2526 Federal Register / Vol. 89, No. 10 / Tuesday, January 16, 2024 / Proposed Rules 

NAS. The proposed route changes are 

described below. 

Q–104: Q–104 currently extends 

between the ACORI, AL, Waypoint 

(WP), and the St Petersburg, FL (PIE), 

Very High Frequency Omnidirectional 

Range/Tactical Air Navigation 

(VORTAC). Air Traffic Control (ATC) no 

longer uses the route. The FAA 

proposes to remove the route in its 

entirety. 

Q–108: Q–108 is a new RNAV route 

proposed to extend between the 

Louisville, KY (IIU), VORTAC and the 

Sea Isle, NJ (SIE), VORTAC. The route 

would overlay jet route J–526 between 

the Louisville VORTAC and the 

Beckley, WV (BKW), VOR/Distance 

Measuring Equipment (VOR/DME); 

RNAV route Q–34 between the SITTR, 

WV, WP and the MAULS, VA, WP; 

RNAV route Q–97 between the SAWED, 

VA, WP and the BYSEL, MD, Fix; and 

RNAV route Q–439 between the BYSEL 

Fix and the HOWYU, DE, WP. The new 

proposed RNAV route would provide 

connectivity between the Louisville, KY 

area and the Atlantic City, NJ area. 

Regulatory Notices and Analyses 

The FAA has determined that this 

proposed regulation only involves an 

established body of technical 

regulations for which frequent and 

routine amendments are necessary to 

keep them operationally current. It, 

therefore: (1) is not a ‘‘significant 

regulatory action’’ under Executive 

Order 12866; (2) is not a ‘‘significant 

rule’’ under DOT Regulatory Policies 

and Procedures (44 FR 11034; February 

26, 1979); and (3) does not warrant 

preparation of a regulatory evaluation as 

the anticipated impact is so minimal. 

Since this is a routine matter that will 

only affect air traffic procedures and air 

navigation, it is certified that this 

proposed rule, when promulgated, will 

not have a significant economic impact 

on a substantial number of small entities 

under the criteria of the Regulatory 

Flexibility Act. 

Environmental Review 

This proposal will be subject to an 

environmental analysis in accordance 

with FAA Order 1050.1F, 

‘‘Environmental Impacts: Policies and 

Procedures’’ prior to any FAA final 

regulatory action. 

List of Subjects in 14 CFR Part 71 

Airspace, Incorporation by reference, 

Navigation (air). 

The Proposed Amendment 

In consideration of the foregoing, the 

Federal Aviation Administration 

proposes to amend 14 CFR part 71 as 

follows: 

PART 71—DESIGNATION OF CLASS A, 

B, C, D, AND E AIRSPACE AREAS; AIR 

TRAFFIC SERVICE ROUTES; AND 

REPORTING POINTS 

■ 1. The authority citation for 14 CFR 

part 71 continues to read as follows: 

Authority: 49 U.S.C. 106(f), 106(g); 40103, 

40113, 40120; E.O. 10854, 24 FR 9565, 3 CFR, 

1959–1963 Comp., p. 389. 

§ 71.1 [Amended] 

■ 2. The incorporation by reference in 

14 CFR 71.1 of FAA Order JO 7400.11H, 

Airspace Designations and Reporting 

Points, dated August 11, 2023, and 

effective September 15, 2023, is 

amended as follows: 

Paragraph 2006 United States Area 

Navigation Routes. 

* * * * * 

Q–104 [Removed] 

* * * * * 

Q–108 Louisville, KY (IIU) to Sea Isle, NJ (SIE) [New] 

Louisville, KY (IIU) VORTAC (Lat. 38°06′12.47′′ N, long. 085°34′38.77′′ W) 

ZIEBR, KY FIX (Lat. 37°37′58.24′′ N, long. 082°45′10.76′′ W) 

SITTR, WV WP (Lat. 37°46′49.13′′ N, long. 081°07′23.70′′ W) 

DENNY, VA FIX (Lat. 37°52′00.15′′ N, long. 079°44′13.75′′ W) 

MAULS, VA WP (Lat. 37°52′49.36′′ N, long. 079°19′49.19′′ W) 

QUART, VA WP (Lat. 37°31′25.15′′ N, long. 077°42′53.29′′ W) 

HURTS, VA WP (Lat. 37°27′41.87′′ N, long. 076°57′17.75′′ W) 

SAWED, VA WP (Lat. 37°32′00.73′′ N, long. 075°51′29.10′′ W) 

KALDA, VA WP (Lat. 37°50′31.06′′ N, long. 075°37′35.34′′ W) 

ZJAAY, MD WP (Lat. 38°03′09.95′′ N, long. 075°26′34.27′′ W) 

BYSEL, MD FIX (Lat. 38°15′02.70′′ N, long. 075°16′52.87′′ W) 

ACTUP, DE FIX (Lat. 38°42′12.11′′ N, long. 075°11′10.30′′ W) 

Sea Isle, NJ (SIE) VORTAC (Lat. 39°05′43.83′′ N, long. 074°48′01.24′′ W) 

* * * * * 

Issued in Washington, DC, on January 8, 

2024. 

