Federal Register / Vol. 74, No. 92 / Thursday, May 14, 2009 / Proposed Rules 22717 

internet through the Federal 

eRulemaking Portal referenced in 

paragraph (1). 

List of Subjects in 14 CFR Part 93 

Air traffic control, Airports, 

Navigation (air), Recordkeeping and 

reporting requirements. 

The Proposed Amendment 

In consideration of the foregoing, the 

Federal Aviation Administration 

proposes to amend Chapter I of Title 14, 

Code of Federal Regulations, as follows: 

PART 93—SPECIAL AIR TRAFFIC 

RULES 

1. The authority citation for part 93 

continues to read as follows: 

Authority: 49 U.S.C. 106(g), 40103, 40106, 

40109, 40113, 44502, 44514, 44701, 44719, 

46301. 

Subpart N—[Removed and Reserved] 

2. Remove and reserve Subpart N. 

Issued in Washington, DC, on May 7, 2009. 

Nan Shellabarger, 

Director of Aviation Policy and Plans. 

[FR Doc. E9–11293 Filed 5–13–09; 8:45 am] 

BILLING CODE 4910–13–P 

DEPARTMENT OF TRANSPORTATION 

Federal Aviation Administration 

14 CFR Part 93 

[Docket No. FAA–2006–25709; Notice No. 

09–04] 

RIN 2120–AJ49 

Congestion Management Rule for 

LaGuardia Airport 

AGENCY: Federal Aviation 

Administration (FAA). 

ACTION: Notice of proposed rescission. 

SUMMARY: The FAA proposes to rescind 

the final rule Congestion Management 

Rule for LaGuardia Airport. The final 

rule established procedures to address 

congestion in the New York City area by 

assigning slots at LaGuardia Airport 

(LaGuardia), assigning to existing 

operators the majority of slots at the 

airports, and creating a market by 

annually auctioning off a limited 

number of slots in each of the first five 

years of the rule. The final rule also 

contained provisions for minimum 

usage, capping unscheduled operations, 

and withdrawal for operational need. 

The rule was scheduled to sunset in ten 

years. 

DATES: Send your comments on or 

before June 15, 2009. 

ADDRESSES: You may send comments 

identified by Docket Number FAA– 

2006–25709 using any of the following 

methods: 

• Federal eRulemaking Portal: Go to 

http://www.regulations.gov and follow 

the online instructions for sending your 

comments electronically. 

• Mail: Send comments to Docket 

Operations, M–30; U.S. Department of 

Transportation, 1200 New Jersey 

Avenue, SE., Room W12–140, West 

Building Ground Floor, Washington, DC 

20590–0001. 

• Hand Delivery or Courier: Bring 

comments to Docket Operations in 

Room W12–140 of the West Building 

Ground Floor at 1200 New Jersey 

Avenue, SE., Washington, DC, between 

9 a.m. and 5 p.m., Monday through 

Friday, except Federal holidays. 

• Fax: Fax comments to Docket 

Operations at 202–493–2251. 

For more information on the 

rulemaking process, see the 

SUPPLEMENTARY INFORMATION section of 

this document. 

Privacy: We will post all comments 

we receive, without change, to http:// 

www.regulations.gov, including any 

personal information you provide. 

Using the search function of our docket 

web site, anyone can find and read the 

electronic form of all comments 

received into any of our dockets, 

including the name of the individual 

sending the comment (or signing the 

comment for an association, business, 

labor union, etc.). You may review the 

Department of Transportation’s 

complete Privacy Act Statement in the 

Federal Register published on April 11, 

2000 (65 FR 19477–78) or you may visit 

http://DocketsInfo.dot.gov. 

Docket: To read background 

documents or comments received, go to 

http://www.regulations.gov at any time 

and follow the online instructions for 

accessing the docket. Or, go to the 

Docket Operations in Room W12–140 of 

the West Building Ground Floor at 1200 

New Jersey Avenue, SE., Washington, 

DC, between 9 a.m. and 5 p.m., Monday 

through Friday, except Federal holidays. 

FOR FURTHER INFORMATION CONTACT: For 

questions concerning this rulemaking, 

contact: Molly W. Smith, Office of 

Aviation Policy and Plans, APO–200, 

Federal Aviation Administration, 800 

Independence Avenue, SW., 

Washington, DC 20591; telephone (202) 

267–3275; e-mail 

molly.w.smith@faa.gov. For legal 

questions concerning this rulemaking, 

contact: Rebecca MacPherson, FAA 

Office of the Chief Counsel, 800 

Independence Ave., SW., Washington, 

DC 20591; telephone (202) 267–3073; 

e-mail rebecca.macpherson@faa.gov. 

