[Federal Register Volume 64, Number 86 (Wednesday, May 5, 1999)]
[Proposed Rules]
[Pages 24250-24253]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-11260]
[[Page 24249]]
_______________________________________________________________________
Part IV
Federal Trade Commission
_______________________________________________________________________
16 CFR Part 453
Request for Comments Concerning Trade Regulation Rule on Funeral
Industry Practices; Proposed Rule
Federal Register / Vol. 64, No. 86 / Wednesday, May 5, 1999 /
Proposed Rules
[[Page 24250]]
FEDERAL TRADE COMMISSION
16 CFR Part 453
Request for Comments Concerning Trade Regulation Rule on Funeral
Industry Practices
AGENCY: Federal Trade Commission.
ACTION: Request for public comments.
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SUMMARY: The Federal Trade Commission (the ``Commission'') is
requesting public comments on its Trade Regulation Rule on Funeral
Industry Practices (``the Funeral Rule'' or ``the Rule''). The
Commission requests comments about the overall costs and benefits of
the Rule and its overall regulatory and economic impact as a part of
its systematic review of all current Commission regulations and guides.
Also requested are comments on whether the Rule should be modified to
broaden its scope to include non-traditional providers of funeral goods
or services; revise or clarify the prohibition on casket handling fees;
or prohibit non-declinable funeral fees. All interested persons are
hereby given notice of the opportunity to submit written data, views
and arguments concerning the Rule.
DATES: Written comments will be accepted until July 12, 1999.
ADDRESSES: Written comments should be identified as ``16 CFR Part 453''
and submitted to: Secretary, Federal Trade Commission, Room H-159, 600
Pennsylvania Ave., NW, Washington, DC 20580. The Commission requests
that commenters submit the original plus five copies, if feasible. To
enable prompt review and public access, all written comments should
also be submitted, if possible, in electronic form. To submit in
electronic form, provide the comment on either a 5\1/4\'' or a 3\1/2\''
computer disk. The disk should be labeled with the commenter's name and
the name and version of the word processing program used to create the
document. (Programs based on DOS or Windows are preferred. Files from
other operating systems should be submitted in ASCII text format).
Alternatively, the Commission will also accept comments submitted to
the following E-Mail address: ``[email protected].'' Individual members
of the public who will be filing comments need not submit multiple
copies and need not submit their comments in electronic form.
All comments will be placed on the public record and will be
available for public inspection in accordance with the Freedom of
Information Act, 5 U.S.C. 552, and the Commission's Rules of Practice,
16 CFR 4.11, during normal business days from 8:30 a.m. to 5 p.m., at
the Public Reference Room, Room 130, Federal Trade Commission, 6th
Street and Pennsylvania Avenue, NW Washington, DC 20580. In addition,
comments will be posted on the Internet at the FTC's web site:
``www.ftc.gov''.
Notification of interest in the Public Workshop-Conference should
be submitted in writing to Mercedes Kelley, Division of Marketing
Practices, Federal Trade Commission, Washington, DC 20580.
FOR FURTHER INFORMATION CONTACT: Myra Howard, (202) 326-2047, or
Mercedes Kelley, (202) 326-3665, Division of Marketing Practices,
Bureau of Consumer Protection, Federal Trade Commission, Washington, DC
20580.
SUPPLEMENTARY INFORMATION: The current request for comments on the
Funeral Rule is part of the Commission's regulatory review program
which has been implemented to review Rules and guides periodically. The
regulatory review program seeks information about the costs and
benefits of the Commission's Rules and guides and their regulatory and
economic impact. The information obtained will assist the Commission in
identifying Rules and guides that warrant modification or rescission.
A. Background
The Commission adopted the Trade Regulation Rule entitled Funeral
Industry Practices (the ``Funeral Rule'') on September 24, 1982. It
became fully effective on April 30, 1984.1 The essential
purposes of the Funeral Rule were to ensure that consumers receive
information necessary to make informed purchasing decisions, and to
lower existing barriers to price competition in the market for funeral
goods and services.2 Subsequently, the Funeral Rule was
amended as a result of a regulatory review and amendment proceeding
that began on December 9, 1987.3 The Commission published
the amended Funeral Rule on January 11, 1994.4 The
amendments to the Rule took effect July 19, 1994.
