70053

Rules and Regulations Federal Register Vol. 79, No. 227

Tuesday, November 25, 2014

This section of the FEDERAL REGISTER I. Background about their costs and benefits, as well as contains regulatory documents having general The Unavailability Rule prohibits their regulatory and economic impact. applicability and legal effect, most of which 1 This information assists the are keyed to and codified in the Code of food stores from advertising prices for food, grocery products, or Commission in identifying rules and Federal Regulations, which is published under guides that warrant modification or 50 titles pursuant to 44 U.S.C. 1510. other merchandise unless those stores have the advertised products in stock rescission. The Code of Federal Regulations is sold by and readily available at, or below, the Pursuant to this process, on August the Superintendent of Documents. Prices of advertised prices. The Commission 18, 2011, the Commission sought new books are listed in the first FEDERAL issued the Rule in 1971 to prevent comment on whether there is a REGISTER issue of each week. unavailability and overpricing of continuing need for the Unavailability 6 advertised items.2 The Rule was based Rule. The Commission also invited upon extensive research finding that comments suggesting modifications to FEDERAL TRADE COMMISSION 7 retail food stores frequently did not the Rule. Additionally the Commission sought specific comments and evidence 16 CFR Part 424 make food readily available at advertised prices. concerning whether it should broaden the Rule to include stores not currently Retail Food Store Advertising and In 1989, the Commission amended the 3 covered by the Rule, such as drugstores, Marketing Practices Rule Rule. These amendments provide an exception where ‘‘the advertisement department stores, or electronics clearly and adequately discloses that retailers.8 AGENCY: Federal Trade Commission (‘‘Commission’’ or ‘‘FTC’’). supplies of the advertised products are III. Regulatory Review Comments limited or the advertised products are ACTION: Final rule. available only at some outlets.’’ The Commission received comments Furthermore, these amendments from two organizations and fifty individuals.9 The Food Marketing SUMMARY: The FTC has completed its provide four defenses: Retail food stores regulatory review of its Retail Food do not violate the Rule if they (a) order Institute (‘‘FMI’’) identifies itself as a Store Advertising and Marketing advertised products early enough and in national trade association with 1,500 members, consisting of food retailers Practices Rule (‘‘Unavailability Rule’’ or sufficient quantities to meet ‘‘reasonably and wholesalers, in the ‘‘Rule’’). After reviewing public anticipated demand,’’ (b) issue and other countries.10 FMI states that its comments regarding the Rule’s overall rainchecks for the advertised products, members operate 26,000 retail food costs, benefits, and regulatory and (c) offer comparable products at stores and 14,000 pharmacies, make economic impact, the Commission comparable prices to the advertised three-quarters of all retail food store retains the Rule. The Commission, products, or (d) offer other sales in the United States, and have however, takes this opportunity to issue compensation at least equal to the combined annual sales of $680 billion.11 guidance concerning the Rule’s advertised value. These amendments The Heritage Foundation (‘‘HF’’) coverage. The Commission also corrects eliminated the costs of excessive overstocking, which were passed on to describes itself as a nonprofit a typographical error, and ceases to corporation with a mission ‘‘to publish dissents to the Rule’s previous consumers and greatly exceeded any benefits to consumers,4 while formulate and promote conservative amendment. minimizing consumer losses associated public policies . . .’’ DATES: This action is effective on with wasted trips to retail food stores.5 Forty-eight individuals explicitly or December 10, 2014. implicitly supported the Rule by II. Regulatory Review relating personal benefits from retail ADDRESSES: This document is available The Commission reviews its rules and food store rainchecks.12 For example, on the Internet at the Commission’s Web guides periodically to seek information site, www.ftc.gov. Relevant portions of 6 Federal Trade Commission: Retail Food Store this proceeding, including the public 1 Retail food stores are stores that advertise food Advertising and Marketing Practices Rule: Advance comments received in response to the prices and sell more than incidental or minimal Notice of Proposed Rulemaking; Request For Public Advance Notice of Proposed amounts of food. Federal Trade Commission: Part Comment, 76 FR 51308 (Aug. 18, 2011) (‘‘Request 424—Retail Food Store Advertising and Marketing for Public Comment’’). Rulemaking, are available at: http:// Practices, 36 FR 8777 at 8781 (May 13, 1971) (‘‘Rule 7 Id. www.ftc.gov/policy/public-comments/ Promulgation’’). 