerning the same subject
matter as this representation to any international forum.
(b) Each representation submitted under section 422 of the Act must
contain information sufficient to provide a reasonable indication that
the standards-related activity concerned is having a significant trade
effect, including (but not limited to) the volume of trade in the goods
concerned.
(c) Representations should be submitted in 10 copies.
(5 U.S.C. 301; 19 U.S.C. 2504(b), 2551-2554; E.O. 11846, 40 FR
14291; Reorganization Plan No. 3 of 1979, 44 FR 69173; E.O. 12188, 45
FR 989)
(47 FR 50207, Nov. 5, 1982)
15 CFR 2009.1 PART 2011 -- ALLOCATION OF TARIFF-RATE QUOTA ON IMPORTED SUGARS, SYRUPS AND MOLASSES
15 CFR 2009.1 Subpart A -- Certificates of Quota Eligibility
Sec.
2011.101 General statement.
2011.102 Definitions.
2011.103 Entry into the United States.
2011.104 Waiver.
2011.105 Form and applicability of certificate.
2011.106 Agreements with foreign countries.
2011.107 Issuance of certificates to foreign countries.
2011.108 Execution and issuance of certificates by the certifying
authority.
2011.109 Suspension or revocation of individual certificates.
2011.110 Suspension of certificate system.
15 CFR 2009.1 Subpart B -- Specialty Sugar
2011.201 General statement.
2011.202 Definitions.
2011.203 Issuance of specialty sugar certificates.
2011.204 Entry of specialty sugars.
2011.205 Application for a specialty sugar certificate.
2011.206 Suspension or revocation of individual certificates.
2011.207 Suspension of the certificate system.
15 CFR 2009.1 Subpart C -- Allocations for ''Other Specified Countries
and Areas''
2011.301 General Statement.
2011.302 Definitions.
2011.303 Allocation of individual import quotas.
2011.304 Applicability.
2011.305 Relationship to overall import quota.
2011.306 Paperwork Reduction Act assigned number.
Authority: Presidential Proclamation No. 6179, September 13, 1990
(55 FR 38293); additional U.S. note 3 to chapter 17 of the Harmonized
Tariff Schedule of the United States (HTS) (19 U.S.C. 1202).
Source: 55 FR 40648, Oct. 4, 1990, unless otherwise noted.
15 CFR 2009.1 Subpart A -- Certificate of Quota Eligibility
15 CFR 2011.101 General statement.
This subpart sets forth the terms and conditions under which
certificates of quota eligibility will be issued to foreign countries
which have been allocated a share of the U.S. sugar tariff-rate quota.
Except for specialty sugars covered by the regulations in subpart B of
this part and except as otherwise provided in this subpart, sugars,
syrups, and molasses described in subheadings 1701.11.01, 1701.12.01,
1701.91.21, 1701.99.01, 1702.90.31, 1806.10.41, or 2106.90.11 of the
Harmonized Tariff Schedule of the United States (HTS), imported from a
foreign country, may not be entered or withdrawn from warehouse for
consumption under such HTS suheadings unless such sugars, syrups, or
molasses are accompanied by a certificate of quota eligibility. It has
been determined that these regulations are necessary and appropriate to
implement additional U.S. note 3 to chapter 17 of the HTS.
15 CFR 2011.102 Definitions.
Unless the context otherwise requires, for the purpose of this
subpart, the following terms shall have the meanings assigned below.
(a) Additional U.S. note 3 means additional U.S. note 3 to chapter 17
of the HTS, including any amendments thereto.
(b) Appropriate customs official means the district or area Director
of the U.S. Customs Service, his or her designee, or any other customs
officer of similar authority and responsibility for the customs district
in which the port of entry is located.
(c) Certificate of quota eligibility or ''certificate'' means a
certificate issued by the Secretary to a foreign country or area which,
when duly executed and issued by the certifying authority of such
foreign country or area, authorizes the entry into the United States of
sugar produced in such country under subheadings 1701.11.01, 1701.12.01,
1701.91.21, 1701.99.01, 1702.90.31, 1806.10.41, or 2106.90.11 of the
HTS.
(d) Certifying authority means a person designated by the government
of a foreign country who is authorized to execute and issue certificates
of quota eligibility on behalf of such foreign country.
(e) Entry means entry, or withdrawal from warehouse, for consumption
in the customs territory of the United States.
(f) Foreign country means any of the following foreign countries or
areas: Argentina, Australia, Barbados, Belize, Boliva, Brazil, Canada,
Columbia, Congo, Costa Rica, Cote d'Ivoire, Dominican Republic, Ecuador,
El Salvador, Fiji, Gabon, Guatemala, Guyana, Haiti, Honduras, India,
Jamaica, Madagascar, Malawi, Mauritius, Mexico, Mozambique, Nicaragua,
Panama, Papua- New Guinea, Paraguay, Peru, Philippines, Saint
Christopher-Nevis, Swaziland, Taiwan, Thailand, Trinidad-Tobago,
Uruguay, and Zimbabwe.
(g) Licensing Authority means the Team Leader, Import Quota Programs,
Import Policies and Trade Analysis Division, Foreign Agricultural
Service, U.S. Department of Agriculture, or his or her designee.
(h) Person means an individual, partnership, corporation,
association, estate, trust, or other legal entity, and, wherever
applicable, any unit, instrumentality, or agency of a government,
domestic or foreign.
(i) Quota means any tariff-rate quota on imports of sugars, syrups or
molasses described in subheadings 1701.11.01, 1701.12.01, 1701.91.21,
1701.99.01, 1702.90.31, 1806.10.41, and 2106.90.11 of the HTS
established and allocated pursuant to the provisions of paragraphs (a)
and (b) of additional U.S. note 3 to chapter 17 of the HTS.
(j) Quota period means any period of time for which a quota for
imports of sugar has been established in accordance with additional U.S.
note 3.
(k) Raw value means, for a given quantity of sugar, the equivalent of
that quantity of sugar in terms of ordinary commercial raw sugar testing
96 degrees by the polariscope as determined in accordance with
regulations issued by the Secretary of the Treasury.
(l) Secretary means the Secretary of Agriculture or any officer or
employee of the Department of Agriculture to whom the Secretary has
delegated the authority or to whom the authority hereafter may be
delegated to act in the Secretary's place.
(m) Sugar means sugar, syrups, and molasses described in subheadings
1701.11.01, 1701.12.01, 1701.91.21, 1701.99.01, 1702.90.31, 1806.10.41,
or 2106.90.11, but does not include specialty sugars as defined in
subpart B of this part, or, in the case of ''sugar'' which is the
product of Canada, means sugar, syrups, and molasses described in
subheadings 1701.11.02, 1701.11.03, 1701.12.02, 1701.91.22, 1701.99.02,
1702.90.32, 1806.10.42, or 2106.90.12 of the HTS, which is the product
of Canada, but does not include specialty sugars as defined in subpart B
of this part.
15 CFR 2011.103 Entry into the United States.
(a) General. Except as otherwise provided herein (see 2011.104 and
2011.109), no sugar described in subheadings 1701.11.01, 1701.12.01,
1701.91.21, 1701.99.01, 1702.90.31, 1806.10.41, or 2106.90.11 of the
HTS, which is the product of a foreign country or area, may be entered
or withdrawn from warehouse for consumption after 12:01 a.m. October 1,
1990 unless at the time of entry the person entering such sugar presents
to the appropriate customs official a valid and properly executed
certificate of quota eligibility for such sugar. Except as otherwise
provided herein (see 2011.104 and 2011.109), no sugar described in
subheadings 170.1.11.02, 1701.11.03, 1701.12.02, 1701.91.22, 1701.99.02,
1702.90.32, 1806.10.42, or 2106.90.12 of the HTS, which is the product
of Canada, may be entered or withdrawn from warehouse for consumption
after 12:01 a.m. October 1, 1990 unless at the time of entry the person
entering such sugar presents to the appropriate customs official a valid
and properly executed certificate of quota eligibility for such sugar.
(b) Determinations of weight. (1) For purposes of determining the
amount of sugar which may be entered into the United States under a
certificate of quota eligibility, sugar shall be entered on the basis of
the actual weight of the sugar, as determined by the appropriate customs
official. No adjustments in weight shall be made for the differences in
polarization.
(2) The actual weight of the sugar entered into the United States may
not exceed the weight specified on the certificate of quota eligibility
by more than five percent. Such tolerance may be modified by the
Secretary if the Secretary finds that such modification is appropriate
to carry out the provisions of this subpart. Notice of any such
modification shall be published by the Secretary in the Federal
Register.
(3) The provisions of this paragraph shall not affect the manner in
which the amount of sugar (raw value) entered into the United States is
determined for purposes of administering the import quotas imposed under
additional U.S. note 3 on sugar described in subheadings 1701.99.01,
1702.90.31, 1806.10.41, and 2106.90.11 of the HTS.
15 CFR 2011.104 Waiver.
(a) General. The Secretary may waive, with respect to individual
shipments, any or all of the requirements of this subpart if he or she
determines that a waiver will not impair the proper operation of the
sugar quota system, that it will not have the effect of modifying the
allocation of sugar made pursuant to the provisions of paragraph (b) of
additional U.S. note 3 to chapter 17 of the HTS, and that such waiver is
justified by unusual, unavoidable, or otherwise appropriate
circumstances. Such circumstances include, but are not limited to, loss
or the destruction of the certificate, unavoidable delays in transmittal
of the certificate to the port of entry, and clerical errors in the
execution or issuance of the certificate.
(b) Request for waiver. The request for a waiver must be made to the
Secretary in writing. The request need not follow any specific format.
However, the request should set forth in detail all pertinent
information relating to the shipment in question and the basis upon
which the waiver should be granted.
(c) Issuance of waiver. The Secretary shall notify, in writing, the
applicant for the waiver and the Secretary of the Treasury of any waiver
granted under the authority of this section. The Secretary may attach
any terms, conditions or limitations to the waiver which he or she
determines are appropriate.
15 CFR 2011.105 Form and applicability of certificate.
(a) Contents. Each certificate shall be numbered and identified by
the foreign country. The certificate shall state that the quantity
specified on the certificate is eligible to be entered into the United
States during the applicable quota period. The certificate shall
provide spaces into which the following information must be inserted by
the certifying authority of the foreign country: Quantity eligible to
be entered; name of shipper; name of vessel; and port of loading.
The following information, if known, may also be specified on the
certificate by the certifying authority: name and address of consignee;
expected date of departure; expected date of arrival in U.S.; and
expected port(s) of arrival in the United States. The certificate shall
also provide an area where the certifying authority of the foreign
country shall affix a seal or other form of authentication and sign and
date the certificate.
(b) Other limitations. The Secretary may attach such other terms,
limitations, or conditions to individual certificates of quota
eligibility as he or she determines are appropriate to carry out the
purposes of this subpart, provided that such other terms, limitations,
or conditions will not have the effect of modifying the allocation of
sugar made pursuant to the provisions of paragraph (b) of additional
U.S. note 3 to chapter 17 of the HTS. Such terms, limitations or
conditions may include, but are not limited to, maximum quantities per
certificate and a specified period of time during which the certificate
shall be valid. In no event shall the maximum quantity per certificate
exceed 10,000 short tons.
(c) Applicability of the certificate. The certificate of quota
eligibility shall only be applicable to the shipment of sugar for which
it was executed and issued by the certifying authority.
15 CFR 2011.106 Agreements with foreign countries.
Agreements or arrangements providing for the certificate system may
be entered into by the United States Government with the governments of
foreign countries. Such agreements or arrangements may provide for the
designation of certifying authorities, the designation of seals or other
forms of authentication, the transmittal and exchange of pertinent
information, and other appropriate means or forms of cooperation.
15 CFR 2011.107 Issuance of certificates to foreign countries.
(a) Amount and timing. The Secretary may issue certificates of quota
eligibility to foreign countries for any quota period in such amounts
and at such times as he or she determines are appropriate to enable the
foreign country to fill its quota allocation for such quota period in a
reasonable manner, taking into account traditional shipping patterns,
harvesting period, U.S. import requirements, and other relevant factors.
(b) Adjustments. The Secretary may adjust the amount of certificates
issued to a certifying authority for any quota period, provided that
such adjustment will not have the effect of modifying the allocation of
sugar made pursuant to the provisions of paragraph (b) of additional
U.S. note 3 to chapter 17 of the HTS, in order to reflect:
(1) The amount of sugar entered into warehouse during previous quota
periods;
(2) Anticipated differences in actual weight and weight determined on
a raw value basis; and
(3) Other relevant factors.
15 CFR 2011.108 Execution and issuance of certificates by the
certifying authority.
(a) Execution. The certificate of quota eligibility shall be
executed by the certifying authority by:
(1) Entering on the certificate the information required under
2011.105 of this subpart; and
(2) Affixing a seal or other form of authentication to the
certificate.
(b) Issuance. The executed certificate shall be issued by the
certifying authority to the shipper or consignee specified on the
certificate.
(c) Modifications by the certifying authority. The terms and
conditions set forth in the certificate may not be modified, added to,
or deleted by the certifying authority without the prior written
approval of the Secretary.
(d) A certificate shall not be considered valid unless it is executed
and issued in accordance with this section.
15 CFR 2011.109 Suspension or revocation of individual certificates.
(a) Suspension or revocation. The Secretary may suspend, revoke,
modify or add further limitations to any certificate if the Secretary
determines that such action or actions is necessary to ensure the
effective operation of the import quota system for sugar and that such
suspension, revocation, modification or addition of further limitations
will not have the effect of modifying the allocation of sugar made
pursuant to the provisions of paragraph (b) of additional U.S. note 3 to
chapter 17 of the HTS.
(b) Reinstatement. The Secretary may reinstate or reissue any
certificate which was previously suspended, revoked, modified, or
otherwise limited under the authority of this section.
15 CFR 2011.110 Suspension of certificate system.
(a) Suspension. The U.S. Trade Representative may suspend the
provisions of this subpart whenever he or she determines that such
action gives due consideration to the interests in the U.S. sugar market
of domestic producers and materially affected contracting parties to the
General Agreement on Tariffs and Trade. Notice of such suspension and
the effective date thereof shall be published in the Federal Register.
(b) Reinstatement. The U.S. Trade Representative may at any time
reinstate the operation of this subpart if he or she finds that the
conditions set forth in paragraph (a) of this section no longer apply.
Notice of such reinstatement and the effective date thereof shall be
published in the Federal Register.
(c) Transitional provisions. In the case of any suspension or
reinstatement of the certificate system established by this subpart, the
Secretary, in consultation with the United States Trade Representative,
may prescribe such additional guidelines, instructions, and limitations
which shall be applied or implemented by appropriate customs officials
in order to ensure an orderly transition.
15 CFR 2011.110 Subpart B -- Specialty Sugar
15 CFR 2011.201 General statement.
This subpart sets forth the terms and conditions under which
specialty sugar certificates will be issued to U.S. importers for
importing specialty sugars from countries set forth in additional U.S.
note 3(b)(i) to chapter 17 of the Harmonized Tariff Schedule of the
United States (HTS). Specialty sugars imported from such countries may
not be entered under subheadings 1701.11.01, 1701.12.01, 1701.91.21,
1701.99.01, 1702.90.31, 1806.10.41, or 2106.90.11 of the HTS unless
accompanied by a specialty sugar certificate. It has been determined
that the regulations in this subpart are necessary and appropriate to
implement authority conferred on the United States Trade Representative
by additional U.S. note 3 to chapter 17 of the HTS. It has further been
determined that these regulations give consideration to the interests in
the U.S. sugar market of domestic producers and materially affected
contracting parties to the General Agreement on Tariffs and Trade
(GATT), and that these regulations are necessary and appropriate to
assist in fulfilling U.S. obligations under the GATT.
15 CFR 2011.202 Definitions.
Unless the context otherwise requires, for the purpose of this
subpart, the following terms shall have the meanings assigned below.
(a) Appropriate Customs official means the District or Area Director
of Customs, his or her designee, or any other Customs officer of similar
authority and responsibility for the Customs district in which the port
of entry is located.
(b) Certificate means a specialty sugar certificate issued by the
Certifying Authority permitting the entry of specialty sugar as defined
in this section.
(c) Certifying Authority means the Team Leader, Import Quota
Programs, Foreign Agriculture Service, U.S. Department of Agriculture,
or his or her designee.
(d) Date of entry means the date on which the appropriate Customs
entry form is properly executed and deposited, together with any
estimated duties and special import fees and any related documents
required by law or regulation to be filed with such form at the time of
entry with the appropriate Customs Officer.
(e) Importer means any person in the United States importing
specialty sugar into the United States.
(f) Person means any individual, partnership, corporation,
association, estate, trust, or any other business entity, and, whenever
applicable, any unit, instrumentality, or agency, of a government,
domestic or foreign.
(g) Other specialty sugar source countries means the following
countries: Belgium, Burma, Cameroon, Denmark, Federal Republic of
Germany, France, Hong Kong, Indonesia, Ireland, Italy, Japan, Kenya,
Luxembourg, Netherlands, Netherlands Antilles, People's Republic of
China, Republic of Korea, Republic of Yemen, Surinam, Sweden,
Switzerland, United Kingdom, and Venezuela.
(h) Quota means any tariff-rate quota on imports of any sugars,
sirups, or molasses provided for in subheadings 1701.11.01, 1701.12.01,
1701.91.21, 1701.99.01, 1702.90.31, 1806.10.41, and 2106.90.11 of the
HTS applied under the authority of additional U.S. note 3 to chapter 17
of the HTS and any modifications thereto.
(i) Secretary means the Secretary of Agriculture or any officer of
employee of the Department of Agriculture to whom the Secretary has
delegated the authority or to whom the authority hereafter may be
delegated to act in his place.
(j) Specialty sugar means brown slab sugar (also known as slab sugar
candy), pearl sugar (also known as perl sugar, perle sugar, and nibs
sugar), vanilla sugar, rock candy, demerara sugar, silver dragees for
cooking and baking, white fondant (a creamy blend of sugar and glucose),
ti light sugar (99.2% sugar with the residual comprised of the
artificial sweeteners aspartame and acesulfame K), caster sugar, golden
syrup, and ferdiana granella grossa, which in addition:
(1) Are sugars, syrups, or molasses described in subheadings
1701.11.01, 1701.12.01, 1701.91.21, 1701.99.01, 1702.90.31, 1806.10.41,
or 2106.90.11 of the Harmonized Tariff Schedule of the United States.
(2) Are the product of a country listed among the ''other specialty
sugar source countries,'' and
(3) Require no further refining, processing, or other preparation
prior to consumption, other than incorporation as an ingredient in human
food.
15 CFR 2011.203 Issuance of specialty sugar certificates.
(a) Specialty sugars imported into the United States from other
specialty sugar source countries may be entered under subheadings
1701.11.01, 1701.12.01, 1701.91.21, 1701.99.01, 1702.90.31, 1806.10.41,
or 2106.90.11 of the HTS only if such specialty sugars are accompanied
by a certificate issued by the Certifying Authority.
(b) A certificate may be issued to an importer who complies with the
provisions of this part. The certificate may contain such conditions,
limitations or restrictions as the Certifying Authority, in his
discretion, deems necessary. The Certifying Authority will issue a
certificate if sufficient evidence has been provided to permit the
Certifying Authority to make a reasonable determination that the sugar
proposed to be imported under the certificate fits the definition of
specialty sugars in this subpart.
(c) Subject to quota availability, an unlimited number of complying
shipments may enter under a given certificate and a given certificate
may cover more than one type of specialty sugar. Issuance of a
certificate does not guarantee the entry of any specific shipment of
specialty sugars under subheadings 1701.11.01, 1701.12.01, 1701.91.21,
1701.99.01, 1702.90.31, 1806.10.41, or 2106.90.11 of the HTS, but only
permits entry of such sugar under such HTS subheadings if the applicable
quota or quotas are not already filled.
15 CFR 2011.204 Entry of specialty sugars.
An importer or his or her agent must present a certificate to the
appropriate Customs official at the time of entry of specialty sugars.
Entry of specialty sugars under subheadings 1701.11.01, 1701.12.01,
1701.91.21, 1701.99.01, 1702.90.31, 1806.10.41, or 2106.90.11 of the HTS
shall be allowed only in conformity with the description of sugars and
other conditions, if any, stated in the certificate.
15 CFR 2011.205 Application for a specialty sugar certificate.
Applicants for certificates for the import of specialty sugars must
apply in writing to the Certifying Authority. Such letter of
application shall contain the following information:
(a) The name and address of the applicant;
(b) A statement of the anticipated quantity of specialty sugars to be
imported, if known;
(c) The appropriate six digit HTS subheading number;
(d) A description of the specialty sugar the importer expects to
import during the period of the certificate, including the
manufacturer's or exporter's usual trade name or designation and use of
such specialty sugar, and the importer's use of such specialty sugar;
(e) Sufficient evidence to permit the Certifying Authority to make a
reasonable determination that such sugars are specialty sugars within
the definition of specialty sugars in this subpart;
(f) The name of the anticipated consumer of the specialty sugars, if
known at time of application; and
(g) The anticipated date of entry, if known at time of application.
The Certifying Authority may waive any provision of this section for
good cause if her or she determines that such a waiver will not
adversely affect the implementation of this subpart.
15 CFR 2011.206 Suspension or revocation of individual certificates.
(a) Suspension or revocation. The Certifying Authority may suspend,
revoke, modify or add limitations to any certificate which has been
issued if he or she determines that such action or actions is necessary
to ensure the effective operation of the quota for specialty sugars or
determines that the importer has failed to comply with the requirements
of this subpart.
(b) Reinstatement. The Certifying Authority may reinstate or restore
any certificate which was previously suspended, revoked, modified or
otherwise limited under the authority of this section.
(c) The determination of the Certifying Authority under paragraph (a)
of this section that the importer has failed to comply with the
requirements of this subpart may be appealed to the Director, Import
Policy and Trade Analysis Division, Foreign Agriculture Service (FAS),
U.S. Department of Agriculture, Washington, DC 20250, within 30 days
from the date of suspension or revocation. The request for
reconsideration shall be presented in writing and shall specifically
state the reason or reasons why such determination should not stand.
The Director, Import Policy and Trade Analysis Division, Foreign
Agriculture Service (FAS), U.S. Department of Agriculture, Washington,
DC 20250, will provide such person with an opportunity for an informal
hearing on such matter. A further appeal may be made to the
Administrator, FAS, U.S. Department of Agriculture, Washington, DC
20250, within five working days of receipt of the notification of the
Director's decision. The Certifying Authority may take action under
paragraph (b) of this section during the pendency of any appeal.
15 CFR 2011.207 Suspension of the certificate system.
(a) Suspension. The U.S. Trade Representative may suspend the
provisions of this subpart whenever he or she determines that the quota
provided for in additional note 3 to chapter 17 of the HTS is no longer
in force or that this subpart is no longer necessary to implement those
provisions. Notice of such suspension and the effective date thereof
shall be published in the Federal Register.
(b) Reinstatement. The U.S. Trade Representative may at any time
reinstate the operation of this subpart if he or she finds that the
conditions set forth in paragraph (a) of this section no longer apply.
Notice of such reinstatement and the effective date thereof shall be
published in the Federal Register.
(c) Transitional provisions. In the case of any suspension or
reinstatement of the certificate system established by this subpart, the
Certifying Authority may prescribe such additional guidelines,
instructions, and limitations which shall be applied or implemented by
appropriate Customs officials in order to ensure an orderly transition.
15 CFR 2011.207 Subpart C -- Allocations for ''Other Specified Countries and Areas''
15 CFR 2011.301 General Statement.
This subpart sets forth the manner in which individual allocations of
the tariff-rate quota will be calculated for those countries listed as
''Other specified countries and areas'' in paragraph (b)(i) of
additional U.S. note 3 to chapter 17 of the Harmonized Tariff Schedule
of the United States (HTS). It has been determined that the regulations
in this subpart are necessary and appropriate to provide reasonable
access to the U.S. sugar market to countries listed as ''Other specified
countries and areas.'' It has further been determined that these
regulations give due consideration to the interests in the U.S. sugar
market of domestic producers and materially affected contracting parties
to the General Agreement on Tariffs and Trade.
15 CFR 2011.302 Definitions.
Unless the context otherwise requires, for the purpose of this
subpart, the following terms shall have the meanings assigned below.
(a) Individual quota amount means a specific quantity of sugars,
syrups and molasses described in subheadings 1701.11.01, 1701.12.01,
1701.91.21, 1701.99.01, 1702.90.31, 1806.10.41, or 2106.90.11 of the
HTS, that may be imported from each country and area included in the
category of ''Other specified countries and areas.''
(b) Other specified countries and areas means the following countries
and areas: Congo, Cote d'Ivoire, Gabon, Haiti, Madagascar, Mexico,
Papua-New Guinea, Paraguay, Saint Christopher-Nevis, and Uruguay.
(c) Quota means any tariff-rate quota on imports of sugars, syrups or
molasses described in subheadings 1701.11.01, 1701.12.01, 1701.91.21,
1701.99.01, 1702.90.31, 180.10.41, and 2106.90.11 of the HTS established
under the provisions of paragraph (a) of additional U.S note 3 to
chapter 17 of the HTS.
(d) Total quota amount means the total amount, as established by the
Secretary of Agriculture, of sugars, syrups and molasses described in
subheadings 1701.11.01, 1701.12.01, 1701.91.21, 1701.99.01, 1702.90.31,
1806.10.41, and 2106.90.11 of the HTS, that may be entered or withdrawn
from warehouse for consumption, during such period as shall be
established by the Secretary of Agriculture.
15 CFR 2011.303 Allocation of individual import quota
(a) Each foreign country and area in the category of ''Other
specified countries and areas'' shall be allocated an individual quota
amount for each quota period.
(b) The individual quota amount for each country and area in the
category of ''Other specified countries and areas'' shall be the greater
of:
(1) The pro rata share of the total quota amount allocated to the
category ''Other specified countries and areas'' for each quota period
in question;
(2) 7,258 metric tons, raw value; or
(3) Such other minimum quota amount as shall be determined by the
United States Trade Representative to be appropriate to provide
reasonable access to the U.S. market for imports from the other
specified countries and area.
(c) Notwithstanding paragraph (b) of this section, the United States
Trade Representative may provide for the allocation to other specified
countries and areas of other individual quota amounts for specific time
periods, or other special rules or limitations, in order to ensure an
orderly transition in the following circumstances:
(1) The addition or deletion of a country or area to or from the
category ''Other specified countries and areas;'' or
(2) A change from an annual quota period (October 1-September 30) to
another quota period.
Notice of any such quotas, rules, or limitations shall be published
in the Federal Register.
15 CFR 2011.304 Applicability.
This subpart shall be applicable to the quota period beginning
October 1, 1990, and all subsequent quota periods.
15 CFR 2011.305 Relationship to overall import quota.
The allocation of minimum quota amounts to the ''Other specified
countries and areas'' may result in a quota allocation for such category
which is in excess of that category's percentage allocation of quota.
15 CFR 2011.306 Paperwork Reduction Act assigned number.
The Office of Management and Budget (OMB) has approved the
information collection requirements contained in the regulations in this
subpart in accordance with 44 U.S.C. chapter 25 and OMB control number
0551-0014 has been assigned.
15 CFR 2011.306 Ch. XX, App. A
15 CFR 2011.306 Appendix A to Chapter XX -- Administration of the Trade
Agreements Program
Text of Executive Order No. 11846 of Mar. 27, 1975 (40 FR 14291).
By virtue of the authority vested in me by the Trade Act of 1974,
hereinafter referred to as the Act (Pub. L. 93-618, 88 Stat. 1978), the
Trade Expansion Act of 1962, as amended (19 U.S.C. 1801), section 350 of
the Tariff Act of 1930, as amended (19 U.S.C. 1351), and section 301 of
Title 3 of the United States Code, and as President of the United
States, it is hereby ordered as follows:
Section 1. The Trade Agreements Program. The ''trade agreements
program'' includes all activities consisting of, or related to, the
negotiation or administration of international agreements which
primarily concern trade and which are concluded pursuant to the
authority vested in the President by the Constitution, section 350 of
the Tariff Act of 1930, as amended, the Trade Expansion Act of 1962, as
amended, or the Act.
Sec. 2. The Special Representative for Trade Negotiations. (a) The
Special Representative for Trade Negotiations, hereinafter referred to
as the Special Representative, in addition to the functions conferred
upon him by the Act, including section 141 thereof, and in addition to
the functions and responsibilities set forth in this Order, shall be
responsible for such other functions as the President may direct.
(b) The Special Representative, except where otherwise expressly
provided by statute, Executive order, or instructions of the President,
shall be the chief representative of the United States for each
negotiation under the trade agreements program and shall participate in
other negotiations which may have a direct and significant impact on
trade.
(c) The Special Representative shall prepare, for the President's
transmission to Congress, the annual report on the trade agreements
program required by section 163(a) of the Act. At the request of the
Special Representative, other agencies shall assist in the preparation
of that report.
(d) The Special Representative, except where expressly otherwise
provided or prohibited by statute, Executive order, or instructions of
the President, shall be responsible for the proper administration of the
trade agreements program, and may, as he deems necessary, assign to the
head of any Executive agency or body the performance of his duties which
are incidental to the administration of the trade agreements program.
(e) The Special Representative shall consult with the Trade Policy
Committee in connection with the performance of his functions, including
those established or delegated by this Order, and shall, as appropriate,
consult with other Federal agencies or bodies. With respect to the
performance of his functions under Title IV of the Act, including those
established or delegated by this Order, the Special Representative shall
also consult with the East-West Foreign Trade Board.
(f) The Special Representative shall be responsible for the
preparation and submission of any Proclamation which relates wholly or
primarily to the trade agreements program. Any such Proclamation shall
be subject to all the provisions of Executive Order 11030, as amended,
except that such Proclamation need not be submitted to the Director of
the Office of Management and Budget.
(g) The Secretary of State shall advise the Special Representative,
and the Committee, on the foreign policy implications of any action
under the trade agreements program. The Special Representative shall
invite appropriate departments to participate in trade negotiations of
particular interest to such departments, and the Department of State
shall participate in trade negotiations which have a direct and
significant impact on foreign policy.
Sec. 3. The Trade Policy Committee. (a) As provided by section 242
of the Trade Expansion Act of 1962 (19 U.S.C. 1872), as amended by
section 602(b) of the Act, there is established the Trade Policy
Committee hereinafter referred to as the Committee. The Committee shall
be composed of:
(1) The Special Representative, who shall be Chairman.
(2) The Secretary of State.
(3) The Secretary of the Treasury.
(4) The Secretary of Defense.
(5) The Attorney General.
(6) The Secretary of the Interior.
(7) The Secretary of Agriculture.
(8) The Secretary of Commerce.
(9) The Secretary of Labor.
(10) The Assistant to the President for Economic Affairs.
(11) The Executive Director of the Council on International Economic
Policy. Each member of the Committee may designate an officer of his
agency, whose status is not below that of an Assistant Secretary, to
serve in his stead, when he is unable to attend any meetings of the
Committee. The Chairman, as he deems appropriate, may invite
representatives from other agencies to attend the meetings of the
Committee.
(b) The Committee shall have the functions conferred by the Trade
Expansion Act of 1962, as amended, upon the inter-agency organization
referred to in section 242 thereof, as amended, the functions delegated
to it by the provisions of this Order, and such other functions as the
President may from time to time direct. Recommendations and advice of
the Committee shall be submitted to the President by the Chairman.
(c) The recommendations made by the Committee under section 242(b)(1)
of the Trade Expansion Act of 1962, as amended, with respect to basic
policy issues arising in the administration of the trade agreements
program, as approved or modified by the President, shall guide the
administration of the trade agreements program. The Special
Representative or any other officer who is chief representative of the
United States in a negotiation in connection with the trade agreements
program shall keep the Committee informed with respect to the status and
conduct of negotiations and shall consult with the Committee regarding
the basic policy issues arising in the course of negotiations.
(d) Before making recommendations to the President under section
242(b)(2) of the Trade Expansion Act of 1962, as amended, the Committee
shall, through the Special Representative, request the advice of the
Adjustment Assistance Coordinating Committee, established by section 281
of the Act.
(e) The Committee shall advise the President as to what action, if
any, he should take under section 337(g) of the Tariff Act of 1930, as
amended by section 341 of the Act, relating to unfair practices in
import trade.
(f) The Trade Expansion Act Advisory Committee established by Section
4 of Executive Order 11075 of January 15, 1963, is abolished and all of
its records are transferred to the Trade Policy Committee.
Sec. 4. Trade Negotiations Under Title I of the Act. (a) The
functions of the President under section 102 of the Act concerning
notice to, and consultation with, Congress, in connection with
agreements on nontariff barriers to, and other distortions of, trade,
are hereby delegated to the Special Representative.
(b) The Special Representative, after consultation with the
Committee, shall prepare, for the President's transmission to Congress,
all proposed legislation and other documents necessary or appropriate
for the implementation of, or otherwise required in connection with,
trade agreements; provided, however, that where implementation of an
agreement on nontariff barriers to, and other distortions of, trade
requires a change in a domestic law, the department or agency having the
primary interest in the administration of such domestic law shall
prepare and transmit to the Special Representative the proposed
legislation necessary or appropriate for such implementation.
(c) The functions of the President under section 131(c) of the Act
with respect to advice of the International Trade Commission and under
section 132 of the Act with respect to advice of the departments of the
Federal Government and other sources, are delegated to the Special
Representative. The functions of the President under section 133 of the
Act with respect to public hearings in connection with certain trade
negotiations are delegated to the Special Representative, who shall
designate an interagency committee to hold and conduct any such
hearings.
(d) The functions of the President under section 135 of the Act with
respect to advisory committees and, notwithstanding the provisions of
any other Executive order, the functions of the President under the
Federal Advisory Committee Act (86 Stat. 770, 5 U.S.C. App. I), except
that of reporting annually to Congress, which are applicable to advisory
committees under the Act are delegated to the Special Representative.
In establishing and organizing general policy advisory committees or
sector advisory committees under section 135(c) of the Act, the Special
Representative shall act through the Secretaries of Commerce, Labor and
Agriculture, as appropriate.
(e) The functions of the President with respect to determining ad
valorem amounts and equivalents pursuant to sections 601 (3) and (4) of
the Act are hereby delegated to the Special Representative. The
International Trade Commission is requested to advise the Special
Representative with respect to determining such ad valorem amounts and
equivalents. The Special Representative shall seek the advice of the
Commission and consult with the Committee with respect to the
determination of such ad valorem amounts and equivalents.
(f) Advice of the International Trade Commission under section 131 of
the Act, and other advice or reports by the International Trade
Commission to the President or the Special Representative, the release
or disclosure of which is not specifically authorized or required by
law, shall not be released or disclosed in any manner or to any extent
not specifically authorized by the President or by the Special
Representative.
Sec. 5. Import Relief and Market Disruption. (a) The Special
Representative is authorized to request from the International Trade
Commission the information specified in sections 202(d) and 203(i) (1)
and (2) of the Act.
(b) The Secretary of the Treasury, in consultation with the Secretary
of Commerce or the Secretary of Agriculture, as appropriate, is
authorized to issue, under section 203(g) of the Act, regulations
governing the administration of any quantitative restrictions proclaimed
in order to provide import relief and is authorized to issue, under
section 203(g) of the Act or 352(b) of the Trade Expansion Act of 1962,
regulations governing the entry, or withdrawal from warehouses for
consumption, of articles pursuant to any orderly marketing agreement.
(c) The Secretary of Commerce shall exercise primary responsibility
for monitoring imports under any orderly marketing agreement.
Sec. 6. Unfair Trade Practices. (a) The Special Representative,
acting through an interagency committee which he shall designate for
such purpose, shall provide the opportunity for the presentation of
views, under sections 301(d)(1) and 301(e)(1) of the Act, with respect
to unfair or unreasonable foreign trade practices and with respect to
the United States response thereto.
(b) The Special Representative shall provide for appropriate public
hearings under section 301(e)(2) of the Act; and, shall issue
regulations concerning the filing of requests for, and the conduct of,
such hearings.
(c) The Special Representative is authorized to request, pursuant to
section 301(e)(3) of the Act, from the International Trade Commission,
its views as to the probable impact on the economy of the United States
of any action under section 301(a) of the Act.
Sec. 7. East-West Foreign Trade Board. (a) In accordance with
section 411 of the Act, there is hereby established the East-West
Foreign Trade Board, hereinafter referred to as the Board. The Board
shall be composed of the following members and such additional members
of the Executive branch as the President may designate:
(1) The Secretary of State.
(2) The Secretary of the Treasury.
(3) The Secretary of Agriculture.
(4) The Secretary of Commerce.
(5) The Special Representative for Trade Negotiations.
(6) The Director of the Office of Management and Budget.
(7) The Executive Director of the Council on International Economic
Policy.
(8) The President of the Export-Import Bank of the United States.
(9) The Assistant to the President for Economic Affairs.
The President shall designate the Chairman and the Deputy Chairman of
the Board. The President may designate an Executive Secretary, who
shall be Chairman of a working group which will include membership from
the agencies represented on the Board.
(b) The Board shall perform such functions as are required by section
411 of the Act and such other functions as the President may direct.
(c) The Board is authorized to promulgate such rules and regulations
as are necessary or appropriate to carry out its responsibilities under
the Act and this Order.
(d) The Secretary of State shall advise the President with respect to
determinations required to be made in connection with sections 402 and
409 of the Act (dealing with freedom of emigration) and section 403
(dealing with United States personnel missing in action in Southeast
Asia), and shall prepare, for the President's transmission to Congress,
the reports and other documents required by sections 402 and 409 of the
Act.
(e) The President's Committee on East-West Trade Policy, established
by Executive Order 11789 of June 25, 1974, as amended by section 6(d) of
Executive Order 11808 of September 30, 1974, is abolished and all of its
records are transferred to the Board.
Sec. 8. Generalized System of Preferences. (a) The Special
Representative, in consultation with the Secretary of State, shall be
responsible for the administration of the generalized system of
preferences under Title V of the Act.
(b) The Committee, through the Special Representative, shall advise
the President as to which countries should be designated as beneficiary
developing countries, and as to which articles should be designated as
eligible articles for the purposes of the system of generalized
preferences.
Sec. 9. Prior Executive Orders. (a) Executive Order 11789 of June
25, 1974, and Section 6(d) of Executive Order 11808 of September 30,
1974, relating to the President's Committee on East-West Trade Policy
are hereby revoked.
(b)(1) Sections 5(b), 7, and 8 of the Executive Order 11075 of
January 15, 1963, are hereby revoked effective April 3, 1975; (2) the
remainder of Executive Order 11075, and Executive Order 11106 of April
18, 1963 and Executive Order 11113 of June 13, 1963, are hereby revoked.
(40 FR 18422, Apr. 28, 1975)
15 CFR 2011.306 Subtitle D -- Regulations Relating to Telecommunications and Information
15 CFR 2011.306 CHAPTER XXIII -- NATIONAL
15 CFR 2011.306 TELECOMMUNICATIONS AND INFORMATION
15 CFR 2011.306 ADMINISTRATION, DEPARTMENT OF COMMERCE
Part
Page
2301 Public Telecommunications Facilities Program
15 CFR 2011.306
15 CFR 2011.306 15 CFR Ch. XXIII (1-1-92 Edition)
15 CFR 2011.306 Nat'l Telecommunications & Info. Admin., Commerce
15 CFR 2011.306 Pt. 2301
15 CFR 2011.306 PART 2301 -- PUBLIC TELECOMMUNICATIONS FACILITIES PROGRAM
15 CFR 2011.306 Subpart A -- Definitions, Program Purposes and Special
Consideration
Sec.
2301.1 Definitions.
2301.2 Program purposes.
2301.3 Special consideration.
15 CFR 2011.306 Subpart B -- Eligibility and Application Procedures
2301.4 Eligible organizations and projects.
2301.5 Application procedures.
2301.6 Additional information.
2301.7 Service of applications.
2301.8 Federal Communications Commission authorization.
2301.9 Acceptance for filing.
2301.10 Appeals.
2301.11 Public comments.
2301.12 Coordination with interested agencies and organizations.
2301.13 Funding criteria for construction applications.
2301.14 Funding criteria for planning applications.
2301.15 Action on all applications.
15 CFR 2011.306 Subpart C -- Federal Financial Participation
2301.16 Amount of the Federal grant.
2301.17 Items and costs ineligible for Federal funding.
2301.18 Payment of the Federal grant.
15 CFR 2011.306 Subpart D -- Accountability for Federal Funds
2301.19 Retention of records.
2301.20 Completion of projects.
2301.21 Annual status report for construction projects.
15 CFR 2011.306 Subpart E -- Control and Use of Facilities
2301.22 Conditions attached to the Federal grant.
2301.23 Grant suspensions, terminations, and transfers.
2301.24 Equipment.
15 CFR 2011.306 Subpart F -- Waivers
2301.25 Waivers.
15 CFR 2011.306 Appendix to Part 2301 -- Special Applications and
Priorities
Authority: Public Telecommunications Financing Act of 1978, Pub. L.
95-567, 92 Stat. 2405, codified at 47 U.S.C. 390-394, 397-399b; and
the Public Broadcasting Amendments Act of 1981, Pub. L. 97-35, 95 Stat.
725, and the Consolidated Omnibus Budget Reconciliation Act of 1985,
Pub. L. 99-272, section 5001, 100 Stat. 117. The Public
Telecommunications Act of 1988, Pub. L. 100-626, 102 Stat. 3207.
Source: 56 FR 59174, Nov. 22, 1991, unless otherwise noted.
15 CFR 2011.306 Subpart A -- Definitions, Program Purposes and Special Consideration
15 CFR 2301.1 Definitions.
Act means part IV of title III of the Communications Act of 1934, 47
U.S.C. 390-394 and 397-399b, as amended.
Administrator means the Assistant Secretary for Communications and
Information of the United States Department of Commerce.
Agency means the National Telecommunications and Information
Administration of the United States Department of Commerce.
Broadcast means the distribution of electronic signals to the public
at large using television (VHF or UHF) or radio (AM or FM) technologies.
Construction (as applied to public telecommunications facilities)
means acquisition (including acquisition by lease), installation, and
improvement of public telecommunications facilities and preparatory
steps incidental to any such acquisition, installation or improvement.
Department means the United States Department of Commerce.
FCC means the Federal Communications Commission.
Federal interest period means the period of time during which the
Federal government retains a reversionary interest in all facilities
constructed with Federal grant funds. This period begins with the
purchase of the facilities and continues for ten (10) years after the
official completion date of the project.
Nonbroadcast means the distribution of electronic signals by a means
other than broadcast technologies. Examples of nonbroadcast are
Instructional Television Fixed Service (ITFS), teletext, and cable.
Noncommercial educational broadcast station or public broadcast
station means a television or radio broadcast station that is eligible
to be licensed by the FCC as a noncommercial educational radio or
television broadcast station and that is owned (controlled) and operated
by a state, a political or special purpose subdivision of a state,
public agency or nonprofit private foundation, corporation, institution,
or association, or owned (controlled) and operated by a municipality and
transmits only noncommercial educational, cultural or instructional
programs.
Noncommercial telecommunications entity means any enterprise that is
owned (controlled) and operated by a state, a political or special
purpose subdivision of a state, a public agency, or a nonprofit private
foundation, corporation, institution, or association; and that has been
organized primarily for the purpose of disseminating audio or video
noncommercial educational, cultural or instructional programs to the
public by means other than a primary television or radio broadcast
station, including, but not limited to, coaxial cable, optical fiber,
broadcast translators, cassettes, discs, satellite, microwave or laser
transmission.
Non-Federal financial support means the total value of cash and the
fair market value of property and services received,
(1) As gifts, grants, bequests, donations, or other contributions for
the construction or operation of noncommercial educational broadcast
stations, or for the production, acquisition, distribution, or
dissemination of educational, cultural or instructional television or
radio programs, and related activities, from any source other than (i)
the United States or any agency or instrumentality of the United States;
or (ii) any public broadcasting entity; or,
(2) As gifts, grants, donations, contributions, or payments from any
State, or any educational institution, for the construction or operation
of noncommercial educational broadcast stations or for the production,
acquisition, distribution, or dissemination of educational, cultural or
instructional television or radio programs, or payments in exchange for
services or materials with respect to the provision of educational,
cultural or instructional television or radio programs.
Nonprofit (as applied to any foundation, corporation, institution or
association) means a foundation, corporation, institution, or
association, no part of the net earnings of which inures, or may
lawfully inure, to the benefit of any private shareholder or individual.
Operational cost means those approved costs incurred in the operation
of an entity or station such as overhead labor, material, contracted
services (such as building or equipment maintenance), including capital
outlay and debt service.
Pre-operational expenses means all nonconstruction costs incurred by
new public telecommunications entities before the date on which they
began providing service to the public, and all nonconstruction costs
associated with the expansion of existing stations before the date on
which such expanded capacity is activated, except that such expenses
shall not include any portion of the salaries of any personnel employed
by an operating public telecommunications entity.
PTFP means the Public Telecommunications Facilities Program, which is
administered by the Agency.
PTFP Director means the Agency employee who recommends final action
on public telecommunications facilities applications and grants to the
Administrator.
Public telecommunications entity means any enterprise which is a
public broadcast station or noncommercial telecommunications entity and
which disseminates public telecommunication services to the public.
Public telecommunications facilities means apparatus necessary for
production, interconnection, captioning, broadcast, or other
distribution of programming, including but not limited to studio
equipment, cameras, microphones, audio and video storage or processors
and switchers, terminal equipment, towers, antennas, transmitters,
remote control equipment, transmission line, translators, microwave
equipment, mobile equipment, satellite communications equipment,
instructional television fixed service equipment, subsidiary
communications authorization transmitting and receiving equipment, cable
television equipment, optical fiber communications equipment and other
means of transmitting, emitting, storing, and receiving images and
sounds or information, except that such term does not include the
buildings to house such apparatus (other than small equipment shelters
that are part of satellite earth stations, translators, microwave
interconnection facilities, and similar facilities).
Public telecommunications services means noncommercial educational
and cultural radio and television programs, and related noncommercial
instructional or informational material that may be transmitted by means
of electronic communications. It does not include essentially sectarian
programming.
Sectarian means that which has the purpose or function of advancing
or propagating a religious belief.
State includes each of the fifty states, the District of Columbia,
the Commonwealth of Puerto Rico, the Virgin Islands, Guam, American
Samoa, the Northern Mariana Islands, and the Trust Territory of the
Pacific Islands.
System of public telecommunications entities means any combination of
public telecommunications entities acting cooperatively to produce,
acquire or distribute programs, or to undertake related activities.
15 CFR 2301.2 Program purposes.
(a) The Agency's determination to fund an application and the amount
of the grant awarded shall be governed by whether the application will,
in the following order of priority, result in:
(1) The establishment of new public telecommunications facilities to
extend services to areas not currently receiving such services;
(2) The expansion of the service areas of existing public
telecommunications entities; or,
(3) The improvement of the capabilities of existing licensed public
broadcasting stations to provide public telecommunications services.
(b) Notwithstanding paragraph (a) of this section, the Agency may
award a grant to an applicant which is otherwise eligible for funding,
but whose proposal does not specifically meet any of the purposes
enumerated above. Such grant, however, must fulfill the overall
objectives of the Act.
15 CFR 2301.3 Special consideration.
In accordance with section 392(f) of the Act, the Agency will give
special consideration to applications that foster ownership or control
of, operation of, and participation in public telecommunications
entities by minorities and women. The Agency interprets ''ownership''
and ''owned'' as meaning control of an entity through the possession or
exercise of the normal incidents of ownership, such as participation on
the governing board or holding corporate offices. The Agency will
accord special consideration only where women and/or minorities hold
more than fifty (50) percent control of the applicant. The Agency will
consider the composition of the applicant's governing body, management
levels, or policy-making positions.
15 CFR 2301.3 Subpart B -- Eligibility and Application Procedures
15 CFR 2301.4 Eligible organizations and projects.
(a) Eligible applicants (Construction Grants). In order to apply for
and receive a PTFP Construction Grant, an applicant must be:
(1) A public or noncommercial educational broadcast station;
(2) A noncommercial telecommunications entity;
(3) A system of public telecommunications entities;
(4) A nonprofit foundation, corporation, institution, or association
organized primarily for educational or cultural purposes; or,
(5) A state or local government or agency, or a political or special
purpose subdivision of a state.
(b) Eligible applicants (Planning Grants). In order to apply for and
receive a PTFP Planning Grant, an applicant must be:
(1) Any of the organizations described in paragraph (a) of this
section; or,
(2) A nonprofit foundation, corporation, institution, or association
organized for any purpose except primarily religious.
(c) Eligible projects. An applicant that is eligible under paragraph
(a) or (b) of this section may file an application with the Agency for a
planning or construction grant to achieve the following:
(1) The provision of new public telecommunications facilities to
extend service to areas currently not receiving public
telecommunications services;
(2) The expansion of the service areas of existing public
telecommunications entities;
(3) The establishment of new public telecommunications entities
serving areas currently receiving public telecommunications services;
or,
(4) The improvement of the capabilities of existing licensed public
broadcast stations to provide public telecommunications services.
(d) Applicants must certify whether they are delinquent on any
Federal debt. In accordance with OMB Circular A-129, an applicant with
outstanding accounts receivable with any agency of the Federal
government will not receive an NTIA grant until the debt is paid or
arrangements to repay which are satisfactory to the government agency in
question are made. This includes debts incurred by sub-units of the
applicant other than the sub-unit that is applying to NTIA, and includes
debts owed to any agency of the Federal government, not just to the
Department or NTIA.
(e) An applicant whose proposal requires an authorization from the
FCC must be eligible to receive such authorization.
(f) Preliminary determination of eligibility. In order to obtain a
preliminary determination of applicant or proposal eligibility, a
prospective applicant must send a letter requesting such determination
to the Agency.
(1) The request letter should be addressed to: PTFP Director,
NTIA/DOC, 14th Street and Constitution Avenue, NW., room H-4625,
Washington, DC 20230.
(2) In the request letter the prospective applicant must:
(i) Describe the proposed project;
(ii) Include a copy of the organization's articles of incorporation
and bylaws, or other similar documentation, which specifies the nature
and powers of the prospective applicant (unless the prospective
applicant has received a PTFP grant within the last ten (10) years, in
which case only a copy of the most recent Annual Report or Quarterly
Performance Report and any changes in the articles of incorporation and
bylaws since the last grant must be provided); and,
(iii) If the prospective applicant is a nonprofit foundation,
corporation, institution, or association which has not received a PTFP
grant within the previous ten (10) years, provide a copy of a letter
from the Internal Revenue Service granting the prospective applicant tax
exempt status under section 501(c)(3) of the Internal Revenue Code, or
other legal documentation of nonprofit status.
(3) A favorable preliminary determination of eligibility does not
guarantee that the Agency will accept a future application for filing or
award a subsequent grant.
(4) A prospective applicant may appeal an unfavorable preliminary
determination of eligibility to the Administrator under 2301.10.
15 CFR 2301.5 Application procedures.
(a) Address. The following address should be used for all
communications with the Agency: Public Telecommunications Facilities
Program, NTIA/DOC, 14th Street and Constitution Avenue NW., room H-4625,
Washington, DC 20230.
(b) Application materials may be obtained from the address listed in
paragraph (a) of this section.
(c) Closing date. The Administrator shall select and publish in the
Federal Register a date by which applications for funding in a current
fiscal year are to be filed.
(d) New applications. (1) All applications, whether mailed or hand
delivered, must be received by the Agency at the address listed in the
annual Federal Register announcement requesting applications at or
before 5 p.m. on the closing date.
(2) A complete application must include an original and one copy of
the Agency application form with the signature of an officer of the
applicant who is legally authorized to sign for the applicant, and all
the information required by the Agency application materials, which
shall include:
(i) A brief narrative statement (of not more than four (4) pages)
describing the proposed project with particular attention to satisfying
the appropriate funding criteria as listed in 2301.13 or 2301.14;
(ii) If the applicant has not received a PTFP grant within the
previous ten (10) years, a copy of the applicant's articles of
incorporation, bylaws, a list of the members of the board of directors,
and other similar documentation specifying the nature and powers of the
applicant, except that state or local government entities need only
provide a reference to the statutory or other authority under which they
operate;
(iii) If the applicant is a nonprofit foundation, corporation,
institution or association which has not received a PTFP grant within
the previous ten (10) years, a copy of a letter from the Internal
Revenue Service granting the applicant tax exempt status under section
501(c)(3) of the Internal Revenue Code, or other legal documentation of
nonprofit status.
(vi) If the applicant received a PTFP grant within the previous ten
(10) years, then it must reference the number of the previous grant,
provide a copy of the most recent Annual Report or Quarterly Performance
Report submitted to the PTFP, and submit a copy of any changes in the
applicant's articles of incorporation or bylaws which have taken effect
since the last grant was awarded;
(v) If the applicant applied for a preliminary determination of
eligibility and received a positive determination, it may submit a copy
of the official notification from the PTFP in lieu of the eligibility
requirements of this section;
(vi) Documentation that the applicant will have, when needed, the
funds to construct any facilities for which the Agency has granted
matching funds;
(vii) Documentation that the applicant will have the funds necessary
to operate and maintain those facilities once constructed;
(viii) Documentation of the amount of Federal and non-Federal
financial support received by the applicant organization during each of
the preceding three fiscal years or for the length of time the
organization has been in existence if less than three years;
(ix) Information about the applicant's leasehold or ownership rights
to the premises on which the facilities requested will be located. If
the applicant does not yet have an executed lease or has not purchased
the site(s) involved, a copy of a letter or letters of intent with the
proposed lessor(s) or seller(s) must be filed with the application. The
applicant must have the right to occupy, construct, maintain, operate,
inspect, and remove the project equipment without impediment, and
nothing must prevent the Federal government from entering the property
and reclaiming or securing PTFP-funded property. The Agency reserves
the right to review an applicant's site rights documents if deemed
necessary;
(x) An inventory of all equipment (if any) currently owned by the
applicant that corresponds to the type of equipment requested in the
current application or that would be closely associated with the
proposed project. The inventory should include manufacturers' names,
model numbers, production years, and the dates of acquisition;
(xi) Within the narrative or as an optional exhibit no longer than
two pages, a five-year plan outlining the applicant's projected
facilities requirements and the projected costs of such requirements;
(xii) If special consideration is requested under 2301.3,
information detailing the basis for the request on the exhibit form
provided by the Agency;
(xiii) Copies of letters transmitting a copy of the application to
each of the entities required under 2301.7;
(xiv) Significant documentation supporting the applicant's request
for equipment, including as necessary the proper FCC authorization(s)
cited in 2301.8 and 2301.9, and if applicable, documentation
indicating high incidence of repair or periods of inoperability;
(xv) Evidence that the applicant has participated (or, in the case of
a planning grant, will participate) in comprehensive planning for the
proposed project, including community involvement, an evaluation of
alternate technologies and coordination with state telecommunications
agencies, if any;
(xvi) Assurance that during the period in which the applicant
possesses or uses the Federally funded facilities (whether or not this
period extends beyond the Federal interest period), the applicant will
not use or allow the use of the Federally funded equipment for
essentially sectarian purposes;
(xvii) A detailed list and explanation of any complaints of
discrimination (see 2301.22(b)(15), below) currently pending or decided
against the applicant before any court or governmental agency;
(xviii) A copy of any Environmental Impact Statement or other
environmental assessment document prepared in conjunction with the
proposed project as may be required by any Federal, state, or local law
or regulation;
(xix) Assurance of compliance with all applicable Federal laws, rules
or regulations relating to the project, as described on the application
form provided by the Agency;
(xx) Assurance of compliance with all provisions of the Drug-Free
Workplace Requirements and the Certifications for Contracts, Grants,
Loans and Cooperative Agreements found in the application form;
(xxi) Assurance that the applicant has taken into account all
non-Federal sources of financial support for this project; that the
non-Federal share stated by the Applicant as being available for this
project is the maximum amount available from such sources; and that the
applicant will initiate and complete the work within the applicable time
frame after receipt of approval from the Agency; and,
(xxii) Assurance that the applicant will make the most economical and
efficient use of the Federal funds.
(e) Deferred applications. (1) An applicant may reactivate an
application deferred by the Agency during the prior year under 2301.15
if the applicant has not substantially changed the stated purpose of the
application.
(2) An applicant may reactivate a deferred application only during
the two consecutive years following the application's initial acceptance
for filing by the Agency.
(3) To reactivate a deferred application, the applicant must file the
information described in paragraph (e)(4) of this section whether mailed
or hand delivered, at or before 5 p.m. on the closing date.
(4) To file a complete reactivation request, the applicant must
submit an original and one copy of the following:
(i) Part I of the approved Agency application form with the original
signature of an officer of the applicant who is legally authorized to
sign for the applicant, with a notation of the file number of the
earlier application;
(ii) A brief narrative statement (not more than four (4) pages)
describing the project proposed in the current application;
(iii) An update of the availability of operating funds and the
necessary non-Federal share of the project;
(iv) An update of the financial information required by paragraph
(d)(2)(viii) of this section;
(v) A revised listing of current eligible project costs, if
necessary;
(vi) A revised inventory as described in paragraph (d)(2)(x) of this
section. Applicants having previously submitted an inventory need
submit only updated information ;
(vii) A revised five-year plan as described in paragraph (d)(2)(xi)
of this section outlining the applicant's projected facilities
requirements and the projected costs of such requirements;
(viii) If special consideration is requested under 2301.3, current
information detailing the basis for the request on the exhibit form
provided by the Agency;
(ix) Copies of letters transmitting a copy of the current application
to each of the entities required under 2301.7;
(x) An updated explanation of any complaints of discrimination
currently pending or decided against the applicant before any court or
governmental agency; and,
(xi) Assurance of compliance with all applicable Federal laws, rules
or regulations relating to the project, as described on the application
form provided by the Agency.
(f) Deferred applications that are resubmitted under paragraph (e) of
this section and contain substantial changes will be considered as new
applications and must comply with the requirements of 2301.5(d). All
deferred applications may be subject to a second determination of
eligibility.
(g) Applications resulting from catastrophic damage. (1) An
application may be filed with a request for a waiver of the closing
date, as provided in 2301.25, when an eligible broadcast applicant
suffers catastrophic damage to the basic equipment essential to its
continued operation as a result of a natural or manmade disaster and is
in dire need of assistance in funding replacement of the damaged
equipment.
(2) The request for a waiver must set forth the circumstances that
prompt the request and be accompanied by appropriate supporting
documentation.
(3) A waiver will be granted only if it is determined that the
applicant either carried adequate insurance or had acceptable
self-insurance coverage.
(4) Applications filed and accepted pursuant to this paragraph must
contain all of the elements stipulated in paragraph (d) or (e) of this
section and will be subject to the same review and evaluation process
followed for applications accepted for filing in the normal application
cycle, although the Administrator may establish a special timetable for
review and evaluation to permit an appropriately timely decision.
15 CFR 2301.6 Additional information.
(a) The Agency may request from the applicant any additional
information that the Agency deems necessary or pertinent. Applicants
must provide to the Agency two copies of any additional information that
the Agency requests within fifteen (15) days of the date of the Agency's
notice.
(b) Applicants must immediately provide to the Agency two copies of
information received after the closing date that materially affects the
application, including:
(1) State Single Point of Contact and State Telecommunications Agency
comments on applications;
(2) FCC file numbers and changes in the status of FCC applications
necessary for the proposed project;
(3) Changes in the status of proposed local matching funds, including
notification of the passage (including reduction or rejection) of a
proposed state appropriation or receipt (or denial) of a proposed
substantial matching gift;
(4) Changes in the licensee, in the licensee's board structure, in
the applicant's IRS section 501(c)(3) status, or in the applicant's
Articles of Incorporation or Bylaws;
(5) Changes in the status of proposed production, participation or
distribution agreements (if relevant to the proposed project);
(6) Changes in lease or site rights agreements; and
(7) Complete failure of major items of equipment for which
replacement costs have been requested or changes in the status of the
needs of the equipment requested.
(c) Applicants must place copies of any additional information
submitted to the Agency in the copy of the application available for
public inspection pursuant to 2301.11.
(d) Potential grant recipients may be subject to the following
Department Pre-Award Administrative Requirements and Policies:
(1) Name Check forms (Form CD-346) may be used to ascertain
background information on key individuals associated with potential
grantees. The Name Check requests information to determine if any key
individuals in the organization have been convicted of, or are under
indictment or have been charged with criminal offenses such as fraud,
theft, perjury, or other matters pertinent to management honesty or
financial integrity;
(2) Potential grantee organizations may also be subject to reviews of
Dun and Bradstreet data or other similar credit checks.
15 CFR 2301.7 Service of applications.
On or before the closing date all new or deferred applicants must
serve a copy of the application on the following agencies:
(a) In the case of an application for a construction grant for which
FCC authorization is necessary, the Secretary, Federal Communications
Commission, 1919 M Street, NW., Washington, DC 20554;
(b) The state telecommunications agency(-ies), if any, having
jurisdiction over the development of broadcast and/or nonbroadcast
telecommunications in the state(s) and the community (-ies) to be served
by the proposed project; and,
(c) The state office established to review applications under
Executive Order 12372 as amended by Executive Order 12416, if the state
has established such an office and wishes to review these applications.
15 CFR 2301.8 Federal Communications Commission Authorization.
(a) Each applicant whose project requires FCC authorization must file
an application for that authorization on or before the closing date.
Recommended submission date for applications to the FCC is at least 60
days prior to the closing date. The applicant should clearly identify
itself to the FCC as a PTFP applicant.
(b) In the case of FCC authorizations where it is not possible or
practical to submit the FCC license application with the PTFP
application, such as C-band satellite uplinks, low power television
stations and translators, remote pickups, studio-to-transmitter links,
and Very Small Aperture Terminals, a copy of the FCC application as it
will be submitted to the FCC, or the equivalent engineering data, must
be included in the PTFP application.
(c) Applications requesting C-band downlinks do not have to submit
the FCC application, or equivalent engineering data, as part of the PTFP
application. When such a project is funded, however, grantees must
submit evidence of FCC registration of the C-band downlink prior to the
release of Federal funds.
(d) Any FCC authorization required for the project must be in the
name of the applicant for the PTFP grant.
(e) If the project is to be associated with an existing station, FCC
operating authority for that station must be current and valid.
(f) For any project requiring new authorization(s) from the FCC, the
applicant must file a copy of each FCC application and any amendments
with the Agency.
(g) If the applicant fails to file the required FCC application(s) by
the closing date, or if the FCC returns, dismisses, or denies an
application required for the project or any part thereof, or for the
operation of the station with which the project is associated, the
Agency may return the application.
(h) No grant will be awarded until confirmation has been received
from the FCC that any necessary authorization will be issued.
15 CFR 2301.9 Acceptance for filing.
After the closing date, the Agency will examine each application for
timeliness, completeness, eligibility, and FCC authorization.
(a) The Agency will publish a notice in the Federal Register listing
all applications accepted for filing. Acceptance of an application for
filing does not preclude subsequent return or disapproval of the
application, nor does it assure that the application will be funded.
Publication merely operates to qualify the application to compete for
funding with other applications accepted for filing.
(b) The notice of acceptance for filing will also include a request
for comments on the applications from any interested party. The
procedural requirements of 2301.11 will be set forth in the notice.
(c) Substantially incomplete applications will be returned by the
Agency.
(d) Any application, amendment to an application, or request to
reactivate a deferred application that is filed after the closing date
will be returned by the Agency.
(e) When the Agency finds that either the applicant or the project is
ineligible under the Act and/or these Rules, it will return the
application and inform the applicant of the denial of eligibility.
(f) If the Agency finds that a proposed project requires
authorization from the FCC and that the applicant did not tender its
application for such authorization, the Agency will return the
application.
(g) With respect to requests to withdraw or to defer applications
from consideration:
(1) Applicants may request withdrawal of an application from
consideration for funding without affecting future funding decisions.
Withdrawn applications will be returned by the Agency.
(2) Applicants may not request that the Agency defer an application
for subsequent consideration. If such a request is received, the Agency
will treat it as a request for withdrawal.
(h) Deferred applications that are submitted for reactivation for a
third time will be returned by the Agency.
15 CFR 2301.10 Appeals.
(a) Within 15 calendar days after the date on which the Agency sends
a written notice to an applicant denying the eligibility of the
applicant or the proposed project, or notifying an applicant that its
application is substantially incomplete, the applicant may file a
written notice of appeal with the Administrator at the address listed in
2301.5(a). Applicants may not appeal the return of applications filed
after the closing date.
(b) The notice of appeal must show that the denial of eligibility or
determination of incompleteness is factually or legally incorrect. If
the applicant relies on any written documents or other materials to
dispute the Agency's action, the applicant should list and attach a copy
of each item or indicate that the Agency has a copy of the item in its
possession.
(c) Upon receipt of the notice of appeal, the Administrator will
review the appeal in consultation with the Chief Counsel and the PTFP
Director and will render a written decision within 30 calendar days.
(d) If the Administrator sustains the denial of eligibility or the
determination of incompleteness, the Agency will return the application
to the applicant.
(e) All decisions of the Administrator made under paragraph (c) of
this section are final.
15 CFR 2301.11 Public comments.
(a) The applicant shall make a copy of its application available at
its offices for public inspection during normal business hours.
(b) Any interested party may file comments with the Agency supporting
or opposing an application and setting forth the grounds for support or
opposition. Such comments must contain a certification that a copy of
the comments has been delivered to the applicant. Comments must be sent
to the address listed in 2301.5(a).
(c) The Agency will incorporate all comments from the public and any
replies from the applicant in the applicant's official file.
15 CFR 2301.12 Coordination with interested agencies and organizations.
In acting on applications and carrying out other responsibilities
under the Act, the Agency shall consult with:
(a) The FCC, with respect to functions that are of interest to, or
affect other functions of the FCC;
(b) The Corporation for Public Broadcasting, state telecommunications
agencies, if any, public broadcasting agencies, organizations, other
agencies, and institutions administering programs which may be
coordinated effectively with Federal assistance provided under the Act;
and
(c) The state office established to review applications under
Executive Order 12372 as amended by Executive Order 12416, if the state
has established such an office and wishes to review these applications.
15 CFR 2301.13 Funding criteria for construction applications.
In determining whether to approve or defer a construction grant
application, in whole or in part, and the amount of such grant, the
Agency will evaluate all the information in the application file and
consider the following factors, each of which has equal weight:
(a) The extent to which the project meets the program purposes set
forth in 2301.2 as well as the specific program priorities set forth in
the appendix to this part;
(b) The adequacy and continuity of financial resources for long-term
operational support;
(c) The extent to which non-Federal funds will be used to meet the
total cost of the project;
(d) The extent to which the applicant has:
(1) Assessed specific educational, informational, and cultural needs
of the community(-ies) to be served, and the extent to which the
proposed service will not duplicate service already available;
(2) Evaluated alternative technologies and the bases upon which the
technology was selected;
(3) Provided significant documentation of its equipment requirements,
and the urgency of acquisition or replacement;
(4) Provided documentation of an increasing pattern of substantial
non-Federal financial support;
(5) Provided other evidence of community support, such as letters
from elected or appointed policy-making officials, and from agencies for
which the applicant produces or will produce programs or other
materials;
(e) The extent to which the evidence supplied in the application
reasonably assures an increase in public telecommunications services and
facilities available to, operated by, and owned or controlled by
minorities and women;
(f) The extent to which various items of eligible apparatus proposed
are necessary to, and capable of, achieving the objectives of the
project and will permit the most efficient use of the grant funds;
(g) The extent to which the eligible equipment requested meets
current broadcast industry performance standards;
(h) The extent to which the applicant will have available sufficient
qualified staff to operate and maintain the facility and provide
services of professional quality;
(i) The extent to which the applicant has planned and coordinated the
proposed services with other telecommunications entities in the service
area;
(j) The extent to which the project implements local, statewide or
regional public telecommunications systems plans, if any; and,
(k) The readiness of the FCC to grant any necessary authorization.
15 CFR 2301.14 Funding criteria for planning applications.
In determining whether to approve or defer a planning grant
application, in whole or in part, and the amount of such grant, the
Agency will evaluate all the information in the application file and
consider the following factors, each of which has equal weight:
(a) The extent to which the applicant's interests and purposes are
consistent with the purposes of the Act and the priorities of the
Agency;
(b) The qualifications of the proposed project planner;
(c) The extent to which the project's proposed procedural design
assures that the applicant would adequately:
(1) Obtain financial, human and support resources necessary to
conduct the plan;
(2) Coordinate with other telecommunications entities at the local
state, regional and national levels;
(3) Evaluate alternative technologies and existing services; and
(4) Receive participation by the public to be served (and by
minorities and women in particular) in the project planning;
(d) Any pre-planning studies conducted by the applicant showing the
technical feasibility of the proposed planning project (such as the
availability of a frequency assignment, if necessary, for the project);
and,
(e) The feasibility of the proposed procedure and time-table for
achieving the expected results.
15 CFR 2301.15 Action on all applications.
(a) After consideration of an application which the Agency has
accepted for filing, any comments filed by interested parties and
replies thereto, and any other relevant information, the Agency will
take one of the following actions:
(1) Select the application for funding, in whole or in part;
(2) Defer the application for subsequent consideration;
(3) Return the application as ineligible pursuant to 2301.9 with a
notice of the grounds and reason; or,
(4) Return applications which remain unfunded after consideration by
the Agency for three years.
(b) Upon the approval or deferral, in whole or in part, of an
application, the Agency will inform:
(1) The applicant;
(2) The state educational telecommunications agency(-ies), if any, in
any state any part of which lies within the service area of the
applicant's facility;
(3) The FCC; and,
(4) The Corporation for Public Broadcasting and, as appropriate,
other public telecommunications entities.
(c) If the Agency decides to fund an application, the award documents
will include grant terms and conditions and whatever other provisions
are required by Federal law or regulations, or which may be deemed
necessary or desirable for the achievement of program purposes.
(d) An applicant or an objecting party may not appeal to the
Administrator the Agency's determination to fund or not fund a
particular application.
(e) Information about grant terms and conditions or other applicable
laws and regulations is available from PTFP at the address listed in
2301.5(a).
(f) Written and oral contacts between PTFP staff members and
applicants and their representatives during the application review
period are governed by the following:
(1) Members of the PTFP staff are not authorized to discuss the
merits of an application when it is under review.
(2) Applicants are expected to notify PTFP of events that occur after
the closing date and that materially affect the application, including
those items requested in 2301.6(b).
(3) Other permissible contacts include:
(i) Appeals of PTFP determinations of the eligibility of an
application, pursuant to 2301.10;
(ii) Responses to adverse comments filed by members of the public
pursuant to 2301.11; and
(iii) Discussion of matters relating to other PTFP awards an
organization may have.
(4) Nothing in this section should be interpreted as preventing PTFP
staff from requesting an applicant to submit information that may not
have been included in the original submission.
15 CFR 2301.15 Subpart C -- Federal Financial Participation
15 CFR 2301.16 Amount of the Federal grant.
(a) Construction grants. (1) A Federal grant for the construction of
a public telecommunications facility shall be in an amount determined by
the Agency and set forth in the award document. Such amount may not
exceed seventy-five (75) percent of the amount determined by the Agency
to be the reasonable and necessary cost of such project.
(2) No part of the grantee's matching share of the eligible project
costs may be met with funds paid by the Federal government, except where
the use of such funds to meet a Federal matching requirement is
specifically and expressly authorized by the relevant Federal statute.
(3) After the closing date, the applicant may, at its own risk,
obligate non-Federal matching funds for the acquisition of proposed
equipment. No funds from the Federal share of the total project cost
may be obligated until the award period start date. If an applicant or
recipient obligates Federal Award funds before the start date, the
Department may refuse to offer the award or, if the award has already
been granted, terminate the grant.
(4) Funds supplied to an applicant by the Corporation for Public
Broadcasting may not be used for the required non-Federal matching
purposes, except upon a clear compelling showing of need.
(b) Planning grants. A Federal grant for the planning of a public
telecommunications facility shall be in an amount determined by the
Agency and set forth in the award document and the attachments thereto.
The Agency may provide up to one hundred (100) percent of the funds
necessary for the planning of a public telecommunications construction
project.
(c) Project costs do not include the value of eligible apparatus
owned or acquired by the applicant prior to the closing date. Accepting
title to donated equipment prior to the closing date is considered
ownership or acquisition of equipment.
(d) If the actual costs incurred in completing the planning or
construction project are less than the estimated project total costs,
which were the basis for the Agency's determination of the initial grant
award, the Agency shall reduce the amount of the final grant award so
that the final grant award bears the same ratio to the actual cost of
the project as the initial grant award bore to the estimated total
project costs. If, however, the actual costs incurred in completing the
project are more than the estimated total project costs, then in no case
will the final grant award exceed the initial grant award.
15 CFR 2301.17 Items and costs ineligible for Federal funding.
The following items and costs are ineligible for funding under the
Act:
(a) Equipment and supplies. Each year, the Agency will review its
list of ineligible equipment and supplies. A copy of the currently
applicable list of ineligible equipment will be provided with every
application package for PTFP grants.
(b) Other expenses ineligible for funding. (1) Buildings and
modifications to buildings to house eligible equipment and fences
surrounding them are not themselves eligible for funding under this
program, except that small equipment shelters that are part of satellite
earth stations, translators, microwave interconnection facilities, and
similar facilities are eligible for funding;
(2) Land and land improvements;
(3) Salaries of personnel employed by an operating public
telecommunications entity and other operational costs, except
(i) For planning projects (see section 392(c) of the Act); or,
(ii) To the extent that an applicant can demonstrate exceptional need
or that substantially greater efficiency would result from staff
installation.
(4) Moving costs required by relocations;
(5) Such other expenses as the Agency may determine prior to the
award of a grant.
15 CFR 2301.18 Payment of the Federal grant.
(a) The Department will not make any payment under an award, unless
and until the recipient complies with all relevant requirements imposed
by this part. Additionally:
(1) With regard to a public telecommunications entity requiring FCC
authorization, the Department will not make any payment until it
receives confirmation that the FCC has granted any necessary
authorization;
(2) The Department will not make any payment under an award unless
and until any special award conditions stated in the award documents are
met; and
(3) An agreement to share ownership of the grant equipment (e.g., a
joint venture for a tower) must be approved by the Agency before any
funds for the project will be released.
(b) After the conditions indicated in paragraph (a) of this section
have been satisfied, the Department will make payments to the grantee in
such installments consistent with the percentage of project completion.
As a general matter, the Agency expects grantees to expend local
matching funds at a rate at least equal to the ratio of the local match
to the Federal grant as stipulated in the grant award.
(c) When an applicant completes a construction project, the Agency
will assign a completion date that the Agency will use to calculate the
termination date of the Federal interest period. The completion date
will be the date on which the grantee certifies in writing that the
project is complete and in accord with the terms and conditions of the
grant, as required under 2301.20. If the PTFP Director determines that
the grantee improperly certified the project to be complete, the PTFP
Director will amend the completion date accordingly.
15 CFR 2301.18 Subpart D -- Accountability for Federal Funds
15 CFR 2301.19 Retention of records.
(a) Each recipient of assistance under this program shall keep intact
and accessible the following records:
(1) A complete and itemized inventory of all public
telecommunications facilities under the control of the grantee, whether
or not financed, in whole or in part, with Federal funds;
(2) Complete and current financial records that fully disclose the
total amount of the project; the amount of the grant; the disposition
of the grant proceeds; and the amount, nature and source of non-Federal
funds associated with the project; and,
(3) All records specified in Office of Management and Budget Circular
A-110 (for educational institutions, hospitals and nonprofit
organizations) and 15 CFR part 24 (for State and Local Governments).
(b) The grantee shall mark project apparatus in a permanent manner in
order to assure easy and accurate identification and reference to
inventory records. The marking shall include the PTFP grant number and
a unique inventory number assigned by the grantee.
15 CFR 2301.20 Completion of projects.
(a) Upon completion of a planning project, the grantee must promptly
provide to the Administrator two copies of any report or study conducted
in whole or in part with funds provided under this program by sending
the copies to the Agency. This report shall meet the goals and
objectives for which the grant is awarded and shall follow the written
instructions and guidance provided by the Agency. The grant award goals
and objectives are stated in the planning narrative as amended and are
incorporated by reference into the award agreement. The Agency shall
review this report for the extent to which those goals and objectives
are addressed and met, for evidence that the work contracted for under
the grant award was in fact performed, and that the written instructions
and guidance provided by the Agency, if any, were followed. If this
report fails to address or meet any grant award goals or objectives, or
if there is no evidence that the work contracted for was in fact
performed, or if this report clearly indicates that the written
instructions and guidance provided by the Agency, if any, were
disregarded, then the Agency may pursue remedial action. Remedial
action includes, but is not limited to, demand for submission, in whole
or in part, of an acceptable final report. An unacceptable final report
may result in the establishment of an account receivable by the
Department.
(b) Upon completion of a construction project, the grantee must:
(1) Certify that the grantee has acquired, installed and begun
operating the project equipment in accordance with the project as
approved by the Agency and has complied with all terms and conditions of
the grant as specified in 2301.5;
(2) Certify that the grantee has obtained any necessary FCC
authorizations to operate the project apparatus following the
acquisition and installation of the apparatus and document the same;
(3) Certify that the facilities have been acquired, that they are in
operating order and that the grantee is using the facilities to provide
public telecommunications services in accordance with the project as
approved by the Agency and document same;
(4) Certify that the grantee has obtained adequate insurance to
protect the Federal interest in the project in the event of loss through
casualty and provide the Agency with a copy of its insurance policy;
(5) Certify, if not previously provided, that the grantee has
acquired all necessary leases or other site rights required for the
project;
(6) Certify, if appropriate, that the grantee has qualified for
receipt of funds from the Corporation for Public Broadcasting;
(7) Provide a complete and accurate final inventory of equipment
acquired under the project and a final accounting of all project
expenditures, including non-equipment costs (e.g., installation costs);
and
(8) Execute and record a final priority lien reflecting the completed
project and assuring the Federal government's reversionary interest in
all equipment purchased under the grant project for the duration of the
Federal interest period.
15 CFR 2301.21 Annual status report for construction projects.
(a) Recipients of construction grants are required to submit an
Annual Status Report for each grant project that is in the Federal
interest period. The Reports are due no later than April 1 in each year
of the period. In the Annual Status Report, the grant recipient must
certify:
(1) That it remains an eligible entity as defined in the PTFP Rules;
(2) That it continues to use the equipment purchased under the grant
to provide public telecommunications services as approved by the Agency
for the original purposes of the grant;
(3) That it continues to hold any FCC authorizations necessary to
operate the project apparatus;
(4) That it continues to protect all equipment purchased under the
grant with adequate insurance coverage;
(5) That it remains in compliance with all of the terms and
conditions of the grant; and
(6) That no significant changes have occurred during the reporting
period with respect to any of the terms and conditions of the grant.
(b) In addition, the grant recipient must:
(1) Provide information as to whether any discrimination complaints
are pending against it and whether, during the reporting period, any
adverse judgments have been rendered against it because of
discriminatory practices --
(i) Pending complaints must be described and their status given;
adverse judgments must be summarized and a description given of what
action the recipient has taken or is taking to remedy the effects of the
adjudged discrimination;
(ii) If the recipient is a non-profit institution, or a college or
university, discrimination complaints and adverse judgments must be
reported for the entire organization, not just for the broadcast
station. If the recipient is a state or municipal agency,
discrimination complaints and adverse judgments should be reported only
for the agency that received the Federal grant money, not the entire
state or municipal government;
(2) Certify, if it is an academic institution, that it does not
discriminate in its admissions policies or in the opportunities it
affords to persons to participate in the receiving or providing of
services (Nota Bene: this certification applies to the entire academic
institution, not just to the entity that was the subject of the grant);
(3) Submit a separate Annual Status Report with an original signature
for each grant it has received that is still in the Federal interest
period; and
(4) Take whatever steps may be necessary to ensure that the Federal
government's reversionary interest continues to be protected for the
10-year period by recording, when and where required, a lien
continuation statement and reporting that fact in the Annual Status
Report.
15 CFR 2301.21 Subpart E -- Control and Use of Facilities
15 CFR 2301.22 Conditions attached to the Federal grant.
When an applicant is awarded a Federal grant under the PTFP, the
applicant (now the grantee) takes the grant subject to certain
conditions concerning the use of the Federal monies and the equipment
obtained with those monies. The conditions are those listed at
2301.15(c) plus the following specific conditions:
(a) In order to assure that the Federal investment in public
telecommunications facilities funded under the Act will continue to be
used to provide public telecommunications services to the public during
the period of Federal interest, which shall be no less than ten (10)
years from the date of completion of the project, all grantees shall:
(1) Execute and record a document establishing that the Federal
government has a priority lien on any facilities purchased with funds
under the Act during the period of continuing Federal interest. The
document shall be recorded where liens are normally recorded in the
community where the facility is located and in the community where the
grantee's headquarters are located;
(2) File a certified copy of the recorded lien with the Administrator
ninety (90) days after the grant award is received;
(3) Not dispose of or encumber its title or other interests in the
equipment acquired under this grant and will, if applicable, file any
continuation statements necessary to preserve the Federal government's
secured interest in the equipment acquired with Federal funds.
(4) If not a part of the original application, demonstrate that the
grantee has obtained rights to the site(s) necessary to the construction
of the project. Grantees receiving funds for the purchase of
transmission or interconnection equipment should provide an opinion
letter from their attorney stating that the grantee will have either fee
simple title or a long-term (i.e., ten-year) lease to any real or
personal property necessary for the installation of the equipment.
Grantees receiving funds for the purchase only of studio or test
equipment should provide a similar letter regarding main transmission
sites to ensure that they will be able to utilize PTFP-funded equipment
to provide public telecommunications services throughout the Federal
interest period. The grantee must have the right to occupy, construct,
maintain, operate, inspect, and remove the project equipment without
impediment, and nothing must prevent the Federal government from
entering the property and reclaiming or securing PTFP-funded property.
Grantees must submit the attorney's letter of certification prior to the
release of Federal funds. The Agency reserves the right to review a
grantee's site rights documents if deemed necessary.
(b) During the construction of a project and the Federal interest
period, the grantee must:
(1) Continue to be an eligible organization as described in 2301.4,
above;
(2) Obtain and continue to hold any necessary FCC authorization(s);
(3) Use the Federal funds for which the grant was made for the
equipment and other expenditure items specified in the application for
inclusion in the project, except that the grantee may substitute other
items where necessary or desirable to carry out the purpose of the
project if approved in advance by the agency in writing;
(4) Use the facilities and any monies generated through the use of
the facilities primarily for the provision of public telecommunications
services and ensure that the use of the facilities for other than public
telecommunications purposes does not interfere with the provision of the
public telecommunications services for which the grant was made;
(5) Not make its facilities available to any person for the broadcast
or other transmission intended to be received directly by the public, of
any advertisement, unless such broadcast or transmission is expressly
and specifically permitted by law or authorized by the FCC;
(6) Hold appropriate title or lease satisfactory to protect the
Federal interest to the site or sites on which apparatus proposed in the
project will be operated, including the right to construct, maintain,
operate, inspect and remove such apparatus, sufficient to assure
continuity of operation of the facility;
(7) Maintain protection against common hazards through adequate
insurance coverage or other equivalent undertakings, except that, to the
extent the applicant follows a different policy of protection with
respect to its other property, the applicant may extend such policy to
apparatus acquired and installed under the project, if they received
express written approval for this different policy from the Director.
The grantee will purchase flood insurance (in communities where such
insurance is available) if the facilities will be constructed in any
area that has been identified by the Secretary of Health and Human
Services as having special flood hazards;
(8) Submit to the Agency, in triplicate, within thirty (30) calendar
days of the award date, a construction schedule or a revised planning
timetable that will include the information requested in the grant terms
and conditions in the award package;
(9) Comply with 15 CFR part 24 and the provisions of the Office of
Management and Budget Circulars A-87 and A-128, as implemented in 15 CFR
part 29a (for State and Local Governments and political subdivisions);
and OMB Circulars A-21, A-110, A-122, and A-133, as implemented in 15
CFR part 29b (for institutions of higher education, hospitals and other
nonprofit organizations) for the procurement of equipment and services
funded in whole or in part with Federal monies;
(10) Remit interest earned on advances of Federal funds to the Agency
in accordance with all relevant Federal laws and regulations;
(11) State when advertising for bids for the purchase of equipment
that the Federal government has an interest in facilities purchased with
Federal funds under this program which begins with the purchase of the
facilities and continues for ten (10) years after the completion of the
project;
(12) Submit, during the construction of this project, both
performance reports and the required financial reports, in triplicate,
on a calendar year quarterly basis for the periods ending March 31, June
30, September 30, and December 31, or any portion thereof. Reports are
due no later than thirty (30) days following the end of each reporting
period. The Quarterly Performance Reports should contain the following
information:
(i) A comparison of actual accomplishments during the reporting
period with the goals and dates established in the Construction or
Planning Schedule for that reporting period;
(ii) A description of any problems that have arisen or reasons why
established goals have not been met;
(iii) Actions taken to remedy any failures to meet goals; and
(iv) Construction projects must also include a list of equipment
purchased during the reporting period compared with the equipment
authorized. This information must include manufacturer, make and model
number, brief description, number of the items purchased, and cost;
(13) Promptly complete the project and place the public
telecommunications facility into operation;
(14) Permit inspections during normal working hours by the Agency and
the Comptroller General of the United States or their duly authorized
representatives, of the public telecommunications facilities acquired
with Federal financial assistance or of any books, documents, papers,
and records relating to those facilities;
(15) Comply with Federal statutes relating to nondiscrimination.
These include but are not limited to:
(i) Title VI of the Civil Rights Act of 1964 (Pub. L. 88-352), which
prohibits discrimination on the basis of race, color or national origin;
(ii) Title IX of the Education Amendments of 1972, as amended (20
U.S.C. 1681-1683, and 1685-1686), which prohibits discrimination on the
basis of sex;
(iii) Section 504 of the Rehabilitation Act of 1973, as amended (29
U.S.C. 794, which prohibits discrimination on the basis of handicaps;
(iv) The Age Discrimination Act of 1975, as amended (42 U.S.C.
6101-6107), which prohibits discrimination on the basis of age.
(v) The Drug Abuse Office and Treatment Act of 1972 (Pub. L.
92-255), as amended, relating to nondiscrimination on the basis of drug
abuse;
(vi) The Comprehensive Alcohol Abuse and Alcoholism Prevention,
Treatment and Rehabilitation Act of 1970 Pub. L. 91-616), as amended,
relating to nondiscrimination on the basis of alcohol abuse or
alcoholism;
(vii) Sections 523 and 527 of the Public Health Service Act of 1912
(42 U.S.C. 290 dd-3 and 290 ee-3), as amended, relating to
confidentiality of alcohol and drug abuse patient records;
(viii) Title VIII of the Civil Rights Act of 1968 (42 U.S.C. 3601 et
seq.), as amended, relating to nondiscrimination in the sale, rental or
financing of housing;
(ix) Any other nondiscrimination provisions in the specific
statute(s) under which application for Federal assistance is being made;
and
(x) The requirements of any other nondiscrimination statute(s) which
may apply to the application.
(16) Obtain the Agency's prior approval for substantial changes in
the approved grant project, including but not limited to the following:
(i) Costs (including planning costs),
(ii) Essential specifications of the equipment,
(iii) The engineering configuration of the project,
(iv) Extensions of the approved grant award period, and
(v) Transfers of a grant award to a successor in interest, pursuant
to 2301.23(c)(1).
(17) Comply with all applicable Federal laws, rules or regulations
relating to the project.
(c) The Agency will allow the acquisition of facilities by lease;
however, several provisions must be followed:
(1) The lease must be for a term of years not greater than the
remaining useful life of the facilities nor less than ten (10) years
following completion of the project (including renewal options);
(2) The cost of the lease must not be more than the total of the
non-Federal share of the matching funds;
(3) The actual amount of the lease must not be more than the outright
purchase price would be; and
(4) The lease agreement must state that in the event of anticipated
or actual termination of the lease, the Federal government through the
Agency has the right to transfer and assign the leasehold to a new
grantee for the duration of the lease contract.
(d) During the period in which the grantee possesses or uses the
Federally funded facilities (whether or not this period extends beyond
the Federal interest period), the grantee may not use or allow the use
of the Federally funded equipment for purposes the essential thrust of
which are sectarian.
15 CFR 2301.23 Grant suspensions, terminations, and transfers.
(a) Suspension or termination for cause. If a grantee fails to meet
any conditions attached to the grant, as specified in 2301.15(c) and
2301.22 of this part, the Agency reserves the right to recommend any
appropriate action including, but not limited to:
(1) Suspending a particular grant in whole or in part and withholding
further payments under that grant, pending corrective action by the
grantee;
(2) Prohibiting a grantee from incurring additional obligations of
funds, pending corrective action by the grantee;
(3) Where the grantee cannot (or will not) comply with the condition
(or conditions) attached to a particular grant, terminating the grant
and requiring the grantee to repay the Federal government an amount
bearing the same ratio to the fair market value of the facilities at the
time of termination as the Federal grant bore to the project;
(4) Where the condition (or conditions) is also attached to other
grants that the grantee has received from the Agency, suspending
payments under all these other grants;
(5) Where the condition (or conditions) is also attached to other
grants that the grantee has received from the Agency, terminating all
these other grants and requiring the grantee to repay the Federal
government an amount bearing the same ratio to the fair market value of
the facilities at the time of termination as the Federal grants bore to
the projects for which they were granted.
(b) Termination for convenience. When the Agency and the grantee
agree that the continuation of the project would not produce beneficial
results commensurate with the expenditure of further Federal funds, the
parties may terminate the grant, in whole or in part, with all the
conditions and on an effective date that the parties have mutually
agreed in writing.
(c) Transfers. If necessary to further the purpose of the Act, the
Agency may approve transfers as follows:
(1) Transfer of grant. The Agency may transfer a grant to a
successor in interest or subsidiary corporation of a grantee in cases
where a similar operational entity remains in control of the grant and
the original objectives of the grant remain in effect.
(2) Transfer of equipment. Where the grant equipment is no longer
needed for the original purposes of the project, the Agency may transfer
the equipment to the Federal government or an eligible third party, in
accordance with Office of Management and Budget guidelines.
(3) Transfer of Federal interest to different equipment. The Agency
may transfer the Federal interest in PTFP-funded equipment to other
eligible equipment presently owned or to be purchased by the grantee
with non-Federal monies.
(i) Equipment previously funded by PTFP that is within the Federal
interest period, may not be used in a transfer request as the designated
equipment to which the Federal interest is to be transferred.
(ii) The same item can be used only once to substitute for the
Federal interest; however, it may be used to cover grants if the
request for each is submitted at the same time.
(iii) A lien on equipment transferred to the Federal interest must be
recorded in accordance with 2301.22 of the PTFP Rules. A copy of the
lien document must be filed with the PTFP within sixty (60) days of the
date of approval of the transfer of Federal interest.
(iv) If the Federal interest is to be transferred to other equipment
presently owned or to be purchased by a grantee, the Federal interest in
the new equipment must be at least equal to the Federal interest in the
original equipment.
(d) Termination by buy-out. A grantee may terminate the PTFP grant
by buying out the Federal interest with non-Federal monies. Buy-outs
may be requested at any time.
15 CFR 2301.24 Equipment.
All equipment, which a grantee acquires under this program, shall be
of professional broadcast quality. An applicant proposing to utilize
nonbroadcast technology shall propose and purchase equipment that is
compatible with broadcast equipment wherever the two types of apparatus
interface.
15 CFR 2301.24 Subpart F -- Waivers
15 CFR 2301.25 Waivers.
For good cause shown, the Administrator may waive the regulations
adopted pursuant to section 392(e) of the Act.
15 CFR 2301.25 Appendix to Part 2301 -- Special Applications and Priorities
15 CFR 2301.25 Pt. 2301, App.
NTIA possesses the discretionary authority to recommend awarding
grants to eligible broadcast and nonbroadcast applicants whose proposals
are so unique or innovative that they do not clearly fall within the
priorities listed below. Innovative projects submitted under this
category must address demonstrated and substantial community needs
(e.g., service to identifiable ethnic or linguistic minority audiences,
service to the blind or deaf, electronic text, and nonbroadcast projects
offering educational or instructional services).
Within this category, NTIA establishes three subcategories:
A. Projects that include local origination capacity. This
subcategory includes the planning or construction of new facilities that
can provide a full range of radio and/or television programs including
material that is locally produced. Eligible projects include new radio
or television broadcast stations, new cable systems, or first public
telecommunications service to existing cable systems, provided that such
projects include local origination capacity.
B. Projects that do not include local origination capacity. This
subcategory includes projects such as increases in tower height and/or
power of existing stations and construction of translators, cable
networks and repeater transmitters that will result in providing public
telecommunications services to previously unserved areas.
C. Projects that provide first nationally distributed programming.
This subcategory includes projects that provide satellite downlink
facilities to noncommercial radio and television stations that would
bring nationally distributed programming to a geographic area for the
first time.
Priority 1 and its subcategories apply only to grant applicants
proposing to plan or construct new facilities to bring public
telecommunications services to geographic areas that are presently
unserved, i.e., areas that do not receive any public telecommunications
services whatsoever. (It should be noted that television and radio are
considered separately for the purposes of determining coverage.)
An applicant proposing to plan or construct a facility to serve a
geographical area that is presently unserved, should indicate the number
of persons who would receive a first public telecommunications signal as
a result of the proposed project.
Projects eligible for consideration under this category include the
urgent replacement of obsolete or worn out equipment in existing
broadcast stations that provide either the only public
telecommunications signal or the only locally originated public
telecommunications signal to a geographical area.
In order to show that the urgent replacement of equipment is
necessary, applicants must provide documentation indicating excessive
downtime, or a high incidence of repair (i.e., copies of repair records,
or letters documenting non-availability of parts.) Additionally,
applicants must show that the station is the only public
telecommunications station providing a signal to a geographical area or
the only station with local origination capacity in a geographical area.
The distinction between Priority 2 and Priority 4 is that Priority 2
is for the urgent replacement of basic equipment for essential stations.
Where an applicant seeks to ''improve'' basic equipment in its station
(i.e., where the equipment is not ''worn out''), or where the applicant
is not an essential station, NTIA would consider the applicant's project
under Priority 4.
Projects in this category include the planning or construction of
facilities to bring the first local origination capacity to an area
already receiving public telecommunications services from distant
sources through translators, repeaters or cable systems.
Applicants seeking funds to bring the first local origination
capacity to an area already receiving some public telecommunications
services may do so, either by establishing a new (and additional) public
telecommunications facility, or by adding local origination capacity to
an existing facility. A source of a public telecommunications signal is
distant when the geographical area to which the source is brought is
beyond the grade B contour of the origination facility.
Projects eligible for consideration under this category include the
replacement of obsolete or worn-out equipment and the upgrading of
existing origination or delivery capacity to current industry
performance standards (e.g., improvements to signal quality, and
significant improvements in equipment flexibility or reliability). As
under Priority 2, applicants seeking to replace or improve basic
equipment under Priority 4 should show that the replacement of the
equipment is necessary by including in their applications data
indicating excessive downtime, or a high incidence or repair (such as
documented in repair records). Within this category, NTIA establishes
two subcategories:
A. Under Priority 4A, NTIA will consider applications to replace
urgently needed equipment from public broadcasting stations that do not
meet the Priority 2 criteria because they do not provide either the only
public telecommunications signal or the only locally originated public
telecommunications signal to a geographic area. NTIA will also consider
applications that improve as well as replace urgently needed
production-related equipment at public radio and television stations
that do not qualify for Priority 2 consideration but that produce, on a
continuing basis, significant amounts of programming distributed
nationally to public radio or television stations.
This subcategory will also enable the acquisition of satellite
downlinks for public radio stations in areas already served by one or
more full-service public radio stations. The applicant must demonstrate
that it will broadcast a program schedule that does not merely duplicate
what is already available in its service area.
The final projects included in this subcategory would enable the
acquisition of the necessary items of equipment to bring the inventory
of an already-operating station to the basic level of equipment
requirements established by PTFP. This is intended to assist stations
that went on the air with a complement of equipment well short of what
the Agency considers as the basic complement.
B. This subcategory includes the improvement and non-urgent
replacement of equipment at any public broadcasting station.
Projects in this category would equip an existing station beyond a
basic capacity to broadcast programming from distant sources and to
originate local programming.
A. Projects to equip auxiliary studios at remote locations, or to
provide mobile origination facilities. An applicant must demonstrate
that significant expansion in public participation in programming will
result. This subcategory includes mobile units, neighborhood production
studios or facilities in other locations within a station's service area
that would make participation in local programming accessible to
additional segments of the population.
B. Projects to augment production capacity beyond basic level in
order to provide programming or related materials for other than local
distribution. This subcategory would provide equipment for the
production of programming for regional or national use. Need beyond
existing capacity must be justified.
15 CFR 2301.25 FINDING AIDS
A list of CFR titles, subtitles, chapters, subchapters and parts and
an alphabetical list of agencies publishing in the CFR are included in
the CFR Index and Finding Aids volume to the Code of Federal Regulations
which is published separately and revised annually.
Material Approved for Incorporation by Reference
Table of CFR Titles and Chapters
Alphabetical List of Agencies Appearing in the CFR
List of CFR Sections Affected
Title 15 -- Commerce and Foreign Trade
Material Approved for Incorporation by Reference
Material Approved for Incorporation by Reference
The Director of the Federal Register has approved under 5 U.S.C.
552(a) and 1 CFR Part 51 the incorporation by reference of the following
publications. This list contains only those incorporations by reference
effective as of the revision date of this volume. Incorporations by
reference found within a regulation are effective upon the effective
date of that regulation. For more information on incorporation by
reference, see the preliminary pages of this volume.
15 CFR 2301.25 15 CFR CHAPTER XI (PARTS 400-2399)
TECHNOLOGY ADMINISTRATION
15 CFR
American Society for Testing and Materials
1916 Race Street, Philadelphia, PA 19103
ASTM F589-85 Standard Consumer Safety Specification for Non-Powder
Guns (June 28, 1985) 1150.1
General Services Administration
Office of Engineering and Technical Management Chemical Technology
Division, Paints Branch, Washington, DC 20406
Federal Standard 595a, February 1987, Color No. 12199 1150.3
Chap.
15 CFR 2301.25 Table of CFR Titles and Chapters
15 CFR 2301.25 Title 1 -- General Provisions
I Administrative Committee of the Federal Register (Parts 1 -- 49)
II Office of the Federal Register (Parts 50 -- 299)
III Administrative Conference of the United States (Parts 300 -- 399)
IV Miscellaneous Agencies (Parts 400 -- 500)
15 CFR 2301.25 Title 2 -- (Reserved)
15 CFR 2301.25 Title 3 -- The President
I Executive Office of the President (Parts 100 -- 199)
15 CFR 2301.25 Title 4 -- Accounts
I General Accounting Office (Parts 1 -- 99)
II Federal Claims Collection Standards (General Accounting Office --
Department of Justice) (Parts 100 -- 299)
III General Accounting Office (CASB) (Parts 300 -- 499)
15 CFR 2301.25 Title 5 -- Administrative Personnel
I Office of Personnel Management (Parts 1 -- 1199)
II Merit Systems Protection Board (Parts 1200 -- 1299)
III Office of Management and Budget (Parts 1300 -- 1399)
IV Advisory Committee on Federal Pay (Parts 1400 -- 1499)
V The International Organizations Employees Loyalty Board (Parts 1500
-- 1599)
VI Federal Retirement Thrift Investment Board (Parts 1600 -- 1699)
VII Advisory Commission on Intergovernmental Relations (Parts 1700 --
1799)
VIII Office of Special Council (Parts 1800 -- 1899)
IX Appalachian Regional Commission (Parts 1900 -- 1999)
XI United States Soldiers' and Airmen's Home (Parts 2100 -- 2199)
XIV Federal Labor Relations Authority, General Counsel of the Federal
Labor Relations Authority and Federal Service Impasses Panel (Parts 2400
-- 2499)
XV Office of Administration, Executive Office of the President (Parts
2500 -- 2599)
XVI Office of Government Ethics (Parts 2600 -- 2699)
15 CFR 2301.25 Title 6 -- (Reserved)
15 CFR 2301.25 Title 7 -- Agriculture
Subtitle A -- Office of the Secretary of Agriculture (Parts 0 -- 26)
Subtitle B -- Regulations of the Department of Agriculture
I Agricultural Marketing Service (Standards, Inspections, Marketing
Practices), Department of Agriculture (Parts 27 -- 209)
II Food and Nutrition Service, Department of Agriculture (Parts 210
-- 299)
III Animal and Plant Health Inspection Service, Department of
Agriculture (Parts 300 -- 399)
IV Federal Crop Insurance Corporation, Department of Agriculture
(Parts 400 -- 499)
V Agricultural Research Service, Department of Agriculture (Parts 500
-- 599)
VI Soil Conservation Service, Department of Agriculture (Parts 600 --
699)
VII Agricultural Stabilization and Conservation Service (Agricultural
Adjustment), Department of Agriculture (Parts 700 -- 799)
VIII Federal Grain Inspection Service, Department of Agriculture
(Parts 800 -- 899)
IX Agricultural Marketing Service (Marketing Agreements and Orders;
Fruits, Vegetables, Nuts), Department of Agriculture (Parts 900 -- 999)
X Agricultural Marketing Service (Marketing Agreements and Orders;
Milk), Department of Agriculture (Parts 1000 -- 1199)
XI Agricultural Marketing Service (Marketing Agreements and Orders;
Miscellaneous Commodities), Department of Agriculture (Parts 1200 --
1299)
XIV Commodity Credit Corporation, Department of Agriculture (Parts
1400 -- 1499)
XV Foreign Agricultural Service, Department of Agriculture (Parts
1500 -- 1599)
XVI Rural Telephone Bank, Department of Agriculture (Parts 1600 --
1699)
XVII Rural Electrification Administration, Department of Agriculture
(Parts 1700 -- 1799)
XVIII Farmers Home Administration, Department of Agriculture (Parts
1800 -- 2099)
XXI Foreign Economic Development Service, Department of Agriculture
(Parts 2100 -- 2199)
XXII Office of International Cooperation and Development, Department
of Agriculture (Parts 2200 -- 2299)
XXV Office of the General Sales Manager, Department of Agriculture
(Parts 2500 -- 2599)
XXVI Office of Inspector General, Department of Agriculture (Parts
2600 -- 2699)
XXVII Office of Information Resources Management, Department of
Agriculture (Parts 2700 -- 2799)
XXVIII Office of Operations, Department of Agriculture (Parts 2800 --
2899)
XXIX Office of Energy, Department of Agriculture (Parts 2900 -- 2999)
XXX Office of Finance and Management, Department of Agriculture
(Parts 3000 -- 3099)
XXXI Office of Environmental Quality, Department of Agriculture
(Parts 3100 -- 3199)
XXXII Office of Grants and Program Systems, Department of Agriculture
(Parts 3200 -- 3299)
XXXIII Office of Transportation, Department of Agriculture (Parts
3300 -- 3399)
XXXIV Cooperative State Research Service, Department of Agriculture
(Parts 3400 -- 3499)
XXXVI National Agricultural Statistics Service, Department of
Agriculture (Parts 3600 -- 3699)
XXXVII Economic Research Service, Department of Agriculture (Parts
3700 -- 3799)
XXXVIII World Agricultural Outlook Board, Department of Agriculture
(Parts 3800 -- 3899)
XXXIX Economic Analysis Staff, Department of Agriculture (Parts 3900
-- 3999)
XL Economics Management Staff, Department of Agriculture (Parts 4000
-- 4099)
XLI National Agricultural Library, Department of Agriculture (Part
4100)
15 CFR 2301.25 Title 8 -- Aliens and Nationality
I Immigration and Naturalization Service, Department of Justice
(Parts 1 -- 499)
15 CFR 2301.25 Title 9 -- Animals and Animal Products
I Animal and Plant Health Inspection Service, Department of
Agriculture (Parts 1 -- 199)
II Packers and Stockyards Administration, Department of Agriculture
(Parts 200 -- 299)
III Food Safety and Inspection Service, Meat and Poultry Inspection,
Department of Agriculture (Parts 300 -- 399)
15 CFR 2301.25 Title 10 -- Energy
I Nuclear Regulatory Commission (Parts 0 -- 199)
II Department of Energy (Parts 200 -- 699)
III Department of Energy (Parts 700 -- 999)
X Department of Energy (General Provisions) (Parts 1000 -- 1099)
XV Office of the Federal Inspector for the Alaska Natural Gas
Transportation System (Parts 1500 -- 1599)
XVII Defense Nuclear Facilities Safety Board (Parts 1700 -- 1799)
15 CFR 2301.25 Title 11 -- Federal Elections
I Federal Election Commission (Parts 1 -- 9099)
15 CFR 2301.25 Title 12 -- Banks and Banking
I Comptroller of the Currency, Department of the Treasury (Parts 1 --
199)
II Federal Reserve System (Parts 200 -- 299)
III Federal Deposit Insurance Corporation (Parts 300 -- 399)
IV Export-Import Bank of the United States (Parts 400 -- 499)
V Office of Thrift Supervision, Department of The Treasury (Parts 500
-- 599)
VI Farm Credit Administration (Parts 600 -- 699)
VII National Credit Union Administration (Parts 700 -- 799)
VIII Federal Financing Bank (Parts 800 -- 899)
IX Federal Housing Finance Board (Parts 900 -- 999)
XI Federal Financial Institutions Examination Council (Parts 1100 --
1199)
XIII Farm Credit System Assistance Board (Parts 1300 -- 1399)
XIV Farm Credit System Insurance Corporation (Parts 1400 -- 1499)
XV Oversight Board (Parts 1500 -- 1599)
XVI Resolution Trust Corporation (Parts 1600 -- 1699)
15 CFR 2301.25 Title 13 -- Business Credit and Assistance
I Small Business Administration (Parts 1 -- 199)
III Economic Development Administration, Department of Commerce
(Parts 300 -- 399)
15 CFR 2301.25 Title 14 -- Aeronautics and Space
I Federal Aviation Administration, Department of Transportation
(Parts 1 -- 199)
II Office of the Secretary, Department of Transportation (Aviation
Proceedings) (Parts 200 -- 399)
III Office of Commercial Space Transportation, Department of
Transportation (Parts 400 -- 499)
V National Aeronautics and Space Administration (Parts 1200 -- 1299)
15 CFR 2301.25 Title 15 -- Commerce and Foreign Trade
Subtitle A -- Office of the Secretary of Commerce (Parts 0 -- 29)
Subtitle B -- Regulations Relating to Commerce and Foreign Trade
I Bureau of the Census, Department of Commerce (Parts 30 -- 199)
II National Institute of Standards and Technology, Department of
Commerce (Parts 200 -- 299)
III International Trade Administration, Department of Commerce (Parts
300 -- 399)
IV Foreign-Trade Zones Board (Parts 400 -- 499)
VII Bureau of Export Administration, Department of Commerce (Parts
700 -- 799)
VIII Bureau of Economic Analysis, Department of Commerce (Parts 800
-- 899)
IX National Oceanic and Atmospheric Administration, Department of
Commerce (Parts 900 -- 999)
XI Technology Administration, Department of Commerce (Parts 1100 --
1199)
XII United States Travel and Tourism Administration, Department of
Commerce (Parts 1200 -- 1299)
XIII East-West Foreign Trade Board (Parts 1300 -- 1399)
XIV Minority Business Development Agency (Parts 1400 -- 1499)
Subtitle C -- Regulations Relating to Foreign Trade Agreements
XX Office of the United States Trade Representative (Parts 2000 --
2099)
Subtitle D -- Regulations Relating to Telecommunications and
Information
XXIII National Telecommunications and Information Administration,
Department of Commerce (Parts 2300 -- 2399)
15 CFR 2301.25 Title 16 -- Commercial Practices
I Federal Trade Commission (Parts 0 -- 999)
II Consumer Product Safety Commission (Parts 1000 -- 1799)
15 CFR 2301.25 Title 17 -- Commodity and Securities Exchanges
I Commodity Futures Trading Commission (Parts 1 -- 199)
II Securities and Exchange Commission (Parts 200 -- 399)
IV Department of the Treasury (Parts 400 -- 499)
15 CFR 2301.25 Title 18 -- Conservation of Power and Water Resources
I Federal Energy Regulatory Commission, Department of Energy (Parts 1
-- 399)
III Delaware River Basin Commission (Parts 400 -- 499)
VI Water Resources Council (Parts 700 -- 799)
VIII Susquehanna River Basin Commission (Parts 800 -- 899)
XIII Tennessee Valley Authority (Parts 1300 -- 1399)
15 CFR 2301.25 Title 19 -- Customs Duties
I United States Customs Service, Department of the Treasury (Parts 1
-- 199)
II United States International Trade Commission (Parts 200 -- 299)
III International Trade Administration, Department of Commerce (Parts
300 -- 399)
15 CFR 2301.25 Title 20 -- Employees' Benefits
I Office of Workers' Compensation Programs, Department of Labor
(Parts 1 -- 199)
II Railroad Retirement Board (Parts 200 -- 399)
III Social Security Administration, Department of Health and Human
Services (Parts 400 -- 499)
IV Employees' Compensation Appeals Board, Department of Labor (Parts
500 -- 599)
V Employment and Training Administration, Department of Labor (Parts
600 -- 699)
VI Employment Standards Administration, Department of Labor (Parts
700 -- 799)
VII Benefits Review Board, Department of Labor (Parts 800 -- 899)
VIII Joint Board for the Enrollment of Actuaries (Parts 900 -- 999)
IX Office of the Assistant Secretary for Veterans' Employment and
Training, Department of Labor (Parts 1000 -- 1099)
15 CFR 2301.25 Title 21 -- Food and Drugs
I Food and Drug Administration, Department of Health and Human
Services (Parts 1 -- 1299)
II Drug Enforcement Administration, Department of Justice (Parts 1300
-- 1399)
15 CFR 2301.25 Title 22 -- Foreign Relations
I Department of State (Parts 1 -- 199)
II Agency for International Development, International Development
Cooperation Agency (Parts 200 -- 299)
III Peace Corps (Parts 300 -- 399)
IV International Joint Commission, United States and Canada (Parts
400 -- 499)
V United States Information Agency (Parts 500 -- 599)
VI United States Arms Control and Disarmament Agency (Parts 600 --
699)
VII Overseas Private Investment Corporation, International
Development Cooperation Agency (Parts 700 -- 799)
IX Foreign Service Grievance Board Regulations (Parts 900 -- 999)
X Inter-American Foundation (Parts 1000 -- 1099)
XI International Boundary and Water Commission, United States and
Mexico, United States Section (Parts 1100 -- 1199)
XII United States International Development Cooperation Agency (Parts
1200 -- 1299)
XIII Board for International Broadcasting (Parts 1300 -- 1399)
XIV Foreign Service Labor Relations Board; Federal Labor Relations
Authority; General Counsel of the Federal Labor Relations Authority;
and the Foreign Service Impasse Disputes Panel (Parts 1400 -- 1499)
XV African Development Foundation (Parts 1500 -- 1599)
XVI Japan-United States Friendship Commission (Parts 1600 -- 1699)
15 CFR 2301.25 Title 23 -- Highways
I Federal Highway Administration, Department of Transportation (Parts
1 -- 999)
II National Highway Traffic Safety Administration and Federal Highway
Administration, Department of Transportation (Parts 1200 -- 1299)
III National Highway Traffic Safety Administration, Department of
Transportation (Parts 1300 -- 1399)
15 CFR 2301.25 Title 24 -- Housing and Urban Development
Subtitle A -- Office of the Secretary, Department of Housing and
Urban Development (Parts 0 -- 99)
Subtitle B -- Regulations Relating to Housing and Urban Development
I Office of Assistant Secretary for Equal Opportunity, Department of
Housing and Urban Development (Parts 100 -- 199)
II Office of Assistant Secretary for Housing-Federal Housing
Commissioner, Department of Housing and Urban Development (Parts 200 --
299)
III Government National Mortgage Association, Department of Housing
and Urban Development (Parts 300 -- 399)
V Office of Assistant Secretary for Community Planning and
Development, Department of Housing and Urban Development (Parts 500 --
599)
VI Office of Assistant Secretary for Community Planning and
Development, Department of Housing and Urban Development (Parts 600 --
699)
VII Office of the Secretary, Department of Housing and Urban
Development (Section 8 Housing Assistance Programs and Public and Indian
Housing Programs) (Parts 700 -- 799)
VIII Office of the Assistant Secretary for Housing -- Federal Housing
Commissioner, Department of Housing and Urban Development (Section 8
Housing Assistance Programs and Section 202 Direct Loan Program) (Parts
800 -- 899)
IX Office of Assistant Secretary for Public and Indian Housing,
Department of Housing and Urban Development (Parts 900 -- 999)
X Office of Assistant Secretary for Housing -- Federal Housing
Commissioner, Department of Housing and Urban Development (Interstate
Land Sales Registration Program) (Parts 1700 -- 1799)
XI Solar Energy and Energy Conservation Bank, Department of Housing
and Urban Development (Parts 1800 -- 1899)
XII Office of Inspector General, Department of Housing and Urban
Development (Parts 2000 -- 2099)
XV Mortgage Insurance and Loan Programs under the Emergency
Homeowners' Relief Act, Department of Housing and Urban Development
(Parts 2700 -- 2799)
XX Office of Assistant Secretary for Housing -- Federal Housing
Commissioner, Department of Housing and Urban Development (Parts 3200 --
3699)
XXV Neighborhood Reinvestment Corporation (Parts 4100 -- 4199)
15 CFR 2301.25 Title 25 -- Indians
I Bureau of Indian Affairs, Department of the Interior (Parts 1 --
299)
II Indian Arts and Crafts Board, Department of the Interior (Parts
300 -- 399)
III National Indian Gaming Commission (Parts 500 -- 599)
IV Office of Navajo and Hopi Indian Relocation (Parts 700 -- 799)
15 CFR 2301.25 Title 26 -- Internal Revenue
I Internal Revenue Service, Department of the Treasury (Parts 1 --
799)
15 CFR 2301.25 Title 27 -- Alcohol, Tobacco Products and Firearms
I Bureau of Alcohol, Tobacco and Firearms, Department of the Treasury
(Parts 1 -- 299)
15 CFR 2301.25 Title 28 -- Judicial Administration
I Department of Justice (Parts 0 -- 199)
III Federal Prison Industries, Inc., Department of Justice (Parts 300
-- 399)
V Bureau of Prisons, Department of Justice (Parts 500 -- 599)
VI Offices of Independent Counsel, Department of Justice (Parts 600
-- 699)
VII Office of Independent Counsel (Parts 700 -- 799)
15 CFR 2301.25 Title 29 -- Labor
Subtitle A -- Office of the Secretary of Labor (Parts 0 -- 99)
Subtitle B -- Regulations Relating to Labor
I National Labor Relations Board (Parts 100 -- 199)
II Bureau of Labor-Management Relations and Cooperative Programs,
Department of Labor (Parts 200 -- 299)
III National Railroad Adjustment Board (Parts 300 -- 399)
IV Office of Labor-Management Standards, Department of Labor (Parts
400 -- 499)
V Wage and Hour Division, Department of Labor (Parts 500 -- 899)
IX Construction Industry Collective Bargaining Commission (Parts 900
-- 999)
X National Mediation Board (Parts 1200-1299)
XII Federal Mediation and Conciliation Service (Parts 1400-1499)
XIV Equal Employment Opportunity Commission (Parts 1600-1699)
XVII Occupational Safety and Health Administration, Department of
Labor (Parts 1900 -- 1999)
XX Occupational Safety and Health Review Commission (Parts 2200 --
2499)
XXV Pension and Welfare Benefits Administration, Department of Labor
(Parts 2500 -- 2599)
XXVI Pension Benefit Guaranty Corporation (Parts 2600 -- 2699)
XXVII Federal Mine Safety and Health Review Commission (Parts 2700 --
2799)
15 CFR 2301.25 Title 30 -- Mineral Resources
I Mine Safety and Health Administration, Department of Labor (Parts 1
-- 199)
II Minerals Management Service, Department of the Interior (Parts 200
-- 299)
III Board of Surface Mining and Reclamation Appeals, Department of
the Interior (Parts 300 -- 399)
IV Geological Survey, Department of the Interior (Parts 400 -- 499)
VI Bureau of Mines, Department of the Interior (Parts 600 -- 699)
VII Office of Surface Mining Reclamation and Enforcement, Department
of the Interior (Parts 700 -- 999)
15 CFR 2301.25 Title 31 -- Money and Finance: Treasury
Subtitle A -- Office of the Secretary of the Treasury (Parts 0 -- 50)
Subtitle B -- Regulations Relating to Money and Finance
I Monetary Offices, Department of the Treasury (Parts 51 -- 199)
II Fiscal Service, Department of the Treasury (Parts 200 -- 399)
IV Secret Service, Department of the Treasury (Parts 400 -- 499)
V Office of Foreign Assets Control, Department of the Treasury (Parts
500 -- 599)
VI Bureau of Engraving and Printing, Department of the Treasury
(Parts 600 -- 699)
VII Federal Law Enforcement Training Center, Department of the
Treasury (Parts 700 -- 799)
VIII Office of International Investment, Department of the Treasury
(Parts 800 -- 899)
15 CFR 2301.25 Title 32 -- National Defense
Subtitle A -- Department of Defense
I Office of the Secretary of Defense (Parts 1 -- 399)
V Department of the Army (Parts 400 -- 699)
VI Department of the Navy (Parts 700 -- 799)
VII Department of the Air Force (Parts 800 -- 1099)
Subtitle B -- Other Regulations Relating to National Defense
XII Defense Logistics Agency (Parts 1200-1299)
XVI Selective Service System (Parts 1600-1699)
XIX Central Intelligence Agency (Parts 1900 -- 1999)
XX Information Security Oversight Office (Parts 2000 -- 2099)
XXI National Security Council (Parts 2100 -- 2199)
XXIV Office of Science and Technology Policy (Parts 2400 -- 2499)
XXVII Office for Micronesian Status Negotiations (Parts 2700 -- 2799)
XXVIII Office of the Vice President of the United States (Parts 2800
-- 2899)
15 CFR 2301.25 Title 33 -- Navigation and Navigable Waters
I Coast Guard, Department of Transportation (Parts 1 -- 199)
II Corps of Engineers, Department of the Army (Parts 200 -- 399)
IV Saint Lawrence Seaway Development Corporation, Department of
Transportation (Parts 400 -- 499)
15 CFR 2301.25 Title 34 -- Education
Subtitle A -- Office of the Secretary, Department of Education (Parts
1 -- 99)
Subtitle B -- Regulations of the Offices of the Department of
Education
I Office for Civil Rights, Department of Education (Parts 100 -- 199)
II Office of Elementary and Secondary Education, Department of
Education (Parts 200 -- 299)
III Office of Special Education and Rehabilitative Services,
Department of Education (Parts 300 -- 399)
IV Office of Vocational and Adult Education, Department of Education
(Parts 400 -- 499)
V Office of Bilingual Education and Minority Languages Affairs,
Department of Education (Parts 500 -- 599)
VI Office of Postsecondary Education, Department of Education (Parts
600 -- 699)
VII Office of Educational Research and Improvement, Department of
Education (Parts 700 -- 799)
15 CFR 2301.25 Title 35 -- Panama Canal
I Panama Canal Regulations (Parts 1 -- 299)
15 CFR 2301.25 Title 36 -- Parks, Forests, and Public Property
I National Park Service, Department of the Interior (Parts 1 -- 199)
II Forest Service, Department of Agriculture (Parts 200 -- 299)
III Corps of Engineers, Department of the Army (Parts 300 -- 399)
IV American Battle Monuments Commission (Parts 400 -- 499)
V Smithsonian Institution (Parts 500 -- 599)
VII Library of Congress (Parts 700 -- 799)
VIII Advisory Council on Historic Preservation (Parts 800 -- 899)
IX Pennsylvania Avenue Development Corporation (Parts 900-999)
XI Architectural and Transportation Barriers Compliance Board (Parts
1100 -- 1199)
XII National Archives and Records Administration (Parts 1200 -- 1299)
15 CFR 2301.25 Title 37 -- Patents, Trademarks, and Copyrights
I Patent and Trademark Office, Department of Commerce (Parts 1 --
199)
II Copyright Office, Library of Congress (Parts 200 -- 299)
III Copyright Royalty Tribunal (Parts 300 -- 399)
IV Assistant Secretary for Technology Policy, Department of Commerce
(Parts 400-499)
V Under Secretary for Technology, Department of Commerce (Parts 500
-- 599)
15 CFR 2301.25 Title 38 -- Pensions, Bonuses, and Veterans' Relief
I Department of Veterans Affairs (Parts 0 -- 99)
15 CFR 2301.25 Title 39 -- Postal Service
I United States Postal Service (Parts 1-999)
III Postal Rate Commission (Parts 3000 -- 3099)
15 CFR 2301.25 Title 40 -- Protection of Environment
I Environmental Protection Agency (Parts 1 -- 799)
V Council on Environmental Quality (Parts 1500-1599)
15 CFR 2301.25 Title 41 -- Public Contracts and Property Management
Subtitle B -- Other Provisions Relating to Public Contracts
50 Public Contracts, Department of Labor (Parts 50-1 -- 50-999)
51 Committee for Purchase from the Blind and Other Severely
Handicapped (Parts 51-1 -- 51-99)
60 Office of Federal Contract Compliance Programs, Equal Employment
Opportunity, Department of Labor (Parts 60-1 -- 60-999)
61 Office of the Assistant Secretary for Veterans Employment and
Training, Department of Labor (Parts 61-1 -- 61-999)
Subtitle C -- Federal Property Management Regulations System
101 Federal Property Management Regulations (Parts 101-1 -- 101-99)
105 General Services Administration (Parts 105-1 -- 105-999)
109 Department of Energy Property Management Regulations (Parts 109-1
-- 109-99)
114 Department of the Interior (Parts 114-1 -- 114-99)
115 Environmental Protection Agency (Parts 115-1 -- 115-99)
128 Department of Justice (Parts 128-1 -- 128-99)
132 Department of the Air Force (Parts 132-1 -- 132-99)
Subtitle D -- Other Provisions Relating to Property Management
(Reserved)
Subtitle E -- Federal Information Resources Management Regulations
System
201 Federal Information Resources Management Regulation (Parts 201-1
-- 201-99)
Subtitle F -- Federal Travel Regulation System
301 Travel Allowances (Parts 301-1 -- 301-99)
302 Relocation Allowances (Parts 302-1 -- 302-99)
303 Payment of Expenses Connected with the Death of Certain Employees
(Parts 303-1 -- 303-2)
304 Payment from a non-Federal source for travel expenses (Parts
304-1 -- 304-99)
15 CFR 2301.25 Title 42 -- Public Health
I Public Health Service, Department of Health and Human Services
(Parts 1 -- 199)
IV Health Care Financing Administration, Department of Health and
Human Services (Parts 400 -- 499)
V Office of Inspector General-Health Care, Department of Health and
Human Services (Parts 1000 -- 1999)
15 CFR 2301.25 Title 43 -- Public Lands: Interior
Subtitle A -- Office of the Secretary of the Interior (Parts 1 --
199)
Subtitle B -- Regulations Relating to Public Lands
I Bureau of Reclamation, Department of the Interior (Parts 200 --
499)
II Bureau of Land Management, Department of the Interior (Parts 1000
-- 9999)
15 CFR 2301.25 Title 44 -- Emergency Management and Assistance
I Federal Emergency Management Agency (Parts 0 -- 399)
IV Department of Commerce and Department of Transportation (Parts 400
-- 499)
15 CFR 2301.25 Title 45 -- Public Welfare
Subtitle A -- Department of Health and Human Services, General
Administration (Parts 1 -- 199)
Subtitle B -- Regulations Relating to Public Welfare
II Office of Family Assistance (Assistance Programs), Family Support
Administration, Department of Health and Human Services (Parts 200 --
299)
III Office of Child Support Enforcement (Child Support Enforcement
Program), Family Support Administration, Department of Health and Human
Services (Parts 300 -- 399)
IV Office of Refugee Resettlement, Family Support Administration,
Department of Health and Human Services (Parts 400 -- 499)
V Foreign Claims Settlement Commission of the United States,
Department of Justice (Parts 500 -- 599)
VI National Science Foundation (Parts 600 -- 699)
VII Commission on Civil Rights (Parts 700 -- 799)
VIII Office of Personnel Management (Parts 800 -- 899)
X Office of Community Services, Family Support Administration,
Department of Health and Human Services (Parts 1000 -- 1099)
XI National Foundation on the Arts and the Humanities (Parts 1100 --
1199)
XII ACTION (Parts 1200 -- 1299)
XIII Office of Human Development Services, Department of Health and
Human Services (Parts 1300 -- 1399)
XVI Legal Services Corporation (Parts 1600 -- 1699)
XVII National Commission on Libraries and Information Science (Parts
1700 -- 1799)
XVIII Harry S. Truman Scholarship Foundation (Parts 1800 -- 1899)
XX Commission on the Bicentennial of the United States Constitution
(Parts 2000 -- 2099)
XXI Commission on Fine Arts (Parts 2100 -- 2199)
XXII Christopher Columbus Quincentenary Jubilee Commission (2200 --
2299)
15 CFR 2301.25 Title 46 -- Shipping
I Coast Guard, Department of Transportation (Parts 1 -- 199)
II Maritime Administration, Department of Transportation (Parts 200
-- 399)
III Coast Guard (Great Lakes Pilotage), Department of Transportation
(Parts 400 -- 499)
IV Federal Maritime Commission (Parts 500 -- 599)
15 CFR 2301.25 Title 47 -- Telecommunication
I Federal Communications Commission (Parts 0 -- 199)
II Office of Science and Technology Policy and National Security
Council (Parts 200 -- 299)
III National Telecommunications and Information Administration,
Department of Commerce (Parts 300 -- 399)
15 CFR 2301.25 Title 48 -- Federal Acquisition Regulations System
1 Federal Acquisition Regulation (Parts 1 -- 99)
2 Department of Defense (Parts 200 -- 299)
3 Department of Health and Human Services (Parts 300 -- 399)
4 Department of Agriculture (Parts 400 -- 499)
5 General Services Administration (Parts 500 -- 599)
6 Department of State (Parts 600 -- 699)
7 Agency for International Development (Parts 700 -- 799)
8 Department of Veterans Affairs (Parts 800 -- 899)
9 Department of Energy (Parts 900 -- 999)
10 Department of the Treasury (Parts 1000 -- 1099)
12 Department of Transportation (Parts 1200 -- 1299)
13 Department of Commerce (Parts 1300 -- 1399)
14 Department of the Interior (Parts 1400 -- 1499)
15 Environmental Protection Agency (Parts 1500 -- 1599)
16 Office of Personnel Management Federal Employees Health Benefits
Acquisition Regulation (Parts 1600 -- 1699)
17 Office of Personnel Management (Parts 1700 -- 1799)
18 National Aeronautics and Space Administration (Parts 1800 -- 1899)
19 United States Information Agency (Parts 1900 -- 1999)
22 Small Business Administration (Parts 2200 -- 2299)
24 Department of Housing and Urban Development (Parts 2400 -- 2499)
25 National Science Foundation (Parts 2500 -- 2599)
28 Department of Justice (Parts 2800 -- 2899)
29 Department of Labor (Parts 2900 -- 2999)
34 Department of Education Acquisition Regulation (Parts 3400 --
3499)
35 Panama Canal Commission (Parts 3500 -- 3599)
44 Federal Emergency Management Agency (Parts 4400 -- 4499)
51 Department of the Army Acquisition Regulations (Parts 5100 --
5199)
52 Department of the Navy Acquisition Regulations (Parts 5200 --
5299)
53 Department of the Air Force Federal Acquisition Regulation
Supplement (Parts 5300 -- 5399)
57 African Development Foundation (Parts 5700 -- 5799)
61 General Services Administration Board of Contract Appeals (Parts
6100 -- 6199)
63 Department of Transportation Board of Contract Appeals (Parts 6300
-- 6399)
99 Cost Accounting Standards Board, Office of Federal Procurement
Policy, Office of Management and Budget (Parts 9900-9999)
15 CFR 2301.25 Title 49 -- Transportation
Subtitle A -- Office of the Secretary of Transportation (Parts 1 --
99)
Subtitle B -- Other Regulations Relating to Transportation
I Research and Special Programs Administration, Department of
Transportation (Parts 100 -- 199)
II Federal Railroad Administration, Department of Transportation
(Parts 200 -- 299)
III Federal Highway Administration, Department of Transportation
(Parts 300 -- 399)
IV Coast Guard, Department of Transportation (Parts 400 -- 499)
V National Highway Traffic Safety Administration, Department of
Transportation (Parts 500 -- 599)
VI Urban Mass Transportation Administration, Department of
Transportation (Parts 600 -- 699)
VII National Railroad Passenger Corporation (AMTRAK) (Parts 700 --
799)
VIII National Transportation Safety Board (Parts 800 -- 899)
X Interstate Commerce Commission (Parts 1000 -- 1399)
15 CFR 2301.25 Title 50 -- Wildlife and Fisheries
I United States Fish and Wildlife Service, Department of the Interior
(Parts 1 -- 199)
II National Marine Fisheries Service, National Oceanic and
Atmospheric Administration, Department of Commerce (Parts 200 -- 299)
III International Regulatory Agencies (Fishing and Whaling) (Parts
300 -- 399)
IV Joint Regulations (United States Fish and Wildlife Service,
Department of the Interior and National Marine Fisheries Service,
National Oceanic and Atmospheric Administration, Department of
Commerce); Endangered Species Committee Regulations (Parts 400 -- 499)
V Marine Mammal Commission (Parts 500 -- 599)
VI Fishery Conservation and Management, National Oceanic and
Atmospheric Administration, Department of Commerce (Parts 600 -- 699)
15 CFR 2301.25 CFR Index and Finding Aids Subject/Agency Index
List of Agency Prepared Indexes Parallel Tables of Statutory Authorities
and Rules Acts Requiring Publication in the Federal Register List of CFR
Titles, Chapters, Subchapters, and Parts
15 CFR 2301.25 Alphabetical List of Agencies Appearing in the CFR
CFR Title, Subtitle or
Agency
Chapter
ACTION 45, XII
Administrative Committee of the Federal Register 1, I
Administrative Conference of the United States 1, III
Advisory Commission on Intergovernmental Relations 5, VII
Advisory Committee on Federal Pay 5, IV
Advisory Council on Historic Preservation 36, VIII
African Development Foundation 22, XV; 48, 57
Agency for International Development 22, II; 48, 7
Agricultural Marketing Service 7, I, IX, X, XI
Agricultural Research Service 7, V
Agricultural Stabilization and Conservation Service 7, VII
Agriculture Department
Agricultural Marketing Service 7, I, IX, X, XI
Agricultural Research Service 7, V
Agricultural Stabilization and Conservation Service 7, VII
Animal and Plant Health Inspection Service 7, III; 9, I
Commodity Credit Corporation 7, XIV
Cooperative State Research Service 7, XXXIV
Economic Analysis Staff 7, XXXIX
Economic Research Service 7, XXXVII
Economics Management Staff 7, XL
Energy, Office of 7, XXIX
Environmental Quality, Office of 7, XXXI
Farmers Home Administration 7, XVIII
Federal Acquisition Regulation 48, 4
Federal Crop Insurance Corporation 7, IV
Federal Grain Inspection Service 7, VIII
Finance and Management, Office of 7, XXX
Food and Nutrition Service 7, II
Food Safety and Inspection Service 9, III
Foreign Agricultural Service 7, XV
Foreign Economic Development Service 7, XXI
Forest Service 36, II
General Sales Manager, Office of 7, XXV
Grants and Program Systems, Office of 7, XXXII
Information Resources Management, Office of 7, XXVII
Inspector General, Office of 7, XXVI
International Cooperation and Development Office 7, XXII
National Agricultural Library 7, XLI
National Agricultural Statistics Service 7, XXXVI
Operations Office 7, XXVIII
Packers and Stockyards Administration 9, II
Rural Electrification Administration 7, XVII
Rural Telephone Bank 7, XVI
Secretary of Agriculture, Office of 7, Subtitle A
Soil Conservation Service 7, VI
Transportation, Office of 7, XXXIII
World Agriculture Outlook Board 7, XXXVIII
Air Force Department 32, VII; 41, Subtitle C, Ch. 132
Federal Acquisition Regulation Supplement 48, 53
Alaska Natural Gas Transportation System, Office of the Federal
Inspector 10, XV
Alcohol, Tobacco and Firearms, Bureau of 27, I
AMTRAK 49, VII
American Battle Monuments Commission 36, IV
Animal and Plant Health Inspection Service 7, III; 9, I
Appalachian Regional Commission 5, IX
Architectural and Transportation Barriers Compliance Board 36, XI
Arms Control and Disarmament Agency, U.S. 22, VI
Army Department 32, V
Engineers, Corps of 33, II; 36, III
Federal Acquisition Regulation 48, 51
Assistant Secretary for Technology Policy, Department of Commerce 37,
IV
Benefits Review Board 20, VII
Bicentennial of the United States Constitution, Commission on the 45,
XX
Bilingual Education and Minority Languages Affairs, Office of 34, V
Blind and Other Severely Handicapped, Committee for Purchase from 41,
51
Board for International Broadcasting 22, XIII
Budget, Office of Management and 5, III
Census Bureau 15, I
Central Intelligence Agency 32, XIX
Child Support Enforcement, Office of 45, III
Christopher Columbus Quincentenary Jubilee Commission 45, XXII
Civil Rights Commission 45, VII
Civil Rights, Office for (Education Department) 34, I
Claims Collection Standards, Federal 4, II
Coast Guard 33, I; 46, I, III; 49, IV
Commerce Department 44, IV
Census Bureau 15, I
Assistant Secretary for Technology Policy 37, IV
Economic Affairs, Under Secretary 37, V
Economic Analysis, Bureau of 15, VIII
Economic Development Administration 13, III
Endangered Species Committee 50, IV
Export Administration Bureau 15, VII
Federal Acquisition Regulation 48, 13
Fishery Conservation and Management 50, VI
International Trade Administration 15, III; 19, III
National Institute of Standards and Technology 15, II
National Marine Fisheries Service 50, II, IV
National Oceanic and Atmospheric Administration 15, IX; 50, II, III,
IV, VI
National Telecommunications and Information Administration 15, XXIII;
47, III
Patent and Trademark Office 37, I
Productivity, Technology and Innovation, Assistant Secretary for 37,
IV
Secretary of Commerce, Office of 15, Subtitle A
Technology Administration 15, XI
Under Secretary for Technology 37, V
United States Travel and Tourism Administration 15, XII
Commercial Space Transportation, Office of, Department of
Transportation 14, III
Commission on the Bicentennial of the United States Constitution 45,
XX
Committee for Purchase from the Blind and Other Severely Handicapped
41, 51
Commodity Credit Corporation 7, XIV
Commodity Futures Trading Commission 17, I
Community Planning and Development, Office of Assistant Secretary for
24, V, VI
Community Services, Office of 45, X
Comptroller of the Currency 12, I
Construction Industry Collective Bargaining Commission 29, IX
Consumer Product Safety Commission 16, II
Cooperative State Research Service 7, XXXIV
Copyright Office 37, II
Copyright Royalty Tribunal 37, III
Cost Accounting Standards Board, Office of Federal Procurement Policy
48, 99
Council on Environmental Quality 40, V
Customs Service, United States 19, I
Defense Department 32, Subtitle A
Air Force Department 32, VII; 41, Subtitle C, Ch. 132
Army Department 32, V; 33, II; 36, III, 48, 51
Engineers, Corps of 33, II; 36, III
Federal Acquisition Regulation 48, 2
Navy Department 32, VI; 48, 52
Secretary of Defense, Office of 32, I
Defense Logistics Agency 32, XII
Defense Nuclear Facilities Safety Board 10, XVII
Delaware River Basin Commission 18, III
Drug Enforcement Administration 21, II
East-West Foreign Trade Board 15, XIII
Economic Affairs, Under Secretary (Commerce) 37, V
Economic Analysis, Bureau of 15, VIII
Economic Analysis Staff, Department of Agriculture 7, XXXIX
Economic Development Administration 13, III
Economics Management Staff 7, XL
Economic Research Service 7, XXXVII
Education, Department of
Bilingual Education and Minority Languages Affairs, Office of 34, V
Civil Rights, Office for 34, I
Educational Research and Improvement, Office of 34, VII
Elementary and Secondary Education, Office of 34, II
Federal Acquisition Regulation 48, 34
Postsecondary Education, Office of 34, VI
Secretary of Education, Office of 34, Subtitle A
Special Education and Rehabilitative Services, Office of 34, III
Vocational and Adult Education, Office of 34, IV
Educational Research and Improvement, Office of 34, VII
Elementary and Secondary Education, Office of 34, II
Employees' Compensation Appeals Board 20, IV
Employees Loyalty Board, International Organizations 5, V
Employment and Training Administration 20, V
Employment Standards Administration 20, VI
Endangered Species Committee 50, IV
Energy, Department of 10, II, III, X; 41, 109
Federal Acquisition Regulation 48, 9
Federal Energy Regulatory Commission 18, I
Energy, Office of, Department of Agriculture 7, XXIX
Engineers, Corps of 33, II; 36, III
Engraving and Printing, Bureau of 31, VI
Environmental Protection Agency 40, I; 41, 115; 48, 15
Environmental Quality, Office of (Agriculture Department) 7, XXXI
Equal Employment Opportunity Commission 29, XIV
Equal Opportunity, Office of Assistant Secretary for 24, I
Executive Office of the President 3, I
Administration, Office of 5, XV
Export Administration Bureau 15, VII
Export-Import Bank of the United States 12, IV
Family Assistance, Office of 45, II
Family Support Administration 45, II, III, IV, X
Farm Credit Administration 12, VI
Farm Credit System Assistance Board 12, XIII
Farm Credit System Insurance Corporation 12, XIV
Farmers Home Administration 7, XVIII
Federal Acquisition Regulation 48, 1
Federal Aviation Administration 14, I
Federal Claims Collection Standards 4, II
Federal Communications Commission 47, I
Federal Contract Compliance Programs, Office of 41, 60
Federal Crop Insurance Corporation 7, IV
Federal Deposit Insurance Corporation 12, III
Federal Election Commission 11, I
Federal Emergency Management Agency 44, I; 48, 44
Federal Energy Regulatory Commission 18, I
Federal Financial Institutions Examination Council 12, XI
Federal Financing Bank 12, VIII
Federal Grain Inspection Service 7, VIII
Federal Highway Administration 23, I, II; 49, III
Federal Home Loan Mortgage Corporation 1, IV
Federal Housing Finance Board 12, IX
Federal Information Resources Management Regulations 41, Subtitle E,
Ch. 201
Federal Inspector for the Alaska Natural Gas Transportation System,
Office of 10, XV
Federal Labor Relations Authority, and General Counsel of the Federal
Labor Relations Authority 5, XIV; 22, XIV
Federal Law Enforcement Training Center 31, VII
Federal Maritime Commission 46, IV
Federal Mediation and Conciliation Service 29, XII
Federal Mine Safety and Health Review Commission 29, XXVII
Federal Pay, Advisory Committee on 5, IV
Federal Prison Industries, Inc. 28, III
Federal Procurement Policy Office 48, 99
Federal Property Management Regulations 41, 101
Federal Property Management Regulations System 41, Subtitle C
Federal Railroad Administration 49, II
Federal Register, Administrative Committee of 1, I
Federal Register, Office of 1, II
Federal Reserve System 12, II
Federal Retirement Thrift Investment Board 5, VI
Federal Service Impasses Panel 5, XIV
Federal Trade Commission 16, I
Federal Travel Regulation System 41, Subtitle F
Finance and Management, Department of Agriculture 7, XXX
Fine Arts Commission 45, XXI
Fiscal Service 31, II
Fish and Wildlife Service, United States 50, I, IV
Fishery Conservation and Management 50, VI
Fishing and Whaling, International Regulatory Agencies 50, III
Food and Drug Administration 21, I
Food and Nutrition Service 7, II
Food Safety and Inspection Service 9, III
Foreign Agricultural Service 7, XV
Foreign Assets Control, Office of 31, V
Foreign Claims Settlement Commission of United States 45, V
Foreign Economic Development Service 7, XXI
Foreign Service Grievance Board 22, IX
Foreign Service Impasse Disputes Panel 22, XIV
Foreign Service Labor Relations Board 22, XIV
Foreign-Trade Zones Board 15, IV
Forest Service 36, II
General Accounting Office 4, I, II, III
General Sales Manager, Office of 7, XXV
General Services Administration
Contract Appeals Board 48, 61
Federal Acquisition Regulation 48, 5
Federal Information Resources Management Regulations 41, Subtitle E,
Ch. 201
Federal Property Management Regulations System 41, 101, 105
Federal Travel Regulation System 41, Subtitle F
Payment of Expenses Connected With the Death of Certain Employees 41,
303
Reduction in Meeting and Training Allowance Payments 41, 304
Relocation Allowances 41, 302
Travel Allowances 41, 301
Geological Survey 30, IV
Government Ethics, Office of 5, XVI
Government National Mortgage Association 24, III
Grants and Program Systems, Office of 7, XXXII
Great Lakes Pilotage 46, III
Harry S. Truman Scholarship Foundation 45, XVIII
Health and Human Services, Department of 45, Subtitle A
Child Support Enforcement, Office of 45, III
Community Services, Office of 45, X
Family Assistance, Office of 45, II
Family Support Administration 45, II, III, IV, X
Federal Acquisition Regulation 48, 3
Food and Drug Administration 21, I
Health Care Financing Administration 42, IV
Human Development Services Office 45, XIII
Inspector General, Office of 42, V
Public Health Service 42, I
Refugee Resettlement, Office of 45, IV
Social Security Administration 20, III; 45, IV
Health Care Financing Administration 42, IV
Housing and Urban Development, Department of
Community Planning and Development, Office of Assistant Secretary for
24, V, VI
Equal Opportunity, Office of Assistant Secretary for 24, I
Federal Acquisition Regulation 48, 24
Government National Mortgage Association 24, III
Housing -- Federal Housing Commissioner, Office of Assistant
Secretary for 24, II, VIII, X, XX
Inspector General, Office of 24, XII
Mortgage Insurance and Loan Programs Under Emergency Homeowners'
Relief Act 24, XV
Public and Indian Housing, Office of Assistant Secretary for 24, IX
Secretary, Office of 24, Subtitle B, VII
Solar Energy and Energy Conservation Bank 24, XI
Housing -- Federal Housing Commissioner, Office of Assistant
Secretary for 24, II, VIII, X, XX
Human Development Services Office 45, XIII
Immigration and Naturalization Service 8, I
Indian Affairs, Bureau of 25, I
Indian Arts and Crafts Board 25, II
Information Agency, United States 22, V; 48, 19
Information Resources Management, Office of, Agriculture Department
7, XXVII
Information Security Oversight Office 32, XX
Inspector General, Office of, Agriculture Department 7, XXVI
Inspector General, Office of, Health and Human Services Department
42, V
Inspector General, Office of, Housing and Urban Development
Department 24, XII
Inter-American Foundation 22, X
Intergovernmental Relations, Advisory Commission on 5, VII
Interior Department
Endangered Species Committee 50, IV
Federal Acquisition Regulation 48, 14
Federal Property Management Regulations System 41, 114
Fish and Wildlife Service, United States 50, I, IV
Geological Survey 30, IV
Indian Affairs, Bureau of 25, I
Indian Arts and Crafts Board 25, II
Land Management Bureau 43, II
Minerals Management Service 30, II
Mines, Bureau of 30, VI
National Park Service 36, I
Reclamation Bureau 43, I
Secretary of the Interior, Office of 43, Subtitle A
Surface Mining and Reclamation Appeals, Board of 30, III
Surface Mining Reclamation and Enforcement, Office of 30, VII
United States Fish and Wildlife Service 50, I, IV
Internal Revenue Service 26, I
International Boundary and Water Commission, United States and Mexico
22, XI
International Cooperation and Development Office, Department of
Agriculture 7, XXII
International Development, Agency for 22, II
International Development Cooperation Agency 22, XII
International Development, Agency for 22, II
Overseas Private Investment Corporation 22, VII
International Joint Commission, United States and Canada 22, IV
International Organizations Employees Loyalty Board 5, V
International Regulatory Agencies (Fishing and Whaling) 50, III
International Trade Administration 15, III; 19, III
International Trade Commission, United States 19, II
Interstate Commerce Commission 49, X
Japan-United States Friendship Commission 22, XVI
Joint Board for the Enrollment of Actuaries 20, VIII
Justice Department 28, I; 41, 128
Drug Enforcement Administration 21, II
Federal Acquisition Regulation 48, 28
Federal Claims Collection Standards 4, II
Federal Prison Industries, Inc. 28, III
Foreign Claims Settlement Commission of the United States 45, V
Immigration and Naturalization Service 8, I
Offices of Independent Counsel 28, VI
Prisons, Bureau of 28, V
Labor Department
Benefits Review Board 20, VII
Employees' Compensation Appeals Board 20, IV
Employment and Training Administration 20, V
Employment Standards Administration 20, VI
Federal Acquisition Regulation 48, 29
Federal Contract Compliance Programs, Office of 41, 60
Federal Procurement Regulations System 41, 50
Labor-Management Relations and Cooperative Programs, Bureau of 29, II
Labor-Management Standards, Office of 29, IV
Mine Safety and Health Administration 30, I
Occupational Safety and Health Administration 29, XVII
Pension and Welfare Benefits Administration 29, XXV
Public Contracts 41, 50
Secretary of Labor, Office of 29, Subtitle A
Veterans' Employment and Training, Office of the Assistant Secretary
for 41, 61; 20, IX
Wage and Hour Division 29, V
Workers' Compensation Programs, Office of 20, I
Labor-Management Relations and Cooperative Programs, Bureau of 29, II
Labor-Management Standards, Office of 29, IV
Land Management, Bureau of 43, II
Legal Services Corporation 45, XVI
Library of Congress 36, VII
Copyright Office 37, II
Management and Budget, Office of 5, III; 48, 99
Marine Mammal Commission 50, V
Maritime Administration 46, II
Merit Systems Protection Board 5, II
Micronesian Status Negotiations, Office for 32, XXVII
Mine Safety and Health Administration 30, I
Minerals Management Service 30, II
Mines, Bureau of 30, VI
Minority Business Development Agency 15, XIV
Miscellaneous Agencies 1, IV
Monetary Offices 31, I
Mortgage Insurance and Loan Programs Under the Emergency Homeowners'
Relief Act, Department of Housing and Urban Development 24, XV
National Aeronautics and Space Administration 14, V; 48, 18
National Agricultural Library 7, XLI
National Agricultural Statistics Service 7, XXXVI
National Archives and Records Administration 36, XII
National Bureau of Standards 15, II
National Capital Planning Commission 1, IV
National Commission for Employment Policy 1, IV
National Commission on Libraries and Information Science 45, XVII
National Credit Union Administration 12, VII
National Foundation on the Arts and the Humanities 45, XI
National Highway Traffic Safety Administration 23, II, III; 49, V
National Indian Gaming Commission 25, III
National Institute of Standards and Technology 15, II
National Labor Relations Board 29, I
National Marine Fisheries Service 50, II, IV
National Mediation Board 29, X
National Oceanic and Atmospheric Administration 15, IX; 50, II, III,
IV, VI
National Park Service 36, I
National Railroad Adjustment Board 29, III
National Railroad Passenger Corporation (AMTRAK) 49, VII
National Science Foundation 45, VI; 48, 25
National Security Council 32, XXI
National Security Council and Office of Science and Technology Policy
47, II
National Telecommunications and Information Administration 15, XXIII;
47, III
National Transportation Safety Board 49, VIII
Office of Navajo and Hopi Indian Relocation 25, IV
Navy Department 32, VI; 48, 52
Neighborhood Reinvestment Corporation 24, XXV
Nuclear Regulatory Commission 10, I
Occupational Safety and Health Administration 29, XVII
Occupational Safety and Health Review Commission 29, XX
Office of Independent Counsel 28, VII
Offices of Independent Counsel, Department of Justice 28, VI
Operations Office, Department of Agriculture 7, XXVIII
Overseas Private Investment Corporation 22, VII
Oversight Board 12, XV
Packers and Stockyards Administration 9, II
Panama Canal Commission 48, 35
Panama Canal Regulations 35, I
Patent and Trademark Office 37, I
Payment of Expenses Connected With the Death of Certain Employees 41,
303
Peace Corps 22, III
Pennsylvania Avenue Development Corporation 36, IX
Pension and Welfare Benefits Administration, Department of Labor 29,
XXV
Pension Benefit Guaranty Corporation 29, XXVI
Personnel Management, Office of 5, I; 45, VIII; 48, 17
Federal Employees Health Benefits Acquisition Regulation 48, 16
Postal Rate Commission 39, III
Postal Service, United States 39, I
Postsecondary Education, Office of 34, VI
President's Commission on White House Fellowships 1, IV
Presidential Documents 3
Prisons, Bureau of 28, V
Productivity, Technology and Innovation, Assistant Secretary
(Commerce) 37, IV
Property Management Regulations System, Federal 41, Subtitle C
Public Contracts, Department of Labor 41, 50
Public Health Service 42, I
Railroad Retirement Board 20, II
Reclamation Bureau 43, I
Reduction in Meeting and Training Allowance Payments 41, 304
Refugee Resettlement, Office of 45, IV
Regional Action Planning Commissions 13, V
Relocation Allowances 41, 302
Research and Special Programs Administration 49, I
Resolution Trust Corporation 12, XVI
Rural Electrification Administration 7, XVII
Rural Telephone Bank 7, XVI
Saint Lawrence Seaway Development Corporation 33, IV
Science and Technology Policy, Office of 32, XXIV
Science and Technology Policy, Office of, and National Security
Council 47, II
Secret Service 31, IV
Securities and Exchange Commission 17, II
Selective Service System 32, XVI
Small Business Administration 13, I; 48, 22
Smithsonian Institution 36, V
Social Security Administration 20, III; 45, IV
Soil Conservation Service 7, VI
Solar Energy and Energy Conservation Bank, Department of Housing and
Urban Development 24, XI
Soldiers' and Airmen's Home, United States 5, XI
Special Counsel, Office of 5, VIII
Special Education and Rehabilitative Services, Office of 34, III
State Department 22, I
Federal Acquisition Regulation 48, 6
Surface Mining and Reclamation Appeals, Board of 30, III
Susquehanna River Basin Commission 18, VIII
Technology Administration 15, XI
Tennessee Valley Authority 18, XIII
Thrift Supervision Office, Department of the Treasury 12, V
Trade Representative, United States, Office of 15, XX
Transportation, Department of 44, IV
Coast Guard 33, I; 46, I, III; 49, IV
Commercial Space Transportation, Office of 14, III
Contract Appeals Board 48, 63
Federal Acquisition Regulation 48, 12
Federal Aviation Administration 14, I
Federal Highway Administration 23, I, II; 49, III
Federal Railroad Administration 49, II
Maritime Administration 46, II
National Highway Traffic Safety Administration 23, II, III; 49, V
Research and Special Programs Administration 49, I
Saint Lawrence Seaway Development Corporation 33, IV
Secretary of Transportation, Office of 14, II; 49, Subtitle A
Urban Mass Transportation Administration 49, VI
Transportation, Office of, Department of Agriculture 7, XXXIII
Travel Allowance 41, 301
Travel and Tourism Administration, United States 15, XII
Treasury Department 17, IV
Alcohol, Tobacco and Firearms, Bureau of 27, I
Comptroller of the Currency 12, I
Customs Service, United States 19, I
Engraving and Printing, Bureau of 31, VI
Federal Acquisition Regulation 48, 10
Federal Law Enforcement Training Center 31, VII
Fiscal Service 31, II
Foreign Assets Control, Office of 31, V
Internal Revenue Service 26, I
Monetary Offices 31, I
Secret Service 31, IV
Secretary of the Treasury, Office of 31, Subtitle A
Thrift Supervision Office 12, V
United States Customs Service 19, I
Truman, Harry S. Scholarship Foundation 45, XVIII
Under Secretary for Technology, Department of Commerce 37, V
United States and Canada, International Joint Commission 22, IV
United States Arms Control and Disarmament Agency 22, VI
United States Customs Service 19, I
United States Fish and Wildlife Service 50, I, IV
United States Information Agency 22, V; 48, 19
United States International Development Cooperation Agency 22, XII
United States International Trade Commission 19, II
United States Postal Service 39, I
United States Soldiers' and Airmen's Home 5, XI
United States Trade Representative, Office of 15, XX
United States Travel and Tourism Adminstration 15, XII
Urban Mass Transportation Administration 49, VI
Veterans Affairs Department 38, I; 48, 8
Veterans' Employment and Training, Office of the Assistant Secretary
for 41, 61; 20, IX
Vice President of the United States, Office of 32, XXVIII
Vocational and Adult Education, Office of 34, IV
Wage and Hour Division 29, V
Water Resources Council 18, VI
Workers' Compensation Programs, Office of 20, I
World Agriculture Outlook Board 7, XXXVIII
15 CFR 2301.25 15 CFR (1-1-92 Edition)
15 CFR 2301.25 List of CFR Sections Affected
15 CFR 2301.25 List of CFR Sections Affected
All changes in this volume of the Code of Federal Regulations which
were made by documents published in the Federal Register since January
1, 1986, are enumerated in the following list. Entries indicate the
nature of the changes effected. Page numbers refer to Federal Register
pages. The user should consult the entries for chapters and parts as
well as sections for revisions.
For the period before January 1, 1986, see the ''List of CFR Sections
Affected, 1949-1963, 1964-1972, and 1973-1985 published in seven
separate volumes.
15 CFR 2301.25 1986
15 CFR
51 FR
Page
Chapter VIII
801 Added 7772
802 Removed 7774
803 Removed 7774
806 Authority citation revised; section authority citations removed
11012
Authority citation revised 41476
806.14 (e)(1) designation removed; (e) amended 11012
806.18 (b) amended (OMB number) 41476
Chapter IX
904.504 (b)(2) (A), (B), and (C) and (3) (A) through (E) correctly
redesignated as (b)(2) (i), (ii), and (iii) and (3) (i) through (v) 1249
904.506 (b)(2) (A) through (G), (d)(1) (A) and (B), and (f)(1) (A)
through (E) correctly redesignated as (b)(2) (i) through (vii), (d)(1)
(i) and (ii), and (f)(1) (i) through (v) 1249
911.1 (b)(3) added 3466
911.2 (b) and (c) revised; OMB number 3466
911.3 (c)(1), (d)(1), (e), and (g)(2) amended; OMB number 3466
911.5 (c) amended 3466
916 Removed 7010
917.21 (c) (1) through (15) revised; (16) through (33) added 35210
941 Added 15880
981 Authority citation revised 20959
981.40 Amended 20959
981.50 (a) revised 20959
981.130 Revised 20959
981.155 (b) revised 20960
981.470 (a)(7) revised 20960
981.520 (g)(1) revised 20960
981.550 (c) revised 20960
Chapter XX
2007 Revised 5037
15 CFR 2301.25 1987
15 CFR
52 FR
Page
Chapter VIII
801.9 (a) revised 19843
(b) (3), (4), and (5) revised; eff. 1-8-88 46589
801.10 Added 19843
806.14 (f) (1) and (2) revised 8446
(f)(3) (iii) and (iv)(B) revised; (f)(3)(iv) (C) and (D)
redesignated as (f)(3)(iv) (D) and (E); new (f)(3)(iv)(C) and (v) added
42276
806.15 (h) (1) and (2) revised 8446
Chapter IX
904 Revised 10325
908.9 Revised 4896
908.11 (a) revised 4896
960 Added 25970
Chapter XXIII
2301 Revised 31499
15 CFR 2301.25 1988
15 CFR
53 FR
Page
Chapter VIII
801.9 (b)(6) added 39455
(b)(1)(ii) revised 41563
806.15 (j) (1) and (2) amended 1016
(h) (1) and (2) amended 15198
806.17 Revised 1016
Chapter IX
922 Revised 43806
15 CFR 2301.25 1989
15 CFR
54 FR
Page
Chapter VIII
806.14 (g)(1) amended; (g)(2) revised; eff. 1-18-90 51879
806.15 (i) revised 1352
806.16 Revised; eff. 1-18-90 51879
Chapter IX
942 Added (effective date pending) 22423
Authority citation revised 52343
942.6 (a)(3) revised 52343
970.200 (f) revised 547
970.212 (a) and (b)(2) revised 547
970.302 (j)(1)(i) introductory text and (A) revised 548
970.407 (d) revised 548
970.501 (a) and (b)(2) revised 548
970.508 (d) revised 548
970.510 (d) revised 548
970.511 (a)(1), (b), (e) and (i)(2) revised 548
970.900 (Subpart I) Revised 548
970.901 -- 970.906 Removed 548
970.1000 -- 970.1002 (Subpart J) Removed 548
970.1100 -- 970.1107 (Subpart K) Removed 548
971 Added 525
Chapter XI
Chapter XI Chapter established 19358
1150 Added 19358
15 CFR 2301.25 1990
15 CFR
55 FR
Page
Chapter VIII
806.14 (f)(3)(ii) amended; (f)(3)(iii) and (iv)(A) through (C)
revised; eff. 1-2-91 49879
Chapter IX
921 Revised; interim 29949
942 Regulation at 54 FR 22423 confirmed 49994
Chapter XII
Chapter XII Heading amended 53489
1200.1 Amended 53489
1200.2 (g)(2) amended 53489
1200.3 (b) and (c) amended 53489
1200.4 Amended 53489
1200.11 Amended 53489
Chapter XX
2006 Revised 20595
2011 Revised; interim 40648
2013 Removed; interim 40653
15 CFR 2301.25 1991
15 CFR
56 FR
Page
Chapter VIII
801.10 Revised 60918
Chapter IX
943 Added (effective date pending 63643
Chapter XI
1160 Redesignated from 19.1 -- 19.7 (Subpart A); heading and
authority citation added 41282
1160.20 -- 1160.27 (Subpart B) Added 41282
1160.21 (a) corrected 51257
1160.22 (a) corrected 51257
1170 Redesignated from 19.20 -- 19.24 (Subpart B); heading and
authority citation added 41283
Technical correction 60059
Chapter XII
1201 Added 179
Chapter XXIII
2301 Revised 59174
15
Commerce and Foreign Trade
PART 800 TO END
Revised as of January 1, 1992
CONTAINING
A CODIFICATION OF DOCUMENTS
OF GENERAL APPLICABILITY
AND FUTURE EFFECT
AS OF JANUARY 1, 1992
With Ancillaries
Published by
the Office of the Federal Register
National Archives and Records
Administration
as a Special Edition of
the Federal Register
15 CFR 2301.25 Table of Contents
Page
Explanation
Title 15:
Subtitle B -- Regulations Relating to Commerce and Foreign Trade
(Continued):
Chapter VIII -- Bureau of Economic Analysis, Department of
Commerce
Chapter IX -- National Oceanic and Atmospheric Administration,
Department of Commerce
Chapter XI -- Technology Administration, Department of Commerce
Chapter XII -- United States Travel and Tourism Administration,
Department of Com- merce
Chapter XIII -- East-West Foreign Trade Board Chapter XIV --
Minority Business Development Agency
Subtitle C -- Regulations Relating to Foreign Trade Agreements:
Chapter XX -- Office of the United States Trade Representative
Subtitle D -- Regulations Relating to Telecommunications and
Information
Chapter XXIII -- National Telecommunications and Information
Administration, Department of Commerce
Finding Aids:
Material Approved for Incorporation by Reference
Table of CFR Titles and Chapters
Alphabetical List of Agencies Appearing in the CFR
List of CFR Sections Affected
15 CFR 2301.25 Explanation
The Code of Federal Regulations is a codification of the general and
permanent rules published in the Federal Register by the Executive
departments and agencies of the Federal Government. The Code is divided
into 50 titles which represent broad areas subject to Federal
regulation. Each title is divided into chapters which usually bear the
name of the issuing agency. Each chapter is further subdivided into
parts covering specific regulatory areas.
Each volume of the Code is revised at least once each calendar year
and issued on a quarterly basis approximately as follows:
Title 1 through Title 16 as of January 1
Title 17 through Title 27 as of April 1
Title 28 through Title 41 as of July 1
Title 42 through Title 50 as of October 1
The appropriate revision date is printed on the cover of each volume.
LEGAL STATUS
The contents of the Federal Register are required to be judicially
noticed (44 U.S.C. 1507). The Code of Federal Regulations is prima facie
evidence of the text of the original documents (44 U.S.C. 1510).
HOW TO USE THE CODE OF FEDERAL REGULATIONS
The Code of Federal Regulations is kept up to date by the individual
issues of the Federal Register. These two publications must be used
together to determine the latest version of any given rule.
To determine whether a Code volume has been amended since its
revision date (in this case, January 1, 1992), consult the ''List of CFR
Sections Affected (LSA),'' which is issued monthly, and the ''Cumulative
List of Parts Affected,'' which appears in the Reader Aids section of
the daily Federal Register. These two lists will identify the Federal
Register page number of the latest amendment of any given rule.
EFFECTIVE AND EXPIRATION DATES
Each volume of the Code contains amendments published in the Federal
Register since the last revision of that volume of the Code. Source
citations for the regulations are referred to by volume number and page
number of the Federal Register and date of publication. Publication
dates and effective dates are usually not the same and care must be
exercised by the user in determining the actual effective date. In
instances where the effective date is beyond the cut-off date for the
Code a note has been inserted to reflect the future effective date. In
those instances where a regulation published in the Federal Register
states a date certain for expiration, an appropriate note will be
inserted following the text.
OMB CONTROL NUMBERS
The Paperwork Reduction Act of 1980 (Pub. L. 96-511) requires Federal
agencies to display an OMB control number with their information
collection request. Many agencies have begun publishing numerous OMB
control numbers as amendments to existing regulations in the CFR. These
OMB numbers are placed as close as possible to the applicable
recordkeeping or reporting requirements.
OBSOLETE PROVISIONS
Provisions that become obsolete before the revision date stated on
the cover of each volume are not carried. Code users may find the text
of provisions in effect on a given date in the past by using the
appropriate numerical list of sections affected. For the period before
January 1, 1986, consult either the List of CFR Sections Affected,
1949-1963, 1964-1972, or 1973-1985, published in seven separate volumes.
For the period beginning January 1, 1986, a ''List of CFR Sections
Affected'' is published at the end of each CFR volume.
INCORPORATION BY REFERENCE
What is incorporation by reference? Incorporation by reference was
established by statute and allows Federal agencies to meet the
requirement to publish regulations in the Federal Register by referring
to materials already published elsewhere. For an incorporation to be
valid, the Director of the Federal Register must approve it. The legal
effect of incorporation by reference is that the material is treated as
if it were published in full in the Federal Register (5 U.S.C. 552(a)).
This material, like any other properly issued regulation, has the force
of law.
What is a proper incorporation by reference? The Director of the
Federal Register will approve an incorporation by reference only when
the requirements of 1 CFR part 51 are met. Some of the elements on
which approval is based are:
(a) The incorporation will substantially reduce the volume of
material published in the Federal Register.
(b) The matter incorporated is in fact available to the extent
necessary to afford fairness and uniformity in the administrative
process.
(c) The incorporating document is drafted and submitted for
publication in accordance with 1 CFR part 51.
Properly approved incorporations by reference in this volume are
listed in the Finding Aids at the end of this volume.
What if the material incorporated by reference cannot be found? If
you have any problem locating or obtaining a copy of material listed in
the Finding Aids of this volume as an approved incorporation by
reference, please contact the agency that issued the regulation
containing that incorporation. If, after contacting the agency, you
find the material is not available, please notify the Director of the
Federal Register, National Archives and Records Administration,
Washington DC 20408, or call (202) 523-4534.
CFR INDEXES AND TABULAR GUIDES
A subject index to the Code of Federal Regulations is contained in a
separate volume, revised annually as of January 1, entitled CFR Index
and Finding Aids. This volume contains the Parallel Table of Statutory
Authorities and Agency Rules (Table I), and Acts Requiring Publication
in the Federal Register (Table II). A list of CFR titles, chapters, and
parts and an alphabetical list of agencies publishing in the CFR are
also included in this volume.
An index to the text of ''Title 3 -- The President'' is carried
within that volume.
The Federal Register Index is issued monthly in cumulative form.
This index is based on a consolidation of the ''Contents'' entries in
the daily Federal Register.
A List of CFR Sections Affected (LSA) is published monthly, keyed to
the revision dates of the 50 CFR titles.
REPUBLICATION OF MATERIAL
There are no restrictions on the republication of material appearing
in the Code of Federal Regulations.
INQUIRIES AND SALES
For a summary, legal interpretation, or other explanation of any
regulation in this volume, contact the issuing agency. Inquiries
concerning editing procedures and reference assistance with respect to
the Code of Federal Regulations may be addressed to the Director, Office
of the Federal Register, National Archives and Records Administration,
Washington, DC 20408 (telephone 202-523-3517). All mail order sales are
handled exclusively by the Superintendent of Documents, Attn: New
Orders, P.O. Box 371954, Pittsburgh, PA 15250-7954. Charge orders may
be telephoned to the Government Printing Office order desk at
202-783-3238.
Martha L. Girard,
Director,
Office of the Federal Register.
January 1, 1992.
15 CFR 2301.25 THIS TITLE
Title 15 -- Commerce and Foreign Trade is composed of three volumes.
The parts in these volumes are arranged in the following order: parts
0-299, 300-799, and part 800-End. The first volume containing parts
0-299 is comprised of Subtitle A -- Office of the Secretary of Commerce,
chapter I -- Bureau of the Census, Department of Commerce, and chapter
II -- National Institute of Standards and Technology, Department of
Commerce. The second volume containing parts 300-799 is comprised of
chapter III -- International Trade Administration, Department of
Commerce, chapter IV -- Foreign-Trade Zones Board, and chapter VII --
Bureau of Export Administration, Department of Commerce. The third
volume containing part 800-End is comprised of chapter VIII -- Bureau of
Economic Analysis, Department of Commerce, chapter IX -- National
Oceanic and Atmospheric Administration, Department of Commerce, chapter
XI -- Technology Administration, Department of Commerce, chapter XII --
United States Travel and Tourism Administration, Department of Commerce,
chapter XIII -- East-West Foreign Trade Board, chapter XIV -- Minority
Business Development Agency, chapter XX -- Office of the United States
Trade Representative, and chapter XXIII -- National Telecommunications
and Information Administration, Department of Commerce. The contents of
these volumes represent all current regulations codified under this
title of the CFR as of January 1, 1992.
A redesignation table appears in the Finding Aids section of the
volume containing Parts 300-799
For this volume, Ina C. Masters was Chief Editor. The Code of
Federal Regulations publication program is under the direction of
Richard L. Claypoole, assisted by Alomha S. Morris.
16 CFR 0.0 16 CFR Ch. I (1-1-92 Edition)
16 CFR 0.0 Federal Trade Commission
16 CFR 0.0 Title 16 -- Commercial Practices
16 CFR 0.0 (This book contains parts 0 to 149)
Part
chapter i -- Federal Trade Commission 0
16 CFR 0.0 16 CFR Ch. I (1-1-92 Edition)
16 CFR 0.0 Federal Trade Commission
16 CFR 0.0 CHAPTER I -- FEDERAL TRADE COMMISSION
16 CFR 0.0
16 CFR 0.0 SUBCHAPTER A -- ORGANIZATION, PROCEDURES AND RULES OF
PRACTICE
Part
Page
0 Organization
1 General procedures
2 Nonadjudicative procedures
3 Rules of practice for adjudicative proceedings
4 Miscellaneous rules
5 Standards of conduct
6 Enforcement of nondiscrimination on the basis of handicap in
programs or activities conducted by the Federal Trade Commission
14 Administrative interpretations, general policy statements, and
enforcement policy statements
16 Advisory committee management
16 CFR 0.0
16 CFR 0.0 SUBCHAPTER B -- GUIDES AND TRADE PRACTICE RULES
17 Application of guides in preventing unlawful practices (Note)
18 Guides for the nursery industry
19 Guides for the metallic watch band industry
20 Guides for the rebuilt, reconditioned and other used automobile
parts industry
21 Guides for the mirror industry
22 Guides for the hosiery industry
23 Guides for the jewelry industry
24 Guides for the luggage and related products industry
25-149 (Reserved)
16 CFR 0.0 16 CFR Ch. I (1-1-92 Edition)
16 CFR 0.0 Federal Trade Commission
16 CFR 0.0 SUBCHAPTER A -- ORGANIZATION, PROCEDURES AND RULES OF PRACTICE
16 CFR 0.0 PART 0 -- ORGANIZATION
Sec.
0.1 The Commission.
0.2 Official address.
0.3 Hours.
0.4 Laws administered.
0.5 Laws authorizing monetary claims.
0.6 (Reserved)
0.7 Delegation of functions.
0.8 The Chairman.
0.9 Organization structure.
0.10 Office of the Executive Director.
0.11 Office of the General Counsel.
0.12 Office of the Secretary.
0.13 (Reserved)
0.14 Office of Administrative Law Judges.
0.15 (Reserved)
0.16 Bureau of Competition.
0.17 Bureau of Consumer Protection.
0.18 Bureau of Economics.
0.19 The Regional Offices.
Authority: Sec. 6(g), 38 Stat. 721 (15 U.S.C. 46); 80 Stat. 383,
as amended (5 U.S.C. 552).
Source: 41 FR 54483, Dec. 14, 1976, unless otherwise noted.
16 CFR 0.1 The Commission.
The Federal Trade Commission is an independent administrative agency
which was organized in 1915 pursuant to the Federal Trade Commission Act
of 1914 (38 Stat. 717, as amended; 15 U.S.C. 41-58). It is responsible
for the administration of a variety of statutes which, in general, are
designed to promote competition and to protect the public from unfair
and deceptive acts and practices in the advertising and marketing of
goods and services. It is composed of five members appointed by the
President and confirmed by the Senate for terms of seven years.
16 CFR 0.2 Official address.
The principal office of the Commission is at Washington, D.C. All
communications to the Commission should be addressed to the Federal
Trade Commission, Pennsylvania Avenue and Sixth Street, NW., Washington,
DC 20580, unless otherwise specifically directed.
16 CFR 0.3 Hours.
Principal and field offices are open on each business day from 8:30
a.m. to 5 p.m.
16 CFR 0.4 Laws administered.
The Commission exercises enforcement and administrative authority
under the Federal Trade Commission Act (38 Stat. 717, as amended (15
U.S.C. 41-58)), the Clayton Act (38 Stat 730, as amended (15 U.S.C.
12-27)), the Export Trade Act (40 Stat. 516, as amended (15 U.S.C.
61-65)), the Packers and Stockyards Act (42 Stat. 159, as amended (7
U.S.C. 181-229)), the Wool Products Labeling Act (54 Stat. 1128, as
amended (15 U.S.C. 68-68j)), the Trade Mark Act (60 Stat. 427, as
amended (15 U.S.C. 1051-72)), The Fur Products Labeling Act (65 Stat.
175, as amended (15 U.S.C. 69-69j)), the Textile Fiber Products
Identification Act (72 Stat. 1717, as amended (15 U.S.C. 70-70k)), the
Federal Cigarette Labeling and Advertising Act (79 Stat. 282, as amended
(15 U.S.C. 1331-39)), the Fair Packaging and Labeling Act (80 Stat.
1296, as amended (15 U.S.C. 1451-61)), the Truth in Lending Act (82
Stat. 146, as amended (15 U.S.C. 1601 et seq.)), the Fair Credit
Reporting Act (84 Stat. 1128 (15 U.S.C. 1681 et seq.)), the Fair Credit
Billing Act (88 Stat. 1511; (15 U.S.C. 1666)), the Equal Credit
Opportunity Act (88 Stat. 1521, as amended (15 U.S.C. 1691)), Hobby
Protection Act (87 Stat. 686 (15 U.S.C. 2101)), the Magnuson-Moss
Warranty -- Federal Trade Commission Improvement Act (88 Stat. 2183 (15
U.S.C. 2301-12, 45-58)), the Energy Policy and Conservation Act (89
Stat. 871 (42 U.S.C. 6291)), the Hart-Scott-Rodino Antitrust
Improvements Act of 1976 (90 Stat. 1383 (15 U.S.C. 1311)), and other
Federal statutes.
16 CFR 0.5 Laws authorizing monetary claims.
The Commission is authorized to entertain monetary claims against it
under two statutes. The Federal Tort Claims Act (28 U.S.C. 2671-2680)
provides that the United States shall be liable for injury or loss of
property or personal injury or death caused by the negligent or wrongful
acts or omissions of its employees acting within the scope of their
employment or office. The Military Personnel and Civilian Employees
Claims Act of 1964 (31 U.S.C. 3701, 3721) authorizes the Commission to
compensate employees' claims for damage to or loss of personal property
incident to their service. The Commission's claims officer for both
statutes is Teresa A. Hennessy, telephone (202) 523-3533.
(Sec. 6(g), 38 Stat. 721 (15 U.S.C. 46); 80 Stat. 383, as amended (5
U.S.C. 552))
(50 FR 16699, Apr. 29, 1985)
0.6 (Reserved)
16 CFR 0.7 Delegation of functions.
The Commission, under the authority provided by Reorganization Plan
No. 4 of 1961, may delegate, by published order or rule, certain of its
functions to a division of the Commission, an individual Commissioner,
an administrative law judge, or an employee or employee board.
16 CFR 0.8 The Chairman.
The Chairman of the Commission is designated by the President, and,
subject to the general policies of the Commission, is the executive and
administrative head of the agency. He presides at meetings of and
hearings before the Commission and participates with other Commissioners
in all Commission decisions. Attached to the Office of the Chairman,
and reporting directly to him, and through him to the Commission, are
the following staff units: (a) The Office of Public Affairs, which
furnishes information concerning Commission activities to news media and
the public; and (b) the Office of Congressional Relations, which
coordinates all liaison activities with Congress.
(50 FR 53303, Dec. 31, 1985)
16 CFR 0.9 Organization structure.
The Federal Trade Commission comprises the following principal units:
Office of the Executive Director, Office of the General Counsel, Office
of the Secretary, Office of Administrative Law Judges, Bureau of
Competition, Bureau of Consumer Protection, Bureau of Economics, The
Regional Offices.
(54 FR 19885, May 9, 1989)
16 CFR 0.10 Office of the Executive Director.
(a) The Executive Director, under the direction of the Chairman, is
the chief operating official. He exercises executive and administrative
supervision over all the offices, bureaus, and staff of the Commission
and resolves problems concerning priorities in case handling.
Immediately under his direction are the Deputy Executive Directors for
Management and Planning and Information.
(b) The Deputy Executive Director for Management functions as staff
advisor to the Executive Director in all aspects of administrative
management; provides administrative policy guidance to agency
management and provides general supervision to the programs of
procurement and contracts, personnel, budget and finance, and
administrative service activities; and initiates and develops
long-range plans to assure that the Commission acquires and effectively
utilizes the manpower, financial resources, physical facilities and
management tools necessary to accomplish its mission.