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\1\ The Rule had two effective dates. The portions of the Rule
that prohibit certain oral or written representations became
effective on January 1, 1984. 48 FR 45537. The remainder of the Rule
(the portions imposing affirmative obligations on funeral providers)
became effective on April 30, 1984.
\2\ 47 FR 42260.
\3\ 52 FR 46706.
\4\ 59 FR 1592.
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The Rule, as it stands today, specifies that it is an unfair or
deceptive act or practice for a funeral provider to: (1) Fail to
furnish consumers with accurate price information disclosing the costs
of each funeral good or service used in connection with the disposition
of dead bodies; (2) require consumers to purchase a casket for direct
cremations; (3) condition the provision of any funeral good or service
upon the purchase of any other funeral good or service; or (4) embalm
the deceased for a fee without authorization. The Rule also specifies
that it is a deceptive act or practice for funeral providers to
misrepresent the legal or local cemetery requirements for: (1)
Embalming; (2) caskets in direct cremations; (3) outer burial
containers; or (4) any other funeral good or service, and to
misrepresent that cash advance purchases are the same as the cost to
the funeral provider when such is not the case. The Rule sets forth
preventive requirements in the form of price and information
disclosures to ensure funeral providers avoid engaging in the unfair or
deceptive acts or practices described above.
B. Issues for Comment
This review is part of a regularly scheduled review which generally
seeks information about the costs and benefits of the Commission's
rules and guides and their regulatory and economic impact. The
information obtained will assist the Commission in identifying aspects
of the Funeral Rule that warrant modification or rescission.
Accordingly, the Commission is generally soliciting comments on, among
other things, the economic impact of and the continuing need for the
Funeral Rule; possible conflict between the Rule and state, local, or
other federal laws; and the effect on the Rule of any technological,
economic or other industry changes.
There are a number of other material issues on which the Commission
is also seeking comment. The Commission recognizes that change is
occurring in the funeral industry at a rapid pace and that several
issues have arisen since the Rule was amended in 1994 which may warrant
additional modification or rescission of the Funeral Rule.
First, the Funeral and Memorial Societies of America (``FAMSA''),
has requested that the Commission consider making a number of
amendments and additions to the Rule. Among these are: (1) The
elimination of any non-declinable fee; (2) the addition of four items
to the required itemization on the General Price List--namely, the
price for private viewing without embalming, the price for body
donation to a medical school, the price for the cremation process
itself,\5\ and the price for rental
[[Page 24251]]
caskets; (3) a requirement that the cost of the cremation process be
included in the charge for an immediate or ``direct'' cremation; (4) a
requirement that any mark-up on cash advance items be disclosed with
the actual amount to be charged; and (5) that the scope of the Rule be
expanded to bring cemeteries, monument dealers, and casket sellers
within coverage of the Rule.\6\
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\5\ Despite the fact that Sec. 453.1(g) of the Rule defines
``direct cremation'' as ``a disposition of human remains by
cremation (i.e., `a heating process which incinerates human
remains,' Sec. 453.1(e)), without formal viewing, visitation, or
ceremony with the body present,'' FAMSA suggests that some funeral
providers may charge a fee for the actual cremation of a body that
may not be reflected on the General Price List item price for a
``direct cremation'' under Sec. 453.2(b)(4)(ii)(C).
\6\ September 24, 1997 FAMSA letter.
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Second, members of Congress, industry representatives, and members
of the general public have expressed concerns about the changing nature
of the industry and the competition between traditional providers of
funeral services and the non-traditional providers.
1. The Definition of ``Funeral Provider''
The Funeral Rule applies only to ``funeral providers.'' \7\ The
Rule defines a funeral provider as ``any person, partnership or
corporation that sells or offers to sell funeral goods and funeral
services to the public.'' \8\ Accordingly, persons that sell or offer
to sell only funeral goods or only funeral services are not considered
``funeral providers.'' In other words, the non-traditional members of
the funeral industry, such as cemeteries and casket retailers, do not
meet the definition of ``funeral provider'' and are thus not subject to
the Rule's provisions. The Commission considered expanding the
definition of funeral provider in the mandatory review that culminated
in the 1994 amended Rule. At that time, the non-traditional sellers had
only just begun to enter the market for funeral goods and services.