8 Id. initiative-387 and the related News 2 Id. 9 All comments are available at: http:// Release is available at: http:// 3 Federal Trade Commission: Amendment to www.ftc.gov/policy/public-comments/initiative-387. www.ftc.gov/opa/2011/08/ Trade Regulation Rule Concerning Retail Food This document cites to these comments by Store Advertising and Marketing Practices: Final indicating the surname or short form for the retailfood.shtm. Amendments to Trade Regulation Rule, 54 FR commenter, e.g., ‘‘FMI’’ for the Food Marketing 35456 (Aug. 28, 1989) (‘‘Rule Amendment’’). Institute, and, for comments of more than one page, FOR FURTHER INFORMATION CONTACT: Jock 4 Excessive overstocking caused retail food stores the page of the comment unless the citation refers Chung, (202) 326–2984, Attorney, to carry excess inventory, including perishables, to the entire comment. Cites to ‘‘John K’’ reference Division of Enforcement, Bureau of and to incur monitoring, recordkeeping, legal and the comment signed in that way. 10 Consumer Protection, Federal Trade survey costs, and indirect costs to document Rule FMI at 1. compliance. Id. at 35460–35461. The record 11 Id. Commission, 600 Avenue indicated that the costs imposed by the original rule 12 Hawthorne, DeWitt, Cosser, Dexter, Lewis, NW., CC–9528, Washington, DC 20580. exceeded benefits by ratios from over 21⁄2 to one to Marshall, Thompson, Ash, Herman, Hellmueller, nearly eight to one. Id. at 35461. Wright, Ickes, Gregory, Harris, Heiser, Nealy, Haass, SUPPLEMENTARY INFORMATION: 5 Id. at 35459. Continued

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one commenter stated that he agencies adequately protect number of grocery stores in America has accumulated 50 rainchecks in a 6-month consumers.18 increased, they do not provide any period due to stockouts.13 market analysis of the level of IV. Retention of the Unavailability Rule Two individual commenters joined competition in this industry.22 The the organizational commenters in The Commission retains the rule in its market may have many participants questioning whether the Commission existing form. To determine whether the nationwide, but there is no indication should retain the Rule.14 FMI Rule should be amended, repealed, or that competition exists sufficient to commented that the Rule is unnecessary retained, the Commission has evaluated preserve the benefits of the Rule for all, because competition forces retail food a number of factors, including the or even most, local markets throughout stores to avoid stockouts and to relative costs and benefits of the Rule the country. compensate customers even without the and its effect on competition and Two commenters that questioned the Rule.15 Nonetheless, FMI stated that the consumer choice. The Commission has general need for the Rule asserted that Rule imposes no significant costs on determined that the Rule imposes no there are geographic areas of lower food retail food stores. FMI also cautioned significant costs on retail food stores, marketplace competition, and that if the Commission retains the Rule, and it benefits consumers as there is demographic groups with limited food it should keep the 1989 amendments to evidence that market or state regulatory shopping options.23 Thus, even if, as avoid the costs eliminated by those forces would not adequately protect asserted, the national-level food amendments. consumers without the Rule. Given this marketplace were sufficiently HF recommended repealing the Rule, record, the Commission has no basis to competitive, the Rule would still be arguing increased competition should repeal or amend the Rule at this time. necessary to protect groups with limited protect consumers.16 In support of this None of the comments identified any food shopping options. argument, it asserted that the number of specific costs or burdens associated Further, there is evidence that even grocery stores in America has grown with complying with the Rule. To the with the Rule, some stores do not substantially since the Rule was contrary, FMI—which represents respond to the current level of amended in 1989, noting that today grocery companies and thus would have competition by avoiding stockouts and there are 92,300 grocery stores the clearest understanding of any providing rainchecks or other nationwide and that large chains run burdens the Rule might impose— compensation. Eleven commenters thousands of stores each. It did not commented that it ‘‘does not believe the complained of difficulties obtaining provide data on the number of stores in Rule imposes significant costs on rainchecks, or of inadequate rainchecks 1989. HF also stated that the number of retailers.’’ 