Regulations Under the Fur Products Labeling Act, 30445-30459 [2014-11047]
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Federal Register / Vol. 79, No. 102 / Wednesday, May 28, 2014 / Rules and Regulations
thirds of the producers who participated
in a referendum on the question of
approval and who, during the period of
August 1, 2012, through July 31, 2013,
have been engaged within the
production area in the production of
such kiwifruit, such producers having
also produced for market at least twothirds of the volume of such commodity
represented in the referendum.
Order Relative To Handling
It is therefore ordered, That on and
after the effective date hereof, all
handling of kiwifruit grown in
California shall be in conformity to, and
in compliance with, the terms and
conditions of the said order as hereby
amended as follows:
The provisions of the proposed
marketing order amending the order
contained in the proposed rule issued
by the Administrator on July 29, 2013,
and published in the Federal Register
on August 2, 2013 (78 FR 46823), shall
be and are the terms and provisions of
this order amending the order and are
set forth in full herein.
List of Subjects in 7 CFR Part 920
Marketing agreements, Kiwifruit,
Reporting and recordkeeping
requirements.
For the reasons set forth in the
preamble, 7 CFR part 920 is amended as
follows:
PART 920—KIWIFRUIT GROWN IN
CALIFORNIA
1. The authority citation for 7 CFR
part 920 continues to read as follows:
Authority: 7 U.S.C. 601–674.
2. Revise § 920.27 to read as follows:
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§ 920.27
Alternate members.
An alternate member of the
committee, during the absence of the
member for whom that individual is an
alternate, shall act in the place and
stead of such member and perform such
other duties as assigned. In the event
both a member and his or her alternate
are unable to attend a committee
meeting, the committee may designate
any other alternate member from the
same district to serve in such member’s
place and stead. In the event of the
death, removal, resignation, or
disqualification of a member, the
alternate of such member shall act for
him or her until a successor for such
member is selected and has qualified.
■ 3. Revise § 920.32(a) to read as
follows:
§ 920.32
Procedure.
(a) Eight members of the committee,
or alternates acting for members, shall
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§ 920.45
Contributions.
The committee may accept voluntary
contributions, but these shall only be
used to pay expenses incurred pursuant
to § 920.47 and § 920.48. Furthermore,
such contributions shall be free from
any encumbrances by the donor, and the
committee shall retain complete control
of their use.
■ 5. Add § 920.47 to read as follows:
§ 920.47 Production and postharvest
research.
The committee, with the approval of
the Secretary, may establish or provide
for the establishment of projects
involving research designed to assist or
improve the efficient production and
postharvest handling of kiwifruit.
■ 6. Add § 920.48 to read as follows:
§ 920.48 Market research and
development.
The committee, with the approval of
the Secretary, may establish or provide
for the establishment of marketing
research and development projects
designed to assist, improve, or promote
the marketing, distribution, and
consumption of kiwifruit.
■
■
constitute a quorum and any action of
the committee shall require the
concurring vote of the majority of those
present: Provided, That actions of the
committee with respect to expenses and
assessments, production and
postharvest research, market research
and development, or recommendations
for regulations pursuant to §§ 920.50
through 920.55, of this part shall require
at least eight concurring votes.
*
*
*
*
*
■ 4. Add § 920.45 to read as follows:
Dated: May 22, 2014.
Rex A. Barnes,
Associate Administrator, Agricultural
Marketing Service.
[FR Doc. 2014–12327 Filed 5–27–14; 8:45 am]
BILLING CODE P
FEDERAL TRADE COMMISSION
16 CFR Part 301
Regulations Under the Fur Products
Labeling Act
Federal Trade Commission.
Final rule.
AGENCY:
ACTION:
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
SUMMARY:
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30445
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
1 15
2 16
U.S.C. 69, et seq.
CFR Part 301.
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Federal Register / Vol. 79, No. 102 / Wednesday, May 28, 2014 / Rules and Regulations
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
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
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
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
3 15
U.S.C. 69b(2); 16 CFR 301.2(a).
CFR 301.40.
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.
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).