Accordingly, the Commission determined not to expand coverage to other
segments of the funeral industry at that time. Since then the
Commission has stayed abreast of the increased entry of non-traditional
entities into the sale of both funeral goods and services. As
competition has been increasing in the sale of caskets and other
funeral goods and services, the Commission believes that it is time to
reconsider whether it would be in the public interest to expand the
coverage of the Funeral Rule to include non-traditional providers of
funeral goods and services. Therefore, the Commission solicits comments
on whether it is now desirable to revise the Rule's definition of
``funeral provider.''
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\7\ 16 CFR 453.1(i).
\8\ Id. (Emphasis added). Funeral goods are, ``the goods which
are sold or offered for sale directly to the public for use in
connection with funeral services.'' Funeral services are, ``any
services which may be used to: (1) Care for and prepare deceased
human bodies for burial, cremation or other final disposition; and
(2) arrange, supervise or conduct the funeral ceremony or the final
disposition of deceased human bodies.'' 16 CFR 453.(1)(h)&(j).
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2. Casket Handling Fees Clarification
Section 453.4(b)(2)(i)(A) of the Rule mandates a specifically-
worded disclosure informing the consumer that ``(y)ou may choose only
the items you desire.'' The general purpose of this provision is to
make it possible for consumers to freely select funeral goods and
services. In other words, consumers should pay for only those goods and
services they select. Funeral providers are required to ``unbundle''
their offerings and allow for selection of individual funeral goods and
services.
When the Rule was amended in 1994, Sec. 453(b)(2)(i)(A) was
augmented by the addition of Sec. 453.4(b)(1)(ii), which specifies that
it is an unfair or deceptive practice for funeral providers to:
Charge any fee as a condition to furnishing any funeral goods or
funeral services to a person arranging a funeral, other than the
fees for: (1) Services of funeral director and staff, permitted by
Sec. 453.2(b)(4)(iii)(C); (2) other funeral services and funeral
goods selected by the purchaser; and (3) other funeral goods or
services required to be purchased, as explained on the itemized
statement in accordance with Sec. 453.3(d)(2).
Therefore, funeral providers are prohibited from charging any fee that
is not for the services of the funeral director, or the items selected
by the consumer. Placing such a limitation on permissible fees was
specifically intended, in part, to prohibit a funeral provider from
charging consumers a fee for using a casket purchased from some source
other than that funeral provider. The Commission, in amending the Rule,
determined that ``substantial `casket handling fees' are imposed on
consumers by a significant proportion of providers wherever third-party
casket sellers exist, and, as a result, frustrate the Rule's
`unbundling' requirements and result in the reduction of potential
competition.'' 9 The Commission found that some providers
implemented casket handling fees ``because of their competitive
reluctance to shift overhead costs and profit from the casket mark-up
to professional services fees,'' while other providers used handling
fees as a ``direct response to third'party competition.'' 10
The Commission determined that ``the Rule should require providers to
recoup costs and profits lost to third-party casket sales in ways that
do not violate the intent of the Rule's `unbundling' provision.''
11
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\9\ 59 FR at 1604.
\10\ Id.
\11\ Id.
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Since the amendment of the Rule, the Commission is aware that some
funeral providers may employ certain practices that may undermine the
benefit to consumers and to competition intended by the Rule's
unbundling provisions. Although the Rule limits permissible fees, it
does not regulate the prices that funeral providers may charge, nor
does it prohibit the offering of funeral packages.12 Neither
the Commission nor staff hitherto has interpreted the Rule to prohibit
the offering of such packages at a discount--that is, offering
combinations of funeral goods and services which, if purchased
together, are offered at a lower price in aggregate than if the
consumer was to purchase each good and service individually. Even
though the Third Circuit has noted that the Commission, in drafting its
casket handling fee prohibition, drew a distinction between a direct
``fee'' and a ``discount,'' 13 as a practical matter, the
distinction between a ``fee'' as it is used by the Rule, and a
``discount'', as offered by funeral providers, may be blurred. For
example, the prices of itemized goods and services (appearing on the
General Price List) may in some instances be inflated to the point of
fictitiousness. Thus, virtually all consumers would choose to purchase
``discount packages,'' resulting in a situation where the discount
package represents the de facto prices for the goods and services. Such
a scenario may restrict consumer choice in a manner that frustrates the
intended purpose of the Rule. Further, some members of the funeral
industry have alleged that because such ``discount packages'' are often
conditioned on the purchase of a casket, these packages are
artificially constructed by certain funeral providers in order to
eliminate competition in casket sales.
