51308 Federal Register / Vol. 76, No. 160 / Thursday, August 18, 2011 / Proposed Rules 

1Federal Trade Commission: Retail Food Store 

Advertising and Marketing Practices: Statement of 

Basis and Purpose: The Rule, 36 FR 8777 (May 13, 

1971). The Rule became effective on July 12, 1971. 

2 Id. at 8781. 

3Federal Trade Commission: Amendment to 

Trade Regulation Rule Concerning Retail Food 

Store Advertising and Marketing Practices, 54 FR 

35456 (Aug. 28, 1989). 

4 Id. at 35467. 

§ 615.5143 Management of ineligible and 

unsuitable investments. 

(a) Investments ineligible when 

purchased. Investments that do not 

satisfy the eligibility criteria set forth in 

§ 615.5140 at the time of purchase are 

ineligible. You may not purchase 

ineligible investments. If you determine 

that you have purchased an ineligible 

investment, you must notify us 

promptly in writing after such 

determination. You must divest of the 

investment no later than 60 calendar 

days after you determine that the 

investment is ineligible unless we 

approve, in writing, a plan that 

authorizes you to divest the investment 

over a longer period of time. Until you 

divest of the investment: 

(1) It must not be used to fund the 

liquidity reserve necessary to meet the 

liquidity reserve requirement in 

§ 615.5134; 

(2) It must be included in the 

§ 615.5132 investment portfolio limit; 

and 

(3) It must not be included as 

collateral under § 615.5050 or net 

collateral under § 615.5301(c). 

(b) Investments that no longer satisfy 

eligibility criteria or are unsuitable. If an 

investment (that satisfied the eligibility 

criteria set forth in § 615.5140 when 

purchased) no longer satisfies the 

eligibility criteria, or if an investment is 

not suitable because it does not fit the 

risk tolerance established in your board 

policy pursuant to § 615.5133(c), you 

may continue to hold it, subject to the 

following requirements: 

(1) You must notify FCA promptly in 

writing upon your determination that 

the investment no longer satisfies the 

eligibility criteria contained in 

§ 615.5140 or is not suitable; 

(2) You must not use the investment 

to fund the liquidity reserve necessary 

to meet the liquidity reserve 

requirement in § 615.5134; 

(3) You must include the investment 

in the § 615.5132 investment portfolio 

limit; 

(4) You must include the investment 

as collateral under § 615.5050 and net 

collateral under § 615.5301(c) at the 

lower of cost or market value; and 

(5) You must develop a plan to reduce 

the investment’s risk to you. 

(c) Board reporting requirements. You 

must report to your board at least 

quarterly on the following: 

(1) The status and performance of 

each investment described in 

paragraphs (a) and (b) of this section. 

(2) The impact that any investments 

described in paragraphs (a) and (b) of 

this section may have on your capital, 

earnings, liquidity, and collateral 

position; and 

(3) The terms and status of any 

required divestiture plan or risk 

reduction plan. 

(d) Reservation of authority. FCA 

retains the authority to require you to 

divest of any investment at any time for 

safety and soundness reasons. The 

timeframe set by FCA will consider the 

expected loss on the transaction (or 

transactions) and the impact on your 

financial condition and performance. 

Subpart F—Property, Transfers of 

Capital, and Other Investments 

9. Section 615.5174 is amended by: 

a. Removing the reference 

‘‘§ 615.5131(f)’’ and adding in its place, 

the reference ‘‘§ 615.5131’’ in paragraph 

(a); and 

b. Revising paragraph (d); and 

c. Adding a new paragraph (e) to read 

as follows: 

§ 615.5174 Farmer Mac securities. 

* * * * * 

(d) Stress Test. You must perform 

stress tests, in accordance with 

§ 615.5133(f)(2), on mortgage securities, 

issued or guaranteed by Farmer Mac, 

that are backed by loans that you did 

not originate. 

(e) You. Means a Farm Credit bank, 

association, or service corporation. 

Dated: August 12, 2011. 

Dale L. Aultman, 

Secretary, Farm Credit Administration Board. 

