[Federal Register Volume 60, Number 180 (Monday, September 18, 1995)]
[Proposed Rules]
[Pages 48073-48075]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-23044]



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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should be repealed.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