19 Furthermore, even the that, for example, expired before sale farmers’ markets increased between comments that opposed retention items were restocked.24 Thus, the 1994 and 2011. Finally HF commented favored the consumer-friendly practices weight of the evidence shows that that state regulation is adequate to required by the Rule, including market forces are not sufficient to protect consumers where competitive restrictions on overpricing and ensure that retail food stores make pressure is insufficient. unavailability.20 These comments useful rainchecks conveniently Fitzsimmons recommended repealing simply opined that, even if the Rule available. the Rule generally while expanding it in were eliminated, market forces would HF and Lunsford commented that ‘‘food deserts.’’ 17 For areas other than result in the same arrangements the state consumer protection agencies food deserts, he argued market Rule requires. If this is true, the Rule provide sufficient recourse when competition is sufficient to protect cannot impose any significant cost. retailers deceptively advertise the consumers. Fitzsimmons also Conversely, the record lacks factual availability of sale items.25 They did recommended that the Commission support to conclude that market forces not, however, submit evidence about expand the Rule to cover non-traditional alone would be sufficient to protect actions taken by state agencies. Notably, retail food stores in food deserts, where consumers without the Rule.21 no state or local regulatory agencies competition is insufficient to protect Although comments state that the submitted comments. The record, consumers. therefore, does not support the Finally, Lunsford recommended 18 Lunsford argued that ‘‘market competition argument that state regulations supplant repealing the Rule because market should deter most business from deceptive the continued need for the Rule.26 competition and state regulatory practices.’’ Because the Rule does not impose 19 FMI at 5. 20 significant costs, the practices it FMI stated that stockouts hurt retailers because 27 Skaggs, Pritchard, Goodman, Frame, Cummings, they increase costs while also decreasing customer requires benefit consumers, and there DelSole, Wheat, Marino, John K, Rasley, Bacher, satisfaction. Id. at 3–4. HF stated that ‘‘[n]o-one is evidence that those practices would Samuel, Purcell, Dickey, Crofoot, Sinex, Aikins, would condone the commercial conduct prohibited not continue in the absence of the Rule, Anonymous/Mad in Miami, Thorson, Angelo, by the Unavailability Rule.’’ HF at 2. Lunsford Bates, Burleson, Boyd, Black, Marcuse, Steenhoven, indicated that unavailability and overpricing are Gettz, Millison, Nardo, Rose, and Doyal. 22 HF and Fitzsimmons comment that there are not ‘‘honest business.’’ Fitzsimmons proposed 13 92,300 grocery stores in America, but do not Angelo. retaining and expanding the Rule for certain 14 provide evidence that this number is above a FMI, HF, Lunsford, Fitzsimmons. geographic areas to prevent ‘‘predatory business threshold for a sufficiently competitive 15 FMI commented that it did not believe that practices.’’ Fitzsimmons at 2–3. This support marketplace. HF at 2, Fitzsimmons at 1. there is a continuing need for the rule because contrasts with the evidence that compliance with 23 competitive pressures induce retailers to respond to the Commission’s original Rule was costly and HF at 3, Fitzsimmons at 2–3. the needs of their customers, and ‘‘[t]here is no wasteful. See Rule Amendment, 54 FR 35460–35462 24 Dexter, Harris, Heiser, Haas, Pritchard, incentive for grocery retailers to engage in the types (noting, for example, that retail food stores stocked Cummings, Wheat, John K, Dickey, Crofoot, of activity the Unavailability Rule was intended to excessive inventory and incurred monitoring and Burleson. address.’’ FMI at 2–4. recordkeeping costs to comply with the original 25 HF at 4 & n.14, Lunsford. 16 HF asserted that ‘‘market competition clearly Rule). 26 The four state laws cited by HF do not establish can police against any grocery businesses that 21 In American Financial Services Ass’n v. FTC, that most states directly regulate retail food stare advertise products that they do not have for sale at 767 F.2d 957, 987–988 (D.C. Cir. 1985), the court advertising. Indeed, one of those laws broadly the advertised price.’’ HF at 3. found that it was not unreasonable for the prohibits unfair and deceptive practices but does 17 Fitzsimmons recommended that the Rule Commission, in promulgating the Credit Practices not address specifically the advertising of sale define food deserts as low-income areas where the Rule, to discount ‘‘abstract or . . . theoretical items. Wash. Rev. Code § 19.86.020. nearest grocery store is more than a mile away. arguments . . . which have little or no factual 27 Forty-eight consumer commenters supported Fitzsimmons at 3. support in the record.’’ continuing to require rainchecks.