SUPPLEMENTARY INFORMATION: Later in 

this preamble under the Additional 

Information section, we discuss how 

you can comment on this proposal and 

how we will handle your comments. 

Included in this discussion is related 

information about the docket, privacy, 

and the handling of proprietary or 

confidential business information. We 

also discuss how you can get a copy of 

this proposal and related rulemaking 

documents. 

Authority for This Rulemaking 

The FAA has broad authority under 

49 U.S.C. 40103 to regulate the use of 

the navigable airspace of the United 

States. This section authorizes the FAA 

to develop plans and policy for the use 

of navigable airspace and to assign the 

use that the FAA deems necessary for its 

safe and efficient utilization. It further 

directs the FAA to prescribe air traffic 

rules and regulations governing the 

efficient utilization of the navigable 

airspace. 

I. Background 

The final rule Congestion 

Management Rule for LaGuardia Airport 

was published in the Federal Register 

on October 10, 2008 (73 FR 60574). The 

final rule established procedures to 

address congestion in the New York 

City area by assigning slots at LaGuardia 

Airport (LaGuardia), assigning to 

existing operators the majority of slots at 

the airports, and creating a market by 

annually auctioning off a limited 

number of slots in each of the first five 

years of the rule. The final rule also 

contained provisions for minimum 

usage, capping unscheduled operations, 

and withdrawal for operational need. 

The rule was scheduled to sunset in ten 

years and was to become effective 

December 9, 2008. 

The rulemaking was highly 

controversial. On August 29, 2006, the 

FAA had published a notice of proposed 

rulemaking (NPRM) proposing 

continuation of the cap on hourly 

operations at the airport as well as a 

new method of allocating capacity (71 

FR 51360). The industry response to the 

new allocation method proposed in the 

NPRM was universally negative, 

although very few commenters argued 

that a cap on operations at the airport 

was unnecessary. The FAA received 

comments from 61 different 

commenters, with some commenters 

making multiple submissions. The FAA 

then published a supplemental notice of 

proposed rulemaking (SNPRM) on April 

17, 2008 (73 FR 20846). Twenty-six 

interested parties filed comments to the 

docket addressing the SNPRM. The 

majority of comments were consistent in 


sroberts on PROD1PC70 with PROPOSALS
22718 Federal Register / Vol. 74, No. 92 / Thursday, May 14, 2009 / Proposed Rules 

1Operating Limitations at New York LaGuardia 

Airport (LaGuardia Order), December 27, 2006 (71 

FR 77854), as amended November 8, 2007 (72 FR 

63224), August 19, 2008 (73 FR 48248), January 8, 

2009 (74 FR 845), and January 15, 2009 (74 FR 

2646). 2Public Law 111–5, 123 Stat. 115 (Feb. 17, 2009). 

rejecting the proposal. Many 

commenters said that the FAA had 

failed to demonstrate how the proposal 

would achieve any significant relief 

from congestion. Rather, according to 

the commenters, the SNPRM would 

impose an untested and unproven 

auction process on airlines that would 

not address the fundamental airspace 

congestion issues in the New York 

metro area. While other commenters did 

not completely object to an auction 

mechanism, they did note that the 

timing was not right or that the auction 

procedures needed to be fully 

developed prior to finalizing any rule. 

The final rule was challenged by 

several parties before it could take 

effect. Petitioners included the Port 

Authority of New York and New Jersey, 

the Air Transport Association of 

America, Inc. (ATA), the International 

Air Transport Association (IATA), 

Continental, and US Airways. The 

petitioners sought a stay of the final rule 

pending judicial review, arguing that 

they would likely succeed on the merits 

of the underlying litigation, they would 

suffer irreparable harm, a stay would 

not harm other parties, and a stay was 

in the public interest. On December 8, 

2008, the United States Court of 

Appeals for the District of Columbia 

Circuit determined that the petitioners 

had satisfied the standards for a stay 

and issued an order staying the rule. 

Accordingly, the rule has never been 

implemented. On January 22, 2009, the 

ATA requested that the Secretary of 

Transportation, Ray LaHood, withdraw 

the final rule in light of the court’s stay. 

At present, operations at LaGuardia 

remain capped by order at 75 scheduled 

operations and three unscheduled 

operations per hour until October 2009.1

The FAA is in the process of 

considering its options with regard to 

managing congestion at the airport, 

while providing a means for carriers to 

either commence or expand operations 

at the airport, thereby introducing more 

competition and service options to 

benefit the traveling public. 

