[Federal Register Volume 79, Number 102 (Wednesday, May 28, 2014)]
[Rules and Regulations]
[Pages 30445-30459]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-11047]
=======================================================================
-----------------------------------------------------------------------
FEDERAL TRADE COMMISSION
16 CFR Part 301
Regulations Under the Fur Products Labeling Act
AGENCY: Federal Trade Commission.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Federal Trade Commission amends its Regulations under the
Fur Products Labeling Act to update the Fur Products Name Guide,
provide more labeling flexibility, incorporate Truth in Fur Labeling
Act provisions, and conform the guaranty provisions to those governing
textiles. The Commission does not change the required name for
nyctereutes procyonoides fur products. Labels will continue to describe
this animal as ``Asiatic Raccoon.''
DATES: The amendments published in this document will become effective
November 19, 2014.
FOR FURTHER INFORMATION CONTACT: Matthew Wilshire, (202) 326-2976,
Attorney, Division of Enforcement, Bureau of Consumer Protection,
Federal Trade Commission, 600 Pennsylvania Avenue NW., Washington, DC
20580.
SUPPLEMENTARY INFORMATION:
I. Introduction
After considering comments on proposed amendments to the Rules and
Regulations (``Fur Rules'' or ``Rules'') under the Fur Products
Labeling Act (``Fur Act'' or ``Act''), the Federal Trade Commission
(``FTC'' or ``Commission'') adopts those amendments with minor changes.
The final amendments update the Fur Products Name Guide (``Name
Guide''), provide businesses with more flexibility in labeling,
incorporate the provisions of the Truth in Fur Labeling Act (``TFLA''),
and conform the Rules' guaranty provisions to those governing textile
products. The amendments do not change the Guide's name for nyctereutes
procyonoides. The name ``Asiatic Raccoon'' best identifies this animal
for fur consumers. The final rules also do not adopt the proposed
annual renewal requirement for continuing guaranties.
This supplementary information section first provides background on
the Fur Act and Rules, the Name Guide, TFLA, and this rulemaking. Next,
it summarizes the comments. Finally, it analyzes those comments and
discusses the amendments.
II. Background
A. The Fur Act and Rules
The Fur Act prohibits misbranding and false advertising of fur
products, and requires labeling of most fur products.\1\ Pursuant to
this Act, the Commission promulgated the Fur Rules.\2\ These Rules set
forth disclosure requirements that assist consumers in making informed
purchasing decisions. Specifically, the Fur Act and Rules require
manufacturers, dealers, and retailers to label products made entirely
or partly of fur. These labels must disclose: (1) The animal's name as
provided in the Name Guide; (2) the presence of any used, bleached,
dyed, or
[[Page 30446]]
otherwise artificially colored fur; (3) that the garment is composed
of, among other things, paws, tails, bellies, sides, flanks, or waste
fur, if that is the case; (4) the name or Registered Identification
Number of the manufacturer or other party responsible for the garment;
and (5) the fur's country of origin.\3\ In addition, manufacturers must
include an item number or mark on the label for identification
purposes.\4\
---------------------------------------------------------------------------
\1\ 15 U.S.C. 69, et seq.
\2\ 16 CFR Part 301.
\3\ 15 U.S.C. 69b(2); 16 CFR 301.2(a).
\4\ 16 CFR 301.40.
---------------------------------------------------------------------------
The Rules also include detailed labeling specifications. For
example, the Rules specify an exact label size of 1.75 inches by 2.75
inches,\5\ require disclosures in a particular order,\6\ and prohibit
non-FTC information on the front of the label.\7\
---------------------------------------------------------------------------
\5\ 16 CFR 301.27.
\6\ 16 CFR 301.30.
\7\ 16 CFR 301.29(a). By contrast, the Commission's regulations
requiring labels for textile products do not have such detailed
labeling specifications.
---------------------------------------------------------------------------
The Fur Act and Rules also provide for separate and continuing
guaranties.\8\ These documents allow an entity to provide a guaranty
certifying that the products it manufactures or transfers are not
mislabeled or falsely advertised or invoiced. Separate guaranties
specifically designate particular fur products.\9\ Continuing
guaranties, which guarantors file with the Commission, apply to ``any
fur product or fur handled by a guarantor'' and are valid
indefinitely.\10\ The Act provides that an entity that receives a
guaranty in good faith will not generally be liable for violations
related to the guarantied goods.\11\
---------------------------------------------------------------------------
\8\ 15 U.S.C. 69h; 16 CFR 301.46, 301.47, 301.48, and 301.48a.
\9\ 15 U.S.C. 69h(a)(1).
\10\ 15 U.S.C. 69h(a)(2).
\11\ 15 U.S.C. 69h(a).
---------------------------------------------------------------------------
The Fur Act authorizes guaranties only from persons ``residing in
the United States.'' Thus, businesses that buy from manufacturers or
suppliers that have no representative in the United States cannot
obtain a guaranty. To address this issue, the Commission announced an
enforcement policy statement in January 2013.\12\ The policy states
that the Commission will not bring enforcement actions against
retailers that: (1) Cannot legally obtain a guaranty under the Fur Act;
(2) do not embellish or misrepresent claims provided by the
manufacturer; and (3) do not market the products as private label
products, unless the retailers knew or should have known that the
marketing of the products would violate the Act or Rules.
---------------------------------------------------------------------------
\12\ The policy statement is available at www.ftc.gov/system/files/documents/public_statements/299821/guaranty_policy_statement.pdf.
---------------------------------------------------------------------------
B. The Name Guide
The Fur Act requires the Commission to maintain ``a register
setting forth the names of hair, fleece, and fur-bearing animals.''
\13\ The Act further requires that these names ``be the true English
names for the animals in question, or in the absence of a true English
name for an animal, the name by which such animal can be properly
identified in the United States.'' \14\ The Name Guide lists animals by
common name and the species each name describes. For example, the Name
Guide requires covered entities to label mustela vison as ``mink.''
\15\
---------------------------------------------------------------------------
\13\ 15 U.S.C. 69e(a).
\14\ Id.
\15\ 16 CFR 301.0.
---------------------------------------------------------------------------
The Commission first published the Name Guide in 1952. Under the
Fur Act, the Commission can amend the Name Guide only ``with the
assistance and cooperation of the Department of Agriculture and the
Department of Interior'' and ``after holding public hearings.'' \16\
Prior to this rulemaking, the Commission amended the Name Guide twice,
most recently in 1967.\17\
---------------------------------------------------------------------------
\16\ 15 U.S.C. 69e(b).
\17\ 32 FR 6023 (Apr. 15, 1967).
---------------------------------------------------------------------------
C. TFLA
In 2010, Congress enacted TFLA, which revoked one Fur Act exemption
and replaced it with another. Specifically, TFLA deleted a Fur Act
provision that authorized the Commission to exempt fur products of
relatively low value from labeling requirements.\18\ Under that
authority, the Fur Rules exempted products with a fur component valued
at less than $150.\19\ TFLA replaced this de minimis exemption with a
new, more limited exemption for furs sold directly by trappers and
hunters to end-use customers in certain face-to-face transactions
(``hunter/trapper exemption''). The new exemption provides:
---------------------------------------------------------------------------
\18\ Public Law 111-313, section 2.
\19\ 16 CFR 301.39(a).
No provision of [the Fur Act] shall apply to a fur product (1)
the fur of which was obtained from an animal through trapping or
hunting; and (2) when sold in a face to face transaction at a place
such as a residence, craft fair, or other location used on a
temporary or short term basis, by the person who trapped or hunted
the animal, where the revenue from the sale of apparel or fur
products is not the primary source of income of such person.\20\
---------------------------------------------------------------------------
\20\ Public Law 111-313, at section 3.
In addition, TFLA required the Commission to initiate a review of the
Name Guide.\21\
---------------------------------------------------------------------------
\21\ Id. at section 4.
---------------------------------------------------------------------------
D. Procedural Background
In March 2011, as part of its regulatory review program,\22\ the
Commission sought comment on the Fur Rules. As directed by TFLA, the
Commission also sought comment on the Name Guide.\23\ Several
commenters advocated updating the Name Guide. In addition, some
advocated allowing more labeling flexibility.
---------------------------------------------------------------------------
\22\ For further discussion of the program, see www.ftc.gov/opa/2011/07/regreview.shtm.
\23\ 76 FR 13550.
---------------------------------------------------------------------------
The only contentious issue was whether the Name Guide should
continue to require the name ``Asiatic Raccoon'' to describe the
species nyctereutes procyonoides. The animal nyctereutes procyonoides
is a distinct species that is part of the Canidae family (which
includes dogs, foxes, coyotes, and wolves), and which has raccoon-like
markings. In 1961, the Commission applied the statutory standard in the
Fur Act and determined that ``Asiatic Raccoon'' was the name that would
``afford proper identification'' for fur products derived from
nyctereutes procyonoides.\24\
---------------------------------------------------------------------------
\24\ 26 FR 10446 (Nov. 4, 1961).
---------------------------------------------------------------------------
The Humane Society of the United States (``HSUS'') strongly urged
the Commission to change the name to ``Raccoon Dog.'' Others argued
that the Commission should retain ``Asiatic Raccoon.'' Some commenters
also requested that the Commission allow ``Finnraccoon'' as an
alternative name for nyctereutes procyonoides fur from Finland.
After receiving comments, the Commission held a public hearing on
the Guide on December 6, 2011, as required by the Fur Act. The hearing
was in roundtable format with an opportunity for audience
participation.\25\ Four commenters participated in the roundtable:
HSUS; the Fur Information Council of America; the National Retail
Federation; and Finnish Fur Sales. In addition, the hearing included
representatives from the United States Department of Agriculture, the
United States Geological Survey, and the Fish and Wildlife Service
(``FWS'').
---------------------------------------------------------------------------
\25\ Citations to the Hearing Transcript are ``Tr. at [page],
ln. [line number].'' See http://www.ftc.gov/sites/default/files/filings/initiatives/376/111206furtranscript.pdf.
---------------------------------------------------------------------------
On September 17, 2012, the Commission published the first of two
Notices of Proposed Rulemaking
[[Page 30447]]
(``NPRM'').\26\ This NPRM addressed three areas: The Name Guide, the
mechanics of labeling, and incorporating TFLA's provisions. As the NPRM
explained, the Commission proposed amendments to update the Guide, but
it did not find a basis for changing the name for nyctereutes
procyonoides to ``Raccoon Dog'' or for allowing ``Finnraccoon.'' In
addition, the proposed amendments provided more labeling flexibility by
eliminating: (1) The requirement to disclose whether fur is from
``sides'' or ``flanks''; (2) the font and label size requirements; (3)
the requirement that items sold in pairs or groups be ``firmly attached
to each other'' in order to use one label; (4) the requirement that
only FTC information appear on the front of the label and appear in a
certain order; and (5) the requirement that labels include an ``item
mark'' designating a specific fur product. The proposed amendments also
incorporated TFLA's provisions by replacing the de minimis exemption
with the hunter/trapper exemption.
---------------------------------------------------------------------------
\26\ 77 FR 57043 (Sept. 17, 2012).
---------------------------------------------------------------------------
On June 19, 2013, the Commission published a Supplemental Notice of
Proposed Rulemaking (``Supplemental NPRM'') that proposed changes to
the Rules' guaranty provisions.\27\ The proposed changes mirrored
amendments the Commission proposed in May 2013 to its Rules and
Regulations under the Textile Products Identification Act (``Textile
Rules''). Specifically, the Supplemental NPRM clarified that guarantors
can provide guaranties electronically, revised the continuing guaranty
form to no longer require guarantors to swear under penalty of perjury,
and required annual renewal of continuing guaranties. The Commission
announced final amendments to the Textile Rules' guaranty provisions on
March 14, 2014. Those amendments are substantively the same as those
announced in this document.