Frank Lias, 

Manager, Rules and Regulations Group. 

[FR Doc. 2024–00560 Filed 1–12–24; 8:45 am] 

BILLING CODE 4910–13–P 

FEDERAL TRADE COMMISSION 

16 CFR Part 465 

RIN 3084–AB76 

Rule on the Use of Consumer Reviews 

and Testimonials 

AGENCY: Federal Trade Commission. 

ACTION: Initial notice of informal 

hearing; final notice of informal hearing; 

list of Hearing Participants; requests for 

submissions from Hearing Participants. 

SUMMARY: The Federal Trade 

Commission (‘‘FTC’’ or ‘‘Commission’’) 

recently published a notice of proposed 

rulemaking (‘‘NPRM’’) in the Federal 

Register, titled ‘‘Rule on the Use of 

Consumer Reviews and Testimonials’’ 

(‘‘Reviews and Testimonials Rule’’ or 

‘‘Rule’’), which would prohibit certain 

specified unfair or deceptive acts or 

practices involving consumer reviews or 

testimonials. The NPRM announced the 

opportunity for interested parties to 

present their positions orally at an 

informal hearing. Three commenters 

requested to present their positions 

orally at the informal hearing. 

DATES:

Hearing date: The informal hearing 

will be conducted virtually on February 

13, 2024, at 10 a.m. Eastern, and the 

Commission’s Chief Presiding Officer, 

the Chair, has appointed Administrative 

Law Judge for the Securities and 

Exchange Commission, the Honorable 

Carol Fox Foelak, to serve as the 

presiding officer of the informal hearing. 

Participation deadline: If you are a 

hearing participant and would like to 

submit your oral presentation in writing 

or file a supplementary documentary 

submission, you can do so by 

submitting a comment on this 

rulemaking docket. You must do so on 

or before January 30, 2024. Write 

‘‘Reviews and Testimonials Rule; 

Project No. P214504’’ on your 

submission. 

ADDRESSES: Hearing Participants may 

submit their oral presentations in 

writing or file supplementary 

documentary submissions, online or on 

paper, by following the instructions in 

Part IV of the SUPPLEMENTARY

INFORMATION section below. Write 


ddrumheller on DSK120RN23PROD with PROPOSALS1
Federal Register / Vol. 89, No. 10 / Tuesday, January 16, 2024 / Proposed Rules 2527 

1See 88 FR 49364 (July 31, 2023). 

2See FTC, Reviews and Testimonials Rule, 

https://www.regulations.gov/document/FTC-2023- 

0047-0001/comment. The Commission also 

received sixteen comments that are non-responsive 

and two that are duplicates. 

3The FTC Act provides that ‘‘an interested person 

is entitled to present his position orally or by 

documentary submission (or both).’’ 15 U.S.C. 

57a(c)(2)(A). 

4 16 CFR 1.11(e). 

5 16 CFR 1.11(e)(1) through (3). 

6Fake Review Watch identified itself as an entity 

that ‘‘has been investigating online review fraud for 

over five years and has produced over 80 videos 

documenting the scope of the problem across 

multiple third-party review platforms,’’ and it 

recommended that the Commission impose specific 

disclosure requirements on third-party review 

platforms. Fake Review Watch, Cmt. on NPRM at 

1 (Aug. 8, 2023), https://www.regulations.gov/ 

comment/FTC-2023-0047-0015. 

7 IAB represents ‘‘over 700 leading media 

companies, brand marketers, agencies, and 

technology companies’’ responsible for ‘‘selling, 

delivering, and optimizing digital advertising and 

marketing campaigns,’’ and whose members 

‘‘account for 86 percent of online advertising 

expenditures’’ in the U.S. IAB, Cmt. on NPRM at 

1, (Sept. 29, 2023) https://www.regulations.gov/ 

comment/FTC-2023-0047-0101. 

8The Researchers ‘‘have studied how online 

review platforms can earn consumer trust by taking 

specific actions against firms and reviewers who 

write and propagate fake reviews.’’ The 

Researchers, Cmt. on NPRM, (Sept. 22, 2023) 

https://www.regulations.gov/comment/FTC-2023- 

0047-0060. 

9 16 CFR 1.12(a)(5) requires the initial notice of 

informal hearing to include a ‘‘list of the groups of 

interested persons determined by the Commission 

to have the same or similar interests in the 

proceeding.’’ 

10See 16 CFR 1.12(a)(3); 15 U.S.C. 57a(c)(2)(B); 

see also 88 FR 49364, 49381 (July 31, 2023). 