12 The policy statement is available at
www.ftc.gov/system/files/documents/public_
statements/299821/guaranty_policy_statement.pdf.
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marketing of the products would violate
the Act or Rules.
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
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
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:
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
13 15
CFR 301.0.
U.S.C. 69e(b).
17 32 FR 6023 (Apr. 15, 1967).
18 Public Law 111–313, section 2.
19 16 CFR 301.39(a).
20 Public Law 111–313, at section 3.
16 15
Fmt 4700
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.
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 raccoonlike 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
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’’).
On September 17, 2012, the
Commission published the first of two
Notices of Proposed Rulemaking
at section 4.
further discussion of the program, see
www.ftc.gov/opa/2011/07/regreview.shtm.
23 76 FR 13550.
24 26 FR 10446 (Nov. 4, 1961).
25 Citations to the Hearing Transcript are ‘‘Tr. at
[page], ln. [line number].’’ See https://www.ftc.gov/
sites/default/files/filings/initiatives/376/
111206furtranscript.pdf.
22 For
15 16
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D. Procedural Background
21 Id.
U.S.C. 69e(a).
14 Id.
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In addition, TFLA required the
Commission to initiate a review of the
Name Guide.21
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(‘‘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.
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.
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
26 77
FR 57043 (Sept. 17, 2012).
FR 36693 (Jun. 19, 2013).
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 [ ]’’;
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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.
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,
A. ‘‘Asiatic Raccoon’’ vs. ‘‘Raccoon
Dog.’’
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
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
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
comments to the Supplemental NPRM are referred
to as ‘‘[ ] comment to the Supplemental NPRM at
[ ].’’
29 BCI comment at 1.
30 FICA comment at 3 (quoting 77 FR at 57048).
31 FICA comment at 3.
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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
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:
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
32 FICA
comment at 3 (citation omitted).
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/.
34 Saga comment at 1.
35 Id.
36 FICA comment at 3.
33 Id.
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has created immense consumer
confusion. . . .37
appropriate to call the kangaroo rat a ‘‘small
desert kangaroo[.’’] 40
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
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
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
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:
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
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37 BCI
comment at 1.
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.
39 HSUS comment at 2.
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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 AmericanEnglish 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
40 Id.
at 3 (emphasis in original).
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.
43 NYC Bar comment at 12.
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.
41 Congressman
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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
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
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
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
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 industrycoined name.’’ 53 NYC Bar also
criticized ‘‘Asiatic Raccoon,’’
explaining:
The word ‘‘Asiatic’’ means ‘‘Asian.’’
Nyctereutes procyonides [sic] is not a raccoon
(Procyon lotor and Procyon cancrivorus).
48 NYC
Bar comment at 6 (citations omitted).
49 HSUS
comment at 6.
Bar comment at 7–8.
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.’’).
52 HSUS comment at 9.
53 Moran comment at 1.
50 NYC
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Using the adjective ‘‘Asiatic’’ to modify the
word ‘‘raccoon’’ creates a fictitious and nonexistent type of raccoon.54
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
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
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
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
54 NYC
Bar comment at 10.
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’’).
56 Id. at 7.
57 Id. at 8.
58 Id. at 9 (emphasis in original).
59 HSUS comment at 9 (emphasis in original).
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.
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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
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 EUlevel 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
The Association further noted that
allowing ‘‘Finnraccoon’’ would
harmonize United States and European
Union regulatory standards.64
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
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
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
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
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
67 Saga
62 NYC
Bar comment at 12.
63 Finnish Fur Breeders’ Association comment at
1.
64 Id.
at 1.
65 Finland
Ministries of Foreign Affairs and of
Agriculture and Forestry comments at 1.
66 Id. at 1.
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comment at 2.
at 3.
69 BCI comment at 2.
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.
68 Id.
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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
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
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
73 AAFA
comment at 2.
comment at 1–2.
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.
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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
In addition, individual commenter
‘‘Gremmo’’ suggested amending
§ 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
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
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
80 FDRA
comment at 1; ITA comment at 1.
comment.
