Regulatory Review of the Trade Regulation Rule on Funeral Industry Practices, 13740-13753 [E8-5065]

Agencies

• FEDERAL TRADE COMMISSION

[Federal Register Volume 73, Number 51 (Friday, March 14, 2008)]
[Rules and Regulations]
[Pages 13740-13753]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E8-5065]


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FEDERAL TRADE COMMISSION

16 CFR Part 453


Regulatory Review of the Trade Regulation Rule on Funeral 
Industry Practices

AGENCY: Federal Trade Commission.

ACTION: Confirmation of rule.

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SUMMARY: The Federal Trade Commission (the ``Commission'' or the 
``FTC'') has completed its regulatory review of the Trade Regulation 
Rule on Funeral Industry Practices (``the Funeral Rule'' or ``the 
Rule''). The Rule sets forth preventive requirements in the form of 
price and information disclosures to ensure funeral providers avoid 
engaging in acts or practices the Commission has identified as unfair 
or deceptive acts or practices. Pursuant to the review, the Commission 
concludes that the Rule in its current form continues to be valuable to 
consumers, and the benefits of the Rule outweigh the costs. Because of 
insufficient support in the record, the Commission declines to propose 
amendments that some commenters advocated, namely to: expand the scope

[[Page 13741]]

of the Rule; eliminate the basic services fee of the funeral director; 
allow funeral providers to charge casket handling fees; prohibit 
discount funeral packages; require additional price and information 
disclosures on the various disclosure documents; and adopt additional 
regulations focused on contracts for funeral arrangements made on a 
pre-need basis. However, to further the Commission's understanding of 
this evolving industry, the Commission will continue to accept written 
comment and data, as described below.

ADDRESSES: Written comments should refer to ``Matter Number P984407--
Funeral Rule - 16 CFR Part 453'' to facilitate the organization of 
comments. A comment filed in paper form should include this reference 
both in the text and on the envelope, and should be mailed or 
delivered, with two complete copies, to the following address: Federal 
Trade Commission, Office of the Secretary, Room H-135 (Annex K), 600 
Pennsylvania Avenue, NW, Washington, DC 20580. The FTC is requesting 
that any comment filed in paper form be sent by courier or overnight 
service, if possible, because U.S. postal mail in the Washington area 
and at the Commission is subject to delay due to heightened security 
precautions. Comments containing confidential material, however, must 
be filed in paper form, must be clearly labeled ``Confidential,'' and 
must comply with Commission Rule 4.9(c), which requires that the 
comment be accompanied by an explicit request for confidential 
treatment, including the factual and legal basis for the request, and 
must identify the specific portions of the comment to be withheld from 
the public record. The request will be granted or denied by the 
Commission's General Counsel, consistent with applicable law and the 
public interest. See Commission Rule 4.9(c), 16 CFR 4.9(c).
    Comments filed in electronic form should be submitted by visiting 
the Web site at https://secure.commentworks.com/FTC/funeralrule and 
following the instructions on the web-based form. To ensure that the 
Commission considers an electronic comment, you must file it on the 
web-based form at the https://secure.commentworks.com/FTC/funeralrule 
Web site.
    If this notice appears at https://www.regulations.gov, you may also 
file an electronic comment through that Web site. The Commission will 
consider all comments that regulations.gov forwards to it.
    The FTC Act and other laws the Commission administers permit the 
collection of public comments to consider and use in this proceeding as 
appropriate. The Commission will consider all timely and responsive 
public comments that it receives, whether filed in paper or electronic 
form. Comments received will be available to the public on the FTC Web 
site, to the extent practicable, at https://www.ftc.gov. As a matter of 
discretion, the FTC makes every effort to remove home contact 
information for individuals from public comments it receives before 
placing those comments on the FTC Web site. More information, including 
routine uses permitted by the Privacy Act, may be found in the FTC's 
privacy policy, at https://www.ftc.gov/ftc/Privacy.htm.

DATES: This action is effective as of March 14, 2008.

FOR FURTHER INFORMATION CONTACT: Monica Vaca, 202-326-2245 or Craig 
Tregillus, 202-326-2970, Division of Marketing Practices, Bureau of 
Consumer Protection, Federal Trade Commission, Washington, DC 20580.

SUPPLEMENTARY INFORMATION:

I. Introduction

    The Commission, as part of its oversight responsibilities, reviews 
its rules and guides periodically to seek information about their costs 
and benefits and their regulatory and economic impact. The information 
obtained assists the Commission in identifying rules and guides that 
warrant modification or rescission. Where appropriate, as in this 
review, the Commission combines such periodic general reviews with 
reviews seeking information on specific questions about an industry.

II. Background

    The Funeral Rule was issued pursuant to the Commission's authority 
under Sections 5 and 18 of the Federal Trade Commission Act to 
proscribe deceptive unfair acts or practices.\1\ The Commission adopted 
the Funeral Rule on September 24, 1982, and it became fully effective 
on April 30, 1984.\2\ The essential purposes of the Funeral Rule are to 
ensure that consumers receive information necessary to make informed 
purchasing decisions, and to lower existing barriers to price 
competition in the market for funeral goods and services.\3\ 
Subsequently, the FTC amended the Funeral Rule.\4\ The Commission 
published the amended Funeral Rule on January 11, 1994,\5\ and the 
amendments to the Rule took effect July 19, 1994. The Third Circuit 
subsequently affirmed the amended Rule following a challenge by funeral 
industry groups. Pennsylvania Funeral Directors Ass'n, Inc. v. FTC, 41 
F.3d 81, 83 (3d Cir. 1994).
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    \1\ Section 5(a) of the Federal Trade Commission Act, 15 U.S.C. 
45(a), prohibits ``unfair or deceptive acts or practices in or 
affecting commerce.'' Section 18 of the FTC Act, 15 U.S.C. 57a et 
seq., and the provisions of Part 1, Subpart B of the Commission's 
Rules of Practice, 16 CFR 1.7, and 5 U.S.C. 551 et seq. permit the 
Commission to promulgate, modify, and repeal trade regulation rules 
that define with specificity acts or practices that are unfair or 
deceptive in or affecting commerce within the meaning of Section 
5(a).
    \2\ The Rule had two effective dates. Certain portions became 
effective on January 1, 1984 and others on April 30, 1984. 48 FR 
45537, 45538 (Oct. 6, 1983); 49 FR 564 (Jan. 5, 1984).
    \3\ Funeral Rule Statement of Basis and Purpose (``SBP''), 47 FR 
42260 (Sept. 24, 1982).
    \4\ Amended Rule, Advanced Notice of Proposed Rulemaking, 52 FR 
46706 (Dec. 9, 1987). The Rule was amended as a result of a 
regulatory review and amendment proceeding.
    \5\ Amended Funeral Rule Statement of Basis and Purpose 
(``Amended Rule SBP'') 59 FR 1592 (Jan. 11, 1994).
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    The current Rule specifies that it is an unfair or deceptive act or 
practice for a funeral provider to: (1) fail to furnish consumers with 
accurate price information disclosing the costs of each funeral good or 
service used in connection with the disposition of dead bodies; (2) 
require consumers to purchase a casket for direct cremations; (3) 
condition the provision of any funeral good or service upon the 
purchase of any other funeral good or service; or (4) embalm the 
deceased for a fee without authorization. The Rule also specifies that 
it is a deceptive act or practice for funeral providers to misrepresent 
the legal or local cemetery requirements for: (1) embalming; (2) 
caskets in direct cremations; (3) outer burial containers; or (4) 
purchase of any other funeral good or service. The Rule also prohibits 
misrepresentations that so-called ``cash advance'' items are provided 
to the consumer at the same price as that paid by the funeral provider, 
when such is not the case, or that any funeral goods or services will 
delay the natural decomposition of human remains for a long-term or 
indefinite time. The Rule sets forth preventive requirements in the 
form of price and information disclosures to ensure funeral providers 
do not engage in the unfair or deceptive acts or practices described 
above.
    On May 5, 1999, the Commission published a request for comment on 
the Rule, 64 FR 24250 (``FR Notice''), as part of its continuing review 
of its trade regulation rules to determine their current effectiveness 
and impact. The FR Notice sought comment on standard regulatory review 
questions, such as what are the costs and benefits of the

