Rules and Regulations Under the Hobby Protection Act, 70935-70938 [2016-24880]

Download as PDF ehiers on DSK5VPTVN1PROD with RULES Federal Register / Vol. 81, No. 199 / Friday, October 14, 2016 / Rules and Regulations (b) * * * (4) Reports may be submitted by mail or electronically. Mailed paper reports must be submitted in duplicate to: Report Processing Staff, Office of Antiboycott Compliance, U.S. Department of Commerce, Room 6098, Washington, DC 20230. Electronic reports must be submitted in duplicate, by following the prompts on the screen, through the Office of Antiboycott Compliance Web page of the BIS Web site, https://bis.doc.gov/index.php/ enforcement/oac?id=300. Each submission, whether paper or electronic, must be made in accordance with the following requirements: (i) Where the person receiving the request is a United States person located in the United States, each report of requests must be postmarked or electronically date-stamped by the last day of the month following the calendar quarter in which the request was received (e.g., April 30 for the quarter consisting of January, February, and March). (ii) Where the person receiving the request is a United States person located outside the United States, each report of requests must be postmarked or electronically date-stamped by the last day of the second month following the calendar quarter in which the request was received (e.g., May 31 for the quarter consisting of January, February, and March). (5) Mailed paper reports may, at the reporting person’s option, be submitted on either a single transaction form (Form BIS–621P, Report of Request for Restrictive Trade Practice or Boycott, Single Transaction, (revised 10–89)) or on a multiple transaction form (Form BIS–6051P, Report of Request for Restrictive Trade Practice or Boycott, Multiple Transactions, (revised 10–89)). Electronic reports may be submitted only on the single transaction form, which will electronically reproduce the reporting person’s identifying information to facilitate reporting of multiple transactions. (6) Reports, whether submitted on the paper single transaction form or on the paper multiple transaction form, or submitted electronically, must contain entries for every applicable item on the form, including whether the reporting person intends to take or has taken the action requested. If the reporting person has not decided what action he will take by the time the report is required to be filed, he must later report the action he decides to take within 10 business days after deciding. In addition, anyone filing a report on behalf of another must so indicate and identify that other person. VerDate Sep<11>2014 13:00 Oct 13, 2016 Jkt 241001 (7) Each report of a boycott request, whether submitted by mail or electronically, must be accompanied by two copies of the relevant page(s) of any document(s) in which the request appears (see, paragraph (c)(2) of this section). For mail submissions, the relevant pages shall be attached in paper format to the report form; for electronic submissions, the relevant pages shall be attached in PDF format to the electronic submission. Reports, whether paper or electronic, may also be accompanied by any additional information relating to the request as the reporting person desires to provide concerning his response to the request. For electronic submissions, such additional information should be provided as a PDF attachment. * * * * * Dated: October 7, 2016. Matthew S. Borman, Deputy Assistant Secretary for Export Administration. [FR Doc. 2016–24831 Filed 10–13–16; 8:45 am] BILLING CODE 3510–33–P FEDERAL TRADE COMMISSION 16 CFR Part 304 RIN 3084–AB34 Rules and Regulations Under the Hobby Protection Act Federal Trade Commission. Final rule. AGENCY: ACTION: As part of its regular review of all its Rules and Guides, and in response to Congressional amendments to the Hobby Protection Act (‘‘Hobby Act’’ or ‘‘Act’’), the Federal Trade Commission (‘‘Commission’’) amends its Rules and Regulations under the Hobby Protection Act (‘‘Rules’’). DATES: This rule is effective November 16, 2016. FOR FURTHER INFORMATION CONTACT: Joshua S. Millard, (202) 326–2454, Bureau of Consumer Protection, Federal Trade Commission, 600 Pennsylvania Ave. NW., Washington, DC 20580. SUPPLEMENTARY INFORMATION: SUMMARY: I. Introduction As part of its ongoing regulatory review program, the Commission published a Federal Register Notice in 2014 1 seeking comment on the costs, benefits, and overall impact of the Rules. After the comment period closed, in December 2014, Congress enacted amendments to the Hobby Act. In 1 79 PO 00000 FR 40691 (July 14, 2014). Frm 00013 Fmt 4700 Sfmt 4700 70935 response, the Commission published a Notice of Proposed Rulemaking (‘‘NPRM’’) earlier this year addressing the comments it received, proposing amendments to the Rules to track Congress’ changes to the Hobby Act, and