82 15 U.S.C. 69h(a)(2) (emphasis added).
83 HSUS comment at 11.
84 Id. at 12.
85 Id. at 12.
81 Gremmo
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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:
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
AAFA further explained that the burden
for companies is not only filing the
guaranty, but also submitting copies to
other buyers and retailers.88
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
NRF also opposed the proposal as
overly burdensome. It reported that
‘‘[o]ne national retailer has estimated
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.
87 AAFA comment to Supplemental NPRM at 2.
88 Id. at 1.
89 FICA comment to Supplemental NPRM at 2.
90 Id. at 2.
91 Id. at 2.
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that . . . the annual renewal
requirement would cost around $60,000
per year. . . .’’ 92
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
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
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.
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A. Name Guide
This section first discusses why the
Commission is retaining the name
‘‘Asiatic Raccoon.’’ It then responds to
92 NRF comment to Supplemental NPRM at 2
(citation omitted).
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.
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 nongermane 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.
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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.
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
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.
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.’’).
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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.
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
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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 tailwagging.
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
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
FR at 57048.
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).
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.
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.
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
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’’
100 77
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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.’ ’’).
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.
111 HSUS Mass Mail comment (#00034), file
0034–85308, Justus Comment.
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‘‘so consumers will know that they are
wearing man[’]s best friend on their
backs.’’ 112
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
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
112 HSUS Mass Mail comment (#00034), file
0034–85304, Abbott Comment.
113 15 U.S.C. 69e(a).
114 Tr. at 13, ln. 6–9; Tr. at 13–14, ln. 21–6.
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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.
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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 § 301.11 and
§ 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
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
117 NYC Bar comment at 3, citing Bill Summary
S. 1076.
118 Bill Text of S. 1076 as introduced, available
at: https://www.gpo.gov/fdsys/pkg/BILLS111s1076is/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)).
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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
The NPRM also raised practical
concerns that the commenters did not
address. Specifically, the commenters
justify the alternate name on
purportedly superior European furfarming 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
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
121 Unlike ‘‘Asiatic Raccoon,’’ ‘‘Finnraccoon’’
does not have a long history in the marketplace.
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.
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Commission has independently verified
with FWS.123
sale or resale, and until sold and
delivered to the ultimate consumer.’’
B. Labeling Amendments
b. Label Text Requirements
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.
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 § 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 § 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 § 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 § 301.30, which specifies a
particular order for FTC disclosures.
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.
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.
a. Label Size Requirements
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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 § 301.27 will require
labels to be ‘‘conspicuous and of such
durability as to remain attached to the
product throughout any distribution,
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.
124 16 CFR 301.19; 301.20.
125 16 CFR 303.16(b).
126 16 CFR 301.27.
127 16 CFR 303.15(a).
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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
129 16
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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].’’
Individual commenter ‘‘Gremmo’’
suggested eliminating § 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
(§ 301.39), as well as all related
provisions,131 with TFLA’s hunter/
trapper exemption.
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 § 301.19(l)(1)
through (7). These subsections provide
130 See
16 CFR 303.33(a).
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 § 301.39(a), because those terms are
used only in the de minimis exemption provision.
In addition, the Commission adopts several nonsubstantive amendments to ensure that references
to other provisions and the Act are accurate and to
correct typographical errors.
131 Because
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Commission adds language to § 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
Third, the Commission deletes text in
§ 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.
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.
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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
§ 301.19 requires that an entity coloring
furs must disclose the treatment on an
invoice.132
Second, the Commission deletes
§ 301.28, which provides further
guidance on attaching labels. Because
the new § 301.27 clarifies the method
for attaching labels, § 301.28 is now
redundant.
Third, § 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.
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
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.
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 § 301.47 and the phrase
‘‘invoice or other paper’’ in § 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
§ 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
2. Annual Renewal of Continuing
Guaranties
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.
134 15
U.S.C. 7001, et seq.
discussion in the Commission’s
announcement of final amendments to the Textile
Rules at 79 FR 18766, 18768 (Apr. 4, 2014).
135 See
132 16
133 16
CFR 301.19(h).
