Rubber Manufacturers Association, Inc., et al.; Prohibited Trade Practices and Affirmative Corrective Actions

FEDERAL TRADE COMMISSION

[Dkt. 7505]

Rubber Manufacturers Association, Inc., et al.; Prohibited Trade

Practices and Affirmative Corrective Actions

AGENCY: Federal Trade Commission.

ACTION: Set aside order.

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SUMMARY: This order reopens a 1962 consent order--which prohibited the

Association from formulating or enforcing resale price agreements,

exchanging resale price information or entering into price-fixing

agreements--and sets aside the consent order as to respondent Rubber

Manufacturers Association pursuant to the Commission's Sunset Policy

Statement, under which the Commission presumes that the public interest

requires terminating competition orders that are more than 20 years

old.

DATES: Consent order issued January 6, 1962. Set aside order issued

July 19, 1995.

FOR FURTHER INFORMATION CONTACT: Elizabeth Piotrowski, FTC/S-2115,

Washington, D.C. 20580. (202) 326-2623

SUPPLEMENTARY INFORMATION: In the Matter of Rubber Manufacturers

Association, Inc., et al. The prohibited trade practices and/or

corrective actions are removed as indicated.

(Sec. 6, 38 Stat. 721; 15 U.S.C. 46. Interprets or applies sec. 5,

38 Stat. 719, as amended; 15 U.S.C. 45)

Commissioners: Robert Pitofsky, Chairman, Mary L. Azcuenaga, Janet

D. Steiger, Roscoe B. Starek, III, Christine A. Varney

In the Matter of--

Rubber Manufacturers Association, Inc., a trade association;

The Tire and Rim Association, Inc., a trade association;

The Goodyear Tire and Rubber Company, a corporation;

The Firestone Tire and Rubber Company, a corporation;

United States Rubber Company, a corporation;

The B.F. Goodrich Company, a corporation;

The General Tire and Rubber Company, a corporation;

The Armstrong Rubber Company, a corporation;

Cooper Tire and Rubber Company, a corporation;

The Dayton Rubber Company, a corporation;

Dunlop Tire and Rubber Corporation, a corporation;

The Gates Rubber Company, a corporation;

Lee Rubber and Tire Corporation, a corporation;

The Mansfield Tire and Rubber Company, a corporation;

McCreary Tire and Rubber Company, a corporation;

The Mohawk Rubber Corporation, a corporation; and

Seiberling Rubber Company, a corporation.

Order Reopening Proceeding and Setting Aside Order as to Respondent

Rubber Manufacturers Association, Inc.

On March 17, 1995, Rubber Manufacturers Association, Inc. (``Rubber

Manufacturers''), one of seventeen respondents named in this consent

order,\1\ filed its Petition to Reopen and Set Aside Consent Orders

(``Petition'') in this matter. Rubber Manufacturers requests that the

Commission set aside the 1962 consent order in this matter pursuant to

section 5(b) of the Federal Trade Commission Act, 15 U.S.C. 45(b), Rule

2.51 of the Commission's Rules of Practice, 16 C.F.R. 2.51, and the

Statement of Policy With Respect to Duration of Competition Orders and

Statement of Intention to Solicit Public Comment With Respect to

Duration of Consumer Protection Orders, issued on July 22, 1994, and

published at 59 FR 45,286-92 (Sept. 11, 994) (``Sunset Policy

Statement''). In the Petition, Rubber Manufacturers affirmatively

states that it has not engaged in any conduct violating the terms of

the order. The Petition was placed on the public record, and the

thirty-day comment period expired on May 10, 1995. One comment,

relating to general policy issues concerning the Commission's Sunset

Policy Statement, was received.

\1\ The remaining respondents did not petition the Commission to

reopen and set aside the order as to them.

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The Commission in its July 22, 1994, Sunset Policy Statement said,

in relevant part, that ``effective immediately, the Commission will

presume, in the context of petitions to reopen and modify existing

order in effect for more than twenty years.'' \2\ The Commission's

consent order in Docket No. 7505 was issued on January 6, 1962, and has

been in effect for thirty-years. Consistent with the Commission's July

22, 1994, Sunset Policy Statement, the resumption is that the order

should be terminated. Nothing to overcome the presumption having been

presented, the Commission has determined to reopen the proceeding and

set aside the order in Docket No. 7505 as to respondent Rubber

Manufacturers.

\2\ See Sunset Policy Statement, 59 Fed. Reg. at 45,289.

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Accordingly, it is ordered That this matter be, and it hereby is,

reopened;

It is further ordered, That the Commission's order in Docket No.

7505

[[Page 43804]]

be, and it hereby is, set aside, as to respondent Rubber Manufacturers,

as of the effective date of this order.

By the Commission.

Benjamin I. Berman,

Acting Secretary.

Concurring Statement of Commissioner Mary L. Azcuenaga in Rubber

Manufacturers Association, Inc., D. 5448 and D. 7505

I concur in the decision to grant the request of the Rubber

Manufacturers Association, Inc. to set aside the 1948 order in Docket

No. D. 5448 and the 1962 order in Docket No. D. 7505. I dissent from

the decision to limit the setting aside of the order to the

association, instead of setting aside the order in its entirety.

The decision to limit relief to the Rubber Manufacturers

Association, one of forty-three respondents under the order appears to

be inconsistent with the Commission's announced policy to presume

``that the public interest requires reopening and setting aside the

order in its entirety'' (emphasis added) ``when a petition to reopen

and modify a competition order is filed'' and the order is more than

twenty years old.\1\ The Commission's recognition of the limitations of

the findings underlying an order \2\ further suggests that the

presumption that an order will be terminated after twenty years should

apply to the order in its entirety and not be limited to the

petitioner.\3\

\1\ FTC, Statement of Policy with Respect to Duration of

Competition Orders and Statement of Intention To Solicit Public

Comment with Respect to Duration of Consumer Protection Orders (July

22, 1994), at 8 (hereafter ``Sunset Policy Statement'').

\2\ ``[F]indings upon which [orders] are based should not be

presumed to continue'' for longer than twenty years. Sunset Policy

Statement at 4.

\3\ The presumption of termination after 20 years applies

authomatically for new orders in competition cases and is not

limited to individual respondents, further supporting the view that

the twenty-year presumption in favor of sunset for existing orders

should apply to the order, not to particular respondents.

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I previously have expressed my concern that the adoption of a

presumption instead of an across-the-board rule in favor of sunset

``will impose costs by requiring respondents to file individual

petitions and the Commission to assess in the context of each such

petition whether the presumption has been overcome for that order.''\4\

Now the Commission would further increase the burden on both public and

private resources by applying the presumption in favor of sunset not

only on a case-by-case basis but on a respondent-by respondent basis.

\4\ Separate Statement of Commission Mary L. Azcuenaga on Sunset

Policy (July 22, 1994), at 7 (footnote omitted).

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The petition filed by the Rubber Manufacturers Association invoked

the twenty-year presumption that the order should be set aside. No

evidence of recidivist conduct by any of the forty-three respondents,

having been presented to overcome the presumption,\5\ the order should

be set aside in its entirety.

\5\ See Sunset Policy Statement at 8 n.19.

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[FR Doc. 95-20903 Filed 8-22-95; 8:45 am]

BILLING CODE 6750-01-M