On March 11, 2009, the President 

signed Public Law 111–8, Omnibus 

Appropriations Act, 2009. That 

legislation provides several departments 

within the executive branch, including 

the Department of Transportation, with 

the funds to operate until the end of this 

fiscal year. That legislation also contains 

a provision in Division I, section 115 

that states in pertinent part: 

No funds provided in this Act may be used 

by the Secretary of Transportation to 

promulgate regulations or take any action 

regarding the scheduling of airline operations 

at any commercial airport in the United 

States if such regulation or action involves: 

(1) The auctioning by the Secretary or the 

FAA Administrator of rights or permission to 

conduct airline operations at such an airport, 

* * * 

(3) either: 

(A) withdrawal by the Secretary or 

Administrator of a right or permission to 

conduct operations at such an airport (except 

when the withdrawal is for operational 

reasons or pursuant to the terms or 

conditions of such operating right or 

permission), * * * 

At the same time, the nation’s 

economy has continued to suffer under 

the current recession, which is both 

deeper and longer than was first 

assumed. President Obama recently 

signed the American Recovery and 

Reinvestment Act of 2009 2 (ARRA), 

which provides an extraordinary 

amount of emergency funds to address 

the unprecedented global recession and 

to promote economic recovery. 

The Omnibus Appropriations Act 

prevents the FAA from implementing 

the slot auction rule or conducting slot 

auctions. However, we recognize that 

the restriction in section 115 of the Act 

applies only until the end of this fiscal 

year, or September 30, 2009. The 

restriction in section 115 means the rule 

adopted last year can no longer operate 

in the way that the agency had planned. 

The halt in funding for this fiscal year 

makes it impossible for the rule to have 

the 10-year life originally contemplated, 

even without considering the 

challenging and widespread change in 

current economic conditions that led to 

the adoption of ARRA. 

Because of the complexity of the 

issues, the uncertainty caused by the 

Omnibus Appropriations Act, and the 

possible impact of the significantly 

changed economic circumstances on the 

slot auction program, the FAA believes 

it would be better to rescind the rule 

rather than propose to extend it. 

Rescission would also eliminate the 

potential for wasting resources of all 

parties in the pending litigation. We 

specifically request comments and data 

from affected interests on whether and 

how the changed circumstances bear on 

this proposed rescission. 

The current order for LaGuardia 

presently addresses congestion and 

delay associated with scheduled 

operations. However, the order does not 

address all issues associated with 

market access at a capped airport. 

Accordingly, the FAA believes it may 

need further work to address these 

concerns and limit operations at 

LaGuardia. 

The FAA seeks comment on this 

proposal. DOT’s Regulatory Policies and 

Procedures contemplate at least a 60- 

day comment period for a significant 

rulemaking, unless otherwise justified. 

The final rule was subject to notice and 

comment less than 12 months ago, and 

those comments were fully considered 

by the agency in issuing that rule. Since 

comments should be limited to any 

change in circumstances, including the 

statutory restriction discussed above, 

the FAA believes that a 30-day 

comments period is sufficient in this 

instance. 

II. Regulatory Notices and Analyses 

Changes to Federal regulations must 

undergo several economic analyses. 

First, Executive Order 12866 directs that 

each Federal agency shall propose or 

adopt a regulation only upon a reasoned 

determination that the benefits of the 

intended regulation justify its costs. 

Second, the Regulatory Flexibility Act 

of 1980 requires agencies to analyze the 

economic impact of regulatory changes 

on small entities. Third, the Trade 

Agreements Act (19 U.S.C. 4 2531–2533) 

prohibits agencies from setting 

standards that create unnecessary 

obstacles to the foreign commerce of the 

United States. In developing U.S. 

standards, this Trade Act requires 

agencies to consider international 

standards and, where appropriate, to be 

the basis of U.S. standards. Fourth, the 

Unfunded Mandate Reform Act of 1995 

(Pub. L. 104–4) requires agencies to 

prepare a written assessment of the 

costs, benefits, and other effects of 

proposed or final rules that include a 

Federal mandate likely to result in the 

expenditure by State, local, or tribal 

governments, in the aggregate, or by the 

private sector, of $100 million or more 

annually (adjusted for inflation). The 

FAA currently uses an inflationadjusted value of $136.1 million in lieu 

of $100 million. 