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\12\ ``You [the funeral provider] may still offer funeral
packages, as long as they are offered in addition to, not in place
of, itemized prices.'' Complying with the Funeral Rule, a Business
Guide Produced by the Federal Trade Commission (``Compliance
Guide'') at p. 24.
\13\ Pennsylvania Funeral Dirs. Ass'n., Inc. v. FTC, 41 F.3d 81,
90 (3rd Cir. 1994) (noting that ``the FTC distinguishes direct
handling fees from offering discounts to people who buy caskets from
the funeral home'').
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As a result of the differing views that have emerged in the funeral
industry with respect to the reach of the casket handling fee
prohibition and its effect on certain types of discount packaging, the
Commission is concerned about the effectiveness of the casket handling
fee prohibition. Even at the time of the 1994
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Funeral Rule amendment, the Commission staff report reflected a level
of uncertainty regarding funeral packages as they relate to the casket
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handling fee prohibition when it stated:
Of course, enforcement issues might arise if, as a result of
those package prices, consumers' choices were being restricted or
additional fees above the itemized cost of caskets or services were
being assessed.14
\14\ Final Staff Report, at 39 n. 76.
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Accordingly, the Commission specifically seeks comments on the
casket handling fee prohibition, its effectiveness, and the impact it
has had on consumers and funeral providers.
3. Non-declinable Fees Currently Allowed Under
Sec. 453.2(b)(4)(iii)(C)(1) or (C)(2)
As noted above, the only fee that funeral providers can require
consumers to pay under the Funeral Rule is the fee for ``basic
services.'' The ``basic services fee'' is defined as the charge for the
services of the funeral director and staff.15 The effect of
this definition is to permit funeral directors to charge one, and only
one, non-declinable fee to cover the basic services of the funeral
director and staff. The Commission solicits comments on the efficacy of
this provision in ensuring consumers the greatest amount of choice with
respect to goods and services. The Commission also seeks comment on the
effect of this provision upon funeral providers, and upon competition
among them. Revision of the ``General Price List''
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\15\ 16 CFR 453,1(p). The Compliance Guide, at 15, explains,
``this basic services fee should include services that are common to
virtually all forms of disposition or arrangements (offered), such
as conducting the arrangements and coordinating the arrangements
with the cemetery, crematory, or other third parties. The basic
services fee should not include charges related to other items that
must be separately listed on the General Price List and that the
customer may decline to purchase.''
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4. Revision of the ``General Price List''
The Commission also seeks comments on revisions, additions or
deletions that should be made to the required disclosures for the
``General Price List'' (as described in Sec. 453.2(b)(4)), including
those advanced by FAMSA, as described above.
C. Request for Comment
The Commission is interested in receiving data, surveys and other
empirical evidence to support comments submitted in response to this
Notice. Without limiting the scope of issues it is seeking comment on,
the Commission is particularly interested in receiving comments and
supporting data on the following questions:
(1) Is there a continuing need for the Funeral Rule?
(a) What benefits, if any, has the Rule provided to purchasers of
funeral goods and services?
(b) Has the Rule imposed costs on purchasers?
(2) What changes, if any, should be made to the Rule to increase
the benefits of the Rule to purchasers?
(a) How would these changes affect the costs the Rule imposes on
the funeral providers subject to its requirements?
(3) What significant burdens or costs, if any, including costs of
compliance, has the Rule imposed on funeral providers subject to its
requirements?
(a) Has the Rule provided benefits to such funeral providers?
(4) What changes, if any, should be made to the Rule to reduce the
burdens or costs imposed on funeral providers subject to its
requirements?
(a) How would these changes affect the benefits provided by the
Rule?