[[Page 13742]]

Rule, what changes in the Rule would increase the Rule's benefits to 
consumers, how those changes would affect compliance costs, and what 
changes in the marketplace and new technologies\6\ may affect the Rule.
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    \6\ By and large, the comments did not address how new 
technologies impact the industry and whether the Rule should be 
amended to reflect such changes.
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    The FR Notice also sought comment on several specific issues, 
including whether the Commission should amend the Rule by: (1) 
expanding the Rule's scope to include cemeteries, crematories, and 
third--party sellers of caskets, monuments, or other goods; (2) 
changing or eliminating the provision that allows funeral providers to 
charge a single non-declinable fee; (3) clarifying the ``casket 
handling fee'' prohibition; (4) revising the General Price List 
requirements; or (5) specifically addressing issues relating to pre-
need sales of funeral goods and services. The FR Notice elicited 153 
written comments.\7\
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    \7\ The commenters included funeral directors, cemetery 
representatives, third-party sellers, monument dealers, consumers, 
consumer organizations, memorial societies, trade associations, and 
regulators. The comments are cited as ``[name of commenter], Comment 
[designated number], at ------.'' For a complete list of the 
commenters, and the abbreviations used to identify each commenter, 
see Appendix 1. All comments are on the public record and are 
available for public inspection. The comments, and some of the 
attachments, are also available in electronic form at the 
Commission's Internet web site. See https://www.ftc.gov/bcp/
rulemaking/funeral/comments/.
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    In addition to soliciting written comment on these issues, 
Commission staff held a public workshop on the Rule on November 18, 
1999. Participants representing 24 different organizations discussed, 
in a roundtable format, whether there is a continuing need for the 
Rule, and, if so, how the Commission could improve the Rule.\8\ 
Additionally, 13 individuals made statements, often relating their own 
personal experiences and beliefs, for the public record.\9\
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    \8\ The transcript of the workshop is cited as ``[name of 
commenter], TR at ------.'' For a complete list of panelists, and 
the abbreviations used to identify each panelist at the workshop, 
see Appendix 2. Transcripts of the workshop conference are on the 
public record and are available for public inspection.
    \9\ For a list of individuals who made statements for the public 
record at the end of the workshop, see Appendix 3.
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III. Standard for Retaining, Amending, or Repealing a Rule

    There is a presumption that the existing rule should be 
retained.\10\ Indeed, a decision to retain any portion of the current 
Rule may be based upon evidence gathered during the original rulemaking 
and the Commission's subsequent enforcement experience, as well as 
evidence adduced during the current rulemaking.\11\ As for changes to a 
rule, Section 18(d)(2)(B) of the FTC Act, 15 U.S.C. 57a(d)(2)(B), 
states that ``[a] substantive amendment to, or repeal of, a rule 
promulgated under subsection (a)(1)(B) shall be prescribed, and subject 
to judicial review, in the same manner as a rule prescribed under such 
subsection.'' Thus, the standard for amending or repealing a section 18 
rule is identical to that for any rule prescribed pursuant to section 
18.
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    \10\ See Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. 
Co., 463 U.S. 29, 41-42 (1983).
    \11\ Amended Rule SBP, 59 FR at 1596.
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    When deciding whether to promulgate or amend a rule, the Commission 
engages in a multi-step inquiry. Initially, the Commission requires 
evidence that an existing act or practice is legally unfair or 
deceptive. The Commission then requires affirmative answers, based upon 
the preponderance of reliable evidence, to the following four 
questions:
    (1) Is the act or practice prevalent?\12\
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    \12\ Indeed, the Commission may not issue a notice of proposed 
rulemaking unless it has ``reason to believe that the unfair or 
deceptive acts or practices which are the subject of the proposed 
rulemaking are prevalent.'' 15 U.S.C. 57a(b)(3). The Commission may 
find prevalence where available information ``indicates a widespread 
pattern of unfair or deceptive acts or practices.'' Id. at 
57a(b)(3)(B). The finding of prevalence will vary depending on the 
circumstances of each rulemaking. See Pennsylvania Funeral Directors 
Ass'n, 41 F.3d at 86-87. Herein, ``widespread'' is used 
interchangeably with ``prevalent.''
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    (2) Does a significant harm exist?
    (3) Would the rule provisions under consideration reduce that harm? 
and
    (4) Will the benefits of the rule exceed its costs?
    See Credit Practices Rule, 49 FR 7740, 7742 (Mar. 1, 1984).\13\ 
Because of the ``potentially pervasive and deep effect'' of FTC Rules, 
American Optometric Ass'n v. FTC, 626 F.2d 896, 905 (D.C. Cir. 1980), 
the Commission carefully scrutinizes the record evidence to determine 
whether the record is reliable and provides sufficient support for 
undertaking an industry-wide rulemaking.
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    \13\ See also 15 U.S.C. Section 57a(d)(1)(A)--(C) (requiring in 
the Statement of Basis and Purpose accompanying the rule a statement 
as to prevalence, the manner in which the acts or practices are 
unfair or deceptive, and the economic effect of the rule). See also 
Federal Trade Commission Organization, Procedures and Rules of 
Practice, 16 C.F.R. 1.14(a) (i)--(iv).
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    To analyze whether the Rule should be amended, repealed, or 
retained, the Commission has evaluated a number of factors, including 
the relative costs and benefits of the Rule, industry compliance, the 
effect on competition and consumer choice, and the adequacy of case-by-
case law enforcement under sections 5 and 13(b) of the FTC Act to 
address existing problems that fall outside the Rule's scope. The 
record evidence from this review, as well as the record established in 
the two prior rulemakings, indicate that the current rule is adequately 
addressing the practices that the Commission found to be deceptive or 
unfair. Furthermore, the record here does not support proposals to 
repeal any portion of the Rule.
    As to amending the Rule, the Commission has considered a number of 
factors. In order to justify embarking on a proceeding as time and 
resource intensive as a rule amendment proceeding under section 18, the 
Commission must assess the likelihood that the evidence in the 
regulatory review record, if developed further, will ultimately meet 
the rigorous standard articulated above. The Commission's assessment is 
that the regulatory review record amassed here is insufficient to 
justify initiating a rule amendment proceeding. The record here does 
not suggest that, were the Commission to initiate a proceeding to adopt 
specific amendments that various commenters have recommended, such a 
proceeding would likely develop evidence that could meet the applicable 
legal standard for amending a rule. As to the six changes to the Rule 
that some commenters advocated: (1) The Rule cannot be expanded to 
cover the substantial portion of cemeteries that are not-for-profit 
entities outside the jurisdiction of the FTC Act, and there is 
insufficient evidence that commercial cemeteries, crematories, and 
third-party sellers of funeral goods are engaged in widespread unfair 
or deceptive acts or practices; (2) The provision allowing funeral 
providers to charge a single non-declinable fee should be retained 
because it is fair to allow charges for the use of a funeral provider's 
services and facilities; (3) Casket handling fees tend to undermine the 
purpose of the Rule and should continue to be disallowed; (4) There is 
insufficient evidence that discount funeral packages, offered in 
addition to itemized services, cause injury to consumers; (5) There is 
insufficient evidence that adding disclosure requirements to those 
already included in the Rule is necessary to remedy any unfair 
practices, and indeed, additional disclosures could obscure essential 
information; and (6) There is insufficient evidence of widespread 
unfair or deceptive practices in the sale of pre-need funeral 
arrangements, and such contracts are already regulated by various state 
laws.

