[Federal Register Volume 81, Number 199 (Friday, October 14, 2016)]
[Rules and Regulations]
[Pages 70935-70938]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-24880]


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FEDERAL TRADE COMMISSION

16 CFR Part 304

RIN 3084-AB34


Rules and Regulations Under the Hobby Protection Act

AGENCY: Federal Trade Commission.

ACTION: Final rule.

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SUMMARY: As part of its regular review of all its Rules and Guides, and 
in response to Congressional amendments to the Hobby Protection Act 
(``Hobby Act'' or ``Act''), the Federal Trade Commission 
(``Commission'') amends its Rules and Regulations under the Hobby 
Protection Act (``Rules'').

DATES: This rule is effective November 16, 2016.

FOR FURTHER INFORMATION CONTACT: Joshua S. Millard, (202) 326-2454, 
Bureau of Consumer Protection, Federal Trade Commission, 600 
Pennsylvania Ave. NW., Washington, DC 20580.

SUPPLEMENTARY INFORMATION: 

I. Introduction

    As part of its ongoing regulatory review program, the Commission 
published a Federal Register Notice in 2014 \1\ seeking comment on the 
costs, benefits, and overall impact of the Rules. After the comment 
period closed, in December 2014, Congress enacted amendments to the 
Hobby Act. In response, the Commission published a Notice of Proposed 
Rulemaking (``NPRM'') earlier this year addressing the comments it 
received, proposing amendments to the Rules to track Congress' changes 
to the Hobby Act, and posing additional questions.\2\ The NPRM asked, 
in particular, whether the proposed amendments would appropriately 
implement Congressional changes to the Act, and what regulatory burden 
the proposed amendments might impose. The Commission did not receive 
substantive comments in response to this NPRM, and the record supports 
amending the Rules as proposed. Accordingly, this Notice describes the 
background of the Commission's regulatory review, summarizes the 
record, and explains the grounds for amendments to the Rules. 
Additionally, it provides analyses required by the Regulatory 
Flexibility and Paperwork Reduction Acts and sets forth the amended 
Rules provision.
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    \1\ 79 FR 40691 (July 14, 2014).
    \2\ 81 FR 23219 (Apr. 20, 2016).
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II. Background

    On November 29, 1973, President Nixon signed the Hobby Protection 
Act, 15 U.S.C. 2101-2106. The Hobby Act requires manufacturers and 
importers of ``imitation political items'' \3\ to ``plainly and 
permanently'' mark them with the ``calendar year'' the items were 
manufactured. Id. 2101(a). The Hobby Act also requires manufacturers 
and importers of ``imitation numismatic items'' \4\ to ``plainly and 
permanently'' mark these items with the word ``copy.'' Id. 2101(b). The 
Act further directed the Commission to promulgate regulations for 
determining the ``manner and form'' that imitation political items and 
imitation numismatic items are to be permanently marked with the 
calendar year of manufacture or the word ``copy.'' Id. 2101(c).
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    \3\ An imitation political item is ``an item which purports to 
be, but in fact is not, an original political item, or which is a 
reproduction, copy, or counterfeit of an original political item.'' 
15 U.S.C. 2106(2). The Hobby Act defines original political items as 
being any political button, poster, literature, sticker or any 
advertisement produced for use in any political cause. Id. 2106(1).
    \4\ An imitation numismatic item is ``an item which purports to 
be, but in fact is not, an original numismatic item or which is a 
reproduction, copy, or counterfeit of an original numismatic item.'' 
15 U.S.C. 2106(4). The Hobby Act defines original numismatic items 
to include coins, tokens, paper money, and commemorative medals 
which have been part of a coinage or issue used in exchange or used 
to commemorate a person or event. Id. 2106(3).
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    In 1975, the Commission issued Rules and Regulations Under the 
Hobby Protection Act, 16 CFR part 304.\5\ The Rules track the 
definitions used in the

[[Page 70936]]