[FR Doc. 2011–20965 Filed 8–17–11; 8:45 am] 

BILLING CODE 6705–01–P 

FEDERAL TRADE COMMISSION 

16 CFR Part 424 

Retail Food Store Advertising and 

Marketing Practices Rule 

AGENCY: Federal Trade Commission 

(‘‘FTC’’ or ‘‘Commission’’). 

ACTION: Advance notice of proposed 

rulemaking; request for public 

comment. 

SUMMARY: As part of the Commission’s 

systematic review of all current FTC 

rules and guides, the Commission 

requests public comment on the overall 

costs, benefits, necessity, and regulatory 

and economic impact of the FTC’s rule 

for ‘‘Retail Food Store Advertising and 

Marketing Practices’’ (‘‘Unavailability 

Rule’’ or ‘‘Rule’’). 

DATES: Comments must be received on 

or before October 19, 2011. 

ADDRESSES: Interested parties may file a 

comment online or on paper, by 

following the instructions in the 

Request for Comment part of the 

SUPPLEMENTARY INFORMATION section 

below. Write ‘‘16 CFR Part 424—Retail 

Food Store Advertising Rule, Project No. 

P104203’’ on your comment, and file 

your comment online at https:// 

ftcpublic.commentworks.com/ftc/ 

unavailabilityruleanpr, by following the 

instructions on the web-based form. If 

you prefer to file your comment on 

paper, mail or deliver your comment to 

the following address: Federal Trade 

Commission, Office of the Secretary, 

Room H–113 (Annex N), 600 

Pennsylvania Avenue, NW., 

Washington, DC 20580. 

FOR FURTHER INFORMATION CONTACT: Jock 

Chung, (202) 326–2984, Attorney, 

Division of Enforcement, Bureau of 

Consumer Protection, Federal Trade 

Commission, 600 Pennsylvania Avenue, 

NW., Washington, DC 20580. 

SUPPLEMENTARY INFORMATION: 

I. Background 

The Unavailability Rule states that it 

is an unfair or deceptive act or practice 

for ‘‘retail food stores’’ to advertise 

‘‘food, grocery products or other 

merchandise’’ at a stated price if those 

stores do not have the advertised 

products in stock and readily available 

to consumers during the effective period 

of the advertisement. The original Rule, 

promulgated in 1971,1 permitted food 

retailers to defend against a charge of 

failure to have items available by 

maintaining records showing that the 

advertised items were timely ordered 

and delivered in quantities sufficient to 

meet reasonably anticipated demand.2

In 1989, after a comment period and 

public hearings, the Commission 

concluded that the costs of complying 

with the original Rule exceeded the 

benefits to consumers and amended the 

Rule.3 The Rule now provides that even 

if stores do not have the advertised 

products in stock and readily available 

during the effective period of their 

advertisement, they comply with the 

Rule if ‘‘the advertisement clearly and 

adequately discloses that supplies of the 

advertised products are limited or the 

advertised products are available only at 

some outlets.’’ 4 In addition, the 

amendment provides that it would not 

be a rule violation if: (1) The store 

ordered the advertised products in 

adequate time for delivery in quantities 

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Federal Register / Vol. 76, No. 160 / Thursday, August 18, 2011 / Proposed Rules 51309 

5 Id. at 35467–35468. 

6 Id. at 35457. Although the majority of the 

Commission voted to amend the Rule, 

Commissioner Calvani dissented, stating that 

‘‘existing market forces adequately police 

unavailability, and * * * therefore, no Federal 

Trade Commission rule is necessary, amended or 

otherwise.’’ Id. at 35468. Conversely, Commissioner 

Strenio dissented, stating that there was 

‘‘insufficient evidence * * * to conclude that these 

changes will result in net consumer benefits;’’ thus, 

he could not support these amendments. Id. 

sufficient to meet reasonably anticipated 

demand; (2) the store offers a 

‘‘raincheck’’ for the advertised products; 

(3) the store offers a comparable product 

at the advertised price or at a 

comparable price reduction; or (4) the 

store offers other compensation at least 

equal to the advertised value.5 The 

Commission stated that the amended 

Rule ‘‘will not significantly reduce 

consumer protection because injury 

caused by such instances of unexpected 

unavailability * * * will be 

substantially mitigated by the amended 

Rule’s requirement that consumers be 

offered rainchecks or comparable 

substitute items.’’ 6

II. Regulatory Review Program 

The Commission reviews its rules and 

guides periodically. These reviews seek 

information about the costs and benefits 

of the rules and guides as well as their 

regulatory and economic impact. These 

reviews assist the Commission in 

identifying rules and guides that 

warrant modification or rescission. 