[[Page 13743]]

Therefore, the Commission has determined not to initiate a rule 
amendment proceeding at this time.

IV. Regulatory Review Comments and Analysis

A. The Record Supports Retaining the Rule

    The comments almost unanimously expressed continuing support for 
the Rule, with most comments indicating that the Rule's benefits 
outweigh the costs imposed on funeral providers.\14\ The record also 
indicates that a number of new entrants to the market, primarily in the 
area of casket sales, have brought about increased competition.\15\ The 
Rule further benefits consumers by increasing their awareness of prices 
and options as factors to consider in making funeral purchase 
decisions. Comments indicated that the Rule promotes comparison 
shopping and ultimately may bring about increased competition.\16\ 
Consumers can choose to select fewer or lower-cost funeral goods or 
services and to purchase caskets from a third-party seller.\17\ Indeed, 
the American Association of Retired Persons (``AARP'') stated that 
survey results from 1988 and 1999 suggested an increased trend in 
consumer shopping for funeral goods and services.\18\ Other comments 
also suggested that requiring pre-sale disclosure of certain important 
information is helpful in preventing fraud.\19\
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    \14\ See, e.g., St. George, Comment 2, at 3; Apalm, Comment A-
16, at 1; Bean, Comment 24, at 1; Catlett, Comment 35, at 1; Porter, 
Comment 59, at 1; NFDA, Comment A-56, at 1, 4; Swim, Comment A-61, 
at 1, 3-4; FAMSA, Comment A-76, at 4; NACAA, Comment A-87, at 1. But 
see Sellers, Comment 32, at 1 (stating that rule has increased 
costs); DIG, Comment 54, at 1; Caudle, Comment A-71, at 1; IFDA, 
Comment A-34, at 1 (``Rule has served its purpose and could readily 
be made optional.'').
    \15\ FCSC, Comment 55, at 3 (stating that in Colorado, more 
independent casket sellers compete with funeral homes and a 
``considerable'' number of new small independent providers). See 
also infra note 32.
    \16\ See, e.g., Newcomer, Comment 44, at 2; P. Graham, Comment 
49, at 1; Collier, Comment A-66, at 2 & Attachments (consumer 
surveys); FAMSA, Comment A-76, at 4, 7; Bean, Comment 24, at 1.
    \17\ See, e.g., Newcomer, Comment 44, at 2; BABG, Comment A-13 
at 1; Collier, Comment A-66, at 2 & Attachments.
    \18\ AARP, Comment A-55, at 4-5.
    \19\ See, e.g., Wells, Comment 31, at 1; AARP, Comment A-55, at 
4; NFDA, Comment A-56, at 5.
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    Furthermore, comments generally reflected the view that pre-sale 
disclosure is a cost-effective way to disseminate to consumers material 
information that might otherwise be unavailable. Some comments 
specifically stated that the Rule brought about an organized pricing 
structure for funeral goods and services by unbundling prices.\20\ For 
example, whereas funeral providers used to set prices in bundled 
packages, the General Price List (``GPL'') now requires itemization of 
charges for goods and services separately so that consumers can make 
informed decisions about which goods and services they wish to 
purchase. Because the Rule requires providers to show the GPL to 
consumers, consumers can compare prices as they search for their chosen 
goods and services.\21\
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    \20\ See, e.g., P. Graham, Comment 49, at 1; Neel, Comment A-14, 
at 6; NFDA, Comment A-56, at 10.
    \21\ NFDA, Comment A-56, at 4.
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    On the basis of the commentary received, the Commission has 
determined that the Rule continues to serve its intended purposes. As 
noted above, there is a presumption in favor of retaining the Rule 
because: ``A `settled course of behavior embodies the agency's informed 
judgment that, by pursuing that course, it will carry out the policies 
committed to it by Congress. There is, then, at least a presumption 
that those policies will be carried out best if the settled rule is 
adhered to.' '' See Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. 
Ins. Co., 463 U.S. 29, 41-42 (1983) (internal citation omitted). 
Indeed, the standards and procedures required for a de novo rulemaking 
or a proposed amendment or repeal of a portion of a rule do not apply 
to decisions to retain the Rule.\22\ To the contrary, the Commission's 
decision may be based on evidence gathered during the previous 
rulemaking proceedings and the Commission's subsequent enforcement 
experience.\23\
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    \22\ Amended Rule SBP, 59 FR at 1560 (rejecting the contention 
that a decision to retain the Funeral Rule must be supported by ``a 
new administrative record compiled afresh'').
    \23\ Id.
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    In this regard, the Commission finds that the evidence in the 
current record echoes the evidence cited in support of the Rule in 
1994. For example, in 1994, the evidence showed that the Rule, 
particularly the availability of the price disclosure provisions on the 
GPL, had increased ``price consciousness'' in the industry and among 
consumers.\24\ The Commission concluded that the Rule's unbundling and 
price disclosure provisions on the GPL encouraged competition by 
allowing third-party casket sellers and low-cost funeral homes to enter 
the market.\25\ Further, the Commission found that increased price 
competition emerged, and that consumers additionally benefited from the 
ability to reject items they did not wish to purchase.
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    \24\ Id. at 1599.
    \25\ Id.
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    Also relevant is the Commission's experience with the funeral 
industry. The AARP presented a 1999 survey indicating that numerous 
funeral providers still were failing to provide GPLs, casket price 
lists, and the Statement of Funeral Goods and Services Selected (an 
itemized list of goods and services the consumer purchased).\26\ The 
Commission's own enforcement efforts between 1996 and 2007 indicate a 
more optimistic picture of industry compliance, perhaps indicating an 
increase in compliance rates. Since 1996, the Commission has surveyed 
the compliance of 2,059 funeral homes in 33 states and has referred 286 
funeral homes to the Funeral Rule Offenders Program for certain Rule 
violations, particularly failing to provide GPLs.\27\ The small but 
nevertheless significant amount of non-compliance uncovered during the 
Commission's enforcement work suggests that the Commission must remain 
vigilant to ensure that consumers get the benefit of the Rule's price 
disclosure provisions. In sum, the Rule continues to be necessary and 
continues to advance the goals articulated in the previous rulemaking 
record and the Commission's enforcement experience.
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    \26\ AARP, Comment A-55, at 3 (surveying consumers who had 
arranged funerals).
    \27\ See https://www.ftc.gov/opa/2007/12/funeral.shtm The 
Commission has also been active in preventing anti-competitive 
practices. In March of 2007, Missouri funeral regulators settled 
antitrust charges by the FTC affirming that they will not prohibit 
or discourage the sale or rental of caskets, services, or other 
funeral merchandise by persons not licensed as funeral directors. 
See https://www.ftc.gov/opa/2007/03/missouriboard.shtm.
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B. The Record Does Not Support Amending the Rule