11Fake Review Watch requested that ‘‘the FTC 

hold an informal public hearing to give consumer 

advocates an opportunity to present evidence 

showing how third-party review platform policies 

and failures have contributed to the need for this 

rule in the first place.’’ Fake Review Watch, Cmt. 

on NPRM at 3–44. Fake Review Watch, however, 

failed to identify any specific, disputed issues of 

material fact. The Researchers requested the 

opportunity to speak at a hearing to provide further 

explanation of their findings but did not identify 

any specific disputed issues of material fact. The 

Researchers, Cmt. on NPRM at 3. 

12 IAB, Cmt. on NPRM at 15. 

13See, e.g., 16 CFR 1.13(b)(1)(i) (issues that 

‘‘must’’ be considered for cross-examination or 

rebuttal are only those disputed issues of fact the 

Commission determines to be ‘‘material’’ and 

‘‘necessary to resolve’’). 

14 16 CFR 1.12(b)(1) (‘‘An issue for crossexamination or the presentation of rebuttal 

submissions, is an issue of specific fact in contrast 

to legislative fact.’’). ‘‘The only disputed issues of 

material fact to be determined for resolution by the 

Commission are those issues characterized as issues 

of specific fact in contrast to legislative fact. It was 

the judgment of the conferees that more effective, 

workable and meaningful rules will be promulgated 

if persons affected by such rules have the 

opportunity afforded by the bill, by crossexamination and rebuttal evidence or other 

submissions, to challenge the factual assumptions 

on which the Commission is proceeding and to 

show in what respect such assumptions are 

Continued 

‘‘Reviews and Testimonials Rule; 

Project No. P214504’’ on your 

submission, and file it online through 

https://www.regulations.gov. If you 

prefer to file your submission on paper, 

mail it via overnight service to the 

following address: Federal Trade 

Commission, Office of the Secretary, 

600 Pennsylvania Avenue NW, Suite 

CC–5610 (Annex R), Washington, DC 

20580. 

FOR FURTHER INFORMATION CONTACT: 

Michael Ostheimer, Attorney, (202) 

326–2699, Division of Advertising 

Practices, Bureau of Consumer 

Protection, Federal Trade Commission, 

600 Pennsylvania Avenue NW, 

Washington, DC 20580. 

SUPPLEMENTARY INFORMATION: 

I. Background 

On November 8, 2022, the 

Commission published an advance 

notice of proposed rulemaking 

(‘‘ANPRM’’) in the Federal Register 

announcing that the Commission was 

considering the promulgation of 

regulations to prohibit certain specified 

unfair or deceptive acts or practices 

involving consumer reviews or 

testimonials. See 87 FR 67424 (Nov. 8, 

2022). On July 31, 2023, following the 

consideration of comments received in 

response to the ANPRM, the 

Commission published a NPRM in the 

Federal Register, proposing to add part 

465 to 16 CFR, Chapter I, to prohibit 

certain specified unfair or deceptive acts 

or practices involving consumer reviews 

or testimonials. See 88 FR 49364 (July 

31, 2023). 

In accordance with section 18(b)(1) of 

the FTC Act, 15 U.S.C. 57a(b)(1), which 

requires the Commission to provide the 

opportunity for an informal hearing in 

section 18 rulemaking proceedings, the 

NPRM also announced the opportunity 

for interested persons to present their 

positions orally at an informal hearing.1

During the NPRM’s comment period, 

the Commission received 100 

responsive comments.2 Three of the 

commenters requested the opportunity 

to present their position orally at an 

informal hearing. 

II. The Requests for an Informal 

Hearing; Presentation of Oral 

Submissions 

Section 18 of the FTC Act, 15 U.S.C. 

57a, as implemented by the 

Commission’s Rules of Practice, 16 CFR 

1.11(e),3 provides interested persons 

with the opportunity to present their 

positions orally at an informal hearing 

upon request.4 To make such a request, 

a commenter must submit, no later than 

the close of the comment period for the 

NPRM, (1) a request to make an oral 

submission; (2) a statement identifying 

the interested person’s interests in the 

proceeding; and (3) any proposal to add 

disputed issues of material fact to be 

addressed at the hearing.5

The following three commenters 

requested to present their positions 

orally at the informal hearing in 

accordance with requirements of 16 CFR 

1.11(e): 

1. Fake Review Watch; 6

2. Interactive Advertising Bureau 

(‘‘IAB’’); 7 and 

3. A group of three researchers at 

Brigham Young University, The 

Pennsylvania State University, and 

Emory University (‘‘Researchers’’).8

The Commission finds these requests 

were adequate and therefore will hold 

an informal hearing. These commenters 

will have the opportunity to make oral 

presentations during the informal 

hearing. No other interested persons 

requested under 16 CFR 1.11(e) to 

participate in an informal hearing, and 

therefore no other interested persons 

will be permitted to make oral 

presentations at the informal hearing. 