posing additional questions.2 The NPRM asked, in particular, whether the proposed amendments would appropriately implement Congressional changes to the Act, and what regulatory burden the proposed amendments might impose. The Commission did not receive substantive comments in response to this NPRM, and the record supports amending the Rules as proposed. Accordingly, this Notice describes the background of the Commission’s regulatory review, summarizes the record, and explains the grounds for amendments to the Rules. Additionally, it provides analyses required by the Regulatory Flexibility and Paperwork Reduction Acts and sets forth the amended Rules provision. II. Background On November 29, 1973, President Nixon signed the Hobby Protection Act, 15 U.S.C. 2101–2106. The Hobby Act requires manufacturers and importers of ‘‘imitation political items’’ 3 to ‘‘plainly and permanently’’ mark them with the ‘‘calendar year’’ the items were manufactured. Id. 2101(a). The Hobby Act also requires manufacturers and importers of ‘‘imitation numismatic items’’ 4 to ‘‘plainly and permanently’’ mark these items with the word ‘‘copy.’’ Id. 2101(b). The Act further directed the Commission to promulgate regulations for determining the ‘‘manner and form’’ that imitation political items and imitation numismatic items are to be permanently marked with the calendar year of manufacture or the word ‘‘copy.’’ Id. 2101(c). In 1975, the Commission issued Rules and Regulations Under the Hobby Protection Act, 16 CFR part 304.5 The Rules track the definitions used in the 2 81 FR 23219 (Apr. 20, 2016). imitation political item is ‘‘an item which purports to be, but in fact is not, an original political item, or which is a reproduction, copy, or counterfeit of an original political item.’’ 15 U.S.C. 2106(2). The Hobby Act defines original political items as being any political button, poster, literature, sticker or any advertisement produced for use in any political cause. Id. 2106(1). 4 An imitation numismatic item is ‘‘an item which purports to be, but in fact is not, an original numismatic item or which is a reproduction, copy, or counterfeit of an original numismatic item.’’ 15 U.S.C. 2106(4). The Hobby Act defines original numismatic items to include coins, tokens, paper money, and commemorative medals which have been part of a coinage or issue used in exchange or used to commemorate a person or event. Id. 2106(3). 5 40 FR 5459 (Feb. 6, 1975). 3 An E:\FR\FM\14OCR1.SGM 14OCR1 70936 Federal Register / Vol. 81, No. 199 / Friday, October 14, 2016 / Rules and Regulations ehiers on DSK5VPTVN1PROD with RULES Hobby Act and implement that Act’s ‘‘plain and permanent’’ marking requirements by establishing where the item should be marked, the sizes and dimensions of the letters and numerals to be used, and how to mark incusable and nonincusable items.6 In 1988, the Commission amended the Rules to provide additional guidance on the minimum size of letters for the word ‘‘copy’’ as a proportion of the diameter of coin reproductions.7 The Commission reviewed the Rules in 2004. That review yielded many comments proposing that the Commission expand coverage to products beyond the scope of the Hobby Act and address problems involving the selling (or passing off) as originals of reproductions of antiques and other items not covered by the Act. However, the Commission retained the Rules without change, noting that it did not have authority under the Hobby Act to expand the Rules as requested.8 In 2014, the Commission again requested public comment on the Rules’ costs, benefits, and overall impact.9 That comment period closed on September 22, 2014. On December 19, 2014, President Obama signed into law H.R. 2754, the Collectible Coin Protection Act (‘‘CCPA’’), a short set of amendments to the Hobby Act. The CCPA amends the Act’s scope to address not only the distribution by manufacturers and importers of imitation numismatic items, but also ‘‘the sale in commerce’’ of such items. CCPA, Public Law 113– 288, section 2(1)(A) (2014). Additionally, the CCPA makes it a violation of the Hobby Act ‘‘for a person to provide substantial assistance or support to any manufacturer, importer, or seller if that person knows or should have known that the manufacturer, importer, or seller is engaged in any act or practice’’ violating the marking requirements of the Act. Public Law 113–288, section 2(1)(B).10 6 Incusable items are items that can be impressed with a stamp. 7 53 FR 38942 (Oct. 4, 1988). Before this amendment, if a coin were too small to comply with the minimum letter size requirements, the manufacturer or importer had to request a variance from those requirements from the Commission. Because imitation miniature coins were becoming more common, the Commission determined that it was in the public interest to allow the word ‘‘copy’’ to appear on miniature imitation coins in sizes that could be reduced proportionately with the size of the item. 8 69 FR 9943 (Mar. 3, 2004). 