Trade Regulation; Rule Concerning the Failure to Disclose the Lethal Effects of Inhaling Quick-Freeze Aerosol Spray Products Used for Frosting Cocktail Glasses

FEDERAL TRADE COMMISSION

16 CFR Part 417

Trade Regulation; Rule Concerning the Failure to Disclose the

Lethal Effects of Inhaling Quick-Freeze Aerosol Spray Products Used for

Frosting Cocktail Glasses

AGENCY: Federal Trade Commission.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The Federal Trade Commission (``Commission'') announces the

commencement of a rulemaking proceeding for the trade regulation rule

concerning the ``Failure to Disclose the Lethal Effects of Inhaling

Quick-Freeze Aerosol Spray Products Used for Frosting Cocktail

Glasses'' (``Quick-Freeze Spray Rule'' or ``Rule''), 16 CFR Part 417.

The proceeding will address whether or not the Quick-Freeze Spray Rule

should be repealed. This notice includes a description of the

procedures to be followed, an invitation to submit written comments, a

list of questions and issues upon which the Commission particularly

desires comments, and instructions for prospective witnesses and other

interested persons who desire to participate in the proceeding.

DATES: Written comments must be submitted on or before October 18,

1995.

Notifications of interest in testifying must be submitted on or

before October 18, 1995. If interested parties request the opportunity

to present testimony, the Commission will publish a notice of the

Federal Register stating the time and place at which the hearings will

be held and describing the procedures that will be followed in

conducting the hearings. In addition to submitting a request to

testify, interested parties who wish to present testimony must submit,

on or before October 18, 1995, a written comment or statement that

describes the issues on which the party wishes to testify and the

nature of the testimony to be given.

ADDRESSES: Written comments and requests to testify should be submitted

to Office of the Secretary, Federal Trade Commission, Room H-159, Sixth

Street and Pennsylvania Avenue, NW., Washington, DC 20580, telephone

number (202) 326-2506. Comments and requests to testify should be

identified as ``16 CFR Part 417--Comment--Quick

[[Page 48074]]

Freeze Spray Rule'' and ``16 CFR Part 417--Request to Testify--Quick

Freeze Spray Rule,'' respectively. If possible, submit comments both in

writing and on a personal computer diskette in Word Perfect or other

word processing format (to assist in processing, please identify the

format and version used). Written comments should be submitted, when

feasible and not burdensome, in five copies.

FOR FURTHER INFORMATION CONTACT: Lemuel W. Dowdy or George Brent Mickum

IV, Attorneys, Federal Trade Commission, Bureau of Consumer Protection,

Division of Enforcement, 601 Pennsylvania Ave., NW., Washington, DC

20004, (202) 326-2981 or (202) 326-3132.

SUPPLEMENTARY INFORMATION:

I. Introduction

On May 23, 1995 the Commission published an Advance Notice of

Proposed Rulemaking (``ANR'') seeking comment on the proposed repeal of

the Quick-Freeze Spray Rule (60 FR 27244). In accordance with section

18 of the Federal Trade Commission Act (``FTC Act''), 15 U.S.C. 57a,

the ANPR was sent to the Chairman of the Committee on Commerce,

Science, and Transportation, United States Senate, and the Chairman of

the Subcommittee of Commerce, Trade and Hazardous Materials, United

States House of Representatives. The ANR comment period closed on June

22, 1995. The Commission received no public comments.

Pursuant to the FTC Act, 15 U.S.C. 41-58, and the Administrative

Procedure Act, 5 U.S.C. 551-59, 701-06, by this Notice of Proposed

Rulemaking (``NPR'') the Commission initiates a proceeding to consider

whether the Quick-Freeze Spray Rule should be repealed or remain in

effect.\1\ The Commission is undertaking this rulemaking proceeding as

part of the Commission's ongoing program of evaluating trade regulation

rules and industry guides to determine their effectiveness, impact,

cost and need. This proceeding also responds to President Clinton's

National Regulatory Reinvention Initiative, which, among other things,

urges agencies to eliminate obsolete or unnecessary regulations.

\1\ In accordance with section 18 of the FTC Act, 15 U.S.C. 57a,

the Commission submitted this NPR to the Chairman of the Committee

on Commerce, Science, and Transportation, United States Senate, and

the Chairman of the Subcommittee on Commerce, Trade and Hazardous

Materials, United States House of Representatives, 30 days prior to

its publication.

II. Background Information

The Quick-Freeze Spray Rule requires a clear and conspicuous

warning on aerosol spray products used for frosting beverage glasses.

The warning states that the contents should not be inhaled in

concentrated form and that doing so may cause injury or death. Glass

frosting products contain a compound known as Fluorocarbon 12

(dichlorodifluoromethane).

The Rule was promulgated on February 20, 1969 (34 FR 2417). The

Statement of Basis and Purpose for the Rule stated that, although the

product is not harmful when used as directed, there has been several

instances where the intentional misuse of this product by inhaling its

vapors resulted in death. Consequently, the Commission concluded that

it was in the public interest to caution purchasers who may not

otherwise be aware of the lethal effects of inhaling the product.

On October 25, 1989, the Commission published a notice in the

Federal Register soliciting public comments on the Rule's impact on

small entities (54 FR 43435). No comments were received in response to

the notice. The Commission determined, however, that a small amount of

quick-freeze aerosol products are still available for sale. Therefore,

the Commission determined that because the Rule's safety warnings, if

followed, could prevent physical harm and loss of life, the Rule should

be retained.

Earlier in 1995, the Commission conducted an investigation to

determine if there was a continuing need for the Rule. Based on this

investigation, which was conducted prior to the issuance of the ANPR,

the Commission determined that glass frosting products are no longer

produced, can no longer be found in the marketplace, and are precluded

by the Clean Air Act from being reintroduced into the market place.\2\

\2\ 42 U.S.C.A. 7401, 7671i (West Supp. 1995). Regulations

promulgated by the Environmental Protection Agency implementing the

Clean Air Act ban chlorofluorocarbons in aerosols and foams for non-

essential uses. 40 CFR 82.64 (1994). The ban, which includes

fluorocarbon 12, became effective on January 17, 1994. See also

Rulemaking Record, Category B, Staff Submissions.

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III. Rulemaking Procedures

The Commission finds that the public interest will be served by

using expedited procedures in this proceeding. First, there do not

appear to be any material issues of disputed fact to resolve in

determining whether to repeal the Rule. Second, the use of expedited

procedures will support the Commission's goal of eliminating obsolete

or unnecessary regulations without an undue expenditure of resources,

while ensuring that the public has an opportunity to submit data, views

and arguments on whether the Commission should repeal the Rule.

The Commission therefore, has determined, pursuant to 16 CFR 1.20,

to use the procedures set forth in this notice. These procedures

include: (1) Publishing this Notice of Proposed Rulemaking; (2)

soliciting written comments on the Commission's proposal to repeal the

Rule; (3) holding an informal hearing, if requested by interested

parties; (4) obtaining a final recommendation from staff; and (5)

announcing final Commission action in a notice published in the Federal

Register.

IV. Invitation to Comment and Question for Comment

Interested persons are requested to submit written data, views or

arguments on any issue of fact, law or policy they believe may be

relevant to the Commission's decision on whether to repeal the Rule.

The Commission requests that commenters provide representative factual

data in support of their comments. Individual firms' experiences are

relevant to the extent they typify industry experience in general or

the experience of similar-sized firms. Commenters opposing the proposed

repeal of the Rule should explain the reasons they believe the Rule is

still needed and, if appropriate, suggest specific alternatives.

Proposals for alternative requirements should include reasons and data

that indicate why the alternatives would better protect consumers from

unfair or deceptive acts or practices under section 5 of the FTC Act,

15 U.S.C. 45.

Although the Commission welcomes comments on any aspect of the

proposed repeal of the Rule, the Commission is particularly interested

in comments on questions and issues raised in this notice. All written

comments should state clearly the question or issue that the commenter

is addressing.

Before taking final action, the Commission will consider all

written comments timely submitted to the Secretary of the Commission

and testimony given on the record at any hearings scheduled in response

to requests to testify. Written comments submitted will be available

for public inspection in accordance with the Freedom of Information

Act, 5 U.S.C. 552, and Commission regulations, on normal business days

between the hours of 8:30 a.m. to 5:00 p.m. at the Federal Trade

Commission, Pubic Reference Room, Room H-130, Federal Trade

[[Page 48075]]

Commission, Sixth Street and Pennsylvania Avenue, NW., Washington, DC

20580, telephone number (202) 326-2222.

Questions

(1) Is any manufacturer currently manufacturing quick-freeze spray

products?

(2) Is any individual or business entity currently marketing quick-

freeze spray products?

(3) Do any retail stores or suppliers still maintain stocks of

quick-freeze spray products for resale?

(4) What are the benefits and the costs of the Rule to firms

subject to the Rule's requirements?

(5) What are the benefits and the costs of the Rule to consumers?

(6) Has technology changed so that the Rule is no longer needed?

(7) Does regulation of this product by the Environmental Protection

Agency render the Rule unnecessary?

(8)Are there any other federal or state laws or regulations, or

private industry standards, that eliminate the need for the Rule?

(9) Should the Rule be kept in effect or should it be repealed?

V. Request for Public Hearings

Because there does not appear to be any dispute as to the material

facts or issues raised by this proceeding and because written comments

appear adequate to present the views of all interested parties, a

public hearing has not been scheduled. If any person would like to

present testimony at a public hearing, he or she should follow the

procedures set forth in the DATES and ADDRESSES sections of this

Notice.

VI. Preliminary Regulatory Analysis

The Regulatory Flexibility Act (``RFA''), 5 U.S.C. 601-11, requires

an analysis of the anticipated impact of the proposed repeal of the

Rule on small businesses.\3\ The analysis must contain, as applicable,

a description of the reasons why action is being considered, the

objectives of and legal basis for the proposed action, the class and

number of small entities affected, the projected reporting,

recordkeeping and other compliance requirements being proposed, any

existing federal rules which may duplicate, overlap or conflict with

the proposed action, and any significant alternatives to the proposed

action that accomplish its objectives and, at the same time, minimize

its impact on small entities.

\3\ Section 22 of the FTC Act, 15 U.S.C. 57b-3, also requires

the Commission to perform ''regulatory impact analyses'' of proposed

rule, but only if the rule will have certain ``significant''

economic or regulatory effects. The commission has determined that a

preliminary regulatory analysis is not required by section 22 in

this proceeding because the Commission has no reason to believe that

repealing the Rule will have a ``significant'' economic or

regulatory impact, either beneficial or detrimental, upon persons

subject to the Rule or upon consumers.

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A description of the reasons why action is being considered and the

objectives of the proposed repeal of the Rule have been explained

elsewhere in this Notice. Repeal of the Rule would appear to have

little or no effect on any small business. The Commission is not aware

of any existing federal laws or regulations that would conflict with

repeal of the Rule.

For all these reasons the Commission certifies, pursuant to section

605 of RFA, 5 U.S.C. 605, that, if the Commission determines to repeal

the Rule, that action will not have a significant impact on a

substantial number of small entities. To ensure that no substantial

economic impact is being overlooked, however, the Commission requests

comments on this issue. After reviewing any comments received, the

Commission will determine whether it is necessary to prepare a final

regulatory flexibility analysis.

VII. Paperwork Reduction Act

The Quick-Freeze Spray Rule does not impose ``information

collection requirements'' under the Paperwork Reduction Act (``PRA''),

44 U.S.C. 3501 et seq. Although the Rule contains disclosure

requirements, these disclosures are not covered under the Act because

the disclosure language is mandatory and provided by the government.

Repeal of the Rule, however, would eliminate any burdens on the public

imposed by these disclosure requires.

VIII. Additional Information For Interested Persons

A. Motions or Petitions

Any motions or petitions in connection with this proceeding must be

filed with the Secretary of the Commission.

B. Communications by Outside Parties to Commissioners or Their Advisors

Pursuant to Rule 1.18(c) of the Commission Rules of Practice, 16

CFR 1.18(c), communications with respect to the merits of this

proceeding from any outside party to any Commissioner or Commissioner's

advisor during the course of this rulemaking shall be subject to the

following treatment. Written communications, including written

communications from members of Congress, shall be forwarded promptly to

the Secretary for placement on the public record. Oral communications,

not including oral communications from members of Congress, are

permitted only when such oral communications are transcribed verbatim

or summarized at the discretion of the Commissioner or Commissioner's

advisor to whom such oral communications are made, and are promptly

placed on the public record, together with any written communications

relating to such oral communications. Memoranda prepared by a

Commissioner or Commissioner's advisor setting forth the contents of

any oral communications from members of Congress shall be placed

promptly on the public record. If the communication with a member of

Congress is transcribed verbatim or summarized, the transcript or

summary will be placed promptly on the public record.

List of Subjects in 16 CFR Part 417

Quick-freeze aerosol spray trade practices.

Authority: 15 U.S.C. 41-58.

By direction of the Commission.

Donald S. Clark,

Secretary.

[FR Doc. 95-23044 Filed 9-15-95; 8:45 am]

BILLING CODE 6750-01-M