Therefore, the Commission now solicits 

comments on, among other things, the 

economic impact of, and the continuing 

need for, the Unavailability Rule; the 

benefits of the Rule to consumers 

purchasing products at retail food 

stores; and the burdens the Rule places 

on firms subject to its requirements. 

III. Request for Comments 

The Commission solicits comments 

on the following specific questions 

related to the Unavailability Rule: 

(1) Is there a continuing need for the 

Rule? Why or why not? 

(2) What benefits has the Rule 

provided to consumers, or what 

significant costs has the Rule imposed 

on consumers? Provide any evidence 

that supports your position. 

(3) What modifications, if any, should 

the Commission make to the Rule to 

increase its benefits or reduce its costs 

to consumers? 

(a) Provide any evidence that supports 

your proposed modifications. 

(b) How would these modifications 

affect the costs and benefits of the Rule 

for consumers? 

(c) How would these modifications 

affect the costs and benefits of the Rule 

for businesses, particularly small 

businesses? 

(4) What impact has the Rule had on 

the flow of truthful information to 

consumers and on the flow of deceptive 

information to consumers? Provide any 

evidence that supports your position. 

(5) What benefits, if any, has the Rule 

provided to businesses, or what 

significant costs, including costs of 

compliance, has the Rule imposed on 

businesses, particularly small 

businesses? Provide any evidence that 

supports your position. 

(6) What modifications, if any, should 

be made to the Rule to increase its 

benefits or reduce its costs to 

businesses, particularly small 

businesses? 

(a) Provide any evidence that supports 

your proposed modifications. 

(b) How would these modifications 

affect the costs and benefits of the Rule 

for consumers? 

(c) How would these modifications 

affect the costs and benefits of the Rule 

for businesses, particularly small 

businesses? 

(7) Provide any evidence concerning 

the degree of industry compliance with 

the Rule. Does this evidence indicate 

that the Rule should be modified? If so, 

why, and how? If not, why not? 

(8) Provide any evidence concerning 

whether any of the Rule’s provisions are 

no longer necessary. Explain why these 

provisions are unnecessary. 

(9) What potentially unfair or 

deceptive practices, not covered by the 

Rule, concerning price advertising of 

products by retail food stores are 

occurring in the marketplace? 

(a) Provide any evidence, such as 

empirical data, consumer perception 

studies, or consumer complaints, that 

demonstrates the extent of such 

practices. 

(b) Provide any evidence that 

demonstrates whether such practices 

cause consumer injury. 

(c) With reference to such practices, 

should the Rule be modified? If so, why, 

and how? If not, why not? 

(10) Should the Commission broaden 

the Rule to include stores not currently 

covered, such as drugstores, department 

stores, electronics retailers, etc.? Provide 

any evidence that supports your 

position. 

(11) What modifications, if any, 

should be made to the Rule to account 

for current or impending changes in 

technology or economic conditions? 

(a) Provide any evidence that supports 

your position. 

(b) How would these modifications 

affect the costs and benefits of the Rule 

for consumers and businesses, 

particularly small businesses? 

(12) Does the Rule overlap or conflict 

with other federal, state, or local laws or 

regulations? If so, how? 

(a) Provide any evidence that supports 

your position. 

(b) With reference to the asserted 

conflicts, should the Rule be modified? 

If so, why, and how? If not, why not? 

(c) Provide any evidence concerning 

whether the Rule has assisted in 

promoting national consistency with 

respect to the advertising by retail food 

stores of products for sale at a stated 

price. 