9 79 FR 40691 (July 14, 2014). 10 The CCPA also amends the Hobby Act to expand the permissible venue (i.e., location) for private actions seeking injunctions or damages for violations of the Hobby Act. Previously, a proper venue was ‘‘any United States District Court for a VerDate Sep<11>2014 13:00 Oct 13, 2016 Jkt 241001 III. Summary of Comments and Analysis A. Initial Request for Comments (2014) The Commission received six comments 11 in response to its 2014 FRN: Four from members of the general public; one from a self-identified professional coin and paper money dealer; and one from an attorney with asserted experience pertaining to coins and other collectibles. 1. Support for the Rules All of the commenters who addressed the issue supported the Rules; none advocated rescinding them. For example, one commenter stated, ‘‘there [is] a continuing need for the Rules as currently promulgated because . . . they do protect consumers.’’ 12 Another described the Act as ‘‘a boon to collectors of legitimate numismatic and political items,’’ and stated: ‘‘Over the years the presence of the law and supporting regulations has provided guidance for makers of replicas.’’ 13 A dealer stated that the Act ‘‘is a brilliant effort to help protect the consumer from fraud, and . . . is well thought of across all [l]egitimate [d]ealers.’’ 14 2. Suggested Rules Modifications Some commenters suggested modifications to the Rules. In particular, several commenters suggested modifications to address ‘‘fantasy coins,’’ government-issued coins altered by non-governmental entities to bear historically impossible dates or other features marketed as novelties.15 Commenters variously suggested that the Commission require manufacturers district in which the defendant resides or has an agent.’’ Proper venue now extends to any U.S. District Court for a district in which the defendant transacts business, or wherever venue is proper under 28 U.S.C. 1391. Public Law 113–288, section 2(2)(A)–(B). Further, the CCPA amends the Hobby Act to state that in cases of violations of the Act involving unauthorized use of a trademark of a collectible certification service, the owners of such trademarks also have rights provided under the Trademark Act of 1946, 15 U.S.C. 1116 et seq. Public Law 113–288, section 2(2)(C). 11 The comments are available on the Commission’s Web site at https://www.ftc.gov/ policy/public-comments/initiative-577. 12 Comment of Luke Burgess, available at https:// www.ftc.gov/policy/public-comments/2014/09/09/ comment-00008. 13 Comment of Roger Burdette, available at https:// www.ftc.gov/policy/public-comments/2014/09/09/ comment-00007; see also Comment of Kenneth Tireman of NC Coppers, available at https:// www.ftc.gov/policy/public-comments/2014/07/30/ comment-00004. 14 Comment of Kenneth Tireman, supra. 15 See Comment of Luke Burgess, supra (offering example of Roosevelt dime altered to read ‘‘1945,’’ noting that Roosevelt dime was not introduced until 1946, and noting that such coins are not intended to be used as currency). PO 00000 Frm 00014 Fmt 4700 Sfmt 4700 of fantasy coins to stamp such items with a ‘‘FANTASY’’ mark,16 expressly permit the sale of such items without an identifying mark,17 or ban such items altogether.18 One commenter specifically suggested expanding the Rules’ scope to incorporate the provisions of the CCPA before Congress adopted it and sent it to the President for his signature.19 3. Analysis of Public Comments From the responses to its 2014 request for public comment, the Commission concluded that there was a continuing need for the Rules, and that the costs they impose on businesses were reasonable.20 Commenters who addressed the subject supported the Rules, and no dealer or business expressed the view that they should be rescinded or revised to reduce costs. Further, the Commission noted that after the comments period closed, Congress expanded the Hobby Act’s scope (addressing, among others, persons who substantially assist or support manufacturers, importers, or sellers that violate the Act’s marking requirements). This change evinces Congress’ conclusion that the Rules did not impose undue costs upon businesses or the public. The Commission thus concluded that both the record and Congressional action supported retaining the Rules. Additionally, the Commission found that it was unnecessary to amend the Rules to address specific collectible items (such as ‘‘fantasy coins,’’ as some commenters suggested) because it can address specific items as the need arises.21 Notably, the Commission has addressed whether coins resembling government-issued coins with date variations are subject to the Rules. In re Gold Bullion Int’l, Ltd., 92 F.T.C. 196 (1978). It concluded that such coins should be marked as a ‘‘COPY’’ because otherwise they could be mistaken for an original numismatic item.22 16 See id. Comment of Daniel Carr, available at https://www.ftc.gov/policy/public-comments/2014/ 09/17/comment-00010; Comment of Armen Vartian, available at https://www.ftc.gov/policy/publiccomments/2014/09/19/comment-00011. 