The FAA conducted all of these 

analyses when it originally issued the 

final rule. This proposed rescission is 

not economically significant under 

Executive Order 12866. 

The paperwork burden anticipated 

under the rule would not be imposed on 

any parties. The FAA has already 

determined that the rule will not have 

a significant economic impact on a 

substantial number of small entities 

under the Regulatory Flexibility Act. 

Rescission of the rule would likewise 

impose no such burden. As the 

rescission of the rule would not impose 

any standard on any party, the FAA has 


sroberts on PROD1PC70 with PROPOSALS
Federal Register / Vol. 74, No. 92 / Thursday, May 14, 2009 / Proposed Rules 22719 

assessed the potential effect of this 

proposal and determined that it would 

impose no costs on international entities 

and thus have a no trade impact. Nor 

would the rescission impose a Federal 

mandate that may result in an 

expenditure of $100 million or more 

(adjusted annually for inflation) in any 

one year by State, local, and tribal 

governments, in the aggregate, or by the 

private sector, and the requirements of 

Title II of the Unfunded Mandate 

Reform Act of 1995 do not apply. 

The proposed rescission of the final 

rule is not economically ‘‘significant’’ 

under Executive Order 12866, however 

it is ‘‘significant’’ under DOT’s 

Regulatory Policies and Procedures. 

Accordingly, it has been reviewed by 

DOT and OMB. 

Executive Order 13132, Federalism 

The FAA has analyzed this proposed 

rescission under the principles and 

criteria of Executive Order 13132, 

Federalism. We have determined that 

this action would not have a substantial 

direct effect on the States, on the 

relationship between the national 

Government and the States, or on the 

distribution of power and 

responsibilities among the various 

levels of government, and, therefore, 

would not have federalism implications. 

Environmental Analysis 

FAA Order 1050.1E, ‘‘Environmental 

Impacts: Policies and Procedures’’ 

identifies FAA actions that are normally 

categorically excluded from preparation 

of an environmental assessment or 

environmental impact statement under 

the National Environmental Policy Act 

(NEPA) in the absence of extraordinary 

circumstances. The FAA previously 

determined that the final rule qualified 

for the categorical exclusions identified 

in paragraph 312d ‘‘Issuance of 

regulatory documents (e.g., Notices of 

Proposed Rulemaking and issuance of 

Final Rules) covering administration or 

procedural requirements (does not 

include Air Traffic procedures; specific 

Air traffic procedures that are 

categorically excluded are identified 

under paragraph 311 of this Order)’’ and 

paragraph 312f, ‘‘Regulations, standards, 

and exemptions (excluding those which 

if implemented may cause a significant 

impact on the human environment.’’ It 

has further been determined that no 

extraordinary circumstances exist that 

may cause a significant impact and 

therefore no further environmental 

review is required. The FAA 

documented this categorical exclusion 

determination. A copy of the 

determination and underlying 

documents has been included in the 

Docket for the rule. The FAA has 

determined that the rescission of the 

final rule would also qualify for a 

categorical exclusion since it would 

have no impact on the environment. 

Regulations That Significantly Affect 

Energy Supply, Distribution, or Use 

The FAA has analyzed this notice 

under Executive Order 13211, Actions 

Concerning Regulations that 

Significantly Affect Energy Supply, 

Distribution, or Use (May 18, 2001). The 

agency has determined that it is not a 

‘‘significant energy action’’ under 

executive order 12866 and it is not 

likely to have a significant adverse effect 

on the supply, distribution, or use of 

energy. 

Additional Information 

Comments Invited 

The FAA invites interested persons to 

participate in this rulemaking by 

submitting written comments, data, or 

views. The agency also invites 

comments relating to the economic, 

environmental, energy or federalism 

impacts that might result from adopting 

the proposals in this document. The 

most helpful comments reference a 

specific portion of the proposal, explain 

the reason for any recommended 

change, and include supporting data. To 

ensure the docket does not contain 

duplicate comments, please send only 

one copy of written comments, or if you 

are filing comments electronically, 

please submit your comments only one 

time. 

The FAA will file in the docket all 

comments we receive, as well as a 

report summarizing each substantive 

public contact with FAA personnel 

concerning this proposed rulemaking. 

Before acting on this proposal, the 

agency will consider all comments 

received on or before the closing date 

for comments. The FAA will consider 

comments filed after the comment 

period has closed if it is possible to do 

so without incurring expense or delay. 

