[Federal Register Volume 75, Number 187 (Tuesday, September 28, 2010)]
[Rules and Regulations]
[Pages 59609-59610]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-24220]
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FEDERAL TRADE COMMISSION
16 CFR Part 307
[RIN 3084-AB23]
Rescission of Regulations Under the Comprehensive Smokeless
Tobacco Health Education Act of 1986
AGENCY: Federal Trade Commission.
ACTION: Final rule.
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SUMMARY: The Federal Trade Commission (``FTC'' or ``Commission'') is
rescinding its smokeless tobacco regulations. Recent legislation
transferred the FTC's authority for those regulations to the Secretary
of the Department of Health and Human Services (``DHHS''). DHHS will
now review and approve rotational warning plans for these products.
EFFECTIVE DATE: September 28, 2010.
ADDRESSES: Copies of this document are available from: Public Reference
Branch, Room 130, Federal Trade Commission, 600 Pennsylvania Avenue,
N.W., Washington, DC 20580. Copies of this document are also available
on the Internet at the Commission's website: (http://www.ftc.gov).
FOR FURTHER INFORMATION CONTACT: Shira Modell, (202) 326-3116,
Attorney, Division of Advertising Practices, Bureau of Consumer
Protection, Federal Trade Commission, 600 Pennsylvania Avenue, N.W.,
Washington, D.C., 20580.
SUPPLEMENTARY INFORMATION:
I. Background
The Comprehensive Smokeless Tobacco Health Education Act of 1986
(``Smokeless Tobacco Act''), Pub. L. 99-252, 100 Stat. 30 (1986),
required manufacturers, importers, and packagers of smokeless tobacco
products to display on a rotating basis one of three statutory health
warnings on product packages and in most advertising (other than
billboards). The Smokeless Tobacco Act also directed the FTC to issue
implementing regulations governing the format and display of the health
warnings, and to review and approve (if appropriate) plans specifying
how smokeless tobacco companies planned to comply with the rotational
warning requirements specified in the Smokeless Tobacco Act and the
implementing regulations. 15 U.S.C. 4402 (1986) (amended 2009). The
Commission issued its smokeless tobacco regulations, 16 CFR Part 307,
on November 4, 1986.\1\ 51 FR 40015.
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\1\ The regulations were amended in 1991 to include provisions
for the rotation and display of the statutory warnings on
utilitarian items. 56 FR 11654 (Mar. 20, 1991).
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II. Basis for Removal of Regulations
On June 22, 2009, President Obama signed into law the Family
Smoking Prevention and Tobacco Control Act, Pub. L. No. 111-31, 123
Stat. 1776 (2009) (``Family Smoking Prevention Act''). The Family
Smoking Prevention Act, among other things, amended the Smokeless
Tobacco Act to change the language of the existing three statutory
health warnings and add a fourth warning, and to require new size,
format, and display requirements for the statutory health warnings.
Family Smoking Prevention Act, Sec. 204. The Family Smoking Prevention
Act also gave the Secretary of DHHS authority to change the warning
statements and the size, format, and display requirements of those
warnings, and transferred authority over the review and approval of
rotational warning plans from the Commission to the Secretary. Family
Smoking Prevention Act, Sec. 205. These amendments to the Smokeless
Tobacco Act became effective on June 22, 2010.
Earlier this year, the Commission terminated its regulatory review
of the smokeless tobacco regulations, citing the enactment of the
Family Smoking Prevention Act. 75 FR 3665 (Jan. 22,
[[Page 59610]]
2010). The regulations themselves, however, remain in place.
The Commission has now concluded that, in light of the amendments
to the Smokeless Tobacco Act, the regulations in 16 CFR Part 307 no
longer serve any purpose and actually conflict with the new statutory
provisions. As noted above, the Family Smoking Prevention Act revised
the language of the smokeless tobacco health warning statements and
adopted new requirements for the format, size, and location of those
statements on smokeless tobacco packaging and in ads for smokeless
tobacco products. These requirements supersede those adopted by the
Commission pursuant to the 1986 statute. Accordingly, the Commission
concludes that its regulations implementing the Smokeless Tobacco Act
should be removed. Indeed, retention of these regulations could
generate confusion if some smokeless tobacco manufacturers and
importers mistakenly believe that they reflect current legal
requirements.