18 See Comment of Luke Burgess, supra. 19 See Comment of Armen Vartian, supra. 20 81 FR 23219, 23220. 21 81 FR 23220. 22 See 92 F.T.C. at 223 (‘‘[M]inor variations in dates between an original and its alleged ‘copy’ are insufficient to deprive the latter of its status as a ‘reproduction, copy or counterfeit’ of an ‘or[i]ginal numismatic item’ and do not eliminate the requirement that the latter be marked with the word ‘Copy.’ ’’). 17 See E:\FR\FM\14OCR1.SGM 14OCR1 70937 Federal Register / Vol. 81, No. 199 / Friday, October 14, 2016 / Rules and Regulations B. Notice of Proposed Rulemaking With Request for Comments (2016) While the Commission found it was unnecessary to amend the Rules to regulate specific collectible items, it observed that amendments to the Rules were necessary to bring them into harmony with Congress’ expansion of the Hobby Act. Hence, in April 2016, it solicited public comment on proposed amendments to the Rules.23 The Commission proposed to align its Rules with the amended Hobby Act by: (1) Extending the Rules’ scope to cover persons or entities engaged in ‘‘the sale in commerce’’ of imitation numismatic items; and (2) stating that persons or entities violate the Rules if they provide substantial assistance or support to any manufacturer, importer, or seller of imitation numismatic items, or any manufacturer or importer of imitation political items, when they know, or should have known, that such person is engaged in any act or practice violating the marking requirements set forth in the Hobby Act and the Rules. The Commission solicited comment on the regulatory burden the amended Rules might impose.24 1. No Public Comments or Objections to Proposed Amendments The Commission received no substantive comments in response.25 Thus, no member of the public objected to the proposed amendments, which incorporate Congress’ changes to the Hobby Act. Significantly, no commenter objected that the amendments would impose undue costs upon businesses or would not properly implement Congress’ changes to the Act. As previously noted, Congress’ expansion of the Hobby Act’s scope appears to evince Congressional sentiment that the Act has not, and will not, impose undue costs upon businesses or the public. Having published the proposed amendments for comment and received no objection, the Commission concludes that the regulatory burden that the amendments might impose on businesses, including small businesses, is minimal. IV. Final Amendments The record supports modifying the Rules as the Commission proposed. As the CCPA’s amendments to the Hobby ehiers on DSK5VPTVN1PROD with RULES 23 81 FR 23219, 23220, 23223. FR 23220–21. 25 The Commission received six comments that were non-germane; none of these comments referred or related to the Hobby Act or Rules, the proposed amendments to the Rules, numismatic or political items, or imitations thereof. The comments expressed dissatisfaction with unwanted phone calls, used profane language, or were unintelligible. 24 81 VerDate Sep<11>2014 13:00 Oct 13, 2016 Jkt 241001 Act require conforming changes in the Rules, and the record supports amending the Rules as proposed, the Commission accordingly amends the Rules’ ‘‘Applicability’’ section, set forth at 16 CFR 304.3. The revised text of this provision is set forth at the end of this FRN. V. Paperwork Reduction Act The amendments to the Rules do not constitute a ‘‘collection of information’’ under the Paperwork Reduction Act, 44 U.S.C. 3501–3521 (‘‘PRA’’). The amendments incorporate changes made to the Hobby Act pursuant to the enactment of the CCPA. Prior to those changes, the Hobby Act already required manufacturers and importers of imitation political items and imitation numismatic items to mark such replica items (with the calendar year of manufacture or the word, ‘‘copy,’’ respectively) so they may be identified as replicas. The disclosure requirement under the existing Rules and the amendments are not a PRA ‘‘collection of information’’ for which ‘‘burden’’ is evaluated and estimated as they specify the wording for proper disclosure (here, the year of manufacture or the word ‘‘copy’’). See 5 CFR 1320.3(c)(2) (‘‘The public disclosure of language of information originally supplied by the Federal government to the recipient for the purpose of disclosure to the public is not included within [the definition of a ‘collection of information.’]’’). Moreover, extending this disclosure requirement to sellers of imitation numismatic items should not increase the burden of compliance to the extent they are selling items previously marked in compliance with the Hobby Act by manufacturers