You can file a comment online or on 

paper. For the Commission to consider 

your comment, we must receive it on or 

before October 19, 2011. Write ‘‘16 CFR 

Part 424—Retail Food Store Advertising 

Rule, Project No. P104203’’ on your 

comment. Your comment—including 

your name and your state—will be 

placed on the public record of this 

proceeding, including, to the extent 

practicable, on the public Commission 

Web site, at http://www.ftc.gov/os/ 

publiccomments.shtm. As a matter of 

discretion, the Commission tries to 

remove individuals’ home contact 

information from comments before 

placing them on the Commission Web 

site. 

Because your comment will be made 

public, you are solely responsible for 

making sure that your comment doesn’t 

include any sensitive personal 

information, such as anyone’s Social 

Security number, date of birth, driver’s 

license number or other state 

identification number or foreign country 

equivalent, passport number, financial 

account number, or credit or debit card 

number. You are also solely responsible 

for making sure that your comment 

doesn’t include any sensitive health 

information, like medical records or 

other individually identifiable health 

information. In addition, don’t include 

any ‘‘[t]rade secret or any commercial or 

financial information which is obtained 

from any person and which is privileged 

or confidential,’’ as provided in Section 

6(f) of the FTC Act, 15 U.S.C. 46(f), and 

FTC Rule 4.10(a)(2), 16 CFR 4.10(a)(2). 

In particular, don’t include 

competitively sensitive information 

such as costs, sales statistics, 

inventories, formulas, patterns, devices, 

manufacturing processes, or customer 

names. 

If you want the Commission to give 

your comment confidential treatment, 

you must file it in paper form, with a 

request for confidential treatment, and 

you have to follow the procedure 

explained in FTC Rule 4.9(c), 16 CFR 

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51310 Federal Register / Vol. 76, No. 160 / Thursday, August 18, 2011 / Proposed Rules 

7 In particular, the written request for confidential 

treatment that accompanies the comment must 

include the factual and legal basis for the request, 

and must identify the specific portions of the 

comment to be withheld from the public record. See 

FTC Rule 4.9(c), 16 CFR 4.9(c). 

4.9(c).7 Your comment will be kept 

confidential only if the FTC General 

Counsel, in his or her sole discretion, 

grants your request in accordance with 

the law and the public interest. 

Postal mail addressed to the 

Commission is subject to delay due to 

heightened security screening. As a 

result, we encourage you to submit your 

comments online. To make sure that the 

Commission considers your online 

comment, you must file it at https:// 

ftcpublic.commentworks.com/ftc/ 

unavailabilityruleanpr, by following the 

instructions on the Web-based form. If 

this Notice appears at http:// 

www.regulations.gov/#!home, you also 

may file a comment through that Web 

site. 

If you file your comment on paper, 

write ‘‘16 CFR Part 424—Retail Food 

Store Advertising Rule, Project No. 

P104203’’ on your comment and on the 

envelope, and mail or deliver it to the 

following address: Federal Trade 

Commission, Office of the Secretary, 

Room H–113 (Annex N), 600 

Pennsylvania Avenue, NW., 

Washington, DC 20580. If possible, 

submit your paper comment to the 

Commission by courier or overnight 

service. 

Visit the Commission Web site at 

http://www.ftc.gov to read this Notice 

and the news release describing it. The 

FTC Act and other laws that the 

Commission administers permit the 

collection of public comments to 

consider and use in this proceeding as 

appropriate. The Commission will 

consider all timely and responsive 

public comments that it receives on or 

before October 19, 2011. You can find 

more information, including routine 

uses permitted by the Privacy Act, in 

the Commission’s privacy policy, at 

http://www.ftc.gov/ftc/privacy.htm. 

List of Subjects in 16 CFR Part 424 

Advertising, Foods, Trade practices. 

Authority: 15 U.S.C. 41–58. 

By direction of the Commission. 

Donald S. Clark, 

Secretary. 

[FR Doc. 2011–21020 Filed 8–17–11; 8:45 am] 

BILLING CODE 6750–01–P 

DEPARTMENT OF THE TREASURY 

Internal Revenue Service 

26 CFR Part 51 

[REG–112805–10] 

RIN 1545–BJ39 

Branded Prescription Drug Fee 

AGENCY: Internal Revenue Service (IRS), 

Treasury. 