    Numerous comments suggested proposed revisions to the Rule, some to 
increase consumer protections, others to relax requirements of the 
Rule. However, the rule review record does not suggest that a rule 
amendment proceeding would likely yield evidence of prevalent unfair or 
deceptive practices necessary as a basis to amend the Rule. 
Furthermore, it is questionable that the proposed revisions to the Rule 
would remedy the alleged injury.
1. The Record Does Not Support Expanding the Scope of the Rule
    Some comments suggested expanding the Rule to cover crematories, 
third-party sellers of funeral goods, and cemeteries. When the Rule was 
initially adopted, the Commission stated that funeral director 
practices were the focus

[[Page 13744]]

of the rule-making proceeding, and thus, the Rule applies to persons 
who sell funeral goods and services.\28\ The Commission considered 
expanding the definition of funeral provider in the rule review that 
culminated in the 1994 amended Rule.\29\ At that time, several 
commenters proposed changing the Rule to cover entities selling funeral 
goods or services. However, the record evidence did not establish that 
these sellers, particularly cemeteries and crematories, engaged in the 
types of abuses addressed by the Rule (e.g., lack of price disclosure, 
forced bundling of goods and services, and misrepresentations of 
funeral goods and services).\30\ Moreover, at that time, non-
traditional sellers, particularly third-party casket sellers, had just 
recently begun to enter the market for funeral goods, and the record 
lacked evidence of these sellers engaging in unfair or deceptive acts 
or practices. Therefore, the Commission determined not to expand 
coverage to other segments of the funeral industry.\31\
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    \28\ Statement of Basis and Purpose (of the Rule), 47 Fed. Reg. 
42260, 42261-42262, 42285 (1982). Indeed, the FTC Improvements Act 
of 1980 prohibited the Commission from expending funds during fiscal 
years 1980-82 to promulgate a rule that, inter alia, applied to 
persons that sold funeral goods or funeral services. Pub. L. 96-252, 
94 Stat. 374 (codified as amended in scattered sections of 15 
U.S.C.).
    \29\ A Final Staff Report describing the evidence was prepared 
by staff in the Bureau of Consumer Protection in 1990. See Final 
Staff Report to the Federal Trade Commission and Proposed Amended 
Rule (``1990 Staff Report'') at 109-20.
    \30\ Id.
    \31\ Id.
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    Since the prior regulatory review, the Commission has observed an 
increase in competition in the sale of funeral goods and services.\32\ 
Traditional entities in the death care industry such as cemeteries and 
monument dealers are now selling goods outside of their traditional 
product line.\33\ Further, according to the National Casket Retailers 
Association, as of 1999 there were approximately 300 casket stores in 
existence.\34\
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    \32\ See generally, Valerie Kellogg, Who Says This is a Dying 
Business?, Long Island Voice, Mar. 31, 1999, at 6; Liz Johnson, The 
Retail Way to Go: Casket Sellers Latest Factor in Death Care 
Industry, Asbury Park Press (Neptune, NJ), June 5, 1998, at B8; Greg 
Hardesty, Cremation, Casket Stores are Options for Those Trying to 
Cut Funeral Costs, Buffalo News, Nov. 10, 1997, at 2C.
    Recent news reports suggest that increased competition continues 
to flourish. See generally, Craig Harris, Funeral Co-op Offers Lower 
Cost Than Traditional Facilities, The Seattle Post-Intelligencer, 
July 11, 2007; Scott Simonson, Tusconan Offers Alternative to 
Expensive Caskets, The Associated Press State & Local Wire, April 7, 
2006; Tom Long, Casket Sellers Think Outside the Box, The Boston 
Globe, March 23, 2006, at 1; Eddie North-Hager, The Last Discount 
You Will Ever Need, Copley News Service, January 7, 2006; Laguna 
Niguel, At Costco, Bargains for the Bereaved, The Washington Post, 
December 18, 2005, at A23; Tommy Fernandez, Funeral Homes Dig In; 
Discounters Pose Grave New Threat; Putting An End To Cheap Burials, 
Crain's New York Business, October 17, 2005, at 3. See also Melissa 
Bean Sterzick, Casket Retailers Provide Cheaper Options, Dallas 
Morning News, Aug. 6, 2000, at 4A; Death Goes Discount with Casket 
Sales, Associated Press State & Local Wire, June 7, 2000; Casket 
Business Breaks Out of the Box, Patriot Ledger (Quincy, MA), June 2, 
2000, at 25.
    \33\ AARP, Comment A-55, at 10; NSM, Comment A-54, at 6 (stating 
that cemeteries now sell all types of funeral merchandise). See also 
Are Consumers Getting Fair Funeral Deals?, Consumers' Research 
Magazine, May 1, 2000, at 16.
    \34\ AARP, Comment A-55, at 10 (citing National Casket Retailers 
Association Newsletter, April 1999). See also B. Brown, Comment A-
75, at 1 (stating there are approximately 500 third-party casket 
retail stores throughout the United States and Canada).
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    Accordingly, as part of the current Rule review, the Commission's 
FR Notice sought comment on issues surrounding non-traditional sellers 
of funeral goods and services, and also asked whether the Commission 
should expand the definition of ``funeral provider'' in order to bring 
such entities within the scope of the Rule's coverage.\35\ These issues 
were also explored at the workshop along with questions that probed 
whether the requirements should be the same or different for additional 
entities should the Commission decide to expand the Rule's 
coverage.\36\
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    \35\ FR Notice, 64 FR at 24251, 24252-24253.
    \36\ See generally, TR at 22-78.
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a. Cemeteries
    Traditionally, the Rule has not applied to cemeteries because while 
cemeteries often offer funeral goods and a funeral ceremony, as a 
general matter, they do not prepare deceased bodies for burial and so 
do not meet the definition of ``funeral provider.''\37\ Even cemeteries 
that operate as ``funeral providers,'' however, may be exempt from the 
Rule because they are owned by non-profit entities, such as religious 
and fraternal organizations. Indeed, according to a survey presented by 
the International Cemetery and Funeral Association (``ICFA''), some 
states including New York, New Jersey, Massachusetts, Wyoming, 
Connecticut, and Maine prohibit for-profit cemeteries.\38\ Non-profit 
entities fall outside the scope of the Federal Trade Commission Act 
(``FTC Act'') and, therefore, outside the scope of the Rule.\39\ 
Because the FTC Act excludes non-profit organizations from the 
Commission's jurisdiction, even if the Commission were to amend the 
Rule's definition of a ``funeral provider'' in a manner designed to 
bring cemeteries within the scope of the Rule, non-profit cemeteries 
would remain outside the jurisdiction of the Commission and outside the 
scope of the Rule's coverage.
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    \37\ To qualify as a funeral provider, an entity must offer 
funeral goods and two types of funeral services. 16 CFR 453.1(i). 
The two types of funeral services the Rule requires are those used 
to: ``(1) care for and prepare deceased human bodies for burial, 
cremation or other final disposition; and (2) arrange, supervise or 
conduct the funeral ceremony or the final disposition of deceased 
human bodies.'' 16 CFR 453.1(j).
    \38\ See ICFA, Comment A-38, at 18 & Ex. 13 (presenting a survey 
of state regulatory boards). See also GAO Report, Death Care 
Industry, Regulation Varies Across States and by Industry Segment 
(``GAO Report''), August 2003, at 11-12 (New York requires all 
cemeteries to be not-for-profit corporations); Carpenter, Comment A-
30, at 1; Burke, Comment 6, at 1.
    \39\ The FTC Act gives the Commission authority over 
``corporations,'' which is defined as ``any company . . . which is 
organized to carry on business for its own profit or that of its 
members.'' 15 U.S.C. 44, 45(a)(2).
---------------------------------------------------------------------------