CFR 301.40(a).
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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.
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
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
136 15
U.S.C. 69h(a)(2).
(emphasis added).
138 15 U.S.C. 69(b) and (d).
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).
137 Id.
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clearance request and burden estimates
for the Fur Rule.140
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:
Small business
size standard
NAICS Industry title
Fur-Bearing Animal and
Rabbit Production.
Fur and Leather Apparel
Manufacturing.
Men’s Clothing Stores .......
Women’s Clothing Stores ..
Department Stores ............
$750,000.
500 employees.
$10,000,000.
$25,000,000.
$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
1. The authority citation for part 301
continues to read:
■
Authority: 15 U.S.C. 69 et seq.
■
2. Revise § 301.0 to read as follows:
§ 301.0
Fur products name guide.
Order
Family
Genus-species
Alpaca ..................................
Antelope ...............................
Badger .................................
Bassarisk .............................
Bear .....................................
Bear, Polar ...........................
Beaver .................................
Burunduk .............................
Calf ......................................
Cat, Caracal .........................
Cat, Domestic ......................
Cat, Leopard ........................
Cat, Lynx .............................
Cat, Manul ...........................
Cat, Margay .........................
Cat, Spotted .........................
Cat, Wild ..............................
Cheetah ...............................
Chinchilla .............................
Chipmunk .............................
Civet .....................................
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Name
Artiodactyla ........................
Artiodactyla ........................
Carnivora ...........................
......do .................................
......do .................................
......do .................................
Rodentia ............................
......do .................................
Artiodactyla ........................
Carnivora ...........................
......do .................................
......do .................................
......do .................................
......do .................................
......do .................................
......do .................................
......do .................................
......do .................................
Rodentia ............................
......do .................................
Carnivora ...........................
Camelidae .........................
Bovidae ..............................
Mustelidae .........................
Procyonidae .......................
Ursidae ..............................
......do .................................
Castoridae .........................
Sciuridae ............................
Bovidae ..............................
Felidae ...............................
......do .................................
......do .................................
......do .................................
......do .................................
......do .................................
......do .................................
......do .................................
......do .................................
Chinchillidae ......................
Sciuridae ............................
Viverridae ..........................
Desman ...............................
Dog ......................................
Ermine .................................
Fisher ...................................
Fitch .....................................
Fox .......................................
Fox, Blue .............................
Fox, Grey .............................
Fox, Kit ................................
Soricomorpha ....................
Carnivora ...........................
......do .................................
......do .................................
......do .................................
......do .................................
......do .................................
......do .................................
......do .................................
Talpidae .............................
Canidae .............................
Mustelidae .........................
......do .................................
......do .................................
Canidae .............................
......do .................................
......do .................................
......do .................................
Lama pacos.
Hippotragus niger and Antilope cervicapra.
Taxida sp. and Meles sp.
Bassariscus astutus.
Ursus sp.
Ursus maritimus.
Castor canadensis.
Eutamias asiaticus.
Bos taurus.
Caracal caracal.
Felis catus.
Prionailurus bengalensis.
Lynx rufus.
Felis manul.
Leopardus wiedii.
Felis sp. (South America).
Felis catus and Felis lybica.
Acinonyx jubatus.
Chinchilla chinchilla.
Tamias sp.
Viverra sp., Viverricula sp., Paradoxurus sp., and
Paguma sp.
Desmana moschata and Galemys pyrenaicus.
Canis familiaris.
Mustela erminea.
Martes pennanti.
Mustela putorius.
Vulpes vulpes, Vulpes macrotis.
Vulpes lagopus.
Urocyon cinereoargenteus and Urocyon littoralis.
Vulpes velox.
140 OMB Control No. 3084–0099 (clearance
granted April 3, 2012, through April 30, 2015).
141 5 U.S.C. 601–612
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142 See
143 77
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FR 10744, 10745 (Feb. 23, 2012).
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144 Id.
145 The standards are available at www.sba.gov/
sites/default/files/files/Size_Standards_Table.pdf.
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30457
Order
Family
Fox, White ...........................