ACTION: Notice of proposed rulemaking 

by cross-reference to temporary 

regulations. 

SUMMARY: In the Rules and Regulations 

section of this issue of the Federal 

Register, the IRS is issuing temporary 

regulations relating to the branded 

prescription drug fee imposed by the 

Affordable Care Act (ACA). The 

regulations affect persons engaged in the 

business of manufacturing or importing 

certain branded prescription drugs. The 

text of the temporary regulations also 

serves as the text of the proposed 

regulations. 

DATES: Written and electronic comments 

and requests for a public hearing must 

be received by November 16, 2011. 

ADDRESSES: Send submissions to: 

CC:PA:LPD:PR (REG–112805–10), room 

5205, Internal Revenue Service, P.O. 

Box 7604, Ben Franklin Station, 

Washington, DC 20044. Submissions 

may be hand-delivered Monday through 

Friday between the hours of 8 a.m. and 

4 p.m. to: CC:PA:LPD:PR (REG–112805– 

10), Courier’s Desk, Internal Revenue 

Service, 1111 Constitution Avenue, 

NW., Washington, DC, or sent 

electronically via the Federal 

eRulemaking Portal at http:// 

www.regulations.gov (IRS REG–112805– 

10). 

FOR FURTHER INFORMATION CONTACT: 

Concerning the proposed regulations, 

Celia Gabrysh at (202) 622–3130; 

concerning submissions of comments 

and requests for a hearing 

Richard.A.Hurst@irscounsel.treas.gov, 

(202) 622–7180 (not toll free numbers). 

SUPPLEMENTARY INFORMATION: 

Paperwork Reduction Act 

The collection of information 

contained in this notice of proposed 

rulemaking has been approved by the 

Office of Management and Budget in 

accordance with the Paperwork 

Reduction Act of 1995 (44 U.S.C. 

3507(d)) and assigned control number 

1545–2209. 

Comments on the collection of 

information should be sent to the Office 

of Management and Budget, Attn: Desk 

Officer for the Department of the 

Treasury, Office of Information and 

Regulatory Affairs, Washington, DC 

20503, with copies to the Internal 

Revenue Service, Attn: IRS Reports 

Clearance Officer, 

SE:W:CAR:MP:T:T:SP, Washington, DC 

20224. Comments on the collection of 

information should be received by 

October 17, 2011. Comments are 

specifically requested concerning: 

Whether the proposed collection of 

information is necessary for the proper 

performance of the functions of the 

Internal Revenue Service, including 

whether the information will have 

practical utility; 

The accuracy of the estimated burden 

associated with the proposed collection 

of information; 

How the quality, utility, and clarity of 

the information to be collected may be 

enhanced; 

How the burden of complying with 

the proposed collection of information 

may be minimized, including through 

the application of automated collection 

techniques or other forms of information 

technology; and 

Estimates of capital or start-up costs 

of operation, maintenance, and 

purchase of service to provide 

information. 

The collection of information in this 

proposed regulation is in § 51.7. This 

information is necessary to evaluate 

whether an error report regarding a 

preliminary fee calculation is valid and 

justifies an adjustment to the 

preliminary fee calculation. The likely 

respondents are manufacturers and 

importers of branded prescription drugs. 

Estimated total annual reporting and/ 

or recordkeeping burden: 1800 hours. 

Estimated annual burden per 

respondent/recordkeeper: 40 hours. 

Estimated number of respondents 

and/or recordkeepers: 45. 

Estimated frequency of responses: 

Annually. 

An agency may not conduct or 

sponsor, and a person is not required to 

respond to, a collection of information 

unless the collection of information 

displays a valid control number. 

Books or records relating to a 

collection of information must be 

retained as long as their contents may 

become material in the administration 

of any internal revenue law. Generally, 

tax returns and tax return information 

are confidential, as required by 26 

U.S.C. 6103. 

Background 

Temporary regulations in the Rules 

and Regulations section of this issue of 

the Federal Register add a new part, 

part 51, to subchapter D, Miscellaneous 

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