or importers. The amendments do not impose any new burden upon manufacturers and importers who produce replica items covered by the Hobby Act and Rules. Nor do the amendments impose any burden beyond that imposed by the CCPA’s changes to the Hobby Act. VI. Regulatory Flexibility Act The Regulatory Flexibility Act (‘‘RFA’’), 5 U.S.C. 601–612, requires an agency to provide an initial and final analysis of the anticipated economic impact of amendments on small entities. The RFA provides that such an analysis is not required if the agency certifies that the regulatory action will not have a significant economic impact on a substantial number of small entities. See 5 U.S.C. 603–605. As discussed below, the Commission believes that the amendments will not have a significant economic impact upon small entities that manufacture or import imitation PO 00000 Frm 00015 Fmt 4700 Sfmt 4700 political items or manufacture, import, or sell imitation numismatic items, although they may affect a substantial number of small entities. In the April 2016 NPRM, the Commission’s staff estimated that approximately 5,000 retailers, manufacturers, and importers of imitation numismatic items are subject to the Rules. 81 FR 23219, 23221. FTC staff further estimated that there are fewer manufacturers and importers of imitation political items, from 500 to 2,500. Id. The Commission invited members of the public to estimate how many retailers, manufacturers, and importers are subject to the Rules, and received no comments in response. Commission staff understands from a prominent political memorabilia membership organization, the American Political Items Collectors, that a disclosure that an item is an imitation is built into the manufacturing process. Entities compliant with the Rules mark replica coins with ‘‘COPY,’’ and replica political items with the date of manufacture, when those items are made. The entities subject to these burdens will be classified as small businesses if they satisfy the Small Business Administration’s relevant size standards, as determined by the Small Business Size Standards component of the North American Industry Classification System (‘‘NAICS’’).26 Potentially relevant NAICS size standards, which are either minimum annual receipts or number of employees, are as follows: NAICS industry title Sign Manufacturing ............... Fastener, Button, Needle and Pin Manufacturing. Miscellaneous Manufacturing Miscellaneous Fabricated Metal Product Manufacturing. Rubber Product Manufacturing. Miscellaneous Wood Product Manufacturing. Leather Good and Allied Product Manufacturing. Commercial Printing .............. Miscellaneous Durable Goods Merchant Wholesalers. Book, Periodical, and Newspaper Merchant Wholesalers. Small business size standard 500 employees 500 employees 500 employees 750 employees 500 employees 500 employees 500 employees 500 employees 100 employees 100 employees 26 The standards are available at https:// www.sba.gov/sites/default/files/files/Size_ Standards_Table.pdf. E:\FR\FM\14OCR1.SGM 14OCR1 70938 Federal Register / Vol. 81, No. 199 / Friday, October 14, 2016 / Rules and Regulations NAICS industry title ehiers on DSK5VPTVN1PROD with RULES Toy and Hobby Goods and Supplies Merchant Wholesalers. Hobby, Toy and Game Stores. Souvenir Stores ..................... Political Organizations ........... Electronic Shopping .............. Electronic Auctions ................ Mail-Order Houses ................ Small business size standard 100 employees $27.5 million $7.5 million $7.5 million $32.5 million $38.5 million $38.5 million From the record of this proceeding, the Commission is unable to conclude how many of the above-listed entities qualify as small businesses. The record does not contain information regarding the size of the entities subject to the Rules. Moreover, the relevant NAICS categories include many entities that do not engage in activities covered by the Rules. Therefore, estimates of the percentage of small businesses in those categories would not necessarily reflect the percentage of small businesses subject to the Rules in those categories. Even absent this data, however, the Commission does not expect that the amendments will have a significant economic impact on small entities. As discussed above in Section V, the amendments do not impose any new costs upon persons or entities engaged in commerce concerning items that comply with the marking requirements of the Hobby Act and Rules. This document serves as notice to the Small Business Administration of the agency’s certification of no effect. The Commission has nonetheless determined that it is appropriate to publish the following final regulatory flexibility analysis to ensure that the economic impact of the amendments on small entities is fully addressed. (1) Need for, and objectives of, the amendments to the Rules. As explained above, the amendments are