Genet ...................................
Goat .....................................
Guanaco, or its young, the
Guanaquito.
Hamster ...............................
Hare .....................................
Jackal ...................................
Jackal, Cape ........................
Jaguar ..................................
Jaguarundi ...........................
Kangaroo .............................
Kangaroo-rat ........................
Kid ........................................
Kinkajou ...............................
Koala ....................................
Kolinsky ...............................
Lamb ....................................
Leopard ................................
Llama ...................................
Lynx .....................................
Marmot .................................
Marten, American ................
Marten, Baum ......................
Marten, Japanese ................
Marten, Stone ......................
Mink .....................................
Mole .....................................
Monkey ................................
Muskrat ................................
Nutria ...................................
Ocelot ..................................
Opossum .............................
Opossum, Australian ...........
Opossum, Ringtail ...............
Opossum, South American
Opossum, Water ..................
Otter .....................................
Carnivora ...........................
......do .................................
Artiodactyla ........................
......do .................................
Canidae .............................
Viverridae ..........................
Bovidae ..............................
Camelidae .........................
Vulpes lagopus.
Genetta genetta.
Capra hircus.
Lama guanicoe.
Rodentia ............................
......do .................................
Carnivora ...........................
......do .................................
......do .................................
......do .................................
Diprotodontia .....................
......do .................................
Artiodactyla ........................
Carnivora ...........................
Diprotodontia .....................
Carnivora ...........................
Artiodactyla ........................
Carnivora ...........................
Artiodactyla ........................
Carnivora ...........................
Rodentia ............................
Carnivora ...........................
......do .................................
......do .................................
......do .................................
......do .................................
Soricomorpha ....................
Primates ............................
Rodentia ............................
......do .................................
Carnivora ...........................
Didelphimorphia .................
Diprotodontia .....................
......do .................................
Didelphimorphia .................
......do .................................
Carnivora ...........................
Cricetidae ..........................
Leporidae ...........................
Canidae .............................
......do .................................
Felidae ...............................
......do .................................
Macropodidae ....................
Potoroidae .........................
Bovidae ..............................
Procyonidae .......................
Phascolarctidae .. ..............
Mustelidae .........................
Bovidae ..............................
Felidae ...............................
Camelidae .........................
Felidae ...............................
Sciuridae ............................
Mustelidae .........................
......do .................................
......do .................................
......do .................................
......do .................................
Talpidae .............................
Cercopithecidae .................
Muridae ..............................
Myocastoridae ...................
Felidae ...............................
Didelphidae ........................
Phalangeridae ...................
Pseudocheiridae ................
Didelphidae ........................
......do .................................
Mustelidae .........................
Otter, Sea ............................
Pahmi ...................................
Panda ..................................
Peschanik ............................
Pony .....................................
Rabbit ..................................
Raccoon ...............................
Raccoon, Asiatic ..................
Raccoon, Mexican ...............
Reindeer ..............................
Sable ....................................
Sable, American ..................
Seal, Fur ..............................
Seal, Hair .............................
Seal, Roc .............................
Sheep ..................................
Skunk ...................................
......do .................................
......do .................................
Carnivora ...........................
Rodentia ............................
Perissodactyla ...................
Lagomorpha ......................
Carnivora ...........................
......do .................................
......do .................................
Artiodactyla ........................
Carnivora ...........................
......do .................................
Carnivora ...........................
......do .................................
......do .................................
Artiodactyla ........................
Carnivora ...........................
......do .................................
......do .................................
Ailuridae .............................
Sciuridae ............................
Equidae .............................
Leporidae ...........................
Procyonidae .......................
Canidae .............................
Procyonidae .......................
Cervidae ............................
Mustelidae .........................
......do .................................
Otariidae ............................
Phocidae ............................
Otariidae ............................
Bovidae ..............................
Mephitidae .........................
Skunk, Spotted .. .................
Squirrel ................................
Squirrel, Flying .....................
......do .................................
Rodentia ............................
......do .................................
......do .................................
Sciuridae ............................
......do .................................
Suslik ...................................
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Name
......do .................................