    Putting aside non-profit entities, an issue remains as to whether 
the Rule should be amended to cover commercial cemeteries. In response 
to the Commission's FR Notice, nearly all of the funeral providers, 
trade organizations representing funeral homes, third-party sellers of 
funeral or burial goods, regulators, and consumers commenting on this 
issue advocated expansion of the Rule to cover cemetery practices.\40\ 
Many of these commenters urged the Commission to ``level the playing 
field'' because some cemeteries have shifted their practice ``from 
sellers of burial plots to one-stop, full-service funeral providers, 
competing against funeral homes for sales of every conceivable funeral 
good,'' and that ``cemeteries now arrange funerals at on-site chapels, 
or graveside, market cremation services directly to the public from 
their on-site crematories, and sell all types of funeral merchandise 
ranging from caskets and urns to vaults and markers.''\41\
---------------------------------------------------------------------------

    \40\ AARP, Comment A-55, at 15; AIFDF, Comment A-70, at 2; BAFS, 
Comment 64, at 1; Infinity, Comment A-23; Bean, Comment 24, at 1; C. 
Brown, Comment A-45, at 1; CMA, Comment A-40, at 1; EJ, Comment A-
79, at 2, 4; FAMSA, Comment A-76, at 17; FD1292, Comment 22, at 1; 
FMS of GKC, A-52, at 9-10; IFDA, Comment A-34 at 11; IFDA of DC, 
Comment 57, at 1; IOGR, Comment A-27; FEA, Comment A-10; 
Hendrickson, Comment A-67, at 1; Lamb, Comment A-68, at 1; MBNA, 
Comment A-57, at 3; McCune, Comment A-32; McQueen, Comment 27, at 2; 
Nelsen, Comment A-46; NFDA, Comment A-56, at 56; Mayor Norquist, 
Comment A-60 at 1; NSM, Comment A-54, at 2; NYSMBA, Comment A-35; 
Oswald, Comment 51, at 1; Pinkerton, Comment A-63, at 3; Richardson, 
Comment A-37 at 1; Scott, Comment 47, at 1; Spear, Comment A-06 at 
1; St. George, Comment 2, at 3; Vassar, Comment 62, at 1; Walmck, 
Comment A-42, at 1.
    \41\ NSM, Comment A-54, at 6-8 (citing specific examples). See 
also IFDA of DC, Comment 57, at 1 (urging the Commission to ``level 
the playing field''); NJF&MA, Comment 58; AARP, Comment A-55, at 15; 
Pinkerton, Comment A-63, at 3.
---------------------------------------------------------------------------

    Inasmuch as the Rule defines ``funeral providers,'' to include 
``any person,

[[Page 13745]]

partnership or corporation that sells or offers to sell funeral goods 
and funeral services to the public,'' the playing field is level.\42\ 
While it has been the traditional province of funeral homes to operate 
in the manner described by the Rule, the Rule is broad enough to 
encompass commercial cemeteries, crematories, or other businesses that 
market funeral goods and both types of funeral services to the 
public.\43\
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    \42\ 16 CFR 453.1(i) (emphasis added). Funeral goods are ``the 
goods which are sold or offered for sale directly to the public for 
use in connection with funeral services.'' 16 CFR 453.1(h).
    \43\ See supra note 37.
---------------------------------------------------------------------------

    Another group of commenters asserted that cemeteries engage in the 
``tying'' and ``bundling'' of burial goods and funeral services, that 
they fail to make adequate price disclosures, or that they engage in 
other practices prohibited by the Rule. These comments urged the 
expansion of the Rule to cover cemeteries by changing the definition of 
funeral provider to anyone who sells or offers to sell ``funeral goods 
or funeral services to the public.'' In particular, the comments argued 
that a number of cemeteries refuse to permit consumers to purchase 
monuments and grave markers from another party, refuse to permit the 
installation of monuments and grave markers by third parties, or, 
alternatively, charge a ``handling'' fee for monuments and grave 
markers purchased from or installed by third parties.\44\ Another 
comment further stated that some cemeteries require consumers to 
purchase grave liners, urn vaults, or expensive cremation 
containers.\45\ AARP's comment provided statistics indicating that 29% 
of consumers it surveyed reported that cemeteries made representations 
regarding the protective or preservation qualities of certain burial 
goods.\46\ Another comment argued that cemeteries engage in unfair 
practices in the sale of pre-need arrangements.\47\
---------------------------------------------------------------------------

    \44\ MBNA, Comment A-57, at 6.
    \45\ NSM, Comment A-54, at 16-18. In fact, the Rule acknowledges 
that some cemeteries require outer burial containers so that the 
grave will not sink in. See 16 CFR 453.3(c)(2).
    \46\ AARP, Comment A-55, at 4. The same AARP study showed that 
even those covered by the Rule apparently continue to violate it by 
making representations about the preservative value of a casket. The 
AARP survey reported that such representations were made to 34% of 
surveyed consumers who had viewed a casket.
    \47\ IFDA, Comment A-34, at 12
---------------------------------------------------------------------------

    Other commenters opposed expansion of the Rule to cover cemetery 
practices, asserting that there is no evidence of widespread abuse in 
the cemetery industry.\48\ ICFA accurately observed that the Commission 
received very few complaints concerning cemeteries in the four years 
preceding this review, and pointed to survey data showing that 
consumers view cemeteries very favorably.\49\ It also noted that unlike 
funeral homes which are run almost exclusively as for-profit 
businesses, many cemeteries are not-for-profit organizations run by 
religious groups, municipalities, and fraternal organizations.\50\ 
Other commenters suggested that the cemetery industry is adequately 
regulated, or should be exclusively regulated, by the states.\51\
---------------------------------------------------------------------------