Proprietary or Confidential Business 

Information 

Do not file in the docket information 

that you consider to be proprietary or 

confidential business information. Send 

or deliver this information directly to 

the person identified in the FOR FURTHER

INFORMATION CONTACT section of this 

document. You must mark the 

information that you consider 

proprietary or confidential. If you send 

the information on a disk or CD–ROM, 

mark the outside of the disk or CD–ROM 

and also identify electronically within 

the disk or CD–ROM the specific 

information that is proprietary or 

confidential. 

Under 14 CFR 11.35(b), when the 

FAA is aware of proprietary information 

filed with a comment, it does not place 

it in the docket. The agency holds it in 

a separate file to which the public does 

not have access, and places a note in the 

docket that it has received it. If the FAA 

receives a request to examine or copy 

this information, it is treated as any 

other request under the Freedom of 

Information Act (5 U.S.C. 552) and such 

requests are processed under the DOT 

procedures found in 49 CFR part 7. 

Availability of Rulemaking Documents 

You can get an electronic copy of 

rulemaking documents using the 

Internet by— 

1. Searching the Federal eRulemaking 

Portal (http://www.regulations.gov); 

2. Visiting the FAA’s Regulations and 

Policies web page at http:// 

www.faa.gov/regulations_policies/; or 

3. Accessing the Government Printing 

Office’s web page at http:// 

www.gpoaccess.gov/fr/index.html. 

You can also get a copy by sending a 

request to the Federal Aviation 

Administration, Office of Rulemaking, 

ARM–1, 800 Independence Avenue, 

SW., Washington, DC 20591, or by 

calling (202) 267–9680. Make sure to 

identify the docket number, notice 

number, or amendment number of this 

rulemaking. 

You may access all documents the 

FAA considered in developing this 

proposed rule, including economic 

analyses and technical reports, from the 

internet through the Federal 

eRulemaking Portal referenced in 

paragraph (1). 

List of Subjects in 14 CFR Part 93 

Air traffic control, Airports, 

Navigation (air), Reporting and 

recordkeeping requirements. 

The Proposed Amendment 

In consideration of the foregoing, the 

Federal Aviation Administration 

proposes to amend Chapter I of Title 14, 

Code of Federal Regulations, as follows: 

PART 93—SPECIAL AIR TRAFFIC 

RULES 

1. The authority citation for part 93 

continues to read as follows: 

Authority: 49 U.S.C. 106(g), 40103, 40106, 

40109, 40113, 44502, 44514, 44701, 44719, 

46301. 

Subpart C—[Removed and Reserved] 

2. Remove and reserve Subpart C. 


sroberts on PROD1PC70 with PROPOSALS
22720 Federal Register / Vol. 74, No. 92 / Thursday, May 14, 2009 / Proposed Rules 

1 The comment must also be accompanied by an 

explicit request for confidential treatment, 

including the factual and legal basis for the request, 

and must identify the specific portions of the 

comment to be withheld from the public record. 

The request will be granted or denied by the 

Commission’s General Counsel, consistent with 

applicable law and the public interest. See 

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

2 The Rule became effective on June 4, 1974. 

3 51 FR 42087 (Nov. 21, 1986). 

4 62 FR 15135 (Mar. 31, 1997). 

Issued in Washington, DC, on May 7, 2009. 

Nan Shellabarger, 

Director of Aviation Policy and Plans. 

[FR Doc. E9–11291 Filed 5–13–09; 8:45 am] 

BILLING CODE 4910–13–P 

FEDERAL TRADE COMMISSION 

16 CFR Part 425 

Rule Concerning the Use of 

Prenotification Negative Option Plans 

AGENCY: Federal Trade Commission 

(‘‘FTC’’ or ‘‘Commission’’). 

ACTION: Advance Notice of Proposed 

Rulemaking; Request for public 

comments. 

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 Trade 

Regulation Rule concerning ‘‘Use of 

Prenotification Negative Option Plans.’’ 

DATES: Written comments must be 

received on or before July 27, 2009. 

ADDRESSES: Interested parties are 

invited to submit written comments. 

Comments should refer to 

‘‘Prenotification Negative Option Rule 

Review, Matter No. P064202’’ to 

facilitate the organization of comments. 

Please note that your comment— 

including your name and your state— 

will be placed on the public record of 

this proceeding, including on the 

publicly accessible FTC website, at 

(http://www.ftc.gov/os/ 

publiccomments.shtm). 