The Commission declines to identify 

any group of interested persons with the 

same or similar interest in the 

proceeding.9

III. Disputed Issues of Material Fact; 

Final Notice 

In the NPRM, the Commission did not 

identify any disputed issues of material 

fact that needed to be resolved at an 

informal hearing. However, the 

Commission may still do so in the 

initial notice of informal hearing, either 

on its own initiative or in response to 

a persuasive showing from a 

commenter.10 IAB proposed several 

potential disputed issues of material fact 

for the Commission’s consideration.11

IAB12 indicated that it ‘‘intended to 

raise’’: 

1. ‘‘Whether color, size, count, and 

flavor are the only attributes that would 

not confuse consumers when combined 

on a product page.’’ 

2. ‘‘Whether the compliance costs for 

businesses will be minimal, particularly 

if the ‘knew or should have known’ 

standard is finalized.’’ 

3. ‘‘Whether the Commission’s finding 

that unintended consequences from the 

NPRM are unlikely [is correct] (e.g., for 

fear of violating the review suppression 

section, businesses will allow more fake 

reviews to stay up on their websites).’’ 

To be appropriate for crossexamination or rebuttal, a disputed 

issue of material fact must raise 

‘‘specific facts’’ that are ‘‘necessary to be 

resolved’’ 13 and not ‘‘legislative 

facts.’’ 14 Unlike specific facts, 


ddrumheller on DSK120RN23PROD with PROPOSALS1
2528 Federal Register / Vol. 89, No. 10 / Tuesday, January 16, 2024 / Proposed Rules 

erroneous.’’ H.R. Rep. No. 93–1606, at 34 (Dec. 16, 

1974) (Conf. Rep.). Further, as explained in 

Association of National Advertisers, Inc. v. FTC, 

627 F.2d 1151, 1164 (D.C. Cir. 1979), the distinction 

between ‘‘specific fact’’ and ‘‘legislative fact’’ grew 

out of a recommendation from the Administrative 

Conference of the United States (ACUS): 

Conference Recommendation 72–5 is addressed 

exclusively to agency rulemaking of general 

applicability. In such a proceeding, almost by 

definition, adjudicative facts are not at issue, and 

the agency should ordinarily be free to, and 

ordinarily would, proceed by the route of written 

comments, supplemented, perhaps, by a legislativetype hearing. Yet there may arise occasionally in 

such rulemaking proceedings factual issues which, 

though not adjudicative, nevertheless justify 

exploration in a trial-type format because they are 

sufficiently narrow in focus and sufficiently 

material to the outcome of the proceeding to make 

it reasonable and useful for the agency to resort to 

trial-type procedure to resolve them. These are what 

the Recommendation refers to as issues of specific 

fact. 

Id. at 1164. 

15Ass’n of Nat’l Advertisers, 627 F.2d at 1161–62. 

16See, e.g., H.R. Rep. No. 93–1107, 93d Cong., 2d 

Sess., reprinted in 1974 U.S.C.C.A.N. 7702, 7728; 

Ass’n of Nat’l Advertisers, 627 F.2d at 1163 (quoting 

H.R. Rep. No. 93–1606, at 33 (1974) (Conf. Report)). 

17As explained in the legislative history: 

The words ‘disputed issues of material fact’ are 

intended to describe and limit the scope of crossexamination in a rulemaking proceeding. Thus, the 

right of participants in the proceeding to crossexamine Commission witnesses does not include 

cross-examination on issues as to which there is not 

a bona fide dispute. In this connection, the 

Committee considers the rules of summary 

judgment applied by the courts analogous. Where 

the weight of the evidence is such that there can 

be no bona fide dispute over the facts, summary 

judgment is proper. Similarly, in such a situation 

cross-examination would not be permitted; neither 

is a participant entitled to cross-examination where 

the disputed issues do not involve material facts. 

This language in the bill is used to distinguish facts 

which might be relevant to the proceeding but not 

of significant enough import to rise to the level of 

materiality. The word material is used here with the 

same meaning it is given under the common law 

rules of evidence. Also of importance is the word 

‘fact.’ Cross-examination is not required regarding 

issues in rulemaking proceedings which are not 

issues of fact. Examples of such issues are matters 

of law or policy or matters whose determination has 

been primarily vested by Congress in the Federal 

Trade Commission. Thus, unless the subject matter 

with regard as to which cross-examination is sought 

relates to disputed issues, which are material to the 

proposed rule and which are fact issues, there is no 

right to cross-examination on the part of any party 

to the proceeding. 

H.R. Rep. No. 93–1107, 93d Cong., 2d Sess., 

reprinted in 1974 U.S.C. C.A.N. 7702, 7728. 

18 Id.; see also Anderson v. Liberty Lobby, Inc., 

477 U.S. 242, 248 (1986) (explaining the standard 

as ‘‘[o]nly disputes over facts that might affect the 

outcome’’); Matsushita Elec. Indus. Co. v. Zenith 

Radio Corp., 475 U.S. 574, 586 (1986). 