(c) The Deputy Executive Director for Planning and Information
provides general supervision to the programs of data processing and
information systems, information analysis, and the library; responds to
initial requests for Commission records under the Freedom of Information
and Privacy Acts; maintains a current index of opinions, orders,
statements of policy and interpretations, staff manuals and instructions
that affect any member of the public, and other public records of the
Commission; makes available for inspection and copying all public
records of the Commission; coordinates the Commission's information
processing systems; and is responsible for the publication of all
Commission actions which must appear in the Federal Register and for the
publication of Federal Trade Commission Decisions and Court Decisions --
Federal Trade Commission.
(48 FR 4280, Jan. 31, 1983, as amended at 50 FR 53303, Dec. 31, 1985)
16 CFR 0.11 Office of the General Counsel.
The General Counsel is the Commission's chief law officer and
adviser, who renders necessary legal services to the Commission,
represents the Commission in the Federal and State Courts, advises the
Commission with respect to questions of law and policy, including advice
with respect to legislative matters, cooperates with and assists State
and local officials in the efforts to eliminate local and national trade
restraints.
(41 FR 54483, Dec. 14, 1976, as amended at 50 FR 53303, Dec. 31,
1985)
16 CFR 0.12 Office of the Secretary.
The Secretary is responsible for the minutes of Commission meetings
and is the legal custodian of the Commission's seal, property, papers,
and records, including legal and public records. The Secretary, or in
his absence an Acting Secretary designated by the Commission, signs
Commission orders and official correspondence.
(48 FR 4280, Jan. 31, 1983)
0.13 (Reserved)
16 CFR 0.14 Office of Administrative Law Judges.
Administrative law judges are officials to whom the Commission, in
accordance with law, delegates the initial performance of its
adjudicative fact-finding functions to be exercised in conformity with
Commission decisions and policy directives and with its rules of
practice. The administrative law judges also serve as presiding
officers assigned to conduct rulemaking proceedings under Section
18(a)(1)(B) of the Federal Trade Commission Act as amended and other
rulemaking proceedings as directed. The Chief Administrative Law Judge
also serves as the Chief Presiding Officer. Administrative law judges
are appointed under the authority and subject to the prior approval of
the Office of Personnel Management.
(54 FR 19885, May 9, 1989)
0.15 (Reserved)
16 CFR 0.16 Bureau of Competition.
The bureau is responsible for enforcing Federal antitrust and trade
regulation laws under section 5 of the Federal Trade Commission Act, the
Clayton Act, and a number of other special statutes which the Commission
is charged with enforcing. The bureau work aims to preserve the free
market system and assure the unfettered operation of the forces of
supply and demand. Its activities seek to ensure price competition,
quality products and services and efficient operation of the national
economy. The bureau carries out its responsibilities by investigating
alleged law violations, and recommending to the Commission such further
action as may be appropriate. Such action may include injunctive relief
in Federal District Court, complaint and litigation before the agency's
administrative law judges, formal nonadjudicative settlement of
complaints, trade regulation rules, or reports. The bureau also
conducts compliance investigations and initiates proceedings for civil
penalties to assure compliance with final Commission orders dealing with
competition and trade restraint matters.
(41 FR 54483, Dec. 14, 1976. Redesignated at 45 FR 36341, May 29,
1980; 50 FR 53303, Dec. 31, 1985)
16 CFR 0.17 Bureau of Consumer Protection.
The Bureau investigates unfair or deceptive acts or practices under
section 5 of the Federal Trade Commission Act as well as potential
violations of numerous special statutes which the Commission is charged
with enforcing. It prosecutes before the agency's administrative law
judges alleged violations of law after issuance of a complaint by the
Commission or obtains through negotiation consented-to orders, which
must be accepted and issued by the Commission. The bureau participates
in trade regulation rulemaking proceedings under section 18(a)(1)(B) of
the Federal Trade Commission Act and other rulemaking proceedings under
other statutory authority. It investigates compliance with final orders
and trade regulation rules and seeks civil penalties or consumer redress
for their violation. In addition, the bureau seeks to educate both
consumers and the business community about the laws it enforces.
(46 FR 26287, May 12, 1981)
16 CFR 0.18 Bureau of Economics.
The bureau aids and advises the Commission concerning the economic
aspects of all of its functions, and is responsible for the preparation
of various economic reports and surveys. The bureau provides economic
and statistical assistance to the enforcement bureaus in the
investigation and trial of cases.
(41 FR 54483, Dec. 14, 1976. Redesignated at 45 FR 36341, May 29,
1980; 50 FR 53303, Dec. 31, 1985)
16 CFR 0.19 The Regional Offices.
(a) These offices are investigatory arms of the Commission, and, with
respect to matters of a regional nature, have responsibility for
investigational, trial, compliance, and consumer educational activities
as delegated by the Commission. Each regional office has general
responsibility for its own activities and for the smaller offices,
designated as field stations, located in its area of responsibility.
They are under the general supervision of the Office of the Executive
Director, and clear their activities through the appropriate operating
bureaus.
(b) The addresses of the respective regional offices, and of the
field stations located in the area of each are as follows:
(1) Atlanta Regional Office. Federal Trade Commission, Room 1000,
1718 Peachtree Street, NW., Atlanta, GA 30309.
(2) Boston Regional Office. Federal Trade Commission, Room 1301, 150
Causeway Street, Boston, MA 02114.
(3) Chicago Regional Office. Federal Trade Commission, Suite 1437,
55 East Monroe Street, Chicago, IL 60603.
(4) Cleveland Regional Office. Federal Trade Commission, Suite 500,
Mall Building, 118 Saint Clair Avenue N.E., Cleveland, OH 44114.
(5) Dallas Regional Office. Federal Trade Commission, 8303 Elmbrook
Drive, Dallas, TX 75247.
(6) Denver Regional Office. Federal Trade Commission, Suite 2900,
1405 Curtis Street, Denver, CO 80202.
(7) Los Angeles Regional Office. Federal Trade Commission, Room
13209, Federal Building, 11000 Wilshire Boulevard, Los Angeles, CA
90024.
(8) New York Regional Office. Federal Trade Commission, 2243-EB,
Federal Building, 26 Federal Plaza, New York, NY 10278.
(9) San Francisco Regional Office. Federal Trade Commission, 450
Golden Gate Avenue, Box 36005, San Francisco, CA 94102. Field Station:
Federal Trade Commission, Room 6324, 300 Ala Moana, Honolulu, HI 96850.
(10) Seattle Regional Office. Federal Trade Commission, 28th Floor,
Federal Building, 915 Second Avenue, Seattle, WA 98174.
(c) Each of the regional offices is supervised by a Regional
Director, who is available for conferences with attorneys, consumers,
and other members of the public on matters relating to the Commission's
activities.
(41 FR 54483, Dec. 14, 1976, as amended at 42 FR 27218, May 27, 1977;
43 FR 754, Jan. 4, 1978; 43 FR 6579, Feb. 15, 1978. Redesignated at
45 FR 36341, May 29, 1980; 50 FR 53303, Dec. 31, 1985)
16 CFR 0.19 PART 1 -- GENERAL PROCEDURES
16 CFR 0.19 Subpart A -- Industry Guidance
Sec.
1.1 Policy.
1.2 Procedure.
1.3 Advice.
1.4 Public disclosure.
1.5 Purpose.
1.6 How promulgated.
16 CFR 0.19 Subpart B -- Rules and Rulemaking Under Section 18(a)(1)(B)
of the FTC Act
1.7 Scope of rules in this subpart.
1.8 Nature, authority and use of trade regulation rules.
1.9 Petitions to commence trade regulation rule proceedings.
1.10 Advance notice of proposed rulemaking.
1.11 Commencement of a rulemaking proceeding.
1.12 Final notice.
1.13 Rulemaking proceeding.
1.14 Promulgation.
1.15 Amendment or repeal of a rule.
1.16 Petition for exemption from trade regulation rule.
1.17 Compensation for representation in rulemaking proceedings.
1.18 Rulemaking record.
1.19 Modification of a rule by the Commission at the time of judicial
review.
1.20 Alternative procedures.
16 CFR 0.19 Subpart C -- Rules Promulgated Under Authority Other Than
Section 18(a)(1)(B) of the FTC Act
1.21 Scope of the rules in this subpart.
1.22 Rulemaking.
1.23 Quantity limit rules.
1.24 Rules applicable to wool, fur, and textile fiber products and
rules promulgated under the Fair Packaging and Labeling Act.
1.25 Initiation of proceedings -- petitions.
1.26 Procedure.
16 CFR 0.19 Subpart D -- Administration of the Wool Products Labeling
Act of 1939, Fur Products Labeling Act, and Textile Fiber Products
Identification Act
1.31 Administration.
1.32 Registered identification numbers.
1.33 Continuing guaranties.
1.34 Inspections and counseling.
16 CFR 0.19 Subpart E -- Export Trade Associations
1.41 Limited antitrust exemption.
1.42 Notice to Commission.
1.43 Recommendations.
16 CFR 0.19 Subpart F -- Trademark Cancellation Procedure
1.51 Applications.
16 CFR 0.19 Subpart G -- Injunctive and Condemnation Proceedings
1.61 Injunctions.
1.62 Ancillary court orders pending review.
1.63 Injunctions: Wool, fur, and textile cases.
1.64 Condemnation proceedings.
16 CFR 0.19 Subpart H -- Administration of the Fair Credit Reporting
Act
1.71 Administration.
1.72 Examination, counciling and staff advice.
1.73 Interpretations.
16 CFR 0.19 Subpart I -- Procedures for Implementation of the National
Environmental Policy Act of 1969
1.81 Authority and incorporation of CEQ Regulations.
1.82 Declaration of policy.
1.83 Whether to commence the process for an environmental impact
statement.
1.84 Draft environmental impact statements: Availability and
comment.
1.85 Final environmental impact statements.
1.86 Supplemental statements.
1.87 NEPA and agency decisionmaking.
1.88 Implementation procedures.
1.89 Effect on prior actions.
16 CFR 0.19 Subpart J -- Economic Surveys, Investigations, and Reports
1.91 Authority and purpose.
16 CFR 0.19 Subpart K -- Penalties for Violation of Appliance Labeling
Rules
1.92 Scope.
1.93 Notice of proposed penalty.
1.94 Commission proceeding to assess civil penalty.
1.95 Procedures upon election.
1.96 Compromise of penalty.
1.97 Amount of penalty.
Authority: Sec. 6, 38 Stat. 721 (15 U.S.C. 46), unless otherwise
noted.
Source: 32 FR 8444, June 13, 1967, unless otherwise noted.
Note: On May 14, 1973, the responsibilities of the Federal Trade
Commission for enforcement of the Flammable Fabrics Act, as amended,
were transferred to the Consumer Product Safety Commission. The CPSC
Flammable Fabrics Act regulations are in 16 CFR chapter II, subchapter
D.
16 CFR 0.19 Subpart A -- Industry Guidance
16 CFR 0.19 Advisory Opinions
16 CFR 1.1 Policy.
(a) Any person, partnership, or corporation may request advice from
the Commission with respect to a course of action which the requesting
party proposes to pursue. The Commission will consider such requests
for advice and inform the requesting party of the Commission's views,
where practicable, under the following circumstances.
(1) The matter involves a substantial or novel question of fact or
law and there is no clear Commission or court precedent; or
(2) The subject matter of the request and consequent publication of
Commission advice is of significant public interest.
(b) The Commission has authorized its staff to consider all requests
for advice and to render advice, where practicable, in those
circumstances in which a Commission opinion would not be warranted.
Hypothetical questions will not be answered, and a request for advice
will ordinarily be considered inappropriate where: (1) The same or
substantially the same course of action is under investigation or is or
has been the subject of a current proceeding involving the Commission or
another governmental agency, or (2) an informed opinion cannot be made
or could be made only after extensive investigation, clinical study,
testing, or collateral inquiry.
(44 FR 21624, Apr. 11, 1979; 44 FR 23515, Apr. 20, 1979, as amended
at 54 FR 14072, Apr. 7, 1989)
16 CFR 1.2 Procedure.
(a) Application. The request for advice or interpretation should be
submitted in writing (one original and two copies) to the Secretary of
the Commission and should: (1) State clearly the question(s) that the
applicant wishes resolved; (2) cite the provision of law under which
the question arises; and (3) state all facts which the applicant
believes to be material. In addition, the identity of the companies and
other persons involved should be disclosed. Letters relating to unnamed
companies or persons may not be answered. Submittal of additional facts
may be requested prior to the rendering of any advice.
(b) Compliance matters. If the request is for advice as to whether
the proposed course of action may violate an outstanding order to cease
and desist issued by the Commission, such request will be considered as
provided for in 2.41 of this chapter.
(44 FR 21624, Apr. 11, 1979, as amended at 44 FR 40638, July 12,
1979)
16 CFR 1.3 Advice.
(a) On the basis of the materials submitted, as well as any other
information available, and if practicable, the Commission or its staff
will inform the requesting party of its views.
(b) Any advice given by the Commission is without prejudice to the
right of the Commission to reconsider the questions involved and, where
the public interest requires, to rescind or revoke the action. Notice
of such rescission or revocation will be given to the requesting party
so that he may discontinue the course of action taken pursuant to the
Commission's advice. The Commission will not proceed against the
requesting party with respect to any action taken in good faith reliance
upon the Commission's advice under this section, where all the relevant
facts were fully, completely, and accurately presented to the Commission
and where such action was promptly discontinued upon notification of
rescission or revocation of the Commission's approval.
(c) Advice rendered by the staff is without prejudice to the right of
the Commission later to rescind the advice and, where appropriate, to
commence an enforcement proceeding.
(44 FR 21624, Apr. 11, 1979)
16 CFR 1.4 Public disclosure.
Written advice rendered pursuant to this Section and requests
therefor, including names and details, will be placed in the
Commission's public record immediately after the requesting party has
received the advice, subject to any limitations on public disclosure
arising from statutory restrictions, the Commission's rules, and the
public interest. A request for confidential treatment of information
submitted in connection with the questions should be made separately.
(44 FR 21624, Apr. 11, 1979)
16 CFR 1.4 Industry Guides
16 CFR 1.5 Purpose.
Industry guides are administrative interpretations of laws
administered by the Commission for the guidance of the public in
conducting its affairs in conformity with legal requirements. They
provide the basis for voluntary and simultaneous abandonment of unlawful
practices by members of industry. Failure to comply with the guides may
result in corrective action by the Commission under applicable statutory
provisions. Guides may relate to a practice common to many industries
or to specific practices of a particular industry.
16 CFR 1.6 How promulgated.
Industry guides1001 are promulgated by the Commission on its own
initiative or pursuant to petition filed with the Secretary or upon
informal application therefor, by any interested person or group, when
it appears to the Commission that guidance as to the legal requirements
applicable to particular practices would be beneficial in the public
interest and would serve to bring about more widespread and equitable
observance of laws administered by the Commission. In connection with
the promulgation of industry guides, the Commission at any time may
conduct such investigations, make such studies, and hold such
conferences or hearings as it may deem appropriate. All or any part of
any such investigation, study, conference, or hearing may be conducted
under the provisions of subpart A of part 2 of this chapter.
0011In the past, certain of these have been promulgated and referred
to as trade practice rules.
16 CFR 1.6 Subpart B -- Rules and Rulemaking Under Section 18(a)(1)(B)
of the FTC Act
Authority: Sec. 6, 38 Stat. 721 (15 U.S.C. 46); sec. 18(a)(1)(B),
88 Stat. 2193 (15 U.S.C. 57a); sec. 552, 80 Stat. 378 (5 U.S.C. 552).
Source: 46 FR 26288, May 12, 1981, unless otherwise noted.
16 CFR 1.7 Scope of rules in this subpart.
The rules in this subpart apply to and govern proceedings for the
promulgation of rules as provided in section 18(a)(1)(B) of the Federal
Trade Commission Act. Such rules shall be known as trade regulation
rules. All other rulemaking proceedings shall be governed by the rules
in subpart C, except as otherwise required by law or as otherwise
specified in this chapter.
(46 FR 26288, May, 12, 1981, as amended at 50 FR 53303, Dec. 31,
1985)
16 CFR 1.8 Nature, authority and use of trade regulation rules.
(a) For the purpose of carrying out the provisions of the Federal
Trade Commission Act, the Commission is empowered to promulgate trade
regulation rules which define with specificity acts or practices which
are unfair or deceptive acts or practices in or affecting commerce.
Such rules may include requirements prescribed for the purpose of
preventing such acts or practices. A violation of a rule shall
constitute an unfair or deceptive act or practice in violation of
section 5(a)(1) of that Act, unless the Commission otherwise expressly
provides in its rule. However, the respondent in an adjudicative
proceeding may show that his conduct does not violate the rule or assert
any other defense to which he is legally entitled.
(b) The Commission at any time may conduct such investigations, make
such studies and hold such conferences as it may deem necessary. All or
any part of any such investigation may be conducted under the provisions
of subpart A of part 2 of this chapter.
16 CFR 1.9 Petitions to commence trade regulation rule proceedings.
Trade regulation rule proceedings may be commenced by the Commission
upon its own initiative or pursuant to written petition filed with the
Secretary by any interested person stating reasonable grounds therefor.
If the Commission determines to commence a trade regulation rule
proceeding pursuant to the petition, the petitioner shall be mailed a
copy of the public notices issued under 1.10, 1.11 and 1.12. Any
person whose petition is not deemed by the Commission sufficient to
warrant commencement of a rulemaking proceeding shall be notified of
that determination and may be given an opportunity to submit additional
data.
(46 FR 26288, May, 12, 1981, as amended at 50 FR 53303, Dec. 31,
1985)
16 CFR 1.10 Advance notice of proposed rulemaking.
(a) Prior to the commencement of any trade regulation rule
proceeding, the Commission shall publish in the Federal Register an
advance notice of such proposed proceeding.
(b) The advance notice shall: (1) Contain a brief description of the
area of inquiry under consideration, the objectives which the Commission
seeks to achieve, and possible regulatory alternatives under
consideration by the Commission; and (2) invite the response of
interested persons with respect to such proposed rulemaking, including
any suggestions or alternative methods for achieving such objectives.
(c) The advance notice shall be submitted to the Committee on
Commerce, Science, and Transportation of the Senate and to the Committee
on Interstate and Foreign Commerce of the House of Representatives.
(d) The Commission may, in addition to publication of the advance
notice, use such additional mechanisms as it considers useful to obtain
suggestions regarding the content of the area of inquiry before
publication of an initial notice of proposed rulemaking pursuant to
1.11.
(46 FR 26288, May, 12, 1981, as amended at 50 FR 53303, Dec. 31,
1985)
16 CFR 1.11 Commencement of a rulemaking proceeding.
(a) Initial notice. A trade regulation rule proceeding shall
commence with an initial notice of proposed rulemaking. Such notice
shall be published in the Federal Register not sooner than 30 days after
it has been submitted to the Committee on Commerce, Science, and
Transportation of the Senate and to the Committee on Interstate and
Foreign Commerce of the House of Representatives. The initial notice
shall include:
(1) The text of the proposed rule including any alternatives which
the Commission proposes to promulgate; (2) reference to the legal
authority under which the rule is proposed; (3) a statement describing
with particularity the reason for the proposed rule; (4) an invitation
to all interested persons to propose issues which meet the criteria of
1.13(d)(1)(i) for consideration in accordance with 1.13(d)(5) and
(d)(6); (5) an invitation to all interested persons to comment on the
proposed rule; and (6) a statement of the manner in which the public
may obtain copies of the preliminary regulatory analysis.
(b) Preliminary regulatory analysis. Except as otherwise provided by
statute, the Commission shall, when commencing a rulemaking proceeding,
issue a preliminary regulatory analysis which shall contain:
(1) A concise statement of the need for, and the objectives of, the
proposed rule;
(2) A description of any reasonable alternatives to the proposed rule
which may accomplish the stated objective of the rule in a manner
consistent with applicable law;
(3) For the proposed rule, and for each of the alternatives described
in the analysis, a preliminary analysis of the projected benefits and
any adverse economic effects and any other effects, and of the
effectiveness of the proposed rule and each alternative in meeting the
stated objectives of the proposed rule; and
(4) The information required by the Regulatory Flexibility Act at 5
U.S.C. 603.
(46 FR 26288, May, 12, 1981, as amended at 50 FR 53303, Dec. 31,
1985)
16 CFR 1.12 Final notice.
A final notice of proposed rulemaking shall be published in the
Federal Register and, to the extent practicable, otherwise made
available to interested persons. The final notice shall include: (a)
Designated issues, unless there are none, which are to be considered in
accordance with 1.13(d)(5) and (d)(6); (b) the time and place of an
informal hearing; (c) instructions to interested persons seeking to
make oral presentations; (d) a requirement that interested persons who
desire to avail themselves of the procedures of 1.13(d)(5) and (d)(6)
with respect to any issue designated in paragraph (a) of this section
must identify their interests with respect to those issues in such
manner as may be established by the presiding officer; and (e) an
incorporation by reference of the contents of the initial notice.
(40 FR 33966, Aug. 13, 1975, as amended at 50 FR 53303, Dec. 31,
1985)
16 CFR 1.13 Rulemaking proceeding.
(a) Written comments. After commencement of a trade regulation rule
proceeding, the Commission shall accept written submissions of data,
views, and arguments on all issues of fact, law, and policy. The
initial notice shall specify the deadline for filing written comments
under this subsection.
(b) Comments proposing issues subject to the procedures of
1.13(d)(5) and (d)(6). Interested persons may propose issues for
consideration in accordance with 1.13(d)(5) and (d)(6) until thirty
(30) days after the close of the written comment period or such other
period as the Commission may establish in the initial notice.
(c) Presiding officer -- (1) Assignment. Upon commencement of a
proposed trade regulation rule proceeding, a presiding officer shall be
appointed by the Chief Presiding Officer or, when the Commission or one
or more of its members serves as presiding officer, by the Commission.
(2) Powers of the presiding officer. The presiding officer shall be
responsible for the orderly conduct of the rulemaking proceeding and the
maintenance of the rulemaking and public records until the close of the
postrecord comment period. He shall have all powers necessary to that
end including the following: (i) To publish a final notice in
accordance with 1.12 or issue any other public notice that may be
necessary for the orderly conduct of the rulemaking proceeding; (ii) to
designate or modify, issues for consideration in accordance with
1.13(d)(5) and (d)(6); (iii) to set the time and place of the informal
hearing and to change any time periods prescribed in this subpart; (iv)
to prescribe rules or issue rulings to avoid unnecessary costs or delay.
Such rules or rulings may include, but are not limited to, the
imposition of reasonable time limits on each person's oral presentation;
and requirements that any examination; including cross-examination,
which a person may be entitled to conduct or have conducted be conducted
by the presiding officer on behalf of that person in such a manner as
the presiding officer determines to be appropriate and to be required
for a full and true disclosure with respect to any issue designated for
consideration in accordance with 1.13 (d)(5) and (d)(6); (v) to make
rules and rulings limiting the representation of interested persons for
the purpose of examination, including cross-examination, and governing
the manner in which such examination is limited, including the selection
of a representative from among a group of persons with the same or
similar interests; (vi) to require that oral presentations at the
informal hearing or responses to written questions be under oath; (vii)
to require that oral presentations at the informal hearing be submitted
in writing in advance of presentation; (viii) to certify questions to
the Commission for its determination; and (ix) to rule upon all motions
or petitions of interested persons, which motions or petitions must be
filed with the presiding officer until the close of the postrecord
comment period.
(3) Review of rulings by the presiding officer -- (i) Review after
certification by the presiding officer. Except as otherwise provided in
paragraph (c)(3)(ii) of this section, applications for review of a
ruling will not be entertained by the Commission prior to its review of
the record pursuant to 1.14, unless the presiding officer certifies in
writing to the Commission that a ruling involves a controlling question
of law or policy as to which there is substantial ground for difference
of opinion and that an immediate review of the ruling may materially
advance the ultimate termination of the proceeding or subsequent review
will be an inadequate remedy. Within five (5) days after a ruling by
the presiding officer, any interested person may petition the presiding
officer for certification of that ruling to the Commission.
Certification of a ruling shall not stay the rulemaking proceeding
unless the presiding officer or the Commission shall so order.
Submissions to the Commission not to exceed fifteen (15) pages may be
made within ten (10) days of the presiding officer's certification. All
such filings shall be a part of the rulemaking record. The Commission
may thereupon, in its discretion, permit the appeal. Commission review,
if permitted, will be based on the application for review and any
additional submissions, without oral argument or further briefs, unless
otherwise ordered by the Commission.
(ii) Review without certification by the presiding officer. Within
ten (10) days after publication of the final notice, any interested
person may petition the Commission for addition, modification or
deletion of a designated issue, accompanied by a filing not to exceed
fifteen (15) pages. Additional submissions on the issue by other
interested persons, not to exceed fifteen (15) pages, may be made within
twenty (20) days of the publication of the final notice. The Commission
may thereupon, in its discretion, permit the appeal. Commission review,
if permitted, will be based on the petition and any additional
submissions, without oral argument or further briefs, unless otherwise
ordered by the Commission. A petition hereunder shall not stay the
rulemaking proceeding unless the presiding officer or the Commission
shall so order. All petitions filed under this paragraph shall be a
part of the rulemaking record. Notice of the filing of any such
petition may be obtained from the Office of the Secretary of the
Commission. In the event any designated issue is added or substantially
modified by the Commission, interested persons shall be given a further
opportunity to identify their interests with respect to those issues.
(4) Substitution of presiding officer. In the event of the
substitution of a new presiding officer for the one originally
appointed, any motion predicated upon such substitution shall be made
within five (5) days thereafter.
(5) Organization. In the performance of their rulemaking functions,
presiding officers shall be responsible to the chief presiding officer
who shall not be responsible to any other officer or employee of the
Commission.
(6) Ex parte communications. Except as required for the disposition
of ex parte matters as authorized by law, no presiding officer shall
consult any person or party with respect to any fact in issue unless
such officer gives notice and opportunity for all parties to
participate.
(d) Informal hearings. An informal hearing with the opportunity for
oral presentations on all issues shall be conducted by the presiding
officer. In addition, if an issue is designated pursuant to these rules
for consideration in accordance with 1.13(d) (5) and (6), the informal
hearing on such issues shall be conducted in accordance with those
paragraphs. For all other issues the presiding officer may in his
discretion employ, in whole or in part, the procedures of those
paragraphs.
(1) Nature of issues for consideration in accordance with 1.13
(d)(5) and (d)(6) -- (i) Issues that must be considered in accordance
with 1.13(d)(5) and (d)(6). The only issues that must be designated
for consideration in accordance with paragraphs (d)(5) and (d)(6) of
this section are disputed issues of fact that are determined by the
Commission or the presiding officer to be material and necessary to
resolve.
(ii) Issues that may be considered in accordance with 1.13(d)(5) and
(d)((6). The Commission and the presiding officer retain the power to
designate any other issues for consideration in accordance with
paragraphs (d)(5) and (d)(6) of this section.
(2) Addition or Modification of issues for consideration in
accordance with 1.13(d)(5) and (d)(6). The presiding officer may at
any time on his own motion or pursuant to a written petition by
interested persons, add or modify any issues designated pursuant to
1.12(a). No such petition shall be considered unless good cause is shown
why any such proposed issue was not proposed pursuant to 1.13(b).
(3) Identification of interests. Not later than twenty (20) days
after publication of the final notice each interested person who desires
to avail himself of the procedures of paragraphs (d)(5) and (d)(6) of
this section shall notify the presiding officer in writing of his
particular interest with respect to each issue designated for
consideration in accordance with those subsections. In the event that
new issues are designated, each interested person shall promptly notify
the presiding officer of his particular interest with respect to each
such issue.
(4) Examination and cross-examination by the presiding officer. The
presiding officer may conduct any examination, including
cross-examination, to which a person may be entitled. For that purpose
he may require submission of written requests for presentation of
questions to any person making oral presentations and shall determine
whether to ask such questions or any other questions. All requests for
presentation of questions shall be placed in the rulemaking record.
(5) Examination, cross-examination, and the presentation of rebuttal
submissions by interested persons -- (i) In general. The presiding
officer shall conduct or allow to be conducted examination, including
cross-examination of oral presentations and the presentation of rebuttal
submissions relevant to the issues designated for consideration in
accordance with paragraphs (d)(5) and (d)(6) of this section.
Examination, including, cross-examination, and the presentation of
rebuttal submissions, shall be allowed to the extent to which it is
appropriate and is required for a full and true disclosure with respect
to those issues. Requests for an opportunity to examine, including
cross-examine, or to present rebuttal submissions, shall be accompanied
by a specific justification therefor. In determining whether or not to
grant such requests, the presence of the following circumstances
indicate that such requests should be granted:
(A) An issue for examination including cross-examination, or the
presentation of rebuttal submissions, is an issue of specific in
contrast to legislative fact.
(B) A full and true disclosure with respect to the issue can only be
achieved through examination including cross-examination rather than
through rebuttal submissions or the presentation of additional oral
submissions.
(C) Circumstantial guarantees of the trustworthiness of a
presentation do not exist.
(D) The particular presentation is required for the resolution of a
designated issue.
(ii) Selection of representatives for cross-examination. After
consideration of the information supplied in response to the final
notice, the presiding officer shall identify groups of persons with the
same or similar interests in the proceeding. Any such group may be
required to select a single representative for the purpose of
examination, including cross-examination. If a group is unable to
select a representative then the presiding officer may select a
representative of each such group.
(iii) Inability to select representative for examination, including
cross-examination. No person shall be denied the opportunity to conduct
or have conducted, examination, including cross-examination, under
paragraph (d)(5)(i) of this section if he is a member of a group as
described in paragraph (d)(5) (ii) of this section and is unable to
agree upon group representation with other group members after a good
faith effort to do so and seeks to present substantial and relevant
issues which will not be adequately presented by the group
representative. In that event he shall be allowed to conduct or have
conducted any examination, including cross-examination, to which he is
entitled on issues designated for consideration in accordance with
paragraphs (d)(5) and (d)(6) of this section and which affect his
particular interest.
(6) Requests to compel the attendance of persons or the production of
documents or to obtain responses to written questions. During the
course of the rulemaking proceeding, the presiding officer shall
entertain requests from the Commission's staff or any interested person
to compel the attendance of persons or the production of documents or to
obtain responses to written questions. Requests to compel the
attendance of persons or the production of documents or to obtain
responses to written questions shall contain a statement showing the
general relevancy of the material, information or presentation, and the
reasonableness of the scope of the request, together with a showing that
such material, information or presentation is not available by voluntary
methods and cannot be obtained through examination, including
cross-examination, of oral presentations or the presentation of rebuttal
submissions, and is appropriate and required for a full and true
disclosure with respect to the issues designated for consideration in
accordance with paragraphs (d)(5) and (d)(6) of this section. If the
presiding officer determines that a request should be granted, he shall
transmit his determination to the Commission which shall determine
whether to issue a civil investigative demand under 2.7(b). Information
received in response to such a demand may be disclosed in the rulemaking
proceeding subject to an in camera order under 1.18(b).
(e) Written transcript. A verbatim transcript shall be made of the
informal hearing which transcript shall be placed in the rulemaking
record.
(f) Staff recommendations. The staff shall make recommendations to
the Commission in a report on the rulemaking record. Such report shall
contain its analysis of the record and its recommendations as to the
form of the final rule.
(g) Recommended decision. After publication of the staff report, the
presiding officer shall make a recommended decision based upon his or
her findings and conclusions as to all relevant and material evidence,
and taking into account the staff report. The recommended decision
shall be made by the presiding officer who presided over the rulemaking
proceeding except that such recommended decision may be made by another
officer if the officer who presided over the proceeding is no longer
available to the Commission.
(h) Postrecord comment. The staff report and the presiding officer's
recommended decision shall be the subject of public comment for a period
to be prescribed by the presiding officer at the time the recommended
decision is placed in the rulemaking record. The comment period shall
be no less than sixty (60) days. The comments shall be confined to
information already in the record and may include requests for review by
the Commission of determinations made by the presiding officer.
(i) Commission review of the rulemaking record. The Commission shall
review the rulemaking record to determine what form of rule, if any, it
should promulgate. During this review process, the Commission may allow
persons who have previously participated in the proceeding to make oral
presentations to the Commission, unless it determines with respect to
that proceeding that such presentations would not significantly assist
it in its deliberations. Presentations shall be confined to information
already in the rulemaking record. Requests to participate in an oral
presentation must be received by the Commission no later than the close
of the comment period under 1.13(h). The identity of the participants
and the format of such presentations will be announced in advance by the
Office of Public Information in the Commisison's Weekly Calendar and
Notice of ''Sunshine'' Meetings and in accordance with the applicable
provisions of 5 U.S.C. 552(b) and 4.15 of the Commission's Rules of
Practice. Such presentations will be transcribed verbatim or summarized
at the discretion of the Commission and a copy of the transcript or
summary and copies of any written communications and summaries of any
oral communications relating to such presentations shall be placed on
the rulemaking record.
(40 FR 33966, Aug. 13, 1975, as amended at 43 FR 39084, Sept. 1,
1978; 45 36341, May 29, 1980; 45 FR 78628, Nov. 26, 1980; 46 FR
14888, Mar. 3, 1981; 46 FR 26288, May 12, 1981; 50 FR 53303, Dec. 31,
1985; 54 FR 19886, May 9, 1989)
16 CFR 1.14 Promulgation.
(a) The Commission, after review of the rulemaking record, may issue,
modify, or decline to issue any rule. Where it believes that it should
have further information or additional views of interested persons, it
may withhold final action pending the receipt of such additional
information or views. If it determines not to issue a rule, it may
adopt and publish an explanation for not doing so.
(1) Statement of Basis and Purpose. If the Commission determines to
promulgate a rule, it shall adopt a Statement of Basis and Purpose to
accompany the rule which shall include: (i) A statement as to the
prevalence of the acts or practices treated by the rule; (ii) a
statement as to the manner and context in which such acts or practices
are unfair or deceptive; (iii) a statement as to the economic effect of
the rule, taking into account the effect on small businesses and
consumers; (iv) a statement as to the effect of the rule on state and
local laws; and (v) a statement of the manner in which the public may
obtain copies of the final regulatory analysis.
(2) Final Regulatory Analysis. Except as otherwise provided by
statute, if the Commission determines to promulgate a final rule, it
shall issue a final regulatory analysis relating to the final rule.
Each final regulatory analysis shall contain:
(i) A concise statement of the need for, and the objectives of, the
final rule;
(ii) A description of any alternatives to the final rule which were
considered by the Commission;
(iii) An analysis of the projected benefits and any adverse economic
effects and any other effects of the final rule;
(iv) An explanation of the reasons for the determination of the
Commission that the final rule will attain its objectives in a manner
consistent with applicable law and the reasons the particular
alternative was chosen;
(v) A summary of any significant issues raised by the comments
submitted during the public comment period in response to the
preliminary regulatory analysis, and a summary of the assessment by the
Commission of such issues; and
(vi) The information required by the Regulatory Flexibility Act at 5
U.S.C. 604.
(b) In the event the Commission determines, upon its review of the
rulemaking record, to propose a revised rule for further proceedings in
accordance with this subpart, such proceedings, including the
opportunity of interested persons to avail themselves of the procedures
of 1.13 (d)(5) and (d)(6), shall be limited to those portions of the
revised rule, the subjects and issues of which were not substantially
the subject of comment in response to a previous notice of proposed
rulemaking.
(c) The final rule and Statement of Basis and Purpose shall be
published in the Federal Register. A rule issued under this subpart
shall be deemed promulgated at 3:00 PM Eastern Standard Time on the
fourth day after the date on which the final rule and Statement of Basis
and Purpose are published in the Federal Register. In the event such
day is a Saturday, Sunday or national holiday, then the rule is deemed
promulgated at 3:00 PM Eastern Standard Time on the following business
day.
(40 FR 33966, Aug. 13, 1975, as amended at 46 FR 26289, May 12, 1981;
50 FR 53304, Dec. 31, 1985)
16 CFR 1.15 Amendment or repeal of a rule.
(a) Substantive amendment or repeal of a rule. The procedures for
substantive amendment to or repeal of a rule are the same as for the
issuance thereof.
(b) Nonsubstantive amendment of a rule. The Commission may make a
nonsubstantive amendment to a rule by announcing the amendment in the
Federal Register.
(46 FR 26289, May 12, 1981)
16 CFR 1.16 Petition for exemption from trade regulation rule.
Any person to whom a rule would otherwise apply may petition the
Commission for an exemption from such rule. The procedures for
determining such a petition shall be those of subpart C of these rules.
(40 FR 33966, Aug. 13, 1975)
16 CFR 1.17 Compensation for representation in rulemaking proceedings.
(a) Purpose of compensation. The Commission may provide compensation
for reasonable attorneys fees, expert witness fees and other costs of
participation, including costs necessary for the preparation of oral or
written presentations, to any person who has or represents an interest
which would not otherwise be adequately represented in a rulemaking
proceeding, and representation of which is necessary for a fair
determination of the rulemaking proceeding taken as a whole, and who is
unable effectively to participate in such proceeding because such person
cannot afford to pay costs of making oral presentations, conducting
cross-examination, and making rebuttal submissions in such proceeding.
(b) Level of funding. At or after the time of the initial notice of
proposed rulemaking, the Commission may announce a tentative total level
of funding for compensation for participation in that proceeding.
(c) Applications. An application for compensation for participation
in a rulemaking proceeding may be filed at any time after the
publication of the initial notice of proposed rulemaking. An
application for compensation shall be filed prior to the time when the
costs for which compensation is sought are incurred. Such application
shall contain the following:
(1) A description of the interest the applicant has or represents in
the rulemaking proceeding;
(2) A statement of the reasons representation of such interest is
necessary for a fair determination of the proceeding taken as a whole;
(3) Insofar as possible, the reasons why such interest would not
otherwise be adequately represented in the proceeding;
(4) A statement of the reasons the applicant is unable effectively to
participate in the rulemaking proceeding without financial assistance
including information relating to:
(i) The economic stake of the interest involved as compared with the
costs of participation;
(ii) The feasibility of contributions to the costs of participation
by individual representatives of the interest;
(iii) The resources of the applicant, or of the interest represented
by the applicant;
(5) Insofar as possible, a specific statement of the expenses to be
incurred for which compensation is sought, including an estimate of the
total anticipated expenses; and
(6) A statement of the applicant's organizational and financial
status in such form as the Commission may prescribe.
(d) Determination of applications -- (1) By the presiding officer.
The presiding officer shall consider applications for compensation filed
under this section and forward initial findings to the General Counsel
as to whether the applicant meets the criteria of paragraph (a) of this
section. In determining whether the representation of an interest is
necessary for a fair determination of the proceeding taken as a whole,
the presiding officer shall consider, among other factors, the number
and complexity of the issues involved and the importance of a fair,
balanced representation of all interests. In determining whether an
applicant can afford to pay the costs of participation, the presiding
officer shall consider, among other factors, the size of the economic
stake of the interest involved as compared with costs of participation;
the resources of the applicant; and the feasibility of obtaining
contributions from other parties who share the applicant's interest. In
connection with his determination the presiding officer may conduct such
inquiry of the applicant or require the production of such documents as
he deems necessary.
(2) By the General Counsel. The General Counsel shall review
applications and the initial findings of the presiding officer and
determine, in his discretion, to what extent compensation shall be
authorized under this section.
(e) Payment of compensation -- (1) In general. The Commission will
compensate the applicant only for those authorized expenses actually
incurred. Appropriate proof of actual expenditures may be required by
the Commission. The Commission may make any payments under this section
in advance where necessary to permit effective participation in the
rulemaking proceeding. Payment will be conditioned upon the execution
by the applicant of an appropriate agreement setting forth the terms and
conditions of the compensation.
(2) Effective until the end of fiscal year 1982, the amount of
compensation which may be paid to any applicant approved for
reimbursement of participation costs may not exceed $75,000 per
rulemaking proceeding; the aggregate amount of compensation paid in any
fiscal year for all rulemaking proceedings to any such person may not
exceed $50,000. Computation of these limits shall begin with funds
approved May 28, 1980, after the effective date of the FTC Improvements
Act of 1980.
(f) Participation of small businesses. To ensure a fair
determination in rulemaking proceedings, the Commission solicits public
comment from small businesses whose views otherwise would not be
adequately represented. The Commission encourages small business
participation in the compensation program by disseminating to small
businesses information which explains the procedures and requirements
applicable to the receipt of compensation.
(g) Funds set aside for persons who would be regulated by proposed
rules. The Commission reserves an amount equal to 25 percent of the
annual fiscal appropriations for participation costs under this program.
This reserved amount is available for reimbursement only to persons who
(1) would be regulated by the proposed rule involved or (2) represent
persons who would be so regulated.
(40 FR 33966, Aug. 13, 1975, as amended at 43 FR 39084, Sept. 1,
1978; 46 FR 26289, May 12, 1981)
16 CFR 1.18 Rulemaking record.
(a) Definition. For purposes of these rules the term ''rulemaking
record'' includes the rule, its Statement of Basis and Purpose, the
verbatim transcripts of the informal hearing, written submissions, the
recommended decision of the presiding officer, and the staff
recommendations as well as any public comment thereon, verbatim
transcripts or summaries of oral presentations to the Commission any
communications placed on the rulemaking record pursuant to 1.18c and
any other information which the Commission considers relevant to the
rule.
(b) Public availability. The rulemaking record shall be publicly
available except when the presiding officer, for good cause shown,
determines that it is in the public interest to allow any submission to
be received in camera subject to the provisions of 4.11 of this
chapter.
(c) Communications to Commissioners and Commissioners' personal
staffs -- (1) Communications by outside parties. Except as otherwise
provided in this subpart or by the Commission, after the Commission
votes to issue an initial notice of proposed rulemaking, comment on the
proposed rule should be directed to the presiding officer pursuant to
1.13. Communications with respect to the merits of that proceeding from
any outside party to any Commissioner or Commissioner advisor shall be
subject to the following treatment:
(i) Written communications. Written communications, including
written communications from members of Congress, received within the
period for acceptance of initial written comments shall be forwarded
promptly to the presiding officer for placement on the rulemaking
record. Written communications received after the time period for
acceptance of initial written comments but prior to any other deadline
for the acceptance of written submissions will be forwarded promptly to
the presiding officer, who will determine whether such communications
comply with the applicable requirements for written submissions at that
stage of the proceeding. Communications that comply with such
requirements will be promptly placed on the rulemaking record.
Noncomplying communications and all communications received after the
time periods for acceptance of written submissions will be placed
promptly on the public record.
(ii) Oral communications. Oral communications are permitted only
when advance notice of such oral communications is published by the
Commission's Office of Public Information in its Weekly Calendar and
Notice of ''Sunshine'' Meetings and when such oral communications are
transcribed verbatim or summarized at the discretion of the Commissioner
or Commissioner advisor to whom such oral communications are made and
are promptly placed on the rulemaking record together with any written
communications and summaries of any oral communications relating to such
oral communications. Transcripts or summaries of oral communications
which occur after the time period for acceptance of initial written
comments but prior to any other deadline for the acceptance of written
submissions will be forwarded promptly to the presiding officer together
with any written communications and summaries of any oral communications
relating to such oral communications. The presiding officer will
determine whether such oral communications comply with the applicable
requirements for written submissions at that stage of the proceeding.
Transcripts or summaries of oral communications that comply with such
requirements will be promptly placed on the rulemaking record together
with any written communications and summaries of any oral communications
relating to such oral communications. Transcripts or summaries of
noncomplying oral communications will be promptly placed on the public
record together with any written communications and summaries of any
oral communications relating to such oral communications. No oral
communications are permitted subsequent to the close of the postrecord
comment period, except as provided in 1.13(i). If an oral communication
does otherwise occur, the Commissioner or Commissioner advisor will
promptly place on the public record either a transcript of the
communication or a memorandum setting forth the contents of the
communication and the circumstances thereof; such transcript or
memorandum will not be part of the rulemaking record.
(iii) Congressional communications. The provisions of paragraph
(c)(1)(ii) of this section do not apply to communications from members
of Congress. Memoranda prepared by the Commissioner or Commissioner
advisor setting forth the contents of any oral congressional
communications will be placed on the public record. If the
communication occurs within the initial comment period and is
transcribed verbatim or summarized, the transcript or summary will be
promptly placed on the rulemaking record. A transcript or summary of
any oral communication which occurs after the time period for acceptance
of initial written comments but prior to any other deadline for the
acceptance of written submissions will be forwarded promptly to the
presiding officer, who will determine whether such oral communication
complies with the applicable requirements for written submissions at
that stage of the proceeding. Transcripts or summaries of oral
communications that comply with such requirements will be promptly
placed on the rulemaking record. Transcripts or summaries of
noncomplying oral communications will be placed promptly on the public
record.
(2) Communications by certain officers, employees, and agents of the
Commission. Any officer, employee, or agent of the Commission with
investigative or other responsibility relating to any rulemaking
proceeding within any operating bureau of the Commission is prohibited
from communicating or causing to be communicated to any Commissioner or
to the personal staff of any Commissioner any fact which is relevant to
the merits of such proceeding and which is not on the rulemaking record
of such proceeding, unless such communication is made available to the
public and is included in the rulemaking record. The provisions of this
subsection shall not apply to any communication to the extent such
communication is required for the disposition of ex parte matters as
authorized by law.
(Sec. 6(g), 38 Stat. 721 (15 U.S.C. 46), 80 Stat. 383, as amended (5
U.S.C. 552))
(42 FR 43974, Sept. 1, 1977, and 42 FR 60563, Nov. 28, 1977, as
amended at 44 FR 16368, Mar. 19, 1979; 44 FR 21005, Apr. 9, 1979; 45
FR 78628, Nov. 26, 1980; 50 FR 53304, Dec. 31, 1985)
16 CFR 1.19 Modification of a rule by the Commission at the time of
judicial review.
In the event that a reviewing court determines under section 18(e)(2)
of the Federal Trade Commission Act, to allow further submissions and
presentations on the rule, the Commission may modify or set aside its
rule or make a new rule by reason of the additional submissions and
presentations. Such modified or new rule shall then be filed with the
court together with an appropriate Statement of Basis and Purpose and
the return of such submissions and presentations.
(40 FR 33966, Aug. 13, 1975, as amended at 50 FR 53304, Dec. 31,
1985)
16 CFR 1.20 Alternative procedures.
If the Commission determines at the commencement of a rulemaking
proceeding to employ precedures other than those established in the
remainder of this subpart, it may do so by announcing those procedures
in the Federal Register notice commencing the rulemaking proceeding.
(43 FR 35683, Aug. 11, 1978)
16 CFR 1.20 Subpart C -- Rules Promulgated Under Authority Other Than Section 18(a)(1)(B) of the FTC Act
16 CFR 1.21 Scope of the rules in this subpart.
This subpart sets forth procedures for the promulgation of rules
under authority other than section 18(a)(1)(B) of the FTC Act except as
otherwise required by law or otherwise specified in the rules of this
chapter. This subpart does not apply to the promulgation of industry
guides, general statements of policy, rules of agency organization,
procedure, or practice, or rules governed by subpart B of this part.
(50 FR 53304, Dec. 31, 1985)
16 CFR 1.22 Rulemaking.
(a) Nature and authority. For the purpose of carrying out the
provisions of the statutes administered by it, the Commission is
empowered to promulgate rules and regulations applicable to unlawful
trade practices. Such rules and regulations express the experience and
judgment of the Commission, based on facts of which it has knowledge
derived from studies, reports, investigations, hearings, and other
proceedings, or within official notice, concerning the substantive
requirements of the statutes which it administers.
(b) Scope. Rules may cover all applications of a particular
statutory provision and may be nationwide in effect, or they may be
limited to particular areas or industries or to particular product or
geographic markets, as may be appropriate.
(c) Use of rules in adjudicative proceedings. When a rule is
relevant to any issue involved in an ajudicative proceeding thereafter
instituted, the Commission may rely upon the rule to resolve such issue,
provided that the respondent shall have been given a fair hearing on the
applicability of the rule to the particular case.
(40 FR 15232, Apr. 4, 1975)
16 CFR 1.23 Quantity limit rules.
Quantity limit rules are authorized by section 2(a) of the Clayton
Act, as amended by the Robinson-Patman Act. These rules have the force
and effect of law.
(32 FR 8444, June 13, 1967. Redesignated at 40 FR 15232, Apr. 4,
1975)
16 CFR 1.24 Rules applicable to wool, fur, and textile fiber products
and rules promulgated under the Fair Packaging and Labeling Act.
Rules having the force and effect of law are authorized under section
6 of the Wool Products Labeling Act of 1939, section 8 of the Fur
Products Labeling Act, section 7 of the Textile Fiber Products
Identification Act, and sections 4, 5, and 6 of the Fair Packaging and
Labeling Act.
(40 FR 15233, Apr. 4, 1975)
16 CFR 1.25 Initiation of proceedings -- petitions.
Proceedings for the issuance of rules or regulations, including
proceedings for exemption of products or classes of products from
statutory requirements, may be commenced by the Commission upon its own
initiative or pursuant to petition filed with the Secretary by any
interested person or group stating reasonable grounds therefor. Anyone
whose petition is not deemed by the Commission sufficient to warrant the
holding of a rulemaking proceeding will be promptly notified of that
determination and given an opportunity to submit additional data.
Procedures for the amendment or repeal of a rule or regulation are the
same as for the issuance thereof.
(32 FR 8444, June 13, 1967. Redesignated at 40 FR 15232, Apr. 4,
1975)
16 CFR 1.26 Procedure.
(a) Investigations and conferences. In connection with any
rulemaking proceeding, the Commission at any time may conduct such
investigations, make such studies, and hold such conferences as it may
deem necessary. All or any part of any such investigation may be
conducted under the provisions of subpart A of part 2 of this chapter.
(b) Notice. General notice of proposed rulemaking will be published
in the Federal Register and, to the extent practicable, otherwise made
available to interested persons except when the Commission for good
cause finds that notice and public procedure relating to the rule are
impractical, unnecessary or contrary to the public interest and
incorporates such finding and a brief statement of the reasons therefor
in the rule. If the rulemaking proceeding was instituted pursuant to
petition, a copy of the notice will be served on the petitioner. Such
notice will include:
(1) A statement of the time, place, and nature of the public
proceedings; (2) reference to the authority under which the rule is
proposed; (3) either the terms or substance of the proposed rule or
description of the subjects and issues involved; (4) an opportunity for
interested persons to participate in the proceeding through the
submission of written data, views, or arguments; and (5) a statement
setting forth such procedures for treatment of communications from
persons not employed by the Commission to Commissioners or Commissioner
Advisors with respect to the merits of the proceeding as will
incorporate the requirements of 1.18(c), including the transcription of
oral communications required by 1.18(c)(2), adapted in such form as may
be appropriate to the circumstances of the particular proceeding.
(c) Oral hearings. Oral hearing on a proposed rule may be held
within the discretion of the Commission, unless otherwise expressly
required by law. Any such hearing will be conducted by the Commission,
a member thereof, or a member of the Commission's staff. At the hearing
interested persons may appear and express their views as to the proposed
rule and may suggest such amendments, revisions, and additions thereto
as they may consider desirable and appropriate. The presiding officer
may impose reasonable limitations upon the length of time allotted to
any person. If by reason of the limitations imposed the person cannot
complete the presentation of his suggestions, he may within twenty-four
(24) hours file a written statement covering those relevant matters
which he did not orally present.
(d) Promulgation of rules or orders. The Commission, after
consideration of all relevant matters of fact, law, policy, and
discretion, including all relevant matters presented by interested
persons in the proceeding, will adopt and publish in the Federal
Register an appropriate rule or order, together with a concise general
statement of its basis and purpose and any necessary findings, or will
give other appropriate public notice of disposition of the proceeding.
(e) Effective date of rules. Except as provided in paragraphs (f)
and (g) of this section, the effective date of any rule, or of the
amendment, suspension, or repeal of any rule will be as specified in a
notice published in the Federal Register, which date will be not less
than thirty (30) days after the date of such publication unless an
earlier effective date is specified by the Commission upon good cause
found and published with the rule.
(f) Effective date of rules and orders under Fair Packaging and
Labeling Act. The effective date of any rule or order under the Fair
Packaging and Labeling Act will be as specified by order published in
the Federal Register, but shall not be prior to the day following the
last day on which objections may be filed under paragraph (g) of this
section.
(g) Objections and request for hearing under Fair Packaging and
Labeling Act. On or before the thirtieth (30th) day after the date of
publication of an order in the Federal Register pursuant to paragraph
(f) of this section, any person who will be adversely affected by the
order if placed in effect may file objections thereto with the Secretary
of the Commission, specifying with particularity the provisions of the
order deemed objectionable, stating the grounds therefor, and requesting
a public hearing upon such objections. Objections will be deemed
sufficient to warrant the holding of a public hearing only:
(1) If they establish that the objector will be adversely affected by
the order; (2) if they specify with particularity the provisions of the
order to which objection is taken; and (3) if they are supported by
reasonable grounds which, if valid and factually supported, may be
adequate to justify the relief sought. Anyone who files objections
which are not deemed by the Commission sufficient to warrant the holding
of a public hearing will be promptly notified of that determination. As
soon as practicable after the time for filing objections has expired,
the Commission will publish a notice in the Federal Register specifying
those parts of the order which have been stayed by the filing of
objections or, if no objections sufficient to warrant the holding of a
hearing have been filed, stating that fact.
(32 FR 8444, June 13, 1967. Redesignated at 40 FR 15232, Apr. 4,
1975, and amended at 44 FR 16368, Mar. 19, 1979; 50 FR 53304, Dec. 31,
1985)
16 CFR 1.26 Subpart D -- Administration of the Wool Products Labeling Act of 1939, Fur Products Labeling Act, and Textile Fiber Products Identification Act
16 CFR 1.31 Administration.
The general administration of the Wool Products Labeling Act of 1939,
Fur Products Labeling Act, and Textile Fiber Products Identification
Act, and of the respective rules and regulations thereunder is carried
out by the Bureau of Consumer Protection. Any interested person may
obtain copies of the several Acts and rules and regulations upon request
to the Secretary of the Commission.
(35 FR 10584, June 30, 1970, as amended at 41 FR 4814, Feb. 2, 1976)
16 CFR 1.32 Registered identification numbers.
Registered identification numbers are issued by the Commission under
the provisions of Rule 4 of the rules and regulations under the Wool
Products Labeling Act of 1939 ( 300.4 of this chapter); Rule 26 of the
rules and regulations under the Fur Products Labeling Act ( 301.26 of
this chapter); and Rule 20 of the rules and regulations under the
Textile Fiber Products Identification Act ( 303.20 of this chapter).
Such numbers are for use as required identification in lieu of the name
of the person to whom the number has been issued in satisfying the
identification requirement in labeling under the respective Acts. Any
person marketing wool products, textile fiber products, or fur or fur
products, in commerce, may file an application with the Secretary of the
Commission for issuance of a registered identification number. The
Commission will furnish application forms upon request. Numbers are
issued when, upon examination of the application, the applicant is found
to come within the terms of the applicable rules and regulations.
Numbers are subject to revocation for cause or upon a change in business
status or discontinuance of business. The identity of holders of
registered identification numbers issued by the Commission is released
upon oral or written request directed to the Enforcement Division of the
Bureau of Consumer Protection.
(32 FR 8444, June 13, 1967, as amended at 39 FR 23699, July 19, 1974;
46 FR 26290, May 12, 1981; 50 FR 53304, Dec. 31, 1985)
16 CFR 1.33 Continuing guaranties.
Continuing guaranties may be filed with the Commission under section
9 of the Wool Products Labeling Act of 1939 and Rule 33 of the rules and
regulations thereunder ( 300.33 of this chapter); section 10 of the Fur
Products Labeling Act and Rule 48 of the rules and regulations
thereunder ( 301.48 of this chapter); and section 10 of the Textile
Fiber Products Identification Act and Rule 38 of the rules and
regulations thereunder ( 303.38 of this chapter). Upon receipt of
continuing guaranties duly executed according to form and substance as
prescribed in the applicable rules and regulations, they are filed and
made public. Necessary forms may be obtained from the Commission upon
request.
(32 FR 8444, June 13, 1967, as amended at 41 FR 4814, Feb. 2, 1976)
16 CFR 1.34 Inspections and counseling.
The Commission maintains a staff to carry on compliance inspection
and industry counseling work among manufacturers and marketers of wool
products, textile fiber products, and fur or fur products.
Administrative action to effect correction of minor infractions on a
voluntary basis is taken in those cases where such procedure is believed
adequate to effect immediate compliance and protect the public interest.
(32 FR 8444, June 13, 1967, as amended at 41 FR 4814, Feb. 2, 1976)
16 CFR 1.34 Subpart E -- Export Trade Associations
16 CFR 1.41 Limited antitrust exemption.
The Export Trade Act authorizes the organization and operation of
export trade associations, and extends to them certain limited
exemptions from the Sherman Act and the Clayton Act. It also extends
the jurisdiction of the Commission under the Federal Trade Commission
Act to unfair methods of competition used in export trade against
competitors engaged in export trade, even though the acts constituting
such unfair methods are done without the territorial jurisdiction of the
United States.
16 CFR 1.42 Notice to Commission.
To obtain the exemptions afforded by the Act, an export trade
association is required to file with the Commission, within thirty (30)
days after its creation, a verified written statement setting forth the
location of its offices and places of business, names, and addresses of
its officers, stockholders, or members, and copies of its documents of
incorporation or association. On the first day of January of each year
thereafter, each association must file a like statement and, when
required by the Commission to do so, must furnish to the Commission
detailed information as to its organization, business, conduct,
practices, management, and relation to other associations, corporations,
partnerships, and individuals.
16 CFR 1.43 Recommendations.
Whenever the Commission has reason to believe that an association has
violated the prohibitions of section 2 of the Act, it may conduct an
investigation. If, after investigation, it concludes that the law has
been violated, it may make to such association recommendations for the
readjustment of its business. If the association fails to comply with
the recommendations, the Commission will refer its findings and
recommendations to the Attorney General for appropriate action.
16 CFR 1.43 Subpart F -- Trademark Cancellation Procedure
16 CFR 1.51 Applications.
Applications for the institution of proceedings for the cancellation
of registration of trade, service, or certification marks under the
Trade-Mark Act of 1946 may be filed with the Secretary of the
Commission. Such applications shall be in writing, signed by or in
behalf of the applicant, and should identify the registration concerned
and contain a short and simple statement of the facts constituting the
alleged basis for cancellation, the name and address of the applicant,
together with all relevant and available information. If, after
consideration of the application, or upon its own initiative, the
Commission concludes that cancellation of the mark may be warranted, it
will institute a proceeding before the Commissioner of Patents for
cancellation of the registration.
16 CFR 1.51 Subpart G -- Injunctive and Condemnation Proceedings
16 CFR 1.61 Injunctions.
In those cases where the Commission has reason to believe that it
would be to the interest of the public, the Commission will apply to the
courts for injunctive relief, pursuant to the authority granted in
section 13 of the Federal Trade Commission Act.
(40 FR 15233, Apr. 4, 1975)
16 CFR 1.62 Ancillary court orders pending review.
Where petition for review of an order to cease and desist has been
filed in a U.S. court of appeals, the Commission may apply to the court
for issuance of such writs as are ancillary to its jurisdiction or are
necessary in its judgment to prevent injury to the public or to
competitors pendente lite.
16 CFR 1.63 Injunctions: Wool, fur, and textile cases.
In those cases arising under the Wool Products Labeling Act of 1939,
Fur Products Labeling Act, and Textile Fiber Products Identification
Act, where it appears to the Commission that it would be to the public
interest for it to do so, the Commission will apply to the courts for
injunctive relief, pursuant to the authority granted in such Acts.
(32 FR 8444, June 13, 1967, as amended at 41 FR 4814, Feb. 2, 1976)
16 CFR 1.64 Condemnation proceedings.
In those cases arising under the Wool Products Labeling Act of 1939
and Fur Products Labeling Act, and where it appears to the Commission
that the public interest requires such action, the Commission will apply
to the courts for condemnation, pursuant to the authority granted in
such Acts.
(32 FR 8444, June 13, 1967, as amended at 41 FR 4814, Feb. 2, 1976)
16 CFR 1.64 Subpart H -- Administration of the Fair Credit Reporting
Act
Authority: 84 Stat. 1128, 15 U.S.C. 1681 et seq.
16 CFR 1.71 Administration.
The general administration of the Fair Credit Reporting Act (Title VI
of the Consumer Credit Protection Act of 1968; enacted October 26,
1970; Pub. L. 91-508, 82 Stat. 146, 15 U.S.C. 1601 et seq.) is carried
out by the Bureau of Consumer Protection, Division of Credit Practices.
Any interested person may obtain copies of the Act and these procedures
and rules of practice upon request to the Secretary of the Commission,
Washington, DC 20580.
(36 FR 9293, May 22, 1971, as amended at 36 FR 18788, Sept. 22, 1971;
38 FR 32438, Nov. 26, 1973; 46 FR 26290, May 12, 1981)
16 CFR 1.72 Examination, counseling and staff advice.
The Commission maintains a staff to carry out on-the-scene
examination of records and procedures utilized to comply with the Fair
Credit Reporting Act and to carry out industry counseling. Requests for
staff interpretation of the Fair Credit Reporting Act should be directed
to the Division of Credit Practices, Bureau of Consumer Protection.
Such interpretations represent informal staff opinion which is advisory
in nature and is not binding upon the Commission as to any action it may
take in the matter. Administrative action to effect correction of minor
infractions on a voluntary basis is taken in those cases where such
procedure is believed adequate to effect immediate compliance and
protect the public interest.
(36 FR 9293, May 22, 1971, as amended at 36 FR 18788, Sept. 22, 1971;
38 FR 32438, Nov. 26, 1973; 46 FR 26290, May 12, 1981)
16 CFR 1.73 Interpretations.
(a) Nature and purpose. (1) The Commission issues and causes to be
published in the Federal Register interpretations of the provisions of
the Fair Credit Reporting Act on its own initiative or pursuant to the
application of any person when it appears to the Commission that
guidance as to the legal requirements of the Act would be in the public
interest and would serve to bring about more widespread and equitable
observance of the Act.
(2) The interpretations are not substantive rules and do not have the
force or effect of statutory provisions. They are guidelines intended
as clarification of the Fair Credit Reporting Act, and, like industry
guides, are advisory in nature. They represent the Commission's view as
to what a particular provision of the Fair Credit Reporting Act means
for the guidance of the public in conducting its affairs in conformity
with that Act, and they provide the basis for voluntary and simultaneous
abandonment of unlawful practices by members of industry. Failure to
comply with such interpretations may result in corrective action by the
Commission under applicable statutory provisions.
(b) Procedure. (1) Requests for Commission interpretations should be
submitted in writing to the Secretary of the Federal Trade Commission
stating the nature of the interpretation requested and the reasons and
justification therefor. If the request is granted, as soon as
practicable thereafter, the Commission will publish a notice in the
Federal Register setting forth the text of the proposed interpretation.
Comments, views, or objections, together with the grounds therefor,
concerning the proposed interpretation may be submitted to the Secretary
of the Commission within thirty (30) days of public notice thereof. The
proposed interpretation will automatically become final after the
expiration of sixty (60) days from the date of public notice thereof,
unless upon consideration of written comments submitted as hereinabove
provided, the Commission determine to rescind, revoke, modify, or
withdraw the proposed interpretation, in which event notification of
such determination will be published in the Federal Register.
(2) The issuance of such interpretations is within the discretion of
the Commission and the Commission at any time may conduct such
investigations and hold such conferences or hearings as it may deem
appropriate. Any interpretation issued pursuant to this chapter is
without prejudice to the right of the Commission to reconsider the
interpretation, and where the public interest requires, to rescind,
revoke, modify, or withdraw the interpretation, in which event
notification of such action will be published in the Federal Register.
(c) Applicability of interpretations. Interpretations issued
pursuant to this subpart may cover all applications of a particular
statutory provision, or they may be limited in application to a
particular industry, as appropriate.
(36 FR 9293, May 22, 1971)
16 CFR 1.73 Subpart I -- Procedures for Implementation of the National
Environmental Policy Act of 1969
Authority: 15 U.S.C. 46(g), 42 U.S.C. 4321 et seq.
Source: 47 FR 3096, Jan. 22, 1982, unless otherwise noted.
16 CFR 1.81 Authority and incorporation of CEQ Regulations.
This subpart is issued pursuant to 102(2) of the National
Environmental Policy Act of 1969 (NEPA), as amended (42 U.S.C. 4321 et
seq.). Pursuant to Executive Order 11514 (March 5, 1970, as amended by
Executive Order 11991, May 24, 1977) and the Environmental Quality
Improvement Act of 1980, as amended (42 U.S.C. 4371 et seq.) the Council
on Environmental Quality (CEQ) has issued comprehensive regulations for
implementing the procedural provisions of NEPA (40 CFR Parts 1500
through 1508) (''CEQ Regulations''). Although it is the Commission's
position that these regulations are not binding on it, the Commission's
policy is to comply fully with the CEQ Regulations unless it determines
in a particular instance or for a category of actions that compliance
would not be consistent with the requirements of law. With this caveat,
the Commission incorporates into this subpart the CEQ Regulations. The
following are supplementary definitions and procedures to be applied in
conjunction with the CEQ Regulations.
(47 FR 3096, Jan. 22, 1982, as amended at 50 FR 53304, Dec. 31, 1985)
16 CFR 1.82 Declaration of policy.
(a) Except for actions which are not subject to the requirements of
section 102(2)(C) of NEPA, no Commission proposal for a major action
significantly affecting the quality of the human environment will be
instituted unless an environmental impact statement has been prepared
for consideration in the decisionmaking. All relevant environmental
documents, comments, and responses as provided in this subpart shall
accompany such proposal through all review processes. ''Major actions,
significantly affecting the quality of the human environment'' referred
to in this subpart ''do not include bringing judicial or administrative
civil or criminal enforcement actions'' CEQ Regulation (40 CFR
1508.18(a)). In the event that the Commission in an administrative
enforcement proceeding actively contemplates the adoption of standards
or a form of relief which it determines may have a significant effect on
the environment, the Commission will, when consistent with the
requirements of law, provide for the preparation of an environmental
assessment or an environmental impact statement or such other action as
will permit the Commission to assess alternatives with a view toward
avoiding or minimizing any adverse effect upon the environment.
(b) No Commission proposal for legislation significantly affecting
the quality of the human environment and concerning a subject matter in
which the Commission has primary responsibility will be submitted to
Congress without an accompanying environmental impact statement.
(c) When the Commission finds that emergency action is necessary and
an environmental impact statement cannot be prepared in conformance with
the CEQ Regulations, the Commission will consult with CEQ about
alternative arrangements in accordance with CEQ Regulation (40 CFR
1506.11).
16 CFR 1.83 Whether to commence the process for an environmental impact
statement.
(a) The Bureau responsible for submitting a proposed rule, guide, or
proposal for legislation to the Commission for agency action shall,
after consultation with the Office of the General Counsel, initially
determine whether or not the proposal is one which requires an
environmental impact statement. Except for matters where the
environmental effects, if any, would appear to be either (1) clearly
significant and therefore the decision is made to prepare an
environmental impact statement, or (2) so uncertain that environmental
analysis would be based on speculation, the Bureau should normally
prepare an ''environmental assessment'' CEQ Regulation (40 CFR 1508.9)
for purposes of providing sufficient evidence and analysis for
determining whether to prepare an environmental impact statement or a
finding of no significant impact. The Bureau should involve
environmental agencies to the extent practicable in preparing an
assessment. An environmental assessment shall be made available to the
public when the proposed action is made public along with any ensuing
environmental impact statement or finding of no significant impact.
(b) If the Bureau determines that the proposal is one which requires
an environmental impact statement, it shall commence the ''scoping
process'' CEQ Regulation (40 CFR 1501.7) except that the impact
statement which is part of a proposal for legislation need not go
through a scoping process but shall conform to CEQ Regulation (40 CFR
1506.8). As soon as practicable after its decision to prepare an
environmental impact statement and before the scoping process, the
Bureau shall publish a notice of intent as provided in CEQ Regulations
(40 CFR 1501.7 and 1508.22).
(c) If, on the basis of an environmental assessment, the
determination is made not to prepare a statement, a finding of ''no
significant impact'' shall be made in accordance with CEQ Regulation (40
CFR 1508.3) and shall be made available to the public as specified in
CEQ Regulation (40 CFR 1506.6).
16 CFR 1.84 Draft environmental impact statements: Availability and
comment.
Except for proposals for legislation, environmental impact statements
shall be prepared in two stages: Draft statement and final statement.
(a) Proposed rules or guides. (1) An environmental impact statement,
if deemed necessary, shall be in draft form at the time a proposed rule
or guide is published in the Federal Register and shall accompany the
proposal throughout the decisionmaking process.
(2) The major decision points with respect to rules and guides are:
(i) Preliminary formulation of a staff proposal;
(ii) The time the proposal is initially published in the Federal
Register as a Commission proposal;
(iii) Presiding officer's report (in trade regulation rule
proceedings);
(iv) Submission to the Commission of the staff report or
recommendation for final action on the proposed guide or rule;
(v) Final decision by the Commission. The decision on whether or not
to prepare an environmental impact statement should occur at point
(a)(2)(i) of this section. The publication of any draft impact
statement should occur at point (a)(2)(ii) of this section. The
publication of the final environmental impact statement should occur at
point (a)(2)(iv) of this section.
(b) Legislative proposals. In legislative matters, a legislative
environmental impact statement shall be prepared in accordance with CEQ
Regulation (40 CFR 1506.8).
(c) In rule or guide proceedings the draft environmental impact
statement shall be prepared in accordance with CEQ Regulation (40 CFR
1502.9) and shall be placed in the public record to which it pertains;
in legislative matters, the legislative impact statement shall be placed
in a public record to be established, containing the legislative report
to which it pertains; these will be available to the public through the
Office of the Secretary and will be published in full with the
appropriate proposed rule, guide, or legislative report; such
statements shall also be filed with the Environmental Protection
Agency's (EPA) Office of Environmental Review (CEQ Regulation (40 CFR
1506.9) for listing in the weekly Federal Register Notice of draft
environmental impact statements, and shall be circulated, in accordance
with CEQ Regulations (40 CFR 1502.19, 1506.6) to appropriate federal,
state and local agencies.
(d) Forty-five (45) days will be allowed for comment on the draft
environmental impact statement, calculated from the date of publication
in the EPA's weekly Federal Register list of draft environmental impact
statements. The Commission may in its discretion grant such longer
period as the complexity of the issues may warrant.
16 CFR 1.85 Final environmental impact statements.
(a) After the close of the comment period, the Bureau responsible for
the matter will consider the comments received on the draft
environmental impact statement and will put the draft statement into
final form in accordance with the requirements of CEQ Regulation (40 CFR
1502.9(b)), attaching the comments received (or summaries if response
was exceptionally voluminous).
(b) Upon Bureau approval of the final environmental impact statement
the final statement will be
(1) Filed with the EPA;
(2) Forwarded to all parties which commented on the draft
environmental impact statement and to other interested parties, if
practicable;
(3) Placed in the public record of the proposed rule or guide
proceeding or legislative matter to which it pertains;
(4) Distributed in any other way which the Bureau in consultation
with CEQ deems appropriate.
(c) In rule and guide proceedings, at least thirty (30) days will be
allowed for comment on the final environmental impact statement,
calculated from the date of publication in the EPA's weekly Federal
Register list of final environmental impact statements. In no event
will a final rule or guide be promulgated prior to ninety (90) days
after notice of the draft environmental impact statement, except where
emergency action makes such time period impossible.
16 CFR 1.86 Supplemental statements.
Except for proposals for legislation, as provided in CEQ Regulation
(40 CFR 1502.9(c)), the Commission shall publish supplements to either
draft or final environmental statements if: (a) The Commission makes
substantial changes in the proposed action that are relevant to
environmental concerns; or (b) there are significant new circumstances
or information relevant to environmental concerns and bearing on the
proposed action and its impacts. In the course of a trade regulation
rule proceeding, the supplement will be placed in the rulemaking record.
16 CFR 1.87 NEPA and agency decisionmaking.
In its final decision on the proposed action or, if appropriate, in
its recommendation to Congress, the Commission shall consider all the
alternatives in the environmental impact statement and other relevant
environmental documents and shall prepare a concise statement which, in
accordance with CEQ Regulation 1505.2, shall:
(a) Identify all alternatives considered by the Commission in
reaching its decision or recommendation, specifying the alternatives
which were considered to be environmentally preferable;
(b) State whether all practicable means to avoid or minimize
environmental harm from the alternative selected have been adopted, and
if not, why they were not.
16 CFR 1.88 Implementing procedures.
(a) The General Counsel is designated the official responsible for
coordinating the Commission's efforts to improve environmental quality.
He will provide assistance to the staff in determining when an
environmental impact statement is needed and in its preparation.
(b) The Commission will determine finally whether an action complies
with NEPA.
(c) The Directors of the Bureaus of Consumer Protection and
Competition will supplement these procedures for their Bureaus to assure
that every proposed rule and guide is reviewed to assess the need for an
environmental impact statement and that, where need exists, an
environmental impact statement is developed to assure timely
consideration of environmental factors.
(d) The General Counsel will establish procedures to assure that
every legislative proposal on a matter for which the Commission has
primary responsibility is reviewed to assess the need for an
environmental impact statement and that, where need exists, and
environmental impact statement is developed to assure timely
consideration of environmental factors.
(e) Parties seeking information or status reports on environmental
impact statements and other elements of the NEPA process, should contact
the Assistant General Counsel for Litigation and Environmental Policy.
16 CFR 1.89 Effect on prior actions.
It is the policy of the Commission to apply these procedures to the
fullest extent possible to proceedings which are already in progress.
16 CFR 1.89 Subpart J -- Economic Surveys, Investigations and Reports
16 CFR 1.91 Authority and purpose.
General and special economic surveys, investigations, and reports are
made by the Bureau of Economics under the authority of the various laws
which the Federal Trade Commission administers. The Commission may in
any such survey or investigation invoke any or all of the compulsory
processes authorized by law.
(32 FR 8444, June 13, 1967. Redesignated at 40 FR 15233, Apr. 4,
1975)
16 CFR 1.91 Subpart K -- Penalties for Violation of Appliance Labeling
Rules
Source: 45 FR 67318, Oct. 10, 1980, unless otherwise noted.
16 CFR 1.92 Scope.
The rules in this subpart apply to and govern proceedings for the
assessment of civil penalties for the violation of section 332 of the
Energy Policy and Conservation Act, 42 U.S.C. 6302, and the Commission's
Rules on Labeling and Advertising of Consumer Appliances, 16 CFR Part
305, promulgated under sections 324 and 326 of the Energy Policy and
Conservation Act, 42 U.S.C. 6294 and 6296.
16 CFR 1.93 Notice of proposed penalty.
(a) Notice. Before issuing an order assessing a civil penalty under
this subpart against any person, the Commission shall provide to such
person notice of the proposed penalty. This notice shall:
(1) Inform such person of the opportunity to elect in writing within
30 days of receipt of the notice of proposed penalty to have procedures
of 1.95 (in lieu of those of 1.94) apply with respect to such
assessment; and
(2) Include a copy of a proposed complaint conforming to the
provision of 3.11(b)(1) and (2) of the Commission's Rules of Practice,
or a statement of the material facts constituting the alleged violation
and the legal basis for the proposed penalty; and
(3) Include the amount of the proposed penalty; and
(4) Include a statement of the procedural rules that the Commission
will follow if respondent elects to proceed under 1.94 unless the
Commission chooses to follow subparts B, C, D, E, and F of part 3 of
this chapter.
(b) Election. Within 30 days of receipt of the notice of proposed
penalty, the respondent shall, if it wishes to elect to have the
procedures of 1.95 apply, notify the Commission of the election in
writing. The notification, to be filed in accordance with 4.2 of this
chapter, may include any factual or legal reasons for which the proposed
assessment order should not issue, should be reduced in amount, or
should otherwise be modified.
16 CFR 1.94 Commission proceeding to assess civil penalty.
If the respondent fails to elect to have the procedures of 1.95
apply, the Commission shall determine whether to issue a complaint and
thereby commence an adjudicative proceeding in conformance with section
333(d)(2)(A) of the Energy Policy and Conservation Act, 42 U.S.C.
6303(d)(2)(A). If the Commission votes to issue a complaint, the
proceeding shall be conducted in accordance with subparts B, C, D, E and
F of part 3 of this chapter, unless otherwise ordered in the notice of
proposed penalty. In assessing a penalty, the Commission shall take
into account the factors listed in 1.97.
16 CFR 1.95 Procedures upon election.
(a) After receipt of the notification of election to apply the
procedures of this section pursuant to 1.93, the Commission shall
promptly assess such penalty as it deems appropriate, in accordance with
1.97.
(b) If the civil penalty has not been paid within 60 calendar days
after the assessment order has been issued under paragraph (a) of this
section, the General Counsel, unless otherwise directed, shall institute
an action in the appropriate district court of the United States for an
order enforcing the assessment of the civil penalty.
(c) Any election to have this section apply may not be revoked except
with the consent of the Commission.
16 CFR 1.96 Compromise of penalty.
The Commission may compromise any penalty or proposed penalty at any
time, with leave of court when necessary, taking into account the nature
and degree of violation and the impact of a penalty upon a particular
respondent.
16 CFR 1.97 Amount of penalty.
All penalties assessed under this subchapter shall be in the amount
of $100 for each violation as described in section 333(a) of the Energy
Policy and Conservation Act, 42 U.S.C. 6303(a), unless the Commission
shall otherwise direct. In considering the amount of penalty, the
Commission shall take into account:
(a) Respondent's size and ability to pay; (b) respondent's good
faith; (c) any history of previous violations; (d) the deterrent
effect of the penalty action; (e) the length of time involved before
the Commission was made aware of the violation; (f) the gravity of the
violation, including the amount of harm to consumers and the public
caused by the violation; and (g) such other matters as justice may
require.
16 CFR 1.97 PART 2 -- NONADJUDICATIVE PROCEDURES
16 CFR 1.97 Subpart A -- Inquiries; Investigations; Compulsory
Processes
Sec.
2.1 How initiated.
2.2 Request for Commission action.
2.3 Policy as to private controversies.
2.4 Investigational policy.
2.5 By whom conducted.
2.6 Notification of purpose.
2.7 Compulsory process in investigations.
2.8 Investigational hearings.
2.8A Withholding requested material.
2.9 Rights of witnesses in investigations.
2.10 Depositions.
2.11 Orders requiring access.
2.12 Reports.
2.13 Noncompliance with compulsory processes.
2.14 Disposition.
2.15 Orders requiring witnesses to testify or provide other
information and granting immunity.
2.16 Custodians.
16 CFR 1.97 Subpart B -- (Reserved)
16 CFR 1.97 Subpart C -- Consent Order Procedure
2.31 Opportunity to submit a proposed consent order.
2.32 Agreement.
2.33 Compliance procedure.
2.34 Disposition.
16 CFR 1.97 Subpart D -- Reports of Compliance
2.41 Reports of compliance.
16 CFR 1.97 Subpart E -- Requests to Reopen
2.51 Requests to reopen.
Authority: Sec. 6, 38 Stat. 721; 15 U.S.C. 46.
16 CFR 1.97 Subpart A -- Inquiries; Investigations; Compulsory Processes
16 CFR 2.1 How initiated.
Commission investigations and inquiries may be originated upon the
request of the President, Congress, governmental agencies, or the
Attorney General; upon referrals by the courts; upon complaint by
members of the public; or by the Commission upon its own initiative.
The Commission has delegated to the Director, Deputy Directors, and
Assistant Directors of the Bureau of Competition, the Director, Deputy
Directors, and Associate Directors of the Bureau of Consumer Protection
and, the Regional Directors and Assistant Regional Directors of the
Commission's regional offices, without power of redelegation, limited
authority to initiate investigations.
(48 FR 41374, Sept. 15, 1983, as amended at 50 FR 53304, Dec. 31,
1985)
16 CFR 2.2 Request for Commission action.
(a) Any individual, partnership, corporation, association, or
organization may request the Commission to institute an investigation in
respect to any matter over which the Commission has jurisdiction.
(b) Such request should be in the form of a signed statement setting
forth the alleged violation of law with such supporting information as
is available, and the name and address of the person or persons
complained of. No forms or formal procedures are required.
(c) The person making the request is not regarded as a party to any
proceeding which might result from the investigation.
(d) It is the general Commission policy not to publish or divulge the
name of an applicant or complaining party except as required by law or
by the Commission's rules. Where a complaint is by a consumer or
consumer representative concerning a specific consumer product or
service, the Commission, in the course of a referral of the complaint or
of an investigation, may disclose the identity of the complainant or
complainants. In referring any such consumer complaint, the Commission
specifically retains its right to take such action as it deems
appropriate in the public interest and under any of the statutes which
it administers.
(32 FR 8446, June 13, 1967, as amended at 35 FR 10146, June 20, 1970)
16 CFR 2.3 Policy as to private controversies.
The Commission acts only in the public interest and does not initiate
an investigation or take other action when the alleged violation of law
is merely a matter of private controversy and does not tend adversely to
affect the public.
(32 FR 8446, June 13, 1967)
16 CFR 2.4 Investigational policy.
The Commission encourages voluntary cooperation in its
investigations. Where the public interest requires, however, the
Commission may, in any matter under investigation adopt a resolution
authorizing the use of any or all of the compulsory processes provided
for by law.
(45 FR 36341, May 29, 1980)
16 CFR 2.5 By whom conducted.
Inquiries and investigations are conducted under the various statutes
administered by the Commission by Commission representatives designated
and duly authorized for the purpose. Such representatives are
''examiners'' or ''Commission investigators'' within the meaning of the
Federal Trade Commission Act and are authorized to exercise and perform
the duties of their office in accordance with the laws of the United
States and the regulations of the Commission. Included among such
duties is the administration of oaths and affirmations in any matter
under investigation by the Commission.
(45 FR 36341, May 29, 1980)
16 CFR 2.6 Notification of purpose.
Any person under investigation compelled or requested to furnish
information or documentary evidence shall be advised of the purpose and
scope of the investigation and of the nature of the conduct constituting
the alleged violation which is under investigation and the provisions of
law applicable to such violation.
(46 FR 26290, May 12, 1981; 46 FR 27634, May 21, 1981)
16 CFR 2.7 Compulsory process in investigations.
(a) In general. The Commission or any member thereof may, pursuant
to a Commission resolution, issue a subpoena or a civil investigative
demand directing the person named therein to appear before a designated
representative at a designated time and place to testify or to produce
documentary evidence, or both, or, in the case of a civil investigative
demand, to provide a written report or answers to questions relating to
any matter under investigation by the Commission. Material for which a
civil investigative demand has been issued shall be made available for
inspection and copying at the principal place of business of the person
or at such other place or in such other manner as the person and the
custodian designated pursuant to 2.16 agree.
(b) Civil Investigative Demands. Civil investigative demands shall
be the only form of compulsory process issued in investigations with
respect to unfair or deceptive acts or practices within the meaning of
FTC Act section 5(a)(1).
(1) Civil investigative demands for the production of documentary
material shall describe each class of material to be produced with such
definiteness and certainty as to permit such material to be fairly
identified, prescribe a return date or dates which will provide a
reasonable period of time within which the material so demanded may be
assembled and made available for inspection and copying or reproduction,
and identify the custodian to whom such material shall be made
available. Production of documentary material in response to a civil
investigative demand shall be made in accordance with the procedures
prescribed by section 20(c)(10) of the Federal Trade Commission Act.
(2) Civil investigative demands for written reports or answers to
questions shall propound with definiteness and certainty the reports to
be produced or the questions to be answered, prescribe a date or dates
at which time written reports or answers to questions shall be
submitted, and identify the custodian to whom such reports or answers
shall be submitted. Response to a civil investigative demand for a
written report or answers to questions shall be made in accordance with
the procedures prescribed by section 20(c)(11) of the Federal Trade
Commission Act.
(3) Civil investigative demands for the giving of oral testimony
shall prescribe a date, time, and place at which oral testimony shall be
commenced, and identify a Commission investigator who shall conduct the
investigation and the custodian to whom the transcript of such
investigation shall be submitted. Oral testimony in response to a civil
investigative demand shall be taken in accordance with the procedures
prescribed by section 20(c)(12) of the Federal Trade Commission Act.
(c) The Bureau Director, Deputy Directors and Assistant Directors of
the Bureaus of Competition and Economics, the Director, Deputy Directors
and Associate Directors of the Bureau of Consumer Protection, Regional
Directors, and Assistant Regional Directors, are authorized to negotiate
and approve the terms of satisfactory compliance with subpoenas and
civil investigative demands and, for good cause shown, may extend the
time prescribed for compliance. Specifically, the subpoena power
conferred by Section 329 of the Energy Policy and Conservation Act (42
U.S.C. 6299) is included within this delegation.
(d) Petitions to limit or quash -- (1) General. Any petition to
limit or quash any investigational subpoena or civil investigative
demand shall be filed with the Secretary of the Commission within twenty
(20) days after service of the subpoena or civil investigative demand,
or, if the return date is less than twenty (20) days after service,
prior to the return date. Such petition shall set forth all assertions
of privilege or other factual and legal objections to the subpoena or
civil investigative demand, including all appropriate arguments,
affidavits and other supporting documentation.
(2) Statement. Each petition shall be accompanied by a signed
statement representing that counsel for the petitioner has conferred
with counsel for the Commission in an effort in good faith to resolve by
agreement the issues raised by the petition and has been unable to reach
such as agreement. If some of the matters in controversy have been
resolved by agreement, the statement shall specify the matters so
resolved and the matters remaining unresolved. The statement shall
recite the date, time, and place of each such conference between
counsel, and the names of all parties participating in each such
conference.
(3) Extensions of time. Bureau Directors, Deputy Directors, and
Assistant Directors in the Bureaus of Competition and Economics, the
Bureau Director, Deputy Directors and Associate Directors in the Bureau
of Consumer Protection, Regional Directors and Assistant Regional
Directors are delegated, without power of redelegation, the authority to
rule upon requests for extensions of time within which to file such
petitions.
(4) Disposition. A Commissioner, to be designated by the Chairman,
is delegated, without power of redelegation, the authority to rule upon
petitions to limit or quash an investigational subpoena or civil
investigative demand, but the designated Commissioner may, in his or her
sole discretion, refer a petition to the full Commission for
determination.
(e) Stay of compliance period. The timely filing of a petition to
limit or quash any investigational subpoena or civil investigative
demand shall stay the time permitted for compliance with the portion
challenged. If the petition is denied in whole or in part, the ruling
will specify a new return date.
(f) Review. Any petitioner, within three days after service of a
ruling by the designated Commissioner denying all or a portion of the
relief requested in its petition, may file with the Secretary of the
Commission a request that the full Commission review the ruling. The
timely filing of such a request shall not stay the return date specified
in the ruling, unless otherwise specified by the Commission.
(g) Public disclosure. All petitions to limit or quash
investigational subpoenas or civil investigative demands and the
responses thereto are part of the public records of the Commission,
except for information exempt from disclosure under 4.10(a) of this
chapter.
(45 FR 36342, May 29, 1980, as amended at 46 FR 26290, May 12, 1981;
48 FR 41375, Sept. 15, 1983; 49 FR 6089, Feb. 17, 1984; 50 FR 42672,
Oct. 22, 1985)
16 CFR 2.8 Investigational hearings.
(a) Investigational hearings, as distinguished from hearings in
adjudicative proceedings, may be conducted in the course of any
investigation undertaken by the Commission, including rulemaking
proceedings under subpart B of part 1 of this chapter, inquiries
initiated for the purpose of determining whether or not a respondent is
complying with an order of the Commission or the manner in which decrees
in suits brought by the United States under the antitrust laws are being
carried out, the development of facts in cases referred by the courts to
the Commission as a master in chancery, and investigations made under
section 5 of the Export Trade Act.
(b) Investigational hearings shall be presided over by the
Commission, one or more of its members, or a duly designated
representative, for the purpose of hearing the testimony of witnesses
and receiving documents and other data relating to any subject under
investigation; and the term ''presiding official,'' as used in this
part, means and applies to the Commission or any of its members or
designated representative when so presiding and the ''Commission
investigator'' designated in a civil investigative demand for the giving
of oral testimony. Such hearings shall be stenographically reported and
a transcript thereof shall be made a part of the record of the
investigation.
(c) Unless otherwise ordered by the Commission, investigational
hearings shall not be public. In investigational hearings conducted
pursuant to a civil investigative demand for the giving of oral
testimony, the Commission investigators shall exclude from the hearing
room all other persons except the person being examined, his counsel,
the officer before whom the testimony is to be taken, and the
stenographer recording such testimony. A copy of the transcript shall
promptly be forwarded by the Commission investigator to the custodian
designated in 2.16.
(32 FR 8446, June 13, 1967, as amended at 45 FR 36342, May 29, 1980)
16 CFR 2.8A Withholding requested material.
(a) Any person withholding material responsive to an investigational
subpoena or civil investigative demand issued pursuant to 2.7, an
access order issued pursuant to 2.11, an order to file a report issued
pursuant to 2.12, or any other request for production of material
issued under this part, shall assert a claim of privilege or any similar
claim not later than the date set for the production of material. Such
person shall, if so directed in the subpoena, civil investigative demand
or other request for production, submit, together with such claim, a
schedule of the items withheld which states individually as to each such
item the type, specific subject matter, and date of the item; the
names, addresses, positions, and organizations of all authors and
recipients of the item; and the specific grounds for claiming that the
item is privileged.
(b) A person withholding material solely for reasons described in
2.8A(a) shall comply with the requirements of that subsection in lieu of
filing a motion to limit or quash compulsory process.
(Sec. 5, 38 Stat. 719 as amended (15 U.S.C. 45))
(44 FR 54042, Sept. 18, 1979, as amended at 45 FR 36342, May 29,
1980)
16 CFR 2.9 Rights of witnesses in investigations.
(a) Any person compelled to submit data to the Commission or to
testify in an investigational hearing shall be entitled to retain a copy
or, on payment of lawfully prescribed costs, procure a copy of any
document submitted by him and of his own testimony as stenographically
reported, except that in a nonpublic hearing the witness may for good
cause be limited to inspection of the official transcript of his
testimony. Where the investigational hearing has been conducted
pursuant to a civil investigative demand issued under section 20 of the
Federal Trade Commission Act, upon completion of transcription of the
testimony of the witness, the witness shall be offered an opportunity to
read the transcript of his testimony. Any changes in form or substance
which the witness desires to make shall be entered and identified upon
the transcript by the Commission investigator with a statement of the
reasons given by the witness for making such changes. The transcript
shall then be signed by the witness unless the witnesss cannot be found,
is ill, waives in writing his right to signature or refuses to sign. If
the transcript is not signed by the witness within thirty days of his
being afforded a reasonable opportunity to review it, the Commission
investigator shall take the actions prescribed by section
20(c)(12)(E)(ii) of the Federal Trade Commission Act.
(b) Any witness compelled to appear in person in an investigational
hearing may be accompanied, represented, and advised by counsel as
follows:
(1) Counsel for a witness may advise the witness, in confidence and
upon the initiative of either counsel or the witness, with respect to
any question asked of the witness. If the witness refuses to answer a
question, then counsel may briefly state on the record if he has advised
the witness not to answer the question and the legal grounds for such
refusal.
(2) Where it is claimed that the testimony or other evidence sought
from a witness is outside the scope of the investigation, or that the
witness is privileged to refuse to answer a question or to produce other
evidence, the witness or counsel for the witness may object on the
record to the question or requirement and may state briefly and
precisely the ground therefor. The witness and his counsel shall not
otherwise object to or refuse to answer any question, and they shall not
otherwise interrupt the oral examination.
(3) Any objections made under the rules in this part will be treated
as continuing objections and preserved throughout the further course of
the hearing without the necessity for repeating them as to any similar
line of inquiry. Cumulative objections are unnecessary. Repetition of
the grounds for any objection will not be allowed.
(4) Counsel for a witness may not, for any purpose or to any extent
not allowed by paragraphs (b) (1) and (2) of this section, interrupt the
examination of the witness by making any objections or statements on the
record. Petitions challenging the Commission's authority to conduct the
investigation or the sufficiency or legality of the subpoena or civil
investigative demand must have been addressed to the Commission in
advance of the hearing. Copies of such petitions may be filed with the
presiding official or Commission investigator as part of the record of
the investigation, but no arguments in support thereof will be allowed
at the hearing.
(5) Following completion of the examination of a witness, counsel for
the witness may on the record request the presiding official to permit
the witness to clarify any of his answers which may need clarification
in order that they may not be left equivocal or incomplete on the
record. The granting or denial of such request shall be within the sole
discretion of the presiding official.
(6) The presiding official shall take all necessary action to
regulate the course to the hearing to avoid delay and to prevent or
restrain disorderly, dilatory, obstructionist, or contumacious conduct,
or contemptuous language. Such official shall, for reasons stated on
the record, immediately report to the Commission any instances where an
attorney has refused to comply with his directions, or has been guilty
of disorderly, dilatory, obstructionist, or contumacious conduct, or
contemptuous language in the course of the hearing. The Commission,
acting pursuant to 4.1(e) of this chapter, will thereupon take such
further action, if any, as the circumstances warrant, including
suspension or disbarment of the attorney from further practice before
the Commission or exclusion from further participation in the particular
investigation.
(18 U.S.C. 6002, 6004)
(32 FR 8446, June 13, 1967, as amended at 45 FR 36343, May 29, 1980;
45 FR 39244, June 10, 1980; 46 FR 26290, May 12, 1981; 50 FR 53304,
Dec. 31, 1985)
16 CFR 2.10 Depositions.
In investigations other than those conducted under section 20 of the
Federal Trade Commission Act, the Commission may order testimony to be
taken by deposition at any stage of such investigation. Such
depositions may be taken before any person having power to administer
oaths who may be designated by the Commission. The testimony shall be
reduced to writing by the person taking the deposition, or under his
direction, and shall then be subscribed to by the deponent. Any person
may be compelled to appear and be deposed and to produce documentary
evidence in the same manner as witnesses may be compelled to appear and
testify and produce documentary evidence as provided in 2.7 through
2.9.
(45 FR 36343, May 29, 1980, as amended at 50 FR 53304, Dec. 31, 1985)
16 CFR 2.11 Orders requiring access.
(a) In investigations other than those conducted under section 20 of
the Federal Trade Commission Act, the Commission may issue an order
requiring any person, partnership or corporation being investigated to
grant access to files for the purpose of examination and the right to
copy any documentary evidence. The Directors, Deputy Directors and
Assistant Directors of the Bureaus of Competition and Economics, the
Director, Deputy Directors and Associate Directors of the Bureau of
Consumer Protection, the Regional Directors, and Assistant Regional
Directors of the Commission's regional offices, pursuant to delegation
of authority by the Commission, without power of redelegation, are
authorized, for good cause shown, to extend the time prescribed for
compliance with orders requiring access issued during the investigation
of any matter.
(b) Any petition to limit or quash an order requiring access shall be
filed with the Secretary of the Commission within twenty (20) days after
service of the order, or, if the date for compliance is less than twenty
(20) days after service of the order, then before the return date. Such
petition shall set forth all assertions of privilege or other factual
and legal objections to the order requiring access, including all
appropriate arguments, affidavits and other supporting documentation.
All petitions to limit or quash orders requiring access shall be ruled
upon by the Commission itself, but the above-designated Directors,
Deputy Directors, Assistant Directors, Associate Directors, Regional
Directors and Assistant Regional Directors are delegated, without power
of redelegation, the authority to rule upon motions for extensions of
time within which to file petitions to limit or quash orders requiring
access.
(c) The timely filing of any petition to limit or quash such an order
shall stay the requirement of compliance if the Commission has not ruled
upon the motion by the date of compliance. If it rules on or subsequent
to the date required for compliance and its ruling denies the petition
in whole or in part, the Commission shall specify a new date of
compliance.
(d) All petitions to limit or quash orders requiring access, and the
Commission's responses thereto, are part of the public records of the
Commission, except for information exempt from disclosure under 4.10(a)
of this chapter.
(46 FR 26290, May 12, 1981, and 48 FR 41375, Sept. 15, 1983)
16 CFR 2.12 Reports.
(a) In investigations other than those covered by section 20 of the
Federal Trade Commission Act the Commission may issue an order requiring
a person, partnership, or corporation to file a report or answers in
writing to specific questions relating to any matter under
investigation, study or survey, or under any of the Commission's
reporting programs.
(b) The Directors, Deputy Directors and Assistant Directors of the
Bureaus of Competition and Economics, the Director, Deputy Directors and
Associate Directors of the Bureau of Consumer Protection, and the
Regional Directors and Assistant Regional Directors of the Commission's
regional offices, pursuant to delegation of authority by the Commission,
without power of redelegation, are authorized, for good cause shown, to
extend the time prescribed for compliance with orders requiring reports
or answers to questions issued during the investigation, study or survey
of any matter or in connection with any of the Commission's reporting
programs.
(c) Any petition to limit or quash an order requiring a report or
answer to specific questions shall be filed with the Secretary of the
Commission within twenty (20) days after service of the order, or, if
the date for compliance is less than twenty (20) days after service of
the order, then before the return date. Such petition shall set forth
all assertions of privilege or other factual and legal objections to the
order requiring a report or answer to specific questions, including all
appropriate arguments, affidavits and other supporting documentation.
All petitions to limit or quash orders requiring reports or answers to
questions shall be ruled upon by the Commission itself, but the
above-designated Directors, Deputy Directors, Assistant Directors,
Associate Directors, Regional Directors and Assistant Regional Directors
are delegated, without power of redelegation, the authority to rule upon
motions for extensions of time within which to file petitions to limit
or quash orders requiring reports or answers to questions.
(d) Except as otherwise provided by the Commission, the timely filing
of any petition to limit or quash such an order shall stay the
requirement of return on the portion challenged if the Commission has
not ruled upon the petition by the return date. If it rules on or
subsequent to the return date and its ruling denies the petition in
whole or in part, the Commission shall specify a new return date.
(e) All petitions to limit or quash orders requiring a report or
answers to specific questions, and the Commission's responses thereto,
are part of the public records of the Commission, except for information
exempt from disclosure under 4.10(a) of this chapter.
(41 FR 54485, Dec. 14, 1976, and 45 FR 36343, May 29, 1980, as
amended at 46 FR 26290, May 12, 1981; 48 FR 41375, Sept. 15, 1983; 50
FR 53304, Dec. 31, 1985)
16 CFR 2.13 Noncompliance with compulsory processes.
(a) In cases of failure to comply with Commission compulsory
processes, appropriate action may be initiated by the Commission or the
Attorney General, including actions for enforcement, forfeiture, or
penalties or criminal actions.
(b) The General Counsel, pursuant to delegation of authority by the
Commission, without power of redelegation, is authorized:
(1) To institute, on behalf of the Commission, an enforcement
proceeding in connection with the failure or refusal of a person,
partnership, or corporation to comply with, or to obey, a subpoena, or
civil investigative demand if the return date or any extension thereof
has passed;
(2) To approve and have prepared and issued, in the name of the
Commission when deemed appropriate by the General Counsel, a notice of
default in connection with the failure of a person, partnership, or
corporation to timely file a report pursuant to section 6(b) of the
Federal Trade Commission Act, if the return date or any extension
thereof has passed;
(3) To institute, on behalf of the Commission, an enforcement
proceeding and to request, on behalf of the Commission, the institution,
when deemed appropriate by the General Counsel, of a civil action in
connection with the failure of a person, partnership, or corporation to
timely file a report pursuant to an order under section 6(b) of the
Federal Trade Commission Act, if the return date or any extension
thereof has passed; and
(4) To seek civil contempt in cases where a court order enforcing
compulsory process has been violated.
(41 FR 54485, Dec. 14, 1976, as amended at 45 FR 39244, June 10,
1980; 50 FR 53304, Dec. 31, 1985)
16 CFR 2.14 Disposition.
(a) When the facts disclosed by an investigation indicate that
corrective action is warranted, and the matter is not subject to a
consent settlement pursuant to Subpart C of this part, further
proceedings may be instituted pursuant to the provisions of part 3 of
this chapter.
(b) When the facts disclosed by an investigation indicate that
corrective action is not necessary or warranted in the public interest,
the investigational file will be closed. The matter may be further
investigated at any time if circumstances so warrant.
(c) The Commission has delegated to the Director, Deputy Directors,
and Assistant Directors of the Bureau of Competition, the Director,
Deputy Directors and Associate Directors of the Bureau of Consumer
Protection, and Regional Directors, without power of redelegation,
limited authority to close investigations.
(32 FR 8446, June 13, 1967, as amended at 42 FR 42195, Aug. 22, 1977;
48 FR 41375, Sept. 15, 1983; 50 FR 53304, Dec. 31, 1985)
16 CFR 2.15 Orders requiring witnesses to testify or provide other
information and granting immunity.
(a) The Bureau Director, Deputy Directors, and Assistant Directors in
the Bureaus of Competition and Economics, the Bureau Director, Deputy
Directors and Associate Directors of the Bureau of Consumer Protection,
Regional Directors and Assistant Regional Directors are hereby
authorized to request, through the Commission's liaison officer,
approval from the Attorney General for the issuance of an order
requiring a witness to testify or provide other information granting
immunity under title 18, section 6002, of the United States Code.
(b) The Commission retains the right to review the exercise of any of
the functions delegated under paragraph (a) of this section. Appeals to
the Commission from an order requiring a witness to testify or provide
other information will be entertained by the Commission only upon a
showing that a substantial question is involved, the determination of
which is essential to serve the interests of justice. Such appeals
shall be made on the record and shall be in the form of a brief not to
exceed fifteen (15) pages in length and shall be filed within five (5)
days after notice of the complained of action. Answer to any such
appeal may be filed within five (5) days after service of the appeal
brief. The appeal shall not operate to suspend the hearing unless
otherwise ordered by the presiding official or the Commission.
(18 U.S.C. 6002, 6004)
(37 FR 5016, Mar. 9, 1972, as amended at 48 FR 41375, Sept. 15, 1983)
16 CFR 2.16 Custodians.
(a) Designation. The Commission shall designate a custodian and one
or more deputy custodians for material to be delivered pursuant to
compulsory process in a investigation, a purpose of which is to
determine whether any person may have violated any provision of the laws
administered by the Commission. The custodian shall have the powers and
duties prescribed by section 21 of the FTC Act. Deputy custodians may
perform all of the duties assigned to custodians. The appropriate
Bureau Directors, Deputy Directors, Associate Directors in the Bureau of
Consumer Protection, Assistant Directors in the Bureau of Competition,
Regional Directors or Assistant Regional Directors shall take the action
required by section 21(b)(7) of the FTC Act if it is necessary to
replace a custodian or deputy custodian.
(b) Copying of custodial documents. The custodian designated
pursuant to section 21 of the Federal Trade Commission Act (subject to
the general supervision of the Executive Director) may, from among the
material submitted, select the material the copying of which is
necessary or appropriate for the official use of the Commission, and
shall determine, the number of copies of any such material that are to
be reproduced. Copies of material in the physical possession of the
custodian may be reproduced by or under the authority of an employee of
the Commission designated by the custodian.
(c) Material produced pursuant to the Federal Trade Commission Act,
while in the custody of the custodian, shall be for the official use of
the Commission in accordance with the Act; but such material shall upon
reasonable notice to the custodian be made available for examination by
the person who produced such material, or his duly authorized
representative, during regular office hours established for the
Commission.
(45 FR 36343, May 29, 1980, as amended at 46 FR 26291, May 12, 1981;
48 FR 41376, Sept. 15, 1983; 50 FR 53305, Dec. 31, 1985)
16 CFR 2.16 Subpart B -- (Reserved)
16 CFR 2.16 Subpart C -- Consent Order Procedure
16 CFR 2.31 Opportunity to submit a proposed consent order.
(a) Where time, the nature of the proceeding, and the public interest
permit, any individual, partnership, or corporation being investigated
shall be afforded the opportunity to submit through the operating Bureau
or Regional Office having responsibility in the matter a proposal for
disposition of the matter in the form of a consent order agreement
executed by the party being investigated and complying with the
requirements of 2.32, for consideration by the Commission in connection
with a proposed complaint submitted by the Commission's staff.
(b) After a complaint has been issued, the consent order procedure
described in this part will not be available except as provided in
3.25(b).
(40 FR 15235, Apr. 4, 1975)
16 CFR 2.32 Agreement.
Every agreement shall contain, in addition to an appropriate order,
either an admission of the proposed findings of fact and conclusions of
law submitted simultaneously by the Commission's staff or an admission
of all jurisdictional facts and an express waiver of the requirement
that the Commission's decision contain a statement of findings of fact
and conclusions of law. In addition, every agreement shall contain
waivers of further procedural steps and of all rights to seek judicial
review or otherwise to challenge or contest the validity of the order.
The agreement shall also contain provisions that the complaint may be
used in construing the terms of the order, and that no agreement,
understanding, representation, or interpretation not contained in the
order or the aforementioned agreement may be used to vary or to
contradict the terms of the order; that the order shall have the same
force and effect and may be altered, modified, or set aside in the same
manner provided by statute for other orders; that the order shall
become final upon service; that the agreement shall not become a part
of the public record unless and until it is accepted by the Commission;
and, if the agreement is accepted, that the Commission will place the
order contained therein on the public record for a period of sixty (60)
days for the receipt and consideration of comments or views from any
interested person; and that the Commission thereafter may either
withdraw its acceptance of the agreement and so notify the other party,
in which event it will take such other action as it may consider
appropriate, or issue and serve its complaint (in such form as the
circumstances may require) and decision, in disposition of the
proceeding. In addition, in appropriate circumstances the agreement may
contain a statement that the signing thereof is for settlement purposes
only and does not constitute an admission by any party that the law has
been violated as alleged in the complaint.
(42 FR 3300, Jan. 18, 1977, as amended at 50 FR 53305, Dec. 31, 1985)
16 CFR 2.33 Compliance procedure.
The Commission may in its discretion require that a proposed
agreement containing an order to cease and desist be accompanied by an
initial report signed by the respondent setting forth in precise detail
the manner in which the respondent will comply with the order when and
if entered. Such report will not become part of the public record
unless and until the accompanying agreement and order are accepted by
the Commission. At the time any such report is submitted a respondent
may request confidentiality for any portion thereof with a precise
showing of justification therefor, and the Commission with due regard to
statutory restrictions, its rules, and the public interest will act upon
such request.
(40 FR 15235, Apr. 4, 1975)
16 CFR 2.34 Disposition.
Upon receiving an executed agreement conforming with the requirements
of 2.32, the Commission may:
Accept it; reject it and issue its complaint; or take such other
action as it may deem appropriate. If an agreement is accepted, the
Commission will place the order contained therein and any initial report
of compliance submitted pursuant to 2.33 on the public record, and at
the same time, will make available an explanation of the provisions of
the order and the relief to be obtained thereby, and any other
information which it deems helpful in assisting interested persons to
understand the terms of the order. The Commission will publish the
agreement, order and explanation in the Federal Register. For a period
of sixty (60) days after placement of the order on the public record and
issuance of the statement, the Commission will receive and consider any
comments or views concerning the order that may be filed by any
interested person. Thereafter, the Commission may either withdraw its
acceptance of the agreement and so notify the other party, in which
event it will take such other action as it may consider appropriate, or
issue and serve its complaint (in such form as the circumstances may
require) and decision, in disposition of the proceeding.
(43 FR 51758, Nov. 7, 1978)
16 CFR 2.34 Subpart D -- Reports of Compliance
16 CFR 2.41 Reports of compliance.
(a) In every proceeding in which the Commission has issued an order,
pursuant to the provisions of section 5 of the Federal Trade Commission
Act or section 11 of the Clayton Act, as amended, and except as
otherwise specifically provided in any such order, each respondent named
in such order shall file with the Commission, within sixty (60) days
after service thereof, or within such other time as may be provided by
the order or the rules in this chapter, a report in writing, signed by
the respondent, setting forth in detail the manner and form of his
compliance with the order, and shall thereafter file with the Commission
such further signed, written reports of compliance as it may require.
Reports of compliance shall be under oath if so requested. Where the
order prohibits the use of a false advertisement of a food, drug,
device, or cosmetic which may be injurious to health because of results
from its use under the conditions prescribed in the advertisement, or
under such conditions as are customary or usual, or if the use of such
advertisement is with intent to defraud or mislead, or in any other case
where the circumstances so warrant, the order may provide for an interim
report stating whether and how respondents intend to comply to be filed
within ten (10) days after service of the order. When court review of
an order of the Commission is pending, the respondent shall file only
such reports of compliance as the court may require. Thereafter, the
time for filing report of compliance shall begin to run de novo from the
final judicial determination, except that if no petition for certiorari
has been filed following affirmance of the order of the Commission by a
court of appeals, the compliance report shall be due the day following
the date on which the time expires for the filing of such petition. The
Commission will review such reports of compliance and may advise each
respondent whether the actions set forth therein evidence compliance
with the Commission's order. The Commission may, however, institute
proceedings, including certification of facts to the Attorney General
pursuant to the provisions of section 5(1) of the Federal Trade
Commission Act (15 U.S.C. 45(1)) and section 11(1) of the Clayton Act,
as amended (15 U.S.C. 21(1)), to enforce compliance with an order,
without advising a respondent whether the actions set forth in a report
of compliance evidence compliance with the Commission's order or without
prior notice of any kind to a respondent.
(b) The Commission has delegated to the Director and Deputy Directors
of the Bureaus of Competition and Consumer Protection, without power of
redelegation, the authority to approve compliance reports, reject
compliance reports, and to close compliance investigations. This
delegation does not apply to compliance with orders involving section 7
of the Clayton Act, to any matter which has received previous Commission
consideration as to compliance or in which the Commission or any
Commissioner has expressed an interest, any matter proposed to be closed
by reason of expense of investigation or testing, or any matter
involving substantial questions as to the public interest, Commission
policy or statutory construction, in each of which type of case a report
with recommendation will be made to the Commission. The approvals,
rejections, and closings shall not be effective until the file relating
to the subject matter has been transmitted to the Secretary and he shall
have advised the Commission of the Bureau Director's or Deputy
Director's determination and, within five (5) working days after
receiving notice of the determination from the Secretary, no
Commissioner has directed that the matter be placed on a meeting agenda
or otherwise stayed for further consideration. Thereupon, the Secretary
shall enter upon the records of the Commission the determination of the
matter and take such other action as is required.
(c) The Commission has delegated to the Director, Deputy Directors,
and Assistant Directors of the Bureau of Competition and to the
Director, Deputy Directors, and Associate Directors of the Bureau of
Consumer Protection, and to the Regional Directors, the authority, for
good cause shown, to extend the time within which reports of compliance
with orders to cease and desist may be filed. It is to be noted,
however, that an extension of time within which a report of compliance
may be filed, or the filing of a report which does not evidence full
compliance with the order, does not in any circumstances suspend or
relieve a respondent from his obligation under the law with respect to
compliance with such order. An order of the Commission to cease and
desist becomes final on the date and under the conditions provided in
the Federal Trade Commission Act and the Clayton Act. Any person,
partnership or corporation against which an order to cease and desist
has been issued who is not in full compliance with such order on and
after the date provided in these statutes for the order to become final
is in violation of such order and is subject to an immediate action for
civil penalties. The authority under this paragraph may not be
redelegated, except that the Associate Director for Enforcement in the
Bureau of Consumer Protection and the Assistant Director for Compliance
in the Bureau of Competition may each name a designee under this
paragraph.
(d) Any respondent subject to a Commission order may request advice
from the Commission as to whether a proposed course of action, if
pursued by it, will constitute compliance with such order. The request
for advice should be submitted in writing to the Secretary of the
Commission and should include full and complete information regarding
the proposed course of action. On the basis of the facts submitted, as
well as other information available to the Commission, the Commission
will inform the respondent whether or not the proposed course of action,
if pursued, would constitute compliance with its order. A request
ordinarily will be considered inappropriate for such advice:
(1) Where the course of action is already being followed by the
requesting party;
(2) Where the same or substantially the same course of action is
under investigation or is or has been the subject of a current
proceeding, order, or decree initiated or obtained by the Commission or
another governmental agency; or
(3) Where the proposed course of action or its effects may be such
that an informed decision thereon cannot be made or could be made only
after extensive investigation, clinical study, testing or collateral
inquiry.
Furthermore, the filing of a request for advice under this paragraph
does not in any circumstances suspend or relieve a respondent from his
obligation under the law with respect to his compliance with the order.
He must in any event be in full compliance on and after the date the
order becomes final as prescribed by statute referred to in paragraph
(b) of this section. Advice to respondents under this paragraph will be
published by the Commission in the same manner and subject to the same
restrictions and considerations as advisory opinions under 1.4 of this
chapter.
(e) The Commission may at any time reconsider its approval of any
report of compliance or any advice given under this section and, where
the public interest requires, rescind or revoke its prior approval or
advice. In such event the respondent will be given notice of the
Commission's intent to revoke or rescind and will be given an
opportunity to submit its views to the Commission. The Commission will
not proceed against a respondent for violation of an order with respect
to any action which was taken in good faith reliance upon the
Commission's approval or advice under this section, where all relevant
facts were fully, completely, and accurately presented to the Commission
and where such action was promptly discontinued upon notification of
rescission or revocation of the Commission's approval.
(f) All applications for approval of proposed divestitures,
acquisitions, or similar transactions subject to Commission review under
outstanding orders, together with supporting materials, will be placed
on the public record as soon after they are received as circumstances
permit, except for information for which confidential classification has
been requested, with a showing of justification therefor, and which the
Commission, with due regard to statutory restrictions, its rules, and
the public interest, has determined should not be made public. Within
thirty (30) days after such requests and materials are placed on the
public record, any person may file formal written objections or comments
with the Secretary of the Commission. Such objections or comments shall
be placed on the public record except for information for which
confidentiality has been requested, with a showing of justification
therefor, and which the Commission with due regard to statutory
restrictions, its rules, and the public interest, has determined should
not be made public. Additionally, any communications, written or oral,
concerning such proposed transactions, received by any individual member
of the Commission, or by any employee involved in the decisional
process, will be placed on the public record immediately after their
receipt. In the case of an oral communication, the member or employee
shall immediately furnish the Commission with a memorandum setting forth
the full contents of such communication and the circumstances thereof,
and such memorandum will immediately be placed on the public record.
All responses to applications for approval of proposed divestitures,
acquisitions, or similar transactions subject to Commission review under
outstanding orders, together with a statement of supporting reasons,
will be published when made.
Editorial Note: For Federal Register citations affecting 2.41, see
the List of CFR Sections Affected in the Finding Aids section of this
volume.
16 CFR 2.41 Subpart E -- Requests to Reopen
16 CFR 2.51 Requests to reopen.
(a) Scope. Any person, partnership, or corporation subject to a
Commission decision containing a rule or order which has become
effective, or an order to cease and desist which has become final, may
file with the Secretary a request that the Commission reopen the
proceeding to consider whether the rule or order, including any
affirmative relief provision contained therein, should be altered,
modified, or set aside in whole or in part.
(b) Contents. A request under this section shall contain a
satisfactory showing that changed conditions of law or fact require the
rule or order to be altered, modified or set aside, in whole or in part
or that the public interest so requires. This requirement shall not be
deemed satisfied if a request is merely conclusory or otherwise fails to
set forth by affidavit(s) specific facts demonstrating in detail the
nature of the changed conditions and the reasons why these changed
conditions or the public interest require the requested modifications of
the rule of order. Each affidavit shall set forth facts that would be
admissible in evidence and shall show that the affiant is competent to
testify to the matters stated therein. All information and material
that the requester wishes the Commission to consider shall be contained
in the request at the time of filing.
(c) Opportunity for public comment. A request under this section
shall be placed on the public record except for material exempt from
public disclosure under rule 4.10(a). Unless the Commission determines
that earlier disposition is necessary, the request shall remain on the
public record for thirty (30) days after a press release on the request
is issued. Bureau Directors are authorized to publish a notice in the
Federal Register announcing the receipt of a request to reopen at their
discretion. The public is invited to comment on the request while it is
on the public record.
(d) Determination. After the period for public comments on a request
under this section has expired and no later than one hundred and twenty
(120) days after the date of the filing of the request, the Commission
shall determine whether the request complies with paragraph (b) of this
section and whether the proceeding shall be reopened and the rule or
order should be altered, modified, or set aside as requested. In doing
so, the Commission may, in its discretion, issue an order reopening the
proceeding and modifying the rule or order as requested, issue an order
to show cause pursuant to 3.72, or take such other action as is
appropriate: Provided, however, That any action under 3.72 or
otherwise shall be concluded within the specified 120-day period.
(Sec. 6(g), 38 Stat. 721 (15 U.S.C. 46(g)); 80 Stat. 383, as
amended, 81 Stat. 54 (5 U.S.C. 552))
(45 FR 36344, May 29, 1980, as amended at 46 FR 26291, May 12, 1981;
47 FR 33251, Aug. 2, 1982; 50 FR 53305, Dec. 31, 1985; 53 FR 40868,
Oct. 19, 1988)
16 CFR 2.51 PART 3 -- RULES OF PRACTICE FOR ADJUDICATIVE PROCEEDINGS
16 CFR 2.51 Subpart A -- Scope of Rules; Nature of Adjudicative
Proceedings
Sec.
3.1 Scope of the rules in this part.
3.2 Nature of adjudicative proceedings.
16 CFR 2.51 Subpart B -- Pleadings
3.11 Commencement of proceedings.
3.12 Answer.
3.13 Adjudicative hearing on issues arising in rulemaking proceedings
under the Fair Packaging and Labeling Act.
3.14 Intervention.
3.15 Amendments and supplemental pleadings.
16 CFR 2.51 Subpart C -- Prehearing Procedures; Motions;
Interlocutory Appeals; Summary Decisions
3.21 Prehearing procedures.
3.22 Motions.
3.23 Interlocutory appeals.
3.24 Summary decisions.
3.25 Consent agreement settlements.
16 CFR 2.51 Subpart D -- Discovery; Compulsory Process
3.31 General provisions.
3.32 Admissions.
3.33 Depositions.
3.34 Subpoenas.
3.35 Interrogatories to parties.
3.36 Applications for subpoenas for records of the Commission or
other governmental agency and for appearance of commission or other
government officials and employees.
3.37 Access for inspection and other purposes.
3.38 Motion for order compelling answer; sanctions.
3.38A Withholding requested material.
3.39 Orders requiring witnesses to testify or provide other
information and granting immunity.
3.40 Admissibility of evidence in advertising substantiation cases.
16 CFR 2.51 Subpart E -- Hearings
3.41 General rules.
3.42 Presiding officials.
3.43 Evidence.
3.44 Record.
3.45 In camera orders.
3.46 Proposed findings, conclusions, and order.
16 CFR 2.51 Subpart F -- Decision
3.51 Initial decision.
3.52 Appeal from initial decision.
3.53 Review of initial decision in absence of appeal.
3.54 Decision on appeal or review.
3.55 Reconsideration.
16 CFR 2.51 Subpart G -- (Reserved)
16 CFR 2.51 Subpart H -- Reopening of Proceedings
3.71 Authority.
3.72 Reopening.
16 CFR 2.51 Subpart I -- Recovery of Awards Under the Equal Access to
Justice Act in Commission Proceedings
3.81 General provisions.
3.82 Information required from applicants.
3.83 Procedures for considering applicants.
Authority: Sec. 6, 38 Stat. 721 (15 U.S.C. 46), unless otherwise
noted.
Source: 32 FR 8449, June 13, 1967, unless otherwise noted.
Editorial Note: Nomenclature changes affecting Part 3 appear at 50
FR 53305, Dec. 31, 1985.
16 CFR 2.51 Subpart A -- Scope of Rules; Nature of Adjudicative Proceedings
16 CFR 3.1 Scope of the rules in this part.
The rules in this part govern procedure in adjudicative proceedings.
It is the policy of the Commission that, to the extent practicable and
consistent with requirements of law, such proceedings shall be conducted
expeditiously. In the conduct of such proceedings the Administrative
Law Judge and counsel for all parties shall make every effort at each
state of a proceeding to avoid delay.
16 CFR 3.2 Nature of adjudicative proceedings.
Adjudicative proceedings are those formal proceedings conducted under
one or more of the statutes administered by the Commission which are
required by statute to be determined on the record after opportunity for
an agency hearing. The term includes hearings upon objections to orders
relating to the promulgation, amendment, or repeal of rules under
sections 4, 5 and 6 of the Fair Packaging and Labeling Act and
proceedings for the assessment of civil penalties pursuant to 1.94 of
this chapter. It does not include other proceedings such as
negotiations for the entry of consent orders; investigational hearings
as distinguished from proceedings after the issuance of a complaint;
requests for extensions of time to comply with final orders or other
proceedings involving compliance with final orders; proceedings for the
promulgation of industry guides or trade regulation rules; proceedings
for fixing quantity limits under section 2(a) of the Clayton Act;
investigations under section 5 of the Export Trade Act; rulemaking
proceedings under the Fair Packaging and Labeling Act up to the time
when the Commission determines under 1.26(g) of this chapter that
objections sufficient to warrant the holding of a public hearing have
been filed; or the promulgation of substantive rules and regulations,
determinations of classes of products exempted from statutory
requirements, the establishment of name guides, or inspections and
industry counseling, under sections 4(d) and 6(a) of the Wool Products
Labeling Act of 1939, sections 7, 8(b), and 8(c) of the Fur Products
Labeling Act, and sections 7(c), 7(d), and 12(b) of the Textile Fiber
Products Identification Act.
(45 FR 67319, Oct. 10, 1980)
16 CFR 3.2 Subpart B -- Pleadings
16 CFR 3.11 Commencement of proceedings.
(a) Complaint. Except as provided in 3.13, an adjudicative
proceeding is commenced when an affirmative vote is taken by the
Commission to issue a complaint.
(b) Form of complaint. The Commission's complaint shall contain the
following:
(1) Recital of the legal authority and jurisdiction for institution
of the proceeding, with specific designation of the statutory provisions
alleged to have been violated;
(2) A clear and concise factual statement sufficient to inform each
respondent with reasonable definiteness of the type of acts or practices
alleged to be in violation of the law;
(3) Where practical, a form of order which the Commission has reason
to believe should issue if the facts are found to be as alleged in the
complaint; and
(4) Notice of the time and place for hearing, the time to be at least
thirty (30) days after service of the complaint.
(c) Motion for more definite statement. Where the respondent makes a
reasonable showing that it cannot frame a responsive answer based on the
allegations contained in the complaint, the respondent may move for a
more definite statement of the charges against it before filing an
answer. Such a motion shall be filed within ten (10) days after service
of the complaint and shall point out the defects complained of and the
details desired.
(32 FR 8449, June 13, 1967, as amended at 43 FR 11978, Mar. 23, 1978;
50 FR 53305, Dec. 31, 1985)
16 CFR 3.12 Answer.
(a) Time for filing. A respondent shall have thirty (30) days after
service of the complaint within which to file an answer thereto:
Provided, however, That the filing of a motion for a more definite
statement of the charges shall alter this period of time as follows,
unless a different time is fixed by the Administrative Law Judge:
(1) If the motion is denied, the answer shall be filed within ten
(10) days after service of the order of denial or thirty (30) days after
service of the complaint, whichever is later; (2) if the motion is
granted, in whole or in part, the more definite statement of the charges
shall be filed within ten (10) days after service of the order granting
the motion and the answer shall be filed within ten (10) days after
service of the more definite statement of the charges.
(b) Content of answer. An answer shall conform to the following:
(1) If allegations of complaint are contested. An answer in which
the allegations of a complaint are contested shall contain:
(i) A concise statement of the facts constituting each ground of
defense;
(ii) Specific admission, denial, or explanation of each fact alleged
in the complaint or, if the respondent is without knowledge thereof, a
statement to that effect. Allegations of a complaint not thus answered
shall be deemed to have been admitted.
(2) If allegations of complaint are admitted. If the respondent
elects not to contest the allegations of fact set forth in the
complaint, his answer shall consist of a statement that he admits all of
the material allegations to be true. Such an answer shall constitute a
waiver of hearings as to the facts alleged in the complaint, and
together with the complaint will provide a record basis on which the
Administrative Law Judge shall file an initial decision containing
appropriate findings and conclusions and an appropriate order disposing
of the proceeding. In such an answer, the respondent may, however,
reserve the right to submit proposed findings and conclusions under
3.46 and the right to appeal the initial decision to the Commission
under 3.52.
(c) Default. Failure of the respondent to file an answer within the
time provided shall be deemed to constitute a waiver of the respondent's
right to appear and contest the allegations of the complaint and to
authorize the Administrative Law Judge, without further notice to the
respondent, to find the facts to be as alleged in the complaint and to
enter an initial decision containing such findings, appropriate
conclusions, and order.
(32 FR 8449, June 13, 1967, as amended at 50 FR 53305, Dec. 31, 1985)
16 CFR 3.13 Adjudicative hearing on issues arising in rulemaking
proceedings under the Fair Packaging and Labeling Act.
(a) Notice of hearing. When the Commission, acting under 1.26(g) of
this chapter, determines that objections which have been filed are
sufficient to warrant the holding of an adjudicative hearing in
rulemaking proceedings under the Fair Packaging and Labeling Act, or
when the Commission otherwise determines that the holding of such a
hearing would be in the public interest, a hearing will be held before
an Administrative Law Judge for the purpose of receiving evidence
relevant and material to the issues raised by such objections or other
issues specified by the Commission. In such case the Commission will
publish a notice in the Federal Register containing a statement of:
(1) The provisions of the rule or order to which objections have been
filed;
(2) The issues raised by the objections or the issues on which the
Commission wishes to receive evidence;
(3) The time and place for hearing, the time to be at least thirty
(30) days after publication of the notice; and
(4) The time within which, and the conditions under which, any person
who petitioned for issuance, amendment, or repeal of the rule or order,
or any person who filed objections sufficient to warrant the holding of
the hearing, or any other interested person, may file notice of
intention to participate in the proceeding.
(b) Parties. Any person who petitions for issuance, amendment, or
repeal of a rule or order, and any person who files objections
sufficient to warrant the holding of a hearing, and who files timely
notice of intention to participate, shall be regarded as a party and
shall be individually served with any pleadings filed in the proceeding.
Upon written application to the Administrative Law Judge and a showing
of good cause, any interested person may be designated by the
Administrative Law Judge as a party.
(32 FR 8449, June 13, 1967, as amended at 40 FR 33969, Aug. 13, 1975)
16 CFR 3.14 Intervention.
(a) Any individual, partnership, unincorporated association, or
corporation desiring to intervene in an adjudicative proceeding shall
make written application in the form of a motion setting forth the basis
therefor. Such application shall have attached to it a certificate
showing service thereof upon each party to the proceeding in accordance
with the provisions of 4.4(b) of this chapter. A similar certificate
shall be attached to the answer filed by any party, other than counsel
in support of the complaint, showing service of such answer upon the
applicant. The Administrative Law Judge or the Commission may by order
permit the intervention to such extent and upon such terms as are
provided by law or as otherwise may be deemed proper.
(b) In an adjudicative proceeding where the complaint states that
divestiture relief is contemplated, the labor organization(s)
representing employees of the respondent(s) may intervene as a matter of
right. Applications for such intervention are to be made in accordance
with the procedures set forth in paragraph (a) of this section and must
be filed within 60 days of the issuance of the complaint. Intervention
as a matter of right shall be limited to the issue of the effect, if
any, of proposed remedies on employment, with full rights of
participation in the proceeding concerning this issue. This paragraph
does not affect a labor organization's ability to petition for leave to
intervene pursuant to 3.14(a).
(32 FR 8449, June 13, 1967, as amended at 46 FR 20979, Apr. 8, 1981)
16 CFR 3.15 Amendments and supplemental pleadings.
(a) Amendments -- (1) By leave. If and whenever determination of a
controversy on the merits will be facilitated thereby, the
Administrative Law Judge may, upon such conditions as are necessary to
avoid prejudicing the public interest and the rights of the parties,
allow appropriate amendments to pleadings or notice of hearing:
Provided, however, That a motion for amendment of a complaint or notice
may be allowed by the Administrative Law Judge only if the amendment is
reasonably within the scope of the original complaint or notice.
Motions for other amendments of complaints or notices shall be certified
to the Commission.
(2) Conformance to evidence. When issues not raised by the pleadings
or notice of hearing but reasonably within the scope of the original
complaint or notice of hearing are tried by express or implied consent
of the parties, they shall be treated in all respects as if they had
been raised in the pleadings or notice of hearing; and such amendments
of the pleadings or notice as may be necessary to make them conform to
the evidence and to raise such issues shall be allowed at any time.
(b) Supplemental pleadings. The Administrative Law Judge may, upon
reasonable notice and such terms as are just, permit service of a
supplemental pleading or notice setting forth transactions, occurrences,
or events which have happened since the date of the pleading or notice
sought to be supplemented and which are relevant to any of the issues
involved.
16 CFR 3.15 Subpart C -- Prehearing Procedures; Motions; Interlocutory Appeals; Summary Decisions
16 CFR 3.21 Prehearing procedures.
(a) Nonbinding statements. Not later than ten days after the answer
is filed by the last answering respondent, complaint counsel shall file
a nonbinding statement setting forth in detail the theory of the case,
the issues to be tried, and what complaint counsel expect their evidence
to prove. Not later than ten days after complaint counsel's statement
is served, each respondent shall file a nonbinding statement setting
forth in detail the respondent's theory of the defense, the issues to be
tried, and what the respondent expects its evidence to prove. Such
statements may be modified upon completion of discovery or at such other
times as the Administrative Law Judge may direct.
(b) Scheduling conference. Not later than ten days after all
respondents have filed the nonbinding statement required by paragraph
(a) of this section, the Administrative Law Judge shall hold a
scheduling conference. At the scheduling conference, counsel for the
parties shall be prepared to address their factual and legal theories,
potential stipulations of law, fact, or admissibility of evidence, a
schedule of proceedings, possible limitations on discovery, and other
possible agreements or steps that may aid in the orderly and expeditious
disposition of the proceeding.
(c) Prehearing scheduling order. Not later than fourteen days after
the scheduling conference, the Administrative Law Judge shall enter an
order that sets forth the results of the conference and establishes a
schedule of proceedings, including a plan of discovery and dates for the
submission and hearing of motions. The schedule shall provide for the
commencement of the evidentiary hearings within six months after entry
of the order, unless the Administrative Law Judge determines that a
later date is necessary because of the complexity of the case or
circumstances beyond the conrol of the parties. The Administrative Law
Judge may modify this order for good casue shown.
(d) Additional prehearing conferences and orders. The Administrative
Law Judge may hold additional prehearing conferences or enter additional
orders for the purpose of aiding in the orderly and expeditious
disposition of a proceeding.
(e) Public access and reporting. Prehearing conferences shall be
public unless the Administrative Law Judge determines in his or her
discretion that the conference (or any part thereof) shall be closed to
the public. The Administrative Law Judge shall have discretion to
determine whether a prehearing conference shall be stenographically
reported.
(50 FR 41487, Oct. 11, 1985)
16 CFR 3.22 Motions.
(a) Presentation and disposition. During the time a proceeding is
before an Administrative Law Judge, all motions therein, except those
filed under 3.42(g) or 4.17, shall be addressed to the Administrative
Law Judge, and, if within his authority, shall be ruled upon by him.
Any motion upon which the Administrative Law Judge has no authority to
rule shall be certified by him to the Commission, with his
recommendation where he deems it appropriate. Such recommendation may
contain a proposed disposition of the motion or other relevant comments
or observations. Where the Commission believes that a recommendation or
an amplification thereupon would assist it in its deliberations, it may
order the Administrative Law Judge to file a recommendation. If the
Administrative Law Judge includes in any ruling or recommendation
information that has been granted in camera status pursuant to 3.45(b),
the Judge shall file two versions of the ruling or recommendation. A
complete version shall be marked ''In Camera'' on the first page and
shall be served upon the parties. The complete version will be placed
in the in camera record of the proceeding. An expurgated version, to be
filed within five days after the filing of the complete version, shall
omit the in camera information that appears in the complete version,
shall be marked ''Public Record'' on the first page, shall be served
upon the parties, and shall be included in the public record of the
proceeding. All written motions shall be filed with the Secretary of
the Commission, and all motions addressed to the Commission shall be in
writing.
(b) Content. All written motions shall state the particular order,
ruling, or action desired and the grounds therefor. If a party includes
in a motion information that has been granted in camera status pursuant
to 3.45(b), the party shall file two versions of the motion in
accordance with the procedures set forth in 3.45(e). The time period
specified by 3.22(c) within which an opposing party may file an answer
will begin to run upon service on that opposing party of the in camera
version of a motion.
(c) Answers. Within ten (10) days after service of any written
motion, or within such longer or shorter time as may be designated by
the Administrative Law Judge or the Commission, the opposing party shall
answer or shall be deemed to have consented to the granting of the
relief asked for in the motion. If an opposing party includes in an
answer information that has been granted in camera status pursuant to
3.45(b), the opposing party shall file two versions of the answer in
accordance with the procedures set forth in 3.45(e). The moving party
shall have no right to reply, except as permitted by the Administrative
Law Judge or the Commission.
(d) Motions for extensions. As a matter of discretion, the
Administrative Law Judge or the Commission may waive the requirements of
this section as to motions for extensions of time, and may rule upon
such motions ex parte.
(e) Rulings on motions for dismissal. When a motion to dismiss a
complaint or for other relief is granted with the result that the
proceeding before the Administrative Law Judge is terminated, the
Administrative Law Judge shall file an initial decision in accordance
with the provisions of 3.51. If such a motion is granted as to all
charges of the complaint in regard to some, but not all, of the
respondents, or is granted as to any part of the charges in regard to
any or all of the respondents, the Administrative Law Judge shall enter
his ruling on the record, in accordance with the procedures set forth in
paragraph (a) of this section, and take it into account in his initial
decision. When a motion to dismiss is made at the close of the evidence
offered in support of the complaint based upon an alleged failure to
establish a prima facie case, the Administrative Law Judge may, if he so
elects, defer ruling thereon until the close of the case for the
reception of evidence.
(f) Statement. Each motion to quash filed pursuant to Rule 3.34(c)
or 3.37(b), each motion to compel or to determine sufficiency pursuant
to Rule 3.38(a), each motion for sanctions pursuant to Rule 3.38(b), and
each motion for enforcement pursuant to Rule 3.38(c), shall be
accompanied by a signed statement representing that counsel for the
moving party has conferred with opposing counsel in an effort in good
faith to resolve by agreement the issues raised by the motion and has
been unable to reach such an agreement. If some of the matters in
controversy have been resolved by agreement, the statement shall specify
the matters so resolved and the matters remaining unresolved. The
statement shall recite the date, time, and place of each such conference
between counsel, and the names of all parties participating in each such
conference. Unless otherwise ordered by the Administrative Law Judge,
the statement required by this rule must be filed only with the first
motion concerning compliance with the discovery demand at issue.
(32 FR 8449, June 13, 1967, as amended at 50 FR 42672, Oct. 22, 1985;
52 FR 22293, June 11, 1987)
16 CFR 3.23 Interlocutory appeals.
(a) Appeals without a determination by the Administrative Law Judge.
The Commission may, in its discretion, entertain interlocutory appeals
where a ruling of the Administrative Law Judge:
(1) Requires the disclosure of records of the Commission or another
governmental agency or the appearance of an official or employee of the
Commission or another governmental agency pursuant to 3.36, if such
appeal is based solely on a claim of privilege: Provided, that The
Administrative Law Judge shall stay until further order of the
Commission the effectiveness of any ruling, whether or not appeal is
sought, that requires the disclosure of nonpublic Commission minutes,
Commissioner circulations, or similar documents prepared by the
Commission, individual Commissioner, or the Office of the General
Counsel;
(2) Suspends an attorney from participation in a particular
proceeding pursuant to 3.42(d); or
(3) Grants or denies an application for intervention pursuant to the
provisions of 3.14.
Appeal from such rulings may be sought by filing with the Commission
an application for review, not to exceed fifteen (15) pages exclusive of
those attachments required below, within five (5) days after notice of
the Administrative Law Judge's ruling. Answer thereto may be filed
within five (5) days after service of the application for review. The
application for review should specify the person or party taking the
appeal; should attach the ruling or part thereof from which appeal is
being taken and any other portions of the record on which the moving
party relies; and should specify under which provisions hereof review
is being sought. The Commission upon its own motion may enter an order
staying the return date of an order issued by the Administrative Law
Judge pursuant to 3.36 or placing the matter on the Commission's docket
for review. Any order placing the matter on the Commission's docket for
review will set forth the scope of the review and the issues which will
be considered and will make provision for the filing of briefs if deemed
appropriate by the Commission.
(b) Appeals upon a determination by the Administrative Law Judge.
Except as provided in paragraph (a) of this section, applications for
review of a ruling by the Administrative Law Judge may be allowed only
upon request made to the Adminstrative Law Judge and a determination by
the Administrative Law Judge in writing, with justification in support
thereof, that the ruling involves a controlling question of law or
policy as to which there is substantial ground for difference of opinion
and that an immediate appeal from the ruling may materially advance the
ultimate termination of the litigation or subsequent review will be an
inadequate remedy. Applications for review in writing may be filed, not
to exceed fifteen (15) pages exclusive of those attachments required
below, within five (5) days after notice of the Administrative Law
Judge's determination. Additionally, the moving party is required to
attach the ruling or part thereof from which appeal is being taken and
any other portions of the record on which the moving party is relying.
Answer thereto may be filed within five (5) days after service of the
application for review. The Commission may thereupon, in its
discretion, permit an appeal. Commission review, if permitted, will be
confined to the application for review and answer thereto, without oral
argument or further briefs, unless otherwise ordered by the Commission.
(c) Proceedings not stayed. Application for review and appeal
hereunder shall not stay proceedings before the Administrative Law Judge
unless the Judge or the Commission shall so order.
(37 FR 5608, Mar. 17, 1972, as amended at 42 FR 31591, June 22, 1977;
42 FR 33025, June 29, 1977; 43 FR 56902 Dec. 5, 1978; 50 FR 53305,
Dec. 31, 1985)
16 CFR 3.24 Summary decisions.
(a) Procedure. (1) Any party to an adjudicatory proceeding may move
with or without supporting affidavits for a summary decision in the
party's favor upon all or any part of the issues being adjudicated.
Counsel in support of the complaint may so move at any time after thirty
(30) days following issuance of the complaint and any party respondent
may so move at any time after issuance of the complaint. Any such
motion by any party, however, must be filed at least twenty (20) days
before the date fixed for the adjudicatory hearing.
(2) Any other party may, within ten (10) days after service of the
motion, file opposing affidavits. The Administrative Law Judge may, in
his discretion, set the matter for oral argument and call for the
submission of briefs or memoranda. If a party includes in any such
brief or memorandum information that has been granted in camera status
pursuant to 3.45(b), the party shall file two versions of the document
in accordance with the procedures set forth in 3.45(e). The decision
sought by the moving party shall be rendered within thirty (30) days if
the pleadings and any depositions, answers to interrogatories,
admissions on file, and affidavits show that there is no genuine issue
as to any material fact and that the moving party is entitled to such
decision as a matter of law. Any such decision shall constitute the
initial decision of the Administrative Law Judge and shall accord with
the procedures set forth in 3.51(c). A summary decision, interlocutory
in character and in compliance with the procedures set forth in
3.51(c), may be rendered on the issue of liability alone although there
is a genuine issue as to the nature and extent of relief.
(3) Affidavits shall set forth such facts as would be admissible in
evidence and shall show affirmatively that the affiant is competent to
testify to the matters stated therein. The Administrative Law Judge may
permit affidavits to be supplemented or opposed by depositions, answers
to interrogatories, or further affidavits. When a motion for summary
decision is made and supported as provided in this rule, a party
opposing the motion may not rest upon the mere allegations or denials of
his pleading; his response, by affidavits or as otherwise provided in
this rule, must set forth specific facts showing that there is a genuine
issue of fact for trial. If no such response is filed, summary
decision, if appropriate, shall be rendered.
(4) Should it appear from the affidavits of a party opposing the
motion that he cannot, for reasons stated, present by affidavit facts
essential to justify his opposition, the Administrative Law Judge may
refuse the application for summary decision or may order a continuance
to permit affidavits to be obtained or depositions to be taken or
discovery to be had or make such other order as is appropriate and a
determination to that effect shall be made a matter of record.
(5) If on motion under this rule a summary decision is not rendered
upon the whole case or for all the relief asked and a trial is
necessary, the Administrative Law Judge shall make an order specifying
the facts that appear without substantial controversy and directing
further proceedings in the action. The facts so specified shall be
deemed established.
(b) Affidavits filed in bad faith. (1) Should it appear to the
satisfaction of the Administrative Law Judge at any time that any of the
affidavits presented pursuant to this rule are presented in bad faith,
or solely for the purpose of delay, or are patently frivolous, the
Administrative Law Judge shall enter a determination to that effect upon
the record.
(2) If upon consideration of all relevant facts attending the
submission of any affidavit covered by paragraph (b)(1) of this section,
the Administrative Law Judge concludes that action by him to suspend or
remove an attorney from the case is warranted, he shall take action as
specified in 3.42(d). If the Administrative Law Judge concludes, upon
consideration of all the relevant facts attending the submission of any
affidavit covered by paragraph (b) (1) of this section, that the matter
should be certified to the Commission for consideration of disciplinary
action against an attorney, including reprimand, suspension or
disbarment, the examiner shall certify the matter, with his findings and
recommendations, to the Commission for its consideration of disciplinary
action in the manner provided by the Commission's rules.
(35 FR 5007, Mar. 24, 1970, as amended at 50 FR 53305, Dec. 31, 1985;
52 FR 22293, June 11, 1987)
16 CFR 3.25 Consent agreement settlements.
(a) The Administrative Law Judge may, in his discretion and without
suspension of prehearing procedures, hold conferences for the purpose of
supervising negotiations for the settlement of the case, in whole or in
part, by way of consent agreement.
(b) A proposal to settle a matter in adjudication by consent
agreement shall be submitted by way of a motion to withdraw the matter
from adjudication for the purpose of considering the proposed consent
agreement. Any such motion shall be accompanied by a proposed consent
agreement containing a proposed order executed by one or more
respondents and conforming to the requirements of 2.32; the proposed
consent agreement itself, however, shall not be placed on the public
record unless and until it is accepted by the Commission as provided
herein. If the proposed consent agreement affects only some of the
respondents or resolves only some of the charges in adjudication, the
motion required by this subsection shall so state and shall specify the
portions of the matter that the proposal would resolve.
(c) If the proposed consent agreement accompanying the motion has
also been executed by complaint counsel, including the appropriate
Bureau Director, the Secretary shall issue an order withdrawing from
adjudication those portions of the matter that the proposal would
resolve and all proceedings before the Administrative Law Judge shall be
stayed with respect to such portions, pending a determination by the
Commission pursuant to paragraph (f) of this section.
(d) If the proposed consent agreement accompanying the motion has not
been executed by complaint counsel, the Administrative Law Judge may
certify the motion and agreement to the Commission together with his
recommendation if he determines, in writing, that there is a likelihood
of settlement. The filing of a motion under this subsection and
certification thereof to the Commission shall not stay proceedings
before the Administrative Law Judge unless the Administrative Law Judge
or the Commission shall so order. Upon certification of a motion
pursuant to this subsection, the Commission may, if it is satisfied that
there is a likelihood of settlement, issue an order withdrawing from
adjudication those portions of the matter that the proposal would
resolve, for the purpose of considering the proposed consent agreement.
(e) The Commission will treat those portions of a matter withdrawn
from adjudication pursuant to paragraph (c) or (d) of this section as
being in a nonadjudicative status. Portions not so withdrawn shall
remain in an adjudicative status.
(f) After the matter has been withdrawn from adjudication, in whole
or in part, the Commission may: (1) Accept the proposed consent
agreement, (2) reject it and return to adjudication for further
proceedings any portion of the matter previously withdrawn from
adjudication, or (3) take such other action as it may deem appropriate.
If a proposed consent agreement is accepted, the Commission will place
it on the public record, together with any initial report of compliance
submitted pursuant to 2.33, and at the same time, will make available
an explanation of the provisions of the order and the relief to be
obtained thereby, and any other information which it deems helpful in
assisting interested persons to understand the terms of the order. The
Commission will publish the agreement, order, and explanation in the
Federal Register. For a period of sixty (60) days after placement of
the order on the public record and issuance of the statement, the
Commission will receive and consider any comments concerning the order
that may be filed by any interested person. Thereafter, the Commission
may either withdraw its acceptance of the agreement and so notify the
parties, in which event it will return the affected portions of the
matter to adjudication for further proceedings or take such other action
as it may consider appropriate, or issue and serve its decision.
(g) This rule will not preclude the settlement of the case by regular
adjudicatory process through the filing of an admission answer or
submission of the case to the Administrative Law Judge on a stipulation
of facts and an agreed order.
(40 FR 15236, Apr. 4, 1975, as amended at 42 FR 39659, Aug. 5, 1977;
43 FR 51758, Nov. 7, 1978; 50 FR 53305, Dec. 31, 1985; 54 FR 18885,
May 3, 1989)
16 CFR 3.25 Subpart D -- Discovery; Compulsory Process
16 CFR 3.31 General provisions.
(a) Discovery methods. Parties may obtain discovery by one or more
of the following methods: Depositions upon oral examination or written
questions; written interrogatories; production of documents or things
for inspection and other purposes; and requests for admission. Unless
the Administrative Law Judge orders otherwise, the frequency or sequence
of these methods is not limited.
(b) Scope of discovery. Unless otherwise limited by order of the
Administrative Law Judge or the Commission in accordance with these
rules, the scope of discovery is as follows:
(1) In general. The Administrative Law Judge may authorize discovery
upon a satisfactory showing that the requested discovery may reasonably
be expected to yield information relevant to the allegations of the
complaint, to the proposed relief, or to the defenses of any respondent.
Such information may include the existence, description, nature,
custody, condition and location of any books, documents, or other
tangible things and the identity and location of persons having any
knowledge of any discoverable matter. It shall not be an adequate
ground for denying such authorization that the information sought will
be inadmissible at the hearing if the information sought appears
reasonably calculated to lead to the discovery of admissible evidence.
(2) Privilege. Authorization for discovery may be denied or limited,
or a protective order may be entered, to preserve the privilege of a
witness, person, or governmental agency as governed by the Constitution,
any applicable act of Congress, or the principles of the common law as
they may be interpreted by the Commission in the light of reason and
experience.
(3) Hearing preparation: Materials. Subject to the provisions of
paragraph (b)(4) of this section, a party may obtain discovery of
documents and tangible things otherwise discoverable under paragraph
(b)(1) of this section and prepared in anticipation of litigation or for
hearing by or for another party or by or for that other party's
representative (including the party's attorney, consultant, or agent)
only upon a showing that the party seeking discovery has substantial
need of the materials in the preparation of its case and that the party
is unable without undue hardship to obtain the substantial equivalent of
the materials by other means. In ordering discovery of such materials
when the required showing has been made, the Administrative Law Judge
shall protect against disclosure of the mental impressions, conclusions,
opinions, or legal theories of an attorney or other representative of a
party.
(4) Hearing preparation: Experts. (i) Discovery of facts known and
opinions held by experts, otherwise discoverable under the provisions of
paragraph (b)(1) of this section and acquired or developed in
anticipation of litigation or for hearing, may be obtained only as
follows:
(A) A party may through interrogatories require any other party to
identify each person whom the other party expects to call as an expert
witness at hearing, to state the subject matter on which the expert is
expected to testify, and to state the substance of the facts and
opinions to which the expert is expected to testify and a summary of the
grounds for each opinion.
(B) Upon motion, the Administrative Law Judge may order further
discovery by other means, subject to such restrictions as to scope as
the Administrative Law Judge may deem appropriate.
(ii) A party may discover facts known or opinions held by an expert
who has been retained or specially employed by another party in
anticipation of litigation or preparation for hearing and who is not
expected to be called as a witness at hearing, only upon a showing of
exceptional circumstances under which it is impracticable for the party
seeking discovery to obtain facts or opinions on the same subject by
other means.
(iii) The Administrative Law Judge may require as a condition of
discovery that the party seeking discovery pay the expert a reasonable
fee, but not more than the maximum specified in 5 U.S.C. 3109 unless the
parties have stipulated to a higher amount, for time spent in responding
to discovery under paragraphs (b)(4)(i)(B) and (b)(4)(ii) of this
section.
(c) Protective orders. (1) The Administrative Law Judge may deny
discovery or make any order which justice requires to protect a party or
other person from annoyance, embarrassment, oppression, or undue burden
or expense, or to prevent undue delay in the proceeding.
(2) (Reserved)
(d) Stipulations. When approved by the Administrative Law Judge, the
parties may by written stipulation (1) provide that depositions may be
taken before any person, at any time or place, upon any notice, and in
any manner and when so taken may be used like other depositions, and (2)
modify the procedures provided by these rules for other methods of
discovery.
(e) Rulings on applications for compulsory process. Applications for
authorization to take depositions pursuant to the provisions of 3.33,
applications for the issuance of subpoenas pursuant to the provisions of
3.34 or of offers pursuant to the provisions of 3.37 (other than as
provided in 3.36), and applications for authorization to serve
interrogatories pursuant to the provisions of 3.35 may be made ex
parte, and, if so made, such applications and rulings thereon shall
remain ex parte unless otherwise ordered by the Administrative Law Judge
or the Commission. Such applications, and motions for protective orders
shall be ruled upon by the Administrative Law Judge or, in the event the
Administrative Law Judge is not available, by the Chief Administrative
Law Judge or such other Administrative Law Judge as the Chief
Administrative Law Judge may designate.
(43 FR 56864, Dec. 4, 1978, as amended at 50 FR 53305, Dec. 31, 1985)
16 CFR 3.32 Admissions.
(a) At any time after thirty (30) days after issuance of compliant,
or after publication of notice of an adjudicative hearing in a
rulemaking proceeding under 3.13, any party may serve on any other
party a written request for admission of the truth of any matters
relevant to the pending proceeding set forth in the request that relate
to statements or opinions of fact or of the application of law to fact,
including the genuineness of any documents described in the request.
Copies of documents shall be served with the request unless they have
been or are otherwise furnished or are known to be, and in the request
are stated as being, in the possession of the other party. Each matter
of which an admission is requested shall be separately set forth. A
copy of the request shall be filed with the Secretary.
(b) The matter is admitted unless, within ten (10) days after service
of the request, or within such shorter or longer time as the
Administrative Law Judge may allow, the party to whom the request is
directed serves upon the party requesting the admission, with a copy
filed with the Secretary, a sworn written answer or objection addressed
to the matter. If objection is made, the reasons therefor shall be
stated. The answer shall specifically deny the matter or set forth in
detail the reasons why the answering party cannot truthfully admit or
deny the matter. A denial shall fairly meet the substance of the
requested admission, and when good faith requires that a party qualify
its answer or deny only a part of the matter of which an admission is
requested, the party shall specify so much of it as is true and qualify
or deny the remainder. An answering party may not give lack of
information or knowledge as a reason for failure to admit or deny unless
the party states that it has made reasonable inquiry and that the
information known to or readily obtainable by the party is insufficient
to enable it to admit or deny. A party who considers that a matter of
which an admission has been requested presents a genuine issue for trial
may not, on that ground alone, object to the request; the party may
deny the matter or set fourth reasons why the party cannot admit or deny
it.
(c) Any matter admitted under this rule is conclusively established
unless the Administrative Law Judge on motion permits withdrawal or
amendment of the admission. The Administrative Law Judge may permit
withdrawal or amendment when the presentation of the merits of the
proceeding will be subserved thereby and the party who obtained the
admission fails to satisfy the Administrative Law Judge that withdrawal
or amendment will prejudice him in maintaining his action or defense on
the merits. Any admission made by a party under this rule is for the
purpose of the pending proceeding only and is not an admission by him
for any other purpose nor may it be used against him in any other
proceeding.
(43 FR 56865, Dec. 4, 1978, as amended at 50 FR 53305, Dec. 31, 1985)
16 CFR 3.33 Depositions.
(a) In general. Any party may request the Administrative Law Judge
to order the taking of a deposition or depositions of a named person or
of a person or persons described with reasonable particularity. Such an
order may be issued upon a satisfactory showing that the deposition or
depositions may reasonably be expected to yield any information within
the scope of discovery under 3.31(b)(1). Such an order may also be
issued to preserve relevant evidence upon a showing that there is
substantial reason to believe that such evidence would not otherwise be
available for presentation at the hearing. Depositions may be taken
before any person having power to administer oaths, either under the law
of the United States or of the state or other place in which the
deposition is taken, who may be designated by the party seeking the
deposition, provided that such person shall have no interest in the
outcome of the proceeding. If such an order is issued, the party
seeking the deposition shall serve upon each person whose deposition is
sought and upon each party to the proceeding reasonable notice in
writing of the time and place at which it will be taken, and the name
and address of each person or persons to be examined, if known, and if
the name is not known, a description sufficient to identify them.
(b) Form of application. Any party desiring to take a deposition or
depositions shall make application in writing to the Administrative Law
Judge making the showing required by paragraph (a) of this section and
including, as appropriate, any applications or motions for subpoenas or
other orders under 3.34 or 3.36.
(c) Notice to corporation or other organization. A party may in a
request for authorization of a deposition and in a subpoena ad
testificandum name as the deponent a public or private corporation,
partnership, association, governmental agency other than the Federal
Trade Commission, or any bureau or regional office of the Federal Trade
Commission, and describe with reasonable particularity the matters on
which examination is requested. If such deposition is ordered and
subpoena issued, the organization so named shall designate one or more
officers, directors, or managing agents, or other persons who consent to
testify on its behalf, and may set forth, for each person designated,
the matters on which he will testify. A subpoena shall advise a
non-party organization of its duty to make such a designation. The
persons so designated shall testify as to matters known or reasonably
available to the organization. This subsection does not preclude taking
a deposition by any other procedure authorized in these rules.
(d) Taking of deposition. Each deponent shall be duly sworn, and any
party shall have the right to question him. Objections to questions or
to evidence presented shall be in short form, stating the grounds of
objections relied upon. The questions propounded and the answers
thereto, together with all objections made, shall be recorded and
certified by the officer. Thereafter, upon payment of the charges
therefor, the officer shall furnish a copy of the deposition to the
deponent and to any party.
(e) Depositions upon written questions. A party desiring to take a
deposition upon written questions shall, upon order of the
Administrative Law Judge, serve them upon every other party with a
notice stating:
(1) The name and address of the person who is to answer them, and (2)
the name or descriptive title and address of the officer before whom the
deposition is to be taken. A deposition upon written questions may be
taken of a public or private corporation, partnership, association,
governmental agency other than the Federal Trade Commission, or any
bureau or regional office of the Federal Trade Commission in accordance
with the provisions of Rule 3.33(c). Within 30 days after the notice
and written questions are served, any other party may serve cross
questions upon all other parties. Within 10 days after being served
with cross questions, the party taking the deposition may serve redirect
questions upon all other parties. Within 10 days after being served
with redirect questions, any other party may serve recross questions
upon all other parties. The content of any question shall not be
disclosed to the deponent prior to the taking of the deposition. A copy
of the notice and copies of all questions served shall be delivered by
the party taking the deposition to the officer designated in the notice,
who shall proceed promptly to take the testimony of the deponent in
response to the questions and to prepare, certify, and file or mail the
deposition, attaching thereto the copy of the notice and the questions
received by him. When the deposition is filed the party taking it shall
promptly give notice thereof to all other parties.
(f) Correction of deposition. A deposition may be corrected, as to
form or substance, in the manner provided by 3.44(b). Any such
deposition shall, in addition to the other required procedures, be read
to or by the deponent and signed by him, unless the parties by
stipulation waive the signing or the deponent is unavailable or cannot
be found or refuses to sign. If the deposition is not signed by the
deponent within 30 days of its submission or attempted submission, the
officer shall sign it and certify that the signing has been waived or
that the deponent is unavailable or that the deponent has refused to
sign, as the case may be, together with the reason for the refusal to
sign, if any has been given. The deposition may then be used as though
signed unless, on a motion to suppress under Rule 3.33(g)(3)(iv), the
Administrative Law Judge determines that the reasons given for the
refusal to sign require rejection of the deposition in whole or in part.
In addition to and not in lieu of the procedure for formal correction
of the deposition, the deponent may enter in the record at the time of
signing a list of objections to the transcription of his remarks,
stating with specificity the alleged errors in the transcript.
(g)(1) Use of depositions in hearings. At the hearing on the
complaint or upon a motion, any part or all of a deposition, so far as
admissible under the rules of evidence applied as though the witness
were then present and testifying, may be used against any party who was
present or represented at the taking of the deposition or who had
reasonable notice thereof, in accordance with any of the following
provisions:
(i) Any deposition may be used for the purpose of contradicting or
impeaching the testimony of deponent as a witness.
(ii) The deposition of a party or of anyone who at the time of taking
the deposition was an officer, director, or managing agent, or a person
designated to testify on behalf of a public or private corporation,
partnership or association which is a party, or of an official or
employee (other than a special employee) of the Commission, may be used
by an adverse party for any purpose.
(iii) A deposition may be used by any party for any purpose if the
Administrative Law Judge finds:
(A) That the deponent is dead; or (B) that the deponent is out of
the United States or is located at such a distance that his attendance
would be impractical, unless it appears that the absence of the deponent
was procured by the party offering the deposition; or (C) that the
deponent is unable to attend or testify because of age, sickness,
infirmity, or imprisonment; or (D) that the party offering the
deposition has been unable to procure the attendance of the deponent by
subpoena; or (E) that such exceptional circumstances exist as to make
it desirable, in the interest of justice and with due regard to the
importance of presenting the testimony of witnesses orally in open
hearing, to allow the deposition to be used.
(iv) If only part of a deposition is offered in evidence by a party,
any other party may introduce any other part which ought in fairness to
be considered with the part introduced.
(2) Objections to admissibility. Subject to the provisions of
paragraph (g)(3) of this section, objection may be made at the hearing
to receiving in evidence any deposition or part thereof for any reason
which would require the exclusion of the evidence if the witness were
then present and testifying.
(3) Effect of errors and irregularities in depositions -- (i) As to
notice. All errors and irregularities in the notice for taking a
deposition are waived unless written objection is promptly served upon
the party giving the notice.
(ii) As to disqualification of officer. Objection to taking a
deposition because of disqualification of the officer before whom it is
to be taken is waived unless made before the taking of the deposition
begins or as soon thereafter as the disqualification becomes known or
could be discovered with reasonable diligence.
(iii) As to taking of deposition. (A) Objections to the competency
of a witness or to the competency, relevancy, or materiality of
testimony are not waived by failure to make them before or during the
taking of the deposition, unless the ground of the objection is one
which might have been obviated or removed if presented at that time.
(B) Errors and irregularities occurring at the oral examination in
the manner of taking the deposition, in the form of the questions or
answers, in the oath or affirmation, or in the conduct of parties, and
errors of any kind which might be obviated, removed, or cured if
promptly presented, are waived unless seasonable objection thereto is
made at the taking of the deposition.
(C) Objections to the form of written questions are waived unless
served in writing upon all parties within the time allowed for serving
the succeeding cross or other questions and within 5 days after service
of the last questions authorized.
(iv) As to completion and return of deposition. Errors and
irregularities in the manner in which the testimony is transcribed or
the deposition is prepared, signed, certified, endorsed, or otherwise
dealt with by the officer are waived unless a motion to suppress the
deposition or some part thereof is made with reasonable promptness after
such defect is or with due diligence might have been ascertained.
(43 FR 56865, Dec. 4, 1978)
16 CFR 3.34 Subpoenas.
(a) Subpoenas ad testificandum. Application for issuance of a
subpoena requiring a person to appear and depose or testify at the
taking of a deposition or at an adjudicative hearing shall be made in
writing to the Administrative Law Judge. If for the purpose of
discovery, such subpoena may be issued upon a satisfactory showing that
the testimony may reasonably be expected to yield any information within
the scope of discovery under 3.31(b)(1). If to preserve relevant
evidence, such subpoena may be issued upon a showing that there is
substantial reason to believe that such evidence would not otherwise be
available for presentation at the hearing. If for testimony at an
adjudicative hearing, such subpoena may be issued upon a showing of the
reasonable relevancy of the expected testimony.
(b) Subpoenas duces tecum. Application for issuance of a subpoena
requiring a person to appear and depose or testify and to produce
specified documents (including writings, drawings, graphs, charts,
photographs, phono records and other recordings, and other data
compilations from which information can be obtained (translated, if
necessary, by the person into reasonably usable form)) at the taking of
a deposition, or at a prehearing conference, or at an adjudicative
hearing shall be made in writing to the Administrative Law Judge, shall
specify with reasonable particularity the material to be produced,
showing that the material sought is reasonable in scope and, if for the
purpose of discovery, falls within the limits of permissible discovery
under 3.31(b)(1), or, if for an adjudicative hearing, is reasonably
relevant. Subpoenas duces tecum may be used by any party for purposes
of discovery or for obtaining documents for use in evidence, or for both
purposes.
(c) Motions to quash. Any motion by the subject of a subpoena to
limit or quash the subpoena shall be filed within the earlier of ten
(10) days after service thereof or the time for compliance therewith.
Such motions shall set forth all assertions of privilege or other
factual and legal objections to the subpoena, including all appropriate
arguments, affidavits and other supporting documentation, and shall
include the statement required by Rule 3.22(f).
(43 FR 56866, Dec. 4, 1978, as amended at 50 FR 42672, Oct. 22, 1985)
16 CFR 3.35 Interrogatories to parties.
(a) Availability; Procedures for Use. (1) Upon authorization by the
Administrative Law Judge, any party may serve upon any other party
written interrogatories to be answered by the party served or, if the
party served is a public or private corporation, partnership,
association or governmental agency, by any officer or agent, who shall
furnish such information as is available to the party. For this
purpose, information shall not be deemed to be available insofar as it
is in the possession of the Commissioners, the General Counsel, the
office of Administrative Law Judges, or the Secretary in his capacity as
custodian or recorder of any such information, or their respective
staffs.
(2) Each interrogatory shall be answered separately and fully in
writing under oath, unless it is objected to on grounds not raised and
ruled on in connection with the authorization, in which event the
reasons for objection shall be stated in lieu of an answer. The answers
are to be signed by the person making them, and the objections signed by
the attorney making them. The party upon whom the interrogatories have
been served shall serve a copy of the answers, and objections if any,
within 30 days after the service of the interrogatories, except that a
respondent may serve answers or objections within 45 days after service
of the complaint upon that respondent. The Administrative Law Judge may
allow a shorter or longer time.
(b) Scope; use at hearing. (1) Interrogatories may relate to any
matters which can be inquired into under 3.31(b)(1), and the answers
may be used to the extent permitted by the rules of evidence.
(2) An interrogatory otherwise proper is not necessarily
objectionable merely because an answer to the interrogatory involves an
opinion or contention that relates to fact or the application of law to
fact, but the Administrative Law Judge may order that such an
interrogatory need not be answered until after designated discovery has
been completed or until a pre-trial conference or other later time.
(c) Option to produce records. Where the answer to an interrogatory
may be derived or ascertained from the records of the party upon whom
the interrogatory has been served or from an examination, audit or
inspection of such records, or from a compilation, abstract or summary
based thereon, and the burden of deriving or ascertaining the answer is
substantially the same for the party serving the interrogatory as for
the party served, it is a sufficient answer to such interrogatory to
specify the records from which the answer may be derived or ascertained
and to afford to the party serving the interrogatory reasonable
opportunity to examine, audit or inspect such records and to make
copies, compilations, abstracts or summaries. The specification shall
include sufficient detail to permit the interrogating party to identify
readily the individual documents from which the answer may be
ascertained.
(43 FR 56867, Dec. 4, 1978)
16 CFR 3.36 Applications for subpoenas for records of the Commission or
other governmental agency and for appearance of commission or other
government officials and employees.
(a) Form. An application for issuance of a subpoena for documents
(as defined in 3.34(b)), or for the issuance of an order requiring
access to documents pursuant to 3.37, in the possession, custody, or
control of the Federal Trade Commission or its employees, or of another
governmental agency or its employees; or for the issuance of a subpoena
requiring the appearance of an official or employee of the Commission,
including complaint counsel, or the appearance of an official or
employee of another governmental agency, shall be made in the form of a
written motion filed in accordance with the provisions of 3.22(a). No
application for records pursuant to 4.11 of this chapter or the Freedom
of Information Act may be filed with the Administrative Law Judge.
(b) Content. The motion shall make the same showing required to
obtain a subpoena under 3.34 or an order under 3.37, together with a
specific showing that the information or material sought cannot
reasonably be obtained by other means.
(43 FR 56867, Dec. 4, 1978)
16 CFR 3.37 Access for inspection and other purposes.
(a) Availability; Procedures for use. Upon application in writing
by any party, the Administrative Law Judge may issue an order requiring
a party (1) to permit the party making the request, or someone acting on
the party's behalf, to inspect and copy any designated documents, as
defined in 3.34(b), or to inspect and copy, test, or sample any
tangible things which are in the possession, custody or control of the
party upon whom the order would be served; or (2) to permit entry upon
designated land or other property in the possession or control of the
party upon whom the order would be served for the purpose of inspection
and measuring, surveying, photographing, testing, or sampling the
property or any designated object or operation thereon. Each such
application shall specify with reasonable particularity the documents or
things to be inspected, or the property to be entered, showing that the
material sought is reasonable in scope and falls within the limits of
permissible discovery under 3.31(b)(1). Each such application shall
also specify a reasonable time, place, and manner of making the
inspection and performing the related acts. A party shall make
documents available as they are kept in the usual course of business or
shall organize and label them to correspond with the categories in the
order that requires their production.
(b) Motion to quash. Any motion by the subject of an order to limit
or quash the order shall be filed within the earlier of ten (10) days
after service thereof or the time for compliance therewith. Such motion
shall set forth all assertions of privilege or other factual and legal
objections to the order, including all appropriate arguments, affidavits
and other supporting documentation, and shall include the statement
required by Rule 3.22(f).
(43 FR 56867, Dec. 4, 1978, as amended at 50 FR 42672, Oct. 22, 1985;
50 FR 53305, Dec. 31, 1985)
16 CFR 3.38 Motion for order compelling answer; sanctions.
(a) A party who has requested admissions or who has served
interrogatories may move to determine the sufficiency of the answers or
objections thereto. Unless the objecting party sustains its burden of
showing that the objection is justified, the Administrative Law Judge
shall order that an answer be served. If the Administrative Law Judge
determines that an answer does not comply with the requirements of these
rules, he may order either that the matter is admitted or that an
amended answer be served. The Administrative Law Judge may, in lieu of
these orders, determine that final disposition may be made at a
prehearing conference or at a designated time prior to trial.
(b) If a party or an officer or agent of a party fails to comply with
a subpoena or with an order including, but not limited to, an order for
the taking of a deposition, the production of documents, or the
answering of interrogatories, or requests for admissions, or an order of
the Administrative Law Judge or the Commission issued as, or in
accordance with, a ruling upon a motion concerning such an order or
subpoena or upon an appeal from such a ruling, the Administrative Law
Judge or the Commission, or both, for the purpose of permitting
resolution of relevant issues and disposition of the proceeding without
unnecessary delay despite such failure, may take such action in regard
thereto as is just, including but not limited to the following:
(1) Infer that the admission, testimony, documents or other evidence
would have been adverse to the party;
(2) Rule that for the purposes of the proceeding the matter or
matters concerning which the order or subpoena was issued be taken as
established adversely to the party;
(3) Rule that the party may not introduce into evidence or otherwise
rely, in support of any claim or defense, upon testimony by such party,
officer, or agent, or the documents or other evidence;
(4) Rule that the party may not be heard to object to introduction
and use of secondary evidence to show what the withheld admission,
testimony, documents, or other evidence would have shown;
(5) Rule that a pleading, or part of a pleading, or a motion or other
submission by the party, concerning which the order or subpoena was
issued, be stricken, or that a decision of the proceeding be rendered
against the party, or both.
(c) Any such action may be taken by written or oral order issued in
the course of the proceeding or by inclusion in an initial decision of
the Administrative Law Judge or an order or opinion of the Commission.
It shall be the duty of parties to seek and Administrative Law Judges to
grant such of the foregoing means of relief or other appropriate relief
as may be sufficient to compensate for withheld testimony, documents, or
other evidence. If in the Administrative Law Judge's opinion such
relief would not be sufficient, or in instances where a nonparty fails
to comply with a subpoena or order, he shall certify to the Commission a
request that court enforcement of the subpoena or order be sought.
(43 FR 56867, Dec. 4, 1978, as amended at 50 FR 53305, Dec. 31, 1985)
16 CFR 3.38A Withholding requested material.
(a) Any person withholding material responsive to a subpoena issued
pursuant to 3.34, written interrogatories authorized pursuant to 3.35,
an access order issued pursuant to 3.37, or any other request for
production of material issued under this part, shall assert a claim of
privilege or any similar claim not later than the date set for the
production of material. Such person shall, if so directed in the
subpoena or other request for production, submit, together with such
claim, a schedule of the items withheld which states individually as to
each such item the type, title, specific subject matter, and date of the
item; the names, addresses, positions, and organizations of all authors
and recipients of the item; and the specific grounds for claiming that
the item is privileged.
(b) A person withholding material for reasons described in 3.38A(a)
shall comply with the requirements of that subsection in lieu of filing
a motion to limit or quash compulsory process.
(Sec. 5, 38 Stat. 719 as amended (15 U.S.C. 45))
(44 FR 54043, Sept. 18, 1979)
16 CFR 3.39 Orders requiring witnesses to testify or provide other
information and granting immunity.
(a) Where Commission complaint counsel desire the issuance of an
order requiring a witness or deponent to testify or provide other
information and granting immunity under title 18, section 6002, United
States Code, Directors and Assistant Directors of Bureaus and Regional
Directors and Assistant Regional Directors of Commission Regional
Offices having responsibility for presenting evidence in support of the
complaint are authorized to determine:
(1) That the testimony or other information sought from a witness or
deponent, or prospective witness or deponent, may be necessary to the
public interest, and (2) that such individual has refused or is likely
to refuse to testify or provide such information on the basis of his
privilege against self-incrimination; and to request, through the
Commission's liaison officer, approval by the Attorney General for the
issuance of such an order. Upon receipt of approval by the Attorney
General (or his designee), the Administrative Law Judge is authorized to
issue an order requiring the witness or deponent to testify or provide
other information and granting immunity when the witness or deponent has
invoked his privilege against self-incrimination and it cannot be
determined that such privilege was improperly invoked.
(b) Requests by counsel other than Commission complaint counsel for
an order requiring a witness to testify or provide other information and
granting immunity under title 18, section 6002, United States Code, may
be made to the Administrative Law Judge and may be made ex parte. When
such requests are made, the Administrative Law Judge is authorized to
determine:
(1) That the testimony or other information sought from a witness or
deponent, or prospective witness or deponent, may be necessary to the
public interest, and (2) that such individual has refused or is likely
to refuse to testify or provide such information on the basis of his
privilege against self-incrimination; and, upon making such
determinations, to request, through the Commission's liaison officer,
approval by the Attorney General for the issuance of an order requiring
a witness to testify or provide other information and granting immunity;
and, after the Attorney General (or his designee) has granted such
approval, to issue such order when the witness or deponent has invoked
his privilege against self-incrimination and it cannot be determined
that such privilege was improperly invoked.
(18 U.S.C. 6002, 6004)
(37 FR 5017, Mar. 9, 1972, as amended at 50 FR 53306, Dec. 31, 1985)
16 CFR 3.40 Admissibility of evidence in advertising substantiation
cases.
(a) If a person, partnership, or corporation is required through
compulsory process under section 6, 9 or 20 of the Act issued after
October 26, 1977 to submit to the Commission substantiation in support
of an express or an implied representation contained in an
advertisement, such person, partnership or corporation shall not
thereafter be allowed, in any adjudicative proceeding in which it is
alleged that the person, partnership, or corporation lacked a reasonable
basis for the representation, and for any purpose relating to the
defense of such allegation, to introduce into the record, whether
directly or indirectly through references contained in documents or oral
testimony, any material of any type whatsoever that was required to be
but was not timely submitted in response to said compulsory process.
Provided, however, that a person, partnership, or corporation is not,
within the meaning of this section, required through compulsory process
to submit substantiation with respect to those portions of said
compulsory process to which such person, partnership, or corporation has
raised good faith legal objections in a timely motion pursuant to the
Commission's Rules of Practice and Procedure, until the Commission
denies such motion; or if the person, partnership, or corporation
thereafter continues to refuse to comply, until such process has been
judically enforced.
(b) The Administrative Law Judge shall, upon motion, at any stage
exclude all material that was required to be but was not timely
submitted in response to compulsory process described in paragraph (a)
of this section, or any reference to such material, unless the person,
partnership, or corporation demonstrates in a hearing, and the
Administrative Law Judge finds, that by the exercise of due diligence
the material could not have been timely submitted in response to the
compulsory process, and that the Commission was notified of the
existence of the material immediately upon its discovery. Said findings
of the Administrative Law Judge shall be in writing and shall specify
with particularity the evidence relied upon. The rules normally
governing the admissibility of evidence in Commission proceedings shall
in any event apply to any material coming within the above exception.
(42 FR 56500, Oct. 10, 1977; 42 FR 61450, Dec. 5, 1977, as amended
at 45 FR 45578, July 7, 1980)
16 CFR 3.40 Subpart E -- Hearings
16 CFR 3.41 General rules.
(a) Public hearings. All hearings in adjudicative proceedings shall
be public unless an in camera order is entered by the Administrative Law
Judge pursuant to 3.45(b) of this chapter or unless otherwise ordered
by the Commission.
(b) Expedition. Hearings shall proceed with all reasonable
expedition, and, insofar as practicable, shall be held at one place and
shall continue, except for brief intervals of the sort normally involved
in judicial proceedings, without suspension until concluded. Consistent
with the requirements of expedition:
(1) The Administrative Law Judge may order hearings at more than one
place and may grant a reasonable recess at the end of a case-in-chief
for the purpose of discovery deferred during the pre-hearing procedure
where the Administrative Law Judge determines that such recess will
materially expedite the ultimate disposition of the proceeding.
(2) When actions involving a common question of law or fact are
pending before the Administrative Law Judge, the Administrative Law
Judge may order a joint hearing of any or all the matters in issue in
the actions; the Administrative Law Judge may order all the actions
consolidated; and the Administrative Law Judge may make such orders
concerning proceedings therein as may tend to avoid unnecessary costs or
delay.
(3) When separate hearings will be conducive to expedition and
economy, the Administrative Law Judge may order a separate hearing of
any claim, or of any separate issue, or of any number of claims or
issues.
(c) Rights of parties. Every party, except intervenors, whose rights
are determined under 3.14, shall have the right of due notice,
cross-examination, presentation of evidence, objection, motion,
argument, and all other rights essential to a fair hearing.
(d) Adverse witnesses. An adverse party, or an officer, agent, or
employee thereof, and any witness who appears to be hostile, unwilling,
or evasive, may be interrogated by leading questions and may also be
contradicted and impeached by the party calling him.
(e) Participation in adjudicative packaging and labeling hearings.
At adjudicative hearings under the Fair Packaging and Labeling Act, any
party or any interested person designated as a party pursuant to 3.13,
or his representative, may be sworn as a witness and heard.