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the Commission retains the Rule in its VI. Other Suggested Rule Changes implicitly includes a requirement that present form. In its request for public comments, items be stocked in such a way that a the Commission invited suggested Rule reasonable consumer would not be V. Coverage of the Unavailability Rule 42 changes. In response, comments precluded from obtaining them.’’ The The Commission asked whether it Commission further stated that the should broaden the Rule’s coverage suggested amending the Rule to: (1) Prohibit: (a) failure to prohibition against overpricing ‘‘is beyond retail food stores.28 In response, conspicuously display advertised items, implicit in the requirement that thirty two comments 29 favored e.g., positioning products so that sale products advertised for sale at a stated extending coverage to include, for price be available.’’ 43 Consequently, the example, retail stores generally,30 Black priced items are difficult to identify or locate, and (b) overpricing, e.g., Rule already requires proper display Friday retailers,31 and electronics and prohibits overpricing.44 32 scanning merchandise at full price retailers. One comment favored 35 expanding the Rule to include rather than at the sale price; B. Rainchecks nontraditional food stores located in (2) require retail food stores to 33 provide rainchecks promptly upon The raincheck defense, 16 CFR food deserts. None, however, provided 36 evidence about the effects of amending demand; and 424.2(b), provides that a store complies (3) require retail food stores to the Rule’s coverage, or evidence that the with the Rule if it offers consumers a Rule’s present coverage is inadequate. compensate consumers for ‘‘raincheck’’ when the advertised consequential losses caused by product is out of stock. Commenters Therefore, the Commission is not 37 proposing to extend the coverage of the unavailability. requested two amendments to address As set forth below, the first and Rule. barriers they have encountered in the However, the Commission notes that second suggestions are unnecessary market. First, they asked the FTC to the Rule is not limited to ‘‘traditional’’ because they are already encompassed require stores to provide rainchecks retail food stores. For example, by the Rule, and the Commission during a consumer’s initial visit to a supercenters, warehouse clubs, dollar declines to propose the third because store.45 Second, they requested an stores, and drug stores increasingly offer the record lacks evidence to support amendment to prohibit rainchecks that food or grocery products and advertise such a change. expire before the store restocks the 46 discounts for these items. Such stores A. Display of Advertised Items and advertised merchandise. Because the constitute a significant portion of the Overpricing Rule already prohibits these practices, retail food marketplace. According to there is no need for amendments. the U.S. Department of Agriculture, the The Rule already prohibits failure to conspicuously display advertised items The raincheck defense only provides proportion of American food sales for protection if the store ‘‘offers’’ a home consumption by nontraditional and overpricing. Consequently, no amendment is necessary to address raincheck at the time a consumer food retailers rose from 13.7 percent in 47 concerns about these issues.38 attempts to purchase the sale item. By 2000 to 21.5 percent in 2011.34 The Rule definition, a raincheck is a guarantee to covers these types of stores. The Commission has entered two cease and desist orders against retail sell an item in the future at its current 48 food stores solely for overpricing,39 and advertised price. If, at the time of the 28 Request for Public Comment, 76 FR at 51309. violation,49 a store promises to offer a 29 three for overpricing and See Dexter, Lewis, Marshall, Thompson, Ash, raincheck in the future, it has merely Hellmueller, Wright, Ickes, Gregory, Harris, Heiser, unavailability.40 These orders Nealy, Skaggs, Pritchard, Frame, Cummings, demonstrate that merely stocking promised to make the requisite offer at DelSole, John