19See IAB, Cmt. on NPRM at 8 (asserting that it 

is non-deceptive for reviews of a book offered as a 

paperback, e-book, audiobook, and hard cover to be 

presented on the same page); Amazon.com, Inc., 

Cmt. on NPRM at 10 (Sept. 29, 2023), https://

www.regulations.gov/comment/FTC-2023-0047- 

0085 (asserting non-deceptive linking of crew neck 

and v-neck undershirts); U.S. Chamber of 

Commerce, Cmt. on NPRM at 7 (Sept. 29, 2023), 

https://www.regulations.gov/comment/FTC-2023- 

0047-0087 (referring to linked reviews for cotton 

and sateen sheets from the same company, for a 

ceramic bowl with or without handles from a small 

seller, or for annual iterations of dog toys with new 

characters); National Retail Federation, Cmt. on 

NPRM at 7–8 (Sept. 29, 2023), https://

www.regulations.gov/comment/FTC-2023-0047- 

0090 (asserting non-deceptive linking of the same 

products with different patterns, materials, or 

artwork; t-shirts with v-necks and crewnecks; scents 

of soap; and individual golf clubs of the same set); 

Retail Industry Leaders Association, Cmt. on NPRM 

at 3 (Sept. 29, 2023), https://www.regulations.gov/ 

comment/FTC-2023-0047-0094 (arguing that other 

attributes that do not change the overall design and 

formulation of a product should not be considered 

‘‘substantial differences’’); Association of National 

Advertisers, Cmt. on NPRM at 15–16 (Sept. 29, 

2023), https://www.regulations.gov/comment/FTC2023-0047-0105 (asserting that the bundling of air 

fresheners with different scents or sunscreens with 

different SPFs can be non-deceptive and making 

similar assertions about products that come in 

squeeze tube versions or that are sold in bundles). 

20See Trustpilot, Cmt. on NPRM at 10 (Sept. 29, 

2023), https://www.regulations.gov/comment/FTC2023-0047-0084; Consumer Reports, Cmt. on NPRM 

at 7 (Sept. 29, 2023), https://www.regulations.gov/ 

comment/FTC-2023-0047-0099. 

21Ass’n of Nat’l Advertisers, 627 F.2d at 1161–62. 

22See supra nn.13–17. 

legislative facts ‘‘help . . . determine 

the content of law and of policy’’ and do 

not need to ‘‘be developed through 

evidentiary hearings’’ because they 

‘‘combine empirical observation with 

application of administrative expertise 

to reach generalized conclusions.’’ 15

Moreover, the relevant legislative 

history explains ‘‘disputed issues of 

material fact necessary to be resolved’’ 

should be interpreted narrowly.16 In this 

context, ‘‘disputed’’ and ‘‘material’’ are 

given the same meaning as in the 

standard for summary judgment.17 As in 

summary judgment, the challenging 

party must do more than simply assert 

there is a dispute regarding the 

Commission’s findings. If those findings 

are otherwise adequately supported by 

record evidence, the challenging party 

must come forward with sufficient 

evidence to show there is a genuine, 

bona fide dispute over material facts 

that will affect the outcome of the 

proceeding.18 IAB proposed disputed 

issues of material fact challenging (1) 

the Commission’s proposed definition 

of ‘‘substantially different product’’ as a 

‘‘product that differs from another 

product in one or more material 

attributes other than color, size, count, 

or flavor’’; (2) the Commission’s 

statements on the proposed Rule’s 

economic impact; and (3) the 

Commission’s NPRM’s finding that 

unintended consequences from 

finalizing the proposed rule are 

unlikely. 

IAB’s first proposed disputed issue of 

material fact questions the proposed 

definition of ‘‘substantially different 

product,’’ a term that, beyond the 

definition itself, appears only in 

proposed § 465.3. IAB asserted that the 

record did not contain evidence as to 

whether there are product attributes 

other than color, size, count, or flavor 

that can be combined on a product page 

without misleading consumers. In 

response to the NPRM, IAB and other 

commenters asserted that the reviews of 

products with certain differences other 

than color, size, count, or flavor could 

be linked without deceiving consumers 

and gave examples of what they argue 

are or could be such non-deceptive 

product differences.19 Other 

commenters supported the proposed 

definition as written but did not address 

whether there were other non-deceptive 

product differences.20 The Commission 

has decided to not proceed at this time 

with proposed § 465.3. It is therefore not 

necessary to address IAB’s proposed 

disputed issue of material fact relating 

to the proposed definition of 

‘‘substantially different product.’’ 

IAB also proposed two other disputed 

issues of material fact, which involve 

the Commission’s findings: (1) on the 

proposed Rule’s economic impact; and 

(2) that unintended consequences from 

finalizing the proposed rule are 

unlikely. 

First, such findings are sufficiently 

supported by substantial evidence in the 

record, and the commenter identified no 

evidence challenging the FTC’s 

conclusions. For example, the cost 

estimates in the NPRM are specific and 

based on empirical data. Staff’s careful 

analysis of this data resulted in the wellreasoned conclusion that, even under a 

‘‘heightened compliance review 

scenario’’ for firms that decide to be 

extra-cautious, and even with a 

conservative estimation of benefits, such 

benefits would still dwarf the minimal 

costs. 