---------------------------------------------------------------------------
\27\ 78 FR 36693 (Jun. 19, 2013).
---------------------------------------------------------------------------
III. Comments
The Commission received 28 comments (in addition to comments
submitted in a mass mailing campaign) responding to the NPRM and seven
comments responding to the Supplemental NPRM.\28\ The commenters
remained divided on whether the Guide should require ``Asiatic
Raccoon'' or ``Raccoon Dog'' as the name for nyctereutes procyonoides.
In addition, some business groups, along with the government of
Finland, renewed their request to allow ``Finnraccoon'' as an
alternative name. Commenters generally supported the proposed labeling
flexibility, criticized the annual renewal requirement for continuing
guaranties, and suggested additional updates to the Name Guide.
---------------------------------------------------------------------------
\28\ The NPRM comments are available at www.ftc.gov/os/comments/furrulesreview/index.shtm. The Supplemental NPRM comments are
available at www.ftc.gov/os/comments/furlabelingsupplementnprm/index.shtm. The Commission also received 28,000 mass mail comments
from individual HSUS members. Over 25,000 of those were identical.
This document discusses those comments cumulatively. Comments to the
NPRM are referred to as ``[ ] comment at [ ]''; comments to the
Supplemental NPRM are referred to as ``[ ] comment to the
Supplemental NPRM at [ ].''
---------------------------------------------------------------------------
A. ``Asiatic Raccoon'' vs. ``Raccoon Dog.''
Several industry commenters supported the Commission's proposal to
retain the name ``Asiatic Raccoon.'' In contrast, HSUS, the New York
City Bar Association, Congressman Jim Moran, and many individual
commenters urged the Commission to require ``Raccoon Dog'' instead.
1. Support for Retaining ``Asiatic Raccoon''
Seven commenters supported retaining ``Asiatic Raccoon.'' They
contended that consumers understand the term as identifying nyctereutes
procyonoides, that ``Asiatic Raccoon'' most accurately describes the
animal, and that ``Raccoon Dog'' would mislead consumers.
a. Consumer Understanding of ``Asiatic Raccoon''
Commenters reported that consumers have learned through marketplace
exposure that ``Asiatic Raccoon'' describes nyctereutes procyonoides.
For example, BCI International Group, Inc. (``BCI''), a fur retailer
that has sold nyctereutes procyonoides fur products, stated:
For decades, [nyctereutes procyonoides] product[s] ha[ve] been
recognized by the common name, which appears in the Fur Products
Name Guide, ``Asiatic Raccoon.'' The retail and consumer market
continues to recognize that name.\29\
---------------------------------------------------------------------------
\29\ BCI comment at 1.
The Fur Information Council of America (``FICA'') agreed. It
affirmed the NPRM's observation that ``because `Asiatic Raccoon' is the
name that consumers have used to identify the animal since 1961,
consumers likely understand that term.'' \30\ In addition, FICA noted
that ``no evidence of consumer confusion around this term exists.''
\31\
---------------------------------------------------------------------------
\30\ FICA comment at 3 (quoting 77 FR at 57048).
\31\ FICA comment at 3.
---------------------------------------------------------------------------
b. ``Asiatic Raccoon'' Accurately Describes the Animal
Commenters also argued that ``Asiatic Raccoon'' describes the
animal more accurately than ``Raccoon Dog.'' FICA, citing FWS's Name
Guide Hearing comments, explained that `` `Asiatic Raccoon' accurately
describes an animal that originated in Asia and that has raccoon-like
characteristics. Specifically, much like a raccoon, it has rings around
its eyes and it climbs trees.'' \32\ FICA further explained,
---------------------------------------------------------------------------
\32\ FICA comment at 3 (citation omitted).
Although the Asiatic Raccoon is part of the Canidae family, like
many other animals (e.g., fox, wolves, coyotes), it is completely
dissimilar from a domestic dog and should not be confused with a dog
or referenced as a dog. . . . The fox and the wolf are also members
of the Canidae family and they have never been identified as
dogs.\33\
---------------------------------------------------------------------------
\33\ Id. In an earlier comment, FICA submitted a more detailed
analysis of how the animal differs from domestic dog:
[Nyctereutes procyonoides'] behavioral and anatomical
characteristics are so unique that it qualifies the species for its
own genus listing (Nyctereutes). . . . The Asiatic/Finnraccoon split
from the ``true dog'' evolutionary line between seven and ten
million years ago. The Asiatic Raccoon/Finnraccoon exhibits vastly
different behaviors than the dog. For example, it hibernates, climbs
trees, and it participates in social grooming. (Citations omitted.)
FICA comment in response to opening of Fur Rules Review,
available at www.ftc.gov/os/comments/furlabeling/.
Saga Furs Oyj (``Saga''), a Finnish auction house that sells
nyctereutes procyonoides pelts, agreed that the animal ``differs
significantly'' from domestic dog.\34\ For support, it pointed to
statements from scientific experts at the Name Guide hearing confirming
that the animal is native to Asia and should not be confused with
domestic dog.\35\
---------------------------------------------------------------------------
\34\ Saga comment at 1.
\35\ Id.
---------------------------------------------------------------------------
c. Risk of Consumer Confusion
Finally, fur industry commenters asserted that requiring ``Raccoon
Dog'' would mislead consumers about the animal's relationship to
domestic dogs. FICA, for example, reiterated its position in earlier
comments that using ``Raccoon Dog'' to describe nyctereutes
procyonoides would confuse consumers. Specifically, FICA reported that
``many companies'' have stopped selling the fur in response to a media
campaign characterizing the animal as a ``raccoon dog.'' \36\
Consistent with that view, BCI stated:
---------------------------------------------------------------------------
\36\ FICA comment at 3.
The Asiatic Raccoon product . . . has suffered a setback in the
marketplace in recent years, as a result of the attempt to link the
product in the media with the term ``raccoon dog.'' That term is
deceptive and
[[Page 30448]]
has created immense consumer confusion. . . .\37\
---------------------------------------------------------------------------
\37\ BCI comment at 1.
Thus, both FICA and BCI predicted that if the Commission required
``Raccoon Dog,'' then ``there would no longer be a market for Asiatic
Raccoon fur, and garments with this type of fur would be eliminated.''
\38\
---------------------------------------------------------------------------
\38\ FICA comment at 3; BCI comment at 2. Saga raised a related
concern that requiring labels with ``raccoon dog'' could confuse
customs officials and delay imported nyctereutes procyonoides
products' entry into the United States. Saga explained that
confusing that species' fur with domestic dog fur could have serious
legal consequences because the latter is banned in the United
States. Saga comment at 2.
---------------------------------------------------------------------------
2. Support for ``Raccoon Dog''
HSUS, Congressman Jim Moran, and the Committee on Animal Law of the
New York City Bar Association (``NYC Bar'') urged the Commission to
reconsider its proposal. Thousands of individual commenters also
submitted identical (or very similar) comments supporting HSUS's
position. These commenters argued that ``Raccoon Dog'' better describes
the animal's taxonomic classification, it is the only true English name
for the animal, and ``Asiatic Raccoon'' is an inappropriate trade name
that confuses consumers. NYC Bar made an additional argument that,
apart from the merits, retaining ``Asiatic Raccoon'' would be contrary
to the TFLA's intent.
a. ``Raccoon Dog'' Better Describes the Animal's Taxonomic
Classification
Commenters argued that Nyctereutes procyonoides' taxonomic
classification in the Canidae family supported requiring ``Raccoon
Dog.'' HSUS emphasized ``that the correct taxonomic identification of
the species Nyctereutes procyonoides is within the Canidae (dog) family
and not the Procyonidae (raccoon) family.'' \39\ HSUS also responded to
the NPRM's statement that the taxonomic classification should not
control because nyctereutes procyonoides has characteristics similar to
raccoons:
---------------------------------------------------------------------------
\39\ HSUS comment at 2.
Such distinctions can be found between many species within the
same taxonomic families--the distinctions noted do not change the
zoological characteristics that make raccoon dogs a member of the
Canidae family. Indeed, a kangaroo rat looks like a kangaroo, and
while it has many of the same characteristics of so-called ``true-
rats'' in the genus Rattus (e.g., cheek pouches for food storage)
kangaroo rats also have several distinct characteristics from
``true-rats'' (e.g., their bi-pedal hopping gait that makes them
appear kangaroo-like). But it would not be appropriate to call the
kangaroo rat a ``small desert kangaroo[.''] \40\
---------------------------------------------------------------------------
\40\ Id. at 3 (emphasis in original).
Congressman Moran likewise noted that nyctereutes procyonoides is
``from the Canidae family [and] is unrelated to the raccoon . . . ,
making the term `Asiatic Raccoon' highly misleading.'' \41\ Similarly,
the HSUS members comment states, ``raccoon dogs are a member of the
Canidae (dog) family and are NOT, as the name `Asiatic raccoon'
implies, members of the Procyonidae (raccoon) family.'' \42\
---------------------------------------------------------------------------
\41\ Congressman Moran comment at 1.
\42\ HSUS Mass Mail comment (00033 and 00034)
(emphasis in original). See also Brett Bartleson comment (arguing
that the taxonomic classification should control). In addition, two
individual commenters expressed support for ``Raccoon Dog'' without
explanation. See ``Miller'' and Kathy Wilkins comments.
---------------------------------------------------------------------------
NYC Bar also discussed the significance of the classification to
determining the proper name. It argued that ``[b]ecause Nyctereutes
procyonides [sic] are related to domestic dogs, and dogs are widely
considered pets in the United States and raccoons are not, it follows
that some consumers of fur products would have objections to wearing
such fur even if the animals cannot wag their tails, are able to climb
trees, and hibernate.'' \43\
---------------------------------------------------------------------------
\43\ NYC Bar comment at 12.
---------------------------------------------------------------------------
b. ``Raccoon Dog'' Is the True English Name
In addition, commenters argued that ``Raccoon Dog'' is the true
English name because it is most often used to describe the animal. As
evidence, they documented uses of ``Raccoon Dog'' in various contexts.
For example, HSUS and NYC Bar reported that American-English
dictionaries list ``Raccoon Dog'' as the English word for nyctereutes
procyonoides.\44\ In addition, HSUS pointed out that federal agencies
have referred to nyctereutes procyonoides as ``Raccoon Dog'' on at
least four occasions.\45\ NYC Bar similarly noted the name's use in a
federal regulation and in fifteen state and local laws.\46\ HSUS and
NYC Bar further noted that several scientific organizations use
``raccoon dog'' and that the two American zoos that display the animal
call it ``Raccoon Dog.'' \47\
---------------------------------------------------------------------------
\44\ NYC Bar comment at 4; HSUS comment at 6.
\45\ HSUS comment at 4. HSUS also reiterated its prior argument
that the Commission should defer to the Integrated Taxonomic
Information System (``ITIS''), a system administered by several
federal agencies that lists nyctereutes procyonoides' common name as
``raccoon dog.'' HSUS comment at 4-5.
\46\ NYC Bar comment at 6.
\47\ HSUS comment at 5-6; NYC Bar comment at 5. HSUS also noted
that several international institutions and scientific organizations
use ``raccoon dog.'' HSUS comment at 4-6.
---------------------------------------------------------------------------
HSUS and NYC Bar also submitted evidence of ``Raccoon Dog''
appearing in various popular media. For example, NYC Bar reported:
The New York Times uses the term ``raccoon dog'' in all articles
that concern Nyctereutes procyonides [sic] except one which quotes a
Humane Society representative stating that ``Asiatic raccoon'' is
the name the fur is sold under. The Albany Times Union, New York
Post, and New York Daily News use the term ``raccoon dog''
exclusively in articles concerning Nyctereutes procyonides
[sic].\48\
---------------------------------------------------------------------------
\48\ NYC Bar comment at 6 (citations omitted).