K, Bacher, Samuel, Purcell, Crofoot, advertised items was not sufficient to a future date. It has failed to offer a Sinex, Anonymous/Mad in Miami, Thorson, Bates, Burleson, Boyd, Steenhoven, Gettz, Rose, and comply with the original Rule. 42 Doyal. Several comments suggested amending the The Commission amended the Rule in Federal Trade Commission: Retail Food Store Rule to cover specific retailers. See Wright Advertising and Marketing Practices: Notice of 1989 to eliminate explicit display and Proposed Rulemaking, 50 FR 43224 at 43226 (Oct. (Walgreens), Ickes (CVS, Rite-Aid, Target), Gregory pricing requirements.41 At that time, (Target), Heiser (Target, Wal-Mart), Haas 24, 1985) (‘‘Notice of Proposed Rulemaking’’). (Walgreens), Frame (CVS), Bates (Wal-Mart, Fred however, the Commission stated ‘‘the 43 Paragraph 424.1 of the amended Rule. Id. at Myer), Gettz (Walgreens, CVS, Rite-Aid), and Rose simple requirement that advertised 43225. (Walgreens, Wal-Mart, Target). The Commission items be ‘readily available to customers’ 44 Moreover, advertising one price and charging a declines to amend the Rule to name specific higher price is an unfair or deceptive act or practice retailers because, among other things, their business in violation of Section 5(a) of the FTC Act. See, e.g., models could change, taking them out of the ambit available at http://www.ers.usda.gov/topics/food- Budget Rent-A-Car System, Inc., FTC Docket C– of the Rule. markets-prices/retailing-wholesaling/retail- 4212 (Jan. 2, 2008). 30 See Thompson, Ickes, and Harris. trends.aspx. 45 Heiser, Pritchard, Dickey, Crofoot, and 35 31 See Ash. Ash, Ickes, Sinex at 1, Black. Burleson stated that stores had made them wait 36 32 See Wright, Heiser. Dexter, Heiser, Haass, Cummings, Pritchard, excessive periods during a visit to receive a Dickey, Crofoot, Burleson. 33 Fitzsimmons. raincheck. Dexter, Heiser, Haass, and Cummings 37 Cummings, Boyd, Thorson, Ickes. stated that stores had refused to provide rainchecks 34 ‘‘Since the late 1990s, nontraditional retailers 38 prior to the final date of sales. have steadily increased their relative share of food- Ash, Ickes, Sinex at 1, Black. 46 at-home sales, compared with traditional retailers. 39 , Inc., 87 F.T.C. 112, 115 (1976); Dexter, Harris, Wheat. John K recommended Nontraditional stores’ share of food-at-home sales Safeway Stores, Inc., 91 F.T.C. 975 (1978). that the Commission amend the Rule to require increased from 13.7 percent in 2000 to 21.5 percent 40 Fisher Foods, Inc., 90 F.T.C. 473 (1977); The rainchecks with no expiration date. The in 2011 (traditional foodstores and nonstore food Co., 90 F.T.C. 459 (1977); and Shop-Rite Commission does not have evidence on the costs or sales—such as mail order, home delivery, and Foods, Inc., 90 F.T.C. 500 (1977). benefits of such an amendment, and therefore direct sales by farms, processors, and wholesalers— 41 Paragraph 424.1(b)(1)(i) of the original Rule declines to propose it at this time. account for the remaining shares). Most of the required that where advertised items are not readily 47 16 CFR 424.2(b) growth in food sales is due to supercenters and available to customers, i.e., displayed for 48 Rain Check Definition, Oxford Dictionaries, warehouse club stores, whose sales more than consumers, retail food stores provide ‘‘clear and http://www.oxforddictionaries.com/us/definition/ doubled over the period. More recently, dollar adequate notice that . . . items are in stock and american_english/rain-check (last visited Nov. 12, stores—such as Dollar General and Family Dollar— may be obtained upon request.’’ Rule Promulgation, 2014). and drugstores—such as Rite Aid, CVS, and 36 FR at 8781. Paragraph 424.1(b)(2) of the original 49 The violation occurs when a store advertises a Walgreens—have increased sales by expanding Rule prohibited any failure ‘‘to make the advertised sale price for an item but does not have it in stock retail food offerings.’’ U.S. Dept. of Agriculture, items conspicuously and readily available for sale and readily available for consumers during the Econ. Res. Serv., Retail Trends, February 5, 2014, at or below the advertised prices.’’ Id. advertised sale period. 16 CFR 424.1.