(f) Requests for an order requiring a witness to testify or provide
other information and granting immunity under title 18, section 6002, of
the United States Code, shall be disposed of in accordance with 3.39.
(18 U.S.C. 6002, 6004)
(32 FR 8449, June 13, 1967, as amended at 37 FR 5017, Mar. 9, 1972;
37 FR 5609, Mar. 17, 1972; 39 FR 34398, Sept. 25, 1974; 44 FR 62887,
Nov. 1, 1979)
16 CFR 3.42 Presiding officials.
(a) Who presides. Hearings in adjudicative proceedings shall be
presided over by a duly qualified Administrative Law Judge or by the
Commission or one or more members of the Commission sitting as
Administrative Law Judges; and the term ''Administrative Law Judge'' as
used in this part means and applies to the Commission or any of its
members when so sitting.
(b) How assigned. The presiding Administrative Law Judge shall be
designated by the Chief Administrative Law Judge or, when the Commission
or one or more of its members preside, by the Commission, who shall
notify the parties of the Administrative Law Judge designated.
(c) Powers and duties. Administrative Law Judges shall have the duty
to conduct fair and impartial hearings, to take all necessary action to
avoid delay in the disposition of proceedings, and to maintain order.
They shall have all powers necessary to that end, including the
following:
(1) To administer oaths and affirmations;
(2) To issue subpenas and orders requiring answers to questions;
(3) To take depositions or to cause depositions to be taken;
(4) To compel admissions, upon request of a party or on their own
initiative;
(5) To rule upon offers of proof and receive evidence;
(6) To regulate the course of the hearings and the conduct of the
parties and their counsel therein;
(7) To hold conferences for settlement, simplification of the issues,
or any other proper purpose;
(8) To consider and rule upon, as justice may require, all procedural
and other motions appropriate in an adjudicative proceeding, including
motions to open defaults;
(9) To make and file initial decisions;
(10) To certify questions to the Commission for its determination;
and
(11) To take any action authorized by the rules in this part or in
conformance with the provisions of the Administrative Procedure Act as
restated and incorporated in title 5, U.S.C.
(d) Suspension of attorneys by Administrative Law Judge. The
Administrative Law Judge shall have the authority, for good cause stated
on the record, to suspend or bar from participation in a particular
proceeding any attorney who shall refuse to comply with his directions,
or who shall be guilty of disorderly, dilatory, obstructionist, or
contumacious conduct, or contemptuous language in the course of such
proceeding. Any attorney so suspended or barred may appeal to the
Commission in accordance with the provisions of 3.23(a). The appeal
shall not operate to suspend the hearing unless otherwise ordered by the
Administrative Law Judge or the Commission; in the event the hearing is
not suspended, the attorney may continue to participate therein pending
disposition of the appeal.
(e) Substitution of Administrative Law Judge. In the event of the
substitution of a new Administrative Law Judge for the one originally
designated, any motion predicated upon such substitution shall be made
within five (5) days thereafter.
(f) Interference. In the performance of their adjudicative
functions, Administrative Law Judges shall not be responsible to or
subject to the supervision or direction of any officer, employee, or
agent engaged in the performance of investigative or prosecuting
functions for the Commission, and all direction by the Commission to
Administrative Law Judges concerning any adjudicative proceedings shall
appear in and be made a part of the record.
(g) Disqualification of Administrative Law Judges. (1) When an
Administrative Law Judge deems himself disqualified to preside in a
particular proceeding, he shall withdraw therefrom by notice on the
record and shall notify the Director of Administrative Law Judges of
such withdrawal.
(2) Whenever any party shall deem the Administrative Law Judge for
any reason to be disqualified to preside, or to continue to preside, in
a particular proceeding, such party may file with the Secretary a motion
addressed to the Administrative Law Judge to disqualify and remove him,
such motion to be supported by affidavits setting forth the alleged
grounds for disqualification. If the Administrative Law Judge does not
disqualify himself within ten (10) days, he shall certify the motion to
the Commission, together with any statement he may wish to have
considered by the Commission. The Commission shall promptly determine
the validity of the grounds alleged, either directly or on the report of
another Administrative Law Judge appointed to conduct a hearing for that
purpose.
(3) Such motion shall be filed at the earliest practicable time after
the participant learns, or could reasonably have learned, of the alleged
grounds for disqualification.
(h) Failure to comply with Administrative Law Judge's directions.
Any party who refuses or fails to comply with a lawfully issued order or
direction of an Administrative Law Judge may be considered to be in
contempt of the Commission. The circumstances of any such neglect,
refusal, or failure, together with a recommendation for appropriate
action, shall be promptly certified by the Administrative Law Judge to
the Commission. The Commission may make such orders in regard thereto
as the circumstances may warrant.
(32 FR 8449, June 13, 1967, as amended at 37 FR 5609, Mar. 17, 1972;
41 FR 8340, Feb. 26, 1976; 43 FR 56868, Dec. 4, 1978; 46 FR 45750,
Sept. 15, 1981; 50 FR 53306, Dec. 31, 1985)
16 CFR 3.43 Evidence.
(a) Burden of proof. Counsel representing the Commission, or any
person who has filed objections sufficient to warrant the holding of an
adjudicative hearing pursuant to 3.13, shall have the burden of proof,
but the proponent of any factual proposition shall be required to
sustain the burden of proof with respect thereto.
(b) Admissibility. Relevant, material, and reliable evidence shall
be admitted. Irrelevant, immaterial, unreliable, and unduly repetitious
evidence shall be excluded. Immaterial or irrelevant parts of an
admissible document shall be segregated and excluded so far as
practicable.
(c) Information obtained in investigations. Any documents, papers,
books, physical exhibits, or other materials or information obtained by
the Commission under any of its powers may be disclosed by counsel
representing the Commission when necessary in connection with
adjudicative proceedings and may be offered in evidence by counsel
representing the Commission in any such proceeding.
(d) Official notice. When any decision of an Administrative Law
Judge or of the Commission rests, in whole or in part, upon the taking
of official notice of a material fact not appearing in evidence of
record, opportunity to disprove such noticed fact shall be granted any
party making timely motion therefor.
(e) Objections. Objections to evidence shall timely and briefly
state the grounds relied upon, but the transcript shall not include
argument or debate thereon except as ordered by the Administrative Law
Judge. Rulings on all objections shall appear in the record.
(f) Exceptions. Formal exception to an adverse ruling is not
required.
(g) Excluded evidence. When an objection to a question propounded to
a witness is sustained, the questioner may make a specific offer of what
he expects to prove by the answer of the witness, or the Administrative
Law Judge may, in his discretion, receive and report the evidence in
full. Rejected exhibits, adequately marked for identification, shall be
retained in the record so as to be available for consideration by any
reviewing authority.
(32 FR 8449, June 13, 1967; 32 FR 8711, June 17, 1967, as amended at
48 FR 44766, Sept. 30, 1983)
16 CFR 3.44 Record.
(a) Reporting and transcription. Hearings shall be stenographically
reported and transcribed by the official reporter of the Commission
under the supervision of the Administrative Law Judge, and the original
transcript shall be a part of the record and the sole official
transcript. Copies of transcripts are available from the reporter at
rates not to exceed the maximum rates fixed by contract between the
Commission and the reporter.
(b) Corrections. Corrections of the official transcript may be made
only when they involve errors affecting substance and then only in the
manner herein provided. Corrections ordered by the Administrative Law
Judge or agreed to in a written stipulation signed by all counsel and
parties not represented by counsel, and approved by the Administrative
Law Judge, shall be included in the record, and such stipulations,
except to the extent they are capricious or without substance, shall be
approved by the Administrative Law Judge. Corrections shall not be
ordered by the Administrative Law Judge except upon notice and
opportunity for the hearing of objections. Such corrections shall be
made by the official reporter by furnishing substitute type pages, under
the usual certificate of the reporter, for insertion in the official
record. The original uncorrected pages shall be retained in the files
of the Commission.
16 CFR 3.45 In camera orders.
(a) Definition. Except as hereinafter provided, documents and
testimony made subject to in camera orders are not made a part of the
public record, but are kept confidential, and only respondents, their
counsel, authorized Commission personnel, and court personnel concerned
with judicial review shall have access thereto. The right of the
Administrative Law Judge, the Commission, and reviewing courts to
disclose in camera data to the extent necessary for the proper
disposition of the proceeding is specifically reserved.
(b) In camera treatment of documents and testimony. The
Administrative Law Judge may order documents, testimony, or portions
thereof offered into evidence, whether admitted or rejected, to be
placed in camera upon a finding that their public disclosure will likely
result in a clearly defined, serious injury to the person, partnership
or corporation requesting their in camera treatment. This finding shall
be based on the standard articulated in H.P. Hood & Sons, Inc., 58
F.T.C. 1184, 1188 (1961); see also Bristol-Myers Co., 90 F.T.C. 455,
456 (1977), which established a three-part test that was modified by
General Foods Corp., 95 F.T.C. 352, 355 (1980). No document, testimony,
or portion thereof offered into evidence, whether admitted or rejected,
may be withheld from the public record unless it falls within the scope
of an order issued in accordance with this section, stating the date on
which in camera treatment will expire and specifying:
(1) A description of the documents or testimony;
(2) A statement of the reasons for granting in camera treatment; and
(3) A statement of the reasons for the date on which in camera
treatment will expire. Such expiration date may not be omitted except
in unusual circumstances, in which event the order must state with
specificity the reasons why the need for confidentiality of the
document, testimony, or portion thereof at issue is not likely to
decrease over time, and any other reasons why such material is entitled
to in camera treatment for an indeterminate period. Any party desiring,
for the preparation and presentation of the case, to disclose in camera
documents or testimony to experts, consultants, prospective witnesses,
or witnesses, shall make application to the Administrative Law Judge
setting forth the justification therefor. The Administrative Law Judge,
in granting such application for good cause found, shall enter an order
protecting the rights of the affected parties and preventing unnecessary
disclosure of information. In camera documents and the transcript of
testimony subject to an in camera order shall be segregated from the
public record and filed in a sealed envelope, bearing the title, the
docket number of the proceeding, the notation ''In Camera Record under
3.45,'' and the date, if any, on which in camera treatment expires.
(c) Release of in camera information. In camera documents and
testimony shall constitute a part of the confidential records of the
Commission and shall be subject to the provisions of 4.11 of this
chapter. However, the Commission, on its own motion without notice to
any affected party, may make in camera documents and testimony available
for inspection, copying, or use by any other governmental agency.
(d) Briefs and other submissions referring to in camera information.
Parties shall not disclose information that has been granted in camera
status pursuant to 3.45(b) in the public version of proposed findings,
briefs, or other documents. This provision does not preclude references
in such proposed findings, briefs, or other documents to in camera
information or general statements based on the content of such
information.
(e) When in camera information is included in briefs and other
submissions. If a party includes specific information that has been
granted in camera status pursuant to 3.45(b) in any document filed in a
proceeding under this part, the party shall file two versions of the
document. A complete version shall be marked ''In Camera'' on the first
page and shall be filed with the Secretary and served upon the parties
in accordance with the rules in this part. Any time period within which
these rules allow a party to respond to a document shall run from the
date the party is served with the complete version of the document. An
expurgated version of the document, marked ''Public Record'' on the
first page and omitting the in camera information that appears in the
complete version, shall be filed with the Secretary within five days
after the filing of the complete version, unless the Administrative Law
Judge or the Commission directs otherwise, and shall be served upon the
parties. The expurgated version shall indicate any omissions with
brackets or elipses.
(32 FR 8449, June 13, 1967, as amended at 52 FR 22293, June 11, 1987;
54 FR 49279, Nov. 30, 1989)
16 CFR 3.46 Proposed findings, conclusions, and order.
(a) General. At the close of the reception of evidence, or within a
reasonable time thereafter fixed by the Administrative Law Judge, any
party may file with the Secretary of the Commission for consideration of
the Administrative Law Judge proposed findings of fact, conclusions of
law, and rule or order, together with reasons therefor and briefs in
support thereof. Such proposals shall be in writing, shall be served
upon all parties, and shall contain adequate references to the record
and authorities relied on. If a party includes in the proposals
information that has been granted in camera status pursuant to 3.45(b),
the party shall file two versions of the proposals in accordance with
the procedures set forth in 3.45(e).
(b) Exhibit Index. The first statement of proposed findings of fact
and conclusions of law filed by a party shall include an index listing
for each exhibit offered by the party and received in evidence:
(1) The exhibit number, followed by
(2) The exhibit's title or a brief description if the exhibit is
untitled;
(3) The transcript page at which the Administrative Law Judge ruled
on the exhibit's admissibility or a citation to any written order in
which such ruling was made;
(4) The transcript pages at which the exhibit is discussed;
(5) An identification of any other exhibit which summarizes the
contents of the listed exhibit, or of any other exhibit of which the
listed exhibit is a summary;
(6) A cross-reference, by exhibit number, to any other portions of
that document admitted as a separate exhibit on motion by any other
party; and
(7) A statement whether the exhibit has been accorded in camera
treatment.
(c) Witness Index. The first statement of proposed findings of fact
and conclusions of law filed by a party shall also include an index to
the witnesses called by that party, to include for each witness:
(1) The name of the witness;
(2) A brief identification of the witness;
(3) The transcript pages at which any testimony of the witness
appears; and
(4) A statement identifying any portion of the witness' testimony
that was received in camera.
(d) Stipulated indices. As an alternative to the filing of separate
indices, the parties are encouraged to stipulate to joint exhibit and
witness indices at the time the first statement of proposed findings of
fact and conclusions of law is due to be filed.
(e) Rulings. The record shall show the Administrative Law Judge's
ruling on each proposed finding and conclusion, except when the order
disposing of the proceeding otherwise informs the parties of the action
taken.
(48 FR 56945, Dec. 27, 1983, as amended at 52 FR 22294, June 11,
1987)
16 CFR 3.46 Subpart F -- Decision
16 CFR 3.51 Initial decision.
(a) When filed and when effective. The Administrative Law Judge
shall file an initial decision within ninety (90) days after completion
of the reception of evidence, or within thirty (30) days after a default
or the granting of a motion for summary decision or waiver by the
parties of the filing of proposed findings of fact, conclusions of law
and order, or within such further time as the Commission may by order
allow upon written request from the Administrative Law Judge. The
initial decision shall become the decision of the Commission thirty (30)
days after service thereof upon the parties or thirty (30) days after
the filing of a timely notice of appeal, whichever shall be later,
unless a party filing such a notice shall have perfected an appeal by
the timely filing of an appeal brief or the Commission shall have issued
an order placing the case on its own docket for review or staying the
effective date of the decision.
(b) Exhaustion of administrative remedies. An initial decision shall
not be considered final agency action subject to judicial review under 5
U.S.C. 704. Any objection to a ruling by the Administrative Law Judge,
or to a finding, conclusion or a provision of the order in the initial
decision, which is not made a part of an appeal to the Commission shall
be deemed to have been waived.
(c) Content. (1) The initial decision shall include a statement of
findings (with specific page references to principal supporting items of
evidence in the record) and conclusions, as well as the reasons or basis
therefor, upon all the material issues of fact, law, or discretion
presented on the record (or those designated under paragraph (c)(2) of
this section) and an appropriate rule or order. If the Administrative
Law Judge includes in the initial decision information that has been
granted in camera status pursuant to 3.45(b), the Judge shall file two
versions of the initial decision. A complete version, to be filed
within the time period provided by 3.51(a), shall be marked ''In
Camera'' on the first page, and shall be served upon the parties. The
complete version will be placed in the in camera record of the
proceeding. Any time period under this part that begins with the date
of service on a party of an initial decision shall begin to run from the
date the party is served with the complete version of the initial
decision. An expurgated version, marked ''Public Record'' on the first
page and omitting the in camera information that appears in the complete
version, shall be filed within five days after the filing of the
complete version. The expurgated version shall indicate any omissions
with brackets or elipses. The expurgated version shall be placed in the
public record of the proceeding and served upon the parties.
(2) When more than one claim for relief is presented in an action, or
when multiple parties are involved, the Administrative Law Judge may
direct the entry of an initial decision as to one or more but fewer than
all of the claims or parties only upon an express determination that
there is no just reason for delay and upon an express direction for the
entry of initial decision.
(3) An initial decision shall be based upon a consideration of the
whole record relevant to the issues decided pursuant to paragraph (c)(1)
of this section, and it shall be supported by reliable, probative and
substantial evidence.
(d) By whom made. The initial decision shall be made and filed by
the Administrative Law Judge who presided over the hearings, except when
he shall have become unavailable to the Commission.
(e) Reopening of proceeding by Administrative Law Judge; termination
of jurisdiction. (1) At any time prior to the filing of his initial
decision, an Administrative Law Judge may reopen the proceeding for the
reception of further evidence.
(2) Except for the correction of clerical errors or pursuant to an
order of remand from the Commission, the jurisdiction of the
Administrative Law Judge is terminated upon the filing of his initial
decision with respect to those issues decided pursuant to paragraph
(c)(1) of this section.
(32 FR 8449, June 13, 1967, as amended at 35 FR 10656, July 1, 1970;
44 FR 62887, Nov. 1, 1979; 48 FR 52576, Nov. 21, 1983; 48 FR 54810,
Dec. 7, 1983; 52 FR 22294, June 11, 1987)
16 CFR 3.52 Appeal from initial decision.
(a) Who may file; notice of intention. Any party to a proceeding
may appeal an initial decision to the Commission by filing a notice of
appeal with the Secretary within 10 days after service of the initial
decision. The notice shall specify the party or parties against whom
the appeal is taken and shall designate the initial decision and order
or part thereof appealed from. If a timely notice of appeal is filed by
a party, any other party may thereafter file a notice of appeal within 5
days after service of the first notice, or within 10 days after service
of the initial decision, whichever period expires last.
(b) Appeal brief. The appeal shall be in the form of a brief, filed
within 30 days after service of the initial decision, and shall contain,
in the order indicated, the following:
(1) A subject index of the matter in the brief, with page references,
and a table of cases (alphabetically arranged), textbooks, statutes, and
other material cited, with page references thereto;
(2) A concise statement of the case;
(3) A specification of the questions intended to be urged;
(4) The argument presenting clearly the points of fact and law relied
upon in support of the position taken on each question, with specific
page references to the record and the legal or other material relied
upon; and
(5) A proposed form of order for the Commission's consideration
instead of the order contained in the initial decision.
The brief shall not, without leave of the Commission, exceed 60
pages, if printed, or 90 pages, if typewritten, including any appendices
but exclusive of pages containing the table of contents, tables of
authorities and any addendum containing statutes, rules and regulations.
(c) Answering brief. Within 30 days after service of the appeal
brief, the appellee may file an answering brief, which shall contain a
subject index, with page references, and a table of cases
(alphabetically arranged), textbooks, statutes, and other material
cited, with page references thereto, as well as arguments in response to
the appellant's appeal brief. However, if the appellee is also
cross-appealing, its answering brief shall also contain its arguments as
to any issues the party is raising on cross-appeal, including the points
of fact and law relied upon in support of its position on each question,
with specific page references to the record and legal or other material
on which the party relies in support of its cross-appeal, and a proposed
form of order for the Commission's consideration instead of the order
contained in the initial decision. If the appellee does not
cross-appeal, its answering brief shall not, without leave of the
Commission, exceed 60 pages, if printed, or 90 pages, if typewritten.
If the appellee cross-appeals, its brief in answer and on cross-appeal
shall not, without leave of the Commission, exceed 105 pages, if
printed, or 160 pages, if typewritten. The page limitations of this
paragraph include any appendices but are exclusive of pages containing
the table of contents, tables of authorities, and any addendum
containing statutes, rules and regulations.
(d) Reply brief. Within 7 days after service of the appellee's
answering brief, the appellant may file a reply brief, which shall be
limited to rebuttal of matters in the answering brief and shall not,
without leave of the Commission, exceed 60 pages, if printed, or 90
pages, if typewritten. However, if the appellee has cross-appealed, any
appellant who is the subject of the cross-appeal may, within 30 days
after service of such appellee's brief, file a reply brief, which shall
be limited to rebuttal of matters in the appellee's brief and shall not,
without leave of the Commission, exceed 75 pages, if printed, or 115
pages, if typewritten. If the appellee has cross-appealed, any party
who is the subject of the cross-appeal, other than an appellant may,
within 30 days after service of the appellee's brief, file a reply brief
which shall be limited to rebuttal of matters raised by the appellee's
cross-appeal with respect to the party and shall not, without leave of
the Commission, exceed 60 pages if printed, or 90 pages, if typewritten.
The appellee who has cross-appealed may, within 7 days after service of
a reply to its cross-appeal, file an additional brief, which shall be
limited to rebuttal of matters in the reply to its cross-appeal and
shall not, without leave of the Commission, exceed 30 pages, if printed,
or 45 pages, if typewritten. The page limitations of this paragraph
include any appendices but are exclusive of pages containing the table
of contents, tables of authorities, and any addendum containing
statutes, rules, and regulations. No further briefs may be filed except
by leave of the Commission.
(e) Form of briefs. Briefs may be produced by standard typographic
printing or by any duplicating or copying process which produces a clear
black image on white paper. All printed matter must appear in the least
11 point type on opaque, unglazed paper. Briefs produced by the
standard typographic process shall be bound in volumes having pages 6
1/8 by 9 1/4 inches and type matter 4 1/6 by 7 1/6 inches. Those
produced by any other process shall be bound in volumes having pages not
exceeding 8 1/2 by 11 inches and type matter not exceeding 6 1/2 by 9
1/2 inches, with double spacing between each line of text. Footnotes
and quoted material within the text may be single-spaced. Both printed
and typewritten briefs shall contain no more than 10 characters
(including spaces) per inch.
(f) In camera information. If a party includes in any brief to be
filed under this section information that has been granted in camera
status pursuant to 3.45(b), the party shall file two versions of the
brief in accordance with the procedures set forth in 3.45(e). The time
period specified by this section within which a party may file an
answering or reply brief will begin to run upon service on the party of
the in camera version of a brief.
(g) Signature. (1) The original of each brief filed shall have a
hand-signed signature by an attorney of record for the party, or in the
case of parties not represented by counsel, by the party itself, or by a
partner if a partnership, or by an officer of the party if it is a
corporation or an unincorporated association.
(2) Signing a brief constitutes a representation by the signer that
he or she has read it, that to the best of his or her knowledge,
information, and belief, the statements made in it are true, and that it
is not interposed for delay. If a brief is not signed or is signed with
intent to defeat the purpose of this section, it may be stricken as sham
and false and the proceeding may go forward as though the brief has not
been filed.
(h) Designation of appellant and appellee in cases involving
cross-appeals. In a case involving an appeal by complaint counsel and
one or more respondents, any respondent who has filed a timely notice of
appeal and as to whom the Administrative Law Judge has issued an order
to cease and desist shall be deemed an appellant for purposes of
paragraphs (b), (c), and (d) of this section. In a case in which the
Administrative Law Judge has dismissed the complaint as to all
respondents, complaint counsel shall be deemed the appellant for
purposes of paragraphs (b), (c), and (d) of this rule.
(i) Oral argument. All oral arguments shall be public unless
otherwise ordered by the Commission. Oral arguments will be held in all
cases on appeal to the Commission, unless the Commission otherwise
orders upon its own initiative or upon request of any party made at the
time of filing his brief. Oral arguments before the Commission shall be
reported stenographically, unless otherwise ordered, and a member of the
Commission absent from an oral argument may participate in the
consideration and decision of the appeal in any case in which the oral
argument is stenographically reported. The purpose of oral argument is
to emphasize and clarify the written argument appearing in the briefs
and to answer questions. Reading at length from the briefs or other
texts is not favored.
(j) Corrections in transcript of oral argument. The Commission will
entertain only joint motions of the parties requesting corrections in
the transcript of oral argument, except that the Commission will receive
a unilateral motion which recites that the parties have made a good
faith effort to stipulate to the desired corrections but have been
unable to do so. If the parties agree in part and disagree in part,
they should file a joint motion incorporating the extent of their
agreement, and, if desired, separate motions requesting those
corrections to which they have been unable to agree. The Secretary,
pursuant to delegation of authority by the Commission, is authorized to
prepare and issue in the name of the Commission a brief ''Order
Correcting Transcript'' whenever a joint motion to correct transcript is
received.
(k) Briefs of amicus curiae. A brief of an amicus curiae may be
filed by leave of the Commission granted on motion with notice to the
parties or at the request of the Commission, except that such leave
shall not be required when the brief is presented by an agency or
officer of the United States; or by a State, territory, commonwealth,
or the District of Columbia, or by an agency or officer of any of them.
The brief may be conditionally filed with the motion for leave. A
motion for leave shall identify the interest of the applicant and state
how a Commission decision in the matter would affect the applicant or
persons it represents. The motion shall also state the reasons why a
brief of an amicus curiae is desirable. Except as otherwise permitted
by the Commission, an amicus curiae shall file its brief within the time
allowed the parties whose position as to affirmance or reversal the
amicus brief will support. The Commission shall grant leave for a later
filing only for cause shown, in which event it shall specify within what
period such brief must be filed. A motion for an amicus curiae to
participate in oral argument will be granted only for extraordinary
reasons.
(32 FR 8449, June 13, 1967, as amended at 33 FR 7033, May 10, 1968;
41 FR 54486, Dec. 14, 1976; 42 FR 13540, Mar. 11, 1977; 42 FR 39977,
Aug. 8, 1977; 50 FR 28096, July 10, 1985; 52 FR 22294, June 11, 1987)
16 CFR 3.53 Review of initial decision in absence of appeal.
An order by the Commission placing a case on its own docket for
review will set forth the scope of such review and the issues which will
be considered and will make provision for the filing of briefs if deemed
appropriate by the Commission.
16 CFR 3.54 Decision on appeal or review.
(a) Upon appeal from or review of an initial decision, the Commission
will consider such parts of the record as are cited or as may be
necessary to resolve the issues presented and, in addition, will, to the
extent necessary or desirable, exercise all the powers which it could
have exercised if it had made the initial decision.
(b) In rendering its decision, the Commission will adopt, modify, or
set aside the findings, conclusions, and rule or order contained in the
initial decision, and will include in the decision a statement of the
reasons or basis for its action and any concurring and dissenting
opinions.
(c) In those cases where the Commission believes that it should have
further information or additional views of the parties as to the form
and content of the rule or order to be issued, the Commission, in its
discretion, may withhold final action pending the receipt of such
additional information or views.
(d) The order of the Commission disposing of adjudicative hearings
under the Fair Packaging and Labeling Act will be published in the
Federal Register and, if it contains a rule or regulation, will specify
the effective date thereof, which will not be prior to the ninetieth
(90th) day after its publication unless the Commission finds that
emergency conditions exist necessitating an earlier effective date, in
which event the Commission will specify in the order its findings as to
such conditions.
16 CFR 3.55 Reconsideration.
Within twenty (20) days after completion of service of a Commission
decision, any party may file with the Commission a petition for
reconsideration of such decision, setting forth the relief desired and
the grounds in support thereof. Any petition filed under this
subsection must be confined to new questions raised by the decision or
final order and upon which the petitioner had no opportunity to argue
before the Commission. Any party desiring to oppose such a petition
shall file an answer thereto within ten (10) days after service upon him
of the petition. The filing of a petition for reconsideration shall not
operate to stay the effective date of the decision or order or to toll
the running of any statutory time period affecting such decision or
order unless specifically so ordered by the Commission.
16 CFR 3.55 Subpart G -- (Reserved)
16 CFR 3.55 Subpart H -- Reopening of Proceedings
16 CFR 3.71 Authority.
Except while pending in a U.S. court of appeals on a petition for
review (after the transcript of the record has been filed) or in the
U.S. Supreme Court, a proceeding may be reopened by the Commission at
any time in accordance with 3.72. Any person subject to a Commission
decision containing a rule or order which has become effective, or an
order to cease and desist which has become final may file a request to
reopen the proceeding in accordance with 2.51.
(44 FR 40637, July 12, 1979)
16 CFR 3.72 Reopening.
(a) Before statutory review. At any time prior to the expiration of
the time allowed for filing a petition for review or prior to the filing
of the transcript of the record of a proceeding in a U.S. court of
appeals pursuant to a petition for review, the Commission may upon its
own initiative and without prior notice to the parties reopen the
proceeding and enter a new decision modifying or setting aside the whole
or any part of the findings as to the facts, conclusions, rule, order,
or opinion issued by the Commission in such proceeding.
(b) After decision has become final. (1) Whenever the Commission is
of the opinion that changed conditions of fact or law or the public
interest may require that a Commission decision containing a rule or
order which has become effective, or an order to cease and desist which
has become final by reason of court affirmance or expiration of the
statutory period for court review without a petition for review having
been filed, or a Commission decision containing an order dismissing a
proceeding, should be altered, modified, or set aside in whole or in
part, the Commission will, except as provided in 2.51, serve upon each
person subject to such decision (in the case of proceedings instituted
under 3.13, such service may be by publication in the Federal Register)
an order to show cause, stating the changes it proposes to make in the
decision and the reasons they are deemed necessary. Within thirty (30)
days after service of such order to show cause, any person served may
file an answer thereto. Any person not responding to the order within
the time allowed may be deemed to have consented to the proposed
changes.
(2) Whenever an order to show cause is not opposed, or if opposed but
the pleadings do not raise issues of fact to be resolved, the
Commission, in its discretion, may decide the matter on the order to
show cause and answer thereto, if any, or it may serve upon the parties
(in the case of proceedings instituted under 3.13, such service may be
by publication in Federal Register) a notice of hearing, setting forth
the date when the cause will be heard. In such a case, the hearing will
be limited to the filing of briefs and may include oral argument when
deemed necessary by the Commission. When the pleadings raise
substantial factual issues, the Commission will direct such hearings as
it deems appropriate, including hearings for the receipt of evidence by
it or by an Administrative Law Judge. Unless otherwise ordered and
insofar as practicable, hearings before an Administrative Law Judge to
receive evidence shall be conducted in accordance with subparts B, C, D,
and E of part 3 of this chapter. Upon conclusion of hearings before an
Administrative Law Judge, the record and the Administrative Law Judge's
recommendations shall be certified to the Commission for final
disposition of the matter.
(32 FR 8449, June 13, 1967, as amended at 44 FR 40637, July 12, 1979;
45 FR 21623, Apr. 2, 1980)
16 CFR 3.72 Subpart I -- Recovery of Awards Under the Equal Access to
Justice Act in Commission Proceedings
Authority: Sec. (a)(1), Pub. L. 96-481, 94 Stat. 2325 (5 U.S.C.
504(c)(1) and 5 U.S.C. 553(b)).
16 CFR 3.81 General provisions.
(a) Purpose of these rules. The Equal Access to Justice Act, 5
U.S.C. 504 (called ''the Act'' in this subpart), provides for the award
of attorney fees and other expenses to eligible individuals and entities
who are parties to adjudicative proceedings under part 3 of this title.
An eligible party may receive an award when it prevails in the
adjudicative proceeding, unless the Commission's position in the
proceeding was substantially justified or special circumstances make an
award unjust. Whether or not the position of the agency was
substantially justified shall be determined on the basis of the
administrative record as a whole that is made in the adversary
proceeding for which fees and other expenses are sought. The rules in
this subpart describe the parties eligible for awards, how to apply for
awards, and the procedures and standards that the Commission will use to
make them.
(b) When the Act applies. The Act applies to any adjudicative
proceeding pending before the Commission at any time after October 1,
1981. This includes proceedings begun before October 1, 1981, if final
Commission action has not been taken before that date.
(c) Proceedings covered. (1) The Act applies to all adjudicative
proceedings under this Part 3 of the rules of practice as defined in
Rule 3.2, except hearings relating to the promulgation, amendment, or
repeal of rules under the Fair Packaging and Labeling Act.
(d) Eligibility of applicants. (1) To be eligible for an award of
attorney fees and other expenses under the Act, the applicant must be a
party to the adjudicative proceeding in which it seeks an award. The
term ''party'' is defined in 5 U.S.C. 551(3). The applicant must show
that it meets all conditions of eligibility set out in this subpart.
(2) The types of eligible applicants are as follows:
(i) An individual with a net worth of not more than $2 million;
(ii) The sole owner of an unincorporated business who has a net worth
of not more than $7 million, including both personal and business
interests, and not more than 500 employees;
(iii) A charitable or other tax-exempt organization described in
section 501(c)(3) of the Internal Revenue Code (26 U.S.C. 501(c)(3))
with not more than 500 employees;
(iv) A cooperative association as defined in section 15(a) of the
Agricultural Marketing Act (12 U.S.C. 1141j(a)) with not more than 500
employees; and
(v) Any other partnership, corporation, association, unit of local
government, or organization with a net worth of not more than $7 million
and not more than 500 employees.
(3) For the purpose of eligibility, the new worth and number of
employees of an applicant shall be determined as of the date the
proceeding was initiated.
(4) An applicant who owns an unincorporated business will be
considered as an ''individual'' rather than a ''sole owner of an
unincorporated business'' if the issues on which the applicant prevails
are related primarily to personal interests rather than to business
interests.
(5) The employees of an applicant include all persons who regularly
perform services for remuneration for the applicant, under the
applicant's direction and control. Part-time employees shall be
included on a proportional basis.
(6) The net worth and number of employees of the applicant and all of
its affiliates shall be aggregated to determine eligibility. Any
individual, corporation or other entity that directly or indirectly
controls or owns a majority of the voting shares or other interest of
the applicant, or any corporation or other entity of which the applicant
directly or indirectly owns or controls a majority of the voting shares
or other interest, will be considered an affiliate for purposes of this
part, unless the Administrative Law Judge determines that such treatment
would be unjust and contrary to the purposes of the Act in light of the
actual relationship between the affiliated entities. In addition, the
Administrative Law Judge may determine that financial relationships of
the applicant other than those described in this paragraph constitute
special circumstances that would make an award unjust.
(7) An applicant that participates in a proceeding primarily on
behalf of one or more other persons or entities that would be ineligible
is not itself eligible for an award.
(e) Standards for awards. (1) A prevailing applicant may receive an
award for fees and expenses incurred in connection with an entire
proceeding, or on a substantive portion of the proceeding that is
sufficiently significant and discrete to merit treatment as a separate
unit unless the position of the agency over which the applicant has
prevailed was substantially justified. The burden of proof that an
award should not be made to an eligible prevailing applicant is on
complaint counsel, which may avoid an award by showing that its position
had a reasonable basis in law and fact.
(2) An award will be reduced or denied if the applicant has unduly or
unreasonably protracted the proceeding or if special circumstances make
the award sought unjust.
(f) Allowable fees and expenses. (1) Awards will be based on rates
customarily charged by persons engaged in the business of acting as
attorneys, agents and expert witnesses, even if the services were made
available without charge or at a reduced rate to the applicant.
(2) No award for the fee of an attorney or agent under these rules
may exceed $75.00 per hour. No award to compensate an expert witness
may exceed the highest rate at which the Commission paid expert
witnesses for similiar services at the time the fees were incurred. The
appropriate rate may be obtained from the Office of the Executive
Director. However, an award may also include the reasonable expenses of
the attorney, agent, or witness as a separate item, if the attorney,
agent or witness ordinarily charges clients separately for such
expenses.
(3) In determining the reasonableness of the fee sought for an
attorney, agent or expert witness, the Administrative Law Judge shall
consider the following:
(i) If the attorney, agent or witness is in private practice, his or
her customary fee for similar services, or, if an employee of the
applicant, the fully allocated cost of the services;
(ii) The prevailing rate for similar services in the community in
which the attorney, agent or witness ordinarily performs services;
(iii) The time actually spent in the representation of the applicant;
(iv) The time reasonably spent in light of the difficulty or
complexity of the issues in the proceeding; and
(v) Such other factors as may bear on the value of the services
provided.
(4) The reasonable cost of any study, analysis, engineering report,
test, project or similar matter prepared on behalf of a party may be
awarded, to the extent that the charge for the service does not exceed
the prevailing rate for similar services, and the study or other matter
was necessary for preparation of the applicant's case.
(g) Rulemaking on maximum rates for attorney fees. If warranted by
an increase in the cost of living or by special circumstances (such as
limited availability of attorneys qualified to handle certain types of
proceedings), this agency may, upon its own initiative or on petition of
any interested person or group, adopt regulations providing that
attorney fees may be awarded at a rate higher than $75 per hour in some
or all of the types of proceedings covered by this part. Rulemaking
under this provision will be in accordance with Rules of Practice Part
1, Subpart C of this chapter.
(46 FR 48910, Oct. 5, 1981, as amended at 50 FR 53306, Dec. 31, 1985)
16 CFR 3.82 Information required from applicants.
(a) Contents of application. An application for an award of fees and
expenses under the Act shall contain the following:
(1) Identity of the applicant and the proceeding for which the award
is sought;
(2) A showing that the applicant has prevailed;
(3) Identification of the Commission position(s) that applicant
alleges was (were) not substantially justified;
(4) A brief description of the type and purpose of the organization
or business (unless the applicant is an individual);
(5) A statement of how the applicant meets the criteria of 3.81(d);
(6) The amount of fees and expenses sought;
(7) Any other matters the applicant wishes the Commission to consider
in determining whether and in what amount an award should be made;
(8) A written verification under oath or under penalty or perjury
that the information provided is true and correct accompanied by the
signature of the applicant or an authorized officer or attorney.
(b) Net worth exhibit. (1) Each applicant except a qualified
tax-exempt organization or cooperative association must provide with its
application a detailed exhibit showing the net worth of the application
and any affiliates (as defined in 3.81(d)(6)) when the proceeding was
initiated. The exhibit may be in any form convenient to the applicant
that provides full disclosure of the applicant's and its affiliates'
assets and liabilities and is sufficient to determine whether the
applicant qualifies under the standards in this part. The
Administrative Law Judge may require an applicant to file additional
information to determine its eligibility for an award.
(2) Ordinarily, the net worth exhibit will be included in the public
record of the proceeding. However, an applicant that objects to public
disclosure of information in any portion of the exhibit and believes
there are legal grounds for withholding it from disclosure may submit
that portion of the exhibit directly to the Administrative Law Judge in
a sealed envelope labeled ''Confidential Financial Information,''
accompanied by a motion to withhold the information from public
disclosure. The motion shall describe the information sought to be
withheld and explain, in detail, why it falls within one or more of the
specific exemptions from mandatory disclosure under the Freedom of
Information Act, 5 U.S.C. 552(b) (1) through (9), why public disclosure
of the information would adversely affect the applicant, and why
disclosure is not required in the public interest. The material in
question shall be served on complaint counsel but need not be served on
any other party to the proceeding. If the Administrative Law Judge
finds that the information should not be withheld from disclosure, it
shall be placed in the public record of the proceeding. Otherwise, any
request to inspect or copy the exhibit shall be disposed of in
accordance with Rule 4.11.
(c) Documentation of fees and expenses. The application shall be
accompanied by full documentation of the fees and expenses, including
the cost of any study, analysis, engineering report, test, project or
similar matter, for which an award is sought. A separate itemized
statement shall be submitted for each professional firm or individual
whose services are covered by the application, showing the hours spent
in connection with the proceeding by each individual, a description of
the specific services performed, the rate at which each fee has been
computed, any expenses for which reimbursement is sought, the total
amount claimed, and the total amount paid or payable by the applicant or
by any other person or entity for the services provided. The
Administrative Law Judge may require the applicant to provide vouchers,
receipts, or other substantiation for any expenses claimed.
(d) When an application may be filed. (1) An application may be
filed whenever the applicant has prevailed in the entire proceeding or
on a substantive portion of the proceeding that is sufficiently
significant and discrete to merit treatment as a separate unit, but in
no case later than 30 days after the Commission's final disposition of
the proceeding.
(2) If review or reconsideration is sought or taken of a decision as
to which an applicant believes it has prevailed, proceedings for the
award of fees shall be stayed pending final disposition of the
underlying controversy.
(3) For purposes of this rule, final disposition means the later of
(i) the date on which the initial decision of the Administrative Law
Judge becomes the decision of the Commission pursuant to 3.51(a); (ii)
issuance of an order disposing of any petitions for reconsideration of
the Commission's final order in the proceeding; (iii) if no petition
for reconsideration is filed, the last date on which such petition could
have been filed pursuant to 3.55; or (iv) issuance of a final order or
any other final resolution of a proceeding, such as a consent agreement,
settlement or voluntary dismissal, which is not subject to a petition
for reconsideration.
(46 FR 48910, Oct. 5, 1981)
16 CFR 3.83 Procedures for considering applicants.
(a) Filing and service of documents. Any application for an award or
other pleading or document related to an application shall be filed and
served on all parties as specified in 4.2 and 4.4(b), except as
provided in 3.82(b)(2) for confidential financial information.
(b) Answer to application. (1) Within 30 days after service of an
application, complaint counsel may file an answer to the application.
Unless complaint counsel requests an extension of time for filing or
files a statement of intent to negotiate under paragraph (b)(2) of this
section, failure to file an answer within the 30-day period may be
treated as a consent to the award requested.
(2) If complaint counsel and the applicant believe that the issues in
the fee application can be settled, they may jointly file a statement of
their intent to negotiate a settlement. The filing of this statement
shall extend the time for filing an answer for an additional 30 days,
and further extensions may be granted by the Administrative Law Judge
upon request by complaint counsel and the applicant.
(3) The answer shall explain in detail any objections to the award
requested and identify the facts relied on in support of complaint
counsel's position. If the answer is based on any alleged facts not
already in the record of the proceeding, complaint counsel shall include
with the answer either supporting affidavits or a request for further
proceedings under paragraph (f) of this section.
(c) Reply. Within 15 days after service of an answer, the applicant
may file a reply. If the reply is based on any alleged facts not
already in the record of the proceeding, the applicant shall include
with the reply either supporting affidavits or a request for further
proceedings under paragraph (f) of this section.
(d) Comments by other parties. Any party to a proceeding other than
the applicant and complaint counsel may file comments on an application
within 30 days after it is served or on an answer within 15 days after
it is served. A commenting party may not participate further in
proceedings on the application unless the Administrative Law Judge
determines that the public interest requires such participation in order
to permit full exploration of matters raised in the comments.
(e) Settlement. The applicant and complaint counsel may agree on a
proposed settlement of the award before final action on the application.
A proposed award settlement entered into in connection with a consent
agreement covering the underlying proceeding will be considered in
accordance with 3.25. The Commission may request findings of fact or
recommendations on the award settlement from the Administrative Law
Judge. A proposed award settlement entered into after the underlying
proceeding has been concluded will be considered and may be approved or
disapproved by the Administrative Law Judge subject to Commission review
under paragraph (h) of this section. If a prevailing party and
complaint counsel agree on a proposed settlement of an award before an
application has been filed, the application shall be filed with the
proposed settlement.
(f) Further proceedings. (1) Ordinarily, the determination of an
award will be made on the basis of the written record. However, on
request of either the applicant or complaint counsel, or on his or her
own initiative, the Administrative Law Judge may order further
proceedings, such as an informal conference, oral argument, additional
written submissions or an evidentiary hearing. Such further proceedings
shall be held only when necessary for full and fair resolution of the
issues arising from the application, and shall be conducted as promptly
as possible.
(2) A request that the Administrative Law Judge order further
proceedings under this section shall specifically identify the
information sought or the disputed issues and shall explain why the
additional proceedings are necessary to resolve the issues.
(g) Decision. The Administrative Law Judge shall issue an initial
decision on the application within 30 days after completion of
proceedings on the application. The decision shall include written
findings and conclusions on the applicant's eligibility and status as a
prevailing party, and an explanation of the reasons for any difference
between the amount requested and the amount awarded. The decision shall
also include, if at issue, findings on whether the agency's position was
substantially justified, whether the applicant unduly protracted the
proceedings, or whether special circumstances make an award unjust.
(h) Agency review. Either the applicant or complaint counsel may
seek review of the initial decision on the fee application, or the
Commission may decide to review the decision on its own initiative, in
accordance with 3.53. If neither the applicant nor complaint counsel
seeks review and the Commission does not take review on its own
initiative, the initial decision on the application shall become a final
decision of the Commission 30 days after it is issued. Whether to
review a decision is a matter within the discretion of the Commission.
If review is taken, the Commission will issue a final decision on the
application or remand the application to the Administrative Law Judge
for further proceedings.
(i) Judical review. Judicial review of final Commission decisions on
awards may be sought as provided in 5 U.S.C. 503(c)(2).
(j) Payment of award. An applicant seeking payment of an award shall
submit to the Secretary of the Commission a copy of the Commission's
final decision granting the award, accompanied by a statement that the
applicant will not seek review of the decision in the United States
courts. The agency will pay the amount awarded to the applicant within
60 days, unless judicial review of the award or of the underlying
decision of the adjudicative proceeding has been sought by the applicant
or any other party to the proceeding.
(46 FR 48910, Oct. 5, 1981, as amended at 50 FR 53306, Dec. 31, 1985)
16 CFR 3.83 PART 4 -- MISCELLANEOUS RULES
Sec.
4.1 Appearances.
4.2 Requirements as to form, and filing of documents other than
correspondence.
4.3 Time.
4.4 Service.
4.5 Fees.
4.6 Cooperation with other agencies.
4.7 Ex parte communications.
4.8 Availability of public information.
4.9 Public records.
4.10 Nonpublic information.
4.11 Requests for disclosure of records.
4.12 Disposition of documents submitted to the Commission.
4.13 Privacy Act rules.
4.14 Conduct of business.
4.15 Commission meetings.
4.16 Privilege against self-incrimination.
4.17 Disqualification of Commissioners.
Authority: Sec. 6, 38 Stat. 721; 15 U.S.C. 46.
16 CFR 4.1 Appearances.
(a) Qualifications -- (1) Attorneys. (i) U.S.-admitted. Members of
the bar of a Federal court or of the highest court of any State or
Territory of the United States are eligible to practice before the
Commission.
(ii) European Community (EC)-qualified. Persons who are qualified to
practice law in a Member State of the European Community and authorized
to practice before The Commission of the European Communities in
accordance with Regulation No. 99/63/EEC are eligible to practice
before the Commission.
(iii) Any attorney desiring to appear before the Commission or an
Administrative Law Judge may be required to show to the satisfaction of
the Commission or the Administrative Law Judge his or her acceptability
to act in that capacity.
(2) Others. (i) Any individual or member of a partnership involved
in any proceeding or investigation may appear on behalf or himself or of
such partnership upon adequate identification. A corporation or
association may be represented by a bona fide officer thereof upon a
showing of adequate authorization.
(ii) At the request of counsel representing any party in an
adjudicative proceeding, the Administrative Law Judge may permit an
expert witness to conduct all or a portion of the cross-examination of
such witness.
(b) Restrictions as to former members and employees. (1) Except as
provided in this section or otherwise specifically authorized by the
Commission, no former member or employee of the Commission shall appear
as attorney or counsel or otherwise participate through any form of
professional consultation or assistance:
(i) In any proceeding or investigation, formal or informal, (A) if
such proceeding or investigation was itself pending in the Commission
while the former member or employee served with the Commission; (B) if
an investigation from which such proceeding or investigation directly
resulted was pending during such service; or (C) if such former member
or employee, during the course of his service with the Commission,
gained personal knowledge of nonpublic documents or information
containing specific criteria for the initiation of future investigations
or cases pertaining to a practice involved in the proceeding or
investigation, and if the participation by the former member or employee
would occur within three (3) years of the termination of his service
with the Commission; or
(ii) In an investigation of compliance with an order, submission of a
request to reopen an order, or a proceeding with respect to reopening of
an order, if the former member or employee participated personally and
substantially in the adjudicative proceeding or investigation that
resulted in such order.
(2) In cases to which paragraph (b)(1) of this section is applicable,
a former member or employee of the Commission may request authorization
to appear or participate in a proceeding or investigation by filing with
the Secretary of the Commission a written application therefor,
disclosing the following information, to the extent known:
(i) The nature and extent of the former member's or employee's
participation in, knowledge of, and connection with the proceeding or
investigation during his service with the Commission; (ii) in the case
of applications filed pursuant to paragraphs (b)(1)(i)(B), (b)(1)(ii),
or (b)(1)(iii) of this section, the nature and extent of the former
member's or employee's participation in, knowledge of, and connection
with the predecessor investigation, adjudication or investigation, or
rulemaking proceeding, respectively, during his service with the
Commission; (iii) whether documents or information concerning the
proceeding or investigation came to his attention and, if so, the nature
of such documents or information; (iv) whether he was employed in the
same bureau, office, division, or other administrative unit in which the
proceeding or investigation is or has been pending; (v) whether he
worked directly or in close association with Commission personnel
assigned to the proceeding or investigation; and (vi) whether during
his service with the commission he was engaged in any matter concerning
the individual, company, industry, or any member of the industry
involved in the proceeding or investigation.
(3) The requested authorization will not be given in any case (i)
where it appears that the former member or employee during his service
with the Commission participated personally and substantially in the
proceeding or investigation; (ii) where the application is filed within
two (2) years after termination of the former member's or employee's
service with the Commission and it appears that within a period of one
(1) year prior to the termination of his service the former member or
employee was officially responsible for the proceeding or investigation;
or (iii) where documents or information of the kind delineated in
4.10(a) pertaining to the proceeding or investigation for which
authorization is sought came to the attention of the former member or
employee or would be likely to have come to his attention in the course
of his duties, unless the Commission finds that the nature of the
documents or information is such that no present advantage could thereby
be derived.
(4) Notwithstanding any other provision of this section, no former
member of the Commission and no former senior employee in a position
designated by the Office of Government Ethics pursuant to 18 U.S.C.
207(d) shall, for a period of one (1) year after termination of the
former member's or employee's service in that position, appear as
attorney or counsel or otherwise represent anyone (other than the United
States) in any formal or informal appearance before the Commission in
any proceeding or investigation or, with the intent to influence, make
any oral or written communication on behalf of anyone in any proceeding
or investigation which is before the Commission or in which the
Commission has a direct and substantial interest.
(5) The General Counsel shall have the authority (i) to determine
whether, under paragraph (b)(1) of this section, a request for
authorization to appear or participate need be filed and (ii) to grant
any such request. In any case in which the General Counsel proposes
that a request be denied, he shall refer the request to the Commission
for determination, and in other unusual or difficult cases he may, in
his sole discretion, refer a request to the Commission for
determination.
(6)(i) The General Counsel shall (A) within three (3) working days of
receipt of an oral or written request for a determination whether, under
paragraph (b)(1) of this section, a request for authorization to appear
or participate need be filed, render such determination and (B) within
fifteen (15) working days of the receipt of a request for authorization
to appear or participate, either grant such request or refer it to the
Commission.
(ii) The Commission shall, within fifteen (15) working days of the
receipt of a request referred by the General Counsel pursuant to
paragraph (b)(5) of this section either grant or deny such request.
(iii)(A) The Commission or the General Counsel may, by written notice
to the requester, and for good cause, extend the time limit for a
determination by not more than fifteen (15) working days.
(B) Any time limit specified in this paragraph shall be tolled during
such time as may elapse between a request by the Commission or General
Counsel to the former member or employee for additional information and
the receipt of such information by the Commission or General Counsel.
(7)(i) Paragraphs (b)(1), (b)(2), (b)(3) and (b)(4) of this section
shall not apply to (A) pro se filings of any kind; (B) submissions of
requests or appeals under the Freedom of Information Act, Privacy Act,
or Government in the Sunshine Act; (C) testimony under oath; (D)
submissions of statements required to be made under penalty of perjury;
(E) submissions of statements based on the former member's or employee's
own special knowledge in the particular area that is the subject of the
statement, provided that no compensation is thereby received, other than
that regularly provided by law or by 4.5 for witnesses; and (F)
appearances on behalf of the United States.
(ii) Paragraphs (b)(1), (b)(2), and (b)(3) shall not apply to (A)
submissions of comments on a matter on which the Commission has invited
public comment; and (B) filings of premerger notification forms or
participation in subsequent events concerning compliance or
noncompliance with Section 7A of the Clayton Act, 15 U.S.C. 18a, or any
regulations issued pursuant to that section.
(8)(i) In any case in which a former member or employee of the
Commission is prohibited under paragraph (b)(3)(i) of this section from
appearing or participating in a Commission proceeding or investigation,
no partner or legal or business associate of such former member or
employee shall appear or participate in such proceeding or
investigation, except as provided in this paragraph.
(ii) If a partner or legal or business associate of a former member
or employee of the Commission prohibited under paragraph (b)(3)(i) of
this section from appearing or participating in a Commission proceeding
or investigation wishes to appear or participate in such proceeding or
investigation, he shall file with the Secretary of the Commission, not
later than the time such appearance or participation begins, an
affidavit attesting:
(A) That the former member or employee will not participate in the
proceeding or investigation in any way, directly or indirectly; (B)
that he will not share, directly or indirectly, in any fees in the
proceeding or investigation; (C) that all persons who intend to appear
or participate are aware of the requirement that the former member or
employee be screened from participating in or discussing the proceeding
or investigation, or the firm's representation, and describing the
procedures being taken to screen the personally disqualified former
member or employee; (D) that the client or clients have been so
informed; and (E) that the matter was not brought to such partner or
legal or business associate through the active solicitation of the
former member or employee.
(iii) Upon the filing of the affidavit, such partner or legal or
business associate may begin such appearance or participation, Provided,
however, That if the Commission finds (A) that the screening measures
being taken are unsatisfactory or (B) that the matter was brought to
such partner or legal or business associate through the active
solicitation of the former member or employee, and so notifies such
partner or legal or business associate, such appearance or
representation shall cease immediately.
(9)(i) The restrictions and procedures in this subsection are
intended to apply in lieu of restrictions and procedures as may be
adopted by the appropriate authority in any state or jurisdiction,
insofar as such restrictions and procedures apply to appearances or
participation in Commission proceedings or investigations: Provided,
however, That nothing in this section supersedes other standards of
ethical conduct required under paragraph (e) of this section.
(ii) In the event that Commission approval is sought for an
appearance or participation by a former member or employee in a
proceeding in court or before another agency, the General Counsel shall
have the authority to respond to such a request, applying as appropriate
the standards of this paragraph (b)(9)(ii).
(c) Public disclosure. All applications requesting authorization to
appear or participate in a proceeding or investigation, and the
Commission's responses thereto, are part of the public records of the
Commission, except for information exempt from disclosure under 4.10(a)
of this chapter.
(d) Notice of appearance. Any attorney desiring to appear before the
Commission or an Administrative Law Judge on behalf of a person or party
shall file with the Secretary of the Commission a written notice of
appearance, stating the basis for eligibility under this section and
including the attorney's jurisdiction of admission/qualification,
attorney identification number, if applicable, and a statement by the
appearing attorney attesting to his/her good standing within the legal
profession. No other application shall be required for admission to
practice, and no register of attorneys will be maintained.
(e) Standards of conduct; disbarment. (1) All attorneys practicing
before the Commission shall conform to the standards of ethical conduct
required by the bars of which the attorneys are members.
(2) If for good cause shown, the Commission shall be of the opinion
that any attorney is not conforming to such standards, or that he has
been otherwise guilty of conduct warranting disciplinary action, the
Commission may issue an order requiring such attorney to show cause why
he should not be suspended or disbarred from practice before the
Commission. The alleged offender shall be granted due opportunity to be
heard in his own defense and may be represented by counsel. Thereafter,
if warranted by the facts, the Commission may issue against the attorney
an order of reprimand, suspension, or disbarment.
(32 FR 8456, June 13, 1967, as amended at 40 FR 15235, Apr. 4, 1975;
41 FR 16453, Apr. 19, 1976; 46 FR 26295, May 12, 1981; 48 FR 44767,
Sept. 30, 1983; 50 FR 50781, Dec. 12, 1985; 50 FR 53306, Dec. 31,
1985; 56 FR 44139, Sept. 27, 1991)
16 CFR 4.2 Requirements as to form, and filing of documents other than
correspondence.
(a) Filing. (1) Except as otherwise provided, all documents
submitted to the Commission, including those addressed to the
Administrative Law Judge, shall be filed with the Secretary of the
Commission; Provided, however, That in any instance informal
applications or requests may be submitted directly to the official in
charge of any office of the Commission or to the appropriate Director,
Deputy Director, Associate Director in the Bureau of Consumer
Protection, or Assistant Director in the Bureau of Competition or to the
Administrative Law Judge. Copies of all documents filed with the
Secretary of the Commission by parties in adjudicative proceedings
shall, at or before the time of filing, be served by the party filing
the documents or person acting for that party on all other parties
pursuant to 4.4.
(2) Documents submitted to the Commission in response to a Civil
Investigative Demand under section 20 of the FTC Act shall be filed with
the custodian or deputy custodian named in the demand.
(b) Title. Documents shall clearly show the file or docket number
and title of the action in connection with which they are filed.
(c) Copies. An original and twenty (20) copies of all documents
before the Commission and motions for an Administrative Law Judge's
certification of an interlocutory appeal pursuant to 3.23(b) shall be
filed; an original and ten (10) copies of all other documents before
the Administrative Law Judge shall be filed; and an original and one
(1) copy of compliance reports shall be filed. Only one (1) copy of
admissions and answers thereto must be filed with the Secretary, the
originals to be served on the opposing party as specified by 3.32.
(d) Form. (1) Documents filed with the Secretary of the Commission,
other than briefs in support of appeals from initial decisions, shall be
printed, typewritten, or otherwise processed in permanent form and on
good unglazed paper. A motion or other paper filed in an adjudicative
proceeding shall contain a caption setting forth the title of the case,
the docket number, and a brief descriptive title indicating the purpose
of the paper.
(2) Briefs filed on an appeal from an initial decision shall be in
the form prescribed by 3.52(e).
(3) If printed, documents shall be on good unglazed paper seven (7)
inches by ten (10) inches. The type shall not be less than ten (10)
point adequately leaded. Citations and quotations shall not be less
than ten (10) point single leaded, and footnotes shall not be less than
eight (8) point single leaded. The printed line shall not exceed four
and three-quarter (4 3/4) inches in length.
(4) If typewritten, documents shall be on paper not less than eight
(8) inches nor more than eight and one-half (8 1/2) inches by not less
than ten and one-half (10 1/2) inches nor more than eleven (11) inches.
(5) All documents must be bound on the left side. Except for printed
documents, the left margin of each page must be at least one and
one-half (1 1/2) inches and the right margin at least one (1) inch.
(e) Signature. (1) The original of each document filed shall have a
hand signed signature by an attorney of record for the party, or in the
case of parties not represented by counsel, by the party itself, or by a
partner if a partnership, or by an officer of the party if it is a
corporation or an unincorporated association.
(2) Signing a document constitutes a representation by the signer
that he has read it, that to the best of his knowledge, information, and
belief, the statements made in it are true, and that it is not
interposed for delay. If a document is not signed or is signed with
intent to defeat the purpose of this section, it may be stricken as sham
and false and the proceeding may go forward as though the document had
not been filed.
(32 FR 8456, June 13, 1967, as amended at 40 FR 59725, Dec. 30, 1975;
42 FR 30150, June 13, 1977; 45 FR 36344, May 29, 1980; 47 FR 7826,
Feb. 23, 1982; 48 FR 41376, Sept. 15, 1983; 50 FR 28097, July 10,
1985)
16 CFR 4.3 Time.
(a) Computation. Computation of any period of time prescribed or
allowed by the rules in this chapter, by order of the Commission or an
Administrative Law Judge, or by any applicable statute, shall begin with
the first business day following that on which the act, event, or
development initiating such period of time shall have occurred. When
the last day of the period so computed is a Saturday, Sunday, or
national holiday, or other day on which the office of the Commission is
closed, the period shall run until the end of the next following
business day. When such period of time, with the intervening Saturdays,
Sundays, and national holidays counted, is seven (7) days or less, each
of the Saturdays, Sundays, and such holidays shall be excluded from the
computation. When such period of time, with the intervening Saturdays,
Sundays, and national holidays counted, exceeds seven (7) days, each of
the Saturdays, Sundays, and such holidays shall be included in the
computation.
(b) Extensions. For good cause shown, the Administrative Law Judge
may, in any proceeding before him, extend any time limit prescribed or
allowed by the rules in this chapter or by order of the Commission or
the Administrative Law Judge, except those governing the filing of
interlocutory appeals and initial decisions and those expressly
requiring Commission action. Except as otherwise provided by law, the
Commission, for good cause shown, may extend any time limit prescribed
by the rules in this chapter or by order of the Commission or an
Administrative Law Judge: Provided, however, That in a proceeding
pending before an Administrative Law Judge, any motion on which he may
properly rule shall be made to him. Notwithstanding the above, where a
motion to extend is made after the expiration of the specified period,
the Administrative Law Judge or the Commission may consider the motion
where the untimely filing was the result of excusable neglect.
(c) Additional time after service by mail. Whenever a party in an
adjudicative proceeding under part III of the rules is required or
permitted to do an act within a prescribed period after service of a
paper upon it and the paper is served by first-class mail pursuant to
4.4(a)(3) or 4.4(b), 3 days shall be added to the prescribed period.
(32 FR 8456, June 13, 1967, as amended at 42 FR 30150, June 13, 1977;
50 FR 28097, July 10, 1985; 50 FR 53306, Dec. 31, 1985)
16 CFR 4.4 Service.
(a) By the Commission.
(1) Service of complaints, initial decisions, final orders and other
processes of the Commission under 15 U.S.C. 45 may be effected as
follows:
(i) By registered or certified mail. A copy of the document shall be
addressed to the person, partnership, corporation or unincorporated
association to be served at his, her or its residence or principal
office or place of business, registered or certified, and mailed;
service under this provision is complete upon delivery of the document
by the Post Office; or
(ii) By delivery to an individual. A copy therof may be delivered to
the person to be served, or to a member of the partnership to be served,
or to the president, secretary, or other executive officer or a director
of the corporation or unincorporated association to be served; service
under this provision is complete upon delivery as specified herein; or
(iii) By delivery to an address. A copy thereof may be left at the
principal office or place of business of the person, partnership,
corporation, or unincorporated association, or it may be left at the
residence of the person or of a member of the partnership or of an
executive officer or director of the corporation, or unincorporated
association to be served; service under this provision is complete upon
delivery as specified herein.
(2) All other orders and notices, including subpoenas, orders
requiring access, orders to file annual and special reports, and notices
of default, may be served by any method reasonably certain to inform the
affected person, partnership, corporation or unincorporated association,
including any method specified in paragraph (a)(1), except that civil
investigative demands may only be served in the manner provided by
section 20(c)(7) of the FTC Act (in the case of service on a
partnership, corporation, association, or other legal entity) or section
20(c)(8) of the FTC Act (in the case of a natural person). Service
under this provision is complete upon delivery by the Post Office or
upon personal delivery.
(3) All documents served in adjudicative proceedings under part III
of the Commission's Rules of Practice other than complaints and initial,
interlocutory, and final decisions and orders may be served by personal
delivery or by first-class mail and shall be deemed served on the day of
personal delivery or the day of mailing.
(4) When a party has appeared in a proceeding by an attorney, service
on that individual of any document pertaining to the proceeding other
than a complaint shall be deemed service upon the party. However,
service of those documents specified in paragraph (a)(1) of this section
shall first be attempted in accordance with the provision of paragraphs
(a)(1) (i), (ii), and (iii) of this section.
(b) By other parties. Service of documents by parties other than the
Commission shall be by delivering copies thereof as follows: Upon the
Commission, by personal delivery or delivery by first-class mail to the
Office of the Secretary of the Commission and, in adjudicative
proceedings under part III of the Commission's Rules of Practice, to the
Assistant Director in the Bureau of Competition, the Associate Director
in the Bureau of Consumer Protection, or the Director of the Regional
Office of complaint counsel. Upon a party other than the Commission or
Commission counsel, service shall be by personal delivery or delivery by
first-class mail. If the party is an individual or partnership,
delivery shall be to such individual or a member of the partnership; if
a corporation or unincorporated association, to an officer or agent
authorized to accept service of process therefor. Personal service
includes handling the document to be served to the individual, partner,
officer, or agent; leaving it at his or her office with a person in
charge thereof; or, if there is no one in charge or if the office is
closed or if the party has no office, leaving it at his or her dwelling
house or usual place of abode with some person of suitable age and
discretion then residing therein. Documents served in adjudicative
proceedings under part III of the Commission's Rules of Practice shall
be deemed served on the day of personal service or the day of mailing.
All other documents shall be deemed served on the day of personal
service or on the day of delivery by the Post Office.
(c) Proof of service. In an adjudicative proceeding under part III
of the Commission's Rules of Practice, papers presented for filing by a
party respondent or intervenor shall contain an acknowledgment of
service by the person served or proof of service in the form of a
statement of the date and manner of service and of the names of the
person served, certified by the person who made service. Proof of
service may appear on or be affixed to the papers filed.
(50 FR 28097, July 10, 1985)
16 CFR 4.5 Fees.
(a) Deponents and witnesses. Any person compelled to appear in
person in response to subpoena shall be paid the same fees and mileage
as are paid witnesses in the courts of the United States.
(b) Presiding officers. Officers before whom depositions are taken
shall be entitled to the same fees as are paid for like services in the
courts of the United States.
(c) Responsibility. The fees and mileage referred to in this section
shall be paid by the party at whose instance deponents or witnesses
appear.
(32 FR 8456, June 13, 1967)
16 CFR 4.6 Cooperation with other agencies.
It is the policy of the Commission to cooperate with other
governmental agencies to avoid unnecessary overlapping or duplication of
regulatory functions.
16 CFR 4.7 Ex parte communications.
(a) Definitions. For purposes of this section, ''ex parte
communication'' means an oral or written communication not on the public
record with respect to which reasonable prior notice to all parties is
not given, but it shall not include requests for status reports on any
matter or proceeding.
(b) Prohibited ex parte communications. While a proceeding is in
adjudicative status within the Commission, except to the extent required
for the disposition of ex parte matters as authorized by law:
(1) No person not employed by the Commission, and no employee or
agent of the Commission who performs investigative or prosecuting
functions in adjudicative proceedings, shall make or knowingly cause to
be made to any member of the Commission, or to the Administrative Law
Judge, or to any other employee who is or who reasonably may be expected
to be involved in the decisional process in the proceeding, an ex parte
communciation relevant to the merits of that or a factually related
proceeding; and (2) no member of the Commission, the Administrative Law
Judge, or any other employee who is or who reasonably may be expected to
be involved in the decisional process in the proceeding, shall make or
knowingly cause to be made to any person not employed by the Commission,
or to any employee or agent of the Commission who performs investigative
or prosecuting functions in adjudicative proceedings, an ex parte
communication relevant to the merits of that or a factually related
proceeding.
(c) Procedures. A Commissioner, the Administrative Law Judge or any
other employee who is or who may reasonably be expected to be involved
in the decisional process who receives or who make or knowingly causes
to be made, a communication prohibited by paragraph (b) of this section
shall promptly provide to the Secretary of the Commission:
(1) All such written communications;
(2) Memoranda stating the substance of and circumstances of all such
oral communications; and
(3) All written responses, and memoranda stating the substance of all
oral responses to the materials described in paragraphs (c) (1) and (2)
of this section. The Secretary shall make relevant portions of any such
materials part of the public record of the Commission, pursuant to 4.8,
and place them in the docket binder of the proceeding to which it
pertains but they will not be considered by the Commission as part of
the record for purposes of decision unless introduced into evidence in
the proceeding. The Secretary shall also send copies of the materials
to or otherwise notify all parties to the proceeding.
(d) Sanctions. (1) Upon receipt of an ex parte communication
knowingly made or knowingly caused to be made by a party and prohibited
by paragraph (b) of this section, the Commission, Administrative Law
Judge, or other employee presiding over the proceeding may, to the
extent consistent with the interests of justice and the policy of the
underlying statutes administered by the Commission, require the party to
show cause why his claim or interest in the proceeding should not be
dismissed, denied, disregarded, or otherwise adversely affected on
account of such violation. The Commission may take such action as it
considers appropriate, including but not limited to, action under
4.1(e)(2) and 5 U.S.C. 556(d).
(2) A person, not a party to the proceeding who knowingly makes or
causes to be made an ex parte communication prohibited by paragraph (b)
of this section shall be subject to all sanctions provided herein if he
subsequently becomes a party to the proceeding.
(e) The prohibitions of this section shall apply in an adjudicative
proceeding from the time the Commission votes to issue a complaint
pursuant to 3.11, to conduct adjudicative hearings pursuant to 3.13,
or to issue an order to show cause pursuant to 3.72(b), or from the
time an order by a U.S. court of appeals remanding a Commission decision
and order for further proceedings becomes effective, until the time the
Commission votes to enter its decision in the proceeding and the time
permitted by 3.55 to seek reconsideration of that decision has elapsed.
For purposes of this section, an order of remand by a U.S. court of
appeals shall be deemed to become effective when the Commission
determines not to file a petition for a writ of certiorari, or when the
time for filing such a petition has expired without a petition having
been filed, or when such a petition has been denied. If a petition for
reconsideration of a Commission decision is filed pursuant to 3.55, the
provisions of this section shall apply until the time the Commission
votes to enter an order disposing of the petition.
(f) The prohibitions of paragraph (b) of this section do not apply to
a communication occasioned by and concerning a nonadjudicative function
of the Commission, including such functions as the initiation, conduct,
or disposition of a separate investigation, the issuance of a complaint,
or the initiation of a rulemaking or other proceeding, whether or not it
involves a party already in an adjudicative proceeding; a proceeding
outside the scope of 3.2, including a matter in state or federal court
or before another governmental agency; a nonadjudicative function of
the Commission, including but not limited to an obligation under 4.11
or a communication with Congress; or the disposition of a consent
settlement under 3.25 concerning some or all of the charges involved in
a complaint and executed by some or all respondents. The Commission, at
its discretion and under such restrictions as it may deem appropriate,
may disclose to the public or to respondent(s) in a pending adjudicative
proceeding a communication made exempt by this paragraph from the
prohibitions of paragraph (b) of this section, however, when the
Commission determines that the interests of justice would be served by
the disclosure. The prohibitions of paragraph (b) of this section also
do not apply to a communication between any member of the Commission,
the Administrative Law Judge, or any other employee who is or who
reasonably may be expected to be involved in the decisional process, and
any employee who has been directed by the Commission or requested by an
individual Commissioner or Administrative Law Judge to assist in the
decision of the adjudicative proceeding. Such employee shall not,
however, have performed an investigative or prosecuting function in that
or a factually related proceeding.
(42 FR 43974, Sept. 1, 1977, as amended at 44 FR 40637, July 12,
1979; 46 FR 32435, June 23, 1981; 50 FR 53306, Dec. 31, 1985; 51 FR
36802, Oct. 16, 1986)
16 CFR 4.8 Availability of public information.
(a) All of the public records of the Commission are available for
inspection at the principal office of the Commission on each business
day from 9 a.m. to 5 p.m., and copies of some of those records are
available at the regional offices and the field stations on each
business day from 8:30 a.m. to 5 p.m.
(b) Reasonable facilities for copying and for producing copies are
provided at each of the offices of the Commission. Subject to
appropriate limitations and the availability of facilities, any person
may copy without charge any of the public records available for
inspection at each of those offices, or reproductions of any such
records will be provided by the Commission to any person upon request in
person or upon written request and the payment of the prescribed
duplication fees. All written requests for reproductions of public
records should be addressed to the Deputy Executive Director for
Planning and Information, and should specify as clearly and accurately
as reasonably possible the records desired. With respect to records
which cannot be specified with complete clarity and particularity,
identification requirements will be met by descriptions sufficient to
enable qualified Commission personnel to locate the requested records.
In any instance the Commission, the Deputy Executive Director for
Planning and Information, or the official in charge of each office may
restrict the use of the Commission's facilities to providing only one
reproduction of any public record, or may refuse to permit the use of
those facilities for copying and producing copies of records which are
published or are publicly available at places other than the offices of
the Commission, or may supply to any person only one reproduction of any
record when copies thereof may be obtained from the Commission without
charge.
(c)(1) User fees pursuant to 31 U.S.C. 483(a) and 5 U.S.C. 552(a), as
amended by section (b)(1) of Pub. L. 93-502, shall be charged according
to the schedule contained in paragraph (c)(2) of this section for
services rendered in responding to requests for Commission records under
this subpart unless the Deputy Executive Director for Planning and
Information initially or the General Counsel or the Commission on appeal
determines in conformity with the provisions of 5 U.S.C. 552(a), amended
by Pub. L. 93-502, and 31 U.S.C. 483(a) that such charges or a portion
thereof are not in the public interest. Such a determination will
ordinarily not be made unless the service to be performed will benefit
primarily the public as opposed to the requester, or unless the
requester is a government agency or indigent. The first $10.00 of
search and/or duplication fees are free to any requester. Ordinarily,
fees will not be charged if the requested records are not found, or if
all the records found are withheld as exempt. However, if the time
expended in processing such a request is substantial, or if the
requester has been notified of the estimated cost, pursuant to 4.11 of
the Rules, or has been advised that it cannot be determined in advance
whether any records will be made available, fees may be charged. The
Deputy Executive Director for Planning and Information, with the
approval of the Commission, shall establish such fees.
(2) The following uniform schedule of fees applies to all constituent
units of the Commission:
(3) Payment should be made by check or money order payable to the
Treasury of the United States.
(5 U.S.C. 552; 15 U.S.C. 46(g))
(38 FR 1730, Jan. 18, 1973, as amended at 40 FR 7251, Feb. 19, 1975;
42 FR 56727, Oct. 28, 1977; 43 FR 57593, Dec. 8, 1978; 48 FR 4280,
Jan. 31, 1983; 50 FR 53306, Dec. 31, 1985)
16 CFR 4.9 Public records.
(a) General. (1) All records of the Commission are available for
public inspection and copying either routinely or upon request except to
the extent that they are exempt by law from mandatory public disclosure
and are described in 4.10 of this part.
(2) Records that are exempt from disclosure or are otherwise not
available from the Commission's public record may be made available for
inspection and copying only upon request under the procedures set forth
in 4.11 of this part, or as provided in 4.10(d) through (g), 4.13,
and 4.15(b)(3) of this part, by the Chairman under 5.12(c) of this
chapter, or by the Commission.
(b) Categories of public records. The public records of the
Commission that are routinely available for inspection and copying
include (except as provided in paragraph (c) of this section):
(1) Commission Organization and Procedures (16 CFR Part 0 and 4.14
through 4.15, 4.17). (i) A current index of opinions, orders, statements
of policy and interpretations, administrative staff manuals, general
instructions and other public records of the Commission;
(ii) A current record of the final votes of each member of the
Commission in all matters of public record, including matters of public
record decided by notational voting;
(iii) Descriptions of the Commission's organization, including
descriptions of where, from whom, and how the public may secure
information, submit documents or requests, and obtain copies of orders,
decisions and other materials;
(iv) Statements of the Commission's general procedures and policies
and interpretations, its nonadjudicative procedures, its rules of
practice for adjudicative proceedings, and its miscellaneous rules,
including descriptions of the nature and requirements of all formal and
informal procedures available, and
(v) Reprints of the principal laws under which the Commission
exercises enforcement or administrative responsibilities.
(2) Industry Guidance (16 CFR 1.1-1.6). (i) Any advice, advisory
opinion or response given and required to be made public under 1.4 and
2.41 (d) or (f) of this chapter (whether by the Commission or the
staff), together with a statement of supporting reasons;
(ii) Industry guides, digests of advisory opinions and compliance
advice believed to be of interest to the public generally and other
administrative interpretations;
(iii) Transcripts of hearings in all industry guide proceedings, as
well as written statements filed with or forwarded to the Commission in
connection with these proceedings; and
(iv) Petitions filed with the Secretary of the Commission for the
promulgation or issuance, amendment, or repeal of industry guides.
(3) Rulemaking (16 CFR 1.7 through 1.97). (i) Petitions filed with
the Secretary of the Commission for the promulgation or issuance,
amendment, or repeal of rules or regulations within the scope of 1.7
and 1.21 of this chapter, and petitions for exemptions;
(ii) Notices and advance notices of proposed rulemaking and rules and
orders issued in rulemaking proceedings; and
(iii) Transcripts of hearings of all rulemaking proceedings, as well
as written statements filed with or forwarded to the Commission in
connection with these proceedings.
(4) Investigations (16 CFR 2.7). (i) Petitions to limit or quash
compulsory process and the rulings thereon, requests for review by the
full Commission of those rulings, and Commission rulings on such
requests; and
(ii) Closing letters in initial phase and full phase investigations.
(5) Adjudicative proceeedings and litiqated orders. (16 CFR 3.1
through 3.24, 3.31 through 3.55, 4.7) -- Except for transcripts of
matters heard in camera pursuant to 3.45 and documents filed in camera
pursuant to 3.22, 3.24, 3.45, 3.46, 3.51 and 3.52; (i) The versions
of pleadings and transcripts of prehearing conferences (to the extent
made available under 3.21(e), motions, certifications, orders, and the
transcripts of hearings (including public conferences), testimony, oral
arguments, and other material made a part thereof, and exhibits and
documents received in evidence or made a part of the public record in
adjudicative proceedings;
(ii) Initial decisions of administrative law judges;
(iii) Orders and opinions in interlocutory matters;
(iv) Final orders and opinions in adjudications, including separate
statements of Commissioners;
(v) Petitions, applications, pleadings, briefs, and other records
filed by the Commission with the courts in connection with adjudicative,
injunctive, enforcement, compliance, and condemnation proceedings, and
in connection with judicial review of Commission actions, and opinions
and orders of the courts in disposition thereof;
(vi) Records of ex parte communications in adjudicative proceedings;
and
(vii) Petitions to reopen proceedings and orders to determine whether
orders should be altered, modified, or set aside in accordance with
2.51.
(6) Consent Agreements (16 CFR 2.31 through 2.34, 3.25, 3.71 through
3.72). (i) Agreements containing orders, after acceptance by the
Commission pursuant to 2.34 and 3.25(f) of this chapter;
(ii) Comments filed under 2.34 and 3.25(f) of this chapter
concerning proposed consent agreements;
(iii) Final decisions and orders issued after the comment period
prescribed in 2.34 and 3.25(f), including separate statements of
Commissioners; and
(iv) Petitions to reopen consent agreements to determine whether they
should be altered, modified, or set aside in accordance with 2.51.
(7) Compliance/Enforcement (16 CFR 2.33, 2.41). (i) Reports of
compliance filed pursuant to the rules in this chapter or pursuant to a
provision in a Commission order and supplemental materials filed in
connection with these reports, except for reports of compliance, and
supplemental materials filed in connection with Commission orders
requiring divestitures or establishment of business enterprises or
facilities, which are confidential until the last divestiture or
establishment of a business enterprise or facility, as required by a
particular order, has been finally approved by the Commission. At the
time each such report is submitted the filing party may request
confidential treatment in whole or in part and submit satisfactory
reasons therefor, and the Commission with due regard for statutory
restrictions, its rules and the public interest will pass upon such
request;
(ii) Requests for advice concerning proposed mergers and material
required to be made public under 2.41(f) of the Commission Rules; and
(iii) Applications for approval of proposed divestitures,
acquisitions or similar transactions subject to Commission review under
outstanding orders together with supporting materials, objections and
comments concerning these transactions submitted by the public and
Commission responses.
(8) Access to Documents and Meetings (16 CFR 4.8, 4.11, 4.13). (i)
Letters requesting access to Commission records pursuant to 4.11(a) of
this chapter and the Freedom of Information Act, 5 U.S.C. 552, and
letters granting or denying such requests (not including access requests
and answers thereto from the Congress or other government agencies);
(ii) Announcements of Commission meetings as required under the
Sunshine Act, 5 U.S.C. 552b, including records of the votes to close
such meetings;
(iii) Summaries or other explanatory materials relating to matters to
be considered at open meetings made available pursuant to 4.15(b)(3) of
this chapter; and
(iv) Commission minutes of open meetings, and, to the extent they are
not exempt from mandatory public disclosure under the Sunshine Act or
the Freedom of Information Act, portions of minutes or transcripts of
closed meetings.
(9) Standards of Conduct (16 CFR 5.5 through 5.6, 5.10 through 5.26,
5.31, 5.57 through 5.68).
(i) Memoranda to staff elaborating or clarifying standards described
in administative staff manuals and Part 5 of this subchapter.
(10) Miscellaneous (Press Releases, Clearance Requests, Reports Filed
by or with the Commission, Continuing Guaranties, Registered
Identification Numbers). (i) Releases by the Commission's Office of
Public Affairs supplying information concerning the activities of the
Commission;
(ii) Applications under 4.1(b)(2) of this chapter for clearance or
authorization to appear or participate in a proceeding or investigation
and of the Commission's responses thereto;
(iii) Continuing guaranties filed under the Wool, Fur, and Textile
Acts;
(iv) Published reports by the staff or by the Commission on economic
surveys and investigations of general interest;
(v) Filings by the Commission or by the staff in connection with
proceedings before other federal agencies or state or local government
bodies;
(vi) Registration statements and annual reports filed with the
Commission by export trade associations, and bulletins, pamphlets, and
reports with respect to such associations released by the Commission;
(vii) The identities of holders of registered identification numbers
issued by the Commission pursuant to 1.32 of this chapter;
(viii) The Commission's annual report submitted after the end of each
fiscal year, summarizing its work during the year (available for
inspection at each of the offices of the Commission with copies
obtainable from the Superintendent of Documents, U.S. Government
Printing Office, Washington, DC 20402) and any other annual reports made
to Congress on activities of the Commission as required by law; and
(ix) Every amendment, revision, substitute, or repeal of any of the
foregoing items listed in 4.9(b)(1) through (10) of this section.
(c) Confidentiality and in camera records. (1) Persons submitting
documentary material to the Commission described in this section may
designate that material or portions of it confidential and request that
it be withheld from the public record. No such material or portions of
material (including documents generated by the Commission or its staff
containing or reflecting such material or portions of material) will be
placed on the public record pursuant to this section until the
Commission has ruled on the request for confidential treatment and
provided any prior notice to the submitter required by law. All
requests for confidential treatment shall be supported by a showing of
justification in light of applicable statutes, rules, orders of the
Commission or its administrative law judges, orders of the courts, or
other relevant authority.
(2) Motions seeking in camera treatment of documents submitted in
connection with a proceeding under part 3 of these rules shall be filed
with the Administrative Law Judge who is presiding over the proceeding.
(3) The Commission may withhold from the public record any documents
or portions of documents otherwise falling within 4.9(b) of this
section to the extent they contain information that would be exempt from
mandatory public disclosure under 4.10 of this part.
(50 FR 50779, Dec. 12, 1985, as amended at 52 FR 22294, 22295, June
11, 1987)
16 CFR 4.10 Nonpublic information.
(a) The following records of the Commission are exempt from
availability for public inspection and copying pursuant to 5 U.S.C.
552.
(1) Records, except to the extent required to be disclosed under
other laws or regulations, related solely to the internal personnel
rules and practices of the Commission. This exemption applies to
internal rules or instructions to Commission personnel which must be
kept confidential in order to assure effective performance of the
functions and activities for which the Commission is responsible and
which do not affect members of the public.
(2) Trade secrets and commercial or financial information obtained
from a person and privileged or confidential. As provided in section
6(f) of the Federal Trade Commission Act, 15 U.S.C. 46(f), this
exemption applies to competitively sensitive information, such as costs
or various types of sales statistics and inventories. It includes trade
secrets in the nature of formulas, patterns, devices, and processes of
manufacture, as well as names of customers in which there is a
proprietary or highly competitive interest.
(3) Interagency or intra-agency memoranda or letters which would not
routinely be available by law to a private party in litigation with the
Commission. This exemption preserves the existing freedom of Commission
officials and employees to engage in full and frank communication with
each other and with officials and employees of other governmental
agencies. This exemption includes records of the deliberations of the
Commission except for the record of the final votes of each member of
the Commission in every agency proceeding. It includes intraagency and
interagency reports, memorandums, letters, correspondence, work papers,
and minutes of meetings, as well as staff papers prepared for use within
the Commission or between the Commission and other governmental
agencies. It also includes information scheduled for public release,
but as to which premature release would be contrary to the public
interest;
(4) Personnel and medical files and similar files the disclosure of
which would constitute a clearly unwarranted invasion of personal
privacy except to the extent such files or materials must be disclosed
under other laws or regulations. This exemption applies to personnel
and medical records and similar records containing private or personal
information concerning any individual which, if disclosed to any person
other than the individual concerned or his designated legal
representative without his permission in writing, would constitute a
clearly unwarranted invasion of personal privacy. Examples of files
exempt from disclosure include, but are not limited to:
(i) The personnel records of the Commission; (ii) files containing
reports, records or other material pertaining to individual cases in
which disciplinary or other administrative action has been or may be
taken, including records of proceedings pertaining to the conduct or
performance of duties by Commission personnel;
(5) Investigatory records compiled for law enforcement purposes to
the extent that release of information in such records would:
(i) Interfere with enforcement activities, (ii) deprive a person of a
right to a fair trial or an impartial adjudication, (iii) constitute an
unwarranted invasion of personal privacy, (iv) disclose the identity of
a confidential source, (v) disclose investigative techniques or
procedures, or (vi) endanger the life or physical safety of law
enforcement personnel. This exemption covers, but is not limited to
information obtained by the Commission relating to alleged or possible
violations of laws administered by the Commission, which information may
be in many forms, including letters of complaints, reports of interviews
conducted by Commission personnel, memoranda, transcripts of testimony
in nonpublic investigational hearings, and evidentiary documents
obtained during the course of investigation.
(6) Information contained in or related to examination, operating, or
condition reports prepared by, on behalf of, or for the use of an agency
responsible for the regulation or supervision of financial institutions;
(7) Geological and geophysical information and data, including maps,
concerning wells; and
(8) Material (including transcripts of oral testimony) which is
received by the Commission (i) in an investigation, a purpose of which
is to determine whether any person may have violated any provision of
the laws administered by the Commission, and (ii) which is provided
pursuant to any compulsory process under the Federal Trade Commission
Act, 15 U.S.C. 41, et seq., or which is provided voluntarily in place of
compulsory process in such an investigation. This material is exempt
from disclosure under the Freedom of Information Act, by virtue of
section 21(f) of the Federal Trade Commission Act.
(9) Material (including transcripts of oral testimony) which is
received by the Commission pursuant to compulsory process in an
investigation, a purpose of which is to determine whether any person may
have violated any provision of the laws administered by the Commission.
This material is exempt from disclosure under the Freedom of Information
Act by virtue of section 21(b)(3)(C) of the Federal Trade Commission
Act.
(10) Such other records of the Commission as may from time to time be
designated by the Commission as confidential pursuant to statute or
Executive Order. This exempts from disclosure any information which has
been designated nonpublic pursuant to criteria and procedures prescribed
by Executive Order and which has not been subsequently declassified in
accordance with applicable procedures. The exemption also preserves the
full force and effect of statutes which restrict public access to
specific government records.
(b) With respect to information contained in transcripts of
Commission meetings, the exemptions contained in paragraph (a) of this
section, except for paragraphs (a) (3) and (a) (7) of this section,
shall apply; in addition, such information will not be made available
if it is likely to have any of the effects described in 5 U.S.C. 552b
(c) (5), (c) (9), or (c) (10).
(c) Under section 10 of the Federal Trade Commission Act, any officer
or employee of the Commission who shall make public any information
obtained by the Commission, without its authority, unless directed by a
court, shall be deemed guilty of a misdemeanor, and upon conviction
thereof, may be punished by a fine not exceeding five thousand dollars
($5,000), or by imprisonment not exceeding 1 year, or by fine and
imprisonment, in the discretion of the court.
(d) Except as provided in paragraphs (f) and (g) and in 4.11 (b),
(c), and (d), no material (including transcripts of oral testimony)
which is marked or otherwise identified as confidential and which is
within the scope of 4.10(a)(8) and no material (including transcripts
of oral testimony) which is within the scope of 4.10(a)(9) which is not
otherwise public shall be made available to any individual other than a
duly authorized officer or employee of the Commission or a consultant or
contractor retained by the Commission who has agreed in writing not to
disclose the information without the consent of the person who produced
the material. All other Commission records may be made available to a
requester under the procedures set forth in 4.11 or may be disclosed by
the Commission except where prohibited by law.
(e) Except as provided in paragraphs (f) and (g) and in 4.11 (b),
(c), and (d), material (including transcripts of oral testimony) not
within the scope of 4.10(a)(8) or 4.10(a)(9) which is received by the
Commission and is marked or otherwise identified as confidential may be
disclosed only if it is determined that the material is not within the
scope of 4.10(a)(2), and only if the submitter is provided at least 10
days' notice of the intent to disclose the material involved.
(f) Nonpublic material (including transcripts of oral testimony)
obtained by the Commission may be disclosed to persons other than the
submitter in connection with the taking of oral testimony without the
consent of the submitter only if the material or transcript is not
within the scope of 4.10(a)(2). If the material is marked confidential,
the submitter will be provided 10 days' notice of the intended
disclosure or will be afforded an opportunity to seek an appropriate
protective order.
(g) Material (including transcripts of oral testimony) obtained by
the Commission:
(1) Through compulsory process or voluntarily in lieu thereof, and
protected by sections 21 (b) and (f) of the Federal Trade Commission
Act, 15 U.S.C. 57b-2 (b), (f), and 4.10(d) of this part; or
(2) That is designated by the submitter as confidential, and
protected by section 21(c) of the Federal Trade Commission Act, 15
U.S.C. 57b-2(c), and 4.10(e) of this part; or
(3) That is confidential commercial or financial information
protected by section 6(f) of the Federal Trade Commission Act, 15 U.S.C.
46(f), and 4.10(a)(2) of this part, may be disclosed in Commission
administrative or court proceedings subject to Commission or court
protective or in camera orders as appropriate. See 1.18(b) and 3.45.
Prior to disclosure of such material or transcripts in a proceeding,
the submitter will be afforded an opportunity to seek an appropriate
protective or in camera order. All other material obtained by the
Commission may be disclosed in Commission administrative or court
proceedings at the discretion of the Commission except where prohibited
by law.
(15 U.S.C. 41 et seq.)
(38 FR 1731, Jan. 18, 1973, as amended at 40 FR 7629, Feb. 21, 1975;
40 FR 23278, May 29, 1975; 42 FR 13540, Mar. 11, 1977; 46 FR 26291,
May 12, 1981; 46 FR 27634, May 21, 1981; 49 FR 30166, July 27, 1984;
54 FR 7399, Feb. 21, 1989)
16 CFR 4.11 Requests for disclosure of records.
(a) Freedom of Information Act requests -- (1) Initial requests --
(i) Form and contents; time of receipt. (A) A request under the
provisions of the Freedom of Information Act, 5 U.S.C. 552, as amended,
for access to Commission records shall be in writing and addressed as
follows:
Freedom of Information Act Request, Office of the Deputy Executive
Director for Planning and Information, Federal Trade Commission, 6th
Street and Pennsylvania Avenue, NW., Washington, DC 20580.
(B) Failure to mark the envelope and the request in accordance with
paragraph (a)(1)(i)(A) of this section will result in the request being
treated as received on the date the request is actually received by the
processing unit in the Office of the Deputy Executive Director for
Planning and Information.
(C) Each request must specifically indicate the requester's
willingness either (1) to pay, in accordance with 4.8(c) of these
rules, whatever fees may be charged for processing the request, or (2) a
willingness to pay such fees up to a specified amount.
(D) If the indication required by paragraph (a)(1)(i)(C) of this
section is absent, the requester will be advised by letter of the
estimated fees and the request will be deemed not to have been received
until the requester agrees to pay such fees; provided, however, if the
Deputy Executive Director for Planning and Information determines that
the estimated fees will not exceed $25.00, the request will be processed
upon receipt in accordance with the requirements of paragraph (a)(1)(i)
(A) or (B) of this section. For good cause an advance deposit may be
required.
(E) The letter of request should indicate whether any waiver of fees
is requested. The Deputy Executive Director for Planning and
Information shall make a determination on any such request in accordance
with 4.8(c) and notify the requester accordingly. A denial may be
appealed to the General Counsel. If a waiver is requested, and the
requester has not provided the indication required by paragraph
(a)(1)(i)(C) of this section, unless the Deputy Executive Director for
Planning and Information determines that the estimated fees will not
exceed $25.00, the access request will be deemed not to have been
received until the waiver is granted.
(ii) Identifiability. (A) A request for access to Commission records
must reasonably describe the records requested to enable Commission
personnel to identify and locate them with a reasonable amount of
effort. A request should be as specific as possible, and include, where
known, information regarding dates, titles, file designations, location,
and any other information which may assist the Commission in identifying
and locating the records requested.
(B) A denial of a request may state that the description required by
paragraph (a)(1)(ii)(A) of this section is insufficient to allow
identification and location of the records.
(iii) Time limit for initial determination. (A) The Deputy Executive
Director for Planning and Information shall, within ten (10) working
days of the receipt of a request, either grant or deny, in whole or in
part, such request.
(B) The Deputy Executive Director for Planning and Information may
extend this time limit by not more than ten working days if such
extension is:
(1) Necessary for locating records or transferring them from
physically separate facilities; or
(2) Necessary to search for, collect, and appropriately examine a
voluminous amount of separate and distinct records which are sought in a
single or series of closely related requests; or
(3) Necessary for consultation with another agency having a
substantial interest in the determination, or for consultation among two
or more components of the Commission having substantial subject-matter
interest therein.
(C) If the Deputy Executive Director for Planning and Information
extends the time limit for initial determination pursuant to paragraph
(a)(1)(iii)(B) of this section the requester shall be notified in
accordance with 5 U.S.C. 552(a)(6)(B).
(D) If a request is not granted within the time limits set forth in
paragraphs (a)(1)(iii) (A) and (B) of this section, the request shall be
deemed to be denied and the requesting party may appeal such denial to
the General Counsel in accordance with paragraph (a)(2) of this section.
(iv) Initial determination. (A) The Deputy Executive Director for
Planning and Information shall grant access to requested records, or any
portion thereof, that must be made available under the Freedom of
Information Act. He shall deny access to records that are exempt under
the Freedom of Information Act (5 U.S.C. 552(b)), unless he determines
that such records fall within a category the Commission or the General
Counsel has previously authorized to be made available to the public as
a matter of policy. Denials shall set forth the reasons therefore and
advise the requester that this determination can be appealed to the
General Counsel either because the requester believes the records are
not exempt, or because the requester believes the records are not
exempt, or because the requester believes the General Counsel should
exercise his discretion to release such records notwithstanding their
exempt status.
(B) The Deputy Executive Director for Planning and Information is
deemed to be the sole official responsible for all denials of initial
requests, except denials to materials contained in active investigatory
files in which case the Director of the Bureau or Regional Office
responsible for the investigation shall be the responsible official.
(C) Records to which access has been granted will be made available
to the requester and will remain available for inspection and copying
for a period not to exceed thirty days from date of notification to the
requester unless the requester asks for and receives the consent of the
Deputy Executive Director for Planning and Information to a longer
period. Records assembled pursuant to a request will remain available
only during this time period and thereafter will be refiled.
Appropriate fees may again be imposed for any new or renewed request for
the same records.
(D) If a requested record cannot be located from the information
supplied, or is known to have been destroyed or otherwise disposed of,
the requester shall be so notified.
(2) Appeals to the General Counsel from initial denials -- (i) Form
and contents; time of receipt. (A) If the Deputy Executive Director
for Planning and Information denies an initial request for records in
its entirety, the requester may, within 30 days of the date of the
determination of the Deputy Executive Director for Planning and
Information, appeal such denial to the General Counsel. If the Deputy
Executive Director for Planning and Information denies an initial
request in part, the time for appeal shall not expire until 30 days
after the date of the letter notifying the requester that all records to
which access has been granted have been made available. The appeal
shall be in writing and should include a copy of the initial request and
a copy of the response of the Deputy Executive Director for Planning and
Information, if any. The appeal shall be addressed as follows:
Freedom of Information Act Appeal, Office of the General Counsel,
Federal Trade Commission, 6th Street and Pennsylvania Avenue, NW.,
Washington, DC 20580
(B) Failure to mark the envelope and the appeal, in accordance with
paragraph (a)(2)(i)(A) of this section, will result in the appeal being
treated as received on the date the appeal is actually received by the
Office of the General Counsel.
(C) Each appeal to the General Counsel which requests him to exercise
his discretion to release exempt records shall set forth the interest of
the requester in the subject matter and the purpose for which the
records will be used if the request is granted.
(ii) Time limit for appeal. (A) The General Counsel shall, within
twenty (20) working days of the receipt of an appeal, either grant or
deny the appeal, in whole or in part.
(B) The Commission or the General Counsel may, by written notice to
the requester in accordance with 5 U.S.C. 552 (a)(6)(B), extend the time
limit for deciding an appeal by not more than ten working days for the
reasons set forth in paragraph (a)(1)(iii)(B), of this section, provided
that the amount of any extensions utilized by the Deputy Executive
Director for Planning and Information under that subsection shall be
subtracted from the amount of additional time otherwise available.
(iii) Determination of appeal. (A) The General Counsel shall have
the authority to grant or deny all appeals and to release as an exercise
of discretion records exempt from mandatory disclosure under 5 U.S.C.
552(b). In unusual or difficult cases he may, in his sole discretion,
refer an appeal to the Commission for determination. A denial of an
appeal in whole or in part shall set forth the basis for the denial, and
shall advise the requester that judicial review of the decision is
available either in the district in which the requester resides or has a
principal place of business, in the district in which the agency records
are situated, or in the District of Columbia.
(B) The General Counsel shall be deemed solely responsible for all
denials of appeals, except where an appeal is denied by the Commission.
In such instances, the Commission shall be deemed solely responsible for
the denial.
(b) Requests from congressional committees and subcommittees.
Requests from congressional committees and subcommittees for nonpublic
records shall be referred to the General Counsel for presentation to the
Commission, subject to the provisions in 5 U.S.C. 552(c) and FTC Act
21(b) that neither the Freedom of Information Act, 5 U.S.C. 552, nor the
Federal Trade Commission Act, 15 U.S.C. 41, et seq., is authority to
withhold information from Congress. Upon receipt of a request from a
congressional committee or subcommittee, notice will be given to the
submitter of any material marked confidential, or any material within
the scope of 4.10(a)(9), that is responsive to the request that the
request has been received. No other notice need be provided prior to
granting the request. The Commission will inform the committee or
subcommittee that the submitter considers such information confidential.
(c) Requests from Federal and State law enforcement agencies.
Requests from law enforcement agencies of the Federal government should
be addressed to the liaison officer for the requesting agency, or if
there is none, to the General Counsel. Requests from state agencies
should be addressed to the General Counsel. With respect to requests
under this subsection, the General Counsel or the appropriate liaison
officer is delegated the authority to dispose of them or may refer them
to the Commission for determination, except that requests must be
referred to the Commission for determination where the Bureau having the
documents sought and the General Counsel do not agree on the
disposition. Prior to granting access under this section to any
material submitted to the Commission, the General Counsel or liaison
officer will obtain from the requester a certification that such
information will be maintained in confidence and will be used only for
official law enforcement purposes. The certificate will also describe
the nature of the law enforcement activity and the anticipated relevance
of the information to that activity. A copy of the certificate will be
forwarded to the submitter of the information at the time the request is
granted unless the agency requests that the submitter not be notified.
(d) Requests from Federal and State agencies for purposes other than
law enforcement. Requests from Federal and State agencies for access
not related to law enforcement should be addressed to the General
Counsel. Disclosure of nonpublic information will be made consistent
with sections 6(f) and 21 of the FTC Act.
(e) Information requested by subpoena in cases or matters to which
the agency is not a party. (1) The procedures specified in this section
will apply to all subpoenas directed to Commission employees, except
special government employees, that relate in any way to the employees'
official duties. These procedures will also apply to subpoenas directed
to former Commission employees and current or former special government
employees of the Commission, if the subpoenas seek nonpublic materials
or information acquired during Commission employment. The provisions of
paragraph (e)(3) of this section will also apply to subpoenas directed
to the agency. For purposes of this section, the term ''subpoena''
includes any compulsory process in a case or matter to which the agency
is not a party; the term ''nonpublic'' includes any material or
information which, under 4.10, is exempt from availability for public
inspection and copying; the term ''employees,'' except where otherwise
specified, includes ''special government employees'' and other agency
employees; and the term ''special government employees'' includes
consultants and other employees as defined by section 202 of title 18 of
the United States Code.
(2) Any employee or former employee who is served with a subpoena
shall promptly advise the General Counsel of the service of the
subpoena, the nature of the documents or information sought, and all
relevant facts and circumstances.
(3) A party causing a subpoena to be issued to the Commission or any
employee or former employee of the Commission shall furnish a statement
to the General Counsel. The statement shall set forth the party's
interest in the case or matter, the relevance of the desired testimony
or documents, and a discussion of whether the desired testimony or
documents are reasonably available from other sources. If testimony is
desired, the statement shall also contain a general summary of the
testimony and a discussion of whether agency records could be produced
and used in its place. Any authorization for testimony will be limited
to the scope of the demand as summarized in such statement.
(4) Absent authorization from the General Counsel, the employee or
former employee shall respectfully decline to produce requested
documents or records or to disclose requested information. The refusal
should be based on this paragraph and on Touhy v. Ragen, 340 U.S. 462
(1951).
(5) The General Counsel will consider and act upon subpoenas under
this section with due regard for statutory restrictions, the
Commission's rules and the public interest, taking into account factors
such as the need to conserve the time of employees for conducting
official business; the need to avoid spending the time and money of the
United States for private purposes; the need to maintain impartiality
between private litigants in cases where a substantial government
interest is not involved; and the established legal standards for
determining whether justification exists for the disclosure of
confidential information and records.
(f) Requests by current or former employees to use nonpublic
memoranda as writing samples shall be addressed to the General Counsel.
The General Counsel is delegated the authority to dispose of such
requests consistent with applicable nondisclosure provisions, including
sections 6(f) and 21 of the FTC Act.
(15 U.S.C. 41 et seq.)
(40 FR 7629, Feb. 21, 1975, as amended at 42 FR 13820, Mar. 14, 1977;
43 FR 5802, Feb. 10, 1978; 46 FR 26292, May 12, 1981; 48 FR 4280,
Jan. 31, 1983; 49 FR 20279, May 14, 1984; 49 FR 21048, May 18, 1984;
50 FR 36048, Sept. 5, 1985; 50 FR 53306, Dec. 31, 1985; 55 FR 29839,
July 23, 1990)
16 CFR 4.12 Disposition of documents submitted to the Commission.
(a) Documents submitted to the Commission. Any person who has
submitted documentary material to the Commission (including transcripts
of oral testimony) may obtain, on request, the return of material
submitted to the Commission which has not been received into evidence
(1) after the close of the proceeding in connection with which the
documents were submitted or (2) when no proceeding in which the material
may be used has been commenced within a reasonable time after completion
of the examination and analysis of all such material and other
information assembled in the course of the investigation. Such request
shall be in writing, addressed to the custodian designated pursuant to
2.16 or the Secretary of the Commission in all other circumstances, and
shall reasonably describe the documents requested. A request for return
of documents may be filed at any time, but documents will not be
returned nor will commitments to return documents be undertaken prior to
the time described in this subsection.
(b) Commission-made copies of documents submitted to the Commission.
The Commission will not return to the submitter copies of documents made
by the Commission unless, upon a showing of extraordinary circumstances,
the Commission determines that return would be required in the public
interest.
(c) Disposition of documents not returned. Subsequent to the time
prescribed in paragraph (a) of this section, the staff will examine all
submitted documents and Commission-made copies located in a reasonable
search of the Commission's files and will determine, pursuant to the
Federal Records Act, 44 U.S.C. 3301, which documents are appropriate for
preservation as evidence of the organization, functions, policies,
decisions, procedures, operations, or other activities of the Commission
or because of the information value of data in them. The Commission
will dispose of all documents determined not to be appropriate for
preservation in accordance with applicable regulations of the General
Services Administration.
(46 FR 26292, May 12, 1981)
16 CFR 4.13 Privacy Act rules.
(a) Purpose and scope. (1) This section is promulgated to implement
the Privacy Act of 1974 (Pub. L. 93-579, 5 U.S.C. 552a) by establishing
procedures whereby an individual can, as to all systems of records
maintained by the Commission except those set forth in 4.13(m) as
exempt from disclosure, (i) Request notification of whether the
Commission maintains a record pertaining to him in any system of
records, (ii) request access to such a record or to an accounting of its
disclosure, (iii) request that the record be amended or corrected, and
(iv) appeal an initial adverse determination of any such request. This
section also establishes those systems of records that are specifically
exempt from disclosure and from other requirements.
(2) The procedures of this section apply only to requests by an
individual as defined in 4.13(b). Except as otherwise provided, they
govern only records containing personal information in systems of
records for which notice has been published by the Commission in the
Federal Register pursuant to section 552a(e)(4) of the Privacy Act of
1974 and which are neither exempt from the provisions of this section
nor contained in government-wide systems of personnel records for which
notice has been published in the Federal Register by the Office of
Personnel Management. Requests for notification, access, and amendment
of personnel records which are contained in a system of records for
which notice has been given by the Office of Personnel Management are
governed by the Office of Personnel Management's notices, 5 CFR part
297. Access to records which are not subject to the requirements of the
Privacy Act are governed by 4.8 through 4.11.
(b) Definitions. The following definitions apply to this section
only:
(1) ''Individual'' means a natural person who is a citizen of the
United States or an alien lawfully admitted for permanent residence.
(2) ''Record'' means any item, collection, or grouping of personal
information about an individual that is maintained by the Commission,
including, but not limited to, his education, financial transactions,
medical history, and criminal or employment history and that contains
his name, or the identifying number, symbol, or other identifying
particular assigned to the individual, such as a finger or voice print
or a photograph, but does not include information concerning
proprietorships, businesses, or corporations.
(3) ''System of records'' means a group of any records under the
control of the Commission from which information is retrieved by the
name of the individual or by some identifying number, symbol, or other
identifying particular assigned to the individual, for which notice has
been published by the Commission in the Federal Register pursuant to 5
U.S.C. 552a(e)(4).
(c) Procedures for requests pertaining to individual records in a
record system. An individual may request access to his records or any
information pertaining to him in a system of records, and notification
of whether and to whom the Commission has disclosed a record for which
an accounting of disclosures is required to be kept and made available
to him, using the procedures of this subsection. Requests for the
disclosure of records under this subsection or to determine whether a
system of records contains records pertaining to an individual or to
obtain an accounting of disclosures, shall be in writing and if mailed,
addressed as follows:
Privacy Act Request, Office of the Deputy Executive Director for
Planning and Information, Federal Trade Commission, 6th Street and
Pennsylvania Avenue NW., Washington, DC 20580.
If requests are presented in person at the Office of the Deputy
Executive Director for Planning and Information, the individual shall be
required to execute a written request. All requests must name the
system of records which is the subject of the request, and must include
any additional information specified in the pertinent system notice as
necessary to locate the records requested. If the requester desires to
permit a person to accompany him to review his record, the request shall
so state. Nothing in this section shall allow an individual access to
any information compiled in reasonable anticipation of a civil action or
proceeding.
(d) Times, places, and requirements for identification of individuals
making requests. Verification of identity of persons making written
requests to the Deputy Executive Director for Planning and Information
ordinarily will not be required. The signature upon such requests shall
be deemed to be a certification by the person signing that he is the
individual to whom the record pertains or the parent of a minor or the
duly appointed legal guardian of the individual to whom the record
pertains. The Deputy Executive Director for Planning and Information
may require additional verification of identity as specified by him when
necessary reasonably to assure that records are not improperly
disclosed; provided, however, that no verification of identity will be
required where the records sought are publicly available under the
Freedom of Information Act.
(e) Disclosure of requested information to individuals. Within ten
(10) working days of receipt of a request under 4.13(c), the Deputy
Executive Director for Planning and Information shall acknowledge
receipt of the request. Within thirty (30) working days of the receipt
of a request under 4.13(c), the Deputy Executive Director for Planning
and Information shall inform the requester whether a system of records
containing retrievable information pertaining to the requester exists,
and if so, either that his request has been granted or that the
requested records or information is exempt from disclosure pursuant to
4.13(m). When, for good cause shown, the Deputy Executive Director for
Planning and Information is unable to respond within thirty (30) working
days of the receipt of the request, he shall notify the requester of
that fact and approximately when it is anticipated that a response will
be made.
(f) Special procedures: Medical records. When the Deputy Executive
Director for Planning and Information determines that disclosure of a
medical or psychological record directly to a requesting individual
could have an adverse effect on the individual, he shall require the
individual to designate a medical doctor to whom the record will be
transmitted.
(g) Request for correction or amendment of record. An individual to
whom access to his records or any information pertaining to him in a
system of records has been granted may request that any portion thereof
be amended or corrected because he believes it is not accurate,
relevant, timely, or complete. An initial request for correction or
amendment of a record shall be in writing whether presented in person or
by mail, and if by mail, addressed as in 4.13(c). In making a request
under this subsection, the requesting party shall state the nature of
the information in the record the individual believes to be inaccurate,
irrelevant, untimely, or incomplete, the correction or amendment
desired, and the reasons therefore.
(h) Agency review of request for correction or amendment of record.
Whether presented in person or by mail, requests under 4.13(g) shall be
acknowledged by the Deputy Executive Director for Planning and
Information within ten (10) working days of the receipt of the request
if action on the request cannot be completed and the individual notified
of the results within that time. Thereafter, the Deputy Executive
Director for Planning and Information shall promptly either make the
requested amendment or correction or inform the requester of his refusal
to make the amendment or correction, the reasons for the refusal, and
the requester's right to appeal that determination in accordance with
4.13(i).
(i) Appeal of initial adverse agency determination. (1) If the
Deputy Executive Director for Planning and Information denies an initial
request under 4.13(c) or 4.13(g), the requester may appeal that
determination to the Commission. The appeal shall be in writing and
addressed as follows:
Privacy Act Appeal, Office of the General Counsel, Federal Trade
Commission, 6th Street and Pennsylvania Avenue NW., Washington, DC
20580.
The Commission shall notify the requester within thirty (30) working
days of the receipt of his appeal of the disposition of that appeal,
except that the thirty (30) day period may be extended for good cause,
in which case the requester will be advised of the approximate date on
which review will be completed.
(2)(i) If the Commission refuses to amend or correct the record in
accordance with a request under 4.13(g), it shall notify the requester
of that determination and inform him of his right to file with the
Deputy Executive Director for Planning and Information of the Commission
a concise statement setting forth the reasons for his disagreement with
that determination and the fact that such a statement will be treated as
set forth in paragraph (i)(2)(ii) of this section. The Commission shall
also inform the requester that judicial review of the determination is
available by a civil suit in the district in which the requester
resides, or has his principal place of business, or in which the agency
records are situated, or in the District of Columbia.
(ii) If the individual files a statement disagreeing with the
Commission's determination not to amend or correct a record, it shall be
clearly noted in the record involved and made available to anyone to
whom the record has been disclosed after September 27, 1975, or is
subsequently disclosed together with, if the Commission deems it
appropriate, a brief statement of the reasons for refusing to amend the
record.
(j) Disclosure of record to person other than the individual to whom
it pertains. Except as provided by 5 U.S.C. 552a(b), the written
request or prior written consent of the individual to whom a record
pertains, or of his parent if a minor, or legal guardian if incompetent,
shall be required before such record is disclosed. If the individual
elects to inspect a record in person and desires to be accompanied by
another person, the Deputy Executive Director for Planning and
Information may require the individual to furnish a signed statement
authorizing his record to be disclosed in the presence of the
accompanying named person.
(k) Fees. No fees shall be charged for searching for a record,
reviewing it, or for copies of records made by the Commission for its
own purposes incident to granting access to a requester. Copies of
records to which access has been granted under this section may be
obtained by the requester from the Deputy Executive Director for
Planning and Information upon payment of the reproduction fees provided
in 4.8(c)(2).
(l) Penalties. Section 552a(i)(3) of the Privacy Act, 5 U.S.C.
552a(i)(3), makes it a misdemeanor, subject to a maximum fine of $5,000,
to knowingly and willfully request or obtain any record concerning an
individual under false pretenses. Sections 552a(i)(1) and (2) of the
Privacy Act, 5 U.S.C. 552a(i) (1) and (2), provide penalties for
violations by agency employees of the Privacy Act or regulations
established thereunder. Title 18 U.S.C. 1001, Crimes and Criminal
Procedures, makes it a criminal offense, subject to a maximum fine of
$10,000 or imprisonment for not more than 5 years or both, to knowingly
and willfully make or cause to be made any false or fraudulent
statements or representations in any matter within the jurisdiction of
any agency of the United States.
(m) Specific exemptions. Pursuant to 5 U.S.C. 552a(k)(2),
investigatory material compiled for law enforcement purposes in the
following systems of records is exempt from subsections (c)(3), (d),
(e)(1), (e)(4), (G), (H), and (I), and (f) of 5 U.S.C. 552a, and from
the provisions of this section, except as otherwise provided in section
552a(k)(2):
Disciplinary Action Investigatory Files -- FTC.
Investigational, Legal, and Public Records -- FTC.
Litigation Information Management Systems for Investigations,
Rulemaking, and Adjudicatory Proceedings -- FTC.
Preliminary Investigation Files -- FTC.
Office of Inspector General Investigative Files -- FTC
In addition, pursuant to 5 U.S.C. 552a(j)(2), investigatory materials
maintained by an agency component in connection with any activity
relating to criminal law enforcement in the following systems of records
are exempt from all subsections of 5 U.S.C. 552a, except (b), (c)(1) and
(2), (e)(4)(A) through (F), (e)(6), (7), (9), (10), and (11), and (i),
and from the provisions of this section, except as otherwise provided in
5 U.S.C. 552a(j)(2):
Office of Inspector General Investigative Files -- FTC
(40 FR 40780, Sept. 3, 1975, as amended at 46 FR 26292, May 12, 1981;
48 FR 4280, Jan. 31, 1983; 55 FR 37700, Sept. 13, 1990; 55 FR 38801,
Sept. 21, 1990)
16 CFR 4.14 Conduct of business.
(a) Matters before the Commission for consideration may be resolved
either at a meeting under 4.15 or by written circulation. Any
Commissioner may direct that a matter presented for consideration be
placed on the agenda of a Commission meeting.
(b) Quorum. A majority of the members of the Commission, constitutes
a quorum for the transaction of business.
(c) Any Commission action, either at a meeting or by written
circulation, may be taken only with the affirmative concurrence of a
majority of the participating Commissioners, except where a greater
majority is required by statute or rule or where the action is taken
pursuant to a valid delegation of authority. No Commissioner may
delegate the authority to determine his or her vote in any matter
requiring Commission action, but authority to report a Commissioner's
vote on a particular matter resolved either by written circulation, or
at a meeting held in the Commissioner's absence, may be vested in a
member of the Commissioner's staff.
(42 FR 13540, Mar. 11, 1977, as amended at 50 FR 53306, Dec. 31,
1985)
16 CFR 4.15 Commission meetings.
(a) In general. (1) Meetings of the Commission, as defined in 5
U.S.C. 552b(a)(2), are held at the principal office of the Commission,
unless otherwise directed.
(2) Initial announcements of meetings. For each meeting, the
Commission shall announce: (i) The time, place and subject matter of
the meeting, (ii) whether the meeting will be open or closed to the
public, and (iii) the name and phone number of the official who will
respond to requests for information about the meeting. Such
announcement shall be made at least one week before the meeting except
that where the agency determines pursuant to 5 U.S.C. 552b(e)(1) to call
the meeting on less than one week's notice, or where the agency
determines to close the meeting pursuant to paragraph (c)(2) of this
section, the announcement shall be made at the earliest practicable
time.
(3) Announcements of changes in meetings. Following the announcement
of a meeting, any change in the time, place or subject matter will be
announced at the earliest practicable time, and, except with respect to
meetings closed under paragraph (c)(2) of this section, any change in
the subject matter or decision to open or close a meeting shall be made
only as provided in 5 U.S.C. 552b(e)(2).
(4) Deletions from announcements. The requirements of paragraphs
(a)(2) and (a)(3) of this section do not require the disclosure of any
information pertaining to a portion of a closed meeting where such
disclosure is likely to concern a matter within the scope of 5 U.S.C.
552b(c).
(5) Dissemination of notices. Notices required under paragraphs
(a)(2) and (a)(3) of this section will be posted at the principal office
of the Commission, recorded on a telephone message device, and, except
as to notices of meetings closed under paragraph (c)(2) of this section,
submitted to the Federal Register for publication. In addition, notices
issued under paragraph (a)(2) of this section one week in advance of the
meeting will be sent to all persons and organizations who have requested
inclusion on a meeting notice mailing list, and will be issued as a
press release to interested media.
(b) Open meetings. (1) Commission meetings shall be open to public
observation unless the Commission determines that portions may be closed
pursuant to 5 U.S.C. 552b(c).
(2) Any person whose interest may be directly affected if a portion
of a meeting is open, may request that the Commission close that portion
for any of the reasons described in 5 U.S.C. 552b(c). The Commission
shall vote on such requests if at least one member desires to do so.
Such requests shall be in writing, filed at the earliest practicable
time, and describe how the matters to be discussed will have any of the
effects enumerated in 5 U.S.C. 552b(c). Requests shall be addressed as
follows:
Closed Meeting Request, Office of the General Counsel, Federal Trade
Commission, 6th Street and Pennsylvania Avenue NW., Washington, DC
20580.
(3) The Commissioner to whom a matter has been assigned for
presentation to the Commission shall have the authority to make
available to the public, prior to consideration of that matter at an
open meeting, material sufficient to inform the public of the issues
likely to be discussed in connection with that matter.
(c) Closed meetings. (1) Whenever the Commission votes to close a
meeting or series of meetings under these rules, it shall make publicly
available within one day notices both of such vote and the General
Counsel's determination regarding certification under 5 U.S.C.
552b(f)(1). Such determination by the General Counsel shall be made
prior to the Commission vote to close a meeting or series of meetings.
Further, except with respect to meetings closed under paragraph (c)(2)
of this section, the Commission shall make publicly available within one
day a full written explanation of its action in closing any meeting, and
a list specifying the names and affiliations of all persons expected to
attend, except Commission employees and consultants and any stenographer
or court reporter attending for the sole purpose of preparing a verbatim
transcript. All Commission employees and consultants may attend
nonadjudicative portions of any closed meeting and members of
Commissioners' personal staffs, the General Counsel and his staff, and
the Secretary and his staff may attend the adjudicative portions of any
closed meeting except to the extent the notice of a particular closed
meeting otherwise specifically provides. Stenographers or court
reporters may attend any closed meeting at which their services are
required by the Commission.
(2) If a Commission meeting, or portions thereof, may be closed
pursuant to 5 U.S.C. 552b(c)(10), the Commission may, by vote recorded
at the beginning of the meeting, or portion thereof, close the portion
or portions of the meeting so exempt.
(3) Closed meeting transcripts or minutes required by 5 U.S.C.
552b(f)(1) will be released to the public insofar as they contain
information that either is not exempt from disclosure under 5 U.S.C.
552b(c), or, although exempt, should be disclosed in the public
interest. The Commission will determine whether to release, in whole or
in part, the minutes of its executive sessions to consider oral
arguments. With regard to all other closed meetings, the General
Counsel, without power of redelegation, shall have the authority to
determine which portions of the transcripts or minutes may be released.
In unusual or difficult cases the General Counsel may, in his sole
discretion, refer the question of release to the Commission for
determination
(d) The presiding officer shall be responsible for preserving order
and decorum at meetings and shall have all powers necessary to that end.
(42 FR 13541, Mar. 11, 1977; 42 FR 15409, Mar. 22, 1977, as amended
at 42 FR 62912, Dec. 14, 1977: 43 FR 1937, Jan. 13, 1978; 43 FR 35684,
Aug. 11, 1978)
16 CFR 4.16 Privilege against self-incrimination.
Section 2.11 of Pub. L. 91-462 specifically repeals paragraph 7 of
section 9 of the Federal Trade Commission Act. Title 18, section 6002,
of the United States Code provides that whenever a witness refuses, on
the basis of his privilege against self-incrimination, to testify or
provide other information in a proceeding before or ancillary to:
(a) A court or grand jury of the United States, (b) an agency of the
United States, or (c) either House of Congress, a joint committee of the
two Houses, or a committee or a subcommittee of either House, and the
person presiding over the proceeding communicates to the witness an
order issued under section 6004, the witness may not refuse to comply
with the order on the basis of his privilege against self-incrimination;
but no testimony or other information compelled under the order (or any
information directly or indirectly derived from such testimony or other
information) may be used against the witness in any criminal case,
except a prosecution for perjury, giving a false statement, or otherwise
failing to comply with the order. Title 18, section 6004, of the United
States Code provides that:
(1) In the case of any individual who has been or who may be called
to testify or provide other information at any proceeding before an
agency of the United States, the agency may, with the approval of the
Attorney General, issue, in accordance with subsection (b) of section
6004, an order requiring the individual to give testimony or provide
other information which he refused to give or provide on the basis of
his privilege against self-incrimination, such order to become effective
as provided in title 18, section 6002, of the United States Code; (2)
an agency of the United States may issue an order under subsection (a)
of section 6004 only if in its judgment (i) the testimony or other
information from such individual may be necessary to the public
interest; and (ii) such individual has refused or is likely to refuse
to testify or provide other information on the basis of his privilege
against self-incrimination.
(18 U.S.C. 6002, 6004)
(37 FR 5017, Mar. 9, 1972. Redesignated at 45 FR 36345, May 29, 1980)
16 CFR 4.17 Disqualification of Commissioners.
(a) Applicability. This section applies to all motions seeking the
disqualification of a Commissioner from any adjudicative or rulemaking
proceeding.
(b) Procedures. (1) Whenever any participant in a proceeding shall
deem a Commissioner for any reason to be disqualified from participation
in that proceeding, such participant may file with the Secretary a
motion to the Commission to disqualify the Commissioner, such motion to
be supported by affidavits and other information setting forth with
particularity the alleged grounds for disqualification.
(2) Such motion shall be filed at the earliest practicable time after
the participant learns, or could reasonably have learned, of the alleged
grounds for disqualification.
(3)(i) Such motion shall be addressed in the first instance by the
Commissioner whose disqualification is sought.
(ii) In the event such Commissioner declines to recuse himself or
herself from further participation in the proceeding, the Commission
shall determine the motion without the participation of such
Commissioner.
(c) Standards. Such motion shall be determined in accordance with
legal standards applicable to the proceeding in which such motion is
filed.
(15 U.S.C. 46(g))
(46 FR 45750, Sept. 15, 1981)
16 CFR 4.17 PART 5 -- STANDARDS OF CONDUCT
16 CFR 4.17 Subpart A -- General Provisions
Sec.
5.1 Purpose.
5.2 Authority.
5.3 Presidential policy.
5.4 Definitions.
5.5 Interpretation and advisory services.
5.6 Procedures for reporting and resolving conflicts of interest.
5.7 Disciplinary or other remedial action by the Chairman.
5.8 Exemption of insubstantial financial conflicts.
5.9 Publication of regulations.
16 CFR 4.17 Subpart B -- Ethical and Other Conduct and Responsibilities
of Employees
5.10 Proscribed actions.
5.11 Gifts, entertainment, and favors.
5.12 Outside employment and other activity.
5.13 Financial interests.
5.14 Criminal sanction for conflict of interest.
5.15 Use of Government property.
5.16 Misuse of information.
5.17 Indebtedness.
5.18 Gambling, betting, and lotteries.
5.19 Miscellaneous statutory provisions.
16 CFR 4.17 Subpart C -- Ethical and Other Conduct and Responsibilities
of Special Government Employees
5.21 Application of Subpart B of this part to special Government
employees.
5.22 Use of Government employment.
5.23 Use of inside information.
5.24 Coercion.
5.25 Gifts, entertainment, and favors.
5.26 Miscellaneous statutory provisions.
16 CFR 4.17 Subpart D -- Financial Disclosures
5.31 Public financial disclosure reports under the Ethics in
Government Act.
5.32 Statements of employment and financial interests under Executive
Order 11222.
5.33 Time for submission of statements.
5.34 Supplementary statements.
5.35 Interests of employees' relatives.
5.36 Information not known by employees.
5.37 Information prohibited.
5.38 Review of employees' statements.
5.39 Confidentiality of employees' statements.
5.40 Effect of employees' statements on other requirements.
5.41 Specific provisions for special Government employees.
5.42 Reviewing statements of special Government employees.
16 CFR 4.17 Subpart E -- Disciplinary Actions Concerning Postemployment
Conflict of Interest
5.51 Scope and applicability.
5.52 Nonpublic proceedings.
5.53 Initiation of investigation.
5.54 Referral to the Office of Government Ethics and to the
Department of Justice.
5.55 Conduct of investigation.
5.56 Disposition.
5.57 Order to show cause.
5.58 Answer and request for a hearing.
5.59 Presiding official.
5.60 Scheduling of hearing.
5.61 Prehearing procedures; motions; interlocutory appeals;
summary decision; discovery; compulsory process.
5.62 Hearing rights of respondent.
5.63 Evidence; transcript; in camera orders; proposed findings of
fact and conclusions of law.
5.64 Initial decision.
5.65 Review of initial decision.
5.66 Commission decision and reconsideration.
5.67 Sanctions.
5.68 Judicial review.
Authority: E.O. 11222 of May 8, 1965, 30 FR 6469, 3 CFR, 1965 Supp.,
5 CFR 735.104, unless otherwise noted.
Source: 32 FR 13272, Sept. 20, 1967, unless otherwise noted.
Redesignated at 41 FR 54483, Dec. 14, 1976.
16 CFR 4.17 Subpart A -- General Provisions
16 CFR 5.1 Purpose.
This part establishes standards of ethical conduct for employees and
special Government employees in the Federal Trade Commission. It sets
forth regulations pertaining to financial interests; acceptance of
gifts, entertainment, and favors; outside employment; use of
Government information; and teaching, lecturing, and writing. This
part also contains instructions for the filing of public financial
disclosure reports under the Ethics in Government Act by members and
certain employees and the filing of confidential statements of
employment and financial interests by certain employees and special
Government employees.
(52 FR 34765, Sept. 15, 1987)
16 CFR 5.2 Authority.
This part is based on Pub. L. 87-849, effective January 21, 1963;
Executive Order 11222 of May 8, 1965; and part 735 of Office of
Personnel Management regulations (5 CFR part 735). This part does not
purport to refer to or enumerate every restriction or requirement
imposed by statute, regulation, or other authority. The omission of a
reference thereto in no way alters the legal effect of such restriction
or requirement. This part is not intended to limit whatever statutory
authority or responsibility the Chairman may have with respect to
employee conduct and discipline.
(32 FR 13272, Sept. 20, 1967. Redesignated at 41 FR 54483, Dec. 14,
1976, and amended at 46 FR 26292, May 12, 1981)
16 CFR 5.3 Presidential policy.
The President's policy, in section 101 of Executive Order No. 11222,
is that ''Where government is based on the consent of the governed,
every citizen is entitled to have confidence in the integrity of his
government. Each individual officer, employee, or adviser of government
must help to earn and must honor that trust by his own integrity and
conduct in all official actions.'' When signing the order, the President
spoke even more specifically of what he conceives to be the duty that
this policy imposes on employees of the executive branch: ''Government
personnel bear a special responsibility to be fair and impartial in
their dealings with those who have business with the government. We
cannot tolerate conflicts of interest or favoritism -- and it is our
intention to see that this does not take place in the Federal
Government.'' This policy is based on a recognition that the maintenance
of unusually high standards of honesty, integrity, impartiality, and
conduct by Government employees, and special Government employees,
through informed judgment is essential to assure the proper performance
of the Government's business and the maintenance of confidence and
respect of the citizens in their Government.
16 CFR 5.4 Definitions.
In this part:
(a) Commission means the Federal Trade Commission.
(b) Employee means an officer or employee of the Commission, and,
insofar as statutory and Executive order provisions are concerned, a
Commissioner, but does not include a special Government employee.
(c) Executive order means Executive Order 11222.
(d) Person means an individual, a corporation, a company, an
association, a firm, a partnership, a society, a joint stock company, or
any other organization or institution.
(e) Special Government employee means a ''special Government
employee'' as defined in section 202 of Title 18 of the United States
Code, who is employed in the Federal Trade Commission. In general, this
refers to employees appointed to perform temporary duties on either a
full-time or intermittent basis for not to exceed 130 days during any
period of 365 consecutive days.
(f) General Counsel means the General Counsel or the General
Counsel's designee.
(Sec. 6(g), 38 Stat. 721 (15 U.S.C. 46(g)); 80 Stat. 383, as
amended; 81 Stat. 54 (5 U.S.C. 552); 92 Stat. 1824, as amended; E.O.
11222 of May 8, 1965, (30 FR 6469; 3 CFR 1964-1965 Comp. p. 306); 5
CFR 734.103; 5 CFR 735.104)
(32 FR 13272, Sept. 20, 1967. Redesignated at 41 FR 54483, Dec. 14,
1976, and amended at 48 FR 20044, May 4, 1983)
16 CFR 5.5 Interpretation and advisory services.
The General Counsel shall serve as counselor for the Commission on
matters covered by the regulations in this part. The regional directors
shall serve as deputy counselors serving their regions. They shall be
responsible for giving authoritative advice and guidance to each
employee and special Government employee who seeks such advice or
guidance on questions of conflicts of interest or other matters
pertaining to the regulations of this part. Deputy counselors may seek
advice or guidance concerning the interpretation of the regulations of
this part from the General Counsel.
(Sec. 6(g), 38 Stat. 721 (15 U.S.C. 46(g)); 80 Stat. 383, as
amended; 81 Stat. 54 (5 U.S.C. 552); 92 Stat. 1824, as amended; E.O.
11222 of May 8, 1965, (30 FR 6469; 3 CFR 1964-1965 Comp. p. 306); 5
CFR 734.103; 5 CFR 735.104)
(43 FR 25334, June 12, 1978, as amended at 48 FR 20044, 20046, May 4,
1983)
16 CFR 5.6 Procedures for reporting and resolving conflicts of
interest.
(a) An employee or special Government employee who believes that his
assignment to a matter may result in a conflict of interest or the
appearance of a conflict of interest shall report all relevant facts to
his bureau director or office head. Notwithstanding this section,
conflicts of interest or apparent conflicts of interest arising in the
immediate office of an individual Commissioner shall be reported and
resolved as that Commissioner determines, and such determination shall
be final.
(b) When a bureau director or office head believes that the
assignment of an employee or special Government employee or special
Government employee under his supervision to a particular matter may
result in a conflict of interest or the appearance of a conflict of
interest, the bureau director or office head shall, if possible, resolve
the matter through minor remedial action (such as reassignment of the
matter to another employee) with the consent of the affected employee.
The existence of the conflict or apparent conflict and the nature of the
remedial action taken shall be reported to the General Counsel as soon
as possible but no later than 30 days after the existence of the
conflict or apparent conflict has surfaced. If the conflict or apparent
conflict cannot be so resolved, it shall be reported immediately to the
General Counsel.
(c) Except for determinations by the Executive Director pursuant to
5.8, the General Counsel may resolve a conflict of interest or the
appearance of a conflict of interest by such remedial action as is
within the authority of the General Counsel.
(d) Where there is substantial doubt concerning the existence of a
conflict of interest or the appearance of a conflict of interest, the
type of remedial action which is required, or any other matter involving
the interpretation of the regulations in this part, the matter may be
referred to the General Counsel for advice and recommendations.
(Sec. 6(g), 38 Stat. 721 (15 U.S.C. 46(g)); 80 Stat. 383, as
amended; 81 Stat. 54 (5 U.S.C. 552); 92 Stat. 1824, as amended; EO
11222 of May 8, 1965, (30 FR 6469; 3 CFR 1964-1965 Comp. p. 306); 5
CFR 734.103; 5 CFR 735.104)
(43 FR 25334, June 12, 1978; 43 FR 26426, June 20, 1978, as amended
at 48 FR 20044, 20046, May 4, 1983; 50 FR 53306, Dec. 31, 1985)
16 CFR 5.7 Disciplinary or other remedial action by the Chairman.
(a) Where a conflict of interest or the appearance of a conflict of
interest cannot be resolved at a lower level with the consent of the
affected employee, as prescribed by 5.6, the General Counsel shall
report the matter to the Chairman. The individual concerned shall be
provided an opportunity to explain the conflict or appearance of
conflict, or, if appropriate, to seek resolution pursuant to 5.8.
(b) If, after consideration of the employee's explanation, the
Chairman determines that remedial action is required, the Chairman will
initiate action to eliminate the conflict or appearance of conflict of
interest. Remedial action may include, but is not limited to:
(1) Change in assigned duties;
(2) Divestment of the conflicting interest by the employee;
(3) Disciplinary action; or
(4) Disqualification for a particular assignment.
(c) The remedial action authorized under this section shall include
disciplinary action where the Chairman deems it appropriate, and such
action shall be in addition to any penalty prescribed by law.
(d) Remedial action, whether disciplinary or otherwise, shall be
effected in accordance with any applicable laws, executive orders, and
regulations.
(43 FR 25334, June 12, 1978, as amended at 48 FR 20046, May 4, 1983)
16 CFR 5.8 Exemption of insubstantial financial conflicts.
(a) An employee or special Government employee will not be subject to
remedial or disciplinary action under 5.7(b) or to criminal prosecution
under 18 U.S.C. 208(a), if he makes a full disclosure in writing to the
official responsible for his appointment of the nature and circumstances
of the particular matter involved and of his conflicting financial
interest relating therto, and receives in advance a written detemination
made by such official that the interest is not so substantial as to be
deemed likely to affect the integrity of the services which the
Government may expect from the employee or special Government employee.
(b) For the purposes of paragraph (a) of this section, the ''official
responsible for appointment'' shall be the Executive Director in all
cases where the employee is classified at grade GS-15 or below, or at a
comparable pay level, except that each Commissioner shall be the
''official responsible for appointment'' of advisors in the
Commissioner's immediate office.
(c) In all other cases, the Chairman shall be the ''official
responsible for appointment.''
(d) The financial interests described below are exempted from the
provisions of 5.7 and 18 U.S.C. 208(a) as being too remote or too
inconsequential to affect the integrity of an employee's services:
Stocks and bonds of a diversified mutual fund or investment company
Provided, That the fair market value of the employee's holdings in the
fund or company does not exceed one percent of the value of its reported
assets.
(15 U.S.C. 46(g); 18 U.S.C. 208(b))
(43 FR 25334, June 12, 1978, as amended at 44 FR 69284, Dec. 3, 1979)
16 CFR 5.9 Publication of regulations.
Each employee and special Government employee shall be furnished a
copy of the regulations in this part (or a comprehensive summary
thereof) within 90 days after their approval by the Office of Personnel
Management. Each new employee and special Government employee shall be
furnished a copy of summary at the time of his entrance on duty. At
least once each year, an appropriate notice shall be issued by the
General Counsel to bring the provisions of the regulations in this part
to the attention of each employee and special Government employee.
(52 FR 34765, Sept. 15, 1987)
16 CFR 5.9 Subpart B -- Ethical and Other Conduct and Responsibilities of Employees
16 CFR 5.10 Proscribed actions.
An employee shall avoid any action, whether or not specifically
prohibited by this part, which might result in, or create the appearance
of:
(a) Using public office for private gain;
(b) Giving preferential treatment to any person;
(c) Impeding Government efficiency or economy;
(d) Losing complete independence or impartiality;
(e) Making a Government decision outside official channels; or
(f) Affecting adversely the confidence of the public in the integrity
of the Government.
16 CFR 5.11 Gifts, entertainment, and favors.
(a) Except as provided in paragraphs (b) and (e) of this section, an
employee shall not solicit or accept, directly or indirectly, any gift,
gratuity, favor, entertainment, loan, or any other thing of monetary
value, from a person who:
(1) Has, or is seeking to obtain, contractual or other business or
financial relations with the Commission.
(2) Conducts operations or activities that are regulated by or are
otherwise subject to the jurisdiction of the Commission.
(3) Has interests that may be substantially affected by the
performance or nonperformance of his official duty.
(b) As exceptions to paragraph (a) of this section, an employee shall
be permitted to:
(1) Accept gifts, gratuities, favors, entertainment, loans, or other
things of monetary value from members of his intermediate family (i.e.,
parents, children, or spouse) or from a friend when the circumstances
make it clear that it is the personal or family relationship rather than
the business of the persons concerned which is the motivating factor;
(2) Accept food and refreshments of nominal value on infrequent
occasions in the ordinary course of a luncheon or dinner meeting or
other meeting or on an inspection tour where the employee may properly
be in attendance;
(3) Accept loans from banks or other financial institutions on
customary terms to finance proper and usual activities of an employee,
such as home mortgage loans; and
(4) Accept unsolicited advertising or promotional material, such as
pens, pencils, note pads, calendars, and other items of nominal
intrinsic value.
(5) Accept gifts given for participation in an education program when
they are of nominal intrinsic value, are provided to all participants in
the program, and are in the nature of a remembrance traditional to the
particular offering institution.
(c) An employee shall not solicit a contribution from another
employee for a gift to an official superior, make a donation as a gift
to an official superior, or accept a gift from an employee receiving
less pay than himself (5 U.S.C. 7351). However, this paragraph does not
prohibit a voluntary gift of nominal value or donation in a nominal
amount made on a special occasion such as marriage, illness, or
retirement.
(d) An employee shall not accept gift, present, decoration, or other
thing from a foreign government unless authorized by Congress as
provided by the Constitution and in 5 U.S.C. 7342. Congress has
authorized federal employees to receive certain gifts from a foreign
government where those gifts are of ''minimal value'' as defined by
regulations issued by the General Service Administration.
(e) Employees may not accept reimbursement for travel or expenses
incident to travel on official business from any source other than the
Federal Government, except that employees may obtain agency approval to
accept such reimbursement from organizations that are exempt from
taxation under the Internal Revenue Code, 26 U.S.C. 501(c)(3), for
expenses incident to training or the attendance at meetings in
accordance with 5 U.S.C. 4111 and 5 CFR 410.702.
(32 FR 13272, Sept. 20, 1967. Redesignated at 41 FR 54483, Dec. 14,
1976, and amended at 50 FR 53306, Dec. 31, 1985; 52 FR 34765, Sept. 15,
1987)
16 CFR 5.12 Outside employment and other activity.
(a) An employee shall not engage in outside employment or other
outside activity not compatible with the full and proper discharge of
the duties and responsibilities of his Government employment.
Incompatible activities include but are not limited to:
(1) Acceptance of a fee, compensation, gift, payment of expense, or
any other thing of monetary value in circumstances in which acceptance
may result in, or create the appearance of, conflicts of interest;
(2) Outside employment which tends to impair his mental or physical
capacity to perform his Government duties and responsibilities in an
acceptable manner; or
(3) Outside employment or other outside activity which may tend to
bring discredit upon the Government or the Commission.
(b) An employee shall not receive any salary or anything of monetary
value from a private source as compensation for his services to the
Government (18 U.S.C. 209).
(c) Employees are encouraged to engage in teaching, lecturing, and
writing that is not prohibited by law, the Executive order, or this
part. However, an employee shall not, either for or without
compensation, engage in teaching, lecturing, or writing, including
teaching, lecturing, or writing for the purpose of the special
preparation of a person or class of persons for an examination of the
Office of Personnel Management or Board of Examiners for the Foreign
Service, that is dependent on information obtained as a result of his
Government employment, except when that information has been made
available to the general public or will be made available on request, or
when the General Counsel gives written authorization for the use of
nonpublic information on the basis that the use is in the public
interest. In addition, an officer or employee who is a Presidential
appointee covered by section 401(a) of the Executive order shall not
receive compensation or anything of monetary value for any consultation,
lecture, discussion, writing, or appearance the subject matter of which
is devoted substantially to the responsibilities, programs, or
operations of the Commission, or which draws substantially on official
data or ideas which have not become part of the body of public
information.
(d) (Reserved)
(e) This section does not preclude an employee from:
(1) Receipt of bona fide reimbursement, unless prohibited by law, for
actual expenses for travel and such other necessary subsistence as is
compatible with this chapter for which no Government payment or
reimbursement is made. However, an employee may not be reimbursed, and
payment may not be made on his behalf, for excessive personal living
expenses, gifts, entertainment, or other personal benefits.
(2) Participation in the activities of national or State political
parties not proscribed by law.
(3) Participation in the affairs of or acceptance of an award for a
meritorious public contribution or achievement given by a charitable,
religious, professional, social, fraternal, nonprofit educational and
recreational, public service, or civic organization.
(f) Before engaging in outside employment, an employee, other than a
Commissioner, must obtain the written permission of the General Counsel.
Request for approval shall be sent through normal supervisory channels
and shall include the following information:
(1) Name of the person, group, or organization for whom the work is
to be performed.
(2) Nature of the services to be rendered.
(3) Proposed hours of work (if regularly scheduled) or approximate
dates of employment.
(4) Employee's certification as to whether the outside employment
(including teaching, writing, or lecturing) will depend in any way on
information obtained as a result of the employee's official Government
position.
(5) Employee's certification that no Government property, resources,
or facilities not available to the general public will be used in
connection with the outside employment.
(32 FR 13272, Sept. 20, 1967, as amended at 33 FR 11538, Aug. 14,
1968. Redesignated at 41 FR 54483, Dec. 14, 1976, and amended at 46 FR
26292, May 12, 1981; 48 FR 20046, May 4, 1983; 50 FR 53306, Dec. 31,
1985; 52 FR 34765, Sept. 15, 1987)
16 CFR 5.13 Financial interests.
(a) An employee shall not:
(1) Have a direct or indirect financial interest that conflicts
substantially, or appears to conflict substantially, with his Government
duties and responsibilities; or
(2) Engage in, directly or indirectly, a financial transaction as a
result of, or primarily relying on, information obtained through his
Government employment.
(b) This section does not preclude an employee from having a
financial interest or engaging in financial transactions to the same
extent as a private citizen not employed by the Government so long as it
is not prohibited by law, the Executive order, or the regulations in
this part.
16 CFR 5.14 Criminal sanction for conflict of interest.
Pursuant to Pub. L. 87-849 (18 U.S.C. 208), no employee or special
Government employee shall, except as permitted by 5.8, participate
''personally and substantially as a Government officer or employee,
through decision, approval, disapproval, recommendation, the rendering
of advice, investigation, or otherwise, in a judicial or other
proceeding, application, request for a ruling or other determination,
contract, claim, controversy, charge, accusation, arrest, or other
particular matter in which, to his knowledge, he, his spouse, minor
child, partner, organization in which he is serving as officer,
director, trustee, partner, or employee, or any person or organization
with whom he is negotiating or has any arrangement concerning
propsective employment, has a financial interest.'' Conviction under 18
U.S.C. 208 carries a fine of not more than $10,000 or imprisonment for
not more than two years, or both.
(43 FR 25334, June 12, 1978; 43 FR 26426, June 20, 1978; 50 FR
53306, Dec. 31, 1985)
16 CFR 5.15 Use of Government property.
An employee shall not directly or indirectly use, or allow the use
of, Government property of any kind, including property leased to the
Government, for other than officially approved activities. An employee
has a positive duty to protect and conserve Government property,
including equipment, supplies, and other property entrusted or issued to
him.
(32 FR 13272, Sept. 20, 1967. Redesignated at 41 FR 54483, Dec. 14,
1976, and at 43 FR 25334, June 12, 1978)
16 CFR 5.16 Misuse of information.
For the purpose of furthering a private interest, an employee shall
not, except as provided in 5.12(c), directly or indirectly use, or
allow the use of, official information obtained through or in connection
with his Government employment which has not been made available to the
general public.
(32 FR 13272, Sept. 20, 1967. Redesignated at 41 FR 54483, Dec. 14,
1976, and at 43 FR 25334, June 12, 1978)
16 CFR 5.17 Employee indebtedness.
The Federal Trade Commission considers the indebtedness of its
employees to be essentially a matter of their own concern. The
Commission will not be placed in the position of acting as a collection
agency or of determining the validity or amount of contested debts.
Nevertheless, failure on the part of an employee without good reason and
in a proper and timely manner to honor debts acknowledged by the
employee to be valid or reduced to judgment by a court or to make or to
adhere to satisfactory arrangements for the settlement thereof, may be
cause for disciplinary action. Each employee is expected to meet his
responsibilities for payment of Federal, State, and local taxes.
(52 FR 34766, Sept. 15, 1987)
16 CFR 5.18 Gambling, betting, and lotteries.
An employee shall not participate, while on Government-owned or
leased property or while on duty for the Government, in any gambling
activity including the operation of a gambling device, in conducting a
lottery or pool, in a game for money or property, or in selling or
purchasing a numbers slip or ticket. However, this section does not
preclude activities:
(a) Necessitated by an employee's law enforcement duties; or
(b) Under section 3 of Executive Order 10927, pertaining to
fund-raising activities conducted by employee organizations.
(32 FR 13272, Sept. 20, 1967. Redesignated at 41 FR 54483, Dec. 14,
1976, and at 43 FR 25334, June 12, 1978)
16 CFR 5.19 Miscellaneous statutory provisions.
(a) All employees shall acquaint themselves with each statute that
relates to their ethical and other conduct as employees of the
Commission and of the Government. The attention of employees is
directed to the following statutory provisions:
(1) House Concurrent Resolution 175, 85th Congress, 2d sess., 72
Stat. B12, the ''Code of Ethics for Government Service.''
(2) Chapter 11 of title 18, United States Code, relating to bribery,
graft, and conflicts of interest, as appropriate to the employees
concerned.
(3) The prohibition against lobbying with appropriated funds (18
U.S.C. 1913).
(4) The prohibitions against disloyalty and striking (5 U.S.C. 7311,
18 U.S.C. 1918).
(5) The prohibitions against (i) the disclosure of classified
information (18 U.S.C. 798, 50 USC 783); and (ii) the disclosure of
confidential information (18 U.S.C. 1905).
(6) The provisions relating to the habitual use of intoxicants to
excess (5 U.S.C. 7352).
(7) The prohibition against the misuse of a Government vehicle (31
U.S.C. 638a(c)).
(8) The prohibition against the misuse of the franking privilege (18
U.S.C. 1719).
(9) The prohibition against the use of deceit in an examination or
personnel action in connection with Government employment (18 U.S.C.
1917).
(10) The prohibition against fraud or false statements in a
Government matter (18 U.S.C. 1001).
(11) The prohibition against multilating or destroying a public
record (18 U.S.C. 2071).
(12) The prohibition against counterfeiting and forging
transportation requests (18 U.S.C. 508).
(13) The prohibitions against: (i) Embezzlement of Government money
or property (18 U.S.C. 641); (ii) failing to account for public money
(18 U.S.C. 643); and (iii) embezzlement of the money or property of
another person in the possession of an employee by reason of his
employment (18 U.S.C. 654).
(14) The prohibition against unauthorized use of documents relating
to claims from or by the Government (18 U.S.C. 285).
(15) The prohibition against political activities in subchapter III
of chapter 73 of title 5, United States Code and 18 U.S.C. 602, 603,
607, and 608.
(16) The prohibition against an employee acting as the agent of a
foreign principal registered under the Foreign Agents Registration Act
(18 U.S.C. 219).
(17) The prohibitions against acceptance of excessive honorariums (2
U.S.C. 441i).
(b) If an employee has reason to believe that a violation of a
statute listed in paragraph (a) of this section or other relevant
statute has occurred, the employee should bring the matter to the
attention of the Chairman through the General Counsel.
(Sec. 6(g), 38 Stat. 721 (15 U.S.C. 46(g)); 80 Stat. 383, as
amended; 81 Stat. 54 (5 U.S.C. 552); 92 Stat. 1824, as amended; E.O.
11222 of May 8, 1965, (30 FR 6469; 3 CFR 1964-1965 Comp. p. 306); 5
CFR 734.103; 5 CFR 735.104)
(43 FR 25334, June 12, 1978, as amended at 43 FR 31129, July 20,
1978; 48 FR 20045, May 4, 1983; 50 FR 53306, Dec. 31, 1985)
16 CFR 5.19 Subpart C -- Ethical and Other Conduct and Responsibilities of Special Government Employees
16 CFR 5.21 Application of subpart B of this part to special Government
employees.
All provisions of subpart B of this part except 5.12(f) shall apply
to special Government employees. In addition, the regulations in this
subpart C shall apply.
16 CFR 5.22 Use of Government employment.
A special Government employee shall not use his Government employment
for a purpose that is, or gives the appearance of being, motivated by
the desire for private gain for himself or another person, particularly
one with whom he has family, business, or financial ties.
16 CFR 5.23 Use of inside information.
Except as provided in 5.12(c), a special Government employee shall
not use inside information obtained as a result of his Government
employment for private gain for himself or another person either by
direct action on his part or by counsel, recommendation, or suggestion
to another person, particularly one with whom he has family, business,
or financial ties. For the purpose of this section, ''inside
information'' means information obtained under Government authority
which has not become part of the body of public information.
16 CFR 5.24 Coercion.
A special Government employee shall not use his Government employment
to coerce, or give the appearance of coercing, a person to provide
financial benefit to himself or another person, particularly one with
whom he has family, business, or financial ties.
16 CFR 5.25 Gifts, entertainment, and favors.
Except as provided in 5.11(b), a special Government employee, while
so employed or in connection with his employment, shall not receive or
solicit from a person having business with his agency anything of value
as a gift, gratuity, loan, entertainment, or favor for himself or
another person, particularly one with whom he has family, business, or
financial ties.
16 CFR 5.26 Miscellaneous statutory provisions.
Each special Government employee shall acquaint himself with each
statute that relates to his ethical and other conduct as a special
Government employee of the Commission and of the Government. The
attention of special Government employees is directed to those statutory
provisions listed in 5.19.
16 CFR 5.26 Subpart D -- Financial Disclosures
Authority: Sec. 6(g), 38 Stat. 721 (15 U.S.C. 46(g)); 80 Stat.
383, as amended; 81 Stat. 54 (5 U.S.C. 552); 92 Stat. 1824, as
amended; E.O. 11222 of May 8, 1965, (30 FR 6469; 3 CFR 1964-1965 Comp.
p. 306); 5 CFR 734.103; 5 CFR 735.104.
16 CFR 5.31 Public financial disclosure reports under the Ethics in
Government Act.
(a) The provisions of this section apply only to public financial
disclosure reports required by title II of the Ethics in Government Act
of 1978, Pub. L. 95-521, as amended. Commission members and employees
required to file under this section need not file statements of
employment and financial interests under 5.32 and they are not subject
to the provisions of 5.33 through 5.42.
(b) For purposes of this section, the Designated Agency Ethics
Official is the Assistant General Counsel.
(c) The following Commission members and employees must file public
financial disclosure reports pursuant to Title II of the Ethics in
Government Act:
(1) The Chairman;
(2) Each Commissioner;
(3) Each employee (i) who is a member of the Senior Executive
Service, or (ii) whose position is classified at GS-16 or above of the
General Schedule, or (iii) whose rate of basic pay is fixed (other than
under the General Schedule) at a rate equal to or greater than the
minimum rate of basic pay fixed for GS-16 (Step 1);
(4) Each employee who is an administrative law judge appointed
pursuant to 5 U.S.C. 3105;
(5) Each employee, regardless of grade or pay level, who is in a
position which is excepted from competitive service by reason of being
of a confidential or policymaking character (except individuals or
groups excluded by action of the Director of the Office of Government
Ethics); and
(6) The Designated Agency Ethics Official.
(d) Reports under this section must be filed on the form prescribed
by the Office of Government Ethics and in accordance with the
regulations promulgated, and from time to time amended, by the Office of
Government Ethics as set forth in 5 CFR part 734. Copies of the form
are available from the Designated Agency Ethics Official.
(e) Reports under this section must be filed according to the time
schedules set forth in 5 CFR part 734.
(f) Reports under this section, except those filed by the Designated
Agency Ethics Official, must be filed with the Designated Agency Ethics
Official. The Designated Agency Ethics Official must file his report
with the Chairman.
(g) The Designated Agency Ethics Official shall administer the public
financial disclosure reports program under this section, shall receive
the reports as indicated in 5.31(f), shall review them, and shall
provide advice and counsel regarding matters relating to part II of the
Ethics in Government Act and its implementing regulations. His duties
and responsibilities are set forth in more detail in 5 CFR part 738
which is promulgated, and from time to time amended, by the Office of
Government Ethics.
(48 FR 20045, May 4, 1983)
16 CFR 5.32 Statements of employment and financial interests under
Executive Order 11222.
(a) The provisions of this section and 5.33 through 5.42 apply only
to individuals required to file statements of employment and financial
interests under Executive Order 11222, sections 402-406 (May 8, 1965)
and its implementing regulations as set forth in 5 CFR part 735, subpart
D.
(b) Individuals required to file financial disclosure reports under
5.31 need not file statements under this section and are not subject to
the provisions of 5.33 through 5.42.
(c) If not required to file under 5.31, the following employees,
whether or not serving in an acting capacity, shall submit statements to
the Executive Director:
(1) The Executive Assistant to the Executive Director;
(2) The Attorney Advisor to the Executive Director; and
(3) The Director of Equal Employment Opportunity.
(d) If not required to file under 5.31, the following employees,
whether or not serving in an acting capacity, shall submit statements to
the General Counsel:
(1) The Director and Deputy Director of the Office of Public Affairs;
(2) The Chief Presiding Officer;
(3) The Director of the Office of Congressional Relations;
(4) Directors of the Regional Offices;
(5) Advisors to the Commissioners, except that each Commissioner in
the Commissioner's discretion may direct otherwise;
(6) Deputy Assistant General Counsels; and
(7) Assistants to the General Counsel.
(e) If not required to file under 5.31, the following employees of
the Bureaus of Competition, Consumer Protection, and Economics, whether
or not serving in an acting capacity, shall submit statements to their
Bureau Director:
(1) Assistant Directors and Associate Directors;
(2) Deputy Assistant Directors;
(3) Executive Assistants to the Director and Assistants to the
Director; and
(4) Assistants to the Deputy Director.
(f) If not required to file under 5.31, the following employees,
whether or not serving in an acting capacity, shall submit statements to
the Deputy Executive Director for Management:
(1) The Director of the Division of Procurement and General Services;
(2) The Director of the Division of Budget and Finance;
(3) The Director of the Division of Personnel; and
(g) If not required to file under 5.31, the following employees,
whether or not serving in an acting capacity, shall submit statements to
the Deputy Executive Director for Planning and Information:
(1) The Director of the Division of Automated Systems;
(2) The Director of the Library; and
(3) The Director of the Division of Information Services.
(h) Presiding Officers designated under 1.13(c) of part 1 shall
submit statements to the Chief Presiding Officer.
(i) Assistant Directors of the Regional Offices, whether or not
serving in an acting capacity, shall submit statements to their Regional
Office Director.
(j) The Executive Director, the General Counsel, or a Bureau Director
may require any of the following employees under his or her supervision,
in addition to those specified in paragraphs (c) through (i) of this
section, to file statements pursuant to this section and to submit the
statements to him or her:
(1) An employee classified at GS-13 or above, or at a comparable pay
level under another authority, whose position meets the criteria
established by the Office of Personnel Management in 5 CFR 735.403; and
(2) An employee classified below GS-13, or at a comparable pay level
under another authority, who is in a position which otherwise meets the
criteria of 5 CFR 735.403 and whose requirement to file statements has
been specifically justified in writing by his or her supervising
official to the Office of Personnel Management as essential to protect
the integrity of the Government and to avoid the employee's involvement
in possible conflicts of interest. The names of employees designated to
file statements pursuant to this paragraph shall be reported to the
General Counsel.
(k) An employee who feels that his or her position has been
improperly designated as one requiring submission of a statement of
employment and financial interests has recourse to the Commission's
grievance procedures set forth in chapter 5-771 of the Commission's
Administrative Manual.
(48 FR 20045, May 4, 1983, as amended at 48 FR 23172, May 24, 1983;
50 FR 53307, Dec. 31, 1985)
16 CFR 5.33 Time for submission of statements.
An employee required to submit a statement of employment and
financial interests under the requirements in this part shall submit
that statement not later than:
(a) Thirty days after the effective date of the regulations in this
part if the employee entered on duty in a position listed in 5.32 on or
before that effective date; or
(b) Thirty days after his entrance on duty in a position listed in
5.32, but not earlier than 30 days after the effective date, if the
employee entered on duty in that position after the effective date.
However, the provisions of this section shall not apply to an
employee who has submitted a statement of employment and financial
interests or a supplementary statment at any time during the twelve
months preceding the date he would otherwise be required to submit a
statement under this section.
(43 FR 25335, June 12, 1978. Redesignated at 48 FR 20046, May 4,
1983)
16 CFR 5.34 Supplementary statements.
Changes in, or additions to, the information contained in an
employee's statement of employment and financial interests shall be
reported to the person designated in 5.32 in a supplementary statement
as of September 30 each year. If no changes or additions occur, a
negative report is required.
(43 FR 25335, June 12, 1978. Redesignated at 48 FR 20046, May 4,
1983)
16 CFR 5.35 Interests of employees' relatives.
The interest of a spouse, minor child, or other member of an
employee's immediate household is considered to be an interest of the
employee. For the purpose of this section, ''member of an employee's
immediate household'' means those blood relations who are residents of
the employee's household.
(32 FR 13272, Sept. 20, 1967. Redesignated at 41 FR 54483, Dec. 14,
1976, and at 48 FR 20046, May 4, 1983)
16 CFR 5.36 Information not known by employees.
If any information required to be included on a statement of
employment and financial interests or supplementary statement, including
holdings placed in trust, is not known to the employee but is known to
another person, the employee shall request that other person to submit
information in his behalf.
(32 FR 13272, Sept. 20, 1967. Redesignated at 41 FR 54483, Dec. 14,
1976, and at 48 FR 20046, May 4, 1983)
16 CFR 5.37 Information prohibited.
This part does not require an employee to submit on a statement of
employment and financial interests or supplementary statement any
information relating to the employee's connection with, or interest in,
a professional society or a charitable, religious, social, fraternal,
recreational, public service, civic, or political organization or a
similar organization not conducted as a business enterprise. For the
purpose of this section, educational and other institutions doing
research and development or related work involving grants of money from
or contracts with the Government are deemed ''business enterprises'' and
are required to be included in an employee's statement of employment and
financial interests.
(32 FR 13272, Sept. 20, 1967. Redesignated at 41 FR 54483, Dec. 14,
1976, and at 48 FR 20046, May 4, 1983)
16 CFR 5.38 Review of employees' statements.
(a) Persons to whom the statements and supplementary statements are
submitted pursuant to 5.32 are responsible for ensuring timely
submission of the statements and conducting a review of them, except
that the General Counsel shall refer to a Commissioner for review and
appropriate action any statements filed by that Commissioner's legal
advisors, or take other action as the Commissioner may direct. Action
by a Commissioner concerning any statements filed by that Commissioner's
advisors shall be final.
(b) Upon completion of review, all statements received by the
Executive Director, the Directors of the Bureaus of Competition,
Consumer Protection, and Economics, the Deputy Executive Directors, the
Chief Presiding Officer, and the Regional Office Directors shall be
forwarded to the General Counsel for safekeeping.
(c) If an employee fails to file a statement or supplementary
statement by the required filing date, the Bureau Director or Office
head responsible for his supervision shall notify the General Counsel of
the failure as soon as possible but no later than 30 days after the
required filing date.
(d) Conflicts or appearances of conflicts discovered as the result of
the review of the statements pursuant to this section shall be dealt
with in the manner set forth in 5.6 through 5.8
(43 FR 25336, June 12, 1978, as amended at 46 FR 26293, May 12, 1981.
Redesignated and amended at 48 FR 20046, May 4, 1983)
16 CFR 5.39 Confidentiality of employees' statements.
(a) Each statement of employment and financial interests, and each
supplementary statement, shall be held in confidence. During the course
of review, only the person to whom the statement is submitted or
properly referred, the Chairman (or the Chairman's designee), the
Executive Director (or the Executive Director's designee), and the
General Counsel shall be permitted to view the statements.
(b) Upon completion of the review process, the statements and
supplementary statements shall be retained in confidence by the General
Counsel. No access shall be allowed to, and no information shall be
disclosed from, a statement except to carry out the purposes of this
part. An agency may not disclose information from a statement except as
the Office of Personnel Management or the Chairman may determine for
good cause shown.
(43 FR 25336, June 12, 1978, as amended at 46 FR 26293, May 12, 1981.
Redesignated and amended at 48 FR 20046, May 4, 1983)
16 CFR 5.40 Effect of employee's statements on other requirements.
The statements of employment and financial interests and
supplementary statements required of employees are in addition to and
not in substitution for or in derogation of, any similar requirement
imposed by law, order, or regulation. The submission of a statement or
supplementary statement by an employee does not permit him or any other
person to participate in a matter in which his or the other person's
participation is prohibited by law, order, or regulation.
(32 FR 13272, Sept. 20, 1967. Redesignated at 41 FR 54483, Dec. 14,
1976, at 43 FR 25336, June 12, 1978, and at 48 FR 20046, May 4, 1983)
16 CFR 5.41 Specific provisions for special Government employees.
(a) Except as provided in paragraph (b) of this section, each special
Government employee shall submit a statement of employment and financial
interests that reports:
(1) All other employment; and
(2) The financial interests of the special Government employee that
relate either directly or indirectly to his duties and responsibilities
as a special Government employee.
(b) The Chairman may waive the requirement in paragraph (a) of this
section for the submission of a statement of employment and financial
interest in the case of a special Government employee who is not a
consultant or an expert if the Chairman finds that the duties of the
position held by that special Government employee are of a nature and at
such a level of responsibility that the submission of a statement by the
incumbent is not necessary to protect the integrity of the Government.
For the purpose of this paragraph, ''consultant'' and ''expert'' have
the meanings given those terms by chapter 304 of the Federal Personnel
Manual.
(c) A statement of employment and financial interests required to be
submitted under this section shall be submitted to the General Counsel
not later than the time of employment of the special Government
employee. Each special Government employee shall keep such statement
current throughout his employment with the Commission by the submission
of supplementary statements.
(43 FR 25336, June 12, 1978. Redesignated and amended at 48 FR 20046,
May 4, 1983)
16 CFR 5.42 Reviewing statements of special Government employees.
(a) All statements submitted in accordance with 5.41 shall be
reviewed initially by the bureau director or office head who has
supervisory authority over the special Government employee. Following
this review, all statements shall be returned to the General Counsel for
safekeeping.
(b) If there is a conflict or apparent conflict, the procedures
specified in 5.6 through 5.8 shall be followed.
(43 FR 25336, June 12, 1978. Redesignated and amended at 48 FR 20046,
May 4, 1983; 52 FR 34766, Sept. 15, 1987)
16 CFR 5.42 Subpart E -- Disciplinary Actions Concerning Postemployment
Conflict of Interest
Authority: 15 U.S.C. 41 et seq.
Source: 46 FR 26050, May 11, 1981, unless otherwise noted.
16 CFR 5.51 Scope and applicability.
These regulations establish procedures for investigating and
determining alleged violations of 18 U.S.C. 207 (a), (b) and (c)
(Postemployment restrictions applicable to federal employees) or
regulations issued by the Office of Personnel Management set forth in 5
CFR part 737, reflecting the joint views of the Office of Government
Ethics and the Department of Justice as to the requirements of 18 U.S.C.
207.
16 CFR 5.52 Nonpublic proceedings.
Any investigation or proceedings held under this part shall be
nonpublic unless the respondent specifically requests otherwise, except
to the extent required by the Freedom of Information Act (5 U.S.C. 552)
or by the Sunshine Act (5 U.S.C. 552b). However, the presiding
official's initial decision and any final decision of the Commission
shall be placed on the public record, except that information may be
designated in camera in accordance with 3.45 of the Commission's Rules
of Practice.
16 CFR 5.53 Initiation of investigation.
(a) Investigations under this part may be initiated upon the
submission by any person of a written statement to the Secretary setting
forth sufficient information to indicate a possible violation of 18
U.S.C. 207 or by the Commission on its own initiative when a possible
violation is indicated by information within the Commission's
possession.
(b) At the direction of the Commission, the General Counsel shall
investigate any alleged violation of 18 U.S.C. 207.
16 CFR 5.54 Referral to the Office of Government Ethics and to the
Department of Justice.
(a) The General Counsel shall make a preliminary determination of
whether the matter appears frivolous and, if not, shall expeditiously
transmit any available information to the Director of the Office of
Government Ethics and to the Criminal Division, Department of Justice.
(b) Unless the Department of Justice communicates to the Commission
that it does not intend to initiate criminal prosecution, the General
Counsel shall coordinate any investigation or proceeding under this part
with the Department of Justice in order to avoid prejudicing criminal
proceedings.
16 CFR 5.55 Conduct of investigation.
(a) The General Counsel may (1) exercise the authority granted in
2.5 of the Commission's Rules of Practice to administer oaths and
affirmations; and (2) conduct investigational hearings pursuant to part
2 of these rules. He may also recommend that the Commission issue
compulsory process in connection with an investigation under this
section.
(b) Witnesses in investigations shall have the rights set forth in
2.9 of the Commission's Rules of Practice.
16 CFR 5.56 Disposition.
(a) Upon the conclusion of an investigation under this part, the
General Counsel shall forward to the Commission a summary of the facts
disclosed by the investigation along with a recommendation as to whether
the Commission should issue an order to show cause pursuant to 5.57.
(b) When the former government employee involved is an attorney, the
General Counsel shall also recommend whether the matter should be
referred to the disciplinary committee of the bar(s) of which the
attorney is a member.
16 CFR 5.57 Order to show cause.
(a) Upon a Commission determination that there exists reasonable
cause to believe a former government employee has violated 18 U.S.C.
207, the Commission may issue an order requiring the former employee to
show cause why sanctions should not be imposed.
(b) The show cause order shall contain (1) the statutory provisions
alleged to have been violated and a clear and concise description of the
acts of the former employee that are alleged to constitute the
violation;
(2) Notice of the respondent's right to submit an answer and request
a hearing, and the time and manner in which the request is to be made;
and
(3) A statement of the sanctions that may be imposed pursuant to
5.67 of this part.
(c) Subsequent to the issuance of an order to show cause, any
communications to or from the Commission or any member of the Commission
shall be governed by the ex parte provisions of 4.7 of the Commission's
Rules of Practice. 16 CFR 4.7.
16 CFR 5.58 Answer and request for a hearing.
(a) An answer and request for a hearing must be filed with the
Secretary of the Commission within thirty (30) days after service of the
order to show cause.
(b) In the absence of good cause shown, failure to file an answer and
request for a hearing within the specified time limit (1) will be deemed
a waiver of the respondent's right to contest the allegations of the
show cause order or request a hearing and (2) shall authorize the
Commission to find the facts to be as alleged in the show cause order
and enter a final decision providing for the imposition of such
sanctions specified in 5.67 as the Commission deems appropriate.
(c) An answer shall contain (1) a concise statement of the facts or
law constituting each ground of defense and (2) specific admission,
denial, or explanation of each fact alleged in the show cause order or,
if the respondent is without knowledge thereof, a statement to that
effect. Any allegations of a complaint not answered in this manner will
be deemed admitted.
(d) Hearings shall be deemed waived as to any facts in the show cause
order that are specifically admitted or deemed to be admitted as a
result of respondent's failure to deny them. Those portions of
respondent's answer, together with the show cause order, will provide a
record basis for initial decision by the Administrative Law Judge or for
final decision by the Commission.
(e) If all material factual allegations of the show cause order are
specifically admitted or have been deemed admitted in accordance with
paragraph (c) of this section, the Commission will decide the matter on
the basis of the allegations set forth in the show cause order and
respondent's answer.
16 CFR 5.59 Presiding official.
(a) Upon the receipt of an answer and request for a hearing, the
Secretary shall refer the matter to the Chief Administrative Law Judge,
who shall appoint an Administrative Law Judge to preside over the
hearing and shall notify the respondent and the General Counsel as to
the person selected.
(b) The powers and duties of the presiding official shall be as set
forth in 3.42(b) through (h) of the Commission's Rules of Practice.
16 CFR 5.60 Scheduling of hearing.
The presiding official shall fix the date, time and place of the
hearing. The hearing shall not be scheduled earlier than fifteen days
after receipt of the respondent's answer and request for a hearing. In
fixing the time, date and place of the hearing, the presiding official
shall give due regard to the respondent's need for adequate time to
prepare a defense and an expeditious resolution of allegations that may
be damaging to his or her reputation.
16 CFR 5.61 Prehearing procedures; motions; interlocutory appeals;
summary decision; discovery; compulsory process.
Because of the nature of the issues involved in proceedings under
this part, the Commission anticipates that extensive motions, prehearing
proceedings and discovery will not be required in most cases. For this
reason, detailed procedures will not be established under this part.
However, to the extent deemed warranted by the presiding official,
prehearing conferences, motions, interlocutory appeals, summary
decisions, discovery and compulsory process shall be permitted and shall
be governed, where appropriate, by the provisions set forth in subparts
C and D, part 3, of the Commission's Rules of Practice.
16 CFR 5.62 Hearing rights of respondent.
In any hearing under this subpart, the respondent shall have the
right (a) to be represented by counsel; (b) to present and
cross-examine witnesses and submit evidence; (c) to present objections,
motions, and arguments, oral or written; and (d) to obtain a transcript
of the proceedings on request.
16 CFR 5.63 Evidence; transcript; in camera orders; proposed
findings of fact and conclusions of law.
Sections 3.43, 3.44, 3.45, and 3.46 of the Commission's Rules of
Practice shall govern, respectively, the receipt and objections to
admissibility of evidence, the transcript of the hearing, in camera
orders and the submission and consideration of proposed findings of fact
and conclusions of law except that (a) a copy of the hearing transcript
shall be provided the respondent; and (b) the Commission has the burden
of establishing, by a preponderance of the evidence on the record as a
whole, the allegations stated in the order to show cause.
16 CFR 5.64 Initial decision.
Section 3.51 of the Commission's Rules of Practice shall govern the
initial decision in proceedings under this subpart, except that the
determination of the Administrative Law Judge must be supported by a
preponderance of the evidence.
16 CFR 5.65 Review of initial decision.
Appeals from the initial decision of the Administrative Law Judge or
review by the Commission in the absence of an appeal shall be governed
by 3.52 and 3.53 of the Commission's Rules of Practice except that
oral arguments shall be nonpublic subject to the exceptions stated in
3.52 of this part.
16 CFR 5.66 Commission decision and reconsideration.
The Commission's decision and any reconsideration or reopening of the
proceeding shall be governed by 2.51, 3.54, 3.55, 3.71 and 3.72 of the
Commission's Rules of Practice, except that (a) if the initial decision
is modified or reversed, the Commission shall specify such findings of
fact and conclusions of law as are different from those of the presiding
official; and (b) references therein to ''court of appeals'' shall be
deemed for purposes of proceedings under this part to refer to
''district court.''
16 CFR 5.67 Sanctions.
In the case of any respondent who fails to request a hearing after
receiving adequate notice of the allegations pursuant to 5.57 or who is
found in the Commission's final decision to have violated 18 U.S.C. 207
(a), (b), or (c), the Commission may order such disciplinary action as
it deems warranted, including:
(a) Reprimand;
(b) Suspension from participating in a particular matter or matters
before the Commission; or
(c) Prohibiting the respondent from making, with the intent to
influence, any formal or informal appearance before, or any oral or
written communication to, the Commission or its staff on any matter or
business on behalf of any other person (except the United States) for a
period not to exceed five (5) years.
16 CFR 5.68 Judicial review.
A respondent against whom the Commission has issued an order imposing
disciplinary action under this part may seek judicial review of the
Commission's determination in an appropriate United States District
Court by filing a petition for such review within sixty (60) days of
receipt of notice of the Commission's final decision.
16 CFR 5.68 PART 6 -- ENFORCEMENT OF NONDISCRIMINATION ON THE BASIS OF
HANDICAP IN PROGRAMS OR ACTIVITIES CONDUCTED BY THE FEDERAL TRADE
COMMISSION
Sec.
6.101 Purpose.
6.102 Application.
6.103 Definitions.
6.104 -- 6.109 (Reserved)
6.110 Self-evaluation.
6.111 Notice.
6.112 -- 6.129 (Reserved)
6.130 General prohibitions against discrimination.
6.131 -- 6.139 (Reserved)
6.140 Employment.
6.141 -- 6.148 (Reserved)
6.149 Program accessibility: Discrimination prohibited.
6.150 Program accessibility: Existing facilities.
6.151 Program accessibility: New construction and alterations.
6.152 -- 6.159 (Reserved)
6.160 Communications.
6.161 -- 6.169 (Reserved)
6.170 Compliance procedures.
6.171 -- 6.999 (Reserved)
Authority: 29 U.S.C. 794.
Source: 52 FR 45628, Dec. 1, 1987, unless otherwise noted.
16 CFR 6.101 Purpose.
This part effectuates section 119 of the Rehabilitation,
Comprehensive Services, and Developmental Disabilities Amendments of
1978, which amended section 504 of the Rehabilitation Act of 1973 to
prohibit discrimination on the basis of handicap in programs or
activities conducted by Executive agencies or the United States Postal
Service.
16 CFR 6.102 Application.
This part applies to all programs or activities conducted by the
Commission except for programs or activities conducted outside the
United States that do not involve individuals with handicaps in the
United States.
16 CFR 6.103 Definitions.
For purposes of this part, the term --
Auxiliary aids means services or devices that enable persons with
impaired sensory, manual, or speaking skills to have an equal
opportunity to participate in, and to enjoy the benefits of, programs or
activities conducted by the Commission. For example, auxiliary aids
useful for persons with impaired vision include readers, Brailled
materials, audio recordings, and other similar services and devices.
Auxiliary aids useful for persons with impaired hearing include
telephone handset amplifiers, telephones compatible with hearing aids,
telecommunication devices for deaf persons (TDD's), interpreters,
notetakers, written materials, and other similar services and devices.
Commission means the Federal Trade Commission.
Complete complaint means a written statement that contains the
complainant's name and address and describes the Commission's alleged
discriminatory action in sufficient detail to inform the Commission of
the nature and date of the alleged violation of section 504. It shall
be signed by the complainant or by someone authorized to do so on his or
her behalf. Complaints filed on behalf of classes or third parties
shall describe or identify (by name, if possible) the alleged victims of
discrimination.
Facility means all or any portion of buildings, structures,
equipment, roads, walks, parking lots, rolling stock or other
conveyances, or other real or personal property.
Individual with handicaps means any person who has a physical or
mental impairment that substantially limits one or more major life
activities, has a record of such an impairment, or is regarded as having
such an impairment. As used in this definition, the phrase:
(1) ''Physical or mental impairment includes --
(i) Any physiological disorder or condition, cosmetic disfigurement,
or anatomical loss affecting one or more of the following body systems:
Neurological; musculoskeletal; special sense organs; respiratory,
including speech organs; cardiovascular; reproductive; digestive;
genitourinary; hemic and lymphatic; skin; and endocrine; or
(ii) Any mental or psychological disorder, such as mental
retardation, organic brain syndrome, emotional or mental illness, and
specific learning disabilities. The term ''physical or mental
impairment'' includes, but is not limited to, such diseases and
conditions as orthopedic, visual, speech, and hearing impairments,
cerebral palsy, epilepsy, muscular dystrophy, multiple sclerosis,
cancer, heart disease, diabetes, mental retardation, emotional illness,
and drug addiction and alcoholism.
(2) ''Major life activities'' includes functions such as caring for
one's self, performing manual tasks, walking, seeing, hearing, speaking,
breathing, learning, and working.