Similarly, HSUS pointed to PBS and BBC programming referring to the
animal as a ``raccoon dog,'' \49\ and NYC Bar noted the term's use in
---------------------------------------------------------------------------
books and in children's educational materials.\50\
\49\ HSUS comment at 6.
\50\ NYC Bar comment at 7-8.
---------------------------------------------------------------------------
Although no commenters submitted consumer perception evidence
showing widespread recognition of ``Raccoon Dog,'' HSUS explained why
the uses of the name discussed above is relevant:
[N]early everywhere a consumer would find information about the
species Nyctereutes procyonoides, he or she would be presented with
information under the true English name raccoon dog. This is
important because information relevant to consumers' purchase of fur
products--such as the manner in which this species is raised and
killed for purpose of fur production--would most likely be
associated with the true English name of the species.\51\
---------------------------------------------------------------------------
\51\ HSUS comment at 6. See also NYC Bar comment at 12 (``As far
as retail consumers are concerned, it is important that the name of
the fur match the only name that they are exposed to in
dictionaries, zoos, and newspapers, and the most commonly used name
in other materials so they can make an informed choice about whether
to purchase a product containing fur.'').
In response to fur-industry comments that ``Raccoon Dog'' could
mislead consumers, HSUS and NYC Bar argued that the Commission should
ignore the impact of ``Raccoon Dog'' on fur sales. HSUS observed that
``harm to industry sales has nothing to do with accuracy of product
representation or consumer protection.'' \52\
---------------------------------------------------------------------------
\52\ HSUS comment at 9.
---------------------------------------------------------------------------
c. ``Asiatic Raccoon'' Is Misleading
Commenters opposed to ``Asiatic Raccoon'' described it as
misleading and improper. Congressman Moran, for example, characterized
the term as ``a misleading and inaccurate industry-coined name.'' \53\
NYC Bar also criticized ``Asiatic Raccoon,'' explaining:
---------------------------------------------------------------------------
\53\ Moran comment at 1.
The word ``Asiatic'' means ``Asian.'' Nyctereutes procyonides
[sic] is not a raccoon (Procyon lotor and Procyon cancrivorus).
[[Page 30449]]
Using the adjective ``Asiatic'' to modify the word ``raccoon''
creates a fictitious and non-existent type of raccoon.\54\
---------------------------------------------------------------------------
\54\ NYC Bar comment at 10.
Individual commenter Brett Bartleson likewise described ``Asiatic
Raccoon'' as ``misleading'' and asserted that industry uses the term to
``disguise the live skinning and other mistreatment of raccoon dogs.''
\55\
---------------------------------------------------------------------------
\55\ Brett Bartleson comment; see also Megan Stalker comment
(``Consumers who wish to avoid buying raccoon dog fur, or companies
that wish to avoid selling it, will be duped by this inaccurate and
misleading industry-coined name'').
---------------------------------------------------------------------------
HSUS challenged the NPRM's statement that the name is not deceptive
because consumers have become familiar with it in the marketplace.
Specifically, it asserted that the evidence cited by the Commission was
insufficient to demonstrate consumer familiarity and that the record
showed ``sporadic at best'' use of ``Asiatic Raccoon.'' \56\ It also
noted frequent mislabeling and false advertising of nyctereutes
procyonoides fur, including some instances of marketers describing it
as ``raccoon dog.'' \57\ Finally, HSUS reiterated its comments at the
Name Guide Hearing that ``Asiatic Raccoon'' is ``used frequently, but
no more frequently than we find it misused.'' \58\ Thus, HSUS
concluded, the Commission's determination that consumers are familiar
with ``Asiatic Raccoon'' is an ``unsupported assumption.'' \59\
---------------------------------------------------------------------------
\56\ Id. at 7.
\57\ Id. at 8.
\58\ Id. at 9 (emphasis in original).
\59\ HSUS comment at 9 (emphasis in original).
---------------------------------------------------------------------------
Finally, HSUS and NYC Bar opposed ``Asiatic Raccoon'' as
inconsistent with the Fur Rules' prohibitions on trade names and names
that deceive consumers about the animal's zoological origin. NYC Bar
described ``Asiatic Raccoon'' as a fictitious name coined by the fur
industry, and argued that it therefore violated the Fur Rules'
prohibition on trade names.\60\ In addition, HSUS stated that the
Commission' proposal ``ignores its obligation to require use of only
those names that do not deceive as to an animal's `zoological origin.'
'' \61\
---------------------------------------------------------------------------
\60\ NYC Bar comment at 9. See also HSUS comment at 3-4
(discussing history of ``Asiatic Raccoon'' and characterizing it as
an industry trade name).
\61\ HSUS comment at 2.
---------------------------------------------------------------------------
d. ``Asiatic Raccoon'' Is Contrary to TFLA's Intent
NYC Bar argued that, aside from the merits of ``Asiatic Raccoon''
compared to ``Raccoon Dog,'' the Commission should adopt the latter to
effectuate Congressional intent. NYC Bar pointed to a Congressional
Research Service summary of the Senate version of the legislation,
which was not enacted. The summary described the law as directing the
Commission ``to replace the term `Raccoon, Asiatic' with `Dog,
Raccoon.' '' \62\
---------------------------------------------------------------------------
\62\ NYC Bar comment at 12.
---------------------------------------------------------------------------
B. ``Finnraccoon''
Commenters disagreed over whether to include ``Finnraccoon'' in the
Name Guide. Six commenters supported it, while two opposed. Commenters
favoring ``Finnraccoon'' asserted that the name would help consumers
identify products raised under stricter European Union standards. For
example, the Finnish Fur Breeders' Association stated:
[``Finnraccoon''] has achieved global recognition in the
international fur marketplace as a result of the extensive marketing
efforts. . . . Those marketing efforts highlight the strict national
and EU-level animal welfare standards that regulate the farming of
the Finnraccoon. . . . The FTC, by not permitting use of the name
Finnraccoon . . . , has caused consumers mistakenly to believe that
the product originates in Asia, where animal welfare standards are
not as high as those in Europe, including Finland.\63\
---------------------------------------------------------------------------
\63\ Finnish Fur Breeders' Association comment at 1.
The Association further noted that allowing ``Finnraccoon'' would
harmonize United States and European Union regulatory standards.\64\
---------------------------------------------------------------------------
\64\ Id. at 1.
---------------------------------------------------------------------------
Finland's Ministries of Foreign Affairs and of Agriculture and
Forestry submitted identical comments that provided additional detail
on European fur standards:
The EU is party to the European Convention for the protection of
animals kept for farming purposes. The Convention aims to protect
animals against any unnecessary suffering or injury. Countries that
have signed the Convention must comply with specified rules
concerning farming premises, feed, animal health and the
organization of inspections of installations.\65\
---------------------------------------------------------------------------
\65\ Finland Ministries of Foreign Affairs and of Agriculture
and Forestry comments at 1.
The Ministries asserted that without ``Finnraccoon'' retailers would
not be able to distinguish nyctereutes procyonoides fur raised in Asia
from that raised in Europe.\66\
---------------------------------------------------------------------------
\66\ Id. at 1.
---------------------------------------------------------------------------
Saga agreed that retailers needed ``Finnraccoon'' to signal
superior European fur-raising standards. In response to the NPRM's
observation that the record lacked evidence that consumers understand
``Finnraccoon,'' Saga asserted that consumers understand the term
because ``most of the high-end fur garments sold in the U.S. and
containing the nyctereutes procyonides [sic] species are made of furs
produced in Finland and are exclusively marketed under the nomenclature
Finnraccoon.'' \67\ Saga further asserted that labels disclosing
``Asiatic Raccoon'' from Finland are confusing to consumers because
they cannot evaluate the conditions under which the product was
raised.\68\ In addition, fur retailer BCI reported that ``Finnraccoon''
had ``achieved name recognition comparable to'' ``Asiatic Raccoon.''
\69\
---------------------------------------------------------------------------
\67\ Saga comment at 2.
\68\ Id. at 3.
\69\ BCI comment at 2.
---------------------------------------------------------------------------
HSUS and NYC Bar, by contrast, agreed with the Commission's
proposal not to allow ``Finnraccoon.'' HSUS, consistent with its
position that nyctereutes procyonoides has only one true English name,
argued that the Commission should not allow any names other than
``Raccoon Dog.'' \70\ NYC Bar further contended that ``Finnraccoon'' is
an improper trade name that consumers do not understand.\71\ NYC Bar
also observed that the Fur Rules require a specific country of origin
disclosure that would cure any confusion about the animal's origin.\72\
---------------------------------------------------------------------------
\70\ HSUS comment at 2 (arguing that the Commission should adopt
``Raccoon Dog'' and allow no other names).
\71\ NYC Bar comment at 9-10.
\72\ Id. at 11.
---------------------------------------------------------------------------
C. Labeling Flexibility
The NPRM proposed removing or amending several provisions to
provide more labeling flexibility, while continuing to ensure effective
disclosures. Specifically, the NPRM proposed: (1) No longer requiring
disclosures that fur comes from ``sides'' or ``flanks''; (2)
eliminating specific label and font size requirements; (3) allowing
items sold in pairs to have only one label, even if not physically
attached; (4) no longer requiring a fur ``item number'' on labels and
invoices; and (5) deleting unnecessary provisions. Commenters
unanimously supported these proposals. In addition, three commenters
urged the Commission to further relax the disclosure requirements.
1. Support for the Commission's Proposals
Industry commenters praised the proposed amendments for lowering
compliance costs. The American Apparel and Footwear Association
(``AAFA''), for example, lauded ``the
[[Page 30450]]
efforts by the FTC to alleviate'' the ``significant costs on
manufacturers and importers--which are passed down to consumers. . .
.'' \73\ National Retail Federation (``NRF'') asserted that ``these
sensible changes will facilitate compliance by retailers and consumer
brand companies while providing effective disclosure information to
consumers. . . .'' \74\
---------------------------------------------------------------------------
\73\ AAFA comment at 2.
\74\ NRF comment at 1-2.
---------------------------------------------------------------------------
Commenters supported the increased labeling flexibility provided by
a number of the proposals. The removal of prescribed label and font
sizes received the most support. FICA, for example, explained that
``the [label] size prescribed by the current Rules is impractical for
smaller items, . . . [and] the current requirements for the text of the
label are overly burdensome and have forced companies to use multiple
labels to comply with the FTC, state, and international fur
regulations.'' \75\ FICA noted the amendments would allow ``more
practical labels on small items.'' \76\ In addition, NRF ``strongly
support[ed] . . . allowing a single label for products `marketed or
handled in pairs or ensembles,' such as shoes and gloves.'' \77\ FDRA
and the United States Association of Importers of Textile and Apparel
(``ITA'') also appreciated that the NPRM confirmed that labels need
only be attached with sufficient durability to ensure delivery to the
consumer.\78\ Finally, AAFA supported the proposals to eliminate
certain provisions, such as the requirement that retailers assign an
item number or mark to fur products. AAFA agreed that those provisions
are unnecessary and do not benefit consumers.\79\
---------------------------------------------------------------------------
\75\ FICA comment at 3.
\76\ Id. at 3. See also United States Association of Importers
of Textile and Apparel comment at 1; NRF comment at 1; AAFA comment
at 2; Footwear Distributors and Retailers of America comment at 2.
\77\ NRF comment at 1. See also AAFA comment at 2.
\78\ FDRA comment at 2; ITA comment at 1. FDRA also asked a
question about obtaining Registered Identification Numbers.
Commission staff can address those inquiries on a case-by-case
basis.
\79\ AAFA comment at 3.