(5) Does the Rule overlap or conflict with other federal, state, or
local laws or regulations?
(6) Since the Rule was issued, what effects, if any, have changes
in relevant technology or economic conditions had on the Rule?
(7) What significant burdens or costs, if any, including costs of
compliance, has the Rule imposed on small funeral providers subject to
its requirements?
(a) How do these burdens or costs differ from those imposed on
larger funeral providers subject to the Rule's requirements?
(8) To what extent are the burdens or costs that the Rule imposes
on small funeral providers similar to those that small funeral
providers would incur under standard and prudent business practices?
(9) What changes, if any, should be made to the Rule to reduce the
burdens or costs imposed on small funeral providers?
(a) How would these changes affect the benefits of the Rule?
(b) Would such changes adversely affect the competitive position of
larger funeral providers?
(10) How, if at all, has the Rule affected the relative number of
consumers who contact more than one funeral home before deciding which
one to use?
(11) How, if at all, has the Rule benefitted consumers by:
(a) Alerting consumers to the importance of price information and
ensuring that they obtain such information at the critical point of
choosing a provider?
(b) Providing information about different purchase options?
(c) Protecting consumers from injurious misrepresentations?
(d) Requiring authorization prior to embalming?
(e) Prohibiting providers from conditioning the purchase of a
wanted item on the purchase of an unwanted item?
(12) How have prices changed (in total and for specific funeral
goods and services) since the Rule was amended in 1994? To what extent,
if at all, are these changes attributable to the Rule?
(13) Have the relative prevalence of: (a) Ground burials; (b)
cremations; (c) above-ground entombment; or (d) other dispositions,
increased or decreased since the Rule was amended in 1994? To what
extent, if at all, has the Rule influenced these changes?
(14) How, if at all, since the Rule was amended in 1994, have the
following factors changed?
(a) The number, size, and type of providers of funeral goods and
services in the industry?
(b) The ability of new providers, both traditional and non-
traditional, to enter the industry?
(c) What types of non-traditional entrants have appeared in the
industry, and how are they different from traditional providers?
(d) Mergers and other types of consolidation in the funeral
industry?
(e) Profits of funeral industry members?
(15) How, if at all, has the Rule affected the cremation industry?
Should the Rule be amended to include within its scope unfair and
deceptive practices by crematories, if any?
(16) To what extent are providers of funeral goods and services
complying with the Rule overall, and with each of its component
requirements?
(17) What difficulties, if any, are providers of funeral goods and
services experiencing in complying with the Rule?
(18) How has the National Funeral Directors Association's Funeral
Rule Offenders Program (``FROP'') affected compliance with the Rule, if
at all?
(19) Do consumers who receive itemized price information at the
inception of the arrangements conference tend to spend less on funerals
than those who receive such information later?
(20) Do consumers who make pre-need arrangements spend less on
funerals than those who do not? If so, why? Does receiving price
information at the inception of a pre-need arrangements conference
contribute to decreased spending? Does it encourage or facilitate
comparison shopping?
(21) Should the requirement that itemized price lists be given to
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consumers at the beginning of discussions about funeral arrangements be
modified? If so, how? What would be the relative costs and benefits of
such a modified provision?
(22) Should the Commission expand the definition of ``funeral
provider'' in order to bring non-traditional members of the funeral
industry within the scope of the Funeral Rule's coverage? Are consumers
being harmed by the current limitation on the scope of the Rule's
coverage?
(a) What definition should be used to delineate those entities and
individuals subject to the Funeral Rule?
(b) What are the costs and benefits of broader definitions?
(23) Should non-traditional providers of funeral goods and services
be subject to only certain provisions of the Funeral Rule?
(a) If so, to which provisions should they be subject?
(24) Does the prohibition on more than one non-declinable fee
reduce barriers to competition and increase consumer choice?
(a) Has this prohibition been effective to ensure that consumers
can choose and pay for only the individual goods and services that they
desire?
(b) Has this prohibition been effective to protect consumers' right
to decline unwanted goods and services?
(c) What are the benefits conferred upon consumers or competition
by this prohibition?
(d) What costs or other burdens has this provision imposed upon
providers of funeral goods and services?