......do .................................
Vicuna ..................................
Viscacha ..............................
Wallaby ................................
Weasel .................................
Weasel, Chinese .................
Weasel, Japanese ...............
Weasel, Manchurian ............
Wolf ......................................
Wolverine .............................
Wombat ...............................
Woodchuck ..........................
Artiodactyla ........................
Rodentia ............................
Diprotodontia .....................
Carnivora ...........................
......do .................................
......do .................................
Carnivora ...........................
......do .................................
......do .................................
Diprotodontia .....................
Rodentia ............................
Camelidae .........................
Chinchillidae ......................
Macropodidae ....................
Mustelidae .........................
......do .................................
......do .................................
Mustelidae .........................
Canidae .............................
Mustelidae .........................
Vombatidae .......................
Sciuridae ............................
Cricetus cricetus.
Lepus sp. and Lepus europaeus occidentalis.
Canis aureus and Canis adustus.
Canis mesomelas.
Panthera onca.
Herpailurus yagouaroundi.
Marcopus sp.
Bettongia sp.
Capra hircus.
Potos flavus.
Phascolarctos cinereus.
Mustela sibirica.
Ovis aries.
Panthera pardus.
Lama glama.
Lynx canadensis and Lynx lynx.
Marmota bobak.
Martes americana and Martes caurina.
Martes martes.
Martes melampus.
Martes foina.
Mustela vison and Mustela lutreola.
Talpa sp.
Colobus polykomos.
Ondatra zibethicus.
Myocastor coypus.
Leopardus pardalis
Didelphis sp.
Trichosurus vulpecula.
Pseudocheirus sp.
Lutreolina crassicaudata.
Chironectes minimus.
Lontra canadensis, Pteronura brasiliensis, and Lutra
lutra.
Enhydra lutris.
Helictis moschata and Helictis personata.
Ailurus fulgens.
Spermophilus fulvus.
Equus caballus.
Oryctolagus cuniculus.
Procyon lotor and Procyon cancrivorus.
Nyctereutes procyonoides.
Nasua sp.
Rangifer tarandus.
Martes zibellina.
Martes americana and Martes caurina.
Callorhinus ursinus.
Phoca sp.
Otaria flavescens.
Ovis aries.
Mephitis mephitis, Mephitis macroura, Conepatus
semistriatus and Conepatus sp.
Spilogale sp.
Sciurus vulgaris.
Eupetaurus cinereus, Pteromys volans and Petaurista
leucogenys.
Spermophilus citellus, Spermophilus major rufescens
and Spermophilus suslicus.
Vicugna vicugna.
Lagidium sp.
Wallabia sp., Petrogale sp., and Thylogale sp.
Mustela frenata.
Mustela sibirica.
Mustela itatsi (also classified as Mustela sibirica itatsi).
Mustela altaica and Mustela nivalis rixosa.
Canis lupus.
Gulo gulo.
Vombatus sp.
Marmota monax.
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Federal Register / Vol. 79, No. 102 / Wednesday, May 28, 2014 / Rules and Regulations
3. Amend § 301.1 by removing
paragraphs (a)(6), (7), and (8), revising
paragraph (a)(4), and adding new
paragraph (a)(6) to read as follows:
remain attached to the product
throughout any distribution, sale, or
resale, and until sold and delivered to
the ultimate consumer.
§ 301.1
§ 301.28
■
Terms defined.
(a) * * *
(4) The terms Fur Products Name
Guide and Name Guide mean the
register of names of hair, fleece, and furbearing 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.
■ 4. Amend § 301.2 by revising
paragraphs (b) and (c) to read as follows:
§ 301.2
General requirements.
*
*
*
*
*
(b) Each and every fur, except those
exempted under § 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
§ 301.39, shall be in conformity with the
requirements of the act and rules and
regulations.
§ 301.19
[Amended]
5. Amend § 301.19 by removing
paragraphs (l)(1) through (7).
■ 6. Revise § 301.20(a) to read as
follows:
■
mstockstill on DSK4VPTVN1PROD with RULES
§ 301.20
pieces.