Second, these two proposed issues 

challenge the Commission’s findings 

only as to ‘‘legislative facts,’’ which, 

unlike specific facts, ‘‘help . . . 

determine the content of law and of 

policy’’ and do not need to ‘‘be 

developed through evidentiary 

hearings’’ because they ‘‘combine 

empirical observation with application 

of administrative expertise to reach 

generalized conclusions.’’ 21 General 

concerns about a rule’s overall effect on 

the marketplace, whether framed in 

terms of economic impact or 

unintended consequences, are precisely 

the sort of questions of policy or broad 

fact intended to fall under the category 

of ‘‘legislative facts.’’ As these two 

issues do not raise questions of ‘‘specific 

fact,’’ they do not warrant crossexamination and rebuttal submissions.22

Thus, the Commission finds that there 

are no ‘‘disputed issues of material fact’’ 


ddrumheller on DSK120RN23PROD with PROPOSALS1
Federal Register / Vol. 89, No. 10 / Tuesday, January 16, 2024 / Proposed Rules 2529 

23 If any interested person seeks to have 

additional disputed issues of material fact 

designated, the person may make such request to 

the presiding officer pursuant to 16 CFR 

1.13(b)(1)(ii). 

24 16 CFR 1.12(b). 

25 16 CFR 1.12(c). 

26 Id. 

to resolve at the hearing 23 and no need 

for cross-examination or rebuttal 

submissions.24

This initial notice of informal hearing 

also serves as the ‘‘final notice of 

informal hearing.’’ 25 A final notice of 

informal hearing is limited in its 

substance to matters that arise only 

when the Commission designates 

disputed issues of material fact: who 

will conduct cross-examination; 

whether any interested persons with 

similar interests will be grouped 

together for such purposes; and who 

will make rebuttal submissions.26

Because cross-examination and 

submission of rebuttal evidence are not 

anticipated to occur in this informal 

hearing, no separate final notice of 

informal hearing is necessary. 

IV. List of Hearing Participants; Making 

an Oral Statement; Requests for 

Documentary Submissions 

Pursuant to Commission Rule 

1.12(a)(4), 16 CFR 1.12(a)(4), the 

following is the list of interested 

persons (‘‘Hearing Participants’’) who 

will have the opportunity to make oral 

presentations at the informal hearing: 

1. Fake Review Watch; 

2. IAB; and 

3. The Researchers. 

Oral statements will be limited to 30 

minutes, although they may be 

supplemented by documentary 

submissions as described below, and the 

presiding officer may grant an extension 

of time for good cause shown. 

Transcripts of the oral statements will 

be placed in the rulemaking record. 

Hearing Participants will be provided 

with instructions as to how to 

participate in the virtual hearing. 

If you are a Hearing Participant and 

would like to submit your oral 

presentation in writing or file a 

supplementary documentary 

submission, you can do so by 

submitting a comment on this 

rulemaking docket. You must do so on 

or before January 30, 2024. Write 

‘‘Reviews and Testimonials Rule; 

Project No. P214504’’ on your 

submission. If you file a documentary 

submission under this section, your 

documentary submission—including 

your name and your state—will be 

placed on the public record of this 

proceeding, including on the website 

https://www.regulations.gov. To ensure 

the Commission considers your online 

documentary submission, please follow 

the instructions on the web-based form. 

Because your documentary 

submission will be placed on the public 

record, you are solely responsible for 

making sure that it does not include any 

sensitive or confidential information. 

Your documentary submission should 

not contain sensitive personal 

information, such as your or anyone 

else’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 your 

documentary submission does not 

include any sensitive health 

information, such as medical records or 

other individually identifiable health 

information. In addition, your 

documentary submission should not 

include any ‘‘[t]rade secret or any 

commercial or financial information 

which . . . is privileged or 

confidential’’—as provided in section 

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

Commission Rule 4.10(a)(2), 16 CFR 

4.10(a)(2)—including, in particular, 

competitively sensitive information 

such as costs, sales statistics, 

inventories, formulas, patterns, devices, 

manufacturing processes, or customer 

names. 

Documentary submissions containing 

material for which confidential 

treatment is requested must be filed in 

paper form, must be clearly labeled 

‘‘Confidential,’’ and must comply with 

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

In particular, the written request for 

confidential treatment that accompanies 

the submission must include the factual 

and legal basis for the confidentiality 

request and must identify the specific 

portions to be withheld from the public 

record. See Commission Rule 4.9(c). 

Your documentary submission will be 

kept confidential only if the General 

Counsel grants your request in 

accordance with the law and the public 

interest. Once your documentary 

submission has been posted publicly at 

https://www.regulations.gov—as legally 

required by Commission Rule 4.9(b), 16 

CFR 4.9(b)—we cannot redact or remove 

it, unless you submit a confidentiality 

request that meets the requirements for 

such treatment under Commission Rule 

4.9(c), 16 CFR 4.9(c), and the General 

Counsel grants that request. 