Hobby Act and implement that Act's ``plain and permanent'' marking 
requirements by establishing where the item should be marked, the sizes 
and dimensions of the letters and numerals to be used, and how to mark 
incusable and nonincusable items.\6\ In 1988, the Commission amended 
the Rules to provide additional guidance on the minimum size of letters 
for the word ``copy'' as a proportion of the diameter of coin 
reproductions.\7\
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    \5\ 40 FR 5459 (Feb. 6, 1975).
    \6\ Incusable items are items that can be impressed with a 
stamp.
    \7\ 53 FR 38942 (Oct. 4, 1988). Before this amendment, if a coin 
were too small to comply with the minimum letter size requirements, 
the manufacturer or importer had to request a variance from those 
requirements from the Commission. Because imitation miniature coins 
were becoming more common, the Commission determined that it was in 
the public interest to allow the word ``copy'' to appear on 
miniature imitation coins in sizes that could be reduced 
proportionately with the size of the item.
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    The Commission reviewed the Rules in 2004. That review yielded many 
comments proposing that the Commission expand coverage to products 
beyond the scope of the Hobby Act and address problems involving the 
selling (or passing off) as originals of reproductions of antiques and 
other items not covered by the Act. However, the Commission retained 
the Rules without change, noting that it did not have authority under 
the Hobby Act to expand the Rules as requested.\8\
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    \8\ 69 FR 9943 (Mar. 3, 2004).
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    In 2014, the Commission again requested public comment on the 
Rules' costs, benefits, and overall impact.\9\ That comment period 
closed on September 22, 2014.
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    \9\ 79 FR 40691 (July 14, 2014).
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    On December 19, 2014, President Obama signed into law H.R. 2754, 
the Collectible Coin Protection Act (``CCPA''), a short set of 
amendments to the Hobby Act. The CCPA amends the Act's scope to address 
not only the distribution by manufacturers and importers of imitation 
numismatic items, but also ``the sale in commerce'' of such items. 
CCPA, Public Law 113-288, section 2(1)(A) (2014). Additionally, the 
CCPA makes it a violation of the Hobby Act ``for a person to provide 
substantial assistance or support to any manufacturer, importer, or 
seller if that person knows or should have known that the manufacturer, 
importer, or seller is engaged in any act or practice'' violating the 
marking requirements of the Act. Public Law 113-288, section 
2(1)(B).\10\
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    \10\ The CCPA also amends the Hobby Act to expand the 
permissible venue (i.e., location) for private actions seeking 
injunctions or damages for violations of the Hobby Act. Previously, 
a proper venue was ``any United States District Court for a district 
in which the defendant resides or has an agent.'' Proper venue now 
extends to any U.S. District Court for a district in which the 
defendant transacts business, or wherever venue is proper under 28 
U.S.C. 1391. Public Law 113-288, section 2(2)(A)-(B). Further, the 
CCPA amends the Hobby Act to state that in cases of violations of 
the Act involving unauthorized use of a trademark of a collectible 
certification service, the owners of such trademarks also have 
rights provided under the Trademark Act of 1946, 15 U.S.C. 1116 et 
seq. Public Law 113-288, section 2(2)(C).
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III. Summary of Comments and Analysis

