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Federal Register / Vol. 86, No. 132 / Wednesday, July 14, 2021 / Rules and Regulations
lotter on DSK11XQN23PROD with RULES1

consumers can trust Made in the USA
claims.11 My colleagues believe the Commissions 80 year MUSA enforcement program was a failure and only a rule and the imposition of penalties will deter false MUSA claims. I believe administrative consents, which were an integral part of this program, can be an appropriate remedy to address deceptive MUSA claims, consistent with the views of bipartisan Commissions during the last 25 years. I support seeking monetary relief where appropriate but cannot support acting outside the constraints of our legislative authority.12
I fear as well this Commissions desire to promulgate or utilize our regulatory authority in ways that exceed the boundaries of underlying statutes and corresponding Congressional intent will continue. The Supreme Courts recent decision in AMG 13
has eliminated the FTCs ability to seek equitable monetary relief under Section 13b of the FTC Act to compensate consumers.
Thus, the temptation to test the limits of our remaining sources of authority is strong. I
urge my colleagues to pause. Previous FTC
forays into areas outside its jurisdictional authority have resulted in swift condemnation from the courts and Congress.14 Expansive interpretations of our 11 The FTC has issued over 150 closing letters to companies making misleading U.S.-origin claims.
Made in USA Workshop Report at 3 June 2020.
Companies only receive closing letters if they demonstrate to staff they will come into compliance with the FTCs Enforcement Policy Statement on Made in the USA. The staffs workshop report explains companies often produce substantiation for updated claims to the FTC staff, and then present a plan that includes training staff, updating online marketing materials e.g., company websites and social media platforms, updating hardcopy marketing materials e.g., product packaging, advertisements, tradeshow materials, and working with dealers, distributors, and third-party retailers to ensure downstream claims are in compliance.
Id. at 3 n.7. The FTC has also settled over 25
enforcement actions, charging that companies refused to come into compliance or engaged in outright fraud. Id.
12 I would note as well that seeking civil penalties for deceptive MUSA claims, as defined under the Commissions Rule, could have adverse market effects. Excessive penalties, divorced from harm, can result in over-deterrence. Importantly, the costs associated with over-deterrence are likely to increase with the expansiveness of the definition of labelling.
13 AMG v. FTC, slip op No. 19508 Apr. 22, 2021, https www.supremecourt.gov/opinions/
20pdf/19-508_l6gn.pdf.
14 See Federal Trade Commission Improvements Act of 1980, Public Law 96252, 94 Stat. 374 1980
reforming the ability of the FTC to promulgate rules by requiring a multi-step process with public comment and subject to Congressional review. This Act also authorized $255 million in funding for the Commission and was the first time since 1977 the agency was funded through the traditional funding process after the backlash from Congress over its rulemaking activities. See Kintner, Earl, et al., The Effect of the Federal Trade Commission Improvements Act of 1980 on the FTCs Rulemaking and Enforcement Authority, 58 Wash.
U. Law Rev. 847 1980; see also J. Howard Beagles III and Timothy J. Muris, FTC Consumer Protection at 100: 1970s Redux or Protecting Markets to Protect Consumers?, 83 Geo. Wash. L. Rev. 2157 2015
describing the disastrous failures of the FTC in the 1970s and the 1980s from enforcement and
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rulemaking authority will not engender confidence among members of Congress who have in the past expressed qualms about the FTCs history of frolics and detours.15
FR Doc. 202114610 Filed 71321; 8:45 am BILLING CODE 675001P

DEPARTMENT OF HEALTH AND
HUMAN SERVICES
Food and Drug Administration 21 CFR Part 573
Docket No. FDA2020F1289

Food Additives Permitted in Feed and Drinking Water of Animals;
Selenomethionine Hydroxy Analogue AGENCY:

Food and Drug Administration,
HHS.
ACTION:

Final rule.

The Food and Drug Administration FDA, we, or the Agency is amending the regulations for food additives permitted in feed and drinking water of animals to provide for the safe use of selenomethionine hydroxy analogue as a source of selenium in feed for beef and dairy cattle. This action is in response to a food additive petition filed by Adisseo France S.A.S.
DATES: This rule is effective July 14, 2021. See section V of this document for further information on the filing of objections. Submit either electronic or written objections and requests for a SUMMARY:

regulatory overreach and quoting Jean Carper, The Backlash at the FTC, Wash. Post, C1 Feb. 6, 1977
describing the backlash from Congress at the FTC, after a period of intense rulemaking activity culminating in the agencys being dubbed the National Nanny; see also Alex Propes, Privacy and FTC Rulemaking: A Historical Context, IAB
Nov. 6, 2018 discussing how the FTCs rulemaking history could be influencing Congressional comfort with vesting the FTC with additional privacy authority, https www.iab.com/
news/privacy-ftc-rulemaking-authority-a-historicalcontext/.
15 See Transcript: Oversight of the Federal Trade Commission: Strengthening Protections for Americans Privacy and Data Security May 8, 2019, available at: https docs.house.gov/
meetings/IF/IF17/20190508/109415/HHRG-116IF17-Transcript-20190508.pdf. At this Hearing, Rep.
McMorris Rogers stated: In various proposals, some groups have called for the FTC to have additional resources and authorities. I remain skeptical of Congress delegating broad authority to the FTC or any agency. However, we must be mindful of the complexities of this issue as well as the lessons learned from previous grants of rulemaking authority to the Commission.
Transcript at 89. Rep. Walden similarly stated: it has been a few decades, but there was a time when the FTC, as we heard, was given broad rulemaking authority but stepped past the bounds of what Congress and the public supported. This required further congressional action and new restrictions on the Commission. Transcript at 62.

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hearing on the final rule by August 13, 2021.
ADDRESSES: You may submit objections and requests for a hearing as follows.
Please note that late, untimely filed objections will not be considered.
Electronic objections must be submitted on or before August 13, 2021. The https www.regulations.gov electronic filing system will accept objections until 11:59 p.m. Eastern Time at the end of August 13, 2021. Objections received by mail/hand delivery/courier for written/
paper submissions will be considered timely if they are postmarked or the delivery service acceptance receipt is on or before that date.
Electronic Submissions Submit electronic objections in the following way:
Federal eRulemaking Portal:
https www.regulations.gov. Follow the instructions for submitting objections.
Objections submitted electronically, including attachments, to https
www.regulations.gov will be posted to the docket unchanged. Because your objection will be made public, you are solely responsible for ensuring that your objection does not include any confidential information that you or a third party may not wish to be posted, such as medical information, your or anyone elses Social Security number, or confidential business information, such as a manufacturing process. Please note that if you include your name, contact information, or other information that identifies you in the body of your objection, that information will be posted on https www.regulations.gov.
If you want to submit an objection with confidential information that you do not wish to be made available to the public, submit the objection as a written/paper submission and in the manner detailed see Written/Paper Submissions and Instructions.
Written/Paper Submissions Submit written/paper submissions as follows:
Mail/Hand delivery/Courier for written/paper submissions: Dockets Management Staff HFA305, Food and Drug Administration, 5630 Fishers Lane, Rm. 1061, Rockville, MD 20852.
For written/paper objections submitted to the Dockets Management Staff, FDA will post your objection, as well as any attachments, except for information submitted, marked and identified, as confidential, if submitted as detailed in Instructions.
Instructions: All submissions received must include the Docket No. FDA
2020F1289 for Food Additives Permitted in Feed and Drinking Water
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