---------------------------------------------------------------------------
2. Comments Favoring Elimination of Other Requirements
Three commenters supported additional amendments that would further
reduce disclosure requirements. ITA and FDRA argued that the Commission
should eliminate what they described as redundant country of origin
disclosures. Specifically, they noted that both the Fur and Textile
Rules require separate country of origin disclosures for textile
products that contain fur. Therefore, many garments that use fur trim
disclose the same country of origin twice. FDRA and ITA, therefore,
proposed eliminating the requirement for a fur origin disclosure when
the fur originates from the same as the country as the textile
product.\80\
---------------------------------------------------------------------------
\80\ FDRA comment at 1; ITA comment at 1.
---------------------------------------------------------------------------
In addition, individual commenter ``Gremmo'' suggested amending
Sec. 301.19(g) to no longer require branding and labeling of furs that
are not pointed, bleached, dyed, tip-dyed or artificially colored as
``natural.'' Gremmo argued that the ``natural'' disclosure does not
convey meaningful information to consumers.\81\
---------------------------------------------------------------------------
\81\ Gremmo comment.
---------------------------------------------------------------------------
D. Guaranties
The Supplemental NPRM proposed changes to the Fur Rules' guaranty
provisions to conform to those proposed in the Textile NPRM. The
Commission did not propose a requirement, suggested by HSUS, that
continuing guaranties designate the type of fur transferred from a
guarantor.
In the comments, HSUS reiterated its support for this proposal.
Fur-industry representatives supported most of the Supplemental NPRM
proposals, but criticized the proposed annual renewal requirement.
1. HSUS Proposal
In the NPRM, the Commission explained that it could not require
continuing guaranties to specify a type of fur transferred because
doing so would conflict with the Fur Act's declaration that continuing
guaranties apply ``to any fur product or fur handled by a guarantor.''
\82\ In response, HSUS first asserted a policy argument. Specifically,
it argued that the current continuing guaranty provisions are
insufficient to ensure accountability. According to HSUS, current law
does not allow the Commission ``to discern from the guaranty form
whether or not the error was due to the retailers' actions or the
vendor's actions.'' \83\
---------------------------------------------------------------------------
\82\ 15 U.S.C. 69h(a)(2) (emphasis added).
\83\ HSUS comment at 11.
---------------------------------------------------------------------------
HSUS then addressed the Commission's legal argument. Although it
acknowledged that the Fur Act would not permit limiting continuing
guaranties to specific products, it contended that the Commission could
prescribe a guaranty form requiring the type of fur in all products
transferred.\84\ HSUS argued that the Fur Act necessarily provides such
discretion because it ``anticipates that not every guaranty will be
sufficient.'' \85\
---------------------------------------------------------------------------
\84\ Id. at 12.
\85\ Id. at 12.
---------------------------------------------------------------------------
2. Supplemental NPRM Proposals
The Supplemental NPRM proposed two additional changes. First, it
proposed altering the guaranty provisions to clarify that guaranties
can be electronic documents. Second, it proposed requiring that
guarantors annually renew continuing guaranties. In addition, the Fur
Rules would incorporate the Textile amendments' alterations to the
unified form for Textile, Fur, and Wool continuing guaranties so that
guarantors would no longer sign under penalty of perjury.
Although commenters unanimously supported many of the proposed
changes,\86\ three commenters criticized requiring annual renewal of
continuing guaranties. AAFA stated that annual renewal would impose
unreasonable burdens:
---------------------------------------------------------------------------
\86\ Specifically, FICA and NRF supported the amendments
clarifying that entities can transmit guaranties electronically and
eliminating the penalty of perjury language. Both commenters also
praised the Commission's recent enforcement policy on goods imported
directly to retailers. FICA comment to Supplemental NPRM at 2; NRF
comment to Supplemental NPRM at 2-3. Although supportive of the
policy statement's substance, NRF renewed its call for the
Commission to codify that policy through rulemaking. As the
Commission explained in the Supplemental NPRM, it cannot do so under
the Fur Act, which provides for guaranties from only domestic
entities.
We believe [compliance] costs will actually be extensive
considering the time and effort needed to complete the task. One
AAFA member company estimates spending 5-8 hours on each continuing
guaranty it files. Most companies file dozens of continuing
guaranties, with many filing hundreds.\87\
---------------------------------------------------------------------------
\87\ AAFA comment to Supplemental NPRM at 2.
AAFA further explained that the burden for companies is not only filing
the guaranty, but also submitting copies to other buyers and
retailers.\88\
---------------------------------------------------------------------------
\88\ Id. at 1.
FICA agreed. It explained that ``annual renewal . . . would
increase compliance burdens throughout the supply chain with regard to
administering the requirement and filing the documentation with the
FTC.'' \89\ FICA further explained that requiring annual renewal would
require retailers and vendors ``to change their vendor agreements or
terms and conditions language to provide for annual renewal, thereby
increasing the administrative burdens and cost.'' \90\ FICA also noted
that processing forms renewed annually would increase the FTC's
administrative burdens.\91\
---------------------------------------------------------------------------
\89\ FICA comment to Supplemental NPRM at 2.
\90\ Id. at 2.
\91\ Id. at 2.
---------------------------------------------------------------------------
NRF also opposed the proposal as overly burdensome. It reported
that ``[o]ne national retailer has estimated
[[Page 30451]]
that . . . the annual renewal requirement would cost around $60,000 per
year. . . .'' \92\
---------------------------------------------------------------------------
\92\ NRF comment to Supplemental NPRM at 2 (citation omitted).
---------------------------------------------------------------------------
E. Further Name Guide Updates and Miscellaneous Issues
Commenters also urged additional Name Guide updates and addressed
miscellaneous issues. Dr. Alfred Gardner of the United States
Geological Survey suggested six additional updates to the Guide.\93\
HSUS objected to the removal of two common names, and noted that the
Guide misspells the name ``suslik.'' \94\
---------------------------------------------------------------------------
\93\ Gardner comment.
\94\ HSUS comment at 10-11. Relatedly, AAFA urged the Commission
to update the Guide more frequently to ensure entries remain
updated, ideally on an annual basis. AAFA comment at 2.
---------------------------------------------------------------------------
In addition, several commenters submitted miscellaneous comments.
An anonymous commenter supported the Commission's decision not to
propose a labeling exemption for small items or to expand the Rules'
scope to faux fur products.\95\ However, the National Humane Education
Society asked the Commission to require language ``that allows
consumers to know whether a fur is real or fake.'' \96\ Finally, many
individuals submitted comments generally supporting the Fur Rules'
labeling requirements because they benefit consumers.\97\
---------------------------------------------------------------------------
\95\ ``Jane Doe'' comment at 2-4.
\96\ National Humane Education Society comment to Supplemental
NPRM.
\97\ See Brett Corless comment; Mass Mail Campaign comments to
Supplemental NPRM; Karen Rome comment to Supplemental NPRM. In
addition, several individuals submitted non-germane comments, most
expressing an opinion on the use of fur. See comments of Yeasir
Arafat, Ann Fennell, R. Holt, Sandy Howard, and Fletcher Smith;
comment of Morgan Mckenzie to Supplemental NPRM.
---------------------------------------------------------------------------
IV. Analysis
The Commission announces final amendments that mostly adopt those
proposed in the NPRM and the Supplemental NPRM. These amendments update
the Name Guide while retaining ``Asiatic Raccoon'' as nyctereutes
procyonoides' only name in the Guide, provide more labeling
flexibility, conform the Rules to TFLA, eliminate unnecessary
provisions, and revise the guaranty provisions to conform to those
governing textile products. The Commission does not adopt its proposal
to require annual renewal of continuing guaranties.
A. Name Guide
This section first discusses why the Commission is retaining the
name ``Asiatic Raccoon.'' It then responds to the arguments that
``Asiatic Raccoon'' is inappropriate. Next, it explains why it will not
add ``Finnraccoon'' to the Name Guide. Finally, it discusses proposed
amendments to update the Name Guide.
1. The Commission Retains ``Asiatic Raccoon''
The Fur Act directs the Commission to use, in its Name Guide, ``the
true English names for the animals in question, or in the absence of a
true English name for an animal, the name by which such animal can be
properly identified in the United States.'' 15 U.S.C. 69e. The
threshold question is whether a given animal has at least one ``true
English name[ ].'' Only if the answer is negative does the Commission
choose an alternative ``name by which such animal can be properly
identified in the United States.''
Significantly, a given animal can have more than one ``true English
name.'' For example, the species puma concolor goes by several
alternative ``true English names,'' including Mountain Lion, Cougar,
Puma, and Panther. Those terms are all commonly used synonyms, and no
one of them occupies any special status as the most ``true'' English
name for the animal in question. Certainly nothing in the statutory
text reveals any congressional determination that, for each animal,
there can be at most one ``true English name[ ]'' in common usage.\98\
As the puma concolor example illustrates, that view would conflict with
everyday speech, which is an additional reason to conclude that
Congress did not intend this interpretation.
---------------------------------------------------------------------------
\98\ As noted, Congress directed the Commission, in the plural,
to use ``the true English names for the animals in question.'' To be
sure, Congress separately provided that ``in the absence of a true
English name for an animal,'' the Commission should use ``the name
by which such animal can be properly identified in the United
States.'' (Emphasis added.) But the use of the singular in the term
``a true English name'' does not imply that, for any given animal,
there can be only one such name in common usage. Instead, it merely
addresses the possibility that there may not be any ``true English
name'' for a given animal.
---------------------------------------------------------------------------
That said, Congress did intend for the Commission to ensure
uniformity in fur labels and avoid consumer confusion by choosing, in
general, one name that manufacturers must use to denote a given
animal.\99\ The Commission construes the Fur Act to provide broad
discretion to choose among the ``true English names'' for an animal
where there is more than one such name. Nothing in the Act limits how
the Commission may exercise that discretion so long as it acts
reasonably and ensures consistency with the broad purposes of the Fur
Act. For example, nothing in the Act requires the Commission to base
that choice solely on relative frequency of use, such as how often a
given name has been used in books or Web sites. The Commission may
instead consider a range of relevant factors, such as the need to avoid
consumer confusion by ensuring consistency of usage over time within
the marketplace for fur products.
---------------------------------------------------------------------------
\99\ See, e.g., 15 U.S.C. 69b(2)(A) (providing that a fur
product is misbranded if the label does not show ``the name or names
(as set forth in the Fur Products Name Guide) of the animal or
animals that produced the fur''); 15 U.S.C. 69e(c) (``If the name of
the animal (as set forth in the Fur Products Name Guide) connotes a
geographical origin or significance other than the true country or
place of origin of such animal, the Commission may require whenever
such name is used . . . such qualifying statements as it may deem
necessary to prevent confusion or deception.'').
---------------------------------------------------------------------------
In this case, the Commission finds that the animal in question--
nyctereutes procyonoides--has two ``true English names'': Asiatic
Raccoon and Raccoon Dog. Although commenters disagree about which of
these terms is more appropriate, there can be no serious dispute that
``Asiatic Raccoon'' has been in common use for many decades. See
Section IV.A.1, infra. Indeed, for more than half a century, that term
has appeared on countless product labels to denote the animal in
question, and consumers of fur products now closely associate that name
with this animal. For the reasons discussed below, the Commission
exercises its discretion to maintain the use of that ``true English
name,'' rather than the alternative such name (Raccoon Dog) on the
product labels for the furs of this animal. Although opponents of the
name ``Asiatic Raccoon'' argue that the name is confusing because the
animal in question is ``not a raccoon,'' NY City Bar Comments at 1, it
is equally true that the animal is not a ``dog'' as consumers
understand that term. Indeed, the animal is no more closely related to
domestic dogs than are coyotes and jackals.