A. Initial Request for Comments (2014)

    The Commission received six comments \11\ in response to its 2014 
FRN: Four from members of the general public; one from a self-
identified professional coin and paper money dealer; and one from an 
attorney with asserted experience pertaining to coins and other 
collectibles.
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    \11\ The comments are available on the Commission's Web site at 
http://www.ftc.gov/policy/public-comments/initiative-577.
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1. Support for the Rules
    All of the commenters who addressed the issue supported the Rules; 
none advocated rescinding them. For example, one commenter stated, 
``there [is] a continuing need for the Rules as currently promulgated 
because . . . they do protect consumers.'' \12\ Another described the 
Act as ``a boon to collectors of legitimate numismatic and political 
items,'' and stated: ``Over the years the presence of the law and 
supporting regulations has provided guidance for makers of replicas.'' 
\13\ A dealer stated that the Act ``is a brilliant effort to help 
protect the consumer from fraud, and . . . is well thought of across 
all [l]egitimate [d]ealers.'' \14\
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    \12\ Comment of Luke Burgess, available at http://www.ftc.gov/policy/public-comments/2014/09/09/comment-00008.
    \13\ Comment of Roger Burdette, available at http://www.ftc.gov/policy/public-comments/2014/09/09/comment-00007; see also Comment of 
Kenneth Tireman of NC Coppers, available at http://www.ftc.gov/policy/public-comments/2014/07/30/comment-00004.
    \14\ Comment of Kenneth Tireman, supra.
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2. Suggested Rules Modifications
    Some commenters suggested modifications to the Rules. In 
particular, several commenters suggested modifications to address 
``fantasy coins,'' government-issued coins altered by non-governmental 
entities to bear historically impossible dates or other features 
marketed as novelties.\15\ Commenters variously suggested that the 
Commission require manufacturers of fantasy coins to stamp such items 
with a ``FANTASY'' mark,\16\ expressly permit the sale of such items 
without an identifying mark,\17\ or ban such items altogether.\18\ One 
commenter specifically suggested expanding the Rules' scope to 
incorporate the provisions of the CCPA before Congress adopted it and 
sent it to the President for his signature.\19\
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    \15\ See Comment of Luke Burgess, supra (offering example of 
Roosevelt dime altered to read ``1945,'' noting that Roosevelt dime 
was not introduced until 1946, and noting that such coins are not 
intended to be used as currency).
    \16\ See id.
    \17\ See Comment of Daniel Carr, available at http://www.ftc.gov/policy/public-comments/2014/09/17/comment-00010; Comment 
of Armen Vartian, available at http://www.ftc.gov/policy/public-comments/2014/09/19/comment-00011.
    \18\ See Comment of Luke Burgess, supra.
    \19\ See Comment of Armen Vartian, supra.
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3. Analysis of Public Comments
    From the responses to its 2014 request for public comment, the 
Commission concluded that there was a continuing need for the Rules, 
and that the costs they impose on businesses were reasonable.\20\ 
Commenters who addressed the subject supported the Rules, and no dealer 
or business expressed the view that they should be rescinded or revised 
to reduce costs. Further, the Commission noted that after the comments 
period closed, Congress expanded the Hobby Act's scope (addressing, 
among others, persons who substantially assist or support 
manufacturers, importers, or sellers that violate the Act's marking 
requirements). This change evinces Congress' conclusion that the Rules 
did not impose undue costs upon businesses or the public. The 
Commission thus concluded that both the record and Congressional action 
supported retaining the Rules.
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    \20\ 81 FR 23219, 23220.
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    Additionally, the Commission found that it was unnecessary to amend 
the Rules to address specific collectible items (such as ``fantasy 
coins,'' as some commenters suggested) because it can address specific 
items as the need arises.\21\ Notably, the Commission has addressed 
whether coins resembling government-issued coins with date variations 
are subject to the Rules. In re Gold Bullion Int'l, Ltd., 92 F.T.C. 196 
(1978). It concluded that such coins should be marked as a ``COPY'' 
because otherwise they could be mistaken for an original numismatic 
item.\22\
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    \21\ 81 FR 23220.
    \22\ See 92 F.T.C. at 223 (``[M]inor variations in dates between 
an original and its alleged `copy' are insufficient to deprive the 
latter of its status as a `reproduction, copy or counterfeit' of an 
`or[i]ginal numismatic item' and do not eliminate the requirement 
that the latter be marked with the word `Copy.' '').

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[[Page 70937]]

B. Notice of Proposed Rulemaking With Request for Comments (2016)

    While the Commission found it was unnecessary to amend the Rules to 
regulate specific collectible items, it observed that amendments to the 
Rules were necessary to bring them into harmony with Congress' 
expansion of the Hobby Act. Hence, in April 2016, it solicited public 
comment on proposed amendments to the Rules.\23\
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    \23\ 81 FR 23219, 23220, 23223.
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    The Commission proposed to align its Rules with the amended Hobby 
Act by: (1) Extending the Rules' scope to cover persons or entities 
engaged in ``the sale in commerce'' of imitation numismatic items; and 
(2) stating that persons or entities violate the Rules if they provide 
substantial assistance or support to any manufacturer, importer, or 
seller of imitation numismatic items, or any manufacturer or importer 
of imitation political items, when they know, or should have known, 
that such person is engaged in any act or practice violating the 
marking requirements set forth in the Hobby Act and the Rules. The 
Commission solicited comment on the regulatory burden the amended Rules 
might impose.\24\
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    \24\ 81 FR 23220-21.
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1. No Public Comments or Objections to Proposed Amendments
    The Commission received no substantive comments in response.\25\ 
Thus, no member of the public objected to the proposed amendments, 
which incorporate Congress' changes to the Hobby Act. Significantly, no 
commenter objected that the amendments would impose undue costs upon 
businesses or would not properly implement Congress' changes to the 
Act. As previously noted, Congress' expansion of the Hobby Act's scope 
appears to evince Congressional sentiment that the Act has not, and 
will not, impose undue costs upon businesses or the public. Having 
published the proposed amendments for comment and received no 
objection, the Commission concludes that the regulatory burden that the 
amendments might impose on businesses, including small businesses, is 
minimal.
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    \25\ The Commission received six comments that were non-germane; 
none of these comments referred or related to the Hobby Act or 
Rules, the proposed amendments to the Rules, numismatic or political 
items, or imitations thereof. The comments expressed dissatisfaction 
with unwanted phone calls, used profane language, or were 
unintelligible.
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IV. Final Amendments

    The record supports modifying the Rules as the Commission proposed. 
As the CCPA's amendments to the Hobby Act require conforming changes in 
the Rules, and the record supports amending the Rules as proposed, the 
Commission accordingly amends the Rules' ``Applicability'' section, set 
forth at 16 CFR 304.3. The revised text of this provision is set forth 
at the end of this FRN.