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
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16:12 May 27, 2014
Jkt 232001
§ 301.40
(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.
*
*
*
*
*
■
§ 301.30
[Removed and Reserved]
10. Remove and reserve § 301.30.
11. Revise § 301.31(b) to read as
follows:
■
■
§ 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.
■ 12. Amend § 301.35 by revising
paragraph (b) to read as follows:
Substitution of labels.
*
(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.
*
*
*
*
*
■ 7. Revise § 301.27 to read as follows:
§ 301.27
§ 301.29 Requirements in respect to
disclosure on label.
§ 301.35
Fur products composed of
[Removed and Reserved]
8. Remove and reserve § 301.28.
9. Revise § 301.29(a) to read as
follows:
■
■
hunting and that are sold in a face-toface 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.
*
*
*
*
(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.
*
*
*
*
*
■ 13. Revise § 301.39 to read as follows:
§ 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
PO 00000
Frm 00020
Fmt 4700
Sfmt 4700
[Removed and Reserved]
14. Remove and reserve § 301.40.
15. Amend § 301.41 by removing
paragraph (a)(7) and revising paragraph
(a)(4) to read as follows:
■
§ 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;
*
*
*
*
*
■
16. Revise § 301.47 to read as follows:
§ 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 § 301.47. The printed name and
address on the invoice or other document
will suffice to meet the signature and address
requirements.
17. Amend § 301.48 by revising the
section heading and paragraph (b) to
read as follows:
■
§ 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.’’
*
*
*
*
*
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Federal Register / Vol. 79, No. 102 / Wednesday, May 28, 2014 / Rules and Regulations
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
PENSION BENEFIT GUARANTY
CORPORATION
29 CFR Parts 4041A, 4231, and 4281
RIN 1212–AB13
Multiemployer Plans; Valuation and
Notice Requirements
Pension Benefit Guaranty
Corporation.
ACTION: Final rule.
AGENCY:
This final rule amends the
Pension Benefit Guaranty Corporation’s
(PBGC) multiemployer regulations to
make the provision of information to
PBGC and plan participants more
efficient and effective and to reduce
burden on plans and sponsors. The
amendments reduce the number of
actuarial valuations required for certain
small terminated but not insolvent
plans, shorten the advance notice filing
requirements for mergers in situations
that do not involve a compliance
determination, and remove certain
insolvency notice and update
requirements. The amendments are a
result of PBGC’s regulatory review
under Executive Order 13563
(Improving Regulation and Regulatory
Review).
DATES: Effective June 27, 2014. See
Applicability in SUPPLEMENTARY
INFORMATION.
FOR FURTHER INFORMATION CONTACT:
Catherine B. Klion
(klion.catherine@pbgc.gov), Assistant
General Counsel for Regulatory Affairs,
or Daniel Liebman
(liebman.daniel@pbgc.gov), Attorney,
Office of the General Counsel, Pension
Benefit Guaranty Corporation, 1200 K
Street NW., Washington, DC 20005–
4026; 202–326–4024. (TTY/TDD users
may call the Federal relay service tollfree at 1–800–877–8339 and ask to be
connected to 202–326–4024.)
SUPPLEMENTARY INFORMATION:
mstockstill on DSK4VPTVN1PROD with RULES
SUMMARY:
Executive Summary—Purpose of the
Regulatory Action
This final rule amends certain
regulations governing PBGC’s
multiemployer program to make the
provision of information to PBGC and
plan participants more efficient and
effective. This rule is needed to reduce
burden on multiemployer plans and
sponsors and to facilitate potentially
VerDate Mar<15>2010
16:12 May 27, 2014
Jkt 232001
beneficial plan merger transactions. The
rule reduces burden by allowing certain
small terminated but not insolvent plans
to provide valuations less frequently,
easing reporting requirements for plan
sponsors contemplating a merger
transaction, and streamlining and
removing certain notice requirements
for insolvent plans.1 This will reduce
administrative costs and preserve plan
assets that could otherwise have been
used to fund plan benefits.