The Commission's conclusion would remain the same even if the Fur
Act were construed to reflect a congressional assumption that there can
be at most one ``true English name[ ]'' per animal. Under that
alternative statutory construction, the Commission would conclude that,
because there are two equally permissible names in common usage to
describe the same animal, neither could qualify as the one ``true''
English name, any more than Cougar or Panther or Mountain Lion could
qualify as the one ``true'' English name for puma concolor. In that
event, the Commission would proceed to the second statutory step,
choosing a ``name by which such animal can be properly identified in
the United States.'' The
[[Page 30452]]
Commission would choose ``Asiatic Raccoon'' under that approach as
well.
As discussed in the NPRM,\100\ ``Asiatic Raccoon'' describes the
animal in a way that consumers in the United States can recognize it.
At the Name Guide Hearing, a FWS representative explained that the word
``Asiatic'' ``gives you an idea where the animal originated
naturally.'' \101\ Critically, the representative did not agree with
HSUS that ``Asiatic'' is misleading. In fact, she described the term as
``neutral.'' \102\ The term ``Raccoon'' is also appropriate. As
detailed in the NPRM, nyctereutes procyonoides has a raccoon-like fur
pattern around its eyes and ``superficially resembles the raccoons * *
* that are native to the Americas.'' \103\ In addition, the animal
exhibits behavioral characteristics, like tree climbing, that are
raccoon-like. By contrast, the animal does not appear to exhibit
characteristics that mimic domestic dogs, such as barking and tail-
wagging.
---------------------------------------------------------------------------
\100\ 77 FR at 57048.
\101\ Tr. at 38, ln. 22-23. The Fur Act states that in issuing
and revising the Name Guide, the FTC must do so with the
``assistance and cooperation of the Department of Agriculture and
the Department of the Interior.'' 15 U.S.C. s 69e. The Fish and
Wildlife Service is part of the Department of the Interior.
\102\ Tr. at 39, ln. 6, 11-12. As described below, scientific
representatives at the Name Guide Hearing also rejected the notion
that taxonomic classifications determined the animal's common name.
Tr. at 13, ln. 6-9; Tr. at 13-14, ln. 21-6.
\103\ HSUS ANPR Comment at 14 (attached letter of Dr. Lauren
Nolfo-Clements).
---------------------------------------------------------------------------
Moreover, the record indicates that consumers of this fur have
become familiar with the name ``Asiatic Raccoon'' through labels and
marketing. Several commenters, including fur retailer BCI, report that
labels and advertising have used ``Asiatic Raccoon'' for many years.
Consistent with that evidence, FICA and Finnish Fur explained at the
Name Guide hearing that products with nyctereutes procyonoides fur
usually had labels with the name ``Asiatic Raccoon,'' even prior to the
elimination of the de minimis exemption, thereby exposing consumers to
the term.\104\ NRF also noted that retailers have labeled fur products
made of nyctereutes procyonoides with Asiatic Raccoon to the extent the
products did not meet the de minimis exemption.\105\
---------------------------------------------------------------------------
\104\ Tr. at 79, ln. 14-16 (``I would say the majority of the
use of the trim is over the $150 [threshold] and always has been
over the exemption.'').
\105\ Tr. at 81-82.
---------------------------------------------------------------------------
Shopping searches conducted on Google Shopping further confirm this
record evidence. For example, according to searches conducted on March
13, 2014, a shopper searching with the terms ``Asiatic Raccoon'' and
``Raccoon Dog'' would find many more fur products using the term
``Asiatic Raccoon.'' In fact, the vast majority of hits on a Google
Shopping search for ``Raccoon Dog'' yielded almost no fur products in
the first page of results.
Finally, the proposed alternative, ``Raccoon Dog,'' has significant
problems. The record indicates that the name could significantly
mislead consumers about the animal's relationship to domestic dog.
Industry commenters unanimously agreed that the name ``Raccoon Dog''
would mislead consumers into thinking that animal is domestic dog.\106\
HSUS and NYC Bar correctly argued that harm to fur sales is not a
consideration in determining the name the Commission should list in the
Guide. However, evidence that the name ``Raccoon Dog'' has or would
mislead consumers is relevant to the Commission's determination of
whether such name would confuse consumers about the animal.
---------------------------------------------------------------------------
\106\ See, e.g., BCI comment at 1 (``Asiatic Raccoon . . . has
suffered a setback in the marketplace in recent years, as a result
of the attempt to link the product in the media with the term
`raccoon dog.' '').
---------------------------------------------------------------------------
In fact, comments submitted by individual HSUS members demonstrate
that potential confusion. Specifically, 188 HSUS member comments
indicate a mistaken assumption that nyctereutes procyonoides is the
same species as domestic dog.\107\ For example, one commenter wrote,
``Make no mistake. This is a DOG. A companion animal.'' \108\
Similarly, another asserted that the animals ``are dogs, just like Fido
and Spot.'' \109\ Another expressed concern that companies selling
nyctereutes procyonoides were violating the prohibition against selling
domestic dog and cat fur.\110\
---------------------------------------------------------------------------
\107\ As noted above, HSUS members submitted thousands of form
comments. 25,184 of those comments were identical. An additional
3,479 commenters submitted altered versions of the form comment.
\108\ HSUS Mass Mail comment (00034), file 0034-85303,
Tiller Comment.
\109\ HSUS Mass Mail comment (00034), file 0034-85304,
Arnott Comment.
\110\ HSUS Mass Mail comment (00034), file 0034-85303,
Brunner Comment.
---------------------------------------------------------------------------
Indeed, many individual commenters appeared to think that ``Raccoon
Dog'' was a breed of domestic dog rather than a different species. For
example, one commenter asked, ``would you treat a Collie like this? How
about Pomeranian, or a Beagle or a Poodle[?]'' \111\ Finally, several
commenters referenced the relationship between domestic dogs and
humans. For example, one asked that the Commission require ``Raccoon
Dog'' ``so consumers will know that they are wearing man[']s best
friend on their backs.'' \112\
---------------------------------------------------------------------------
\111\ HSUS Mass Mail comment (00034), file 0034-85308,
Justus Comment.
\112\ HSUS Mass Mail comment (00034), file 0034-85304,
Abbott Comment.
---------------------------------------------------------------------------
2. The Arguments Against ``Asiatic Raccoon'' Are Not Persuasive
Commenters favoring ``Raccoon Dog'' asserted that, notwithstanding
the above, ``Asiatic Raccoon'' is inappropriate because it is
technically inaccurate, deceptive, contrary to the Fur Rules, and
inconsistent with TFLA's intent. For the reasons discussed below, these
arguments are not persuasive.
a. Technical Accuracy
HSUS, NYC Bar, and the HSUS members asserted that ``Asiatic
Raccoon'' was technically incorrect because the animal's taxonomic
classification is in the Canidae family. However, those commenters did
not explain the relevance of taxonomic classification to the statutory
requirements for names: Either the ``true English name'' or a name by
which the animal can be identified in the United States.\113\ In
particular, they failed to show how the animal's closer relationship
with domestic dog than raccoon made ``Raccoon Dog'' a more helpful name
in identifying the animal. Although NYC Bar speculated that some
consumers would want to avoid fur more closely related to dogs than
raccoons, it did not provide any supporting evidence. Considering that
the animal is no more closely related to domestic dogs than are foxes,
wolves, and coyotes, there is no reason to believe that a significant
number of consumers would find its family classification meaningful.
Indeed, the scientific experts who commented at the Name Guide Hearing
disagreed that taxonomic schemes should determine the animal's common
name.\114\
---------------------------------------------------------------------------
\113\ 15 U.S.C. 69e(a).
\114\ Tr. at 13, ln. 6-9; Tr. at 13-14, ln. 21-6.
---------------------------------------------------------------------------
b. Deception
HSUS and NYC Bar argued the name ``Asiatic Raccoon'' is deceptive
because consumers cannot be familiar with ``Asiatic Raccoon'' given the
ubiquity of ``Raccoon Dog.'' These commenters, however, did not submit
any consumer perception evidence demonstrating familiarity with
``Raccoon Dog'' or rebutting evidence of familiarity with ``Asiatic
Raccoon.'' Rather, they cataloged the appearance of ``Raccoon Dog'' in
authoritative sources and popular media.
This evidence, however, does not establish widespread consumer
[[Page 30453]]
familiarity with ``Raccoon Dog,'' or unfamiliarity with ``Asiatic
Raccoon.'' Scientific journals and organizations promote academic study
and research; there is no reason to assume that consumers shopping for
furs would consult them. The use of ``Raccoon Dog'' in dictionaries and
popular media suggests that some consumers understand the term, but
does not show whether a significant number of consumers do. Considering
that ``Asiatic Raccoon'' has appeared on nyctereutes procyonoides
marketing and labels for decades, the Commission cannot abandon that
name absent evidence of widespread consumer familiarity with ``Raccoon
Dog.''
Critically, neither HSUS nor NYC Bar identified a single instance
where use of the term ``Asiatic Raccoon'' deceived a consumer as to the
product's fur content. Considering that the Guide has required
``Asiatic Raccoon'' since 1961, if the term had confused or otherwise
harmed consumers, evidence of such confusion should exist.\115\ Perhaps
anticipating this problem, HSUS and NYC Bar argued that consumers must
know they are buying ``Raccoon Dog'' in order to conduct research about
how fur producers treat the species. But as the Commission noted in the
NPRM,\116\ consumers researching information about ``Asiatic
Raccoon''--as opposed to shopping for fur products on Google Shopping--
can easily perform a web search on Google and obtain information that
identifies the animal by both the species name and ``Raccoon Dog.'' For
example, a Google web search for information about ``Asiatic Raccoon''
performed on March 13, 2014, retrieved dozens of links related to
nyctereutes procyonoides, with five of the first six links referring to
both the Latin name of the species and the term ``Raccoon Dog.''
---------------------------------------------------------------------------
\115\ HSUS challenged the Commission's conclusion that consumers
have been exposed to ``Asiatic Raccoon'' in the marketplace.
Specifically, it alleged that because retailers have frequently
mislabeled nyctereutes procyonoides fur, there is no basis to infer
consumer exposure. However, as discussed above, Name Guide Hearing
comments indicate the name has been used frequently. HSUS's comments
at the hearing, while emphasizing the alleged frequent mislabeling,
conceded that nyctereutes procyonoides has been often labeled as
``Asiatic Raccoon.''
HSUS also stated that the NPRM misrepresented its views
regarding consumer exposure to ``Asiatic Raccoon.'' HSUS comment at
9. However, the NPRM merely noted HSUS's agreement that the term
``Asiatic Raccoon'' has appeared in the marketplace, even if the
animal has been frequently mislabeled. HSUS's most recent comments
appear consistent with that position.
\116\ 77 FR at 57048, fn. 112.
---------------------------------------------------------------------------
c. Contrary to the Fur Rules
HSUS and NYC Bar also assert ``Asiatic Raccoon'' violates the Fur
Rules' prohibition on trade names and deception. They point to Sec.
301.11 and Sec. 301.17's prohibitions on trade names and statements
that are deceptive as to the animals' zoological origin. However,
``Asiatic Raccoon'' is not a trade name. Rather, it is the true English
name prescribed in the Name Guide for over 50 years. Furthermore, as
discussed above, the Commission disagrees that ``Asiatic Raccoon'' is
deceptive.
d. Inconsistent With TFLA's Intent
Notwithstanding the merits of ``Asiatic Raccoon'' versus ``Raccoon
Dog,'' NYC Bar asserted that the Commission should adopt the latter to
carry out TFLA's intent as indicated in a Congressional Research
Service Summary for S. 1076, an early draft of TFLA. That summary
inaccurately described the bill as directing the FTC ``to replace the
term `Raccoon, Asiatic' with `Raccoon, Dog.' '' \117\ In addition, that
summary referred to a draft of the bill with significantly different
language than TFLA. Specifically, that version would have directed the
Commission to ``initiate a rulemaking to revise the Fur Products Name
Guide.'' \118\ TFLA, by contrast, merely directs the Commission to
initiate ``a review of the Fur Products Name Guide.'' \119\ Indeed, the
summary of the later version of the bill notes that it directs the
Commission to review the guide, without mentioning ``Asiatic Raccoon''
or ``Raccoon Dog.'' The fact that Congress considered language
directing the Commission to revise the Guide and then rejected that
language does not support NYC Bar's position. Indeed, it supports the
opposite interpretation.\120\
---------------------------------------------------------------------------
\117\ NYC Bar comment at 3, citing Bill Summary S. 1076.