    \48\ Carpenter, Comment A-30, at 1; ICFA, Comment A-38, at 2; 
Neel, Comment A-14, at 3-4; WCA, Comment A-72, at 1; VA CB, Comment 
A-20, at 1.
    \49\ ICFA, Comment A-38, at 1-2 & Attachment at 11. As another 
commenter pointed out, however, other reasons may exist for the lack 
of complaints. See Bean, Comment 24 at 1.
    \50\ See supra note 38.
    \51\ VA CB, Comment A-20 at 1-2; SCI, Comment A-59, at 1-2. 
According to a report issued by the General Accounting Office in 
2003, 34 out of 44 states responding to its survey reported that 
they regulate cemeteries that are not run by religious organizations 
or non-profit groups. See supra note 38.
---------------------------------------------------------------------------

    The Commission does not believe that the record developed during 
the regulatory review would justify initiating a rule amendment 
proceeding to expand the scope of the Rule to cover commercial 
cemeteries not operating as ``funeral providers.'' First, there is 
insufficient evidence that commercial cemeteries are engaged in 
widespread practices that injure consumers. Second, even if expanding 
the scope of the Rule would benefit consumers who use commercial rather 
than non-profit cemeteries, the lopsided application of the Rule to 
some, but not all, cemeteries would likely prove unduly costly. There 
would be confusion among the general public as to what type of 
information they could expect to receive and what rights they have to 
purchase goods from third parties. To the extent additional 
requirements are intended to allow consumers to compare costs among 
cemeteries, the inconsistent application of the Rule to some cemeteries 
and not others could make such comparisons impossible or impractical. 
Thus, on the basis of this record, the Commission declines to embark on 
a proceeding to expand the scope of the Rule to cover cemeteries that 
currently are not covered.
b. Third-Party Sellers of Funeral Goods
    Nearly all of the regulators, funeral providers, and consumer 
organizations commenting on this issue suggested that the Rule should 
be expanded to cover third-party sellers of funeral goods, e.g., casket 
retailers and monument dealers.\52\ More specifically, some commenters 
advocated that third-party sellers be required to provide price lists, 
based on an argument that the Commission should ``level the playing 
field.''\53\ Third-party sellers, on the other hand, argued that they 
already provide price lists.\54\ Furthermore, they argued that there is 
no evidence of widespread consumer abuse in this part of the industry 
that would warrant such expansion of the Rule.\55\
---------------------------------------------------------------------------

    \52\ See, e.g., CA C&FP-1, Comment A-11, at 2; NJ DCA, Comment 
56, at 1; WI DR&L, Comment 5, at 1; KS OAG, Comment A-77, at 1; 
Mayor Norquist, Comment A-60, at 2; Senator Schumer, Comment 19, at 
1; NFDA, Comment A-56; NSM, Comment A-54, at 2, 20.
    \53\ Stradling, Comment 4, at 1 (expressing concern that 
consumers have no reasonable basis to compare prices and services of 
all the different entities in the death care industry).
    \54\ Gray, Comment 10b, at 1; Lamb, Comment A-68, at 1; St. 
George, Comment 2, at 2.
    \55\ BABG, Comment A-13, at 1; Oswald, Comment 51, at 1; Rapozo, 
Comment 18, at 1; Rubin, Comment A-47, at 1. See also Swim, Comment 
A-61, at 2.
---------------------------------------------------------------------------

    As discussed below, the Commission concludes that expansion of the 
Rule to cover third-party sellers is not warranted. The record is 
bereft of evidence indicating significant consumer injury caused by 
third-party sellers. Indeed, third-party retailers have a strong 
economic incentive to display their prices to the public at large 
because offering a lower price is the primary way they compete against 
funeral providers for sales of funeral goods, such as caskets.
c. Crematories; Crematory Practices
    The Rule expressly applies to crematories that provide cremation 
services and sell or offer to sell funeral goods to the public.\56\ In 
particular, the Rule prohibits all crematories from requiring consumers 
to purchase a casket for direct cremation.\57\ However, the Rule does 
not apply to crematories that do not sell or offer to sell funeral 
goods. In response to the FR Notice, the Commission received very few 
comments regarding crematories or crematory practices not currently 
covered by the Rule. The Cremation Association of North America 
(``CANA''), a trade organization with over 1,000 members, pointed out 
that many of its members are already covered by the Rule.\58\
---------------------------------------------------------------------------

    \56\ See 16 CFR 453.4(a)(1).
    \57\ 16 CFR 453.4(a)(1).
    \58\ CANA, Comment A-58, at 3. CANA's members include 
crematories and suppliers to the crematory segment of the death care 
industry. Id.
---------------------------------------------------------------------------

    As a whole, the record does not suggest that crematories engage in 
unfair or deceptive practices that are prevalent and that would justify 
proposing to expand the Rule's regulation of crematories. Nevertheless, 
some comments described the allegedly unfair

[[Page 13746]]

practices of some funeral providers in connection with cremation 
services they offer.\59\ Other comments discussed pricing and antitrust 
concerns.\60\ Because there is insufficient evidence to support a 
finding that crematories engage in widespread acts or practices that 
injure consumers, the Commission declines to propose expansion of the 
Rule's coverage of crematories.
---------------------------------------------------------------------------

    \59\ FAMSA, for example, opined that some funeral providers that 
also offer cremation services charge a fee for identifying the body 
prior to cremation, and fail to offer low-cost alternative 
containers for cremated remains. Comment A-76, at 13-14. See also C. 
Graham, Comment 42, at 1; Greenlee, Comment 12, at 1; McQueen, 
Comment 27, at 1; Pinkerton, Comment A-63, at 2; SCI, Comment A-59; 
Vassar, Comment 62, at 2-3. Finally, a few comments stated that the 
Rule should be expanded to include all members of the death care 
industry, expressly or implicitly including crematories that offer 
only funeral services (but not funeral goods) to the public. FEA, 
Comment A-10, at 5,7; IFDA of DC, Comment 57, at 1; NSM, Comment A-
54, at 2.
    \60\ For example, the Bay Area Funeral Society (``BAFS''), a San 
Francisco-based trade organization that represents different members 
of the death care industry, including some crematories, expressed 
the view that large corporations are monopolizing the crematory 
industry. BAFS, Comment 64, at 1. The Commission also received one 
comment from a consumer complaining about the price paid for 
cremation. Ordes, Comment A-28, at 1-2.
---------------------------------------------------------------------------