Because comments will be made 

public, they should not include any 

sensitive personal information, such as 

an individual’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. Comments 

also should not include any sensitive 

health information, such as medical 

records or other individually 

identifiable health information. In 

addition, comments should not 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 

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

4.10(a)(2). Comments containing 

material for which confidential 

treatment is requested must be filed in 

paper form and clearly labeled 

‘‘Confidential.’’1

Because paper mail addressed to the 

FTC is subject to delay due to 

heightened security screening, please 

consider submitting your comments in 

electronic form. Comments filed in 

electronic form should be submitted by 

using the following weblink: (https:// 

secure.commentworks.com/ftcNegativeOptionRuleANPR) (and 

following the instructions on the webbased form). To ensure that the 

Commission considers an electronic 

comment, you must file it on the webbased form at the weblink (https:// 

secure.commentworks.com/ftcNegativeOptionRuleANPR). If this 

Notice appears at (http:// 

www.regulations.gov/search/index.jsp), 

you may also file an electronic comment 

through that website. The Commission 

will consider all comments that 

regulations.gov forwards to it. You may 

also visit the FTC website at http:// 

www.ftc.gov to read the Notice and the 

news release describing it. 

A comment filed in paper form 

should include the ‘‘Prenotification 

Negative Option Rule Review, Matter 

No. P064202’’ reference both in the text 

and on the envelope, and should be 

mailed or delivered to the following 

address: Federal Trade Commission/ 

Office of the Secretary, Room H-135 

(Annex Q), 600 Pennsylvania Avenue, 

N.W., Washington, D.C. 20580. The FTC 

is requesting that any comment filed in 

paper form be sent by courier or 

overnight service, if possible, because 

U.S. postal mail in the Washington area 

and at the Commission is subject to 

delay due to heightened security 

precautions. 

The Federal Trade Commission Act 

(‘‘FTC Act’’) and other laws the 

Commission administers permit the 

collection of public comments to 

consider and use in this proceeding as 

appropriate. The Commission will 

consider all timely and responsive 

public comments that it receives, 

whether filed in paper or electronic 

form. Comments received will be 

available to the public on the FTC 

website, to the extent practicable, at 

(http://www.ftc.gov/os/ 

publiccomments.shtm). As a matter of 

discretion, the Commission makes every 

effort to remove home contact 

information for individuals from the 

public comments it receives before 

placing those comments on the FTC 

website. More information, including 

routine uses permitted by the Privacy 

Act, may be found in the FTC’s privacy 

policy, at (http://www.ftc.gov/ftc/ 

privacy.shtm). 

FOR FURTHER INFORMATION CONTACT: 

Robin Rosen Spector, (202) 326-3740 or 

Matthew Wilshire, (202) 326-2976, 

Attorneys, Division of Enforcement, 

Bureau of Consumer Protection, Federal 

Trade Commission, 600 Pennsylvania 

Avenue, N.W., Washington, D.C. 20580. 

SUPPLEMENTARY INFORMATION: 

I. Background 

A ‘‘negative option’’ is any type of 

sales term or condition that allows a 

seller to interpret the customer’s silence 

or failure to take an affirmative step as 

acceptance of an offer. One common 

‘‘negative option’’ is the prenotification 

negative option plan. In such a plan, 

consumers receive periodic 

announcements of upcoming 

merchandise and have a set period to 

contact the company and decline the 

item. If they remain silent, the company 

sends them the merchandise. 

The Rule Concerning the Use of 

Prenotification Negative Option Plans 

(‘‘Negative Option Rule’’ or ‘‘Rule’’) 

regulates prenotification negative option 

plans for the sale of goods. The 

Commission first promulgated the Rule 

(then titled the ‘‘Negative Option Rule’’) 

in 1973 under the FTC Act, 15 U.S.C. 41 

et seq., after finding that prenotification 

negative option marketers had 

committed unfair and deceptive 

marketing practices violative of Section 

5 of the Act. 15 U.S.C. 45.2 In 1986, the 

Commission reviewed the Rule 

pursuant to Section 610 of the 

Regulatory Flexibility Act, 5 U.S.C. 610, 

to determine the impact of the Rule on 

small entities. The Commission 

concluded that the Rule had not had a 

significant impact on a substantial 

number of small entities and should not 

be changed.3 In 1997, the Commission 

reviewed the Rule again and solicited 

comments on whether there was a 

continuing need for the Rule and 

whether it should be changed to 

increase its benefits or reduce its costs 

or other burdens.4 Based on the 

response, in August 1998, the 

Commission concluded that the Rule 

‘‘continue[d] to be of value to 

consumers and firms, and [was] 

functioning well in the marketplace at 


sroberts on PROD1PC70 with PROPOSALS