\118\ Bill Text of S. 1076 as introduced, available at: http://www.gpo.gov/fdsys/pkg/BILLS-111s1076is/pdf/BILLS-111s1076is.pdf
(emphasis added).
\119\ Public Law 111-113, section 4 (emphasis added).
\120\ INS v. Cardoza-Fonseca, 480 U.S. 421, 442 (1987) (` ``Few
principles of statutory construction are more compelling than the
proposition that Congress does not intend sub silentio to enact
statutory language that it has earlier discarded in favor of other
language.' '') (quoting Nachman Corp. v. PBGC, 446 U.S. 359, 392-93
(1980) (Stewart, J., dissenting)).
---------------------------------------------------------------------------
3. The Commission Declines To Add ``Finnraccoon.''
In the NPRM, the Commission declined to propose ``Finnraccoon'' as
an alternate for nyctereutes procyonoides. Fur-industry commenters and
Finnish Government Ministries urged the Commission to reconsider,
arguing that ``Finnraccoon'' would help consumers identify nyctereutes
procyonoides raised according to stricter European regulatory
standards. As discussed above, the Fur Act requires Name Guide names to
be the animal's ``true English name'' or a name by which consumers can
identify the animal in the United States. The record indicates that
``Finnraccoon'' satisfies neither criterion.
In the NPRM, the Commission observed that there is no evidence that
consumers understand that ``Finnraccoon'' is nyctereutes procyonoides.
In response, fur-industry commenters reported that marketers of
nyctereutes procyonoides products from Finland had extensively
advertised the product as ``Finnraccoon'' in the last few years.
However, the comments did not detail the extent of such marketing and,
more importantly, did not provide any consumer perception evidence
showing that a significant number of consumers understand the
term.\121\
---------------------------------------------------------------------------
\121\ Unlike ``Asiatic Raccoon,'' ``Finnraccoon'' does not have
a long history in the marketplace.
---------------------------------------------------------------------------
The NPRM also raised practical concerns that the commenters did not
address. Specifically, the commenters justify the alternate name on
purportedly superior European fur-farming practices. However, these
practices can change and, in any event, the Commission cannot verify
them. This issue is critical because the record shows no physiological
difference between nyctereutes procyonoides raised in Asia and those
raised in Europe. Moreover, the country of origin disclosure will alert
consumers that the animal was raised in Europe, thereby mitigating any
confusion. Accordingly, the Commission will not add ``Finnraccoon'' to
the Name Guide.
4. Name Guide Updates
The NPRM proposed numerous Name Guide revisions to update
references to species or correct typographical errors. No comments
objected to these proposals. Therefore, the Commission will finalize
them.\122\
---------------------------------------------------------------------------
\122\ HSUS also renewed its request from its earlier comment for
several additional changes to the required name on labels. As
explained in the NPRM, the Commission does not make those changes
because there is no evidence of consumer harm from the currently
required names.
---------------------------------------------------------------------------
HSUS and Dr. Gardner urged the Commission to make additional
updates and correct errors. The final amendments incorporate four
revisions to the scientific names that the
[[Page 30454]]
Commission has independently verified with FWS.\123\
---------------------------------------------------------------------------
\123\ Specifically, the Commission updates the Order
classification for ``antelope'' and the species names for
``jaguarondi, ``peschanik,'' and ``suslik.'' Entries for
``kolinsky'' and ``lynx'' that were omitted from the NPRM have been
restored in the final rule.
---------------------------------------------------------------------------
B. Labeling Amendments
The NPRM proposed several amendments to reduce the amount of
required information and provide more labeling flexibility. Commenters
supported all these amendments. Accordingly, the Commission now
finalizes them as proposed.
1. Required Information
Currently, Section 301.20(a) requires disclosure of pointed, dyed,
bleached, or artificially colored fur and fur consisting of, among
other things, ``sides'' or ``flanks.'' \124\ In light of the
uncontroverted comments that the ``sides'' and ``flanks'' disclosures
do not provide consumers with meaningful information, the Commission
eliminates them.
---------------------------------------------------------------------------
\124\ 16 CFR 301.19; 301.20.
---------------------------------------------------------------------------
2. Label Specifications
The Fur Rules include extensive requirements regarding the size,
font, and mechanics of labeling. As discussed in the NPRM, the
Commission understands from its experience enforcing the Textile Rules
that it is sufficient to require that disclosures be ``clearly legible,
conspicuous, and readily accessible to the prospective purchaser.''
\125\ Accordingly, the Commission amends the Rules to provide more
flexibility regarding label size, text, and use for items sold in pairs
or groups.
---------------------------------------------------------------------------
\125\ 16 CFR 303.16(b).
---------------------------------------------------------------------------
a. Label Size Requirements
Section 301.27 currently requires that labels measure 1.75 inches
by 2.75 inches.\126\ The Commission agrees this size is impractical for
smaller items, a consideration that carries greater significance now
that TFLA has eliminated the de minimis exemptions. Furthermore, the
Commission's textile labeling enforcement experience demonstrates that
specifying exact label dimensions is unnecessary, so long as the
required disclosures are conspicuous. Therefore, the Commission
eliminates the size requirement. Consistent with the Textile
Rules,\127\ the new Sec. 301.27 will require labels to be
``conspicuous and of such durability as to remain attached to the
product throughout any distribution, sale or resale, and until sold and
delivered to the ultimate consumer.''
---------------------------------------------------------------------------
\126\ 16 CFR 301.27.
\127\ 16 CFR 303.15(a).
---------------------------------------------------------------------------
b. Label Text Requirements
Section 301.29 requires label text to be 12-point or ``pica'' font
size. It also prohibits non-FTC information on the front of the label,
while Sec. 301.30 prescribes a specific order for disclosures. As
discussed in the NPRM, these requirements create substantial burdens,
such as forcing marketers to use multiple labels to comply with FTC,
state, and international fur regulations. Furthermore, the Commission
finds that, based on its experience enforcing the Textile Rules, these
requirements are unnecessary to disclose relevant information
effectively. Accordingly, the Commission:
Replaces Sec. 301.29(a)'s 12-point or ``pica'' type font-
size requirement with a requirement to disclose information ``in such a
manner as to be clearly legible, conspicuous, and readily accessible to
the prospective purchaser'';
removes Sec. 301.29(a)'s limits on information appearing
on the front of the label, thereby allowing entities to include true
and non-deceptive information on either side; and
deletes Sec. 301.30, which specifies a particular order
for FTC disclosures.
c. Labels for Items Sold in Pairs or Groups
Section 301.31 requires that items ``manufactured for use in pairs
or groups'' be ``firmly attached to each other when marketed and
delivered in the channels of trade and to the purchaser.'' \128\ In the
NPRM, the Commission found that this requirement interferes with
marketing smaller items like shoes and gloves, which are typically sold
in pairs. Furthermore, there is no apparent benefit, and likely some
inconvenience, to consumers from requiring actual attachment of items
through the point of sale. Accordingly, the Commission eliminates the
requirement and incorporates the Textile Rules' provision allowing a
single label for items ``marketed or handled in pairs or ensembles,''
regardless of whether they are attached to each other at the point-of-
sale.\129\ Thus, if retailers sell the items as pairs or ensembles and
each item contains the same fur with the same country of origin,
retailers may use a single label.
---------------------------------------------------------------------------
\128\ 16 CFR 301.31(b).
\129\ 16 CFR 303.29(b).
---------------------------------------------------------------------------
3. Additional Suggested Labeling Amendments Not Adopted
Three commenters supported additional amendments that would
eliminate supposedly redundant ``fur origin'' disclosures, and the
requirement to label certain furs as ``natural.'' The Commission
declines to adopt either amendment.
Commenters FDRA and ITA argued that requiring ``fur origin''
disclosures on products, like textiles, that already have a country of
origin label is redundant. The Commission does not agree. The required
country of origin disclosure for textiles relates to the location the
product was manufactured. Thus, textile disclosures typically read
``Made in [ ].'' \130\ Because fur skins are not manufactured, a ``Made
in'' disclosure applying to both the textile and fur portion of a
product would likely confuse consumers. Therefore, the Commission will
continue to require that fur labels disclose ``Fur Origin: [country].''
---------------------------------------------------------------------------
\130\ See 16 CFR 303.33(a).
---------------------------------------------------------------------------
Individual commenter ``Gremmo'' suggested eliminating Sec.
301.19(g)'s requirement to brand and label certain furs as ``natural.''
Although the comment asserted that the ``natural'' disclosure does not
convey meaningful information to consumers, it did not submit any
supporting evidence. Moreover, no industry commenter reported that the
requirement imposed a significant burden. Thus, there is no basis to
remove that requirement.
C. Amendments Required by TFLA
TFLA's amendments to the Fur Act require conforming changes to the
Fur Rules. Accordingly, the Commission replaces the de minimis
exemption (Sec. 301.39), as well as all related provisions,\131\ with
TFLA's hunter/trapper exemption.
---------------------------------------------------------------------------
\131\ Because TFLA eliminated the de minimis exemption, it also
eliminated the provision that excepted dog and cat fur from that
exemption (i.e., a savings clause to require labeling of all dog and
cat fur). Accordingly, the Commission deletes the definitions of
``cat fur,'' ``dog fur,'' and ``dog or cat fur products,'' as well
as the cat and dog fur exceptions in Sec. 301.39(a), because those
terms are used only in the de minimis exemption provision. In
addition, the Commission adopts several non-substantive amendments
to ensure that references to other provisions and the Act are
accurate and to correct typographical errors.
---------------------------------------------------------------------------
D. Amendments Eliminating Unnecessary Provisions
The NPRM proposed eliminating unnecessary provisions to simplify
the Rules. No commenter objected. Therefore, the Commission deletes
three sections. First, it deletes Sec. 301.19(l)(1) through (7). These
subsections provide
[[Page 30455]]
a suggested, but not required, method for determining whether a fur has
been treated with iron or copper and, therefore, requires a ``color
altered'' or ``color added'' disclosure. The suggestion is unnecessary
because Sec. 301.19 requires that an entity coloring furs must
disclose the treatment on an invoice.\132\
---------------------------------------------------------------------------
\132\ 16 CFR 301.19(h).
---------------------------------------------------------------------------
Second, the Commission deletes Sec. 301.28, which provides further
guidance on attaching labels. Because the new Sec. 301.27 clarifies
the method for attaching labels, Sec. 301.28 is now redundant.
Third, Sec. 301.40 requires entities to assign an ``item number or
mark'' to furs and to disclose it on invoices and labels.\133\ In the
Commission's experience, it does not need this information to enforce
the Fur Act and Rules. Furthermore, it does not provide any meaningful
information to consumers. Therefore, the Commission eliminates this
provision and the internal references to it.
---------------------------------------------------------------------------
\133\ 16 CFR 301.40(a).
---------------------------------------------------------------------------
E. Amendments to Guaranty Provisions
The Supplemental NPRM proposed several amendments to conform the
Fur Rules' guaranty provisions to those proposed in the Textile NPRM.