(25) What new fees, prices, goods or services have emerged in the
sale of funeral goods and services, since the Rule was amended in 1994?
(26) Have the 1994 amendments been effective in prohibiting casket
handling fees? If so, what benefits or costs have resulted from these
amendments?
(27) How widespread is it for funeral providers to offer
substantial discounts on funeral packages that include a casket from
the funeral home?
(a) To what extent does such discounting tend to restrict
consumers' choices?
(28) Should the requirement for a General Price List be modified?
If so, how?
(a) Are there any new fees, prices, goods or services which should
be added to the General Price List requirements?
1. Should the Rule require that the price of private viewing
without embalming be included on the General Price List?
2. Should the Rule require that the price of donating a body to a
medical school be included on the General Price List?
3. Are the Rule's requirements (Sec. 453.2(b)(4)(ii)(C)) to
disclose on the General Price List the price for direct cremation
effective to prevent deception regarding the amount a consumer will pay
to have a funeral provider dispose of a body by cremation? Should the
Rule also include an express requirement that the disclosed price of
``direct cremation'' include the actual price to have a body cremated?
4. Should the Rule require that the price of renting a casket in
connection with a cremation be included on the General Price List?
(b) Are there any fees, prices or services which should be deleted
from the General Price List?
(c) Are there any other revisions that should be made to the
current provisions in the General Price List?
(d) For any change made in response to this question, what, if any,
would be the costs and benefits to consumers and to funeral providers?
(29) The Rule applies to both pre-need and at-need funeral
arrangements. Should pre-need and at-need consumers be treated
differently? If so, why?
(c) Can a funeral provider readily distinguish between a pre-need
and an at-need customer or will this complicate compliance with the
Rule?
(30) Are there widespread unfair or deceptive practices occurring
with respect to the pre-arrangement of and pre-payment for funerals by
consumers? What are these practices? How could these practices be
remedied? Are these remedies within the Commission's authority and
jurisdiction? Would the benefits to consumers likely to result from
such remedies outweigh the likely costs to funeral providers or other
industry members?
D. Invitation to Comment
In reviewing the Funeral Rule, Commission staff will consider all
comments submitted by July 12, 1999. 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. and 5 p.m. at the Public
Reference Section, Room 130, Federal Trade Commission, 600 Pennsylvania
Avenue, NW, Washington, DC 20580. In addition, comments will be placed
on the Internet at the FTC's web site: <http://www.ftc.gov>.
E. Public Workshop Conference
Commission staff will conduct a Public Workshop Conference to
discuss written comments received in response to this Request for
Comments. The purpose of this conference is to afford Commission staff
and interested parties a further opportunity to openly discuss and
explore issues raised during the Rule Review, and, in particular, to
examine publicly any areas of significant controversy or divergent
opinions that are raised in the written comments. Commission staff will
consider the views and suggestions made during the conference, in
conjunction with the written comments, in formulating its final
recommendation to the Commission concerning the review of the Funeral
Rule.
Commission staff will select a limited number of parties, from
among those who submit written comments and express an interest in
participating in the workshop conference, to represent the significant
interests affected by the Rule Review. These parties will participate
in an open discussion of the issues. It is contemplated that the
selected parties might ask and answer questions based on their
respective comments. In addition, the conference will be open to the
general public. Members of the general public who attend the conference
may have an opportunity to make a brief oral statement presenting their
views on issues raised in the Rule Review. Oral statements of views by
members of the general public will be limited to a few minutes in
length. The time allotted for these statements will be determined on
the basis of the time allotted for discussion of the issues by the
selected parties, as well as by the number of persons who wish to make
statements.
Written submissions of views, or any other written or visual
materials, will not be accepted during the conference. The discussion
will be transcribed and the transcription placed on the public record.
The conference will be held in the fall. A forthcoming announcement
will provide the exact date(s) and location. Parties interested in
participating must notify the Commission staff by July 12, 1999.
List of Subjects in 16 CFR Part 453
Funerals, Trade practices.
By direction of the Commission.
Donald S. Clark,
Secretary.
[FR Doc. 99-11260 Filed 5-4-99; 8:45 am]
BILLING CODE 6750-01-P