(3) ''Has a record of such an impairment'' means has a history of, or
has been misclassified as having, a mental or physical impairment that
substantially limits one or more major life activities.
(4) ''Is regarded as having an impairment'' means --
(i) Has a physical or mental impairment that does not substantially
limit major life activities but is treated by the Commission as
constituting such a limitation;
(ii) Has a physical or mental impairment that substantially limits
major life activities only as a result of the attitudes of others toward
such impairment; or
(iii) Has none of the impairments defined in paragraph (1) of this
definition but is treated by the Commission as having such an
impairment.
Qualified individual with handicaps means --
(1) With respect to any Commission program or activity under which a
person is required to perform services or to achieve a level of
accomplishment, an individual with handicaps who meets the essential
eligibility requirements and who can achieve the purpose of the program
or activity without modifications in the program or activity that the
Commission can demonstrate would result in a fundamental alteration in
its nature; and
(2) With respect to any other program or activity, an individual with
handicaps who meets the essential eligibility requirements for
participation in, or receipt of benefits from, that program or activity.
(3) ''Qualified handicapped person'' as that term is defined for
purposes of employment in 29 CFR 1613.702 (f), which is made applicable
to this part by 6.140.
Section 504 means section 504 of the Rehabilitation Act of 1973 (Pub.
L. 93-112, 87 Stat. 394 (29 U.S.C. 794)), as amended by the
Rehabilitation Act Amendments of 1974 (Pub. L. 93-516, 88 Stat. 1617);
the Rehabilitation, Comprehensive Services, and Developmental
Disabilities Amendments of 1978 (Pub. L. 95-602, 92 Stat. 2955) and the
Rehabilitation Act Amendments of 1986 (Pub. L. 99-506, 100 Stat. 1810).
As used in this part, section 504 applies only to programs or activities
conducted by Executive agencies and not to federally assisted programs.
6.104 -- 6.109 (Reserved)
16 CFR 6.110 Self-evaluation.
(a) The Commission shall, by February 1, 1989, evaluate its current
policies and practices, and the effects thereof, that do not or may not
meet the requirements of this part, and, to the extent modification of
any such policies and practices is required, the Commission shall
proceed to make the necessary modifications.
(b) The Commission shall provide an opportunity to interested
persons, including individuals with handicaps or organizations
representing individuals with handicaps, to participate in the
self-evaluation process by submitting comments (both oral and written).
(c) The Commission shall, for at least three years following
completion of the self-evaluation required under paragraph (a) of this
section, maintain on file and make available for public inspection:
(1) A description of areas examined and any problems identified, and
(2) A description of any modifications made.
16 CFR 6.111 Notice.
The Commission shall make available to employees, applicants,
participants, beneficiaries, and other interested persons such
information regarding the provisions of this part and its applicability
to the programs or activities conducted by the Commission, and make such
information available to them in such manner as the Chairman or his or
her designee finds necessary to apprise such persons of the protections
against discrimination assured to them by section 504 and this
regulation.
6.112 -- 6.129 (Reserved)
16 CFR 6.130 General prohibitions against discrimination.
(a) No qualified individual with handicaps shall, on the basis of
handicap, be excluded from participation in, be denied the benefits of,
or otherwise be subjected to discrimination under any program or
activity conducted by the Commission.
(b)(1) The Commission, in providing any aid, benefit, or service, may
not, directly or through contractual, licensing, or other arrangements,
on the basis of handicap --
(i) Deny a qualified individual with handicaps the opportunity to
participate in or benefit from the aid, benefit, or service;
(ii) Afford a qualified individual with handicaps an opportunity to
participate in or benefit from the aid, benefit, or service that is not
equal to that afforded others;
(iii) Provide a qualified individual with handicaps with an aid,
benefit, or service that is not as effective in affording equal
opportunity to obtain the same result, to gain the same benefit, or to
reach the same level of achievement as that provided to others;
(iv) Provide different or separate aid, benefits, or services to
individuals with handicaps or to any class of individuals with handicaps
than is provided to others unless such action is necessary to provide
qualified individuals with handicaps with aid, benefits, or services
that are as effective as those provided to others;
(v) Deny a qualified individual with handicaps the opportunity to
participate as a member of planning or advisory boards; or
(vi) Otherwise limit a qualified individual with handicaps in the
enjoyment of any right, privilege, advantage, or opportunity enjoyed by
others receiving the aid, benefit, or service.
(2) The Commission may not deny a qualified individual with handicaps
the opportunity to participate in programs or activities that are not
separate or different, despite the existence of permissibly separate or
different programs or activities.
(3) The Commission may not, directly or through contractual or other
arrangements, utilize criteria or methods of administration the purpose
or effect of which would --
(i) Subject qualified individuals with handicaps to discrimination on
the basis of handicap; or
(ii) Defeat or substantially impair accomplishment of the objectives
of a program or activity with respect to individuals with handicaps.
(4) The Commission may not, in determining the site or location of a
facility, make selections the purpose or effect of which would --
(i) Exclude individuals with handicaps from, deny them the benefits
of, or otherwise subject them to discrimination under any program or
activity conducted by the Commission; or
(ii) Defeat or substantially impair the accomplishment of the
objectives of a program or activity with respect to individuals with
handicaps.
(5) The Commission, in the selection of procurement contractors, may
not use criteria that subject qualified individuals with handicaps to
discrimination on the basis of handicap.
(c) The exclusion of nonhandicapped persons from the benefits of a
program limited by Federal statute or Executive order to individuals
with handicaps or the exclusion of a specific class of individuals with
handicaps from a program limited by Federal statute or Executive order
to a different class of individuals with handicaps is not prohibited by
this part.
(d) The Commission shall administer programs and activities in the
most integrated setting appropriate to the needs of qualified
individuals with handicaps.
6.131 -- 6.139 (Reserved)
16 CFR 6.140 Employment.
No qualified individual with handicaps shall, on the basis of
handicap, be subjected to discrimination in employment under any program
or activity conducted by the Commission. The definitions, requirements
and procedures of section 501 of the Rehabilitation Act of 1973 (29
U.S.C. 791), as established by the Equal Employment Opportunity
Commission in 29 CFR part 1613, shall apply to employment in federally
conducted programs or activities.
6.141 -- 6.148 (Reserved)
16 CFR 6.149 Program accessibility: Discrimination prohibited.
Except as otherwise provided in 6.150, no qualified individuals with
handicaps shall, because the Commission's facilities are inaccessible to
or unusable by individuals with handicaps, be denied the benefits of, be
excluded from participation in, or otherwise be subjected to
discrimination under any program or activity conducted by the
Commission.
16 CFR 6.150 Program accessibility: Existing facilities.
(a) General. The Commission shall operate each program or activity
so that the program or activity, when viewed in its entirety, is readily
accessible to and usable by individuals with handicaps. This paragraph
does not --
(1) Necessarily require the Commission to make each of its existing
facilities accessible to and usable by individuals with handicaps, or
(2) Require the Commission to take any action that it can demonstrate
would result in a fundamental alteration in the nature of a program or
activity or in undue financial and administrative burdens. In those
circumstances where Commission personnel believe that the proposed
action would fundamentally alter the program or activity or would result
in undue financial and administrative burdens, the Commission has the
burden of proving that compliance with 6.150(a) would result in such
alteration or burdens. The decision that compliance would result in
such alteration or burdens must be made by the Chairman or his or her
designee after considering all Commission resources available for use in
the funding and operation of the conducted program or activity, and must
be accompanied by a written statement of the reasons for reaching that
conclusion. If an action would result in such an alteration or such
burdens, the Commission shall take any other action that would not
result in such an alteration or such burdens, but would, nevertheless,
ensure that individuals with handicaps receive the benefits and services
of the program or activity.
(b) Methods. The Commission may comply with the requirements of this
section through such means as redesign of equipment, reassignment of
services to accessible buildings, assignment of aides to beneficiaries,
home visits, delivery of services at alternate accessible sites,
alteration of existing facilities and construction of new facilities,
use of accessible rolling stock, or any methods that result in making
its programs or activities readily accessible to and usable by
individuals with handicaps. The Commission is not required to make
structural changes in existing facilities where other methods are
effective in achieving compliance with this section. The Commission, in
making alterations to existing buildings, shall meet accessibility
requirements to the extent compelled by the Architectural Barriers Act
of 1968, as amended (42 U.S.C. 4151-4157) and any regulations
implementing it. In choosing among available methods for meeting the
requirements of this section, the Commission shall give priority to
those methods that offer programs and activities to qualified
individuals with handicaps in the most integrated setting appropriate.
(c) Time period for compliance. The Commission shall comply with the
obligations established under this section by April 1, 1988, except that
where structural changes in facilities are undertaken, such changes
shall be made by February 1, 1991, but in any event as expeditiously as
possible.
(d) Transition plan. In the event that structural changes to
facilities will be undertaken to achieve program accessibility, the
Commission shall develop, by August 1, 1988, a transition plan setting
forth the steps necessary to complete such changes. The Commission
shall provide an opportunity to interested persons, including
individuals with handicaps or organizations representing individuals
with handicaps, to participate in the development of the transition plan
by submitting comments (both oral and written). A copy of the
transition plan shall be made available for public inspection. The plan
shall, at a minimum --
(1) Identify physical obstacles in the Commission's facilities that
limit the accessibility of its programs or activities to individuals
with handicaps;
(2) Describe in detail the methods that will be used to make the
facilities accessible;
(3) Specify the schedule for taking the steps necessary to achieve
compliance with this section and, if the time period of the transition
plan is longer than one year, identify steps that will be taken during
each year of the transition period;
(4) Indicate the official responsible for implementation of the plan;
and
(5) Identify the persons or groups with whose assistance the plan was
prepared.
16 CFR 6.151 Program accessibility: New construction and alterations.
Each building or part of a building that is constructed or altered
by, on behalf of, or for the use of the Commission shall be designed,
constructed, or altered so as to be readily accessible to and usable by
individuals with handicaps. The definitions, requirements, and
standards of the Architectural Barriers Act (42 U.S.C. 4151-4157), as
established in 41 CFR 101-19.600 to 101-19.607, apply to buildings
covered by this section.
6.152 -- 6.159 (Reserved)
16 CFR 6.160 Communications.
(a) The Commission shall take appropriate steps to ensure effective
communication with applicants, participants, personnel of other Federal
entities, and members of the public.
(1) The Commission shall furnish appropriate auxiliary aids where
necessary to afford an individual with handicaps an equal opportunity to
participate in, and enjoy the benefits of, a program or activity
conducted by the Commission.
(i) In determining what type of auxiliary aid is necessary, the
Commission shall give primary consideration to the requests of the
individual with handicaps.
(ii) The Commission need not provide individually prescribed devices,
readers for personal use or study, or other devices of a personal
nature.
(2) Where the Commission communicates with applicants and
beneficiaries by telephone, telecommunication devices for deaf persons
(TDD's), or equally effective telecommunication systems shall be used.
(b) The Commission shall ensure that interested persons, including
persons with impaired vision or hearing, can obtain information as to
the existence and location of accessible services, activities, and
facilities.
(c) The Commission shall provide signs at a primary entrance to each
of its inaccessible facilities, directing users to a location at which
they can obtain information about accessible facilities. The
international symbol for accessibility shall be used at each primary
entrance of an accessible facility.
(d) This section does not require the Commission to take any action
that it can demonstrate would result in a fundamental alteration in the
nature of a program or activity, or in undue financial and
administrative burdens. In those circumstances where Commission
personnel believe that the proposed action would fundamentally alter the
program or activity or would result in undue financial and
administrative burdens, the Commission has the burden of proving that
compliance with 6.160 would result in such alteration or burdens. The
decision that compliance would result in such alteration or burdens must
be made by the Chairman or his or her designee after considering all
Commission resources available for use in the funding and operation of
the conducted program or activity, and must be accompanied by a written
statement of the reasons for reaching that conclusion. If an action
required to comply with this section would result in such an alteration
or such burdens, the Commission shall take any other action that would
not result in such an alteration or burdens but would nevertheless
ensure that, to the maximum extent possible, individuals with handicaps
receive the benefits and services of the program or activity.
6.161 -- 6.169 (Reserved)
16 CFR 6.170 Compliance procedures.
(a) Except as provided in paragraph (b) of this section, this section
applies to all allegations of discrimination on the basis of handicap in
programs or activities conducted by the Commission.
(b) The Commission shall process complaints alleging violations of
section 504 with respect to employment according to the procedures
established by the Equal Employment Opportunity Commission in 29 CFR
part 1613 pursuant to section 501 of the Rehabilitation Act of 1973 (29
U.S.C. 791).
(c) Responsibility for implementation and operation of this section
is vested in the Director of Equal Employment Opportunity.
(d) (1) A complete complaint under this section may be filed by any
person who believes that he or she or any specific class of persons of
which he or she is a member has been subjected to discrimination
prohibited by this part. The complaint may also be filed by an
authorized representative of any such person.
(2) The complaint must be filed within 180 days of the alleged act of
discrimination unless the Director of Equal Employment Opportunity
extends the time period for good cause.
(3) The complaint must be addressed to the Director of Equal
Employment Opportunity, Federal Trade Commission, 6th and Pennsylvania
Ave. NW., Washington, DC 20580.
(e) If the Director of Equal Employment Opportunity receives a
complaint over which the Commission does not have jurisdiction, he or
she shall promptly notify the complainant and shall make reasonable
efforts to refer the complaint to the appropriate Government entity.
(f) The Director of Equal Employment Opportunity shall notify the
Architectural and Transportation Barriers Compliance Board upon receipt
of any complaint alleging that a building or facility that is subject to
the Architectural Barriers Act of 1968, as amended (42 U.S.C. 4151-4157)
is not readily accessible to and usable by individuals with handicaps.
(g) (1) The Director of Equal Employment Opportunity shall accept and
investigate a complete complaint that is filed in accordance with
paragraph (d) of this section and over which the Commission has
jurisdiction.
(2) If the Director of Equal Employment Opportunity receives a
complaint that is not complete (see 6.103), he or she shall, within 30
days thereafter, notify the complainant that additional information is
needed. If the complainant fails to complete the complaint within 30
days of the date of the Director's notice, the Director of Equal
Employment Opportunity may dismiss the complaint without prejudice.
(h) Within 180 days of the receipt of a complete complaint over which
the Commission has jurisdiction, the Director of Equal Employment
Opportunity shall notify the complainant of the results of the
investigation in a letter containing --
(1) Findings of fact and conclusions of law;
(2) A description of a remedy for each violation found; and
(3) A notice of the right to appeal to the Commission's General
Counsel.
(i)(1) An appeal under this section must be filed within 90 days of
the complainant's receipt of the letter under paragraph (h) of this
section unless the General Counsel extends the time period for good
cause.
(2) The appeal must be addressed to the General Counsel, Federal
Trade Commission, 6th and Pennsylvania Ave. NW., Washington, DC 20580.
(3) The appeal shall specify the questions raised by the appeal and
the arguments on the points of fact and law relied upon in support of
the position taken on each question; and it shall include copies of the
complaint filed under paragraph (d) of this section and the letter by
the Director of Equal Employment Opportunity under paragraph (h) of this
section as well as any other material relied upon in support of the
appeal.
(j) The General Counsel shall notify the complainant of the results
of the appeal within 60 days of the receipt of the appeal. If the
General Counsel determines that additional information is needed from
the complainant, the General Counsel shall have 60 days from the date of
receipt of the additional information to make a final determination on
the appeal. The General Counsel may submit the appeal to the Commission
for final determination provided that any final determination of the
appeal is made by the Commission within the 60-day period specified by
this paragraph.
(k) The time limits specified by paragraphs (h) and (j) of this
section may be extended by the Chairman for good cause.
(l) The Commission may delegate its authority for conducting
complaint investigations to other Federal agencies, except that the
authority for making the final determination may not be delegated.
6.171 -- 6.999 (Reserved)
16 CFR 6.170 PART 14 -- ADMINISTRATIVE INTERPRETATIONS, GENERAL POLICY
STATEMENTS, AND ENFORCEMENT POLICY STATEMENTS
Sec.
14.2 Use of word ''tile'' in designation of non-ceramic products.
14.4 Identification of metallically weighted silk fiber.
14.7 Rule ------ Push Money.
14.9 Requirements concerning clear and conspicuous disclosures in
foreign language advertising and sales materials.
14.11 Assigning model years to motor vehicles.
14.12 Use of secret coding in marketing research.
14.15 In regard to comparative advertising.
14.16 Interpretation of Truth-in-Lending Orders consistent with the
Truth-in-Lending Simplification and Reform Act and Revised Regulation Z.
14.17 Franchise rule enforcement protocol.
16 CFR 14.2 Use of word ''tile'' in designation of non-ceramic
products.
It is not the policy of the Commission to consider false and
misleading the use of the word ''tile'' in the designation of
non-ceramic products provided that either the true composition of said
products or the fact that they are not ceramic products is plainly
disclosed.
(Sec. 6, 38 Stat. 721; 15 U.S.C. 46)
(15 FR 7357, Nov. 12, 1950)
16 CFR 14.4 Identification of metallically weighted silk fiber.
(a) The following requirements for disclosure of metallic weighting
are based on, and interpretive of, section 5(a) of the Federal Trade
Commission Act, as amended, and are to be construed as supplementing the
fiber identification requirements of the Textile Fiber Products
Identification Act and the rules and regulations issued thereunder.
(b) In the case of yarn and fabric containing metallically weighted
silk fiber, the fiber identification required by the Textile Fiber
Products Identification Act (72 Stat. 1717; 15 U.S.C. 70), and the
rules and regulations issued thereunder, shall be immediately
accompanied by a clear and non-deceptive disclosure of the fact that the
silk fiber present is weighted, with specification of the percentage of
the total weight of the silk fiber content in its finished state which
the weighting represents:
Provided, however, That specification of the percentage shall be
subject to a tolerance not exceeding 3 percent when the deviation is not
intentional and reasonable effort has been made to determine and
accurately state the precise percentage; and, Provided further, That in
lieu of a statement of the precise percentage, a maximum percentage may
be stated when the precise percentage does not exceed such maximum.
(c) The disclosure of such weighting, in accordance with the above
requirements, shall be on the same label on which appears the fiber
identification required by the Textile Fiber Products Identification Act
and the rules and regulations issued thereunder, and shall appear in
immediate conjunction with any representation in advertisements, sales
promotional literature, or invoices, which relate to fiber content. The
following are examples of disclosure of metallic weighting which will be
considered as meeting the requirements of this Administrative
Interpretation:
When the fiber content is wholly silk, and the weighting constitutes
50 percent of the weight of the fiber content in its finished state:
Fiber content 100 percent silk, weighted 50 percent; or
Fiber content all silk, weighted 50 percent.
When the fiber content is of a mixture of 50 percent silk and 50
percent rayon, and the weighting constitutes not more than 25 percent of
the silk fiber in its finished state:
Fiber content 50 percent silk (weighted not to exceed 25 percent),
and 50 percent rayon.
(Sec. 5, 38 Stat. 719, as amended; 15 U.S.C. 45)
(25 FR 2835, Apr. 5, 1960)
16 CFR 14.7 Rule ------ Push Money.
It is an unfair trade practice for any industry member to pay or
contract to pay anything of value to a sales person employed by a
customer of the industry member, as compensation for, or as an
inducement to obtain, special or greater effort or service on the part
of the sales person in promoting the resale of products supplied by the
industry member to the customer:
(a) When the agreement or understanding under which the payment or
payments are made or are to be made is without the knowledge and consent
of the sales person's employer; or
(b) When the terms and conditions of the agreement or understanding
are such that any benefit to the sales person or customer is dependent
on lottery; or
(c) When any provision of the agreement or understanding requires or
contemplates practices or a course of conduct unduly and intentionally
hampering sales of products of competitors of an industry member; or
(d) When, because of the terms and conditions of the understanding or
agreement, including its duration, or the attendant circumstances, the
effect may be to substantially lessen competition or tend to create a
monopoly; or
(e) When similar payments are not accorded to sales persons of
competing customers on proportionally equal terms in compliance with
section 2 (d) and (e) of the Clayton Act.
Note: Payments made by an industry member to a sales person of a
customer under any agreement or understanding that all or any part of
such payments is to be transferred by the sales person to the customer,
or is to result in a corresponding decrease in the sales person's
salary, are not to be considered within the purview of the Rule ---- ,
but are to be considered as subject to the requirements and provisions
of section 2(a) of the Clayton Act.
(Secs. 5, 6; 38 Stat. 719, as amended, 721; 15 U.S.C. 45, 46)
(27 FR 4331, May 5, 1962)
16 CFR 14.9 Requirements concerning clear and conspicuous disclosures
in foreign language advertising and sales materials.
The Federal Trade Commission has noted that, with increasing
intensity, advertisers are making special efforts to reach foreign
language-speaking consumers. As part of this special effort,
advertisements, brochures and sales documents are being printed in
foreign languages. In recent years the Commission has issued various
cease-and-desist orders as well as rules, guides and other statements,
which require affirmative disclosures in connection with certain kinds
of representations and business activities. Generally, these
disclosures are required to be ''clear and conspicuous.'' Because
questions have arisen as to the meaning and application of the phrase
''clear and conspicuous'' with respect to foreign language
advertisements and sales materials, the Commission deems it appropriate
to set forth the following enforcement policy statement:
(a) Where cease-and-desist orders as well as rules, guides and other
statements require ''clear and conspicuous'' disclosure of certain
information, that disclosure must be in the same language as that
principally used in the advertisements and sales materials involved.
(b) Any respondent who fails to comply with this requirement may be
the subject of a civil penalty proceeding for violating the terms of a
Commission cease-and-desist order.
(Sec. 5, 38 Stat. 719, as amended; 15 U.S.C. 45)
(38 FR 21494, Aug. 9, 1973)
16 CFR 14.11 Assigning model years to motor vehicles.
(a) The Federal Trade Commission has been concerned about misleading
practices some manufacturers have used to identify the model years of
heavy duty trucks and other vehicles whose features change little from
year to year.
(b) Two practices have been of particular concern:
(1) Some manufacturers have changed the identification papers of
unsold vehicles at the end of one model year to show that the vehicles
are of the next model year;
(2) Some manufacturers have let their branches or dealers base the
model year on the date of sale to retail purchasers.
(c) These practices may mislead buyers as to the date of manufacture.
They may also hinder market forces that normally lead to price cuts at
the end of model years.
16 CFR 14.11 Guidelines
(d) To prevent deception and help manufacturers avoid violating the
Federal Trade Commission Act, the Commission has issued the following
guidelines for motor vehicle manufacturers and dealers. They apply to
all motor vehicles built for use upon public highways. These include
truck chassis and incomplete vehicles used in building motor homes. The
guidelines are:
(1) Manufacturers of motor vehicles must put on each vehicle a
permanent label. The label must show clearly and conspicuously the
month and year of manufacture. Following the certification rules of the
National Highway Traffic Safety Administration, 49 CFR part 567 (1977),
will satisfy this requirement;
(2) Manufacturers must assign model years to all vehicles shipped to
states which provide spaces on title or registration papers for model
years, or which otherwise identify vehicles by model years on such
papers. Manufacturers must indicate the model years on the Certificates
or Statements of Origin of all vehicles shipped to such states. (As of
July, 1978, all states except Hawaii either provided spaces on title or
registration papers for model years, or otherwise identify vehicles by
model years on such papers;
(3) In assigning model years, manufacturers must follow written
standards set for each model before a model year starts;
(4) The standards must be uniformly applied to all vehicles of a
particular model, however they are sold. In particular, the same
standards must be used for vehicles sold through factory-owned branches
and through independent dealers;
(5) A standard once set must be used throughout a model year;
(6) A standard must base model year on either the date of manufacture
or features of the vehicle. The standard must be such that all vehicles
assigned a model year which are manufactured on the same date with the
same features are assigned the same model year;
(7) The model year must be assigned to each vehicle on or before its
date of manufacture;
(8) Once a vehicle is assigned a model year, the model year must not
be changed. But, mistakes in applying the standards may be corrected;
(9) Dealers must not represent to customers or to state title or
registration officials (on application forms or otherwise) that vehicles
are of any model years or that they should be titled or registered by
any model years other than the model years indicated by the
manufacturers on the Certificates of Origin for those vehicles. Dealers
must not represent that vehicles are of any model years if no model
years are indicated on Certificates of Origin for such vehicles.
Manufacturers must not make any such representations or help or
encourage dealers to make such representations.
(10) Exceptions. (i) Guidelines (2) through (8) do not apply to
chassis or incomplete vehicles sold to motor home or recreational
vehicle manufacturers who issue separate Certificates of Origin.
Manufacturers of such chassis or incomplete vehicles need not assign
model years to these vehicles. If they do not assign model years, they
must put on Certificates of Origin, the words ''Model Year'' or
''Year,'' followed by ''NA'' or ''Not Applicable'' or ''None.''
(ii) As indicated in Guide (2) manufacturers do not have to assign
model years to vehicles shipped to any state which does not identify
vehicles by model year on title or registration papers. Manufacturers
who do not assign model years to vehicles shipped to such a state, must
put on the Certificates of Origin the words ''Model Year'' followed by
''NA'' or ''Not Applicable'' or ''None.''
16 CFR 14.11 Interpretation and Enforcement
The Commission recognizes that this Enforcement policy Statement may
not provide clear guidance in every situation that may arise. The staff
of the Bureau of Consumer Protection will be available to answer
questions and help industry members comply with these guidelines.
Should subsequent investigation disclose violations of law, the
Commission will take appropriate enforcement action.
(Sec. 6, 38 Stat. 721 (15 U.S.C. 46); 80 Stat. 378 (5 U.S.C. 552))
(44 FR 30322, May 25, 1979)
16 CFR 14.12 Use of secret coding in marketing research.
(a) The Federal Trade Commission has determined to close its
industry-wide investigation of marketing research firms that was
initiated in November 1975, to determine if the firms were using
questionnaires with invisible coding that could be used to reveal a
survey respondent's identity. After a thorough investigation, the
Commission has determined that invisible coding has been used by the
marketing research industry, but it is neither a commonly used nor
widespread practice. Moreover, use of the practice appears to have
diminished in recent years. For these reasons, the Commission has
determined that further action is not warranted at this time.
(b) However, for the purpose of providing guidance to the marketing
research industry, the Commission is issuing the following statement
with regard to its future enforcement intentions. The Commission has
reason to believe that it is an unfair or deceptive act or practice,
violative of section 5 of the Federal Trade Commission Act (15 U.S.C.
45) to induce consumers to provide information about themselves by
expressly or implicitly promising that such information is being
provided anonymously, when, in fact, a secret or invisible code is used
on the survey form or return envelope that allows identification of the
consumer who has provided the information.
(c) While the Commission has made no final determination regarding
the legality of the foregoing practice, the Commission will take
appropriate enforcement action should it discover the practice to be
continuing in the future, and in the event that it may be causing
substantial consumer injury. Among the circumstances in which the
Commission believes that the use of secret coding may cause significant
consumer harm are those in which:
(1) A misleading promise of anonymity is used to obtain highly
sensitive information about a consumer that such consumer would not
choose to disclose if he or she were informed that a code was being used
that would allow his or her name to be associated with the response;
and (2) information of any sort is used for purposes other than those of
the market survey.
(43 FR 42742, Sept. 21, 1978)
16 CFR 14.15 In regard to comparative advertising.
(a) Introduction. The Commission's staff has conducted an
investigation of industry trade associations and the advertising media
regarding their comparative advertising policies. In the course of this
investigation, numerous industry codes, statements of policy,
interpretations and standards were examined. Many of the industry codes
and standards contain language that could be interpreted as discouraging
the use of comparative advertising. This Policy Statement enunciates
the Commission's position that industry self-regulation should not
restrain the use by advertisers of truthful comparative advertising.
(b) Policy Statement. The Federal Trade Commission has determined
that it would be of benefit to advertisers, advertising agencies,
broadcasters, and self-regulation entities to restate its current policy
concerning comparative advertising. 1 Commission policy in the area of
comparative advertising encourages the naming of, or reference to
competitiors, but requires clarity, and, if necessary, disclosure to
avoid deception of the consumer. Additionally, the use of truthful
comparative advertising should not be restrained by broadcasters or
self-regulation entities.
(c) The Commission has supported the use of brand comparisions where
the bases of comparision are clearly identified. Comparative
advertising, when truthful and nondeceptive, is a source of important
information to consumers and assists them in making rational purchase
decisions. Comparative advertising encourages product improvement and
innovation, and can lead to lower prices in the marketplace. For these
reasons, the Commission will continue to scrutinize carefully restraints
upon its use.
(1) Disparagement. Some industry codes which prohibit practices such
as ''disparagement,'' ''disparagement of competitors,'' ''improper
disparagement,'' ''unfairly attaching,'' ''discrediting,'' may operate
as a restriction on comparative advertising. The Commission has
previously held that disparaging advertising is permissible so long as
it is truthful and not deceptive. In Carter Products, Inc., 60 F.T.C.
782, modified, 323 F.2d 523 (5th Cir. 1963), the Commission narrowed an
order recommended by the hearing examiner which would have prohibited
respondents from disparaging competing products through the use of false
or misleading pictures, depictions, or demonstrations, ''or otherwise''
disparaging such products. In explaining why it eliminated ''or
otherwise'' from the final order, the Commission observed that the
phrase would have prevented
respondents from making truthful and non-deceptive statements that a
product has certain desirable properties or qualities which a competing
product or products do not possess. Such a comparison may have the
effect of disparaging the competing product, but we know of no rule of
law which prevents a seller from honestly informing the public of the
advantages of its products as opposed to those of competing products.
60 F.T.C. at 796.
Industry codes which restrain comparative advertising in this manner
are subject to challenge by the Federal Trade Commission.
(2) Substantiation. On occasion, a higher standard of substantiation
by advertisers using comparative advertising has been required by
self-regulation entities. The Commission evaluates comparative
advertising in the same manner as it evaluates all other advertising
techniques. The ultimate question is whether or not the advertising has
a tendency or capacity to be false or deceptive. This is a factual
issue to be determined on a case-by-case basis. However, industry codes
and interpretations that impose a higher standard of substantiation for
comparative claims than for unilateral claims are inappropriate and
should be revised.
(Sec. 5, 38 Stat. 719, as amended; 15 U.S.C. 45)
(44 FR 47328, Aug. 13, 1979)
1For purposes of this Policy Statement, comparative advertising is
defined as advertising that compares alternative brands on objectively
measurable attributes or price, and identifies the alternative brand by
name, illustration or other distinctive information.
16 CFR 14.16 Interpretation of Truth-in-Lending Orders consistent with the Truth-in-Lending Simplification and Reform Act and Revised Regulation Z.
16 CFR 14.16 Introduction
The Federal Trade Commission (FTC) has determined that there is a
need to clarify the compliance responsibilities under the
Truth-in-Lending Simplification and Reform Act of 1980 (Pub. L. 96-221,
94 Stat. 168) and revised Regulation Z (12 CFR part 226, 46 FR 20848) of
those creditors subject to final cease and desist orders issued prior to
April 1, 1981, which require compliance with provisions of the original
Truth-in-Lending statute and prior Regulation Z. Clarification is
necessary because the Truth-in-Lending Simplification and Reform Act and
revised Regulation Z significantly relax prior Truth-in-Lending
requirements on which provisions of more than 300 outstanding orders are
based. The policy statement provides that the Commission will interpret
and enforce Truth-in-Lending provisions of all orders issued prior to
April 1, 1981, so as to impose no greater or different disclosure
obligations on creditors under order than are required generally of
creditors under the new law.
16 CFR 14.16 Policy Statement
(a) All cease and desist orders issued by the Federal Trade
Commission prior to April 1, 1981, which require compliance with
provisions of the Truth-in-Lending Act (Title I, Consumer Credit
Protection Act, 15 U.S.C. 1601) and Regulation Z (12 CFR part 226) will
be interpreted and enforced consistent with the amendments to
Truth-in-Lending incorporated by the Truth-in-Lending Simplification and
Reform Act of 1980, and the revision of Regulation Z implementing the
same, promulgated on April 1, 1981 (46 FR 20848) by the Board of
Governors of the Federal Reserve System. Likewise, the Federal Reserve
Board staff commentary to revised Regulation Z (46 FR 50288, October 9,
1981) will be read into interpretations of requirements of existing
orders.
(b) During the period April 1, 1981, to October 1, 1982, revised
Regulation Z and the prior regulation are concurrently effective.
Creditors under order may begin complying with the revised regulation at
any time during the transition period, but they must be in compliance by
October 1, 1982. The compliance alternatives of creditors subject to
Commission orders during the transition period and after October 1,
1982, are as follows:
(1) During the transition period, Truth-in-Lending provisions of
existing orders will be interpreted as written until such time as the
creditor elects to comply with revised Regulation Z.
(2) Any creditor which elects to comply with revised Regulation Z
prior to October 1, 1982, must comply with all applicable requirements
of the revised regulation. Thus, in any single credit transaction
creditors under order cannot take advantage of the simplified
regulations' less burdensome disclosure requirements without also
complying with the new disclosure requirements.
(3) Effective October 1, 1982, or at any earlier time that a creditor
elects to comply with revised Regulation Z, compliance with the
simplified credit disclosure requirements will be considered compliance
with the existing order; and,
(i) To the extent that revised Regulation Z deletes disclosure
requirements imposed by the order, compliance with these requirements
may be eliminated; however,
(ii) To the extent that revised Regulation Z imposes additional
disclosure or format requirements, a failure to comply with the added
requirements will be considered a violation of section 5 of the Federal
Trade Commission Act (15 U.S.C. 45).
(4) A creditor must continue to comply with all provisions of the
order which do not relate to Truth-in-Lending requirements or are
unaffected by revised Regulation Z. These provisions are not affected
by this policy statement and will remain in full force and effect.
16 CFR 14.16 Staff Clarifications
The Commission intends that this Enforcement Policy Statement obviate
the need for any creditor to file a petition to reopen and modify any
affected order under 2.51 of the Commission rules of practice.
However, the Commission recognizes that the policy statement may not
provide clear guidance to every creditor under order. The staff of the
Division of Enforcement, Bureau of Consumer Protection, will respond to
written requests for clarification of any order affected by this policy
statement.
(Secs. 5, 18, 23; 38 Stat. 719-721, as amended by Pub. L. 96-252, 94
Stat. 374, 376, 390; 15 U.S.C. 45, 57a, 57b-4; sec. 108(d), 82 Stat.
146, 150, as amended by Pub. L. 96-221, 94 Stat. 168, 15 U.S.C. 1601,
1607d)
(47 FR 13323, Mar. 30, 1982)
16 CFR 14.17 Franchise rule enforcement protocol.
The Commission believes that the following questions are relevant in
deciding when to initiate an enforcement action under the Franchise
Rule. The Commission does not intend to suggest that it must possess
answers to each of the questions before initiating any action. In some
cases, answering certain questions may involve undue costs. Moreover,
the answers to even a few questions may so positively indicate that a
proposed action is in the public interest so that the Commission need
not consider other questions. The protocol is a framework for analysis,
not a rigid imperative.
(a) Coverage Under the Rule. (1) is the proposed defendant covered
by the Rule? Analyze the relationship between the proposed defendant
and its distributors in the context of the rule's definitional
prerequisites to coverage.
(2) To what extent will proof of coverage be based on the proposed
defendant's own writings, such as its contract or promotional materials,
as opposed to witnesses' testimony about salespersons' promises?
(3) Is it likely that the proposed defendant will challenge coverage?
If so, will such challenge be based on a question of interpretation or
a question of facts; that is, is the dispute over whether a given fact
situation constitutes a franchise or what the facts are?
(4) If Rule coverage is uncertain, would a Section 5 action be more
appropriate?
(b) Compliance With the Rule. (1) Was the basic disclosure document
provided to prospective franchisees? Were all required disclosures made
completely and accurately?
(2) Was timely disclosure made?
(3) Did the franchisees have at least 10 business days to review the
disclosures?
(4) Were earnings claims made? If so, was an earnings claims
disclosure document provided? Does there appear to be substantiation
for any claims made?
(5) Were there any other rule violations present?
(c) Consumer Injury. (1) How many franchises were sold in violation
of the rule?
(2) What is the aggregate dollar volume of revenue received by the
franchisor from franchise sales in violation of the rule, and the
franchisor's current net worth?
(3) What is the current or expected rate of franchise sales?
(4) How much have franchisees lost? To what extent has their
behavior after purchase contributed to or mitigated their losses?
Conversely, to what extent has their franchisor's behavior contributed
to or mitigated their losses?
(5) What percentage of the franchisor's franchisees have experienced
economic loss from their investments? Can this loss be attributed, in
whole or in part, to Rule violations?
(d) Remedies. (1) Analyze the efficiency of injunctions, civil
penalties and consumer redress.
(2) Discuss the need for proposed preliminary relief, such as an
asset freeze and preliminary injunction.
(3) Who are the key persons who formulate, direct and control the
company policies who should be individually named in the complaint?
(4) What is the financial condition of each proposed defendant? What
can we reasonably anticipate collecting in civil penalties or redress
from corporate and individual defendants?
(5) If consumer redress is recommended, what is the estimated loss
and how is it calculated?
(6) How viable or likely is non-Commission enforcement, such as
private actions or state or local prosecution, as an alternative to
Commission action?
(7) To what extent would each type of violation identified have been
likely to influence decisions by potential franchisees?
(e) Other Conditions. (1) What resources are needed to bring the
action to an acceptable conclusion?
(2) Will the action deter other potential violators from failing to
comply with the Rule?
(38 Stat. 717, as amended, 15 U.S.C. 41-58)
(49 FR 50632, Dec. 31, 1984)
16 CFR 14.17 PART 16 -- ADVISORY COMMITTEE MANAGEMENT
Sec.
16.1 Purpose and scope.
16.2 Definitions.
16.3 Policy.
16.4 Advisory Committee Management Officer.
16.5 Establishment of advisory committees.
16.6 Charter.
16.7 Meetings.
16.8 Closed meetings.
16.9 Notice of meetings.
16.10 Minutes and transcripts of meetings.
16.11 Annual Comprehensive review.
16.12 Termination of advisory committees.
16.13 Renewal of advisory committees.
16.14 Amendments.
16.15 Reports of advisory committees.
16.16 Compensation.
Authority: Federal Advisory Committee Act, 5 U.S.C. App. I Section
8(a).
Source: 51 FR 30055, Aug. 22, 1986, unless otherwise noted.
16 CFR 16.1 Purpose and scope.
(a) The regulations in this part implement the Federal Advisory
Committee Act, 5 U.S.C. App. I.
(b) These regulations shall apply to any advisory committee, as
defined in paragraph (b) of 16.2 of this part. However, to the extent
that an advisory committee is subject to particular statutory provisions
that are inconsistent with the Federal Advisory Committee Act, these
regulations do not apply.
16 CFR 16.2 Definitions.
For purposes of this part:
(a) Administrator means the Administrator of the General Services
Administration.
(b) Advisory committee, subject to exclusions described in paragraph
(b)(2) of this section, means any committee, board, commission, council,
panel, task force, or other similar group, or any subcommittee or other
subgroup thereof, which is established or utilized by the Commission for
the purpose of obtaining advice or recommendations for the Commission or
other agency or officer of the Federal Government on matters that are
within the scope of the Commission's jurisdiction.
(1) Where a group provides some advice to the Commission but the
group's advisory function is incidental and inseparable from other
(e.g., operational or management) functions, the provisions of this part
do not apply. However, if the advisory function is separable, the group
is subject to this part to the extent that the group operates as an
advisory committee.
(2) Groups excluded from the effect of the provisions of this part
include:
(i) Any committee composed wholly of full-time officers or employees
of the Federal Government;
(ii) Any committee, subcommittee or subgroup that is exclusively
operational in nature (e.g., has functions that include making or
implementing decisions, as opposed to the offering of advice or
recommendations);
(iii) Any inter-agency advisory committee unless specifically made
applicable by the establishing authority.
(c) Commission means the Federal Trade Commission.
(d) GSA means the General Services Administration.
(e) Secretariat means the Committee Management Secretariat of the
General Services Administration.
(f) Sunshine Act means the Government in the Sunshine Act, 5 U.S.C.
552b.
16 CFR 16.3 Policy.
(a) The Commission's policy shall be to:
(1) Establish an advisory committee only when it is essential to the
conduct of agency business;
(2) Insure that adequate information is provided to the Congress and
the public regarding advisory committees, and that there are adequate
opportunities for access by the public to advisory committee meetings;
(3) Insure that the membership of the advisory committee is balanced
in terms of the points of view represented and the functions to be
performed; and
(4) Terminate an advisory committee whenever the stated objectives of
the committee have been accomplished; the subject matter or work of the
advisory committee has become obsolete; the cost of operating the
advisory committee is excessive in relation to the benefits accruing to
the Commission; or the advisory committee is otherwise no longer a
necessary or appropriate means to carry out the purposes for which it
was established.
(b) No advisory committee may be used for functions that are not
solely advisory unless specifically authorized to do so by law. The
Commission shall be solely responsible for making policy decisions and
determining action to be taken with respect to any matter considered by
an advisory committee.
16 CFR 16.4 Advisory Committee Management Officer.
(a) The Commission shall designate the Executive Director as the
Advisory Committee Management Officer who shall:
(1) Exercise control and supervision over the establishment,
procedures, and accomplishments of the advisory committees established
by the Commission;
(2) Assemble and maintain the reports, records, and other papers of
any advisory committee during its existence;
(3) Carry out, on behalf of the Commission, the provisions of the
Freedom of Information Act, 5 U.S.C. 552, with respect to such reports,
records, and other papers;
(4) Maintain in a single location a complete set for the charters and
membership lists of each of the Commission's advisory committees;
(5) Maintain information on the nature, functions, and operations of
each of the Commission's advisory committees; and
(6) Provide information on how to obtain copies of minutes of
meetings and reports of each of the Commission's advisory committees.
(b) The name of the Advisory Committee Management Officer designated
in accordance with this part, and his or her agency address and
telephone number, shall be provided to the Secretariat.
16 CFR 16.5 Establishment of advisory committees.
(a) No advisory committee shall be established under this part unless
such establishment is:
(1) Specifically authorized by statute; or
(2) Determined as a matter of formal record by the Commission, after
consultation with the Administrator, to be in the public interest in
connection with the performance of duties imposed on the Commission by
law.
(b) In establishing an advisory committee, the Commission shall:
(1) Prepare a proposed charter for the advisory committee in
accordance with 16.6 of this part; and
(2) Submit an original and one copy of a letter to the Administrator
requesting concurrence in the Commission's proposal to establish an
advisory committee. The letter from the Commission shall describe the
nature and purpose of the proposed advisory committee, including an
explanation of why establishment of the advisory committee is essential
to the conduct of agency business and in the public interest and why the
functions of the proposed committee could not be performed by the
Commission, by an existing committee, or through other means. The
letter shall also describe the Commission's plan to attain balanced
membership on the proposed advisory committee in terms of points of view
to be represented and functions to be performed. The letter shall be
accompanied by two copies of the proposed charter.
(c) Upon the receipt of notification from the Administrator of his or
her concurrence or nonconcurrence, the Commission shall notify the
Administrator in writing that either:
(1) The advisory committee is being established. The filing of an
advisory committee charter as specified in 16.6 of this part shall be
deemed appropriate written notification in this instance; or
(2) The advisory committee is not being established.
(d) If the Commission determines that an advisory committee should be
established in accordance with paragraph (c) of this section, the
Commission shall publish notice to that effect in the Federal Register
at least fifteen days prior to the filing of the advisory committee's
charter unless the Administrator authorizes publication of such notice
within a shorter period of time. The notice shall identify the name and
purpose of the advisory committee, state that the committee is necessary
and in the public interest, and identify the name and address of the
Commission official to whom the public may submit comments.
(e) The Commission may issue regulations or guidelines as may be
necessary to operate and oversee a particular advisory committee.
16 CFR 16.6 Charter.
(a) No advisory committee established, utilized, reestablished or
renewed by the Commission under this part shall meet or take any action
until its charter has been filed by the Commission with the standing
committees of the Senate and House of Representatives having legislative
jurisdiction over the Commission.
(b) The charter required by paragraph (a) of this section shall
include the following information:
(1) The committee's official designation;
(2) The committee's objectives and the scope of its activity;
(3) The period of time necessary for the committee to carry out its
purposes;
(4) The Commission component or official to whom the committee
reports;
(5) The agency or official responsible for providing the necessary
support for the committee;
(6) A description of the duties for which the committee is
responsible, and, if such duties are not solely advisory, a
specification of the authority for such functions;
(7) The estimated annual operating cost in dollars and man-years for
the committee;
(8) The estimated number and frequency of committee meetings;
(9) The committee's termination date, if less than two years from the
date of committee's establishment; and
(10) The date the charter is filed.
(c) A copy of the charter required by paragraph (a) of this section
shall also be furnished at the time of filing to the Secretariat and the
Library of Congress.
(d) The requirements of this section shall also apply to committees
utilized as advisory committees, even though not expressly established
for that purpose.
16 CFR 16.7 Meetings.
(a) The Commission shall designate an officer or employee of the
Federal Government as the Designated Federal Officer for the advisory
committee. The Designated Federal Officer shall attend the meetings of
the advisory committee, and shall adjourn committee meetings whenever he
or she determines that adjournment is in the public interest. The
Commission, in its discretion, may authorize the Designated Federal
Officer to chair meetings of the advisory committee.
(b) No meeting of any advisory committee shall be held except at the
call of, or with the advance approval of, the Designated Federal Officer
and with an agenda approved by such official.
(c) The agenda required by paragraph (b) of this section shall
identify, in general terms, matters to be considered at the meeting and
shall indicate whether any part of the meeting will concern matters that
the General Counsel has determined to be covered by one or more of the
exemptions of the Sunshine Act.
(d) Timely notice of each meeting of the advisory committee shall be
provided in accordance with 16.9 of this part.
(e) Subject to the provisions of 16.8 of this part, each meeting of
an advisory committee as defined in 16.2(b) of this part shall be open
to the public. Subcommittees and subgroups that are not utilized by the
Commission for the purpose of obtaining advice or recommendations do not
constitute advisory committees within the meaning of 16.2(b) and are
not subject to the meeting and other requirements of this part.
(f) Meetings that are completely or partly open to the public shall
be held at reasonable times and at places that are reasonably accessible
to members of the public. The size of the meeting room shall be
sufficient to accommodate members of the public who can reasonably be
expected to attend.
(g) Any member of the public shall be permitted to file a written
statement with the committee concerning any matter to be considered in a
meeting. Interested persons may be permitted by the committee chairman
to speak at such meetings in accordance with procedures established by
the committee and subject to the time constraints under which the
meeting is to be conducted.
(h) No meeting of any advisory committee shall be held in the absence
of a quorum. Unless otherwise established by statute or in the charter
of the committee, a quorum shall consist of a majority of the
committee's authorized membership.
16 CFR 16.8 Closed meetings.
(a) Paragraphs (e), (f) and (g) of 16.7 of this part, which require
that meetings shall be open to the public and that the public shall be
afforded an opportunity to participate in such meetings, shall not apply
to any advisory committee meeting (or any portion thereof) which the
Commission determines is concerned with any matter covered by one or
more of the exemptions set forth in paragraph (c) of the Sunshine Act, 5
U.S.C. section 552b(c).
(b) An advisory committee that seeks to have all or part of its
meeting closed shall notify the Commission at least thirty days before
the scheduled date of the meeting. The notification shall be in writing
and shall identify the specific provisions of the Sunshine Act which
justify closure. The Commission may waive the thirty-day requirement
when a lesser period of time is requested and justified by the advisory
committee.
(c) The General Counsel shall review all requests to close meetings
and shall advise the Commission on the disposition of each such request.
(d) If the Commission determines that the request is consistent with
the policies of the Sunshine Act and the Federal Advisory Committee Act,
it shall issue a determination that all or part of the meeting may be
closed. A copy of the Commission's determination shall be made
available to the public upon request.
(e) The advisory committee shall issue, on an annual basis, a report
that sets forth a summary of its activities in meetings closed pursuant
to this section, addressing those related matters as would be
informative to the public and consistent with the policy of the Sunshine
Act and of this part. Notice of the availability of such annual reports
shall be published in accordance with 16.15 of this part.
16 CFR 16.9 Notice of meetings.
(a) Notice of each advisory committee meeting, whether open or closed
to the public, shall be published in the Federal Register at least 15
days before the meeting date. Such notice shall include the exact name
of the advisory committee as chartered; the time, date, place and
purpose of the meeting; and a summary of the meeting agenda. Notice
shall also state that the meeting is open to the public or closed in
whole or in part, and, if closed, cite the specific exemptions of the
Sunshine Act as the basis for closure. The Commission may permit the
advisory committee to provide notice of less than fifteen days in
extraordinary situations, provided that the reasons for doing so are
included in the meeting notice.
(b) In addition to the notice required by paragraph (a) of this
section, other forms of notice such as press releases and notices in
professional journals may be used to inform interested members of the
public of advisory committee meetings.
16 CFR 16.10 Minutes and transcripts of meetings.
(a) Detailed minutes of each advisory committee meeting shall be
kept. The minutes shall reflect the time, date and place of the
meeting; and accurate summary of each matter that was discussed and
each conclusion reached; and a copy of each report or other document
received, issued, or approved by the advisory committee. In addition,
the minutes shall include a list of advisory committee members and staff
and full-time Federal employees who attended the meeting; a list of
members of the public who presented oral or written statements; and an
estimated number of members of the public who were present at the
meeting. The minutes shall describe the extent to which the meeting was
open to the public and the nature and extent of any public
participation. If it is impracticable to attach to the minutes of the
meeting any document received, issued, or approved by the advisory
committee, then the minutes shall describe the document in sufficient
detail to enable any person who may request the document to identify it
readily.
(b) The accuracy of all minutes shall be certified to by the
chairperson of the advisory committee.
(c) Minutes need not be kept if a verbatim transcript is made.
16 CFR 16.11 Annual comprehensive review.
(a) The Commission shall conduct an annual comprehensive review of
the activities and responsibilities of each advisory committee to
determine:
(1) Whether such committee is carrying out its purpose;
(2) Whether, consistent with the provisions of applicable statutes,
the responsibilities assigned to it should be revised;
(3) Whether it should be merged with any other advisory committee or
committees; or
(4) Whether it should be abolished.
(b) Pertinent factors to be considered in the comprehensive review
required by paragraph (a) of this section include the following:
(1) The number of times the committee has met in the past year;
(2) The number of reports or recommendations submitted by the
committee;
(3) An evaluation of the substance of the committee's reports or
recommendations with respect to the Commission's programs or operations;
(4) An evaluation (with emphasis on the preceding twelve month period
of the committee's work) of the history of the Commission's utilization
of the committee's recommendations in policy formulation, program
planning, decision making, more effective achievement of program
objectives, and more economical accomplishment of programs in general.
(5) Whether information or recommendations could be obtained from
sources within the Commission or from another advisory committee already
in existence;
(6) The degree of duplication of effort by the committee as compared
with that of other parts of the Commission or other advisory committees;
and
(7) The estimated annual cost of the committee.
(c) The annual review required by this section shall be conducted on
a fiscal year basis, and results of the review shall be included in the
annual report to the GSA required by 16.15 of this part. The report
shall contain a justification of each advisory committee which the
Commission determines should be continued, making reference, as
appropriate, to the factors specified in paragraph (b) of this section.
16 CFR 16.12 Termination of advisory committees.
Any advisory committee shall automatically terminate not later than
two years after it is established, reestablished, or renewed, unless:
(a) Its duration is otherwise provided by law;
(b) It is renewed in accordance with 16.13 of this part; or
(c) The Commission terminates it before that time.
16 CFR 16.13 Renewal of advisory committees.
(a) Any advisory committee established under this part may be renewed
by appropriate action of the Commission and the filing of a new charter.
An advisory committee may be continued by such action for successive
two-year periods.
(b) Before it renews an advisory committee in accordance with
paragraph (a) of this section, the Commission will inform the
Administrator by letter, not more than sixty days nor less than thirty
days before the committee expires, of the following:
(1) Its determination that a renewal is necessary and in the public
interest;
(2) The reasons for its determination;
(3) The Commission's plan to maintain balanced membership on the
committee;
(4) An explanation of why the committee's functions cannot be
performed by the Commission or by an existing advisory committee.
(c) Upon receipt of the Administrator's notification of concurrence
or nonconcurrence, the Commission shall publish a notice of the renewal
in the Federal Register, which shall certify that the renewal of the
advisory committee is in the public interest and shall include all the
matters set forth in paragraph (b) of this section. The Commission
shall cause a new charter to be prepared and filed in accordance with
the provisions of 16.5 and 16.6 of this part.
(d) No advisory committee that is required under this section to file
a new charter for the purpose of renewal shall take any action, other
than preparation and filing of such charter, between the date the new
charter is required and the date on which such charter is actually
filed.
16 CFR 16.14 Amendments.
(a) The charter of an advisory committee may be amended when the
Commission determines that the existing charter no longer accurately
describes the committee itself or its goals or procedures. Changes may
be minor, such as revising the name of the advisory committee, or may be
major, to the extent that they deal with the basic objectives or
composition of the committee.
(1) To make a minor amendment to an advisory committee charter, the
Commission shall:
(i) Amend the charter language as necessary; and
(ii) File the amended charter in accordance with the provisions of
16.6 of this part.
(2) To make a major amendment to an advisory committee charter, the
Commission shall:
(i) Amend the charter language as necessary;
(ii) Submit the proposed amended charter with a letter to the
Administrator requesting concurrence in the amended language and an
explanation of why the changes are essential and in the public interest;
and
(iii) File the amended charter in accordance with the provisions of
16.6 of this part.
(b) Amendment of an existing charter does not constitute renewal of
the advisory committee under 16.13 of this part.
16 CFR 16.15 Reports of advisory committees.
(a) The Commission shall furnish, on a fiscal year basis, a report of
the activities of each of its advisory committees to the GSA.
(b) Results of the annual comprehensive review of the advisory
committee made under 16.11 shall be included in the annual report.
(c) The Commission shall notify the GSA, by letter, of the
termination of, changes in the membership of, or other significant
developments with respect to, an advisory committee.
16 CFR 16.16 Compensation.
(a) Committee members. Unless otherwise provided by law, the
Commission shall not compensate advisory committee members for their
service on an advisory committee. In the exceptional case where the
Commission is unable to meet the need for technical expertise or the
requirement for balanced membership solely through the appointment of
noncompensated members, the Commission may contract for or authorize the
advisory committee to contract for the services of a specific consultant
who may be appointed as a member of the advisory committee. In such a
case, the Commission shall follow the procedures set forth in paragraph
(b) of this section.
(b) Consultants. Prior to hiring or authorizing the advisory
committee to hire a consultant to an advisory committee, the Commission
shall determine that the expertise or viewpoint to be offered by the
consultant is not otherwise available without cost to the Commission.
The compensation to be paid to such consultant may not exceed the
maximum rate of pay authorized by 5 U.S.C. section 3109. Hiring of
consultants shall be in accordance with OMB Circular A-120 and
applicable statutes, regulations, and Executive Orders.
(c) Staff members. The Commission may fix the pay of each advisory
committee staff member at a rate of the General Schedule, General
Management Schedule, or Senior Executive Service in which the Staff
member's position would appropriately be placed (5 U.S.C. chapter 51).
The Commission may not fix the pay of a staff member at a rate higher
than the daily equivalent of the maximum rate for GS-15, unless the
Commission has determined that under the General Schedule, General
Management Schedule, or Senior Executive Service classification system,
the staff member's position would appropriately be placed at a grade
higher than GS-15. The Commission shall review this determination
annually.
16 CFR 16.16 SUBCHAPTER B -- GUIDES AND TRADE PRACTICE RULES
16 CFR 16.16 PART 17 -- APPLICATION OF GUIDES IN PREVENTING UNLAWFUL
PRACTICES
Note: Industry guides are administrative interpretations of laws
administered by the Commission for the guidance of the public in
conducting its affairs in conformity with legal requirements. They
provide the basis for voluntary and simultaneous abandonment of unlawful
practices by members of industry. Failure to comply with the guides may
result in corrective action by the commission under applicable statutory
provisions. Guides may relate to a practice common to many industries
or to specific practices of a particular industry.
(Sec. 6(g), 38 Stat. 722; (15 U.S.C. 46(g))
(44 FR 11176, Feb. 27, 1979)
16 CFR 16.16 PART 18 -- GUIDES FOR THE NURSERY INDUSTRY
Sec.
18.0 Definitions.
18.1 Deception (general).
18.2 Deception through use of names.
18.3 Substitution of products.
18.4 Size and grade designations.
18.5 Deception as to blooming, fruiting, or growing ability.
18.6 Plants collected from the wild state.
18.7 Misrepresentation as to character of business.
18.8 Deception as to origin or source of industry products.
Authority: Secs. 6, 5, 38 Stat. 721, 719; 15 U.S.C. 46, 45.
Source: 44 FR 11177, Feb. 27, 1979, unless otherwise noted.
16 CFR 18.0 Definitions.
Industry products. As used in this part, the term ''industry
products'' includes all types of trees, small fruit plants, shrubs,
vines, ornamentals, herbaceous annuals, biennials and perennials, bulbs,
corms, rhizomes, and tubers which are offered for sale or sold to the
general public. Included are products propagated sexually or asexually
and whether grown in a commercial nursery or collected from the wild
state. Such products are customarily used for outdoor planting. Not
included are florists' or greenhouse plants solely for inside culture or
use and annual vegetable plants.
Industry members. Any person, firm, corporation, or organization
engaged in the sale, offering for sale, or distribution in commerce of
industry products, as defined above.
Lining-out stock. Includes all plant material coming from
propagating houses, beds, or frames, and young material such as
seedlings rooted or unrooted cuttings, grafts or layers, of suitable
size to transplant either in the nursery row or in containers for
''growing on.''
Nursery-grown stock. Plants propagated and grown under cultivation,
or plants transplanted from the wild and grown under cultivation for at
least one full growing season.
16 CFR 18.1 Deception (general).
(a) It is an unfair trade practice to sell, offer for sale, or
distribute industry products by any method, or under any circumstance or
condition, which has the capacity and tendency or effect of deceiving
pruchasers or prospective purchasers as to quantity, size, grade, kind,
species, age, maturity, condition, vigor, hardiness, number of times
transplanted, growth ability, growth characteristics, rate of growth or
time required before flowering or fruiting, price, origin or place where
grown, or in any other material respect.
(b) The inhibitions of this section shall apply to every type of
advertisement or method of representation, whether in newspaper,
periodical, sales catalog, circular, by tag, label or insignia, by radio
or television, by sales representatives, or otherwise.
(c) Among practices inhibited by the foregoing are direct or indirect
representations:
(1) That plants have been propagated by grafting or bud selection
methods, when such is not the fact.
(2) That industry products are healthy, will grow anywhere without
the use of fertilizer, or will survive and produce without special care,
when such is not the fact.
(3) That plants will bloom the year round, or will bear an
extraordinary number of blooms of unusual size or quality, when such is
not the fact.
(4) That an industry product is a new variety, when in fact it is a
standard variety to which the industry member has given a new name.
(5) That an industry product cannot be purchased through usual retail
outlets, or that there are limited stocks available, when such is not
the fact.
(6) That industry products offered for sale will be delivered in time
for the next (or any specified) seasonal planting when the industry
member is aware of factors which make such delivery improbable.
(7) That the appearance of an industry product as to size, color,
contour, foliage, bloom, fruit or other physical characteristic is
normal or usual when the appearance so represented is in fact abnormal
or unusual.
(8) That the root system of any plant is larger in depth or diameter
than that which actually exists, whether accomplished by excessive
packaging material, or excessive balling, or other deceptive or
misleading practice.
(9) That bublets are bulbs.
(10) That an industry product is a rare or unusual item when such is
not the fact. (Guide 1)
16 CFR 18.2 Deception through use of names.
(a) In the sale, offering for sale, or distribution of an industry
product, it is an unfair trade practice for any industry member to use a
name for such product which has the capacity and tendency or effect of
deceiving purchasers or prospective purchasers as to its true identity.
(b) Subject to the foregoing: (1) When an industry product has a
generally recognized and well-established common name, it is proper to
use such name as a designation therefor, either alone or in conjunction
with the correct botanical name of the product.
(2) When an industry product has a generally recognized and
well-established common name, it is an unfair trade practice for an
industry member to adopt and use a new name for the product unless such
new name is immediately accompanied by the generally recognized and
well-established common name, or by the correct botanical name, or by a
description of the nature and properties of the product which is of
sufficient detail to prevent confusion and deception of purchasers or
prospective purchasers as to the true identity of the product.
(3) When an industry product does not have a generally recognized and
well-established common name, and a name other than the correct
botanical name of the product is applied thereto, such other name shall
be immediately accompanied by either the correct botanical name of the
product, or a description of the nature and properties of the product
which is of sufficient detail as to prevent confusion and deception of
purchasers and prospective purchasers as to the true identity of the
product.
Note: Industry recommendation. The industry recommends that in
administering the guide in this section the Commission give
consideration to the use of plant names listed in such works as
Checklist of Woody Ornamenatal Plants of California, 1977, University of
California; Hillier's Manual of Trees and Shrubs, 1971, Hillier & Sons;
Manual of Cultivated Conifers, 1965, P. Den Ouden & B. K. Boom;
Hortus III, 1976, L. H. Bailey Hortorium; Naming and Registering New
Cultivars, 1974, American Association of Nurserymen, Inc.; and to plant
name lists periodically published by the plant societies and the
horticultural organizations selected as international and national
cultivar registration authorities as enumerated in Appendix of Naming
and Registering New Cultivars. (Guide 2)
16 CFR 18.3 Substitution of products.
With respect to industry products offered for sale by an industry
member, it is an unfair trade practice for any member of the industry:
(a) To ship or deliver industry products which do not conform to
representations made prior to securing the order or to specifications
upon which the sale is consummated, without advising the purchaser of
the substitution and obtaining his consent thereto prior to making
shipment or delivery, where such practice has the capacity and tendency
or effect of misleading or deceiving purchasers or prospective
purchasers; or
(b) To falsely represent the reason for making a substitution:
Provided, however, That nothing in this section is intended to inhibit
the shipment of products different from those ordered, prior to
obtaining the purchaser's consent to such substitution, when the order
is received by the industry member near the close of the planting season
for the products ordered and the substitution involved relates but to a
product or products the total price of which is comparatively small, and
when:
(1) At the commencement of the planting season for the products
ordered the industry member had a supply of such products sufficient to
meet normal and reasonably expected orders therefor, and such supply has
been exhausted; and
(2) The products substituted are of similar variety and of equal or
greater value to those ordered by the purchaser and no additional charge
is made therefor; and
(3) Notice of the substitution, with adequate identification of the
substituted item or items, and with commitment of the industry member to
refund any purchase price received for the substituted products if such
products are not acceptable to the purchaser and to compensate the
purchaser for any expense involved in the return of the substituted
products if refund is conditioned on the return thereof, is given the
purchaser at the time of his receipt of such products: And provided
further, That nothing in this section is to be construed as sanctioning
the dissemination of an advertisement of an industry product or products
or the personal solicitation of orders therefor unless at the time of
such dissemination or solicitation the industry member has a supply of
such product or products sufficient to meet normal and reasonably
expected orders therefor. (Guide 3)
16 CFR 18.4 Size and grade designations.
(a) In the sale, offering for sale, or distribution of industry
products, it is an unfair trade practice for an industry member to use
any term, designation, number, letter, mark or symbol, as a size or
grade designation for any industry product in a manner or under any
circumstance having the capacity and tendency or effect of deceiving
purchasers or prospective purchasers with respect to the actual size or
grade of such products.
(b) Under this section industry members offering lining-out stock for
sale shall specify conspicuously and accurately the size and age of such
stock when failure to do so has the capacity and tendency or effect of
deceiving purchasers or prospective purchasers.
(c) Nothing in this section is to be construed as inhibiting the
designation of the size or grade of an industry product by use of a size
or grade designation for which a standard has been established which is
generally recognized in the industry when the identity of such standard
is conjunctively disclosed, the product qualifies for the designation
under such standard, and no deception of purchasers or prospective
purchasers results in the use of such designation.
Note: It is the consensus of the industry that the grade and size
standard set forth in the current edition of American Standard for
Nursery Stock, ANSI Z60.1, as approved by the American National Standard
Institute, Inc., is generally recognized in the industry, and that use
of the size and grade designation therein set forth, in accordance with
the requirements of the standard for the designations, in the marketing
of industry products to which such standard relates, will prevent
deception and confusion of purchasers and prospective purchasers of such
products. (Guide 4)
16 CFR 18.5 Deception as to blooming, fruiting, or growing ability.
In the sale, offering for sale, or distribution of industry products,
it is an unfair trade practice for any industry member to deceive
purchasers or prospective purchasers as to the ability of such products:
(a) To bloom, flower, or fruit within a specified period of time; or
(b) To produce crops within a specified period of time, or to give
multiple crops each year, or to produce crops in unfavorable climatic
regions; or
(c) To bear fruit through self-pollinization; or
(d) To grow, flourish, and survive irrespective of the climatic
conditions, the care exercised in or after planting, or the soil
characteristics of the locality in which they are to be planted.
Note 1: Under this section, when flower bulbs are of such immaturity
as not reasonably to be expected to bloom and flower the first season of
their planting, such fact shall be clearly and conspicuously disclosed
in all advertisements and sales promotional literature relating to such
products: Provided, however, That such disclosure need not be made when
sales are confined to nurseries and commercial growers for their use as
planting stock.
Note 2: Under this section, in order to avoid deception of
purchasers and prospective purchasers thereof, when rose bushes have
been used in a greenhouse for the commercial production of cut flowers,
they shall be tagged or labeled so as to clearly, adequately and
conspicuously disclose such fact, and such tags and labels shall be so
attached thereto as to remain thereon until consummation of consumer
sale. A similar disclosure shall be made in all advertising and sales
promotional literature relating to such products. And when, by reason
of such previous greenhouse use or their condition at the time of
removal therefrom or their handling during or subsequent thereto, there
is probability that such rose bushes will not satisfactorily thrive and
produce flowers when replanted outdoors, or will satisfactorily thrive
and produce flowers outdoors only if given special treatment and
attention during and after their replanting, such fact shall also be
clearly, conspicuously, and nondeceptively disclosed in close
conjunction with, and in the same manner as, the aforesaid required
disclosure that such products have been used in a greenhouse for the
commercial production of cut flowers. (Guide 5)
16 CFR 18.6 Plants collected from the wild state.
It is an unfair trade practice to sell, offer for sale, or distribute
industry products collected from the wild state without disclosing that
they were collected from the wild state: Provided, however, That if
collected plants are grown in the nursery row for at least one growing
season before being marketed, such disclosure is not required. (Guide
6)
16 CFR 18.7 Misrepresentation as to character of business.
(a) In the sale, offering for sale, or distribution of industry
products, it is an unfair trade practice for any industry member to
represent or imply that he is a grower or propagator of such products or
any portion thereof, or that he has any other experience or
qualification either relating to the growing or propagation of such
products or which enables him to be of assistance to purchasers or
prospective purchasers in the selection by them of the kinds or types of
products or the placement thereof when such is not the fact, or in any
other manner to misrepresent the character, nature, or extent of his
business.
Note: Among practices subject to the inhibitions of this section are
representations by an industry member to the effect that he is a
landscape architect when his training, experience, and knowledge do not
qualify him for such representation.
(b) It is also an unfair trade practice for an industry member to use
the word ''guild,'' ''club,'' ''association,'' ''council,'' ''society,''
''foundation,'' or any other word of similar import or meaning, as part
of a trade name, or otherwise, in such a manner or under such
circumstances as to indicate or imply that his business is other than a
commercial enterprise operated for profit, unless such be true in fact,
or so as to deceive purchasers or prospective purchasers in any other
material respect. (Guide 7)
16 CFR 18.8 Deception as to origin or source of industry products.
(a) It is an unfair trade practice to sell, offer for sale, or
advertise an industry product under any representation which has the
capacity and tendency or effect of deceiving purchasers or prospective
purchasers as to the origin or source of such product (e.g., by use of
the term ''Holland'' to describe bulbs which were grown in the U.S.A.):
Provided, however, That when a plant has an accepted common name which
incorporates a geographical term and such term has lost its geographical
significance as so used, the mere use of such common names does not
constitute a misrepresentation as to source or origin (e.g., ''Colorado
Blue Spruce,'' ''Arizona Cypress,'' ''Black Hills Spruce,'' ''California
Privet,'' ''Japanese Barberry,'' etc.).
(b) It is also an unfair trade practice to advertise, sell, or offer
for sale an industry product of foreign origin without adequate and
nondeceptive disclosure of the name of the foreign country from which it
came, where the failure to make such disclosure has the capacity and
tendency or effect of deceiving purchasers or prospective purchasers.
(Guide 8)
16 CFR 18.8 PART 19 -- GUIDES FOR THE METALLIC WATCH BAND INDUSTRY
Sec.
19.0 The industry and its products defined.
19.1 Deception (general).
19.2 Deception as to metallic content.
19.3 Misuse of ''corrosion proof,'' ''noncorrosive,'' ''corrosion
resistant,'' ''rust proof,'' ''rust resistant,'' etc.
19.4 Deception as to origin or place of manufacture.
Authority: Secs. 6, 5, 38 Stat. 721, 719; 15 U.S.C. 46, 45.
Source: 44 FR 11179, Feb. 27, 1979, unless otherwise noted.
16 CFR 19.0 The industry and its products defined.
Members of this industry are persons, firms, corporations, or
organizations which engage in the manufacture, sale, offering for sale
or distribution of industry products as the term ''industry products''
is defined in the paragraph which immediately follows. The term
''industry products,'' as used in the foregoing paragraph and in the
following rules, includes any kind of metallic wrist bands which are
designed for holding wrist watches to the wrists of human beings and
which are not permanently attached to the cases of such watches.
16 CFR 19.1 Deception (general).
(a) It is an unfair trade practice for any industry member to sell or
offer for sale any industry product under any representation,
circumstance, or condition having the capacity and tendency or effect of
deceiving purchasers or prospective purchasers in any material respect.
(b) The prohibitions of this section are applicable to all forms of
advertising, whether in periodicals, on the radio or television, and
whether written or oral, and to any form of marking or labeling of the
products, or their containers or display cards. (Guide 1)
16 CFR 19.2 Deception as to metallic content.
(a) In the sale, offering for sale, or distribution of industry
products, it is an unfair trade practice to:
(1) Misrepresent the kind, quantity, quality, fineness, thickness, or
manner of application, of any metal or metal alloy contained in an
industry product or part thereof; or
(2) Fail to adequately and nondeceptively disclose the metallic
composition of an industry product, or part thereof, which has an
exposed surface of the appearance of gold and is not throughout of pure
(24 Kt.) gold.1
(3) Use the words ''gold,'' ''karat,'' ''carat,'' ''silver,'' ''solid
silver,'' ''sterling,'' ''sterling silver,'' ''coin,'' ''coin silver,''
''platinum,'' ''iridium,'' ''palladium,'' ''ruthenium,'' ''rhodium,'' or
''osmium,'' or any abreviation thereof, either alone or in conjunction
with the words ''plated,'' ''plate,'' ''filled,'' ''overlay,''
''electroplate,'' ''electroplated'' or any abbreviation thereof, except
in accord with requirements and provisions relating thereto which are
hereinafter set forth.
(b) Use of ''Silver,'' ''Solid Silver,'' ''Sterling,'' ''Sterling
Silver,'' ''Coin,'' and ''Coin Silver'': Industry products or parts
thereof shall not be marked, described, or otherwise represented as
being ''silver,'' ''solid silver,'' ''sterling,'' or ''sterling
silver,'' unless they are throughout of silver of not less than
925/1000ths fineness. Nor shall they be marked, described, or otherwise
represented as being ''coin'' or ''coin silver'' unless they are
throughout of silver of not less than 900/1000ths fineness. The terms
''sterling'' and ''coin'' shall not be used as a marking on, or as
descriptive of, products or parts which are of base metal on a surface
or surfaces of which there has been applied a plating or coating of
silver. When an industry product or part is marked or described as
''silver plated'' or ''silver plate,'' all significant surfaces thereof
shall have a plating or coating of silver of a high degree of fineness,
and such plating or coating shall be of substantial thickness.
Abbreviations of any of the mentioned terms are to be regarded as
subject to the same requirements. (Additional requirements for use of
these terms as markings on products are set forth in paragraph (g) of
this section.)
(c) Use of ''Platinum,'' ''Iridium,'' ''Palladium,'' ''Rhodium,''
''Ruthenium,'' and ''Osmium'': These words, and their abbreviations,
shall not be used in any manner, or under any circumstance or condition,
having the capacity and tendency or effect of deceiving purchasers or
prospective purchasers as to the true metallic composition of an
industry product or part thereof.
Note: Commercial Standard, CS66-38, issued by the National Bureau of
Standards of the U.S. Department of Commerce, covers the marking of
articles made wholly or in part of platinum, and markings on industry
products which are in compliance with applicable provisions of said
CS66-38, and the additional requirements of paragraph (g) of this
section, will be considered as proper.
(d) Use of ''Gold,'' ''Karat,'' ''Carat,'' ''Gold Filled,'' ''Gold
Plated,'' ''Gold Plate,'' ''Gold Overlay,'' ''Rolled Gold Plated,''
''Rolled Gold Plate,'' ''Gold Electroplated,'' ''Gold Electroplate,''
''Heavy Gold Electroplated,'' and ''Heavy Gold Electroplate'': Industry
members shall not use any of these words or terms, or any abbreviations
thereof, under any circumstances or condition, or in any manner, which
has the capacity and tendency or effect of deceiving purchasers or
prospective purchasers as to presence of gold or gold alloy in any
industry product or part thereof, or as to the extent or fineness of
gold or gold alloy in any industry product or part thereof, and shall
regard, as among the practices prohibited, the following:
(1) Use of the unqualified word ''Gold,'' or any abbreviation
thereof, as descriptive of any industry product, or part thereof, which
is not composed throughout of fine (24 karat) gold.
(2) Use of the word ''Gold,'' or any abbreviation thereof, as
descriptive of any industry product, or part thereof, which is composed
throughout of an alloy of gold, unless a correct designation of the
karat fineness of the alloy immediately precedes the word ''Gold,'' or
abbreviation thereof, and such fineness designation is of at least equal
conspicuousness therewith.
(3) Use of the word ''Gold,'' or any abbreviation thereof, as
descriptive of any industry product, or part thereof, which is not
composed throughout of gold or gold alloy, but is surface-plated or
coated with gold alloy, unless the word ''Gold,'' or abbreviation
thereof, is so qualified as adequately and nondeceptively to disclose
that the product or part is but surface-plated or coated with an alloy
of gold; and, when such plating has been mechanically applied, unless
such word ''Gold,'' or abbreviation thereof, is immediately preceded by
a correct designation of the karat fineness of the alloy and such
fineness designation is of at least equal conspicuousness therewith.
Note: See acceptable forms of markings and descriptions for such
products set out in paragraph (e)(2) of this section.
(4) Use of the terms ''Gold Filled,'' ''Rolled Gold Plate,'' ''Rolled
Gold Plated,'' ''Gold Overlay,'' ''Gold Plated,'' or ''Gold Plate,'' as
descriptive of an industry product or part thereof, unless such product
or part contains a surface-plating of gold alloy applied by a mechanical
process which is of such thickness and extent of surface coverage that
use of the term as descriptive of the product or part will not have the
capacity and tendency of deceiving purchasers or prospective purchasers,
and unless the term is immediately preceded by a correct designation of
the karat fineness of the alloy and such designation is of at least
equal conspicuousness as the term used.
Note: See acceptable forms of markings and descriptions for such
products set out in paragraph (e)(2) of this section.
(5) Use of the term ''Gold Electroplate,'' or ''Gold Electroplated,''
as descriptive of any industry product or part thereof, unless such
product or part is plated or coated with gold or a gold alloy and such
plating or coating is of such karat fineness, thickness, and extent of
surface coverage that the use of the term will not have the capacity and
tendency of deceiving purchasers or prospective purchasers.
Note: See acceptable forms of markings and descriptions for such
products set out in paragraph (e)(3) of this section.
(6) Representing, directly or by implication, by use of any name,
terminology, or otherwise, that an industry product is equal or superior
to, or different than, a known and established type of industry product
with reference to its gold content or method of manufacture, unless the
representation is true in fact (namely, that it is equal or superior to
or different than the established type in the respects represented or
implied).
Note 1: Requirements for use of the word ''Gold,'' or any
abbreviation thereof, as above set forth, are applicable to
''Duragold,'' ''Diragold,'' ''Noblegold,'' ''Goldine,'' or any words or
terms of similar import.
Note 2: See also paragraph (g) of this section entitled ''Additional
Requirements Relating to Markings.''
(e) Markings and descriptions of industry products or parts thereof
will be considered as proper when meeting applicable requirements of
paragraph (g) of this section and in conformity with the following:
(1) An industry product or part thereof composed throughout of an
alloy of gold of not less than 10 karat fineness may be marked and
described as ''Gold'' when such word ''Gold,'' wherever appearing, is
immediately preceded by a correct designation of the karat fineness of
the alloy and such karat designation is of equal conspicuousness as the
word ''Gold'' (as, for example, ''14 Karat Gold''; ''14 K. Gold'';
and ''14 Kt. Gold''). Such a product may also be marked and described by
a designation of the karat fineness of the gold alloy unaccompanied by
the word ''Gold'' (as, for example, ''14 Karat,'' ''14 Kt.,'' and ''14
K.'').
Note: When the term ''Gold,'' or any abbreviation thereof, is used
as descriptive of any product or part of a product which is composed
throughout of gold alloy but contains a concealed hollow center or
interior, the term or its abbreviation shall also be immediately
accompanied by a disclosure of the fact that the product or part
contains a hollow center or interior (as, for example, ''14 Karat
Gold-hollow Center'' and ''14 K. Gold Tubing,'' when of a gold alloy
tubing of such a karat fineness), when the failure to make such
disclosure has the capacity and tendency or effect of deceiving
purchasers or prospective purchasers. Such products must not be marked
or described as ''solid'' or as being solidly of gold or of a gold
alloy. For example, though the composition of such product is 14 karat
gold alloy, it shall not be described or marked as either ''14 Kt.
Solid Gold'' or as ''Solid 14 Kt. Gold.''
(2) An industry product or part thereof on which there has been
affixed on all significant surfaces, by soldering, brazing, welding, or
other mechanical means, a plating of gold alloy of not less than 10
karat fineness which is of substantial thickness2 may be marked or
described as ''Gold Filled,'' ''Gold Plate,'' ''Gold Plated,'' ''Gold
Overlay,'' ''Rolled Gold Plate,'' or adequate abbreviations thereof,
when such plating constitutes at least 1/20th of the weight of the metal
in the entire article, and when the term is immediately preceded by a
designation of the karat fineness of the plating which is of equal
conspicuousness as the term used (as, for example, ''14 Kt. Gold
Filled,'' ''14 Kt. G.F.,'' ''14 Kt. Gold Plated,'' ''14 Kt. G.P.,'' and
''14 Kt. Gold Overlay''). When conforming to all such requirements
except the specified minimum 1/20th of the weight of the metal in the
entire article, the terms ''Gold Plate,'' ''Gold Plated,'' ''Rolled Gold
Plate,'' and ''Gold Overlay'' may be used when the karat fineness
designation is immediately preceded by a fraction which accurately
discloses the portion of the weight of the metal in the entire article
accounted for by the plating, and when such fraction is of equal
conspicuousness as the term used (as, for example, ''1/40 12 Kt. Rolled
Gold Plate,'' and ''1/40 12 Kt. R.G.P.'').
Examples of Proper Markings for Expansion Bands of Specified
Composition and Construction. A substantial portion of metallic watch
bands are of the expansion type and consist of a skeleton (containing
links, springs, rivets, and other small parts) of a base metal; top
caps and end pieces which are of a base metal and to the exterior
surfaces of which there have been affixed, by a mechanical process,
platings of yellow gold alloy of 10 karat fineness; and bottom caps
which are of stainless steel and which do not have the appearance of
yellow gold.
When such platings of the top caps and end pieces are of substantial
thickness and account for not less than 1/20th of the total weight of
the base metal and gold alloy in each such cap and end piece, a proper
marking on the band would be:
and when such platings of the top caps and end pieces are of
substantial thickness and account for 1/30th of the total weight of the
base metal and gold alloy in each such top cap and end piece, a proper
marking on the band would be:
Provided, however, That the size and placement of any such markings
shall conform to the requirements of paragraph (g) of this section.
Note: When the plated top caps are affixed, by swedging or
otherwise, to a base metal reinforcement lining, the weight of such
lining shall be included in the weight used for determining the weight
ratio and proper term to be used.
(3) An industry product or part thereof, all significant surfaces on
which there has been affixed by an electrolytic process a coating or
plating of gold, or of a gold alloy of not less than 10 karat fineness,
the minimum thickness throughout of which is equivalent to
7/1,000,000ths of an inch of fine gold, may be marked or described as
''Gold Electroplate'' or ''Gold Electroplated.'' When the coating or
plating meets the minimum fineness, but not the minimum thickness, above
specified, the marking or description may be ''Gold Flashed'' or ''Gold
Washed,'' and when the minimum fineness above specified and of a minimum
thickness throughout which is equivalent to 100/1,000,000ths of an inch
of fine gold, the marking or description may be ''Heavy Gold
Electroplate'' or ''Heavy Gold Electroplated.'' When coatings or
platings qualify for the term ''Gold Electroplate'' (or ''Gold
Electroplated''), or the term ''Heavy Gold Electroplate'' (or ''Heavy
Gold Electroplated''), and have been applied by use of a special kind of
electrolytic process, the designation for which the coating or plating
is qualified may be accompanied by an identification of the process
used, as for example, ''Gold Electroplated (X Process)''; ''Heavy Gold
Electroplated (Y Process).''
(f) Tolerances and exemptions: The requirements of this section
relating to markings and descriptions of industry products and parts
thereof are subject to the tolerances applicable thereto under the
National Stamping Act (15 U.S. Code, sections 294, et seq.). Such
requirements are also subject to exemptions applicable thereto under
section 10(a) of Commercial Standard CS 67-38, relating to articles made
of karat gold, and under section 12(a) of Commercial Standard CS 47-34,
relating to articles having mechanically-applied surface platings of
gold alloy; and also to the exemptions applicable thereto enumerated in
section 8 of Commercial Standard CS 118-44 (relating to marking of
Jewelry and Novelties of Silver) and section 8(a) of Commercial Standard
CS 51-35 (relating to marking of articles made of silver in combination
with gold).
(g) Additional requirements relating to markings. As used in this
paragraph, the term ''quality marking'' means any marking on an industry
product which indicates or suggests that the product contains precious
metal or an alloy thereof. Included are the words ''gold'', ''karat'',
''carat'', ''duragold'', ''diragold'', ''noblegold'', ''goldine'',
''silver'', ''sterling'', ''coin'', ''coin silver'', ''platinum'',
''iridium'', ''palladium'', ''ruthenium'', ''Rhodium'', and ''osmium'',
and any abbreviation of any such word, whether used alone or in
conjunction with such terms as ''filled'', ''plated'', ''overlay'',
''electroplated'', or any abbreviation thereof.
(1) Markings to be legible, conspicuous, and of adequate permanency.
Quality markings on industry products shall be legible and of such
degree of permanency as to remain on the products until consummation of
consumer sale thereof. They shall also be of such size and
conspicuousness as to likely be observed and read by purchasers and
prospective purchasers making casual inspection of the products:
Provided, however, That when markings of such size and conspicuousness
would seriously impair the appearance of the product, they may be of
less size and conspicuousness if also appearing on a tag or label
attached or affixed to the product in such a manner as to remain thereon
until consummation of consumer purchase and of such size and
conspicuousness as to be likely observed and read by purchasers and
prospective purchasers. When the marking on or attached to the product
is concealed or obscured because of the manner in which the product is
packaged, or mounted in a container or on a display card, and is offered
for consumer sale in such form with consequence of likely deception of
purchasers or prospective purchasers as to the true metallic composition
of the product, the marking shall also appear on the outside of the
packaging, or on the container or display card on which the product is
mounted, in such a position as to be clearly applicable to the product
and in such size and conspicuousness as to be likely observed and read
by purchasers and prospective purchasers.
(2) Deception by reason of difference in size of letters or words in
the markings. Words and letters in quality markings shall not appear in
larger type than other words and letters in such markings when such size
difference has the capacity and tendency or effect of deceiving
purchasers or prospective purchasers as to the true metallic content of
the product. (An example of such improper marking is where the product
is marked as gold electroplate with the word ''GOLD'' in large type and
the word ''electroplate'' in small type.)
(3) When exposed parts are of similar appearance but of different
composition. When watch bands contain two or more parts having exposed
surfaces of the same composition appearance but which in fact are of
different composition, any marking as to the composition of one of such
parts shall be accompanied by a disclosure of the composition of the
other part or parts. Thus, when a band has top caps and end pieces of
14 karat yellow gold and bottom caps of yellow gold electroplate, a
proper marking would be ''14 K Gold Top Caps and End Pieces. Gold
Electroplated Bottom Caps''; and when the top caps and end pieces are
14 karat white gold, and the bottom caps are of stainless steel which
has the appearance of white gold, a proper marking would be ''14 K.
White Gold Top Caps and End Pieces. Stainless Steel Bottom Caps.''
(Guide 2)
1Such disclosure shall be in the form of a legible and permanent
marking on the product which is so positioned, and of such
conspicuousness, as to conform with the requirements relating to quality
markings which are set forth in paragraph (g) of this section. When the
composition is wholly of a base metal having the appearance of gold, the
marking may be either ''Base Metal'' or by use of a generally understood
identification of the kind of base metal present (such as, ''Anodized
Aluminum''; ''Brass''; etc.). When of a base metal having a surface
plating or coating of gold alloy, a marking of ''Gold Filled'', ''Gold
Plated'', ''Gold Plate'', ''Gold Overlay'', ''Rolled Gold Plated'',
''Rolled Gold Plate'', ''Gold Electroplated'', ''Gold Electroplate'',
''Heavy Gold Electroplated'', or ''Heavy Gold Electroplate'', will be
considered adequate when the use of such term is in full accord with the
respective requirements and provisions relating thereto which are set
forth in paragraphs (d), (e), (f), and (g), of this section.
2As here used, the term ''substantial thickness'' is to be construed
as requiring that all areas of the plating be of such thickness as to
assure of a durable coverage of the base metal to which it has been
affixed. Since industry products embrace items having surfaces and
parts of surfaces which are subject to different degrees of wear, this
requirement of substantial thickness may not necessitate uniformity of
thickness of plating for all items or for different areas of the surface
or surfaces of individual items.
16 CFR 19.3 Misuse of ''corrosion proof,'' ''noncorrosive,''
''corrosion resistant,'' ''rust proof,'' ''rust resistant,'' etc.
(a) In the sale, offering for sale, or distribution of industry
products, it is an unfair trade practice:
(1) To use the terms ''corrosion proof,'' ''noncorrosive,'' ''rust
proof,'' or any word or term of equivalent import, as descriptive of an
industry product, unless all parts thereof will be immune from rust and
other forms of corrosion during the life expectancy of the product; or
(2) To use the terms ''corrosion resistant,'' ''rust resistant,'' or
any word or term of equivalent import, as descriptive of an industry
product unless all parts of the product are of such composition as to
not be subject to material damage by corrosion or rust during the major
portion of the life expectancy of the product under normal conditions of
use.
(b) Among the metals which may be considered as corrosion (and rust)
resistant are:
Pure Nickel.
Gold Alloys of not less than 10 Kt. fineness.
Austenitic stainless steels. (Guide 3)
16 CFR 19.4 Deception as to origin or place of manufacture.
In the sale, offering for sale, or distribution of industry products,
it is an unfair trade practice:
(a) To misrepresent the origin or place of manufacture of an industry
product or any part thereof; or
(b) Subject to the exemptions hereinafter specified, to fail to
adequately disclose to purchasers and prospective purchasers that an
industry product, or substantial part thereof3 is of foreign origin, or
has been manufactured, processed, or assembled in a foreign country.
Note 1: The disclosure required by paragraph (b) of this section
shall be in the form of a legible marking or stamping on the industry
product, or on a label or tag affixed thereto, which is of such degree
of permanency as to remain on or attached to the product, in legible
form, until consummation of the consumer sale thereof, and of such
conspicuousness as to be likely observed and read by purchasers and
prospective purchasers making casual inspection of the product; and if
such industry product is packaged, or mounted in a container, or on a
display card, and is offered for consumer sale in such form, then the
marking or stamping shall also appear on the front or face of such
packaging, container, or display card, and be so positioned as to
clearly have application to the product so packaged or mounted, and
shall also be of such degree of permanency as to remain thereon until
consummation of consumer sale of the product, and of such
conspicuousness as to be likely observed and read by purchasers and
prospective purchasers making casual inspection of the product as so
packaged or mounted. The disclosure shall name the foreign country of
origin or manufacture, and when not applicable to the entire product
shall specify the part or parts to which it has applicability.
Exemptions. To be regarded as exempt from the disclosure requirements
of paragraph (b) of this section are:
Sheet, strip, wire, tubing, and similar basic material when imported
in that form:
Parts of industry products which after their importation are
subjected to processing or manufacturing in this country, or are merged
with another or other parts of domestic manufacture, and as a
consequence of such processing, manufacturing, or merger, no longer
retain the appearance and essential characteristics possessed by them at
the time of their importation.
Note 2: The affixing in this country of domestically manufactured
caps and end pieces to imported skeletons of expansion type bands is not
to be regarded as so changing the appearance and essential
characteristics of such skeletons as to exempt them from the disclosure
requirements of paragraph (b) of this section.
Rivets, springs, screws, bolts, washers, and similar small parts
which are imported in an unassembled state;
Natural stones and cultured pearls which are used as decorative
settings of industry products.
Note 3: Nothing in this section is to be construed as relieving any
industry member from compliance with the requirements of custom laws of
the U.S. having application to industry products and parts imported from
a foreign country. (Guide 4)
3Parts which are to be considered as substantial include the
skeletons or interliners of the expansion type bands, whether of the
entire length of the band or but a substantial portion of such length,
and whether caps and end pieces are affixed thereto before or after the
importation of such skeletons or interliners.
16 CFR 19.4 PART 20 -- GUIDES FOR THE REBUILT, RECONDITIONED AND OTHER
USED AUTOMOBILE PARTS INDUSTRY
Sec.
20.0 Definitions.
20.1 Deception as to previous use of products.
20.2 Deception as to identity of rebuilder, remanufacturer,
reconditioner or reliner.
20.3 Misrepresentation as to condition of products and misuse of the
terms ''rebuilt,'' ''factory rebuilt,'' ''remanufactured,'' etc.
Authority: Secs. 6, 5, 38 Stat. 721, 719; 15 U.S.C. 46, 45.
Source: 44 FR 11182, Feb. 27, 1979, unless otherwise noted.
16 CFR 20.0 Definitions.
Industry member. Any person, firm, corporation or organization
engaged in the sale or distribution of any industry product as defined
below.
Industry products. Industry products are automotive parts and
automotive assemblies which have been used or which contain used parts,
whether such parts or assemblies have been rebuilt, remanufactured,
reconditioned, relined, or otherwise. The term ''automotive
assemblies'' as herein used mean any part or assembly designed for an
automobile, truck, motorcycle, tractor or similar self-propelled
vehicle. Industry products include, but are not limited to, armatures,
generators, starters, carburetors, clutches, distributors, connecting
rods, crankshafts, cylinder blocks, engine assemblies, fuel pumps,
brakes, master and wheel brake cylinders, power brakes, shock absorbers,
starter drives, solenoids, automatic transmissions, regulators, spark
plugs, springs, windshield wiper motors and water pumps. Automobile
tires are not products of the industry.
16 CFR 20.1 Deception as to previous use of products.
(a) It is an unfair trade practice to represent, directly or by
implication, that any industry product is new or unused, or that any
part of an industry product is new or unused when such is not the fact,
or to misrepresent the extent of previous use thereof.
(b) It is an unfair trade practice for an industry member to offer
for sale or sell any industry product unless a clear and conspicuous
disclosure that such product has been used or contains used parts is
made in all the industry member's advertising, sales promotional
literature and invoices concerning the product, on the container in
which the product is packed and if the product has been rebuilt,
remanufactured, reconditioned or has the appearance of being new, on the
product with sufficient permanency to remain thereon after installation
for a reasonable period of time under ordinary conditions of use, and in
such manner that said disclosure cannot be easily removed or
obliterated.
(1) Form of disclosure. The disclosure that an industry product has
been used or contains used parts as required by this section may be made
by use of a word such as, but not limited to, ''Used,'' ''Secondhand,''
''Repaired,'' ''Remanufactured,'' ''Reconditioned,'' ''Rebuilt,'' or
''Relined,'' whichever is applicable to the product involved. On
invoices to the trade only the disclosure required by this section may
be made by use of any number, mark, or other symbol which is clearly
understood by all purchasers receiving such invoices as meaning that the
products, or parts thereof, identified on the invoices have been used.
(2) Conspicuousness of disclosure. The disclosure required by this
section shall be of such size or color contrast and so placed as to be
readily noticeable to purchasers or prospective purchasers reading
advertising, sales promotional literature, or invoices containing same,
or reading any representation as to content on the container in which an
industry product is packed, or inspecting an industry product before
installation, or with a minimum of disassembly after installation.
(c) It is an unfair trade practice to place any means or
instrumentality in the hands of others whereby they may mislead
purchasers or prospective purchasers as to the previous use of industry
products or parts thereof. (Guide 1)
16 CFR 20.2 Deception as to identity of rebuilder, remanufacturer,
reconditioner or reliner.
(a) It is an unfair trade practice to misrepresent the identity of
the rebuilder, remanufactures, reconditioner or reliner of an industry
product.
(b) In connection with the sale or offering for sale of an industry
product if the identity of the original manufacturer of the product, or
the identity of the manufacturer for which the product was originally
made, is revealed and the product was rebuilt, remanufactured,
reconditioned or relined by other than the manufacturer so identified,
it is an unfair trade practice to fail to disclose such fact wherever
either of said manufacturers is identified in advertising and sales
promotional literature concerning the product, on the container in which
the product is packed, and on the product, in close conjunction with,
and of the same permanency and conspicuousness as, the disclosure of
previous use of the product required by this section. Examples of
disclosures considered to be in compliance with the requirements of this
section are as follows:
(1) Disclosure of the identity of the rebuilder as, for example:
(2) Disclosure that the product was rebuilt by an independent
rebuilder as, for example:
(3) Disclosure that the product was rebuilt by other than the
manufacturer so identified as, for example:
(4) Disclosure that the product was rebuilt for the identified
manufacturer, if such is the case, as for example:
(Guide 2)
16 CFR 20.3 Misrepresentation as to condition of products and misuse of
the terms ''rebuilt,'' ''factory rebuilt,'' ''remanufactured,'' etc.
(a) It is an unfair trade practice to use, or cause or promote the
use of, any statement or representation in advertising, on containers,
on industry products, or elsewhere, which has the capacity and tendency
or effect of misleading or deceiving purchasers or prospective
purchasers as to the condition of an industry product, or the extent
that an industry product has been repaired or reconstructed.
(b) It is an unfair trade practice to use the words ''Rebuilt,''
''Remanufactured,'' or words of similar import, as descriptive of an
industry product which, since it was last subjected to any use, has not
been dismantled and reconstructed as necessary, all of its internal and
external parts cleaned and made free from rust and corrosion, all
impaired, defective or substantially worn parts restored to a sound
condition or replaced with new, rebuilt1 or unimpaired used parts, all
missing parts replaced with new, rebuilt1 or unimpaired used parts, and
such rewinding or machining and other operations performed as are
necessary to put the industry product in sound working condition.
(c) It is an unfair trade practice to represent an industry product
as ''Factory Rebuilt'' unless the product was rebuilt as described in
paragraph (b) of this section at a factory generally engaged in the
rebuilding of such products. (See also 20.2) (Guide 3)
1In accord with the provisions of this paragraph (b).
16 CFR 20.3 PART 21 -- GUIDES FOR THE MIRROR INDUSTRY
Sec.
21.0 Definitions.
21.1 Deception (general).
21.2 Misrepresentation of kind or type of industry products.
Authority: Secs. 6, 5, 38 Stat. 721, 719; (15 U.S.C. 46, 45).
Source: 44 FR 11183, Feb. 27, 1979, unless otherwise noted.
16 CFR 21.0 Definitions.
As used in this part the terms ''Industry Member'' and ''Industry
Products'' shall have the following meaning:
(a) Industry member. Any person, firm, corporation or organization
(including manufacturers, wholesalers, jobbers, importers, retailers,
etc.) engaged in the manufacture, sale, offering for sale, or
distribution of industry products as defined below:
(b) Industry products. All kinds and types of mirrors both
utilitarian and decorative.
(c) For the purposes of this part the following definitions shall
apply:
Plate glass. A transparent glass, the two surfaces of which are flat
and parallel so that they give clear and undistorted vision and
reflection, manufactured either by floating hot glass in ribbon form
upon a heated liquid of greater density than that of glass or by
grinding and polishing a ribbon of glass formed between two rolls.
Window glass. A transparent glass which has been drawn or rolled,
has glossy, fire polished surfaces and a characteristic waviness of its
surfaces which is visible when viewed at an acute angle or in reflected
light. Window glass is sometimes referred to in the industry as sheet
or shock glass.
16 CFR 21.1 Deception (general).
It is an unfair trade practice for any industry member in connection
with the sale, offering for sale, or distribution of industry products
to use any advertisement1 or representation which is false, or which by
failure to disclose material facts has the capacity, tendency or effect
of misleading purchasers or prospective purchasers with respect to the
type, grade, quality, quantity, use, size, design, material, finish,
strength, backing, silvering, thickness, composition, origin,
preparation, manufacture, value, or distribution of any product of the
industry, or in any other material respect. (Guide 1)
1The word ''advertisement'' as here used includes any written or
verbal statement, notice, presentation, illustration, or depiction which
directly or indirectly promotes the sale of any industry product, or
creates an interest in the purchase of any such product, whether same
appears in a newspaper, magazine, catalog, letter, sales promotional
literature, radio or television broadcast, or in any other media.
16 CFR 21.2 Misrepresentation of kind or type of industry products.
It is an unfair trade practice for any member of the industry to
sell, offer for sale, or distribute any industry product under any
representation or circumstance having the capacity and tendency or
effect of misleading or deceiving purchasers or prospective purchasers
in any respect with regard to the kind or type of glass contained in any
industry product, or the kind or type of backing affixed thereto.
(a) Misrepresentation as to kind or type of glass. (1)(i) It is an
unfair trade practice to sell, offer for sale, or distribute any
industry product containing ''window glass'' unless such product is
marked, labeled, or stamped so as to reveal that the glass is ''window
glass.''
(ii) The disclosure required by this section must be made on the
product and be of such conspicuousness and legibility as to readily come
to the attention of the casual observer, and of such permanence, and so
affixed, as to remain on the product until consummation of consumer sale
thereof. Such disclosure is not required upon industry products 72
square inches or less in size.
(2) In the sale, offering for sale, or distribution of industry
products, it is an unfair trade practice to represent that a product
contains ''crystal'' or ''crystale'' glass, when, contrary to the
representation, such product contains a different glass, e.g., ''plate
glass'' or ''window glass.''
(3) In the sale, offering for sale, or distribution of industry
products it is an unfair trade practice to represent window glass as
''distortion free,'' or to represent any other kind of glass as
''distortion free,'' when such is not the fact.
(4) In the sale, offering for sale, or distribution of industry
products it is an unfair trade practice to describe the glass contained
in an industry product as ''shatter proof'' unless the glass is so
constituted or treated so as in fact to prevent, in the event of
breakage, the shattering and dispersal of particles of the glass.
(b) Misrepresentation as to backing. (1) In the sale, offering for
sale, or distribution of industry products it is an unfair trade
practice to represent that an industry product is ''copper backed'', or
is backed with ''metallic copper'' or has a ''copper electroplated''
back, or to similarly use any other word, term or legend of like import
as descriptive of the backing of an industry product, unless the
electroplating of the copper backing is accomplished by an electrolytic
process.
Note: For the purposes of this section it is established that both
the ''galvanic,'' or ''contact'' method, of electroplating (i.e., the
plating method using a self induced electric current), and the method
using an external source of current, are truly electroplating processes.
Both processes are equally well defined by the definition of
Electroplating established by the American Society for Testing
Materials, as follows:
''Electroplating: The electro-deposition of an adherent metallic
coating upon an electrode for the purpose of securing a surface with
properties or dimensions different from those of the basic metal.''
No useful purpose can be served by attempting to establish a
differentiation between the mirror backing produced by these two
methods.
(2) Nothing in this section shall be construed as prohibiting the use
of representations that any backing on products of the industry contains
copper, which has been applied mechanically or by means other than the
use of electric current when such is the fact, provided that a clear and
conspicuous disclosure is made in conjunction with such representations
as to the manner of application of the backing, as for example, ''window
glass mirror, painted back.''
(3) The disclosure of the kind or type of glass and the kind and type
of backing thereof required under this section may be in the form of a
stamp, tag, mark or label on or attached to the product and shall be of
such size type and so situated that it will come to the attention of the
casual observer and be so affixed as to remain on the product until
consumption of consumer sale.
(4) The following are examples of the marks, stamps or labels which
will be regarded as meeting the requirements of this section: An
industry product containing ''plate glass,'' copper backed by an
electrolytic process may be marked or described ''plate glass-copper
electroplated,'' or ''float glass-copper backed''; an industry product
containing window glass backed by an electrolytic process may be marked
or described ''window glass-copper plated back'' or ''sheet glass-copper
plated back,'' or an article containing plate glass backed with a copper
plating which has been applied mechanically or by means other than the
use of electric current may be marked or described as ''plate
glass-painted back.'' (Guide 2)
16 CFR 21.2 PART 22 -- GUIDES FOR THE HOSIERY INDUSTRY
Sec.
22.0 Definitions.
22.1 Scope of guides in this part; imports and exports.
22.2 Deception (general).
22.3 ''Lisle.''
22.4 ''Irregulars'' or ''seconds''.
22.5 Removal, obliteration, or alteration of marks.
22.6 Size markings and designations.
Authority: Secs. 6, 5, 38 Stat. 721, 719; 15 U.S.C. 46, 45.
Source: 44 FR 11184, Feb. 27, 1979, unless otherwise noted.
Note: Nothing in this part is to be construed as relieving anyone of
the necessity of complying with the requirements of the Wool Products
Labeling Act of 1939 or the requirements of the Textile Fiber Products
Identification Act or with the rules and regulations issued under such
Acts.
16 CFR 22.0 Definitions.
As used in this part the terms ''industry member'' and ''industry
products'' shall have the following meaning:
Industry member. Any person, firm, corporation, or organization
(including manufacturers, wholesalers, jobbers, importers, retailers,
etc.) engaged in the sale, offering for sale, or distribution, in
commerce, of industry products as defined below.
Industry products. Hosiery for men, women and children, including
all types and kinds of hose, stockings, socks, anklets, and other
related products of the Hosiery Industry.
16 CFR 22.1 Scope of guides in this part; imports and exports.
(a) Applicability. Except where otherwise required by law, the
guides in this part shall apply to all hosiery produced in the United
States or offered for sale, sold or distributed in the American market.
(b) Imports. Imported hosiery is subject to the guides in this part
(and the marking requirements herein specified) the same as domestic
hosiery, irrespective of whether the hosiery was originally manufactured
in the United States and exported and thereafter imported; or whether
it was manufactured in a foreign country and imported from such foreign
country or another country into the United States; or whether the
hosiery, foreign or domestic, was introduced into the American market in
any other way.
(c) Exports. Hosiery produced in the United States for export to a
foreign country need not be marked in accordance with the requirements
of the guides in this part, except:
(1) Where such hosiery, although intended for export, or actually
exported, is subsequently offered for sale or sold for use, consumption
or resale within the United States or place subject to its jurisdiction;
or
(2) Where such hosiery manufactured in the United States for export,
or sold for export, is marked, sold or exported in such manner or under
such conditions as to involve fraud or deception, or an unfair method of
competition against an American competitor engaged in export trade, or a
matter otherwise contrary to the public policy of the United States; or
(3) Where required by the Wool Products Labeling Act or by other
provisions of law. (Guide 1)
16 CFR 22.2 Deception (general).
It is an unfair trade practice to sell, offer for sale, or distribute
industry products by any method, or under any representation,
description, circumstance or condition which has the capacity and
tendency or effect of deceiving purchasers or prospective purchasers as
to the grade, character, construction, origin, denier, size, style,
fashion, gauge, twist of yarn, quality, quantity, value, price,
serviceability, resistance to snagging or the development of runs, holes
or breaks in the fabric, strength, stretch, length, color, finish,
manufacture, or distribution of any product of the industry or component
part of such product, or in any other material respect. (Guide 2)
16 CFR 22.3 ''Lisle.''
(a) It is an unfair trade practice to use the term ''lisle'' or word,
term, or representation of similar import, as descriptive of hosiery or
any part thereof, under any condition having the capacity and tendency
or effect of misleading or deceiving purchasers or prospective
purchasers. For purposes of this section the term ''lisle'' as
descriptive of hosiery, or part thereof, is considered as representing
that such hosiery is made of yarn composed of two or more ply of combed
long staple cotton fiber, the ply twist of which is not less than the
turns per inch indicated in the following table:
(b) The term ''long staple cotton fiber'' as used in this section is
understood to mean cotton fiber which is not less than 1 1/8'' in length
of staple: Provided, however, That nothing in this section shall be
construed as prohibiting the use of cotton fiber which is not less than
1 1/16'' in length of staple for the counts of 35 and less above
referred to. (Guide 3)
16 CFR 22.4 ''Irregulars'' or ''seconds''.
(a) It is an unfair trade practice to fail to disclose on industry
products and in all advertising and promotional material relating
thereto that such products are ''irregulars'' or ''seconds,'' when such
is the case.
(b) It is an unfair trade practice to cause any industry products to
be falsely or deceptively marked, advertised, described or otherwise
represented, either as not being or as being ''irregulars'' or
''seconds,'' when such is not the fact.
(c) For the purpose of this section ''irregulars'' shall be
considered as including all hosiery which is not of first quality but
which contains only minor imperfections limited to irregularities in
dimensions, size, color or knit, and without the presence of any obvious
mends, runs, tears or breaks in the fabric or any substantial damage to
the yarn or fabric itself. ''Seconds'' shall be considered as including
all hosiery which is not of first quality, does not qualify as
''irregulars'' and which contains runs, obvious mends, irregularities,
substantial imperfections, or defects in material, construction or
finish.
(d) The marking of hosiery under this section shall be made in a
conspicuous and non-deceptive manner with sufficient permanency or
indelibility to carry through the channels of trade to the ultimate
consumer in a clearly legible condition. The words ''irregulars'' or
''seconds'' as the case may be shall be set out distinctly by transfer
or other marking on the fabric of each stocking, sock or other unit,
whether sold in pairs, threes or otherwise. In addition, if the hosiery
is packaged in any manner so as to conceal the disclosures required by
this section then such disclosures shall also be made on such packaging
in a conspicuous and non-deceptive manner. The required disclosures in
advertising and other promotional material that industry products are
''irregulars'' or ''seconds,'' must also be made in a conspicuous and
non-deceptive manner. (Guide 4)
16 CFR 22.5 Removal, obliteration, or alteration of marks.
It is an unfair trade practice for any manufacturer, converter,
processor, dyer, finisher, distributor, dealer, importer or vendor, or
person acting for or in collusion with any concern or vendor,
(a) To remove, obliterate, deface, change, alter, conceal, or make
illegible any information required by the guides in this part to be
disclosed on industry products, without replacing the same before sale,
resale or distribution for sale with a proper mark meeting the
requirements of the guides in this part; or (b) to sell, resell, or
distribute any industry product without its being marked and described
in accordance with the requirements of the guides in this part.
Note: Hosiery which has been redyed shall be re-marked in accordance
with the requirements of the guides in this part. Hosiery found to
contain a false or deceptive mark, or a mark contrary to the
requirements of the guides in this part, shall be re-marked in
accordance with the guides in this part. (Guide 5)
16 CFR 22.6 Size markings and designations. 1
In connection with the sale or offering for sale of industry
products, it is an unfair trade practice:
(a) To mark or otherwise represent any industry product as being of a
certain size which is not in fact the true and normal size thereof; or
(b) To alter the true and normal size of industry products by
stretching or manipulation so as to deceive purchasers or prospective
purchasers as to such size; or
(c) To fail to disclose on industry products the true and normal size
thereof when the failure to make such disclosure has the capacity and
tendency or effect of deceiving purchasers or prospective purchasers as
to the size of such products.
Note: So-called ''stretch'' hose (which is represented as being
suitable for more than one size foot) should be marked so as to clearly
disclose the minimum and the maximum sizes for which such hose is in
fact suitable, and the range should be limited to the sizes which such
hose will comfortably fit without undue looseness or tension. (Guide 6)
1Commercial Standard CS 46-49, ''Hosiery Lengths and Sizes'' is
recognized as a proper method to follow in determining measurements and
sizes of hosiery.
16 CFR 22.6 PART 23 -- GUIDES FOR THE JEWELRY INDUSTRY
Sec.
23.0 Definitions.
23.1 Deception (general).
23.2 Misleading illustrations.
23.3 Misrepresentation as to origin and disclosure of foreign origin.
23.4 Misuse of terms ''hand-made,'' ''hand-polished,'' etc.
23.5 Misrepresentation as to gold content.
23.6 Misrepresentation as to silver content.
23.7 Misuse of words ''platinum,'' ''iridium,'' ''palladium,''
''ruthenium,'' ''rhodium,'' and ''osmium''.
23.8 Additional requirements relating to quality marks.
23.9 Misuse of the word ''diamond''.
23.10 Misuse of word ''perfect,'' etc.
23.11 Misuse of term ''blue white.''
23.12 Misuse of the term ''properly cut,'' etc.
23.13 Misuse of the words ''brilliant'' and ''full cut''.
23.14 Misuse of the term ''clean,'' etc.
23.15 Misuse of the word ''pearl''.
23.16 Misuse of terms ''cultured pearl,'' ''cultivated pearl,''
''seed pearl,'' ''Oriental pearl,'' ''Oriental,'' ''natura,'' and
''kultured''.
23.17 Misrepresentation as to cultured pearls.
23.18 Deception as to precious and semiprecious stones.
23.19 Misuse of words ''ruby,'' ''sapphire,'' ''emerald,'' ''topaz,''
''stone,'' ''birthstone,'' etc.
23.20 Misuse of words ''real,'' ''genuine,'' ''natural,'' etc.
23.21 Misuse of words ''gem,'' ''reproduction,'' ''replica,''
''synthetic,'' etc.
Appendix -- Listing and Classification of Guides for Convenient
Reference by Industry Members
Authority: Sec. 6, 5, 38 Stat. 721, 719; 15 U.S.C. 46, 45.
Source: 44 FR 11185, Feb. 27, 1979, unless otherwise noted.
16 CFR 23.0 Definitions.
As used in the guides in this part, the terms hereinafter set forth
shall be understood to have the following meanings:
Diamond. A diamond is a natural mineral consisting essentially of
pure carbon crystalized in the isometric system and is found in many
colors. Its hardness is 10; its specific gravity approximately 3.52;
and it has a refractive index of 2.42.
Pearl. A calcareous concretion consisting essentially of alternating
concentric layers of carbonate of lime and organic material formed
within the body of certain mollusks, the result of an abnormal secretory
process caused by an irritation of the mantle of the mollusk consequent
on the intrusion of some foreign body inside the shell of the mollusk,
or due to some abnormal physiological condition in the mollusk, neither
of which has in any way been caused or induced by man.
Cultured pearl. The composite product created when a nucleus
(usually a sphere of calcareous mollusk shell) planted by man inside the
shell or in the mantle of a mollusk is coated with nacre by the mollusk.
Imitation pearl. A manufactured product composed of any material or
materials which simulates in appearance a pearl or cultured pearl.
16 CFR 23.1 Deception (general).
(a) It is an unfair trade practice for an industry member to sell or
offer for sale any industry product under any representation,
description, circumstance, or condition having the capacity and tendency
or effect of deceiving purchasers or prospective purchasers thereof as
to the type, kind, grade, quality, quantity, metallic content, size,
weight, cut, color, character, substance, durability, serviceability,
origin, price, value, preparation, production, manufacture or
distribution of such industry product or which has the capacity and
tendency or effect of misleading or deceiving the purchasing or
consuming public in any other material respect.
(b) The inhibitions of this section are applicable to all forms of
advertising, whether in periodicals, on the radio or television, and
whether written or oral, and to any form of marking or labeling of
products or their containers. (Guide 1)
16 CFR 23.2 Misleading illustrations.
It is an unfair trade practice, in connection with the offering for
sale, sale, or distribution of industry products, to use, as part of any
packaging material, label, advertisement, or other sales promotion
matter, any visual representation, picture, illustration, diagram or
other depiction which, either alone or in conjunction with any
accompanying words or phrases, has the capacity and tendency or effect
of misleading or deceiving purchasers or prospective purchasers
concerning the type, kind, grade, quality, quantity, metallic content,
size, weight, cut, color, character substance, durability,
serviceability, origin, preparation, production, manufacture, or
distribution of any industry product, or which has the capacity and
tendency or effect of misleading or deceiving the purchasing or
consuming public in any material respect.
Note: Among practices inhibited by this section are illustrations
and depictions of diamonds in greater than actual size without a clear
and conspicuous disclosure of the fact that the illustrations or
depictions are enlargements, when the failure to make such disclosure
has the capacity and tendency or effect of deceiving purchasers or
prospective purchasers of such diamonds or any products containing same.
(Guide 2)
16 CFR 23.3 Misrepresentation as to origin and disclosure of foreign
origin.
(a) It is an unfair trade practice to misrepresent the place of
origin, production, or manufacture of industry products or their
components.
(b) It is an unfair trade practice to offer for sale, sell, or
distribute any industry product manufactured or produced in a foreign
country, or any industry product containing a part or parts manufactured
or produced in a foreign country, without affirmatively and clearly
disclosing thereon, or in immediate conjunction therewith, by a truthful
and nondeceptive mark, stamp, brand, or label, the country of origin of
such product or part, where failure to so disclose the country of origin
has the capacity and tendency or effect of misleading or deceiving the
purchasing or consuming public in any material respect.
Note: Nothing in paragraph (b) of this section shall be construed as
requiring disclosure as to the foreign origin of such small and
primarily functional parts as rivets, screws, bolts, washers, springs,
spring bars and spring rings; or as to the foreign origin of pearls,
cultured pearls, diamonds, or any other precious or semi-precious
stones, or glass insets which imitate precious or semi-precious stones,
when same are primarily obtained from sources outside the United States
and its territories and possessions; or as to the foreign origin of any
other part or parts which, by reason of further processing in this
country, no longer retain the appearance and essential characteristics
possessed by them at the time of their importation. Disclosure of the
foreign origin of imitation pearls which have not been subjected to
processing in this country to the extent of losing the appearance and
essential characteristics possessed by them at the time of their
importation must be made though such imitation pearls after importation
have been strung and made into necklaces in this country. (Guide 3)
16 CFR 23.4 Misuse of terms ''hand-made,'' ''hand-polished,'' etc.
(a) It is an unfair trade practice to represent, directly or by
implication, that any industry product is hand-made or hand-wrought
unless the entire shaping and forming of such product from raw materials
and its finishing and decoration were accomplished by hand labor and
manually-controlled methods which permit the maker to control and vary
the construction, shape, design, and finish of each part of each
individual product.
Note: As used here, ''raw materials'' include bulk sheet, strip,
wire, and similar items that have not been cut, shaped, or formed into
jewelry parts, semi-finished parts, or blanks.
(b) It is an unfair trade practice to represent, directly or by
implication, that any industry product is hand-forged, hand-engraved,
hand-finished, or hand-polished, or has been otherwise hand-processed,
unless the operation described was accomplished by hand labor and
manually controlled methods which permit the maker to control and vary
the type, amount, and effect of such operation on each part of each
individual product. (Guide 4)
16 CFR 23.5 Misrepresentation as to gold content.
(a) It is an unfair trade practice to sell or offer for sale any
industry product under any trade or product name or designation or other
representation having the capacity and tendency or effect of deceiving
purchasers or prospective purchasers thereof as to the presence of gold
or gold alloy in the product, or as to the quantity or fineness of gold
alloy contained in the product, or as to the fineness, thickness, weight
ratio, or manner of application of any gold or gold alloy plating,
covering, or coating on any surface of any industry product or part
thereof.
(b) The following practices are among those to be regarded as
inhibited by paragraph (a) of this section:
(1) Use of the unqualified word ''Gold,'' or any abbreviation
thereof, as descriptive of any industry product, or part thereof, which
is not composed throughout of fine (24 karat) gold.
(2) Use of the word ''Gold,'' or any abbreviation thereof, as
descriptive of any industry product, or part thereof, which is composed
throughout of an alloy of gold, unless a correct designation of the
karat fineness of the alloy immediately precedes the word ''Gold,'' or
abbreviation thereof, and such fineness designation is of at least equal
conspicuousness therewith.
(3) Use of the word ''Gold,'' or any abbreviation thereof, as
descriptive of any industry product, or part thereof, which is not
composed throughout of gold or gold alloy, but is surface-plated or
coated with gold alloy, unless the word ''Gold,'' or abbreviation
thereof, is so qualified as adequately and nondeceptively to disclose
that the product or part is but surface-plated or coated with an alloy
of gold; and, when such plating has been mechanically applied, unless
such word ''Gold,'' or abbreviation thereof, is immediately preceded by
a correct designation of the karat fineness of the alloy and such
fineness designation is of at least equal conspicuousness therewith.
Note: See acceptable forms of markings and descriptions for such
products set out in paragraph (c)(2) of this section.
(4) Use of the terms ''Gold Filled,'' ''Rolled Gold Plate,'' ''Rolled
Gold Plated,'' ''Gold Overlay,'' ''Gold Plated,'' or ''Gold Plate,'' as
descriptive of any industry product or part thereof, unless such product
or part contains a surface-plating of gold alloy applied by a mechanical
process which is of such thickness and extent of surface coverage that
use of the term as descriptive of the product or part will not have the
capacity and tendency of deceiving purchasers or prospective purchasers,
and unless the term is immediately preceded by a correct designation of
the karat fineness of the alloy and such designation is of at least
equal conspicuousness as the term used.
Note: See acceptable forms of markings and descriptions for such
products set out in paragraph (c)(2) of this section.
(5) Use of the term ''Gold Electroplate,'' or ''Gold Electroplated,''
as descriptive of any industry product or part thereof, unless such
product or part is plated or coated with gold or a gold alloy and such
plating or coating is of such karat fineness, thickness, and extent of
surface coverage that the use of the term will not have the capacity and
tendency of deceiving purchasers or prospective purchasers.
Note: See acceptable forms of markings and descriptions for such
products set out in paragraph (c)(3) of this section.
(6) Representing, directly or by implication, by use of any name,
terminology, or otherwise, that an industry product is equal or superior
to, or different than, a known and established type of industry product
with reference to its gold content or method of manufacture, unless the
representation is true in fact (namely, that it is equal or superior to
or different than the established type in the respects represented or
implied).
Note 1: Requirements for use of the word ''Gold,'' or any
abbreviation thereof, as above set forth, are applicable to
''Duragold,'' ''Diragold,'' ''Noblegold,'' ''Goldine,'' or any words or
terms of similar import.
Note 2: See also 23.8 entitled ''Additional requirements relating
to quality marks.''
(7) Use of the word ''Gold,'' or any abbreviation thereof, as
descriptive of any industry product, or part thereof, which is composed
throughout of an alloy of gold of less than 10 karat fineness.
(c) Markings and descriptions of industry products or parts thereof
will be considered as meeting the requirements of this section when in
conformity with the following:
(1) An industry product or part thereof composed throughout of an
alloy of gold of not less than 10 karat fineness may be marked and
described as ''Gold'' when such word ''Gold,'' whether appearing, is
immediately preceded by a correct designation of the karat fineness of
the alloy and such karat designation is of equal conspicuousness as the
word ''Gold,'' (as, for example, ''14 Karat Gold,'' and ''14 K. Gold,''
and ''14 Kt. Gold''). Such product may also be marked and described by a
designation of the karat fineness of the gold alloy unaccompanied by the
word ''Gold'' (as, for example, ''14 Karat,'' ''14 Kt.,'' and ''14
K.'').
Note: When the term ''Gold,'' or any abbreviation thereof, is used
as descriptive of any product or part of a product which is composed
throughout of gold alloy but contains a concealed hollow center or
interior, the term or its abbreviation shall also be immediately
accompanied by a disclosure of the fact that the product or part
contains a hollow center or interior (as, for example, ''14 Karat
Gold-Hollow Center'' and ''14 K. Gold Tubing,'' when of a gold alloy
tubing of such a karat fineness), when the failure to make such
disclosure has the capacity and tendency or effect of deceiving
purchasers or prospective purchasers. Such products must not be marked
or described as ''solid'' or as being solidly of gold or of a gold
alloy. For example, though the composition of such a product is 14
karat gold alloy, it shall not be described or marked as either ''14 Kt.
Solid Gold'' or as ''Solid 14 Kt. Gold.''
(2) An industry product or part thereof on which there has been
affixed on all significant surfaces, by soldering, brazing, welding, or
other mechanical means, a plating of gold alloy of not less than 10
karat fineness which is of substantial thickness,1 may be marked or
described as ''Gold Filled,'' ''Gold Plate,'' ''Gold Plated,'' ''Gold
Overlay,'' ''Rolled Gold Plate,'' or adequate abbreviations thereof,
when such plating constitutes at least 1/20th of the weight of the metal
in the entire article, and when the term is immediately preceded by a
designation of the karat fineness of the plating which is of equal
conspicuousness as the term used (as, for example, ''14 Kt. Gold
Filled,'' ''14 Kt. G. F.,'' ''14 Kt. Gold Plated,'' ''14 Kt. G. P., ''
and ''14 Kt. Gold Overlay''). When conforming to all such requirements
except the specified minimum of 1/20th of the weight of the metal in the
entire article, the terms ''Gold Plate,'' ''Gold Plated,'' ''Rolled Gold
Plate,'' and ''Gold Overlay'' may be used when the karat fineness
designation is immediately preceded by a fraction which accurately
discloses the portion of the weight of the metal in the entire article
accounted for by the plating, and when such fraction is of equal
conspicuousness as the term used (as, for example, '' 1/40 12 Kt. Rolled
Gold Plate,'' and '' 1/40 12 Kt. R. G. P.'').
(3) An industry product or part thereof, all significant surfaces on
which there has been affixed by an electrolytic process a coating or
plating of gold, or of a gold alloy of not less than 10 karat fineness,
the minimum thickness throughout of which is equivalent to
7/1,000,000ths of an inch of fine gold, may be marked or described as
''Gold Electroplate'' or ''Gold Electroplated.'' When the coating or
plating meets the minimum fineness, but not the minimum thickness, above
specified, the marking or description may be ''Gold Flashed'' or ''Gold
Washed,'' and when of the minimum fineness above specified and of a
minimum thickness throughout which is equivalent to 100/1,000,000ths of
an inch of fine gold, the marking or description may be ''Heavy Gold
Electroplate'' or ''Heavy Gold Electroplated.'' When coatings or
platings qualify for the term ''Gold Electroplate'' (or ''Gold
Electroplated''), or the term ''Heavy Gold Electroplate'' (or ''Heavy
Gold Electroplated''), and have been applied by use of a special kind of
an electrolytic process, the designation for which the coating or
plating is qualified may be accompanied by an identification of the
process used, as for example, ''Gold Electroplated (X Process)'';
''Heavy Gold Electroplated (Y Process).''
(d) The requirements of this section relating to markings and
descriptions of industry products and parts thereof are subject to the
tolerances applicable thereto under the National Stamping Act (15
U.S.C.294, et seq.) and to the exemptions applicable thereto under
section 10 of Commercial Standard CS 67-38, relating to marking articles
made of karat gold, and under section 12(a) of Commercial Standard CS
47-34 (including supplement thereof effective February 25, 1939),
relating to marking of gold filled and rolled gold plate articles other
than watch cases.
(e) The exemption provisions of Commercial Standard CS 67-38,
mentioned in paragraph (d) of this section, are as follows:
10. Exemptions recognized in the jewelry trade and not to be
considered in any assay for quality include springs, posts, and
separable backs of lapel buttons, posts and nuts for attaching
interchangeable ornaments, and wire pegs or rivets used for applying
mountings and other ornaments, which mountings or ornaments shall be of
the quality marked.
(f) The exemption provisions of Commercial Standard CS 47-34,
mentioned in paragraph (d) of this section, are as follows:
12(a). Exemptions recognized in the jewelry trade and not to be
considered in any assay for quality include joints, catches, screws, pin
stems, pins of scarf pins, hat pins, etc., field pieces and bezels for
lockets, posts and separate backs of lapel buttons, springs, and
metallic parts completely and permanently encased in a nonmetallic
covering. Field pieces of lockets are those inner portions used as
frames between the inside edges of the locket and the spaces for holding
pictures. Bezels are the separable inner metal rings used to hold the
pictures in place. (Guide 5)
(44 FR 11185, Feb. 27, 1979; 44 FR 16004, Mar. 16, 1979)
1As here used, the term ''substantial thickness'' is to be construed
as requiring that all areas of the plating be of such thickness as to
assure of a durable coverage of the base metal to which it has been
affixed. Since industry products embrace items having surfaces and
parts of surfaces which are subject to different degrees of wear, this
requirement of substantial thickness may not necessitate uniformity of
thickness of plating for all items or for different areas of the surface
or surfaces of individual items.
16 CFR 23.6 Misrepresentation as to silver content.
(a) It is an unfair trade practice to misrepresent in any way the
silver content or fineness of silver content of any industry product, or
to represent such product as having a silver content, plating,
electroplating, or coating, when such is not the fact. 2
(b) It is an unfair trade practice to mark, describe, or otherwise
represent, any industry product, or part thereof, as ''silver,'' ''solid
silver,'' ''Sterling,'' or ''Sterling Silver,'' unless it is at least
925/1,000ths pure silver.
(c) It is an unfair trade practice to mark, describe, or otherwise
represent, any industry product, or part thereof, as ''coin'' or ''coin
silver,'' unless it is at least 900/1,000ths pure silver.
(d) It is an unfair trade practice to apply the term ''Sterling'' or
''coin,'' either alone or in conjunction with any other word or words,
in any manner to a silver-plated article or to the plating thereon.
(e) It is an unfair trade practice to mark, describe, or otherwise
represent, any industry product, or part thereof, as being plated or
coated with silver, unless all significant surfaces of the product or
part contain a plating or coating of silver which is of substantial
thickness.
Note: See also 23.8 entitled ''Additional requirements relating to
quality marks.'' (Guide 6)
2The requirements of this section relating to markings and
descriptions of industry products and parts thereof are subject to the
tolerances applicable thereto under the National Stamping Act (15 U.S.C.
294, et seq.) and to the exemptions applicable thereto under section 8
of Commercial Standard CS 118-44 (Marking of Jewelry and Novelties of
Silver), and section 8(a) of Commercial Standard CS 51-35 (Marking
Articles Made of Silver in Combination with Gold).
The exemption provisions of Commercial Standard CS 118-44, above
mentioned, are as follows:
8. Exemptions: The only exemptions recognized and not to be included
in any assay for quality include screws, rivets, springs, spring pins
for wrist watch straps; posts and separable backs of lapel buttons;
wire pegs, posts and nuts used for applying mountings or other
ornaments, which mountings or ornaments shall be of the quality marked;
pin stems of badges, brooches, emblem pins, hat pins, and scarf pins;
levers for belt buckles; and blades and skeletons of pocket knives.
The exemption provisions of Commercial Standard CS 51-35, above
mentioned, are as follows:
8(a). Unless otherwise required by the National Stamping Act,
exemptions recognized in the jewelry trade and not to be considered in
any assay for quality include joints, catches, screws, pin stems, pins
of scarf pins, hat pins, etc., posts and separable backs of lapel
buttons, springs, and metallic parts completely and permanently encased
in a nonmetallic covering.
16 CFR 23.7 Misuse of words ''platinum,'' ''iridium,'' ''palladium,''
''ruthenium,'' ''rhodium,'' and ''osmium''.
It is an unfair trade practice to use the words ''platinum,''
''iridium,'' ''palladium,'' ''ruthenium,'' ''rhodium,'' or ''osmium,''
or any abbreviations thereof, as a marking on, or as descriptive of, any
industry product or part thereof, under any circumstance or condition
having the capacity and tendency or effect of deceiving purchasers or
prospective purchasers as to the true composition of such product or
part.
Note 1: Commercial Standard CS66-38, issued by the National Bureau
of Standards of the U.S. Department of Commerce, covers the marking of
articles made wholly or in part of platinum. Markings on industry
products which are in compliance with the requirements of CS66-38 will
be regarded as among those fulfilling the requirements relating thereto
which are contained in this section.
Note 2: See also 23.8 entitled ''Additional requirements relating
to quality marks.'' (Guide 7)
16 CFR 23.8 Additional requirements relating to quality marks.
As used in this section, the term ''quality mark'' means any letter,
figure, numeral, symbol, sign, word, or term, or any combination
thereof, which has been stamped, embossed, inscribed, or otherwise
placed, on any industry product and which indicates or suggests that any
such product is composed throughout of any precious metal or any alloy
thereof or has a surface or surfaces on which there has been plated or
deposited any precious metal or alloy thereof. Included are the words
''gold,'' ''karat,'' ''carat,'' ''silver,'' ''sterling,'' ''platinum,''
''iridium,'' ''palladium,'' ''ruthenium,'' ''rhodium,'' or ''osmium,''
or any abbreviation thereof, whether used alone or in conjunction with
the word ''filled,'' ''plated,'' ''overlay,'' ''electroplated,'' or any
abbreviation thereof. Requirements of this section are additional to
those provided for in 23.5, 23.6, and 23.7.
(a) Deception as to applicability of marks. (1) It is an unfair
trade practice to sell, offer for sale, or distribute any industry
product on which a quality mark appears when by reason of the location
of such mark, the failure to conjunctively identify the part or portion
of the product to which same is applicable (or part or portion to which
same is inapplicable), or otherwise, such mark has the capacity and
tendency or effect of deceiving purchasers or prospective purchasers as
to the metallic composition of the product or any part thereof.
(2) When a quality mark has proper application but to one or more
parts of an industry product and not to another part or parts thereof
which are of similar surface appearance, each quality mark should be
closely accompanied by an identification of the part or parts to which
the mark is applicable.
(b) Deception by reason of difference in the size of letters or words
in a marking or markings. It is an unfair trade practice to sell, offer
for sale, or distribute any industry product on which there appears a
quality mark in which words or letters appear in greater size than other
words or letters of the marking, or when different markings placed on
the product have different applications and are in different sizes, when
any such marking has the capacity, tendency, or effect of deceiving
purchasers or prospective purchasers of the product as to the metallic
composition of such product or any part thereof. (An example of
improper marking subject to the inhibitions of this paragraph would be
the marking of a gold electroplated product with the word
''electroplate'' in small type and the word ''gold'' in larger type,
with the result that purchasers and prospective purchasers of the
product would observe the word ''gold'' of the marking and unlikely
observe the word ''electroplate''.)
Note 1: Legibility of markings. Quality markings on industry
products should be of sufficient size type as to be legible to persons
of normal vision, and be so placed as likely to be observed by
purchasers or prospective purchasers thereof. When such size marking
cannot be achieved without injury to the appearance of the article, a
tag or label on which the marking appears in type which is readable by
persons of normal vision should be attached to the product and remain
thereon until consumer purchase.
Note 2: Disclosure of identity of manufacturers, processors, or
distributors. It is the consensus of the members of this industry that
all quality markings on industry products should be accompanied by the
name, or other adequate identification, of the manufacturer, processor,
or distributor responsible for such marking. Quality markings include
those in which the words or terms ''gold,'' ''karat,'' ''silver,''
''platinum'' (or platinum related metals), or their abbreviations, are
included, either separately or as suffixes, prefixes, or syllables.
(Guide 8)
16 CFR 23.9 Misuse of the word ''diamond''.
(a) In the sale, offering for sale, or distribution of industry
products, it is an unfair trade practice for any industry member to use
the unqualified word ''diamond'' as descriptive of, or as an
identification for, any object or product not meeting the requirements
specified in the definitions of diamond hereinabove set forth, or which,
though meeting such requirements, has not been symmetrically fashioned
with at least seventeen (17) polished facets.
(b) The foregoing provisions of this section have application to the
unqualified use of the word ''diamond.'' They are not to be construed as
inhibiting:
(1) The use of the words ''rough diamond'' as descriptive of, or as a
designation for, uncut or unfaceted objects or products meeting the
requirements specified in the mentioned definition of diamond; or
(2) The use of the word ''diamond'' as descriptive of, or as a
designation for, objects or products meeting the requirements of said
definition of diamond but which have not been symmetrically fashioned
with at least seventeen (17) polished facets when in immediate
conjunction with the word ''diamond'' there is either a disclosure of
the number of facets and shape of the diamond or the name of a type of
diamond which denotes shape and which usually has less than seventeen
(17) facets (e.g., ''rose diamond'').
Note: Additional requirements relating to imitation and synthetic
diamond representations and misuse of words ''reproduction,''
''replica,'' ''gem,'' ''real,'' ''genuine,'' ''natural,'' etc., are set
forth in 23.19, 23.20 and 23.21. (Guide 9)
16 CFR 23.10 Misuse of word ''perfect,'' etc.
(a) It is an unfair trade practice to use the word ''perfect,'' or
any other word, expression, or representation of similar import, as
descriptive of any diamond which discloses flaws, cracks, carbon spots,
clouds, or other blemishes or imperfections of any sort when examined in
normal daylight, or its equivalent, by a trained eye under a ten-power,
corrected diamond eye loupe or other equal magnifier.
Note: The use, with respect to a stone which is not perfect, of any
phrase (such as ''commercially perfect'') containing the word
''perfect'' or ''perfectly'' is regarded as misleading and in violation
of this section.
Paragraph (a) of this section shall not be construed as approving the
use of the word ''perfect,'' or any word or representation of like
import, as descriptive of any diamond that is of inferior color or make.
Nothing in this section is to be construed as inhibiting the use of
the word ''flawless'' as descriptive of a diamond which meets the
requirements for ''perfect'' set forth in paragraph (a) of this section.
(b) It is an unfair trade practive, in connection with the offering
of any ring or rings or other articles of jewelry having a perfect
center stone or stones, and side or supplementary stones which are not
of such quality, to use the word ''perfect'' without clearly disclosing
that such description applies only to the center stone or center stones.
(Guide 10)
16 CFR 23.11 Misuse of term ''blue white''.
It is an unfair trade practice to use the term ''blue white,'' or any
other term, expression, or representation of similar import, as
descriptive of any diamond which under normal, north daylight or its
equivalent, shows any color or any trace of any color other than blue or
bluish.
Note: For additional requirements respecting artificially colored
diamonds, see the note immediately following 23.18 (Guide 11)
16 CFR 23.12 Misuse of the term ''properly cut,'' etc.
It is an unfair trade practice to use the terms, ''properly cut,''
''proper cut,'' ''modern cut,'' ''well made,'' or expressions of
similiar import, to describe any diamond that is lopsided, or so thick
or so thin in depth as materially to detract from the brilliance of the
stone.
Note: This section prohibits the commonly called ''fisheye'' or
''old mine'' stone from being offered as ''properly cut,'' ''modern
cut,'' etc. (Guide 12)
16 CFR 23.13 Misuse of the words ''brilliant'' and ''full cut''.
It is an unfair trade practice to use the unqualified expressions
''brilliant,'' ''brilliant cut,'' or ''full cut'' to describe, identify,
or refer to any diamond except a round diamond which has at least
thirty-two facets plus the table above the girdle and at least
twenty-four facets below.
Note: Such terms should not be applied to single or rose-cut
diamonds, either with or without qualification. They may be applied to
emerald- (rectangular) cut, pear-shaped, heart-shaped, oval-shaped, and
marquise- (pointed oval) cut diamonds meeting the above-stated facet
requirements when, in immediate conjunction with the term used,
disclosure is made of the fact that the diamond is of such form. (Guide
13)
16 CFR 23.14 Misuse of term ''clean,'' etc.
It is an unfair trade practice to use the term ''clean,'' ''eye
clean,'' ''commercially clean,'' ''commercially white,'' or any other
term, expression, or representation of similar import, in advertising,
labeling, representing, or describing any diamond, when such terms are
used for the purpose, or with the capacity and tendency or effect, of
misleading or deceiving purchasers, prospective purchasers, or the
consuming public. (Guide 14)
16 CFR 23.15 Misuse of the word ''pearl''.
(a) It is an unfair trade practice to use the unqualified word
''pearl,'' or any other word or phrase of like meaning or connotation,
to describe, identify, or refer to any object or product which is not in
fact a pearl as defined hereinabove.
(b) It is an unfair trade practice to use the word ''pearl'' to
describe, identify, or refer to a cultured pearl unless it is
immediately preceded, with equal conspicuity, by the word ''cultured''
or ''cultivated,'' or by some other word or phrase of like meaning and
connotation, so as to indicate definitely and clearly that the product
is not a pearl.
(c) It is an unfair trade practice to use the word ''pearl'' to
describe, identify, or refer to an imitation pearl unless it is
immediately preceded, with equal conspicuity, by the word ''imitation''
or ''simulated,'' or by some other word or phrase of like meaning and
connotation, so as to indicate definitely and clearly that the product
is not a pearl.
Note: The placing of an asterisk next to the word ''pearl,'' which
asterisk makes reference to a footnote explanation of the fact that the
product is an imitation or cultured pearl, is not regarded as compliance
with the requirements of this section. (Guide 15)
16 CFR 23.16 Misuse of terms ''cultured pearl,'' ''cultivated pearl,''
''seed pearl,'' ''Oriental pearl,'' ''Oriental,'' ''natura,'' and
''kultured''.
(a) It is an unfair trade practice to use the term ''cultured
pearl,'' ''cultivated pearl,'' or any other word, term, or phrase of
like meaning or connotation, to describe, identify, or refer to any
imitation pearl.
(b) It is an unfair trade practice to use the term ''seed pearl,'' or
any word, term, or phrase of like meaning or connotation, to describe,
identify, or refer to any cultured pearl or imitation pearl.
(c) It is an unfair trade practice to use the term ''Oriental
pearl,'' or any word, term, or phrase of like meaning or connotation, to
describe, identify, or refer to any product of the industry other than a
pearl taken from a salt water mollusk and of the distinctive appearance
and type of pearls obtained from mollusks inhabitating the Persian Gulf
and recognized in the jewelry trade as Oriental pearls.
(d) It is an unfair trade practice to use the word ''Oriental'' to
describe, identify, or refer to any cultured or imitation pearl.
(e) It is an unfair trade practice to use the word ''natura,'' or any
word, term, or phrase of like meaning or connotation, to describe,
identify, or refer to a cultured or imitation pearl.
(f) It is an unfair trade practice to use the word ''kultured,'' or
any word, term, or phrase of like meaning or connotation, to describe,
identify, or refer to an imitation pearl. (Guide 16)
16 CFR 23.17 Misrepresentation as to cultured pearls.
It is an unfair trade practice, in connection with the distribution,
sale, or offering for sale of industry products, to make, publish, or
disseminate, or cause to be made, published, or disseminated, any false,
misleading, or deceptive statement, representation, or illustration
concerning the matter in which cultured pearls are produced, the size of
the nucleus artificially inserted in the oyster and included in cultured
pearls, the length of time that such products remained in the oyster,
the thickness of the nacre coating, the value and quality of cultured
pearls as compared with the value and quality of pearls and imitation
pearls or concerning any other material matter relating to the
formation, structure, properties, characteristics, and qualities of
cultured pearls.
Note: Additional requirements relating to misuse of the words
''real,'' ''genuine,'' ''natural,'' ''reproduction,'' ''replica,''
''synthetic,'' ''gems,'' etc., are set forth in 23.20 and 23.21 (Guide
17)
16 CFR 23.18 Deception as to precious and semi-precious stones.
It is an unfair trade practice, in connection with the offering for
sale, sale, or distribution of precious or semi-precious gem stones, to
use or cause or promote the use of any trade promotional literature,
advertising matter, mark, brand, label, trade name, picture, design or
device, or other type of oral or written representation, however,
disseminated or published, which has the capacity and tendency or effect
of misleading or deceiving the purchasing or consuming public in any
other material respect.
Note: One of the practices to be considered as inhibited by this
section is as follows: The sale, or offering for sale, of any diamond
or other natural precious or semi-precious stone which has been
artificially colored or tinted by coating, irradiating, or heating, or
by use of nuclear bombardment, or by any other means, without disclosure
of the fact that such natural stone is colored, and disclose that such
artificial coloring or tinting is not permanent if such is the fact.
(Guide 18)
16 CFR 23.19 Misuse of words ''ruby,'' ''sapphire,'' ''emerald,''
''topaz,'' ''stone,'' ''birthstone,'' etc.
(a) It is an unfair trade practice to use the unqualified words
''ruby,'' ''sapphire,'' ''emerald,'' ''topaz,'' or the name of any other
precious or semi-precious stone, as descriptive of any product which is
not in fact a natural stone of the type described.
(b) It is an unfair trade practice to use the words ''ruby,''
''sapphire,'' ''emerald,'' ''stone,'' ''birthstone,'' or the name of any
other precious or semi-precious stone, as descriptive of a synthetic
stone or an imitation or simulated stone unless such word or name is
immediately preceded, with equal conspicuity, by the word ''synthetic,''
or by the word ''imitation'' or ''simulated,'' whichever is applicable,
or by some other word or phrase of like meaning, so as clearly to
disclose the nature of such product and the fact that it is not a
natural stone.
Note: The placing of an asterisk next to the word ''stone'' or
''birthstone,'' or the name of any natural stone referring to a footnote
explanation that the product is a synthetic or imitation is not to be
regarded as compliance with the requirements of this section. (Guide
19)
16 CFR 23.20 Misuse of words ''real,'' ''genuine,'' ''natural,'' etc.
It is an unfair trade practice to use the words ''real,''
''genuine,'' ''natural,'' or similar terms, as descriptive of any
article or articles which are manufactured or produced synthetically or
artificially, or artificially cultured or cultivated, with the capacity
and tendency or effect of misleading or deceiving purchasers,
prospective purchasers, or the consuming public. (Guide 20)
16 CFR 23.21 Misuse of words ''gem,'' ''reproduction,'' ''replica,''
''synthetic,'' etc.
(a) It is an unfair trade practice to use the word ''gem'' or similar
terms to describe, identify, or refer to a pearl, cultured pearl,
diamond, ruby, sapphire, emerald, topaz, or other product of the
industry, which does not possess the beauty, symmetry, rarity, and value
necessary for qualification as a gem.
(b) It is an unfair trade practice to use the word ''gem'' as
descriptive of any synthetic industry product unless the product meets
the requirements of paragraph (a) of this section and unless such word
is immediately accompanied, with equal conspicuity, by the word
''synthetic,'' or by some other word or phrase of like meaning, so as
clearly to disclose the fact that it is not a natural gem.
Note: Use of the word ''gem'' with respect to cultured pearls and
synthetic stones should be avoided since few cultured pearls or
synthetic stones possess the necessary qualifications to properly be
termed ''gems.'' Imitation pearls, imitation diamonds, and other
imitation stones cannot be described as ''gems'' under any
circumstances. Not all diamonds or natural stones, including those
classified as precious stones, possess the necessary qualifications to
properly be termed ''gems.''
(c) It is an unfair trade practice to use the words ''reproduction,''
''replica,'' or similar terms, to describe, identify, or refer to a
cultured or imitation pearl, or to any imitation of precious or
semi-precious stones.
(d) It is an unfair trade practice to use the word ''synthetic'' as
descriptive of cultured or imitation pearls, or to use the word
''synthetic'' with the name of any natural stone as descriptive of any
industry product, unless such industry product has essentially the same
optical, physical, and chemical properties as the stone named. (Guide
21)
16 CFR 23.21 Appendix to part 23 -- Listing and Classification of
Guides for Convenient Reference by Industry Members
Category I. Guides in this part having application to all industry
products regardless of their composition:
Sec.
23.1 Deception (general).
23.2 Misleading illustrations.
23.3 Misrepresentation as to origin and disclosure of foreign origin.
23.4 Misuse of terms ''hand-made,'' ''hand-polished,'' etc.
Category II. Guides in this part having application to industry
products composed in whole or in part of a precious metal or metals:
23.5 Misrepresentation as to gold content.
23.6 Misrepresentation as to silver content.
23.7 Misuse of words ''platinum,'' ''iridium,'' ''palladium,''
''ruthenium,'' ''rhodium,'' and ''osmium.''
23.8 Additional requirements relating to quality marks.
Category III. Guides in this part having application to industry
products containing diamonds or imitations thereof:
23.9 Misuse of the word ''diamond.''
23.10 Misuse of word ''perfect,'' etc.
23.11 Misuse of term ''blue white.''
23.12 Misuse of the term ''properly cut,'' etc.
23.13 Misuse of the words ''brilliant'' and ''full cut.''
23.14 Misuse of the term ''clean,'' etc.
Note: These guides also have application to diamonds which are sold
in the loose and unset state.
Category IV. Guides in this part having application to industry
products containing pearls, cultured pearls, or imitations thereof:
23.15 Misuse of the word ''pearl.''
23.16 Misuse of terms ''cultured pearl,'' ''cultivated pearl,''
''seed pearl,'' ''Oriental pearl,'' ''Oriental,'' ''natura,'' and
''kultured.''
23.17 Misrepresentation as to cultured pearls.
Note: These guides also have application to pearls, cultured pearls,
and imitation pearls sold in the loose (unstrung and unset) state.
Category V. Guides in this part having application to industry
products containing rubies, sapphires, and emeralds and other precious
or semi-precious stones, and synthetic and imitation stones:
23.18 Deception as to precious and semi-precious stones.
23.19 Misuse of words ''ruby,'' ''sapphire,'' ''emerald,'' ''topaz,''
''stone,'' ''birthstone,'' etc.
23.20 Misuse of words ''real,'' ''genuine,'' ''natural,'' etc.
23.21 Misuse of words ''gem,'' ''reproduction,'' ''replica,''
''synthetic,'' etc.
Note: Industry products covered by the guides in Categories II
through V are also subject to the guides in Category I.
16 CFR 23.21 PART 24 -- GUIDES FOR THE LUGGAGE AND RELATED PRODUCTS
INDUSTRY
Sec.
24.0 Definitions.
24.1 Deception (general).
24.2 Deception as to composition.
24.3 Deceptive practices as to aniline finish, graining, embossing
and processing.
24.4 Deception as to hardware, frame or box.
24.5 Misuse of the terms ''waterproof,'' ''dustproof,''
''warpproof,'' ''scuffproof'' and ''scratchproof''.
Authority: Secs. 6, 5, 38 Stat. 721, 719, 15 U.S.C. 46, 45.
Source: 44 FR 11190, Feb. 27, 1979, unless otherwise noted.
16 CFR 24.0 Definitions.
Industry member. Any person, firm, corporation or organization
engaged in the manufacture, sale or distribution of any industry
products as defined below.
Industry products. Industry products consist of all kinds and type
of trunks, suitcases, traveling bags, sample cases, instrument cases,
brief cases, ring binders, billfolds, wallets, key cases, coin purses,
card cases, french purses, dressing cases, stud boxes, tie cases, jewel
boxes, travel kits, gadget bags, camera bags, and similar articles, of
any composition. Ladies' handbags are not included.
16 CFR 24.1 Deception (general).
It is an unfair trade practice to sell, offer for sale, or distribute
industry products by any method, or under any circumstance or condition
which has the capacity and tendency or effect of misleading or deceiving
the purchasing or consuming public with respect to the kind, grade,
quality, quantity, material content, thickness, finish, serviceability,
durability, price, origin, size, weight, ease of cleaning, construction,
manufacture, processing, or distribution of any product of the industry
or part thereof, or in any other material respect. (Guide 1)
16 CFR 24.2 Deception as to composition.
(a) In the sale, offering for sale, or distribution of industry
products, it is an unfair trade practice to misrepresent the composition
of any industry product or part thereof, or to fail to disclose, in the
manner hereinafter set forth (see paragraph (b)(9) of this section),
material facts concerning the composition of an industry product when
the failure to do so has the capacity and tendency or effect of
deceiving purchasers or prospective purchasers.
(b) The foregoing provisions of this section are to be construed as,
but not limited to:
(1) Split leather. Requiring disclosure1 of the fact that an
industry product, or part thereof, is made of split leather if the split
leather is visible or if any representation is made as to the
composition thereof. For example, a disclosure such as,
Note: For purposes of this part leather from portions of hides or
skins which have been split into two or more thicknesses, other than the
grain or hair side, shall be considered split leather.
(2) Imitation or simulated leather. Requiring that when an industry
product or part thereof is made of nonleather material which has the
appearance of leather, disclosure1 be made either of the fact that the
material is not leather, or of the general nature of the material as
will clearly show that it is not leather, as, for example:
Not leather
Imitation leather
Simulated leather
Vinyl
Vinyl coated fabric
Plastic
(3) Embossed or processed leather. Requiring disclosure1 of the kind
and type of leather which an industry product or part thereof is made
when such leather has been embossed, dyed, or otherwise processed, so as
to simulate the appearance of a different kind or type of leather, as,
for example:
(i) An industry product made wholly of top grain cowhide which has
been processed so as to imitate pigskin may be represented as being made
of:
Top Grain Cowhide
(ii) Any additional representation as may be made concerning the
simulated appearance of an industry product composed of leather shall be
immediately accompanied by the required disclosure of the kind and type
of leather in the product, as, for example:
Top Grain Cowhide
Simulated Pigskin Grain
(4) Backing material. Requiring disclosure1 that any material in an
industry product is backed with another kind of material when the
backing is not apparent to purchasers or prospective purchasers upon
casual inspection of the product, or when representations are made
which, in the absence of such disclosure, would be deceptive as to the
composition of the product. For example, disclosures such as,
Top Grain Cowhide Backed With Split Cowhide; or
Split Cowhide Backed With Simulated Leather; or
Vinyl Backed With Other Material.
If the different backing material used is visible and is split
leather, non-leather material which has the appearance of leather, or
leather processed so as to simulate a different kind of leather,
disclosure as is required by paragraph (1), (2) or (3) of this paragraph
(b), whichever is applicable, must also be made.
(5) Fictitious animal designations. Prohibiting any representation
or implication that an industry product is made in whole or in part from
the skin or hide of an animal which in fact is nonexistent.
(6) Misuse of trade names, etc. Prohibiting the use of any trade
name, coined name, trade-mark, or other word or term, or any depiction
or device, which has the capacity and tendency or effect of deceiving
purchasers or prospective purchasers into believing that an industry
product is made in whole or in part from the skin or hide of an animal
or that material in an industry product is leather, top grain leather,
split leather, plastic, fiber-glass, nylon or other material, when such
is not the case. This prohibition shall include, among other practices,
the use of a stamping, tag, label, card, or other device in the shape of
a tanned hide or skin or in the shape of a silhouette of an animal in
connection with any industry product having the appearance of leather
but which is not made wholly or in substantial part from the skin or
hide of an animal.
(7) Misrepresentation that product is wholly of a particular
composition. Prohibiting any representation or implication that an
industry product is made wholly of a particular composition when such is
not the case. A representation as to the composition of a particular
part of a product must clearly indicate the part to which the
representation is properly applicable.
(i) Where a product is made principally of top grain leather or of
split leather with the exception of certain non-leather parts thereof
which have the appearance of leather, the product may be described as
made of top grain leather or split leather, as the case may be, except
for such designated non-leather parts when accompanied by disclosure1
either of the fact that the designated parts are not leather or of the
general nature of such parts as will clearly show that they are not
leather. For example: A brief case made of top grain cowhide except
for frame covering, gussets and partitions which are made of plastic but
have the appearance of leather may be described as:
Top Grain Cowhide With Plastic Frame Covering, Gussets and
Partitions; or
Top Grain Cowhide With Gussets, Frame Covering and Partitions Made of
Non-leather Material.
A zipper binder made throughout, except for hardware, of vinyl backed
with split cowhide may be described as:
Vinyl Backed With Split Cowhide
(See also disclosure requirements concerning use of backing material
set forth in paragraph (b)(4) of this section.) A billfold made of top
grain cowhide except for partitions and stay which are made of plastic
coated fabric but have the appearance of leather may be described as --
Top Grain Cowhide With Partitions and Stay Made of Non-leather
Material; or
Top Grain Cowhide With Partitions and Stay Made of Plastic Coated
Fabric.
(ii) Where a product is made principally of top grain leather and the
only other parts thereof which have the appearance of leather are made
of split leather, the product may be described as made of top grain
leather except for the designated parts made of split leather when
accompanied by disclosure1 that such parts are made of split leather.
For example: A brief case made of top grain cowhide except for frame
covering, gussets and partitions which are made of split cowhide may be
described as --
Top Grain Cowhide With Split Cowhide Frame Covering, Gussets and
Partitions.
(8) Ground, pulverized or shredded leather. Prohibiting any
representation directly or by implication that a material in an industry
product is leather, if such material contains ground, pulverized or
shredded leather and thus is not wholly the hide of an animal. This
provision shall not be construed as preventing an accurate
representation as to the ground, pulverized or shredded leather content
of the material. However, if the material has the appearance of being
leather it must be accompanied by disclosure1 as is required by
paragraph (b)(2) of this section. For example: A brief case made of a
composition material consisting of shredded leather fibers held together
with a rubber adhesive and coated with vinyl may be described as:
Composition Material Containing Shredded Leather Fibers, Rubber
Adhesive and Vinyl Coating
(9) Form of required disclosures under this section. All disclosures
required by provisions of this section shall appear in the form of a
stamping on the product, or on a tag, label, or card attached thereto,
and be affixed with such degree of permanence as to remain on or
attached to the product until it is received by the consumer purchaser.
All disclosures so required on industry products shall also appear in
all advertising of such products irrespective of the media used whenever
statements, representations or depictions appear in such advertising
which in the absence of such disclosures serve to create a false
impression that the products, or parts thereof, are of a certain kind of
composition. The disclosures affixed to products and made in
advertising must be of such conspicuousness and clarity as to be noted
by purchasers and prospective purchasers casually inspecting the
products or casually reading, or listening to, such advertising. A
disclosure required in connection with any representation must be in
close conjunction therewith. (Guide 2)
(44 FR 11190, Feb. 27, 1979; 44 FR 16004, Mar. 16, 1979)
1See paragraph (b)(9) of this section.
1See paragraph (b)(9) of this section.
1See paragraph (b)(9) of this section.
16 CFR 24.3 Deceptive practices as to aniline finish, graining,
embossing and processing.
In the sale, offering for sale or distribution of industry products,
it is an unfair trade practice to represent, directly or by implication:
(a) That any such product is colored, finished, or dyed with aniline
dye when such is not true in fact; or
(b) That any such product or any part thereof is dyed, embossed,
grained, processed, finished or stitched in a certain manner when such
is not true in fact. (Guide 3)
16 CFR 24.4 Deception as to hardware, frame or box.
In the sale, offering for sale or distribution of industry products,
it is an unfair trade practice to represent, directly or by implication:
(a) That the hardware or any item thereof contained in an industry
product is brass, solid brass, or some other designated material when
such is not true in fact or when such hardware is only plated or coated
with the material designated and the remaining metal therein is of a
different kind; or
(b) That the box or frame of an industry product is made in whole or
in part of a certain kind of material when such is not true in fact.
(Guide 4)
16 CFR 24.5 Misuse of the terms ''waterproof,'' ''dustproof,''
''warpproof,'' ''scuffproof'' and ''scratchproof''.
It is an unfair trade practice to:
(a) Use the term ''Waterproof'' as descriptive of an industry product
or the material of which an industry product is made unless such product
or material, whichever is so designated is impermeable to water and
moisture.
(b) Use the term ''Dustproof'' as descriptive of an industry product
unless such product is so constructed that when it is closed dust cannot
enter the product.
(c) Use the term ''Warpproof'' as descriptive of an industry product
or part thereof unless the product or part so designated is such that it
cannot warp.
(d) Use the term: ''Scuffproof'' or ''Scratchproof'' as descriptive
of an industry product unless the outside surface of the product is
immune to scratches or scuff marks. (Guide 5)
16 CFR 24.5 PARTS 25 -- 149 (RESERVED)
16 CFR 24.5 FINDING AIDS
A list of CFR titles, subtitles, chapters, subchapters and parts and
an alphabetical list of agencies publishing in the CFR are included in
the CFR Index and Finding Aids volume to the Code of Federal Regulations
which is published separately and revised annually.
Table of CFR Titles and Chapters
Alphabetical List of Agencies Appearing in the CFR
List of CFR Sections Affected
Chap.