These amendments would ensure that the Rules facilitate the electronic
transmittal and submission of guaranties, and require annual renewal of
continuing guaranties. Commenters supported the changes to facilitate
electronic guaranties, but opposed annual renewal. In addition, HSUS
renewed its request that continuing guaranties specify fur type. In
light of the comments, the Commission adopts the provisions
facilitating electronic guaranties, but not the annual renewal
requirement or HSUS's suggested amendment.
1. Electronic Guaranties
To clarify that the Fur Rules do not prohibit electronically
transmitted guaranties and conform the fur guaranty provisions to those
governing textiles, the Commission adopts four amendments. First, it
changes the term ``invoice'' in Sec. 301.47 and the phrase ``invoice
or other paper'' in Sec. 301.48(b) to ``invoice or other document.''
These amendments are consistent with the fact that ``invoice'' includes
documents that are electronically stored or transmitted.
Second, the Commission amends Sec. 301.47 to include, as the
Textile Rules currently do, a statement that the guarantor's printed
name and address will satisfy the signature requirement for separate
guaranties. Specifically, the Commission adds language to Sec. 301.47
providing that a printed name and address will suffice to meet the
signature and address requirements. This additional language will make
clear that entities can sign guaranties electronically, consistent with
the Electronic Signatures in Global and National Commerce Act.\134\
---------------------------------------------------------------------------
\134\ 15 U.S.C. 7001, et seq.
---------------------------------------------------------------------------
Third, the Commission deletes text in Sec. 301.47 requiring
separate guaranties to show ``the date of shipment of the
merchandise.'' This change will further conform to the textile guaranty
provisions.
Finally, the Commission adopts the definition of ``invoice'' and
``invoice or other document'' proposed in the Textile NPRM. This
definition clarifies that ``invoices,'' which guarantors often use to
transmit separate guaranties, include documents transmitted and stored
electronically.
2. Annual Renewal of Continuing Guaranties
As discussed above, commenters unanimously opposed requiring annual
renewal of continuing guaranties. Significantly, commenters on the
Textile NPRM likewise unanimously opposed the requirement as
unreasonably burdensome, and noted that the Commission lacked a basis
to find that annual renewal would increase reliability.\135\
---------------------------------------------------------------------------
\135\ See discussion in the Commission's announcement of final
amendments to the Textile Rules at 79 FR 18766, 18768 (Apr. 4,
2014). \\
---------------------------------------------------------------------------
Thus, the record lacks evidence demonstrating that the proposal
would increase the reliability of continuing guaranties. Accordingly,
the Commission has decided not to adopt this proposed amendment in the
Fur and in the Textile Rules.
Nonetheless, the Commission continues to have concerns that
continuing guaranties' reliability may degrade over time. If the
Commission obtains evidence that continuing guaranties have become less
reliable after the guaranty amendments take effect, it will revisit
this issue.
3. Requiring Continuing Guaranties To Designate Fur Type
HSUS urged the Commission to require that continuing guaranties
designate the specific animal that produced the fur for all products
transferred. In practice, this would limit continuing guaranties'
coverage to only certain furs a guarantor transferred.
The Commission declines to adopt HSUS's proposal because it
disagrees with HSUS's reading of the Fur Act. HSUS asserted that the
Fur Act allows limiting continuing guaranties to certain products
because Section 10(a)(2) of the Act states that continuing guaranties
shall be ``in such form as the Commission by rules and regulations may
prescribe.'' \136\ The language cited by HSUS is proceeded by a
statement that continuing guaranties will apply ``to any fur product or
fur handled by a guarantor.'' \137\ Thus, the Fur Act does not limit
``any fur product or fur'' to a specific type of fur. Although the Act
gives the Commission discretion in prescribing the guaranty form, the
Commission cannot require a form that would override clear statutory
language. As the Commission stated in the NPRM, the Act provides for
continuing guaranties that cover all fur products handled by the
guarantor, regardless of the type of fur.
---------------------------------------------------------------------------
\136\ 15 U.S.C. 69h(a)(2).
\137\ Id. (emphasis added).
---------------------------------------------------------------------------
F. Applicability to Faux Fur Products
Commenter National Humane Education Society appeared to request
that the Commission require all real and faux fur products to have
labels indicating whether the fur is real. This would require applying
the Fur Rules to items without fur. As the Commission stated in the
NPRM, it cannot expand the Rules' coverage to include faux fur because
those rules are authorized by the Fur Act, which applies only to
``furs'' or ``fur products,'' defined as ``animal skin . . . with hair,
fleece, or fur fibers attached thereto'' and products made of ``fur or
used fur,'' respectively.\138\
---------------------------------------------------------------------------
\138\ 15 U.S.C. 69(b) and (d).
---------------------------------------------------------------------------
V. Paperwork Reduction Act
The final amendments do not constitute a ``collection of
information'' under the Paperwork Reduction Act (44 U.S.C. 3501-3521).
The labeling amendments provide greater flexibility and, as such,
potentially reduce disclosure burdens. The changes to the Name Guide
simply alter the required, but Government-supplied, information on some
labels.\139\ Deleting the de minimis exemption will increase burden for
some entities to the extent they will have to make disclosures
regarding previously exempt products, but this has already been
accounted for in the Commission's most recently approved
[[Page 30456]]
clearance request and burden estimates for the Fur Rule.\140\
---------------------------------------------------------------------------
\139\ According to OMB, ``[t]he public disclosure of information
originally supplied by the Federal Government to the recipient for
the purpose of disclosure to the public is not included'' within in
the definition of a PRA ``collection of information.'' 5 CFR
1320.3(c)(2).
\140\ OMB Control No. 3084-0099 (clearance granted April 3,
2012, through April 30, 2015).
---------------------------------------------------------------------------
VI. Regulatory Flexibility Act
The Regulatory Flexibility Act \141\ requires an agency to provide
a Regulatory Flexibility Analysis with a final rule unless the agency
certifies that the rule will not have a significant economic impact on
a substantial number of small entities.\142\ As part of the
Commission's recent PRA clearance request, the Commission estimated
that 1,230 retailers, 90 manufacturers, and 1,200 importers are subject
to the Rules.\143\ The Commission further estimated that these entities
incur a total recordkeeping burden of 51,870 hours and a total
disclosure burden of 116,228 hours.\144\ The entities subject to these
burdens will be classified as small businesses if they satisfy the
Small Business Administration's relevant size standards, as determined
by the Small Business Size Standards component of the North American
Industry Classification System (``NAICS'').\145\ The relevant NAICS
size standards, which are either minimum annual receipts or number of
employees, are as follows:
---------------------------------------------------------------------------
\141\ 5 U.S.C. 601-612
\142\ See 5 U.S.C. 603-605.
\143\ 77 FR 10744, 10745 (Feb. 23, 2012).
\144\ Id.
\145\ The standards are available at www.sba.gov/sites/default/files/files/Size_Standards_Table.pdf.
------------------------------------------------------------------------
NAICS Industry title Small business size standard
------------------------------------------------------------------------
Fur-Bearing Animal and Rabbit $750,000.
Production.
Fur and Leather Apparel Manufacturing.. 500 employees.
Men's Clothing Stores.................. $10,000,000.
Women's Clothing Stores................ $25,000,000.
Department Stores...................... $30,000,000.
------------------------------------------------------------------------
The Commission is unable to determine how many of the above-listed
entities qualify as small businesses. Neither the record in this
proceeding nor in the recent PRA clearance proceeding contains
information regarding the size of entities subject to the Fur Rules. No
commenter addressed this subject. Moreover, the relevant NAICS
categories include many entities that are not in the fur industry.
Therefore, estimates of the percentage of small businesses in those
categories would not necessarily reflect the percentage of small
businesses subject to the Fur Rules in those categories.
Even absent this data, however, the Commission concludes that the
amendments will not have a significant economic impact on small
entities. As discussed above in Section V, the amendments do not impose
any new costs. The greater flexibility should reduce disclosure
burdens, and the changes to the Name Guide simply alter the required
information on some labels. Furthermore, businesses should not have to
remove labels from existing fur products, which are mostly seasonal
items, because they can continue to sell those products with old labels
until the amendments' effective date. Finally, the Commission is not
adopting its proposal that continuing guaranty certifications be
updated annually.
This document serves as notice to the Small Business Administration
of the agency's certification of no effect.
List of Subjects in 16 CFR Part 301
Furs, Labeling, Trade practices.
For the reasons discussed in the preamble, the Federal Trade
Commission amends title 16, Chapter I, Subchapter C, of the Code of
Federal Regulations, part 301, as follows:
PART 301--RULES AND REGULATIONS UNDER FUR PRODUCTS LABELING ACT
0
1. The authority citation for part 301 continues to read:
Authority: 15 U.S.C. 69 et seq.
0
2. Revise Sec. 301.0 to read as follows:
Sec. 301.0 Fur products name guide.
----------------------------------------------------------------------------------------------------------------
Name Order Family Genus-species
----------------------------------------------------------------------------------------------------------------
Alpaca............................. Artiodactyla.......... Camelidae............. Lama pacos.
Antelope........................... Artiodactyla.......... Bovidae............... Hippotragus niger and
Antilope cervicapra.
Badger............................. Carnivora............. Mustelidae............ Taxida sp. and Meles sp.
Bassarisk.......................... ......do.............. Procyonidae........... Bassariscus astutus.
Bear............................... ......do.............. Ursidae............... Ursus sp.
Bear, Polar........................ ......do.............. ......do.............. Ursus maritimus.
Beaver............................. Rodentia.............. Castoridae............ Castor canadensis.
Burunduk........................... ......do.............. Sciuridae............. Eutamias asiaticus.
Calf............................... Artiodactyla.......... Bovidae............... Bos taurus.
Cat, Caracal....................... Carnivora............. Felidae............... Caracal caracal.
Cat, Domestic...................... ......do.............. ......do.............. Felis catus.
Cat, Leopard....................... ......do.............. ......do.............. Prionailurus bengalensis.
Cat, Lynx.......................... ......do.............. ......do.............. Lynx rufus.
Cat, Manul......................... ......do.............. ......do.............. Felis manul.
Cat, Margay........................ ......do.............. ......do.............. Leopardus wiedii.
Cat, Spotted....................... ......do.............. ......do.............. Felis sp. (South America).
Cat, Wild.......................... ......do.............. ......do.............. Felis catus and Felis
lybica.
Cheetah............................ ......do.............. ......do.............. Acinonyx jubatus.
Chinchilla......................... Rodentia.............. Chinchillidae......... Chinchilla chinchilla.
Chipmunk........................... ......do.............. Sciuridae............. Tamias sp.
Civet.............................. Carnivora............. Viverridae............ Viverra sp., Viverricula
sp., Paradoxurus sp., and
Paguma sp.
Desman............................. Soricomorpha.......... Talpidae.............. Desmana moschata and
Galemys pyrenaicus.
Dog................................ Carnivora............. Canidae............... Canis familiaris.
Ermine............................. ......do.............. Mustelidae............ Mustela erminea.
Fisher............................. ......do.............. ......do.............. Martes pennanti.
Fitch.............................. ......do.............. ......do.............. Mustela putorius.
Fox................................ ......do.............. Canidae............... Vulpes vulpes, Vulpes
macrotis.
Fox, Blue.......................... ......do.............. ......do.............. Vulpes lagopus.
Fox, Grey.......................... ......do.............. ......do.............. Urocyon cinereoargenteus
and Urocyon littoralis.
Fox, Kit........................... ......do.............. ......do.............. Vulpes velox.
[[Page 30457]]
Fox, White......................... Carnivora............. Canidae............... Vulpes lagopus.
Genet.............................. ......do.............. Viverridae............ Genetta genetta.
Goat............................... Artiodactyla.......... Bovidae............... Capra hircus.
Guanaco, or its young, the ......do.............. Camelidae............. Lama guanicoe.
Guanaquito.
Hamster............................ Rodentia.............. Cricetidae............ Cricetus cricetus.