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raincheck at all, and the defense is not consequential costs caused by By direction of the Commission. available to it.50 unavailability.56 Donald S. Clark, Similarly, a store that offers a The record, however, does not contain Secretary. ‘‘raincheck’’ that expires before the store evidence regarding the nature or extent [FR Doc. 2014–27798 Filed 11–24–14; 8:45 am] restocks the advertised item cannot use of any such consequential losses. Nor BILLING CODE 6750–01–P the defense. The raincheck must does it contain evidence to support a provide ‘‘compensation equal to that of factual determination regarding the the advertised savings.’’ 51 A raincheck potential costs or benefits of amending DEPARTMENT OF ENERGY that expires before consumers can use it the Rule to require compensation for has no value, much less value equal to consequential costs from unavailability. Federal Energy Regulatory the advertised savings. Therefore, it is Consequently, the Commission does not Commission not a ‘‘raincheck’’ at all. propose amending the Rule at this time These clear requirements are to require compensation for 18 CFR Parts 2, 157, and 380 consistent with the purpose of the consequential losses. ‘‘raincheck’’ defense.52 The defense [Docket No. RM12–11–002; Order No. protects consumers’ ability to purchase VII. Conclusion 790–A] items at advertised sale prices without For the reasons described above, the ‘‘needless transportation cost[s].’’ 53 Revisions to Auxiliary Installations, Commission has determined to retain Using a raincheck, a consumer can Replacement Facilities, and Siting and the current Retail Food Store purchase an item at the sale price Maintenance Regulations Advertising and Marketing Practices during the consumer’s next trip to the Rule, issue a Rule amendment AGENCY: Federal Energy Regulatory store, thereby avoiding extra travel time 57 Commission, Energy. or expenses. Failing to offer rainchecks correcting a typographical error, and ACTION: Final rule; order on rehearing at the time it cannot make advertised cease publishing dissents to the Rule’s 58 and clarification. products readily available to consumers, previous amendment. such as when a store refuses to provide List of Subjects in 16 CFR Part 424 SUMMARY: On rehearing, the Federal rainchecks until a sale ends, would Advertising, Foods, Trade practices. Energy Regulatory Commission require consumers to make additional (Commission) reaffirms its basic trips and pay extra travel costs, thereby For the reasons set forth in the determinations in Order No. 790 and undermining the purpose of the Rule.54 preamble, the Federal Trade modifies and clarifies certain aspects of Commission amends 16 CFR part 424, C. Consequential Costs From the Final Rule. Order No. 790 amended as follows: Unavailability the Commission’s regulations to clarify that auxiliary installations added to Four comments noted that consumers PART 424—RETAIL FOOD STORE existing or proposed interstate may not realize all savings even when ADVERTISING AND MARKETING transmission facilities under the offered rainchecks or comparable PRACTICES Commission’s regulations must be merchandise under the defenses in located within the authorized right-of- paragraphs 424.2(b), (c), or (d) of the ■ 1. The authority citation for part 424 way or site for existing facilities or the Rule.55 For example, promotions such is revised to read as follows: right-of-way or site to be used for as ‘‘Register Rewards’’ or coupon Authority: 15 U.S.C. 41–58. facilities proposed in a pending doubling may expire before consumers application for case-specific certificate can use rainchecks, or manufacturers’ § 424.1 [Amended] authority or in a prior notice filing coupons may not apply to similar ■ 2. Amend § 424.1 by removing the under the Commission’s blanket products offered under the defense in 16 words ‘‘In connection with the sale of certificate regulations, and use only the CFR 424.2(c). Therefore, these offering for sale’’ and adding, in their same temporary work space that was or comments proposed amending the Rule place, the words ‘‘In connection with will be used to construct the existing or to require retail food stores to the sale or offering for sale’’. proposed facilities. Order No. 790 also compensate consumers for codified the common industry practice § 424.2 [Amended] 50 of notifying landowners prior to coming 16 CFR 424.1. ■ 3. Remove the two statements that 51 Rule Amendment, 54 FR at 35463. onto their property to undertake 52 To the extent that there is any ambiguity about follow the text of § 424.2(d). projects, or certain replacements, or the meaning of ‘‘raincheck,’’ it is proper to interpret certain maintenance activities. the term consistently with the purpose of the Rule. 56 Thorson proposed amending the Rule to DATES: This rule is effective January 26, See Public Citizen v. U.S. Dept. of Justice, 491 U.S. require retail food stores to ