[Federal Register Volume 60, Number 158 (Wednesday, August 16, 1995)]
[Proposed Rules]
[Pages 42481-42482]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-20143]



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FEDERAL TRADE COMMISSION

16 CFR Part 3


Duration of Existing Competition and Consumer Protection Orders

AGENCY: Federal Trade Commission (FTC).

ACTION: Notice of proposed rulemaking.

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SUMMARY: The Commission proposes a rule (``Sunset Rule'') that would 
terminate existing administrative orders where certain conditions have 
been met, consistent with Commission policy announced elsewhere in 
today's Federal Register. Curently, the Commission may set aside the 
provisions of such orders upon petition of the respondent, or pursuant 
to show cause proceedings initiated sua sponte by the Commission. The 
proposed rule will reduce the administrative expense and burden 
associated with those procedures by automatically vacating certain 
order provisions that no longer serve the public interest.

DATES: Written comments must be submitted on or before September 15, 
1995.

ADDRESSES: Written comments should be submitted in twenty copies to 
Donald S. Clark, Secretary, Federal Trade Commission, Room 159, Sixth 
Street & Pennsylvania Avenue NW., Washington, D.C. 20580, (202) 326-
2514. Individuals filing comments need not submit multiple copies. 
Submissions should be captioned: Sunset Rule, FTC File No. P954211.

FOR FURTHER INFORMATION CONTACT:
Justin Dingfelder, Assistant Director for Enforcement, Division of 
Enforcement, Bureau of Consumer Protection, (202) 326-3017; Roberta 
Baruch, Deputy Assistant Director for Compliance, Bureau of 
Competition, (202) 326-2861.

SUPPLEMENTARY INFORMATION: Elsewhere in today's Federal Register 
notice, the Commission is publishing a Policy Statement Regarding the 
Duration of Competition and Consumer Protection Orders. As explained in 
that notice, the Commission proposes a rule, rather than case-by-case 
determinations, to implement that policy with respect to existing 
administrative orders.
    The Commission is soliciting comments on the proposed rule. The 
rule would provide that, in general, all provisions of existing 
administrative orders would automatically terminate (``sunset'') 20 
years from the date that the order was issued.\1\ The rule would 
established an exception, however, where a federal court complaint 
alleging a violation of an existing order was filed (with or without an 
accompanying consent decree) within the last 20 years, or where such a 
complaint is subsequently filed with respect to an existing order that 
has not yet expired. In that event, the order would run for another 20 
years from the date that the most recent complaint was filed with the 
court, unless the complaint has been dismissed, or the court has ruled 
that the respondent did not violate any provision of the order, and the 
dismissal or ruling has not been appealed (or has been upheld on 
appeal). The Commission's order would remain in effect while the court 
complaint and any appeal are pending.

    \1\ Orders that are 20 years or older would sunset 30 days after 
publication of the final rule. Certain provisions in existing 
administrative orders will expire, or have already expired, 
according to their own terms, and the proposed rule would not affect 
the duration of those provisions. The rule would also not revive any 
order provision that the Commission has previously reopened and set 
aside. See 16 CFR Secs. 2.51 & 3.72. The rule would not apply to in 
camera orders or other procedural or interlocutory rulings by an 
Administrative Law Judge or the Commission.
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    The filing of a court complaint would not affect the duration of an 
order's application to any respondent that is not named as a defendant 
in the complaint. The Commission, however, may consider whether a 
complaint alleging order violations has ever been filed against a 
respondent, and any other relevant circumstances, in determining 
whether to grant or deny a subsequent petition by a respondent to 
reopen and set aside an order on the basis of changes in law, fact, or 
the public interest. See Commission Rule 2.51, 16 CFR 2.51.

Communication by Outside Parties to Commissioners or Their Advisors

    Pusuant to Commission Rule 1.26(b)(5), 16 CFR Sec. 1.26(b)(5), 
communications with respect to the merits of this proceeding from any 
outside party to any Commissioner or Commissioner advisor during the 
course of this rulemaking will be subject to the following treatment. 
Written communications, including written communications from members 
of Congress, will be forwarded promptly to the Secretary for placement 
on the public record. Oral communications, not including 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 advisor to whom such 
oral communications are made) and are promptly placed on the public 
record, together with any written communications and summaries of any 
oral communications relating to such oral communications. Oral 
communications from members of Congress will be transcribed or 
summarized (at the discretion of the Commissioner or Commissioner 
advisor to whom such oral communications are made) and promptly placed 
on the public record, together with any written communications and 
summaries of any oral communications relating to such oral 
communications.

Regulatory Flexibility Act

    On the basis of information currently available to the Commission, 
it is anticipated that the proposed rule will result in the elimination 
of a substantial number of existing orders that no longer serve the 
public interest. Accordingly, the Commission has determined at this 
time that the Regulatory Flexibility Act does not require an initial or 
final regulatory flexibility analysis, because the proposed rule would 
not have significant impact on a substantial number of small entities 
within the meaning of the Act. 5 U.S.C. 605. This notice serves as 
certification to that effect for purposes of the Small Business 
Administration.
    Nonetheless, to ensure that no substantial economic impact is 
overlooked, the Commission requests public comment on the effect of the 
proposed rule on costs, profitability, 

[[Page 42482]]
competitiveness, and employment in small entities. Whether preparation 
of a final regulatory analysis is warranted will be determined after 
receipt and review of such comments, if any.
Effective Date

    The Commission will announce an effective date for the rule upon 
publication of the rule in final form. Petitions to stay, in whole or 
in part, the termination of an order pursuant to the rule shall be 
filed pursuant to Commission Rule 2.51, 16 CFR Sec. 2.51. In the case 
of orders that have been in effect for at least 20 years, the rule 
would provide respondents with 30 days to the file such a petition 
before the order is automatically terminated by the rule. Pending the 
disposition of such a petition, the order would be deemed to remain in 
effect without interruption.

List of Subjects in 16 CFR Part 3

    Administrative practice and procedure, Claims, Equal access to 
justice, Lawyers.

    Accordingly, the Federal Trade Commission proposes to amend Title 
16, Chapter I, Subchapter A, of the Code of Federal Regulations as 
follows:

PART 3--RULES OF PRACTICE FOR ADJUDICATIVE PROCEEDINGS

    1. The authority for Part 3 would continue to read as follows:

    Authority: Sec. 6, 38 Stat. 721 (15 U.S.C. 46), unless otherwise 
noted.

    2. Section 3.72 would be amended by adding a new paragraph 
3.72(b)(3) to read as follows:


Sec. 3.72  Reopening.

* * * * *
    (b) * * *
    (3) Termination of existing orders. (i) Generally. Notwithstanding 
the foregoing provisions of this rule, and except as provided in 
paragraphs (b)(3)(ii) and (iii) of this section, an order issued by the 
Commission before August 16, 1995, will be deemed, without further 
notice or proceedings, to terminate 20 years from the date on which the 
order was first issued, or on [30 days following publication of the 
final rule in the Federal Register], whichever is later.
    (ii) Exception. This paragraph applies to the termination of an 
order issued before August 16, 1995, where a complaint alleging a 
violation of the order was or is filed (with or without an accompanying 
consent decree) in federal court by the United States or the Federal 
Trade Commission while the order remains in force, either on or after 
August 16, 1995, or within the 20 years preceding that date. If more 
than one complaint was or is filed while the order remains in force, 
the relevant complaint for purposes of this paragraph will be the 
latest filed complaint. An order subject to this paragraph will 
terminate 20 years from the date on which a court complaint described 
in this paragraph was or is filed, except as provided in the following 
sentence. If the compliant was or is dismissed, or a federal court 
rules or has ruled that the respondent did not violate any provision of 
the order, and the dismissal or ruling was or is not appealed, or was 
or is upheld on appeal, the order will terminate according to paragraph 
(b)(3)(i) of this section is though the complaint was never filed; 
provided, however, that the order will not terminate between the date 
that such complaint is filed and the later of the deadline for 
appealing such dismissal or ruling and the date such dismissal or 
ruling is upheld on appeal. The filing of a complaint described in this 
paragraph will not affect the duration of any order provision that has 
expired, or will expire, by its own terms. The filing of a complaint 
described in this paragraph also will not affect the duration of an 
order's application to any respondent that is not named in the 
complaint.

    (iii) Stay of Termination. Any party to an order may seek to stay, 
in whole or part, the termination of the order as to that party 
pursuant to paragraph (b)(3)(i) or (ii) of this section. Petitions for 
such stays shall be filed in accordance with the procedures set forth 
in Sec. 2.51 of these rules. Such petitions shall be filed on or before 
the date on which the order would be terminated pursuant to paragraph 
(b)(3)(i) or (ii) of this section. Pending the disposition of such a 
petition, the order will be deemed to remain in effect without 
interruption.

    (iv) Orders not terminated. Nothing in Sec. 3.72(b)(3) is intended 
to apply to in camera orders or other procedural or interlocutory 
rulings by an Administrative Law Judge or the Commission.

    By direction of the Commission.

Donald S. Clark,

Secretary.

[FR Doc. 95-20143 Filed 8-15-95; 8:45 am]

BILLING CODE 6750-01-M