V. Paperwork Reduction Act

    The amendments to the Rules do not constitute a ``collection of 
information'' under the Paperwork Reduction Act, 44 U.S.C. 3501-3521 
(``PRA''). The amendments incorporate changes made to the Hobby Act 
pursuant to the enactment of the CCPA. Prior to those changes, the 
Hobby Act already required manufacturers and importers of imitation 
political items and imitation numismatic items to mark such replica 
items (with the calendar year of manufacture or the word, ``copy,'' 
respectively) so they may be identified as replicas. The disclosure 
requirement under the existing Rules and the amendments are not a PRA 
``collection of information'' for which ``burden'' is evaluated and 
estimated as they specify the wording for proper disclosure (here, the 
year of manufacture or the word ``copy''). See 5 CFR 1320.3(c)(2) 
(``The public disclosure of language of information originally supplied 
by the Federal government to the recipient for the purpose of 
disclosure to the public is not included within [the definition of a 
`collection of information.']''). Moreover, extending this disclosure 
requirement to sellers of imitation numismatic items should not 
increase the burden of compliance to the extent they are selling items 
previously marked in compliance with the Hobby Act by manufacturers or 
importers. The amendments do not impose any new burden upon 
manufacturers and importers who produce replica items covered by the 
Hobby Act and Rules. Nor do the amendments impose any burden beyond 
that imposed by the CCPA's changes to the Hobby Act.

VI. Regulatory Flexibility Act

    The Regulatory Flexibility Act (``RFA''), 5 U.S.C. 601-612, 
requires an agency to provide an initial and final analysis of the 
anticipated economic impact of amendments on small entities. The RFA 
provides that such an analysis is not required if the agency certifies 
that the regulatory action will not have a significant economic impact 
on a substantial number of small entities. See 5 U.S.C. 603-605. As 
discussed below, the Commission believes that the amendments will not 
have a significant economic impact upon small entities that manufacture 
or import imitation political items or manufacture, import, or sell 
imitation numismatic items, although they may affect a substantial 
number of small entities.
    In the April 2016 NPRM, the Commission's staff estimated that 
approximately 5,000 retailers, manufacturers, and importers of 
imitation numismatic items are subject to the Rules. 81 FR 23219, 
23221. FTC staff further estimated that there are fewer manufacturers 
and importers of imitation political items, from 500 to 2,500. Id. The 
Commission invited members of the public to estimate how many 
retailers, manufacturers, and importers are subject to the Rules, and 
received no comments in response. Commission staff understands from a 
prominent political memorabilia membership organization, the American 
Political Items Collectors, that a disclosure that an item is an 
imitation is built into the manufacturing process. Entities compliant 
with the Rules mark replica coins with ``COPY,'' and replica political 
items with the date of manufacture, when those items are made. 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'').\26\ Potentially relevant NAICS size standards, which are 
either minimum annual receipts or number of employees, are as follows:
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    \26\ The standards are available at http://www.sba.gov/sites/default/files/files/Size_Standards_Table.pdf.

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           NAICS industry title             Small business size standard
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Sign Manufacturing........................  500 employees
Fastener, Button, Needle and Pin            500 employees
 Manufacturing.
Miscellaneous Manufacturing...............  500 employees
Miscellaneous Fabricated Metal Product      750 employees
 Manufacturing.
Rubber Product Manufacturing..............  500 employees
Miscellaneous Wood Product Manufacturing..  500 employees
Leather Good and Allied Product             500 employees
 Manufacturing.
Commercial Printing.......................  500 employees
Miscellaneous Durable Goods Merchant        100 employees
 Wholesalers.
Book, Periodical, and Newspaper Merchant    100 employees
 Wholesalers.