intended to harmonize the Rules with the Hobby Act, as amended by the CCPA. Amending 16 CFR 304.3 extends the Rules’ coverage to persons engaged in the sale in commerce of imitation numismatic items, and persons or entities that provide substantial assistance or support to any manufacturer, importer, or seller of covered items under certain circumstances. The legal basis for this amendment is the CCPA, which expanded the scope of the Hobby Act. (2) Significant issues raised by comments in response to the proposed amendments to the Rules. The Commission received no substantive comments from the public and no comments from the Chief VerDate Sep<11>2014 13:00 Oct 13, 2016 Jkt 241001 Counsel for Advocacy of the Small Business Administration. Consequently, no significant issues have arisen from comments, and no changes have been made to the proposed rule in the final rule as a result of comments. (3) A description of and an estimate of the number of small entities to which the Rules will apply. As noted earlier, staff estimates that approximately 5,000 retailers, manufacturers, and importers of imitation numismatic items are subject to the Rules, and from 500 to 2,500 manufacturers and importers of imitation political items are subject to the Rules. (4) A description of the projected reporting, recordkeeping and other compliance requirements. The Rules impose a disclosure (marking) burden, currently estimated at 5 hours annually. The amendment is not expected to increase this burden on any person or entity subject to and in compliance with the Rules. The additional burden imposed by the amendment will result solely from the expanded scope of the Rules to cover certain additional persons and entities, consistent with the Hobby Act, as amended. As noted earlier, the disclosure burden imposed by the Rules is normally addressed in the manufacturing process, which requires graphic or other design skills for the die, cast, mold or other process used to manufacture the item. (5) Steps taken by the agency to minimize the significant economic impact, if any, on small entities, consistent with the stated objectives of applicable statutes. Commission staff have not identified any significant alternatives that would accomplish the statute’s objectives while minimizing any significant economic impact on small entities. The amendment, as explained earlier, is intended to bring the scope of the Rules in line with the scope of the Hobby Act, as amended by the CCPA. Neither the Act nor the Rules exempt small entities, or impose lesser or different requirements on such entities. Such exemptions or alternative requirements would undermine the purpose and effect of the Act and the Rules, to the extent that Congress has determined by law that covered items, regardless of the size of the entity that manufactures, imports or sells them, require markings (i.e., disclosures) under certain circumstances for the protection of consumers who may purchase such items. List of Subjects in 16 CFR Part 304 Hobbies, Labeling, Trade practices. PO 00000 Frm 00016 Fmt 4700 Sfmt 4700 For the reasons set forth above, the Federal Trade Commission amends 16 CFR part 304 as follows: PART 304—RULES AND REGULATIONS UNDER THE HOBBY PROTECTION ACT 1. The authority citation for this part continues to read as follows: ■ Authority: 15 U.S.C. 2101 et seq. ■ 2. Revise § 304.3 to read as follows: § 304.3 Applicability. Any person engaged in the manufacturing, or importation into the United States for introduction into or distribution in commerce, of imitation political or imitation numismatic items shall be subject to the requirements of the Act and the regulations promulgated thereunder. Any person engaged in the sale in commerce of imitation numismatic items shall be subject to the requirements of the Act and the regulations promulgated thereunder. It shall be a violation of the Act and the regulations promulgated thereunder for a person to provide substantial assistance or support to any manufacturer, importer, or seller of imitation numismatic items, or to any manufacturer or importer of imitation political items, if that person knows or should have known that the manufacturer, importer, or seller is engaged in any practice that violates the Act and the regulations promulgated thereunder. By direction of the Commission. Donald S. Clark, Secretary. [FR Doc. 2016–24880 Filed 10–13–16; 8:45 am] BILLING CODE P DEPARTMENT OF THE TREASURY Internal Revenue Service 26 CFR Part 1 [TD 9789] RIN 1545–BM03 Election To Take Disaster Loss Deduction for Preceding Year Internal Revenue Service (IRS), Treasury. ACTION: Final and temporary regulations. AGENCY: This document contains final and temporary regulations relating to the election to accelerate the timing of a loss sustained by a taxpayer attributable to a federally declared disaster. The text of the temporary SUMMARY: E:\FR\FM\14OCR1.SGM 14OCR1