Under 5 U.S.C. 553(b)(B), an agency may promulgate a rule without
prior notice and an opportunity for public comment if the agency finds
for good cause that this procedure is unnecessary. Nat'l Customs
Brokers & Forwarders Ass'n v. United States, 59 F.3d 1219, 1223-1224
(Fed. Cir. 1995). In rescinding 16 CFR Part 307, the Commission finds
that public comment is unnecessary because the FTC is rescinding its
regulations in response to the transfer of its underlying regulatory
authority to the Secretary of DHHS. Since the FTC has no discretion in
that matter, there is no reason or need for public comment on this
regulatory action. The Family Smoking Prevention Act amended 15 U.S.C.
4402 by repealing the Commission's authority to promulgate rules
implementing the smokeless tobacco labels and related rotational plans.
That Act provides the Secretary of DHHS the authority to promulgate
rules regarding the smokeless tobacco labels and the authority to
approve related rotational plans. Therefore, as of June 22, 2010, the
effective date of Congress's amendments, the Commission's rules under
16 CFR Part 307 were no longer authorized by statute. Although 15
U.S.C. 4404(b) continues to refer to ``[r]egulations issued by the
Federal Trade Commission under [15 U.S.C. 4402],'' it is clear from the
amendments to 15 U.S.C. 4402 that the Commission no longer has the
authority to promulgate such regulations. Moreover, the Commission's
rules under 16 CFR Part 307, if left intact, would conflict with the
unambiguously expressed intent of Congress to provide the Secretary
with the authority to promulgate such regulations and to approve the
related rotational plans. Therefore, immediate rescission of the
outdated rules will help avoid confusion as to which agency has proper
authority to promulgate these rules and to approve related rotational
plans.\2\ For all of these reasons, the Commission finds that public
notice and comment are not necessary in rescinding 16 CFR Part 307.
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\2\ Although the Commission no longer has the authority to
promulgate regulations implementing the smokeless tobacco labels or
to approve related rotational plans, the Commission continues to
have authority to bring enforcement actions with respect to
violations of 15 U.S.C. 4402 under 15 U.S.C. 4404(a).
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In addition, the Commission finds that, under 5 U.S.C. 553(d)(1),
the rescission may take effect immediately upon publication of this
notice in the Federal Register. The removal of the regulations is
exempt from the usual 30-day notice requirement as it merely ``relieves
a restriction'' from FTC requirements. 5 U.S.C. 553(d)(1); see also
Indep. U.S. Tanker Owners Comm. v. Skinner, 884 F.2d 587, 591 (D.C.
Cir. 1989). The 30-day notice requirement does not apply under these
circumstances, in which the Family Smoking Prevention Act has required
the submission of rotational warning plans to DHHS since June 22, 2010.
Therefore, affected companies do not need time to prepare for or take
any action with regard to the rescission. See Daniel Int'l Corp. v.
Occupational Safety & Health Review Com., 656 F.2d 925, 931 (4th Cir.
1981) (``The purpose of the 30-day notice requirement in Sec. 553(d)
is to `afford persons affected a reasonable time to prepare for the
effective date of a rule or rules or to take any other action which the
issuance of rules may prompt.' Administrative Procedure Act Legislative
History, 79th Cong., 2d Sess. 201 (1946)'').
III. Paperwork Reduction Act
The Commission's regulations implementing the Smokeless Tobacco Act
impose reporting requirements that constitute a ``collection of
information'' under the Paperwork Reduction Act, 44 U.S.C. 3501 et seq.
Accordingly, removal of these regulations will eliminate any burden on
the public previously imposed by those requirements.
IV. Regulatory Flexibility Act
Because the Commission has determined that it may remove these
regulations without public comment, the Commission is also not required
to publish any initial or final regulatory flexibility analysis under
the Regulatory Flexibility Act as part of such action. See 5 U.S.C.
603(a), 604(b).
List of Subjects in 16 CFR Part 307
Advertising, Labeling Smokeless Tobacco, Tobacco, Trade Practices.
0
Accordingly, for the reasons set forth above, and under the authority
of 15 U.S.C. 4402 and 5 U.S.C. 553(d)(1), the Commission amends Title
16, Code of Federal Regulations, by removing and reserving part 307.
PART 307--REMOVED AND RESERVED
By direction of the Commission.
Donald S. Clark,
Secretary.
[FR Doc. 2010-24220 Filed 9-27-10; 8:45 am]
BILLING CODE 6750-01-S