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Toy and Hobby Goods and Supplies Merchant   100 employees
 Wholesalers.
Hobby, Toy and Game Stores................  $27.5 million
Souvenir Stores...........................  $7.5 million
Political Organizations...................  $7.5 million
Electronic Shopping.......................  $32.5 million
Electronic Auctions.......................  $38.5 million
Mail-Order Houses.........................  $38.5 million
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    From the record of this proceeding, the Commission is unable to 
conclude how many of the above-listed entities qualify as small 
businesses. The record does not contain information regarding the size 
of the entities subject to the Rules. Moreover, the relevant NAICS 
categories include many entities that do not engage in activities 
covered by the Rules. Therefore, estimates of the percentage of small 
businesses in those categories would not necessarily reflect the 
percentage of small businesses subject to the Rules in those 
categories.
    Even absent this data, however, the Commission does not expect that 
the amendments will have a significant economic impact on small 
entities. As discussed above in Section V, the amendments do not impose 
any new costs upon persons or entities engaged in commerce concerning 
items that comply with the marking requirements of the Hobby Act and 
Rules. This document serves as notice to the Small Business 
Administration of the agency's certification of no effect. The 
Commission has nonetheless determined that it is appropriate to publish 
the following final regulatory flexibility analysis to ensure that the 
economic impact of the amendments on small entities is fully addressed.
    (1) Need for, and objectives of, the amendments to the Rules.
    As explained above, the amendments are intended to harmonize the 
Rules with the Hobby Act, as amended by the CCPA. Amending 16 CFR 304.3 
extends the Rules' coverage to persons engaged in the sale in commerce 
of imitation numismatic items, and persons or entities that provide 
substantial assistance or support to any manufacturer, importer, or 
seller of covered items under certain circumstances. The legal basis 
for this amendment is the CCPA, which expanded the scope of the Hobby 
Act.
    (2) Significant issues raised by comments in response to the 
proposed amendments to the Rules.
    The Commission received no substantive comments from the public and 
no comments from the Chief Counsel for Advocacy of the Small Business 
Administration. Consequently, no significant issues have arisen from 
comments, and no changes have been made to the proposed rule in the 
final rule as a result of comments.
    (3) A description of and an estimate of the number of small 
entities to which the Rules will apply.
    As noted earlier, staff estimates that approximately 5,000 
retailers, manufacturers, and importers of imitation numismatic items 
are subject to the Rules, and from 500 to 2,500 manufacturers and 
importers of imitation political items are subject to the Rules.
    (4) A description of the projected reporting, recordkeeping and 
other compliance requirements.
    The Rules impose a disclosure (marking) burden, currently estimated 
at 5 hours annually. The amendment is not expected to increase this 
burden on any person or entity subject to and in compliance with the 
Rules. The additional burden imposed by the amendment will result 
solely from the expanded scope of the Rules to cover certain additional 
persons and entities, consistent with the Hobby Act, as amended. As 
noted earlier, the disclosure burden imposed by the Rules is normally 
addressed in the manufacturing process, which requires graphic or other 
design skills for the die, cast, mold or other process used to 
manufacture the item.
    (5) Steps taken by the agency to minimize the significant economic 
impact, if any, on small entities, consistent with the stated 
objectives of applicable statutes.
    Commission staff have not identified any significant alternatives 
that would accomplish the statute's objectives while minimizing any 
significant economic impact on small entities. The amendment, as 
explained earlier, is intended to bring the scope of the Rules in line 
with the scope of the Hobby Act, as amended by the CCPA. Neither the 
Act nor the Rules exempt small entities, or impose lesser or different 
requirements on such entities. Such exemptions or alternative 
requirements would undermine the purpose and effect of the Act and the 
Rules, to the extent that Congress has determined by law that covered 
items, regardless of the size of the entity that manufactures, imports 
or sells them, require markings (i.e., disclosures) under certain 
circumstances for the protection of consumers who may purchase such 
items.

List of Subjects in 16 CFR Part 304

    Hobbies, Labeling, Trade practices.
    For the reasons set forth above, the Federal Trade Commission 
amends 16 CFR part 304 as follows:

PART 304--RULES AND REGULATIONS UNDER THE HOBBY PROTECTION ACT

0
1. The authority citation for this part continues to read as follows:

    Authority: 15 U.S.C. 2101 et seq.

0
2. Revise Sec.  304.3 to read as follows:


Sec.  304.3  Applicability.

    Any person engaged in the manufacturing, or importation into the 
United States for introduction into or distribution in commerce, of 
imitation political or imitation numismatic items shall be subject to 
the requirements of the Act and the regulations promulgated thereunder. 
Any person engaged in the sale in commerce of imitation numismatic 
items shall be subject to the requirements of the Act and the 
regulations promulgated thereunder. It shall be a violation of the Act 
and the regulations promulgated thereunder for a person to provide 
substantial assistance or support to any manufacturer, importer, or 
seller of imitation numismatic items, or to any manufacturer or 
importer of imitation political items, if that person knows or should 
have known that the manufacturer, importer, or seller is engaged in any 
practice that violates the Act and the regulations promulgated 
thereunder.

    By direction of the Commission.
Donald S. Clark,
Secretary.
[FR Doc. 2016-24880 Filed 10-13-16; 8:45 am]
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