2. The Record Does Not Support Eliminating the Non-declinable Fee
    Under the Funeral Rule, funeral providers can charge consumers only 
one non-declinable fee - for the ``services of funeral director and 
staff.''\61\ The non-declinable fee grew out of the Rule's unbundling 
provisions, which required funeral providers to itemize prices. These 
unbundling requirements meant that funeral providers could no longer 
sweep into the price of a funeral package their fee for the basic 
services they perform in connection with planning a funeral. By 
including a Rule provision expressly permitting providers to charge a 
basic services fee, the Commission acknowledged that ``irrespective of 
the combination of goods and services [a consumer selects], the very 
process of selection itself will involve use of the funeral provider's 
services.''\62\ The Commission made several amendments to this 
provision in 1994, designed to ``clarify the Commission's intent and 
providers' obligations in distinguishing non-declinable service fees 
from other service charges associated with providing separately listed, 
declinable goods and services.''\63\ As it stands today, the basic 
services fee is to include only the charges for a funeral provider's 
basic services that are associated with arranging and planning a 
funeral (and a portion of overhead, if the provider chooses to include 
it).\64\
---------------------------------------------------------------------------

    \61\ 16 CFR 453.4(b)(1)(ii). Services of funeral director and 
staff (``basic services fee'') is defined as:
    [t]he basic services, not to be included in prices of other 
categories in Sec.  453.2(b)(4), that are furnished by a funeral 
provider in arranging any funeral, such as conducting the 
arrangements conference, planning the funeral, obtaining necessary 
permits, and placing obituary notices.
    16 CFR 453.1(p).
    \62\ SBP, 47 FR at 42282.
    \63\ Amended Rule SBP, 59 FR at 1607. The amended Rule further 
explains that ``[t]he changes are designed to promote industry 
compliance and consumer understanding of the services they must 
purchase and those they may decline, without substantially altering 
providers' obligations. The amendment permitting providers to add 
the phrase `and overhead' to the non-declinable service fee 
disclosure responds to industry's stated concern that consumers may 
be deceived by service fee price disclosures that fail to disclose a 
charge for overhead, and clarifies for providers that the non-
declinable fee can include overhead not allocated to other 
charges.'' Id. at 1609 (footnote omitted).
    \64\ The Commission's 1994 Rule amendments added an optional 
phrase ``and overhead'' to its basic services fee disclosure 
requirement, allowing funeral providers to decide whether or not to 
include the phrase in its required disclosure. 16 CFR 
453.2(b)(4)(iii)(C)(1) and (2).
---------------------------------------------------------------------------

    Comments that discussed the efficacy of the non-declinable fee are 
polarized. Comments from individuals, consumer groups and third-party 
sellers generally opposed the basic services fee, while comments from 
funeral homes and trade associations supported it. The most common 
arguments espoused by those opposing the fee are that the fee is too 
expensive and confusing, and provides little consumer benefit.\65\ The 
Funeral and Memorial Societies of America (``FAMSA''--predecessor of 
the Funeral Consumers Alliance), for instance, indicated that the basic 
services fee on average amounts to almost 25% of the total funeral 
bill. FAMSA contended that most of the items included in this fee 
belong elsewhere on the GPL, and that the non-declinable fee has turned 
into another form of bundling. As a result, according to FAMSA, the 
non-declinable fee has essentially undermined the original Rule's 
purpose of promoting ``full itemization and informed consumer 
choice.''\66\ The Funeral and Memorial Society of Greater Kansas City 
(``FMS of GKC'') conveyed concern that the fee is a ``wild card that 
most families know nothing about,'' and many consumers inquiring about 
prices over the telephone do not know even to ask about the fee.\67\ 
FMS of GKC advocated eliminating the basic services fee or, at the very 
least, clarifying exactly what is included in the fee.\68\ All in all, 
most of the commenters that opposed the current formulation of the 
basic services fee encouraged the Commission either to set limits on 
the fee or eliminate it completely.\69\
---------------------------------------------------------------------------

    \65\ See, e.g., FAMSA, Comment A-76, at 20-21; FMS of GKC, 
Comment A-52, at 9-10; Swim, Comment A-61, at 3; St. George, Comment 
2, at 2. The comment submitted by the Funeral and Memorial Society 
of Greater Kansas City included survey information that demonstrates 
a wide disparity in basic services fees in the Kansas City market. 
According to its 1998 survey, the basic services fees ranged from 
$690 to $2,770. Comment A-52, at 9-10. The survey does not reveal 
whether different costs to the funeral home or different sets of 
services account for the price disparity.
    \66\ FAMSA, Comment A-76, at 25.
    \67\ FMS of GKC, Comment A-52.
    \68\ Id. At the public workshop, FMS of GKC's representative 
opined that due to the problems inherent in the basic services fee, 
it is ``not in the consumer's best interests to have this fee 
here.'' Bern-Klug, TR at 219-220. Another commenter who vehemently 
opposed the non-declinable fee insists that it is ``an anti-consumer 
loophole through which the Funeral Industry has driven a billion 
dollar truck.'' Hale-Rowe, Comment 34, at 1.
    \69\ See, e.g., Sandy, Comment 33, at 1; Infinity, Comment A-23, 
at 1; FMS of GKC, Comment A-52, at 9.
---------------------------------------------------------------------------

    The vast majority of funeral homes and trade organizations, as well 
as a few individuals and consumer groups, supported the non-declinable 
fee provision. Most supporters offered various economic arguments to 
defend the non-declinable fee. Some commenters point to the rationale 
behind the basic services fee, which is to impose a fixed charge for 
the most commonly-utilized services provided to most customers.\70\ 
Another commenter noted that because it costs money for funeral 
providers to maintain their funeral homes (and pay for staff to be on-
call 24 hours per day), consumers who utilize their facilities and 
services must pay for them.\71\ Finally, Peter Stefan, a Massachusetts 
funeral director, observed that funeral providers have to be able to 
recover their costs to stay in business, but additionally reminded 
critics that because the Rule has opened the door to competition in the 
sale of funeral goods, costs no longer can be recovered by simply 
adding them on to casket prices.\72\
---------------------------------------------------------------------------

    \70\ See, e.g., C. Graham, Comment 42, at 2; Pray, Comment 46, 
at 1; Stefan, Comment A-41, at 10; SCI, Comment A-59, at 2. See also 
Carmon, TR at 207-213 (discussing basic services that apply to all 
situations).
    \71\ Apalm, Comment A-16, at 1. The commenter also noted that 
some people balk at the fee, but likens their objections to what he 
would consider an unreasonable expectation: being able ``to shop at 
Saks and pay K-Mart (sic) prices.''
    \72\ Stefan, Comment A-41, at 10.
---------------------------------------------------------------------------

    Other commenters agreed that economic theory and basic efficiency 
support maintaining the non-declinable fee. One commenter surmised that 
if the basic services fee were eliminated, funeral providers would have 
to spread their costs over other items, which, he believed, would lead 
to higher charges.\73\ Commenter Charles Graham,

[[Page 13747]]

a licensed funeral director and embalmer, also contended that 
prohibiting the non-declinable fee would require costs once again to be 
spread over other services and merchandise. He further asserted that 
the basic services fee allows consumers the widest choice among 
options, gives consumers the advantage of paying for common costs only 
once, and enables funeral providers to recoup their costs even when 
consumers use their own goods, as allowed by the Rule.\74\ Finally, the 
International Order of the Golden Rule (``IOGR''), looked at the bundle 
of basic services included in the non-declinable fee, and noted that 
the fee ``assures a family that the funeral home staff will take 
responsibility for all aspects of planning a funeral.''\75\
---------------------------------------------------------------------------