16 CFR 24.5 Table of CFR Titles and Chapters
16 CFR 24.5 Title 1 -- General Provisions
I Administrative Committee of the Federal Register (Parts 1 -- 49)
II Office of the Federal Register (Parts 50 -- 299)
III Administrative Conference of the United States (Parts 300 -- 399)
IV Miscellaneous Agencies (Parts 400 -- 500)
16 CFR 24.5 Title 2 -- (Reserved)
16 CFR 24.5 Title 3 -- The President
I Executive Office of the President (Parts 100 -- 199)
16 CFR 24.5 Title 4 -- Accounts
I General Accounting Office (Parts 1 -- 99)
II Federal Claims Collection Standards (General Accounting Office --
Department of Justice) (Parts 100 -- 299)
III General Accounting Office (CASB) (Parts 300 -- 499)
16 CFR 24.5 Title 5 -- Administrative Personnel
I Office of Personnel Management (Parts 1 -- 1199)
II Merit Systems Protection Board (Parts 1200 -- 1299)
III Office of Management and Budget (Parts 1300 -- 1399)
IV Advisory Committee on Federal Pay (Parts 1400 -- 1499)
V The International Organizations Employees Loyalty Board (Parts 1500
-- 1599)
VI Federal Retirement Thrift Investment Board (Parts 1600 -- 1699)
VII Advisory Commission on Intergovernmental Relations (Parts 1700 --
1799)
VIII Office of Special Council (Parts 1800 -- 1899)
IX Appalachian Regional Commission (Parts 1900 -- 1999)
XI United States Soldiers' and Airmen's Home (Parts 2100 -- 2199)
XIV Federal Labor Relations Authority, General Counsel of the Federal
Labor Relations Authority and Federal Service Impasses Panel (Parts 2400
-- 2499)
XV Office of Administration, Executive Office of the President (Parts
2500 -- 2599)
XVI Office of Government Ethics (Parts 2600 -- 2699)
16 CFR 24.5 Title 6 -- (Reserved)
16 CFR 24.5 Title 7 -- Agriculture
Subtitle A -- Office of the Secretary of Agriculture (Parts 0 -- 26)
Subtitle B -- Regulations of the Department of Agriculture
I Agricultural Marketing Service (Standards, Inspections, Marketing
Practices), Department of Agriculture (Parts 27 -- 209)
II Food and Nutrition Service, Department of Agriculture (Parts 210
-- 299)
III Animal and Plant Health Inspection Service, Department of
Agriculture (Parts 300 -- 399)
IV Federal Crop Insurance Corporation, Department of Agriculture
(Parts 400 -- 499)
V Agricultural Research Service, Department of Agriculture (Parts 500
-- 599)
VI Soil Conservation Service, Department of Agriculture (Parts 600 --
699)
VII Agricultural Stabilization and Conservation Service (Agricultural
Adjustment), Department of Agriculture (Parts 700 -- 799)
VIII Federal Grain Inspection Service, Department of Agriculture
(Parts 800 -- 899)
IX Agricultural Marketing Service (Marketing Agreements and Orders;
Fruits, Vegetables, Nuts), Department of Agriculture (Parts 900 -- 999)
X Agricultural Marketing Service (Marketing Agreements and Orders;
Milk), Department of Agriculture (Parts 1000 -- 1199)
XI Agricultural Marketing Service (Marketing Agreements and Orders;
Miscellaneous Commodities), Department of Agriculture (Parts 1200 --
1299)
XIV Commodity Credit Corporation, Department of Agriculture (Parts
1400 -- 1499)
XV Foreign Agricultural Service, Department of Agriculture (Parts
1500 -- 1599)
XVI Rural Telephone Bank, Department of Agriculture (Parts 1600 --
1699)
XVII Rural Electrification Administration, Department of Agriculture
(Parts 1700 -- 1799)
XVIII Farmers Home Administration, Department of Agriculture (Parts
1800 -- 2099)
XXI Foreign Economic Development Service, Department of Agriculture
(Parts 2100 -- 2199)
XXII Office of International Cooperation and Development, Department
of Agriculture (Parts 2200 -- 2299)
XXV Office of the General Sales Manager, Department of Agriculture
(Parts 2500 -- 2599)
XXVI Office of Inspector General, Department of Agriculture (Parts
2600 -- 2699)
XXVII Office of Information Resources Management, Department of
Agriculture (Parts 2700 -- 2799)
XXVIII Office of Operations, Department of Agriculture (Parts 2800 --
2899)
XXIX Office of Energy, Department of Agriculture (Parts 2900 -- 2999)
XXX Office of Finance and Management, Department of Agriculture
(Parts 3000 -- 3099)
XXXI Office of Environmental Quality, Department of Agriculture
(Parts 3100 -- 3199)
XXXII Office of Grants and Program Systems, Department of Agriculture
(Parts 3200 -- 3299)
XXXIII Office of Transportation, Department of Agriculture (Parts
3300 -- 3399)
XXXIV Cooperative State Research Service, Department of Agriculture
(Parts 3400 -- 3499)
XXXVI National Agricultural Statistics Service, Department of
Agriculture (Parts 3600 -- 3699)
XXXVII Economic Research Service, Department of Agriculture (Parts
3700 -- 3799)
XXXVIII World Agricultural Outlook Board, Department of Agriculture
(Parts 3800 -- 3899)
XXXIX Economic Analysis Staff, Department of Agriculture (Parts 3900
-- 3999)
XL Economics Management Staff, Department of Agriculture (Parts 4000
-- 4099)
XLI National Agricultural Library, Department of Agriculture (Part
4100)
16 CFR 24.5 Title 8 -- Aliens and Nationality
I Immigration and Naturalization Service, Department of Justice
(Parts 1 -- 499)
16 CFR 24.5 Title 9 -- Animals and Animal Products
I Animal and Plant Health Inspection Service, Department of
Agriculture (Parts 1 -- 199)
II Packers and Stockyards Administration, Department of Agriculture
(Parts 200 -- 299)
III Food Safety and Inspection Service, Meat and Poultry Inspection,
Department of Agriculture (Parts 300 -- 399)
16 CFR 24.5 Title 10 -- Energy
I Nuclear Regulatory Commission (Parts 0 -- 199)
II Department of Energy (Parts 200 -- 699)
III Department of Energy (Parts 700 -- 999)
X Department of Energy (General Provisions) (Parts 1000 -- 1099)
XV Office of the Federal Inspector for the Alaska Natural Gas
Transportation System (Parts 1500 -- 1599)
XVII Defense Nuclear Facilities Safety Board (Parts 1700 -- 1799)
16 CFR 24.5 Title 11 -- Federal Elections
I Federal Election Commission (Parts 1 -- 9099)
16 CFR 24.5 Title 12 -- Banks and Banking
I Comptroller of the Currency, Department of the Treasury (Parts 1 --
199)
II Federal Reserve System (Parts 200 -- 299)
III Federal Deposit Insurance Corporation (Parts 300 -- 399)
IV Export-Import Bank of the United States (Parts 400 -- 499)
V Office of Thrift Supervision, Department of The Treasury (Parts 500
-- 599)
VI Farm Credit Administration (Parts 600 -- 699)
VII National Credit Union Administration (Parts 700 -- 799)
VIII Federal Financing Bank (Parts 800 -- 899)
IX Federal Housing Finance Board (Parts 900 -- 999)
XI Federal Financial Institutions Examination Council (Parts 1100 --
1199)
XIII Farm Credit System Assistance Board (Parts 1300 -- 1399)
XIV Farm Credit System Insurance Corporation (Parts 1400 -- 1499)
XV Oversight Board (Parts 1500 -- 1599)
XVI Resolution Trust Corporation (Parts 1600 -- 1699)
16 CFR 24.5 Title 13 -- Business Credit and Assistance
I Small Business Administration (Parts 1 -- 199)
III Economic Development Administration, Department of Commerce
(Parts 300 -- 399)
16 CFR 24.5 Title 14 -- Aeronautics and Space
I Federal Aviation Administration, Department of Transportation
(Parts 1 -- 199)
II Office of the Secretary, Department of Transportation (Aviation
Proceedings) (Parts 200 -- 399)
III Office of Commercial Space Transportation, Department of
Transportation (Parts 400 -- 499)
V National Aeronautics and Space Administration (Parts 1200 -- 1299)
16 CFR 24.5 Title 15 -- Commerce and Foreign Trade
Subtitle A -- Office of the Secretary of Commerce (Parts 0 -- 29)
Subtitle B -- Regulations Relating to Commerce and Foreign Trade
I Bureau of the Census, Department of Commerce (Parts 30 -- 199)
II National Institute of Standards and Technology, Department of
Commerce (Parts 200 -- 299)
III International Trade Administration, Department of Commerce (Parts
300 -- 399)
IV Foreign-Trade Zones Board (Parts 400 -- 499)
VII Bureau of Export Administration, Department of Commerce (Parts
700 -- 799)
VIII Bureau of Economic Analysis, Department of Commerce (Parts 800
-- 899)
IX National Oceanic and Atmospheric Administration, Department of
Commerce (Parts 900 -- 999)
XI Technology Administration, Department of Commerce (Parts 1100 --
1199)
XII United States Travel and Tourism Administration, Department of
Commerce (Parts 1200 -- 1299)
XIII East-West Foreign Trade Board (Parts 1300 -- 1399)
XIV Minority Business Development Agency (Parts 1400 -- 1499)
Subtitle C -- Regulations Relating to Foreign Trade Agreements
XX Office of the United States Trade Representative (Parts 2000 --
2099)
Subtitle D -- Regulations Relating to Telecommunications and
Information
XXIII National Telecommunications and Information Administration,
Department of Commerce (Parts 2300 -- 2399)
16 CFR 24.5 Title 16 -- Commercial Practices
I Federal Trade Commission (Parts 0 -- 999)
II Consumer Product Safety Commission (Parts 1000 -- 1799)
16 CFR 24.5 Title 17 -- Commodity and Securities Exchanges
I Commodity Futures Trading Commission (Parts 1 -- 199)
II Securities and Exchange Commission (Parts 200 -- 399)
IV Department of the Treasury (Parts 400 -- 499)
16 CFR 24.5 Title 18 -- Conservation of Power and Water Resources
I Federal Energy Regulatory Commission, Department of Energy (Parts 1
-- 399)
III Delaware River Basin Commission (Parts 400 -- 499)
VI Water Resources Council (Parts 700 -- 799)
VIII Susquehanna River Basin Commission (Parts 800 -- 899)
XIII Tennessee Valley Authority (Parts 1300 -- 1399)
16 CFR 24.5 Title 19 -- Customs Duties
I United States Customs Service, Department of the Treasury (Parts 1
-- 199)
II United States International Trade Commission (Parts 200 -- 299)
III International Trade Administration, Department of Commerce (Parts
300 -- 399)
16 CFR 24.5 Title 20 -- Employees' Benefits
I Office of Workers' Compensation Programs, Department of Labor
(Parts 1 -- 199)
II Railroad Retirement Board (Parts 200 -- 399)
III Social Security Administration, Department of Health and Human
Services (Parts 400 -- 499)
IV Employees' Compensation Appeals Board, Department of Labor (Parts
500 -- 599)
V Employment and Training Administration, Department of Labor (Parts
600 -- 699)
VI Employment Standards Administration, Department of Labor (Parts
700 -- 799)
VII Benefits Review Board, Department of Labor (Parts 800 -- 899)
VIII Joint Board for the Enrollment of Actuaries (Parts 900 -- 999)
IX Office of the Assistant Secretary for Veterans' Employment and
Training, Department of Labor (Parts 1000 -- 1099)
16 CFR 24.5 Title 21 -- Food and Drugs
I Food and Drug Administration, Department of Health and Human
Services (Parts 1 -- 1299)
II Drug Enforcement Administration, Department of Justice (Parts 1300
-- 1399)
16 CFR 24.5 Title 22 -- Foreign Relations
I Department of State (Parts 1 -- 199)
II Agency for International Development, International Development
Cooperation Agency (Parts 200 -- 299)
III Peace Corps (Parts 300 -- 399)
IV International Joint Commission, United States and Canada (Parts
400 -- 499)
V United States Information Agency (Parts 500 -- 599)
VI United States Arms Control and Disarmament Agency (Parts 600 --
699)
VII Overseas Private Investment Corporation, International
Development Cooperation Agency (Parts 700 -- 799)
IX Foreign Service Grievance Board Regulations (Parts 900 -- 999)
X Inter-American Foundation (Parts 1000 -- 1099)
XI International Boundary and Water Commission, United States and
Mexico, United States Section (Parts 1100 -- 1199)
XII United States International Development Cooperation Agency (Parts
1200 -- 1299)
XIII Board for International Broadcasting (Parts 1300 -- 1399)
XIV Foreign Service Labor Relations Board; Federal Labor Relations
Authority; General Counsel of the Federal Labor Relations Authority;
and the Foreign Service Impasse Disputes Panel (Parts 1400 -- 1499)
XV African Development Foundation (Parts 1500 -- 1599)
XVI Japan-United States Friendship Commission (Parts 1600 -- 1699)
16 CFR 24.5 Title 23 -- Highways
I Federal Highway Administration, Department of Transportation (Parts
1 -- 999)
II National Highway Traffic Safety Administration and Federal Highway
Administration, Department of Transportation (Parts 1200 -- 1299)
III National Highway Traffic Safety Administration, Department of
Transportation (Parts 1300 -- 1399)
16 CFR 24.5 Title 24 -- Housing and Urban Development
Subtitle A -- Office of the Secretary, Department of Housing and
Urban Development (Parts 0 -- 99)
Subtitle B -- Regulations Relating to Housing and Urban Development
I Office of Assistant Secretary for Equal Opportunity, Department of
Housing and Urban Development (Parts 100 -- 199)
II Office of Assistant Secretary for Housing-Federal Housing
Commissioner, Department of Housing and Urban Development (Parts 200 --
299)
III Government National Mortgage Association, Department of Housing
and Urban Development (Parts 300 -- 399)
V Office of Assistant Secretary for Community Planning and
Development, Department of Housing and Urban Development (Parts 500 --
599)
VI Office of Assistant Secretary for Community Planning and
Development, Department of Housing and Urban Development (Parts 600 --
699)
VII Office of the Secretary, Department of Housing and Urban
Development (Section 8 Housing Assistance Programs and Public and Indian
Housing Programs) (Parts 700 -- 799)
VIII Office of the Assistant Secretary for Housing -- Federal Housing
Commissioner, Department of Housing and Urban Development (Section 8
Housing Assistance Programs and Section 202 Direct Loan Program) (Parts
800 -- 899)
IX Office of Assistant Secretary for Public and Indian Housing,
Department of Housing and Urban Development (Parts 900 -- 999)
X Office of Assistant Secretary for Housing -- Federal Housing
Commissioner, Department of Housing and Urban Development (Interstate
Land Sales Registration Program) (Parts 1700 -- 1799)
XI Solar Energy and Energy Conservation Bank, Department of Housing
and Urban Development (Parts 1800 -- 1899)
XII Office of Inspector General, Department of Housing and Urban
Development (Parts 2000 -- 2099)
XV Mortgage Insurance and Loan Programs under the Emergency
Homeowners' Relief Act, Department of Housing and Urban Development
(Parts 2700 -- 2799)
XX Office of Assistant Secretary for Housing -- Federal Housing
Commissioner, Department of Housing and Urban Development (Parts 3200 --
3699)
XXV Neighborhood Reinvestment Corporation (Parts 4100 -- 4199)
16 CFR 24.5 Title 25 -- Indians
I Bureau of Indian Affairs, Department of the Interior (Parts 1 --
299)
II Indian Arts and Crafts Board, Department of the Interior (Parts
300 -- 399)
III National Indian Gaming Commission (Parts 500 -- 599)
IV Office of Navajo and Hopi Indian Relocation (Parts 700 -- 799)
16 CFR 24.5 Title 26 -- Internal Revenue
I Internal Revenue Service, Department of the Treasury (Parts 1 --
799)
16 CFR 24.5 Title 27 -- Alcohol, Tobacco Products and Firearms
I Bureau of Alcohol, Tobacco and Firearms, Department of the Treasury
(Parts 1 -- 299)
16 CFR 24.5 Title 28 -- Judicial Administration
I Department of Justice (Parts 0 -- 199)
III Federal Prison Industries, Inc., Department of Justice (Parts 300
-- 399)
V Bureau of Prisons, Department of Justice (Parts 500 -- 599)
VI Offices of Independent Counsel, Department of Justice (Parts 600
-- 699)
VII Office of Independent Counsel (Parts 700 -- 799)
16 CFR 24.5 Title 29 -- Labor
Subtitle A -- Office of the Secretary of Labor (Parts 0 -- 99)
Subtitle B -- Regulations Relating to Labor
I National Labor Relations Board (Parts 100 -- 199)
II Bureau of Labor-Management Relations and Cooperative Programs,
Department of Labor (Parts 200 -- 299)
III National Railroad Adjustment Board (Parts 300 -- 399)
IV Office of Labor-Management Standards, Department of Labor (Parts
400 -- 499)
V Wage and Hour Division, Department of Labor (Parts 500 -- 899)
IX Construction Industry Collective Bargaining Commission (Parts 900
-- 999)
X National Mediation Board (Parts 1200-1299)
XII Federal Mediation and Conciliation Service (Parts 1400-1499)
XIV Equal Employment Opportunity Commission (Parts 1600-1699)
XVII Occupational Safety and Health Administration, Department of
Labor (Parts 1900 -- 1999)
XX Occupational Safety and Health Review Commission (Parts 2200 --
2499)
XXV Pension and Welfare Benefits Administration, Department of Labor
(Parts 2500 -- 2599)
XXVI Pension Benefit Guaranty Corporation (Parts 2600 -- 2699)
XXVII Federal Mine Safety and Health Review Commission (Parts 2700 --
2799)
16 CFR 24.5 Title 30 -- Mineral Resources
I Mine Safety and Health Administration, Department of Labor (Parts 1
-- 199)
II Minerals Management Service, Department of the Interior (Parts 200
-- 299)
III Board of Surface Mining and Reclamation Appeals, Department of
the Interior (Parts 300 -- 399)
IV Geological Survey, Department of the Interior (Parts 400 -- 499)
VI Bureau of Mines, Department of the Interior (Parts 600 -- 699)
VII Office of Surface Mining Reclamation and Enforcement, Department
of the Interior (Parts 700 -- 999)
16 CFR 24.5 Title 31 -- Money and Finance: Treasury
Subtitle A -- Office of the Secretary of the Treasury (Parts 0 -- 50)
Subtitle B -- Regulations Relating to Money and Finance
I Monetary Offices, Department of the Treasury (Parts 51 -- 199)
II Fiscal Service, Department of the Treasury (Parts 200 -- 399)
IV Secret Service, Department of the Treasury (Parts 400 -- 499)
V Office of Foreign Assets Control, Department of the Treasury (Parts
500 -- 599)
VI Bureau of Engraving and Printing, Department of the Treasury
(Parts 600 -- 699)
VII Federal Law Enforcement Training Center, Department of the
Treasury (Parts 700 -- 799)
VIII Office of International Investment, Department of the Treasury
(Parts 800 -- 899)
16 CFR 24.5 Title 32 -- National Defense
Subtitle A -- Department of Defense
I Office of the Secretary of Defense (Parts 1 -- 399)
V Department of the Army (Parts 400 -- 699)
VI Department of the Navy (Parts 700 -- 799)
VII Department of the Air Force (Parts 800 -- 1099)
Subtitle B -- Other Regulations Relating to National Defense
XII Defense Logistics Agency (Parts 1200-1299)
XVI Selective Service System (Parts 1600-1699)
XIX Central Intelligence Agency (Parts 1900 -- 1999)
XX Information Security Oversight Office (Parts 2000 -- 2099)
XXI National Security Council (Parts 2100 -- 2199)
XXIV Office of Science and Technology Policy (Parts 2400 -- 2499)
XXVII Office for Micronesian Status Negotiations (Parts 2700 -- 2799)
XXVIII Office of the Vice President of the United States (Parts 2800
-- 2899)
16 CFR 24.5 Title 33 -- Navigation and Navigable Waters
I Coast Guard, Department of Transportation (Parts 1 -- 199)
II Corps of Engineers, Department of the Army (Parts 200 -- 399)
IV Saint Lawrence Seaway Development Corporation, Department of
Transportation (Parts 400 -- 499)
16 CFR 24.5 Title 34 -- Education
Subtitle A -- Office of the Secretary, Department of Education (Parts
1 -- 99)
Subtitle B -- Regulations of the Offices of the Department of
Education
I Office for Civil Rights, Department of Education (Parts 100 -- 199)
II Office of Elementary and Secondary Education, Department of
Education (Parts 200 -- 299)
III Office of Special Education and Rehabilitative Services,
Department of Education (Parts 300 -- 399)
IV Office of Vocational and Adult Education, Department of Education
(Parts 400 -- 499)
V Office of Bilingual Education and Minority Languages Affairs,
Department of Education (Parts 500 -- 599)
VI Office of Postsecondary Education, Department of Education (Parts
600 -- 699)
VII Office of Educational Research and Improvement, Department of
Education (Parts 700 -- 799)
16 CFR 24.5 Title 35 -- Panama Canal
I Panama Canal Regulations (Parts 1 -- 299)
16 CFR 24.5 Title 36 -- Parks, Forests, and Public Property
I National Park Service, Department of the Interior (Parts 1 -- 199)
II Forest Service, Department of Agriculture (Parts 200 -- 299)
III Corps of Engineers, Department of the Army (Parts 300 -- 399)
IV American Battle Monuments Commission (Parts 400 -- 499)
V Smithsonian Institution (Parts 500 -- 599)
VII Library of Congress (Parts 700 -- 799)
VIII Advisory Council on Historic Preservation (Parts 800 -- 899)
IX Pennsylvania Avenue Development Corporation (Parts 900-999)
XI Architectural and Transportation Barriers Compliance Board (Parts
1100 -- 1199)
XII National Archives and Records Administration (Parts 1200 -- 1299)
16 CFR 24.5 Title 37 -- Patents, Trademarks, and Copyrights
I Patent and Trademark Office, Department of Commerce (Parts 1 --
199)
II Copyright Office, Library of Congress (Parts 200 -- 299)
III Copyright Royalty Tribunal (Parts 300 -- 399)
IV Assistant Secretary for Technology Policy, Department of Commerce
(Parts 400-499)
V Under Secretary for Technology, Department of Commerce (Parts 500
-- 599)
16 CFR 24.5 Title 38 -- Pensions, Bonuses, and Veterans' Relief
I Department of Veterans Affairs (Parts 0 -- 99)
16 CFR 24.5 Title 39 -- Postal Service
I United States Postal Service (Parts 1-999)
III Postal Rate Commission (Parts 3000 -- 3099)
16 CFR 24.5 Title 40 -- Protection of Environment
I Environmental Protection Agency (Parts 1 -- 799)
V Council on Environmental Quality (Parts 1500-1599)
16 CFR 24.5 Title 41 -- Public Contracts and Property Management
Subtitle B -- Other Provisions Relating to Public Contracts
50 Public Contracts, Department of Labor (Parts 50-1 -- 50-999)
51 Committee for Purchase from the Blind and Other Severely
Handicapped (Parts 51-1 -- 51-99)
60 Office of Federal Contract Compliance Programs, Equal Employment
Opportunity, Department of Labor (Parts 60-1 -- 60-999)
61 Office of the Assistant Secretary for Veterans Employment and
Training, Department of Labor (Parts 61-1 -- 61-999)
Subtitle C -- Federal Property Management Regulations System
101 Federal Property Management Regulations (Parts 101-1 -- 101-99)
105 General Services Administration (Parts 105-1 -- 105-999)
109 Department of Energy Property Management Regulations (Parts 109-1
-- 109-99)
114 Department of the Interior (Parts 114-1 -- 114-99)
115 Environmental Protection Agency (Parts 115-1 -- 115-99)
128 Department of Justice (Parts 128-1 -- 128-99)
132 Department of the Air Force (Parts 132-1 -- 132-99)
Subtitle D -- Other Provisions Relating to Property Management
(Reserved)
Subtitle E -- Federal Information Resources Management Regulations
System
201 Federal Information Resources Management Regulation (Parts 201-1
-- 201-99)
Subtitle F -- Federal Travel Regulation System
301 Travel Allowances (Parts 301-1 -- 301-99)
302 Relocation Allowances (Parts 302-1 -- 302-99)
303 Payment of Expenses Connected with the Death of Certain Employees
(Parts 303-1 -- 303-2)
304 Payment from a non-Federal source for travel expenses (Parts
304-1 -- 304-99)
16 CFR 24.5 Title 42 -- Public Health
I Public Health Service, Department of Health and Human Services
(Parts 1 -- 199)
IV Health Care Financing Administration, Department of Health and
Human Services (Parts 400 -- 499)
V Office of Inspector General-Health Care, Department of Health and
Human Services (Parts 1000 -- 1999)
16 CFR 24.5 Title 43 -- Public Lands: Interior
Subtitle A -- Office of the Secretary of the Interior (Parts 1 --
199)
Subtitle B -- Regulations Relating to Public Lands
I Bureau of Reclamation, Department of the Interior (Parts 200 --
499)
II Bureau of Land Management, Department of the Interior (Parts 1000
-- 9999)
16 CFR 24.5 Title 44 -- Emergency Management and Assistance
I Federal Emergency Management Agency (Parts 0 -- 399)
IV Department of Commerce and Department of Transportation (Parts 400
-- 499)
16 CFR 24.5 Title 45 -- Public Welfare
Subtitle A -- Department of Health and Human Services, General
Administration (Parts 1 -- 199)
Subtitle B -- Regulations Relating to Public Welfare
II Office of Family Assistance (Assistance Programs), Family Support
Administration, Department of Health and Human Services (Parts 200 --
299)
III Office of Child Support Enforcement (Child Support Enforcement
Program), Family Support Administration, Department of Health and Human
Services (Parts 300 -- 399)
IV Office of Refugee Resettlement, Family Support Administration,
Department of Health and Human Services (Parts 400 -- 499)
V Foreign Claims Settlement Commission of the United States,
Department of Justice (Parts 500 -- 599)
VI National Science Foundation (Parts 600 -- 699)
VII Commission on Civil Rights (Parts 700 -- 799)
VIII Office of Personnel Management (Parts 800 -- 899)
X Office of Community Services, Family Support Administration,
Department of Health and Human Services (Parts 1000 -- 1099)
XI National Foundation on the Arts and the Humanities (Parts 1100 --
1199)
XII ACTION (Parts 1200 -- 1299)
XIII Office of Human Development Services, Department of Health and
Human Services (Parts 1300 -- 1399)
XVI Legal Services Corporation (Parts 1600 -- 1699)
XVII National Commission on Libraries and Information Science (Parts
1700 -- 1799)
XVIII Harry S. Truman Scholarship Foundation (Parts 1800 -- 1899)
XX Commission on the Bicentennial of the United States Constitution
(Parts 2000 -- 2099)
XXI Commission on Fine Arts (Parts 2100 -- 2199)
XXII Christopher Columbus Quincentenary Jubilee Commission (2200 --
2299)
16 CFR 24.5 Title 46 -- Shipping
I Coast Guard, Department of Transportation (Parts 1 -- 199)
II Maritime Administration, Department of Transportation (Parts 200
-- 399)
III Coast Guard (Great Lakes Pilotage), Department of Transportation
(Parts 400 -- 499)
IV Federal Maritime Commission (Parts 500 -- 599)
16 CFR 24.5 Title 47 -- Telecommunication
I Federal Communications Commission (Parts 0 -- 199)
II Office of Science and Technology Policy and National Security
Council (Parts 200 -- 299)
III National Telecommunications and Information Administration,
Department of Commerce (Parts 300 -- 399)
16 CFR 24.5 Title 48 -- Federal Acquisition Regulations System
1 Federal Acquisition Regulation (Parts 1 -- 99)
2 Department of Defense (Parts 200 -- 299)
3 Department of Health and Human Services (Parts 300 -- 399)
4 Department of Agriculture (Parts 400 -- 499)
5 General Services Administration (Parts 500 -- 599)
6 Department of State (Parts 600 -- 699)
7 Agency for International Development (Parts 700 -- 799)
8 Department of Veterans Affairs (Parts 800 -- 899)
9 Department of Energy (Parts 900 -- 999)
10 Department of the Treasury (Parts 1000 -- 1099)
12 Department of Transportation (Parts 1200 -- 1299)
13 Department of Commerce (Parts 1300 -- 1399)
14 Department of the Interior (Parts 1400 -- 1499)
15 Environmental Protection Agency (Parts 1500 -- 1599)
16 Office of Personnel Management Federal Employees Health Benefits
Acquisition Regulation (Parts 1600 -- 1699)
17 Office of Personnel Management (Parts 1700 -- 1799)
18 National Aeronautics and Space Administration (Parts 1800 -- 1899)
19 United States Information Agency (Parts 1900 -- 1999)
22 Small Business Administration (Parts 2200 -- 2299)
24 Department of Housing and Urban Development (Parts 2400 -- 2499)
25 National Science Foundation (Parts 2500 -- 2599)
28 Department of Justice (Parts 2800 -- 2899)
29 Department of Labor (Parts 2900 -- 2999)
34 Department of Education Acquisition Regulation (Parts 3400 --
3499)
35 Panama Canal Commission (Parts 3500 -- 3599)
44 Federal Emergency Management Agency (Parts 4400 -- 4499)
51 Department of the Army Acquisition Regulations (Parts 5100 --
5199)
52 Department of the Navy Acquisition Regulations (Parts 5200 --
5299)
53 Department of the Air Force Federal Acquisition Regulation
Supplement (Parts 5300 -- 5399)
57 African Development Foundation (Parts 5700 -- 5799)
61 General Services Administration Board of Contract Appeals (Parts
6100 -- 6199)
63 Department of Transportation Board of Contract Appeals (Parts 6300
-- 6399)
99 Cost Accounting Standards Board, Office of Federal Procurement
Policy, Office of Management and Budget (Parts 9900-9999)
16 CFR 24.5 Title 49 -- Transportation
Subtitle A -- Office of the Secretary of Transportation (Parts 1 --
99)
Subtitle B -- Other Regulations Relating to Transportation
I Research and Special Programs Administration, Department of
Transportation (Parts 100 -- 199)
II Federal Railroad Administration, Department of Transportation
(Parts 200 -- 299)
III Federal Highway Administration, Department of Transportation
(Parts 300 -- 399)
IV Coast Guard, Department of Transportation (Parts 400 -- 499)
V National Highway Traffic Safety Administration, Department of
Transportation (Parts 500 -- 599)
VI Urban Mass Transportation Administration, Department of
Transportation (Parts 600 -- 699)
VII National Railroad Passenger Corporation (AMTRAK) (Parts 700 --
799)
VIII National Transportation Safety Board (Parts 800 -- 899)
X Interstate Commerce Commission (Parts 1000 -- 1399)
16 CFR 24.5 Title 50 -- Wildlife and Fisheries
I United States Fish and Wildlife Service, Department of the Interior
(Parts 1 -- 199)
II National Marine Fisheries Service, National Oceanic and
Atmospheric Administration, Department of Commerce (Parts 200 -- 299)
III International Regulatory Agencies (Fishing and Whaling) (Parts
300 -- 399)
IV Joint Regulations (United States Fish and Wildlife Service,
Department of the Interior and National Marine Fisheries Service,
National Oceanic and Atmospheric Administration, Department of
Commerce); Endangered Species Committee Regulations (Parts 400 -- 499)
V Marine Mammal Commission (Parts 500 -- 599)
VI Fishery Conservation and Management, National Oceanic and
Atmospheric Administration, Department of Commerce (Parts 600 -- 699)
16 CFR 24.5 CFR Index and Finding Aids Subject/Agency Index List
of Agency Prepared Indexes Parallel Tables of Statutory Authorities and
Rules Acts Requiring Publication in the Federal Register List of CFR
Titles, Chapters, Subchapters, and Parts
16 CFR 24.5 Alphabetical List of Agencies Appearing in the CFR
CFR Title, Subtitle or
Agency
Chapter
ACTION 45, XII
Administrative Committee of the Federal Register 1, I
Administrative Conference of the United States 1, III
Advisory Commission on Intergovernmental Relations 5, VII
Advisory Committee on Federal Pay 5, IV
Advisory Council on Historic Preservation 36, VIII
African Development Foundation 22, XV; 48, 57
Agency for International Development 22, II; 48, 7
Agricultural Marketing Service 7, I, IX, X, XI
Agricultural Research Service 7, V
Agricultural Stabilization and Conservation Service 7, VII
Agriculture Department
Agricultural Marketing Service 7, I, IX, X, XI
Agricultural Research Service 7, V
Agricultural Stabilization and Conservation Service 7, VII
Animal and Plant Health Inspection Service 7, III; 9, I
Commodity Credit Corporation 7, XIV
Cooperative State Research Service 7, XXXIV
Economic Analysis Staff 7, XXXIX
Economic Research Service 7, XXXVII
Economics Management Staff 7, XL
Energy, Office of 7, XXIX
Environmental Quality, Office of 7, XXXI
Farmers Home Administration 7, XVIII
Federal Acquisition Regulation 48, 4
Federal Crop Insurance Corporation 7, IV
Federal Grain Inspection Service 7, VIII
Finance and Management, Office of 7, XXX
Food and Nutrition Service 7, II
Food Safety and Inspection Service 9, III
Foreign Agricultural Service 7, XV
Foreign Economic Development Service 7, XXI
Forest Service 36, II
General Sales Manager, Office of 7, XXV
Grants and Program Systems, Office of 7, XXXII
Information Resources Management, Office of 7, XXVII
Inspector General, Office of 7, XXVI
International Cooperation and Development Office 7, XXII
National Agricultural Library 7, XLI
National Agricultural Statistics Service 7, XXXVI
Operations Office 7, XXVIII
Packers and Stockyards Administration 9, II
Rural Electrification Administration 7, XVII
Rural Telephone Bank 7, XVI
Secretary of Agriculture, Office of 7, Subtitle A
Soil Conservation Service 7, VI
Transportation, Office of 7, XXXIII
World Agriculture Outlook Board 7, XXXVIII
Air Force Department 32, VII; 41, Subtitle C, Ch. 132
Federal Acquisition Regulation Supplement 48, 53
Alaska Natural Gas Transportation System, Office of the Federal
Inspector 10, XV
Alcohol, Tobacco and Firearms, Bureau of 27, I
AMTRAK 49, VII
American Battle Monuments Commission 36, IV
Animal and Plant Health Inspection Service 7, III; 9, I
Appalachian Regional Commission 5, IX
Architectural and Transportation Barriers Compliance Board 36, XI
Arms Control and Disarmament Agency, U.S. 22, VI
Army Department 32, V
Engineers, Corps of 33, II; 36, III
Federal Acquisition Regulation 48, 51
Assistant Secretary for Technology Policy, Department of Commerce 37,
IV
Benefits Review Board 20, VII
Bicentennial of the United States Constitution, Commission on the 45,
XX
Bilingual Education and Minority Languages Affairs, Office of 34, V
Blind and Other Severely Handicapped, Committee for Purchase from 41,
51
Board for International Broadcasting 22, XIII
Budget, Office of Management and 5, III
Census Bureau 15, I
Central Intelligence Agency 32, XIX
Child Support Enforcement, Office of 45, III
Christopher Columbus Quincentenary Jubilee Commission 45, XXII
Civil Rights Commission 45, VII
Civil Rights, Office for (Education Department) 34, I
Claims Collection Standards, Federal 4, II
Coast Guard 33, I; 46, I, III; 49, IV
Commerce Department 44, IV
Census Bureau 15, I
Assistant Secretary for Technology Policy 37, IV
Economic Affairs, Under Secretary 37, V
Economic Analysis, Bureau of 15, VIII
Economic Development Administration 13, III
Endangered Species Committee 50, IV
Export Administration Bureau 15, VII
Federal Acquisition Regulation 48, 13
Fishery Conservation and Management 50, VI
International Trade Administration 15, III; 19, III
National Institute of Standards and Technology 15, II
National Marine Fisheries Service 50, II, IV
National Oceanic and Atmospheric Administration 15, IX; 50, II, III,
IV, VI
National Telecommunications and Information Administration 15, XXIII;
47, III
Patent and Trademark Office 37, I
Productivity, Technology and Innovation, Assistant Secretary for 37,
IV
Secretary of Commerce, Office of 15, Subtitle A
Technology Administration 15, XI
Under Secretary for Technology 37, V
United States Travel and Tourism Administration 15, XII
Commercial Space Transportation, Office of, Department of
Transportation 14, III
Commission on the Bicentennial of the United States Constitution 45,
XX
Committee for Purchase from the Blind and Other Severely Handicapped
41, 51
Commodity Credit Corporation 7, XIV
Commodity Futures Trading Commission 17, I
Community Planning and Development, Office of Assistant Secretary for
24, V, VI
Community Services, Office of 45, X
Comptroller of the Currency 12, I
Construction Industry Collective Bargaining Commission 29, IX
Consumer Product Safety Commission 16, II
Cooperative State Research Service 7, XXXIV
Copyright Office 37, II
Copyright Royalty Tribunal 37, III
Cost Accounting Standards Board, Office of Federal Procurement Policy
48, 99
Council on Environmental Quality 40, V
Customs Service, United States 19, I
Defense Department 32, Subtitle A
Air Force Department 32, VII; 41, Subtitle C, Ch. 132
Army Department 32, V; 33, II; 36, III, 48, 51
Engineers, Corps of 33, II; 36, III
Federal Acquisition Regulation 48, 2
Navy Department 32, VI; 48, 52
Secretary of Defense, Office of 32, I
Defense Logistics Agency 32, XII
Defense Nuclear Facilities Safety Board 10, XVII
Delaware River Basin Commission 18, III
Drug Enforcement Administration 21, II
East-West Foreign Trade Board 15, XIII
Economic Affairs, Under Secretary (Commerce) 37, V
Economic Analysis, Bureau of 15, VIII
Economic Analysis Staff, Department of Agriculture 7, XXXIX
Economic Development Administration 13, III
Economics Management Staff 7, XL
Economic Research Service 7, XXXVII
Education, Department of
Bilingual Education and Minority Languages Affairs, Office of 34, V
Civil Rights, Office for 34, I
Educational Research and Improvement, Office of 34, VII
Elementary and Secondary Education, Office of 34, II
Federal Acquisition Regulation 48, 34
Postsecondary Education, Office of 34, VI
Secretary of Education, Office of 34, Subtitle A
Special Education and Rehabilitative Services, Office of 34, III
Vocational and Adult Education, Office of 34, IV
Educational Research and Improvement, Office of 34, VII
Elementary and Secondary Education, Office of 34, II
Employees' Compensation Appeals Board 20, IV
Employees Loyalty Board, International Organizations 5, V
Employment and Training Administration 20, V
Employment Standards Administration 20, VI
Endangered Species Committee 50, IV
Energy, Department of 10, II, III, X; 41, 109
Federal Acquisition Regulation 48, 9
Federal Energy Regulatory Commission 18, I
Energy, Office of, Department of Agriculture 7, XXIX
Engineers, Corps of 33, II; 36, III
Engraving and Printing, Bureau of 31, VI
Environmental Protection Agency 40, I; 41, 115; 48, 15
Environmental Quality, Office of (Agriculture Department) 7, XXXI
Equal Employment Opportunity Commission 29, XIV
Equal Opportunity, Office of Assistant Secretary for 24, I
Executive Office of the President 3, I
Administration, Office of 5, XV
Export Administration Bureau 15, VII
Export-Import Bank of the United States 12, IV
Family Assistance, Office of 45, II
Family Support Administration 45, II, III, IV, X
Farm Credit Administration 12, VI
Farm Credit System Assistance Board 12, XIII
Farm Credit System Insurance Corporation 12, XIV
Farmers Home Administration 7, XVIII
Federal Acquisition Regulation 48, 1
Federal Aviation Administration 14, I
Federal Claims Collection Standards 4, II
Federal Communications Commission 47, I
Federal Contract Compliance Programs, Office of 41, 60
Federal Crop Insurance Corporation 7, IV
Federal Deposit Insurance Corporation 12, III
Federal Election Commission 11, I
Federal Emergency Management Agency 44, I; 48, 44
Federal Energy Regulatory Commission 18, I
Federal Financial Institutions Examination Council 12, XI
Federal Financing Bank 12, VIII
Federal Grain Inspection Service 7, VIII
Federal Highway Administration 23, I, II; 49, III
Federal Home Loan Mortgage Corporation 1, IV
Federal Housing Finance Board 12, IX
Federal Information Resources Management Regulations 41, Subtitle E,
Ch. 201
Federal Inspector for the Alaska Natural Gas Transportation System,
Office of 10, XV
Federal Labor Relations Authority, and General Counsel of the Federal
Labor Relations Authority 5, XIV; 22, XIV
Federal Law Enforcement Training Center 31, VII
Federal Maritime Commission 46, IV
Federal Mediation and Conciliation Service 29, XII
Federal Mine Safety and Health Review Commission 29, XXVII
Federal Pay, Advisory Committee on 5, IV
Federal Prison Industries, Inc. 28, III
Federal Procurement Policy Office 48, 99
Federal Property Management Regulations 41, 101
Federal Property Management Regulations System 41, Subtitle C
Federal Railroad Administration 49, II
Federal Register, Administrative Committee of 1, I
Federal Register, Office of 1, II
Federal Reserve System 12, II
Federal Retirement Thrift Investment Board 5, VI
Federal Service Impasses Panel 5, XIV
Federal Trade Commission 16, I
Federal Travel Regulation System 41, Subtitle F
Finance and Management, Department of Agriculture 7, XXX
Fine Arts Commission 45, XXI
Fiscal Service 31, II
Fish and Wildlife Service, United States 50, I, IV
Fishery Conservation and Management 50, VI
Fishing and Whaling, International Regulatory Agencies 50, III
Food and Drug Administration 21, I
Food and Nutrition Service 7, II
Food Safety and Inspection Service 9, III
Foreign Agricultural Service 7, XV
Foreign Assets Control, Office of 31, V
Foreign Claims Settlement Commission of United States 45, V
Foreign Economic Development Service 7, XXI
Foreign Service Grievance Board 22, IX
Foreign Service Impasse Disputes Panel 22, XIV
Foreign Service Labor Relations Board 22, XIV
Foreign-Trade Zones Board 15, IV
Forest Service 36, II
General Accounting Office 4, I, II, III
General Sales Manager, Office of 7, XXV
General Services Administration
Contract Appeals Board 48, 61
Federal Acquisition Regulation 48, 5
Federal Information Resources Management Regulations 41, Subtitle E,
Ch. 201
Federal Property Management Regulations System 41, 101, 105
Federal Travel Regulation System 41, Subtitle F
Payment of Expenses Connected With the Death of Certain Employees 41,
303
Reduction in Meeting and Training Allowance Payments 41, 304
Relocation Allowances 41, 302
Travel Allowances 41, 301
Geological Survey 30, IV
Government Ethics, Office of 5, XVI
Government National Mortgage Association 24, III
Grants and Program Systems, Office of 7, XXXII
Great Lakes Pilotage 46, III
Harry S. Truman Scholarship Foundation 45, XVIII
Health and Human Services, Department of 45, Subtitle A
Child Support Enforcement, Office of 45, III
Community Services, Office of 45, X
Family Assistance, Office of 45, II
Family Support Administration 45, II, III, IV, X
Federal Acquisition Regulation 48, 3
Food and Drug Administration 21, I
Health Care Financing Administration 42, IV
Human Development Services Office 45, XIII
Inspector General, Office of 42, V
Public Health Service 42, I
Refugee Resettlement, Office of 45, IV
Social Security Administration 20, III; 45, IV
Health Care Financing Administration 42, IV
Housing and Urban Development, Department of
Community Planning and Development, Office of Assistant Secretary for
24, V, VI
Equal Opportunity, Office of Assistant Secretary for 24, I
Federal Acquisition Regulation 48, 24
Government National Mortgage Association 24, III
Housing -- Federal Housing Commissioner, Office of Assistant
Secretary for 24, II, VIII, X, XX
Inspector General, Office of 24, XII
Mortgage Insurance and Loan Programs Under Emergency Homeowners'
Relief Act 24, XV
Public and Indian Housing, Office of Assistant Secretary for 24, IX
Secretary, Office of 24, Subtitle B, VII
Solar Energy and Energy Conservation Bank 24, XI
Housing -- Federal Housing Commissioner, Office of Assistant
Secretary for 24, II, VIII, X, XX
Human Development Services Office 45, XIII
Immigration and Naturalization Service 8, I
Indian Affairs, Bureau of 25, I
Indian Arts and Crafts Board 25, II
Information Agency, United States 22, V; 48, 19
Information Resources Management, Office of, Agriculture Department
7, XXVII
Information Security Oversight Office 32, XX
Inspector General, Office of, Agriculture Department 7, XXVI
Inspector General, Office of, Health and Human Services Department
42, V
Inspector General, Office of, Housing and Urban Development
Department 24, XII
Inter-American Foundation 22, X
Intergovernmental Relations, Advisory Commission on 5, VII
Interior Department
Endangered Species Committee 50, IV
Federal Acquisition Regulation 48, 14
Federal Property Management Regulations System 41, 114
Fish and Wildlife Service, United States 50, I, IV
Geological Survey 30, IV
Indian Affairs, Bureau of 25, I
Indian Arts and Crafts Board 25, II
Land Management Bureau 43, II
Minerals Management Service 30, II
Mines, Bureau of 30, VI
National Park Service 36, I
Reclamation Bureau 43, I
Secretary of the Interior, Office of 43, Subtitle A
Surface Mining and Reclamation Appeals, Board of 30, III
Surface Mining Reclamation and Enforcement, Office of 30, VII
United States Fish and Wildlife Service 50, I, IV
Internal Revenue Service 26, I
International Boundary and Water Commission, United States and Mexico
22, XI
International Cooperation and Development Office, Department of
Agriculture 7, XXII
International Development, Agency for 22, II
International Development Cooperation Agency 22, XII
International Development, Agency for 22, II
Overseas Private Investment Corporation 22, VII
International Joint Commission, United States and Canada 22, IV
International Organizations Employees Loyalty Board 5, V
International Regulatory Agencies (Fishing and Whaling) 50, III
International Trade Administration 15, III; 19, III
International Trade Commission, United States 19, II
Interstate Commerce Commission 49, X
Japan-United States Friendship Commission 22, XVI
Joint Board for the Enrollment of Actuaries 20, VIII
Justice Department 28, I; 41, 128
Drug Enforcement Administration 21, II
Federal Acquisition Regulation 48, 28
Federal Claims Collection Standards 4, II
Federal Prison Industries, Inc. 28, III
Foreign Claims Settlement Commission of the United States 45, V
Immigration and Naturalization Service 8, I
Offices of Independent Counsel 28, VI
Prisons, Bureau of 28, V
Labor Department
Benefits Review Board 20, VII
Employees' Compensation Appeals Board 20, IV
Employment and Training Administration 20, V
Employment Standards Administration 20, VI
Federal Acquisition Regulation 48, 29
Federal Contract Compliance Programs, Office of 41, 60
Federal Procurement Regulations System 41, 50
Labor-Management Relations and Cooperative Programs, Bureau of 29, II
Labor-Management Standards, Office of 29, IV
Mine Safety and Health Administration 30, I
Occupational Safety and Health Administration 29, XVII
Pension and Welfare Benefits Administration 29, XXV
Public Contracts 41, 50
Secretary of Labor, Office of 29, Subtitle A
Veterans' Employment and Training, Office of the Assistant Secretary
for 41, 61; 20, IX
Wage and Hour Division 29, V
Workers' Compensation Programs, Office of 20, I
Labor-Management Relations and Cooperative Programs, Bureau of 29, II
Labor-Management Standards, Office of 29, IV
Land Management, Bureau of 43, II
Legal Services Corporation 45, XVI
Library of Congress 36, VII
Copyright Office 37, II
Management and Budget, Office of 5, III; 48, 99
Marine Mammal Commission 50, V
Maritime Administration 46, II
Merit Systems Protection Board 5, II
Micronesian Status Negotiations, Office for 32, XXVII
Mine Safety and Health Administration 30, I
Minerals Management Service 30, II
Mines, Bureau of 30, VI
Minority Business Development Agency 15, XIV
Miscellaneous Agencies 1, IV
Monetary Offices 31, I
Mortgage Insurance and Loan Programs Under the Emergency Homeowners'
Relief Act, Department of Housing and Urban Development 24, XV
National Aeronautics and Space Administration 14, V; 48, 18
National Agricultural Library 7, XLI
National Agricultural Statistics Service 7, XXXVI
National Archives and Records Administration 36, XII
National Bureau of Standards 15, II
National Capital Planning Commission 1, IV
National Commission for Employment Policy 1, IV
National Commission on Libraries and Information Science 45, XVII
National Credit Union Administration 12, VII
National Foundation on the Arts and the Humanities 45, XI
National Highway Traffic Safety Administration 23, II, III; 49, V
National Indian Gaming Commission 25, III
National Institute of Standards and Technology 15, II
National Labor Relations Board 29, I
National Marine Fisheries Service 50, II, IV
National Mediation Board 29, X
National Oceanic and Atmospheric Administration 15, IX; 50, II, III,
IV, VI
National Park Service 36, I
National Railroad Adjustment Board 29, III
National Railroad Passenger Corporation (AMTRAK) 49, VII
National Science Foundation 45, VI; 48, 25
National Security Council 32, XXI
National Security Council and Office of Science and Technology Policy
47, II
National Telecommunications and Information Administration 15, XXIII;
47, III
National Transportation Safety Board 49, VIII
Office of Navajo and Hopi Indian Relocation 25, IV
Navy Department 32, VI; 48, 52
Neighborhood Reinvestment Corporation 24, XXV
Nuclear Regulatory Commission 10, I
Occupational Safety and Health Administration 29, XVII
Occupational Safety and Health Review Commission 29, XX
Office of Independent Counsel 28, VII
Offices of Independent Counsel, Department of Justice 28, VI
Operations Office, Department of Agriculture 7, XXVIII
Overseas Private Investment Corporation 22, VII
Oversight Board 12, XV
Packers and Stockyards Administration 9, II
Panama Canal Commission 48, 35
Panama Canal Regulations 35, I
Patent and Trademark Office 37, I
Payment of Expenses Connected With the Death of Certain Employees 41,
303
Peace Corps 22, III
Pennsylvania Avenue Development Corporation 36, IX
Pension and Welfare Benefits Administration, Department of Labor 29,
XXV
Pension Benefit Guaranty Corporation 29, XXVI
Personnel Management, Office of 5, I; 45, VIII; 48, 17
Federal Employees Health Benefits Acquisition Regulation 48, 16
Postal Rate Commission 39, III
Postal Service, United States 39, I
Postsecondary Education, Office of 34, VI
President's Commission on White House Fellowships 1, IV
Presidential Documents 3
Prisons, Bureau of 28, V
Productivity, Technology and Innovation, Assistant Secretary
(Commerce) 37, IV
Property Management Regulations System, Federal 41, Subtitle C
Public Contracts, Department of Labor 41, 50
Public Health Service 42, I
Railroad Retirement Board 20, II
Reclamation Bureau 43, I
Reduction in Meeting and Training Allowance Payments 41, 304
Refugee Resettlement, Office of 45, IV
Regional Action Planning Commissions 13, V
Relocation Allowances 41, 302
Research and Special Programs Administration 49, I
Resolution Trust Corporation 12, XVI
Rural Electrification Administration 7, XVII
Rural Telephone Bank 7, XVI
Saint Lawrence Seaway Development Corporation 33, IV
Science and Technology Policy, Office of 32, XXIV
Science and Technology Policy, Office of, and National Security
Council 47, II
Secret Service 31, IV
Securities and Exchange Commission 17, II
Selective Service System 32, XVI
Small Business Administration 13, I; 48, 22
Smithsonian Institution 36, V
Social Security Administration 20, III; 45, IV
Soil Conservation Service 7, VI
Solar Energy and Energy Conservation Bank, Department of Housing and
Urban Development 24, XI
Soldiers' and Airmen's Home, United States 5, XI
Special Counsel, Office of 5, VIII
Special Education and Rehabilitative Services, Office of 34, III
State Department 22, I
Federal Acquisition Regulation 48, 6
Surface Mining and Reclamation Appeals, Board of 30, III
Susquehanna River Basin Commission 18, VIII
Technology Administration 15, XI
Tennessee Valley Authority 18, XIII
Thrift Supervision Office, Department of the Treasury 12, V
Trade Representative, United States, Office of 15, XX
Transportation, Department of 44, IV
Coast Guard 33, I; 46, I, III; 49, IV
Commercial Space Transportation, Office of 14, III
Contract Appeals Board 48, 63
Federal Acquisition Regulation 48, 12
Federal Aviation Administration 14, I
Federal Highway Administration 23, I, II; 49, III
Federal Railroad Administration 49, II
Maritime Administration 46, II
National Highway Traffic Safety Administration 23, II, III; 49, V
Research and Special Programs Administration 49, I
Saint Lawrence Seaway Development Corporation 33, IV
Secretary of Transportation, Office of 14, II; 49, Subtitle A
Urban Mass Transportation Administration 49, VI
Transportation, Office of, Department of Agriculture 7, XXXIII
Travel Allowance 41, 301
Travel and Tourism Administration, United States 15, XII
Treasury Department 17, IV
Alcohol, Tobacco and Firearms, Bureau of 27, I
Comptroller of the Currency 12, I
Customs Service, United States 19, I
Engraving and Printing, Bureau of 31, VI
Federal Acquisition Regulation 48, 10
Federal Law Enforcement Training Center 31, VII
Fiscal Service 31, II
Foreign Assets Control, Office of 31, V
Internal Revenue Service 26, I
Monetary Offices 31, I
Secret Service 31, IV
Secretary of the Treasury, Office of 31, Subtitle A
Thrift Supervision Office 12, V
United States Customs Service 19, I
Truman, Harry S. Scholarship Foundation 45, XVIII
Under Secretary for Technology, Department of Commerce 37, V
United States and Canada, International Joint Commission 22, IV
United States Arms Control and Disarmament Agency 22, VI
United States Customs Service 19, I
United States Fish and Wildlife Service 50, I, IV
United States Information Agency 22, V; 48, 19
United States International Development Cooperation Agency 22, XII
United States International Trade Commission 19, II
United States Postal Service 39, I
United States Soldiers' and Airmen's Home 5, XI
United States Trade Representative, Office of 15, XX
United States Travel and Tourism Adminstration 15, XII
Urban Mass Transportation Administration 49, VI
Veterans Affairs Department 38, I; 48, 8
Veterans' Employment and Training, Office of the Assistant Secretary
for 41, 61; 20, IX
Vice President of the United States, Office of 32, XXVIII
Vocational and Adult Education, Office of 34, IV
Wage and Hour Division 29, V
Water Resources Council 18, VI
Workers' Compensation Programs, Office of 20, I
World Agriculture Outlook Board 7, XXXVIII
16 CFR 24.5 16 CFR (1-1-92 Edition)
16 CFR 24.5 List of CFR Sections Affected
16 CFR 24.5 List of CFR Sections Affected
All changes in this volume of the Code of Federal Regulations which
were made by documents published in the Federal Register since January
1, 1986, are enumerated in the following list. Entries indicate the
nature of the changes effected. Page numbers refer to Federal Register
pages. The user should consult the entries for chapters and parts as
well as sections for revisions.
For the period before January 1, 1986, see the ''List of CFR Sections
Affected 1949-1963, 1964-1972, and 1973-1985,'' published in seven
separate volumes.
16 CFR 24.5 1986
16 CFR
51 FR
Page
Chapter I
4.7 (f) revised; interim 36802
13 Amended 3580,
3949-3951, 4894, 6104-6106, 6397, 8312-8314, 8485, 9768, 11904,
15465, 16510-16513, 20469, 20803, 21907-21910, 24136, 24653, 25996,
26867, 28694, 28695, 29633, 35211, 36802, 36803, 37001, 37718, 40788,
41613, 43587, 43589, 43590, 43593, 46615
16 Added 30055
16 CFR 24.5 1987
16 CFR
51 FR
Page
Chapter I
3.22 (a), (b), (c), and (e) revised 22293
3.24 (a)(2) revised 22293
3.45 (b) and (d) revised; (e) added 22293
3.46 (a) revised 22294
3.51 (c)(1) revised 22294
3.52 (f) through (j) redesignated as (g) through (k); new (f) added
22294
4.9 (b)(5) introductory text and (c) heading revised; (c)(2)
redesignated as (c)(3); new (c)(2) added 22294
5.1 Revised 34765
5.9 Revised 34765
5.11 (b) introductory text and (1), (d) and (e) revised; (b)(5)
added 34765
5.12 (c) revised; (f)(5) added 34765
5.17 Revised 34766
5.42 (a) revised 34766
6 Added; eff. 2-1-88 45628
13 Amended 253,
254, 2513, 3221, 3602, 5079, 6540, 7407, 8446, 9294, 9655, 12379,
12900, 16234, 31987, 33921, 34213, 34766, 35412, 35413, 36234, 36235,
37283, 37601, 41706, 44384, 45165, 45166, 45937
Corrected 656
16 CFR 24.5 1988
16 CFR
53 FR
Page
Chapter I
2.51 (b) revised 40868
13 Amended 609,
2223, 2224, 4009, 9104, 9108, 10367, 11247, 12379, 17022, 17452,
17453, 18273, 18274, 19771, 20834, 24439, 24683, 26990, 27335, 29226,
31306, 38941, 48531-48532, 51096, 51241, 51242, 52405, 52679-52681
Corrected 26236
16 CFR 24.5 1989
16 CFR
54 FR
Page
Chapter I
0.9 Revised 19885
0.14 Revised 19885
0.15 Removed 19886
1.1 (a) revised 14072
1.13 (c)(5) revised 19886
3.25 (a) through (f) revised 18885
3.45 (b)(3) revised 49279
4.10 (g) revised 7399
13 Amended 1160,
5929, 8187-8188, 8301, 9198, 9199, 9428, 12595, 14337, 19358, 19359,
24550, 25106, 25843, 25846
Removed 26187
15 Removed 26187
16 CFR 24.5 1990
16 CFR
55 FR
Page
Chapter I
4.11 (f) added 29839
4.13 (m) amended 37700
Heading corrected 38801
16 CFR 24.5 1991
16 CFR
56 FR
Page
Chapter I
4.1 (a), (d), and (e)(1) revised 49139
16
Commercial Practices
PARTS 0 TO 149
Revised as of January 1, 1992
CONTAINING
A CODIFICATION OF DOCUMENTS
OF GENERAL APPLICABILITY
AND FUTURE EFFECT
AS OF JANUARY 1, 1992
With Ancillaries
Published by
the Office of the Federal Register
National Archives and Records
Administration
as a Special Edition of
the Federal Register
16 CFR 24.5 Table of Contents
Page
Explanation v
Title 16:
Chapter I -- Federal Trade Commission
Finding Aids:
Table of CFR Titles and Chapters
Alphabetical List of Agencies Appearing in the CFR
List of CFR Sections Affected
16 CFR 24.5 Explanation
The Code of Federal Regulations is a codification of the general and
permanent rules published in the Federal Register by the Executive
departments and agencies of the Federal Government. The Code is divided
into 50 titles which represent broad areas subject to Federal
regulation. Each title is divided into chapters which usually bear the
name of the issuing agency. Each chapter is further subdivided into
parts covering specific regulatory areas.
Each volume of the Code is revised at least once each calendar year
and issued on a quarterly basis approximately as follows:
Title 1 through Title 16 as of January 1
Title 17 through Title 27 as of April 1
Title 28 through Title 41 as of July 1
Title 42 through Title 50 as of October 1
The appropriate revision date is printed on the cover of each volume.
LEGAL STATUS
The contents of the Federal Register are required to be judicially
noticed (44 U.S.C. 1507). The Code of Federal Regulations is prima facie
evidence of the text of the original documents (44 U.S.C. 1510).
HOW TO USE THE CODE OF FEDERAL REGULATIONS
The Code of Federal Regulations is kept up to date by the individual
issues of the Federal Register. These two publications must be used
together to determine the latest version of any given rule.
To determine whether a Code volume has been amended since its
revision date (in this case, January 1, 1992), consult the ''List of CFR
Sections Affected (LSA),'' which is issued monthly, and the ''Cumulative
List of Parts Affected,'' which appears in the Reader Aids section of
the daily Federal Register. These two lists will identify the Federal
Register page number of the latest amendment of any given rule.
EFFECTIVE AND EXPIRATION DATES
Each volume of the Code contains amendments published in the Federal
Register since the last revision of that volume of the Code. Source
citations for the regulations are referred to by volume number and page
number of the Federal Register and date of publication. Publication
dates and effective dates are usually not the same and care must be
exercised by the user in determining the actual effective date. In
instances where the effective date is beyond the cut-off date for the
Code a note has been inserted to reflect the future effective date. In
those instances where a regulation published in the Federal Register
states a date certain for expiration, an appropriate note will be
inserted following the text.
OMB CONTROL NUMBERS
The Paperwork Reduction Act of 1980 (Pub. L. 96-511) requires Federal
agencies to display an OMB control number with their information
collection request. Many agencies have begun publishing numerous OMB
control numbers as amendments to existing regulations in the CFR. These
OMB numbers are placed as close as possible to the applicable
recordkeeping or reporting requirements.
OBSOLETE PROVISIONS
Provisions that become obsolete before the revision date stated on
the cover of each volume are not carried. Code users may find the text
of provisions in effect on a given date in the past by using the
appropriate numerical list of sections affected. For the period before
January 1, 1986, consult either the List of CFR Sections Affected,
1949-1963, 1964-1972, or 1973-1985, published in seven separate volumes.
For the period beginning January 1, 1986, a ''List of CFR Sections
Affected'' is published at the end of each CFR volume.
CFR INDEXES AND TABULAR GUIDES
A subject index to the Code of Federal Regulations is contained in a
separate volume, revised annually as of January 1, entitled CFR Index
and Finding Aids. This volume contains the Parallel Table of Statutory
Authorities and Agency Rules (Table I), and Acts Requiring Publication
in the Federal Register (Table II). A list of CFR titles, chapters, and
parts and an alphabetical list of agencies publishing in the CFR are
also included in this volume.
An index to the text of ''Title 3 -- The President'' is carried
within that volume.
The Federal Register Index is issued monthly in cumulative form.
This index is based on a consolidation of the ''Contents'' entries in
the daily Federal Register.
A List of CFR Sections Affected (LSA) is published monthly, keyed to
the revision dates of the 50 CFR titles.
REPUBLICATION OF MATERIAL
There are no restrictions on the republication of material appearing
in the Code of Federal Regulations.
INQUIRIES AND SALES
For a summary, legal interpretation, or other explanation of any
regulation in this volume, contact the issuing agency. Inquiries
concerning editing procedures and reference assistance with respect to
the Code of Federal Regulations may be addressed to the Director, Office
of the Federal Register, National Archives and Records Administration,
Washington, DC 20408 (telephone 202-523-3517). All mail order sales are
handled exclusively by the Superintendent of Documents, Attn: New
Orders, P.O. Box 371954, Pittsburgh, PA 15250-7954. Charge orders may
be telephoned to the Government Printing Office order desk at
202-783-3238.
Martha L. Girard,
Director,
Office of the Federal Register.
January 1, 1992.
16 CFR 24.5 THIS TITLE
Title 16 -- Commercial Practices is composed of three volumes. The
first two volumes containing parts 0-149, and parts 150-999, comprise
chapter I -- Federal Trade Commission. The third volume containing part
1000 to end comprises chapter II -- Consumer Product Safety Commission.
The contents of these volumes represent all current regulations codified
under this title of the CFR as of January 1, 1992.
For this volume, Linda L. Jones was Chief Editor. The Code of
Federal Regulations publication program is under the direction of
Richard L. Claypoole, assisted by Alomha S. Morris.
16 CFR 0.0 16 CFR Ch. I (1-1-92 Edition)
16 CFR 0.0 Federal Trade Commission
16 CFR 0.0 Title 16 -- Commercial Practices
16 CFR 0.0 (This book contains parts 150 to 999)
Part
chapter i -- Federal Trade Commission (Continued) 228
16 CFR 0.0 16 CFR Ch. I (1-1-92 Edition)
16 CFR 0.0 Federal Trade Commission
16 CFR 0.0 CHAPTER I -- FEDERAL TRADE COMMISSION
16 CFR 0.0 (Continued)
16 CFR 0.0
16 CFR 0.0 SUBCHAPTER B -- GUIDES AND TRADE PRACTICE RULES --
(Continued)
Part
Page
150-227 (Reserved)
228 Tire advertising and labeling guides
229 Guides for advertising fallout shelters
230 Guides for advertising shell homes
231 Guides for shoe content labeling and advertising
232 Guides for advertising radiation monitoring instruments
233 Guides against deceptive pricing
234 Guides for the mail order insurance industry
235 Guides against deceptive labeling and advertising of adhesive
compositions
236 Guide for avoiding deceptive use of word ''mill'' in the textile
industry
237 Guides against debt collection deception
238 Guides against bait advertising
239 Guides for the advertising of warranties and guarantees
240 Guides for advertising allowances and other merchandising
payments and services
241 Guides for the dog and cat food industry
242 Guide against deceptive use of the word ''free'' in connection
with the sale of photographic film and film processing service
243 Guides for the decorative wall paneling industry
244 Guides for the greeting card industry relating to discriminatory
practices
245 Guides for the watch industry
247 Guides for the ladies' handbag industry
248 Guides for the beauty and barber equipment and supplies industry
250 Guides for the household furniture industry
251 Guide concerning use of the word ''free'' and similar
representations
252 Guides for labeling, advertising, and sale of wigs and other
hairpieces
253 Guides for the feather and down products industry
254 Guides for private vocational and home study schools
255 Guides concerning use of endorsements and testimonials in
advertising
256 Guides for the law book industry
259 Guide concerning fuel economy advertising for new automobiles
16 CFR 0.0
16 CFR 0.0 SUBCHAPTER C -- REGULATIONS UNDER SPECIFIC ACTS OF CONGRESS
300 Rules and regulations under the Wool Products Labeling Act of
1939
301 Rules and regulations under Fur Products Labeling Act
303 Rules and regulations under the Textile Fiber Products
Identification Act
304 Rules and regulations under the Hobby Protection Act
305 Rules for using energy costs and consumption information used in
labeling and advertising for consumer appliances under the Energy Policy
and Conservation Act
306 Octane posting and certification
307 Regulations under the Comprehensive Smokeless Tobacco Health
Education Act of 1986
16 CFR 0.0
16 CFR 0.0 SUBCHAPTER D -- TRADE REGULATION RULES
400 Advertising and labeling as to size of sleeping bags
402 Deception as to nonprismatic and partially prismatic instruments
being prismatic binoculars
403 Deceptive use of ''leakproof,'' ''guaranteed leakproof,'' etc.,
as descriptive of dry cell batteries
404 Deceptive advertising and labeling as to size of tablecloths and
related products
405 Misbranding and deception as to leather content of waist belts
406 Deceptive advertising and labeling of previously used lubricating
oil
408 Unfair or deceptive advertising and labeling of cigarettes in
relation to the health hazards of smoking (Note)
409 Incandescent lamp (light bulb) industry
410 Deceptive advertising as to sizes of viewable pictures shown by
television receiving sets
412 Discriminatory practices in men's and boys' tailored clothing
industry
413 Failure to disclose that skin irritation may result from washing
or handling glass fiber curtains and draperies and glass fiber curtain
and drapery fabrics
417 Failure to disclose the lethal effects of inhaling quick-freeze
aerosol spray products used for frosting cocktail glasses
418 Deceptive advertising and labeling as to length of extension
ladders
419 Games of chance in the food retailing and gasoline industries
423 Care labeling of textile wearing apparel and certain piece goods
as amended
424 Retail food store advertising and marketing practices
425 Use of negative option plans by sellers in commerce
429 Cooling-off period for door-to-door sales
432 Power output claims for amplifiers utilized in home entertainment
products
433 Preservation of consumers' claims and defenses
435 Mail order merchandise
436 Disclosure requirements and prohibitions concerning franchising
and business opportunity ventures
444 Credit practices
453 Funeral industry practices
455 Used motor vehicle trade regulation rule
456 Ophthalmic practice rules
460 Labeling and advertising of home insulation
16 CFR 0.0
16 CFR 0.0 SUBCHAPTER E -- RULES, REGULATIONS, STATEMENT OF GENERAL
POLICY OR INTERPRETATION AND EXEMPTIONS UNDER THE FAIR PACKAGING AND
LABELING ACT
500 Regulations under section 4 of the Fair Packaging and Labeling
Act
501 Exemptions from requirements and prohibitions under Part 500
502 Regulations under section 5(c) of the Fair Packaging and Labeling
Act
503 Statements of general policy or interpretation
16 CFR 0.0
16 CFR 0.0 SUBCHAPTER F -- STATEMENTS OF GENERAL POLICY OR
INTERPRETATIONS UNDER THE FAIR CREDIT REPORTING ACT
600 Statements of general policy or interpretations
16 CFR 0.0
16 CFR 0.0 SUBCHAPTER G -- RULES, REGULATIONS, STATEMENTS AND
INTERPRETATIONS UNDER THE MAGNUSON-MOSS WARRANTY ACT
700 Interpretations of Magnuson-Moss Warranty Act
701 Disclosure of written consumer product warranty terms and
conditions
702 Pre-sale availability of written warranty terms
703 Informal dispute settlement procedures
16 CFR 0.0
16 CFR 0.0 SUBCHAPTER H -- RULES, REGULATIONS, STATEMENTS AND
INTERPRETATIONS UNDER THE HART-SCOTT-RODINO ANTITRUST IMPROVEMENTS ACT
OF 1976
800 Transitional rule
801 Coverage rules
802 Exemption rules
803 Transmittal rules
16 CFR 0.0
16 CFR 0.0 SUBCHAPTER I -- FAIR DEBT COLLECTION PRACTICES ACT
901 Procedures for State application for exemption from the
provisions of the Act
902-999 (Reserved)
Cross References: Animal and Plant Health Inspection Service,
Department of Agriculture: 9 CFR Chapter I. Commodity Futures Trading
Commission: 17 CFR Chapter I. Consumer Product Safety Commission: 16
CFR Chapter II. Securities and Exchange Commission: 17 CFR Chapter II.
Supplemental Publications: Federal Trade Commission decisions,
Volumes 1-90 Index digest of volumes 1, 2, and 3 of decisions of the
Federal Trade Commission with annotation of Federal cases. Mar. 16,
1915-June 30, 1921. Statutes and decisions pertaining to the Federal
Trade Commission. 1914-1929, 1930-1938, 1939-1943, 1944-1948,
1949-1955, 1956-1960, 1961-1965, 1966-1970, 1971-1975, 1976, 1977.
16 CFR 0.0 16 CFR Ch. I (1-1-92 Edition)
16 CFR 0.0 Federal Trade Commission
16 CFR 0.0 SUBCHAPTER B -- GUIDES AND TRADE PRACTICE RULES -- (Continued)
16 CFR 0.0 PARTS 150 -- 227 (RESERVED)
16 CFR 0.0 PART 228 -- TIRE ADVERTISING AND LABELING GUIDES
Sec.
228.0 ''Industry Product'' and ''Industry Member'' defined.
228.0-1 Use of guide principles.
228.1 Tire description.
228.2 Designations of grade, line, level, or quality.
228.3 Deceptive designations.
228.4 Original equipment.
228.5 Comparative quality and performance claims.
228.6 Ply count, plies, ply rating.
228.7 Cord materials.
228.8 ''Change-Overs,'' ''New Car Take Offs,'' etc.
228.9 Retreaded and used tires.
228.10 Disclosure that products are obsolete or discontinued models.
228.11 Blemished, imperfect, defective, etc., products.
228.12 Pictorial misrepresentations.
228.13 Racing claims.
228.14 Bait advertising.
228.15 Deceptive pricing.
228.16 Guarantees.
228.17 Safety or performance features.
228.18 Other claims and representations.
228.19 Snow tire advertising.
Authority: Secs. 5, 6, 38 Stat. 719, as amended, 721; 15 U.S.C.
45, 46.
Source: 32 FR 15525, Nov. 8, 1967, unless otherwise noted.
16 CFR 228.0 ''Industry Product'' and ''Industry Member'' defined.
As used in this part, the terms ''Industry Product'' or ''Product''
shall mean pneumatic tires for use on passenger automobiles, station
wagons, and similar vehicles, or the materials used therein. The term
''Industry Member'' shall mean: All persons or firms who are engaged in
the manufacture, sale or distribution of industry products as above
defined whether under the manufacturer's or a private brand; and the
manufacturers of passenger automobiles, station wagons, and similar
vehicles for which industry products are provided as original equipment.
16 CFR 228.0-1 Use of guide principles.
The following general principles will be used in determining whether
terminology and other direct or indirect representations subject to the
Commission's jurisdiction regarding industry products conform to laws
administered by the Commission.
16 CFR 228.1 Tire description.
(a) The purchase of tires for a motor vehicle is an extremely
important matter to the consumer. Not only are substantial economic
factors involved, but in most instances the purchaser will entrust the
safety of himself and others to the performance of the product.
(b) To avoid being deceived, the consumer must have certain basic
information. Certain of this information should be provided before the
purchaser makes his choice but other is essential throughout the life of
the tire.
(1) Disclosure before the sale. The following information should be
disclosed in point of sale material which is prominently displayed and
of easy access, on the premises where the purchase is to be made in
order to appraise the consumer:
(i) Load-carrying capacity of the tire. This information is
essential to assure the purchaser that the tires he selects are capable
of safely carrying the intended load. This information should consist
of the maximum load-carrying capacity as related to various recommended
air pressures and may include data which indicates the effect such
varying pressures will have on the operation of the automobile. All
such information shall be based on actual tests utilizing adequate and
technically sound procedures. The test procedures and results shall be
in writing and available for inspection.
(ii) Generic name of cord material. Different cord materials can
have performance characteristics that will affect the consumer's
selection of tires. These various characteristics are widely
advertised, and the consumer is aware of the distinctions. Without a
disclosure of the generic name of the cord material, the consumer is
unable to consider this factor in his purchase.
(iii) Actual number of plies. Consumers have preference for industry
products of a stated type of construction (e.g., 2 ply v. 4 ply).
Without adequate disclosure the consumer is denied the basis for
considering this factor in his selection.
Note: Where the tire is of radial construction the ply count
disclosure will be satisfied by the statement ''radial ply.''
(2) Disclosure on the tire. The following information should be
clearly disclosed in a permanent manner on the outside wall of the tire:
(i) Size. Size is extremely important not only to insure that the
tire will fit the vehicle wheel, but because it also is a determining
factor as to the load-carrying capacity of the vehicle.
(ii) Whether tire is tubeless or tube type.
(iii) Actual number of plies.
Note: Where the tire is of radial construction the ply count
disclosure will be satisfied by the statement ''radial ply.''
(3) Other disclosures -- (i) Generic name of cord material used in
ply. A disclosure of the generic name of the cord material used in the
ply of the tire should be made on a label or tag prominently displayed
on the tire itself, and affixed in such a fashion that it cannot be
easily removed prior to sale.
(ii) Load-carrying capacity and inflation pressure. One of the most
important factors in obtaining tire performance is proper care and use.
Included in such care is inflating the tire to the required level as
related to load-carrying capacity and use. To insure that such
pressures are maintained by the user and the tire is not overloaded
beyond its safe capacity, a table or chart should be provided for
retention by the purchaser. This will apprise the purchaser of the
load-carrying capacity of the tires as related to the range of
recommended air pressures and use. It may also supply data which
indicate the effect such varying pressures will have on the operation of
the automobile.
Note: Automobile manufacturers who provide tires as original
equipment with new automobiles should incorporate such information in
the owner's manual given to new car purchasers.
(Guide 1)
(32 FR 15525, Nov. 8, 1967, as amended at 33 FR 982, Jan. 26, 1968)
16 CFR 228.2 Designations of grade, line, level, or quality.
(a) There exists today no industrywide, government or other accepted
system of quality standards or grading of industry products. Within the
industry, however, a variety of trade terminology has developed which,
when used in conjunction with consumer transactions, has the tendency to
suggest that a system of quality standards or grading does in fact
exist. Typical of such terminology are the expressions ''line,''
''level,'' and ''premium.'' The exact meaning of such terminology may
vary from one industry member to another. Therefore, the ''1st line''
or ''100 level'' or ''premium'' tire of one industry member may be
grossly inferior to the ''1st line'' or ''100 level'' or ''premium''
tire of another member since in the absence of an accepted system of
grading or quality standards, each member can determine what ''line,''
''level,'' or ''premium'' classification to attach to a tire.
(b) The consumer does not understand the significance of the absence
of accepted grading or quality standards and is likely to assume that
the expressions ''line,'' ''level,'' and ''premium'' connote valid
criteria. Since the consumer is likely to misinterpret the meaning of
such terminology, he may be deceived into purchasing an inferior product
because it has been given such designation.
(c) In the absence of an accepted system of grading or quality
standards for industry products, it is improper to represent, either
through the use of such expressions as ''line,'' ''level,'' ''premium''
or in any other manner, that such a system exists, unless the
representation is accompanied by a clear and conspicuous disclosure:
(1) That no industrywide or other accepted system of quality
standards or grading of industry products currently exists, and
(2) That representations as to grade, line, level, or quality, relate
only to the private standard of the marketer of the tire so described
(e.g., ''XYZ first line'').
(d) Additionally, products should not be described as being ''first
line'' unless the products so described are the best products, exclusive
of premium quality products embodying special features, of the
manufacturer or brand name distributor applying such designation.
(Guide 2)
16 CFR 228.3 Deceptive designations.
In the advertising or labeling of products, industry members should
not use designations for grades of products they offer to the public:
(a) Which have the capacity to deceive purchasers into believing that
such products are equal or superior to a better grade or grades of their
products when such conclusion would be contrary to fact (for example, if
the ''first line'' tire of a manufacturer is designated as ''Standard,''
''High Standard,'' or ''Deluxe High Standard,'' the tires of that
manufacturer which are of lesser quality should not be designated or
described as ''Super Standard,'' ''Supreme High Standard,'' ''Super
Deluxe High Standard,'' or ''Premium''), or
(b) Which are otherwise false or misleading.
Note: When a manufacturer applies a designation to a product which
falsely represents or implies the product is equal or superior in
quality to its better grade or grades of products, it is responsible for
any resulting deception whether it is a direct result of the designation
or a result of the placing in the hands of others a means and
instrumentality for the creation by them of a false and deceptive
impression with respect to the comparative quality of products made by
that manufacturer.
(Guide 3)
16 CFR 228.4 Original equipment.
Original equipment tires are understood to mean the same brand and
quality tires used generally as original equipment on new current models
of vehicles of domestic manufacture. A tire which was formerly but is
not currently used as ''Original Equipment,'' should not be described as
''Original Equipment'' without clear and conspicuous disclosure in close
conjunction with the term, of the latest actual year such tire was used
as ''Original Equipment.'' (Guide 4)
16 CFR 228.5 Comparative quality and performance claims.
Representations and claims made by industry members that their
products are superior in quality or performance to other products should
not be made unless:
(a) The representation or claim is based on an actual test utilizing
adequate and technically sound procedures of the performance of the
advertised product and of the product with which it is compared; the
test procedure, results of which are in writing and available for
inspection; and
(b) The basis of the comparison is clearly stated and the comparison
is based on identical conditions of use. Dangling comparatives should
not be used.
(c) Claims or representations that one tire is comparable or
identical to another should not be used unless the advertiser is able to
establish that such tires are comparable not only as respects the molds
in which the tires are made, but also as respects all significant
materials used in their construction. (Guide 5)
16 CFR 228.6 Ply count, plies, ply rating.
A ply is a layer of rubberized fabric contained in the body of the
tire and extending from one bead of the tire to the other bead of the
tire. The consumer is interested in, and is entitled to know, certain
information in regard to plies in tires. However, a great deal of
terminology connected with plies which is utilized in advertising has
the tendency to confuse and deceive the public and is accordingly
inappropriate.
(a) It is improper to utilize any statement or depiction which
denotes or implies that tires possess more plies than they in fact
actually possess. Phrases such as ''Super 6'' or ''Deluxe 8'' as
descriptive of tires of less than 6 or 8 plies, respectively, should not
be used.
(b) The actual number of plies in a tire is not necessarily
determinative of the ultimate strength, performance or quality of the
product. Variations in the amount and type of fabric utilized in the
ply and other construction features of the tire will determine the
ultimate strength, performance or quality of the product. Through
variations in these construction aspects, a tire of a stated number of
plies may be inferior in strength, quality, and performance to another
tire of lesser actual ply count. Accordingly, it is improper to
represent in advertising, or otherwise, that solely because a product
has more plies than another, it is superior.
(c)(1) The expression ''ply rating'' as used in the trade is an index
of tire strength. Each manufacturer, however, has his own system of
computing ''ply rating.'' Thus, a product of one industry member of a
stated ''ply rating'' is not necessarily of the same strength as the
product of another member with the identical rating. While the
expression ''ply rating'' may have significance to industry members, in
the absence of a publicized system of standardized ratings, the use of
such expressions in connection with sales to the general public may be
deceptive.
(2) To avoid deception, the expression ''ply rated'' or ''ply
rating'' or any similar language should not be used unless said claim is
based on actual tests utilizing adequate and technically sound
procedures, the results of which are in writing and available for
inspection. Further, certain disclosures must be made when such
expressions are used in connection with consumer transactions.
(3) When ply rating is stated on the tire itself, it must be
accompanied in immediate conjunction therewith, and in identical size
letters, the disclosure of the actual ply count. In addition, there
must be a tag or label attached to the tire or its packaging, of such
permanency that it cannot easily be removed prior to sale to the
consumer, which tag or label contains a clear and conspicuous
disclosure:
(i) That there is no industrywide definition of ply rating; and
(ii) Of the basis of comparison of the claimed rating. (For example,
''2-ply tire, 4-ply rating means this 2-ply tire is equivalent to our
current or most recent 4-ply nylon cord tire.'')
(4) When ply rating is used in advertising or in other sales or
promotional materials, in addition to the disclosure of actual ply count
as indicated, it must be accompanied by the disclosure:
(i) That there is no industrywide definition of ply rating; and
(ii) Of the basis of comparison of the claimed rating. (For example,
''2-ply tire, 4-ply rating means this 2-ply tire is equivalent to our
current or most recent 4-ply nylon cord tire.'') (Guide 6)
16 CFR 228.7 Cord materials.
(a) The fabric that is utilized in the ply is known as the cord
material. The use of a particular type of cord material may be
determined by the use to which the tire will be placed. One type of
cord material may provide one desired characteristic, but not be used
because of other characteristics which may be unfavorable.
(b) The type of cord material utilized in a tire is not necessarily
determinative of its ultimate quality, performance or strength. Through
variations in the denier of the material, the amount to be used and
other construction aspects of the tire, the ultimate quality,
performance, and strength is determined.
(c) It is improper to represent in advertising, or otherwise, that
solely because a particular type of cord material is utilized in the
construction of a tire, it is superior to tires constructed with other
types of cord material. Such advertising is deceptive for it creates
that impression in the consumer's mind whereas in fact it does not take
into consideration the other variable aspects of tire construction.
(d) When the type of cord material is referred to in advertising, it
must be made clear that it is only the cord that is of the particular
material and not the entire tire. For example, it would be improper to
refer to a product as ''Nylon Tire.'' The proper description is ''Nylon
Cord Tire.'' Similarly, when the manufacturer of the cord material is
mentioned, it should be made clear that he did not manufacture the tire.
For example, a tire should be described as ''Brand X Nylon Cord
Material'' and not ''Brand X Nylon Tire.''
(e) Cord material should be identified by its generic name when
referred to in advertising. (Guide 7)
16 CFR 228.8 ''Change-Overs,'' ''New Car Take Offs,'' etc.
Industry products should not be represented as ''Change-Overs'' or
''New Car Take Offs'' unless the products so described have been
subjected to but insignificant use necessary in moving new vehicles
prior to delivery of such vehicles to franchised distributor or
retailer. ''Change-Overs'' or ''New Car Take Offs'' should not be
described as new. Advertisements of such products should include a
clear and conspicuous disclosure that ''Change-Overs'' or ''New Car Take
Offs'' have been subjected to previous use. (Guide 8)
16 CFR 228.9 Retreaded and used tires.
Advertisements of used or retreaded products should clearly and
conspicuously disclose that same are not new products. Unexplained
terms, such as ''New Tread,'' ''Nu-Tread'' and ''Snow Tread'' as
descriptive of such tires do not constitute adequate disclosure that
tires so described are not new. All such tires should be clearly
designated as ''retreads'' or ''retreaded.'' (Guide 9)
16 CFR 228.10 Disclosure that products are obsolete or discontinued
models.
Advertisements should clearly and conspicuously disclose that the
products offered are discontinued models or designs or are obsolete when
such is the fact.
Note: The words ''model'' and ''design'' used in connection with
tires include width, depth, and pattern of the tread as well as other
aspects of their construction.
(Guide 10)
16 CFR 228.11 Blemished, imperfect, defective, etc., products.
Advertisements of products which are blemished, imperfect, or which
for any reason are defective, should contain conspicuous disclosure of
that fact. In addition, such products should have permanently stamped
or molded thereon or affixed thereto and to the wrappings in which they
are encased a plain and conspicuous legend or statement to the effect
that such products are blemished, imperfect, or defective. Such
markings by a legend such as ''XX'' or by a color marking or by any
other code designation which is not generally understood by the public
are not considered to be an adequate disclosure. (Guide 11)
16 CFR 228.12 Pictorial misrepresentations.
(a) It is improper to utilize in advertising, any picture or
depiction of an industry product other than the product offered for
sale. Where price is featured in advertising, any picture or depiction
utilized in connection therewith should be the exact tire offered for
sale at the advertised price.
(b) For example, it would be improper to depict a white side wall
tire with a designated price when the price is applicable to black wall
tires. Such practice would be improper even if a disclosure is made
elsewhere in the advertisement that the featured price is not for the
depicted whitewalls. (Guide 12)
16 CFR 228.13 Racing claims.
(a) Advertising in connection with racing, speed records, or similar
events should clearly and conspicuously disclose that the tires on the
vehicle are not generally available all purpose tires, unless such is
the fact.
(b) The requirement of this section is applicable also to special
purpose racing tires, which although available for such special purpose,
are not the advertiser's general purpose product.
(c) Similarly, designations should not be utilized in conjunction
with any industry product which falsely suggest, directly or indirectly,
that such product is the identical one utilized in racing events or in a
particular event. (Guide 13)
16 CFR 228.14 Bait advertising.
(a) Bait advertising is an alluring but insincere offer to sell a
product which the advertiser in truth does not intend or want to sell.
Its purpose is to obtain leads as to persons interested in buying
industry products and to induce them to visit the member's premises.
After the person visits the premises, the primary effort is to switch
him from buying the advertised product in order to sell something else,
usually at a higher price.
(b) No advertisement containing an offer to sell a product should be
published when the offer is not a bona fide effort to sell the
advertised product. Among the acts and practices which will be
considered in determining if an advertisement is bona fide are:
(1) The advertising of a product at a price applicable only to
unusual or off size tires or for special purpose tires;
(2) The refusal to show or sell the product offered in accordance
with the terms of the offer;
(3) The failure to have available at all outlets listed in the
advertisement a sufficient quantity of the advertised product to meet
reasonably anticipated demands, unless the advertisement clearly and
adequately discloses that the supply is limited and/or the merchandise
is available only at designated outlets;
(4) The disparagement by acts or words of the advertised product or
the disparagement of the guarantee, credit terms, or in any other
respect in connection with it;
(5) Use of a sales plan or method of compensation for salesmen or
penalizing salesmen, designed to prevent or discourage them from selling
the advertised product. (Guide 14)
16 CFR 228.15 Deceptive pricing.
(a) Former price comparisons. One form of advertising in the
replacement market is the offering of reductions or savings from the
advertiser's former price. This type of advertising may take many
forms, of which the following are examples:
Formerly $ ---------- Reduced to $ -------- . 50% Off -- Sale Priced
at $ -------- .
Such advertising is valid where the basis of comparison, that is, the
price on which the represented savings are based, is the actual bona
fide price at which the advertiser recently and regularly sold the
advertised tire to the public for a reasonably substantial period of
time prior to the advertised sale. However, where the basis of
comparison (1) is not the advertiser's actual selling price, (2) is a
price which was not used in the recent past but at some remote period in
the past, or (3) is a price which has been used for only a short period
of time and a reduction is claimed therefrom, the claimed savings or
reduction is fictitious and the purchaser deceived. Following are
examples illustrating the application of this provision:
Example 1. Dealer A advertises a tire as follows: ''Memorial Day
Sale -- Regular price of tire, $15.95 -- Reduced to $13.95.'' During the
preceding 6 months Dealer A has conducted numerous ''sales'' at which
the tire was sold in large quantities at the $13.95 price. The tire was
sold at $15.95 only during periods between the so-called ''sales.'' In
these circumstances, the advertised reduction from a ''regular'' price
of $15.95 would be improper, since that was not the price at which the
tire was recently and regularly sold to the public for a reasonably
substantial period of time prior to the advertised sale.
Example 2. Dealer B engaged in sale advertising weekly on the last 3
days of the week. It was his practice during the selling week to offer
a particular line of tires at $24.95 on Monday, Tuesday, and Wednesday,
and advertise the same line as ''Sale Priced $19.95'' on the final 3
days of the selling week. Use of the price for only 3 days prior to the
reduction, even though the higher price is resumed after 3 days of
''sale'' advertising would not constitute a basis for claiming a price
reduction. The higher price was not the regular selling price for a
reasonably substantial period of time. Furthermore, when the higher
price is used only for the first 3 days of the week and another price is
used for the final 3 days, the higher price has not been established as
a regular price, especially when most sales are made at the lower price
during the final 3-day period.
(b) Trade area price comparisons. (1) Another recognized form of
bargain advertising is to offer tires at prices lower than those being
charged by others for the same tires in the area where the advertiser is
doing business. Examples of this type of advertising where used in
connection with the advertiser's own price are:
Sold Elsewhere at $ -------- .
Retail Value $ -------- .
(2) The tire market, because of its nature, requires that special
care and precaution be exercised before this type of advertising is
used. Trade area price comparisons are understood by purchasers to mean
that the represented bargain is a reduction or saving from the price
being charged by representative retail outlets for the same tires at the
time of the advertisement.
(3) If a tire manufacturer decides to conduct a promotion of a
particular tire, reduces the price in his wholly owned stores and
independent dealers follow the promotion price, the ''sale'' price has
become the retail price in the area and it would be deceptive to
represent that this ''sale'' price is reduced from that charged by
others. In most circumstances where a promotion is sponsored by the
manufacturer and is followed by the wholly owned stores and most of the
independent dealers in the area, such trade area price comparisons would
be improper.
(4) A trade area price comparison would be valid where an individual
dealer, acting on his own, decides to lower the price of a tire
significantly below that being charged by others in his area. In this
situation, he would be honestly offering a genuine reduction from the
price charged by others in his area.
(5) When using a retail price comparison great care should be
exercised to make the advertising clear that the basis of the reduction
or saving is the price being charged by others and not the advertiser's
own former selling price.
(c) Substantiality of reduction or savings. In order for an
advertiser to represent that a price is reduced or offers savings to
purchasers without specifying the extent thereof, it is necessary that
the represented reduction or savings be significant. When the amount of
the reduction or savings is not stated in advertising and is not
substantial enough to attract and influence prospective purchasers if
they knew the true facts, the representation is deceptive.
Example. Dealer C advertises a Fourth of July sale featuring X brand
tires at a claimed reduction in price. The sale price in the
advertisement is stated as $14.75 per tire. The advertisement does not
state the former price of the tire. The tire previously had been sold
at $14.95. Under the circumstances, the advertisement would be
deceptive. The 20-cent reduction in price is insignificant when
compared with the actual selling price of the tire. Purchasers
generally, if they knew the amount of the reduction, would not be
influenced sufficiently thereby to cause them to purchase the tire at
the reduced price.
(d) Representations of specific price reductions and savings. (1)
Advertisements which offer a specified amount or percentage of price
reduction or savings should not be used where there is no determinable
regular selling price, whether it be the advertiser's former price or
the retail price in the area.
(2) The lack of a determinable actual selling price does not preclude
all ''sale'' advertising. For example, if a dealer desires to offer a
tire at a price which represents a significant reduction from the lowest
price in the range of prices at which he has actually sold the tire in
the recent regular course of his business, it would not be deceptive to
advertise the tire with such representations as ''Sale Priced,''
''Reduced'' or ''Save.''
(3) However, an advertiser is not precluded from offering specific
savings from the lowest price at which he has actually sold tires,
provided that the advertising clearly states that the offered savings
are a reduction from the lowest previous selling price and not from the
advertiser's regular selling price.
(e) No trade-in prices. (1) The most common device used in
advertising is to offer a purported reduction or savings from a
so-called ''no trade-in'' price. Prospective purchasers are entitled to
believe this to mean that they would realize a savings from the price
they would have had to pay for the tire prior to the ''Sale,'' either in
cash or in cash plus the fair value of a traded-in tire. If this is not
true, purchasers are deceived. Where a significant number of sales in
relation to a seller's total sales is not made at the so-called ''no
trade-in'' price and such price appreciably exceeds the price purchasers
would normally pay the seller (including the fair value of any
trade-in), use of the price as a basis for claiming a reduction or
savings would be deceptive and contrary to this part.
(2) Representations of high trade-in allowances are sometimes used in
combination with fictitious ''no trade-in'' prices to deceive
purchasers. These may take the form of direct representations that a
specified amount (usually significantly higher than the value of the
tire carcass) will be allowed for a trade-in tire, or, representations
of specific savings in the purchase of a new tire when a tire is traded
in during a ''sale.'' In either case, the purchaser is given the
illusion of a bargain in the guise of a high trade-in allowance which he
does not in fact receive if the amount of the allowance is deducted from
a fictitiously high ''no trade-in'' price.
Example 1. An advertisement offers a 25 percent reduction during a
May tire sale. The body of the advertisement sets forth a ''no
trade-in'' price as the price from which the represented 25 percent
reduction is made. However, such price represents the price at which
only 15 percent of the advertiser's total sales were made and which was
appreciably higher than the price at which the tire usually sold with a
trade-in even with the addition of an amount representing a reasonable,
bona fide trade-in allowance. Use of the ''no trade-in'' price in the
advertisement is deceptive.
Example 2. Dealer D advertises, ''Now Get $4 to $10 Per Tire
Trade-In Allowance'' in connection with the sale of a certain tire.
Dealer D has regularly sold the tire for $12 to customers having a good
recappable tire to offer in trade. During the regular course of Dealer
D's business he has granted allowances ranging from 50 cents to $3,
depending upon the condition of the tire taken in trade. During the
advertised sale, however, Dealer D sells all of the tires at the
manufacturer's suggested ''no trade-in'' price of $22 and deducts from
that price the inflated trade-in allowances. Under the circumstances,
the advertisement would be deceptive. Dealer D has not granted the
allowances in connection with his regular selling price but has used
instead the fictitious ''no trade-in'' price as a basis for offering the
inflated allowances. The consumer has been led to believe that his old
tire is worth far more than its actual value and Dealer D receives what
has been his regular selling price or, in some instances, an amount in
excess of the regular price, depending upon the allowance granted.
(f) Combination offers. (1) Frequent use is made in the tire market
of purported bargain advertising which offers ''free'' or at a
represented reduced price a tire, some other article of merchandise or a
service, with the purchase of one or more tires at a specified price.
The following are typical examples of this type of offer:
Buy 3, get four at no additional cost.
Buy one tire at $ ---- , get second tire at 50% off.
Get a wheel free with purchase of each snow tire.
Free wheel alignment with purchase of two new tires.
Such advertising is understood by purchasers to mean that the price
charged by the advertiser for the initial tire or tires to be purchased
is the price at which they have been regularly sold by the advertiser
for a reasonably substantial period of time prior to the sale, and that
the amount of the purported reduction or the value of the so-called
''free'' article or service represents actual savings. If the price of
the tires to be purchased is not the advertiser's regular selling price,
purchasers are deceived.
Example. Dealer E advertises ''2nd Tire 1/2 Off When You Buy First
Tire At Price Listed Below -- No Trade-In Needed!'' In the body of the
advertisement the first tire is listed as costing $25.15 and the second
tire $12.57. The figure listed as the price for the first tire is not
Dealer E's regular selling price, but the manufacturer's suggested ''no
trade-in'' price. E's regular selling price prior to the so-called sale
had been $18.85 per tire. Under the circumstances, the '' 1/2 Off''
offer would be deceptive. The basis for the advertised offer is not the
advertiser's actual selling price for the tire. While consumers are led
to believe that they are being afforded substantial savings by
purchasing a second tire, in fact they are paying Dealer E's regular
selling price for two tires.
(g) Federal Excise Tax. Since the Federal Excise Tax on tires is
assessed on the manufacturer and is based on the weight of the materials
used and not the retail selling price, the tax should be included in the
price quoted for a particular tire, or the amount of the tax set out in
immediate conjunction with the tire price. For example, assuming the
tax on a particular tire to be $1 and the advertised selling price
$9.95, the price should be stated as ''$10.95'' or ''$9.95 plus $1
Federal Excise Tax'' and not ''$9.95 plus Federal Excise Tax.''
(h) Advertising furnished by tire manufacturers. It is the practice
of some tire manufacturers to supply advertising to independent as well
as to wholly owned retail outlets in local trade areas. A tire
manufacturer providing advertising material to be used in local trade
areas by either wholly owned or independent outlets is responsible for
the representations made in such advertising and should base price and
savings claims on conditions actually existing in the particular areas.
In view of price fluctuations at the local level, the general
dissemination (i.e., in more than one trade area) to independent retail
outlets of advertising material containing stated prices or reduction
claims results in deception1 and is, accordingly, contrary to this part.
(Guide 15)
1This part does not deal with the question of whether such practice
may be improper as contributing to unlawful restraints of trade
connected with the enforcement of the Antitrust Laws and the Federal
Trade Commission Act.
16 CFR 228.16 Guarantees.
(a) In general, any advertising containing a guarantee representation
shall clearly and conspicuously disclose:
(1) The nature and extent of the guarantee. (i) The general nature
of the guarantee should be disclosed. If the guarantee is, for example,
against defects in material or workmanship, this should be clearly
revealed.
(ii) Disclosure should be made of any material conditions or
limitations in the guarantee. This would include any limitation as to
the duration of a guarantee, whether stated in terms of treadwear, time,
mileage, or otherwise. Exclusion of tire punctures also would
constitute a material limitation. If the guarantor's performance is
conditioned on the return of the tire to the dealer who made the
original sale, this fact should be revealed.
(iii) When a tire is represented as ''guaranteed for life'' or as
having a ''lifetime guarantee,'' the meaning of the term ''life'' or
''lifetime'' should be explained.
(iv) Guarantees which under normal conditions are impractical of
fulfillment or for such a period of time or number of miles as to
mislead purchasers into the belief the tires so guaranteed have a
greater degree of serviceability or durability than is true in fact,
should not be used.
(2) The manner in which the guarantor will perform. This consists
generally of a statement of what the guarantor undertakes to do under
the guarantee. Types of performance would be repair of the tire, refund
of purchase price or replacement of the tire. If the guarantor has an
option as to the manner of the performance, this should be expressly
stated.
(3) The identity of the guarantor. The identity of the guarantor
should be clearly revealed in all advertising, as well as in any
documents evidencing the guarantee. Confusion of purchasers often
occurs when it is not clear whether the manufacturer or the retailer is
the guarantor.
(4) Pro rata adjustment of guarantees -- (i) Disclosure in
advertising. Many guarantees provide that in the event of tire failure
during the guarantee period a credit will be allowed on the purchase
price of a replacement tire, the amount of the credit being in
proportion to the treadwear or time remaining under the guarantee. All
advertising of the guarantee should clearly disclose the pro rata nature
of the guarantee and the price basis upon which adjustments will be
made.
(ii) Price basis for adjustments. Usually under this type of
guarantee the same predetermined amount is used as a basis for the
prorated credit and the purchase price of the replacement tire. If this
so-called ''adjustment'' price is not the actual selling price but is an
artificial, inflated price the purchaser does not receive the full value
of his guarantee. This is illustrated by the following example:
''A'' purchases a tire which is represented as being guaranteed for
the life of the tread. After 75 percent of the tread is worn, the tire
fails. The dealer from whom ''A'' seeks an adjustment under his
guarantee is currently selling the tire for $15 but the ''adjustment''
price of the tire is $20. ''A'' receives a credit of 25 percent or $5
toward the price of the replacement tire. This credit is applied not on
the actual selling price but on the artificial ''adjustment'' price of
$20. Thus, ''A'' pays $15 for the new tire which is the current selling
price of the tire.
Under the facts described in this illustration the guarantee was
worthless as the purchaser could have purchased a new tire at the same
price without a guarantee. If 50 percent of the tread remained when the
adjustment was made, the purchaser would have received a credit of $10
toward the $20 replacement price. He must still pay $10 for a
replacement tire. Had the adjustment been made on the basis of the
actual selling price he would have obtained a new tire for $7.50. Thus,
while deriving some value from his guarantee he did not receive the
value he had reason to expect under the guarantee.
(b) Accordingly, to avoid deception of purchasers as to the value of
guarantees, adjustments should be made on the basis of a price which
realistically reflects the actual selling price of the tire. The
following would be considered appropriate price bases for making
guarantee adjustments:
(1) The original purchase price of the guaranteed tire; or
(2) The adjusting dealer's actual current selling price at the time
of adjustment; or
(3) A predetermined price which fairly represents the actual selling
price of the tire.
Whenever an advertisement for tires includes reference to a
guarantee, the advertisement should also disclose, clearly and
conspicuously, the price basis on which adjustments will be made. Such
disclosure of the price basis for adjustments should be in terms of
actual purchase or selling price, e.g., original purchase price,
adjusting dealer's current selling price, etc. A mere reference to a
guarantor's ''adjustment price,'' for example, would not satisfy this
disclosure requirement. In addition, written material disclosing the
basis for adjustments should be made available to prospective purchasers
at the point of sale, and if the third method of adjustment is chosen,
such written material should include the actual price on which guarantee
adjustments will be made. (Guide 16)
16 CFR 228.17 Safety or performance features.
Absolute terms such as ''skidproof,'' ''blowout proof,'' ''blow
proof,'' ''puncture proof'' should not be unqualifiedly used unless the
product so described affords complete and absolute protection from
skidding, blowouts, or punctures, as the case may be, under any and all
driving conditions. (Guide 17)
16 CFR 228.18 Other claims and representations.
(a) No claim or representation should be made concerning an industry
product which directly, by implication, or by failure to adequately
disclose additional relevant information, has the capacity or tendency
or effect of deceiving purchasers or prospective purchasers in any
material respect. This prohibition includes, but is not limited to,
representations or claims relating to the construction, durability,
safety, strength, condition or life expectancy of such products.
(b) Also included among the prohibitions of this section are claims
or representations by members of this industry or by distributors of any
component parts of materials used in the manufacture of industry
products, concerning the merits or comparative merits (as to strength,
safety, cooler running, wear, or resistance to shock, heat, moisture,
etc.) of such products, components or materials, which are not true in
fact or which are otherwise false or misleading. (Guide 18)
16 CFR 228.19 Snow tire advertising.
Many manufacturers are now offering winter tread tires with metal
spikes. Certain States, or other jurisdictions, however, prohibit the
use of such tires because of possible road damage. Accordingly, in the
advertising of such products, a clear and conspicuous statement should
be made that the use of such tires is illegal in certain States or
jurisdictions. Further, when such tires are locally advertised in areas
where their use is prohibited, a clear and conspicuous statement to this
effect must be included. (Guide 19)
16 CFR 228.19 PART 229 -- GUIDES FOR ADVERTISING FALLOUT SHELTERS
Sec.
229.0 Definitions.
229.1 Fallout and blast protection.
229.2 Installation.
229.3 Affirmative disclosures as to capacity.
229.4 Pictorial and other misrepresentations.
229.5 Deceptive prices.
229.6 Financial terms.
229.7 Guarantees.
229.8 Government connection, approval or endorsement.
229.9 Maintenance or repairs.
229.10 ''Custom made,'' ''custom built,'' etc.
229.11 Model shelters.
229.12 Combination or dual-purpose shelters.
229.13 Bait advertising.
229.14 Lottery schemes.
229.15 Scare tactics.
Authority: Secs. 5, 6, 38 Stat. 719, as amended, 721; 15 U.S.C.
45, 46.
Source: 32 FR 15529, Nov. 8, 1967, unless otherwise noted.
16 CFR 229.0 Definitions.
(a) Fallout shelter. A structure which, when properly installed, has
a protection factor against fallout gamma radiation of at least 40.
Protection factor is the relative reduction in the amount of radiation
that would be received by a person in a shelter compared with the amount
which he would receive if unprotected. For example, an unprotected
person would receive 40 times more radiation than a person in a shelter
with a protection factor of 40.
(b) Blast-resistant or limited blast-resistant shelter. A structure
which qualifies as a fallout shelter and, in addition, is capable of
affording a certain minimum amount of protection against the effects of
a blast overpressure and associated nuclear and thermal radiation. To
qualify as a ''blast-resistant shelter'' a structure must be capable of
withstanding an overpressure of at least 25 pounds per square inch
(psi). To qualify as a ''limited blast-resistant shelter'' a structure
must be capable of withstanding an overpressure of at least 5 psi. For
example, 5 psi overpressure would occur at a range of about 8 1/2 miles
from a 10 megaton, and about 18 miles from a 100 megaton explosion. 30
psi overpressure would occur at a range of about 2 1/2 miles from a 10
megaton, and about 5 miles from a 100 megaton explosion.
Note: These definitions are based upon the minimum technical
requirements established by the Office of Civil Defense, Department of
Defense.
16 CFR 229.1 Fallout and blast protection.
(a) A structure shall not be described or designated as a ''fallout
shelter,'' or by any other term of like implication, nor shall any
representation be made that a structure affords protection against
radioactive fallout, unless such structure meets the minimum
requirements set forth in the foregoing definition of a ''fallout
shelter.''
(b) A structure shall not be described or designated as a ''blast
shelter'' or by any other term of like implication.
(c) A structure shall not be described or designated as a
''blast-resistant shelter'' or a ''limited blast-resistant shelter,'' or
by any other term of like implication, unless it meets the applicable
minimum requirements set forth in this part.
(d) No representation, express or implied, shall be made that a
structure affords protection against nuclear blast unless such structure
meets the minimum requirements for a ''limited blast-resistant
shelter.''
(e) No advertisement for, or representation as to the characteristics
or capabilities of, any structure designated as a ''fallout shelter,''
''blast-resistant shelter,'' ''limited blast-resistant shelter,'' or any
other term of like implication, shall be used without the inclusion of
an affirmative disclosure, in clear and conspicuous terms, of the limits
of the protection provided by such structure.
Example 1. With reference to a fallout shelter which does not
qualify as a ''limited blast-resistant shelter,'' the advertisement
should disclose that the structure has not been designed to afford
protection against blast or other related hazards.
Example 2. If the structure qualifies as a ''limited blast-resistant
shelter'' or a ''blast-resistant shelter,'' the advertisement should
disclose that the structure, when properly installed, will protect its
occupants from a blast of a stated force (such as 10 megatons) occurring
an approximate number of miles distant, as set forth in the examples in
229.0(b).
(f) If a structure meets the minimum requirements for a ''fallout
shelter,'' factual and nondeceptive representations may be made as to
the degree and nature of fallout protection afforded. Claims that the
fallout protection afforded exceeds the requirements shall not be used,
however, unless the protection so afforded exceeds the prescribed
minimum to a significant degree.
(g) Claims, express or implied, of absolute or complete protection
from fallout or blast under any and all conditions shall not be used.
(Guide 1)
16 CFR 229.2 Installation.
(a) Any advertisement offering a shelter shall disclose affirmatively
that the structure must be properly installed before it can provide
protection as a shelter.
(b) No representation shall be made that a shelter can be installed
in one day or in any other period of time, unless the installation can
in fact be completed within the stated period.
(c) Statements which deceptively exaggerate the ease or economy with
which a shelter can be installed shall not be used. (Guide 2)
16 CFR 229.3 Affirmative disclosures as to capacity.
(a) Whenever any representation is made which conveys any implication
as to the size or capacity of the advertised shelter, the advertisement
must clearly and conspicuously disclose the number of persons the
shelter will protect.
(b) Advertisements containing pictures, a quoted price, the use of
the word ''family,'' are examples of the type of representations which
are subject to the above requirement.
(c) Minimum standard requirements of the Office of Civil Defense in
effect at the time the advertised offer is made will be applied in
determining the number of persons that the shelter can protect. These
requirements take into account the floor space, the air space (cubic
volume of the shelter), and the quantity of fresh air required by each
person occupying the shelter. (Guide 3)
16 CFR 229.4 Pictorial and other misrepresentations.
(a) No advertisement shall be used which would mislead prospective
buyers, through pictorial representations, or in any other manner, as to
the protection afforded by a shelter or as to the size, composition,
construction, design, capacity, quality, cost or manner of installation,
fire or water-resistant properties, location, or utility of a shelter or
any part thereof, or which would be misleading in any other material
respect.
(b) All construction items featured in a pictorial representation
must be included in the price stated in the advertisement.
Example 1. Picturization of fallout shelters which imply protection
against blast effects but which are not capable of providing this
protection shall not be used.
Example 2. An advertisement shall not feature the picture of a
higher-priced shelter in conjunction with the price of a lower-priced
shelter, thus leading consumers to believe the higher-priced model can
be purchased at the lower price.
(Guide 4)
16 CFR 229.5 Deceptive prices.
(a) No statement, express or implied, shall be used which
misrepresents prices or savings in any manner.
(b) Claims that the price offer is for a limited time only or that
there will be an increase in price shall not be used unless in fact
true.
(c) Advertised or quoted prices shall include the cost of all parts
of the structure which are essential to its functioning as a shelter.
(d) Advertised or quoted prices also shall include all charges for
the delivery and installation of the shelter, unless the advertisement
clearly and conspicuously discloses that delivery or installation
charges are not included.
Note: The Guides Against Deceptive Pricing furnish guidance
respecting other pricing representations and are to be considered as
supplementing this section.
(Guide 5)
16 CFR 229.6 Financial terms.
(a) Installment purchase plans shall not be misrepresented in any
manner nor shall an advertiser claim that loans from any lending
institution are available, or that such loans may be insured by the
Federal Housing Administration, unless such is the fact.
(b) Down payments shall not be quoted in such a manner as to imply
that the down payment constitutes the entire price.
(c) If a shelter is offered at a quoted price under an installment
plan which requires additionally the payment of carrying charges, the
fact that carrying charges are to be added to the advertised price must
be disclosed.
(d) If an interest rate is quoted, it must be simple interest per
annum calculated on the basis of the unpaid balance due as reduced after
crediting installments as paid. (Guide 6)
16 CFR 229.7 Guarantees.
A guarantee shall not be used in such a manner as to constitute a
misrepresentation of a material fact. For example, ''guaranteed fallout
proof'' is a representation that complete protection against fallout is
afforded under all conditions. This would constitute a
misrepresentation of a material fact, contrary to the provisions of
229.1 of this part.
Note: The Guides Against Deceptive Advertising of Guarantees furnish
guidance respecting other guarantee representations and are to be
considered as supplementing this section.
(Guide 7)
16 CFR 229.8 Government connection, approval or endorsement.
If a shelter design meets the minimum requirements of the Office of
Civil Defense, the advertiser may reveal this fact in advertising. Even
though the shelter design meets the aforementioned requirements,
however, an advertiser shall not represent that the shelter has been
approved or endorsed by the Government or is being offered by an agency
of the Government. Thus, the use of seals, insignia, trade or brand
names, or any other term or symbol implying Government connection,
approval, or endorsement shall not be used in advertising. (Guide 8)
16 CFR 229.9 Maintenance or repairs.
No statement shall be made which misrepresents the extent to which
maintenance, repairs or replacement of a shelter or parts thereof may be
required. (Guide 9)
16 CFR 229.10 ''Custom made,'' ''custom built,'' etc.
Claims that a shelter is ''custom made,'' ''custom built,'' or
representations of similar import, shall not be used unless the shelter
is to be designed and built specially for the particular purchaser.
(Guide 10)
16 CFR 229.11 Model shelters.
An advertiser shall not claim that prospective purchasers' homes have
been selected for the installation of ''model shelters,'' or that the
owners thereof will receive any amount of money, a reduction in price or
other thing of value conditioned upon the sale to others of similar
shelters, when such is not the fact. (Guide 11)
16 CFR 229.12 Combination or dual-purpose shelters.
Claims to the effect that a shelter serves a combination or dual
purpose shall not be used unless factually true. If a shelter can in
fact be utilized for other purposes which would not interfere with its
use as a shelter, factual and nondeceptive representations as to such
other utilization may be made. (Guide 12)
16 CFR 229.13 Bait advertising.
An advertiser shall not offer a shelter for sale unless such offer is
made in good faith for the purpose of selling the advertised shelter.
Insincere offers to sell, made for the purpose of contacting prospective
purchasers and switching them to a shelter other than the shelter
advertised, are not to be used. (Guide 13)
16 CFR 229.14 Lottery schemes.
Sales promotional plans involving lottery shall not be used. (Guide
14)
16 CFR 229.15 Scare tactics.
Scare tactics, such as the employment of horror pictures calculated
to arouse unduly the emotions of prospective shelter buyers, shall not
be used. (Guide 15)
16 CFR 229.15 PART 230 -- GUIDES FOR ADVERTISING SHELL HOMES
Sec.
230.1 Extent of completion.
230.2 Size or dimensions.
230.3 Pictorial representations.
230.4 Savings.
230.5 Financial terms.
230.6 Bait advertising.
230.7 Guarantees.
230.8 Model homes.
230.9 Delivery and installation.
Authority: Secs. 5, 6, 38 Stat. 719, as amended, 721; 15 U.S.C.
45, 46.
Source: 32 FR 15531, Nov. 8, 1967, unless otherwise noted.
16 CFR 230.1 Extent of completion.
(a) Since the typical shell home does not include such features as
wiring, plumbing, heating, interior trim and finish, or other requisite
components, an advertiser may not represent that the home is finished or
completed to any degree inconsistent with the facts.
(b) For example, an advertiser may not claim that the home in its
unfinished state is habitable, or that it has appliances, fixtures,
equipment, material or services which are not actually included at the
time it is accepted by the purchaser.
(c) In every case the advertiser must clearly and conspicuously
disclose it is a shell home. (Guide 1)
16 CFR 230.2 Size or dimensions.
(a) An advertiser shall not misrepresent, pictorially or through any
other means, the overall size or dimension of the home or the rooms or
space therein.
(b) This section prohibits misrepresentation through the use of
picturizations, as well as the publication of figures which exaggerate
the size or dimension. (Guide 2)
16 CFR 230.3 Pictorial representations.
(a) All construction items featured in a pictorial representation,
such as a porch, carport, chimney, steps, etc., must be included in the
price quoted in the advertisement.
(b) An advertisement shall not feature the picture of a higher-priced
home in conjunction with the price of a lower-priced home, thus leading
prospective purchasers to believe the higher-priced home can be
purchased at the lower price.
(c) If the price of any home other than the one pictured in the
advertisement is quoted, the price of the pictured home must be
disclosed and quoted with equal size and conspicuousness. (Guide 3)
16 CFR 230.4 Savings.
(a) If savings claims are made (1) the basis for the comparison must
be clearly disclosed, (2) the savings must be factually true, and (3)
the advertising must clearly disclose: (i) That the buyer must furnish
the remaining material and (ii) that the saving, if any, is based upon
the buyer completing the remainder of the work.
(b) For example, if the advertiser has a factually true savings claim
to make in comparison either with a project type or custom-built home,
he must disclose the type of home with which the comparison is being
made.
(c) In determining whether the savings claim is factually true, the
comparison must be based upon a home of like quality, material, size,
design and workmanship in the same general locality where the shell home
is to be built.
(d) If savings claims other than those outlined in paragraphs (a),
(b), and (c) of this section, are utilized, the claim must meet the
applicable provisions of the Commission's Guides Against Deceptive
Pricing. (Guide 4)
16 CFR 230.5 Financial terms.
(a) Installment purchase plans shall not be misrepresented in any
manner. This section prohibits claims to the effect that loans are
available from any particular lending institution or through a
particular lending program, or that loans are federally insured, or that
the seller will finance the purchaser's indebtedness, unless such is the
fact.
(b) Down payments shall not be quoted in such a manner as to imply
that the down payment constitutes the entire price.
(c) Claims such as ''No Money Down'' shall not be used unless
factually true. Moreover, where such claims are predicated on the
existence of other material conditions, such as the possession of a lot
free and clear of encumbrances equal in value to 5 percent of the cost
of the shell home, such condition or conditions must be clearly and
conspicuously disclosed in the advertising.
(d) If a home is advertised at a quoted price under an installment
plan which requires additionally the payment of interest, carrying
charges, down payment, or premiums for credit life insurance, the fact
that such costs are to be added to the advertised price must be clearly
disclosed. If monthly payments are quoted, the duration of the payments
must be disclosed. Additionally, if terminal payments significantly
larger than the advertised monthly payments are required, this fact must
also be clearly disclosed as well as the amount thereof.
(e) A seller shall not procure the signature of purchasers on
negotiable promissory notes without revealing to such purchasers they
are signing a negotiable promissory note which may be discounted and
also revealing the amount, terms, and conditions of such instrument.
(f) If an interest rate is quoted in advertising, it must be simple
interest per annum calculated on the basis of the unpaid balance due as
reduced after crediting installments as paid. (Guide 5)
16 CFR 230.6 Bait advertising.
(a) An advertiser shall not offer a home for sale unless such offer
is made in good faith for the purpose of selling the advertised home.
Insincere offers to sell, made for the purpose of contacting prospective
purchasers and switching them to a home other than the home advertised,
shall not be used.
(b) Even though the true facts are subsequently made known to the
buyer, the law is violated if the first contact or interview is secured
by deception.
Note: The Guides Against Bait Advertising furnish specific guidance
in regard to bait practices and are to be considered as supplementing
this section.
(Guide 6)
16 CFR 230.7 Guarantees.
In general, any guarantee in advertising shall clearly and
conspicuously disclose:
(a) The nature and extent of the guarantee. This includes disclosure
of:
(1) What product or part of the product is guaranteed,
(2) What characteristics or properties of the designated product or
part thereof are covered by, or excluded from, the guarantee,
(3) What is the duration of the guarantee,
(4) What, if anything, any one claiming under the guarantee must do
before the guarantor will fulfill his obligation under the guarantee,
such as return of the product and payment of service or labor charges;
and
(b) The manner in which the guarantor will perform. This consists
primarily of a statement of exactly what the guarantor undertakes to do
under the guarantee. Examples of this would be repair, replacement or
refund. If the guarantor or the person receiving the guarantee has an
option as to what may satisfy the guarantee this should be set out; and
(c) The identity of the guarantor. The identity of the guarantor
should be clearly revealed in all advertising, as well as in any
documents evidencing the guarantee. Confusion of purchasers often
occurs when it is not clear whether the manufacturer or the builder is
the guarantor.
Note: The Guides Against Deceptive Advertising of Guarantees furnish
guidance respecting other guarantee representations and are to be
considered as supplementing this section.
(Guide 7)
16 CFR 230.8 Model homes.
An advertiser shall not claim that a prospective buyer has been
''selected'' or that his home will be used as a ''model'' or
''demonstration,'' or that the owner thereof will receive any amount of
money, a reduction in price or other thing of value conditioned upon the
sale of similar homes to others, unless such representation is factually
true. (Guide 8)
16 CFR 230.9 Delivery and installation.
(a) Advertised or quoted prices shall include all charges for
delivery and installation of the home, unless the advertisement clearly
and conspicuously discloses that delivery or installation charges are
not included.
(b) Representations that a home will be delivered or installed within
a specified period of time shall not be used unless factually true.
(Guide 9)
16 CFR 230.9 PART 231 -- GUIDES FOR SHOE CONTENT LABELING AND ADVERTISING
16 CFR 230.9 Subpart A -- Labeling
Sec.
231.1 Labeling in general.
231.2 Simulated or imitation leather.
231.3 Concealed innersoles.
231.4 Split leather.
231.5 Embossed or processed leather.
231.6 Ground or shredded leather.
16 CFR 230.9 Subpart B -- Advertising
231.7 Disclosures in advertising.
Authority: Secs. 5, 6, 38 Stat. 719, as amended, 721; 15 U.S.C.
45, 46.
Source: 32 FR 15532, Nov. 8, 1967, unless otherwise noted.
16 CFR 230.9 Subpart A -- Labeling
16 CFR 231.1 Labeling in general.
(a) (1) The term ''leather'' and other terms suggestive of leather
may be unqualifiedly used in the labeling of shoes and slippers only
when the shoes or slippers are composed in all substantial parts of top
grain leather, exclusive of heels, stiffenings and ornamentation.
(2) If a shoe or slipper is composed in substantial part of leather,
such terms may be used if immediately qualified to show clearly what
part or parts are of leather, provided the other requirements of this
part are met and provided further that no reference to leather content
shall be so emphasized as to exaggerate or otherwise deceptively
represent the quantity, quality or extent of leather present.
(3) The unqualified term ''leather'' and other terms suggestive of
leather may not be used to describe shoes and slippers or parts thereof
made from split leather or from ground, pulverized or shredded leather.
The term may be used if qualified so as to provide an accurate,
nondeceptive description of the split leather or the ground, pulverized
or shredded leather content.
(b) In the labeling of shoes and slippers, no trade name, coined
name, trade-mark, depiction, symbol, or other words or terms may be
used, which would tend to convey the impression that the shoes or
slippers are made of a certain kind or type of material when they are
not.
(c) Examples of words and terms prohibited by this section, when
applied to nonleather material are:
''Duraleather.''
''Barkhyde.''
(d) All labeling disclosures required by this subpart A must be in
the form of stamps, tags or labels imbedded in or attached to the
product itself and so affixed as to remain thereon until completion of
the sale to the retail customer. The disclosures required need not be
in a single location or on the same stamp, tag or label, but they must
all be easily and readily observed and understood upon casual inspection
of the shoes or slippers. (Guide 1)
16 CFR 231.2 Simulated or imitation leather.
Shoes or slippers composed either wholly, or in any part other than
heels, of visible, or partly visible, nonleather material having the
appearance of leather, or split leather, must bear labeling which
clearly identifies the part or parts so composed and which clearly
discloses either:
(a) The material is simulated or imitation leather, or
(b) The general nature of the material in such manner as will show it
is not leather or split leather.
(c) Examples of disclosures which will meet the requirements of this
section, when justified by the facts, are:
''Outersole, innersole and linings composed of imitation leather,''
or ''imitation leather shoeboard.''
''Midsoles composed of cellulose fibres,'' or ''cellulose fibre
shoeboard.''
''Sock lining, quarter lining and heel pad are imitation leather made
from ground leather fibres.''
''Vinyl linings.''
(d) A disclosure that will not meet the requirements of this section
is:
''Shoeboard innersole.''
(Guide 2)
16 CFR 231.3 Concealed innersoles.
(a) Shoes or slippers containing innersoles of nonleather material
which are concealed from view, but which also contain other visible
parts of leather, must bear a label clearly disclosing the presence of
the nonleather innersole.
(b) Examples of disclosures which will meet the requirements of this
section are:
''Innersole of nonleather shoeboard.''
''Innersole of cellulose fibre'' or ''cellulose fibre shoeboard.''
''Innersole of rubberized felt.''
(c) A disclosure which will not meet the requirements of this section
is:
''Shoeboard Innersole.''
(Guide 3)
16 CFR 231.4 Split leather.
(a) Shoes or slippers composed either wholly or in part of visible
split leather which simulates top grain leather must bear a label
clearly disclosing the material is split leather and clearly identifying
the part or parts to which the disclosure applies. (Leather made from
portions of hides or skins which have been split into two or more
thicknesses, other than the grain or hair side, shall be considered
split leather.)
(b) Example of disclosures which will meet the requirement of this
section is:
''Upper composed or split cowhide.''
(Guide 4)
16 CFR 231.5 Embossed or processed leather.
(a) Shoes or slippers composed either wholly or in part of visible
leather which has been embossed, dyed, or otherwise processed, so as to
simulate the appearance of a different kind or type of leather, must
bear a label clearly disclosing the kind or type of leather of which
they are actually made.
(b) If representations as to the leather appearance of the shoes or
slippers are made, the label must reveal the simulated or imitation
nature of the visible surface, and the disclosure as to the true
composition of the material must be set forth in immediate conjunction
with such representations.
Example. ''Simulated alligator made of split cowhide.''
(Guide 5)
16 CFR 231.6 Ground or shredded leather.
Shoes or slippers, composed either wholly or in part of visible
ground, pulverized or shredded leather that has the appearance of being
leather must bear a label clearly identifying the part or parts involved
and clearly disclosing either:
(a) The material is simulated or imitation leather, or
(b) The material is of ground, pulverized or shredded leather.
(Guide 6)
16 CFR 231.6 Subpart B -- Advertising
16 CFR 231.7 Disclosures in advertising.
(a) Whenever a shoe or slipper is visually depicted in advertising,
including catalogs, with sufficient clarity so that the picturization
itself would have a tendency to create the impression that pictorially
visible nonleather parts exclusive of heels are composed of leather or
split leather or that pictorially visible leather parts exclusive of
heels are composed of a different kind or type of leather than is the
case, the advertising must contain a statement clearly and conspicuously
disclosing either:
(1) The visible part or parts are simulated or imitation leather, or
(2) The general nature of the visible part or parts in such manner as
will show they are not leather or not the type of leather depicted.
Example. An advertisement contains a picture of a shoe in sufficient
detail as to lead a casual reader to expect the upper and linings were
composed of leather. This advertisement must disclose the true
composition of these parts or disclose that they are imitation leather.
(b) The term ''leather'' and other terms suggestive of leather may be
unqualifiedly used in advertising of shoes and slippers only when the
shoes or slippers are composed in all substantial parts of top grain
leather, exclusive of heels, stiffenings and ornamentation.
(1) If a shoe or slipper is composed in substantial part of leather,
such terms may be used in advertising if immediately qualified to show
clearly what part or parts are of leather, provided no reference to
leather content shall be so emphasized as to exaggerate or otherwise
deceptively represent the quantity, quality or extent of leather
present.
(2) The unqualified term ''leather'' and other terms suggestive of
leather may not be used to describe shoes and slippers or parts thereof
made from split leather or from ground, pulverized or shredded leather.
The term may be used if qualified so as to provide an accurate,
nondeceptive description of the split leather or the ground, pulverized
or shredded leather content.
(3) Terms suggestive of leather may be used to describe the
appearance of a nonleather material which has the appearance of leather
if immediately accompanied by a disclosure that the term refers only to
the appearance and that the material is not leather.
Example. ''Imitation Alligator.''
(c) In the advertising of shoes and slippers, no trade name, coined
name, trade-mark, depiction, symbol, or other words or terms may be used
which would tend to convey the impression that the shoes or slippers
advertised are made of a certain kind or type of material when they are
not.
(d) Examples of words and terms prohibited by this section, when
applied to nonleather material are:
''Duraleather.''
''Barkhyde.''
(Guide 7)
16 CFR 231.7 PART 232 -- GUIDES FOR ADVERTISING RADIATION MONITORING
INSTRUMENTS
Sec.
232.0 Application.
232.0-1 Explanation of terms.
232.1 Products adequate for home civil defense use.
232.2 Products of limited home civil defense use -- affirmative
disclosures of limitations.
232.3 Representations for toys, novelties, etc.
232.4 Representations for professional monitoring instruments.
232.5 Representations requiring qualifications.
232.6 Government approval or endorsement.
232.7 Performance claims and other representations.
Authority: Secs. 5, 6, 38 Stat. 719, as amended, 721; 15 U.S.C.
45, 46.
Source: 32 FR 15533, Nov. 8, 1967, unless otherwise noted.
16 CFR 232.0 Application.
This part is applicable to the advertising of instruments, devices or
other products which are represented in any manner to be of use to the
general public for detecting or measuring fall-out radiation. All forms
of advertising, labeling and other promotional material, however,
disseminated, are within the scope of this part.
16 CFR 232.0-1 Explanation of terms.
As used in this part:
(a) ''Gamma radiation'' refers to the high energy radiation which
would be given off by radioactive fallout particles and would present
the major radiation hazard for the first few weeks after a nuclear
attack;
(b) ''Roentgen'' refers to the standard unit of measure for the
amount (dose) of gamma radiation exposure;
(c) ''Dosimeter'' refers to an instrument or device designed to
measure the accumulated amount (total dose) of gamma radiation to which
an individual or area has been exposed during the period of measurement;
(d) ''Rate meter'' refers to an instrument or device designed to
measure the intensity (dose rate) of gamma radiation existing at the
time and place of measurement;
(e) ''Official Federal Emergency Management Agency (FEMA) Criteria''
refers to the ''Criteria for Radiation Instruments for Use by the
General Public''1 as published by the Federal Emergency Management
Agency, Washington, DC 20472.
(32 FR 15533, Nov. 8, 1967, as amended at 48 FR 11104, Mar. 16, 1983)
1Copies of the ''Criteria for Radiation Instruments for Use by the
General Public'' are available upon request from the Federal Emergency
Management Agency, Washington, DC 20472.
16 CFR 232.1 Products adequate for home civil defense use.
(a) A product should not be represented, directly or by implication,
as providing an adequate means whereby families or individual users may
detect or measure radiation resulting from a nuclear attack, unless the
product meets the Official FEMA Criteria in all material respects.
(b) The following are some examples of products which would fail, in
material respects, to meet the Official FEMA Criteria:
Example 1. A rate meter which will not measure (indicate
quantitatively) gamma radiation dose rates from 1 to at least 100
roentgens per hour and give positive indication when the dose rate is
between 100 roentgens per hour and 1,000 roentgens per hour;
Example 2. A dosimeter which will not measure (indicate
quantitatively) accumulated doses of gamma radiation:
a. From zero to at least 600 roentgens, or
b. From zero to at least 200 roentgens (when provision is made for
resetting the instrument's indicator back to zero to permit further
use);
Example 3. A rate meter which will not provide a measure of gamma
radiation within an over-all accuracy of plus or minus 35 percent of the
true gamma radiation intensity (dose rate);
Example 4. A dosimeter which will not measure gamma radiation within
an over-all accuracy of plus or minus 25 percent of the true accumulated
amount (total dose) of gamma radiation;
Example 5. An instrument, the operation of which would be materially
affected by temperature changes, habitable altitudes, high humidity and
other climatic and weather conditions, or by prolonged periods of
storage:
Example 6. An instrument or device which would require the user to
evaluate the radiation dose or dose rate by nothing more than his
interpretation of variations in tone, brightness, loudness, color or
photographic densities.
(Guide I)
(32 FR 15533, Nov. 8, 1967, as amended at 48 FR 11104, Mar. 16, 1983)
16 CFR 232.2 Products of limited home civil defense use -- affirmative
disclosures of limitations.
A product which does not meet the official FEMA criteria in all
material respects, but which would be of some significant use in
detecting and measuring fallout radiation, should not be represented,
directly or by implication, as providing any means whereby members of
the general public could detect or measure radiation resulting from a
nuclear attack, unless all advertising, labeling and promotional
material used therefor clearly and conspicuously disclose all material
respects in which the product fails to meet the official FEMA criteria.
(Guide II)
(32 FR 15533, Nov. 8, 1967, as amended at 48 FR 11104, Mar. 16, 1983)
16 CFR 232.3 Representations for toys, novelties, etc.
Products which cannot be relied on to serve a significant purpose in
detecting and measuring radiation after a nuclear attack, should not be
advertised or labeled in any manner which would convey the impression
that the product would fulfill any such home civil defense need. (Guide
III)
16 CFR 232.4 Representations for professional monitoring instruments.
Professional, industrial, laboratory and other types of products
designed for specialized radiation monitoring, but which would not be of
practical use for some significant home civil defense need, should not
be represented in any manner that would convey the impression that the
product would be useful for home civil defense purposes. (Guide IV)
16 CFR 232.5 Representations requiring qualifications.
(a) Representations which are susceptible of more than one
interpretation, one or more of which would be misleading, should be
qualified to remove the deceptive implications.
Example 1. Claims implying that radiation monitoring instruments
provide ''protection'' from fallout radiation are misleading because
such instruments only detect and measure radiation. Shelter is required
for protection against radiation hazards. Therefore, any statement
implying that monitoring instruments afford protection, such as, ''Help
Protect the Family,'' should be properly qualified.
Example 2. Such representations as ''Detect and Measure Radiation''
should be qualified so as to make it clear that the advertised product
would be adequate for measuring only dose rates or only total doses of
gamma radiation, as the case may be, unless the product adequately
provides for making both types of measurements.
(b) Representations which cannot be qualified without the
qualification amounting to a contradiction should not be used.
Example 1. Representations such as ''100 percent Accurate'' and
''Fully Accurate,'' or any other expressions implying that an instrument
would be completely accurate under all possible conditions of use,
should not be used unless true in fact, because any qualification would
amount to a contradiction.
Example 2. If a product does not include an adequate dosimeter and
an adequate rate meter it should not be represented as a ''Complete
Family Kit,'' because any qualification of that claim, or one of similar
meaning, would necessarily contradict the implication that a family
would need nothing more than the kit to satisfy its basic radiation
monitoring needs.
(c) Qualifications or disclosures should be made clearly and
conspicuously in close conjunction with any representation which makes
the qualification or disclosure necessary, and should have sufficient
prominence to be observed by casual readers. Qualifications and
disclosures should not be deceptively deemphasized through use of small
print, asterisks, footnotes or by any other means. (Guide V)
16 CFR 232.6 Government approval or endorsement.
If a product meets the official FEMA criteria, the advertiser may
reveal this fact in advertising. However, even though the product meets
such criteria, an advertiser should not represent in any manner that the
product is being offered by, or has been approved, accepted, recommended
or otherwise endorsed by the Government or any agency thereof. Thus,
representations, pictures, seals, insignia, trade or brand names, or any
other term or symbol which would imply any Government connection,
approval or any other form of governmental endorsement, should not be
used. (Guide VI)
(32 FR 15533, Nov. 8, 1967, as amended at 48 FR 11104, Mar. 16, 1983)
16 CFR 232.7 Performance claims and other representations.
No representation should be made, in any manner, which would mislead
prospective purchasers concerning:
(a) A product's manner of performance, capabilities, reliability,
utility, durability, or shock-resistant or moisture-resistant
properties; or
(b) The ease or simplicity with which a product may be operated,
interpreted, calibrated, tested, repaired or maintained. (Guide VII)
Note: The Federal Trade Commission's Guides Against Deceptive
Pricing and Guides Against Deceptive Advertising of Guarantees furnish
guidance respecting price and guarantee representations.
16 CFR 232.7 PART 233 -- GUIDES AGAINST DECEPTIVE PRICING
Sec.
233.1 Former price comparisons.
233.2 Retail price comparisons; comparable value comparisons.
233.3 Advertising retail prices which have been established or
suggested by manufacturers (or other nonretail distributors).
233.4 Bargain offers based upon the purchase of other merchandise.
233.5 Miscellaneous price comparisons.
Authority: Secs. 5, 6, 38 Stat. 719, as amended, 721; 15 U.S.C.
45, 46.
Source: 32 FR 15534, Nov. 8, 1967, unless otherwise noted.
16 CFR 233.1 Former price comparisons.
(a) One of the most commonly used forms of bargain advertising is to
offer a reduction from the advertiser's own former price for an article.
If the former price is the actual, bona fide price at which the article
was offered to the public on a regular basis for a reasonably
substantial period of time. It provides a legitimate basis for the
advertising of a price comparison. Where the former price is genuine,
the bargain being advertised is a true one. If, on the other hand, the
former price being advertised is not bona fide but fictitious -- for
example, where an artificial, inflated price was established for the
purpose of enabling the subsequent offer of a large reduction -- the
''bargain'' being advertised is a false one; the purchaser is not
receiving the unusual value he expects. In such a case, the ''reduced''
price is, in reality, probably just the seller's regular price.
(b) A former price is not necessarily fictitious merely because no
sales at the advertised price were made. The advertiser should be
especially careful, however, in such a case, that the price is one at
which the product was openly and actively offered for sale, for a
reasonably substantial period of time, in the recent, regular course of
his business, honestly and in good faith -- and, of course, not for the
purpose of establishing a fictitious higher price on which a deceptive
comparison might be based. And the advertiser should scrupulously avoid
any implication that a former price is a selling, not an asking price
(for example, by use of such language as, ''Formerly sold at $ ------
''), unless substantial sales at that price were actually made.
(c) The following is an example of a price comparison based on a
fictitious former price. John Doe is a retailer of Brand X fountain
pens, which cost him $5 each. His usual markup is 50 percent over cost;
that is, his regular retail price is $7.50. In order subsequently to
offer an unusual ''bargain'', Doe begins offering Brand X at $10 per
pen. He realizes that he will be able to sell no, or very few, pens at
this inflated price. But he doesn't care, for he maintains that price
for only a few days. Then he ''cuts'' the price to its usual level --
$7.50 -- and advertises: ''Terrific Bargain: X Pens, Were $10, Now
Only $7.50!'' This is obviously a false claim. The advertised
''bargain'' is not genuine.
(d) Other illustrations of fictitious price comparisons could be
given. An advertiser might use a price at which he never offered the
article at all; he might feature a price which was not used in the
regular course of business, or which was not used in the recent past but
at some remote period in the past, without making disclosure of that
fact; he might use a price that was not openly offered to the public,
or that was not maintained for a reasonable length of time, but was
immediately reduced.
(e) If the former price is set forth in the advertisement, whether
accompanied or not by descriptive terminology such as ''Regularly,''
''Usually,'' ''Formerly,'' etc., the advertiser should make certain that
the former price is not a fictitious one. If the former price, or the
amount or percentage of reduction, is not stated in the advertisement,
as when the ad merely states, ''Sale,'' the advertiser must take care
that the amount of reduction is not so insignificant as to be
meaningless. It should be sufficiently large that the consumer, if he
knew what it was, would believe that a genuine bargain or saving was
being offered. An advertiser who claims that an item has been ''Reduced
to $9.99,'' when the former price was $10, is misleading the consumer,
who will understand the claim to mean that a much greater, and not
merely nominal, reduction was being offered. (Guide I)
16 CFR 233.2 Retail price comparisons; comparable value comparisons.
(a) Another commonly used form of bargain advertising is to offer
goods at prices lower than those being charged by others for the same
merchandise in the advertiser's trade area (the area in which he does
business). This may be done either on a temporary or a permanent basis,
but in either case the advertised higher price must be based upon fact,
and not be fictitious or misleading. Whenever an advertiser represents
that he is selling below the prices being charged in his area for a
particular article, he should be reasonably certain that the higher
price he advertises does not appreciably exceed the price at which
substantial sales of the particle are being made in the area -- that is,
a sufficient number of sales so that a consumer would consider a
reduction from the price to represent a genuine bargain or saving.
Expressed another way, if a number of the principal retail outlets in
the area are regularly selling Brand X fountain pens at $10, it is not
dishonest for retailer Doe to advertise: ''Brand X Pens, Price
Elsewhere $10, Our Price $7.50''.
(b) The following example, however, illustrates a misleading use of
this advertising technique. Retailer Doe advertises Brand X pens as
having a ''Retail Value $15.00, My Price $7.50,'' when the fact is that
only a few small suburban outlets in the area charge $15. All of the
larger outlets located in and around the main shopping areas charge
$7.50, or slightly more or less. The advertisement here would be
deceptive, since the price charged by the small suburban outlets would
have no real significance to Doe's customers, to whom the advertisement
of ''Retail Value $15.00'' would suggest a prevailing, and not merely an
isolated and unrepresentative, price in the area in which they shop.
(c) A closely related form of bargain advertising is to offer a
reduction from the prices being charged either by the advertiser or by
others in the advertiser's trade area for other merchandise of like
grade and quality -- in other words, comparable or competing merchandise
-- to that being advertised. Such advertising can serve a useful and
legitimate purpose when it is made clear to the consumer that a
comparison is being made with other merchandise and the other
merchandise is, in fact, of essentially similar quality and obtainable
in the area. The advertiser should, however, be reasonably certain,
just as in the case of comparisons involving the same merchandise, that
the price advertised as being the price of comparable merchandise does
not exceed the price at which such merchandise is being offered by
representative retail outlets in the area. For example, retailer Doe
advertises Brand X pen as having ''Comparable Value $15.00''. Unless a
reasonable number of the principal outlets in the area are offering
Brand Y, an essentially similar pen, for that price, this advertisement
would be deceptive. (Guide II)
16 CFR 233.3 Advertising retail prices which have been established or
suggested by manufacturers (or other nonretail distributors).
(a) Many members of the purchasing public believe that a
manufacturer's list price, or suggested retail price, is the price at
which an article is generally sold. Therefore, if a reduction from this
price is advertised, many people will believe that they are being
offered a genuine bargain. To the extent that list or suggested retail
prices do not in fact correspond to prices at which a substantial number
of sales of the article in question are made, the advertisement of a
reduction may mislead the consumer.
(b) There are many methods by which manufacturers' suggested retail
or list prices are advertised: Large scale (often nationwide)
mass-media advertising by the manufacturer himself; preticketing by the
manufacturer; direct mail advertising; distribution of promotional
material or price lists designed for display to the public. The
mechanics used are not of the essence. This part is concerned with any
means employed for placing such prices before the consuming public.
(c) There would be little problem of deception in this area if all
products were invariably sold at the retail price set by the
manufacturer. However, the widespread failure to observe manufacturers'
suggested or list prices, and the advent of retail discounting on a wide
scale, have seriously undermined the dependability of list prices as
indicators of the exact prices at which articles are in fact generally
sold at retail. Changing competitive conditions have created a more
acute problem of deception than may have existed previously. Today,
only in the rare case are all sales of an article at the manufacturer's
suggested retail or list price.
(d) But this does not mean that all list prices are fictitious and
all offers of reductions from list, therefore, deceptive. Typically, a
list price is a price at which articles are sold, if not everywhere,
then at least in the principal retail outlets which do not conduct their
business on a discount basis. It will not be deemed fictitious if it is
the price at which substantial (that is, not isolated or insignificant)
sales are made in the advertiser's trade area (the area in which he does
business). Conversely, if the list price is significantly in excess of
the highest price at which substantial sales in the trade area are made,
there is a clear and serious danger of the consumer being misled by an
advertised reduction from this price.
(e) This general principle applies whether the advertiser is a
national or regional manufacturer (or other non-retail distributor), a
mail-order or catalog distributor who deals directly with the consuming
public, or a local retailer. But certain differences in the
responsibility of these various types of businessmen should be noted. A
retailer competing in a local area has at least a general knowledge of
the prices being charged in his area. Therefore, before advertising a
manufacturer's list price as a basis for comparison with his own lower
price, the retailer should ascertain whether the list price is in fact
the price regularly charged by principal outlets in his area.
(f) In other words, a retailer who advertises a manufacturer's or
distributor's suggested retail price should be careful to avoid creating
a false impression that he is offering a reduction from the price at
which the product is generally sold in his trade area. If a number of
the principal retail outlets in the area are regularly engaged in making
sales at the manufacturer's suggested price, that price may be used in
advertising by one who is selling at a lower price. If, however, the
list price is being followed only by, for example, small suburban
stores, house-to-house canvassers, and credit houses, accounting for
only an insubstantial volume of sales in the area, advertising of the
list price would be deceptive.
(g) On the other hand, a manufacturer or other distributor who does
business on a large regional or national scale cannot be required to
police or investigate in detail the prevailing prices of his articles
throughout so large a trade area. If he advertises or disseminates a
list or preticketed price in good faith (i.e., as an honest estimate of
the actual retail price) which does not appreciably exceed the highest
price at which substantial sales are made in his trade area, he will not
be chargeable with having engaged in a deceptive practice. Consider the
following example:
(h) Manufacturer Roe, who makes Brand X pens and sells them
throughout the United States, advertises his pen in a national magazine
as having a ''Suggested Retail Price $10,'' a price determined on the
basis of a market survey. In a substantial number of representative
communities, the principal retail outlets are selling the product at
this price in the regular course of business and in substantial volume.
Roe would not be considered to have advertised a fictitious ''suggested
retail price.'' If retailer Doe does business in one of these
communities, he would not be guilty of a deceptive practice by
advertising, ''Brand X Pens, Manufacturer's Suggested Retail Price, $10,
Our Price, $7.50.''
(i) It bears repeating that the manufacturer, distributor or retailer
must in every case act honestly and in good faith in advertising a list
price, and not with the intention of establishing a basis, or creating
an instrumentality, for a deceptive comparison in any local or other
trade area. For instance, a manufacturer may not affix price tickets
containing inflated prices as an accommodation to particular retailers
who intend to use such prices as the basis for advertising fictitious
price reductions. (Guide III)
16 CFR 233.4 Bargain offers based upon the purchase of other
merchandise.
(a) Frequently, advertisers choose to offer bargains in the form of
additional merchandise to be given a customer on the condition that he
purchase a particular article at the price usually offered by the
advertiser. The forms which such offers may take are numerous and
varied, yet all have essentially the same purpose and effect.
Representative of the language frequently employed in such offers are
''Free,'' ''Buy One -- Get One Free,'' ''2-For-1 Sale,'' ''Half Price
Sale,'' ''1 Sale,'' ''50% Off,'' etc. Literally, of course, the seller
is not offering anything ''free'' (i.e., an unconditional gift), or 1/2
free, or for only 1 , when he makes such an offer, since the purchaser
is required to purchase an article in order to receive the ''free'' or
''1 '' item. It is important, therefore, that where such a form of
offer is used, care be taken not to mislead the consumer.
(b) Where the seller, in making such an offer, increases his regular
price of the article required to be bought, or decreases the quantity
and quality of that article, or otherwise attaches strings (other than
the basic condition that the article be purchased in order for the
purchaser to be entitled to the ''free'' or ''1 '' additional
merchandise) to the offer, the consumer may be deceived.
(c) Accordingly, whenever a ''free,'' ''2-for-1,'' ''half price
sale,'' ''1 sale,'' ''50% off'' or similar type of offer is made, all
the terms and conditions of the offer should be made clear at the
outset. (Guide IV)
16 CFR 233.5 Miscellaneous price comparisons.
The practices covered in the provisions set forth above represent the
most frequently employed forms of bargain advertising. However, there
are many variations which appear from time to time and which are, in the
main, controlled by the same general principles. For example, retailers
should not advertise a retail price as a ''wholesale'' price. They
should not represent that they are selling at ''factory'' prices when
they are not selling at the prices paid by those purchasing directly
from the manufacturer. They should not offer seconds or imperfect or
irregular merchandise at a reduced price without disclosing that the
higher comparative price refers to the price of the merchandise if
perfect. They should not offer an advance sale under circumstances
where they do not in good faith expect to increase the price at a later
date, or make a ''limited'' offer which, in fact, is not limited. In
all of these situations, as well as in others too numerous to mention,
advertisers should make certain that the bargain offer is genuine and
truthful. Doing so will serve their own interest as well as that of the
public. (Guide V)
16 CFR 233.5 PART 234 -- GUIDES FOR THE MAIL ORDER INSURANCE INDUSTRY
Sec.
234.0 Definitions.
234.1 Deception (general).
234.2 Advertisement of benefits, losses covered or premiums payable.
234.3 Health of the applicant or insured.
234.4 Disclosure of policy provisions relating to renewability,
cancellability, or termination.
234.5 Testimonials, appraisals or analyses.
234.6 Deceptive use of statistics.
234.7 Identification of plan or number of policies.
234.8 Deception as to introductory, initial or special offers.
234.9 Misrepresentation as to licensing, approval or endorsement of
insurer, policy or advertisement.
234.10 Deception as to ''group'' or ''quasi-group'' policies.
234.11 Allocation of benefits under a ''Family Group'' policy.
234.12 Deceptive use of trade names, service marks, etc.
234.13 Disparagement.
234.14 Misrepresentation concerning the insurer.
Authority: Secs. 5, 6, 38 Stat. 719, as amended, 721; 15 U.S.C.
45, 46.
Source: 32 FR 15536, Nov. 8, 1967, unless otherwise noted.
16 CFR 234.0 Definitions.
(a) Advertisement for the purpose of this part, shall mean any of the
following material when used in connection with solicitation of the
original purchase of a policy, or renewal or reinstatement thereof:
(1) Any printed or published material, descriptive literature,
statements or depictions of an insurer used in newspapers, magazines,
radio and TV scripts or presentations, billboards, and similar displays,
and
(2) Descriptive literature and sales aids of all kinds issued or
caused to be issued by an insurer or by an insurer's agent or broker for
presentation to members of the public, including, but not limited to,
circulars, leaflets, booklets, depictions, illustrations, form letters,
and policy forms.
(b) Policy for the purpose of this part, shall include any policy,
plan, certificate, contract, agreement, statement of coverage, rider or
endorsement which provides insurance benefits for any kind of loss or
expense.
(c) Insurer for the purpose of this part, shall include any
individual, corporation, association, partnership, reciprocal exchange,
inter-insurer, Lloyds, fraternal benefit society, and any other legal
entity, engaged in the advertisement and sale of a policy as herein
defined.
16 CFR 234.1 Deception (general).
No advertisement shall be used which because of words, phrases,
statements or illustrations therein or information omitted therefrom has
the capacity and tendency to mislead or deceive purchasers or
prospective purchasers, irrespective of whether a policy advertised is
made available to an insured prior to the consummation of the sale, or
an offer is made of a premium refund if a purchaser is not satisfied.
Words or phrases which are misleading or deceptive because the meaning
thereof is not clear, or is clear only to persons familiar with
insurance terminology, shall not be used. (Guide 1)
16 CFR 234.2 Advertisement of benefits, losses covered or premiums
payable.
(a) Disclsoure as to exceptions, reductions and limitations. (1) No
advertisement shall refer to any loss covered or benefit provided by an
insurance policy, period of time for which any benefit is payable, or
the cost of a policy, without clearly and conspicuously disclosing in
close conjunction therewith such exceptions, reductions and limitations
relating thereto as will fully relieve the advertisement of all capacity
to deceive.
(2) The disclosure requirements of this section are not applicable to
advertisements which mention only the general kind of insurance (e.g.,
''Life,'' ''Accident,'' ''Hospitalization''), give no information as to
losses covered, benefits or premiums, and serve the purpose of merely
inviting inquiries or a show of interest on the part of the recipients.
(3) As used in this section:
(i) The term ''exception'' means any provision in a policy whereby
coverage for a specified hazard is entirely eliminated. It is a
statement of risk not assumed under the policy.
(ii) The term ''reduction'' shall mean any provision which reduces
the amount of the benefit; a risk of loss is assumed but payment upon
the occurrence of such loss is limited to some amount or period less
than would be otherwise payable had such reduction clause not been used.
(iii) The term ''limitation'' means any provision which restricts the
duration or extent of coverage, losses covered, or benefits payable
under the policy other than an exception or a reduction.
(4) Waiting, elimination, probationary or similar periods. When
there is a time period between the effective date of a policy and the
effective date of coverage under the policy, or a time period between
the date a loss occurs and the date benefits begin to accrue for such
loss, such fact must be clearly and conspicuously disclosed in close
conjunction with any reference to such coverage or benefits made in any
advertisement.
(5) Benefits contingent on conditions. When a policy pays varying
amounts of benefits for the same loss occurring under different
conditions or which pays benefits only when a loss occurs under certain
conditions, any reference to such benefits in an advertisement must be
closely accompanied by clear and conspicuous disclosure of such
different or limited conditions as are applicable.
(6) Preexisting conditions. If a policy provides any limitations on
the coverage of a loss if the cause of such loss is traceable to a
condition existing prior to the effective date of the policy, or prior
to any other particular time, any reference to the policy coverage of
the loss made in any advertisement must be closely accompanied by clear
and conspicuous disclosure of such limitations. (See also 234.3 of
this part.)
(7) Deceptive words or phrases. (i) No words, terms or phrases shall
be used as descriptive of the coverage provided by a policy which
misrepresent the extent of such coverage. Words such as ''all,''
''full,'' ''complete,'' ''unlimited,'' and words of similar import must
not be used to refer to any coverage which under the terms of the policy
is subject to exceptions, reductions or limitations. Other words,
terms, or phrases representing or implying broad insurance coverage must
not be used as descriptive of losses covered or benefits provided by a
policy which are subject to exceptions, reductions or limitations
without disclosure of the applicable exceptions, reductions or
limitations as required by paragraph (a) of this section.
(ii) The terms ''hospitalization,'' ''accident,'' or ''life'' must
not be used as descriptive of an insurance policy which provides
benefits for only unusual or unique sicknesses, accidents, or causes of
death unless in close conjunction with such terms clear and conspicuous
disclosure is made of such coverage (e.g. ''Leukemia Hospitalization,''
''Death by Drowning'').
(iii) Words or phrases such as ''up to,'' ''as high as,'' etc. shall
not be used as descriptive of the dollar amount payable for any kind of
represented losses or expenses unless the policy provides benefit
payments up to such amount in all cases for such losses or expenses
actually sustained by a policyholder, or there is full and conspicuous
disclosure in close conjunction with such words or phrases of either --
(a) The complete schedule of payments provided by the policy, or
(b) The specific loss or expense for which the represented dollar
amount is provided by the policy; and also disclosure that benefits
provided by the policy for losses or expenses of the kind represented
vary in amount depending on the particular kind of loss or expense
incurred, if such is the case, as for example -- ''Policy provides
surgical benefits which vary in amount depending on kind of operation
performed. For example, pays up to $150 for operation to remove a
lung.''
and there is also disclosure of such other exceptions, reductions or
limitations as required by paragraph (a) of this section.
(iv) An advertisement must not contain representations such as ''This
policy pays $1,800 for hospital room and board expenses'' without clear
and conspicuous disclosure in close conjunction therewith of the maximum
daily benefit and the maximum time limit for such hospital room and
board expense.
(v) An advertisement must not represent the weekly, monthly, or other
periodic benefits payable under a policy without clearly and
conspicuously disclosing in close conjunction with such representation
the limitation of time over which such benefits will be paid or of the
number of payments or total amount thereof which will be made if, by the
terms of the policy, payment of benefits for any loss or aggregate of
losses is limited to time, number, or total amount.
(8) Age limitation. Any reference in an advertisement to any
insurance coverage or benefits which by the terms of the policy are
limited to a certain age group must be closely accompanied by clear and
conspicuous disclosure of such fact.
(b) Deception as to coverage and additional benefits. (1) A policy
covering only one disease or certain specified diseases must not be
advertised in such manner as to imply coverage beyond the terms of the
policy, either by use of synonymous words or terms to refer to any
disease or physical conditions so as to imply broader coverage, or by
other means.
(2) An advertisement must not represent, directly or indirectly, that
a policy provides for the payment of certain benefits in addition to
other benefits when such is not the fact. (Guide 2)
16 CFR 234.3 Health of the applicant or insured.
No advertisement shall be used which represents or implies --
(a) That the condition of the applicant's or insured's health prior
to, or at the time of issuance of a policy, or thereafter, will not be
considered by the insurer in determining its liability or benefits to be
furnished for or in the settlement of a claim when such is not the fact
(see also 234.2(a)(6) of this part); or
(b) That no medical examination is required if the furnishing of
benefits by an insurer under a policy so represented is or may be
contingent on a medical examination under any condition; or
(c) That no medical examination is required, even though such is the
case, without conspicuously disclosing in close conjunction therewith
all the conditions pertaining to or involving the insured's health under
which the insurer is not liable for the furnishing of benefits under a
policy. (Guide 3)
16 CFR 234.4 Disclosure of policy provisions relating to renewability,
cancellability, or termination.
(a) No advertisement shall refer, directly or by implication, to
renewability, cancellability, or termination of a policy or a policy
benefit, or contain any statement or illustration of time or age in
connection with any benefit payable, loss, eligibility of applicants, or
continuation of a policy, unless in close conjunction with such
reference, statement or illustration there is clear and conspicuous
disclosure of the material provisions in the policy relating thereto.
(b) No advertisement shall represent or imply that an insurance
policy may be continued in effect indefinitely or for any period of
time, when, in fact, said policy provides that it may not be renewed or
may be canceled by the insurer, or terminated under any circumstances
over which insured has no control, during the period of time
represented. (Guide 4)
16 CFR 234.5 Testimonials, appraisals or analyses.
No testimonial, appraisal or analysis shall be used in any
advertisement which is not genuine, does not represent the current
opinion of the author, does not accurately describe the facts, does not
correctly reflect the present practices of an insurer, is not applicable
to the policy of insurer advertised or is not accurately reproduced.
Note: An insurer makes as his own all statements contained in any
testimonial which he uses in his advertisement, and the advertisement
including such statements is subject to all of the provisions of this
part.
(Guide 5)
16 CFR 234.6 Deceptive use of statistics.
(a) No advertisement shall be used in which representations are made
as to the time within which claims are paid, the dollar amounts of
claims paid, the number of claims paid or the number of persons insured
under a particular policy or otherwise, or which contains other
statistical information relating to any insurer or policy, unless such
advertisement accurately reflects all the relevant facts. The
advertisement shall not imply that the statistics are derived from a
policy advertised unless such is the fact.
(b) No advertisement shall be used which misrepresents that claim
settlements by an insurer are liberal or generous beyond the terms of a
policy. (Guide 6)
16 CFR 234.7 Identification of plan or number of policies.
(a) No advertisement shall offer a choice of the amount of benefits
without clearly and conspicuously disclosing that the amount of benefits
provided depends upon the plan selected and that the premium will vary
with the amount of benefits.
(b) No advertisement shall refer to various benefits which may be
contained in two or more policies, other than group master policies,
without clearly and conspicuously disclosing that such benefits are
provided only through a combination of such policies. (Guide 7)
16 CFR 234.8 Deception as to introductory, initial or special offers.
No representation shall be made in an advertisement, directly or by
implication, that a policy or combination of policies is an
introductory, initial, special or limited offer and that applicants will
receive advantages not available at a later date, unless such is the
fact. (Guide 8)
16 CFR 234.9 Misrepresentation as to licensing, approval or endorsement
of insurer, policy or advertisement.
No advertisement shall represent directly or by implication --
(a) That an insurer, or any policy or advertisement thereof, has been
licensed, approved, endorsed or recommended by any governmental agency
or department, unless such is the fact;
(b) That an insurer, or a policy or an advertisement thereof, has
been approved, endorsed or recommended by any individual, group of
individuals, society, association, or other organization, unless such is
the fact. (Guide 9)
16 CFR 234.10 Deception as to ''group'' or ''quasi-group'' policies.
No advertisement shall represent, directly or indirectly, that
prospective policyholders become group or quasi-group members and as
such enjoy special rates or underwriting privileges ordinarily
associated with group insurance as recognized in the industry, unless
such is the fact. (Guide 10)
16 CFR 234.11 Allocation of benefits under a ''Family Group'' policy.
No advertisement shall refer to a benefit payable under a ''Family
Group'' policy when the full amount of such benefit is not payable upon
the death or disability, etc. of only one member of the family unless
clear and conspicuous disclosure of such fact is made in the
advertisement. (Guide 11)
16 CFR 234.12 Deceptive use of trade names, service marks, etc.
There shall not be used in an advertisement any trade name, service
mark, slogan, symbol, or other device which has the capacity and
tendency to mislead or deceive prospective purchasers as to the true
identity of the insurer or its relation with public or private
institutions. (Guide 12)
16 CFR 234.13 Disparagement.
No advertisement shall be used which, directly or indirectly, falsely
disparages competitors, their policies, services, or business methods.
(Guide 13)
16 CFR 234.14 Misrepresentation concerning the insurer.
No advertisement shall be used which, directly or by implication, has
the capacity and tendency to mislead or deceive prospective purchasers
with respect to an insurer's assets, corporate structure, financial
standing, age, or relative position in the insurance business, or in any
other material respect. (Guide 14)
16 CFR 234.14 PART 235 -- GUIDES AGAINST DECEPTIVE LABELING AND
ADVERTISING OF ADHESIVE COMPOSITIONS
Sec.
235.1 Metal composition products.
235.2 Use of the term ''solder'' or ''weld.''
235.3 Use of the word ''porcelain.''
235.4 Epoxy adhesives.
235.5 Use of the word ''rubber,'' etc.
235.6 Misrepresentation (general).
235.7 Guarantees, warranties, etc.
235.8 Placing deceptive material in the hands of others.
Authority: Secs. 5, 6, 38 Stat. 719, as amended, 721; 15 U.S.C.
45, 46.
Source: 32 FR 15538, Nov. 8, 1967, unless otherwise noted.
16 CFR 235.1 Metal composition products.
Products which do not, after application, have the same physical and
chemical properties of metal, or of a particular represented metal,
shall not be represented as metal or as having the intrinsic
characteristics of metal, or of the particular metal indicated. Thus,
neither the term ''metal'' nor the terms ''iron,'' ''steel,''
''aluminum'' or other names of metal shall be used to designate in brand
names or otherwise any product of the kind herein described. While this
section does not prohibit truthful representations in advertising and
labeling of the percentage of content of any metallic substances in such
products (e.g., contains 20 percent powdered aluminum) it does prohibit
with respect thereto the use of representations such as, but not limited
to, the following:
''Plastic Steel.''
''Dries to steel.''
''Hardens into metal.''
''Steel in paste form.''
''Liquid aluminum.''
''Instant aluminum.''
''Real metallic putty.''
''Fluid Steel.''
(Guide 1)
16 CFR 235.2 Use of the term ''solder'' or ''weld.''
Products which, when used, do not form a metallic seal or bond, shall
not be represented as solders or as welding products unless it is
clearly disclosed in connection therewith that they are nonmetallic, as
for example, ''Plastic Solder'' or ''Plastic Weld.'' A ''solder'' or
''weld'' product which is nonmetallic shall not be represented as
producing a metallic seal or bond. This section does not prohibit an
accurate representation of the percentage of metallic substance
contained in a product. (Guide 2)
16 CFR 235.3 Use of the word ''porcelain.''
(a) The word ''porcelain'' shall not be used to designate in brand
names or otherwise any product which, after application, does not
possess all of the chemical and physical properties of porcelain. Under
this section products of the type herein described shall not be
represented as being, among other things:
''Porcelain.''
''Porcelain Glaze.''
''Liquid Porcelain.''
''Porcelain in Paste Form.''
''Plastic Porcelain.''
''Porcelain restorer.''
''Porcelain renewer.''
(b) This section does not prohibit truthful representations of the
actual percentage of porcelain contained in an industry product as, for
example,
''Contains 25% powdered porcelain.''
(Guide 3)
16 CFR 235.4 Epoxy adhesives.
(a) No product shall be represented as being an epoxy adhesive unless
the epoxy component thereof is derived from an epoxide or oxirane which,
when applied in use, chemically reacts with a hardener or curing agent
to form a substantially infusible and insoluble bond.
(b) No product containing an epoxy shall be represented as having the
characteristics and capabilities of an epoxy adhesive, where the epoxy
component present in the product is in an amount not sufficient to
produce the characteristics and capabilities represented.
(c) No representation shall be made that the epoxy component in an
industry product is present to produce the characteristics and
capabilities of an epoxy adhesive where such component is not productive
of such characteristics and capabilities, but is present for a different
purpose and use. (Guide 4)
16 CFR 235.5 Use of the word ''rubber,'' etc.
(a) The word ''rubber'' or other words denominating rubber shall not
be used to designate, in brand names or otherwise, any product which,
after application, does not possess the essential characteristics of
rubber. Under this section such a product shall not be represented as,
for example, ''Rubber,'' ''Plastic Rubber,'' ''Liquid Rubber,'' etc.
(b) This section does not prohibit truthful representation of the
actual percentage of rubber contained in a product. (Guide 5)
16 CFR 235.6 Misrepresentation (general).
(a) No representation shall be made in any manner respecting any
adhesive products to which this part is applicable which is likely to
mislead or deceive purchasers as to their nature, composition,
characteristics, uses, effectiveness, capabilities, durability,
toughness, hardness, adhesive strength, lasting effect, thermal or
electrical properties, resistance to water, steam, gas, or chemicals, or
in any other material respect.
(b) Among the representations prohibited by this section are the
following:
(1) Representations that a product will seal, repair or mend
''anything'' when, in fact, there are certain materials which it cannot
seal, repair or mend.
(2) Representations that a product is proof against or will withstand
any specified temperature when in fact the product is adversely affected
in any way when subjected to such temperature for any period of time.
(3) Representations that a product will effect permanent repairs if,
in fact, the repairs made by use of the product will not last as long as
the product so repaired.
(4) Representations that a product makes any product like new if it
does not actually restore the part thereof repaired to its original new
condition. (Guide 6)
16 CFR 235.7 Guarantees, warranties, etc.
Industry members shall not represent in advertising or otherwise that
a product is ''guaranteed'' without a clear and conspicuous disclosure
in close conjunction with such representation of:
(a) The nature and extent of the guarantee; and
(b) Any material conditions or limitations in the guarantee which are
imposed by the guarantor; and
(c) The manner in which the guarantor will perform thereunder; and
(d) The identity of the guarantor.
Note: The Commission's April 26, 1960 Guides Against Deceptive
Advertising of Guarantees (25 FR 3772) furnish additional guidance
respecting guarantee representations and are to be considered as
supplementing this section. Copies are available upon request.
(Guide 7)
16 CFR 235.8 Placing deceptive material in the hands of others.
Manufacturers and distributors shall not place in the hands of
wholesalers, jobbers, retailers, or others, promotional material by or
through which they may deceive or mislead the purchasing and consuming
public concerning any product. (Guide 8)
16 CFR 235.8 PART 236 -- GUIDE FOR AVOIDING DECEPTIVE USE OF WORD
''MILL'' IN THE TEXTILE INDUSTRY
Sec.
236.1 General rule.
236.2 The requirement of operational control.
236.3 Examples of deceptive usage of the word ''mill.''
236.4 Exception to general rule.
Authority: Secs. 5, 6, 38 Stat. 719, as amended, 721; 15 U.S.C.
45, 46.
Source: 32 FR 15538, Nov. 8, 1967, unless otherwise noted.
16 CFR 236.1 General rule.
Simply stated, the general rule is that the word ''mill'' should not
be used in the corporate, business, or trade name of any person or
concern handling textiles, or in any other manner, unless the person or
concern actually owns and operates or directly and absolutely controls
the manufacturing facility in which all textile materials which are sold
under that name are produced.
16 CFR 236.2 The requirement of operational control.
(a) For a firm to qualify as a bona fide mill it must exercise direct
and absolute control over the milling facility in which its merchandise
is produced. Contracting to have milling operations performed by others
will not qualify one as a mill.
(b) A distributor who furnishes yarns and other materials to a
knitting mill for manufacture into garments according to the
distributor's specifications is not a mill because it does not exercise
direct and absolute operational control over the milling operations. A
firm having a written ''lease'' with a mill whereby the mill allocated
five of its looms and the workers at such looms to manufacture ribbon
for the jobber from materials supplied by, and according to instructions
from, the jobber is not a mill for the same reason. Even if a jobber
takes the entire output of a mill, he does not thereby become a mill.
16 CFR 236.3 Examples of deceptive usage of the word ''mill.''
Illustrative situations in which use of ''mill'' in designating trade
status has been found to be deceptive are the following:
(a) A corporation which purchased unfinished silk and rayon cloth
from weavers or manufacturers, caused such cloth to be dyed, printed, or
processed into finished dry goods by others and sold such goods to
retailers, members of the cutting up trade and others;
(b) A tailor who made made-to-measure suits but did not produce the
cloth from which the suits were made;
(c) A selling agent who represented a number of suit fabric
manufacturers;
(d) An independent retailer who claimed to be a ''mill's outlet.''
16 CFR 236.4 Exception to general rule.
(a) Under the exceptional circumstances set forth below, the
Commission may permit a nonmanufacturing concern to continue to use the
word ''mill'' in its trade name provided that it is accompanied by a
qualifying phrase which clearly states that the concern is not a mill
and does not own or operate a facility which manufactures textiles.
This exception only applies if:
(1) The name of the concern has become a valuable business asset and
its loss would result in a substantial hardship; and
(2) The qualifying phrase will eliminate all possibility of
deception.
(b) Factors to be taken into consideration in determining whether a
trade name has become a valuable business asset the loss of which would
become a hardship are as follows:
(1) Extent and period of time during which the name has been used;
(2) Funds and efforts expended in establishing and promoting the
name;
(3) The extent of the goodwill enjoyed by the company;
(4) The adverse effect on the company that could reasonably be
expected if use of the word ''mill'' had to be discontinued.
16 CFR 236.4 PART 237 -- GUIDES AGAINST DEBT COLLECTION DECEPTION
Sec.
237.0 Definitions of terms as used in these guides in this part.
237.1 Deception (general).
237.2 Disclosure of purpose.
237.3 Government affiliation.
237.4 Organizational titles.
237.5 Trade status.
237.6 Services.
Authority: Secs. 5, 6, 38 Stat. 719, as amended, 721; 15 U.S.C.
45, 46.
Source: 32 FR 15539, Nov. 8, 1967, unless otherwise noted.
16 CFR 237.0 Definitions of terms as used in these guides in this part.
(a) Industry Member shall mean any person, firm, partnership,
corporation, organization, association and any other legal entity
engaged in the practice of collecting or attempting to collect any and
all kinds of money debts for itself or others, or any person, firm,
partnership, corporation, organization, association, or any other legal
entity which places in the hands of others through sale or otherwise, or
distributes for itself or others, any kind of material used or to be
used in connection with collecting or attempting to collect such debts
or seeking information concerning debtors, commonly called skip-tracing.
(b) Debt shall mean money which is due or alleged to be due from one
to another.
(c) Debtor shall mean one who owes or is alleged to owe a money debt.
(d) Creditor shall mean one to whom a money debt is due or is alleged
to be due.
(e) Credit Bureau -- any person, firm, partnership, corporation,
organization, association, or any other legal entity engaged in
gathering, recording, and disseminating favorable as well as unfavorable
information relative to the credit worthiness, financial responsibility,
paying habits and character of individuals, firms, corporations, and any
other legal entity being considered for credit extension, so that
prospective creditor may be able to make a sound decision in the
extension of credit.
(f) Collection Agency -- any person, firm, partnership, corporation,
organization, association, and any other legal entity which collects
money debts for others.
16 CFR 237.1 Deception (general).
An industry member shall not use any deceptive representation or
deceptive means to collect or attempt to collect debts or to obtain
information concerning debtors.
Note: The Commission has found that in the collection of debts some
industry members either disguise the purpose for which information is
desired or hold out an inducement to debtors to furnish information
which is not in their interest to supply and which they normally would
not voluntarily furnish. In connection with the collection or attempted
collection of debts or the seeking of information concerning debtors,
the Commission has prohibited, among others, the following
misrepresentations:
1. That an industry member was seeking information in connection with
a survey.
2. That an industry member is in the business of a casting service
for the motion picture or television industry.
3. That an industry member has a prepaid package for the debtor.
4. That a sum of money or valuable gift will be sent to the addressee
if the required information is furnished.
5. That accounts have been turned over to innocent purchasers for
value.
6. That debts have been turned over to an attorney or an independent
organization engaged in the business of collecting past-due accounts.
7. That documents are legal process forms.
(Guide 1)
(32 FR 15539, Nov. 8, 1967, as amended at 33 FR 5661, Apr. 12, 1968)
16 CFR 237.2 Disclosure of purpose.
(a) An industry member shall not use or cause to be used in his
behalf in connection with the collection of or the attempt to collect a
debt or in connection with obtaining or attempting to obtain information
concerning a debtor, any forms, letters, questionnaires, or other
material printed or written which do not clearly and conspicuously
disclose that such are used for the purpose of collecting or attempting
to collect a debt or to obtain or attempt to obtain information
concerning a debtor. (This affirmative disclosure also applies to all
forms of communication, oral or otherwise.)
(b) An industry member shall not, through sale or otherwise, place in
the hands of others for use in connection with the collection of or
attempt to collect a debt or in connection with obtaining or attempting
to obtain information concerning a debtor, any forms, letters,
questionnaires, or other material printed or written which do not
clearly and conspicuously reveal thereon that such are used for the
purpose of collecting or attempting to collect a debt or to obtain or
attempt to obtain information concerning a debtor. (Guide 2)
(33 FR 5661, Apr. 12, 1968)
16 CFR 237.3 Government affiliation.
An industry member shall not use any trade name, address, insignia,
picture, emblem, or any other means which creates a false impression
that such industry member is connected with or is an agency of
government. (Guide 3)
16 CFR 237.4 Organizational titles.
An industry member which is not in fact a ''Credit Bureau'' as
defined in this part shall not use the term ''Credit Bureau'' in its
corporate or trade name; nor shall it use any other term of similar
import or meaning in its corporate or trade name, or in any other
manner, as to create the false impression that such industry member is a
credit bureau. (Guide 4)
(33 FR 5661, Apr. 12, 1968)
16 CFR 237.5 Trade status.
In collecting or attempting to collect debts due him, an industry
member shall not, through the use of any designation or by any other
means, create the impression that he is a collection agency, unless he
is such as defined in this part. (Guide 5)
16 CFR 237.6 Services.
In the solicitation of accounts for collection or for ascertainment
of credit status, an industry member shall not directly, or by
implication, misrepresent the services he renders.
Note: Section 237.6 is general in nature since the varied
misrepresentations used in connection with the solicitation of accounts
for collection are numerous. Listed below are a few specific examples
of representations which have been prohibited by the Commission because
they were false or deceptive:
1. That the industry member's organization is separated into
functional divisions, such as credit reporting, analytical, tracing, and
collecting.
2. That the industry member employs local representatives, regional
investigators, and lawyers on his personnel staff in various States and
throughout the world.
3. That collection fees are less than what the industry member
actually charges.
4. That no charges will be made for accounts unless they are
collected.
5. That the industry member makes personal calls on debtors to
collect accounts.
6. That the industry member will furnish credit reports to parties
who assign accounts to him for collection.
(Guide 6)
16 CFR 237.6 PART 238 -- GUIDES AGAINST BAIT ADVERTISING
Sec.
238.0 Bait advertising defined.
238.1 Bait advertisement.
238.2 Initial offer.
238.3 Discouragement of purchase of advertised merchandise.
238.4 Switch after sale.
Authority: Secs. 5, 6, 38 Stat. 719, as amended, 721; 15 U.S.C.
45, 46.
Source: 32 FR 15540, Nov. 8, 1967, unless otherwise noted.
16 CFR 238.0 Bait advertising defined. 1077
Bait advertising is an alluring but insincere offer to sell a product
or service which the advertiser in truth does not intend or want to
sell. Its purpose is to switch consumers from buying the advertised
merchandise, in order to sell something else, usually at a higher price
or on a basis more advantageous to the advertiser. The primary aim of a
bait advertisement is to obtain leads as to persons interested in buying
merchandise of the type so advertised.
0771For the purpose of this part ''advertising'' includes any form of
public notice however disseminated or utilized.
16 CFR 238.1 Bait advertisement.
No advertisement containing an offer to sell a product should be
published when the offer is not a bona fide effort to sell the
advertised product. (Guide 1)
16 CFR 238.2 Initial offer.
(a) No statement or illustration should be used in any advertisement
which creates a false impression of the grade, quality, make, value,
currency of model, size, color, usability, or origin of the product
offered, or which may otherwise misrepresent the product in such a
manner that later, on disclosure of the true facts, the purchaser may be
switched from the advertised product to another.
(b) Even though the true facts are subsequently made known to the
buyer, the law is violated if the first contact or interview is secured
by deception. (Guide 2)
16 CFR 238.3 Discouragement of purchase of advertised merchandise.
No act or practice should be engaged in by an advertiser to
discourage the purchase of the advertised merchandise as part of a bait
scheme to sell other merchandise. Among acts or practices which will be
considered in determining if an advertisement is a bona fide offer are:
(a) The refusal to show, demonstrate, or sell the product offered in
accordance with the terms of the offer,
(b) The disparagement by acts or words of the advertised product or
the disparagement of the guarantee, credit terms, availability of
service, repairs or parts, or in any other respect, in connection with
it,
(c) The failure to have available at all outlets listed in the
advertisement a sufficient quantity of the advertised product to meet
reasonably anticipated demands, unless the advertisement clearly and
adequately discloses that supply is limited and/or the merchandise is
available only at designated outlets,
(d) The refusal to take orders for the advertised merchandise to be
delivered within a reasonable period of time,
(e) The showing or demonstrating of a product which is defective,
unusable or impractical for the purpose represented or implied in the
advertisement,
(f) Use of a sales plan or method of compensation for salesmen or
penalizing salesmen, designed to prevent or discourage them from selling
the advertised product. (Guide 3)
16 CFR 238.4 Switch after sale.
No practice should be pursued by an advertiser, in the event of sale
of the advertised product, of ''unselling'' with the intent and purpose
of selling other merchandise in its stead. Among acts or practices
which will be considered in determining if the initial sale was in good
faith, and not a strategem to sell other merchandise, are:
(a) Accepting a deposit for the advertised product, then switching
the purchaser to a higher-priced product,
(b) Failure to make delivery of the advertised product within a
reasonable time or to make a refund,
(c) Disparagement by acts or words of the advertised product, or the
disparagement of the guarantee, credit terms, availability of service,
repairs, or in any other respect, in connection with it,
(d) The delivery of the advertised product which is defective,
unusable or impractical for the purpose represented or implied in the
advertisement. (Guide 4)
Note: Sales of advertised merchandise. Sales of the advertised
merchandise do not preclude the existence of a bait and switch scheme.
It has been determined that, on occasions, this is a mere incidental
byproduct of the fundamental plan and is intended to provide an aura of
legitimacy to the overall operation.
16 CFR 238.4 PART 239 -- GUIDES FOR THE ADVERTISING OF WARRANTIES AND
GUARANTEES
Sec.
239.1 Purpose and scope of the guides.
239.2 Disclosures in warranty or guarantee advertising.
239.3 ''Satisfaction Guarantees'' and similar representations in
advertising; disclosure in advertising that mentions ''satisfaction
guarantees'' or similar representations.
239.4 ''Lifetime'' and similar representations.
239.5 Performance of warranties or guarantees.
Authority: Secs. 5, 6, 38 Stat. 719 as amended, 721; 15 U.S.C.
45, 46.
Source: 50 FR 18470, May 1, 1985, unless otherwise noted.
16 CFR 239.1 Purpose and scope of the guides.
The Guides for the Advertising of Warranties and Guarantees are
intended to help advertisers avoid unfair or deceptive practices in the
advertising of warranties or guarantees. The Guides are based upon
Commission cases, and reflect changes in circumstances brought about by
the Magnuson-Moss Warranty Act (15 U.S.C. 2301 et seq.) and the FTC
Rules promulgated pursuant to the Act (16 CFR Parts 701 and 702). The
Guides do not purport to anticipate all possible unfair or deceptive
acts or practices in the advertising of warranties or guarantees and the
Guides should not be interpreted to limit the Commission's authority to
proceed against such acts or practices under section 5 of the Federal
Trade Commission Act. The Commission may bring an action under section
5 against any advertiser who misrepresents the product or service
offered, who misrepresents the terms or conditions of the warranty
offered, or who employs other deceptive or unfair means.
Section 239.2 of the Guides applies only to advertisements for
written warranties on consumer products, as ''written warranty'' and
''consumer product'' are defined in the Magnuson-Moss Warranty Act, 15
U.S.C. 2301, that are covered by the Rule on Pre-Sale Availability or
Written Warranty Terms, 16 CFR Part 702. The other sections of the
Guides apply to the advertising of any warranty or guarantee.
(50 FR 18470, May 1, 1985; 50 FR 20899, May 21, 1985)
16 CFR 239.2 Disclosures in warranty or guarantee advertising.
(a) If an advertisement mentions a warranty or guarantee that is
offered on the advertised product, the advertisement should disclose,
with such clarity and prominence as will be noticed and understood by
prospective purchasers, that prior to sale, at the place where the
product is sold, prospective purchasers can see the written warranty or
guarantee for complete details of the warranty coverage. 1
Examples: The following are examples of disclosures sufficient to
convey to prospective purchasers that, prior to sale, at the place where
the product is sold, they can see the written warranty or guarantee for
complete details of the warranty coverage. These examples are for both
print and broadcast advertising. These examples are illustrative, not
exhaustive. In each example, the portion of the advertisement that
mentions the warranty or guarantee is in regular type and the disclosure
is in italics.
A. ''The XYZ washing machine is backed by our limited 1 year
warranty. For complete details, see our warranty at a dealer near
you.''
B. ''The XYZ bicycle is warranted for 5 years. Some restrictions may
apply. See a copy of our warranty wherever XYZ products are sold.''
C. ''We offer the best guarantee in the business. Read the details
and compare wherever our fine products are sold.''
D. ''See our full 2 year warranty at the store nearest you.''
E. ''Don't take our word -- take our warranty. See our limited 2
year warranty where you shop.''
(b) If an advertisement in any catalogue, or in any other
solicitation2 for mail order sales or for telephone order sales mentions
a warranty or guarantee that is offered on the advertised product, the
advertisement should disclose, with such clarity and prominence as will
be noticed and understood by prospective purchasers, that prospective
purchasers can obtain complete details of the written warranty or
guarantee free from the seller upon specific written request or from the
catalogue or other solicitation (whichever is applicable).
Examples: The following are examples of disclosures sufficient to
convey to consumers how they can obtain complete details of the written
warranty or guarantee prior to placing a mail or telephone order. These
examples are illustrative, not exhaustive. In each example, the portion
of the advertisement that mentions the warranty or guarantee is in
regular typeface and the disclosure is in italics.
A. ''ABC quality cutlery is backed by our 10 year warranty. Write to
us for a free copy at: (address).''
B. ''ABC power tools are guaranteed. Read about our limited 90 day
warranty in this catalogue.''
C. ''Write to us for a free copy of our full warranty. You'll be
impressed how we stand behind our product.''
(50 FR 20899, May 21, 1985)
1In television advertising, the Commission will regard any disclosure
of the pre-sale availability of warranties as complying with this Guide
if the advertisement makes the necessary disclosure simultaneously with
or immediately following the warranty claim and the disclosure is made
in the audio portion, or, if in the video portion, it remains on the
screen for at least five seconds.
2See note 1.
16 CFR 239.3 ''Satisfaction Guarantees'' and similar representations in
advertising; disclosure in advertising that mentions ''satisfaction
guarantees'' or similar representations.
(a) A seller or manufacturer should use the terms ''Satisfaction
Guarantee,'' ''Money Back Guarantee,'' ''Free Trial Offer,'' or similar
representations in advertising only if the seller or manufacturer, as
the case may be, refunds the full purchase price of the advertised
product at the purchaser's request.
(b) An advertisement that mentions a ''Satisfaction Guarantee'' or a
similar representation should disclose, with such clarity and prominence
as will be noticed and understood by prospective purchasers, any
material limitations or conditions that apply to the ''Satisfaction
Guarantee'' or similar representation.
Examples: These examples are for both print and broadcast
advertising. These examples are illustrative, not exhaustive.
Example A: (In an advertisement mentioning a satisfaction guarantee
that is conditioned upon return of the unused portion within 30 days)
''We guarantee your satisfaction. If not completely satisfied with Acme
Spot Remover, return the unused portion within 30 days for a full
refund.''
Example B: (In an advertisement mentioning a money back guarantee
that is conditioned upon return of the product in its original
packaging) ''Money Back Guarantee! Just return the ABC watch in its
original package and ABC will fully refund your money.''
16 CFR 239.4 ''Lifetime'' and similar representations.
If an advertisement uses ''lifetime,'' ''life,'' or similar
representations to describe the duration of a warranty or guarantee,
then the advertisement should disclose, with such clarity and prominence
as will be noticed and understood by prospective purchasers, the life to
which the representation refers.
Examples: These examples are for both print and broadcast
advertising. These examples are illustrative, not exhaustive.
Example A: (In an advertisement mentioning a lifetime guarantee on
an automobile muffler where the duration of the guarantee is measured by
the life of the car in which it is installed) ''Our lifetime guarantee
on the Whisper Muffler protects you for as long as your car runs -- even
if you sell it, trade it, or give it away!''
Example B: (In an advertisement mentioning a lifetime guarantee on a
battery where the duration of the warranty is for as long as the
original purchaser owns the car in which it was installed) ''Our battery
is backed by our lifetime guarantee. Good for as long as you own the
car!''
16 CFR 239.5 Performance of warranties or guarantees.
A seller or manufacturer should advertise that a product is warranted
or guaranteed only if the seller or manufacturer, as the case may be,
promptly and fully performs its obligations under the warranty or
guarantee.
16 CFR 239.5 PART 240 -- GUIDES FOR ADVERTISING ALLOWANCES AND OTHER
MERCHANDISING PAYMENTS AND SERVICES
Sec.
240.1 Purpose of the Guides.
240.2 Applicability of the law.
240.3 Definition of seller.
240.4 Definition of customer.
240.5 Definition of competing customers.
240.6 Interstate commerce.
240.7 Services or facilities.
240.8 Need for a plan.
240.9 Proportionally equal terms.
240.10 Availability to all competing customers.
240.11 Wholesaler or third party performance of seller's obligations.
240.12 Checking cusomter's use of payments.
240.13 Customer's and third party liability.
240.14 Meeting competition.
240.15 Cost justification.
Authority: Secs. 5, 6, 38 Stat. 719, as amended, 721; 15 U.S.C.
45, 46; 49 Stat. 1526; 15 U.S.C. 13, as amended.
Source: 55 FR 33663, Aug. 17, 1990, unless otherwise noted.
16 CFR 240.1 Purpose of the Guides.
The purpose of these Guides is to provide assistance to businesses
seeking to comply with sections 2 (d) and (e) of the Robinson-Patman Act
(the ''Act''). The guides are based on the language of the statute, the
legislative history, administrative and court decisions, and the
purposes of the Act. Although the Guides are consistent with the case
law, the Commission has sought to provide guidance in some areas where
no definitive guidance is provided by the case law. The Guides are what
their name implies -- guidelines for compliance with the law. They do
not have the force of law.
16 CFR 240.2 Applicability of the law.
(a) The substantive provisions of section 2 (d) and (e) apply only
under certain circumstances. Section 2(d) applies only to:
(1) A seller of products
(2) Engaged in interstate commerce
(3) That either directly or through an intermediary
(4) Pays a customer for promotional services or facilities provided
by the customer
(5) In connection with the resale (not the initial sale between the
seller and the customer) of the seller's products
(6) Where the customer is in competition with one or more of the
seller's other customers also engaged in the resale of the seller's
products of like grade and quality.
(b) Section 2(e) applies only to:
(1) A seller of products
(2) Engaged in interstate commerce
(3) That either directly or through an intermediary
(4) Furnishes promotional services or facilities to a customer
(5) In connection with the resale (not the initial sale between the
seller and the customer) of the seller's products
(6) Where the customer is in competition with one or more of the
seller's other customers also engaged in the resale of the seller's
products of like grade and quality.
(c) Additionally, section 5 of the FTC Act may apply to buyers of
products for resale or to third parties. See 240.13 of these Guides.
16 CFR 240.3 Definition of seller.
Seller includes any person (manufacturer, wholesaler, distributor,
etc.) who sells products for resale, with or without further processing.
For example, selling candy to a retailer is a sale for resale without
processing. Selling corn syrup to a candy manufacturer is a sale for
resale with processing.
16 CFR 240.4 Definition of customer.
A customer is any person who buys for resale directly from the
seller, or the seller's agent or broker. In addition, a ''customer'' is
any buyer of the seller's product for resale who purchases from or
through a wholesaler or other intermediate reseller. The word
''customer'' which is used in section 2(d) of the Act includes
''purchaser'' which is used in section 2(e).
Note: There may be some exceptions to this general definition of
''customer.'' For example, the purchaser of distress merchandise would
not be considered a ''customer'' simply on the basis of such purchase.
Similarly, a retailer or purchasing solely from other retailers, or
making sporadic purchases from the seller or one that does not regularly
sell the seller's product, or that is a type of retail outlet not
usually selling such products (e.g., a hardware store stocking a few
isolated food items) will not be considered a ''customer'' of the seller
unless the seller has been put on notice that such retailer is selling
its product.
Example 1: A manufacturer sells to some retailers directly and to
others through wholesalers. Retailer A purchases the manufacturer's
product from a wholesaler and resells some of it to Retailer B.
Retailer A is a customer of the manufacturer. Retailer B is not a
customer unless the fact that it purchases the manufacturer's product is
known to the manufacturer.
Example 2: A manufacturer sells directly to some independent
retailers, to the headquarters of chains and of retailer-owned
cooperatives, and to wholesalers. The manufacturer offers promotional
services or allowances for promotional activity to be performed at the
retail level. With respect to such services and allowances, the
direct-buying independent retailers, the headquarters of the chains and
retailer-owned cooperatives, and the wholesaler's independent retailer
customers are customers of the manufacturer. Individual retail outlets
of the chains and the members of the retailer-owned cooperatives are not
customers of the manufacturer.
Example 3: A seller offers to pay wholesalers to advertise the
seller's product in the wholesalers' order books or in the wholesalers'
price lists directed to retailers purchasing from the wholesalers. The
wholesalers and retailer-owned cooperative headquarters and headquarters
of other bona-fide buying groups are customers. Retailers are not
customers for purposes of this promotion.
16 CFR 240.5 Definition of competing customers.
Competing customers are all businesses that compete in the resale of
the seller's products of like grade and quality at the same functional
level of distribution regardless of whether they purchase directly from
the seller or through some intermediary.
Example 1: Manufacturer A, located in Wisconsin and distributing
shoes nationally, sells shoes to three competing retailers that sell
only in the Roanoke, Virginia area. Manufacturer A has no other
customers selling in Roanoke or its vicinity. If Manufacturer A offers
its promotion to one Roanoke customer, it should include all three, but
it can limit the promotion to them. The trade area should be drawn to
include retailers who compete.
Example 2: A national seller has direct-buying retailing customers
reselling exclusively within the Baltimore area, and other customers
within the area purchasing through wholesalers. The seller may lawfully
engage in a promotional campaign confined to the Baltimore area,
provided that it affords all of its retailing customers within the area
the opportunity to participate, including those that purchase through
wholesalers.
Example 3: B manufactures and sells a brand of laundry detergent for
home use. In one metropolitan area, B's detergent is sold by a grocery
store and a discount department store. If these stores compete with
each other, any allowance, service or facility that B makes available to
the grocery store should also be made available on proportionally equal
terms to the discount department store.
16 CFR 240.6 Interstate commerce.
The term ''interstate commerce'' has not been precisely defined in
the statute. In general, if there is any part of a business which is
not wholly within one state (for example, sales or deliveries of
products, their subsequent distribution or purchase, or delivery of
supplies or raw materials), the business may be subject to sections 2(d)
and 2(e) of the Act. (The commerce standard for sections 2 (d) and (e)
is at least as inclusive as the commerce standard for section 2(a).)
Sales or promotional offers within the District of Columbia and most
United States possessions are also covered by the Act.
16 CFR 240.7 Services or facilities.
The terms ''services'' and ''facilities'' have not been exactly
defined by the statute or in decisions. One requirement, however, is
that the services or facilities be used primarily to promote the resale
of the seller's product by the customer. Services or facilities that
relate primarily to the original sale are covered by section 2(a). The
following list provides some examples -- the list is not exhaustive --
of promotional services and facilities covered by sections 2 (d) and
(e):
Cooperative advertising;
Handbills;
Demonstrators and demonstrations;
Catalogues;
Cabinets;
Displays;
Prizes or merchandise for conducting promotional contests;
Special packaging, or package sizes.
16 CFR 240.8 Need for a plan.
A seller who makes payments or furnishes services that come under the
Act should do so according to a plan. If there are many competing
customers to be considered or if the plan is complex, the seller would
be well advised to put the plan in writing. What the plan should
include is describe in more detail in the remainder of these Guides.
Briefly, the plan should make payments or services functionally
available to all competing customers on proportionally equal terms.
(See 240.9 of this part.) Alternative terms and conditions should be
made available to customers who cannot, in a practical sense, take
advantage of some of the plan's offerings. The seller should inform
competing customers of the plans available to them, in time for them to
decide whether to participate. (See 240.10 of this part.)
16 CFR 240.9 Proportionally equal terms.
(a) Promotional services and allowances should be made available to
all competing customers on proportionally equal terms. No single way to
do this is prescribed by law. Any method that treats competing
customers on proportionally equal terms may be used. Generally, this
can be done most easily by basing the payments made or the services
furnished on the dollar volume or on the quantity of the product
purchased during a specified period. However, other methods that result
in proportionally equal allowances and services being offered to all
competing customers are acceptable.
(b) When a seller offers more than one type of service, or payments
for more than one type of service, all the services or payments should
be offered on proportionally equal lterms. The seller may do this by
offering all the payments or services at the same rate per unit or
amount purchased. Thus, a seller might offer promotional allowances of
up to 12 cents a case purchased for expenditures on either newspaper
advertising or handbills.
Example 1: A seller may offer to pay a specified part (e.g., 50
percent) of the cost of local advertising up to an amount equal to a
specified percentage (e.g., 5 percent) of the dollar volume of purchases
during a specified period of time.
Example 2: A seller may place in reserve for each customer a
specified amount of money for each unit purchased, and use it to
reimburse these customers for the cost of advertising the seller's
product.