Hare............................... ......do.............. Leporidae............. Lepus sp. and Lepus
europaeus occidentalis.
Jackal............................. Carnivora............. Canidae............... Canis aureus and Canis
adustus.
Jackal, Cape....................... ......do.............. ......do.............. Canis mesomelas.
Jaguar............................. ......do.............. Felidae............... Panthera onca.
Jaguarundi......................... ......do.............. ......do.............. Herpailurus yagouaroundi.
Kangaroo........................... Diprotodontia......... Macropodidae.......... Marcopus sp.
Kangaroo[dash]rat.................. ......do.............. Potoroidae............ Bettongia sp.
Kid................................ Artiodactyla.......... Bovidae............... Capra hircus.
Kinkajou........................... Carnivora............. Procyonidae........... Potos flavus.
Koala.............................. Diprotodontia......... Phascolarctidae ...... Phascolarctos cinereus.
Kolinsky........................... Carnivora............. Mustelidae............ Mustela sibirica.
Lamb............................... Artiodactyla.......... Bovidae............... Ovis aries.
Leopard............................ Carnivora............. Felidae............... Panthera pardus.
Llama.............................. Artiodactyla.......... Camelidae............. Lama glama.
Lynx............................... Carnivora............. Felidae............... Lynx canadensis and Lynx
lynx.
Marmot............................. Rodentia.............. Sciuridae............. Marmota bobak.
Marten, American................... Carnivora............. Mustelidae............ Martes americana and Martes
caurina.
Marten, Baum....................... ......do.............. ......do.............. Martes martes.
Marten, Japanese................... ......do.............. ......do.............. Martes melampus.
Marten, Stone...................... ......do.............. ......do.............. Martes foina.
Mink............................... ......do.............. ......do.............. Mustela vison and Mustela
lutreola.
Mole............................... Soricomorpha.......... Talpidae.............. Talpa sp.
Monkey............................. Primates.............. Cercopithecidae....... Colobus polykomos.
Muskrat............................ Rodentia.............. Muridae............... Ondatra zibethicus.
Nutria............................. ......do.............. Myocastoridae......... Myocastor coypus.
Ocelot............................. Carnivora............. Felidae............... Leopardus pardalis
Opossum............................ Didelphimorphia....... Didelphidae........... Didelphis sp.
Opossum, Australian................ Diprotodontia......... Phalangeridae......... Trichosurus vulpecula.
Opossum, Ringtail.................. ......do.............. Pseudocheiridae....... Pseudocheirus sp.
Opossum, South American............ Didelphimorphia....... Didelphidae........... Lutreolina crassicaudata.
Opossum, Water..................... ......do.............. ......do.............. Chironectes minimus.
Otter.............................. Carnivora............. Mustelidae............ Lontra canadensis,
Pteronura brasiliensis,
and Lutra lutra.
Otter, Sea......................... ......do.............. ......do.............. Enhydra lutris.
Pahmi.............................. ......do.............. ......do.............. Helictis moschata and
Helictis personata.
Panda.............................. Carnivora............. Ailuridae............. Ailurus fulgens.
Peschanik.......................... Rodentia.............. Sciuridae............. Spermophilus fulvus.
Pony............................... Perissodactyla........ Equidae............... Equus caballus.
Rabbit............................. Lagomorpha............ Leporidae............. Oryctolagus cuniculus.
Raccoon............................ Carnivora............. Procyonidae........... Procyon lotor and Procyon
cancrivorus.
Raccoon, Asiatic................... ......do.............. Canidae............... Nyctereutes procyonoides.
Raccoon, Mexican................... ......do.............. Procyonidae........... Nasua sp.
Reindeer........................... Artiodactyla.......... Cervidae.............. Rangifer tarandus.
Sable.............................. Carnivora............. Mustelidae............ Martes zibellina.
Sable, American.................... ......do.............. ......do.............. Martes americana and Martes
caurina.
Seal, Fur.......................... Carnivora............. Otariidae............. Callorhinus ursinus.
Seal, Hair......................... ......do.............. Phocidae.............. Phoca sp.
Seal, Roc.......................... ......do.............. Otariidae............. Otaria flavescens.
Sheep.............................. Artiodactyla.......... Bovidae............... Ovis aries.
Skunk.............................. Carnivora............. Mephitidae............ Mephitis mephitis, Mephitis
macroura, Conepatus
semistriatus and Conepatus
sp.
Skunk, Spotted .................... ......do.............. ......do.............. Spilogale sp.
Squirrel........................... Rodentia.............. Sciuridae............. Sciurus vulgaris.
Squirrel, Flying................... ......do.............. ......do.............. Eupetaurus cinereus,
Pteromys volans and
Petaurista leucogenys.
Suslik............................. ......do.............. ......do.............. Spermophilus citellus,
Spermophilus major
rufescens and Spermophilus
suslicus.
Vicuna............................. Artiodactyla.......... Camelidae............. Vicugna vicugna.
Viscacha........................... Rodentia.............. Chinchillidae......... Lagidium sp.
Wallaby............................ Diprotodontia......... Macropodidae.......... Wallabia sp., Petrogale
sp., and Thylogale sp.
Weasel............................. Carnivora............. Mustelidae............ Mustela frenata.
Weasel, Chinese.................... ......do.............. ......do.............. Mustela sibirica.
Weasel, Japanese................... ......do.............. ......do.............. Mustela itatsi (also
classified as Mustela
sibirica itatsi).
Weasel, Manchurian................. Carnivora............. Mustelidae............ Mustela altaica and Mustela
nivalis rixosa.
Wolf............................... ......do.............. Canidae............... Canis lupus.
Wolverine.......................... ......do.............. Mustelidae............ Gulo gulo.
Wombat............................. Diprotodontia......... Vombatidae............ Vombatus sp.
Woodchuck.......................... Rodentia.............. Sciuridae............. Marmota monax.
----------------------------------------------------------------------------------------------------------------
[[Page 30458]]
0
3. Amend Sec. 301.1 by removing paragraphs (a)(6), (7), and (8),
revising paragraph (a)(4), and adding new paragraph (a)(6) to read as
follows:
Sec. 301.1 Terms defined.
(a) * * *
(4) The terms Fur Products Name Guide and Name Guide mean the
register of names of hair, fleece, and fur-bearing animals issued and
amended by the Commission pursuant to the provisions of section 7 of
the act.
* * * * *
(6) The terms invoice and invoice or other document mean an
account, order, memorandum, list, or catalog, which is issued to a
purchaser, consignee, bailee, correspondent, agent, or any other
person, electronically, in writing, or in some other form capable of
being read and preserved in a form that is capable of being accurately
reproduced for later reference, whether by transmission, printing, or
otherwise, in connection with the marketing or handling of any fur or
fur product transported or delivered to such person.
0
4. Amend Sec. 301.2 by revising paragraphs (b) and (c) to read as
follows:
Sec. 301.2 General requirements.
* * * * *
(b) Each and every fur, except those exempted under Sec. 301.39,
shall be invoiced in conformity with the requirements of the act and
rules and regulations.
(c) Any advertising of fur products or furs, except those exempted
under Sec. 301.39, shall be in conformity with the requirements of the
act and rules and regulations.
Sec. 301.19 [Amended]
0
5. Amend Sec. 301.19 by removing paragraphs (l)(1) through (7).
0
6. Revise Sec. 301.20(a) to read as follows:
Sec. 301.20 Fur products composed of pieces.
(a) Where fur products, or fur mats and plates, are composed in
whole or in substantial part of paws, tails, bellies, gills, ears,
throats, heads, scrap pieces, or waste fur, such fact shall be
disclosed as a part of the required information in labeling, invoicing,
and advertising. Where a fur product is made of the backs of skins,
such fact may be set out in labels, invoices, and advertising.
* * * * *
0
7. Revise Sec. 301.27 to read as follows:
Sec. 301.27 Labels and method of affixing.
At all times during the marketing of a fur product the required
label shall be conspicuous and of such durability as to remain attached
to the product throughout any distribution, sale, or resale, and until
sold and delivered to the ultimate consumer.
Sec. 301.28 [Removed and Reserved]
0
8. Remove and reserve Sec. 301.28.
0
9. Revise Sec. 301.29(a) to read as follows:
Sec. 301.29 Requirements in respect to disclosure on label.
(a) The required information shall be set forth in such a manner as
to be clearly legible, conspicuous, and readily accessible to the
prospective purchaser, and all parts of the required information shall
be set out in letters of equal size and conspicuousness. All of the
required information with respect to the fur product shall be set out
on one side of the label. The label may include any nonrequired
information which is true and non-deceptive and which is not prohibited
by the act and regulations, but in all cases the animal name used shall
be that set out in the Name Guide.
* * * * *
Sec. 301.30 [Removed and Reserved]
0
10. Remove and reserve Sec. 301.30.
0
11. Revise Sec. 301.31(b) to read as follows:
Sec. 301.31 Labeling of fur products consisting of two or more units.
* * * * *
(b) In the case of fur products that are marketed or handled in
pairs or ensembles, only one label is required if all units in the pair
or group are of the same fur and have the same country of origin. The
information set out on the label must be applicable to each unit and
supply the information required under the act and rules and
regulations.
0
12. Amend Sec. 301.35 by revising paragraph (b) to read as follows:
Sec. 301.35 Substitution of labels.
* * * * *
(b) The original label may be used as a substitute label provided
the name or registered number of the person making the substitution is
inserted thereon without interfering with or obscuring in any manner
other required information. In connection with such substitution the
name or registered number as well as any record numbers appearing on
the original label may be removed.
* * * * *
0
13. Revise Sec. 301.39 to read as follows:
Sec. 301.39 Exempted fur products.
The requirements of the act and regulations in this part do not
apply to fur products that consist of fur obtained from an animal
through trapping or hunting and that are sold in a face-to-face
transaction at a place such as a residence, craft fair, or other
location used on a temporary or short-term basis, by the person who
trapped or hunted the animal, where the revenue from the sale of
apparel or fur products is not the primary source of income of such
person.
Sec. 301.40 [Removed and Reserved]
0
14. Remove and reserve Sec. 301.40.
0
15. Amend Sec. 301.41 by removing paragraph (a)(7) and revising
paragraph (a)(4) to read as follows:
Sec. 301.41 Maintenance of records.
(a) * * *
(4) That the fur product is composed in whole or in substantial
part of paws, tails, bellies, gills, ears, throats, heads, scrap
pieces, or waste fur, when such is the fact;
* * * * *
0
16. Revise Sec. 301.47 to read as follows:
Sec. 301.47 Form of separate guaranty.
The following is a suggested form of separate guaranty under
section 10 of the Act which may be used by a guarantor residing in the
United States, on and as part of an invoice or other document in which
the merchandise covered is listed and specified and which shows the
date of such document and the signature and address of the guarantor:
We guarantee that the fur products or furs specified herein are
not misbranded nor falsely nor deceptively advertised or invoiced
under the provisions of the Fur Products Labeling Act and rules and
regulations thereunder.
Note to Sec. 301.47. The printed name and address on the
invoice or other document will suffice to meet the signature and
address requirements.
0
17. Amend Sec. 301.48 by revising the section heading and paragraph
(b) to read as follows:
Sec. 301.48 Continuing guaranties.
* * * * *
(b) Any person who has a continuing guaranty on file with the
Commission may, during the effective dates of the guaranty, give notice
of such fact by setting forth on the invoice or other document covering
the marketing or handling of the product guaranteed the following:
``Continuing guaranty under the Fur Products Labeling Act filed with
the Federal Trade Commission.''
* * * * *
[[Page 30459]]
By direction of the Commission.
Donald S. Clark,
Secretary.
[FR Doc. 2014-11047 Filed 5-27-14; 8:45 am]
BILLING CODE 6750-01-P