Agencies

FEDERAL TRADE COMMISSION

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

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FEDERAL TRADE COMMISSION

16 CFR Part 304

RIN 3084-AB34

Rules and Regulations Under the Hobby Protection Act

AGENCY: Federal Trade Commission.

ACTION: Final rule.

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

DATES: This rule is effective November 16, 2016.

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

SUPPLEMENTARY INFORMATION:

I. Introduction

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

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

[[Page 70936]]

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

A. Initial Request for Comments (2014)

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

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[[Page 70937]]

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

While the Commission found it was unnecessary to amend the Rules to
regulate specific collectible items, it observed that amendments to the
Rules were necessary to bring them into harmony with Congress'
expansion of the Hobby Act. Hence, in April 2016, it solicited public
comment on proposed amendments to the Rules.\23\
---------------------------------------------------------------------------

\23\ 81 FR 23219, 23220, 23223.
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The Commission proposed to align its Rules with the amended Hobby
Act by: (1) Extending the Rules' scope to cover persons or entities
engaged in ``the sale in commerce'' of imitation numismatic items; and
(2) stating that persons or entities violate the Rules if they provide
substantial assistance or support to any manufacturer, importer, or
seller of imitation numismatic items, or any manufacturer or importer
of imitation political items, when they know, or should have known,
that such person is engaged in any act or practice violating the
marking requirements set forth in the Hobby Act and the Rules. The
Commission solicited comment on the regulatory burden the amended Rules
might impose.\24\
---------------------------------------------------------------------------

\24\ 81 FR 23220-21.
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1. No Public Comments or Objections to Proposed Amendments
The Commission received no substantive comments in response.\25\
Thus, no member of the public objected to the proposed amendments,
which incorporate Congress' changes to the Hobby Act. Significantly, no
commenter objected that the amendments would impose undue costs upon
businesses or would not properly implement Congress' changes to the
Act. As previously noted, Congress' expansion of the Hobby Act's scope
appears to evince Congressional sentiment that the Act has not, and
will not, impose undue costs upon businesses or the public. Having
published the proposed amendments for comment and received no
objection, the Commission concludes that the regulatory burden that the
amendments might impose on businesses, including small businesses, is
minimal.
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\25\ The Commission received six comments that were non-germane;
none of these comments referred or related to the Hobby Act or
Rules, the proposed amendments to the Rules, numismatic or political
items, or imitations thereof. The comments expressed dissatisfaction
with unwanted phone calls, used profane language, or were
unintelligible.
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IV. Final Amendments

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

V. Paperwork Reduction Act

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

VI. Regulatory Flexibility Act

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

\26\ The standards are available at https://www.sba.gov/sites/default/files/files/Size_Standards_Table.pdf.

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

[[Page 70938]]

Toy and Hobby Goods and Supplies Merchant 100 employees
Wholesalers.
Hobby, Toy and Game Stores................ $27.5 million
Souvenir Stores........................... $7.5 million
Political Organizations................... $7.5 million
Electronic Shopping....................... $32.5 million
Electronic Auctions....................... $38.5 million
Mail-Order Houses......................... $38.5 million
------------------------------------------------------------------------

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

List of Subjects in 16 CFR Part 304

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

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

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

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

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

Sec. 304.3 Applicability.

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

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

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