PBGC’s legal authority for this
regulatory action comes from section
4002(b)(3) of the Employee Retirement
Income Security Act of 1974 (ERISA),
which authorizes PBGC to issue
regulations to carry out the purposes of
title IV of ERISA; section 4041A(f)(2),
which gives PBGC authority to prescribe
reporting requirements for terminated
plans; section 4231(a), which gives
PBGC authority to prescribe regulations
setting the requirements for one or more
multiemployer plans to merge; and
section 4281(d), which directs PBGC to
prescribe by regulation the notice
requirements to plan participants and
beneficiaries in the event of a benefit
suspension.
Executive Summary—Major Provisions
of the Regulatory Action
Annual Valuations
When a multiemployer plan
terminates, the plan must perform an
annual valuation of the plan’s assets and
benefits. This final rule allows
valuations for plans that were
terminated by mass withdrawal but are
not insolvent and where the value of
nonforfeitable benefits is $25 million or
less to be performed every three years
instead of annually as required under
the current regulations.
Filing Requirements for Mergers
Under PBGC’s regulations, a merger or
a transfer of assets and liabilities
between multiemployer plans must
satisfy certain requirements, including a
requirement that plan sponsors of all
plans involved in a merger or transfer
must jointly file a notice with PBGC
before the transaction. This final rule
shortens the notice period from 120
days to 45 days where no compliance
determination is requested.
Insolvency Notices and Updates
Terminated multiemployer plans that
determine that they will be insolvent for
a plan year must provide a series of
notices and updates to notices to PBGC
and participants and beneficiaries,
1 Under 29 CFR § 4041A.2, ‘‘insolvent’’ means
that a plan is unable to pay benefits when due
during the plan year.
PO 00000
Frm 00021
Fmt 4700
Sfmt 4700
30459
including a notice of insolvency. The
final rule eliminates the requirement to
provide annual updates to the notice of
insolvency.
Background
PBGC administers two insurance
programs for private-sector defined
benefit plans under title IV of the
Employee Retirement Income Security
Act of 1974 (ERISA): A single-employer
plan termination insurance program and
a multiemployer plan insolvency
insurance program.
A multiemployer plan is a collectively
bargained pension arrangement
involving several employers that are not
within the same controlled group,
usually in a common industry, such as
construction, trucking, textiles, or coal
mining. By contrast, a single-employer
plan may be sponsored by either one
employer (pursuant or not pursuant to
a collective bargaining agreement) or by
several unrelated employers (but not
pursuant to a collective bargaining
agreement).
ERISA section 4041A provides for two
types of multiemployer plan
terminations: Mass withdrawal and plan
amendment. A mass withdrawal
termination occurs when all employers
withdraw or cease to be obligated to
contribute to the plan. A plan
amendment termination occurs when
the plan adopts an amendment that
provides that participants will receive
no credit for service with any employer
after a specified date, or an amendment
that makes it no longer a covered plan.
Unlike terminated single-employer
plans, terminated multiemployer plans
continue to pay all vested benefits out
of existing plan assets and withdrawal
liability payments. PBGC’s guarantee of
the benefits in a multiemployer plan—
payable as financial assistance to the
plan—starts only if and when the plan
is unable to make payments at the
statutorily guaranteed level.
This final rule reduces certain
requirements for multiemployer plans
that are terminated by mass withdrawal
and mergers and transfers among
multiemployer plans.
On January 18, 2011, the President
issued Executive Order 13563
‘‘Improving Regulation and Regulatory
Review,’’ to ensure that Federal
regulations seek more affordable, less
intrusive means to achieve policy goals,
and that agencies give careful
consideration to the benefits and costs
of those regulations. PBGC’s Plan for
Regulatory Review,2 identifies several
2 See https://www.pbgc.gov/documents/plan-forregulatory-review.pdf.
E:\FR\FM\28MYR1.SGM
28MYR1
Agencies
[Federal Register Volume 79, Number 102 (Wednesday, May 28, 2014)]
[Rules and Regulations]
[Pages 30445-30459]
From the Federal Register Online via the Government Printing 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 https://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: https://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