Visit the FTC website to read this 

document and the news release 

describing it. The FTC Act and other 

laws that the Commission administers 

permit the collection of submissions to 

consider and use in this proceeding as 

appropriate. The Commission will 

consider all timely and responsive 

documentary submissions it receives 

from the Hearing Participants on or 

before January 30, 2024. For information 

on the Commission’s privacy policy, 

including routine uses permitted by the 

Privacy Act, see https://www.ftc.gov/ 

site-information/privacy-policy. 

Hearing Participants who need 

assistance should indicate as much in 

their comment, and the Commission 

will endeavor to provide 

accommodations. Hearing Participants 

without the computer technology 

necessary to participate in video 

conferencing will be able to participate 

in the informal hearing by telephone; 

they should indicate as much in their 

comments. 

V. Conduct of the Informal Hearing; 

Role of Presiding Officer 

The Commission’s Chief Presiding 

Officer, the Chair, has appointed and 

designates the Honorable Carol Fox 

Foelak, Administrative Law Judge for 

the Securities and Exchange 

Commission, to serve as the presiding 

officer of the informal hearing. Judge 

Foelak will conduct the informal 

hearing virtually using video 

conferencing starting at 10:00 a.m. 

Eastern on February 13, 2024. The 

informal hearing will be available for 

the public to watch live from the 

Commission’s website, https://

www.ftc.gov, and a recording or 

transcript of the informal hearing will 

be placed in the rulemaking record. 

Because there are no ‘‘disputed issues 

of material fact’’ to resolve at the 

informal hearing, the presiding officer is 

not anticipated to make a recommended 

decision. The role of the presiding 

officer therefore will be to preside over 

and ensure the orderly conduct of the 

informal hearing, including selecting 

the sequence in which oral statements 

will be heard, and to place the transcript 

and any additional written submissions 

received into the rulemaking record. 

The presiding officer may prescribe 

additional procedures or issue rulings in 

accordance with 16 CFR 1.13. In 

execution of the presiding officer’s 

obligations and responsibilities under 

the Commission Rules, the presiding 

officer may issue additional public 

notices. 

VI. Communications by Outside Parties 

to the Commissioners or Their Advisors 

Pursuant to Commission Rule 

1.18(c)(1), 16 CFR 1.18(c)(1), the 

Commission has determined that 

communications with respect to the 

merits of this proceeding from any 

outside party to any Commissioner or 


ddrumheller on DSK120RN23PROD with PROPOSALS1
2530 Federal Register / Vol. 89, No. 10 / Tuesday, January 16, 2024 / Proposed Rules 

27See 15 U.S.C. 57a(i)(2)(A); 16 CFR 1.18(c). 

1On November 29, 2023, the Commission voted 

(4–0) to publish this notice of proposed rulemaking, 

with an amendment proposed by Commissioner 

Trumka. Commissioners Trumka and Boyle issued 

statements in connection with their votes, available 

at: https://www.cpsc.gov/s3fs-public/2023-11-29- 

Commission-Meeting-Minutes-Infant-SupportCushions-NPR-Decisional.pdf?

VersionId=9Y0qjnS2A74SHa932Sz

V9txWDIaMddXU. 

Commissioner advisor shall be subject 

to the following treatment. Written 

communications and summaries or 

transcripts of oral communications shall 

be placed on the rulemaking record if 

the communication is received before 

the end of the comment period. They 

shall be placed on the public record if 

the communication is received later. 

Unless the outside party making an oral 

communication is a member of 

Congress, such communications are 

permitted only if advance notice is 

published in the Weekly Calendar and 

Notice of ‘‘Sunshine’’ Meetings.27

By direction of the Commission. 

Joel Christie, 

Acting Secretary. 

[FR Doc. 2024–00678 Filed 1–12–24; 8:45 am] 

BILLING CODE 6750–01–P 

CONSUMER PRODUCT SAFETY 

COMMISSION 

16 CFR Parts 1112, 1130, and 1243 

[CPSC Docket No. 2023–0047] 

Safety Standard for Infant Support 

Cushions 

AGENCY: Consumer Product Safety 

Commission. 

ACTION: Notice of proposed rulemaking. 

SUMMARY: The Danny Keysar Child 

Product Safety Notification Act, section 

104 of the Consumer Product Safety 

Improvement Act of 2008 (CPSIA), 

requires the U.S. Consumer Product 

Safety Commission (Commission or 

CPSC) to promulgate consumer product 

safety standards for durable infant or 

toddler products. Under this statutory 

direction, the Commission is proposing 

a safety standard for infant support 

cushions. The Commission is also 

proposing to amend CPSC’s consumer 

registration requirements to identify 

infant support cushions as durable 

infant or toddler products and 

proposing to amend CPSC’s list of 

notices of requirements (NORs) to 

include infant support cushions. 