Example 3: A seller should not provide an allowance or service on a
basis that has rates graduated with the amount of goods purchased, as,
for instance, 1 percent of the first $1,000 purchased per month, 2
percent of the second $1,000 per month, and 3 percent of all over that.
Example 4: A seller should not identify or feature one or a few
customers in its own advertising without making the same service
available on proportionally equal terms to customers competing with the
identified customer or customers.
Example 5: A seller who makes employees available or arranges with a
third party to furnish personnel for purposes of performing work for a
customer should make the same offer available on proportionally equal
terms to all other competing customers or offer useable and suitable
services or allowances on proportionally equal terms to competing
customers for whom such services are not useable and suitable. /1/
Example 6: A seller should not offer to pay a straight line rate for
advertising if such payment results in a discrimination between
competing customers; e.g., the offer of $1.00 per line for advertising
in a newspaper that charges competing customers different amounts for
the same advertising space. The straight line rate is an acceptable
method for allocating advertising funds if the seller offers small
retailers that pay more than the lowest newspaper rate an alternative
that enables them to obtain the same percentage of their advertising
cost as large retailers. If the $1.00 per line allowance is based on 50
percent of the newspaper's lowest contract rate of $2.00 per line, the
seller should offer to pay 50 percent of the newspaper advertising cost
of smaller retailers that establish, by invoice or otherwise, that they
paid more than that contract rate.
Example 7: A seller offers each customer promotional allowances at
the rate of one dollar for each unit of its product purchased during a
defined promotional period. If Buyer A purchases 100 units, Buyer B 50
units, and Buyer C 25 units, the seller maintains proportional equality
by allowing $100 to Buyer A, $50 to Buyer B, and $25 to Buyer C, to be
used for the Buyers' expenditures on promotion.
/1/ The discriminatory purchase of display or shelf space, whether
directly or by means of so-called allowances, may violate the Act, and
may be considered an unfair method of competition in violation of
section 5 of the Federal Trade Commission Act.
16 CFR 240.10 Availability to all competing customers.
(a) Functional availability: (1) The seller should take reasonable
steps to ensure that services and facilities are useable in a practical
sense by all competing customers. This may require offering alternative
terms and conditions under which customers can participate. When a
seller provides alternatives in order to meet the availability
requirement, it should take reasonable steps to ensure that the
alternatives are proportionally equal, and the seller should inform
competing customers of the various alternative plans.
(2) The seller should insure that promotional plans or alternatives
offered to retailers do not bar any competing retailers from
participation, whether they purchase directly from the seller or through
a wholesaler or other intermediary.
(3) When a seller offers to competing customers alternative services
or allowances that are proportionally equal and at least one such offer
is useable in a practical sense by all competing customers, and refrains
from taking steps to prevent customers from participating, it has
satisfied its obligation to make services and allowances ''functionally
available'' to all customers. Therefore, the failure of any customer to
participate in the program does not place the seller in violation of the
Act.
Example 1: A manufacturer offers a plan for cooperative advertising
on radio, TV, or in newspapers of general circulation. Because the
purchases of some of the manufacturer's customers are too small this
offer is not useable in a practical sense by them. The manufacturer
should offer them alternative(s) on proportionally equal terms that are
useable in a practical sense by them.
Example 2: A seller furnishes demonstrators to large department
store customers. The seller should provide alternatives useable in a
practical sense on proportionally equal terms to those competing
customers who cannot use demonstrators. The alternatives may be
services useable in a practical sense that are furnished by the seller,
or payments by the seller to customers for their advertising or
promotion of the seller's product.
Example 3: A seller offers to pay 75 percent of the cost of
advertising in daily newspapers, which are the regular advertising media
of the seller's large or chain store customers, but a lesser amount,
such as only 50 percent of the cost, or even nothing at all, for
advertising in semi-weekly, weekly, or other newspapers or media that
may be used by small retail customers. Such a plan discriminates
against particular customers or classes of customers. To avoid that
discrimination, the seller in offering to pay allowances for newspaper
advertising should offer to pay the same percent of the cost of
newspaper advertising for all competing customers in a newspaper of the
customer's choice, or at least in those newspapers that meet the
requirements for second class mail privileges. While a small customer
may be offered, as an alternative to advertising in daily newspapers,
allowances for other media and services such as envelope stuffers,
handbills, window banners, and the like, the small customer should have
the choice to use its promotional allowance for advertising similar to
that available to the larger customers, if it can practicably do so.
Example 4: A seller offers short term displays of varying sizes,
including some which are useable by each of its competing customers in a
practical business sense. The seller requires uniform, reasonable
certification of performance by each customer. Because they are
reluctant to process the required paper work, some customers do not
participate. This fact does not place the seller in violation of the
functional availability requirement and it is under no obligation to
provide additional alternatives.
(b) Notice of available services and allowances: The seller has an
obligation to take steps reasonably designed to provide notice to
competing customers of the availability of promotional services and
allowances. Such notification should include enough details of the
offer in time to enable customers to make an informed judgment whether
to participate. When some competing customers do not purchase directly
from the seller, the seller must take steps reasonably designed to
provide notice to such indirect customers. Acceptable notification may
vary. The following is a non-exhaustive list of acceptable methods of
notification:
(1) By providing direct notice to customers;
(2) When a promotion consists of providing retailers with display
materials, by including the materials within the product shipping
container;
(3) By including brochures describing the details of the offer in
shipping containers;
(4) By providing information on shipping containers or product
packages of the availability and essential features of an offer,
identifying a specific source for further information;
(5) By placing at reasonable intervals in trade publications of
general and widespread distribution announcements of the availability
and essential features of promotional offers, identifying a specific
source for further information; and
(6) If the competing customers belong to an identifiable group on a
specific mailing list, by providing relevant information of promotional
offers to customers on that list. For example, if a product is sold
lawfully only under Government license (alcoholic beverages, etc.), the
seller may inform only its customers holding licenses.
(c) A seller may contract with intermediaries or other third parties
to provide notice. See 240.11.
Example 1: A seller has a plan for the retail promotion of its
product in Philadelphia. Some of its retailing customers purchase
directly and it offers the plan to them. Other Philadelphia retailers
purchase the seller's product through wholesalers. The seller may use
the wholesalers to reach the retailing customers that buy through them,
either by having the wholesalers notify these retailers, or by using the
wholesalers' customer lists for direct notification by the seller.
Example 2: A seller that sells on a direct basis to some retailers
in an area, and to other retailers in the area through wholsesalers, has
a plan for the promotion of its product at the retail level. If the
seller directly notifies competing direct purchasing retailers, and
competing retailers purchasing through the wholesalers, the seller is
not required to notify its wholesalers.
Example 3: A seller regularly promotes its product at the retail
level and during the year has various special promotional offers. The
seller's competing customers include large direct-purchasing retailers
and smaller retailers that purchase through wholesalers. The promotions
offered can best be used by the smaller retailers if the funds to which
they are entitled are pooled and used by the wholesalers on their behalf
(newspaper advertisements, for example). If retailers purchasing
through a wholesaler designate that wholesaler as their agent for
receiving notice of, collecting, and using promotional allowances for
them, the seller may assume that notice of, and payment under, a
promotional plan to such wholesaler constitutes notice and payment to
the retailer. The seller must have a reasonable basis for concluding
that the retailers have designated the wholesaler as their agent.
16 CFR 240.11 Wholesaler or third party performance of seller's
obligations.
A seller may contract with intermediaries, such as wholesalers,
distributors, or other third parties, to perform all or part of the
seller's obligations under sections 2(d) and (e). The use of
intermediaries does not relieve a seller of its responsibility to comply
with the law. Therefore, in contracting with an intermediary, a seller
should ensure that its obligations under the law are in fact fulfilled.
16 CFR 240.12 Checking customer's use of payments.
The seller should take reasonable precautions to see that the
services the seller is paying for are furnished and that the seller is
not overpaying for them. The customer should expend the allowance
solely for the purpose for which it was given. If the seller knows or
should know that what the seller is paying for or furnishing is not
being properly used by some customers, the improper payments or services
should be discontinued.
16 CFR 240.13 Customer's and third party liability.
(a) Customer's liability: Sections 2 (d) and (e) apply to sellers
and not to customers. However, the Commission may proceed under section
5 of the Federal Trade Commission Act against a customer who knows, or
should know, that it is receiving a discriminatory price through
services or allowances not made available on proportionally equal terms
to its competitors engaged in the resale of a seller's product.
Liability for knowingly receiving such a discrimination may result
whether the discrimination takes place directly through payments or
services, or indirectly through deductions from purchase invoices or
other similar means.
Example 1: A customer should not induce or receive advertising
allowances for special promotion of the seller's product in connection
with the customer's anniversary sale or new store opening when the
customer knows or should know that such allowances, or suitable
alternatives, are not available on proportionally equal terms to all
other customers competing with it in the distribution of the seller's
product.
Example 2: Frequently the employees of sellers or third parties,
such as brokers, perform in-store services for their grocery retailer
customers, such as stocking of shelves, building of displays and
checking or rotating inventory, etc. A customer operating a retail
grocery business should not induce or receive such services when the
customer knows or should know that such services (or usable and suitable
alternative services) are not available on proportionally equal terms to
all other customers competing with it in the distribution of the
seller's product.
Example 3: Where a customer has entered into a contract,
understanding, or arrangement for the purchase of advertising with a
newspaper or other advertising medium that provides for a deferred
rebate or other reduction in the price of the advertising, the customer
should advise any seller from whom reimbursement for the advertising is
claimed that the claimed rate of reimbursement is subject to a deferred
rebate or other reduction in price. In the event that any rebate or
adjustment in the price is received, the customer should refund to the
seller the amount of any excess payment or allowance.
Example 4: A customer should not induce or receive an allowance in
excess of that offered in the seller's advertising plan by billing the
seller at ''vendor rates'' or for any other amount in excess of that
authorized in the seller's promotional program.
(b) Third party liability: Third parties, such as advertising media,
may violate section 5 of the Federal Trade Commission Act through double
or fictitious rates or billing. An advertising medium, such as a
newspaper, broadcast station, or printer of catalogues, that publishes a
rate schedule containing fictitious rates (or rates that are not
reasonably expected to be applicable to a representative number of
advertisers), may violate section 5 if the customer uses such deceptive
schedule or invoice for a claim for an advertising allowance, payment or
credit greater than that to which it would be entitled under the
seller's promotional offering. Similarly, an advertising medium that
furnishes a customer with an invoice that does not reflect the
customer's actual net advertising cost may violate section 5 if the
customer uses the invoice to obtain larger payments than it is entitled
to receive.
Example 1: A newspaper has a ''national'' rate and a lower ''local''
rate. A retailer places an advertisement with the newspaper at the
local rate for a seller's product for which the retailer will seek
reimbursement under the seller's cooperative advertising plan. The
newspaper should not send the retailer two bills, one at the national
rate and another at the local rate actually charged.
Example 2: A newspaper has several published rates. A large
retailer has in the past earned the lowest rate available. The
newspaper should not submit invoices to the retailer showing a high rate
by agreement between them unless the invoice discloses that the retailer
may receive a rebate and states the amount (or approximate amount) of
the rebate, if known, and if not known, the amount of rebate the
retailer could reasonably anticipate.
Example 3: A radio station has a flat rate for spot announcements,
subject to volume discounts. A retailer buys enough spots to qualify
for the discounts. The station should not submit an invoice to the
retailer that does not show either the actual net cost or the discount
rate.
Example 4: An advertising agent buys a large volume of newspaper
advertising space at a low, unpublished negotiated rate. Retailers then
buy the space from the agent at a rate lower than they could buy this
space directly from the newspaper. The agent should not furnish the
retailers invoices showing a rate higher than the retailers actually
paid for the space.
16 CFR 240.14 Meeting competition.
A seller charged with discrimination in violation of sections 2 (d)
and (e) may defend its actions by showing that particular payments were
made or services furnished in good faith to meet equally high payments
or equivalent services offered or supplied by a competing seller. This
defense is available with respect to payments or services offered on an
area-wide basis, to those offered to new as well as old customers, and
regardless of whether the discrimination has been caused by a decrease
or an increase in the payments or services offered. A seller must
reasonably believe that its offers are necessary to meet a competitor's
offer.
16 CFR 240.15 Cost justification.
It is no defense to a charge of unlawful discrimination in the
payment of an allowance or the furnishing of a service for a seller to
show that such payment or service could be justified through savings in
the cost of manufacture, sale or delivery.
16 CFR 240.15 PART 241 -- GUIDES FOR THE DOG AND CAT FOOD INDUSTRY
Sec.
241.1 Definitions.
241.2 Misuse of terms.
241.3 Misrepresentation in general.
241.4 Misrepresenting composition, form, suitability, or quality in
labeling.
241.5 Misrepresenting composition, form, suitability, or quality in
advertising.
241.6 Misrepresentation of color in advertising.
241.7 Misrepresentation of flavor in advertising.
241.8 Diet and nutrient misrepresentation.
241.9 Misrepresentation of medicinal and therapeutic benefits.
241.10 Human food representation.
241.11 Misrepresentation of processing methods.
241.12 Defamation of competitors or false disparagement of their
products.
241.13 Misrepresentation of the character and size of business,
extent of testing, etc.
241.14 Deceptive endorsements, testimonials, and awards.
241.15 Bait advertising.
241.16 Guarantees, warranties, etc.
241.17 Deceptive pricing.
Authority: 38 Stat. 717, as amended; 15 U.S.C. 41-58.
Source: 34 FR 3619, Feb. 28, 1969, unless otherwise noted.
16 CFR 241.1 Definitions.
For the purpose of this part the following definitions shall apply:
(a) Industry product means a food for dogs or cats and includes all
types of dry, semimoist, frozen, canned, and other commercial foods
manufactured or marketed for consumption by domesticated dogs or cats.
The term also includes special candy for such dogs and cats but does not
include animal medicines or remedies.
(b) Industry member means a person, firm, corporation, or
organization engaged in the importation, manufacture, sale or
distribution of an industry product.
(c) Ingredients are the constituent materials making up a food for
dogs or cats. Except as otherwise prescribed in this part the names and
definitions of ingredients adopted by the Association of American Feed
Control Officials will be used in the administration of this part,
except that with respect to products which have been certified by the
Department of Agriculture under the provisions of 9 CFR 355.1-355.42,
the definitions set forth in those regulations will be used. (Guide 1)
16 CFR 241.2 Misuse of terms.
Industry products and their respective ingredients should be
identified and designated in accordance with the provisions of paragraph
(c) of 241.1 of this part, or if no name or definition has been
established for an ingredient, it should be designated or identified by
its common or usual name. The names of ingredients should not be used
in advertising, labeling, brand or trade name, or otherwise, so as to
misrepresent directly or by implication the identity of an ingredient or
the composition of an industry product. (Guide 2)
16 CFR 241.3 Misrepresentation in general.
Industry members should not use or cause or promote the use of any
promotional materials, advertising, labels, insignia, brand or trade
names which have the capacity and tendency or effect of misleading or
deceiving purchasers or prospective purchasers:
(a) With respect to the composition, substance, content, identity,
quantity, appearance, consistency, form, shape, color, flavor, cost,
value, origin, grade, quality, suitability, nutritional properties,
methods of manufacture, manner of processing, or novelty of an industry
product or ingredient thereof; or
(b) In any other material respect. (Guide 3)
16 CFR 241.4 Misrepresenting composition, form, suitability, or quality
in labeling.
An industry member should not use on the label of an industry product
a statement of identity, vignette, or any other representation,
pictorial or otherwise, which has the capacity and tendency or effect of
misleading or deceiving purchasers or prospective purchasers with
respect to the composition, form, suitability, quality, color, or flavor
of the product or any of its ingredients. More specifically:
(a) A label should contain sufficient information to enable a
purchaser or prospective purchaser to determine the nature and
composition of the product and the purposes for which it is suitable.
As a prospective purchaser usually cannot ascertain by inspection
whether an industry product will satisfy all of the nutritional
requirements of a dog or cat, labeling respecting a product which is
suitable only for particular purposes, e.g., as an intermittent or
supplemental food, a special food for puppies, a protein supplement, or
as a maintenance food for mature dogs, or is otherwise not a complete
food, should not contain direct or implied representations which are
misleading with respect to the purposes for which the product is
suitable. To avoid misleading prospective purchasers in this respect it
is generally necessary to disclose clearly and conspicuously the
particular purposes for which the product is suitable or that the
product is not a complete food.
(b) When used as part of a product name or statement of identity, the
name of a particular ingredient should not be set forth in such a manner
as to mislead prospective purchasers into believing that there is a
greater proportion of such ingredient in the product than there is in
fact. For example, if a product is composed of 80 percent meat
byproducts and 15 percent beef, and 5 percent other ingredients, and is
designated as ''meat by-products and beef'', the word ''beef'' in the
product name or statement of identity should not be more conspicuous
than the words ''meat by-products.'' (Guide 4)
16 CFR 241.5 Misrepresenting composition, form, suitability, or quality
in advertising.
An industry member should not make any representation in an
advertisement1080 which has the capacity and tendency or effect of
deceiving purchasers or prospective purchasers as to the composition,
appearance, form, suitability or quality of an industry product or of
any ingredient thereof. More specifically:
(a) A product should not be described in advertising as ''all meat''
or ''100 percent meat,'' or ''all tuna,'' or ''all chicken,'' or
otherwise represented as being composed wholly of a named ingredient if
it contains other ingredients such as the byproducts of meat, poultry,
or fish. However, for the purpose of this provision, water sufficient
for processing, required decharacterizing agents, and trace amounts of
preservatives and condiments shall not be considered ingredients.
(b) The name or names of ingredients derived from animals, poultry or
fish, such as ''meat,'' ''beef,'' ''tuna,'' or ''chicken and eggs''
should not be used as a complete description of the composition of an
industry product unless the product contains at least 95 percent by
weight of the named ingredient or combination of such ingredients. If
the product contains more than one ingredient derived from animals,
poultry, or fish, the name of a preferred ingredient should not be given
precedence or undue prominence so as to create the impression that the
product contains a greater amount of that ingredient than it does in
fact. For example, if a product contains 70 percent eggs and 25 percent
chicken it should be described as ''eggs and chicken.''
(c) The names of ingredients derived from animals, poultry or fish or
words or terms suggestive thereof, or representations that a product
contains such ingredients, should not be used in advertising respecting
an industry product unless the ingredients so named, represented, or
suggested are present in the product in substantial amounts and the
name, word, term, or representation is accompanied by a clear and
conspicuous disclosure of the nature of the other ingredients contained
in the product. The disclosure contemplated by this provision does not
necessitate a complete listing of ingredients but only such description
as is necessary to remove any likelihood of deception as to the general
nature and composition of the product. However, no ingredient should be
given undue emphasis so as to create the impression that it is present
in the product in a larger amount than is the fact. This provision is
not intended to preclude the use of such names or terms as descriptive
of the flavor of a product which has the flavor represented and is
immediately followed by the word ''flavor'' (see 241.7 of this part),
or to affect the use in advertising of product names or statements of
identity which conform to the provisions of 241.4 of this part. The
following are examples of appropriate disclosures under this paragraph:
(1) ''A meaty mixture of vegetables, cereals, and other nutritional
ingredients.''
(2) ''Contains cereals, vegetables, and meat.''
(d) Such terms as ''stew,'' ''hash,'' or other human food terms
should not be used to describe an industry product or an ingredient
thereof which is not so constituted as to conform to Federal standards
of identity established for such foods. However, the specified
percentages of meat, poultry, or fish ingredients may properly be
composed of the named ingredient or of a combination of that ingredient
and the parts of poultry or fish, or the byproducts of animals, poultry,
or fish from which the ingredient was derived. For example, a product
described as ''Meat Stew for Dogs'' should contain not less than 25
percent meat and meat byproducts, or a product described as ''Chicken
Stew for Dogs'' should contain not less than 25 percent chicken and
chicken parts, or a product described as ''Pet Stew for Dogs'' should
contain not less than 25 percent meat and meat by-products, or poultry
products, and a variety of vegetables and other nutritional ingredients.
(e) Representations that a product contains or is fortified with
fresh eggs should not be made if the product in fact contains no fresh
eggs or an inappreciable amount thereof, or only dried or powdered eggs
or egg yolks or egg whites, or only such eggs as may be found in the
carcasses of poultry.
(f) Representations that an industry product contains whole fresh
milk should not be made if the product in fact contains reconstituted
milk, skimmed milk, buttermilk, or dry powdered whole or skimmed milk.
(g) Representations that a product or an ingredient thereof is
''moist in its own juices'' or otherwise that the moisture therein is
the natural juices contained in the product or ingredients should not be
made if water or other liquids have been added thereto.
(h) Vignettes and graphic and pictorial illustrations of an industry
product or the contents, ingredients on immediate container thereof,
which have the capacity and tendency or effect of misleading or
deceiving purchasers or prospective purchasers with respect to the
appearance, substance, condition, or composition of the product or its
ingredients should not be used. A pictorial or other depiction of a
product which has the appearance of being composed entirely of meat or
of other ingredients derived from animals, poultry or fish, but which in
fact is not so composed, should be accompanied by a clear and
conspicuous disclosure of the nature of the ingredients contained in the
product.
(i) Terms such as ''burger,'' ''chunk,'' ''patty,'' ''cubes,''
''loaf,'' ''croquettes,'' and others of similar import, should not be
used to describe a product or an ingredient thereof which does not have
substantially the shape or form so represented when it is sold to the
retail purchaser. Terms denoting shape or form which also suggest
ingredients derived from animals, poultry, or fish are subject to the
provisions of this part relating to misrepresentation of content.
(j) The quality of an industry product from the nutritional
standpoint is not necessarily dependent upon its meat content, or upon
the amount or nature of other ingredients derived from animals, poultry
or fish which it may contain. Accordingly, it is improper to represent
that a dog or cat has a nutritional requirement for such an ingredient,
or that solely because a particular industry product contains, for
example, a specified percentage of meat it is nutritionally superior to
products having a lesser quantity of meat, or to those which contain
other and different ingredients. Such advertising is deceptive because
it does not take into consideration the nutritional properties of
various ingredients or combinations thereof used in the formulation and
processing of industry products.
(k) Representations or claims by an industry member that a product is
superior to other products from the standpoint of quality, composition,
nutritional properties or method of manufacture should not be made
unless the advertiser has established on the basis of accurate
comparative analyses or scientifically valid tests that such is the
fact. Comparatives such as ''meatier,'' ''higher meat protein,'' and
''greater meat content'' should not be used as descriptive of an
industry product or an ingredient thereof without disclosing the basis
of comparison, e.g., ''meatier than our other products.''
(l) It is deceptive to offer for sale or sell an industry product
which is not suitable for use as a food for dogs or cats. As a
prospective purchaser usually cannot ascertain by inspection whether an
industry product will satisfy all of the nutritional requirements of a
dog or cat, advertising respecting a product which is suitable only for
particular purposes, e.g., as an intermittent or supplemental food, a
special food for puppies, a protein supplement, or as a maintenance food
for mature dogs, or is otherwise not a complete food, should not contain
direct or implied representations which are misleading with respect to
the purposes for which the product is suitable. To avoid misleading
prospective purchasers in this respect it is generally necessary to
disclose clearly and conspicuously the particular purposes for which the
product is suitable or that the product is not a complete food. This
disclosure is especially necessary where in the absence thereof
purchasers would be led by the advertising to believe that the product
is nutritionally complete.
(m) Advertising should not contain any representation with respect to
the identity, composition, or suitability of any industry product or an
ingredient thereof, which contradicts, negates or is otherwise
inconsistent with any representation, statement, direction for use, or
other information which appears in the labeling of such a product.
(n) In advertisements pertaining to more than one of its products an
industry member should use only such terms as are properly applicable to
all of the products so advertised, unless the advertisement specifically
identifies the particular products to which certain representations are
applicable. For example, if ''Y Company'' has on the market an ''all
meat'' product for dogs, an ''all tuna'' products for cats, and two
separate, complete ration-type foods for dogs and cats respectively, it
should not in a single advertisement represent that Y products are
complete foods, or that they are ''all meat.'' (Guide 5)
0801The word ''advertising'' or ''advertisement'' as used in this
part includes any written or verbal statement, notice presentation,
illustration, or depiction, other than labeiling, which is directly or
indirectly designed to effect the sale of any industry product, or to
create an interest in the purchase of any such product, whether same
appears in a newspaper, magazine, or other periodical, in a catalog,
letter, or sales promotional literature, in a radio or television
broadcast, or in any other media.
16 CFR 241.6 Misrepresentation of color in advertising.
An industry member should not misrepresent directly or indirectly, in
advertising, the actual color of an industry product. More
specifically, it should not represent that the color of a product is its
natural color when such color has been established by artificial means;
or that a product does not contain an artificial coloring ingredient
unless this is true in fact; or that the color of a product is of any
particular significance to a dog or to a cat. (Guide 6)
16 CFR 241.7 Misrepresentation of flavor in advertising.
An industry member should not represent directly or indirectly, in
advertising, that a product has a particular flavor unless the product
has that flavor and the designated or named flavor is detectable by a
recognized test method, or provides a characteristic distinguishable by
the animal for which the product is intended. If the advertisement
contains representations respecting flavor and the flavor has been
derived from artificial sources that fact should be disclosed. (Guide
7)
16 CFR 241.8 Diet and nutrient misrepresentation.
An industry member should not represent directly or indirectly, in
advertising, labeling, brand or tradename, or otherwise:
(a) That an industry product, or a recommended feeding thereof, is or
meets the requisites of a complete, perfect, scientific, or balanced
ration for dogs or cats unless such product or feeding:
(1) Contains ingredients in quantities sufficient to satisfy the
estimated nutrient requirements established by a recognized authority on
animal nutrition, such as The Committee on Animal Nutrition of the
National Research Council of the National Academy of Sciences; or
(2) Contains a combination of ingredients which, when fed to a normal
animal as the only source of nourishment, will provide satisfactorily
for fertility of the male and female, gestation and lactation, normal
growth from weaning to maturity without supplementary feeding and will
maintain the normal weight of an adult animal whether working or at
rest, and has had its capabilities in this regard demonstrated by
adequate testing.
(b) That any listing of nutrients is equal to or exceeds the amounts
recommended by a recognized authority on animal nutrition, such as the
Committee on Animal Nutrition of the National Research Council of the
National Academy of Sciences, unless such listing utilizes the same
units of measure, and lists in equal or excess amounts all of the
essential nutrients contained in the most recent nutrient list of that
authority; or
(c) That a product or ingredient thereof contains vitamins, minerals,
or other nutrients in excess of the actual content thereof, as for
example, by comparing the vitamins, minerals, or other nutrients of a
product or ingredient thereof with the nutrient content of a food
deficient in such nutrients; or
(d) That any product or ingredient thereof provides ''super protein
richness,'' or a complete source of protein in that it contains the
essential body building amino acids, inferably in the proper amount and
proportion for proper nutrition, when such is not the fact. (Guide 8)
16 CFR 241.9 Misrepresentation of medicinal and therapeutic benefits.
An industry member should not represent directly or indirectly in
advertising, labeling, brand or trade name, or otherwise, that a product
or ingredient thereof will:
(a) Prevent, cure, correct, tend to correct, eliminate, remove, or
provide resistance to any disease, condition, disorder, infection, or
parasite, or in any way improve the health or condition of any animal,
when such is not the fact; or
(b) Provide any therapeutic benefit which it is capable of providing
only in instances where the consuming animal's ordinary diet is
deficient in elements supplied by the product or ingredient, unless due
notice or qualification is made to that effect. (Guide 9)
16 CFR 241.10 Human food representation.
An industry member should not misrepresent directly or indirectly, in
advertising, labeling, brand or trade name or otherwise, that a product
is fit for human consumption or made under the same sanitary conditions
as food for humans. (Guide 10)
16 CFR 241.11 Misrepresentation of processing methods.
An industry member should not, in advertising, labeling or otherwise,
misrepresent the methods used in the manufacture or processing of an
industry product. More specifically: Representations that a product
has been broiled, braised, baked, or otherwise cooked, preserved or
processed in a specific manner should not be made unless such is the
fact. As the word ''canned'' when applied to an industry product may
constitute a representation as to the manner in which a product has been
processed as well as to the nature of the container in which it is
packaged, a product should not be described without qualification as
''canned'' unless it has been both thermally processed and packed in a
can. (Guide 11)
16 CFR 241.12 Defamation of competitors or false disparagement of their
products.
An industry member should not directly or indirectly in advertising,
labeling, or otherwise:
(a) Engage in the defamation of its competitors by falsely imputing
to them dishonorable conduct, inability to perform contracts,
questionable credit standing, or by making other false representations
about them; or
(b) Falsely disparage the quality, grade, origin, appearance,
composition, suitability, nutritional properties, cost, value, type,
consistency, form, color, flavor, method of manufacture, manner of
preparation, or lack of novelty of its competitors' products. (Guide
12)
16 CFR 241.13 Misrepresentation of the character and size of business,
extent of testing, etc.
An industry member should not misrepresent directly or indirectly in
company, brand or trade name, or in advertising, labeling, or otherwise:
(a) The length of time it has been in business; or
(b) The extent of its sales; or
(c) Its rank in the industry as a producer or distributor of a
product or type of product; or
(d) That it is a manufacturer or packer of industry products; or
(e) That it owns or operates a laboratory, breeding or experimental
kennel, or that its products have been tested in any particular manner
or for any period of time or with any particular results; or
(f) That a product, ingredient, or manufacturing process is new or
exclusive; or
(g) Any other material aspect of its business or products. (Guide
13)
16 CFR 241.14 Deceptive endorsements, testimonials, and awards.
An industry member should not deceptively represent directly or
indirectly by endorsement, testimonial, award, advertising, labeling,
brand or trade name, or otherwise:
(a) That a product or ingredient thereof has been prepared according
to the formula, direction, or personal supervision of, or is prescribed
by, or is the first choice of, or has been inspected, guaranteed,
recognized, approved or used by; or meets or exceeds the specifications
or standards of; or is otherwise endorsed by a particular individual or
class of individuals, or by a governmental or nongovernmental agency, or
by professionals such as veterinarians, chemists, physicists, or
psychiatrists, or by organizations, breeders, kennels, sportsmen, hunt
clubs, or animal hospitals; or
(b) That a product is the recipient of a bona fide merit award or
seal of approval; or
(c) That a product or an ingredient thereof has been inspected by the
U.S. Government or any agency thereof and that it has passed that
inspection. (Guide 14)
16 CFR 241.15 Bait advertising.
An industry member should not offer for sale any industry product
when the offer is not a bona fide effort to sell the product so offered
as advertised and at the advertised price.
Note: 1. In determining whether there has been compliance with this
section, consideration will be given to acts or practices indicating
that the offer was not made in good faith for the purpose of selling the
advertised product, but was made for the purpose of contacting
prospective purchasers and selling them a product or products other than
the product offered. Among acts or practices which will be considered
in making that determination are the following:
(a) The creation, through the initial offer or advertisement, or a
false impression of the product offered in any material respect;
(b) The refusal to show, demonstrate or sell the product offered in
accordance with the terms of the offer;
(c) The disparagement by acts or words of the product offered or the
disparagement of the guarantee, or in any other respect in connection
with it;
(d) The showing, demonstrating, and in the event of sale, the
delivery of a product which is unsuitable for the purpose represented or
implied in the offer;
(e) The failure, in the event of sale of the product offered, to
deliver such product to the buyer within a reasonable time thereafter;
(f) The failure to have available a quantity of the advertised
product at the advertised price sufficient to meet reasonably
anticipated demands.
It is not necessary that each act or practice set forth above be
present in order to establish that a particular offer does not comply
with this section.
Note: 2. The Commission's Guides Against Bait Advertising furnish
additional guidance respecting bait advertising. See 16 CFR Part 238
for the Guides Against Bait Advertising.
(Guide 15)
16 CFR 241.16 Guarantees, warranties, etc.
(a) An industry member should not represent in advertising or
otherwise that a product is guaranteed without clear and conspicuous
disclosure of:
(1) The nature and extent of the guarantee; and
(2) Any material conditions or limitations in the guarantee which are
imposed by the guarantor; and
(3) The manner in which the guarantor will perform thereunder; and
(4) The identity of the guarantor. (The necessary disclosure
requires that any guarantee made by the dealer or vendor which is not
backed up by the manufacturer must make it clear that the guarantee is
offered by the dealer or vendor only.)
(b) A seller or manufacturer should not advertise or represent that a
product is guaranteed when he cannot or does not promptly and
scrupulously fulfill his obligations under the guarantee.
(c) A specific example of refusal to perform obligations under the
guarantee would arise in connection with the use of the phrase
''Satisfaction or your money back'' if the guarantor does not promptly
make a full refund of the purchase price upon request, irrespective of
the reason for such a request.
(d) This section has application not only to ''guarantees'' but also
to ''warranties,'' to purported ''guarantees'' and ''warranties,'' and
to any promise or representation in the nature of a ''guarantee'' or
''warranty.''
Note: The Commission's Guides Against Deceptive Advertising of
Guarantees furnish additional guidance respecting guarantee
representations. See 16 CFR Part 239 for Guides Against Deceptive
Advertising of Guarantees.
(Guide 16)
16 CFR 241.17 Deceptive pricing.
An industry member should not represent directly or indirectly in
advertising or otherwise that an industry product may be purchased for a
specified price, or at a saving, or at a reduced price, when such is not
the fact; or otherwise deceive purchasers or prospective purchasers
with respect to the price of any product offered for sale; or furnish
any means or instrumentality by which others engaged in the sale of
industry products may make any such representation.
Note: The Commission's Guides Against Deceptive Pricing furnish
additional guidance respecting price savings representations. See 16
CFR Part 233 for the Guides Against Deceptive Pricing.
(Guide 17)
16 CFR 241.17 PART 242 -- GUIDE AGAINST DECEPTIVE USE OF THE WORD ''FREE'' IN CONNECTION WITH THE SALE OF PHOTOGRAPHIC FILM AND FILM PROCESSING SERVICE
16 CFR 242.1 The guide.
(a) A common form of bargain advertising used to promote the sale of
photographic film processing service is the offer of a roll of film,
represented as being free to consumers who purchase a particular
advertiser's service.
(b) Film processors should avoid representing film as ''free'' when
their quoted price for processing is not their regular price for such
service, or, when the price charged for processing in connection with
the ''free'' film representation is in excess of the price regularly
charged by them for processing alone. A regular price is the price at
which an article or service is openly and actively sold by the
advertiser to the public on a regular basis for a reasonably substantial
period of time in the recent and regular course of business. A price
which (1) is not the advertiser's actual selling price, (2) is a price
which was not used in the recent past but at some remote period in the
past, or (3) is a price which has been used only for a short period of
time, is not a regular price. Consequently, use of any price or amount,
other than the advertiser's own bona fide regular price, in connection
with a ''free'' film representation is deceptive.
(c) ''Free'' film offers are understood by consumers to mean that the
price charged by the advertiser is for processing alone and has not been
raised to include any payment for the film. In other words, they
understand that the film, in fact, is a gift to the consumer given by
the advertiser in return for the processing business he receives. In
such circumstances, if any portion of the represented price charged for
processing includes any payment for the film to the processor, the
''free'' film offer is deceptive and consumers are misled.
(d) Where a processor has not established a regular price for
processing service by itself, he has no basis, except in the case of
introductory offers, upon which to make a ''free'' film representation.
Likewise, a processor may not justify ''free'' film offers, whether
advertised with or without qualification, on the ground that his price
for processing and film is equal to or less than the price charged by
local developers for processing alone, in a given trade area. Only the
processor's own regular processing price may be used as a basis for the
''free'' film representation.
(e) Continuous free film offers or the repetition of such offers with
great frequency should be avoided. Continuous or frequent offers of
free film made in connection with the sale of processing service are
false and misleading since the processor's price for his service alone
will, by lapse of time, become his regular price for processing service
and film in combination. The film, in such circumstances, would
therefore no longer be ''free''.
(f) Introductory (temporary) offers of ''free'' film should not be
advertised where processors do not, in good faith, expect to discontinue
the offer after a limited time and commence selling processing service
separately at the same price at which the offer of such service,
together with the ''free'' film, was made.
(g) The guide does not preclude the use of nondeceptive
''combination'' offers in which film and processing are offered for sale
as a single unit at a single stated price, and where no representation
is made that the price is to be paid for one item and the other is
''free''. Similarly, film processors are not precluded from setting a
price for processing which also includes furnishing the purchaser with a
replacement roll of film at one inclusive price -- again, where no
representation is made that the latter is ''free''.
Note: On December 1, 1953, the Commission approved a trade practice
rule on use of the word ''Free''. The provisions of the guide set forth
above are advisory in nature and are not to be construed as replacing or
modifying any of the provisions of the aforementioned trade practice
rule.
(38 Stat. 717, as amended; 15 U.S.C. 41-58)
(33 FR 8336, June 5, 1968)
16 CFR 242.1 PART 243 -- GUIDES FOR THE DECORATIVE WALL PANELING
INDUSTRY
Sec.
243.0 Definitions.
243.1 Avoiding deception generally.
243.2 Describing wood and wood imitations.
243.3 Deceptive use of wood names.
243.4 Imitations of materials other than wood.
243.5 Misleading illustrations.
243.6 Deceptive use of trade or corporate names, coined names,
trademarks, etc.
243.7 Passing off through imitation or simulation of trademarks,
trade names, etc.
243.8 Disclosure of ''seconds'', ''rejected'', or ''defective''
products, etc.
243.9 Representations concerning washability, cleanability, etc.
243.10 Size markings and designations.
243.11 Removal, obliteration, or alteration of marks or labels.
243.12 Misrepresenting products as conforming to standard or
specification.
243.13 Deception as to origin.
243.14 Other parts in this Title 16 applicable to this industry.
Authority: 38 Stat. 717, as amended; 15 U.S.C. 41-58.
Source: 36 FR 23796, Dec. 15, 1971, unless otherwise noted.
16 CFR 243.0 Definitions.
For the purpose of this part the following definitions shall apply:
(a) Industry member. Any person, firm, corporation, or organization
engaged in the manufacture, sale or distribution of industry products as
such products are hereinafter defined.
(b) Industry products. Industry products include all products,
whether of domestic or foreign origin, which are suitable for use as
interior decorative wall panels. Industry products may be composed of
any material or combinations of materials including, but not limited to,
solid wood, plywood, wood products, plastics, metals, etc., and may be
textured, prefinished, partially finished, or unfinished.
(c) Exposed surface, front or face. An ''exposed surface'' of a
decorative wall panel is the one prominently exposed to view when the
product is placed in the generally accepted position for use. The
''exposed surface'' is often referred to as the ''front'' or ''face'',
as contrasted to the back of a panel.
(d) Back. The back of a decorative wall panel is the surface reverse
to the face. The back is not generally intended to provide an
esthetically pleasing appearance and, therefore, is not considered an
''exposed surface'' under the definition immediately above. However,
these definitions do not preclude unusual construction giving a panel
two exposed surfaces or faces.
(e) Veneer. In this part, the term ''veneer'' is used in the sense
most commonly understood by ordinary consumers -- namely, to describe a
thin layer of more valuable or beautiful wood used on the face of a
panel for overlaying an inferior wood or other core material.
16 CFR 243.1 Avoiding deception generally.
(a) In general. Industry members should not sell, offer for sale, or
distribute industry products by any method, or under any representation,
circumstance, or condition which has the capacity and tendency or effect
of misleading purchasers or prospective purchasers as to the grade,
type, kind, character, content, construction, composition, process, or
technique used in preparation or fabrication, origin, size, thickness,
quality, quantity, value, price, serviceability, resistance,
performance, durability, color, finish, manufacture, or distribution of
any product of the industry or component part of such product, or in any
other respect.
(b) Basis for affirmative disclosures of facts. (1) Many of the
following sections set forth specific examples as to when affirmative
disclosures should be made in advertising and on labels. In order to
prevent deception the Commission may require affirmative disclosure of
material facts concerning merchandise which, if known to prospective
purchasers, would influence their decisions of whether or not to
purchase. The failure to disclose such facts as may be required is an
unfair trade practice violative of the Federal Trade Commission Act.
(2) Two of the most prevalent situations in which disclosures should
be made are (i) when the appearance of a wall panel could mislead
purchasers or potential purchasers as to its true composition, and (ii)
when a representation is made in any manner which is susceptible of at
least one misleading interpretation unless it is clearly qualified.
Representations which cannot be qualified without the qualification
amounting to a contradiction should not be used.
(c) Manner of making disclosures on products and in advertising. (1)
Retail dealers, manufacturers, and other suppliers must all assume the
affirmative responsibility to provide detailed information to the public
concerning the compositions of wall panels through informative
advertising, promotional materials, and properly labeled products and
samples thereof.
(2) When disclosures are necessary on industry products, they should
appear on each product (except when sold and used for industrial
purposes and the industrial purchaser is otherwise fully informed of the
material facts involved). Such disclosures should be on the product, or
on a tag or label attached thereto, and be of such permanency as to
remain on, or attached to, the product until consummation of sale to the
ultimate purchaser. Conspicuous disclosures may appear on backs of wall
panels, but in instances where such disclosures would not be readily
noticeable to casual observers, such as on certain point-of-sale display
panels where the backs are not easily viewed, disclosures should be made
on the front or face of panels.
(3) When disclosures are necessary in advertising, they should be
made in any advertisement relating to an industry product irrespective
of the form or media used whenever statements, representations or
depictions appear therein which, in the absence of such disclosures,
could serve to create a false impression that the product, or any part
thereof, is of a certain kind, size, quality or composition.
(4) In all cases, disclosures should be in immediate conjunction with
any representation, depiction, illustration, simulation, or display
making it necessary, and should be of sufficient clarity and
conspicuousness to be noted by prospective purchasers. The number of
times a disclosure should be made will depend entirely upon the context
in which it appears.
(5) When disclosures are necessary to describe composition, they may
be accomplished by stating the true composition (e.g., ''mahogany
grained hardboard'', ''walnut grain finish on plastic'', ''reproduction
of wood grain on plastic overlay'' or ''printed vinyl overlay on
plywood''), or by making a disclaimer of composition (e.g., ''imitation
wood surface'', ''simulated wood finish'' or ''simulated grain
design''). Of course, a representation concerning the composition of a
product should clearly indicate the part to which the representation is
properly applicable.
Note: For examples of when disclosures should be made, see the
following sections.
(Guide 1)
16 CFR 243.2 Describing wood and wood imitations.
In connection with the sale of industry products made of wood, or
which are not wood but have an appearance simulating wood, industry
members should not use any display, exhibit, sample, sales method,
depiction or representation which could have the capacity and tendency
directly or indirectly to mislead purchasers or potential purchasers
because of: A false statement; a half-truth; or the failure to
disclose facts concerning composition when the appearance of a product
could convey a misleading impression. 1081
(a) Examples of representations considered false include:
(1) Describing an oak panel as ''pecan'';
(2) Describing as ''solid birch'' or ''genuine birch'' a panel made
with laminations of all birch plies. Proper descriptions would include
''birch plywood'' or ''birch plies'';
(3) Describing a particleboard, flakeboard, hardwood, fiberboard,
chipcore or plywood panel as ''solid wood'';
(4) Describing as ''natural wood grain'' a simulated grain design
which has been printed on, attached to or simulated in any other manner
on the surface of an industry product;
(5) Describing a nonlumber product, such as particleboard, hardboard,
fiberboard, flakeboard, and products of similar composition, as
''wood''. Although such products are composed of wood particles or wood
fibers, they should not be represented without qualification as ''wood''
but may be described as ''particleboard'', ''hardboard'',
''fiberboard'', ''wood product'', or by any applicable nondeceptive word
or term.
(b) Examples of representations considered likely to mislead because
of a half-truth include:
(1) Describing as ''walnut'', ''in walnut'', ''genuine walnut'',
''walnut panel'' or ''walnut plywood'' a panel having only a face veneer
of walnut. Proper descriptions would include ''walnut veneer face'',
''walnut veneer surface'', ''walnut veneer'' or ''walnut veneered
plywood''.
Note: Unqualified terms such as ''walnut'', ''genuine walnut'' and
''in walnut'' imply that the product so described is solid walnut.
Unqualified terms such as ''walnut plywood'' imply that all of the plies
are walnut.
(2) Describing as ''walnut veneer'' a panel having a face veneer not
entirely of walnut. If a wood name is used to describe a panel having
more than one kind of wood in the face veneer then all of the woods in
the face veneers should be named or otherwise identified (e.g., ''walnut
and cherry veneers'' or ''walnut and other hardwood veneers'');
(3) Using unqualified phrases such as ''wood-pattern'' or ''woodgrain
finish'' to describe a panel having a wood surface which has been
stamped, rolled, pressed, or otherwise processed in such manner as to
change the natural wood grain design. Proper descriptions would include
''simulated woodgrain finish'', ''imitation grain figure'' or
''simulated walnut grain finish on birch face veneer'';
(4) Describing as ''hardwood plywood'' a panel made of hardwood
plywood but having a vinyl film surface simulating a wood finish.
Proper descriptions would include ''hardwood plywood with simulated wood
grain on vinyl overlay'' or ''simulated wood surface on plywood''.
(c) Examples of failure to disclose facts concerning composition when
the appearance of industry products could convey a misleading impression
include circumstances such as when a product, or part thereof, is: Wood
but has the appearance of a different kind of wood; and Not wood but
has an appearance simulating wood. For instance, when necessary to
prevent possible deception an affirmative disclosure should be made of
the facts concerning composition when an industry product, or part
thereof:
(1) Has an exposed surface of plastic, metal, vinyl, hardboard,
particle-board or other material not possessing a natural wood grain
structure but which has an appearance simulating that of a wood grain.
Depending on the composition, proper descriptions would include
''simulated walnut finish on plastic face'', ''vinyl surface with
simulated pecan finish'', ''simulated birch finish on hardboard''
''mahogany grained plastic'', or other nondeceptive phrases;
(2) Has a wood surface finished by means of staining, decalcomania,
printing, paper coating or other process so as to have the appearance of
a different kind of wood. Depending on the composition, proper
descriptions would include ''mahogany finished gum plywood'', ''walnut
stained plywood'', ''walnut finish on pecan veneer face'', or ''cherry
grain design on hardwood plywood'';
(3) Has an appearance which could mislead potential purchasers in any
material respect.
(d) Examples of wood names to describe color, grain design, etc.:
(1) When a wood name is used in advertising or labeling to describe
the grain and/or color of a stain finish or other type of simulated
finish which has been applied to a surface composed of something other
than solid wood of the type named, it should be made clear that the wood
name used is merely descriptive of the grain design and/or color or
other simulated finish.
(2) Under this section, unqualified phrases such as ''walnut'',
''walnut finish'', ''in walnut'', ''fruitwood'', ''oak'', ''mahogany
finish'', and other terms of similar import or meaning, will not be
adequate. But statements such as ''walnut stain'', ''maple stain
finish'', ''mahogany finish on gum'', ''photographically reproduced
pecan grain'', ''printed pecan design'', ''fruitwood finish on selected
hardwood veneer'', ''cherry grain finish on vinyl overlay'' and ''walnut
finish on other hardwoods'' (or ''softwoods'', as the case may be) will
satisfy this provision if such statements are factually correct and
appear in contexts which are otherwise nondeceptive. 2082
(Guide 2)
0811See paragraphs (b) and (c) of 243.1.
2See paragraphs (b) and (c) of 243.1.
16 CFR 243.3 Deceptive use of wood names.
Industry members should not use any direct or indirect representation
concerning the identity of the wood in industry products that is false
or likely to mislead purchasers as to the actual wood composition.
(a) Walnut. The unqualified term ''walnut'' should not be used to
describe wood other than genuine solid walnut (genus Juglans). The term
''black walnut'' should be applied only to the species Juglans nigra.
(b) Mahogany. (1) The unqualified term ''mahogany'' should not be
used to describe wood other than genuine solid mahogany (genus Swietenia
of the Meliaceae family). The woods of genus Swietenia may be described
by the term ''mahogany'' with or without a prefix designating the
country or region of its origin, such as ''Honduras mahogany''. ''Costa
Rican mahogany''. ''Brazilian mahogany'' or ''Mexican mahogany''.
(2) The term ''mahogany'' may be used to describe solid wood of the
genus Khaya of the Meliaceae family, but only when prefixed by the word
''African'' (e.g., ''African mahogany'').
(3) In naming or designating the seven nonmahogany Philippine woods
Tanguile, Red Lauan, White Lauan, Tiaong, Almon, Mayapis, and Bagtikan,
the term ''mahogany'' may be used but only when prefixed by the word
''Philippine'' (e.g., ''Philippine mahogany''), due to the long standing
usage of that term. Examples of improper use of the term ''mahogany''
include reference to Red Lauan as ''Lauan mahogany'' or to White Lauan
as ''Blond Lauan mahogany''. Such woods, however, may be described as
''Red Lauan'' or ''Lauan'' or ''White Lauan'', respectively. The term
''Philippine mahogany'' will be accepted as a name or designation of the
seven woods named above. Such term shall not be applied to any other
wood, whether or not grown on the Philippine Islands.
(4) The term ''mahogany'', with or without qualifications, should not
be used to describe any other wood except as provided above. This
applies also to any of the woods belonging to the Meliaceae family,
other than genera Swietenia and Khaya.
(c) Maple. The terms ''hard maple'', ''rock maple'', ''bird's-eye
maple'', ''Northern maple'' or other terms of similar nature should not
be used to describe woods other than those known under the lumber trade
names of Black Maple (Acer nigrum) and Sugar Maple (Acer saccharum).
Note: Nothing in this section should be construed as prohibiting the
nondeceptive use of wood names to describe the color, stain, simulated
finish, or appearance of industry products; Provided, That appropriate
qualifications are made in accordance with provisions in 243.2(d).
(Guide 3)
16 CFR 243.4 Imitations of materials other than wood.
Industry members should not misrepresent the composition of any
industry product, or part thereof, or fail to disclose any material fact
concerning the composition of an industry product when the failure to do
so has the capacity and tendency or effect of deceiving purchasers or
prospective purchasers. 3083 For example:
(a) A hardboard panel having an imitation marble finish should not be
described without qualification as ''marble'', ''onyx'', ''travertine''
or ''travertine marble finish''. Proper descriptions would include
''simulated marble finish'', ''imitation marble-textured'', ''marble
pattern on plastic faced hardboard'', ''simulated travertine on
hardboard'', ''marble pattern on vinylfaced hardboard'' or other
nondeceptive terms;
(b) A fiberboard panel having an imitation burlap finish should not
be described without qualifications as ''burlap'' or ''burlap finish''.
Proper descriptions would include ''imitation burlap weave finish'',
''simulated burlap design on fiberboard'', ''simulated burlap finish on
fiberboard'', ''burlap pattern on embossed vinyl surface'' or other
nondeceptive terms. (Guide 4)
0833See paragraphs (b) and (c) of 243.1.
16 CFR 243.5 Misleading illustrations.
Industry members should not use any picture, illustration, diagram or
other depiction, either alone or in conjunction with words or phrases,
which would have the capacity and tendency or effect of misleading or
deceiving purchasers or prospective purchasers concerning any material
fact relating to an industry product. For example, if an advertisement
showed installed panels with the color and graining characteristic of
walnut, but the paneling being offered was not genuine solid walnut,
then the advertisement should contain a clear and conspicuous disclosure
of the composition of the product being offered (e.g., ''walnut veneer
plywood'', ''engraved walnut grain design on selected hardwood
plywood'', or ''simulated walnut finish on hardboard''). /3/
(Guide 5)
16 CFR 243.6 Deceptive use of trade or corporate names, coined names,
trademarks, etc.
Industry members should not use any trade name, product name,
corporate name, coined name, trademark or other trade designation, which
has the capacity and tendency or effect of misleading or deceiving
purchasers or prospective purchasers as to the character, name, nature,
composition, or origin of any industry product, or of any material used
therein, or which is false or misleading in any other material respect.
(Guide 6)
16 CFR 243.7 Passing off through imitation or simulation of trademarks,
trade names, etc.
Industry members should not pass off the products of one industry
member as and for those of another through the imitation or simulation
of trademarks, trade names, brands, labels or otherwise. (Guide 7)
16 CFR 243.8 Disclosure of ''seconds'', ''rejected'' or ''defective''
products, etc.
Industry products which are not of first quality should be legibly
marked or labeled in a clear and conspicuous manner as ''second'',
''rejected'', ''defective'', or ''blemished'', as the case may be, or by
some other term which clearly and conspicuously makes known to
purchasers, or potential purchasers viewing the products, the fact that
they are not of first quality. Also, such products should not be
advertised in any manner without a clear and conspicuous disclosure that
the products are not of first quality. Such disclosures should conform
with provisions of paragraphs (b) and (c) of 243.1 of this part.
(Guide 8)
16 CFR 243.9 Representations concerning washability, cleanability, etc.
Industry members should not directly or indirectly misrepresent the
manner in which the exposed surfaces of prefinished industry products
may be washed, cleaned, or otherwise maintained, or fail to clearly and
conspicuously disclose the manner in which exposed surfaces may be
washed, cleaned, or otherwise maintained without adverse effects
whenever representations are made concerning such matters. (Guide 9)
16 CFR 243.10 Size markings and designations. 4085
Industry members should not:
(a) Mark or otherwise represent, directly or by implication, an
industry product as being of a certain size unless it has the dimensions
represented; or
(b) Fail to disclose in advertising and on industry products the true
size thereof when the failure to make such disclosure has the capacity
and tendency or effect of deceiving purchasers or prospective purchasers
as to the size of such products. For example, consumers generally
assume that decorative wall panels are 4' x 8' x 1/4'' when advertised
without disclosure of dimensions. Therefore, if the dimensions of
advertised panels are less than 4' x 8' x 1/4'', an affirmative
disclosure of the correct size should be made. 5086
(Guide 10)
0854Officially established Commercial Standards and Product Standards
concerning the various industry products are recognized as giving proper
guidance for determining dimensions of industry products (e.g.,
CS157-56; CS176-58; CS35-61; CS251-63; CS236-66; and PS1-66; and
amendments or revisions thereof).
0865See paragraphs (b) and (c) of 243.1.
16 CFR 243.11 Removal, obliteration, or alteration of marks or labels.
Industry members should not:
(a) Remove, obliterate, deface, change, alter, conceal, or make
illegible any information this part provides be disclosed on industry
products, without replacing the same before sale, resale or distribution
for sale with a proper mark or label meeting the provisions of this
part; or
(b) Sell, resell, or distribute any industry product without its
being marked or labeled and described in accordance with the provisions
of this part. (Guide 11)
16 CFR 243.12 Misrepresenting products as conforming to standard or
specification.
Members of the industry should not misrepresent in advertising,
labeling, or otherwise, that any product conforms to any applicable
standard or specification. (Guide 12)
16 CFR 243.13 Deception as to origin.
(a) Industry members should not make any direct or indirect
representation which is false or likely to mislead prospective
purchasers concerning the origin of either domestic or foreign industry
products, or any substantial parts thereof.
(b) Industry members should clearly and conspicuously disclose that
industry products, or any substantial parts thereof, were produced or
manufactured in an identified foreign country when the failure to make
such disclosure has the capacity and tendency or effect of deceiving
prospective purchasers. Such disclosures should be in the form of a
legible mark, stamp or label on the product, and any samples thereof,
and should be of such size, conspicuousness and permanency as to remain
noticeable and legible upon casual inspection until consumer purchase.
(Guide 13)
16 CFR 243.14 Other parts in this Title 16 applicable to this industry.
The Commission has adopted Guides Against Deceptive Pricing, Part
233, Guides Against Deceptive Advertising of Guarantees, Part 239, and
Guides Against Bait Advertising, Part 238, all of which have general
application and furnish additional guidance for members of the
Decorative Wall Paneling Industry. Members of this industry should
comply with those parts.
16 CFR 243.14 PART 244 -- GUIDES FOR THE GREETING CARD INDUSTRY
RELATING TO DISCRIMINATORY PRACTICES
Sec.
244.0 Definitions.
244.1 Price discriminations in general.
244.2 Promotional assistance.
Authority: Secs. 5, 6, 38 Stat. 719, as amended, 721; 15 U.S.C.
45, 46: 49 Stat. 1526; 15 U.S.C. 13, as amended.
Source: 33 FR 16634, Nov. 15, 1968, unless otherwise noted.
16 CFR 244.0 Definitions.
For purposes of this part the following definitions will apply:
(a) Greeting card means any commercial form of card, sheet, or folder
which conveys a greeting or similar type of message by means of printed
reading matter or pictorial matter. The term includes chromos which
contain pictures but no words, and also, cards which contain words but
no pictures.
(b) Publisher means any person, firm, partnership, corporation, or
any other organization which has greeting cards printed or packaged,
whether in its own plant or other plant, for sale exclusively by it. It
does not include the printer or packager unless he acts for his own
account.
(c) Distributor means any person, firm, partnership, corporation, or
any other organization that purchases greeting cards for resale to
parties other than the ultimate consumer. This includes wholesalers,
jobbers, and all other intermediaries other than retailers.
(d) Supplier means any greeting card publisher or distributor.
(e) Retailer means any seller of greeting cards to the ultimate
consumer, such as card shops, drug stores, discount houses, department
stores, etc.
(f) Competing customers means, for purposes of 244.2 of this part
entitled ''Promotional Assistance'', all businesses that compete in the
resale of the supplier's greeting cards at the same functional level of
distribution regardless of whether they purchase direct from the
supplier or through some intermediary (e.g., direct buying retailers and
retailers that purchase through wholesalers and compete with the direct
buying retailers).
(g) Commerce -- this has not been precisely defined in the statute.
In general, if there is any part of a business which is not wholly
within one State (for example, sales or deliveries of products, their
subsequent distribution or purchase, or delivery of supplies or raw
materials), the business may be subject to section 2 of the amended
Clayton Act and/or section 5 of the Federal Trade Commission Act. Sales
in the District of Columbia are also covered by the Acts.
(h) Promotional assistance1087 means any payment, allowance, service,
or facility provided by a supplier whether direct to a customer or to a
third party for the benefit of a customer in connection with the
processing, handling, sale, or offering for sale the supplier's product,
including but not limited to:
(1) Any kind of advertising;
(2) Window and counter displays;
(3) Servicing of greeting card cabinets or racks;
(4) Greeting card cabinets, or a discount thereon;
(5) Rebates or allowances for soiled, discontinued or leftover cards;
(6) Push money;
(7) Contribution to a customer's anniversary or any other sale.
(i) Proportionally equal terms'' means that the promotional
assistance is proportionalized on some basis which is fair to all
competing customers. No single way to proportionalize is prescribed by
law and any method that treats competing customers on proportionally
equal terms may be used.
(j) Cost justification'' is an affirmative defense which may be
undertaken by a supplier charged with price discrimination, by
establishing that his price differential was based solely on differences
in the cost of manufacture, sale or delivery resulting from the
differing methods or quantities in which his products are sold or
delivered. This defense depends upon savings in cost based on all the
facts relevant to the transactions. It is a technical defense and some
items, such as savings in brokerage, may not be included in determining
savings in cost. (This defense is not available to a supplier charged
with discrimination in the furnishing of promotional assistance.)
(k) Meeting competition in good faith'' is an affirmative defense
which may be undertaken by a supplier charged with a violation of
subsection 2 (a), (d), or (e) of the amended Clayton Act who can defend
his actions by establishing that his lower price or granting of
disproportionate promotional assistance was made in good faith to meet
an equally low price or greater promotional assistance paid for or
furnished by a competitor. This defense, however, is subject to
important limitations. For instance, it is insufficient to defend a
charge of violating subsection (a), (d), or (e) of section 2 of the
amended Clayton Act solely on the basis that competition in a particular
industry is very keen, requiring that special prices or allowances be
given to some customers if a seller is ''to be competitive''.
0871This phrase incorporates any and all services and facilities
covered by subsections (d) and (e) of section 2 of the amended Clayton
Act, including those which technically may not be promotional in nature.
16 CFR 244.1 Price discriminations in general.
(a) Publishers and distributors in the Greeting Card Industry should
not, in the course of commerce, grant, secretly or openly, directly or
indirectly, any rebate, refund, discount, credit, or other form of price
differential which effects a discrimination in price between different
purchasers of greeting cards of like grade and quality, where the effect
thereof may be substantially to lessen competition or tend to create a
monopoly in any line of commerce, or to injure, destroy, or prevent
competition with the publisher or distributor granting the
discrimination or with the purchaser receiving its benefit or with
customers of either of them.
Note: This section is not applicable to greeting cards purchased by
the U.S. Government, State and local government entities or by schools,
colleges, universities, public libraries, hospitals, churches, and
charitable institutions not operating for profit, as supplies for their
own use. Also, this section is not to be construed as preventing price
changes from time to time where made in response to changing conditions
affecting the market for or the marketability of the goods concerned,
such as, obsolescence of seasonal goods, distress sales under court
process or sales in good faith in discontinuance of business in the
goods concerned.
(b) The following are examples of practices involving price
differentials to be avoided in commerce, when involving goods of like
grade and quality, where the effect thereof may have the reasonable
probability of adversely affecting competition and the seller is unable
to establish either the ''cost justification'' or ''meeting competition
in good faith'' defense:
(1) A supplier sells to retailers at 50 percent off list but grants
an extra 5 percent discount to chain store customers. It is immaterial
that such 5 percent discount is given under the guise of or labeled as a
promotional allowance.
(2) A supplier sells direct to retailers at 50 percent off list and
at the same time, sells to a retail buying group allowing the latter an
additional 5 percent discount.
(3) A supplier grants discounts of 2 percent on first $1,000 of
purchases, 4 percent on the next $1,000 of purchases, and 6 percent on
all purchases thereafter during a specified period of time.
(4) A supplier grants a 5 percent rebate on the increased amount of
greeting cards purchased over purchases in the preceding year.
(5) A supplier pays freight on shipments to one or more customers but
does not pay such freight for all customers, thereby effecting a
difference in price between customers.
(6) A supplier invoices goods to all customers at the same price but
supplies additional quantities of such goods at no extra charge to one
or more, but not to all, such customers.
Note 1: As previously indicated, the foregoing are examples of
practices involving price differentials to be avoided in commerce, when
involving goods of like grade and quality, where the effect thereof may
have the reasonable probability of adversely affecting competition and
when not subject to the other exemptions, exclusions, or defenses set
forth in this section.
Note 2: While this section concerns violations of the Clayton Act,
as amended, pertaining to price discriminations granted by publishers
and distributors it should not be overlooked that section 2(f) of such
Act makes it unlawful for any person engaged in commerce, in the course
of such commerce, knowingly to induce or receive a discrimination in
price prohibited by the Act.
(Guide 1)
16 CFR 244.2 Promotional assistance.
(a) Publishers and distributors of greetings cards, providing
promotional assistance in the course of commerce to competing customers,
should do so under a plan which takes into account the following:
(1) The promotional assistance must be made available on
proportionally equal terms to all competing customers.
(2) The competing customers must be made aware that the promotional
assistance is available. It is not absolutely necessary that the offer
be in writing for it may be made in any manner the supplier chooses
including letter, telegram, conspicuous notice on invoice, by salesmen,
etc. However, if the supplier wants to be able to show later that the
offer was made to a certain customer, he is in a better position to do
so if the offer was made in writing.
(3) The supplier must not adopt a plan which is of use to only one
customer or to only one favorite class of customers. The plan must be
either realistically available to all competing customers in a practical
business sense, or reasonable alternatives must be made available on
proportionally equal terms.
(4) The supplier must take reasonable precautions to see that the
customers receiving promotional assistance are performing what is
required of them under the plan, and that he is not paying any amount in
excess of that actually used by the customers.
(b) The following are examples of practices involving discriminations
in the furnishing of promotional assistance to be avoided in commerce
when involving products of like grade and quality and when the seller is
unable to establish a defense of ''meeting competition in good faith.''
(1) A supplier grants allowances only for radio, television, and
newspaper advertising when he has some competing customers, such as
small card shops, which are unable to advertise in these media, even
with the promotional assistance offered.
(In the above circumstances, and in order to satisfy legal
requirements, the supplier must make usable and suitable alternatives
available on proportionally equal terms to all other customers competing
in the distribution of the supplier's greeting cards, such as, but not
limited to, advertising in the neighborhood paper or buying guide,
in-store advertising, envelope stuffers, handbills, etc.)
(2) A supplier grants as a service to department stores or other
customers a rebate of 50 percent on all Christmas cards purchased from
the supplier and left over after Christmas, but does not make the offer
to all of its customers competing with those to whom this service is
accorded. 2088
(3) A supplier furnishes greeting card cabinets without cost or with
a special discount to one or more customers, but does not make the same
offer available on proportionally equal terms to all other competing
customers, or in the event he does make such offer, he does not offer
usable and suitable alternatives of equivalent measurable cost to those
competing customers to whom cabinets are not usable and suitable.
(4) A supplier accords to one or more customers the privilege of
returning for credit, refund, or exchange, any or all of the greeting
cards purchased from the supplier but fails to offer the same privilege
to all other customers competing in the distribution of the supplier's
greeting cards.
(In the above circumstances, the supplier need not offer alternatives
to returns for credit, refund, or exchange because they would appear to
be usable by all customers in a practical business sense.)
(5) A supplier furnishes promotional assistance based on increased
amounts of purchases, such as 2 percent cooperative advertising
allowance on yearly purchases up to $1,000, and 4 percent cooperative
advertising allowance on purchases over $1,000.
(Generally, using as a basis for promotional assistance a percentage
of dollar volume or quantity of goods purchased during a specified
period of time will insure that the promotional assistance is furnished
on proportionally equal terms: Provided, however, That when promotional
assistance is furnished on this basis, the percentage remains constant
regardless of the amount of purchases.)
Note 1: As previously indicated, the foregoing are examples of
practices involving discriminations the furnishing of promotional
assistance to be avoided in commerce when involving products of like
grade and quality and when the seller is unable to establish a defense
of ''meeting competition in good faith.''
Note 2: While this section concerns violations of the Clayton Act,
as amended, pertaining to discriminations in the furnishing of
promotional assistance by publishers or distributors, it should not be
overlooked that a customer who induces, or receives promotional
assistance that he knows, or should know, is not available on
proportionally equal terms to his competitors engaged in the resale of
the supplier's greeting cards, may be proceeded against by the
Commission for violation of section 5 of the Federal Trade Commission
Act, which prohibits unfair methods of competition.
(Guide 2)
Note: 3. Nothing contained in this part relieves any party subject
to a Commission cease and desist order or other requirement from
complying with the specific provisions of such order or requirement.
The Guides in this part do not constitute a finding in and will not
affect the disposition of any formal or informal matter now pending with
the Commission.
0882A rebate on leftover greeting cards may, under some
circumstances, be cognizable under 244.1, as a price discrimination.
16 CFR 244.2 PART 245 -- GUIDES FOR THE WATCH INDUSTRY
Sec.
245.1 Definitions.
245.2 Misrepresentation in general.
245.3 Misrepresentation of metallic composition of watchcases and
certain watch bands.
245.4 Misrepresentation as to durability or suitability.
245.5 Misrepresentation of protective features.
245.6 Deception as to jewels.
245.7 Misrepresentation of accessories.
245.8 Deceptive selling of used, rebuilt, or secondhand products.
245.9 Deceptive imitation, obliteration, or concealment of trade
names, trademarks, and marks.
245.10 Disclosure of foreign origin of watch movements, movement
parts, and related parts.
245.11 Deceptive pricing.
245.12 Commercial bribery.
245.13 Coercing purchase of one product as a prerequisite to the
purchase of other products.
245.14 Misrepresentation of the character and size of business,
extent of testing, etc.
245.15 Guarantees, warranties, etc.
245.16 Use of the word ''free''.
Appendix to Part 245
Authority: Secs. 5, 6, 38 Stat. 719, as amended, 721; 15 U.S.C.
45, 46.
Source: 33 FR 10332, July 19, 1968, unless otherwise noted.
16 CFR 245.1 Definitions.
For the purpose of this part the following definitions shall apply:
(a) The term watch means a timepiece or time-keeping device for
measuring or indicating time which is designed to be worn on or about
the person.
(b) The term watchcase or case means any metal case, covering, or
housing of any quality or description for a watch as defined above and
shall include the back, center, lugs, bezel, pendant, crown, bow, cap,
and other parts thereof, including a watch band which has been
permanently affixed thereto; and unless otherwise stated, either term
as used in this part applies to the case whether marketed separately or
together with the movement or works.
(c) The term accessories means products, other than watch bands,
which are affixed to and sold in combination with watchcases or watches,
such as, for example, bracelets, pins, pendants, brooches, or ornaments.
(Note: Metallic watch bands of the detachable type are subject to the
provisions of the Trade Practice Rules for the Metallic Watch Band
Industry, promulgated June 30, 1962, and amended June 16, 1964.)
(d) The term mark means any letter, figure, numeral, symbol, sign,
word, or term, or any combination thereof, which has been stamped,
embossed, inscribed, or otherwise placed, on any industry product for
the purpose of disclosing its metallic composition or any other material
information.
(e) The term plate or plated means that a sheet or shell of metal has
been applied by soldering, brazing, welding, or other mechanical means
to the outer surfaces of foundation metal stock.
(f) The term electroplate or electroplated means that a coating of
metal has been applied by the electrolytic method to the outer surfaces
of foundation metal stock.
(g) The term industry product means a watch, watchcase, accessory or
a part thereof.
(h) The term industry member means a person, firm, corporation, or
organization engaged in the importation, manufacture, sale, or
distribution of any industry product. (Guide 1)
16 CFR 245.2 Misrepresentation in general.
Industry members should not use, or cause or promote the use of any
promotional materials, advertising, labels, tags, marks, insignia, brand
or trade names, depictions or packaging which bear, contain, or
constitute representations which have the capacity and tendency or
effect of misleading or deceiving purchasers or prospective purchasers:
(a) With respect to the grade, quality, estimated life, appearance,
substance, size, construction, novelty, composition, accuracy,
dependability, imperviousness, repairability, conformance to standards,
or methods of manufacture, of industry products; or
(b) With respect to the country of origin of industry products or
parts thereof; or
(c) In any other material respect. (Guide 2)
16 CFR 245.3 Misrepresentation of metallic composition of watchcases
and certain watch bands.
Industry members should not directly or indirectly, in advertising,
marking, labeling, in a brand or trade name, or otherwise, misrepresent
the metallic composition of a watchcase. With respect to cases having
an exposed surface or surfaces which are, or have the appearance of
being, metal, the metallic composition of the cases should be clearly
and conspicuously disclosed in accordance with the methods and
terminology set forth below:
(a) Exclusions. In determining the metallic composition of
watchcases, parts which are necessarily required to be of steel or some
other base metal may be excluded, namely, the springs, hinge pins for
jointed cases, spring pins for straps or bands, separate inside movement
holding rings, and crown cores.
(b) Gold. Watchcases which are not composed entirely of fine (24
karat) /1/ gold should not be marked with the unqualified word ''gold''
or an abbreviation thereof.
(c) Gold alloy. Watchcases composed entirely of an alloy of gold of
not less than 10 karat fineness /1/ should be marked as ''gold'' or by
an abbreviation thereof, and such word or abbreviation should be
immediately preceded with a correct designation of the karat fineness
/1/ of the alloy, for example, ''10 Karat Gold,'' ''14 Kt Gold,'' ''10
Kt.''
(d) Gold filled. Watchcases which have been plated by mechanical
means with gold, or with an alloy of gold of not less than 10 karat
fineness,1 and the plating is of a thickness throughout of not less than
three one-thousandths /2/ of an inch after completion of all finishing
operations, should be marked ''Gold Filled'', or by an abbreviation
thereof, and such term or abbreviation should be immediately preceded by
a correct designation of the karat fineness /1/ of the gold alloy of
which the plating is composed, as, for example, ''12 Karat Gold
Filled'', ''12 K.G.F.''
(e) Rolled gold plate. Watchcases which have been plated by
mechanical means with gold, or with an alloy of gold of not less than 10
karat fineness, /1/ and the plating is of a thickness throughout of not
less than one and one-half one thousandths /2/ of an inch upon
completion of all finishing operations, should be marked ''gold plate''
or ''rolled gold plate'' or by an abbreviation thereof and such term or
abbreviation should be immediately preceded by a correct designation of
the karat fineness /1/ of the gold alloy of which the plating is
composed, as, for example, ''10 Karat Gold Plate,'' ''10 Karat Rolled
Gold Plate,'' ''10 K.R.G.P.''
(f) Gold electroplate. (1) Watchcases which have been electroplated
with gold or with an alloy of gold of not less than 10 karat fineness,
/1/ to a thickness throughout of not less than three-fourths one
thousandths /2/ of an inch upon completion of all finishing operations
and which can successfully withstand the tests set forth in paragraph 2
of the appendix, should be marked ''gold electroplate'' or ''gold
electroplated'' and such term may be immediately preceded by a correct
designation of the karat fineness /1/ of the gold alloy of which such
coating is composed, e.g., ''16 Karat Gold Electroplate.'' If the
thickness of such gold electroplate is one and one-half one thousandths
/2/ of an inch or greater, it may be described as ''Heavy Gold
Electroplate,'' and such term may be immediately preceded by a correct
designation of the karat fineness /1/ of the gold alloy of which such
plating is composed. Gold electroplated products which satisfy the
provisions in this paragraph may also be marked with an accurate
disclosure of the actual thickness of the electroplate, e.g., ''
1/1000'' gold electroplate.''
(2) Watches which have cases marked ''gold electroplate'' or ''gold
electroplated'' in conformity with this section should, when sold to the
ultimate consumer within the 18-month period immediately following the
operative date of this section, be accompanied by an appropriate
statement explaining the meaning of the marking and providing sufficient
information to enable the consumer to make an informed judgment
regarding the quality of the coating. The statement should not purport
to compare the merits of electroplated coatings with the merits of
coatings applied by other processes. The statement should be made on
any point of sale material describing or referring to the watch and on a
label or tag firmly affixed to the watch.
(g) Silver. Watchcases which are composed entirely of pure silver or
of an alloy of silver of not less than nine-hundred twenty-five one
thousandths fineness1 should be marked as ''silver,'' ''sterling'' or
''sterling silver'' or by an abbreviation thereof. Cases which are
composed entirely of a silver alloy of at least nine-hundred one
thousandths fineness1 should be marked ''coin silver.''
(h) Silver plate. Watchcases which have been plated or electroplated
with silver, should be marked as ''silver plate'' or ''silver plated'',
if after the completion of all finishing operations, such plating is of
sufficient thickness to withstand normal use and last throughout the
estimated life of the watch.
(i) Other precious metals. Watchcases which are composed in whole or
in part of a precious metal other than gold or silver, or of an alloy of
such a metal, or which have been plated or electroplated with such a
metal or alloy thereof, should be marked so as to disclose the kind of
precious metal or alloy so used and the manner of its use.
(j) Base metals. Watchcases or parts thereof which do not meet the
minimum requirements set forth in paragraphs (b) through (i) of this
section should be marked as ''Base Metal'' or so as to identify clearly
the kind or kinds of metal of which they are composed, e.g.,
''Aluminum,'' ''Stainless Steel,'' ''Chromium Plated Steel,'' and under
these circumstances the mark should not contain the names of or
abbreviations for any precious metal.
(k) Combination of metals. Watchcases which are composed of parts
having different metallic compositions, should be marked in the manner
prescribed in paragraphs (b) through (j) of this section with an
accompanying explanation of the part or parts to which such markings or
descriptions apply, e.g., ''Base Metal Back,'' ''14 K Gold Filled
Bezel.''
(l) Substantiality. A watchcase should not be composed of metals or
alloys, or have coatings of either base metal or precious metals, which
are not of sufficient thickness and substantiality as to render lasting
and effective service, with due regard to the estimated life of the
watch of which it is a part, unless the fact that such case will not
render such service is clearly and conspicuously disclosed on a tag,
label, or in other printed material which accompanies the watch when it
is sold to the ultimate consumer.
(m) Placement of markings and abbreviations. All markings on
watchcases as provided in this part should be of a permanent type and
made on the exterior, exposed surface of the back, and be so placed and
of such a size that they will be readily apparent to purchasers of the
product. Provided that markings, respecting the metallic composition of
watch bands which are part of the cases, may be placed on the bands or
on the cases. All markings should be stated in the English language and
printed in letters or figures of the same size and conspicuousness as
that used for words or abbreviations descriptive of any precious metal
content, i.e., ''gold,'' ''silver,'' or ''karat''. When using
abbreviations in markings as provided by this section, ''G'' may be used
for the word ''Gold,'' ''K'' or ''Kt'' for the word ''Karat,'' and
''Chr'' for the word ''Chromium''. In addition ''G.F.'' may be used for
''Gold Filled,'' and ''R.G.P.'' for ''Rolled Gold Plate.'' The terms
''electroplate'' and ''electroplated'' should not be abbreviated. The
word ''filled'' and the word ''plate'' should not be abbreviated in
marks containing the word ''gold'' unless the word ''gold'' is
abbreviated by use of the letter ''G''.
(n) Misuse of terms. The words ''gold,'' ''karat,'' ''silver,''
''sterling,'' ''coin,'' or any abbreviation thereof either alone or in
conjunction with other words such as ''solid,'' ''plate,'' ''plated,''
''filled,'' ''electroplate,'' or ''electroplated'' or any abbreviation
thereof should not be used as a marking or as descriptive of a watchcase
or part thereof in labeling, advertising, trade names or otherwise in a
manner inconsistent with the provisions of this section.
(o) Disclosures in advertising. All disclosures which are placed on
industry products in conformity with this section should also appear in
all advertising or other promotional material pertaining to such
products, irrespective of the media used, whenever statements,
representations, or depictions are made or appear therein, which in the
absence of such disclosures serve to create a false impression that the
products or parts thereof, are of a certain metallic composition. The
disclosure so made should be of such conspicuousness and clarity as to
be noted by purchasers and prospective purchasers casually reading, or
listening to, such advertising, and the words and terms therein which
are descriptive of metallic composition should not be used except as
provided in this section. (Guide 3)
/1/ Subject to the tolerances applicable thereto under the National
Stamping Act (15 U.S.C., section 294, et seq.).
/1/ See footnote on previous page.
/2/ Subject to permissible tolerances set forth in paragraph 1 of the
appendix.
16 CFR 245.4 Misrepresentation as to durability or suitability.
Industry members should not misrepresent directly or indirectly, in
advertising, labeling, marking, brand or trade name, depictions, or
otherwise the characteristics of a product or the ability of a product
to resist or withstand damage from stated causes, or of its suitability
for particular uses. Illustratively, industry members should not, under
this section: Falsely designate or describe a watch as a chronometer or
use such terms as ''skin divers,'' ''navigators,'' or ''railroad'' as
descriptive of industry products which do not possess the
characteristics, e.g., ruggedness, accuracy, dependability, or other
features, required of watches used by persons engaged in those
activities. (Guide 4)
16 CFR 245.5 Misrepresentation of protective features.
(a) Industry members should not misrepresent directly or indirectly,
in advertising, other promotional material, labeling, brand or trade
name, or marking, or otherwise, the ability of a product to withstand or
resist damage or other harmful effects from stated causes.
Illustratively, under this section a product should not be described or
designated as ''shockproof,'' ''waterproof,'' ''nonmagnetic,'' or ''all
proof,'' even if such term or terms are qualified by words or phrases,
e.g., ''waterproof when case, crown, and crystal are intact.'' In
addition a product should not be described or designated as ''shock
resistant,'' ''water resistant,'' or ''antimagnetic'' unless it conforms
to the applicable provisions set forth below:
(1) Shock resistant. A product may be properly described or
designated as ''shock resistant'' or ''shock absorbing'' if it possesses
a level of resistance to damage from shock sufficient to insure that it
will successfully withstand the test described in paragraph 3 of the
appendix to this part.
(2) Water resistant. An industry product may be properly described
or designated as ''water resistant'' if it is sufficiently impervious to
water or moisture so as to insure that at the time of its sale to the
ultimate consumer it will successfully withstand the test described in
paragraph 4 of the appendix to this part.
(3) Antimagnetic. A product may properly be described or designated
as ''antimagnetic'' if it is so designed and constructed as to provide a
substantial degree of protection against magnetism, and the product will
successfully withstand the test described in paragraph 5 of the appendix
to this part.
(b) Whenever a product described or designated as ''shock
resistant,'' ''water resistant,'' or ''antimagnetic'' in conformity with
this section is sold to the ultimate consumer, the designation should be
accompanied by an appropriate statement explaining the meaning of the
term and the care and maintenance ordinarily required to preserve the
described qualities. The statement should be made on any point of sale
material describing or referring to the watch having the designation in
question and on a label or tag firmly affixed to the watch bearing the
designation. (Guide 5)
16 CFR 245.6 Deception as to jewels.
Industry members should not misrepresent directly or indirectly, in
advertising, labeling, marking, brand or trade name, or otherwise, the
number of jewels contained in a watch, or that a watch is ''jeweled'' or
that a watch contains a jeweled movement. Illustratively, industry
members should not:
(a) Represent or describe a watch as ''jeweled'' or as containing a
jeweled movement unless the watch movement contains at least seven
jewels each of which serves the purpose of protecting against wear from
friction by providing a mechanical contact with a moving part at a point
of wear;
(b) Refer to the number of jewels contained in a watch unless each
and every one of these jewels serves the purpose of protecting against
wear from friction by providing a mechanical contact with a moving part
at a point of wear. (Guide 6)
16 CFR 245.7 Misrepresentation of accessories.
Industry members should not misrepresent directly or indirectly, in
advertising, labeling, marking, brand or trade name, or otherwise, the
composition, quality, or any other material fact respecting accessories.
Illustratively, industry members should not, under this section: use
terms, representations of metallic composition, words or names
associated with precious, semiprecious, synthetic, and imitation stones,
and quality marks in a manner inconsistent with the provisions of the
Commission's Trade Practice Rules for the Jewelry Industry, promulgated
June 28, 1957, and amended November 17, 1959. (Guide 7)
16 CFR 245.8 Deceptive selling of used, rebuilt, or secondhand
products.
An industry product which in whole or in part is used, secondhand,
rebuilt, repaired, refinished, or which contains parts that are used,
secondhand, rebuilt, repaired or refinished, should not be sold, offered
for sale or distributed unless the fact that such product or parts are
not new, or are used, secondhand, rebuilt, or repaired, or refinished,
is fully and nondeceptively disclosed in all advertising of the product,
on the product itself or on a label firmly affixed thereto, and on the
immediate container in which the product is sold to the ultimate
consumer. (Guide 8)
16 CFR 245.9 Deceptive imitation, obliteration, or concealment of trade
names, trade-marks, and marks.
Industry members should not imitate or simulate the trade names or
trade-marks of competitors, or obliterate, conceal, or remove tags,
labels, marks, or other disclosures placed on an industry product or on
the package in which it is sold to the ultimate consumer under
circumstances having the capacity and tendency of deceiving the ultimate
consumer as to the identity of the manufacturer, origin of the product,
or in any other material respect. (Guide 9)
16 CFR 245.10 Disclosure of foreign origin of watch movements, movement
parts, and related matters.
(a) Watches having movements of foreign origin or movements which
contain parts of foreign origin should not be offered for sale or sold
unless they are accompanied by a clear and conspicuous disclosure of the
country or countries of origin of the movement.
(b) The countries of origin of a watch movement are the country in
which the movement has been assembled and the country in which its
substantial and significant parts have been manufactured. For purposes
of this section, if parts constituting 50 percent or more of the cost to
the assembler of all the parts of the movement are manufactured in a
single country, those parts shall be presumed to be the substantial and
significant parts of the movement.
(1) If the movement has been assembled in the same foreign country in
which parts constituting 50 percent or more of the cost to the assembler
of all the parts of the movement have been manufactured, the name of
that country alone should be used to designate the origin of the
movement. Appropriate forms of disclosure would include ''Swiss Made'',
or ''Japan''.
(2) If the watch movement has been assembled in one country and parts
constituting 50 percent or more of the cost to the assembler of all the
parts of the movement have been manufactured in a single other country,
the names of both such countries, and no other, should be used to
designate the origin of the movement. Appropriate forms of disclosure
would include ''Assembled in France from Swiss parts'', or ''Japanese
parts, assembled in the United States''.
(3) If the watch movement has been assembled in one country but parts
constituting 50 percent or more of the cost to the assembler of all the
parts of the movement have not been manufactured in a single other
country, only the name of the country of assembly should be used,
accompanied by a disclosure that the parts are partially foreign,
imported or domestic, as the case may be. Appropriate forms of
disclosure would include ''Movement assembled in the United States from
domestic and imported parts'' or ''Movements assembled in France from
foreign parts'' or ''Assembled in Germany with parts from foreign
countries''.
(4) For purposes of this section, the United States includes only the
States, the District of Columbia, Puerto Rico, the American Virgin
Islands, Guam and American Samoa.
(c) In making the disclosures under the circumstances set forth in
paragraphs (b) (2) and (3) of this section, care should be exercised to
insure that the form selected does not imply directly or indirectly that
the movement is solely a product of the country from which its
substantial and significant parts were obtained, or that it is solely a
product of the country in which the movement was assembled.
(d) The disclosures provided for in this section should be
permanently marked on an exposed surface of the watch or on a label or
tag affixed thereto which has such a degree of permanency as to remain
thereon until consummation of the consumer sale of the watch and be of
such size and conspicuousness that they will be readily apparent to
purchasers or prospective purchasers making a casual inspection of the
watch. (Guide 10)
(35 FR 13122, Aug. 18, 1970)
16 CFR 245.11 Deceptive pricing.
Members of the industry should not represent directly or indirectly
in advertising or otherwise that an industry product may be purchased
for a specified price, or at a saving, or at a reduced price, when such
is not the fact; or otherwise deceive purchasers or prospective
purchasers with respect to the price of any product offered for sale;
or furnish any means or instrumentality by which others engaged in the
sale of industry products may make any such representation.
Note: The Commission's January 8, 1964, Guides Against Deceptive
Pricing furnish additional guidance respecting price savings
representations and are to be considered as supplementing this section.
Copies are available upon request.
(Guide 11)
16 CFR 245.12 Commercial bribery.
Members of the industry should not give, offer to give, or permit or
cause to be given, directly or indirectly, money or anything of value to
employees or agents of customers or prospective customers, without the
knowledge of their employers or principals, as an inducement to
influence or cause their employers or principals to purchase or contract
to purchase the products of such industry members, or to refrain from
purchasing products from competitors of such members. (Guide 12)
16 CFR 245.13 Coercing purchase of one product as a prerequisite to the
purchase of other products.
Members of the industry should not coerce a customer or prospective
customer to purchase one or more products as a prerequisite to the
purchase of one or more other products, where the effect may be
substantially to lessen competition, or tend to create a monopoly or to
unreasonably restrain trade. (Guide 13)
16 CFR 245.14 Misrepresentation of the character and size of business,
extent of testing, etc.
Industry members should not falsely represent, directly or
indirectly, in company, brand, or trade name, or in advertising,
labeling or otherwise:
(a) The length of time they have been in business;
(b) The extent of their sales;
(c) Their rank in the industry as producers or distributors of a
product or type of product;
(d) That they are manufacturers of industry products or own or
control a factory engaged in the manufacture of such products;
(e) That they own or operate a laboratory, or that their products
have been tested in any particular manner or for any period of time, or
with any particular results;
(f) That a product or manufacturing process is new or exclusive; or
(g) Any other material aspect of their business or products. (Guide
14)
16 CFR 245.15 Guarantees, warranties, etc.
(a) Industry members should not represent in advertising or otherwise
that a product is ''guaranteed'' without clear and conspicuous
disclosure in close conjunction with such representation of:
(1) The nature and extent of the guarantee, and
(2) Any material conditions or limitations in the guarantee which are
imposed by the guarantor, and
(3) The manner in which the guarantor will perform thereunder, and
(4) The identity of the guarantor.
(b) A seller or manufacturer should not advertise or represent that a
product is guaranteed when he cannot or does not promptly and
scrupulously fulfill his obligations under the guarantee.
(c) A specific example of nonperformance of an obligation under the
guarantee would arise in connection with the use of the phrase,
''Satisfaction or your money back'' if the guarantor does not promptly
make a full refund of the purchase price upon request, irrespective of
the reason for such request.
(d) Guarantees should not be used which under normal conditions are
impractical of fulfillment or which are for such a period of time or are
otherwise of such nature as to have the capacity and tendency of
misleading purchasers or prospective purchasers into the belief that the
product so guaranteed has a greater degree of serviceability, durability
or performance capability in actual use than is true in fact.
(e) This section has application not only to ''guarantees'' but also
to ''warranties'', to purported ''guarantees'' and ''warranties'', and
to any promise or representation in the nature of a ''guarantee'' or
''warranty.''
Note: The Commission's April 26, 1960, Guides Against Deceptive
Advertising of Guarantees furnish additional guidance respecting
guarantee representations and are to be considered as supplementing this
section. Copies are available upon request.
(Guide 15)
16 CFR 245.16 Use of the word ''free''.
In connection with the sale, offering for sale, or distribution of
industry products, industry members should not use the word ''free'' or
any other word or words of similar import, in advertisements or in other
offers to the public, as descriptive of an article of merchandise, or
service, which is not an unconditional gift, under the following
circumstances:
(a) When all the conditions, obligations, or other prerequisites to
the receipt and retention of the ''free'' article of merchandise or
service offered are not clearly and conspicuously set forth at the
outset so as to leave no reasonable probability that the terms of the
offer will be misunderstood; and regardless of such disclosure:
(b) When, with respect to any article of merchandise required to be
purchased in order to obtain the ''free'' article or service, the
offerer (1) increases the ordinary and usual price of such article of
merchandise, or (2) reduces its quantity, or (3) reduces the quantity or
size thereof.
Note 1: The disclosure provided by paragraph (a) of this section
should appear in close conjunction with the word ''free'' (or other word
or words of similar import) wherever such word first appears in each
advertisement or offer. A disclosure in the form of a footnote, to
which reference is made by use of an asterisk or other symbol placed
next to the word ''free'', will not be regarded as compliance. (Guide
16)
Note 2: Provisions of outstanding Cease and Desist Orders pertaining
to subject matter covered by this part will not be construed by the
Commission as prohibiting or requiring more than the relevant provisions
of this part.
(33 FR 10332, July 19, 1968, as amended at 33 FR 15021, Oct. 8, 1968)
16 CFR 245.16 Pt. 245, App.
16 CFR 245.16 Appendix to Part 245
Set forth in this appendix are the thickness tolerances, and tests
referred to in the foregoing Guides in this part.
1. Thickness tolerances: plated and electroplated cases. The
minimum thicknesses specified in paragraphs (d), (e), and (f) of 245.3
for the coatings of gold or gold alloy on watchcases shall mean that the
coating of precious metal affixed to the surface of the metal stock
shall be throughout the surface and at the thinnest point not less than
the thickness specified after the completion of all finishing
operations, including polishing, except, however, for such deviations
therefrom, not exceeding 20 percent (minus) of the stated thickness, as
may be proved by the manufacturer to have resulted from unavoidable
variations in manufacturing processes and despite the exercise of due
care, which deviation so proved shall be allowed if and when the
quantity of precious metal remaining plated on the outside of the case
is sufficient to equal the quantity necessary to provide the specified
minimum thickness at all points on such watchcase including the thinnest
point.
2. Gold electroplate: standards and tests. The gold electroplated
surface coating of a watchcase should be free of cracks, blisters, pits
or other flaws, and capable of successfully undergoing the following
tests:
a. Adhesion. The watchcase should be heated to a temperature of not
less than 360 nor more than 400 C. and maintained at that temperature
for not less than 5 minutes. At the end of that time such surface
coating should show no signs of blistering, flaking, peeling, or similar
defects.
b. Hardness. Such surface coating should undergo a Knoop hardness
test with a 25 gram load and achieve a rating of not less than 130.
c. Porosity. After such surface coating has been thoroughly cleaned
and freed of any foreign material, the case should be:
(1) Immersed in a solution of one part concentrated nitric acid
(sp.gr. 1.42) and one part water at room temperature for 5 minutes; and
(2) Exposed to fumes of concentrated nitric acid (sp.gr. 1.42) in a
closed vessel for 3 hours at room temperature.
At the conclusion of each of the foregoing porosity tests, the
surface coating should show no signs of having been attacked. Any
discoloration or pitting should be considered as signs of an attack.
The nitric acid solution in which the watchcase was immersed should be
tested for the presence of metal by making it slightly alkaline with
ammonium hydroxide and by adding a solution of ammonium or sodium
sulfide. The formation of a black precipitate indicates that the
coating has been attacked.
3. Test for shock resistance. A watch should be tested for shock
resistance in a room having a temperature between 18 and 25 C. which
does not vary by more than 2 during the test. A wrist watch which does
not have a permanently affixed band should be tested without the band or
strap.
The test should be conducted as follows:
a. One hour after the watch has been fully wound, its daily rate in
each of the following three positions should be determined by observing
it for 2 minutes in each position:
(1) Position HB (horizontal with the dial facing down);
(2) Position VC (vertical with 3 o'clock to the watch's left);
(3) Position VB (vertical with 3 o'clock pointed downwards).
b. Shocks equal to that which the watch would receive if it were
dropped from a height of 3 feet onto a horizontal hardwood surface
should be applied as follows:
(1) The first shock should be applied to the middle of the watch at a
position directly opposite the crown and in a direction which is
parallel to the plane of the watch;
(2) The second shock should be applied to the crystal, and in a
direction which is perpendicular to the plane of the watch.
c. Five minutes after the last shock, the daily rate of the watch in
each of the three positions described in a. above should be determined
by observing it for 2 minutes in each position. The differences in
daily rate before and after the shock should be determined for each
position. The residual effect of the shocks will be equal to the
greatest of these differences.
A watch will be considered to have passed the foregoing test, if
after application of the shocks, it does not stop; the residual effect
does not exceed 60 seconds per day; and an examination of the watch
does not disclose any physical damage which would affect its operation
or appearance, e.g., hands bent or out of position, cracked crystal, or
automatic or calendar devices inoperable or out of alignment.
4. Test for water resistance. A watch should be tested for water
resistance by immersing it completely for at least 5 minutes in water
under atmospheric pressure of 15 pounds per square inch and for at least
another 5 minutes in water under an additional pressure of at least 35
pounds per square inch (total pressure of 50 pounds per square inch).
If the watch does not admit any water or moisture it will be considered
to have passed the test.
5. Test for antimagnetic qualities. A watch should be tested for its
resistance to magnetism by placing it in a demagnetized condition in an
electrical field of not less than 60 Gauss for at least 5 seconds in a
vertical position and for at least 5 seconds in a horizontal position.
If the daily rate of the watch has not been changed by more than 15
seconds as a result of the foregoing exposure, it shall be considered to
have passed the test.
16 CFR 245.16 PART 247 -- GUIDES FOR THE LADIES' HANDBAG INDUSTRY
Sec.
247.0 Definitions.
247.1 Misrepresentation (general).
247.2 Misrepresentation and deception as to material composition.
247.3 Form of disclosure as to material composition.
247.4 Misrepresentation as to aniline finish, graining, embossing,
and processing.
247.5 Misuse of terms such as ''Scuffproof,'' ''Scratchproof,''
''Scuff Resistant,'' and ''Scratch Resistant.''
247.6 Deceptive pricing.
247.7 Discriminatory prices, rebates, discounts, etc.
247.8 Advertising or promotional allowances, or services or
facilities.
247.9 Inducing or receiving illegal discrimination in price,
advertising or promotional allowances, or services or facilities.
Authority: Secs. 5, 6, 38 Stat. 719, as amended, 15 U.S.C. 45, 46;
49 Stat. 1526; 15 U.S.C. 13, as amended.
Source: 34 FR 9924, June 27, 1969, unless otherwise noted.
16 CFR 247.0 Definitions.
For purposes of this part the following definitions apply:
(a) Industry member means any person, firm, corporation, or
organization engaged in the manufacture, sale, or distribution of any
industry products as defined below.
(b) Industry product means all kinds and types of ladies' handbags,
shoulder bags, purses, pocketbooks, and similar articles, of any
composition.
16 CFR 247.1 Misrepresentation (general).
No representation should be made in advertising, labeling, or any
other manner, which is likely to mislead or deceive any purchaser
concerning the material composition, quality, finish, durability, price,
origin, construction, ease of cleaning, or any other feature, of an
industry product. (Guide 1)
16 CFR 247.2 Misrepresentation and deception as to material
composition.
(a) The material composition of an industry product should not be
misrepresented in any manner. Included in, but not limited to,
representations which should not be made concerning material composition
are the following:
(1) Any representation that an industry product or part thereof is
made of top grain leather, split leather, leather from the skin or hide
of a certain animal, vinyl, plastic, brass or other metal, or any other
material, when such is not the fact.
(2) Any representation that an industry product is made wholly or
substantially of a particular material when such is not the fact.
(3) Any trade name, coined name, trademark or other word, term or
representation which has the capacity and tendency to convey the
impression that an industry product is made in whole or in part from the
skin or hide of an animal, or that material in the product is leather,
split leather, vinyl, plastic, or other material, when such is not the
fact. Also any stamping, tag, label, or other device, in the shape of
an animal silhouette, used in connection with an industry product having
the appearance of leather but which is not wholly or substantially made
from the skin or hide of such an animal should not be used.
(4) Any trade name, coined name, trademark or other word, term or
representation that has the capacity and tendency to convey the
impression that an industry product is made in whole or in part from the
skin or hide of an animal which in fact is nonexistent.
(b) In some instances the failure to disclose certain pertinent facts
concerning the material composition of an industry product may have the
capacity and tendency to mislead or deceive purchasers. Generally such
instances involve split leather which has the appearance of being top
grain leather, or nonleather material which has the appearance of being
leather, or leather which has been processed to simulate a different
kind of leather. Included in, but not limited to, disclosures which
should be made concerning material composition are the following:
(1) Disclosure should be made of the split leather content of an
industry product or part thereof if the split leather is visible or if
any representation is made as to composition thereof.
Note: Split leather should be considered as that leather which
results from the splitting of hides or skins into two or more
thicknesses, other than the grain or hair side.
(2) Disclosure should be made concerning the material composition of
an industry product or part thereof which is made of a nonleather
material having the appearance of leather. Such disclosure may either
state that the material is not leather or describe the general nature of
the material in a manner that would clearly show that it is not leather.
Thus, some examples of the manner in which such material may be
described are:
Nonleather
Imitation Leather
Simulated Leather
Vinyl
Vinyl Coated Fabric
Plastic
Note: Nonleather materials which have the appearance of leather and
which primarily contain ground, pulverized or shredded leather, are
subject to paragraph (b)(2) of this section. Such materials may be
described as ''Nonleather'', ''Imitation Leather'' or ''Simulated
Leather'' or as ''Ground Leather'', ''Pulverized Leather'' or ''Shredded
Leather'', as the case may be.
When nonleather material has been processed to simulate a particular
kind of leather, such as alligator leather, any representation as may be
made concerning the simulated appearance of the product should be
immediately accompanied by the disclosure relating to the nonleather
composition of the product. Some examples of the manner in which such
material may be described are:
''Not Leather Simulated Alligator Grain''
''Plastic with Imitation Alligator Grain''
(3) Disclosure should be made of the kind of leather of which an
industry product or part thereof is made when the leather has been
embossed, dyed, or otherwise processed to simulate the appearance of a
different kind of leather. Thus, a product made wholly of top grain
cowhide which has been processed to simulate alligator may be described
as:
''Top Grain Cowhide''
Any additional representation as may be made concerning the simulated
appearance of the product should be immediately accompanied by the
disclosure relating to the actual kind of leather in the product. An
example of the manner in which such a product may be described is:
''Top Grain Cowhide Simulated Alligator Grain''
(4) Disclosure should be made that any material in an industry
product is backed with another kind of material when the backing is not
apparent upon casual inspection of the product, or when representations
are made which in the absence of such disclosure would be deceptive as
to composition of the product. Some examples of the manner in which
such material may be represented are:
''Top Grain Cowhide Backed with Split Cowhide''
''Split Cowhide Backed with Simulated Leather''
''Vinyl Backed with Other Material''
If the backing material is visible and is split leather, nonleather
material having the appearance of leather, or leather processed to
simulate a different kind of leather, disclosure should be made
consistent with paragraphs (b) (1), (2), and (3) of this section.
(5) Disclosure as to the composition of an industry product, composed
of more than one kind of leather or composed of leather and nonleather
material having the appearance of leather, should clearly indicate the
part to which the representation is applicable. Thus, some examples of
the manner in which products composed of top grain cowhide except for
the handles have the appearance of leather may be described are:
''Top Grain Cowhide with Handle of Simulated Leather''
''Top Grain Cowhide with Plastic Handle''
''Top Grain Cowhide with Split Leather Handle''
(Guide 2)
16 CFR 247.3 Form of disclosure as to material composition.
All disclosures under 247.2 of this part should appear in the form
of a stamping on the product, or on a tag, label, or card attached
thereto, and be affixed with such degree of permanence as to remain on
or attached to the product until it is received by the consumer
purchaser. All such disclosures on industry products shall also appear
in all advertising of the products irrespective of the media used
whenever statements, representations or depictions appear in such
advertising which in the absence of such disclosures would have the
capacity and tendency to create a false impression that the products, or
parts thereof, are of a certain kind of composition. The disclosures
affixed to products and made in advertising should be of such
conspicuousness and clarity as to be noted by purchasers and prospective
purchasers casually inspecting the products or casually reading, or
listening to, such advertising. A disclosure made in connection with
any such statement, representation or depiction should be in close
conjunction therewith. (Guide 3)
16 CFR 247.4 Misrepresentation as to aniline finish, graining,
embossing, and processing.
A representation should not be made that an industry product has
been:
(a) Colored, finished, or dyed with aniline dye when such is not the
fact; or
(b) Dyed, embossed, grained, processed, finished, or stitched in a
certain manner when such is not the fact. (Guide 4)
16 CFR 247.5 Misuse of terms such as ''Scuffproof'', ''Scratchproof'',
''Scuff Resistant'', and ''Scratch Resistant''.
(a) An industry product should not be represented as ''Scuffproof'',
''Scratchproof'', or as not subject to wear in any other respect, unless
the outer surface of the product is immune to scuffing, scratches, or is
in fact not subject to wear as represented.
(b) An industry product should not be represented as ''Scuff
Resistant'', ''Scratch Resistant'', or as resistant to wear in any other
respect, unless the surface of the product is in fact meaningfully and
significantly resistant to scuffing, scratches, or to wear as
represented. (Guide 5)
16 CFR 247.6 Deceptive pricing.
Members of the industry should not represent directly or indirectly
in advertising or otherwise that an industry product may be purchased
for a specified price, or at a saving, or at a reduced price, when such
is not the fact; or otherwise deceive purchasers or prospective
purchasers with respect to the price of any product offered for sale;
or furnish any means of instrumentality by which others engaged in the
sale of industry products may make any such representation.
Note: The Commission's Guides Against Deceptive Pricing furnish
additional guidance respecting price savings representations and are to
be considered as supplementing this section. See Part 233 of this
chapter for the Guides Against Deceptive Pricing.
(Guide 6)
16 CFR 247.7 Discriminatory prices, rebates, discounts, etc.
Note: 247.7 is interpretive of sections 2 (a) and (b) of the
amended Clayton Act.
(a) Industry members, engaged in commerce, in the course of such
commerce, should not grant or allow, secretly or openly, directly or
indirectly, any rebate, refund, discount, credit, or other form of price
differential, where such rebate, refund, discount, credit, or other form
of price differential effects a discrimination in price between
different purchasers of goods of like grade and quality, where either or
any of the purchases involved therein are in commerce, and where the
effect thereof may be substantially to lessen competition or tend to
create a monopoly in any line of commerce, or injure, destroy, or
prevent competition with any person who either grants or knowingly
receives the benefit of such discrimination, or with customers of either
of them: Provided, however,
(1) That the goods involved in any such transaction are sold for use,
consumption, or resale within any place under the jurisdiction of the
United States, and are not purchased by the U.S. Government, State and
local government entities, schools, colleges, universities, public
libraries, churches, hospitals, and charitable institutions not operated
for profit, as supplies for their own use;
(2) That nothing contained in this section shall prevent
differentials which make only due allowance for differences in the cost
of manufacture, sale, or delivery resulting from the differing methods
or quantities in which industry products are sold or delivered to
different purchasers;
Note: Cost justification under the above proviso (2) depends upon
savings in cost based on all facts relevant to the transactions under
the terms of such proviso. For example, if a seller regularly grants a
discount based upon the purchase of a specified quantity by a single
order for a single delivery, and this discount is justified by cost
differences, it does not follow that the same discount can be cost
justified if granted to a purchaser of the same quantity by multiple
orders or for multiple deliveries.
(3) That nothing contained in this section shall prevent persons
engaged in selling goods, wares, or merchandise in commerce from
selecting their own customers in bona fide transactions and not in
restraint of trade;
(4) That nothing contained in this section shall prevent price
changes from time to time where made in response to changing conditions
affecting the market for or the marketability of the goods concerned,
such as but not limited to actual or imminent deterioration of
perishable goods, obsolescence of seasonal goods, distress sales under
court process, or sales in good faith in discontinuance of business in
the goods concerned;
(5) That nothing contained in this section shall prevent the meeting
in good faith of an equally low price of a competitor or a greater
promotional allowance or other service or facility paid for or furnished
by a competitor.
Note: ''Meeting competition in good faith'' is an affirmative
defense which may be undertaken by a supplier charged with a violation
of subsection (a), (d), or (e) of section 2 of the amended Clayton Act
who can defend his actions by establishing that his lower price or
granting of disproportionate promotional allowance of other service or
facility was made in good faith to meet an equally low price of a
competitor or a greater promotional allowance or other service or
facility paid for or furnished by a competitor. This defense, however,
is subject to important limitations. For instance, it is insufficient
to defend a charge of violating subsection (a), (d) and (e) of section 2
of the amended Clayton Act solely on the basis that competition in a
particular industry is very keen, requiring that special prices or
allowances be given to some customers if a seller is ''to be
competitive.''
(b) The following are examples of price differential practices to be
considered as subject to the provisions of this section when involving
goods of like grade and quality which are sold for use, consumption, or
resale within any place under the jurisdiction of the United States, and
which are not purchased by the U.S. Government, State and local
government entities, schools, colleges, universities, public libraries,
churches, hospitals, and charitable institutions not operated for
profit, as supplies for their own use, and when --
(1) The commerce requirements specified in this section are present;
and
(2) The price differential has a reasonable probability of
substantially lessening competition or tending to create a monopoly in
any line of commerce, or of injuring, destroying, or preventing
competition with the industry member or with the customer receiving the
benefit of the price differential, or with customers of either of them;
and provided that --
(3) The price differential was not justified by cost savings (see
paragraph (a)(2) of this section); or
(4) The price differential was not made in response to changing
conditions affecting the market for or the marketability of the goods
concerned (see paragraph (a)(4) of this section); or
(5) The lower price was not made to meet in good faith an equally low
price of a competitor (see paragraph (a)(5) of this section):
Example 1. At the end of a given period an industry member grants a
discount to a customer equivalent to a fixed percentage of the total of
the customer's purchases during such period and fails to grant a
discount of the same percentage to other customers on their purchases
during such period.
Example 2. An industry member sells handbags to one or more of his
customers at a higher price than he charges other customers for like
merchandise. It is immaterial whether or not such discrimination is
accomplished by misrepresentation as to the grade and quality of the
products sold.
Example 3. An industry member sells handbags directly to a retailer
at a lower price than he charges distributors whose retail customers
compete with the favored retailer.
Example 4. An industry member pays freight on shipments to one
customer and does not pay freight on shipments to another customer, or
pays freight on shipments to a distributor's customer and does not pay
such freight on shipments to other distributors' customers thereby
effecting a difference in price between customers.
Example 5. Terms of 3/10 prox. are granted by an industry member to
some customers on handbags purchased by them from the industry member.
Another customer or customers are, nevertheless, allowed to take an
additional discount when making payment to the industry member within
the time prescribed or granted an extended period of time within which
to avail themselves of the originally offered discount.
Example 6. An industry member invoices handbags to all his customers
at the same price but supplies additional quantities of such goods at no
extra charge to one or more, but not to all, such customers; or
supplies other goods or premiums to one or more, but not to all, such
customers for which he makes no extra charge and which effects an actual
price difference in favor of certain of his customers.
Note: Functional discounts. Neither this section, nor section 2(a)
of the Clayton Act, as amended, of which this section is interpretive,
expressly permits or prohibits the granting of functional discounts.
The propriety of such discounts is contingent, principally, on whether
they may substantially lessen competition or tend to create a monopoly.
Ordinarily, however, a seller may grant a lower price to wholesalers
than to retailers to the extent that such wholesalers resell to
retailers, without such effects as may substantially lessen competition
or tend to create a monopoly. But if such wholesalers also sell at
retail, in competition with other of the seller's retail customers, they
may not properly be granted a price lower than the prices granted to
competing retailers on that portion of the goods they sell at retail.
(Guide 7)
16 CFR 247.8 Advertising or promotional allowances, or services or
facilities.
(a) Advertising or promotional allowances. No member of the industry
engaged in commerce should pay or contract for the payment of
advertising or promotional allowances or any other thing of value to or
for the benefit of a customer of such member in the course of such
commerce as compensation or in consideration for any services or
facilities furnished by or through such customer in connection with the
processing, handling, sale, or offering for sale of any industry
products manufactured, sold, or offered for sale by such member, unless
such payment or consideration is offered to and made available on
proportionally equal terms to all other customers competing in the
distribution of the seller's products of like grade and quality.
(b) Services or facilities. No member of the industry engaged in
commerce should discriminate in favor of one purchaser against another
purchaser or purchasers of industry products bought for resale, with or
without processing, by contracting to furnish or furnishing, or by
contributing to the furnishing of, any services or facilities connected
with the processing, handling, sale, or offering for sale of such
products unless such services or facilities are offered to and made
available on proportionally equal terms to all other customers competing
in the distribution of the seller's products of like grade and quality.
Note 1: The ''meeting competition in good faith'' defense which is
set forth in the note following paragraph (a)(5) of 247.7 is also
applicable to provisions of both paragraphs (a) and (b) of this section.
Note 2: For further guidance in this area see Part 240 of this
chapter for the Commission's Guides for Advertising Allowances and Other
Merchandising Payments and Services.
(Guide 8)
16 CFR 247.9 Inducing or receiving illegal discrimination in price,
advertising or promotional allowances, or services or facilities.
Note: 247.9 is interpretive of section 2(f) of the amended Clayton
Act and of section 5 of the Federal Trade Commission Act, as amended.
(a) Industry members engaged in commerce, in the course of such
commerce, should not knowingly induce or receive a discrimination in
price, advertising or promotional allowances, or services or facilities,
as reflected in 247.7 and 247.8 of this part.
(b) The following are examples of inducing or receiving
discriminations in price, advertising or promotional allowances, or
services or facilities, to be considered as subject to this section when
the requisites of an improper discrimination on the part of the seller
as reflected in 247.7 and 247.8 of this part are present and the party
receiving the discriminations knows or has reason to know that the
discriminations are illegal.
Example 1. An industry member purchases handbags purportedly for
resale to retailers, and is charged a lower price than the seller
charges other customers for handbags which they resell at retail; but
the member then transfers such handbags to another part of its business
where they are resold at retail, thereby receiving a discrimination in
price which is covered in 247.7 of this part.
Example 2. An industry member induces suppliers to contribute sums
of money to defray some or all of the costs of advertising sponsored by
such member and designed to promote the sale of such suppliers' handbags
in its place of business, when the industry member knows or should know
that allowances for such purpose are not made available on
proportionally equal terms by the same suppliers to other customers
competing with the favored member, thereby receiving a discrimination in
promotional allowances subject to the provisions reflected in 247.8 of
this part.
(Guide 9)
16 CFR 247.9 PART 248 -- GUIDES FOR THE BEAUTY AND BARBER EQUIPMENT AND
SUPPLIES INDUSTRY
Sec.
248.0 Definitions.
248.1 Misrepresentation in general.
248.2 Misrepresentation as to character of business.
248.3 Deceptive plaques and certificates.
248.4 Deceptive pricing.
248.5 Deceptive use and imitation of trade or corporate names,
trademarks, etc.
248.6 False invoicing.
248.7 Defamation of competitors or false disparagement of their
products.
248.8 Push money.
248.9 Enticing away employees of competitors.
248.10 Inducing breach of contract.
248.11 Exclusive deals.
248.12 Commercial bribery.
248.13 Discriminatory prices, rebates, discounts, etc.
248.14 Advertising or promotional allowances, or services or
facilities.
248.15 Inducing or receiving an illegal discrimination in price,
advertising or promotional allowances, or services or facilities.
Authority: Secs. 5, 6, 38 Stat. 719, as amended, 721; 15 U.S.C.
45, 46: 49 Stat. 1526; 15 U.S.C. 13, as amended.
Source: 33 FR 11987, Aug. 23, 1968, unless otherwise noted.
16 CFR 248.0 Definitions.
As used in this part the terms industry products, industry member,
beauty salon, beauty school, beauty clinic, cosmetology, hairdressing,
barber shop, and barber school shall have the following meanings,
respectively:
(a) Industry products. Items used by or marketed through barber
shops, barber schools, beauty parlors, beauty salons, beauty schools and
beauty clinics. (Such products embrace a wide range of beauty and
barber preparations; also the many articles or items of equipment,
furnishings and supplies for such aforementioned establishments.)
(b) Industry member. Any person, firm, corporation, organization,
barber shop, beauty salon, beauty school, beauty clinic or similar
establishment engaged in the manufacture, distribution, or sale
(including utilization in connection with services) of industry
products.
(c) Beauty salon. An establishment providing cosmetology and
hairdressing services to the public.
(d) Beauty school. An institution established to render instruction
in cosmetology and hairdressing.
(e) Beauty clinic. The segment of a beauty school furnishing the
students with practical experience in hairdressing and cosmetology.
(f) Cosmetology. Art or practice of treating, protecting, cleaning
or beautifying the skin, hair or nails of human beings, and the art or
practice of treating, protecting or beautifying synthetic hair, wigs, or
hair pieces to be worn by human beings.
(g) Hairdressing. Art or practice of treating, grooming, protecting,
cleaning, beautifying or styling of hair of human beings.
(h) Barber shop. An establishment which provides tonsorial services.
(i) Barber school. An institution established to render instruction
in the art of tonsorial services.
16 CFR 248.1 Misrepresentation in general.
An industry member should not use, or cause or promote the use of,
any statement, representation, guarantee,1092 testimonial, or
endorsement, by way of advertising (through newspapers, magazines,
circulars, booklets, or by radio, television or any other medium), oral
representation, or otherwise, which has the capacity and tendency or
effect of misleading or deceiving purchasers, prospective purchasers, or
the consuming public including customers receiving cosmetology,
hairdressing, or tonsorial services --
(a) With respect to efficacy, permanency of the effects, medicinal or
curative properties, grade, quality, quantity, substance, character,
origin, size, preparation, manufacture, or distribution of any product
of the industry; or
(b) Concerning the purported approval or endorsement of such product
by State, Federal, medical or other authority, or
(c) In any other material respect.
Note: Among the provisions of this section is ''false
advertisement,'' as defined in section 15 of the Federal Trade
Commission Act, of any ''cosmetic'' as such term is defined in the same
section. Furthermore, nothing in this Part 248 is to be construed as
relieving anyone of the necessity of complying with the cosmetic
labeling requirements of the ''Federal Food, Drug and Cosmetic Act.''
and the general regulations thereunder.
(Guide 1)
0921The Commission has adopted Guides Against Deceptive Advertising
of Guarantees. See 16 CFR Part 239 for the Guides Against Deceptive
Advertising of Guarantees for additional guidance with respect to
guarantee and warranty representations.
16 CFR 248.2 Misrepresentation as to character of business.
An industry member should not misrepresent, directly, or indirectly,
through the use of any word or term in his corporate or trade name, in
his advertising, or otherwise:
(a) That he is a producer, manufacturer, wholesaler, distributor,
importer, or retailer of industry products; or
(b) The character, including the nature, purpose or function, of his
business or the type of services he offers.
Example: An industry member advertises his place of business as a
beauty salon when in fact it is a clinic operated by a beauty school,
thereby deceiving the public as to the true character of his
establishment. In order to avoid such deception the industry member
should clearly and conspicuously disclose that his establishment is a
beauty school.
(Guide 2)
16 CFR 248.3 Deceptive plaques and certificates.
In the course of or in connection with the distribution, promotion,
or sale (including utilization in connection with services) of any
industry product, an industry member should not display or place in the
hands of others any plaque, emblem, seal, insignia, testimonial, or
certificate which is false, misleading, or deceptive as to an industry
member's professional proficiency or competence or as to his membership
in any guild or industry association.
Example 1. A distributor of industry products awards a certificate
to a beauty salon owner indicating that the recipient has attained a
high degree of professional skill through some unusual or extended
training, when in fact the award was not granted on the basis of
professional competency but was given merely as an inducement to buy the
products of such distributor.
Example 2. An industry member displays in his salon a seal which
indicates he is a member of a guild when in fact he is not such a
member.
(Guide 3)
16 CFR 248.4 Deceptive pricing.
Members of the industry should not represent directly or indirectly
in advertising or otherwise that an industry product may be purchased
for a specified price, or at a saving, or at a reduced price, when such
is not the fact; or otherwise deceive purchasers or prospective
purchasers with respect to the price of any product offered for sale;
or furnish any means or instrumentality by which others engaged in the
sale of industry products may make any such representation.
Note: The Commission's Guides Against Deceptive Pricing furnish
additional guidance respecting price savings representations and are to
be considered as supplementing this section. See 16 CFR Part 233 for
the Guides Against Deceptive Pricing for additional guidance with
respect to price savings representations.
(Guide 4)
16 CFR 248.5 Deceptive use and imitation of trade or corporate names,
trademarks, etc.
An industry member should not use any trade name, corporate name,
trademark, or other trade designation, which has the capacity and
tendency or effect of misleading or deceiving purchasers or prospective
purchasers as to the character, name, nature, or origin of any product
of the industry, or of any material used therein, or which is false or
misleading in any other material respect. (See also 248.2 of this
part.) (Guide 5)
16 CFR 248.6 False invoicing.
An industry member should not withhold from, or insert in, invoices
or sales slips, any statements, or information by reason of which
omission or insertion a false record is made, wholly or in part, of the
transactions represented on the face of such invoices or sales slips,
with the capacity and tendency or effect of thereby misleading or
deceiving purchasers, prospective purchasers, or the consuming public in
any material respect. (Guide 6)
16 CFR 248.7 Defamation of competitors or false disparagement of their
products.
An industry member should not engage in (a) the defamation of
competitors by falsely imputing to them dishonorable conduct, inability
to perform contracts, questionable credit standing, or by other false
representations, or (b) the false disparagement of the quality, grade,
origin, use, design, performance, properties, manufacture, or
distribution of the products of competitors or of their business
methods, selling prices, values, credit terms, policies or services.
(Guide 7)
16 CFR 248.8 Push money.
An industry member should not pay or contract to pay anything of
value to a salesperson employed by a customer of the industry member, as
compensation for, or as an inducement to obtain, special or greater
effort or service on the part of the salesperson in promoting the
resale, including use in connection with services, of products supplied
by the industry member to the customer --
(a) When the agreement or understanding under which the payment or
payments are made or are to be made is without the knowledge and consent
of the salesperson's employer; or
(b) When the terms and conditions of the agreement or understanding
are such that any benefit to the salesperson or customer is dependent on
lottery; or
(c) When any provision of the agreement or understanding requires or
contemplates practices or a course of conduct unduly and intentionally
hampering sales of products of competitors of an industry member; or
(d) When, because of the terms and conditions of the understanding or
agreement, including its duration, or the attendant circumstances, the
effect may be to substantially lessen competition or tend to create a
monopoly; or
(e) When similar payments are not accorded to salespersons of
competing customers on proportionally equal terms in compliance with
sections 2 (d) and (e) of the Clayton Act. (See 248.14 of this part.)
Note: Payments made by an industry member to a salesperson of a
customer under any agreement or understanding that all or any part of
such payments is to be transferred by the salesperson to the customer,
or is to result in a corresponding decrease in the salesperson's salary,
are not to be considered within the purview of this 248.8; but are to
be considered as subject to the requirements and provisions of section
2(a) of the Clayton Act. (See 248.13.)
(Guide 8)
16 CFR 248.9 Enticing away employees of competitors.
An industry member should not willfully entice away employees or
sales-contract personnel of competitors with the intent and effect of
thereby hampering or injuring competitors in their business or
destroying or substantially lessening competition; Provided, That
nothing in this section shall be construed as precluding such persons
from seeking more favorable employment, or as precluding employers from
hiring or offering employment to employees of a competitor in good faith
and not for the purpose of inflicting competitive injury. (Guide 9)
16 CFR 248.10 Inducing breach of contract.
(a) An industry member should not knowingly induce or attempt to
induce the breach of existing lawful contracts between competitors and
their customers or between competitors and their suppliers, or interfere
with or obstruct the performance of any such contractual duties or
services, under any circumstance having the capacity and tendency or
effect of substantially injuring or lessening competition.
(b) Nothing in this section is intended to imply that it is improper
for an industry member to solicit the business of a customer of a
competing industry member; nor is the section to be construed as in
anywise authorizing any agreement, understanding, or planned common
course of action by two or more industry members not to solicit business
from, or to sell to, the customers of either of them, or customers of
any other industry member. (Guide 10)
16 CFR 248.11 Exclusive deals.
An industry member should not contract to sell or sell any industry
product, or fix a price charged therefor, or discount from, or rebate
upon, such price, on the condition, agreement, or understanding that the
purchaser thereof shall not use or deal in the products of a competitor
or competitors of such industry member, where the effect of such sale or
contract for sale, or of such condition, agreement, or understanding,
may be substantially to lessen competition or tend to create a monopoly
in any line of commerce. (Guide 11)
16 CFR 248.12 Commercial bribery.
An industry member shall not directly or indirectly give, or offer to
give, or permit or cause to be given, money or anything of value to
agents, employees, or representatives of customers or prospective
customers, or to agents, employees, or representatives of competitors'
customers or prospective customers, without the knowledge of their
employers or principals, as an inducement to influence their employers
or principals to purchase or contract to purchase products manufactured
or sold by such industry member or the maker of such gift or offer, or
to influence such employers or principals to refrain from dealing in the
products of competitors or from dealing or contracting to deal with
competitors. (Guide 12)
16 CFR 248.13 Discriminatory prices, rebates, discounts, etc.
(a) An industry member engaged in commerce, should not in the course
of such commerce, grant or allow, secretly or openly, directly or
indirectly, any rebate, refund, discount, credit, or other form of price
differential, where such rebate, refund, discount, credit, or other form
of price differential, effects a discrimination in price between
different purchasers of goods of like grade and quality, where either or
any of the purchases involved therein are in commerce, and where the
effect thereof may be substantially to lessen competition or tend to
create a monopoly in any line of commerce, or to injure, destroy, or
prevent competition with any person who either grants or knowingly
receives the benefit of such discrimination, or with customers of either
of them: Provided, however,
(1) That the goods involved in any such transaction are sold for use,
consumption, or resale within any place under the jurisdiction of the
United States, and are not purchased by schools, colleges, universities,
public libraries, churches, hospitals, and charitable institutions not
operated for profit, as supplies for their own use;
Note 1: This section does not apply to purchases by the U.S.
Government for its own use.
(2) That nothing contained in this section shall prevent
differentials which make only due allowance for differences in the cost
of manufacture, sale, or delivery resulting from the differing methods
or quantities in which industry products are sold or delivered to
different purchasers;
Note 2: Cost justification under the above proviso (2) depends upon
net savings in cost based on all facts relevant to the transactions
under the terms of such proviso. For example, if a seller regularly
grants a discount based upon the purchase of a specified quantity by a
single order for a single delivery, and this discount is justified by
cost differences, it does not follow that the same discount can be cost
justified if granted to a purchaser of the same quantity by multiple
orders or for multiple deliveries.
(3) That nothing contained in this section shall prevent persons
engaged in selling goods, wares, or merchandise in commerce from
selecting their own customers in bona fide transactions and not in
restraint of trade;
(4) That nothing contained in this section shall prevent price
changes from time to time where made in response to changing conditions
affecting the market for or the marketability of the goods concerned,
such as but not limited to actual or imminent deterioration of
perishable goods, obsolescence of seasonal goods, distress sales under
court process, or sales in good faith in discontinuance of business in
the goods concerned;
(5) That nothing contained in this section shall prevent the meeting
in good faith of an equally low price of a competitor.
Note 3: Subsection 2(b) of the Clayton Act, as amended, reads as
follows: ''Upon proof being made, at any hearing on a complaint under
this section, that there has been discrimination in price or services or
facilities furnished, the burden of rebutting the prima facie case thus
made by showing justification shall be upon the person charged with a
violation of this section, and unless justification shall be
affirmatively shown, the Commission is authorized to issue an order
terminating the discrimination: Provided, however, That nothing herein
contained shall prevent a seller rebutting the prima facie case thus
made by showing that his lower price or the furnishing of services or
facilities to any purchaser or purchasers was made in good faith to meet
an equally low price of a competitor, or the services or facilities
furnished by a competitor.''
Note 4: In complaint proceedings, justification of price
differentials under paragraphs (a) (2), (4), and (5) of this section is
a matter of affirmative defense to be established by the person or
concern charged with price discrimination.
Note 5: Nothing in this section should be construed as precluding
charging customers at a higher level of distribution lower prices than
those charged to customers at a lower level of distribution provided
that such price differential is not otherwise precluded by the
aforegoing provisions of this section. For example, a seller may grant
a lower price to wholesalers than to retailers to the extent that such
wholesalers resell to retailers. If such wholesalers also sell at
retail they may not properly be granted a price lower than the prices
granted to competing retailers on that portion of the goods they sell at
retail.
(b) The following are examples of price differential practices to be
considered as subject to the provisions of this section when involving
goods of like grade and quality which are sold for use, consumption, or
resale within any place under the jurisdiction of the United States, and
which are not purchased by schools, colleges, universities, public
libraries, churches, hospitals, and charitable institutions not operated
for profit, as supplies for their own use, and when --
(1) The commerce requirements specified in this section are present;
and
(2) The price differential has a reasonable probability of
substantially lessening competition or tending to create a monopoly in
any line of commerce, or of injuring, destroying, or preventing
competition with the industry member or with the customer receiving the
benefit of the price differential, or with customers of either of them;
and
(3) The price differential is not justified by cost savings (see
paragraph (a)(2) of this section); and
(4) The price differential is not made in response to changing
conditions affecting the market for or the marketability of the goods
concerned (see paragraph (a)(4) of this section); and
(5) The lower price was not made to meet in good faith an equally low
price of a competitor (see paragraph (a)(5) of this section).
Example 1. An industry member sells supplies to one or more of his
beauty school customers at a lower price than he sells to one or more of
his wholesale customers who resell to a competitor or competitors of the
favored beauty school or schools. The probable injury to competition
resulting from such practice may occur in the resale of the supplies
with or without services being furnished in connection therewith.
Note 6: Example 1 should not be construed as admonishing an industry
member not to grant to his beauty school customers a favorable price on
supplies and/or equipment for use in preclinical training. However, the
industry member should assure himself that the materials are to be used
for the purpose intended and not diverted for use in a salon or clinic.
Example 2. An industry member invoices goods to all his customers at
the same price but supplies additional quantities of such goods at no
extra charge to one or more, but not to all, such customers; or
supplies other goods or premiums to one or more, but not to all, such
customers for which he makes no extra charge and which effects an actual
price difference in favor of certain of his customers.
Note 7: Section 248.13 is interpretive of sections 2(a) and 2(b) of
the amended Clayton Act.
(Guide 13)
16 CFR 248.14 Advertising or promotional allowances, or services or
facilities.
(a) An industry member engaged in commerce should not pay or contract
for the payment of advertising or promotional allowances or any other
thing of value to or for the benefit of a customer of such member in the
course of such commerce as compensation or in consideration for any
services or facilities furnished by or through such customer in
connection with the processing, handling, sale or offering for sale of
any products or commodities manufactured, sold or offered for sale by
such member, unless such payment or consideration is made known to and
is available on proportionally equal terms to all other customers
competing in the distribution of such products or commodities.
(b) An industry member engaged in commerce should not discriminate in
favor of one purchaser against another purchaser or purchasers of a
commodity bought for resale or distribution, with or without processing,
by contracting to furnish or furnishing, or by contributing to the
furnishing of, any services or facilities connected with the processing,
handling, sale or offering for sale of such commodity so purchased upon
terms not accorded to all competing purchasers on proportionally equal
terms.
Note 1: Subsection 2(b) of the Clayton Act, as amended, which is set
forth in Note 3 in 248.13 is applicable to this 248.14.
(c) The following is an example of discrimination in furnishing
advertising or promotional allowances or services or facilities to be
considered as subject to the provisions of this section when involving
goods of like grade and quality and when the industry member is engaged
in commerce and the promotional allowance, or service, or facility, is
paid or furnished in the course of such commerce.
Example. The furnishing by an industry member to a beauty salon of
any promotional allowance, or service, or facility without making
available on proportionally equal terms such assistance to all beauty
salons and others who compete with the favored salon in the resale of
the member's products with or without services.
Note 2: Proportionally equal terms means that the assistance is
proportionalized on some basis which is fair to all who compete in the
resale of the industry member's products. No single way to
proportionalize is prescribed by law and any method that treats all who
compete in the resale of the member's products on proportionally equal
terms may be used.
Note 3: When an industry member furnishes any promotional allowance,
service, or facility to any direct-buying salon he must also make such
assistance available on proportionally equal terms to all salons and
others who buy the member's products directly or through intermediaries
and who compete with the direct-buying salon in the resale, with or
without services, of the industry member's products at the same
functional level of distribution. The industry member may make such
assistance available directly to the competing salons and others who buy
through intermediaries. He may also utilize his intermediaries to
administer the promotional program, so long as he takes responsibility
for seeing that the assistance is offered and otherwise made available
to all salons and others who compete in the resale of the member's
products with or without services.
Note 4: Section 248.14 is interpretive of sections 2(d) and 2(e) of
the amended Clayton Act.
(Guide 14)
16 CFR 248.15 Inducing or receiving an illegal discrimination in price,
advertising or promotional allowances, or services or facilities.
(a) An industry member engaged in commerce, should not in the course
of such commerce, knowingly induce or receive a discrimination in price,
advertising or promotional allowances, or services or facilities, which
is improper under the foregoing provisions of 248.13 and 248.14 of
this part.
(b) The following are examples of inducing or receiving
discriminations in price, advertising or promotional allowances or
services or facilities, to be considered as subject to this section when
the requisites of an improper discrimination on the part of the seller
as set forth in 248.13 and 248.14 of this part are present and the
party receiving the discriminations knows or should know that the
discriminations are illegal.
Example 1. An industry member purchases industry supplies
purportedly for resale to beauty salons, and is charged a lower price
than the seller charges other customers for industry supplies which they
resell in beauty salons, with or without services; but the member who
obtained the supplies at the lower price transfers them to a salon which
he owns, and resells the supplies therein with or without services,
thereby receiving a discrimination in price which is subject to the
provisions of 248.13.
Example 2. An industry member induces suppliers to contribute sums
of money to defray some or all of the costs of advertising sponsored by
such member and designed to promote the sale, with or without services,
of the suppliers' products in the industry member's place of business,
when the industry member knows or should know that the allowances for
such purpose are not made available on proportionally equal terms by the
same suppliers to other customers competing with the favored member,
thereby receiving a discrimination in promotional allowances subject to
the provisions of 248.14.
Note: Section 248.15 is interpretive of section 2(f) of the amended
Clayton Act and of section 5 of the Federal Trade Commission Act, as
amended.
(Guide 15)
16 CFR 248.15 PART 250 -- GUIDES FOR THE HOUSEHOLD FURNITURE INDUSTRY
Sec.
250.0 Definitions.
250.1 Avoiding deception and making disclosures.
250.2 Describing wood and wood imitations.
250.3 Identity of woods.
250.4 Leather and leather imitations.
250.5 Outer coverings.
250.6 Stuffing (including filling, padding, etc.).
250.7 Origin and style of furniture.
250.8 Deception as to being ''new''.
250.9 Misuse of the terms ''floor sample'', ''discontinued model'',
etc.
250.10 Passing off through imitation or simulation of trademarks,
trade names, etc.
250.11 Misrepresentation as to character of business.
250.12 Commercial bribery.
250.13 Other parts in this Title 16 applicable to this industry.
Authority: 38 Stat. 717, as amended (15 U.S.C. 41-58).
Source: 38 FR 34992, Dec. 21, 1973, unless otherwise noted.
16 CFR 250.0 Definitions.
(a) Industry member. Any person, firm, corporation or organization
engaged in the manufacture, offering for sale, sale or distribution of
industry products as such products are hereinafter defined.
(b) Industry products. Articles of utility, convenience or
decoration which are suitable for use as furniture in a house,
apartment, or other dwelling place. Such articles include, but are not
limited to, all kinds and types of chairs, tables, cabinets, desks,
sofas, bedsteads, chests and mirror frames. The following products,
covered by sets of trade practice rules heretofore promulgated, are not
to be considered as coming within the purview of this definition: bed
mattresses, bedsprings, metal cots, cedar chests, mirror glass, musical
instruments, radio and television receiving sets and venetian blinds.
Also excluded from the purview of this part are pictures, lamps, clocks,
rugs, draperies as well as appliances and fixtures such as refrigerators
and air conditioners.
(c) Exposed surfaces. Those parts and surfaces exposed to view when
furniture is placed in the generally accepted position for use.
Included in this definition are visible backs of such items of furniture
as open bookcases, hutches, etc.
16 CFR 250.1 Avoiding deception and making disclosures.
(a) In general. Industry members should not sell, offer for sale, or
distribute any industry product under any representation or
circumstance, including failure to disclose material facts, that has the
capacity and tendency or effect of misleading or deceiving purchasers or
prospective purchasers with respect to its utility, construction,
composition, durability, design, style, quality, quantity or number of
items, model, origin, manufacture, price, grade, or in any other
material respect.
(b) Affirmative disclosures. Material facts concerning merchandise
which, if known to prospective purchasers, would influence their
decision of whether or not to purchase should be disclosed. This
includes situations where deception may result from the appearance alone
which in the absence of affirmative disclosures, could have the capacity
and tendency or effect of misleading or deceiving. For example,
veneered construction, use of plastic with simulated wood appearance,
use of materials or products that simulate other materials or products
used in the manufacture of furniture, or use of simulated finish or
grain design, are considered to be material facts and a failure to
disclose such information may be an unfair trade practice violative of
section 5 of the Federal Trade Commission Act.
(1) Where disclosures should be made. Unless otherwise provided, any
affirmative disclosure which should be made under this part, should be
on the industry product, or on a tag or label prominently attached
thereto, and should be of such permanency as to remain on or attached to
the product until consummation of sale to the consumer. Also,
affirmative disclosures should appear in all advertising relating to
industry products, irrespective of the media used, whenever statements,
representations or depictions are used which could create an impression
that the furniture is of a certain construction or composition and
which, in the absence of such disclosures, could have the capacity to
mislead purchasers or prospective purchasers.
(2) The manner of disclosure. In all cases in which the disclosure
is necessary, it should be made in close conjunction with the
representation or depiction to be qualified and should be of sufficient
clarity, conspicuousness, and audibility (when spoken), as to be noted
by prospective purchasers. The number of times a disclosure should be
made will depend entirely upon the format and context in which it
appears. As a general proposition, in catalogs and brochures
advertising a suite or line of furniture it will be sufficient to make
appropriately conspicuous disclosures once at the outset; however,
additional disclosures should be made on any page where additional
descriptive words are used which should be qualified under this part.
(3) The form of disclosure with respect to composition. Whenever an
affirmative disclosure regarding composition should be made under this
part, it may be accomplished by either describing the true composition
of the product or parts thereof (''plastic'', ''vinyl'', ''marble
particles with binder'') or by stating that the material is not what it
appears to be (''simulated wood'', ''imitation leather'', ''simulated
marble''). Terms such as ''molded components'', ''walnut plastic'' or
''carved effect'' will not suffice to disclose that exposed surfaces are
plastic, or that they are not wood.
(4)(i) Trade names, coined names, trademarks, etc. suggestive of
composition. Any trade name, coined name, trademark, depiction, symbol
or other word or term which is susceptible of more than one
interpretation, one or more of which could be misleading, should be
immediately qualified to remove clearly and conspicuously the misleading
implication(s). For instance, a trade name such as ''Durahyde'', if
used to describe a fabric-backed vinyl upholstery covering which
simulates leather, should be immediately qualified to disclose (A) the
true composition of the product (e.g., ''fabric-backed vinyl'') or (B)
that the product is not leather (e.g., ''simulated leather'', ''not
leather'' or ''imitation leather'').
(ii) Trade designations or other representations which cannot be
qualified without the qualification amounting to a contradiction should
not be used. A trade designation consisting in whole or in part of a
word which denotes a kind or type of material of which the product is
not in fact composed should not be used. For example, the words
''hide'', ''skin'' and ''leather'' should not be used in trade names
denoting nonleather products, although homophones of those words such as
''hyde'' may be used if qualified as provided above. Similarly, the
word ''wood'' should not be used in a trade name of a product which does
not contain wood.
(iii) Also, ambiguous or imprecise trade designations will not be
sufficient to satisfy the disclosure provisions of this part. For
example, the coined name ''Hardiclad'' used to describe molded plastic
drawer fronts having the appearance of wood, is not sufficient to
disclose that such parts are plastic or that they are not wood.
(c) Illustrative examples of affirmative disclosure of composition or
appearance. The following examples are among those which, if factually
correct, will meet the provisions of this section with respect to
affirmative disclosures:
(1) Disclosure of veneered construction. ''Veneered construction'',
''(wood name) solids and veneers'', ''(wood name) veneered tops, fronts
and end panels'' or ''(wood name) veneered 5-ply construction with solid
parts of (wood name)'';
(2) Disclosure of the use of plastics or other materials having the
appearance of wood. ''High impact polystyrene'', ''door panels of
polystyrene'', ''legs of rigid polyurethane'', ''walnut grained plastic
tops'', ''parts of the exposed surfaces are of simulated wood'' (to
describe minor parts of the exposed surfaces of furniture), ''imitation
wood'', ''carved effects of simulated wood'', ''simulated wood
components'', ''wood grained vinyl veneer'', ''walnut grained
hardboard'' or ''simulated wood effect on plastic'';
(3) Simulated leather, slate, or marble. ''Vinyl'', ''leather look
on vinyl'', ''simulated leather'', ''slate effect on plastic tops'',
''simulated slate'', ''simulated marble'' or ''marble dust and polyester
binder'';
(4) Simulated wood grain design. ''Simulated wood grain design'',
''cherry grained maple'', ''simulated mahogany crotch on mahogany
veneer'', ''Simulated Carpathian Elm burl'' or ''engraved cathedral
walnut grain on hardboard'';
(5) Simulated carvings. ''Carved effect in plastic'', ''simulated
wood carvings'' or ''molded polystyrene with carved look'';
(6) Hang tags or labels disclosing the use of veneers, plastic
simulating wood, or simulated wood grain. ''Veneered construction, heat
and stain resistant plastic tops, drawer fronts and decorative parts of
rigid polyurethane'', or ''This furniture is made of selected hardwoods
and veneers with matching plastic tops and decorative carved effects of
polystyrene in dark oak finish'', or ''This suite is constructed of
selected walnut veneers and solid pecan, and has simulated wood panels
on drawers, doors, and headboards'', or ''Walnut veneer end panels and
tops, polystyrene drawer and door fronts, and selected solid hardwood'',
or ''This furniture is constructed of selected handwood solids and
veneers, with certain veneered surfaces having simulated grain finish to
enhance their appearance'' or ''Solid and Veneered hardwoods with carved
effects in simulated wood and simulated grain design on veneered tops in
matching pecan finish''.
(d) Removal of tags or labels. Members of the industry should not:
(1) Remove, obliterate, deface, change, alter, conceal, or make
illegible any information this part provides be disclosed on industry
products, such as on tags or labels attached thereto, without replacing
the same with a proper disclosure meeting the provisions of this part
before offering for sale, sale, or distribution; or
(2) Sell, resell, distribute, or offer for sale an industry product
without it being marked, tagged, or labeled and described in accordance
with the provisions of this part. (Guide 1)
16 CFR 250.2 Describing wood and wood imitations.
(a) Solid wood construction. Industry members should not use
unqualified wood names to describe furniture unless all of the exposed
surfaces are constructed of solid wood of the type named. If more than
one type of solid wood is used and one of the woods is named, then all
of the principal woods should be disclosed, or the extent of the use of
the wood named should be indicated. In lieu of naming the specific
woods, a general designation of the type of wood, such as ''hardwood''
or ''softwood'' may be used. For example, the following
representations, if factually correct, will be acceptable: ''solid
maple'', ''solid African mahogany'', ''walnut and pecan'', ''solid oak
fronts'', ''walnut'', ''maple and other selected hardwoods'', ''fine
hardwoods'' and ''selected hardwoods''.
(b) Wood veneers. (1) When the exposed surfaces of furniture are of
veneered and solid construction, and wood names are used to describe
such furniture, the wood names should be qualified to disclose the fact
of veneered construction. For example, ''walnut solids and veneers'' or
''mahogany veneered construction'' may be used when all the exposed
surfaces of furniture are constructed of solid and veneered wood of the
type named. When such terms as ''walnut veneered construction'' or
''oak veneered construction'' are used, it is understood that the
exposed solid parts are composed of the same wood.
(2) When solid parts of furniture are of woods other than those used
in veneered surfaces, either the use of such other woods should be
disclosed or the location of the veneers stated. Examples: ''walnut
veneers and pecan solids'', ''mahogany veneers and African mahogany
solids'', ''walnut veneered tops, fronts and end panels'', ''table tops
of mahogany veneers'' or ''cherry veneers and selected solid
hardwoods''.
(c) Wood products. Wood names or names suggesting wood should not be
used to refer to materials which, while produced from wood particles or
fibers, do not possess a natural wood growth structure. Such materials,
however, may be referred to by their generally accepted names, if
otherwise nondeceptive, such as ''hardboard'', ''particleboard'',
''chipcore'' or ''fiberboard'', or may be referred to as ''wood
products''.
(d) Color or grain design finish. When wood names are used merely to
describe a color of a stain finish and/or grain design or other
simulated finish applied to the exposed surfaces of furniture that is
composed of something other than solid wood of the types named, it must
be made clear that the wood names are merely descriptive of the color
and/or grain design or other simulated finish. Terms such as ''walnut
finish'' or ''fruitwood finish'' will not suffice. However, terms such
as ''walnut color'', ''fruitwood stain finish'', ''maple finish on birch
solids and veneers'', ''walnut finish on walnut veneers and selected
solid hardwoods'', ''cherry grained maple drawer fronts'', ''walnut
finish plastic top'' or ''maple stained hardwoods'' will be considered
acceptable when factually correct and in contexts otherwise
nondeceptive.
(e) Materials simulating wood. No wood names should be used to
describe any materials simulating wood without disclosures making it
clear that the wood names used are merely descriptive of the color
and/or grain design or other simulated finish; nor should any trade
names or coined names be employed which may suggest that such materials
are some kind of wood. (Guide 2)
16 CFR 250.3 Identity of woods.
Industry members should not use any direct or indirect representation
concerning the identity of the wood in industry products that is false
or likely to mislead purchasers as to the actual wood composition.
(a) Walnut. The unqualified term ''walnut'' should not be used to
describe wood other than genuine solid walnut (genus Juglans). The term
''black walnut'' should be applied only to the species Juglans nigra.
(b) Mahogany. (1) The unqualified term ''mahogany'' should not be
used to describe wood other than genuine solid mahogany (genus Swietenia
of the Meliaceae family). The woods of genus Swietenia may be described
by the term ''mahogany'' with or without a prefix designating the
country or region of its origin, such as ''Honduras mahogany'', ''Costa
Rican mahogany'', ''Brazilian mahogany'' or ''Mexican mahogany''.
(2) The term ''mahogany'' may be used to describe solid wood of the
genus Khaya of the Meliaceae family, but only when prefixed by the word
''African'' (e.g., ''African mahogany desk'').
(3) In naming or designating the seven non-mahogany Philippine woods
Tanguile, Red Lauan, White Lauan, Tiaong, Almon, Mayapis, and Bagtikan,
the term ''mahogany'' may be used but only when prefixed by the word
''Philippine'' (e.g., ''Philippine mahogany table''), due to the long
standing usage of that term. Examples of improper use of the term
''mahogany'' include reference to Red Lauan as ''Lauan mahogany'' or to
White Lauan as ''Blond Lauan mahogany''. Such woods, however, may be
described as ''Red Lauan'' or ''Lauan'' or ''White Lauan'',
respectively. The term ''Philippine mahogany'' will be accepted as a
name or designation of the seven woods named above. Such term shall not
be applied to any other wood, whether or not grown on the Philippine
Islands.
(4) The term ''mahogany'', with or without qualifications, should not
be used to describe any other wood except as provided above. This
applies also to any of the woods belonging to the Meliaceae family,
other than genera Swietenia and Khaya.
(c) Maple. The terms ''hard maple'', ''rock maple'', ''bird's-eye
maple'', ''Northern maple'' or other terms of similar nature should not
be used to describe woods other than those known under the lumber trade
names of Black Maple (Acer nigrum) and Sugar Maple (Acer saccharum).
Note: Nothing in this section should be construed as prohibiting the
nondeceptive use of wood names to describe the color, stain, simulated
finish or appearance of industry products, provided that appropriate
qualifications are made in accordance with provisions in 250.2(d).
(Guide 3)
16 CFR 250.4 Leather and leather imitations.
(a) Members of the industry should not make any direct or indirect
representation concerning furniture or parts thereof covered with
leather, or other material which simulates leather, which is false or
misleading.
(b) Practices which should not be used under this section include,
but are not limited to, the use of any trade name, coined name,
trademark,1093 or other word or term, or any depiction or device, which
could have the capacity and tendency or effect of misleading prospective
purchasers into believing that furniture is covered in whole or in part
with the skin or hide of an animal, or that the covering of furniture is
leather, top grain leather, or split leather, when such is not the case.
When a furniture covering is made from ground, shredded, pulverized or
powdered leather, industry members should affirmatively disclose, in a
manner provided for under 250.1 of this part, either the true
composition thereof, or the fact that it is not leather.
(c) In the case of non-leather material having the appearance of
leather, industry members should conspicuously disclose facts concerning
the composition thereof either by identifying the composition of the
product (e.g., ''vinyl covering'', ''fabric-backed vinyl'',
''upholstered in plastic'') or by a disclosure that the product is not
leather (e.g., ''imitation leather'', ''not leather''), as provided for
under 250.1 of this part. (Guide 4)
0931See 250.1(b)(4).
16 CFR 250.5 Outer coverings. 2094
(a) In connection with the sale of furniture, members of the industry
should not use any direct or indirect representation concerning the
outer covering thereof which:
(1) Is false (e.g., using the term ''Mohair'' to describe a fabric
not produced from fibers derived from the angora goat); or
(2) Has the capacity and tendency or effect of deceiving furniture
purchasers (e.g., by telling a half-truth, such as using the unqualified
word ''Nylon'' to describe a blend of nylon and other fibers).
(b) When (if) any identifying reference is made in advertising to an
outer covering made of a mixture of different kinds of fibers, each
constituent fiber present in substantial quantity (at least 5 percent)
should be designated in the order of its predominance by weight (e.g.,
''cotton and nylon'') in a manner provided for in 250.1 of this part.
If a fiber so designated is not present in a substantial quantity (less
than 5 percent) the percentage thereof should be stated (e.g., ''cotton,
rayon, 3 percent nylon'').
(c) When (if) any identifying reference is made on a tag or label to
an outer covering made of a mixture of different kinds of fibers; each
and every kind of fiber present in such outer covering should be
identified by showing the fiber content with percentages of the
respective fibers in order of their predominance by weight (e.g., ''55
percent Cotton, 45 percent Rayon''). In the case of pile fabrics,
identification of the fiber content should be made on a tag or label by
stating:
(1) The fiber content of the face or pile and of the back or base,
with percentages of the respective fibers in order of their predominance
by weight and the respective percentages of the face and back showing
the ratio between face and back (e.g., ''Face 60 percent Rayon, 40
percent Nylon -- Back 100 percent Cotton; Back constitutes 80 percent
of fabric and face 20 percent''); or
(2) The percentages of the fibers of the face or pile and the back or
base in relation to the total weight of the fabric (e.g., ''40 percent
Cotton, 40 percent Rayon, 20 percent Nylon'' to describe a fabric having
an all nylon pile constituting 20 percent of the total weight backed by
a 50 percent -- 50 percent blend of cotton and rayon).
(d) No representation should be made, directly or by implification,
that an upholstery fabric has been tested unless:
(1) Actual tests have been conducted by persons qualified to perform
and evaluate tests on upholstery fabrics; and
(2) Such tests were devised and conducted so as to constitute a
reasonable basis for evaluating the fabric for use as a furniture
covering; and
(3) Such representation is accompanied by a conspicuous and accurate
statement, in layman's language, of the actual test results. (See Note
following paragraph (e) of this section.)
(e) No direct or indirect representation should be made concerning
any performance characteristic of any upholstery fabric unless at the
time such representation is made the advertiser has in his possession a
reasonable basis therefor, which may consist of competent scientific
tests and/or other appropriate substantiating materials.
Note: On demand by the Commission, any advertiser who makes
representations concerning tests or performance characteristics of
fabrics should submit documentation of such tests, studies, and other
data (as he had in his possession prior to the time the claims were
made), which purport to substantiate the truth of such representations.
Accurate records of all such documentation should be maintained for
three years from the date such representations were last disseminated.
(Guide 5)
(38 FR 34992, Dec. 21, 1973; 39 FR 1833, Jan. 15, 1974)
0942Section 12(a)(2) of the Textile Fiber Products Identification Act
(72 Stat. 1717; 15 U.S.C. 70) specifically exempts ''outer coverings of
furniture'' from the application of the Act. Section 14 of the same Act
provides that the Act ''shall be held to be in addition to, and not in
substitution for or limitation of, the provisions of any other Act of
the United States.'' Therefore, corrective action involving deceptive
practices in the sale of furniture would be initiated under the
authority of Section 5 of the Federal Trade Commission Act which
prohibits ''unfair methods of competition in commerce and unfair or
deceptive acts or practices in commerce.''
16 CFR 250.6 Stuffing (including filling, padding, etc.).
Members of the industry should not make any direct or indirect
representation relating to the stuffing of furniture which:
(a) Is false (e.g., describing cotton stuffing as ''wool'', or
urethane foam as ''latex foam rubber''): or
(b) Has the capacity and tendency or effect of deceiving or
misleading (e.g., by telling a half-truth, such as describing shredded
or flaked foam rubber stuffing as ''foam rubber'' without disclosing, in
a manner provided for under 250.1 of this part, that it is shredded or
flaked, or describing any non-latex foam cushion as ''foam'' without
disclosing the kind of foam used, such as ''urethane foam'').
(1) The unqualified terms ''Foam'', ''Latex'' or ''Latex Foam
Rubber'' or other terms of similar import, should not be used as
descriptive of any part of the filling of an upholstery which does not
consist of one or more homogeneous pads of latex foam rubber.
(2) When an upholstered industry product contains filling material
consisting of a top layer of homogeneous latex foam rubber, or of other
type of stuffing which is of substantial thickness, and another layer or
layers of other material, terms such as ''latex foam rubber'',
''polyurethane foam'' or other terms which accurately describe the
composition of such top layer may be used as descriptive thereof,
provided, however, That in immediate conjunction therewith, nondeceptive
disclosure is made of the fact that only a part of such filling material
is of latex foam rubber or such other type of designated stuffing.
(3) When the filling is composed, in whole or in part, of latex foam
rubber, polyurethane foam, or other type of stuffing which has been
shredded, flaked, or ground, full and nondeceptive disclosure should be
made of such fact in immediate conjunction with any such term
irrespective of whether the pieces or shreds of latex foam rubber,
polyurethane foam, or other type of stuffing are in loose form or are
held together by glue or some other adhesive agent.
Note: This section is promulgated under the Federal Trade Commission
Act for the purposes of interpreting requirements of such Act and to
assist in the general enforcement of the Act. The section is not to be
construed as relieving industry members from full compliance with
applicable State and local legal requirements.
(Guide 6)
16 CFR 250.7 Origin and style of furniture.
(a) Industry members should not make any direct or indirect
representation which is false or likely to deceive prospective
purchasers of furniture as to its origin, either domestic or foreign.
For example:
(1) Furniture manufactured in the United States should not be
unqualifiedly described as ''Danish'', ''Spanish'', ''Italian'',
''English'', or by any other unqualified terms suggesting foreign
origin, unless the fact that such furniture was manufactured in the
United States is clearly and conspicuously disclosed in advertising and
on the furniture by means of such statements as ''Made in U.S.A.'' or
''manufactured by'' followed by the name and address of the domestic
manufacturer.
(2) When appropriate, furniture may be described by such terms as
''Danish Style'', ''Italian Design'', ''Spanish Influence'', ''English
Tradition'' or by any other terms accurately descriptive of a generally
recognized furniture style.
(3) Because of general understanding by the furniture buying public,
terms such as ''French Provincial'', ''Italian Provincial'', ''Chinese
Chippendale'' and ''Mediterranean'' are considered to have acquired a
secondary meaning as descriptive of the styles of furniture so
described. Thus, unqualified use of such terminology, when appropriate,
would not be considered deceptive.
(4) Furniture should not be represented by trade name or otherwise as
being manufactured in the Grand Rapids (Michigan) area, or in any other
furniture producing area, when such is not the fact.
(b) In connection with the sale of furniture of foreign manufacture,
members of the industry should clearly and conspicuously disclose the
foreign country of origin, when the failure to make such disclosure has
the capacity and tendency or effect of deceiving purchasers of such
products. The disclosure of foreign origin, when required, should be in
the form of a legible marking, stamping, or labeling on the outside of
the furniture, and shall be of such size, conspicuousness and degree of
permanency, as to be and remain noticeable and legible upon casual
inspection until consumer purchase. (Guide 7)
16 CFR 250.8 Deception as to being ''new''.
(a) Industry members should not make any direct or indirect
representation that an industry product is new unless such product has
not been used and is composed entirely of unused materials and parts.
(b) In connection with the sale of furniture which has the appearance
of being new but which contains used materials or parts, such as
springs, latex foam rubber stuffing, or hardware, members of the
industry should conspicuously disclose, in a manner provided for in
250.1 of this part, such fact (e.g., ''cushions made from reused
shredded latex foam rubber'').
(Note: See also 250.9.)
(Guide 8)
16 CFR 250.9 Misuse of the terms ''floor sample'', ''discontinued
model'', etc.
(a) Representations that furniture is a ''floor sample'',
''demonstration piece'', etc., should not be used to describe
''trade-in'', repossessed, rented, or any furniture except that
displayed for inspection by prospective purchasers at the place of sale
for the purpose of determining their preference and its suitability for
their use.
(b) Furniture should not be described as ''discontinued'' or
''discontinued model'' unless the manufacturer has in fact discontinued
its manufacture or the industry member offering it for sale will
discontinue offering it entirely after clearance of his existing
inventories of furniture so described. (Guide 9)
16 CFR 250.10 Passing off through imitation or simulation of
trademarks, trade names, etc.
Members of the industry should not mislead or deceive purchasers by
passing off the products of one industry member as and for those of
another through the imitation or simulation of trademarks, trade names,
brands, or labels. (Guide 10)
16 CFR 250.11 Misrepresentation as to character of business.
Members of the industry should not represent, directly or by
implication, in advertising or otherwise, that they produce or
manufacture products of the industry, or that they own or control a
factory making such products, when such is not the fact, or that they
are a manufacturer, wholesale distributor or a wholesaler when such is
not the fact, or in any other manner misrepresent the character, extent,
or type of their business. (Guide 11)
16 CFR 250.12 Commercial bribery.
Members of the industry should not give, or offer to give, or permit
or cause to be given, directly or indirectly, money or anything of value
to agents, employees, or representatives of customers or prospective
customers, or to agents, employees, or representatives of competitors'
customers or prospective customers, without the knowledge of their
employers or principals, as an inducement to influence their employers
or principals to purchase or contract to purchase products manufactured
or sold by such industry member or the maker of such gift or offer, or
to influence such employers or principals to refrain from dealing in the
products of competitors or from dealing or contracting to deal with
competitors. (Guide 12)
16 CFR 250.13 Other parts in this Title 16 applicable to this industry.
The Commission has adopted Guides Against Deceptive Pricing, Part
233, Guides Against Deceptive Advertising of Guarantees, Part 239, and
Guides Against Bait Advertising, Part 238, all of which have general
application and furnish additional guidance for members of the Household
Furniture Industry. Members of this industry should comply with those
parts.
16 CFR 250.13 PART 251 -- GUIDE CONCERNING USE OF THE WORD ''FREE'' AND SIMILAR REPRESENTATIONS
16 CFR 251.1 The guide.
(a) General. (1) The offer of ''Free'' merchandise or service is a
promotional device frequently used to attract customers. Providing such
merchandise or service with the purchase of some other article or
service has often been found to be a useful and valuable marketing tool.
(2) Because the purchasing public continually searches for the best
buy, and regards the offer of ''Free'' merchandise or service to be a
special bargain, all such offers must be made with extreme care so as to
avoid any possibility that consumers will be misled or deceived.
Representative of the language frequently used in such offers are
''Free'', ''Buy 1-Get 1 Free'', ''2-for-1 Sale'', ''50% off with
purchase of Two'', ''1 Sale'', etc. (Related representations that
raise many of the same questions include '' ---- Cents-Off'',
''Half-Price Sale'', '' 1/2 Off'', etc. See the Commission's ''Fair
Packaging and Labeling Regulation Regarding 'Cents-Off' and Guides
Against Deceptive Pricing.'')
(b) Meaning of ''Free''. (1) The public understands that, except in
the case of introductory offers in connection with the sale of a product
or service (See paragraph (f) of this section), an offer of ''Free''
merchandise or service is based upon a regular price for the merchandise
or service which must be purchased by consumers in order to avail
themselves of that which is represented to be ''Free''. In other words,
when the purchaser is told that an article is ''Free'' to him if another
article is purchased, the word ''Free'' indicates that he is paying
nothing for that article and no more than the regular price for the
other. Thus, a purchaser has a right to believe that the merchant will
not directly and immediately recover, in whole or in part, the cost of
the free merchandise or service by marking up the price of the article
which must be purchased, by the substitution of inferior merchandise or
service, or otherwise.
(2) The term ''regular'' when used with the term ''price'', means the
price, in the same quantity, quality and with the same service, at which
the seller or advertiser of the product or service has openly and
actively sold the product or service in the geographic market or trade
area in which he is making a ''Free'' or similar offer in the most
recent and regular course of business, for a reasonably substantial
period of time, i.e., a 30-day period. For consumer products or
services which fluctuate in price, the ''regular'' price shall be the
lowest price at which any substantial sales were made during the
aforesaid 30-day period. Except in the case of introductory offers, if
no substantial sales were made, in fact, at the ''regular'' price, a
''Free'' or similar offer would not be proper.
(c) Disclosure of conditions. When making ''Free'' or similar offers
all the terms, conditions and obligations upon which receipt and
retention of the ''Free'' item are contingent should be set forth
clearly and conspicuously at the outset of the offer so as to leave no
reasonable probability that the terms of the offer might be
misunderstood. Stated differently, all of the terms, conditions and
obligations should appear in close conjunction with the offer of
''Free'' merchandise or service. For example, disclosure of the terms
of the offer set forth in a footnote of an advertisement to which
reference is made by an asterisk or other symbol placed next to the
offer, is not regarded as making disclosure at the outset. However,
mere notice of the existence of a ''Free'' offer on the main display
panel of a label or package is not precluded provided that (1) the
notice does not constitute an offer or identify the item being offered
''Free'', (2) the notice informs the customer of the location, elsewhere
on the package or label, where the disclosures required by this section
may be found, (3) no purchase or other such material affirmative act is
required in order to discover the terms and conditions of the offer, and
(4) the notice and the offer are not otherwise deceptive.
(d) Supplier's responsibilities. Nothing in this section should be
construed as authorizing or condoning the illegal setting or policing of
retail prices by a supplier. However, if the supplier knows, or should
know, that a ''Free'' offer he is promoting is not being passed on by a
reseller, or otherwise is being used by a reseller as an instrumentality
for deception, it is improper for the supplier to continue to offer the
product as promoted to such reseller. He should take appropriate steps
to bring an end to the deception, inlcuding the withdrawal of the
''Free'' offer.
(e) Resellers' participation in supplier's offers. Prior to
advertising a ''Free'' promotion, a supplier should offer the product as
promoted to all competing resellers as provided for in the Commission's
''Guides for Advertising Allowances and Other Merchandising Payments and
Services.'' In advertising the ''Free'' promotion, the supplier should
identify those areas in which the offer is not available if the
advertising is likely to be seen in such areas, and should clearly state
that it is available only through participating resellers, indicating
the extent of participation by the use of such terms as ''some'',
''all'', ''a majority'', or ''a few'', as the case may be.
(f) Introductory offers. (1) No ''Free'' offer should be made in
connection with the introduction of a new product or service offered for
sale at a specified price unless the offeror expects, in good faith, to
discontinue the offer after a limited time and to commence selling the
product or service promoted, separately, at the same price at which it
was promoted with the ''Free'' offer.
(2) In such offers, no representation may be made that the price is
for one item and that the other is ''Free'' unless the offeror expects,
in good faith, to discontinue the offer after a limited time and to
commence selling the product or service promoted, separately, at the
same price at which it was promoted with a ''Free'' offer.
(g) Negotiated sales. If a product or service usually is sold at a
price arrived at through bargaining, rather than at a regular price, it
is improper to represent that another product or service is being
offered ''Free'' with the sale. The same representation is also
improper where there may be a regular price, but where other material
factors such as quantity, quality, or size are arrived at through
bargaining.
(h) Frequency of offers. So that a ''Free'' offer will be special
and meaningful, a single size of a product or a single kind of service
should not be advertised with a ''Free'' offer in a trade area for more
than 6 months in any 12-month period. At least 30 days should elapse
before another such offer is promoted in the same trade area. No more
than three such offers should be made in the same area in any 12-month
period. In such period, the offeror's sale in that area of the product
in the size promoted with a ''Free'' offer should not exceed 50 percent
of the total volume of his sales of the product, in the same size, in
the area.
(i) Similar terms. Offers of ''Free'' merchandise or services which
may be deceptive for failure to meet the provisions of this section may
not be corrected by the substitution of such similar words and terms as
''gift'', ''given without charge'', ''bonus'', or other words or terms
which tend to convey the impression to the consuming public that an
article of merchandise or service is ''Free''.
(38 Stat. 717, as amended; 15 U.S.C. 41-58)
(36 FR 21517, Nov. 10, 1971)
16 CFR 251.1 PART 252 -- GUIDES FOR LABELING, ADVERTISING, AND SALE OF
WIGS AND OTHER HAIRPIECES
Sec.
252.0 Definitions.
252.1 Misrepresentation (general).
252.2 Disclosure of hair composition.
252.3 Disclosure of foreign origin.
252.4 Flammability.
252.5 Use of terms such as ''hair'', ''natural hair'', ''real hair'',
etc., and trade names.
252.6 Disclosure relating to used industry products or parts thereof.
252.7 Representations as to ''Handmade'', etc.
252.8 Representations as to ''Custom-made'', etc.
252.9 Representations as to color.
252.10 Representations as to style.
252.11 Representations as to ''virgin'' hair.
Authority: 38 Stat. 717, as amended; 15 U.S.C. 41-58.
Source: 35 FR 12718, Aug. 11, 1970, unless otherwise noted.
Editorial Note: See 36 FR 18078, Sept. 9, 1971, for a statement of
enforcement policy.
16 CFR 252.0 Definitions.
(a) Industry Member means any person, firm, corporation, or
organization engaged in the manufacture, sale, or distribution of any
industry product as defined below.
(b) Industry Product means any kind or type of lady's wig, wiglet,
fall, chignon, or other hairpiece and any kind or type of man's toupee
or other hairpiece.
(c) Hair Composition means the type of hair fiber contained in an
industry product. Hair composition may consist of, or be a combination
of, three basic types of fiber, namely, human hair, animal hair, and
artificial hair.
16 CFR 252.1 Misrepresentation (general).
An industry product should not be labeled, advertised, or otherwise
represented in any manner which may have the capacity and tendency or
effect of misleading or deceiving purchasers or prospective purchasers
concerning the composition, quality, durability, construction, weight,
length, size, fit, color, set, ability to accept a set or be reset,
style, ease of styling, maintenance, service, guarantee, origin, price,
or any other feature of such product. 1
(Guide 1)
0951All of the Commission's general Guides, including its Guides
Against Deceptive Pricing, Guides Against Bait Advertising, and Guides
Against Deceptive Advertising of Guarantees, are applicable to the
practices of this industry. Those Guides have been codified under Title
16, Parts 233, 238, and 239, respectively, of the U.S. Code of Federal
Regulations.
16 CFR 252.2 Disclosure of hair composition.
Disclosure of hair composition of an industry product should be made
by label attached to the product and in all advertising relating to such
product. If the hair composition consists of more than one of the basic
types of fiber, e.g., human hair and artificial hair, then the
percentage of each contained therein should be set forth on the label
attached to the product and in all advertising relating to the product.
Note 1: A disclosure made in accordance with this section should be
clear and conspicuous, and labels bearing such disclosure should be
attached to the product with sufficient permanency so as to remain
thereon until sale to the ultimate purchaser.
Note 2: The percentage of each type of hair fiber contained in an
industry product may be based on (1) the ratio of the weight of each
type of hair fiber to the total weight of hair fiber in the product or
(2) the ratio of the number of hair fibers of each type to the total
number of hair fibers in the product. Under the latter method, a
representative sample of the hair fibers contained in a product may be
used to determine the percentage of each type of hair fiber.
Note 3: Disclosure of artificial hair may be made with such terms as
''simulated hair'', ''man-made hair'', ''imitation hair'', or with terms
of similar import, or with the generic name of the material itself, or
with such other term or name as will clearly disclose the artificial
nature of the hair.
(Guide 2)
16 CFR 252.3 Disclosure of foreign origin.
(a) Labeling. Disclosure of foreign origin of the hair in an
industry product should be made by label attached to the product. In
the case of animal hair or synthetic hair, the foreign country of origin
should be disclosed. In the case of human hair, the foreign country of
origin or foreign area of origin should be disclosed. An example of
acceptable labeling, assuming the product is made entirely of human hair
from ''X'' country, would be ''Human Hair from 'X' country'', or,
assuming ''X'' country is European, ''Human Hair from Europe''.
Note 1: A disclosure of the foreign area of origin of the human hair
in an industry product may be made with such terms as ''European'',
''Asian'', ''Oriental'', or with such other term or name as will clearly
disclose the foreign area of origin.
Note 2: If the hair composition of an industry product consists of
hair from more than one foreign country or area, then the percentages
from each country or area contained therein should be set forth on the
label attached to the product. For guidance with respect to the
statement of percentages, see Note 2 under 252.2.
Note 3. A disclosure made in accordance with this section should be
clear and conspicuous, and labels bearing such disclosure should be
attached to the product with sufficient permanency so as to remain
thereon until sale to the ultimate purchaser.
(b) Mail order advertising. The disclosure of foreign country of
origin or foreign area of origin of the hair in an industry product,
indicated in the labeling provisions in paragraph (a) of this section,
should also be made in all mail order advertising.
(c) Other advertising. A disclosure of foreign country of origin or
foreign area of origin of the hair in an industry product need not be
made in other advertising unless in the absence of disclosure a
purchaser or prospective purchaser may likely be deceived. If such
advertising contains any representation, whether affirmative or implied,
concerning origin of the product, or any part thereof, then the
disclosure indicated in the labeling provision in paragraph (a) of this
section should be made. The following examples are set forth as
guidance to advertisers.
Example 1. An industry product made in ''X'' country of hair from
''Y'' country should not be advertised as an ''X'' country wig, or with
terms of similar import, unless accompanied by clear and conspicuous
disclosure of the foreign country or area of origin of the hair, in
accordance with the labeling provision (a) of this section.
Example 2. An industry product made in Europe of non-European hair
should not be advertised as ''European manufactured'', ''European
processed'', ''European wig'', or with terms of similar import, unless
accompanied by clear and conspicuous disclosure of the foreign country
or area of origin of the hair, in accordance with the labeling provision
(a) of this section.
Example 3. Regardless of country of manufacture, an industry product
made of non-European hair should not be advertised with such terms as
''European Texture'', or with terms of similar import which suggest that
the product contains European hair.
Example 4. An industry product manufactured in the United States of
imported hair (''X'' country) should not be advertised as an ''American
Wig'' or with terms of similar import, unless accompanied by clear and
conspicuous disclosure of the foreign country or area of origin of the
hair, in accordance with the labeling provision (a) of this section.
(Guide 3)
16 CFR 252.4 Flammability.
An industry product, which is so highly flammable as to be dangerous
when worn by individuals, should not be manufactured for sale, offered
for sale, sold, or distributed in the United States, or imported into
the United States.
Note 1: The Commission considers industry products to be subject to
the requirements of the Flammable Fabrics Act (15 U.S.C. section 1191,
as amended). The flammability standard for industry products is
Commercial Standard 191-53 or other subsequently promulgated standard of
flammability pertaining to such products which may be established by the
Secretary of Commerce pursuant to section 4 of the Act. Copies of the
Act and/or the Commercial Standard are available upon request.
Note 2: The prohibitions of the Flammable Fabrics Act apply to
industry products which fail the flammability standard either before or
after washing and/or drycleaning.
(Guide 4)
16 CFR 252.5 Use of terms such as ''hair'', ''natural hair'', ''real
hair'', etc., and trade names.
The unqualified term ''hair'', and the terms ''natural hair'', ''true
hair'', ''genuine hair'', ''real hair'', and terms of similar import, as
well as trade names which have the capacity of misleading a purchaser or
prospective purchaser into believing that an industry product is made of
human hair, should not be used to describe an industry product
containing either animal hair or artificial hair. (Guide 5)
16 CFR 252.6 Disclosure relating to used industry products or parts
thereof.
(a) An industry product which has been previously used by a consumer
on a trial basis or otherwise, and then returned, should not be offered
for sale or resale without clear and conspicuous disclosure of such fact
by label attached thereto and in all advertising relating to such
product. The label disclosing prior use should be attached to the
product with sufficient permanency so as to remain thereon until sale to
the ultimate purchaser.
Note: Sellers should maintain adequate inventory control records
that reflect the disposition of returned merchandise. Maintenance of
inventory control records should enable sellers to demonstrate that
returned merchandise was not placed in inventory and sold or resold
without disclosing the fact of its prior use.
(b) An industry product which contains hair or other components
subjected to prior use in another industry product should not be
advertised or otherwise offered for sale without clear and conspicuous
disclosure of such fact. Disclosure should be made in accordance with
paragraph (a) of this section. (Guide 6)
16 CFR 252.7 Representation as to ''Handmade'', etc.
An industry product should not be represented as ''Handmade'', or
with terms of similar import, unless the entire process of joining or
stitching the hair to the foundation is performed by hand. (Guide 7)
16 CFR 252.8 Representations as to ''Custom-made'', etc.
An industry product should not be described with such terms as
''Custom-made'', ''Customized'', ''Personalized'', or with terms of
similar import, unless such product is to be (a) designed and structured
on the basis of actual personal measurements of the prospective
purchaser, and (b) dyed or made of a mixture of precolored hair stock to
match a color meeting the personal requirements of such purchaser.
(Guide 8)
16 CFR 252.9 Representations as to color.
An industry product should not be described with such terms as
''Custom-colored'', ''Exact match'', ''personalized color'', or with
terms of similar import, unless the hair contained therein is to be dyed
or made of a mixture of precolored hair stock to match a color meeting
the personal requirements of the purchaser. (Guide 9)
16 CFR 252.10 Representations as to style.
An industry product should not be represented in any manner, whether
through advertising text, depictions, or otherwise, that may have the
capacity to deceive purchasers or prospective purchasers into believing
that such product is styled or capable of being styled, or set or
capable of being set or reset, in a certain manner, fashion or
''hairdo'' when such is not the fact. (Guide 10)
16 CFR 252.11 Representations as to ''virgin'' hair.
An industry product should not be described as containing ''virgin''
hair, unless the hair contained therein is human hair and has never been
bleached, dyed or permanented. (Guide 11)
16 CFR 252.11 PART 253 -- GUIDES FOR THE FEATHER AND DOWN PRODUCTS
INDUSTRY
Sec.
253.1 Definitions.
253.2 Misrepresentation in general.
253.3 Use of trade names, symbols, depictions, etc.
253.4 Misuse of the term ''Tan-O-Quil-QM''.
253.5 Disclosure of filling material.
253.6 Tolerances in filling material.
253.7 Crushed feathers.
253.8 Damaged feathers.
253.9 Secondhand filling material.
253.10 Cleanliness of filling material.
253.11 Disclosure as to size.
Authority: Secs. 5, 6, 38 Stat. 719, as amended 721; 15 U.S.C.
45, 46.
Source: 36 FR 20744, Oct. 29, 1971, unless otherwise noted.
16 CFR 253.1 Definitions.
(a) Industry products. For the purposes of this part the term
''industry products'' means and includes all pillows, cushions,
comforters, sleeping bags, wearing apparel, and similar products which
are wholly or partially filled with feathers or down, and all bulk
stocks of processed feathers or down intended for use or used in the
manufacture of such products.
(b) Industry members. All persons, firms, corporations, and
organizations engaged in the processing, manufacture, distribution, or
marketing of any industry product are considered to be industry members.
(c) Filling material. Means the contents of an industry product
including feathers and down of any kind or type.
(d) Down. Means the undercoating of waterfowl, consisting of
clusters of light, fluffy filaments, i.e., barbs, growing from the quill
point but without any quill shafts.
(e) Plumules. Means downy waterfowl plumage with under developed
soft and flaccid quill with barbs indistinguishable from those of down.
(f) Down fibers. Means the detached barbs from down and plumules and
the detached barbs from the basal end of waterfowl quill shaft which are
indistinguishable from the barbs of down.
(g) Feathers. Means the plumage or out-growth forming the contour
and external covering of fowl which are whole in structure and which
have not been processed in any manner other than by washing, dusting,
chemical treatment, and sanitizing.
(h) Waterfowl feathers. Means feathers derived from ducks and geese.
(i) Nonwaterfowl feathers or landfowl feathers. Means feathers
derived from chickens, turkeys, and other landfowl.
(j) Quill feathers. Means feathers which are over 4 inches in length
or which have a quill point exceeding six-sixteenths of an inch in
length.
(k) Feather fiber. Means the detached barbs of feathers which are
not joined or attached to each other.
(l) Crushed feathers. Means feathers which have been processed by a
curling, crushing, or chopping machine which has changed the original
form of the feathers without removing the quill. The term also includes
the fiber resulting from such processing.