    \73\ McCune, Comment A-32, at 1 (predicting that funeral 
providers would allocate more than 100% of the basic services fee to 
other charges to compensate for the fact that consumers will choose 
some services but not others).
    \74\ Id.
    \75\ IOGR, Comment A-27, at 2.
---------------------------------------------------------------------------

    After careful consideration, the Commission has determined not to 
amend the basic services fee provisions in the Rule. The purpose of the 
Rule is not to regulate prices, nor does an increase in the price of 
the basic services fee necessarily indicate an unfair practice. 
Regardless of the particular funeral arrangements a consumer seeks, 
there are a number of fixed costs related to funeral arrangements for 
which funeral providers are entitled to seek payment when their 
services and facilities are used. Prior to the adoption of the Rule, 
all costs were bundled into one package, none of which consumers could 
decline. By allowing a basic services fee, the Rule ensures that 
consumers get the benefit of choosing goods and services among a 
variety of options--including the option to purchase goods from the 
funeral provider's competitors--and paying for common costs only once. 
The evidence does not support a finding that the non-declinable basic 
services fee causes injury to consumers, and therefore, amending this 
portion of the Rule is unwarranted.
3. The Record Does Not Support Altering the ``Casket Handling Fee'' 
Prohibition
    The 1994 Rule amendment clarified the Commission's ``unbundling'' 
provision, by prohibiting a funeral provider from charging any fee that 
is not for either the basic services of the funeral director and staff 
or the specific items selected by the consumer. This limitation on 
permissible fees served to prohibit a funeral provider from charging 
consumers a ``casket handling fee'' for using a casket purchased 
elsewhere. The Commission determined that the clarification was 
necessary because the imposition of substantial casket handling fees 
was undermining the Rule's unbundling requirements, and it was 
frustrating the Rule's goal of encouraging competition.
    The Commission's 1999 FR Notice solicited comment on whether the 
1994 amendments were effective in prohibiting casket handling fees. 
Most comments that addressed this issue expressed the view the 1994 
amendments eliminated ``casket handling fees'' per se.\76\ However, 
some commenters advocated the reinstatement of casket handling fees to 
allow funeral providers to recoup costs of handling caskets purchased 
from third-party sellers.
---------------------------------------------------------------------------

    \76\ See, e.g., McQueen, Comment 27, at 1; Sandy, Comment 33, at 
1; DIG, Comment 54, at 7; Neel, Comment A-14, at 3.
---------------------------------------------------------------------------

    Some funeral providers agreed that the ban on casket handling fees 
benefits consumers and results in increased competition and consumer 
choice.\77\ A number of other funeral providers contended that the 
prohibition on casket handling fees is detrimental to funeral 
providers. They argued that there are real costs associated with 
accepting delivery of a casket as well as preparing the casket for 
use.\78\ Commenters contended that when a casket is purchased from a 
source other than the funeral provider, the provider has no mechanism 
to recoup the preparation costs, short of adding those costs to the 
basic services fee.\79\ Some of these commenters, therefore, suggested 
that a reasonable casket handling fee should be allowed.\80\ Some 
commenters who advocated allowing a reasonable casket handling fee 
argued that such a fee should apply to any casket used in a funeral, 
regardless of whether it is purchased at the funeral home or 
elsewhere.\81\
---------------------------------------------------------------------------

    \77\ See, e.g., McQueen, Comment 27, at 1; P. Graham, Comment 
49, at 2.
    \78\ See, e.g., FEA, Comment A-10, at 2-3, 9, Attachment 
(identifying the following services: unloading the casket, moving it 
into a room, and inspecting it); IFDA, Comment A-34, at 2 
(suggesting a fee between $100 and $300).
    \79\ See, e.g., FEA, TR at 100-102.
    \80\ See, e.g., IFDA of DC, Comment 57, at 2; DeBor, Comment A-
9, at 1 (if reasonable casket handling fee is not permitted, 
creative packaging will likely continue); FEA, Comment A-10, at 2-3, 
9 (without allowing a reasonable casket handling fee, casket sellers 
have shifted ``some of their costs to funeral homes for handling, 
inspection and movement of the casket''); Apalm, Comment A-16, at 1; 
IOGR, Comment A-27, at 1; IFDA, Comment A-34, at 2, Attachment.
    \81\ See, e.g., Newcomer, Comment 44, at 7.
---------------------------------------------------------------------------

    The Commission does not propose amending the Rule to allow casket 
handling fees. The arguments that funeral providers need the fees as a 
mechanism to recover lost profit were raised during the last Rule 
amendment proceeding, and the Commission rejected them.\82\ Though some 
commenters contended that there are costs associated with accepting 
delivery of a casket from a third-party seller, the record is 
insufficient to support a proposal to repeal this provision of the 
Rule. Indeed, at least two funeral providers commenting on this issue 
supported the ban on casket handling fees, noting that funeral 
providers accept delivery of caskets from other funeral homes routinely 
and that costs are already included in the service fees.\83\ The record 
from the previous review also showed that the costs, if any, associated 
with preparing a third-party casket are normally small and are already 
included in the service fees.\84\
---------------------------------------------------------------------------

    \82\ Amended Rule SBP, 59 FR at 1605.
    \83\ McQueen, Comment 27, at 1; P. Graham, Comment 49, at 2. 
These commenters also opined that allowing casket handling fees 
would cause consumers injury. See also Neel, Comment A-14, at 3 
(funeral home owner stating casket handling fees are unfair to 
consumers and constitute profit recovery fees).
    \84\ 1990 Staff Report at 123 & n. 614.
---------------------------------------------------------------------------

4. The Record Does Not Support Eliminating Discount Packages
    In contrast to commenters who supported reinstating casket handling 
fees are those who contended that the Commission should regulate the 
use of discount packages which, these commenters asserted, undermine 
the casket handling fee prohibition.\85\ Some commenters pointed to 
instances of funeral providers inflating their itemized prices so that 
they could offer package ``discounts'' which most consumers choose.\86\ 
Some casket retailers argued that widespread use of ``sham'' discount 
packages, especially when the discount packages are

[[Page 13748]]

available only with a casket purchased from the funeral provider, has 
diminished the benefits of the prohibition on casket handling fees.\87\ 
A few commenters stated that discount packages should be prohibited 
completely or, alternatively, that the Commission should regulate the 
discount package price.\88\ Another view, taken by one workshop 
participant, is that packages are ``an appropriate marketing tool,'' 
but they should not be tied to the purchase of a casket.\89\ The 
National Funeral Directors Association (``NFDA'') stated that 25% of 
its members offer discounts on funeral packages, and 14% of its members 
offer discount packages tied to the purchase of caskets.\90\
---------------------------------------------------------------------------

    \85\ In addition, some third-party sellers contended that some 
funeral providers make allegedly deceptive statements or use unfair 
practices in order to increase their casket sales. For instance, one 
commenter reported that some funeral providers have refused to 
extend credit to consumers who do not purchase a casket from them, 
and that other providers have intentionally damaged caskets that 
their customers have purchased fr