DATES: Submit comments by March 18, 

2024. 

ADDRESSES: Comments related to the 

Paperwork Reduction Act aspects of the 

marking, labeling, and instructional 

literature requirements of the proposed 

rule should be directed to the Office of 

Information and Regulatory Affairs, 

Office of Management and Budget, Attn: 

CPSC Desk Officer, FAX: 202–395–6974, 

or emailed to oira_submission@

omb.eop.gov. 

Other comments, identified by Docket 

No. CPSC–2023–0047, may be 

submitted electronically or in writing, 

as follows: 

Electronic Submissions: Submit 

electronic comments to the Federal 

eRulemaking Portal at: https://

www.regulations.gov. Follow the 

instructions for submitting comments. 

Do not submit through this website: 

confidential business information, trade 

secret information, or other sensitive or 

protected information that you do not 

want to be available to the public. CPSC 

typically does not accept comments 

submitted by email, except as described 

below. 

Mail/Hand Delivery/Courier/ 

Confidential Written Submissions: CPSC 

encourages you to submit electronic 

comments by using the Federal 

eRulemaking Portal. You may, however, 

submit comments by mail, hand 

delivery, or courier to: Office of the 

Secretary, Consumer Product Safety 

Commission, 4330 East West Highway, 

Bethesda, MD 20814; telephone: (301) 

504–7479. 

Instructions: All submissions received 

must include the agency name and 

docket number for this proposed 

rulemaking. CPSC may post all 

comments without change, including 

any personal identifiers, contact 

information, or other personal 

information provided, to: 

www.regulations.gov. If you wish to 

submit confidential business 

information, trade secret information, or 

other sensitive or protected information 

that you do not want to be available to 

the public, you may submit such 

comments by mail, hand delivery, or 

courier, or you may email them to: cpscos@cpsc.gov. 

Docket: For access to the docket to 

read background documents or 

comments received, go to: https://

www.regulations.gov, insert the docket 

number, CPSC–2023–0047, into the 

‘‘Search’’ box, and follow the prompts. 

FOR FURTHER INFORMATION CONTACT: 

Stefanie Marques, Ph.D., Project 

Manager, Directorate for Health 

Sciences, U.S. Consumer Product Safety 

Commission, 5 Research Place, 

Rockville, MD 20850; email: smarques@

cpsc.gov; telephone: (301) 987–2581. 

SUPPLEMENTARY INFORMATION: 

I. Background and Statutory Authority 

Section 104(b) of the CPSIA requires 

the Commission to (1) examine and 

assess the effectiveness of voluntary 

consumer product safety standards for 

durable infant or toddler products, in 

consultation with representatives of 

consumer groups, juvenile product 

manufacturers, and independent child 

product engineers and experts and (2) 

promulgate consumer product safety 

standards for durable infant and toddler 

products. 15 U.S.C. 2056a(b)(1). The 

Commission must continue to 

promulgate standards for all categories 

of durable infant or toddler products 

‘‘until the Commission has promulgated 

standards for all such product 

categories.’’ 15 U.S.C. 2056a(b)(2). 

The Commission is issuing this notice 

of proposed rulemaking (NPR) to 

establish a consumer product safety rule 

for infant support cushions to further 

implement section 104 of the CPSIA.1

The proposed rule defines an ‘‘infant 

support cushion’’ as ‘‘an infant product 

that is filled with or comprised of 

resilient material such as foam, fibrous 

batting, or granular material or with a 

gel, liquid, or gas, and which is 

marketed, designed, or intended to 

support an infant’s weight or any 

portion of an infant while reclining or 

in a supine, prone, or recumbent 

position.’’ This includes infant pillows, 

infant loungers, nursing pillows with a 

lounging function, infant props or 

cushions used to support an infant for 

activities such as ‘‘tummy time,’’ and 

other similar products. 

CPSC staff identified at least 79 

reported fatalities involving infant 

support cushions from January 1, 2010, 

through December 31, 2022, as well as 

125 nonfatal incidents or reports 

involving these products within the 

same time period. There were 17 deaths 

in 2020, and at least 17 more in the 

potentially incomplete data from 2021. 

More than 80 percent of the fatalities 

associated with these products involved 

infants three months old and younger. 

In more than 60 percent of the fatalities, 

the official cause of death was either 

asphyxia or probable asphyxia, and 

these incidents typically involved use of 

an infant support cushion placed in or 

on a sleep-related consumer product 

such as an adult bed, futon, crib, 

bassinet, play yard, or a on a couch. For 

the nonfatal incidents, the most 

common circumstances involved an 

infant falling from an infant support 

cushion placed on a raised surface such 

as a bed or a sofa or the threat of 

asphyxia or entrapment. 

This proposed rule addresses the risk 

of death and injury associated with 


ddrumheller on DSK120RN23PROD with PROPOSALS1