(m) Damaged feathers. Means feathers which have been broken, damaged
by insects, or otherwise materially injured.
(n) Residue. Means quill pith, quill fragments, trash or foreign
matter. (Guide 1)
16 CFR 253.2 Misrepresentation in general.
(a) An industry product should not be labeled, advertised, or
otherwise represented in any manner which may have the capacity and
tendency or effect of misleading or deceiving purchasers or prospective
purchasers concerning its filling material, covering, composition,
quality, processing, testing, manufacture, durability, size, weight,
maintenance, cleanliness, construction, warmth, moisture resistance,
color, guarantee, origin, price, or any other feature of such product.
(b) Coverings of industry products should be labeled in accordance
with the requirements of the Textile Fiber Products Identification Act
and the Wool Products Labeling Act. (Guide 2)
16 CFR 253.3 Use of trade names, symbols, depictions, etc.
A trade name, symbol, depiction, or any other kind of representation,
should not be used in labeling, in advertising, or in any other kind of
promotion relating to an industry product, when such representation has
the capacity and tendency or effect of misleading or deceiving
purchasers or prospective purchasers into believing that the product is
composed:
(a) In whole or in part of feathers and down, or feathers, or down,
when such is not the fact; or
(b) In whole or in part of feathers or down from a particular type of
fowl when such is not the fact; or
(c) That the product has been given chemical treatment to improve its
physical or chemical properties when such is not the fact. (Guide 3)
16 CFR 253.4 Misuse of the term ''Tan-O-Quil-QM''.
(a) The term ''Tan-O-Quil-QM'' or any words or phrases suggestive
thereof should not be used in any labeling or advertising respecting an
industry product in any manner which may have the capacity and tendency
or effect of misleading or deceiving purchasers or prospective
purchasers into believing that the product or any of its filling
material has been treated by the Tan-O-Quil-QM process unless in fact
all of the filling material in that product has been treated by the
Tan-O-Quil-QM process developed by the Clothing and Organic Materials
Laboratory, U.S. Army Natick Laboratories, Natick, Mass., in accordance
with applicable U.S. Government specifications (this process is
described in Technical Report 69-37-CM, ''Tan-O-Quil-QM Treatment for
Feathers and Down,'' dated August 1968).
(b) When the Tan-O-Quil-QM treatment has been applied to all of the
filling materials contained in an industry product, the term
''Tan-O-Quil-QM'' may be used on the label, and the label should include
a statement that the product has been so treated in accordance with the
applicable U.S. Government specification showing the number thereof.
(Guide 4)
16 CFR 253.5 Disclosure of filling material.
(a) Labeling. An industry product should be labeled as to the kind
or type of filling material contained therein and when the filling
material consists of a mixture of more than one kind or type, then the
proportion of each should be disclosed in the order of predominance, the
largest proportion first.
(b) Advertising. Disclosure of the kind or type of filling material
contained in an industry product need not be made in advertising unless
in the absence of disclosure a purchaser or prospective purchaser may
likely be deceived. Thus, if advertising contains any representation,
whether affirmative or implied, concerning the nature of the filling
material, then disclosure should be made in accordance with paragraph
(a) of this section.
(c) Bulk stocks. Invoices pertaining to bulk stocks of processed
feathers and down should disclose the kind or type of feathers and down
contained therein, and if more than one kind or type is contained in the
bulk stock then the proportion of each should be disclosed in the order
of predominance, the largest proportion first.
(d) Manner and form of disclosures. The disclosures described in
paragraphs (a), (b), and (c) of this section should be made in
accordance with the following instructions.
(1) Disclosures with respect to the kind or type of feathers and down
by use of any of the terms listed and defined above will be considered
proper provided such products conform to the definitions set forth for
such term, except that if the term ''nonwaterfowl'' or ''landfowl'' is
used, it should be accompanied by the name of the fowl from which the
products were obtained, e.g., ''chicken'' or ''turkey.''
(2) Disclosures made in accordance with this part should be clear and
conspicuous, and labels bearing such disclosures should be attached to
the product with sufficient permanency so as to remain thereon until
after sale to the ultimate purchaser.
(3) The proportion or percentage of a particular kind or type of
feathers or down in an industry product should be determined by the
relationship between the avoirdupois weight that the particular kind or
type bears to the total avoirdupois weight of the filling material in
the product. (Guide 5)
16 CFR 253.6 Tolerances in filling material.
(a) Down products. The term ''down'' may be used to designate any
industry product containing the following filling material:
(b) Waterfowl feather products. The term ''waterfowl feathers'' may
be used to designate any plumage product containing the following
filling material which is free of quill and crushed feathers:
(c) Percentage claims. An industry member should not misrepresent
directly or indirectly the percentage of down contained in an industry
product. Illustratively,
(1) A product should not be designated as ''100 percent down,'' ''all
down,'' ''pure down,'' or by other terms of similar import unless it in
fact contains only down without regard to the tolerance set forth in
this section.
(2) A product should not be represented to contain a certain
percentage of feathers or down unless it in fact contains the stated
percentage with due regard to the tolerances set forth in this section.
(d) Designation of species. An industry product may be designated by
the name of a waterfowl species if a minimum of 90 percent of the
waterfowl plumage contained therein is of that species.
(e) Testing. Tests to determine the composition of the filling
material in an industry product should be conducted in accordance with
Federal Standard 148a, dated December 10, 1964, entitled
''Classification, Identification, and Testing of Feather Filling
Material.''
(f) Adulteration. The tolerances set forth in this section are not
to be construed to permit intentional adulteration. (Guide 6)
16 CFR 253.7 Crushed feathers.
An industry product which contains crushed feathers should be labeled
with a clear and conspicuous disclosure of that fact. A crushed feather
product should not contain residue in excess of 5 percent of the weight
of the crushed feathers contained therein. (Guide 7)
16 CFR 253.8 Damaged feathers.
An industry product which contains damaged feathers in an amount in
excess of 2 percent of the total weight of the filling material should
be labeled with a clear and conspicuous disclosure that it contains
damaged feathers. (Guide 8)
16 CFR 253.9 Secondhand filling material.
(a) An industry product which contains any filling material which has
previously been used should not be offered for sale unless a clear and
conspicuous disclosure of that fact is made on the label thereof and in
all advertising and invoices relating to such product.
(b) In making the disclosure referred to in paragraph (a) of this
section the term ''secondhand'' may be used. However, such terms as
''reworked,'' ''reprocessed,'' or terms of similar import should not be
used unless they are accompanied by a clear and conspicuous statement
that such material is not new or has previously been used. (Guide 9)
16 CFR 253.10 Cleanliness of filling material.
(a) An industry product which contains filling materials which have
not been cleaned so as to meet the standard set forth in paragraph (b)
of this section should not be offered for sale or sold.
(b) A test such as that reflected in Federal Standard 148a, dated
December 10, 1964, entitled ''Classification, Identification, and
Testing of Feather Filling Material,'' should be used to determine
whether feathers and down have been properly cleaned. Feather and down
material having an oxygen number exceeding 20 grams of oxygen per
100,000 grams of sample should be presumed not to have been properly
cleaned. (Guide 10)
16 CFR 253.11 Disclosure as to size.
(a) Sleeping bags. The sizes of sleeping bags should be disclosed by
labeling and such sizes should be expressed in terms of the finished
length and width measurements of the bag in inches qualified by the
words ''Finished Size''. If any representation of the ''Cut Size'' or
the dimension of the materials used in the construction of sleeping
bags, are made in labeling, advertising, marking, or otherwise, the
provisions of the Commission's Trade Regulation Rule on the
''Advertising and Labeling as to Size of Sleeping Bags'' should be
followed (see Part 400 of this chapter).
(b) Comforters, etc. The sizes of comforters and other similar
industry products should be disclosed by labeling and such sizes should
be expressed in terms of the finished length and width measurements in
inches exclusive of any fringe ornamentation.
(c) Pillows, cushions, etc. The sizes of pillows, cushions, and
other similar industry products, when disclosed by labeling, should be
expressed in terms of finished measurements in inches qualified by the
words ''Finished Size.'' This statement may be followed in parentheses
by a notation of product measurement in inches prior to finishing, such
parenthetical expression to include the phrase ''Cut Size.'' Thus, an
example of proper size marking when a pillow has a finished size of 21''
x 27'' and a cut size of 22'' x 28'', and disclosure is made of the cut
size, would be:
Finished Size 21'' x 27'' (Cut Size 22'' x 28'').
(Guide 11)
16 CFR 253.11 PART 254 -- GUIDES FOR PRIVATE VOCATIONAL AND HOME STUDY
SCHOOLS
Sec.
254.1 Definitions.
254.2 Deceptive trade or business names.
254.3 Misrepresentation of extent or nature of accreditation or
approval.
254.4 Misrepresentation of facilities, services, qualifications of
instructors, and status.
254.5 Misrepresentation of enrollment qualifications or limitations.
254.6 Deceptive use of diplomas, degrees, or certificates.
254.7 Deceptive sales practices.
254.8 Deceptive pricing and misuse of the word ''free.''
254.9 Deceptive or unfair collection and credit practices.
254.10 Affirmative disclosure prior to enrollment.
Authority: 38 Stat. 717, as amended; 15 U.S.C. 41-58.
Source: 37 FR 9665, May 16, 1972, unless otherwise noted.
16 CFR 254.1 Definitions.
(a) Industry member. Any person, firm, corporation, or organization
engaged in the operation of a privately owned school which offers
resident or correspondence courses or training or instruction purporting
to prepare or qualify individuals for employment in any occupation or
trade or in work requiring mechanical, technical, artistic, business, or
clerical skills or which is for the purpose of enabling a person to
improve his appearance, social aptitude, personality, or other
attributes is considered to be an industry member. However, the term
''industry member'' shall not include resident primary or secondary
schools or institutions of higher education which offer at least a
2-year program of accredited college level studies for resident students
which is generally acceptable for credit toward a bachelor's degree.
(b) Accredited. For the purpose of this part the term ''accredited''
means that a course or school to which the term is applied has been
evaluated and found to meet established criteria by an accrediting
agency or association recognized by the U.S. Commissioner of Education
of the U.S. Department of Health, Education, and Welfare, as reliable
authority as to the quality of the training offered.
(c) Approved. For the purpose of this part, the term ''approved''
means that a school or course has been recognized by a State or Federal
agency as meeting educational standards or other related qualifications
as prescribed by that agency for the school or course to which the term
is applied. It is not and should not be used interchangeably with
''accredited,'' and the term ''approved'' is not justified by the mere
grant of a corporate charter to operate or license to do business as a
school and should not be used unless the represented ''approval'' has in
fact been affirmatively required or authorized by State or Federal law.
(Guide 1)
16 CFR 254.2 Deceptive trade or business names.
(a) An industry member should not use any trade or business name,
label, insignia, or designation which has the capacity and tendency or
effect of misleading or deceiving prospective students, or student with
respect to the nature of the school, its accreditation, programs of
instruction or methods of teaching, or any other material fact.
(b) An industry member should not falsely represent directly or
indirectly by the use of a trade or business name or in any other manner
that:
(1) It is a part of or connected with a branch, bureau, or agency of
the U.S. Government, or of any State, or civil service commission;
(2) It is an employment agency or that it is an employment agent or
authorized training facility for another industry or member of such
industry, or otherwise deceptively conceal the fact that it is a school.
(c) If an industry member conducts its instruction wholly by
correspondence or home study, a clear and conspicuous disclosure should
be made in immediate conjunction with its trade or business name that it
is a correspondence or home study school. An industry member which
offers both resident and correspondence or home study instruction should
clearly and conspicuously identify in all advertisements and promotional
materials, except in those pertaining solely to its resident program,
the programs or courses to be offered in whole or in part by
correspondence or home study. (Guide 2)
16 CFR 254.3 Misrepresentation of extent or nature of accreditation or
approval.
(a) An industry member should not misrepresent directly or indirectly
the extent or nature of any approval its school may have received from a
State agency or the extent or nature of its accreditation by a
nationally recognized accrediting agency, or association.
Illustratively, an industry member should not:
(1) Unqualifiedly represent that its school is accredited unless all
of its programs of instruction have in fact been accredited by an
accrediting agency recognized by the U.S. Commissioner of Education of
the U.S. Department of Health, Education, and Welfare. If an accredited
school offers courses or programs of instruction which have not been
accredited, all advertisements or promotional materials pertaining to
such courses or programs should contain a clear and conspicuous
disclosure that they are not accredited if any reference is made in the
advertisements or promotional materials to the accreditation of the
school.
(2) Represent that its school or a course is approved, unless the
nature, extent, and purpose of that approval are disclosed.
(3) Represent that students successfully completing a course or
program of instruction may transfer credit therefor to an accredited
institution of higher education unless such is the fact.
(b) An industry member should not represent that a course of
instruction has been approved by a particular industry, or that
successful completion thereof qualifies the student for admission to a
labor union or similar organization, or for the receipt of a State or
Federal license to perform certain functions, unless such is the fact.
(c) An industry member should not represent that its courses are
recommended by vocational counselors, high schools, colleges,
educational organizations, employment agencies, or members or officials
of a particular industry, or that it has been the subject of unsolicited
testimonials or endorsements from former students or anyone else unless
such is the fact. Testimonials or endorsements which do not accurately
reflect current practices of the school, or current conditions or
employment opportunities in the industry or occupation to which the
training pertains, should not be used. (Guide 3)
16 CFR 254.4 Misrepresentation of facilities, services, qualifications
of instructors, and status.
(a) An industry member should not misrepresent directly or indirectly
in its advertising, promotional materials, or in any manner the size,
location, facilities, or equipment of its school or the number or
educational qualifications of its faculty and other personnel.
Illustratively, an industry member should not:
(1) Use or refer to fictional organization divisions or position
titles or make any representation which has the tendency or capacity to
mislead or deceive students or prospective students, as to the size or
importance of the school, its divisions, faculty, personnel, or
officials, or in any other material respect.
(2) Misrepresent directly or indirectly the size, importance,
location, facilities, or equipment of the school through use of
photographs, illustrations, or any other depictions in catalogs,
advertisements, or other promotional materials. For example,
photographs or illustrations which purport to show school equipment
should not be used if the school does not use such equipment in the
conduct of its courses.
(3) Represent that the school owns, operates, or supervises a
dormitory, eating, or other living accommodations unless such is the
fact.
(4) Falsely or deceptively represent the location or locations at
which its courses will be conducted.
(5) Misrepresent the nature, or efficacy, of its courses, training
devices, methods or equipment or the number, qualifications, training,
or experience of its faculty or personnel, whether by means of
endorsements or otherwise.
(6) Falsely represent that it will provide or arrange for part or
full-time employment while the student is undergoing instruction; or
misrepresent in any manner, directly or by implication, the availability
of such employment or any other form of financial assistance.
(7) Deceptively represent the nature of any relationship which the
school or any of its officers, employees, or instructors may have with
the U.S. Government or any of its agencies or any agency of a State or
local government, or that by virtue of such a relationship or any prior
relationship its students will receive preferred consideration in
obtaining employment with such a government or any of its agencies.
(8) Represent directly or indirectly that certain individuals or
classes of individuals are bona fide working members of its faculty, or
are members of its advisory board, or have played an active part in the
preparation of its instruction materials, unless such is the fact, or
misrepresent in any manner, directly or by implication, the extent or
nature of the association of any person with the school or the courses
offered.
(9) Misrepresent the nature and extent of any personal instruction,
guidance, assistance, or other attention it will provide for its
students either during a course or after completion of a course.
(b) An industry member should not represent directly or indirectly
that it is a nonprofit organization unless such is the fact.
(c) An industry member should not falsely represent that it is
affiliated with or otherwise connected with a public or private
religious or charitable organization.
(d) An industry member should not falsely or deceptively represent
that a course has been recently revised, or that it has a revision
system or service, or misrepresent in any manner, its facilities,
procedures, or ability to keep a course current. (Guide 4)
16 CFR 254.5 Misrepresentation of enrollment qualifications or
limitations.
(a) An industry member should not misrepresent the nature or extent
of any prerequisites it has established for enrollment in a course or
program of instruction. For example, it should not:
(1) Represent that a course is available only to those having a high
school diploma or other specific educational qualifications, unless the
sale of such a course is limited to persons possessing generally
acceptable evidence of such a diploma or educational qualifications.
(2) Represent that only those who make an acceptable grade or
complete successfully a certain test or examination will be admitted, if
in fact enrollments are not thus limited.
(3) Falsely represent that it will accept for enrollment only a
limited number of persons or a limited number of persons from a certain
geographical area.
(4) Falsely represent that applications for enrollment will be
considered for only a limited period of time, or that they must be
submitted by a certain date.
(b) An industry member should not falsely represent that the lack of
a high school education or prior training or experience is not a
handicap or impediment to successful completion of a course.
(c) An industry member should endeavor to establish the
qualifications which an applicant should have to assimilate successfully
the subject matter of the course. Applicants should be informed of
these prerequisites, and those who are not so qualified should not be
enrolled. (Guide 5)
16 CFR 254.6 Deceptive use of diplomas, degrees, or certificates.
(a) An industry member should not issue a degree, diploma,
certificate of completion, or any document of similar import, which
misrepresents directly or indirectly the subject matter, substance or
content of the course of study or any other material fact concerning the
course for which it was awarded or the accomplishments of the student to
whom its was awarded.
(b) An industry member should not offer or confer an academic,
professional, or occupational degree, if the award of such degree has
not been authorized by the appropriate State educational agency or
approved by a nationally recognized accrediting agency, unless it
clearly and conspicuously discloses in all advertising and promotional
materials which contain a reference to such degree that its award has
not been authorized or approved by such an agency.
(c) An industry member should not offer or confer a high school
diploma unless the program of instruction to which it pertains is
substantially equivalent to that offered by a resident secondary school,
and unless the student is informed by means of a clear and conspicuous
disclosure in writing prior to his enrollment, that the industry member
cannot guarantee or otherwise control the recognition which will be
accorded the diploma by institutions of higher education, other schools
or by prospective employers, and that the degree to which it is
recognized is a matter solely within the discretion of those agencies.
(Guide 6)
16 CFR 254.7 Deceptive sales practices.
(a) In obtaining leads to prospective students, an industry member
should not use advertisements or promotional material which is
classified, designated or captioned, ''Men wanted to train for * * *'',
''Help Wanted'', ''Employment'', ''Business Opportunities'' or by words
or terms of similar import, so as to represent directly or by
implication that employment is being offered.
(b) An industry member should not deceptively designate or refer to
its sales representatives as ''registrars'', ''counselors'',
''advisors'', or by words of similar import or misrepresent in any other
manner, the titles, qualifications, training, experience or status of
its salesmen, agents, employees, or other representatives.
(c) The advertising or promotional materials of an industry member
which are used to provide leads to prospective students should include
the full name and address of the school (a local address is permissible
in the case of a multilocational school) and disclose the fact that it
is a school if such is not apparent from its name. In addition, a
person who responds to such an advertisement or promotional material
should not be visited by a salesman unless the advertisement or material
contains a clear and conspicuous disclosure that a salesman may call or
unless consent to such a visit is first obtained by mail or telephone.
(d) In obtaining leads to prospective students, an industry member
should not represent that it is conducting a talent hunt, contest, or
similar test, unless such is the fact and such representation is
accompanied by a clear and conspicuous disclosure of the industry
member's name and address and the fact that it is a school if such is
not apparent from its name. An industry member which conducts a talent
hunt, contest, or similar test among prospective students should keep
accurate records concerning the results thereof. (Guide 7)
16 CFR 254.8 Deceptive pricing and misuse of the word ''free.''
(a) An industry member should not represent directly or indirectly in
advertising or otherwise that a course or courses may be taken for a
specified price, or at a saving, or at a reduced price, when such is not
the fact; or otherwise deceive students or prospective students with
respect to the cost of a course or any equipment, books, or supplies
associated therewith or furnish any means or instrumentality by which
others engaged in obtaining enrollments may make such representations.
Illustratively, an industry member should not represent:
(1) That veterans or other stated classes of persons may be enrolled
at a reduced or special rate unless such is the fact;
(2) That a specific amount is its usual and customary price for a
course unless such amount is the price at which the course has been
usually and customarily sold in the recent regular course of business;
(3) That any saving is afforded in the price of a course from the
member's regular price unless the price at which the course is offered
constitutes a reduction from the price at which the course has been
usually and customarily sold in the recent regular course of business;
(4) That books, training materials, or training aids are furnished at
reduced rates,
(i) Unless the prices therefor have been reduced from the prices at
which they were usually and customarily sold by the member in the recent
and regular course of business; or
(ii) Unless the prices therefor have been reduced from the prices at
which they were usually and customarily sold at retail by principal
outlets in the trade area.
(b) An industry member should not misrepresent the total cost of the
course to a prospective student or falsely represent that it offers
scholarships which pay for all or part of the course.
Note: The Commission's Guides Against Deceptive Pricing (Part 233 of
this chapter) afford further guidance in this area.
(c) An industry member which represents that any course material,
training device, or service is free should comply with the provisions of
the Commission's Guide Concerning Use of the Word ''Free'' and Similar
Representations (Part 251 of this chapter). (Guide 8)
16 CFR 254.9 Deceptive or unfair collection and credit practices.
(a) An industry member should not use any deceptive representations
or deceptive means to collect or attempt to collect tuition or other
charges from its students. For example, an industry member should not
represent that a delinquent account has been or will be referred to an
independent collection agency or to an attorney unless such is the fact.
(b) An industry member should not seek to enforce or obtain a
judgment or otherwise attempt to collect on any contract or other
instrument between itself and a student, or transfer or assign such
contract or other instrument to a third party for the purpose of
collection or of enforcing or obtaining a judgment on said contract or
instrument, if the member or its employees or representatives
misrepresented the nature or the terms of said contract or instrument at
the time or prior to the time the contract or instrument was signed.
Note: The Commission's Guides Against Debt Collection Deception
(Part 237 of this chapter) afford further guidance in this area.
(Guide 9)
16 CFR 254.10 Affirmative disclosure prior to enrollment.
Before obtaining the signature of a prospective student or of his
parent or guardian on an enrollment contract or contract of sale, an
industry member should furnish in writing to that person or persons the
following information:
(a) The member's policy and regulations relative to make-up work,
delay or delinquency in meeting course requirements, and standards
required of the student for achieving satisfactory progress, including
class attendance if applicable.
(b) If the member recommends, suggests, or requires that the student
have or secure any additional texts, equipment, or materials other than
usual student supplies such as paper and pencils, or utilize any
supplementary services offered by the member, and the cost thereof is
not included in the contract price of the course, an itemized list of
such items and services showing the price thereof.
(c) In the case of courses to be taught in residence, a description
of the school's physical facilities, and equipment to be used in
teaching the class, and the usual class size.
(d) If the member represents that it offers a placement service to
its graduates or will otherwise secure or assist them to find
employment, a detailed and explicit description of the extent and nature
of this service or assistance.
(e) Any other material facts concerning the school and the program of
instruction or course which are reasonably likely to affect the decision
of the student to enroll therein. (Guide 10)
16 CFR 254.10 PART 255 -- GUIDES CONCERNING USE OF ENDORSEMENTS AND
TESTIMONIALS IN ADVERTISING
Sec.
255.0 Definitions.
255.1 General considerations.
255.2 Consumer endorsements.
255.3 Expert endorsements.
255.4 Endorsements by organizations.
255.5 Disclosure of material connections.
Authority: 38 Stat. 717, as amended; 15 U.S.C. 41-58.
16 CFR 255.0 Definitions.
(a) The Commission intends to treat endorsements and testimonials
identically in the context of its enforcement of the Federal Trade
Commission Act and for purposes of this part. The term endorsements is
therefore generally used hereinafter to cover both terms and situations.
(b) For purposes of this part, an endorsement means any advertising
message (including verbal statements, demonstrations, or depictions of
the name, signature, likeness or other identifying personal
characteristics of an individual or the name or seal of an organization)
which message consumers are likely to believe reflects the opinions,
beliefs, findings, or experience of a party other than the sponsoring
advertiser. The party whose opinions, beliefs, findings, or experience
the message appears to reflect will be called the endorser and may be an
individual, group or institution.
(c) For purposes of this part, the term product includes any product,
service, company or industry.
(d) For purposes of this part, an expert is an individual, group or
institution possessing, as a result of experience, study or training,
knowledge of a particular subject, which knowledge is superior to that
generally acquired by ordinary individuals.
Example 1: A film critic's review of a movie is excerpted in an
advertisement. When so used, the review meets the definition of an
endorsement since it is viewed by readers as a statement of the critic's
own opinions and not those of the film producer, distributor or
exhibitor. Therefore, any alteration in or quotation from the text of
the review which does not fairly reflect its substance would be a
violation of the standards set by this part.
Example 2: A TV commercial depicts two women in a supermarket buying
a laundry detergent. The women are not identified outside the context
of the advertisement. One comments to the other how clean her brand
makes her family's clothes, and the other then comments that she will
try it because she has not been fully satisfied with her own brand.
This obvious fictional dramatization of a real life situation would not
be an endorsement.
Example 3: In an advertisement for a pain remedy, an announcer who
is not familiar to consumers except as a spokesman for the advertising
drug company praises the drug's ability to deliver fast and lasting pain
relief. He purports to speak, not on the basis of his own opinions, but
rather in the place of and on behalf of the drug company. Such an
advertisement would not be an endorsement.
Example 4: A manufacturer of automobile tires hires a well known
professional automobile racing driver to deliver its advertising message
in television commercials. In these commercials, the driver speaks of
the smooth ride, strength, and long life of the tires. Even though the
message is not expressly declared to be the personal opinion of the
driver, it may nevertheless constitute an endorsement of the tires.
Many consumers will recognize this individual as being primarily a
racing driver and not merely a spokesman or announcer for the
advertiser. Accordingly, they may well believe the driver would not
speak for an automotive product unless he/she actually believed in what
he/she was saying and had personal knowledge sufficient to form that
belief. Hence they would think that the advertising message reflects
the driver's personal views as well as those of the sponsoring
advertiser. This attribution of the underlying views to the driver
brings the advertisement within the definition of an endorsement for
purposes of this part.
Example 5: A television advertisement for golf balls shows a
prominent and well-recognized professional golfer hitting the golf
balls. This would be an endorsement by the golfer even though he makes
no verbal statement in the advertisement.
(40 FR 22128, May 21, 1975, as amended at 45 FR 3872, Jan. 18, 1980)
16 CFR 255.1 General considerations.
(a) Endorsements must always reflect the honest opinions, findings,
beliefs, or experience of the endorser. Furthermore, they may not
contain any representations which would be deceptive, or could not be
substantiated if made directly by the advertiser. (See Example 2 to
Guide 3 ( 255.3) illustrating that a valid endorsement may constitute
all or part of an advertiser's substantiation.)
(b) The endorsement message need not be phrased in the exact words of
the endorser, unless the advertisement affirmatively so represents.
However, the endorsement may neither be presented out of context nor
reworded so as to distort in any way the endorser's opinion or
experience with the product. An advertiser may use an endorsement of an
expert or celebrity only as long as it has good reason to believe that
the endorser continues to subscribe to the views presented. An
advertiser may satisfy this obligation by securing the endorser's views
at reasonable intervals where reasonableness will be determined by such
factors as new information on the performance or effectiveness of the
product, a material alteration in the product, changes in the
performance of competitors' products, and the advertiser's contract
commitments.
(c) In particular, where the advertisement represents that the
endorser uses the endorsed product, then the endorser must have been a
bona fide user of it at the time the endorsement was given,
Additionally, the advertiser may continue to run the advertisement only
so long as he has good reason to believe that the endorser remains a
bona fide user of the product. (See 255.1(b) regarding the ''good
reason to believe'' requirement.)
Guide 1, Example 1: A building contractor states in an advertisement
that he specifies the advertiser's exterior house paint because of its
remarkable quick drying properties and its durability. This endorsement
must comply with the pertinent requirements of Guide 3. Subsequently,
the advertiser reformulates its paint to enable it to cover exterior
surfaces with only one coat. Prior to continued use of the contractor's
endorsement, the advertiser must contact the contractor in order to
determine whether the contractor would continue to specify the paint and
to subscribe to the views presented previously.
Example 2: A television advertisment portrays a woman seated at a
desk on which rest five unmarked electric typewriters. An announcer
says ''We asked Mrs. X, an executive secretary for over ten years, to
try these five unmarked typewriters and tell us which one she liked
best.''
The advertisement portrays the secretary typing on each machine, and
then picking the advertiser's brand. The announcer asks her why, and
Mrs. X gives her reasons. Assuming that consumers would perceive this
presentation as a ''blind'' test, this endorsement would probably not
represent that Mrs. X actually uses the advertiser's machines in her
work. In addition, the endorsement may also be required to meet the
standards of Guide 3 on Expert Endorsements.
(Guide 1)
(45 FR 3872, Jan. 18, 1980)
16 CFR 255.2 Consumer endorsements.
(a) An advertisement employing an endorsement reflecting the
experience of an individual or a group of consumers on a central or key
attribute of the product or service will be interpreted as representing
that the endorser's experience is representative of what consumers will
generally achieve with the advertised product in actual, albeit
variable, conditions of use. Therefore, unless the advertiser possesses
and relies upon adequate substantiation for this representation, the
advertisement should either clearly and conspicuously disclose what the
generally expected performance would be in the depicted circumstances or
clearly and conspicuously disclose the limited applicability of the
endorser's experience to what consumers may generally expect to achieve.
The Commission's position regarding the acceptance of disclaimers or
disclosures is described in the preamble to these Guides published in
the Federal Register on January 18, 1980.
(b) Advertisements presenting endorsements by what are represented,
directly or by implication, to be ''actual consumers'' should utilize
actual consumers, in both the audio and video or clearly and
conspicuously disclose that the persons in such advertisements are not
actual consumers of the advertised product.
(c) Claims concerning the efficacy of any drug or device as defined
in the Federal Trade Commission Act, 15 U.S.C. 55, shall not be made in
lay endorsements unless (1) the advertiser has adequate scientific
substantiation for such claims and (2) the claims are not inconsistent
with any determination that has been made by the Food and Drug
Administration with respect to the drug or device that is the subject of
the claim.
Guide 2, Example 1: An advertisement presents the endorsement of an
owner of one of the advertiser's television sets. The consumer states
that she has needed to take the set to the shop for repairs only one
time during her 2-year period of ownership and the costs of servicing
the set to date have been under $10.00. Unless the advertiser possesses
and relied upon adequate substantiation for the implied claim that such
performance reflects that which a significant proportion of consumers
would be likely to experience, the advertiser should include a
disclosure that either states clearly and conspicuously what the
generally expectable performance would be or clearly and conspicuously
informs consumers that the performance experienced by the endorser is
not what they should expect to experience. The mere disclosure that
''not all consumers will get this result'' is insufficient because it
can imply that while all consumers cannot expect the advertised results,
a substantial number can expect them. (See the cross reference in Guide
2(a) regarding the acceptability of disclaimers or disclosures.)
Example 2: An advertiser presents the results of a poll of consumers
who have used the advertiser's cake mixes as well as their own recipes.
The results purport to show that the majority believed that their
families could not tell the difference between the advertised mix and
their own cakes baked from scratch. Many of the consumers are actually
pictured in the advertisement along with relevant, quoted portions of
their statements endorsing the product. This use of the results of a
poll or survey of consumers probably represents a promise to consumers
that this is the typical result that ordinary consumers can expect from
the advertiser's cake mix.
Example 3: An advertisement purports to portray a ''hidden camera''
situation in a crowded cafeteria at breakfast time. A spokesperson for
the advertiser asks a series of actual patrons of the cafeteria for
their spontaneous, honest opinions of the advertiser's recently
introduced breakfast cereal. Even though the words ''hidden camera''
are not displayed on the screen, and even though none of the actual
patrons is specifically identified during the advertisement, the net
impression conveyed to consumers may well be that these are actual
customers, and not actors. If actors have been employed, this fact
should be disclosed.
(Guide 2)
(45 FR 3872, Jan. 18, 1980)
16 CFR 255.3 Expert endorsements.
(a) Whenever an advertisement represents, directly or by implication,
that the endorser is an expert with respect to the endorsement message,
then the endorser's qualifications must in fact give him the expertise
that he is represented as possessing with respect to the endorsement.
(b) While the expert may, in endorsing a product, take into account
factors not within his expertise (e.g., matters of taste or price), his
endorsement must be supported by an actual exercise of his expertise in
evaluating product features or characteristics with respect to which he
is expert and which are both relevant to an ordinary consumer's use of
or experience with the product and also are available to the ordinary
consumer. This evaluation must have included an examination or testing
of the product at least as extensive as someone with the same degree of
expertise would normally need to conduct in order to support the
conclusions presented in the endorsement. Where, and to the extent
that, the advertisement implies that the endorsement was based upon a
comparison such comparison must have been included in his evaluation;
and as a result of such comparison, he must have concluded that, with
respect to those features on which he is expert and which are relevant
and available to an ordinary consumer, the endorsed product is at least
equal overall to the competitors' products. Moreover, where the net
impression created by the endorsement is that the advertised product is
superior to other products with respect to any such feature or features,
then the expert must in fact have found such superiority.
Example 1: An endorsement of a particular automobile by one
described as an ''engineer'' implies that the endorser's professional
training and experience are such that he is well acquainted with the
design and performance of automobiles. If the endorser's field is, for
example, chemical engineering, the endorsement would be deceptive.
Example 2: A manufacturer of automobile parts advertises that its
products are approved by the ''American Institute of Science.'' From its
very name, consumers would infer that the ''American Institute of
Science'' is a bona fide independent testing organization with expertise
in judging automobile parts and that, as such, it would not approve any
automobile part without first testing its efficacy by means of valid
scientific methods. Even if the American Institute of Science is such a
bona fide expert testing organization, as consumers would expect, the
endorsement may nevertheless be deceptive unless the Institute has
conducted valid scientific tests of the advertised products and the test
results support the endorsement message.
Example 3: A manufacturer of a non-prescription drug product
represents that its product has been selected in preference to competing
products by a large metropolitan hospital. The hospital has selected
the product because the manufacturer, unlike its competitors, has
packaged each dose of the product separately. This package form is not
generally available to the public. Under the circumstances, the
endorsement would be deceptive because the basis for the choice of the
manufacturer's product, convenience of packaging, is neither relevant
nor available to consumers.
Example 4: The president of a commercial ''home cleaning service''
states in a television advertisement that the service uses a particular
brand of cleanser in its business. Since the cleaning service's
professional success depends largely upon the performance of the
cleansers it uses, consumers would expect the service to be expert with
respect to judging cleansing ability, and not be satisfied using an
inferior cleanser in its business when it knows of a better one
available to it. Accordingly, the cleaning service's endorsement must
at least conform to those consumer expectations. The service must, of
course, actually use the endorsed cleanser. Additionally, on the basis
of its expertise, it must have determined that the cleansing ability of
the endorsed cleanser is at least equal (or superior, if such is the net
impression conveyed by the advertisement) to that of competing products
with which the service has had experience and which remain reasonably
available to it. Since in this example, the cleaning service's
president makes no mention that the endorsed cleanser was ''chosen,''
''selected,'' or otherwise evaluated in side-by-side comparisons against
its competitors, it is sufficient if the service has relied solely upon
its accumulated experience in evaluating cleansers without having to
have performed side-by-side or scientific comparisons.
Example 5: An association of professional athletes states in an
advertisement that it has ''selected'' a particular brand of beverages
as its ''official breakfast drink''. As in Example 4, the association
would be regarded as expert in the field of nutrition for purposes of
this section, because consumers would expect it to rely upon the
selection of nutritious foods as part of its business needs.
Consequently, the association's endorsement must be based upon an expert
evaluation of the nutritional value of the endorsed beverage.
Furthermore, unlike Example 4, the use of the words ''selected'' and
''official'' in this endorsement imply that it was given only after
direct comparisions had been performed among competing brands. Hence,
the advertisement would be deceptive unless the association has in fact
performed such comparisons between the endorsed brand and its leading
competitors in terms of nutritional criteria, and the results of such
comparisons conform to the net impression created by the advertisement.
(Guide 3)
(40 FR 22128, May 21, 1975)
16 CFR 255.4 Endorsements by organizations.
Endorsements by organizations, especially expert ones, are viewed as
representing the judgment of a group whose collective experience exceeds
that of any individual member, and whose judgments are generally free of
the sort of subjective factors which vary from individual to individual.
Therefore an organization's endorsement must be reached by a process
sufficient to ensure that the endorsement fairly reflects the collective
judgment of the organization. Moreover, if an organization is
represented as being expert, then, in conjunction with a proper exercise
of its expertise in evaluating the product under 255.3 of this part
(Expert endorsements), it must utilize an expert or experts recognized
as such by the organization or standards previously adopted by the
organization and suitable for judging the relevant merits of such
products.
Example: A mattress seller advertises that its product is endorsed
by a chiropractic association. Since the association would be regarded
as expert with respect to judging mattresses, its endorsement must be
supported by an expert evaluation by an expert or experts recognized as
such by the organization, or by compliance with standards previously
adopted by the organization and aimed at measuring the performance of
mattresses in general and not designed with the particular attributes of
the advertised mattress in mind. (See also 255.3, Example 5.)
(Guide 4)
(40 FR 22128, May 21, 1975)
16 CFR 255.5 Disclosure of material connections.
When there exists a connection between the endorser and the seller of
the advertised product which might materially affect the weight or
credibility of the endorsement (i.e., the connection is not reasonably
expected by the audience) such connection must be fully disclosed. An
example of a connection that is ordinarily expected by viewers and need
not be disclosed is the payment or promise of payment to an endorser who
is an expert or well known personality, as long as the advertiser does
not represent that the endorsement was given without compensation.
However, when the endorser is neither represented in the advertisement
as an expert nor is known to a significant portion of the viewing
public, then the advertiser should clearly and conspicuously disclose
either the payment or promise of compensation prior to and in exchange
for the endorsement or the fact that the endorser knew or had reasons to
know or to believe that if the endorsement favors the advertised product
some benefit, such as an appearance on TV, would be extended to the
endorser.
Example 1: A drug company commissions research on its product by a
well-known research organization. The drug company pays a substantial
share of the expenses of the research project, but the test design is
under the control of the research organization. A subsequent
advertisement by the drug company mentions the research results as the
''findings'' of the well-known research organization. The advertiser's
payment of expenses to the research organization need not be disclosed
in this advertisement. Application of the standards set by Guides 3 and
4 provides sufficient assurance that the advertiser's payment will not
affect the weight or credibility of the endorsement.
Example 2: A film star endorses a particular food product. The
endorsement regards only points of taste and individual preference.
This endorsement must of course comply with 255.1; but even though the
compensation paid the endorser is substantial, neither the fact nor the
amount of compensation need be revealed.
Example 3: An actual patron of a restaurant, who is neither known to
the public nor presented as an expert, is shown seated at the counter.
He is asked for his ''spontaneous'' opinion of a new food product served
in the restaurant. Assume, first, that the advertiser had posted a sign
on the door of the restaurant informing all who entered that day that
patrons would be interviewed by the advertiser as part of its TV
promotion of its new soy protein ''steak''. This notification would
materially affect the weight or credibility of the patron's endorsement,
and, therefore, viewers of the advertisement should be clearly and
conspicuously informed of the circumstances under which the endorsement
was obtained.
Assume, in the alternative, that the advertiser had not posted a sign
on the door of the restaurant, but had informed all interviewed
customers of the ''hidden camera'' only after interviews were completed
and the customers had no reason to know or believe that their response
was being recorded for use in an advertisement. Even if patrons were
also told that they would be paid for allowing the use of their opinions
in advertising, these facts need not be disclosed.
(Guide 5)
(45 FR 3873, Jan. 18, 1980)
16 CFR 255.5 PART 256 -- GUIDES FOR THE LAW BOOK INDUSTRY
Sec.
256.0 Definitions.
256.1 General disclosures.
256.2 Disclosures relative to supplementation.
256.3 Disclosures relative to texts and treatises.
256.4 New revisions or replacement sets or series.
256.5 Representations, express or implied, describing a work as
''new'', ''current'' or ''up-to-date''.
256.6 Disclosures relative to misleading titles of texts and
treatises.
256.7 Representations relative to works not yet published.
256.8 Representations relative to jurisdictional designations.
256.9 Catalogs.
256.10 Subscription renewal notices.
256.11 Disclosures on publications.
256.12 Jurisdictional designations of publications.
256.13 Disclosures on supplements.
256.14 Upkeep service.
256.15 Billing practices.
256.16 Added materials -- germane subject matter.
256.17 Misrepresentations (general).
Authority: 38 Stat. 717, as amended; (15 U.S.C. 41-58).
Source: 40 FR 33436, Aug. 8, 1975, unless otherwise noted.
16 CFR 256.0 Definitions.
(a) Industry product. Any law book, case book, publication, series,
service, law research materials, supplements and other printed materials
of similar nature as well as materials appearing in microform, film,
tape or other nonprint format designed primarily for use by members of
the law profession and by law schools, excluding second-hand or used law
materials.
(b) Treatise or text. An exposition -- critical, evaluative,
interpretive or informative -- which analyzes one or more areas of the
law. Generally, a legal treatise is more exhaustive in scope than an
encyclopedia, and is considered a secondary aid.
(c) Set. A group of books published as a unit by virtue of such
unifying characteristics as common authorship, editorship, relevance, or
subject.
(d) Series. A number of separate works or sets, usually related to
one another in subject or otherwise, issued in succession, normally by
the same publisher or in uniform style, with a collective title.
(e) Looseleaf (binder). A law book or series of law books that
consist of ring or post-bound (compression-type) binders used to hold
separate looseleaf sheets as opposed to the bound book format wherein
pages are permanently attached to the binder.
(40 FR 33436, Aug. 8, 1975; 40 FR 36116, Aug. 19, 1975)
16 CFR 256.1 General disclosures.
Direct-mail promotional materials1 or oral representations soliciting
the sale of specific industry products should clearly and conspicuously
disclose:
(a) Name and address of publisher;
(b) Full title including any sub-titles, and edition name or number
if not the first;
(c) Surname and given name or initials of authors, editors or
compilers or designate if authored, edited or compiled by publisher's
editorial staff;
(d) Latest copyright date and whether supplemented; or in the event
of a looseleaf or post-bound (compression-type) publication, other
appropriate identification of currency (latest copyright date not
necessary for open-ended, ongoing type works such as reports and
digests);
(e) In the case of a reprint by other than the original publisher,
the publisher and copyright date of the original work, name and address
of the reprint publisher and reprint dates;
(f) Whether part of a set or series and, if so, the full title of
said set or series;
(g) Where the title of the advertised industry product is general,
when in fact coverage therein is more limited than the title implies, a
synoptic description of the limited coverage of subject matter, except
in cases where chapter headings are listed and adequately reflect the
limited subject matter;
(h) Type of binding (e.g., permanently bound with pocket parts,
looseleaf including post-bound, compression-binder type or paperback);
(i) Where the price of the industry product appears, a description of
what the price includes (e.g., the number of volumes in a set) and
whether there are any extra charges such as postage, handling, shipping
or other surcharges. (Guide 1)
1Where the direct-mail advertising of specific industry products
consists of a promotional package containing more than one advertising
piece (e.g., a brochure and/or cover letter, order form, and/or reply
card), the disclosures required by 256.1-256.3, 256.5-256.8 and 256.17
must appear clearly and conspicuously in the place where they are most
likely to be noticed, on at least one piece of the promotional
advertising package.
16 CFR 256.2 Disclosures relative to supplementation.
Direct mail promotional materials or oral representations soliciting
the sale of specific industry products should, where an industry product
is being supplemented, or supplementation is being contemplated, clearly
and conspicuously disclose:
(a) The general type of supplementation currently being supplied, a
description of what is included in that supplementation (e.g., pocket
part supplements (bound, unbound or pamphlet type), replacement pages,
cumulative supplements, revised volumes, split volumes, replacement
volumes), and the anticipated frequency of supplementation (e.g.,
annually or monthly);
(b) Any charge for the latest pocket parts or supplements, and the
clearly identified period of time within which supplementation will be
supplied without additional charge;
(c) The specific nature of any offer of credit or discount for
supplements in connection with the original purchase, and the clearly
identified period of time for said offer;
(d) Whether supplementation to the industry product has been
abandoned, or is knowingly to be abandoned within 1 year after issuance
of the solicitation, and the date or approximate date for abandonment of
supplementation;
(e) Minimum supplementation cost for each of the past 2 calendar
years, or such shorter period in which the publication has been
available. (Guide 2)
16 CFR 256.3 Disclosures relative to texts and treatises.
Direct-mail promotional materials or oral representations soliciting
the sale of specific texts and treatises should clearly and
conspicuously disclose:
(a) For a multivolume set the number or estimated number of volumes
which are anticipated to complete the set, and the estimated publication
schedule;
(b) Where offer is of a set, a general description of subjects
covered under said set title;
Note: Industry member should clearly indicate general scope of the
work, e.g., set may be titled Encyclopedia of Hawaiian Law. If the work
is not a full encyclopedic treatment of Hawaiian law, it should be
disclosed that it covers only certain areas which are to be clearly
identified.
(Guide 3)
16 CFR 256.4 New revisions or replacement sets or series.
Where a publisher sells an industry product whose replacement or
substantial revision is scheduled to be offered for sale within 1 year
following the date of sale of the precursor work, such publisher should
notify the purchaser, prior to consummating the sale, that the industry
product will be replaced or revised and the approximate date of such
replacement or revision. If the purchaser has not been so notified, the
publisher should offer to the purchaser either:
(a) Full refund for the obsolete work within the 1 year period, less
reasonable charges for the period of use of the work, or
(b) Full credit on the obsolete work within the 1 year period towards
purchase of the new work, less reasonable charges for the period of use
of the obsolete work.
Note: This section does not apply when the publisher continues full
supplementation of the precursor set or series.
(Guide 4)
(40 FR 33436, Aug. 8, 1975; 40 FR 36116, Aug. 19, 1975)
16 CFR 256.5 Representations, express or implied, describing a work as
''new'', ''current'' or ''up-to-date''.
No direct-mail promotional materials or oral representations
soliciting the sale of specific industry products should:
(a) Expressly or impliedly represent that the industry product is new
when said industry product was first distributed more than 18 months
prior to the time of the offer or dissemination of the advertisement
(some examples, but not all inclusive, of terms suggesting new
publications are: ''Announcing'', ''newly revised'', ''New 8th
Edition'', ''Up-to-date'', ''New'');
(b) Represent an industry product as current or up-to-date unless the
work itself, or the supplementation thereto, is current or up-to-date,
considering the amount and nature of legal activity in the particular
area of law covered on the date of issuance of the advertisement; but
in no event should any representation be made that the industry product
is current or up-to-date when either the copyright date, printing date
or end of coverage date for supplementation of such industry product is
more than 18 months from the date of issuance of the advertisement.
Note: Some areas of the law and thus some works may require monthly
supplementation to be considered current while others may be kept
sufficiently current by annual or, in exceptional cases, even less
frequent supplementation. In some exceptional cases, for example, where
legislatures only meet on a biannual basis, supplementation based
thereon may be designated as current and up-to-date.
(Guide 5)
(40 FR 33436, Aug. 8, 1975; 40 FR 36116, Aug. 19, 1975)
16 CFR 256.6 Disclosures relative to misleading titles of texts and
treatises.
Direct-mail promotional materials or oral representations soliciting
the sale of specific texts or treatises should clearly and conspicuously
disclose:
(a) Where a title contains the name of a person who did not author or
edit or only partially authored or edited the actual texts or treatises,
the names of authors or editors who contributed substantial parts of an
industry product. The names of such authors or editors should appear at
least once in immediate conjunction with the title where it most
prominently appears in the advertisement;
(b) Other or prior titles and last copyright date where the
advertised industry product or substantially the same industry product
is or was published separately and/or as part of a set or as part of two
or more sets, under identical or different titles (e.g., ''Smith on
Mortgages'' is also published as Volume 9 of ''The Symposium on Real
Property Law'' (1980); or * * * Smith on Mortgages is substantially the
same book as * * * or is based on * * * or is composed of material also
found in * * * Volume 9 of ''The Symposium on Real Property Law'' (1980)
(or words to that effect));
(c) Other or prior titles and last copyright date where the industry
product or substantially the same industry product is or was published
elsewhere and/or in another format under identical or different titles
(e.g., ''Brown on Leases,'' Revised Edition, published under the title
of ''Landlord & Tenant'' (1980); or ''Brown on Leases,'' Revised
Edition, is composed primarily of materials from Landlord & Tenant
(1980) (or words to that effect));
(d) The identity of any sources, by title and last copyright date or
other identification of currency, where the material in the industry
product is substantially extracted from such sources (e.g., Chapter 1 of
this book is based on the author's article in ''97 Harvard Law Review
283'' (1980));
(e) For 5 years after issuance of a revision or a new edition of
another title, the original title and last copyright date or other
identification of currency of the precursor industry product.
Note: Where an industry product is composed of innumerable, short
excerpts from other sources, such as a lawyer's desk aid and lawyer's
almanac, then disclosure that the work is such a compilation will
suffice without identifying all sources of the material therein.
(Guide 6)
16 CFR 256.7 Representations relative to works not yet published.
Representations soliciting the sale of specific industry products
should not expressly or impliedly hold out a publication as having been
printed or published at the time of the offer when such is not the fact.
Solicitations relative to works not yet published should clearly and
conspicuously disclose that the publication is being planned or
contemplated and that inquiries or orders are being solicited to
determine demand for the publication, or words to that effect. (Guide
7)
16 CFR 256.8 Representations relative to jurisdictional designations.
Representations soliciting the sale of an industry product should not
expressly or impliedly describe such product as being designed for a
particular jurisdiction unless the contents of said industry product are
designed primarily for and contain significant amounts of materials for
use in the jurisdiction so designated. Nor shoud the promotional
materials for an industry product have a designation or title that
expresses or implies that a broader or more general jurisdiction is
covered when in fact the industry product is designed primarily for a
jurisdiction more limited in scope (e.g., ''The New Rules of Evidence''
is actually a work which applies to new evidence rules enacted in one
State only). (Guide 8)
16 CFR 256.9 Catalogs.
Catalog listings and descriptions of law publications should conform
to 256.1 to 256.3, 256.5 to 256.8, and 256.17 of this part, and such
catalogs should clearly and conspicuously disclose the printing or
coverage dates on the front cover. (Guide 9)
16 CFR 256.10 Subscription renewal notices.
(a) A subscription renewal notice for industry products should not be
sent to any person, firm, library, or entity, where the recipient
thereof is not currently subscribing to the industry product to which
the renewal notice refers or relates.
(b) A subscription renewal notice should clearly designate the number
of the notice (e.g., ''First Renewal Notice'' or ''Second Renewal
Notice''). (Guide 10)
16 CFR 256.11 Disclosures on publications.
Texts or treatises, separately published or published in sets or
series, should clearly and conspicuously disclose on the title page or
pages, half title page and/or verso of title page:
(a) Full title of the book, including any sub-titles;
(b) If part of a set or series, the title of same;
(c) The number of the edition if not the first;
(d) For 5 years after issuance of a revision or a new edition of
another title, the original title and last copyright date or other
identification of currency of the precursor industry product;
(e) Unambiguous identification of authors, editors or compilers; or
whether authored, edited or compiled by the publisher's editorial staff.
However, if authors, editors or compilers are listed in the table of
contents or credits, this paragraph need not apply;
(f) Name, city and State of publisher;
(g) Where the industry product or substantially the same industry
product is or was published separately or as part of one or more sets
under identical or different titles, or is or was published in various
places or formats under identical or different titles, the prior titles
and the place and date of previous publication. However, if such
disclosures appear in the table of contents or credits, this paragraph
need not apply;
(h) When the industry product is substantially extracted from other
sources, the identity of sources by titles and copyright dates unless
such disclosures appear in the table of contents or credits;
(i) Where the title contains the name of a person who did not author
or edit, or only partially authored or edited the industry product, the
names of authors, editors or publisher's editorial staff who contributed
substantial parts of the industry product, and such disclosures should
appear on the title page in conspicuous type or print. (Guide 11)
(40 FR 33436, Aug. 8, 1975; 40 FR 36116, Aug. 19, 1975)
16 CFR 256.12 Jurisdictional designations of publications.
No industry product should be titled with a jurisdictional
designation (e.g., ''Maryland Edition''; or ''Montana Real Estate
Law'') unless the contents of said industry product are designed
primarily for and contain significant amounts of material for use in
that jurisdiction. Nor should an industry product have a title which
expresses or implies that a broader or more general jurisdiction is
covered when in fact the industry product is designed primarily for a
jurisdiction more limited in scope (e.g., ''The New Rules of Evidence''
is actually a work which applies to new evidence rules enacted in one
State only). (Guide 12)
16 CFR 256.13 Disclosures on supplements.
Supplements issued to industry products should clearly and
conspicuously disclose:
(a) On title page or verso of pocket parts and of stapled or bound
supplemental units and on cover page or pages or their versos for
replacement or supplemental pages:
(1) Full title of the industry product; and where part of a set or
series, title of said set or series;
(2) Surname and given name of authors, editors or compilers of the
titled industry product or if prepared by the publisher's editorial
staff;
(3) Surname and given name of authors, editors or compilers of
supplement if different from that of the titled book;
(4) Coverage date or date of issuance for the supplement.
(b) On each replacement sheet, the month and year of issuance.
(Guide 13)
16 CFR 256.14 Upkeep service. 2
Prior to the formation of any contract, or other agreement, whether
written or oral, for the purchase of industry products containing
provisions for subsequent automatic shipment of materials for upkeep
purposes, the seller should:
(a) Clearly and conspicuously define the nature and extent of basic
upkeep service. Basic upkeep service should include only those parts of
upkeep which are absolutely essential and without which a set cannot
remain functional (this might include such parts as pocket part
supplements, replacement pages, releases and inserts, advance sheets,
and replacement, revised, recompiled or split volumes); and
(b) Make available for purchase such basic upkeep service on an
automatic shipment basis without requiring the purchase of other
additional upkeep services whether on an automatic basis or otherwise.
Note 1: Nothing in this section is meant to preclude a seller from
offering to buyers the option of ordering and receiving all parts of
upkeep on an automatic basis, including basic supplementation and all
other extra parts of supplementation, or any other method of upkeep such
as alternate year supplementation, as long as other requirements of this
section are met.
Note 2: The purpose of this section is to furnish the seller and
buyer with a clear understanding of what is being ordered. There has
been dissension and confusion in the lawbook industry as to what
constitutes upkeep service and as to what the customer expects to
receive or thinks he ordered under the upkeep provision, and as to which
parts or units of the upkeep service the customer considers necessary or
unnecessary for his particular requirements.
Note 3: Where a customer chooses to purchase individual parts of the
upkeep service on a non-automatic basis (see paragraph (b) of this
section), the total price for each part so ordered should not exceed the
cost of such parts when ordered automatically (see Note 1 of this
section), unless any increased charges are based upon the actual
increased costs to the seller directly attributable to such sale and/or
delivery.
Note 4: The Federal Trade Commission Act will be enforced in
accordance with Section 3009 of the Postal Reorganization Act which
designates that ''(a) * * * the mailing of unordered merchandise or of
communications prohibited by paragraph (c) of this section constitutes
an unfair method of competition and an unfair trade practice. * * *
''(b) Any merchandise mailed in violation of paragraph (a) of this
section, or within the exceptions contained therein, may be treated as a
gift by the recipient, who shall have the right to retain, use, discard,
or dispose of it in any manner he sees fit without any obligation
whatsoever to the sender. All such merchandise shall have attached to
it a clear and conspicuous statement informing the recipient that he may
treat the merchandise as a gift to him and has the right to retain, use,
discard, or dispose of it in any manner he sees fit without any
obligation whatsoever to the sender.
''(c) No mailer of any merchandise mailed in violation of paragraph
(a) of this section, or within the exceptions contained therein, shall
mail to any recipient of such merchandise a bill for such merchandise or
any dunning communications.''
(Guide 14)
2Upkeep service is also sometimes referred to as ''Standing Order'',
''Continuations'', ''Subscription'', or ''Subscription Upkeep''.
Once a customer invests in a work, his investment serves as a
compelling factor in his decision of whether or not to continue future
upkeep. Financial practicality and limited choices offered by sellers
of particular types of works in a heavily concentrated industry tend to
keep the buyer confined to the work in which he has already invested;
therefore, the buyer will not or is reluctant to switch to a competitive
work (if there is one) when he cannot purchase the type of upkeep he
wants or needs.
Customers have varied needs and wants relating to upkeep. For
example, the customer may want to enter his subscription or order for
automatic upkeep of supplements (i.e., pocket part supplements,
replacement pages, releases, inserts), advance sheets, replacement,
revised, recompiled or split volumes, but he may want to be notified of
and given the opportunity to order any additional, companion or related
volumes, series or sets, new editions, or any related titles.
16 CFR 256.15 Billing practices.
(a) Sellers of industry products should notify all customers in a
clear and conspicuous manner:
(1) To mark conspicuously their account numbers (if any) or other
appropriate identifying data on all correspondence and payments,
including checks, sent by customers to the seller;
(2) That, upon request for clarification of an account, any customer
may receive a statement of accounts, showing each purchase, payment or
credit itemized for the current or all pertinent, preceding months;
(3) That, where the seller can apply payments to specific items under
its billing procedures, to indicate or identify to the seller or payee
the item or items to which any payment is to be applied.
(b) The publisher or seller of industry products should:
(1) When receiving communications showing account numbers, have the
responsibility of applying all correspondence and payments to the
correct account, and where there is any question, notify the customer
before entering the pertinent data into the computer system;
(2) Provide a statement of accounts when requested by the customer;
(3) Where seller can apply payments to specific items under its
billing procedures, apply payments or credits as designated by the buyer
or payor.
(c) The seller of industry products, in oral or written
communications with the buyer, should not use fictitious names, but
should use names of live persons who are actively participating in the
business.
(d) Billing statements to purchasers of industry products should
show:
(1) Date and customer's account number, if any;
(2) Invoice numbers or, where items are listed, a clear and readable
description of each item or unit. If abbreviations are used which are
not readily understandable, the statement should have thereon or
attached thereto a clear interpretation of said abbreviations (e.g., a
table);
(3) A price for each item, or invoice totals, or the total of invoice
totals;
(4) Penalty, interest, or carrying charges, if any, clearly and
separately identified;
(5) Purchases sent on approval, if any, clearly and separately
identified.
(e) All industry product invoices should:
(1) Be dated, numbered or adequately identified, and should show
customer's account number, if any;
(2) Show a clear and readable description of each item or unit. If
abbreviations are used which are not readily understandable, the invoice
should have thereon or attached thereto a clear interpretation of said
abbreviations;
(3) Show a price for each item, and clearly state terms of sale and
amount of discount, if any;
(4) Clearly show the time period for approval orders, by showing
specific opening and termination dates.
Note: This section is meant to suggest some basic information that
should be provided for the billing process although the seller may
prefer to use some other system or method which furnishes essentially
the same information as provided by this section. Further, this section
does not relieve an industry member of his responsibilities to comply
with the Fair Credit Billing Act, 15 U.S.C. 1601, and law book sellers
should note with particularity section 161 of that Act dealing with
''Correction of Billing Errors''.
(Guide 15)
16 CFR 256.16 Added materials -- germane subject matter.
The adding of volumes or other materials, the overall content of
which is not substantially germane to the subject matter of the basic
work, constitutes an unfair trade practice. (Guide 16)
16 CFR 256.17 Misrepresentations (general).
An industry product should not be advertised, published or otherwise
represented in any manner which may have the capacity and tendency or
effect of misleading or deceiving purchasers or prospective purchasers
concerning the grade, quality, material, size, contents, authorship,
editorship, use, value, price, origin, preparation, manufacture or date
of publication or copyright of any industry product or of any
supplementation thereto, or the current or up-to-date character thereof,
or concerning any service offered in connection therewith, or in any
other material respect. (Guide 17)
Note. If a fixed fee per period is charged for a current topic
reporting upkeep service which is supplemented monthly or more
frequently, 256.2, 256.3, 256.13(a) and 256.14 do not apply.
16 CFR 256.17 PART 259 -- GUIDE CONCERNING FUEL ECONOMY ADVERTISING FOR
NEW AUTOMOBILES
Sec.
259.1 Definitions.
259.2 Advertising disclosures.
16 CFR 259.1 Definitions.
For the purposes of this part, the following definitions shall apply:
(a) New automobile. Any passenger automobile or light truck for
which a fuel economy label is required under the Energy Policy and
Conservation Act (42 U.S.C. 6201 et seq.) or rules promulgated
thereunder, the equitable or legal title to which has never been
transferred by a manufacturer, distributor, or dealer to an ultimate
purchaser. The term ''manufacturer'' shall mean any person engaged in
the manufacturing or assembling of new automobiles, including any person
importing new automobiles for resale and any person who acts for and is
under control of such manufacturer, assembler, or importer in connection
with the distribution of new automobiles. The term ''dealer'' shall
mean any person, resident or located in the United States or any
territory thereof engaged in the sale or distribution of new automobiles
to the ultimate purchaser. The term ''ultimate purchaser'' means, for
purposes of this part, the first person, other than a dealer purchasing
in his or her capacity as a dealer, who in good faith purchases such new
automobile for purposes other than resale, including a person who leases
such vehicle for his or her personal use.
(b) Gas Mileage Guide. The most recent publication of the U.S.
Environmental Protection Agency (EPA) and/or the U.S. Department of
Energy issued pursuant to section 506(b) of the Energy Policy and
Conservation Act (15 U.S.C. 2006(b)).
(c) Estimated mpg and estimated city fuel economy. The gasoline
consumption or mileage of new automobiles as determined in accordance
with the test procedure employed and published by the U.S.
Environmental Protection Agency as described in 40 CFR Part 86 (1977),
and subsequent revisions; and expressed in miles-per-gallon, to the
nearest whole mile-per-gallon as measured, reported, published, or
accepted by the U.S. Environmental Protection Agency.
(d) Estimated highway fuel economy. The gasoline consumption or
mileage of new automobiles as determined in accordance with the highway
test procedure employed by the U.S. Environmental Protection Agency as
described in 40 CFR Part 600 (1977) and subsequent revisions; and
expressed in miles-per-gallon, to the nearest whole mile-per-gallon, as
measured, reported, or accepted by the U.S. Environmental Protection
Agency.
(e) Estimated combined fuel economy. The harmonic average of the
''estimated mpg'' and the estimated highway fuel economy'' weighted 0.55
and 0.45, respectively.
(f) Vehicle configuration. The unique combination of automobile
features, as defined in 40 CFR Part 600.
(38 Stat. 717, as amended (15 U.S.C. 41-58))
(43 FR 55749, Nov. 29, 1978)
16 CFR 259.2 Advertising disclosures.
(a) No manufacturer or dealer shall make any express or implied
representation in advertising concerning the fuel economy of any new
automobile1 unless such representation is accompanied by the following
clear and conspicuous disclosures:
(1) The ''estimated mpg'' of such automobile, with the U.S.
Environmental Protection Agency identified as the source of such
figures; and
(2) That the ''estimated mpg'' is to be used for comparison purposes,
and that the actual fuel economy to be obtained by the consumer may be
different and will depend upon the individual's driving speed, weather
conditions, and trip length. 2
(b) If an advertisement for a new automobile cites:
(1) The ''estimated highway fuel economy'' for the advertised
vehicle, the advertisement must refer to that figure as the ''estimated
highway'' mileage or ''highway estimate,'' and must clearly and
conspicuously disclose:
(i) The ''estimated mpg'' of the advertised vehicle, giving that
figure substantially more prominence than the ''estimated highway fuel
economy'' and placing the two figures in close conjuction with each
other;3
(ii) That the ''estimated mpg'' is to be used for comparison purposes
and that actual mileage may be different from the ''estimated mpg,''
depending on the individual's driving speed, weather conditions, and
trip length;
(iii) That actual highway mileage will probably be less than the
''estimated highway fuel economy.''
(2) The ''estimated combined fuel economy'' for the advertised
vehicle, the advertisement must refer to that figure as the ''estimated
combined'' mileage or the ''combined estimate,'' and must clearly and
conspicuously disclose:
(i) The ''estimated mpg'' of the advertised vehicle, giving that
figure substantially more prominence than the ''estimated combined fuel
economy'' and placing the two figures in close conjunction with each
other;
(ii) That the ''estimated mpg'' is to be used for comparison purposes
and that actual mileage may be different from the ''estimated mpg,''
depending on the individual's driving speed, weather conditions, and
trip length;
(iii) That the ''estimated mpg'' is more likely to reflect actual
overall mileage than the ''estimated combined fuel economy.''
(c) Fuel economy estimates derived from a non-EPA test may be
disclosed provided that:
(1) The advertisement also discloses the ''estimated mpg,'' includes
the disclosures required by 259.2(b)(1)(ii), and gives the ''estimated
mpg'' substantially more prominence than any other estimate disclosed;
(2) The source of the non-EPA test is clearly and conspicuously
identified;
(3) The driving conditions and variables simulated by the test which
differ from those used to measure the ''estimated mpg'' are clearly and
conspicuously disclosed. Such conditions and variables may include, but
are not limited to, road or dynamometer test, average speed, range of
speed, hot or cold start, and temperature; and
(4) The advertisement clearly and conspicuously discloses any
distinctions in vehicle configuration and other equipment affecting
mileage performance (e.g. radial tires) between the automobiles tested
in the non-EPA and ''estimated mpg'' EPA tests.
(d) No manufacturer or dealer shall represent that the ''estimated
mpg'' is the ''estimated city fuel economy'' unless;
(1) The designation as ''estimated mpg'' is accorded prominence at
least equal to the designation as ''estimated city fuel economy'' or
similar terms; and
(2) The designation as ''estimated city fuel economy'' or similar
term is accompanied by the clear and conspicuous disclosure that fuel
economy in heavy city traffic will be lower.
(e) All advertisement placed thirty days or later after publication
of this Guide must comply with the foregoing provisions. All
non-conforming ad copy which has been placed during the period, but
which can be withdrawn and replaced with conforming advertisements
without penalty, must be so withdrawn. For purposes of this section, ad
copy can be withdrawn and replaced with conforming advertisements
without penalty if applicable standard media deadlines or closing dates,
as set by current rate cards, standard contracts or ordinary business
practice, have not yet expired. In no case may a non-conforming ad
appear five months after publication of this Guide.
(38 Stat. 717, as amended (15 U.S.C. 41-58))
(43 FR 55749, Nov. 29, 1978)
1The Commission will regard as an express or implied fuel economy
representation one which an ordinary consumer, upon considering the
representation in the context of the entire advertisement, would
understand as referring to the fuel economy performance of the vehicle
or vehicles advertised.
2The Commission will regard the following disclosures as complying
with 259.2(a)(2):
For radio and television when the ''estimated mpg'' appears in the
audio portion, the following audio disclosures will be sufficient:
''Remember: Use this number for comparisons. The actual mileage you
get may be different.'' or ''Remember: Compare this estimate to the
''estimated mpg'' of other cars. The actual mileage you get may be
different.''
For television, when the ''estimated mpg'' appears only in the video
portion: ''Remember: Use this estimate for comparisons. Your mileage
may be different, depending on your speed, trip length, and weather.''
For print media only (other than roadside billboards): ''Remember:
Compare this estimate to the ''estimated mpg'' of other cars. You may
get different mileage, depending on how fast you drive, weather
conditions, and trip length.''
For roadside billboards only: ''Use for Comparisons. Get Free Gas
Mileage Guide from dealer for details.'' or ''Use for Comparisons.
Actual mileage may be different.''
3The Commission will regard the following as constituting
''substantially more prominence'':
For television only: If the ''estimated mpg'' and any other mileage
estimate appear only in the visual portion, the ''estimated mpg'' must
appear in numbers twice as large as those used for any other estimate,
and must remain on the screen at least as long as any other estimate.
If the ''estimated mpg'' appears in the audio portion, visual broadcast
of the ''estimated highway fuel economy'' or the ''estimated combined
fuel economy'' must be accompanied by the simultaneous, at least equally
prominent, visual broadcast of the ''estimated mpg.'' Each visual
''estimated mpg'' must be broadcast against a solid color background
which contrasts easily with the color used for the numbers when viewed
on both color and black-and-white televisions.
For radio and television when ''estimated highway fuel economy'' or
''estimated combined fuel economy'' are used in audio: The ''estimated
mpg'' must be stated, both before and after each disclosure of the
''estimated highway fuel economy'' or the ''estimated combined fuel
economy'' at least as audibly as each other estimate.
For print only: The ''estimated mpg'' must appear in clearly legible
type at least twice as large as that used for the ''estimated highway
fuel economy'' or the ''estimated combined fuel economy.''
Alternatively, if the ''estimated mpg'' appears in type of the same size
as the ''highway'' or ''combined'' estimate, it must be clearly legible
and conspicuously circled. The ''estimated mpg'' must appear against a
solid color, contrasting background. It may not appear in a footnote
unless all references to fuel economy appear in a footnote. No
reference to or citation of the ''estimated highway fuel economy'' or
the ''estimated combined fuel economy'' may appear in the title of any
advertisement.
16 CFR 259.2 SUBCHAPTER C -- REGULATIONS UNDER SPECIFIC ACTS OF CONGRESS
16 CFR 259.2 PART 300 -- RULES AND REGULATIONS UNDER THE WOOL PRODUCTS
LABELING ACT OF 1939
Sec.
300.1 Terms defined.
300.2 General requirement.
300.3 Required label information.
300.4 Registered identification number.
300.5 Required label and method of affixing.
300.6 Labels to be avoided.
300.7 English language requirement.
300.8 Use of fiber trademark and generic names.
300.9 Abbreviations, ditto marks, and asterisks.
300.10 Arrangement of label information.
300.11 Improper methods of labeling.
300.12 Labeling of pairs or products containing two or more units.
300.13 Name or other identification required to appear on labels.
300.14 Substitute label requirement.
300.15 Labeling of containers or packaging of wool products.
300.16 Ornamentation.
300.17 Use of the term ''all'' or ''100%''.
300.18 Use of name of specialty fiber.
300.19 Use of terms ''mohair'' and ''cashmere''.
300.20 Use of the terms ''virgin'' or ''new''.
300.21 Use of separate label for name or registered identification
number.
300.22 Marking of samples, swatches, or specimens.
300.23 Sectional disclosure of content.
300.24 Linings, paddings, stiffening, trimmings and facings.
300.25 Representations as to fiber content.
300.25a Country where wool products are processed or manufactured.
300.25b Country of origin in mail order advertising.
300.26 Pile fabrics and products composed thereof.
300.27 Wool products containing superimposed or added fibers.
300.28 Undetermined quantities of reclaimed fibers.
300.29 Garments or products composed of or containing miscellaneous
cloth scraps.
300.30 Deceptive labeling in general.
300.31 Maintenance of records.
300.32 Form of separate guaranty.
300.33 Continuing guaranty filed with Federal Trade Commission.
300.34 Reference to existing guaranty on labels not permitted.
300.35 Hearings under section 4(d) of the act.
Authority: 15 U.S.C. 68 et seq. and 15 U.S.C. 70 et seq.
Source: 6 FR 3426, July 15, 1941, unless otherwise noted.
16 CFR 259.2 Definitions
16 CFR 300.1 Terms defined.
(a) The term Act means the Wool Products Labeling Act of 1939
(approved October 14, 1940, Public No. 850, 76th Congress, Third
Session, 54 Stat. 1128, 15 U.S.C. 68 et. seq. as amended by Pub. L.
96-242, 94 Stat. 344).
(b) The terms rule, rules, regulations and rules and regulations mean
the rules and regulations prescribed by the Commission pursuant to the
Act.
(c) The term ornamentation means any fibers or yarns imparting a
visibly discernible pattern or design to a yarn or fabric.
(d) The term fiber trademark means a word or words used by a person
to identify a particular fiber produced or sold by him and to
distinguish it from fibers of the same generic class produced or sold by
others. Such term shall not include any trademark, product mark, house
mark, trade name or other name which does not identify a particular
fiber.
(e) The terms required information or information required mean such
information as is required to be disclosed on the required stamp, tag,
label or other means of identification under the Act and regulations.
(f) The definitions of terms contained in section 2 of the Act shall
be applicable also to such terms when used in rules promulgated under
the Act.
(g) The term United States means the several States, the District of
Columbia, and the territories and possessions of the United States.
(h) The terms mail order catalog and mail order promotional material
mean any printed materials used in the direct sale or direct offering
for sale of wool products that are distributed or shown to ultimate
consumers and solicit the ultimate consumers to purchase such wool
products by mail, telephone or some other method without examining the
actual product purchased.
(i) The terms label, labels, labeled, and labeling mean the stamp,
tag, label, or other means of identification, or authorized substitute
therefore, required to be on or affixed to wool products by the Act or
Regulations and on which the information required is to appear.
(29 FR 6623, May 21, 1964, as amended at 45 FR 44261, July 1, 1980;
50 FR 15105, Apr. 17, 1985)
16 CFR 300.1 Labeling
16 CFR 300.2 General requirement.
Each and every wool product subject to the act shall be marked by a
stamp, tag, label, or other means of identification, in conformity with
the requirements of the act and the rules and regulations thereunder.
16 CFR 300.3 Required label information.
(a) The marking of wool products under the Act shall be in the form
of a stamp, tag, label or other means of identification, showing and
displaying upon the product the required information legibly,
conspicuously, and nondeceptively. The information required to be shown
and displayed upon the product in the stamp, tag, label, or other mark
of identification, shall be that which is required by the Act and the
rules and regulations thereunder, including the following:
(1) The fiber content of the product specified in section 4(a)(2)(A)
of the Act. The generic names and percentages by weight of the
constituent fibers present in the wool product, exclusive of permissive
ornamentation, shall appear on such label with any percentage of fiber
or fibers designated as ''other fiber'' or ''other fibers'' as provided
by section 4(a)(2)(A)(5) of the Act appearing last.
(2) The maximum percentage of the total weight of the wool product of
any nonfibrous loading, filling or adulterating matter as prescribed by
section 4(a)(2)(B) of the Act.
(3) The name or registered identification number issued by the
Commission of the manufacturer of the wool product or the name or
registered identification number of one or more persons subject to
section 3 of the Act with respect to such wool product.
(4) The name of the country where the wool product was processed or
manufactured.
(b) In disclosing the constituent fibers in information required by
the Act and regulations or in any non-required information, no fiber
present in the amount of less than five percentum shall be designated by
its generic name or fiber trademark but shall be designated as ''other
fiber,'' except that the percentage of wool or recycled wool shall
always be stated, in accordance with section 4(a)(2)(A) of the Act.
Where more than one of such fibers, other than wool or recycled wool,
are present in amounts of less than five per centum, they shall be
designated in the aggregate as ''other fibers.'' Provided, however, that
nothing contained herein shall prevent the disclosure of any fiber
present in the product which has a clearly established and definite
functional significance where present in the amount stated and the
functional significance of such fiber is clearly and non-deceptively
stated on the label in conjunction with such disclosure.
(29 FR 6623, May 21, 1964, as amended at 45 FR 44261, July 1, 1980;
50 FR 15105, Apr. 17, 1985)
16 CFR 300.4 Registered identification number.
(a) A registered identification number assigned by the Federal Trade
Commission under and in accordance with the provisions of this section
may be used upon the stamp, tag, label, or other mark of identification
required under the Act to be affixed to a wool product, as and for the
name of the person to whom such number has been assigned.
(b) Any manufacturer of a wool product or person subject to section 3
of the Act with respect to such wool product, residing in the United
States, may make application to the Federal Trade Commission for a
registered identification number, or such numbers as the Commission may
deem appropriate, for use by the applicant on the required stamp, tag,
label, or other mark of identification under the Act, as and for his
name with fully as binding effect.
(c) Registered identification numbers shall be used only by the
person or concern to whom they are issued, and such numbers are not
transferable or assignable. Registered identification numbers shall be
subject to cancellation whenever any such number was procured or has
been used improperly or contrary to the requirement of the Acts
administered by the Federal Trade Commission, and regulations
promulgated thereunder, or when otherwise deemed necessary in the public
interest.
(d) Registered identification numbers assigned under this section may
be used on labels required in labeling products subject to the
provisions of the Fur Products Labeling Act and Textile Fiber Products
Identification Act, and numbers previously assigned by the Commission
under such Acts may be used as and for the required name in labeling
under this Act. When so used by the person or firm to whom assigned,
the use of the numbers shall be construed as identifying and binding the
applicant as fully and in all respects as though assigned under the
specific Act for which it is used.
(e) Form of application for registered identification numbers (Form
to be used by all applicants):
Insert Illus. 456A
(29 FR 6623, May 21, 1964, as amended at 48 FR 12516, Mar. 25, 1983)
16 CFR 300.5 Required label and method of affixing.
(a) A label is required to be affixed to each wool product and, where
required, to its package or container in a secure manner. Such label
shall be conspicuous and shall be of such durability as to remain
attached to the product and its package throughout any distribution,
sale, resale and until sold and delivered to the ultimate consumer.
(b) Each wool product with a neck must have the label affixed to the
inside center of the neck midway between the shoulder seams provided,
however, that the required label may appear in close proximity to
another label affixed to the inside center of the neck as long as the
required label remains conspicuous to the consumer and, provided
further, that if the country of origin is disclosed on a label affixed
to the inside center of the neck or in close proximity, the label
containing the country of origin, fiber content and RN or name of the
company may appear in another conspicuous location on the inside or on
the outside of the garment. All other wool products shall have the
label affixed to a conspicuous spot on the inner side of the product or
in a conspocuous place on the outside of the product.
(c) In the case of hosiery products, this section does not require
affixing a label to each hosiery product contained in a package if, (1)
such hosiery products are intended for sale to the ultimate consumer in
such package, (2) such package has affixed to it a label bearing the
required information for the hosiery products contained in the package,
and (3) the information on the label affixed to the package is equally
applicable to each wool product contained therein.
(50 FR 15105, Apr. 17, 1985)
16 CFR 300.6 Labels to be avoided.
Stamps, tags, labels, or other marks of identification, which are
insecurely attached, or which in the course of offering the product for
sale, selling, reselling, transporting, marketing, or handling incident
thereto are likely to become detached, indistinct, obliterated,
illegible, mutilated, inaccessible, or inconspicuous, shall not be used.
16 CFR 300.7 English language requirement.
All words, statements and other information required by or under
authority of the Act and the rules and regulations thereunder to appear
on the stamp, tag, label, or other mark of identification, shall appear
in the English language. If the product bears any stamp, tag, label, or
mark of identification which contains any of the required information in
a language other than English, all of the required information shall
appear both in such other language and in the English language.
16 CFR 300.8 Use of fiber trademark and generic names.
(a) Except where another name is required or permitted under the Act
or regulations, the respective common generic name of the fiber shall be
used when naming fibers in the required information; as for example,
''wool,'' ''recycled wool,'' ''cotton,'' ''rayon,'' ''silk,'' ''linen,''
''acetate,'' ''nylon,'' ''polyester.''
(b) The generic names of manufactured fibers as heretofore or
hereafter established in 303.7 of this part (Rule 7) of the regulations
promulgated under the Textile Fiber Products Identification Act (72
Stat. 1717; 15 U.S.C. 70) shall be used in setting forth the required
fiber content information as to wool products.
(c) A non-deceptive fiber trademark may be used on a label in
conjunction with the generic name of the fiber to which it relates.
Where such a trademark is placed on a label in conjunction with the
required information, the generic name of the fiber must appear in
immediate conjunction therewith, and such trademark and generic name
must appear in type or lettering of equal size and conspicuousness.
(d) Where a generic name or a fiber trademark is used on any label,
whether required or nonrequired, a full and complete fiber content
disclosure with percentages shall be made on such label in accordance
with the Act and regulations.
(e) If a fiber trademark is not used in the required information, but
is used elsewhere on the label as nonrequired information, the generic
name of the fiber shall accompany the fiber trademark in legible and
conspicuous type or lettering the first time the trademark is used.
(f) No fiber trademark or generic name or word, coined word, symbol
or depiction which connotes or implies any fiber trademark or generic
name shall be used on any label or elsewhere on the product in such a
manner as to be false, deceptive, or misleading as to fiber content, or
to indicate directly or indirectly that a wool product is composed
wholly or in part of a particular fiber, when such is not the case.
(g) The term ''fur fiber'' may be used to describe the hair or fur
fiber or mixtures thereof of any animal or animals other than the sheep,
lamb, Angora goat, Cashmere goat, camel, alpaca, llama and vicuna. If
the name, symbol, or depiction of any animal producing the hair or fur
fiber is used on the stamp, tag, label, or other means of identification
applied or affixed to the wool product, the percentage by weight of such
hair or fur fiber in the total fiber weight of the wool product shall be
separately stated in the required fiber content disclosure: Provided,
That no such name, symbol or depiction shall be used where such hair or
fur fiber is present in the amount of less than five per centum of the
total fiber weight. No such name, symbol or depiction shall be used in
such a way as to imply in any manner that a wool product contains the
fur or hair of an animal when the hair or fur fiber of such animal is
not present in the product in the amount of five per centum or more of
the total fiber weight. The following are examples of fiber content
disclosures under this paragraph:
60% Wool
40% Fur Fiber
or
60% Wool
30% Fur Fiber
10% Angora Rabbit
(29 FR 6624, May 21, 1964, as amended at 45 FR 44261, July 1, 1980)
16 CFR 300.9 Abbreviations, ditto marks, and asterisks.
(a) In disclosing required information, words or terms shall not be
designated by ditto marks or appear in footnotes referred to by
asterisks or other symbols in required information, and shall not be
abbreviated.
(b) Where the generic name of a textile fiber is required to appear
in immediate conjunction with a fiber trademark, a disclosure of the
generic name by means of a footnote, to which reference is made by use
of an asterisk or other symbol placed next to the fiber trademark, shall
not be sufficient in itself to constitute compliance with the Act and
regulations.
(29 FR 6624, May 21, 1964)
16 CFR 300.10 Arrangement of label information.
(a) The required information may appear on any label attached to the
product, provided all the pertinent requirements of the Act and
Regulations are met and so long as the combination of required
information and non-required information is not misleading. All parts
of the information required to be displayed in the label of the product
shall be set forth in immediate conjunction with each other, and in type
or lettering plainly legible and conspicuous, and all parts of the
required fiber content information shall appear in type or lettering of
equal size and conspicuousness; such as for example:
Distributed by:
John Q. Doe Co., Inc.,
New York, NY.
Made of
60% WOOL
40% RECYCLED WOOL
EXCLUSIVE OF ORNAMENTATION
Made in U.S.A.
Provided, however, that the required name or registered
identification number may appear on the reverse side of the label if it
is plainly legible, conspicuous and accessible, and provided further,
that the required name or registered identification number may be
conspicuously set out on a separate label which is prominently and
conspicuously displayed in immediate conjunction with, or in close
proximity to the label containing the other required information, in
accordance with the requirements of 300.21. Where only one end of a
cloth label is sewn to the product in such a manner that both sides of
the label are readily accessible to the prospective purchaser, the
required fiber content information may appear on the reverse side of the
label if the front side of such label clearly and conspicuously shows
the wording Fiber Content on Reverse Side. On products as to which
sectional disclosure is used, an additional non-deceptive label may be
used showing the complete fiber content information with percentages as
to a particular section or area of the product and specifying the
section or area referred to.
(b) Subject to the provisions of 300.8 of this part (Rule 8), if
nonrequired information or representations are placed on the label or
elsewhere on the product, such nonrequired information or
representations shall be set forth separate and apart from the required
information and shall not interfere with, minimize, detract from, or
conflict with such required information, nor shall such nonrequired
information in any way be false, deceptive or misleading.
(29 FR 6624, May 21, 1964, as amended at 45 FR 44261, July 1, 1980;
50 FR 15105, Apr. 17, 1985; 53 FR 31314, Aug. 18, 1988)
16 CFR 300.11 Improper methods of labeling.
The stamp, tag, label, or other mark of identification required under
the act, or the required information contained therein, shall not be
minimized, rendered obscure or inconspicuous, or be so placed as likely
to be unnoticed or unseen by purchasers and purchaser-consumers when the
product is offered or displayed for sale or sold to purchasers or the
consuming public, by reason of, among others:
(a) Small or indistinct type.
(b) Failure to use letters and numerals of equal size and
conspicuousness in naming all fibers and percentages of such fibers as
required by the act.
(c) Insufficient background contrast.
(d) Crowding, intermingling, or obscuring with designs, vignettes, or
other written, printed or graphic matter.
16 CFR 300.12 Labeling of pairs or products containing two or more
units.
(a) Where a wool product consists of two or more parts, units, or
items of different fiber content, a separate label containing the
required information shall be affixed to each of such parts, units, or
items showing the required information as to such part, unit, or item,
provided that where such parts, units, or items, are marketed or handled
as a single product or ensemble and are sold and delivered to the
ultimate consumer as a single product or ensemble, the required
information may be set out on a single label in such a manner as to
separately show the fiber composition of each part, unit, or item.
(b) Where garments, wearing apparel, or other wool products are
marketed or handled in pairs or ensembles of the same fiber content,
only one unit of the pair or ensemble need be labeled with the required
information when sold and delivered to the ultimate consumer.
(c) Where parts or units of wool products of the types referred to in
paragraphs (a) and (b) of this section are sold separately, such parts
or units shall be labeled with the information required by the Act and
regulations.
(29 FR 6624, May 21, 1964)
16 CFR 300.13 Name or other identification required to appear on
labels.
(a) The name required by the Act to be used on labels shall be the
name under which the manufacturer of the wool product or other person
subject to section 3 of the Act with respect to such product is doing
business. Trade names, trade marks or other names which do not
constitute the name under which such person is doing business shall not
be used for required identification purposes.
(b) Registered identification numbers, as provided for in 300.4 of
this part (Rule 4), may be used for identification purposes in lieu of
the required name.
(29 FR 6625, May 21, 1964)
16 CFR 300.14 Substitute label requirement.
When necessary to avoid deception, the name of any person other than
the manufacturer of the product appearing on the stamp, tag, label, or
other mark of identification affixed to such product shall be
accompanied by appropriate words showing that the product was not
manufactured by such person; as for example:
Manufactured for: ----------------
Distributed by: --------------------
------------------------ Distributors
16 CFR 300.15 Labeling of containers or packaging of wool products.
When wool products are marketed and delivered in a package which is
intended to remain unbroken and intact until after delivery to the
ultimate consumer, each wool product in the package, except hosiery, and
the package shall be labeled with the required information. If the
package is transparent to the extent it allows for a clear reading of
the required information on the wool product, the package is not
required to be labeled.
(50 FR 15106, Apr. 17, 1985)
16 CFR 300.16 Ornamentation.
(a) Where the wool product contains fiber ornamentation not exceeding
5 percent of the total fiber weight of the product and the stated
percentages of fiber content of the product are exclusive of such
ornamentation, the stamp, tag, label, or other means of identification
shall contain a phrase or statement showing such fact; as for example:
50% Wool
25% Recycled Wool
25% Cotton
Exclusive of Ornamentation
The fiber content of such ornamentation may be disclosed where the
percentage of the ornamentation in relation to the total fiber weight of
the principal fiber or blend of fibers is shown; as for example:
70% Recycled Wool
30% Acetate
Exclusive of 4% Metallic Ornamentation
(b) Where the fiber ornamentation exceeds five per centum it shall be
included in the statement of required percentages of fiber content.
(c) Where the ornamentation constitutes a distinct section of the
product, sectional disclosure may be made in accordance with 300.23 of
this part (Rule 23).
(29 FR 6625, May 21, 1964, as amended at 45 FR 44261, July 1, 1980)
16 CFR 300.17 Use of the term ''all'' or ''100%.''
Where the fabric or product to which the stamp, tag, label, or mark
of identification applies is composed wholly of one kind of fiber,
either the word ''all'' or the term ''100%'' may be used with the
correct fiber name; as for example ''100% Wool,'' ''All Wool,'' ''100%
Recycled Wool,'' ''All Recycled Wool.'' If any such product is composed
wholly of one fiber with the exception of fiber ornamentation not
exceeding 5%, such term ''all'' or ''100%'' as qualifying the name of
the fiber may be used, provided it is immediately followed by the phrase
''exclusive of ornamentation,'' or by a phrase of like meaning; such
as, for example:
All Wool -- Exclusive of Ornamentation
or
100% Wool -- Exclusive of Ornamentation.
(45 FR 44261, July 1, 1980)
16 CFR 300.18 Use of name of specialty fiber.
(a) In setting forth the required fiber content of a product
containing any of the specialty fibers named in Section 2(b) of the Act,
the name of the specialty fiber present may be used in lieu of the word
''wool,'' provided the percentage of each named specialty fiber is
given, and provided further that the name of the specialty fiber so used
is qualified by the word ''recycled'' when the fiber referred to is
''recycled wool'' as defined in the Act. The following are examples of
fiber content designation permitted under this rule:
55% Alpaca -- 45% Camel Hair
50% Recycled Camel Hair -- 50% Wool
60% Recycled Alpaca -- 40% Rayon
35% Recycled Llama -- 35% Recycled Vicuna -- 30% Cotton
60% Cotton -- 40% Recycled Llama.
(b) Where an election is made to use the name of a specialty fiber in
lieu of the word ''wool'' in describing such specialty fiber, such name
shall be used at any time reference is made to the specialty fiber
either in required or nonrequired information. The name of the
specialty fiber or any word, coined word, symbol or depiction connoting
or implying the presence of such specialty fiber shall not be used in
nonrequired information on the required label or on any secondary or
auxiliary label attached to the wool product if the name of such
specialty fiber does not appear in the required fiber content
disclosure.
(29 FR 6625, May 21, 1964, as amended at 45 FR 44262, July 1, 1980)
16 CFR 300.19 Use of terms ''mohair'' and ''cashmere.''
(a) In setting forth the required fiber content of a product
containing hair of the Angora goat known as mohair or containing hair or
fleece of the Cashmere goat known as cashmere, the term ''mohair'' or
''cashmere,'' respectively, may be used for such fiber in lieu of the
word ''wool,'' provided the respective percentage of each such fiber
designated as ''mohair'' or ''cashmere'' is given, and provided further
that such term ''mohair'' or ''cashmere'' where used is qualified by the
word ''recycled'' when the fiber referred to is ''recycled wool'' as
defined in the Act. The following are examples of fiber content
designations permitted under this rule:
50% Mohair -- 50% Wool
60% Recycled Mohair -- 40% Cashmere
60% Cotton -- 40% Recycled Cashmere.
(b) Where an election is made to use the term ''mohair'' or
''cashmere'' in lieu of the term ''wool'' as permitted by this section,
the appropriate designation of ''mohair'' or ''cashmere'' shall be used
at any time reference is made to such fiber in either required or
nonrequired information. The term ''mohair'' or ''cashmere'' or any
words, coined words, symbols or depictions connoting or implying the
presence of such fibers shall not be used in nonrequired information on
the required label or on any secondary or auxiliary label attached to
the wool product if the term ''mohair'' or ''cashmere'' as the case may
be does not appear in the required fiber content disclosure.
(29 FR 6625, May 21, 1964, as amended at 45 FR 44262, July 1, 1980)
16 CFR 300.20 Use of the terms ''virgin'' or ''new.''
The terms ''virgin'' or ''new'' as descriptive of a wool product, or
any fiber or part thereof, shall not be used when the product or part so
described is not composed wholly of new or virgin fiber which has never
been reclaimed from any spun, woven, knitted, felted, braided, bonded,
or otherwise manufactured or used product.
(29 FR 6625, May 21, 1964)
16 CFR 300.21 Use of separate label for name or registered
identification number.
The name or registered identification number of the manufacturer or
person subject to section 3 of the Act with respect to the wool product
may be set forth on a label or mark separate from that which contains
the statement of fiber and material content of the product provided that
the label or mark bearing said name or registered identification number
and the name or registered identification number itself are prominently
and conspicuously displayed either in immediate conjunction with, or in
close proximity to, such other label or mark and in such manner as will
fully inform purchasers and purchaser-consumers of the required
information.
(29 FR 6625, May 21, 1964)
16 CFR 300.22 Marking of samples, swatches or specimens.
Where samples, swatches or specimens of wool products subject to the
act were used to promote or effect sales of such wool products in
commerce, said samples, swatches and specimens, as well as the products
themselves, shall be labeled or marked to show their respective fiber
contents and other information required by law.
16 CFR 300.23 Sectional disclosure of content.
(a) Permissive. Where a wool product is composed of two or more
sections which are of different fiber composition, the required
information as to fiber content may be separated on the same label in
such manner as to show the fiber composition of each section.
(b) Mandatory. The disclosure as above provided shall be made in all
instances where such form of marking is necessary to avoid deception.
(29 FR 6626, May 21, 1964)
16 CFR 300.24 Linings, paddings, stiffening, trimmings and facings.
(a) In labeling or marking garments or articles of apparel which are
wool products, the fiber content of any linings, paddings, stiffening,
trimmings or facings of such garments or articles of apparel shall be
given and shall be set forth separately and distinctly in the stamp,
tag, label, or other mark of identification of the products.
(1) If such linings, trimmings or facings contain, purport to contain
or are represented as containing wool, or recycled wool; or
(2) If such linings are metallically coated, or coated or laminated
with any substance for warmth, or if such linings are composed of pile
fabrics, or any fabrics incorporated for warmth or represented directly
or by implication as being incorporated for warmth, which articles the
Commission finds constitute a class of articles which is customarily
accompanied by express or implied representations of fiber content; or
(3) If any express or implied representations of fiber content of any
of such linings, paddings, stiffening, trimmings or facings are
customarily made.
(b) In the case of garments which contain interlinings, the fiber
content of such interlinings shall be set forth separately and
distinctly as part of the required information on the stamp, tag, label,
or other mark of identification of such garment. For purposes of this
paragraph (b) the term ''interlining'' means any fabric or fibers
incorporated into a garment or article of wearing apparel as a layer
between an outershell and an inner lining.
(c) In the case of wool products which are not garments or articles
of apparel, but which contain linings, paddings, stiffening, trimmings,
or facings, the stamp, tag, label, or other mark of identification of
the product shall show the fiber content of such linings, paddings,
stiffening, trimmings or facings, set forth separately and distinctly in
such stamp, tag, label, or other mark of identification.
(d) Wool products which are or have been manufactured for sale or
sold for use as linings, interlinings, paddings, stiffening, trimmings
or facings, but not contained in a garment, article of apparel, or other
product, shall be labeled or marked with the required information as in
the case of other wool products.
(29 FR 6626, May 21, 1964, as amended at 45 FR 44262, July 1, 1980)
16 CFR 300.25 Representations as to fiber content.
(a) Words, coined words, symbols, or depictions which constitute or
imply the name or designation of a fiber which is not present in the
product shall not appear on labels. Any word or coined word which is
phonetically similar to the name or designation of a fiber or which is
only a slight variation in spelling from the name or designation of a
fiber shall not be used in such a manner as to represent or imply that
such fiber is present in the product when the fiber is not present as
represented.
(b) Where a word, coined word, symbol or depiction which connotes or
implies the presence of a fiber is used on any label, whether required
or nonrequired, a full and complete fiber content disclosure with
percentages shall be made on such label in accordance with the Act and
regulations.
(29 FR 6626, May 21, 1964, as amended at 50 FR 15106, Apr. 17, 1985)
16 CFR 300.25a Country where wool products are processed or
manufactured.
(a) In addition to the other information required by the Act and
Regulations:
(1) Each imported wool product shall be labeled with the name of the
country where such imported product was processed or manufactured;
(2) Each wool product completely made in the United States of
materials that were made in the United States shall be labeled using the
term ''Made in U.S.A.'' or some other clear and equivalent term.
(3) Each wool product made in the United States, either in whole or
part, of imported materials shall contain a label disclosing these
facts; for example:
''Made in USA of imported fabric''
or
''Knitted in USA of imported yarn'' and
(4) Each wool product partially manufactured in a foreign country and
partially manufactured in the United States shall contain on the label
the following information:
(i) The manufacturing process in the foreign country and in the USA;
for example:
''Imported cloth, finished in USA'',
or
''Sewn in USA of imported components
or
''Made in (foreign country), finished in USA''
(ii) When the U.S. Customs Service requires an origin label on the
unfinished product, the manufacturing processes as required in paragraph
(a)(4)(i) of this section or the name of the foreign country required by
Customs, for example:
''Made in (foreign country)''
(b) For the purpose of determining whether a product should be marked
under paragraphs (a) (2), (3), or (4) of this section, a manufacturer
needs to consider the origin of only those materials that are covered
under the Act and that are one step removed from that manufacturing
process. For example, a yarn manufacturer must identify fiber if it is
imported, a cloth manufacturer must identify imported yarn and a
household product manufacturer must identify imported cloth or imported
yarn for household products made directly from yarn, or imported fiber
used as filling for warmth.
(c) The term country means the political entity known as a nation.
Except for the United States, colonies, possessions or protectorates
outside the boundaries of the mother country shall be considered
separate countries, and the name thereof shall be deemed acceptable in
designating the country where the wool product was processed or
manufactured unless the Commission shall otherwise direct.
(d) The country where the imported wool product was principally made
shall be considered to be the country where such wool product was
processed or manufactured. Further work or material added to the wool
product in another country must effect a basic change in form in order
to render such other country the place where such wool product was
processed or manufactured.
(e) The English name of the country where the imported wool product
was processed or manufactured shall be used. The adjectival form of the
name of the country will be accepted as the name of the country where
the wool product was processed or manufactured, provided the adjectival
form of the name does not appear with such other words so as to refer to
a kind of species of product. Variant spellings which clearly indicate
the English name of the country, such as Brasil for Brazil and Italie
for Italy, are acceptable. Abbreviations which unmistakenly indicate
the name of a country, such as Gt. Britain for Great Britain, are
acceptable.
(f) Nothing in this Rule shall be construed as limiting in any way
the information required to be disclosed on labels under the provisions
of any Tariff Act of the United States or regulations prescribed by the
Secretary of the Treasury.
(50 FR 15106, Apr. 17, 1985)
16 CFR 300.25b Country of origin in mail order advertising.
When a wool product is advertised in any mail order catalog or mail
order promotional material, the description of such product shall
contain a clear and conspicuous statement that the product was either
made in U.S.A., imported, or both. Other words or phrases with the same
meaning may be used. The statement of origin required by this section
shall not be inconsistent with the origin labeling of the product being
advertised.
(50 FR 15106, Apr. 17, 1985)
16 CFR 300.26 Pile fabrics and products composed thereof.
The fiber content of pile fabrics or products made thereof may be
stated in the label or mark of identification in such segregated form as
will show the fiber content of the face or pile and of the back or base,
with the percentages of the respective fibers as they exist in the face
or pile and in the back or base: Provided, That in such disclosure the
respective percentages of the face and the back be given in such manner
as will show the ratio between the face and the back. Examples of the
form of marking pile fabrics as to fiber content provided for in this
section are as follows:
100% Wool Pile
100% Cotton Back
(Back constitutes 60% of fabric and pile 40%)
Pile -- 60% Recycled Wool, 40% Wool
Back -- 70% Cotton, 30% Rayon
(Pile constitutes 60% of fabric and back 40%).
(6 FR 3426, July 15, 1941, as amended at 45 FR 44262, July 1, 1980)
16 CFR 300.27 Wool products containing superimposed or added fibers.
Where a wool product is made wholly of one fiber or a blend of fibers
with the exception of an additional fiber in minor proportion
superimposed or added in certain separate and distinct areas or sections
for reinforcing or other useful purposes, the product may be designated
according to the fiber content of the principal fiber or blend of
fibers, with an excepting naming the superimposed or added fiber, giving
the percentage thereof in relation to the total fiber weight of the
principal fiber or blend of fibers, and indicating the area or section
which contains the superimposed or added fiber. An example of this type
of fiber content disclosure, as applied to products having reinforcing
fibers added to a particular area or section, is as follows:
55% Recycled Wool
45% Rayon
Except 5% Nylon added to toe and heel
(29 FR 6626, May 21, 1964, as amended at 45 FR 44262, July 1, 1980)
16 CFR 300.28 Undetermined quantities of reclaimed fibers.
(a) Where a wool product is composed in part of various man-made
fibers recovered from textile products containing underdetermined
qualities of such fibers, the percentage content of the respective
fibers recovered from such products may be disclosed on the required
stamp, tag, or label, in aggregate form as ''man-made fibers'' followed
by the naming of such fibers in the order of their predominance by
weight, as for example:
60% Wool
40% Man-made fibers
Rayon
Acetate
Nylon
(b) Where a wool product is composed in part of wool, or recycled
wool and in part of unknown and, for practical purposes, undeterminable
non-woolen fibers reclaimed from any spun, woven, knitted, felted,
braided, bonded or otherwise manufactured or used product, the required
fiber content disclosure may, when truthfully applicable, in lieu of the
fiber content disclosure otherwise required by the Act and regualtions,
set forth (1) the percentages of wool or recycled wool, and (2) the
generic names and the percentages of all other fibers whose presence is
known or practically ascertainable and (3) the percentage of the unknown
and undeterminable reclaimed fibers, designating such reclaimed fibers
as ''unknown reclaimed fibers'' or ''undetermined reclaimed fibers,'' as
for example:
75% Recycled Wool -- 25% Unknown Reclaimed Fibers.
35% recycled Wool -- 30% Acetate -- 15% Cotton -- 20% Undetermined
Reclaimed Fibers.
In making the required fiber content disclosure any fibers referred
to as ''unknown reclaimed fibers'' or ''undetermined reclaimed fibers''
shall be listed last.
(c) The terms ''unknown recycled fibers'' and ''undetermined recycled
fibers'' may be used in describing the unknown and undeterminable
reclaimed fibers referred to in paragraph (b) of this rule in lieu of
the terms specified therein, provided, however, That the same standard
is used in determining the applicability of the term ''recycled'' as is
used in defining ''recycled wool'' in section 2(c) of the Act.
(d) For purposes of this rule undetermined or unascertained amounts
of wool or recycled wool may be classified and designated as recycled
wool.
(e) Nothing contained in this rule shall excuse a full and accurate
disclosure of fiber content with correct percentages if the same is
known or practically ascertainable, or permit a deviation from the
requirements of section 4(a)(2)(A) of the Act with respect to products
not labeled under the provisions of this rule or permit a higher
classification of wool or recycled wool than that provided by Section 2
of the Act.
(29 FR 6626, May 21, 1964, as amended at 45 FR 44262, July 1, 1980;
45 FR 49542, July 25, 1980)
16 CFR 300.29 Garments or products composed of or containing
miscellaneous cloth scraps.
(a) For wool products which consist of, or are made from,
miscellaneous cloth scraps comprising manufacturing by-products and
containing various fibers of undetermined percentages, the following
form of disclosure as to fiber content of such wool products, where
truthfully appliable and with appropriate percentage figure inserted,
may be used in the stamp, tag, label, or mark of identification of such
product:
(1) Where the product contains chiefly cotton as well as woolen
fibers in the minimum percentage designated for recycled wool:
Made of Miscellaneous Cloth Scraps Composed Chiefly of Cotton With
Minimum of ---- % Recycled Wool.
(2) Where the product contains chiefly rayon as well as woolen fibers
in the minimum percentage designated for recycled wool:
Made of Miscellaneous Cloth Scraps Composed Chiefly of Rayon With
Minimum of ---- % Recycled Wool.
(3) Where the product is composed chiefly of a mixture of cotton and
rayon as well as woolen fibers in the minimum percentage designated for
recycled wool:
Made of Miscellaneous Cloth Scraps Composed Chiefly of Cotton and
Rayon With Minimum of ---- % Recycled Wool.
(4) Where the product contains chiefly woolen fibers with the balance
of undetermined mixtures of cotton, rayon or other non-woolen fibers:
Made of Miscellaneous Cloth Scraps Containing Cotton, Rayon and Other
Non-Woolen Fibers, With Minimum of ---- % Recycled Wool.
(b) Where the cotton or rayon content or the non-woolen fiber content
mentioned in such forms of disclosure is not known to comprise as much
as 50% of the fiber content of the product, the word ''chiefly'' in the
respective form of disclosure specified in this section shall be
omitted.
(c) The words ''Contents are'' may be used in the above-mentioned
forms of marking in lieu of the words ''Made of'' where appropriate to
the nature of the product.
(d) For purposes of this rule, undetermined or unascertained amounts
of wool or recycled wool which may be contained in the product may be
classified and designated as recycled wool.
(6 FR 3426, July 15, 1941, as amended at 45 FR 44262, July 1, 1980)
16 CFR 300.30 Deceptive labeling in general.
Products subject to the act shall not bear, nor have used in
connection therewith, any stamp, tag, label, mark or representation
which is false, misleading or deceptive in any respect.
16 CFR 300.30 Manufacturers' Records
16 CFR 300.31 Maintenance of records.
(a) Pursuant to the provisions of section 6 of the Act, every
manufacturer of a wool product subject to the Act, irrespective of
whether any guaranty has been given or received, shall maintain records
showing the information required by the Act and Regulations with respect
to all such wool products made by such manufacturer. Such records shall
show:
(1) The fiber content of the product specified in section 4(a)(2)(A)
of the Act.
(2) The maximum percentage of the total weight of the wool product of
any non-fibrous loading, filling or adulterating matter as prescribed by
section 4(a)(2)(B) of the Act.
(3) The name, or registered identification number issued by the
Commission, of the manufacturer of the wool product or the name or
registered identification number of one or more persons subject to
section 3 of the Act with respect to such wool product.
(4) The name of the country where the wool product was processed or
manufactured as prescribed by sections 300.25a and/or .25b.
(b) Any person substituting labels shall keep such records as will
show the information on the label removed and the name or names of the
person or persons from whom the wool product was received.
(c) The purpose of these records is to permit a determination that
the requirements of the Act and Regulations have been met and to
establish a traceable line of continuity from raw material through
processing to finished product. The records shall be preserved for at
least three years.
(53 FR 31314, Aug. 18, 1988)
16 CFR 300.31 Guaranties
16 CFR 300.32 Form of separate guaranty.
(a) The following are suggested forms of separate guaranties under
section 9 of the Act which may be used by a guarantor residing in the
United States on or as part of an invoice or other paper relating to the
marketing or handling of any wool products listed and designated therein
and showing the date of such invoice or other paper and the signature
and address of the guarantor:
(1) General form.
We guarantee that the wool products specified herein are not
misbranded under the provisions of the Wool Products Labeling Act and
rules and regulations thereunder.
(2) Guaranty based on guaranty.
Based upon a guaranty received, we guarantee that the wool products
specified herein are not misbranded under the provisions of the Wool
Products Labeling Act and rules and regulations thereunder.
Note: The printed name and address on the invoice or other paper
will suffice to meet the signature and address requirements.
(b) The mere disclosure of required information including the fiber
content of wool products on a label or on an invoice or other paper
relating to its marketing or handling shall not be considered a form of
separate guaranty.
(29 FR 6627, May 21, 1964)
16 CFR 300.33 Continuing guaranty filed with Federal Trade Commission.
(a)(1) Under section 9 of the Act any person residing in the United
States and marketing or handling wool products may file a continuing
guaranty with the Federal Trade Commission.
(2) When filed with the Commission a continuing guaranty shall be
fully executed in duplicate. Forms for use in preparing continuing
guaranties will be supplied by the Commission upon request.
(3) Continuing guaranties filed with the Commission shall continue in
effect until revoked. The guarantor shall promptly report any change in
business status to the Commission.
(b) Prescribed form of continuing guaranty:
Insert illus. 458A
(c) Any person who has a continuing guaranty on file with the
Commission may, during the effective dates of the guaranty, give notice
of such fact by setting forth on the invoice or other paper covering the
marketing or handling of the product guaranteed the following:
Continuing Guaranty under the Wool Products Labeling Act filed with
the Federal Trade Commission.
(d) Any person who falsely represents that he has a continuing
guaranty on file with the Federal Trade Commission shall be deemed to
have furnished a false guaranty under section 9(b) of the Act.
(29 FR 6627, May 21, 1964, as amended at 48 FR 12517, Mar. 25, 1983)
16 CFR 300.34 Reference to existing guaranty on labels not permitted.
No representation or suggestion that a wool product is guaranteed
under the act by the Government, or any branch thereof shall be made on
or in the stamp, tag, label, or other mark of identification, applied or
affixed to wool products.
16 CFR 300.34 General
16 CFR 300.35 Hearings under section 4(d) of the act.
Hearings under section 4(d) of the act will be held when deemed by
the Commission to be in the public interest. Interested persons may
file applications for such hearings. Such applications shall be filed
in quadruplicate and shall contain a detailed technical description of
the class or classes of articles or products regarding which applicant
requests a determination and announcement by the Commission concerning
express or implied representations of fiber content of articles or
concerning insignificant or inconsequential textile content of products.
(Sec. 4(d), 54 Stat. 1129; 15 U.S.C. 68b(d))
16 CFR 300.35 PART 301 -- RULES AND REGULATIONS UNDER FUR PRODUCTS
LABELING ACT
Sec.
301.0 Fur products name guide.
301.1 Terms defined.
301.2 General requirements.
301.3 English language requirements.
301.4 Abbreviations or ditto marks prohibited.
301.5 Use of Fur Products Name Guide.
301.6 Animals not listed in Fur Products Name Guide.
301.7 Describing furs by certain breed names prohibited.
301.8 Use of terms ''Persian Lamb,'' ''Broadtail Lamb,'' and
''Persian-broadtail Lamb'' permitted.
301.9 Use of terms ''Mouton Lamb'' and ''Shearling Lamb'' permitted.
301.10 Use of term ''Broadtail-processed Lamb'' permitted.
301.11 Fictitious or non-existing animal designations prohibited.
301.12 Country of origin of imported furs.
301.13 Fur products having furs with different countries of origin.
301.14 Country of origin of used furs.
301.15 Designation of section producing domestic furs permitted.
301.16 Disclosure of origin of certain furs raised or taken in United
States.
301.17 Misrepresentation of origin of furs.
301.18 Passing off domestic furs as imported furs prohibited.
301.19 Pointing, dyeing, bleaching or otherwise artificially
coloring.
301.20 Fur products composed of pieces.
301.21 Disclosure of used furs.
301.22 Disclosure of damaged furs.
301.23 Second-hand fur products.
301.24 Repairing, restyling and remodeling fur products for consumer.
301.25 Name required to appear on labels. and invoices.
301.26 Registered identification number.
301.27 Label and method of affixing.
301.28 Labels to be avoided.
301.29 Requirements in respect to disclosure on label.
301.30 Arrangement of required information on label.
301.31 Labeling of fur products consisting of two or more units.
301.32 Fur product containing material other than fur.
301.33 Labeling of samples.
301.34 Misbranded or falsely invoiced fur products.
301.35 Substitution of labels.
301.36 Sectional fur products.
301.37 Manner of invoicing furs and fur products.
301.38 Advertising of furs and fur products.
301.39 Exempted fur products.
301.40 Item number or mark to be assigned to each fur product.
301.41 Maintenance of records.
301.42 Deception as to nature of business.
301.43 Use of deceptive trade or corporate names, trademarks or
graphic representations prohibited.
301.44 Misrepresentation of prices.
301.45 Representations as to construction of fur products.
301.46 Reference to guaranty by Government prohibited.
301.47 Form of separate guaranty.
301.48 Continuing guaranties.
301.48a Guaranties not received in good faith.
301.49 Deception in general.
Authority: 15 U.S.C. 69 et seq.
16 CFR 300.35 Name Guide
16 CFR 301.0 Fur products name guide.
(Secs. 7, 8, 65 Stat. 179; 15 U.S.C. 69e, 69f)
(17 FR 1205, Feb. 3, 1952, as amended at 26 FR 10446, Nov. 4, 1961;
32 FR 6023, Apr. 15, 1967)
16 CFR 301.0 Regulations
Source: 17 FR 6075, July 8, 1952, unless otherwise noted.
16 CFR 301.1 Terms defined.
(a) As used in this part, unless the context otherwise specifically
requires:
(1) The term act means the Fur Products Labeling Act (approved Aug.
8, 1951, Pub. L. 110, 82d Cong., 1st Sess.; 15 U.S.C.A. sec. 69; 65
Stat. 179).
(2) The terms rule, rules, regulations, and rules and regulations,
mean the rule; and regulations prescribed by the Commission pursuant to
section 8 (b) of the act.
(3) The definitions of terms contained in section 2 of the act shall
be applicable also to such terms when used in rules promulgated under
the act.
(4) The terms Fur Products Name Guide and Name Guide mean the
register of names of hair fleece and fur bearing animals issued by the
Commission on February 8, 1952, pursuant to the provisions of section 7
(a) of the act.
(5) The terms required information and information required mean the
information required to be disclosed on labels, invoices and in
advertising under the act and rules and regulations, and such further
information as may be permitted by the regulations, when and if used.
(b) The term wearing apparel as used in the definition of a fur
product in section 2(d) of the Act means (1) Any articles of clothing or
covering for any part of the body; and (2) shall include any assembled
furs, used furs, or waste furs, in attached form, including mats, plates
or garment shells or furs flat off the board, and furs which have been
dyed, tip-dyed, bleached or artificially colored, intended for use as or
in wearing apparel: Provided, however, That the provisions of section
4(2) of the Act shall not be applicable to those fur products set out in
paragraph (b)(2) of this section.
(17 FR 6075, July 8, 1952, as amended at 26 FR 3186, Apr. 14, 1961)
16 CFR 301.2 General requirements.
(a) Each and every fur product, except those exempted under 301.39
of this part, shall be labeled and invoiced in conformity with the
requirements of the act and rules and regulations.
(b) Each and every fur shall be invoiced in conformity with the
requirements of the act and rules and regulations.
(c) Any advertising of fur products or furs shall be in conformity
with the requirements of the act and rules and regulations.
16 CFR 301.3 English language requirements.
All information required under the act and rules and regulations to
appear on labels, invoices, and in advertising, shall be set out in the
English language. If labels, invoices or advertising matter contain any
of the required information in a language other than English, all of the
required information shall appear also in the English language. The
provisions of this section shall not apply to advertisements in foreign
language newspapers or periodicals, but such advertising shall in all
other respects comply with the act and regulations.
16 CFR 301.4 Abbreviations or ditto marks prohibited.
In disclosing required information in labeling and advertising, words
or terms shall not be abbreviated or designated by the use of ditto
marks but shall be spelled out fully, and in invoicing the required
information shall not be abbreviated but shall be spelled out fully.
16 CFR 301.5 Use of Fur Products Name Guide.
(a) The Fur Products Name Guide ( 301.0 of this part) is set up in
four columns under the headings of Name, Order, Family and
Genus-Species. The applicable animal name appearing in the column
headed ''Name'' shall be used in the required information in labeling,
invoicing and advertising of fur products and furs. The scientific
names appearing under the columns headed Order, Family, and
Genus-Species are furnished for animal identification purposes and shall
not be used.
(b) Where the name of the animal appearing in the Name Guide consists
of two separate words the second word shall precede the first in
designating the name of the animal in the required information; as for
example: ''Fox, Black'' shall be disclosed as ''Black Fox.''
16 CFR 301.6 Animals not listed in Fur Products Name Guide.
(a) All furs are subject to the act and regulations regardless of
whether the name of the animal producing the fur appears in the Fur
Products Name Guide.
(b) Where fur is obtained from an animal not listed in the Fur
Products Name Guide it shall be designated in the required information
by the true English name of the animal or in the absence of a true
English name, by the name which properly identifies such animal in the
United States.
16 CFR 301.7 Describing furs by certain breed names prohibited.
If the fur of an animal is described in any manner by its breed,
species, strain or coloring, irrespective of former usage, such
descriptive matter shall not contain the name of another animal either
in the adjective form or otherwise nor shall such description (subject
to any exception contained in this part or animal names appearing in the
Fur Products Name Guide) contain a name in an adjective form or
otherwise which connotes a false geographic origin of the animal. For
example, such designations as ''Sable Mink,'' ''Chinchilla Rabbit,'' and
''Aleutian Mink'' shall not be used.
16 CFR 301.8 Use of terms ''Persian Lamb,'' ''Broadtail Lamb,'' and
''Persian-broadtail Lamb'' permitted.
(a) The term ''Persian Lamb'' may be used to describe the skin of the
young lamb of the Karakul breed of sheep or top-cross breed of such
sheep, having hair formed in knuckled curls.
(b) The term ''Broadtail Lamb'' may be used to describe the skin of
the prematurely born, stillborn, or very young lamb of the Karakul breed
of sheep or top-cross breed of such sheep, having flat light-weight fur
with a moire pattern.
(c) The term ''Persian-broadtail Lamb'' may be used to describe the
skin of the very young lamb of the Karakul breed of sheep or top-cross
breed of such sheep, having hair formed in flattened knuckled curls with
a moire pattern.
(d) The terms ''Persian Lamb'', ''Broadtail Lamb'', or
''Persian-broadtail Lamb'' shall not be used to describe: (1) The
so-called Krimmer, Bessarabian, Rumanian, Shiraz, Salzfelle, Metis,
Dubar, Meshed, Caracul, Iranian, Iraqi, Chinese, Mongolian, Chekiang, or
Indian lamb skins, unless such lamb skins conform with the requirements
set out in paragraph (a), (b), or (c) of this section respectively; or
(2) any other lamb skins having hair in a wavy or open curl pattern.
16 CFR 301.9 Use of terms ''Mouton Lamb'' and ''Shearling Lamb''
permitted.
(a) The term ''Mouton Lamb'' may be used to describe the skin of a
lamb which has been sheared, the hair straightened, chemically treated,
and thermally set to produce a moisture repellant finish; as for
example:
Dyed Mouton Lamb
(b) The term ''Shearling Lamb'' may be used to describe the skin of a
lamb which has been sheared and combed.
(17 FR 6075, July 8, 1952, as amended at 26 FR 3186, Apr. 14, 1961)
16 CFR 301.10 Use of term ''Broadtail-processed Lamb'' permitted.
The term ''Broadtail-processed Lamb'' may be used to describe the
skin of a lamb which has been sheared, leaving a moire hair pattern on
the pelt having the appearance of the true fur pattern of ''Broadtail
Lamb''; as for example:
Dyed Broadtail-processed Lamb
Fur origin: Argentina
16 CFR 301.11 Fictitious or non-existing animal designations
prohibited.
No trade names, coined names, nor other names or words descriptive of
a fur as being the fur of an animal which is in fact fictitious or
non-existent shall be used in labeling, invoicing or advertising of a
fur or fur product.
16 CFR 301.12 Country of origin of imported furs.
(a)(1) In the case of furs imported into the United States from a
foreign country, the country of origin of such furs shall be set forth
as a part of the information required by the act in invoicing and
advertising.
(2) In the case of fur products imported into the United States from
a foreign country, or fur products made from furs imported into the
United States from a foreign country, the country of origin of the furs
contained in such products shall be set forth as a part of the
information required by the act in labeling, invoicing and advertising.
(b) The term ''country'' means the political entity known as a
nation. Colonies, possessions or protectorates outside the boundaries
of the mother country shall be considered separate countries and the
name thereof shall be deemed acceptable in designating the ''country of
origin'' unless the Commission shall otherwise direct.
(c) The country in which the animal producing the fur was raised, or
if in a feral state, was taken, shall be considered the ''country of
origin.''
(d) When furs are taken within the territorial waters of a country,
such country shall be considered the ''country of origin.'' Furs taken
outside such territorial waters, or on the high seas, shall have as
their country of origin the country having the nearest mainland.
(e)(1) The English name of the country of origin shall be used.
Abbreviations which unmistakably indicate the name of a country, such as
''S.W. Africa'' for ''Southwest Africa,'' and ''Gt. Britain'' for
''Great Britain'' are acceptable. Abbreviations such as ''U.S.S.R.''
for the ''Union of Soviet Socialist Republics'' or ''Russia'' or
''N.Z.'' for ''New Zealand'' are not acceptable.
(2) The name of the country of origin, when used as a part of the
required information in labeling shall be preceded by the term ''fur
origin''; as for example:
Dyed Muskrat
Fur Origin: Russia
or
Dyed China Mink
Fur Origin: China
(3) In addition to the required disclosure of country of origin the
name of the country may also appear in adjective form in connection with
the name of the animal; as for example:
Tip-dyed Canadian American Sable
Fur Origin: Canada
or
Russian Sable
Fur Origin: Russia
(f) Nothing in this section shall be construed as limiting in any way
the information required to be disclosed on labels under the provisions
of any Tariff Act of the United States or regulations prescribed by the
Secretary of the Treasury.
(17 FR 6075, July 8, 1952, as amended at 26 FR 3186, Apr. 14, 1961)
16 CFR 301.13 Fur products having furs with different countries of
origin.
When a fur product is composed of furs with different countries of
origin the names of such countries shall be set forth in the required
information in the order of predominance by surface areas of the furs in
the fur product.
16 CFR 301.14 Country of origin of used furs.
When the country of origin of used furs is unknown, and no
representations are made directly or by implication with respect
thereto, this fact shall be set out as a part of the required
information in lieu of the country of origin as ''Fur origin:
Unknown.''
16 CFR 301.15 Designation of section producing domestic furs permitted.
In the case of furs produced in the United States the name of the
section or area producing the furs used in the fur product may be set
out in connection with the name of the animal; as for example:
Dyed Fur Seal
Fur origin: Alaska
or
Dyed Muskrat
Fur origin: Minnesota
16 CFR 301.16 Disclosure of origin of certain furs raised or taken in
United States.
If the name of any animal set out in the Fur Products Name Guide or
term permitted by the regulations to be used in connection therewith
connotes foreign origin and such animal is raised or taken in the United
States, furs obtained therefrom shall be described in disclosing the
required information as having the United States as the country of
origin; as for example:
Dyed Persian Lamb
Fur origin: United States
or
Mexican Raccoon
Fur origin: United States
16 CFR 301.17 Misrepresentation of origin of furs.
No misleading nor deceptive statements as to the geographical or
zoological origin of the animal producing a fur shall be used directly
or indirectly in labeling, invoicing or advertising furs or fur
products.
16 CFR 301.18 Passing off domestic furs as imported furs prohibited.
No domestic furs nor fur products shall be labeled, invoiced or
advertised in such a manner as to represent directly or by implication
that they have been imported.
16 CFR 301.19 Pointing, dyeing, bleaching or otherwise artificially
coloring.
(a) Where a fur or fur product is pointed or contains or is composed
of bleached, dyed or otherwise artificially colored fur, such facts
shall be disclosed as a part of the required information in labeling,
invoicing and advertising.
(b) The term ''pointing'' means the process of inserting separate
hairs into furs or fur products for the purpose of adding guard hairs,
either to repair damaged areas or to simulate other furs.
(c) The term ''bleaching'' means the process for producing a lighter
shade of a fur, or removing off-color spots and stains by a bleaching
agent.
(d) The term ''dyeing'' (which includes the processes known in the
trade of tipping the hair or fur, feathering, and beautifying) means the
process of applying dyestuffs to the hair or fur, either by immersion in
a dye bath or by application of the dye by brush, feather, spray, or
otherwise, for the purpose of changing the color of the fur or hair, or
to accentuate its natural color. When dyestuff is applied by immersion
in a dye bath or by application of the dye by brush, feather, or spray,
it may respectively be described as ''vat dyed'', ''brush dyed'',
''feather dyed'', or ''spray dyed'', as the case may be. When dyestuff
is applied only to the ends of the hair or fur, by feather or otherwise,
it may also be described as ''tip-dyed''. The application of dyestuff
to the leather or the skin (known in the trade as ''tipping'', as
distinguished from tip-dyeing the hair or fur as above described) and
which does not affect a change of, nor accentuate the natural color of
the hair or fur, shall not be considered as ''dyeing''. When
fluorescent dye is applied to a fur or fur product it may be described
as ''brightener added''.
(e) The term ''artificial coloring'' means any change or improvement
in color of a fur or fur product in any manner other than by pointing,
bleaching, dyeing, or tip-dyeing, and shall be described in labeling,
invoicing and advertising as ''color altered'' or ''color added''.
(f) The term ''blended'' shall not be used as a part of the required
information to describe the pointing, bleaching, dyeing, tip-dyeing, or
otherwise artificially coloring of furs.
(g) Where a fur or fur product is not pointed, bleached, dyed,
tip-dyed, or otherwise artificially colored it shall be described as
''natural''.
(h) Where any fur or fur product is dressed, processed or treated
with a solution or compound containing any metal and such compound or
solution effects any change or improvement in the color of the hair,
fleece or fur fiber, such fur or fur product shall be described in
labeling, invoicing and advertising as ''color altered'' or ''color
added''.
(i)(1) Any person dressing, processing or treating a fur pelt in such
a manner that it is required under paragraph (e) or (h) of this section
to be described as ''color altered'' or ''color added'' shall place a
black strip at least one half inch in width across the leather side of
the skin immediately above the rump or place a stamp with a solid black
center in the form of either a two inch square or a circle at least two
inches in diameter on the leather side of the pelt and shall use black
ink for all other stamps or markings on the leather side of the pelt.
(2) Any person dressing, processing or treating a fur pelt which
after processing is considered natural under paragraph (g) of this
section shall place in white stripe at least one-half inch in width
across the leather side of the skin immediately above the rump or place
a stamp with a solid white center in the form of either a 2-inch square
or a circle at least 2 inches in diameter or the leather side of the
pelt and shall use white ink for all other stamps or markings on the
leather side of the pelt.
(3) Any person dressing, processing or treating a fur pelt in such a
manner that it is considered dyed under paragraph (d) of this section
shall place a yellow stripe at least one-half inch in width across the
leather side immediately above the rump or place a stamp with a solid
yellow center in the form of either a 2-inch square or a circle at least
2 inches in diameter on the leather side of the pelt and shall use
yellow ink for all other stamps or markings on the leather side of the
pelt.
(4) In lieu of the marking or stamping otherwise required by
paragraphs (i) (1), (2), and (3) of this section, any person dressing,
processing or treating a fur pelt so as to be subject to the stamping or
marking requirements of this paragraph may stamp the leather side of the
pelt with the appropriate truthful designation ''dyed'', ''color
altered'', ''color added'', or ''natural'', as the case may be, in such
manner that the stamp will not be obliterated or mutilated by further
processing and will remain clearly legible until the finished fur
product reaches the ultimate consumer.
(5) Where, after assembling, fur garment shells, mats, plates or
other assembled furs are processed or treated in such a manner as to
fall within the stamping or marking provisions of this paragraph, such
assembled furs, in lieu of the stamping or marking of each individual
pelt or piece, may be appropriately stamped on the leather side as
provided in this paragraph in such a manner that the stamp will remain
on the finished fur product and clearly legible until it reaches the
ultimate consumer and will not be mutilated or obliterated by further
processing.
(j) Any person who shall process a fur pelt in such a manner that
after such processing it is no longer considered as natural shall
clearly, conspicuously and legibly stamp on the leather side of the pelt
and on required invoices relating thereto a lot number or other
identifying number which relates to such records of the processor as
will show the source and disposition of the pelts and the details of the
processing performed. Such person shall also stamp his name or
registered identification number on the leather side of the pelt.
(k) Any person who processes fur pelts of a type which are always
considered as dyed under paragraph (d) of this section after processing
or any person who processes fur pelts which are always natural at the
time of sale to the ultimate consumer, which pelts for a valid reason
cannot be marked or stamped as provided in this section, may file an
affidavit with the Federal Trade Commission's Bureau of Textiles and
Furs setting forth such facts as will show that the pelts are always
dyed or natural as the case may be and that the stamping of such pelts
cannot be reasonably accomplished. If the Bureau of Textiles and Furs
is satisfied that the public interest will be protected by the filing of
the affidavit it may accept such affidavit and advise the affiant that
marking of the fur pelts themselves as provided in this section will be
unnecessary until further notice. Any person filing such an affidavit
shall promptly notify the Commission of any change in circumstances with
respect to its operations.
(l) Any person subject to this section who incorrectly marks or fails
to mark fur pelts as provided in paragraphs (i) and (j) of this section
shall be deemed to have misbranded such products under section 4(l) of
the Act. Any person subject to this section who furnishes a false or
misleading affidavit under paragraph (k) of this section or fails to
give the notice required by paragraph (k) of this section shall be
deemed to have neglected and refused to maintain the records required by
section 8(d) of the Act.
(1) In connection with paragraph (h) of this section, the following
method may be used for detection of parts per million of iron and copper
in hairs from fur pelts including hairs from mink pelts. Procedure for
detection of parts per million of iron and copper in hairs from fur
pelts including mink hairs.
(2) A recommended method for preparation of samples would be: --
Carefully pluck hair samples from 10 to 15 different representative
sites on the pelt or garment. This can best be accomplished by using a
long nose stainless steel pliers with a tip diameter of 1/16 inch. The
pliers should be inserted at the same angle as the guard hairs with the
tip opened to 1/4 inch. After contact with the hide, the tip should be
raised about 1/4 inch, closed tightly and pulled quickly and firmly to
remove the hair.
(3) Place an accurately weighed sample of approximately .1000 grams
of mink hair into a beaker with 20 ml. concentrated nitric acid.
Evaporate just to dryness on a hot plate.
(4) If there is any organic matter still present, add 10 ml. of
concentrated nitric acid (see paragraph 7) and again evaporate just to
dryness on a hot plate. This step should be repeated until the nitric
acid solution becomes clear to light green. Add 10 ml. of 1%
hydrochloric acid to the dried residue in the beaker. Warm on a hot
plate to insure complete solution of the residue.
(5) A recommended analytical procedure would be atomic absorption
spectrophotometry. In testing for iron, the atomic absorption
instrument must have the capability of a 2 angstrom band pass at the
2483 A line. When analyzing for iron the air-acetylene flame should be
as lean as possible.
(6) A reagent blank should be carried through the entire procedure as
outlined above and the final results corrected for the amounts of iron
and copper found in the reagent blank.
(7) If facilities are available for handling perchloric acid, a
preferred alternate to the additional nitric acid treatment would be to
add 2 ml. of perchloric acid and 8 ml. of nitric acid, cover the
beaker with a watch glass and allow the solutions to become clear to
light green before removal of the watch glass and evaporation just to
dryness.
(17 FR 6075, July 8, 1952, as amended at 26 FR 3186, Apr. 14, 1961;
34 FR 381, Jan. 10, 1969; 36 FR 5689, Mar. 26, 1971; 41 FR 2636, Jan.
19, 1976; 53 FR 31314, Aug. 18, 1988)
16 CFR 301.20 Fur products composed of pieces.
(a) Where fur products, or fur mats and plates, are composed in whole
or in substantial part of paws, tails, bellies, sides, flanks, gills,
ears, throats, heads, scrap pieces, or waste fur, such fact shall be
disclosed as a part of the required information in labeling, invoicing
and advertising. Where a fur product is made of the backs of skins such
fact may be set out in labels, invoices and advertising.
(b) Where fur products, or fur mats and plates, are composed wholly
or substantially of two or more of the parts set out in paragraph (a) of
this section or one or more of such parts and other fur, disclosure in
respect thereto shall be made by naming such parts or other fur in order
of predominance by surface area.
(c) The terms ''substantial part'' and ''substantially'' mean ten per
centum (10 percent) or more in surface area.
(d) The term ''assembled'' shall not be used in lieu of the terms set
forth in paragraph (a) of this section to describe fur products or fur
mats and plates composed of such parts.
16 CFR 301.21 Disclosure of used furs.
(a) When fur in any form has been worn or used by an ultimate
consumer it shall be designated ''used fur'' as a part of the required
information in invoicing and advertising.
(b) When fur products or fur mats and plates are composed in whole or
in part of used fur, such fact shall be disclosed as a part of the
required information in labeling, invoicing and advertising; as for
example:
Leopard
Used Fur
or
Dyed Muskrat
Contains Used Fur
16 CFR 301.22 Disclosure of damaged furs.
(a) The term ''damaged fur,'' as used in this part, means a fur,
which, because of a known or patent defect resulting from natural causes
or from processing, is of such a nature that its use in a fur product
would decrease the normal life and durability of such product.
(b) When damaged furs are used in a fur product, full disclosure of
such fact shall be made as a part of the required information in
labeling, invoicing, or advertising such product; as for example:
Mink
Fur origin: Canada
Contains Damaged Fur
16 CFR 301.23 Second-hand fur products.
When a fur product has been used or worn by an ultimate consumer and
is subsequently marketed in its original, reconditioned, or rebuilt form
with or without the addition of any furs or used furs, the requirements
of the act and regulations in respect to labeling, invoicing and
advertising of such product shall be applicable thereto, subject,
however, to the provisions of 301.14 of this part as to country of
origin requirement, and in addition, as a part of the required
information such product shall be designated ''Second-hand'',
''Reconditioned-Second-hand'', or ''Rebuilt-Second-hand'', as the case
may be.
16 CFR 301.24 Repairing, restyling and remodeling fur products for
consumer.
When fur products owned by and to be returned to the
ultimate-consumer are repaired, restyled or remodeled and used fur or
fur is added thereto, labeling of the fur product shall not be required.
However, the person adding such used fur or fur to the fur product, or
who is responsible therefor, shall give to the owner an invoice
disclosing the information required under the act and regulations
respecting the used fur or fur added to the fur product, subject,
however, to the provisions of 301.14 of this part as to country of
origin requirements.
16 CFR 301.25 Name required to appear on labels and invoices.
The name required by the act to be used on labels and invoices shall
be the full name under which the person is doing business, and no
trade-mark, trade name nor other name which does not constitute such
full name shall be used in lieu thereof.
16 CFR 301.26 Registered identification number.
(a) Registered numbers for use as the required identification in lieu
of the name on fur product labels as provided in section 4(2)(E) of the
act will be issued by the Commission to qualified persons residing in
the United States upon receipt of an application duly executed in the
form set out in paragraph (d) of this section.
(b)(1) Registered identification numbers shall be used only by the
person or concern to whom they are issued, and such numbers are not
transferable or assignable.
(2) Any change in name, business address, or legal business status of
a person to whom a registered identification number has been assigned
shall be reported promptly to the Federal Trade Commission.
(3) Registered identification numbers shall be subject to
cancellation whenever any such number was procured or has been used
improperly or contrary to the requirements of the act and regulations,
or when otherwise deemed necessary in the public interest.
(c) Registered identification numbers assigned under this rule may be
used on labels required in labeling products subject to the provisions
of the Wool Products Labeling Act and Textile Fiber Products
Identification Act, and numbers previously assigned or to be assigned by
the Commission under such Acts may be used as and for the required name
in labeling under this Act. When so used by the person or firm to whom
assigned, the use of the numbers shall be construed as identifying and
binding the applicant as fully and in all respects as though assigned
under the specific Act for which it is used.
(d) Form of application for registered identification number (printed
forms are available upon request at the offices of the Commission):
Insert Illus. 456B
(17 FR 6075, July 8, 1952, as amended at 26 FR 3187, Apr. 14, 1961;
48 FR 12516, Mar. 25, 1983)
16 CFR 301.27 Label and method of affixing.
At all times during the marketing of a fur product the required label
shall have a minimum dimension of one and three-fourths (1 3/4) inches
by two and three fourths (2 3/4) inches. Such label shall be of a
material of sufficient durability and shall be conspicuously affixed to
the product in a secure manner and with sufficient permanency to remain
thereon throughout the sale, resale, distribution and handling incident
thereto, and shall remain on or be firmly affixed to the respective
product when sold and delivered to the purchaser and purchaser-consumer
thereof.
16 CFR 301.28 Labels to be avoided.
Labels which are insecurely or inconspicuously attached, or which in
the course of offering the fur product for sale, selling, transporting,
marketing, or handling incident thereto, are likely to become detached,
indistinct, obliterated, illegible, mutilated, inaccessible or
inconspicuous shall not be used.
16 CFR 301.29 Requirements in respect to disclosure on label.
(a) The required information shall be set out on the label in a
legible manner and in not smaller than pica or twelve (12) point type,
and all parts of the required information shall be set out in letters of
equal size and conspicuousness. All of the required information with
respect to the fur product shall be set out on one side of the label and
no other information shall appear on such side except the lot or style
designation and size. The lot or style designation may include
non-deceptive terms indicating the type of garment, color of fur, and
brand name for fur. The other side of the label may be used to set out
any nonrequired information which is true and non-deceptive and which is
not prohibited by the Act and regulations, but in all cases the animal
name used shall be that set out in the Name Guide.
(b) The required information may be set out in hand printing provided
it conforms to the requirements of paragraph (a) of this section, and is
set out in indelible ink in a clear, distinct, legible and conspicuous
manner. Handwriting shall not be used in setting out any of the
required information on the label.
(17 FR 6075, July 8, 1952, as amended at 26 FR 3187, Apr. 14, 1961)
16 CFR 301.30 Arrangement of required information on label.
(a) The applicable parts of the information required with respect to
the fur to appear on labels affixed to fur products shall be set out in
the following sequence:
(1) That the fur product contains or is composed of natural, pointed,
bleached, dyed, tip-dyed or otherwise artificially colored fur, when
such is the fact;
(2) That the fur product contains fur which has been sheared,
plucked, or letout, when such is the fact;
(3) That the fur contained in the fur product originated in a
particular country (when so used the name of the country should be
stated in the adjective form), when such is the fact;
(4) The name or names (as set forth in the Fur Products Name Guide)
of the animal or animals that produced the fur;
(5) That the fur product is composed in whole of backs or in whole or
in substantial part of paws, tails, bellies, sides flanks, gills, ears,
throats, heads, scrap pieces, or waste fur, when such is the fact;
(6) The name of the country of origin of any imported furs used in
the fur product;
(7) Any other information required or permitted by the Act and
regulations with respect to the fur.
Note: The information set out in paragraphs (a) (2) and (3) of this
section and the term ''backs'' set out in paragraph (a)(5) of this
section are not mandatory, but when and if used, shall be set out in the
sequence noted.
(b) That part of the required information with respect to the name or
registered identification number of the manufacturer or dealer may
precede or follow the required information set out in paragraph (a) of
this section.
(17 FR 6075, July 8, 1952, as amended at 26 FR 3187, Apr. 14, 1961)
16 CFR 301.31 Labeling of fur products consisting of two or more units.
(a) The label shall be attached to and appear upon each garment or
separate article of wearing apparel subject to the act irrespective of
whether two or more garments or articles may be sold or marketed
together or in combination with each other.
(b) In the case of fur products manufactured for use in pairs or
groups, only one label will be required if all units in the pair or
group are of the same fur and have the same country of origin, and are
firmly attached to each other when marketed and delivered in the
channels of trade and to the purchaser-consumer and the information set
out on the label is clearly applicable to each unit in the pair or group
and supplies the information required under the act and rules and
regulations.
16 CFR 301.32 Fur product containing material other than fur.
(a) Where a fur product contains a material other than fur the
content of which is required to be disclosed on labels under other
statutes administered by the Commission, such information may be set out
on the same side of the label and in immediate conjunction with the
information required under this Act; as for example:
100% Wool
Interlining -- 100% Recycled Wool
Trim -- Dyed Muskrat
Fur Origin: Canada
or
Body: 100% Cotton
Lining: 100% Nylon
Collar: Dyed Mouton Lamb
Fur Origin: Argentina
(b) Information which may be desirable or necessary to fully inform
the purchaser of other material content of a fur product may be set out
on the same side of the label as used for disclosing the information
required under the Act and rules and regulations; as for example:
Body -- Leather
Trim -- Dyed Mink
(26 FR 3187, Apr. 14, 1961, as amended at 45 FR 44263, July 1, 1980)
16 CFR 301.33 Labeling of samples.
Where samples of furs or fur products subject to the act are used to
promote or effect sales of fur products, said samples, as well as the
fur products purchased therefrom, shall be labeled to show the
information required under the act and regulations.
16 CFR 301.34 Misbranded or falsely invoiced fur products.
(a) If a person subject to section 3 of the Act with respect to a fur
product finds that a fur product is misbranded he shall correct the
label or replace same with a substitute containing the required
information.
(b) If a person subject to section 3 of the Act with respect to a fur
or fur product finds that the invoice issued to him is false or
deceptive, he shall, in connection with any invoice issued by him in
relation to such fur or fur product correctly set forth all of the
information required by the Act and regulations in relation to such fur
or fur product.
(26 FR 3187, Apr. 14, 1961)
16 CFR 301.35 Substitution of labels.
(a) Persons authorized under the provisions of section 3(e) of the
act to substitute labels affixed to fur products may do so, provided the
substitute label is complete and carries all the information required
under the act and rules and regulations in the same form and manner as
required in respect to the original label. The substitute label need
not, however, show the name or registered number appearing on the
original label if the name or registered number of the person who
affixes the substitute appears thereon.
(b) The original label may be used as a substitute label provided the
name or registered number of the person making the substitution,
together with the item number or mark assigned by such person to said
fur product for record purposes is inserted thereon without interfering
with or obscuring in any manner other required information. In
connection with such substitution the name or registered number as well
as any record numbers appearing on the original label may be removed.
(c) Persons substituting labels under the provision of this section
shall maintain the records required under 301.41 of this part.
16 CFR 301.36 Sectional fur products.
(a) Where a fur product is composed of two or more sections
containing different animal furs the required information with respect
to each section shall be separately set forth in labeling, invoicing or
advertising; as for example:
Dyed Rabbit
Fur origin: France
Trimming: Dyed Mouton-processed Lamb
Fur origin: Argentina
or
Body: Dyed Kolinsky
Fur origin: Russia
Tail: Dyed Mink
Fur origin: Canada
(b) The provisions of this section shall not be interpreted so as to
require the disclosure of very small amounts of different animal furs
added to complete a fur product or skin such as the ears, snoot, or
under part of the jaw.
16 CFR 301.37 Manner of invoicing furs and fur products.
(a) In the invoicing of furs and fur products, all of the required
information shall be set out in a clear, legible, distinct and
conspicuous manner. The invoice shall be issued at the time of the sale
or other transaction involving furs or fur products, but the required
information need not be repeated in subsequent periodic statements of
account respecting the same furs or fur products.
(b) Non-required information or representations appearing in the
invoicing of furs and fur products shall in no way be false or deceptive
nor include any names, terms or representations prohibited by the act
and regulations. Nor shall such information or representations be set
forth or used in such manner as to interfere with the required
information.
16 CFR 301.38 Advertising of furs and fur products.
(a)(1) In advertising furs or fur products, all parts of the required
information shall be stated in close proximity with each other and, if
printed, in legible and conspicuous type of equal size.
(2) Non-required information or representations appearing in the
advertising of furs and fur products shall in no way be false or
deceptive nor include any names, terms or representations prohibited by
the act and regulations. Nor shall such information or representations
be set forth or used in such manner as to interfere with the required
information.
(b)(1) In general advertising of a group of fur products composed in
whole or in part of imported furs having various countries of origin,
the disclosure of such countries of origin may, by reference, be made
through the use of the following statement in the advertisement in a
clear and conspicuous manner:
Fur products labeled to show country of origin of imported furs
(2) The provisions of this paragraph shall not be applicable in the
case of catalogue, mail order, or other types of advertising which
solicit the purchase of fur products in such a manner that the purchaser
or prospective purchaser would not have the opportunity of viewing the
product and attached label prior to delivery thereof.
(c) In advertising of an institutional type referring only to the
general nature or kind of business conducted or to the general
classification of the types or kinds of furs or fur products
manufactured or handled, and which advertising is not intended to aid,
promote, or assist directly or indirectly in the sale or offering for
sale of any specific fur products or furs, the required information need
not be set forth: Provided, however, That if reference is made in the
advertisement to a color of the fur which was caused by dyeing,
bleaching or other artificial coloring, such facts shall be disclosed in
the advertising, and provided further, that when animal names are used
in such advertising, such names shall be those set forth in the Fur
Products Name Guide. For example, the kind of advertising contemplated
by this paragraph is as follows:
X Fur Company
Famous for its Black Dyed Persian Lamb Since 1900
or
X Company
Manufacturers of Fine Muskrat Coats, Capes and Stoles
16 CFR 301.39 Exempted fur products.
(a) Where the cost of any fur trim or other manufactured fur or furs
contained in a fur product, exclusive of any costs incident to its
incorporation therein, does not exceed twenty dollars ($20) to the
manufacturer of the finished fur product, or where a manufacturer's
selling price of a fur product does not exceed twenty dollars ($20) and
the provisions of paragraphs (b) and (c) of this section are met, the
fur products shall be exempted from the requirements of the Act and
regulations; provided, however, that if the fur product is made of or
contains any used fur, or if the fur product itself is or purports to be
the whole skin of an animal with the head, ears, paws and tail, such as
a choker or scarf, the fur product is to be labeled, invoiced and
advertised in accordance with the requirements of the Act and
regulations regardless of cost of the fur used in the fur product or
manufacturer's selling price. The exemption provided for herein shall
not be applicable (1) If any false, deceptive or misleading
representations as to the fur contained in the fur product are made; or
(2) if any representations as to the fur are made in labeling, invoicing
or advertising without disclosing:
(i) In the case of labels, the information required to be disclosed
under section 4(2) (A), (C), and (D) of the Act; (ii) in the case of
advertising, the information required to be disclosed under section 5(a)
(1), (3), and (4) of the Act; and (iii) in the case of invoicing, the
information required to be disclosed under section 5(b)(1) (A), (C), and
(D) of the Act.
(b) Where a fur product is exempt under this section from the
requirements of the act and regulations, the manufacturer thereof shall
maintain, in addition to the other records required under the act and
regulations, adequate records showing the cost of the fur used in such
fur product, or copies of invoices showing the manufacturer's selling
price of the fur product, provided such price is used as the basis for
exemption. Such records shall be preserved for at least three years.
(c) Where a fur product is exempt under this section and the
manufacturer's selling price exceeds seven dollars ($7.00), the
manufacturer's or wholesaler's invoice shall carry information
indicating such fur product is exempt from the provisions of the Act and
regulations; as for example: ''fpl exempt.''
(17 FR 6075, July 8, 1952, as amended at 26 FR 3187, Apr. 14, 1961;
26 FR 3771, May 2, 1961; 34 FR 381, Jan. 10, 1969)
16 CFR 301.40 Item number or mark to be assigned to each fur product.
(a) For the purpose of identification, each fur product shall be
assigned a separate item number or mark by the manufacturer thereof:
Provided, however, That where all of the furs used in a group of fur
products are obtained through the same purchase and from the same source
and all of the required information with respect to such furs is
identical, then a single item number or mark may be assigned to identify
all of the fur products in such group. Each number or mark so assigned
shall appear on the required label and invoice pertaining to such
product and used for the identification thereof in the records required
by 301.41 of this part.
(b) Any subsequent dealer in fur products may assign to each fur
product handled a different item number or mark to be used on the
required label and invoice pertaining to such product, in lieu of that
of the manufacturer or other supplier, and for the identification of
such fur product in the records required by 301.41 of this part.
16 CFR 301.41 Maintenance of records.
(a) Pursuant to section 3(e) and section 8(d)(1), of the Act, each
manufacturer or dealer in fur products or furs (including dressers,
dyers, bleachers and processors), irrespective of whether any guaranty
has been given or received, shall maintain records showing all of the
required information relative to such fur products or furs in such
manner as will readily identify each fur or fur product manufactured or
handled. Such records shall show:
(1) That the fur product contains or is composed of natural, pointed,
bleached, dyed, tip-dyed or otherwise artificially colored fur, when
such is the fact;
(2) That the fur product contains used fur, when such is the fact;
(3) The name or names (as set forth in the Fur Products Name Guide)
of the animal or animals that produced the fur;
(4) That the fur product is composed in whole or in substantial part
of paws, tails, bellies, sides, flanks, gills, ears, throats, heads,
scrap pieces, or waste fur, when such is the fact;
(5) The name of the country of origin of any imported furs used in
the fur products;
(6) The name, or other identification issued and registered by the
Commission, of one or more of the persons who manufacture, import, sell,
advertise, offer, transport or distribute the fur product in commerce.
(7) The item number assigned, or reassigned, to each fur or fur
product as set out in 301.40
(b) The purpose of the records is to permit a determination that the
requirements of the Act and Regulations have been met and to establish a
traceable line of continuity from raw material through processing to
finished product. The records shall be preserved for at least three
years.
(53 FR 31315, Aug. 18, 1988)
16 CFR 301.42 Deception as to nature of business.
When necessary to avoid deception, the name of any person other than
the manufacturer of the fur product appearing on the label or invoice
shall be accompanied by appropriate words showing that the fur product
was not manufactured by such person; as for example:
Distributed by ---------------- or ---------------- Wholesalers
16 CFR 301.43 Use of deceptive trade or corporate names, trademarks or
graphic representations prohibited.
No person shall use in labeling, invoicing or advertising any fur or
fur product a trade name, corporate name, trademark or other trade
designation or graphic representation which misleads or deceives or has
the capacity or tendency to mislead or deceive purchasers, prospective
purchasers or the consuming public as to:
(a) The character of the product including method of construction;
(b) The name of the animal producing the fur;
(c) The method or manner of distribution; or
(d) The geographical or zoological origin of the fur.
16 CFR 301.44 Misrepresentation of prices.
(a) No person shall, with respect to a fur or fur product, advertise
such fur or fur product at alleged wholesale prices or at alleged
manufacturers cost or less, unless such representations are true in
fact; nor shall any person advertise a fur or fur product at prices
purported to be reduced from what are in fact fictitious prices, nor at
a purported reduction in price when such purported reduction is in fact
fictitious.
(b) No person shall, with respect to a fur or fur product, advertise
such fur or fur product with comparative prices and percentage savings
claims except on the basis of current market values or unless the time
of such compared price is given.
(c) No person shall, with respect to a fur or fur product, advertise
such fur or fur product as being ''made to sell for'', being ''worth''
or ''valued at'' a certain price, or by similar statements, unless such
claim or representation is true in fact.
(d) No person shall, with respect to a fur or fur product, advertise
such fur or fur product as being of a certain value or quality unless
such claims or representations are true in fact.
(e) Persons making pricing claims or representations of the types
described in paragraphs (a), (b), (c) and (d) of this section shall
maintain full and adequate records disclosing the facts upon which such
claims or representations are based.
(f) No person shall, with respect to a fur or fur product, advertise
such fur or fur product by the use of an illustration which shows such
fur or fur product to be a higher priced product than the one so
advertised.
(g) No person shall, with respect to a fur or fur product, advertise
such fur or fur product as being ''bankrupt stock'', ''samples'', ''show
room models'', ''Hollywood Models'', ''Paris Models'', ''French
Models'', ''Parisian Creations'', ''Furs Worn by Society Women'',
''Clearance Stock'', ''Auction Stock'', ''Stock of a business in a state
of liquidation'', or similar statements, unless such representations or
claims are true in fact.
16 CFR 301.45 Representations as to construction of fur products.
(a) No misleading nor deceptive statements as to the construction of
fur products shall be used directly or indirectly in labeling, invoicing
or advertising such products. (For example, a fur product made by the
skin-on-skin method should not be represented as having been made by the
letout method.)
(b) Where a fur product is made by the method known in the trade as
letting-out, or is made of fur which has been sheared or plucked, such
facts may be set out in labels, invoices and advertising.
16 CFR 301.46 Reference to guaranty by Government prohibited.
No representation nor suggestion that a fur or fur product is
guaranteed under the act by the Government, or any branch thereof, shall
be made in the labeling, invoicing or advertising in connection
therewith.
16 CFR 301.47 Form of separate guaranty.
The following is a suggested form of separate guaranty under section
10 of the act which may be used by a guarantor residing in the United
States, on and as part of an invoice in which the merchandise covered is
listed and specified and which shows the date of such document, the date
of shipment of the merchandise and the signature and address of the
guarantor:
We guarantee that the fur products or furs specified herein are not
misbranded nor falsely nor deceptively advertised or invoiced under the
provisions of the Fur Products Labeling Act and rules and regulations
thereunder.
16 CFR 301.48 Continuing guaranties.
(a)(1) Under section 10 of the Act any person residing in the United
States and handling fur or fur products may file a continuing guaranty
with the Federal Trade Commission. When filed with the Commission a
continuing guaranty shall be fully executed in duplicate. Forms for use
in preparing continuing guaranties shall be supplied by the Commission
upon request.
(2) Continuing guaranties filed with the Commission shall continue in
effect until revoked. The guarantor shall promptly report any change in
business status to the Commission.
(3) The following is the prescribed form of continuing guaranty:
Insert illus. 458B
(b) Any person who has a continuing guaranty on file with the
Commission may, during the effective date of the guaranty, give notice
of such fact by setting forth on the invoice or other paper covering the
marketing or handling of the product guaranteed the following:
''Continuing guaranty under the Fur Products Labeling Act filed with the
Federal Trade Commission.''
(c) Any person who falsely represents in writing that he has a
continuing guaranty on file with the Federal Trade Commission when such
is not a fact shall be deemed to have furnished a false guaranty under
section 10(b) of the Act.
(26 FR 3188, Apr. 14, 1961, as amended at 48 FR 12517, Mar. 25, 1983)
16 CFR 301.48a Guaranties not received in good faith.
A guaranty shall not be deemed to have been received in good faith
within the meaning of section 10(a) of the Act:
(a) Unless the recipient of such guaranty shall have examined the
required label, required invoice and advertisement relating to the fur
product or fur so guaranteed;
(b) If the recipient of the guaranty has knowledge that the fur or
fur product guaranteed is misbranded, falsely invoiced or falsely
advertised.
(26 FR 3188, Apr. 14, 1961)
16 CFR 301.49 Deception in general.
No furs nor fur products shall be labeled, invoiced, or advertised in
any manner which is false, misleading or deceptive in any respect.
16 CFR 301.49 PART 303 -- RULES AND REGULATIONS UNDER THE TEXTILE FIBER
PRODUCTS IDENTIFICATION ACT1099
Sec.
303.1 Terms defined.
303.2 General requirements.
303.3 Fibers present in amounts of less than 5 percent.
303.4 English language requirement.
303.5 Abbreviations, ditto marks, and asterisks prohibited.
303.6 Generic names of fibers to be used.
303.7 Generic names and definitions for manufactured fibers.
303.8 Procedure for establishing generic names for manufactured
fibers.
303.9 Use of fur-bearing animal names and symbols prohibited.
303.10 Fiber content of special types of products.
303.11 Floor coverings containing backings, fillings, and paddings.
303.12 Trimmings of household textile articles.
303.13 Sale of remnants and products made of remnants.
303.14 Products containing unknown fibers.
303.15 Required label and method of affixing.
303.16 Arrangement and disclosure of information on labels.
303.17 Use of fiber trademarks and generic names on labels.
303.18 Terms implying fibers not present.
303.19 Name or other identification required to appear on labels.
303.20 Registered identification numbers.
303.21 Marking of samples, swatches, or specimens and products sold
therefrom.
303.22 Products containing linings, interlinings, fillings, and
paddings.
303.23 Textile fiber products containing superimposed or added
fibers.
303.24 Pile fabrics and products composed thereof.
303.25 Sectional disclosure of content.
303.26 Ornamentation.
303.27 Use of the term ''All'' or ''100%.''
303.28 Products contained in packages.
303.29 Labeling of pairs or products containing two or more units.
303.30 Textile fiber products in form for consumer.
303.31 Invoice in lieu of label.
303.32 Products containing reused stuffing.
303.33 Country where imported textile fiber products are processed or
manufactured.
303.34 Country of origin in mail order advertising.
303.35 Use of terms ''virgin'' or ''new.''
303.36 Form of separate guaranty.
303.37 Form of continuing guaranty from seller to buyer.
303.38 Continuing guaranty filed with Federal Trade Commission.
303.39 Maintenance of records.
303.40 Use of terms in written advertisements which imply presence of
a fiber.
303.41 Use of fiber trademarks and generic names in advertising.
303.42 Arrangement of information in advertising textile fiber
products.
303.43 Fiber content tolerances.
303.44 Products not intended for uses subject to the act.
303.45 Exclusions from the act.
Authority: 15 U.S.C. 70 et seq.
Source: 24 FR 4480, June 2, 1959, unless otherwise noted.
0991The Federal Trade Commission on May 20, 1959, announced its
policy with regard to section 15 of the Textile Fiber Products
Identification Act, which states in part that ''The Commission shall
provide for the exception of any textile fiber product acquired prior to
the effective date of this Act.'' The announcement reads:
''The exception provided by section 15 of the Act shall apply to
textile fiber products acquired prior to the effective date of the Act
(March 3, 1960) where such products are marketed or handled on or after
March 3, 1960 in the same basic form as that in which they were
acquired, but shall not apply to textile fiber products manufactured or
processed on or after March 3, 1960, from other textile fiber products
acquired prior to that date where such manufacturing or processing
changes the basic form of the textile fiber product to the extent that
it becomes a different type of product. For example, the exception
would apply to yarns, fabrics or garments acquired prior to March 3,
1960, which are marketed or handled on or after that date as yarns,
fabrics or garments, respectively, without any change in the form of
such products, but such exception would not apply to fabrics
manufactured on or after March 3, 1960, from yarns or fibers acquired
prior to that date, or to garments manufactured on or after March 3,
1960, from fabrics acquired prior to that date. Fabrics acquired in the
greige before March 3, 1960, but processed or finished after that date
would not lose their right to exception as a result of such processing
or finishing operation.
''On or after March 3, 1960, any person who desires to claim the
exception provided by section 15 of the Act must be able to establish by
records or other competent means that the products as to which he claims
the exception were acquired in the same basic form prior to March 3,
1960, and that he is entitled to the exception claimed.''
16 CFR 303.1 Terms defined.
As used in this part, unless the context otherwise specifically
requires:
(a) The term Act means the Textile Fiber Products Identification Act
(approved September 2, 1958, 85th Congress, 2d Sess.; 15 U.S.C. 70, 72
Stat. 1717).
(b) The terms rule, rules, regulations, and rules and regulations
mean the rules and regulations prescribed by the Commission pursuant to
section 7(c) of the Act.
(c) The definition of terms contained in section 2 of the Act shall
be applicable also to such terms when used in rules promulgated under
the Act.
(d) The term United States means the several States, the District of
Columbia, and the Territories and possessions of the United States.
(e) The terms required information and information required mean such
information as is required to be disclosed on labels or invoices and in
advertising under the Act and regulations.
(f) The terms label, labels, labeled, and labeling mean the stamp,
tag, label, or other means of identification, or authorized substitute
therefor, required to be on or affixed to textile fiber products by the
Act and regulations and on which the information required is to appear.
(g) The terms marketing or handling and marketed or handled, when
applied to textile fiber products, mean any one or all of the
transactions set forth in section 3 of the Act.
(h) The terms invoice and invoice or other paper mean a written
account, order, memorandum, list, or catalogue, which is issued to a
purchaser, consignee, bailee, correspondent, agent, or any other person,
in connection with the marketing or handling of any textile fiber
product transported or delivered to such person.
(i) The term outer coverings of furniture, mattresses, and box
springs means those coverings as are permanently incorporated in such
articles.
(j) The term wearing apparel means any costume or article of clothing
or covering for any part of the body worn or intended to be worn by
individuals.
(k) The term beddings means sheets, covers, blankets, comforters,
pillows, pillowcases, quilts, bedspreads, pads, and all other textile
fiber products used or intended to be used on or about a bed or other
place for reclining or sleeping but shall not include furniture,
mattresses or box springs.
(l) The term headwear means any textile fiber product worn
exclusively on or about the head or face by individuals.
(m) The term backings, when applied to floor coverings, means that
part of a floor covering to which the pile, face, or outer surface is
woven, tufted, hooked, knitted, or otherwise attached, and which
provides the structural base of the floor covering. The term backing
shall also include fabrics attached to the structural base of the floor
covering in such a way as to form a part of such structural base, but
shall not include the pile, face, or outer surface of the floor covering
or any part thereof.
(n) The term elastic material means a fabric composed of yarn
consisting of an elastomer or a covered elastomer.
(o) The term coated fabric means any fabric which is coated, filled,
impregnated, or laminated with a continuous-film-forming polymeric
composition in such a manner that the weight added to the base fabric is
at least 35 percent of the weight of the fabric before coating, filling,
impregnation, or lamination.
(p) The term upholstered product means articles of furniture
containing stuffing and shall include mattresses and box springs.
(q) The term ornamentation means any fibers or yarns imparting a
visibly discernible pattern or design to a yarn or fabric.
(r) The term fiber trademark means a word or words used by a person
to identify a particular fiber produced or sold by him and to
distinguish it from fibers of the same generic class produced or sold by
others. Such term shall not include any trade mark, product mark, house
mark, trade name or other name which does not identify a particular
fiber.
(s) The term wool means the fiber from the fleece of the sheep or
lamb or hair of the Angora or Cashmere goat (and may include the
so-called specialty fibers from the hair of the camel, alpaca, llama,
and vicuna) which has never been reclaimed from any woven or felted wool
product.
(t) The term recycled wool means (1) the resulting fiber when wool
has been woven or felted into a wool product which, without ever having
been utilized in any way by the ultimate consumer, subsequently has been
made into a fibrous state, or (2) the resulting fiber when wool or
reprocessed wool has been spun, woven, knitted, or felted into a wool
product which, after having been used in any way by the ultimate
consumer, subsequently has been made into a fibrous state.
(u) The terms mail order catalog and mail order promotional material
mean any printed materials used in the direct sale or direct offering
for sale of textile products that are distributed or shown to ultimate
consumers and solicit the ultimate consumers to purchase such textile
products by mail, telephone or some other method without examining the
actual product purchased.
(24 FR 4480, June 2, 1959, as amended at 45 FR 44263, July 1, 1980;
50 FR 15106, Apr. 17, 1985)
16 CFR 303.2 General requirements.
(a) Each textile fiber product, except those exempted or excluded
under section 12 of the Act, shall be labeled or invoiced in conformity
with the requirements of the Act and regulations.
(b) Any advertising of textile fiber products subject to the Act
shall be in conformity with the requirements of the Act and regulations.
(c) The requirements of the Act and regulations shall not be
applicable to products required to be labeled under the Wool Products
Labeling Act of 1939 (Pub. L. 76-850, 15 U.S.C. 68, 54 Stat. 1128).
(d) Any person marketing or handling textile fiber products who shall
cause or direct a processor or finisher to label, invoice, or otherwise
identify any textile fiber product with required information shall be
responsible under the Act and regulations for any failure of compliance
with the Act and regulations by reason of any statement or omission in
such label, invoice, or other means of identification utilized in
accordance with his direction: Provided, That nothing herein shall
relieve the processor or finisher of any duty or liability to which he
may be subject under the Act and regulations.
16 CFR 303.3 Fibers present in amounts of less than 5 percent.
(a) Except as permitted in paragraph (b) of this section and sections
4(b)(1) and 4(b)(2) of the Act, as amended, no fiber present in the
amount of less than 5 per centum of the total fiber weight shall be
designated by its generic name or fiber trademark in disclosing the
constituent fibers in required information, but shall be designated as
''other fiber.'' Where more than one of such fibers are present in a
product they shall be designated in the aggregate as ''other fibers.''
(b) Where a textile fiber present in a textile fiber product in the
amount of less than 5 per centum of the total fiber weight of the
product has a clearly established and definite functional significance
where present in the product in the amount contained in such product so
as to fall within the provisions of sections 4(b)(1) and 4(b)(2) of the
Act, as amended, relating to the disclosure of fibers having such
functional significance and it is desired to disclose the presence of
such fiber by generic name or fiber trademark name, the generic name of
such fiber, the percentage by weight of the fiber in the total fiber
content of the product, and the functional significance of the fiber
shall be set out in the required fiber content disclosure, as for
example:
96 percent Acetate.
4 percent Spandex for elasticity.
In making such disclosure all of the provisions of the Act and
regulations setting forth the manner and form of disclosure of fiber
content information including the provisions of 303.17 of this part
(Rule 17) and 303.41 of this part (Rule 41) relating to the use of
generic names and fiber trademarks shall be applicable.
(30 FR 14253, Nov. 13, 1965)
16 CFR 303.4 English language requirement.
All required information shall be set out in the English language.
If the required information appears in a language other than English, it
also shall appear in the English language. The provisions of this
section shall not apply to advertisements in foreign language newspapers
or periodicals, but such advertising shall in all other respects comply
with the Act and regulations.
16 CFR 303.5 Abbreviations, ditto marks, and asterisks prohibited.
(a) In disclosing required information, words or terms shall not be
designated by ditto marks or appear in footnotes referred to by
asterisks or other symbols in required information, and shall not be
abbreviated except as permitted in 303.33(d) of this part.
(b) Where the generic name of a textile fiber is required to appear
in immediate conjunction with a fiber trademark in advertising,
labeling, or invoicing, a disclosure of the generic name by means of a
footnote, to which reference is made by use of an asterisk or other
symbol placed next to the fiber trademark, shall not be sufficient in
itself to constitute compliance with the Act and regulations.
16 CFR 303.6 Generic names of fibers to be used.
(a) Except where another name is permitted under the Act and
regulations, the respective generic names of all fibers present in the
amount of 5 per centum or more of the total fiber weight of the textile
fiber product shall be used when naming fibers in the required
information; as for example: ''cotton,'' ''rayon,'' ''silk,''
''linen,'' ''nylon,'' etc.
(b) Where a textile fiber product contains the hair or fiber of a
fur-bearing animal present in the amount 5 per centum or more of the
total fiber weight of the product, the name of the animal producing such
fiber may be used in setting forth the required information, provided
the name of such animal is used in conjunction with the words ''fiber,''
''hair,'' or ''blend;'' as for example:
80 percent Rabbit hair.
20 percent Nylon.
or
80 percent Silk.
20 percent Mink fiber.
(c) The term ''fur fiber'' may be used to describe the hair or fur
fiber or mixtures thereof of any animal or animals other than the sheep,
lamb, Angora goat, Cashmere goat, camel, alpaca, llama or vicuna where
such hair or fur fiber or mixture is present in the amount of 5 per
centum or more of the total fiber weight of the textile fiber product
and no direct or indirect representations are made as to the animal or
animals from which the fiber so designated was obtained; as for
example:
60 percent Cotton.
40 percent Fur fiber.
or
50 percent Nylon.
30 percent Mink hair.
20 percent Fur fiber.
(d) Where textile fiber products subject to the Act contain (1) wool
or (2) recycled wool in amounts of five per centum or more of the total
fiber weight, such fibers shall be designated and disclosed as wool or
recycled wool as the case may be.
(24 FR 4480, June 2, 1959, as amended at 45 FR 44263, July 1, 1980)
16 CFR 303.7 Generic names and definitions for manufactured fibers.
Pursuant to the provisions of section 7(c) of the Act, the following
generic names for manufactured fibers, together with their respective
definitions, are hereby established:
(a) Acrylic. A manufactured fiber in which the fiber-forming
substance is any long chain synthetic polymer composed of at least 85
percent by weight of acrylonitrile units
(b) Modacrylic. A manufactured fiber in which the fiber-forming
substance is any long chain synthetic polymer composed of less than 85
percent but at least 35 percent by weight of acrylonitrile units
except fibers qualifying under paragraph (j)(2) of this section and
fibers qualifying under paragraph (q) of this section. (Sec. 7, 72
Stat. 1717; 15 U.S.C. section 70e)
(c) Polyester. A manufactured fiber in which the fiber-forming
substance is any long chain synthetic polymer composed of at least 85%
by weight of an ester of a substituted aromatic carboxylic acid,
including but not restricted to substituted terephthalate units,
and para substituted hydroxy-benzoate units,
(d) Rayon. A manufactured fiber composed of regenerated cellulose,
as well as manufactured fibers composed of regenerated cellulose in
which substituents have replaced not more than 15 percent of the
hydrogens of the hydroxyl groups.
(e) Acetate. A manufactured fiber in which the fiber-forming
substance is cellulose acetate. Where not less than 92 percent of the
hydroxyl groups are acetylated, the term triacetate may be used as a
generic description of the fiber.
(f) Saran. A manufactured fiber in which the fiber-forming substance
is any long chain synthetic polymer composed of at least 80 percent by
weight of vinylidene chloride units (-CH9-CCl2-).
(g) Azlon. A manufactured fiber in which the fiber-forming substance
is composed of any regenerated naturally occurring proteins.
(h) Nytril. A manufactured fiber containing at least 85 percent of a
long chain polymer of vinylidene dinitrile (-CH2-C(CN)2-) where the
vinylidene dinitrile content is no less than every other unit in the
polymer chain.
(i) Nylon. A manufactured fiber in which the fiber-forming substance
is a long-chain synthetic polyamide in which less than 85 percent of the
amide
linkages are attached directly to two aromatic rings.
(j) Rubber. A manufactured fiber in which the fiber-forming
substance is comprised of natural or synthetic rubber, including the
following categories:
(1) A manufactured fiber in which the fiber-forming substance is a
hydrocarbon such as natural rubber, polyisoprene, polybutadiene,
copolymers of dienes and hydrocarbons, or amorphous (noncrystalline)
polyolefins.
(2) A manufactured fiber in which the fiber-forming substance is a
copolymer of acrylonitrile and a diene (such as butadiene) composed of
not more than 50 percent but at least 10 percent by weight of
acrylonitrile units
The term ''lastrile'' may be used as a generic description for fibers
falling within this category.
(3) A manufactured fiber in which the fiber-forming substance is a
polychloroprene or a copolymer of chloroprene in which at least 35
percent by weight of the fiber-forming substance is composed of
chloroprene units
(k) Spandex. A manufactured fiber in which the fiber-forming
substance is a long chain synthetic polymer comprised of at least 85
percent of a segmented polyurethane.
(l) Vinal. A manufactured fiber in which the fiber-forming substance
is any long chain synthetic polymer composed of at least 50 percent by
weight of vinyl alcohol units (-CH2-CHOH-), and in which the total of
the vinyl alcohol units and any one or more of the various acetal units
is at least 85 percent by weight of the fiber.
(m) Olefin. A manufactured fiber in which the fiber-forming
substance is any long chain synthetic polymer composed of at least 85
percent by weight of ethylene, propylene, or other olefin units, except
amorphous (noncrystalline) polyolefins qualifying under paragraph (j)(1)
of this section (Rule 7).
(n) Vinyon. A manufactured fiber in which the fiber-forming
substance is any long chain synthetic polymer composed of at least 85
percent by weight of vinyl chloride units (-CH2-CHCl-).
(o) Metallic. A manufactured fiber composed of metal, plastic-coated
metal, metal-coated plastic, or a core completely covered by metal.
(p) Glass. A manufactured fiber in which the fiber-forming substance
is glass.
(q) Anidex. A manufactured fiber in which the fiber-forming
substance is any long chain synthetic polymer composed of at least 50
percent by weight of one or more esters of a monohydric alcohol and
acrylic acid, CH2=CH -- COOH.
(r) Novoloid. A manufactured fiber containing at least 85 percent by
weight of a cross-linked novolac.
(s) Aramid. A manufactured fiber in which the fiber-forming
substance is a long-chain synthetic polyamide in which at least 85
percent of the amide
linkages are attached directly to two aromatic rings.
(t) Sulfar. A manufactured fiber in which the fiber-forming
substance is a long chain synthetic polysulfide in which at least 85% of
the sulfide ( -- S -- ) linkages are attached directly to two (2)
aromatic rings.
(u) PBI. A manufactured fiber in which the fiber-forming substance
is a long chain aromatic polymer having reoccurring imidazole groups as
an integral part of the polymer chain.
(Sec. 6, 72 Stat. 1717; 15 U.S.C. 70e)
(24 FR 4480, June 2, 1959; 24 FR 5737, July 17, 1959, as amended at
31 FR 2652, Feb. 11, 1966; 31 FR 3002, Feb. 22, 1966; 34 FR 14595,
Sept. 19, 1969; 38 FR 21782, Aug. 13, 1973; 38 FR 34115, Dec. 11,
1973; 39 FR 1834, Jan. 15, 1974; 51 FR 20807, 20809, June 9, 1986)
16 CFR 303.8 Procedure for establishing generic names for manufactured
fibers.
(a) Prior to the marketing or handling of a manufactured fiber for
which no generic name has been established by the Commission, the
manufacturer or producer thereof shall file a written application with
the Commission, requesting the establishment of a generic name for such
fibers, stating therein:
(1) The reasons why the applicant's fiber should not be identified by
one of the generic names established by the Commission in 303.7 of this
part;
(2) The chemical composition of the fiber, including the
fiber-forming substances and respective percentages thereof, together
with samples of the fiber;
(3) Suggested names for consideration as generic, together with a
proposed definition for the fiber;
(4) Any other information deemed by the applicant to be pertinent to
the application, including technical data in the form of test methods;
(5) The earliest date on which the application proposes to market or
handle the fiber in commerce for other than developmental or testing
purposes.
(b) Upon receipt of the application, the Commission will, within
sixty (60) days, either deny the application or assign to the fiber a
numerical or alphabetical symbol for temporary use during further
consideration of such application.
(c) After taking the necessary procedure in consideration of the
application, the Commission in due course shall establish a generic name
or advise the applicant of its refusal to grant the application and
designate the proper existing generic name for the fiber.
16 CFR 303.9 Use of fur-bearing animal names and symbols prohibited.
(a) The advertising or the labeling of a textile fiber product shall
not contain any names, words, depictions, descriptive matter, or other
symbols which connote or signify a fur-bearing animal, unless such
product or the part thereof in connection with which the names, words,
depictions, descriptive matter, or other symbols are used is a fur
product within the meaning of the Fur Products Labeling Act.
(b) Subject to the provisions of paragraph (a) of this section and
303.6 of this part, a textile fiber product shall not be described or
referred to in any manner in an advertisement or label with:
(1) The name or part of the name of a fur-bearing animal, whether as
a single word or a combination word, or any coined word which is
phonetically similar to a fur-bearing animal name, or which is only a
slight variation in spelling of a fur-bearing animal name or part of the
name. As for example, such terms as ''Ermine,'' ''Mink,'' ''Persian,''
''Broadtail,'' ''Beaverton,'' ''Marmink,'' ''Sablelon,'' ''Lam,''
''Pershian,'' ''Minx,'' or similar terms shall not be used.
(2) Any word or name symbolic of a fur-bearing animal by reason of
conventional usage or by reason of its close relationship with
fur-bearing animals. As for example, such terms as ''guardhair,''
''underfur,'' and ''mutation,'' or similar terms, shall not be used.
(c) Nothing contained herein shall prevent:
(1) The nondeceptive use of animal names or symbols in referring to a
textile fiber product where the fur of such animal is not commonly or
commercially used in fur products, as that term is defined in the Fur
Products Labeling Act, as for example ''kitten soft'', ''Bear Brand'',
etc.
(2) The nondeceptive use of a trademark or trade name containing the
name, symbol, or depiction of a fur-bearing animal unless:
(i) The textile fiber product in connection with which such trademark
or trade name is used simulates a fur or fur product; or
(ii) Such trademark or trade name is used in any advertisement of a
textile fiber product together with any depiction which has the
appearance of a fur or fur product; or
(iii) The use of such trademark or trade name is prohibited by the
Fur Products Labeling Act.
(24 FR 4480, June 2, 1959, as amended at 28 FR 722, Jan. 16, 1963)
16 CFR 303.10 Fiber content of special types of products.
(a) Where a textile product is made wholly of elastic yarn or
material, with minor parts of non-elastic material for structural
purposes, it shall be identified as to the percentage of the elastomer,
together with the percentage of all textile coverings of the elastomer
and all other yarns or materials used therein.
Where a textile fiber product is made in part of elastic material and
in part of other fabric, the fiber content of such fabric shall be set
forth sectionally by percentages as in the case of other fabrics. In
such cases the elastic material may be disclosed by describing the
material as elastic followed by a listing in order of predominance by
weight of the fibers used in such elastic, including the elastomer,
where such fibers are present by 5 per centum or more with the
designation ''other fiber'' or ''other fibers'' appearing last when
fibers required to be so designated are present. An example of labeling
under this paragraph is:
Front and back non-elastic sections:
50 percent Acetate.
50 percent Cotton.
Elastic: Rayon, cotton, nylon, rubber.
(b) Where drapery or upholstery fabrics are manufactured on
hand-operated looms for a particular customer after the sale of such
fabric has been consummated, and the amount of the order does not exceed
100 yards of fabric, the required fiber content disclosure may be made
by listing the fibers present in order of predominance by weight with
any fiber or fibers required to be designated as ''other fiber'' or
''other fibers'' appearing last, as for example:
Rayon.
Wool.
Acetate.
Metallic.
Other fibers.
(c)(1) Where a manufactured textile fiber is essentially a physical
combination or mixture of two or more chemically distinct constituents
or components combined at or prior to the time of extrusion, which
components if separately extruded would each fall within different
existing definitions of textile fibers as set forth in 303.7 of this
part (Rule 7), the fiber content disclosure as to such fiber, shall for
all purposes under the regulations in this part (i) disclose such fact
in the required fiber content information by appropriate nondeceptive
descriptive terminology, such as ''biconstituent fiber'' or
''multiconstituent fiber,'' (ii) set out the components contained in the
fiber by the appropriate generic name specified in 303.7 of this part
(Rule 7) in the order of their predominance by weight, and (iii) set out
the respective percentages of such components by weight.
(2) If the components of such fibers are of a matrix-fibril
configuration, the term ''matrix-fibril fiber'' or ''matrix fiber'' may
be used in setting forth the information required by this paragraph.
(3) Examples of proper fiber content designations under this
paragraph are:
100% Biconstituent Fiber
(65% Nylon, 35% Polyester)
80% Matrix Fiber (60% Nylon, 40% Polyester)
15% Polyester
5% Rayon
(4) All of the provisions as to fiber content disclosures contained
in the Act and regulations, including the provisions relative to fiber
content tolerances and disclosures of fibers present in amounts of less
than 5 percentum of the total fiber weight, shall also be applicable to
the designations and disclosures prescribed by this paragraph.
(25 FR 7044, July 26, 1960, as amended at 30 FR 14253, Nov. 13, 1965;
34 FR 12134 July 19, 1969)
16 CFR 303.11 Floor coverings containing backings, fillings, and
paddings.
In disclosing the required fiber content information as to floor
coverings containing exempted backings, fillings, or paddings, the
disclosure shall be made in such manner as to indicate that it relates
only to the face, pile, or outer surface of the floor covering and not
to the backing, filling, or padding. Examples of the form of marking
these types of floor coverings as to fiber content are as follows:
100% Cotton Pile
Face -- 60% Rayon, 40% Cotton
Outer Surface -- 100% Wool
16 CFR 303.12 Trimmings of household textile articles.
(a) Trimmings incorporated in articles of wearing apparel and other
household textile articles may, among other forms of trim, include: (1)
Rick-rack, tape, belting, binding, braid, labels (either required or
non-required), collars, cuffs, wrist bands, leg bands, waist bands,
gussets, gores, welts, and findings, including superimposed garters in
hosiery, and elastic materials and threads inserted in or added to the
basic product or garment in minor proportion for holding, reinforcing or
similar structural purposes; (2) decorative trim, whether applied by
embroidery, overlay, applique, or attachment; and (3) decorative
patterns or designs which are an integral part of the fabric out of
which the household textile article is made: Provided, That such
decorative trim or decorative pattern or design, as specified in
paragraphs (a) (2) and (3) of this section, does not exceed 15 percent
of the surface area of the household textile article. If no
representation is made as to the fiber content of the decorative trim or
decoration, as provided for in paragraphs (a) (2) and (3) of this
section, the fiber content designation of the basic fabric shall be
followed by the statement ''exclusive of decoration.''
(b) The term ''findings'' may also include elastic material which
constitutes a part of the basic fabric or material out of which the
household textile article is made, where such elastic material does not
exceed 20 percent of the surface area of the household textile article:
Provided, That the required information as to fiber content of products
subject to this paragraph is followed by the statement ''exclusive of
elastic.''
16 CFR 303.13 Sale of remnants and products made of remnants.
(a) In disclosing the required fiber content information as to
remnants of fabric which are for practical purposes of unknown or
undeterminable fiber content:
(1) The fiber content disclosure of such remnants of fabrics may be
designated in the required information as ''remnants of undetermined
fiber content.''
(2) Where such remnants of fabrics are displayed for sale at retail,
a conspicuous sign may, in lieu of individual labeling, be used in
immediate conjunction with such display, stating with respect to
required fiber content disclosure that the goods are ''remnants of
undetermined fiber content.''
(3) Where textile fiber products are made of such remnants, the
required fiber content information of the products may be disclosed as
''made of remnants of undetermined fiber content.'' If any
representations as to fiber content are made with respect to such
remnants, the provisions of this paragraph shall not apply.
(b) Where remnants of fabrics are marketed or handled in bales,
bundles, or packages and are all of the same fiber content or are
designated in the manner permitted by paragraph (a) of this section, the
individual remnants need not be labeled if the bales, bundles, or
packages containing such remnants are labeled with the required
information including fiber content percentages or the designation
permitted by paragraph (a) of this section.
(c) Where remnants of fabrics of the same fiber content are displayed
for sale at retail, a conspicuous sign may, in lieu of individual
labeling, be used in immediate conjunction with such display, stating
the fiber content information with respect to such remnants; as for
example: ''remnants, 100 percent cotton,'' ''remnants, 50 percent
rayon, 50 percent acetate,'' etc.
16 CFR 303.14 Products containing unknown fibers.
(a) Where a textile fiber product is made from miscellaneous scraps,
rags, odd lots, secondhand materials, textile by-products, or waste
materials of unknown, and for practical purposes, undeterminable fiber
content, the required fiber content disclosure may, when truthfully
applicable, in lieu of the fiber content disclosure otherwise required
by the Act and regulations, indicate that such product is composed of
miscellaneous scraps, rags, odd lots, textile by-products, secondhand
materials (in case of secondhand materials, words of like import may be
used) or waste materials, as the case may be, of unknown or undetermined
fiber content, as for example:
Made of miscellaneous scraps of undetermined fiber content
100% unknown fibers -- rags
All undetermined fibers -- textile by-products
100% miscellaneous odd lots of undetermined fiber content
Secondhand materials -- fiber content unknown
Made of unknown fibers -- waste materials
(b) Where a textile fiber product is made in part from miscellaneous
scraps, rags, odd lots, textile by-products, second-hand materials or
waste materials of unknown and, for practical purposes, undeterminable
fiber content together with a percentage of known or determinable
fibers, the required fiber content disclosure may, when truthfully
applicable, in lieu of the fiber content disclosure otherwise required
by the Act and regulations, indicate the percentage of miscellaneous
scraps, rags, odd lots, secondhand materials (in case of secondhand
materials, words of like import may be used), textile by-products, or
waste materials of unknown or undetermined fiber content and the
percentage of known fibers, as for example:
45% Rayon
30% Acetate
25% Miscellaneous scraps of undetermined fiber content.
60% Cotton
40% Unknown fibers -- waste materials.
40% Acrylic
20% Modacrylic
40% Undetermined fibers -- odd lots.
50% Polyester
30% Cotton
20% Textile by-products of undetermined fiber content.
50% Rayon
50% Secondhand materials -- fiber content unknown.
45% Acetate
30% Cotton
25% Miscellaneous rags -- undetermined fiber content.
(c) No representation as to fiber content shall be made as to any
textile product or any portion of a textile fiber product designated as
composed of unknown or undetermined fibers. If any such representation
is made, a full and complete fiber content disclosure shall be required.
(d) Nothing contained in this section shall excuse a full disclosure
as to fiber content if the same is known or practically ascertainable.
(25 FR 4317, May 14, 1960)
16 CFR 303.15 Required label and method of affixing.
(a) A label is required to be affixed to each textile product and,
where required, to its package or container in a secure manner. Such
label shall be conspicuous and shall be of such durability as to remain
attached to the product and its package throughout any distribution,
sale, resale and until sold and delivered to the ultimate consumer.
(b) Each textile fiber product with a neck must have the label
affixed to the inside center of the neck midway between the shoulder
seams provided, however, that the required label may appear in close
proximity to another label affixed to the inside center of the neck as
long as the required label remains conspicuous to the consumer and,
provided further, that if the country of origin is disclosed on a label
affixed to the inside center of the neck or in close proximity, the
label containing the country of origin, fiber content, and RN or name of
the company may appear in another conspicuous location on the inside or
on the outside of the garment. All other textile products shall have
the label affixed to a conspicuous spot on the inner side of the product
or in a conspicuous place on the outside of the product.
(c) In the case of hosiery products, this section shall not be
construed as requiring the affixing of a label to each hosiery product
contained in a package if, (1) such hosiery products are intended for
sale to the ultimate consumer in such package, (2) such package has
affixed to it a label bearing the required information for the hosiery
products contained in the package, and (3) the information on the label
affixed to the package is equally applicable to each textile fiber
product contained therein.
(50 FR 15106, Apr. 17, 1985)
16 CFR 303.16 Arrangement and disclosure of information on labels.
(a) The information with respect to textile fiber products required
to be shown and displayed upon the label shall be that which is required
by the Act and Regulations. The required information may appear on any
label attached to the textile fiber product, provided all the pertinent
requirements of the Act and Regulations are met and so long as the
combination of required information and non-required information is not
misleading. The required information shall include the following:
(1) The generic names and percentages by weight of the constituent
fibers present in the textile fiber product, exclusive of permissive
ornamentation, in amounts of five per centum or more and any fibers
disclosed in accordance with 303.3(b) shall appear in order of
predominance by weight with any percentage of fiber or fibers required
to be designated as other fiber or other fibers appearing last.
(2) The name, provided for in 303.19, or registered identification
number issued by the Commission, of the manufacturer or of one or more
persons marketing or handling the textile fiber product.
(3) The name of the country where such product was processed or
manufactured, as provided for in 303.33.
(b) All parts of the required information shall be conspicuously and
separately set out on the same side of the label in such a manner as to
be clearly legible and readily accessible to the prospective purchaser,
and all parts of the fiber content information shall appear in type or
lettering of equal size and conspicuousness:
Provided, however, That the required name or registered
identification number may appear on the reverse side of the label if it
is conspicuous and accessible: And provided further, That the required
name or registered identification number may be conspicuously set out on
a separate label which is prominently and conspicuously displayed in
close proximity to the label containing the other required information.
Where only one end of a cloth label is sewn to the product in such a
manner that both sides of the label are readily accessible to the
prospective purchaser, the required fiber content information may appear
on the reverse side of the label if the front side of such label clearly
and conspicuously shows the wording ''Fiber Content on Reverse Side.''
On products as to which sectional disclosure is used, an additional
nondeceptive label may be used showing the complete fiber content
information as to a particular section or area of the product.
(c) Subject to the provisions of 303.17 of this part, if
non-required information or representations are placed on the label or
elsewhere on the product, such nonrequired information or representation
shall be set forth separate and apart from the required information and
shall not interfere with, minimize, detract from, or conflict with such
required information, nor shall such non-required information in any way
be false or deceptive as to fiber content.
(d) Non-deceptive terms which are properly and truthfully descriptive
of a fiber may be used in conjunction with the generic name of such
fiber; as for example: ''100 percent cross-linked rayon,'' ''100
percent solution dyed acetate,'' ''100 percent combed cotton,'' ''100
percent nylon 66,'' etc.
(24 FR 4480, June 2, 1959, as amended at 25 FR 4317, May 14, 1960;
30 FR 14254, Nov. 13, 1965; 30 FR 15313, Dec. 11, 1965; 50 FR 15107,
Apr. 17, 1985; 53 FR 31315, Aug. 18, 1988)
16 CFR 303.17 Use of fiber trademarks and generic names on labels.
(a) A non-deceptive fiber trademark may be used on a label in
conjunction with the generic name of the fiber to which it relates.
Where such a trademark is placed on a label in conjunction with the
required information, the generic name of the fiber must appear in
immediate conjunction therewith, and such trademark and generic name
must appear in type or lettering of equal size and conspicuousness.
(b) Where a generic name or a fiber trademark is used on any label,
whether required or non-required, a full and complete fiber content
disclosure shall be made in accordance with the Act and regulations the
first time the generic name or fiber trademark appears on the label.
(c) If a fiber trademark is not used in the required information, but
is used elsewhere on the label as non-required information, the generic
name of the fiber shall accompany the fiber trademark in legible and
conspicuous type or lettering the first time the trademark is used.
(d) No fiber trademark or generic name shall be used in non-required
information on a label in such a manner as to be false, deceptive, or
misleading as to fiber content, or to indicate directly or indirectly
that a textile fiber product is composed wholly or in part of a
particular fiber, when such is not the case.
16 CFR 303.18 Terms implying fibers not present.
Words, coined words, symbols or depictions, (a) which constitute or
imply the name or designation of a fiber which is not present in the
product, (b) which are phonetically similar to the name or designation
of such a fiber, or (c) which are only a slight variation of spelling
from the name or designation of such a fiber shall not be used in such a
manner as to represent or imply that such fiber is present in the
product.
(30 FR 13693, Oct. 28, 1965)
16 CFR 303.19 Name or other identification required to appear on
labels.
(a) The name required by the Act to be used on labels shall be the
name under which the person is doing business. Where a person has a
word trademark, used as a house mark, registered in the United States
Patent Office, such word trademark may be used on labels in lieu of the
name otherwise required: Provided, The owner of such word trademark
furnishes the Commission a copy of the registration prior to its use.
No trademark, trade names, or other names except those provided for
above shall be used for required identification purposes.
(b) Registered identification numbers, as provided for in 303.20 of
this part, may be used for identification purposes in lieu of the
required name.
16 CFR 303.20 Registered identification numbers.
(a) Registered numbers for use as the required identification in lieu
of the name on textile fiber product labels, as provided in section
4(b)(3) of the Act, will be issued by the Commission to qualified
persons residing in the United States upon receipt of an application
duly executed in the form set out in paragraph (d) of this section.
(b)(1) Registered identification numbers shall be used only by the
person or concern to whom they are issued, and such numbers are not
transferable or assignable.
(2) Registered identification numbers shall be subject to
cancellation whenever any such number was procured or has been used
improperly or contrary to the requirements of the Acts administered by
the Federal Trade Commission, and regulations promulgated thereunder, or
when otherwise deemed necessary in the public interest.
(c) Registered identification numbers assigned under this section may
be used on labels required in labeling products subject to the
provisions of the Wool Products Labeling Act and Fur Products Labeling
Act, and numbers previously assigned by the Commission under such Acts
may be used as and for the required name in labeling under this Act.
When so used by the person or firm to whom assigned, the use of the
numbers shall be construed as identifying and binding the applicant as
fully and in all respects as though assigned under the specific Act for
which it is used.
(d) Form of application for registered identification number (printed
forms are available upon request at the offices of the Commission):
Insert Illus. 456C
(24 FR 4480, June 2, 1959, as amended at 48 FR 12516, Mar. 25, 1983)
16 CFR 303.21 Marking of samples, swatches, or specimens and products
sold therefrom.
(a) Where samples, swatches, or specimens of textile fiber products
subject to the Act are used to promote or effect sales of such textile
fiber products, the samples, swatches, or specimens, as well as the
products themselves, shall be labeled to show their respective fiber
contents and other required information: Provided, That such samples,
swatches or specimens need not be labeled:
(1) If the samples, swatches, or specimens are less than two square
inches in area and the information otherwise required to appear on the
label is clearly, conspicuously, and non-deceptively disclosed on
accompanying promotional matter in accordance with the Act and
regulations;
(2) If the samples, swatches, or specimens are keyed to a catalogue
to which reference is necessary in order to complete the sale of the
textile fiber products, and which catalogue at the necessary point of
reference clearly, conspicuously, and non-deceptively discloses the
information otherwise required to appear on the label in accordance with
the Act and regulations; or
(3) If such samples, swatches, or specimens are not used to effect
sales to ultimate consumers and are not in the form intended for sale or
delivery to, or for use by, the ultimate consumer, and are accompanied
by an invoice or other paper showing the required information.
(b) Where properly labeled samples, swatches, or specimens are used
to effect the sale of articles of wearing apparel or other household
textile articles which are manufactured specifically for a particular
customer after the sale is consummated, the articles of wearing apparel
or other household textile articles need not be labeled if they are of
the same fiber content as the samples, swatches, or specimens from which
the sale was effected and an invoice or other paper accompanies them
showing the information otherwise required to appear on the label.
16 CFR 303.22 Products containing linings, interlinings, fillings, and
paddings.
In disclosing the required information as to textile fiber products,
the fiber content of any linings, interlinings, fillings, or paddings
shall be set forth separately and distinctly if such linings,
interlinings, fillings, or paddings are incorporated in the product for
warmth rather than for structural purposes, or if any express or implied
representations are made as to their fiber content. Examples are as
follows:
100% Nylon
Interlining: 100% Rayon
Covering: 100% Rayon
Filling: 100% Cotton.
16 CFR 303.23 Textile fiber products containing superimposed or added
fibers.
Where a textile fiber product is made wholly of one fiber or a blend
of fibers with the exception of an additional fiber in minor proportion
superimposed or added in certain separate and distinct areas or sections
for reinforcing or other useful purposes, the product may be designated
according to the fiber content of the principal fiber or blend of
fibers, with an exception naming the superimposed or added fiber, giving
the percentage thereof in relation to the total fiber weight of the
principal fiber or blend of fibers, and indicating the area or section
which contains the superimposed or added fiber. Examples of this type
of fiber content disclosure, as applied to products having reinforcing
fibers added to a particular area or section, are as follows:
55% Cotton
45% Rayon
Except 5% Nylon added to toe and heel.
All Cotton except 1% Nylon added to neckband.
16 CFR 303.24 Pile fabrics and products composed thereof.
The fiber content of pile fabrics or products composed thereof may be
stated on the label in such segregated form as will show the fiber
content of the face or pile and of the back or base, with percentages of
the respective fibers as they exist in the face or pile and in the back
or base: Provided, That in such disclosure the respective percentages
of the face and back be given in such manner as will show the ratio
between the face and the back. Examples of the form of marking pile
fabric as to fiber content provided for in this section are as follows:
100% Nylon Pile
100% Cotton Back
(Back constitutes 60% of fabric and pile 40%).
Face -- 60% Rayon, 40% Nylon
Back -- 70% Cotton, 30% Rayon
(Face constitutes 60% of fabric and back 40%).
16 CFR 303.25 Sectional disclosure of content.
(a) Permissive. Where a textile fiber product is composed of two or
more sections which are of different fiber composition, the required
information as to fiber content may be separated in the same label in
such manner as to show the fiber composition of each section.
(b) Mandatory. The disclosure as above provided shall be made in all
instances where such form of marking is necessary to avoid deception.
16 CFR 303.26 Ornamentation.
(a)(1) Where the textile fiber product contains fiber ornamentation
not exceeding five per centum of the total fiber weight of the product
and the stated percentages of the fiber content are exclusive of such
ornamentation, the label or any invoice used in lieu thereof shall
contain a phrase or statement showing such fact; as for example:
60% Cotton
40% Rayon
Exclusive of Ornamentation;
or
All Cotton
Exclusive of Ornamentation.
(2) The fiber content of such ornamentation may be disclosed where
the percentage of the ornamentation in relation to the total fiber
weight of the principal fiber or blend of fibers is shown; as for
example:
70% Nylon
30% Acetate
Exclusive of 4% Metallic Ornamentation;
or
100% Rayon
Exclusive of 3% Silk Ornamentation.
(b) Where the fiber ornamentation exceeds five per centum, it shall
be included in the statement of required percentages of fiber content.
(c) Where the ornamentation constitutes a distinct section of the
product, sectional disclosure may be made in accordance with 303.25 of
this part.
16 CFR 303.27 Use of the term ''All'' or ''100%.''
Where a textile fiber product or part thereof is comprised wholly of
one fiber, other than any fiber ornamentation, decoration, elastic, or
trimming as to which fiber content disclosure is not required, either
the word ''All'' or the term ''100%'' may be used in labeling, together
with the correct generic name of the fiber and any qualifying phrase,
when required; as for example: ''100% Cotton,'' ''All Rayon, Exclusive
of Ornamentation,'' ''100% Acetate, Exclusive of Decoration,'' ''All
Nylon, Exclusive of Elastic,'' etc.
16 CFR 303.28 Products contained in packages.
When textile products are marketed and delivered in a package which
is intended to remain unbroken and intact until after delivery to the
utlimate consumer, each textile product in the package, except hosiery,
and the package shall be labeled with the required information. If the
package is transparent to the extent it allows for a clear reading of
the required information on the textile product, the package is not
required to be labeled.
(50 FR 15107, Apr. 17, 1985)
16 CFR 303.29 Labeling of pairs or products containing two or more
units.
(a) Where a textile fiber product consists of two or more parts,
units, or items of different fiber content, a separate label containing
the required information shall be affixed to each of such parts, units
or items showing the required information as to such part, unit, or
item: Provided, That where such parts, units, or items are marketed or
handled as a single product or ensemble and are sold and delivered to
the ultimate consumer as a single product or ensemble, the required
information may be set out on a single label in such a manner as to
separately show the fiber composition of each part, unit, or item.
(b) Where garments, wearing apparel, or other textile fiber products
are marketed or handled in pairs or ensembles of the same fiber content,
only one unit of the pair or ensemble need be labeled with the required
information when sold and delivered to the ultimate consumer.
(24 FR 4480, June 2, 1959, as amended at 25 FR 4318, May 14, 1960)
16 CFR 303.30 Textile fiber products in form for consumer.
A textile fiber product shall be considered to be in the form
intended for sale or delivery to, or for use by, the ultimate consumer
when the manufacturing or processing of the textile fiber product is
substantially complete. The fact that minor or insignificant details of
the manufacturing or processing have not been completed shall not excuse
the labeling of such products as to the required information. For
example, a garment must be labeled even though such matters as the
finishing of a hem or cuff or the affixing of buttons thereto remain to
be completed.
16 CFR 303.31 Invoice in lieu of label.
Where a textile fiber product is not in the form intended for sale,
delivery to, or for use by the ultimate consumer, an invoice or other
paper may be used in lieu of a label, and such invoice or other paper
shall show, in addition to the name and address of the person issuing
the invoice or other paper, the fiber content of such product as
provided in the Act and regulations as well as any other required
information.
16 CFR 303.32 Products containing reused stuffing.
Any upholstered product, mattress, or cushion which contains stuffing
which has been previously used as stuffing in any other upholstered
product, mattress, or cushion shall have securely attached thereto a
substantial tag or label, at least 2 inches by 3 inches in size, and
statements thereon conspicuously stamped or printed in the English
language and in plain type not less than 1/3 inch high, indicating that
the stuffing therein is composed in whole or in part of ''reused
stuffing,'' ''secondhand stuffing,'' ''previously used stuffing,'' or
''used stuffing.''
16 CFR 303.33 Country where imported textile fiber products are
processed or manufactured.
(a) In addition to the other information required by the Act and
Regulations:
(1) Each imported textile fiber product shall be labeled with the
name of the country where such imported product was processed or
manufactured;
(2) Each textile fiber product completely made in the United States
of materials that were made in the United States shall be labeled using
the term ''Made in U.S.A.'' or some other clear and equivalent term.
(3) Each textile fiber product made in the United States, either in
whole or part, of imported materials shall contain a label disclosing
these facts; for example:
''Made in USA of imported fabric''
or
''Knitted in USA of imported yarn'' and
(4) Each textile product partially manufactured in a foreign country
and partially manufactured in the United States shall contain on the
label the following information:
(i) The manufacturing process in the foreign country and in the USA;
for example:
''Imported cloth, finished in USA'',
or
''Sewn in USA of imported components'',
or
''Made in (foreign country), finished in USA''
(ii) When the U.S. Customs Service requires an origin label on the
unfinished product, the manufacturing processes as required in paragraph
(a)(4)(i) of this section or the name of the foreign country required by
Customs, for example:
''Made in (foreign country)''
(b) For the purpose of determining whether a product should be marked
under paragraphs (a) (2), (3), or (4) of this section, a manufacturer
needs to consider the origin of only those materials that are covered
under the Act and that are one step removed from that manufacturing
process. For example, a yarn manufacturer must identify fiber if it is
imported, a cloth manufacturer must identify imported yarn and a
household product manufacturer must identify imported cloth or imported
yarn for household products made directly from yarn, or imported fiber
used as filling for warmth.
(c) The term country means the political entity known as a nation.
Except for the United States, colonies, possessions or protectorates
outside the boundaries of the mother country shall be considered
separate countries, and the name thereof shall be deemed acceptable in
designating the country where the textile fiber product was processed or
manufactured unless the Commission shall otherwise direct.
(d) The country where the imported textile fiber product was
principally made shall be considered to be the country where such
textile fiber product was processed or manufactured. Further work or
material added to the textile fiber product in another country must
effect a basic change in form in order to render such other country the
place where such textile fiber product was processed or manufactured.
(e) The English name of the country where the imported textile fiber
product was processed or manufactured shall be used. The adjectival
form of the name of the country will be accepted as the name of the
country where the textile fiber product was processed or manufactured,
provided the adjectival form of the name does not appear with such other
words so as to refer to a kind or species of product. Variant spellings
which clearly indicate the English name of the country, such as Brasil
for Brazil and Italie for Italy, are acceptable. Abbreviations which
unmistakably indicate the name of a country, such as ''Gt. Britain''
for ''Great Britain,'' are acceptable.
(f) Nothing in this rule shall be construed as limiting in any way
the information required to be disclosed on labels under the provisions
of any Tariff Act of the United States or regulations prescribed by the
Secretary of the Treasury.
(24 FR 4480, June 2, 1959, as amended at 50 FR 15107, Apr. 17, 1985)
16 CFR 303.34 Country of origin in mail order advertising.
When a textile fiber product is advertised in any mail order catalog
or mail order promotional material, the description of such product
shall contain a clear and conspicuous statement that the product was
either made in U.S.A., imported, or both. Other words or phrases with
the same meaning may be used. The statement of origin required by this
section shall not be inconsistent with the origin labeling of the
product being advertised.
(50 FR 15107, Apr. 17, 1985)
16 CFR 303.35 Use of terms ''virgin'' or ''new.''
The terms ''virgin'' or ''new'' as descriptive of a textile fiber
product, or any fiber or part thereof, shall not be used when the
product or part so described is not composed wholly of new or virgin
fiber which has never been reclaimed from any spun, woven, knitted,
felted, bonded, or similarly manufactured product.
16 CFR 303.36 Form of separate guaranty.
(a) The following are suggested forms of separate guaranties under
section 10 of the Act which may be used by a guarantor residing in the
United States on or as part of an invoice or other paper relating to the
marketing or handling of any textile fiber products listed and
designated therein, and showing the date of such invoice or other paper
and the signature and address of the guarantor.
(1) General form. We guarantee that the textile fiber products
specified herein are not misbranded nor falsely nor deceptively
advertised or invoiced under the provisions of the Textile Fiber
Products Identification Act and rules and regulations thereunder.
(2) Guaranty based on guaranty. Based upon a guaranty received, we
guarantee that the textile fiber products specified herein are not
misbranded nor falsely nor deceptively advertised or invoiced under the
provisions of the Textile Fiber Products Identification Act and rules
and regulations thereunder.
Note: The printed name and address on the invoice or other paper
will suffice to meet the signature and address requirements.
(b) The mere disclosure of required information including the fiber
content of a textile fiber product on a label or on an invoice or other
paper relating to its marketing or handling shall not be considered a
form of separate guaranty.
16 CFR 303.37 Form of continuing guaranty from seller to buyer.
Under section 10 of the Act, a seller residing in the United States
may give a buyer a continuing guaranty to be applicable to all textile
fiber products sold or to be sold. The following is the prescribed form
of continuing guaranty from seller to buyer.
We, the undersigned, guaranty that all textile fiber products now
being sold or which may hereafter be sold or delivered to ---- are not,
and will not be misbranded nor falsely nor deceptively advertised or
invoiced under the provisions of the Textile Fiber Products
Identification Act and rules and regulations thereunder. This guaranty
effective until ---- .
Dated, signed, and certified this ---- day of ---- , 19 -- , at ----
(City), ---- (State or Territory) ---- (name under which business is
conducted.)
Under penalty of perjury, I certify that the information supplied in
this form is true and correct.
--
Signature of Proprietor, Principal Partner, or Corporate Official
--
Name (Print or Type) Title
(48 FR 12518, Mar. 25, 1983)
16 CFR 303.38 Continuing guaranty filed with Federal Trade Commission.
(a)(1) Under section 10 of the act any person residing in the United
States and marketing or handling textile fiber products may file a
continuing guaranty with the Federal Trade Commission. When filed with
the Commission a continuing guaranty shall be fully executed in
duplicate. Forms for use in preparing continuing guaranties will be
supplied by the Commission upon request.
(2) Continuing guaranties filed with the Commission shall continue in
effect until revoked. The guarantor shall promptly report any change in
business status to the Commission.
(b) Prescribed form of continuing guaranty:
Insert illus. 458C
(c) Any person who has a continuing guaranty on file with the
Commission may, during the effective dates of the guaranty, give notice
of such fact by setting forth on the invoice or other paper covering the
marketing or handling of the product guaranteed the following:
Continuing guaranty under the Textile Fiber Products Identification
Act filed with the Federal Trade Commission.
(d) Any person who falsely represents in writing that he has a
continuing guaranty on file with the Federal Trade Commission when such
is not a fact shall be deemed to have furnished a false guaranty under
section 10(b) of the Act.
(24 FR 4486, June 2, 1959, as amended at 48 FR 12517, Mar. 25, 1983)
16 CFR 303.39 Maintenance of records.
(a) Pursuant to the provisions of section 6 of the Act, every
manufacturer of a textile fiber product subject to the Act, irrespective
of whether any guaranty has been given or received, shall maintain
records showing the information required by the Act and Regulations with
respect to all such textile fiber products made by such manufacturer.
Such records shall show:
(1) The generic names and percentages by weight of the constituent
fibers present in the textile fiber product, exclusive of permissive
ornamentation, in amounts of five per centum or more.
(2) The name, provided for in 303.19, or registered identification
number issued by the Commission, of the manufacturer or of one or more
persons marketing or handling the textile fiber product.
(3) The name of the country where such product was processed or
manufactured as provided for in 303.33.
The purpose of the records is to permit a determination that the
requirements of the Act and Regulations have been met and to establish a
traceable line of continuity from raw material through processing to
finished product.
(b) Any person substituting a stamp, tag, label, or other
identification pursuant to section 5(b) of the Act shall keep such
records as will show the information set forth on the stamp, tag, label,
or other identification that he removed and the name or names of the
person or persons from whom such textile fiber product was received.
(c) The records required to be maintained pursuant to the provisions
of this rule shall be preserved for at least three years.
(24 FR 4480, June 2, 1959, as amended at 53 FR 31315, Aug. 18, 1988)
16 CFR 303.40 Use of terms in written advertisements which imply
presence of a fiber.
The use of terms in written advertisements which are descriptive of a
method of manufacture, construction, or weave, and which by custom and
usage are also indicative of a textile fiber or fibers, or the use of
terms in such advertisements which constitute or connote the name or
presence of a fiber or fibers, shall be deemed to be an implication of
fiber content under section 4(c) of the Act, except that the provisions
of this section shall not be applicable to non-deceptive shelf or
display signs in retail stores indicating the location of textile fiber
products and not intended as advertisements.
16 CFR 303.41 Use of fiber trademarks and generic names in advertising.
(a) In advertising textile fiber products, the use of a fiber
trademark shall require a full disclosure of the fiber content
information required by the Act and regulations in at least one instance
in the advertisement.
(b) Where a fiber trademark is used in advertising textile fiber
products containing more than one fiber, other than permissible
ornamentation, such fiber trademark and the generic name of the fiber
must appear in the required fiber content information in immediate
proximity and conjunction with each other in plainly legible type or
lettering of equal size and conspicuousness.
(c) Where a fiber trademark is used in advertising textile fiber
products containing only one fiber, other than permissive ornamentation,
such fiber trademark and the generic name of the fiber must appear in
immediate proximity and conjunction with each other in plainly legible
and conspicuous type or lettering at least once in the advertisement.
(d) Where a fiber trademark or generic name is used in non-required
information in advertising, such fiber trademark or generic name, shall
not be used in such a manner as to be false, deceptive, or misleading as
to fiber content, or to indicate, directly or indirectly, that a textile
fiber product is composed wholly or in part of a particular fiber, when
such is not the case.
16 CFR 303.42 Arrangement of information in advertising textile fiber
products.
(a) Where a textile fiber product is advertised in such manner as to
require disclosure of the information required by the Act and
regulations, all parts of the required information shall be stated in
immediate conjunction with each other in legible and conspicuous type or
lettering of equal size and prominence. In making the required
disclosure of the fiber content of the product, the generic names of
fibers present in an amount 5 per centum or more of the total fiber
weight of the product together with any fibers disclosed in accordance
with paragraph (b) of 303.3 of this part (Rule 3) shall appear in order
of predominance by weight, to be followed by the designation ''other
fiber'' or ''other fibers'' if a fiber or fibers required to be so
designated be present.
(b) Non-required information or representations shall in no way be
false, deceptive, or misleading as to fiber content and shall not
include any names, terms, or representations prohibited by the Act and
regulations. Such non-required information or representations shall not
be set forth or so used as to interfere with, minimize, or detract from
the required information.
(c) Non-deceptive terms which are properly and truthfully descriptive
of a fiber may be used in conjunction with the generic name of such
fiber; as for example: ''cross-linked rayon,'' ''solution dyed
acetate,'' ''combed cotton,'' ''nylon 66,'' etc.
(24 FR 4480, June 2, 1959, as amended at 30 FR 14254, Nov. 13, 1965;
30 FR 15313, Dec. 11, 1965)
16 CFR 303.43 Fiber content tolerances.
(a) A textile fiber product which contains more than one fiber shall
not be deemed to be misbranded as to fiber content percentages if the
percentages by weight of any fibers present in the total fiber content
of the product, exclusive of permissive ornamentation, do not deviate or
vary from the percentages stated on the label in excess of 3 percent of
the total fiber weight of the product. For example, where the label
indicates that a particular fiber is present in the amount of 40
percent, the amount of such fiber present may vary from a minimum of 37
percent of the total fiber weight of such product to a maximum of 43
percent of the total fiber weight of such product.
(b) Where the percentage of any fiber or fibers contained in a
textile fiber product deviates or varies from the percentage stated on
the label by more than the tolerance or variation provided in paragraph
(a) of this section, such product shall be misbranded unless the person
charged proves that the entire deviation or variation from the fiber
content percentages stated on the label resulted from unavoidable
variations in manufacture and despite the exercise of due care.
(c) Where representations are made to the effect that a textile fiber
product is composed wholly of one fiber, the tolerance provided in
section 4(b)(2) of the Act and paragraph (a) of this section shall not
apply, except as to permissive ornamentation where the textile fiber
product is represented to be composed of one fiber ''exclusive of
ornamentation.''
16 CFR 303.44 Products not intended for uses subject to the act.
Textile fiber products intended for uses not within the scope of the
Act and regulations or intended for uses in other textile fiber products
which are exempted or excluded from the Act shall not be subject to the
labeling and invoicing requirements of the Act and regulations:
Provided, An invoice or other paper covering the marketing or handling
of such products is given, which indicates that the products are not
intended for uses subject to the Textile Fiber Products Identification
Act.
16 CFR 303.45 Exclusions from the act.
(a) Pursuant to section 12(b) of the Act, the Commission hereby
excludes from the operation of the Act:
(1) All textile fiber products except:
(i) Articles of wearing apparel:
(ii) Handkerchiefs;
(iii) Scarfs;
(iv) Beddings;
(v) Curtains and casements;
(vi) Draperies;
(vii) Tablecloths, napkins, and doilies;
(viii) Floor coverings;
(ix) Towels;
(x) Wash cloths and dish cloths;
(xi) Ironing board covers and pads;
(xii) Umbrellas and parasols;
(xiii) Batts;
(xiv) Products subject to section 4(h) of the Act;
(xv) Flags with heading or more than 216 square inches in size;
(xvi) Cushions;
(xvii) All fibers, yarns and fabrics (including narrow fabrics except
packaging ribbons);
(xviii) Furniture slip covers and other covers or coverlets for
furniture;
(xix) Afghans and throws;
(xx) Sleeping bags;
(xxi) Antimacassars and tidies;
(xxii) Hammocks;
(xxiii) Dresser and other furniture scarfs.
(2) Belts, suspenders, arm bands, permanently knotted neckties,
garters, sanitary belts, diaper liners, labels (either required or
non-required) individually and in rolls, looper clips intended for
handicraft purposes, book cloth, artists' canvases, tapestry cloth, and
shoe laces.
(3) All textile fiber products manufactured by the operators of
company stores and offered for sale and sold exclusively to their own
employees as ultimate consumers.
(4) Coated fabrics and those portions of textile fiber products made
of coated fabrics.
(5) Secondhand household textile articles which are discernibly
secondhand or which are marked to indicate their secondhand character.
(6) Non-woven products of a disposable nature intended for one-time
use only.
(7) All curtains, casements, draperies, and table place mats, or any
portions thereof otherwise subject to the Act, made principally of
slats, rods, or strips, composed of wood, metal, plastic, or leather.
(8) All textile fiber products in a form ready for the ultimate
consumer procured by the military services of the United States which
are bought according to specifications, but shall not include those
textile fiber products sold and distributed through post exchanges,
sales commissaries, or ship stores; provided, however, that if the
military services sell textile fiber products for nongovernmental
purposes the information with respect to the fiber content of such
products shall be furnished to the purchaser thereof who shall label
such products in conformity with the Act and regulations before such
products are distributed for civilian use.
(9) All hand woven rugs made by Navajo Indians which have attached
thereto the ''Certificate of Genuineness'' supplied by the Indian Arts
and Crafts Board of the United States Department of Interior. The term
''Navajo Indian'' means any Indian who is listed on the register of the
Navajo Indian Tribe or is eligible for listing thereon.
(b) The exclusions provided for in paragraph (a) of this section
shall not be applicable (1) if any representations as to the fiber
content of such products are made on any label or in any advertisement
without making a full and complete fiber content disclosure on such
label or in such advertisement in accordance with the Act and
regulations with the exception of those products excluded by paragraph
(a)(6) of this section, or (2) if any false, deceptive, or misleading
representations are made as to the fiber content of such products.
(c) The exclusions from the Act provided in paragraph (a) of this
section are in addition to the exemptions from the Act provided in
section 12(a) of the Act and shall not affect or limit such exemptions.
(Sec. 12, 72 Stat. 1723; 15 U.S.C. 70j)
(24 FR 4480, June 2, 1959, as amended at 25 FR 4318, May 14, 1960;
25 FR 7044, July 26, 1960; 29 FR 48, Jan. 3, 1964)
16 CFR 303.45 PART 304 -- RULES AND REGULATIONS UNDER THE HOBBY
PROTECTION ACT
Sec.
304.1 Terms defined.
304.2 General requirements.
304.3 Applicability.
304.4 Application of other law and regulations.
304.5 Marking requirements for imitation political items.
304.6 Marking requirements for imitation numismatic items.
Authority: 15 U.S.C. 2101 et seq.
Source: 40 FR 5496, Feb. 6, 1975, unless otherwise noted.
16 CFR 304.1 Terms defined.
(a) Act means the Hobby Protection Act (approved November 29, 1973;
Pub. L. 93-167, 87 Stat. 686, (15 U.S.C. 2101 et seq.)).
(b) Commerce has the same meanings as such term has under the Federal
Trade Commission Act.
(c) Commission means the Federal Trade Commission.
(d) Imitation numismatic item means an item which purports to be, but
in fact is not, an original numismatic item or which is a reproduction,
copy, or counterfeit of an original numismatic item. Such term includes
an original numismatic item which has been altered or modified in such a
manner that it could reasonably purport to be an original numismatic
item other than the one which was altered or modified. The term shall
not include any re-issue or re-strike of any original numismatic item by
the United States or any foreign government.
(e) Imitation political item means an item which purports to be, but
in fact is not, an original political item, or which is a reproduction,
copy or counterfeit of an original item.
(f) Original numismatic item means anything which has been a part of
a coinage or issue which has been used in exchange or has been used to
commemorate a person, object, place, or event. Such term includes
coins, tokens, paper money, and commemorative medals.
(g) Original political item means any political button, poster,
literature, sticker, or any advertisement produced for use in any
political cause.
(h) Person means any individual, group, association, partnership, or
any other business entity.
(i) Regulations means any or all regulations prescribed by the
Federal Trade Commission pursuant to the Act.
(j) United States means the States, the District of Columbia, and the
Commonwealth of Puerto Rico.
(k) Diameter of a reproduction means the length of the longest
possible straight line connecting two points on the perimeter of the
reproduction.
(40 FR 5496, Feb. 6, 1975, as amended at 53 FR 38942, Oct. 4, 1988)
16 CFR 304.2 General requirement.
Imitation political or numismatic items subject to the Act shall be
marked in conformity with the requirements of the Act and the
regulations promulgated thereunder. Any violation of these regulations
shall constitute a violation of the Act and of the Federal Trade
Commission Act.
16 CFR 304.3 Applicability.
Any person engaged in the manufacturing, or importation into the
United States for introduction into or distribution in commerce, of
imitation political or imitation numismatic items shall be subject to
the requirements of the Act and the regulations promulgated thereunder.
16 CFR 304.4 Application of other law or regulation.
The provisions of these regulations are in addition to, and not in
substitution for or limitation of, the provisions of any other law or
regulation of the United States (including the existing statutes and
regulations prohibiting the reproduction of genuine currency) or of the
law or regulation of any State.
16 CFR 304.5 Marking requirements for imitation political items.
(a) An imitation political item which is manufactured in the United
States, or imported into the United States for introduction into or
distribution in commerce, shall be plainly and permanently marked with
the calendar year in which such item was manufactured.
(b) The calendar year shall be marked upon the item legibly,
conspicuously and nondeceptively, and in accordance with the further
requirements of these regulations.
(1) The calendar year shall appear in arabic numerals, shall be based
upon the Gregorian calendar and shall consist of four digits.
(2) The calendar year shall be marked on either the obverse or the
reverse surface of the item. It shall not be marked on the edge of the
item.
(3) An imitation political item of incusable material shall be
incused with the calendar year in sans-serif numerals. Each numeral
shall have a vertical dimension of not less than two millimeters (2.0
mm) and a minimum depth of three-tenths of one millimeter (0.3 mm) or
one-half ( 1/2) the thickness of the reproduction, whichever is the
lesser. The minimum total horizontal dimension for the four numerals
composing the calendar year shall be six millimeters (6.0 mm).
(4) An imitation political button, poster, literature, sticker, or
advertisement composed of nonincusable material shall be imprinted with
the calendar year in sans-serif numerals. Each numeral shall have a
vertical dimension of not less than two millimeters (2.0 mm). The
minimum total horizontal dimension of the four numerals composing the
calendar year shall be six millimeters (6.0 mm).
16 CFR 304.6 Marking requirements for imitation numismatic items.
(a) An imitation numismatic item which is manufactured in the United
States, or imported into the United States for introduction into or
distribution in commerce, shall be plainly and permanently marked
''COPY''.
(b) The word ''COPY'' shall be marked upon the item legibly,
conspicuously, and nondeceptively, and in accordance with the further
requirements of these regulations.
(1) The word ''COPY'' shall appear in capital letters, in the English
language.
(2) The word ''COPY'' shall be marked on either the obverse or the
reverse surface of the item. It shall not be marked on the edge of the
item.
(3) An imitation numismatic item of incusable material shall be
incused with the word ''COPY'' in sans-serif letters having a vertical
dimension of not less than two millimeters (2.0 mm) or not less than
one-sixth of the diameter of the reproduction, and a minimum depth of
three-tenths of one millimeter (0.3 mm) or to one-half ( 1/2) the
thickness of the reproduction, whichever is the lesser. The minimum
total horizontal dimension of the word ''COPY'' shall be six millimeters
(6.0 mm) or not less than one-half of the diameter of the reproduction.
(4) An imitation numismatic item composed of nonincusable material
shall be imprinted with the word ''COPY'' in sans-serif letters having a
vertical dimension of not less than two millimeters (2.0 mm) or not less
than one-sixth of the diameter of the reproduction. The minimum total
horizontal dimension of the word ''COPY'' shall be six millimeters (6.0
mm) or not less than one-half of the diameter of the reproduction.
(40 FR 5496, Feb. 6, 1975, as amended at 53 FR 38942, Oct. 4, 1988)
16 CFR 304.6 PART 305 -- RULES FOR USING ENERGY COSTS AND CONSUMPTION
INFORMATION USED IN LABELING AND ADVERTISING FOR CONSUMER APPLIANCES
UNDER THE ENERGY POLICY AND CONSERVATION ACT
Sec.
305.1 Scope of the regulations in this part.
305.2 Definitions.
305.3 Description of covered products to which this part applies.
305.4 Prohibited acts.
305.5 Determinations of estimated annual energy cost and energy
efficiency rating.
305.6 Sampling.
305.7 Determinations of capacity.
305.8 Submission of data.
305.9 Representative average unit energy costs.
305.10 Ranges of estimated annual energy costs and energy efficiency
ratings.
305.11 Labeling for covered products.
305.12 Additional information relating to energy consumption.
305.13 Promotional material displayed or distributed at point of
sale.
305.14 Catalogs.
305.15 Test data records.
305.16 Required testing by designated laboratory.
305.17 Effect of other law.
305.18 When the rules take effect.
305.19 Stayed or invalid parts.
Appendix A1 to Part 305 -- Refrigerators
Appendix A2 to Part 305 -- Refrigerator-Freezers
Appendix B to Part 305 -- Freezers
Appendix C to Part 305 -- Dishwashers
Appendix D1 to Part 305 -- Water Heater-Gas
Appendix D2 to Part 305 -- Water Heater-Electric
Appendix D3 to Part 305 -- Water Heater-Oil
Appendix E to Part 305 -- Room Air Conditioners
Appendix F to Part 305 -- Clothes Washers
Appendix G1 to Part 305 -- Forced-Air Furnaces -- Gas
Appendix G2 to Part 305 -- Boilers -- Gas
Appendix G3 to Part 305 -- Furnaces -- Electric
Appendix G4 to Part 305 -- Forced-Air Furnaces -- Oil
Appendix G5 to Part 305 -- Boilers -- Oil
Appendix H to Part 305 -- Cooling Performance and Cost for Central
Air Conditioners
Appendix I to Part 305 -- Heating Performance and Cost for Central
Air Conditioners
Appendix J to Part 305 -- Suggested Data Reporting Format
Appendix K to Part 305 -- Sample Labels
Authority: Sec. 324 of the Energy Policy and Conservation Act, (Pub.
L. 94-163) (1975), as amended by the National Energy Conservation Policy
Act, (Pub. L. 95-619) (1978), the National Appliance Energy Conservation
Act, (Pub. L. 100-12) (1987), and the National Appliance Energy
Conservation Amendments of 1988, (Pub. L. 100-357) (1988), 42 U.S.C.
6294; section 553 of the Administrative Procedure Act, 5 U.S.C. 553.
Source: 52 FR 46894, Dec. 10, 1987, unless otherwise noted.
16 CFR 304.6 Scope
16 CFR 305.1 Scope of the regulations in this part.
The rule in this part establishes requirements for consumer appliance
products, as hereinafter described, in commerce, as ''commerce'' is
defined in the Energy Policy and Conservation Act, 42 U.S.C. 6291, with
respect to:
(a) Labeling the products with information indicating their estimated
annual energy costs or energy efficiency ratings, and related
information or their compliance with applicable standards under section
325 of the Energy Policy and Conservation Act, 42 U.S.C. 6295.
(b) Including in printed matter displayed or distributed at the point
of sale of such products, or including in any catalog from which the
products may be purchased, information concerning their energy
consumption;
(c) Including on the labels, separately attaching to the products, or
shipping with the products, additional information relating to energy
consumption, energy efficiency, or energy cost; and
(d) Making representations, in writing or in broadcast advertising,
respecting the energy consumption, energy efficiency, or the cost of
energy consumed by consumer appliance products.
(52 FR 46894, Dec. 10, 1987, as amended at 54 FR 28034, July 5, 1989)
16 CFR 305.1 Definitions
16 CFR 305.2 Definitions.
(a) Act means the Energy Policy and Conservation Act (Pub. L.
94-163), and amendments thereto.
(b) Commission means the Federal Trade Commission.
(c) Manufacturer means any person who manufactures, produces,
assembles, or imports a consumer appliance product. Assembly operations
which are solely decorative are not included.
(d) Retailer means a person to whom a consumer appliance product is
delivered or sold, if such delivery or sale is for purposes of sale or
distribution in commerce to purchasers who buy such product for purposes
other than resale. The term retailer includes purchasers of appliances
who install such appliances in newly constructed or newly rehabilitated
housing, or mobile homes, with the intent to sell the covered appliances
as part of the sale of such housing or mobile homes.
(e) Distributor means a person (other than a manufacturer or
retailer) to whom a consumer appliance product is delivered or sold for
purposes of distribution in commerce.
(f) Private labeler means an owner of a brand or trademark on the
label of a consumer appliance product which bears a private label.
(g) Range of comparability means a group of models within a class of
covered products, each model of which satisfies approximately the same
consumer needs.
(h) Estimated annual operating cost or estimated annual energy cost
means the aggregate retail cost of the energy which is likely to be
consumed annually in representative use of a consumer product,
determined in accordance with tests prescribed under section 323 of the
Act (42 U.S.C. 6293).
(i) Energy efficiency rating means the annual fuel utilization
efficiency for furnaces, energy efficiency ratio for the cooling
function of central air conditioners, and heating seasonal performance
factor for the heating function of central air conditioners determined
in accordance with tests prescribed under section 323 of the Act (42
U.S.C. 6293).
(j) Range of estimated annual operating costs or range of estimated
annual energy costs means the range of estimated annual operating costs
of alI models within a designated range of comparability.
(k) Range of energy efficiency ratings means the range of energy
efficiency ratings for all models within a designated range of
comparability.
(l) New covered product, as used in 305.4, means a covered product
the title of which has not passed to a purchaser who buys the product
for purposes other than resale or leasing for a period in excess of one
year.
(m) Catalog means printed material which contains the terms of sale,
retail price, and instructions for ordering, from which a retail
consumer can order a covered product.
(n) Consumer appliance product means any consumer product, as
identified in section 322 of the Act (42 U.S.C. 6292).
(o) Covered Product means any consumer appliance product defined in
305.3 of the rule.
(p) Luminaire means a complete lighting unit consisting of a
fluorescent lamp or lamps, together with parts designed to distribute
the light, to position and protect such lamps, and to connect such lamps
to the power supply through the ballast.
(q) Ballast efficacy factor means the relative light output divided
by the power input of a fluorescent lamp ballast, as measured under test
conditions specified in American National Standards Institute standard
C82.2-1984, or as may be prescribed by the Secretary of Energy.
(52 FR 46894, Dec. 10, 1987, as amended at 54 FR 28035, July 5, 1989)
16 CFR 305.3 Description of covered products to which this part
applies.
(a) Refrigerators and refrigerator-freezers.
(1) Electric refrigerator means a cabinet designed for refrigerated
storage of food at temperatures above 32 F and having a source of
refrigeration requiring an electrical energy input only. It may include
a compartment for the freezing and storage of food at temperatures below
32 F but does not provide a separate low-temperature compartment
designed for the freezing of and long-term storage of food at
temperatures below 8 F. It has only one exterior door, but may have
interior doors or compartments.
(2) Electric refrigerator-freezer means a cabinet which consists of
two or more compartments with at least one of the compartments designed
for the refrigerated storage of foods at temperatures above 32 F and
with at least one of the compartments designed for the freezing of and
the storage of frozen foods at temperatures of 8 F or below and which
may be capable of adjustment by the user to a temperature of 0 F or
below. The source of refrigeration requires an electrical energy input
only.
(b) Freezer means a cabinet designed as a unit for the storage of
food at temperatures of 0 F or below and which has the ability to
freeze food. The source of refrigeration requires an electric energy
input only.
(c) Dishwasher means a cabinetlike appliance which, with the aid of
water and detergent, washes, rinses, and dries (when a drying process is
included) dishware, glassware, eating utensils and most cooking utensils
by chemical, mechanical, and/or electrical means and discharges to the
plumbing drainage system.
(d) Water heater means an automatically controlled, thermally
insulated vessel designed for heating water and storing heated water.
It is designed to produce hot water at a temperature of less than 180
F.
(1) Electric water heater means a water heater which utilizes
electricity as the energy source for heating the water, which has a
manufacturer's specified energy input rating of 12 kilowatts or less at
a voltage of no greater than 250 volts, and which has a manufacturer's
specified storage capacity of not less than 20 gallons nor more than 120
gallons.
(2) Gas water heater means a water heater which utilizes gas as the
energy source for heating the water, which has a manufacturer's
specified energy input rating of 75,000 Btu's per hour or less, and
which has a manufacturer's specified storage capacity of not less than
20 gallons nor more than 100 gallons.
(3) Oil water heater means a water heater which utilizes oil as the
energy source for heating the water, which has a manufacturer's
specified energy input rating of 103,875 Btu's per hour or less and
which has a manufacturer's specified storage capacity of 50 gallons or
less.
(e) Room air conditioner means an encased assembly designed as a unit
for mounting in a window or through the wall for the purpose of
providing delivery of conditioned air to an enclosed space. It includes
a prime source of refrigeration and may include a means for ventilating
and/or heating.
(f) Clothes washer means a consumer product designed to clean
clothes, utilizing a water solution of soap and/or detergent and
mechanical agitation or other movement.
(1) Automatic clothes washer means a class of clothes washer which
has a control system capable of scheduling a pre-selected combination of
operations, such as regulation of water fill level, and performance of
wash, rinse, drain and spin functions, without the need for the user to
intervene subsequent to the initiation of machine operation. Some
models may require user intervention to initiate these different
segments of the cycle after the machine has begun operation, but they do
not require the user to intervene to regulate the water temperature by
adjusting the external water faucet valves.
(2) Semi-automatic clothes washer means a class of clothes washer
that is the same as an automatic clothes washer except that the user
must intervene to regulate the water temperature by adjusting the
external water faucet valves.
(3) Other clothes washer means a class of clothes washer which is not
an automatic or semi-automatic clothes washer.
(g) Furnace means a device, utilizing only single-phase electric
current or millivoltage DC current in conjunction with either natural
gas, propane, or home heating oil, which is designed to be the principal
heating source for the living space of a residence and which is not
contained within the same cabinet with a central air conditioner, whose
rated cooling capacity is above 65,000 Btu's per hour. Every furnace is
either an electric central furnace, electric boiler, forced-air central
furnace, gravity central furnace, or low pressure steam or hot water
boiler. The heat input rate of a furnace is less than 300,000 Btu's per
hour for electric boilers and low pressure steam or hot water boilers,
and is less than 225,000 Btu's per hour for forced-air central furnaces,
gravity central furnaces, and electric central furnaces.
(h) Central air conditioner means a consumer product which is powered
by single phase electric current, which is rated below 65,000 Btu's per
hour, which is not contained within the same cabinet as a furnace whose
rated capacity is above 225,000 Btu per hour, and which is either a
''heat pump'' or a ''cooling only unit.''
(1) Condenser-evaporator coil combination means a condensing unit
made by one manufacturer and one of several evaporator coils, either
manufactured by the same manufacturer or another manufacturer, intended
to be combined with that particular condensing unit.
(2) Condensing unit means a component of a ''central air
conditioner'' which is designed to remove heat absorbed by the
refrigerant and to transfer it to the outside environment, and which
consists of an outdoor coil, compressor(s), and air moving device.
(3) Cooling only unit means a ''central air conditioner'' which
consists of an air cooled condensing unit and an evaporator coil, and
which is designed to provide air cooling, dehumidifying, circulating,
and air cleaning.
(i) Heat pump means a ''central air conditioner'' which is either an
''air-source heat pump'' or a ''water-source heat pump.''
(1) Air-source heat pump means a ''heat pump'' which consists of one
or more assemblies, which utilizes an indoor conditioning coil,
compressor(s), and refrigerant-to-outdoor air heat exchanger to provide
air heating, and which may also provide air cooling, dehumidifying,
circulating, and air cleaning.
(2) Water-source heat pump means a ''heat pump'' which consists of
one assembly which utilizes an indoor conditioning coil with air moving
means, compressor(s), and refrigerant-to-water heat exchanger(s) to
provide both air heating and cooling, dehumidifying, circulating, and
air cleaning. Water source heat pumps are not subject to the provisions
of this rule.
(j) Fluorescent lamp ballast means a device that is used to start and
operate fluorescent lamps by providing a starting voltage and current
and limiting the current during normal operation, and that is designed
to operate at nominal input voltages of 120 or 277 volts with a
frequency of 60 Hertz and is for use in connection with F40T12, F96T12
or F96T12HO lamps.
(52 FR 46894, Dec. 10, 1987, as amended at 54 FR 28035, July 5, 1989)
16 CFR 305.3 General
16 CFR 305.4 Prohibited acts.
(a) It shall be unlawful and subject to the enforcement penalties of
section 333 of the Act of a maximum civil penalty of $100 for each unit
of any new covered product to which this part applies:
(1) For any manufacturer or private labeler knowingly to distribute
in commerce any new covered product unless such covered product is
labeled in accordance with 305.11 with a label, flap tag, hang tag, or
energy fact sheet which conforms to the provisions of the Act and this
part.
(2) For any manufacturer, distributor, retailer, or private labeler
knowingly to remove or render illegible any label required to be
provided with such product by this part.
(3) For any manufacturer or private labeler knowingly to distribute
in commerce any new covered product, if there is not included (i) on the
label, (ii) separately attached to the product, or (iii) shipped with
the product, additional information relating to energy consumption or
energy efficiency which conforms to the requirements in this part.
(b) It shall be unlawful and subject to the enforcement penalties of
section 333 of the Act of a maximum civil penalty of $100 per day for
any manufacturer or private labeler knowingly to:
(1) Refuse a request by the Commission or its designated
representative for access to, or copying of, records required to be
supplied under this part.
(2) Refuse to make reports or provide upon request by the Commission
or its designated representative any information required to be supplied
under this part.
(3) Refuse upon request by the Commission or its designated
representative to permit a representative designated by the Commission
to observe any testing required by this part while such testing is being
conducted or to inspect the results of such testing. This section shall
not limit the Commission from requiring additional testing under this
part.
(4) Refuse, when requested by the Commission or its designated
representative, to supply at the manufacturer's expense, no more than
two of each model of each covered product to any laboratory designated
by the Commission for the purpose of ascertaining whether the
information in catalogs or set out on the label as required by this part
is accurate. This action will be taken only after review of a
manufacturer's testing records and an opportunity to revalidate test
data has been extended to the manufacturer.
(5) Distribute in commerce any catalog containing a listing for a
covered product without the information required by 305.14 of this
part. This subsection shall also apply to distributors and retailers.
(c) Pursuant to section 333(c) of the Act, it shall be an unfair or
deceptive act or practice in violation of section 5(a)(1) of the Federal
Trade Commission Act (15 U.S.C. 45(a)(1)) for any manufacturer,
distributor, retailer or private labeler in or affecting commerce to
display or distribute at point of sale any printed material applicable
to a covered product under this rule if such printed material does not
contain the information required by 305.13. This requirement does not
apply to any broadcast advertisement or to any advertisement in a
newspaper, magazine, or other periodical.
(d) Effective 180 days after a test procedure applicable to a
consumer appliance product is prescribed by the Secretary of the
Department of Energy, pursuant to section 323 of the Act (42 U.S.C.
6293), it shall be an unfair or deceptive act or practice in violation
of section 5(a)(1) of the Federal Trade Commission Act (15 U.S.C.
45(a)(1)) for any manufacturer, distributor, retailer, or private
labeler to make any representation in or affecting commerce --
(1) In writing (including a representation on a label), or
(2) In any broadcast advertisement, respecting the energy consumption
of the product or cost of energy consumed by the product, unless the
product has been tested in accordance with the test procedure and the
representation fairly discloses the results of the testing. This
requirement is not limited to consumer appliance products covered by the
labeling requirements of this part.
Any manufacturer, distributor, retailer, or private labeler may file
a petition with the Commission not later than sixty (60) days before the
expiration of the period involved for an extension of the 180-day
period. If the Commission finds that the requirements would impose an
undue hardship on the petitioner, the Commission may extend the 180 day
period with respect to the petitioner up to an additional 180 days.
(e) This part shall not apply to:
(1) Any covered product if it is manufactured, imported, sold, or
held for sale for export from the United States, so long as such product
is not in fact distributed in commerce for use in the United States, and
such covered product or the container thereof bears a stamp or label
stating that such covered product is intended for export.
(2) Any covered product, except central air conditioners, pulse
combustion and condensing furnaces, and fluorescent lamp ballasts, if
the manufacture of the product was completed prior to May 19, 1980. Any
central air conditioner, pulse combustion furnace or condensing furnace
if its manufacture was completed prior to June 7, 1988. Any fluorescent
lamp ballast if its manufacture was completed prior to January 1, 1990.
(3) Any catalog or point of sale printed matter pertaining to covered
products other than central air conditioners and pulse combustion and
condensing furnaces distributed prior to May 19, 1980, and any catalog
or point of sale printed matter pertaining to central air conditioners
and pulse combustion and condensing furnaces distributed prior to June
7, 1988 except that if representations respecting the energy consumption
or energy efficiency of any covered product or other consumer appliance
product or cost of energy consumed by such product are included, they
are subject to the requirements of paragraph (d) of this section.
(f) As used in paragraphs (a) and (b) of this section, the term
''knowingly'' means:
(1) The having of actual knowledge, or
(2) The presumed having of knowledge deemed to be possessed by a
reasonable person who acts in the circumstances, including knowledge
obtainable upon the exercise of due care.
(52 FR 46894, Dec. 10, 1987, as amended at 54 FR 28035, July 5, 1989)
16 CFR 305.4 Testing
16 CFR 305.5 Determinations of estimated annual energy cost and energy
efficiency rating.
Procedures for determining the estimated annual energy costs, the
energy efficiency ratings and the power and efficacy factors of covered
products are those found in 10 CFR Part 430, Subpart B, in the following
sections:
(a) Refrigerators and refrigerator-freezers -- 430.22(a).
(b) Freezers -- 430.22(b).
(c) Dishwashers -- 40.22(c).
(d) Water heaters -- 430.22(e).
(e) Room air conditioners -- 430.22(f).
(f) Clothes washers -- 430.22(j).
(g) Furnaces -- 430.22(n).
(h) Central air conditioners -- 430.22(m).
(i) Fluorescent lamp ballasts -- 430.22(q).
(52 FR 46894, Dec. 10, 1987, as amended at 54 FR 28035, July 5, 1989)
16 CFR 305.6 Sampling.
Any representation with respect to or based upon a measure or
measures of energy consumption incorporated into 305.5 shall be based
upon the sampling procedures set forth in 430.23 of 10 CFR Part 430,
Subpart B.
16 CFR 305.7 Determinations of capacity.
The capacity of covered products shall be determined as follows:
(a) Refrigerators and refrigerator-freezers. The capacity shall be
the net refrigerated volume in cubic feet, rounded to the nearest
one-tenth of a cubic foot, determined according to 3.2 of Appendix Al to
10 CFR Part 430, Subpart B.
(b) Freezers. Tthe capacity shall be the net freezer refrigerated
volume in cubic feet, rounded to the nearest one-tenth of a cubic foot,
determined according to 3.2 of Appendix B to 10 CFR Part 430, Subpart B.
(c) Dishwashers. The capacity shall be the place-setting capacity,
calculated in conformance with AHAM Specification DW-1.
(d) Water heaters. The capacity shall be the first hour rating,
determined according to 4.8 of Appendix E to 10 CFR Part 430, Subpart B.
(e) Room air conditioners. The capacity shall be the cooling
capacity in Btu's per hour, determined according to 4.1 of Appendix F to
10 CFR Part 430, Subpart B, but rounded to the nearest value ending in
hundreds that will satisfy the relationship that the value of EER used
in representations equals the rounded value of capacity divided by the
value of input power in watts. If a value ending in hundreds will not
satisfy this relationship, the capacity may be rounded to the nearest
value ending in 50 that will.
(f) Clothes washers. The size shall be the tub capacity, rounded to
the nearest gallon, determined according to 3.1 of Appendix J to 10 CFR
Part 430, Subpart B, in the terms standard or compact as defined in
Appendix J of this rule.
(g) Furnaces. The capacity shall be the heating capacity in Btu's
per hour, rounded to the nearest 1,000 Btu's per hour, determined
according to 4.7 or 4.10 of Appendix N to 10 CFR Part 430, Subpart B.
(h) Central air conditioners, cooling. The capacity shall be the
cooling capacity in Btu's per hour, determined according to 3.1 of
Appendix M to 10 CFR Part 430, Subpart B, rounded to the nearest 100
Btu's per hour for capacities less than 20,000 Btu's per hour; to the
nearest 200 Btu's per hour for capacities between 20,000 and 37,999
Btu's per hour; and to the nearest 500 Btu's per hour for capacities
between 38,000 and 64,999 Btu's per hour.
(i) Central air conditioners, heating. The capacity shall be the
heating capacity in Btu's per hour, determined according to 3.2 of
Appendix M to 10 CFR Part 430, Subpart B, rounded to the nearest 100
Btu's per hour for capacities less than 20,000 Btu's per hour; to the
nearest 200 Btu's per hour for capacities between 20,000 and 37,999
Btu's per hour; and to the nearest 500 Btu's per hour for capacities
between 38,000 and 64,999 Btu's per hour.
(j) Fluorescent lamp ballasts. The capacity shall be the ballast
input voltage, determined according to 1.2 of Appendix Q to 10 CFR Part
430, Subpart B.
(52 FR 46894, Dec. 10, 1987, as amended at 54 FR 28035, July 5, 1989)
16 CFR 305.8 Submission of data.
(a) Each manufacturer of a covered product, except manufacturers of
fluorescent lamp ballasts, shall submit to the Commission, not later
than January 21, 1980 (for manufacturers of central air conditioners and
pulse combustion and condensing furnaces, the submission date shall be
February 8, 1988), a report listing the estimated annual energy cost
(for refrigerators and refrigerator-freezers, freezers, dishwashers,
water heaters, and clothes washers) or the energy efficiency rating (for
room air conditioners, central air conditioners and furnaces) for each
basic model in current production, determined according to 305.5 and
statistically verified according to 305.6. The report must also list,
for each basic model in current production: the model numbers for each
basic model; the total energy consumption, determined in accordance
with 305.5, used to calculate the estimated annual energy cost or the
energy efficiency rating; the number of tests performed; and its
capacity, determined in accordance with 305.7. For those models which
use more than one energy source or more than one cycle, each separate
amount of energy consumption, or energy cost, measured in accordance
with 305.5, shall be listed in the report. Appendix J illustrates a
suggested reporting format. Starting serial numbers or other numbers
identifying the date of manufacture of covered products shall be
submitted by July 21, 1980 (for manufacturers of central air
conditioners and pulse combustion and condensing furnaces, the
submission date shall be eight months after publication of a final,
amended rule covering central air conditioners). Each manufacturer of a
covered fluorescent lamp ballast shall submit to the Commission, not
later than March 1, 1990 (and annually thereafter on or before that
date), a report for each basic model of fluorescent lamp ballast in
current production. The report shall contain the following information:
(1) Name and address of manufacturer;
(2) All trade names under which the fluroescent lamp ballast is
marketed;
(3) Model number;
(4) Starting serial number, date code or other means of identifying
the date of manufacture (date of manufacture information must be
included with only the first submission for each basic model);
(5) Nominal input voltage and frequency;
(6) Ballast efficacy factor; and,
(7) Type (F40T12, F96T12 or F96T12HO) and number of lamp or lamps
with which the fluorescent lamp ballast is designed to be used.
(b) Thereafter, all data required by 305.8(a) except serial numbers,
shall be submitted to the Commission annually, on or before the
following dates:
All revisions to such data (both additions to and deletions from the
preceding data) shall be submitted to the Commission as part of the next
annual report. Serial number reports for new covered products are due
sixty days after the annual effective mandatory labeling date for each
product.
(c) All information required by paragraph (a) of this section must be
submitted for new models prior to any distribution of such model.
Models subject to design or retrofit alterations which change the data
contained in any annual report shall be reported in the manner required
for new models. Models which are discontinued shall be reported in the
next annual report.
(52 FR 46894, Dec. 10, 1987, as amended at 54 FR 28035, July 5, 1989)
16 CFR 305.8 Representative Average Unit Energy Costs
16 CFR 305.9 Representative average unit energy costs.
(a) Table 1, below, contains the representative unit energy costs to
be utilized for all requirements of this part.
(b) Table 1, above, will be revised on the basis of future
information provided by the Secretary of the Department of Energy, but
not more often than annually. Manufacturers shall use the revised
information when submission of the annual data is made in accordance
with 305.8.
(52 FR 46894, Dec. 10, 1987, as amended at 53 FR 5971, Feb. 29, 1988;
53 FR 52406, Dec. 28, 1988; 55 FR 13265, Apr. 10, 1990; 56 FR 9123,
Mar. 5, 1991; 56 FR 11509, Mar. 19, 1991)
16 CFR 305.10 Ranges of estimated annual energy costs and energy
efficiency ratings.
(a) The range of estimated annual energy costs or range of energy
efficiency ratings for each covered product (except flouorescent lamp
ballasts) shall be taken from the appropriate appendix to this rule in
effect at the time the labels are affixed to the products. The
Commission shall publish revised ranges annually in the Federal Register
if appropriate, or a statement that specific prior ranges are still
applicable for the new year. Ranges will be changed if the estimated
annual energy cost or the energy efficiency rating of the products
within the range changes in a way that would alter the upper or lower
cost or efficiency rating limits of the range by 15% or more from that
previously published. When a range is revised, all information
disseminated after 90 days following the publication of any revision
shall conform to the revised range. Products which have been labeled
prior to the effective date of a modification under this section need
not be relabeled.
(b) When the estimated annual energy cost or energy efficiency rating
of a given model of a covered product falls outside the limits of the
range found in the current appendix for that product, which could result
from the introduction of a new or changed model, the manufacturer shall
(1) omit placement of such product on the scale, and (2) add a sentence
in the space just below the scale as follows:
The energy cost of this model was not available at the time the range
was published; or The energy efficiency rating of this model was not
available at the time the range was published.
(52 FR 46894, Dec. 10, 1987, as amended at 54 FR 28035, July 5, 1989)
16 CFR 305.10 Required Disclosures
16 CFR 305.11 Labeling for covered products.
(a) Labels -- (1) Layout. All energy labels for each category of
covered products use one size, similar colors and typefaces with
consistent positioning of headline, copy and charts to maintain
uniformity for immediate consumer recognition and readability. Trim
size for all labels is 5 5/16'' x 7 3/8''. Copy is to be set x 27 picas
or x 29 picas and copy page should be centered (right to left and top to
bottom). Depth is variable but should follow closely Figure 1, the
prototype label appearing at the end of this part illustrating the basic
layout. All positioning, spacing, type sizes and line widths should be
similar to and consistent with the prototype label.
(2) Type size and setting. The Helvetica series typeface or
equivalent shall be used exclusively on the label. Specific type sizes
and faces to be used are indicated on the prototype labels (Figures 1,
2, 3, 4, 5, and 6). No hyphenation should be used in setting headline
or text copy. Positioning and spacing should follow the prototype
closely. Generally, text may be set flush left or right, line for line,
or justified with one point leading except where otherwise indicated.
Helvetica medium shall be used for all copy with the following
exceptions only:
(i) Numerals indicating ''highest'' and ''lowest'' energy cost or
efficiency rating;
(ii) Chart headings and, if applicable, energy cost graph headings;
(iii) The line ''How much will this model cost you to run yearly?''
(3) Colors. The basic colors of all labels shall be process yellow
or equivalent and process black. The label shall be printed full bleed
process yellow with a window dropped out, as applicable, (showing as
white) over the table(s) displaying yearly cost. For labels to be used
on furnaces the white window shall be over the text of the three energy
saving steps enumerated on the label. For labels to be used on central
air conditioners, the white window shall be over the text of the
paragraph immediately below the range(s). The window shall flush left
and right, top and bottom with the table rules. All type including
chart or table rules shall be print process black.
(4) Paper stock -- (i) Adhesive labels. All adhesive labels should
be applied so they can easily be removed without use of tools or
liquids, other than water. The paper stock for pressure-sensitive or
other adhesive labels shall have a basic weight of not less than 58
pounds per 500 sheets (25'' x 38'') or equivalent, exclusive of the
release liner and adhesive. The adhesive shall have a minimum peel
adhesion capacity of 24 ounces per inch width. The pressure-sensitive
adhesive shall be applied in not less than two strips not less than 0.5
inches wide. The strips shall be within 0.25 inches of the opposite
edges of the label. For a ''flap tag'' label, the pressure-sensitive
adhesive shall be applied in one strip not less than 0.5 inches wide.
The strip shall be within 0.25 inches of the top edge of the label.
(ii) Hang tags. The paper stock for hang tags shall have a basic
weight of not less than 110 pounds per 500 sheets (25 1/2'' x 30 1/2''
index). When materials are used to attach the hang tags to appliance
products, the materials shall be of sufficient strength to insure that
if gradual pressure is applied to the hang tag by pulling it away from
where it is affixed to the product, the hang tag will tear before the
material used to affix the hang tag to the product breaks.
(5) Contents -- (i) Labels for refrigerators, refrigerator-freezers,
freezers, dishwashers, clothes washers, water heaters and room air
conditioners. (A) Headlines and texts, as illustrated in Figures 1 and
2, are standard for all labels. At the option of the manufacturer or
private labeler, the appropriate year may be inserted in that portion of
the label which discloses the national average unit utility rate upon
which the cost estimates are based.
(B) Name of manufacturer or private labeler shall, in the case of a
corporation, be deemed to be satisfied only by the actual corporate
name, which may be preceded or followed by the name of the particular
division of the corporation. In the case of an individual, partnership,
or association, the name under which the business is conducted shall be
used. Inclusion of the name of the manufacturer or private labeler is
optional at the discretion of the manufacturer or private labeler.
(C) Model number(s) will be the designation given by the manufacturer
or private labeler.
(D) Capacity or size is that determined in accordance with 305.7.
(E) Estimated annual energy cost for refrigerators,
refrigerator-freezers, freezers, dishwashers, clothes washers and water
heaters is that determined in accordance with 305.5. Energy efficiency
rating for room air conditioners is that determined in accordance with
305.5.
(F) Ranges of comparability and of estimated annual energy costs or
energy efficiency ratings, as applicable, are found in section 1 of the
appropriate appendices accompanying this part.
(G) Placement of the labeled product on the scale shall be
proportionate to the costs of the lowest and highest costs or efficiency
ratings forming the scale.
(H) Yearly Cost text and tables are found in section 2 of Appendices
A-I. Cost figures are to be determined in accordance with 305.5 for
the unit energy costs found in section 2 of Appendices A-I. Revised
appendices will be published by the Commission whenever necessary. Use
the unit energy cost figures in the latest published appendices to
determine the cost figures to be used for a particular covered product.
(I) The following statement shall appear at the bottom of the label:
''IMPORTANT
Removal of this label before consumer purchase is a violation of
Federal law (42 U.S.C. 6302).''
(J) A statement that the energy costs or energy efficiency ratings,
as applicable, are based on U.S. Government standard tests is required
on all labels, as indicated in Figures 1 and 2.
(K) No marks or information other than that specified in this Part
shall appear on or directly adjoining this label except for a part or
publication number identification, as desired by the manufacturer. The
identification number shall be in the lower right-hand corner of the
label, and characters shall be in 6-point type or smaller.
(ii) Labels for furnaces. (A) The headline, as illustrated in Figure
3, is standard for all labels.
(B) Name of manufacturer or private labeler shall, in the case of a
corporation, be deemed to be satisfied only by the actual corporate
name, which may be preceded or followed by the name of the particular
division of the corporation. In the case of an individual, partnership,
or association, the name under which the business is conducted shall be
used. Inclusion of the name of the manufacturer or private labeler is
optional at the discretion of the manufacturer or private labeler.
(C) The following statements shall appear on the label, as indicated
in Figure 3:
''You can save substantially on home heating and cooling energy costs
by following the simple steps outlined below:
1. Weatherproof your house.
2. Assure energy efficient heating and cooling equipment selection
and installation.
3. Operate and maintain your system to conserve energy.
Help conserve energy. Compare the energy efficiency rating and cost
information for this model with others. Check the figures and spend
less on energy. Your contractor has the energy fact sheets. Ask for
them.''
(D) The following statement shall appear at the bottom of the label:
''IMPORTANT
Removal of this label before consumer purchase is a violation of
Federal law (42 U.S.C. 6302).''
(E) No marks or information other than specified in this part shall
appear on or directly adjoining this label except for a part or
publication number identification, as desired by the manufacturer. The
identification number shall be in the lower right-hand corner of the
label, and characters shall be in 6-point type or smaller.
(iii) Labels for central air conditioners. (A) The headline, as
illustrated in Figures 4, 5 and 6, is standard for all labels.
(B) Name of manufacturer or private labeler shall, in the case of a
corporation, be deemed to be satisfied only by the actual corporate
name, which may be preceded or followed by the name of the particular
division of the corporation. In the case of an individual, partnership,
or association, the name under which the business is conducted shall be
used. Inclusion of the name of the manufacturer or private labeler is
optional at the discretion of the manufacturer or private labeler.
(C) The energy efficiency rating for the cooling function of central
air conditioners is determined in accordance with 305.5. For the
heating function, the energy efficiency rating shall be calculated for
heating Region IV for the standardized design heating requirement
nearest the capacity measured in the High Temperature Test in accordance
with 305.5. In addition, the energy efficiency rating(s) for split
system condenser-evaporator coil combinations shall be either:
(1) The energy efficiemcy rating of the condenser-evaporator coil
combination that is the particular manufacturer's most commonly sold
combination for that condenser model; or
(2) The energy efficiency rating of the actual condenser-evaporator
coil combination comprising the system to which the label is to be
attached.
(D)(1) Each cooling only central air conditioner shall contain a
generic range of all cooling only central air conditioners.
(2) Each heat pump, except as noted in paragraph (a)(5)(iii)(D)(3) of
this section, shall contain two generic ranges. The first range shall
consist of the cooling side of all heat pumps. The second range shall
consist of the heating side of all heat pumps.
(3) Each heating only heat pump shall contain a generic range of all
heating only heat pumps.
(E) Placement of the labeled product on the scale shall be
proportionate to the lowest and highest efficiency ratings forming the
scale.
(F) The following statement shall appear on the label beneath the
range(s) in bold print:
Federal law requires the seller or installer of this appliance to
make available a fact sheet or directory giving further information
regarding the efficiency and operating cost of this equipment. Ask for
this information.
(G) A statement that the efficiency ratings are based on U.S.
Government standard tests is required on all labels.
In addition, all labels disclosing energy efficiency ratings for the
''most common'' condenser-evaporator coil combinations must contain one
of the following three statements:
(1) For labels disclosing the energy rating for cooling, the
statement should read ''This energy rating is based on U.S. Government
standard tests of this condenser model combined with the most common
coil. The rating may vary slightly with different coils.''
(2) For labels disclosing the energy rating for both heating and
cooling, the statement should read ''This energy rating is based on U.S.
Government standard tests of this condenser model combined with the most
common coil. The rating will vary slightly with different coils and in
different geographic regions.''
(3) For labels disclosing the energy rating for heating, the
statement should read ''This energy rating is based on U.S. Government
standard tests of this condenser model combined with the most common
coil. The rating will vary slightly with different coils and in
different geographic regions.''
Central air conditioner labels disclosing the efficiency ratings for
specific condenser/coil combinations do not have to contain any of the
above three statements. They must contain only the general disclosure
that the energy costs and efficiency ratings are based on U.S.
Government tests (see sample labels).
(H) The following statement shall appear at the bottom of the label:
''IMPORTANT
Removal of this label before consumer purchase is a violation of
Federal law (42 U.S.C. 6302).''
(1) No marks or information other than specified in this part shall
appear on or directly adjoining this label except for a part or
publication number identification, as desired by the manufacturer. The
identification number shall be in the lower right-hand corner of the
label, and characters shall be in 6 point type or smaller.
(6) Placement. Manufacturers shall affix a label to the exterior
surface on covered products in such a position that it can easily be
read while standing in front of the product as it is displayed for sale.
The label should be generally located on the upper-right-front corner
of the product, except that for low-standing products or products with
configurations that make application in that location impractical, some
other prominent location may be used. The top of the label should not
exceed 74 inches from the base of taller products. The label in the
form of a ''flap tag'' shall be adhered to the top of the appliance and
bent (folded at 90 ) to hang over the front, if this can be done with
assurance that it will be readily visible. Labels for split system
central air conditioners shall be affixed to the condensing unit.
(7) Use of hang tags. Information prescribed above for labels may be
displayed in the form of a hang tag, which may be used in place of an
affixed label. If a hang tag is used, it shall be affixed in such a
position that it will be prominent to a consumer examining the product.
(b) Fact sheets -- (1) Distribution. (i) Except as provided in
Subsection c, manufacturers and private labelers must give distributors
and retailers, including assemblers, fact sheets for the furnaces and
central air conditioners they sell to them. Distributors must give the
fact sheets to the retailers, including assemblers, they supply. Each
fact sheet must contain the information listed in 305.11(b)(3).
(ii) Retailers, including assemblers, who sell furnaces or central
air conditioners to consumers must have fact sheets for the furnaces and
central air conditioners they sell. They must make the fact sheets
available to their customers. The fact sheets may be made available to
customers in any manner, as long as customers are likely to notice them.
For example, they can be available in a display, where customers can
take copies of them. They can be kept in a binder at a counter or
service desk, with a sign telling customers where the fact sheets are.
Retailers, including assemblers, who negotiate or make sales at a place
other than their regular places of business must show the fact sheets to
their customers and let them read the fact sheets before they agree to
purchase the product.
(2) Format. All information required to be contained in fact sheets
must be disclosed clearly and conspicuously.
(3) Contents. (i) ''Energy Guide'' headline is standard for all fact
sheets, as for labels.
(ii) Name of manufacturer or private labeler shall, in the case of a
corporation, be deemed to be satisfied only by the actual corporate
name, which may be preceded or followed by the name of the particular
division of the corporation. In the case of an individual, partnership,
or association, the name under which the business is conducted shall be
used.
(iii) Model number(s) will be the designation given by the
manufacturer or private labeler.
(iv) Capacity or size is that determined in accordance with 305.7.
(v) Energy efficiency rating is that determined in accordance with
305.5.
(vi) Ranges of comparability and of energy efficiency ratings are
found in section 1 of the appropriate appendices accompanying this part.
This information is not required on fact sheets for central air
conditioners.
(vii) Placement of the labeled product on the scale shall be
proportionate to energy efficiency ratings of the lowest and highest
efficiency ratings forming the scale.
(viii) Yearly cost information text and tables are found in section 2
of Appendices G, H and I accompanying this part. Cost figures are to be
determined in accordance with 305.5 using the unit energy costs found
in Table 1 of 305.9.
(ix) A statement that the energy costs and energy efficiency ratings
are based on U.S. Government standard tests is required in all fact
sheets.
(x) For central air conditioner fact sheets disclosing efficiency
ratings for the ''most common'' condenser-evaporator coil combinations,
the statement should be made in one of the following three ways:
(A) For fact sheets disclosing the energy rating for cooling, the
statement should read ''This energy rating is based on U.S. Government
standard tests of this condenser model combined with the most common
coil. The rating may vary slightly with different coils.''
(B) For fact sheets disclosing the energy rating for both heating and
cooling, the statement should read ''This energy rating is based on U.S.
Government standard tests of this condenser model combined with the most
common coil. The rating will vary slightly with different coils and in
different geographic regions.''
(C) For fact sheets disclosing the energy rating for heating, the
statement should read ''This energy rating is based on U.S. Government
standard tests of this condenser model combined with the most common
coil. The rating will vary slightly with different coils and in
different geographic regions.''
(xi) Central air conditioner fact sheets disclosing the efficiency
ratings for specific condenser/coil combinations do not have to contain
any of the above three statements. Instead, they must contain a general
disclosure that the energy costs and efficiency ratings are based on
U.S. Government tests.
(c) Manufacturers of central air conditioners may elect to
disseminate information regarding the efficiencies and costs of
operation of their products by means of a directory, or similar
publication, provided it meets the following criteria.
(1) Distribution. (i) It must be distributed to substantially all
retailers and assemblers of central air conditioners.
(ii) It must be made available at cost to all other interested
parties.
(2) Format. All required information must be disclosed clearly and
conspicuously.
(3) Contents. (i) Model number(s) will be the designation given by
the manufacturer or private labeler.
(ii) Capacity or size is that determined in accordance with 305.7.
(iii) Efficiency rating is that determined in accordance with 305.5.
(iv) Cost disclosures must be substantially equivalent to those
required on fact sheets.
(v) A statement that the energy costs and efficiency ratings are
based on U.S. Government standard tests.
(d) Fluorescent Lamp Ballasts and Luminaires -- (1) Contents.
Fluorescent lamp ballasts that are ''covered products,'' as defined in
305.2(o), and to which standards are applicable under section 325 of the
Act, shall be marked conspicuously, in color-contrasting ink, with a
capital letter ''E'' printed within a circle. Packaging for such
fluorescent lamp ballasts, as well as packaging for luminaires into
which they are incorporated, shall also be marked conspicuously with a
capital letter ''E'' printed within a circle. For purposes of this
section, the encircled capital letter ''E'' will be deemed
''conspicuous,'' in terms of size, if it is as large as either the
manufacturer's name or another logo, such as the ''UL,'' ''CBM'' or
''ETL'' logos, whichever is larger, that appears on the fluorescent lamp
ballast, the packaging for such ballast or the packaging for the
luminaire into which the covered ballast is incorporated, whichever is
applicable for purpose of labeling.
(2) Product Labeling. The encircled capital letter ''E'' on
fluorescent lamp ballasts must appear conspicuously, in
color-contrasting ink, (i.e., in a color that contrasts with the
background on which the encircled capital letter ''E'' is placed) on the
surface that is normally labeled. It may be printed on the label that
normally appears on the fluorescent lamp ballast, printed on a separate
label, or stamped indelibly on the surface of the fluorescent lamp
ballast.
(3) Package Labeling. For purposes of labeling under this section,
packaging for such fluorescent lamp ballasts and the luminaires into
which they are incorporated consists of the plastic sheeting, or
''shrink-wrap,'' covering pallet loads of fluorescent lamp ballasts or
luminaires as well as any containers in which such fluorescent lamp
ballasts or the luminaires into which they are incorporated are marketed
individually or in small numbers. The encircled capital letter ''E'' on
packages containing fluorescent lamp ballasts or the luminaires into
which they are incorporated must appear conspicuously, in
color-contrasting ink, on the surface of the package on which printing
or a label normally appears. If the package contains printing on more
than one surface, the label must appear on the surface on which the
product inside the package is described. The encircled capital letter
''E'' may be printed on the surface of the package, printed on a label
containing other information, printed on a separate label, or indelibly
stamped on the surface of the package. In the case of pallet loads
containing fluorescent lamp ballasts or the luminaires into which they
are incorporated, the encircled capital letter ''E'' must appear
conspicuously, in color-contrasting ink, on the plastic sheeting, unless
clear plastic sheeting is used and the encircled capital letter ''E'' is
eligble underneath this packaging. The encircled capital letter ''E''
must also appear conspicuously on any documentation that would normally
accompany such a pallet load. The encircled capital letter ''E'' may
appear on a label affixed to the sheeting or may be indelibly stamped on
the sheeting. It may be printed on the documentation, printed on a
separate label that is affixed to the documentation or indelibly stamped
on the documentation.
(52 FR 46894, Dec. 10, 1987, as amended at 54 FR 28035, July 5, 1989)
16 CFR 305.12 Additional information relating to energy consumption.
Additional information relating to energy consumption which must be
included on labels, separately attached to the product, or shipped with
the product will be published as a separate section 3 of the appendices
accompanying this part. No additional information will be required
without public notice and an opportunity for written comments.
16 CFR 305.13 Promotional material displayed or distributed at point of
sale.
(a) Any manufacturer, distributor, retailer, or private labeler who
prepares printed material for display or distribution at point of sale
concerning a covered product (except fluorescent lamp ballasts) shall
clearly and conspicuously include in such printed material the following
required disclosure:
Before purchasing this appliance, read important energy cost and
efficiency information available from your retailer.
(b) This section shall not apply to:
(1) Written warranties.
(2) Use and care manuals, installation instructions, or other printed
material containing primarily post-purchase information for the
purchaser.
(3) Printed material containing only the indentification of a covered
product, pricing information and/or non-energy related representations
concerning that product.
(4) Any printed material distributed prior to the effective date
listed in 305.18(f).
(c) Any manufacturer, distributor, retailer, or private labeler who
prepares printed material for display or distribution at point of sale
concerning fluorescent lamp ballasts that are ''covered products,'' as
defined in 305.2(o), and to which standards are applicable under
section 325 of the Act, shall disclose conspicuously in such printed
material, in each description of such fluorescent lamp ballasts, an
encircled capital letter ''E''.
(52 FR 46894, Dec. 10, 1987, as amended at 54 FR 28036, July 5, 1989)
16 CFR 305.14 Catalogs.
(a) Any manufacturer, distributor, retailer, or private labeler who
advertises a covered product (except fluorescent lamp ballasts) in a
catalog, from which it may be purchased by cash, charge account or
credit terms, shall include in such catalog, on each page that lists a
covered product, the following information required to be disclosed on
the label:
(1) The capacity of the model.
(2) The estimated annual energy cost for refrigerators,
refrigerator-freezers, freezers, dishwashers, clothes washers and water
heaters. The representative average unit costs for electricity, natural
gas, oil and propane gas, published in 305.9, which are current at the
closing date for printing or the printing deadline date of the catalog,
shall be used to compute the estimated annual energy cost.
(3) The energy efficiency rating for room air conditioners, central
air conditioners and furnaces.
(4) The range of estimated annual energy costs or energy efficiency
ratings, which shall be those which are current at the closing date for
printing or the printing deadline of the catalog.
(5) The following disclosure, appearing clearly and conspicuously:
''IMPORTANT ENERGY INFORMATION IS AVAILABLE. TURN TO PAGE(S) (INSERT
DESIGNATED PAGE NUMBER(S)).''
(b) On the page(s) designated, as referred to in paragraph (a)(5) of
this section, the manufacturer, distributor, retailer or private labeler
must disclose either instructions on how cost grid information,
described in 305.11 (a)(5)(i)(H) and (b)(3)(viii), may be obtained from
the cataloger, or the cost grid information itself, so long as all
information thereon is clearly legible. Information contained in a
catalog for a covered product shall be changed or modified in accordance
with 305.10.
(c) Any manufacturer, distributor, retailer, or private labeler who
advertises fluorescent lamp ballasts that are ''covered products,'' as
defined in 305.2(o), and to which standards are applicable under
section 325 of the Act, in a catalog, from which they may be purchased
by cash, charge account or credit terms, shall disclose conspicuously in
such catalog, in each description of such fluorescent lamp ballasts, a
capital letter ''E'' printed within a circle.
(52 FR 46894, Dec. 10, 1987, as amended at 54 FR 28036, July 5, 1989)
16 CFR 305.14 Additional Requirements
16 CFR 305.15 Test data records.
(a) Test data shall be kept on file by the manufacturer of a covered
product for a period of two years after production of that model has
been terminated.
(b) Upon notification by the Commission or its designated
representative, a manufacturer or private labeler shall provide, within
30 days of the date of such request, the underlying test data from which
the estimated annual energy cost or energy efficiency rating for each
basic model was derived.
16 CFR 305.16 Required testing by designated laboratory.
Upon notification by the Commission or its designated representative,
a manufacturer of a covered product shall supply, at the manufacturer's
expense, no more than two of each model of each product to a laboratory,
which will be identified by the Commission or its designated
representative in the notice, for the purpose of ascertaining whether
the estimated annual energy cost or energy efficiency rating disclosed
on the label or fact sheet, or as required by 305.14, or the
representation made by the encircled capital letter ''E'' label that the
product is in compliance with applicable standards in section 325 of the
Act, is accurate. Such a procedure will only be followed after the
Commission or its staff has examined the underlying test data provided
by the manufacturer as required by 305.15(b) and after the manufacturer
has been afforded the opportunity to reverify test results from which
the estimated annual energy cost or energy efficiency rating for each
basic model was derived. A representative designated by the Commission
shall be permitted to observe any reverification procedures required by
this part, and to inspect the results of such reverification. Charges
for testing by designated laboratories will be paid by the Commission.
(52 FR 46894, Dec. 10, 1987, as amended at 54 FR 28036, July 5, 1989)
16 CFR 305.16 Effect of This Part
16 CFR 305.17 Effect on other law.
This regulation supersedes any State regulation to the extent
required by section 327 of the Act. Pursuant to the Act, all State
regulations that require the disclosure for any covered product of
information with respect to energy consumption, other than the
information required to be disclosed in accordance with this part, are
superseded.
16 CFR 305.18 When the rules take effect.
(a) The report required by 305.8(a), listing serial numbers or other
numbers identifying the date of manufacture of models in current
production, must be received by the Commission no later than July 21,
1980. For manufacturers of central air conditioners and pulse
combustion and condensing furnaces, the date for submitting such
starting serial numbers or other identifying numbers shall be August 8,
1988. For manufacturers of fluorescent lamp ballasts, the date for
submitting starting serial numbers, date codes or other means of
identifying the date of manufacture shall be March 1, 1990.
(b) The first required annual report of model numbers, test results
and other data, referred to in 305.8(a), must be received by the
Commission no later than January 21, 1980. For manufacturers of central
air conditioners and pulse combustion and condensing furnaces, the date
for submitting such data shall be February 8, 1988. For manufacturers
of fluorescent lamp ballasts, the date for submitting such data shall be
March 1, 1990.
(c) The requirement that the labels, flap tags, or hang tags
specified in this rule must be attached to new covered products takes
effect for all new covered products on which manufacture is completed on
or after May 19, 1980, except as provided for in 305.18(h).
(d) The requirement that energy fact sheets specified in this rule
must be provided takes effect for furnaces on which manufacture is
completed on or after May 19, 1980, except as provided for in
305.18(h).
(e) The requirement that specified information about covered products
be disclosed in catalogs takes effect for all catalogs printed and
distributed on or after May 19, 1980. This requirement does not apply
to catalogs if the catalog issue was distributed before May 19, 1980.
The requirement that specified information about central air
conditioners and pulse combustion and condensing furnaces be disclosed
in catalogs takes effect for all catalogs printed and distributed on or
after June 7, 1988. The requirement that specified information about
fluorescent lamp ballasts be disclosed in catalogs takes effect for all
catalogs printed and distributed on or after January 1, 1990. Required
revisions to the specified information must be made in all new editions
and new catalogs printed and distributed after the date of the revision.
(f) The requirement that all printed material displayed or
distributed at the point of sale disclose information specified in
305.13 takes effect on May 19, 1980, except as provided for in 305.18
(h) and (i).
(g) The preemption provision in 305.17 takes effect on November 19,
1979.
(h) Unless otherwise provided in 305.18, all requirements pertaining
to central air conditioners and pulse combustion and condensing furnaces
take effect for all new covered products on which manufacture is
completed on or after June 7, 1988.
(i) Unless otherwise provided in 305.18, all requirements pertaining
to fluorescent lamp ballasts take effect for all new covered products on
which manufacture is completed on or after January 1, 1990. All
requirements pertaining to luminaires into which covered fluorescent
lamp ballasts have been incorporated take effect on January 1, 1990.
(j) All other requirements of this rule except those in 305.4(d)
take effect on May 19, 1980.
(52 FR 46894, Dec. 10, 1987, as amended at 54 FR 28036, July 5, 1989)
16 CFR 305.19 Stayed or invalid parts.
If any section or portion of a section of this part is stayed or held
invalid, the remainder of the part will not be affected.
16 CFR 305.19 Pt. 305, App. A1
16 CFR 305.19 Appendix A1 to Part 305 -- Refrigerators
2. Yearly Cost Information: Estimates on the scale are based on a
national average electric rate of 7.88 per kilowatt hour.
Beside each cost in the table place the cost estimate for the model
being labeled using the table costs in place of the national average
rate.
(52 FR 49634, Dec. 31, 1987, as amended at 54 FR 21051, May 16, 1989;
55 FR 48230, Nov. 20, 1990)
16 CFR 305.19 Pt. 305, App. A2
16 CFR 305.19 Appendix A2 to Part 305 -- Refrigerator-Freezers
1. Range Information:
2. Yearly Cost Information: Estimates on the scale are based on a
national average electric rate of 7.88 per kilowatt hour.
Beside each cost in the table place the cost estimate for the model
being labeled using the table costs in place of the national average
rate.
(52 FR 49635, Dec. 31, 1987, as amended at 54 FR 21052, May 16, 1989;
55 FR 48230, Nov. 20, 1990)
16 CFR 305.19 Pt. 305, App. B
16 CFR 305.19 Appendix B to Part 305 -- Freezers
1. Range Information:
2. Yearly Cost Information: Estimates on the scale are based on a
national average electric rate of 7.88 per kilowatt hour.
Beside each cost in the table place the cost estimate for the model
being labeled using the table costs in place of the national average
rate.
(52 FR 49635, Dec. 31, 1987, as amended at 54 FR 21052, May 16, 1989;
55 FR 48230, Nov. 20, 1990)
16 CFR 305.19 Pt. 305, App. C
16 CFR 305.19 Appendix C to Part 305 -- Dishwashers
1. Range Information: ''Compact'' includes countertop dishwasher
models with a capacity of fewer that eight (8) place settings.
''Standard'' includes portable or built-in dishwasher models with a
capacity of eight (8) or more place settings.
Place settings shall conform to AHAM Specification DE-1 for
chinaware, flatware and serving pieces. Load patterns shall conform to
the operating normal for the model being tested.
2. Yearly Cost Information: Estimates on the scales are based on a
national average electric rate of 7.70 per kilowatt hour, a national
average natural gas rate of 55.2 per therm, and 6.2 loads of dishes per
week.
(52 FR 49635, Dec. 31, 1987, as amended at 54 FR 32632, Aug. 9, 1989;
54 FR 38967, Sept. 22, 1989)
16 CFR 305.19 Pt. 305, App. D1
16 CFR 305.19 Appendix D1 to Part 305 -- Water Heater -- Gas
1. Range Information:
2. Yearly Cost Information -- Natural Gas and Propane: Estimates on
the scale are based on a national average natural gas rate of 60.54
cents per therm and a national average propane rate of $0.89 per gallon.
Beside each cost in the table place the cost estimate for the model
being labeled using the table costs in place of the national average
rate.
3. Additional Information (Reserved)
(52 FR 49635, Dec. 31, 1987, as amended at 53 FR 26238, July 12,
1988; 56 FR 46524, Sept. 13, 1991)
16 CFR 305.19 Pt. 305, App. D2
16 CFR 305.19 Appendix D2 to Part 305 -- Water Heater -- Electric
1. Range Information:
2. Yearly Cost Information -- Electricity: Estimates on the scale
are based on a national average electric rate of 8.24 cents per kilowatt
hour.
Beside each cost in the table place the cost estimate for the model
being labeled using the table costs in place of the national average
rate.
3. Additional Information (Reserved)
(52 FR 49636, Dec. 31, 1987, as amended at 53 FR 26238, July 12,
1988; 56 FR 46525, Sept. 13, 1991)
16 CFR 305.19 Pt. 305, App. D3
16 CFR 305.19 Appendix D3 to Part 305 -- Water Heater -- Oil
1. Range Information:
2. Yearly Cost Information -- Oil: Estimates on the scale are based
on a national average oil rate of $1.29 per gallon.
Beside each cost in the table, place the cost estimate for the model
being labeled using the table costs in place of the national average
rate.
3. Additional Information -- (Reserved)
(52 FR 49636, Dec. 31, 1987, as amended at 53 FR 26238, July 12,
1988; 56 FR 46525, Sept. 13, 1991)
16 CFR 305.19 Pt. 305, App. E
16 CFR 305.19 Appendix E to Part 305 -- Room Air Conditioners
1. Range Information:
2. Yearly Cost Information:
Below the appropriate number of yearly hours of use and beside each
cost in the table, place the cost estimate for the model being labeled
using the table costs and using the yearly hours of use.
3. Additional Information -- (Reserved)
(52 FR 49636, Dec. 31, 1987, as amended at 54 FR 38967, Sept. 22,
1989)
16 CFR 305.19 Pt. 305, App. F
16 CFR 305.19 Appendix F to Part 305 -- Clothes Washers
1. Range Information: ''Compact'' includes all household clothes
washers with a tub capacity of less than 1.6 cu. ft. or 13 gallons of
water.
''Standard'' includes all household clothes washers with a tub
capacity of 1.6 cu. ft. or 13 gallons of water or more.
2. Yearly Cost Information: Estimates on the scales are based on a
national average electric rate of 8.24 per kilowatt hour, a national
average natural gas rate of 60.54 per therm, and eight loads of clothes
per week.
Below the appropriate number of clothes loads in the table and beside
each cost, place the cost estimate for the model being labeled using the
table costs and using the designated loads in the table.
3. Additional Information -- (Reserved)
(52 FR 49637, Dec. 31, 1987, as amended at 53 FR 18552, May 24, 1988;
56 FR 15275, Apr. 16, 1991)
16 CFR 305.19 Pt. 305, App. G1
16 CFR 305.19 Appendix G1 to Part 305 -- Forced-Air Furnaces -- Gas
(55 FR 7303, Mar. 1, 1990)
16 CFR 305.19 Appendix G2 to Part 305 -- Boilers -- Gas
(55 FR 7303, Mar. 1, 1990)
16 CFR 305.19 Appendix G3 to Part 305 -- Furnaces -- Electric
(52 FR 49637, Dec. 31, 1987. Redesignated at 55 FR 7303, Mar. 1,
1990)
16 CFR 305.19 Pt. 305, App. G4
16 CFR 305.19 Appendix G4 to Part 305 -- Forced-Air Furnaces -- Oil
1. Range information:
(52 FR 49637, Dec. 31, 1987. Redesignated at 55 FR 7303, Mar. 1,
1990)
16 CFR 305.19 Appendix G5 to Part 305 -- Boilers -- Oil
(55 FR 7303, Mar. 1, 1990)
16 CFR 305.19 Pt. 305, App. H
16 CFR 305.19 Appendix H to Part 305 -- Cooling Performance and Cost
for Central Air Conditioners
1. Range Information:
2. Yearly Cost Information:
For each model, display three annual operating costs, based on 8.24
per kilowatt hour, rounded to the nearest $10, corresponding to the
three building heat gains from the chart below:
The values of building heat gain are to be considered cooling
capacities in the calculation of annual operating cost in accordance
with 10 CFR 430.22 (m)(1)(i).
Include the following note on every fact sheet page that lists annual
operating costs.
Note: These figures are based on U.S. Government standard tests and
are for national averages of 1000 cooling load hours and 8.24 /KWH. Your
cost will vary depending on your local energy rate and how you use the
product. A method for estimating your cost of operation is given
(direct user to location).
The methodology referred to in the note is provided below. This
information shall be included a least once in all compendiums of fact
sheets. If separate fact sheets are prepared for individual
distribution to consumers, this methodology must be provided on or with
the unbound fact sheets.
To estimate your actual cost of operation, find your cooling load
hours from the map, your average annual operating cost from the National
Average Annual Operating Cost Table, and determine your electrical rate
in cents per kilowatt hour (KWH) from your electric bill.
Example: If your cooling load hours=1500, and your electric rate is
12.36 /KWH and your listed annual operating cost is $100, then:
Your estimated cost = $100X1.5X1.5 = $225
Your estimated cost = $225
Insert illus. 944
Insert illus. 945
To estimate your actual cost of operation, find your actual cooling
load hours from the map, your average annual operating cost from the
National Average Annual Operating Cost Table, and determine your
electrical rate in cents per kilowatt hour (KWH) from your electrical
bill.
Example: If your cooling load hours are 1500, and your electric
rate is 12.36 /KWH, and your listed annual operating cost is $100, then:
(53 FR 19729, May 27, 1988, as amended at 54 FR 53318, Dec. 28, 1989;
55 FR 43093, Oct. 26, 1990; 56 FR 46728, Sept. 16, 1991)
16 CFR 305.19 Pt. 305, App. I
16 CFR 305.19 Appendix I to Part 305 -- Heating Performance and Cost
for Central Air Conditioners
1. Range Information:
The EER shall be the Region IV value based on the appropriate average
design heat loss from the table below.
The EER shall be the Region IV value based on the appropriate average
design heat loss from the table below.
2. Yearly Heating Cost Information:
For each model, display a regional annual operating cost, based on
8.24 per kilowatt hour, rounded to the nearest $10, calculated
according to 10 CFR 430.22(m)(3)(ii) for each region. The heat loss of
home values given in the chart below are to be considered standardized
design heating requirements in the calculation of annual operating cost
in accordance with 10 CFR 430.22(m)(3)(ii).
Include the following note on every fact sheet page that lists annual
operating costs.
Note: These annual heating costs are based on U.S. Government
standard tests and on a national average cost of electricity of 8.24
/KWH. Your cost will vary depending on your local energy rate and how
you use the product. A method for estimating your cost of operation is
given (direct user to location).
The methodology referred to in the note is provided below. This
information shall be included at least once in all compendiums of fact
sheets. If separate fact sheets are prepared for individual
distribution to consumers, this methodology must be provided on or with
the unbound fact sheets.
To estimate your heating cost, determine your cost of electricity in
cents per kilowatt hour (KWH) from your electric bill, your listed
average annual heating cost from the National Average Annual Heating
Cost Table, and use that number in the following equation:
Example: If your electric rate is 12.36 /KWH and the annual heating
cost listed in the chart is $200:
Your estimated cost=$200 1.5=$300
Your estimated cost=$300
Insert illus. 951
Insert illus. 952
Note: These annual heating costs are based on U.S. Government
standard tests and on a national average cost of electricity of 8.24
/KWH. Your cost will vary depending on your local energy rate and how
you use the product. A method for estimating your cost of operation is
given below.
To estimate your heating cost, determine your cost of electricity in
cents per kilowatt hour (KWH) from your electric bill, your listed
average annual heating cost from the National Average Annual Heating
Cost Table, and substitute that number in the following equation:
Example: If your electric cost is 12.36 /KWH and the annual
heating cost listed in the table is $200:
(53 FR 19729, May 27, 1988, as amended at 54 FR 53318, Dec. 28, 1989;
55 FR 43093, Oct. 26, 1990; 56 FR 46728, Sept. 16, 1991)
*From the National Average Annual Heating Cost Table.
16 CFR 305.19 Pt. 305, App. J
16 CFR 305.19 Appendix J to Part 305 -- Suggested Data Reporting Format
1. Date of Report
2. Company Name
3. City
4. State
5. Product
6. Energy Type (gas, oil, etc.)
7. Model Number
8. Estimated Annual Energy Cost or Energy Efficiency Rating
9. Capacity
10. Number of Tests Performed
11. Total Energy Consumption (based on all tests performed)
(52 FR 49647, Dec. 31, 1987)
16 CFR 305.19 Pt. 305, App. K
16 CFR 305.19 Appendix K to Part 305 -- Sample Labels
Insert Illustration 0695
Insert Illustration 0696
Insert Illustration 0697
Insert Illustration 0698
Insert Illustration 0699
Insert Illustration 0700
Insert Illustration 0701
Insert Illustration 0702
Insert Illustration 0703
Insert Illustration 0704
Insert Illustration 0705
Insert Illustration 0706
Insert Illustration 0707
(53 FR 52116, Dec. 27, 1988)
16 CFR 305.19 PART 306 -- OCTANE POSTING AND CERTIFICATION
16 CFR 305.19 Pt. 306
Sec.
306.0 What this rule does.
306.1 Who is covered.
306.2 Stayed or invalid parts.
306.3 Preemption.
306.4 Octane rating.
306.5 Certification.
306.6 Recordkeeping.
306.7 Certification.
306.8 Recordkeeping.
306.9 Octane posting.
306.10 Recordkeeping.
306.11 Labels.
Authority: Pub. L. 95-297, 92 Stat. 322 (15 U.S.C. 2801, et seq.)
Source: 44 FR 19169, Mar. 30, 1979, unless otherwise noted.
16 CFR 305.19 General
16 CFR 306.0 What this rule does.
This rule deals with the certification and posting of octane ratings
in or affecting commerce as ''commerce'' is defined in the Federal Trade
Commission Act. It applies to persons, partnerships, and corporations.
If you are covered by this regulation, breaking any of its rules is an
unfair or deceptive act or practice under section 5 of that Act. You
can be fined up to ten thousand dollars each time you break a rule.
16 CFR 306.1 Who is covered.
You are covered by this rule if you are a refiner, importer,
producer, distributor, or retailer of gasoline. Gasoline, in this rule,
means automotive gasoline.
16 CFR 306.2 Stayed or invalid parts.
If any part of this rule is stayed or held invalid, the rest of it
will stay in force.
16 CFR 306.3 Preemption.
The Petroleum Marketing Practices Act (PMPA) is the law that
instructs the FTC to enact this rule. Section 204 of PMPA provides:
To the extent that any provision of this title applies to any act or
omission, no State or any political subdivision thereof may adopt,
enforce, or continue in effect any provision of any law or regulation
(including any remedy or penalty applicable to any violation thereof)
with respect to such act or omission, unless such provision of such law
or regulation is the same as the applicable provision of this title.
16 CFR 306.3 Duties of Refiners, Importers and Producers
16 CFR 306.4 Octane rating.
(a) If you are a refiner, importer, or producer, you must determine
the octane rating of all gasoline before you transfer it. You can do
that yourself or through a testing lab.
(b)(1) To find the octane rating, add the research octane number and
the motor octane number and divide by two, as explained by the American
Society for Testing and Materials (ASTM) in ASTM D 439-78, entitled
''Standard Specifications for Automotive Gasoline.'' To determine the
research octane number, use ASTM standard test method D 2699-75, and to
determine the motor octane number, use ASTM standard test method D
2700-75.
(2) If ASTM changes these standards, there will be a 30-day comment
period, beginning after the Commission publishes the change in the
Federal Register. During this time, Commission staff or any person
affected by the change may petition the Commission not to adopt the
change because it is a change in the procedures for determining octane
ratings, or to extend the length of time of the grace period that
follows the comment period. If, based on comments, the Commission
decides to permit incorporation of the change into the rule, the change
will become effective 60 days after expiration of the comment period,
unless this period is extended by the Commission. If the Commission
decides not to permit automatic incorporation, formal procedures may be
initiated to evaluate the change.
16 CFR 306.5 Certification.
In each transfer you make to anyone who is not a consumer, you must
certify the octane rating of the gasoline consistent with your
determination. You can do this in either of two ways:
(a) Include a delivery ticket with each transfer of gasoline. It may
be an invoice, bill of lading, bill of sale, terminal ticket, delivery
ticket, or any other written proof of transfer. It must contain at
least these four items:
(1) Your name;
(2) The name of the person to whom the gasoline is transferred;
(3) The date of the transfer;
(4) The octane rating. This may be rounded off to a whole or half
number equal to or less than the number determined by you.
(b) Give the person a letter or other written statement. This letter
must include the date, your name, the other person's name, and the
octane rating of any gasoline you will transfer to that person from the
date of the letter onwards. The octane rating may be rounded to a whole
or half number equal to or less than the number determined by you. This
letter of certification will be good until you transfer gasoline with a
lower octane rating. When this happens, you must certify the octane
rating of the new gasoline, either with a delivery ticket or by sending
a new letter of certification.
(c) When you transfer gasoline to a common carrier, you must certify
the octane rating of the gasoline to the common carrier, either by
letter or on the delivery ticket or other paper.
16 CFR 306.6 Recordkeeping.
You must keep records of how you determined octane ratings for one
year. They must be open for inspection by Federal Trade Commission and
Environmental Protection Agency staff members, or by people authorized
by FTC or EPA.
16 CFR 306.6 Duties of Distributors
16 CFR 306.7 Certification.
If you are a distributor, you must certify the octane rating of the
gasoline in each transfer you make to anyone who is not a consumer.
(a)(1) If you do not blend the gasoline with other gasoline, you must
certify consistent with the octane rating certified to you. If you
blend the gasoline with other gasoline, you must certify consistent with
your determination of the average, weighted by volume, of the octane
ratings certified to you for each gasoline in the blend, or consistent
with the lowest octane rating certified to you for any gasoline in the
blend. Whether you blend gasoline or not, you may choose to certify the
octane rating of the gasoline consistent with your determination of the
octane rating according to the method in 306.4.
(2) In all cases above, the octane rating may be rounded to a whole
or half number equal to or less than the number certified to you or
determined by you.
(b) You may certify either by using a delivery ticket with each
transfer of gasoline, as outlined in 305.5(a), or by using a letter of
certification, as outlined in 306.5(b).
(c) When you transfer gasoline to a common carrier, you must certify
the octane rating of the gasoline to the common carrier, either by
letter or on the delivery ticket or other paper. When you receive
gasoline from a common carrier, you must also receive from the common
carrier a certification of the octane rating of the gasoline, either by
letter or on the delivery ticket or other paper.
16 CFR 306.8 Recordkeeping.
You must keep for one year any delivery tickets or letters of
certification on which you based your octane rating certifications. You
must also keep for one year records of any octane rating determinations
you made according to 306.4. They must be open for inspection by
Federal Trade Commission and Environmental Protection Agency staff
members, or by persons authorized by FTC or EPA.
16 CFR 306.8 Duties of Retailers
16 CFR 306.9 Octane posting.
(a) If you are a retailer, you must post the octane rating of all
gasoline you sell to consumers. You must do this by putting at least
one label on each face of each gasoline dispenser through which you sell
gasoline. If you are selling two or more kinds of gasoline with
different octane ratings from a single dispenser, you must put separate
labels for each kind of gasoline on each face of the dispenser.
(b)(1) The label, or labels, must be placed conspicuously on the
dispenser so as to be in full view of consumers and as near as
reasonably practical to the price per gallon of the gasoline.
(2) You may petition for an exemption from the placement requirements
by writing the Secretary of the Federal Trade Commission. You must
state the reasons why you want the exemption.
(c) If you do not blend the gasoline with other gasoline, you must
post consistent with the octane rating certified to you. If you blend
the gasoline with other gasoline, you must post consistent with your
determination of the average, weighted by volume, of the octane ratings
certified to you for each gasoline in the blend, or consistent with the
lowest octane rating certified to you for any gasoline in the blend.
Whether you blend gasoline or not, you may choose to post the octane
rating of the gasoline consistent with your determination of the octane
rating according to the method in 306.4. In all cases above, the octane
rating must be shown as a whole or half number equal to or less than the
octane rating certified to you or determined by you.
(d)(1) You must maintain and replace labels as needed to make sure
consumers can easily see and read them.
(2) If the labels you have are destroyed or are unusable or
unreadable for some unexpected reason, you can satisfy the law by
posting a temporary label as much like the required label as possible.
You must still get and post the required label without delay.
(e) When you receive gasoline from a common carrier, you must also
receive from the common carrier a certification of the octane rating of
the gasoline, either by letter or on the delivery ticket or other paper.
16 CFR 306.10 Recordkeeping.
You must keep for one year any delivery tickets or letters of
certification on which you based your posting of octane ratings. You
must also keep for one year records of any octane rating determinations
you made according to 306.4. These records may be kept at the retail
station, or at another, reasonably close location. They must be open
for inspection by Federal Trade Commission and Environmental Protection
Agency staff members or by persons authorized by FTC or EPA.
16 CFR 306.10 Label Specifications
16 CFR 306.11 Labels.
All labels must meet the following specifications:
(a) Layout. The label is 3'' wide x 2 1/2'' long. The illustrations
appearing at the end of this rule are prototype labels that demonstrate
the proper layout. Helvetica type is used throughout except for the
octane rating number which is in Franklin gothic type. Spacing of the
label is 1/4'' between the top border and the first line of text, 1/8''
between the first and second line of text, 1/4'' between the octane
rating and the line of text above it. All text and numerals are
centered within the interior borders.
(b) Type size and setting. The Helvetica series is used for all
numbers and letters with the exception of the octane rating number.
Helvetica is available in a variety of phototype setting systems and by
linotype. The line ''MINIMUM OCTANE RATING'' is set in 12 point
Helvetica Bold, all capitals, with letterspace set at 12 1/2 points.
The line ''(R+M)/2 METHOD'' is set in 10 point Helvetica Bold, all
capitals, with letterspace set at 10 1/2 points. The octane number is
set in 96 point Franklin gothic condensed with 1/8'' space between the
numbers.
(c) Colors. The basic color on all labels is process yellow. All
type is process black. All borders are process black. Both colors must
be non-fade.
(d) Contents. The contents are shown in the illustration. The
proper octane rating for each gasoline must be shown. No marks or
information other than that called for by this rule may appear on the
label.
(e) Special label protection. All labels must be capable of
withstanding extremes of weather conditions for a period of at least one
year. They must be resistant to gasoline, oil, grease, solvents,
detergents, and water.
(f) Illustrations of labels. Labels should meet the specifications
in this section, and should look like these examples, except the black
print should be on a yellow background.
Insert illus. 0369
16 CFR 306.11
16 CFR 306.11 PART 307 -- REGULATIONS UNDER THE COMPREHENSIVE SMOKELESS
TOBACCO HEALTH EDUCATION ACT OF 1986
Sec.
307.1 Scope of regulations in this part.
307.2 Required warnings.
307.3 Terms defined.
307.4 Prohibited acts.
307.5 Language requirements.
307.6 Requirements for disclosure on the label.
307.7 Requirements for disclosure in print advertising.
307.8 Requirements for disclosure in audiovisual and audio
advertising.
307.9 Requirements for disclosure on utilitarian objects.
307.10 Cooperative advertising.
307.11 Rotation, display, and distribution of warning statements on
smokeless tobacco packages.
307.12 Rotation, display, and dissemination of warning statements in
smokeless tobacco advertising.
Authority: 15 U.S.C. 4401 et seq.
Source: 51 FR 40015, Nov. 4, 1986, unless otherwise noted.
16 CFR 306.11 Scope
16 CFR 307.1 Scope of regulations in this part.
These regulations implement the Comprehensive Smokeless Tobacco
Health Education Act of 1986 to be codified at 15 U.S.C. 4401.
16 CFR 307.2 Required warnings.
The Comprehensive Smokeless Tobacco Health Education Act of 1986 is
the law that requires the enactment of these regulations. Section 7 of
this law provides that no statement, other than the three warning
statements required by the Act, shall be required by any Federal, State,
or local statute or regulation to be included on the package or in the
advertisement (unless the advertisement is an outdoor billboard) of a
smokeless tobacco product. The warning statements required by the Act
are as follows:
WARNING: THIS PRODUCT MAY CAUSE MOUTH CANCER
WARNING: THIS PRODUCT MAY CAUSE GUM DISEASE AND TOOTH LOSS
WARNING: THIS PRODUCT IS NOT A SAFE ALTERNATIVE TO CIGARETTES
16 CFR 307.2 Definitions
16 CFR 307.3 Terms defined.
As used in this part, unless the context otherwise specifically
requires:
(a) Act means the Comprehensive Smokeless Tobacco Health Education
Act of 1986 (Pub. L. 99-252) and any amendments thereto.
(b) Commission means the Federal Trade Commission.
(c) Regulation(s) means regulations promulgated by the Commission
pursuant to sections 3 and 5 of the Act.
(d) Commerce means (1) commerce between any State, the District of
Columbia, the Commonwealth of Puerto Rico, Guam, the Virgin Islands,
American Samoa, Wake Island, Midway Islands, Kingman Reef, or Johnston
Island and any place outside thereof; (2) commerce between points in
any State, the District of Columbia, the Commonwealth of Puerto Rico,
Guam, the Virgin Islands, American Samoa, Wake Island, Midway Islands,
Kingman Reef, or Johnston Island, but through any place outside thereof;
or (3) commerce wholly within the District of Columbia, Guam, the
Virgin Islands, American Samoa, Wake Island, Midway Islands, Kingman
Reef, or Johnston Island.
(e) United States, when used in a geographical sense, means the
several States, the District of Columbia, the Commonwealth of Puerto
Rico, Guam, the Virgin Islands, American Samoa, Wake Island, Midway
Islands, Kingman Reef, Johnston Island, and installations of the Armed
Forces.
(f) Smokeless tobacco product means any finely cut, ground, powered,
or leaf tobacco that is intended to be placed in the oral cavity,
including snuff, chewing tobacco, and plug tobacco.
(g) Brand' means smokeless tobacco products that bear a common
identifying name or mark, regardless of whether the products are
differentiated by type of product, size, shape, packaging, or other
characteristic, and, in the case of generic or private label smokeless
tobacco products, means all products produced by a single manufacturer
or its affiliates or imported by a single importer or its affiliates.
(h) Package means any pack, can, box, jar, carton, pouch, container,
or wrapping in which any smokeless tobacco product is offered for sale,
sold, or otherwise distributed to consumers, but for purposes of these
regulations package does not include (1) any shipping container or
wrapping used solely for transporting smokeless tobacco products in bulk
or quantity to manufacturers, packagers, processors, wholesalers, or
retailers unless the container or wrapping is intended for use as a
retail display or (2) any wrapping or container that bears no written,
printed, or graphic matter.
(i) Label means any written, printed, or graphic matter affixed to or
appearing on any smokeless tabacco product or any package containing a
smokeless tobacco product with the exception of any revenue stamp
affixed to a smokeless tobacco product.
(j) Billboard means any outdoor sign with an area of more than 150
square feet.
(k) Manufacturer means any person who manufacturers, produces, or
processes any smokeless tobacco product.
(l) Packager means any person who puts any smokeless tobacco product
into packages to be offered for sale, sold, or distributed to consumers.
(m) Importer means any person who puts any smokeless tobacco product
that was not manufactured inside the United States into commerce to be
offered for sale, sold, or distributed to consumers.
(n) Utilitarian objects means items, other than smokeless tobacco
products, that are sold or given or caused to be sold or given by any
manufacturer, packager or importer to consumers for their personal use
and that display the brand name, logo, or selling message of any
smokeless tobacco product. Such items include, but are not limited to,
pens, pencils, clothing or sporting goods.
(51 FR 40015, Nov. 4, 1986, as amended at 56 FR 11662, Mar. 20, 1991)
16 CFR 307.3 General Requirements
16 CFR 307.4 Prohibited acts.
(a) No manufacturer, packager, or importer of any smokeless tobacco
product shall distribute, or cause to be distributed, in commerce any
smokeless tobacco product in a package that, in accordance with the
labeling requirements of the Act and these regulations, does not bear
one of the following warning statements.
WARNING: THIS PRODUCT MAY CAUSE MOUTH CANCER
WARNING: THIS PRODUCT MAY CAUSE GUM DISEASE AND TOOTH LOSS
WARNING: THIS PRODUCT IS NOT A SAFE ALTERNATIVE TO CIGARETTES
Each smokeless tobacco product shall upon being prepared for
distribution in commerce for retail sale, but before it is distributed
to be offered for retail sale, be labeled in accordance with the Act and
regulations in this part. In the case of an importer, the label
statements may be affixed in the country of origin or after importation
into the United States, but shall be affixed before the smokeless
tobacco product is removed from bond for sale or distribution. This
section does not apply to any smokeless tobacco product that is
manufactured, packaged, or imported in the United States for export from
the United States, if the product is not in fact distributed in commerce
for use in the United States.
(b) No manufacturer, packager, or importer of any smokeless tobacco
product shall advertise or cause to be advertised (other than through
the use of billboard advertising) within the United States any smokeless
tobacco product unless the advertising bears one of the warning
statements as required by the Act and the regulations and set forth in
307.4(a). This requirement is not applicable to company and divisional
names, when used as such, to signs on factories, plants, warehouses, and
other facilities related to the manufacturer or factory storage of
smokeless tobacco, to corporate or financial reports, to communications
to security holders and others who customarily receive copies of these
communications, to employment advertising, to advertising in tobacco
trade publications, or to promotional materials that are distributed to
smokeless tobacco wholesalers, dealers, or merchants, but not to
consumers. In addition, this requirement does not apply to
shelf-talkers and similar product locators with a display area of 12
square inches or less.
(c) No manufacturer, packager, or importer shall fail to submit a
plan to the Commission which specifies the method that will be used to
rotate, display, and distribute the statements required by the Act and
regulations in this part. The Commission shall approve a plan if the
plan provides for the rotation, display, and distribution of the
statements in a manner that complies with the Act and these regulations.
Authority to approve plans submitted by smokeless tobacco
manufacturers, packagers, and importers has been delegated by the
Commission to the Associate Director for Advertising Practices. Where
significant issues not previously considered by the Commission are
present, however, those plans will be referred by the Associate Director
for Advertising Practices to the Commission in the first instance. This
delegation is authorized by section 1(a) of the Reorganization Plan No.
4 of 1961 in order to enhance the efficiency and result in expedited
treatment of these plans. Pursuant to section 1(b) of the
Reorganization Plan, the Commission will retain the discretionary right
to review the actions of the delegate. Any smokeless tobacco
manufacturer, packager, or importer may within 30 days of the delegate's
action file with the Secretary of the Commission a request for full
Commission review of the action. If no review is sought by petition of
the submitter of a plan or any intervenor or upon the Commission's own
initiative within 30 days of the action, or if a review is sought and
denied in this 30 day period, the delegate's action shall be deemed to
be the action of the Commission.
(d) A manufacturer, packager, or importer of smokeless tobacco
products shall be deemed to be in compliance with the Act and these
regulations if it has taken reasonable steps to:
(1) Provide, by written contract or other clear instructions, for the
rotation of the label statements required by the Act;
(2) Give clear instructions and, if possible, furnish materials (such
as film negatives, acetates, or other facsimiles) for the production of
smokeless tobacco packages and advertising that contain the required
warning statements; and
(3) Prevent and correct mistakes, errors, or omissions that have come
to its attention.
In the event of the distribution of labels or the publication of
advertisements that do not conform with the Act and these regulations,
the burden of establishing that reasonable steps have been taken
(including fulfilling the conditions described in paragraphs (d)(1)
through (3) of this section) to comply shall rest with the manufacturer,
packager, or importer of smokeless tobacco.
(51 FR 40015, Nov. 4, 1986, as amended at 56 FR 11662, Mar. 20, 1991)
16 CFR 307.5 Language requirements.
The warning statement on the label of a smokeless tobacco product
required by the Act and these regulations shall be set out in the
English language. If the label of a smokeless tobacco product contains
a required warning in a language other than English, the required
warning must also appear in English. In the case of an advertisement
for a smokeless tobacco product in a newspaper, magazine, periodical, or
other publication that is not in English, the warning statement shall
appear in the predominant language of the publication in which the
advertisement appears. In the case of any other advertisement, the
warning statement shall appear in the same language as that principally
used in the advertisement.
16 CFR 307.5 Label Disclosures
16 CFR 307.6 Requirements for disclosure on the label.
(a) In the case of the label of a smokeless tobacco package, the
warning statement required by the Act and these regulations must be in a
conspicuous and prominent place on the package. A conspicuous and
prominent place is a part of a label that is likely to be displayed,
presented, shown, or examined. For example, in the case of the
following types of packages, the following places shall be deemed to be
conspicuous and prominent.
Cylindrical can -- Side of the package
Pouch -- Front of the package, provided that, in the case of a pouch
with two identical face panels, the front of the pouch is the face panel
upon which the warning is printed
Rectangular box of snuff, plug of chewing tobacco, or dispenser of
individual packages of smokeless tobacco that may be purchased in its
entirety -- Any side of the package, provided that the side panel used
does not bear any written or graphic matter other than the background
color of the side panel and reasonable extensions of graphic matter from
other panels
However, in the case of any package of smokeless tobacco, absent
special circumstances, the required warning statement shall not be
deemed to be in a conspicuous and prominent place if it appears on the
bottom (that is, the underside) of the package or is printed on the tear
line or on any other surface where it will be obliterated when the
package is opened. However, in the case of a rectangular package that
is wrapped in a continuous sheet of foil or plastic with randomly
appearing label information, the required warning shall be deemed to be
in a conspicuous and prominent place if it appears at least once in its
entirety on any part of the package that is not crimped or seamed.
(b) The label statement required by the Act and these regulations
must also be in a conspicuous format and in a conspicuous and legible
type in contrast with all other printed material on the package. The
required warning statement shall be deemed to be in a conspicuous format
if it appears in two to four lines that are parallel to each other as
well as to the base of the package. However, in the case of a
cylindrical package with a diameter of 1 and 3/4 inches or less the
required warning statement need not be parallel with the base of the
package to be deemed to be in a conspicuous format. In the case of all
packages the required warning statement shall be deemed to be in a
conspicuous format if it is separated in every direction from other
written or graphic matter on the label by the equivalent of at least
twice the point size of the type in which the warning is printed or if
it is the only written matter on the surface of the package. The
required warning statement shall be deemed to be in a conspicuous and
legible type if it appears in all capitals in Univers 57 normal or an
equivalent type style. For example, in the case of the following types
of packages with the specified capacity, the following type sizes shall
be deemed to be conspicuous and legible.
1 and 1/2 ounce snuff can -- Seven point type
2 to 4 ounce pouch or plug of chewing tobacco -- Eight point type,
provided that if the warning statement is printed in one line, it will
be deemed to be conspicuous and legible in eleven point type
Can roll consisting of cans wrapped for sale as a single unit --
Twelve point type, provided that, if the warning statements on the
individual cans are completely visible no warning statement is required
on the outer wrapping
Dispenser of individual packages of smokeless tobacco that may be
purchased in its entirety -- Twelve point type
The required warning statement shall be deemed to be in contrast with
all other printed material on the package if it is printed in a color
(including black and white) that is clearly visible against the
background on which the warning appears.
16 CFR 307.6 Advertising Disclosures
16 CFR 307.7 Requirements for disclosure in print advertising.
(a) In the case of print advertisements for smokeless tobacco,
including but not limited to, advertisements in newspapers, magazines,
or other periodicals; point-of-sale promotional materials; non-point
of sale promotional materials such as leaflets, pamphlets, coupons,
direct mail circulars, or paperback book inserts; and posters and
placards (other than outdoor billboard advertising), the warning
statement required by the Act and these regulations must be in a
conspicuous and prominent location, in conspicuous and legible type in
contrast with all other printed material in the advertisement and must
appear in capital letters in a circle and arrow format. A conspicuous
and prominent location is anywhere within the trim area other than the
margin in the case of an advertisement in a newspaper, magazine, or
other periodical, and in all cases is not immediately next to other
written matter or to any circular designs, elements, or similar
geometric forms (other than a picture of a smokeless tobacco package
such as a cylindrical snuff can). A circle and arrow will not be deemed
to be conspicuous and prominent if it is included as an integral part of
a specific design or illustration, such as a picture of the package, in
the advertisement, unless at least 80 percent of the area of the
advertisement is taken up by a picture of the package.
(b) The advertising warning statements required by the Act and these
regulations must be in conspicuous and legible type in contrast with all
other printed material in the advertisement and must appear in all
capital letters in a circle and arrow format. The proportions of the
circle and arrow shall be deemed to be conspicuous if they are such that
the base of the arrow is equal to 3/4 of the diameter of the circle;
the neck of the arrow is equal to 1/8 of the diameter of the circle;
the widest part of the head of the arrow is equal to the diameter of the
circle; the tip of the arrow is centered at a point equal to 3/4 of the
diameter from the lowest point of the circle; and the distance between
the tip of the arrow and the base of the arrow is equal to 3/8 of the
diameter of the circle. The statements shall be deemed to be conspicous
if they are parallel to the foot of the advertisement and centered in
the circle, and the word ''WARNING'' followed by a colon appears in the
neck of the arrow.
(c) The required warning statement shall be deemed to be conspicuous
if it is printed in all capitals in Univers 57 normal or an equivalent
type style and:
(1) The rule and the statement are printed in a color (including
black and white) that is clearly visible against the background upon
which they appear; and
(2) The background field within the circle and arrow is clearly
visible against the background of the advertisement; and
(3) The warning has the following minimum outside dimensions in
relation to the size of the advertisement.
Insert illus. 0539
A warning printed in black in a circle with a black rule and a white
interior background shall be deemed a clearly visible color against a
clearly visible background, except that any such black on white warning
that appears against a uniform white background in an advertisement
shall be deemed to be conspicuous only if it meets the size requirements
of 307.7(d) of this section.
(d) As an alternative to the format specified in 307.7(c), the
required warning statement shall be deemed to be conspicuous if it is
printed in all capitals in Univers 67 normal or an equivalent type style
and
(1) The rule that forms the circle and arrow and the required
statement are printed in a color (including black and white) that is
clearly visible against the background upon which they appear,
(2) The background of the circle and arrow is a uniform color, and
(3) The warning has the following minimum outside dimensions in
relation to the size of the advertisement.
Insert illus. 0541
(e) An advertisement in a newspaper, magazine, or other periodical
that occupies more than one page shall not be required to have more than
one warning statement, but the dimensions of the circle and arrow shall
be determined by the aggregate area of the entire advertisement, and the
warning statement shall appear on the page that contains most of the
advertisement. Point-of-sale and non-point of sale promotional
materials of more than one page in length shall not be required to have
more than one warning statement, and the dimensions of the circle and
arrow shall be determined by the size of the advertisement on the page
on which most of the advertisement appears. Warning statements in
circles and arrows that meet the specifications of this section and
conform to the following diagram shall be deemed to be in a conspicuous
format.
16 CFR 307.7
16 CFR 307.8 Requirements for disclosure in audiovisual and audio
advertising.
In the case of advertisements for smokeless tobacco on videotapes,
casettes, or discs; promotional films or filmstrips; and promotional
audiotapes or other types of sound recordings, the warning statement
required by the Act and these regulations must be conspicuous and
prominent. If the advertisement has a visual component, the warning
statement shall be deemed to be conspicuous and prominent if it is
superimposed on the screen in a circle and arrow format at the end of
the advertisement for a length of time and in graphics so that it is
easily legible. If the advertisement has an audio component, the
warning statement shall be deemed to be conspicuous and prominent if it
is announced at the end of the advertisement in a manner that is clearly
audible. If an advertisement has both a visual and an audio component,
the warning statement shall be deemed to be conspicuous and prominent if
it is superimposed on the screen in a circle and arrow format and
announced simultaneously at the end of the advertisement in a manner
that is easily legible and clearly audible. Provided, however, in the
case of an audio advertisement in a retail store or other place where
smokeless tobacco products are offered for sale, no warning shall be
required, even if a manufacturer, packager, or importer of smokeless
tobacco products provides an incentive for disseminating the ad, so long
as the announcement includes only the brand name or product identifier,
the price, and the product's location in the store.
16 CFR 307.9 Requirements for disclosure on utilitarian objects.
(a) In the case of advertisements for smokeless tobacco products on
utilitarian objects, the warning statements required by the Act and
these regulations must be in a conspicuous and legible type in contrast
with all other printed material on the object and must appear within the
circle and arrow format. The proportions of the circle and arrow shall
be deemed to be conspicuous if in accordance with with those set forth
in 307.7(b). The required warning statement shall be deemed conspicuous
if it conforms to the requirements and proportions as set forth in
307,7(c) and 307.7(d). For purposes of determining the size of the
warning statement, the display area for an advertisement on a
utilitarian object shall be the visible area on which the brand name,
logo or selling message appears. For example, the display area for a
t-shirt with a brand name, logo or selling message on the front or back
is the entire front or back of the shirt, excluding any sleeves. For a
t-shirt with a brand name, logo or selling message on the sleeve, the
display area is the sleeve. However, in no case must the diameter of
the circle exceed the longest line displayed in the brand name, logo or
selling message. The Commission considers a logo to include any brand
specific characteristics of a smokeless tobacco product, including but
not limited to any recognizable pattern of colors or symbols associated
with a particular brand.
(b) The warning statement required by the Act and these regulations
must be printed, embossed, embroidered or otherwise affixed to the
utilitarian object with a permanence and durability that is comparable
to the permanence and durability of the brand name, logo, or selling
message. For example, if a product brand name or logo is embroidered on
a hat, and a legible warning cannot be embroidered in the proper size
due to technological limitations, the warning may be affixed to the hat
by another method, so long as its permanence and durability is
comparable to that of the brand name, logo or selling message.
(c) The warning statement required by this Act and these regulations
must be in a conspicuous and prominent location on the object. A
conspicuous and prominent location on the object is one that is
proximate to and on the same surface as the smokeless tobacco brand
name, logo, or selling message, and is visible when the brand name, logo
or selling message is visible. If the brand name, logo or selling
message is displayed in more than one location on the utilitarian
object, the warning must appear proximate to each brand name, logo or
selling message. In the alternative, the warning may appear only once
on the object; in that case, however, the advertising display area
consists of the aggregate of all the surface areas on which any brand
names, logos or selling messages appear.
(d) Small Items. For those utilitarian objects under 8 square inches
which are viewed predominantly by the user, the warning statement
required by this Act and by these regulations shall be deemed
conspicuous and prominent when:
(1) Printed on the package of an item, if the item is disseminated in
a package to the consumer. The entire surface area of the package would
comprise the display area for purposes of determining warning size in
accordance with 307.7 (c) and (d) of the current regulations; or
(2) Placed in the form of a sticker or decal directly onto the item
in the Number 1 warning size as set forth in 307.7 (c) and (d) of the
current regulations. The item should be packaged in such a way to
ensure that the sticker cannot be removed before placement in the hands
of the consumer.
(e) Hats. For fabric baseball style hats, the warning statement
required by the Act and these regulations shall be deemed conspicuous
and prominent in the Number 3 size as set forth in 307.7 (c) and (d).
(f) Any manufacturer, packager or importer may apply to the
Commission for an exemption from the warning requirements of the Act and
these regulations for items such as food products to which the health
warnings could logically apply. Authority to grant such exemptions has
been delegated by the Commission to the Associate Director for
Advertising Practices. Where significant issues not previously
considered by the Commission are present, however, those plans will be
referred by the Associate Director for Advertising Practices to the
Commission in the first instance. This delegation is authorized by
section 1(a) of the Reorganization Plan No. 4 of 1961 in order to
enhance the efficiency and result in expedited treatment of any request
for an exemption. The Commission's discretionary right to review
actions of the delegate, and the procedure by which a smokeless tobacco
manufacturer, packager, or importer may request full Commission review
of the delegate's action are as set forth in 307.4(c) of these
regulations.
(56 FR 11662, Mar. 20, 1991)
16 CFR 307.10 Cooperative advertising.
The Act prohibits any manufacturer, packager, or importer of
smokeless tobacco products from advertising or causing to advertise any
smokeless tobacco product within the United States without the required
warning. Accordingly, all advertisements for smokeless tobacco products
(including cooperative advertisement) paid for, directly or indirectly,
in whole or in part, by a manufacturer, packager, or importer of
smokeless tobacco products must bear the required warning. Provided,
however, in the case of a print advertisement for a smokeless tobacco
product disseminated by a retailer of smokeless tobacco products, other
than a manufacturer, packager, or importer of smokeless tobacco
products, with a display area of 4 square inches or less, no warning is
required so long as the advertisement contains only the brand name or
other product identifier and a price. In addition, no warning is
required in the case of certain in-store audio announcements as
described in 307.8. Any advertisement of a smokeless tobacco product
paid for entirely by a retailer or any person other than a manufacturer,
packager, or importer of smokeless tobacco products need not carry a
warning statement.
(51 FR 40015, Nov. 4, 1986. Redesignated at 56 FR 11662, Mar. 20,
1991)
16 CFR 307.10 Plans
16 CFR 307.11 Rotation, display, and distribution of warning statements
on smokeless tobacco packages.
(a) In the case of the package of a smokeless tobacco product, each
of the three warning statements required by the Act must (1) be
displayed randomly by each manufacturer, packager, or importer of a
smokeless tobacco product in each 12-month period in as equal a number
of times as possible on each brand of the product and (2) be randomly
distributed in all parts of the United States in which the product is
marketed. The Commission will interpret the statutory language ''equal
number of times as possible'' as permitting deviations of 4 percent or
less in a 12-month period. Random distribution means that there is
nothing in the production or distribution process of a smokeless tobacco
product that would prevent the three warning statements on the package
from being distributed evenly in all parts of the United States where
the product is marketed.
(b) Each manufacturer, packager, or importer of a smokeless tobacco
product shall submit to the Commission or its designated representative
a plan that provides for the display of the three warning statements on
the package of a smokeless tobacco product as required by the Act and
these regulations. This plan shall be sufficiently detailed to enable
the Commission to determine whether the warning statements appear on the
package in a manner consistent with the Act and these regulations.
These requirements may be satisfied in a number of ways. For example, a
plan may satisfy the equal display requirement by providing for the
engraving or preparation of cylinders, plates, or equivalent production
materials in a manner that results in the simultaneous printing of the
three required warnings in as near an equal number of times as possible
under the circumstances. Alternatively, a plan may satisfy the equal
display requirement by providing that stickers bearing the three
required warnings be printed in equal numbers and affixed randomly to
packages of the product. Alternatively, a plan may satisfy the equal
display requirement by providing for the preparation of separate
cylinders, plates, and equivalent production materials and requiring
that they be changed at fixed intervals in a manner that results in the
display of the three required warnings in as near an equal number of
times as possible under the circumstances during a 1-year period. In
any event, nothing in these regulations requires the use of more than
one warning statement on the label of any brand during a given 4-month
period.
(c) A plan for the rotation, display, and distribution of warning
statements on smokeless tobacco packages shall include representative
samples of labels with each of the three warning statements required by
the Act and these regulations. This provision does not require
submission of a label with each of the required warning statements for
every brand marketed by a manufacturer, packager, or importer of
smokeless tobacco products and shall be deemed to be satisfied by
submission of labels for different types of smokeless tobacco products,
such as moist snuff, scotch snuff, and loose-leaf and plug chewing
tobacco, and a range of package sizes for each type of product.
(51 FR 40015, Nov. 4, 1986. Redesignated at 56 FR 11662, Mar. 20,
1991)
16 CFR 307.12 Rotation, display, and dissemination of warning
statements in smokeless tobacco advertising.
(a) In the case of advertising for a smokeless tobacco product, each
of the three warning statements required by the Act must be rotated
every 4 months by each manufacturer, packager, or importer of a
smokeless tobacco product in an alternating sequence in the
advertisement for each brand of the product. Any rotational system,
however, may take into account practical constraints on the production
and distribution of advertising.
(b) Each manufacturer, packager, or importer of a smokeless tobacco
product must submit a plan to the Commission or its designated
representative that ensures that the three warning statements are
rotated every 4 months in alternating sequence. There may be more than
one system, however, that complies with the Act and these regulations.
For example, a plan may require all brands to display the same warning
during each 4-month period or require each brand to display a different
warning during a given 4-month period. A plan shall describe the method
of rotation and shall include a list of the designated warnings for each
4-month period during the first year for each brand. A plan shall
describe the method that will be used to ensure the proper rotation in
different advertising media in sufficient detail to ensure compliance
with the Act and these regulations, although a number of different
methods may satisfy these requirements. For example, a satisfactory
plan for advertising in newspapers, magazines, or other periodicals
could provide for rotation according to either the cover or closing date
of the publication. A satisfactory plan for posters and placards, other
than billboard advertising, could provide for rotation according to
either the scheduled or the actual appearance of the advertising. A
satisfactory plan for point-of-sale and non-point-of-sale promotional
materials such as leaflets, pamphlets, coupons, direct mail circulars,
paperback book inserts, or nonprint items or for utilitarian objects
shall provide for rotation according to the date the materials or
objects are disseminated. Because the Commission recognizes that this
requirement may produce hardship for companies that cannot foresee at
the time of ordering what their distribution schedule will be, the
Commission will consider in compliance with this provision a plan under
which the materials or objects comprising each order display all three
warnings in equal proportion, and are disseminated either (1) in groups
displaying a single warning in sequence per four-month period over a
total dissemination period of three or more such four-month periods, or
(2) at random, if dissemination is to occur in fewer than three such
periods. The plan may specify that items having a useful life of
significantly more than 4 months, such as clocks, electric signs, and
durable dispensers may be rotated less frequently.
(c) A plan for the rotation, display, and dissemination of warning
statements in smokeless tobacco advertising shall include a
representative sample of each of the three warning statements required
by the Act and these regulations. This provision does not require the
submission of all advertising for each brand marketed by a manufacturer,
packager, or importer of smokeless tobacco products and shall be deemed
to be satisfied by submission of actual examples of different types of
advertising materials for various brands, prototypes of actual
advertising materials, the warning statement as it would appear in
different sizes of advertisements, or acetates or other facsimiles for
the warning statement as it would appear in different sizes of
advertisements.
(51 FR 40015, Nov. 4, 1986. Redesignated and amended at 56 FR 11662,
11663, Mar. 20, 1991)
16 CFR 307.12 SUBCHAPTER D -- TRADE REGULATION RULES
16 CFR 307.12 PART 400 -- ADVERTISING AND LABELING AS TO SIZE OF SLEEPING BAGS
16 CFR 400.1 The Rule.
(a) The Commission finds that:
(1) Manufacturers and distributors have engaged in the practice of
selling sleeping bags in commerce, as ''commerce'' is defined in the
Federal Trade Commission Act, marked as to ''cut size,'' i.e. the
dimensions of the material used in making such sleeping bags, without
disclosing the size of the finished products;
(2) This practice has the tendency and capacity (i) to mislead and
deceive purchasers into believing that the ''cut size'' represents the
actual dimensions of the finished products, whereas the finished size of
sleeping bags is in fact substantially smaller than the ''cut size'' of
the materials from which they are made, a matter of primary importance
to the consumer, and (ii) to divert business from competitors who
clearly disclose the finished size of their sleeping bags; and that,
therefore,
(3) This practice constitutes an unfair method of competition in
commerce, and an unfair and deceptive act or practice in commerce, in
violation of section 5 of the Federal Trade Commission Act.
(b) Accordingly, the Commission hereby promulgates, as a Trade
Regulation Rule, its findings and determination that in connection with
the sale or offering for sale of sleeping bags, any representation of
the ''cut size'' or the dimensions of materials used in the construction
of sleeping bags, in advertising, labeling, marking or otherwise,
constitutes an unfair method of competition and an unfair and deceptive
act or practice, unless --
(1) The dimensions of the cut size are accurate measurements of the
yard goods used in construction of the sleeping bags; and
(2) Such ''cut size'' dimensions are accompanied by the words ''cut
size''; and
(3) The ''cut size'' is accompanied by a clear and conspicuous
disclosure of the length and width of the finished products and by an
explanation that such dimensions constitute the finished size.
Example. An example of proper size marking when the product has a
finished size of 33'' x 68'' and a cut size of 36'' x 72'', and
disclosure is made of the cut size, is -- Finished size 33'' x 68'';
cut size 36'' x 72''.
(38 Stat. 717, as amended; 15 U.S.C. 41-58)
(28 FR 10900, Oct. 11, 1963)
16 CFR 400.1 PART 402 -- DECEPTION AS TO NON-PRISMATIC AND PARTIALLY
PRISMATIC INSTRUMENTS BEING PRISMATIC BINOCULARS
Sec.
402.1 Practices involved.
402.2 Trade and public understanding of ''binocular.''
402.3 Deceptive appearance of instruments having bulges.
402.4 Use of ''binocular'' with qualification.
402.5 The rule.
Authority: 38 Stat. 717, as amended; 15 U.S.C. 41-58.
Source: 29 FR 7316, June 5, 1964, unless otherwise noted.
16 CFR 402.1 Practices involved.
Manufacturers and distributors of nonprismatic and combination
prism-mirror two-tube hand-held viewing instruments engaged in the sale
of such instruments in commerce, as ''commerce'' is defined in the
Federal Trade Commission Act, have (a) unqualifiedly described such
instruments as ''binocular'' and ''binoculars'' and (b) marketed such
instruments having bulges on the tubes which give the appearance of
being prismatic instruments.
16 CFR 402.2 Trade and public understanding of ''binocular.''
The record in this proceeding shows that neither the trade nor the
consuming public has a clear understanding of the meaning of the term
''binocular.'' Some members of the trade expressed the view that a
''binocular'' is any two-tubed viewing instrument, whether prismatic or
nonprismatic, while others thought that the word ''binocular'' meant a
fully prismatic instrument only. Although the record does not include
any direct expression from consumers as to their understanding of the
word, members of the trade and others have furnished statements based on
their experience with consumer purchasers. These statements indicate
that in the minds of many consumers a binocular is a viewing instrument
which is fully prismatic. There is ample justification for the
conclusion that a substantial portion of the consuming public
understands an instrument described as a binocular to be a fully
prismatic instrument.
16 CFR 402.3 Deceptive appearance of instruments having bulges.
Prismatic binoculars characteristically have a bulge on each tube
which houses or covers the prisms. Some nonprismatic and partially
prismatic instruments, however, are made with bulges which give them the
appearance of prismatic binoculars. By reason of such bulge
construction, consumer purchasers are led to believe that nonprismatic
instruments are prismatic unless there is adequate disclosure that they
are nonprismatic or only partially prismatic.
16 CFR 402.4 Use of ''binocular'' with qualification.
Many members of the trade and others have urged that the word
''binocular'' not be barred completely as descriptive of nonprismatic
instruments, but that its use be permitted with appropriate
qualification. The Commission has given careful consideration to the
question of whether a remedy less drastic than excision would suffice.
Upon consideration of the entire matter, the Commission has concluded
that the deception would be removed and the public interest fully served
if the word ''binocular'' were clearly qualified to disclose the fact
that the instrument contains no prisms or is only partially prismatic.
16 CFR 402.5 The rule.
(a) On the basis of the foregoing, the Commission concludes that in
connection with the sale of nonprismatic and combination prism-mirror
two-tube hand-held observation instruments the practices of (1)
unqualifiedly describing such instruments as ''binocular'' or
''binoculars,'' and (2) failing to disclose that instruments having
bulges on the tubes which simulate prismatic instruments are not
prismatic instruments or do not contain complete prism systems, as the
case may be, have the capacity and tendency to mislead and deceive
purchasers and prospective purchasers and to divert business from
competitors who truthfully and properly describe and label such
products. The Commission further concludes that these practices are
violative of section 5 of the Federal Trade Commission Act, and that the
public interest in preventing their use is specific and substantial.
(b) Accordingly, for the purpose of preventing such unlawful
practices, the Commission hereby promulgates, as a trade regulation
rule, its conclusions and determination that in connection with the sale
of nonprismatic or combination mirror-prismatic two-tube hand-held
observation instruments in commerce, as ''commerce'' is defined in the
Federal Trade Commission Act, it constitutes an unfair method of
competition and an unfair or deceptive act or practice to:
(1) Represent in any manner that nonprismatic instruments are
prismatic or that combination mirror-prismatic instruments contain
complete prismatic systems; or
(2) Describe such instruments as ''binocular'' or ''binoculars''
unless clear and conspicuous disclosure is made that nonprismatic
instruments do not contain prisms or that combination mirror-prismatic
instruments do not contain complete prismatic systems; or
(3) Fail clearly and conspicuously to disclose the fact that
nonprismatic instruments do not contain prisms or that combination
mirror-prismatic instruments do not contain complete prismatic systems,
when such instruments have bulges on the tubes which create the
characteristic appearance of prismatic binoculars.
(c) The disclosures required by this section shall be clearly and
conspicuously made in all advertising and on the product and be of such
permanence as to remain legible until received by the consumer
purchaser.
(d) Examples of terms acceptable as descriptive of such products
under this section are:
(1) ''Binocular'' may be used without qualification to describe any
product which is fully prismatic.
(2) ''Binocular -- Nonprismatic'' may be used to describe any
nonprismatic product coming within the purview of this section.
(3) ''Binocular -- Mirror-prismatic'' or ''Binocular -- Partially
Prismatic'' may be used to describe products which have combination
mirror and prism systems.
(4) ''Binocular -- Nonprismatic Mir- ror'' may be used to describe a
nonprismatic product having a mirror reflecting system.
(5) ''Field Glasses'' may be used to describe straight tube
nonprismatic products.
(6) ''Field Glasses -- Nonprismatic'' may be used to describe
nonprismatic products having bulges on the tubes.
16 CFR 402.5 PART 403 -- DECEPTIVE USE OF ''LEAKPROOF,'' ''GUARANTEED
LEAKPROOF,'' ETC., AS DESCRIPTIVE OF DRY CELL BATTERIES
Sec.
403.1 Facts regarding leakproof claims.
403.2 Deceptive character of the claims.
403.3 Arguments in opposition to the rule.
403.4 The rule.
403.5 Guarantees against damage from leakage.
403.6 Future product improvement.
Authority: 38 Stat. 717, as amended; 15 U.S.C. 41-58.
Source: 29 FR 6535, May 20, 1964, unless otherwise noted.
16 CFR 403.1 Facts regarding leakproof claims.
(a) The terms ''leakproof,'' ''guaranteed leakproof'' and other words
and terms of similar import as descriptive of dry cell batteries are
currently used in labeling and advertising in the sale of such batteries
in commerce, as ''commerce'' is defined in the Federal Trade Commission
Act. Batteries so described are sold for use in a great number and
variety of devices which employ batteries as functional component parts.
(b) Despite efforts by dry cell battery manufacturers to eliminate
electrolyte leakage, no dry cell batteries currently marketed and
distributed are proof against such leakage. This is evidenced by, among
other things, statements and statistics furnished by industry members,
experts in the field of electrical power sources, marketers of battery
operated devices and by consumers. Moreover, the fact that battery
leakage does cause extensive damage to devices in which batteries are
employed, and to other articles, such as carpet, clothing and furniture
has not been disputed.
(c) Although battery leakage may occur while a battery is being
discharged, it is more likely to occur after the useful life of the
battery has been expended. Consequently, damage from leakage often
results from the failure of the user to remove the battery from a device
after it has been discharged. Leakage and damage therefrom are also
caused or accelerated by continuous drainage of the current or by the
use of a battery in a device which may short out or overheat the
battery. Climatic conditions, such as heat or high humidity, may also
induce battery leakage. Each year literally thousands of incidents of
actual damage resulting from leakage of batteries described as
''leakproof'' and ''guaranteed leakproof'' are brought to the attention
of battery manufacturers by consumers. Under these circumstances, it is
concluded that battery leakage and damage therefrom occurs under those
conditions of use to which consumers ordinarily subject dry cell
batteries.
16 CFR 403.2 Deceptive character of the claims.
The use of the terms ''leakproof'' and ''guaranteed leakproof'' and
words and representations of similar import in the labeling and
advertising of dry cell batteries constitutes a representation that the
batteries so described will not leak, and has the capacity and tendency
to lead purchasers to believe that there is no danger of leakage or
damage resulting therefrom when batteries so described are used in any
battery-powered device regardless of the adequacy of design of such
device, the duration of use, or other conditions of usage which
contribute to electrolyte leakage. Moreover, the use of such terms has
the capacity and tendency to lead purchasers to believe that there is no
need for periodic inspection of batteries so described.
16 CFR 403.3 Arguments in opposition to the rule.
(a) Many marketers offer a guarantee against damage resulting from
leakage. The terms of the guarantee are usually set forth on the
battery, and the obligation assumed by most marketers thereunder is to
replace batteries and repair or replace any flashlights damaged by
leakage. Some marketers voluntarily extend this guarantee to cover the
repair or replacement of other devices or property damaged by leakage.
It has been argued in opposition to the adoption of the rule that the
consumer is adequately protected by scrupulous performance under such
guarantees, and that marketers offering these benefits are entitled to
call consumer attention thereto by the use of unequivocal ''leakproof''
claims. This argument is rejected since it is clear that the offering
of guarantees and even voluntary performance by the guarantor beyond the
scope of the guarantee cannot justify claims which attribute to a
product qualities which it does not in fact possess. As to the
contention that to disallow the use of ''leakproof'' representations
would deprive consumers of the protection currently furnished them, the
rule clearly states that it shall not be interpreted as prohibiting the
offering of guarantees which provide for restitution in the event of
damage from electrolyte leakage provided no representation is made that
the batteries in question are proof against leakage.
(b) It is further argued in opposition to the adoption of the rule
that any prohibition of ''leakproof'' representations will remove the
incentive of industry members to develop a genuinely leakproof dry cell
battery. This argument is also rejected. By preventing use of such
absolute claims as descriptive of batteries which are not proof against
leakage, the rule should have the effect of encouraging members of the
industry to develop batteries which are in fact leakproof. In the event
such a battery should be constructed, the rule may be amended upon a
proper showing to permit use of ''leakproof'' representations as
descriptive of batteries having such ''leakproof'' construction.
16 CFR 403.4 The rule.
(a) On the basis of the foregoing, the Commission concludes that the
practice of describing dry cell batteries as ''leakproof'', ''guaranteed
leakproof'' or by similar representations has the capacity and tendency
to mislead and deceive purchasers and prospective purchasers and to
divert business from competitors who do not so describe their products.
The Commission further concludes that this practice is violative of
section 5 of the Federal Trade Commission Act, and that the public
interest in preventing its use is specific and substantial.
(b) Accordingly, for the purpose of preventing such unlawful
practices, the Commission hereby promulgates, as a Trade Regulation
Rule, its conclusions and determination that in connection with the sale
of dry cell batteries in commerce, as ''commerce'' is defined in the
Federal Trade Commission Act, the use of the word ''leakproof'', the
term ''guaranteed leakproof'' or any other word or term of similar
import, or any abbreviation thereof, in advertising, labeling, marking
or otherwise, as descriptive of dry cell batteries constitutes an unfair
method of competition and an unfair or deceptive act or practice.
16 CFR 403.5 Guarantees against damage from leakage.
The rule should not be interpreted as prohibiting manufacturers or
other marketers from offering or furnishing guarantees which provide for
restitution in the event of damage from electrolyte leakage provided no
representation is made, directly or indirectly, that dry cell batteries
will not leak.
16 CFR 403.6 Future product improvement.
In the event any person develops a new or improved dry cell battery
which he believes is in fact leakproof, he may apply to the Commission
for an amendment to the rule or for other appropriate relief. The
application shall be filed with the Secretary, Federal Trade Commission,
and be accompanied by a full report of the data upon which the applicant
relies to substantiate his claim that the battery is leakproof. The
Commission will give public notice of the application and afford
interested persons an opportunity to submit written data, views or
arguments. The Commission in its discretion may also order such further
proceedings as it deems to be necessary. If the Commission determines
that the applicant's claim has been substantiated, it will issue an
appropriate order amending the rule or taking such other action as may
be warranted.
16 CFR 403.6 PART 404 -- DECEPTIVE ADVERTISING AND LABELING AS TO SIZE
OF TABLECLOTHS AND RELATED PRODUCTS
Sec.
404.1 Deceptive use of the term ''cut size.''
404.2 Request for tolerance in stating finished sizes.
404.3 The rule.
Authority: 38 Stat. 717, as amended; 15 U.S.C. 41-58.
Source: 29 FR 11261, Aug. 5, 1964, unless otherwise noted.
16 CFR 404.1 Deceptive use of the term ''cut size.''
The record in this proceeding shows that many marketers of
tablecloths and related products use the term ''cut size'' to designate
the dimensions of their products but do not disclose the finished sizes
thereof. It is further shown that the cut sizes, i.e., the dimensions
of the material used in making tablecloths and related products before
hemming and finishing, are usually larger than the completed or finished
sizes thereof. The record also shows that to many consumers the size
marked on a tablecloth or related product means the actual size of the
finished product and that this meaning is not dispelled by the words
''cut size'' alone without a disclosure of the finished size identified
as such. Upon consideration of the entire matter, including the
Commission's accumulated experience in matters involving the unqualified
use of the term ''cut size'', the Commission has concluded that use of
the ''cut size'' alone to designate sizes of tablecloths and related
products, has the capacity and tendency to mislead consumer purchasers
into believing that such size represents the actual dimensions of the
finished product.
16 CFR 404.2 Request for tolerance in stating finished sizes.
The Commission also has carefully considered requests of affected
parties for a rule provision which would establish a tolerance in
stating the finished sizes of their products. It was asserted that
manufacturers of these products are unable to control the exact finished
sizes thereof due to variations inherent in the manufacturing and
processing operations, as well as to the varying characteristics of
different materials used in the manufacture of such products. The
primary purpose of this rule is to prevent deception of consumers as to
the size of tablecloths and related products. To permit a substantial
deviation from the designated size in the form of a tolerance would not
be consistent with this purpose. In applying the rule, however,
allowance will be made for minor deviations from the stated finished
size which are unavoidable despite the exercise of due care.
16 CFR 404.3 The rule.
(a) On the basis of the foregoing, the Commission concludes that the
practice of selling tablecloths and related products in commerce, as
''commerce'' is defined in the Federal Trade Commission Act, marked as
to ''cut size,'' i.e., the dimensions of the material used in making
such products, without disclosing the size of the finished products, (1)
has the capacity and tendency (i) to mislead and deceive purchasers into
believing that the ''cut size'' represents the actual dimensions of the
finished products, whereas the finished sizes of such products are in
fact usually smaller than the ''cut size'' of the materials from which
they are made, a matter of importance to the consumer, and (ii) to
divert business from competitors who clearly disclose the finished size
of their products, and that, therefore, (2) this practice constitutes an
unfair method of competition in commerce, and an unfair and deceptive
act or practice in commerce, in violation of Section 5 of the Federal
Trade Commission Act. The Commission further concludes that the public
interest in preventing this practice is specific and substantial.
(b) Accordingly, for the purpose of preventing such unlawful
practice, the Commission hereby promulgates, as a Trade Regulation Rule,
its conclusions and determination that in connection with the sale or
offering for sale of tablecloths and related products such as doilies,
table mats, dresser scarves, place mats, table runners, napkins and tea
sets, in commerce, as ''commerce'' is defined in the Federal Trade
Commission Act, any representation of the ''cut size'' or the dimensions
of materials used in the construction of tablecloths and related
products in advertising, labeling, marking or otherwise, constitutes an
unfair method of competition and an unfair and deceptive act or
practice, unless --
(1) Such ''cut size'' dimensions are accompanied by the words ''cut
size''; and
(2) The ''cut size'' is accompanied by a clear and conspicuous
disclosure of the dimensions of the finished products and by an
explanation that such dimensions constitute the finished size.
Example. An example of proper size marking when the product has a
finished size of 50'' x 68'' and a cut size of 52'' x 70'', and
disclosure is made of the cut size, is -- ''Finished size 50'' x 68'';
Cut size 52'' x 70''.''
16 CFR 404.3 PART 405 -- MISBRANDING AND DECEPTION AS TO LEATHER
CONTENT OF WAIST BELTS
Sec.
405.1 Character of the deception.
405.2 Contentions regarding terminology for split leather.
405.3 Application of the rule to women's and children's belts.
405.4 The rule.
Authority: 38 Stat. 717, as amended; 15 U.S.C. 41-58.
Source: 29 FR 8166, June 27, 1964, unless otherwise noted.
16 CFR 405.1 Character of the deception.
(a) Manufacturers and distributors of men's, boys', women's and
children's belts have engaged in the practice of selling certain belts
in commerce, as ''commerce'' is defined in the Federal Trade Commission
Act, without adequate disclosure of facts concerning the actual
composition thereof or any disclaimer that the product is leather, and
have misbranded or otherwise misrepresented the content of such belts.
The misbranding or deception in question has involved belts manufactured
from split leather, leather fibers or dust, imitation leather or other
non-leather material having the appearance of leather, and leather which
has been processed or otherwise finished to simulate or resemble the
appearance of a different kind of leather.
(b) Some affected parties have urged that the rule should not require
affirmative disclosure with respect to the content of waist belts in the
absence of any mismarking or mislabeling thereof. This contention is
rejected for the reason that it is well settled that deception which is
harmful to the business community and the consuming public can result
from the misleading appearance of a product in the absence of an
affirmative disclosure as to its actual composition or a disclaimer that
it is leather.
16 CFR 405.2 Contentions regarding terminology for split leather.
(a) Several industry members, who utilize split leather primarily in
the manufacture of belts for the lower priced market, and their trade
association have urged that the word ''split'' has a derogatory
connotation in the trade and that in its place they should be permitted
either to use the word ''leather'', without qualification, to describe
such belts or to employ the term ''flesh-side'' instead of ''split''.
It is argued that the consuming public would be adequately protected if
the rule so provided. However, many consumers believe that the word
''leather'' without qualification, means top grain leather. Moreover,
the precise meaning of the term ''flesh-side'' has not become
sufficiently established to be generally accepted even among the trade
and it is evident that its use at the retail level would only serve to
confuse and mislead the consumer.
(b) On the basis of the foregoing, the Commission concludes that the
practices described herein have the capacity and tendency to mislead and
deceive purchasers and prospective purchasers of waist belts and to
divert business from competitors who clearly and properly describe and
label such products. The Commission further concludes that these
practices are violative of section 5 of the Federal Trade Commission
Act, and that the public interest in preventing their use is specific
and substantial.
16 CFR 405.3 Application of the rule to women's and children's belts.
Some industry members expressed the view that all women's belts
should be excluded from the proposed rule because many such belts are
sold as part of a garment, rather than independently. This contention
ignores the fact that very substantial quantities of women's belts are
sold singly and not as part of a garment and thus affords no basis for
excluding all women's belts from the application of the rule. Upon
careful consideration the Commission has concluded that in the public
interest the deception here involved would be removed by providing for
the marking, tagging or labeling of women's and children's belts when
sold separately, in accordance with the provisions of the rule.
16 CFR 405.4 The rule.
Accordingly, for the purpose of preventing such unlawful practices,
the Commission hereby promulgates as a Trade Regulation Rule, its
conclusions and determination that in connection with the sale or
offering for sale of men's and boys' belts, and women's and children's
belts when not offered for sale as part of a garment, in commerce, as
''commerce'' is defined in the Federal Trade Commission Act, it
constitutes an unfair method of competition and an unfair and deceptive
act or practice to:
(a) Represent, directly or by implication, in advertising, labeling,
marking or otherwise:
(1) That a belt which is not made from the hide or skin of an animal
is leather (e.g., words such as ''leather,'' ''hide'' or ''skin,'' or
depictions, symbols or other words or terms indicative of leather, shall
not be used to describe a belt not made from the hide or skin of an
animal); or
(2) That a belt is made of leather when such belt is composed of
ground, pulverized or shredded leather. This provision shall not be
construed as prohibiting the use of terms such as ''shredded leather
fibers'' or ''pulverized leather,'' as the case may be, to describe the
composition of belts; or
(3) That a belt made of split leather is ''genuine cowhide,''
''finished cowhide,'' ''alligator'' or ''leather,'' or use any other
term which may indicate that it is composed of top grain leather. Belts
composed of split leather shall be described or marked ''split
leather;'' or
(4) That a belt is made from a specified animal hide or skin when
such is not the fact (e.g., cowhide shall not be represented as
''alligator'' or ''Morocco''); or
(5) That a belt is made wholly of a certain kind of leather or other
specified material when in fact it is composed only in part of such
leather or other material.
(b) Sell or distribute belts which have the appearance of leather,
but which are made of split leather or ground, pulverized or shredded
leather or of nonleather material, unless disclosure is made on the
product or on tag or label affixed thereto of the composition of the
product (e.g., ''split leather'' or ''leather fibers'' or ''plastic,''
as the case may be) or of the fact that the product is not leather
(e.g., ''imitation leather'').
(c) Sell or distribute belts made of leather or split leather which
has been embossed, dyed or otherwise processed so as to have the
appearance of a different kind of leather, unless disclosure is made on
the product or on a tag or label affixed thereto of the kind of leather
or split leather of which the belts are composed. For example, a belt
composed of cowhide embossed or otherwise processed to simulate
alligator could be described as ''cowhide'' or ''cowhide embossed to
simulate alligator,'' and a belt composed of split cowhide processed to
simulate pigskin grain could be described as ''split cowhide'' or
''split cowhide with simulated pigskin grain.''
(d) Sell or distribute belts having an outer surface of leather or
other material, which are backed with a different kind of leather or
non-leather material having the appearance of leather, unless disclosure
is made on the product or on a tag or label affixed thereto of the kind
or type of leather used in the backing or of the fact that the backing
is of non-leather material, as the case may be.
16 CFR 405.4 PART 406 -- DECEPTIVE ADVERTISING AND LABELING OF
PREVIOUSLY USED LUBRICATING OIL
Sec.
406.1 The practices involved.
406.2 Deception as to previous use of oil.
406.3 Necessity for front or face panel disclosure.
406.4 Deceptive use of the term ''re-refined.''
406.5 The rule.
Authority: 38 Stat. 717, as amended; 15 U.S.C. 41-58.
Source: 29 FR 11650, Aug. 14, 1964, unless otherwise noted.
Editorial Note: For partial suspension affecting Part 406, see 46 FR
20979, Apr. 8, 1981.
16 CFR 406.1 The practices involved.
Processors, wholesalers and other marketers of lubricating oil
composed in whole or in part of used oil, in the sale of such oil in
commerce as ''commerce'' is defined in the Federal Trade Commission Act,
have (a) failed to disclose clearly and conspicuously the fact that such
oil has been previously used or contains used oil, as the case may be,
(b) represented directly or by implication that such oil is new and
unused, and (c) represented that such oil has been ''re-refined'' when
in fact the physical and chemical contaminants acquired through use have
not been removed by a refining process.
16 CFR 406.2 Deception as to previous use of oil.
(a) Reclaimers of lubricating oils generally obtain their base stocks
from service stations, garages, and other sources where crankcase
drainings and other waste oils are collected. These waste products are
subjected to various processes which, depending on the completeness of
the process used, result in the removal of some or all of the
contaminants acquired through use. The resulting oils, which are
sometimes blended with additives and sometimes with oil from virgin
stocks, are customarily put into containers of the same general size,
kind and appearance as those used for new and unused oil. The oil is
then offered for sale to the public at gasoline filling stations and
other retail outlets in the same manner and for the same purposes as
unused lubricating oil. On the basis of previous Commission decisions,
its knowledge of conditions in the marketing of the product, and the
matters presented in the course of this rulemaking proceeding, the
Commission finds that many consumers prefer new and unused lubricating
oil. In the absence of a clear and conspicuous disclosure of the fact
of previous use, consumers have no means by which they can readily
determine that such products are composed in whole or part of previously
used oil, and are led to believe that such products are composed
entirely of new and unused oil.
(b) It has been urged that reclaimers of oil perform a public service
in that they collect and remove used oil which is potentially harmful
and dangerous, and which otherwise would constitute an industrial and
sanitation problem. It has also been asserted that oil does not wear
out and therefore properly re-refined used oil is as good as or better
than many oils produced entirely from virgin stock. The value of the
service rendered by the industry is not germane to this consideration,
nor is the quality of reclaimed oil involved here. It is not necessary
therefore for the Commission to pass upon the relative merits of new and
reclaimed oil. It is well settled that substitution is unlawful, even
if a qualitative equivalence could be shown and the consumer is
prejudiced if he is led to expect one thing and is supplied with
something else. The public interest requires that used oils be labeled
and advertised as such to prevent deception of the public and to
maintain fair competition.
16 CFR 406.3 Necessity for front or face panel disclosure.
(a) Lubricating oils, whether new, used, or blends thereof, are
usually sold in round quart size cans or in larger cans, such as two
gallon containers having an upright rectangular shape. Generally, these
containers have a front or face panel on which the brand name is
featured and which is designed to present a more attractive appearance
than other parts of the container for display purposes. Some containers
have more than one panel which is similarly designed.
(b) It is common knowledge that in garages, filling stations, and
other retail outlets where lubricating oils are sold, oil containers are
customarily arranged on racks or shelves in such a manner that only the
front or face panel is clearly exposed to the view of prospective
purchasers. Thus, any printed material appearing on other parts of the
container would not readily be seen by the casual observer. In the
marketplace, many purchasers of lubricating oil identify and recognize
products by viewing only the front or face panel of the container and it
is unlikely that they would observe printed material appearing on other
parts of the container which are not exposed to view.
(c) In view of all the circumstances, the Commission concludes that
in order for the disclosure required by this part to be clear and
conspicuous, it should be placed on the front or face panel of each
container. If the container has more than one panel similarly designed
as a front or face panel the required disclosure should be placed on
each such panel.
16 CFR 406.4 Deceptive use of the term ''re-refined.''
(a) Some marketers of reclaimed lubricating oil have described their
products as ''re-refined'' when in fact such oils have been subjected to
but a simple reclaiming process. The reprocessing or reclaiming of
previously used oil is accomplished by various processes. Simple
reclaiming may involve only the removal of insoluble physical
contaminants and sometimes a treatment to reduce chemical contaminants
such as fuel fractions, water, combustion, and resinous oxidation
products. These simple processes do not remove many of the contaminants
acquired through previous use. Experts are not in uniform agreement as
to what criteria should be met to justify the use of the term
''re-refined'' to describe previously used oil. Many technical persons
understand ''re-refining'' to involve a complete and extensive
processing under controlled conditions such as settling, filtration,
dehydration, distillation, chemical treatment, clay treatment, and other
processing, including selective solvent refining. There are variations
in ''re-refining'' methods but the ultimate purpose of all of these is
to remove physical and chemical contaminants acquired through use.
(b) Contention has been made that use of the term ''re-refined''
alone constitutes adequate disclosure that oil so described has been
previously used. Webster's New International Dictionary, Second Edition
-- Unabridged, defines ''refine'' as ''To reduce to a fine, unmixed or
pure state; to separate from extraneous matter; to free from dross or
alloy as metals; to free or cleanse from impurities, as wine, sugar,
etc.'' The same dictionary defines ''re'' as ''again; -- used chiefly
to form words, especially verbs of action, denoting in general
repetition (of the action of the verb) * * *.'' The combination of these
two words, when used to describe oil, would mean, by dictionary
definition, that the process of reducing oil to a fine, unmixed, or pure
state has been repeated.
(c) To the consuming public the word ''re-refined'' as descriptive of
lubricating oil is susceptible of more than one meaning. While members
of the trade and more sophisticated consumers might understand that the
oil so described had been previously used, to many consumer purchasers
who are unaware that oil is reclaimed and resold to the public,
''re-refined'' could well mean a virgin oil which has been refined more
than once. Even when put on notice that the oil has been previously
used, many consumers would be led to believe by the word ''re-refined''
that the oil had been reclaimed and restored to its original condition
by a refining process.
(d) The Commission concludes therefore that the word ''re-refined''
when used alone to describe previously used oil would not adequately
inform prospective purchasers that oil so described has been previously
used. The Commission further concludes that ''re-refined'' when coupled
with a disclosure that the oil has been previously used would mean to a
substantial portion of the consuming public that the oil so described
has had the contaminants acquired through previous use removed therefrom
by a refining process.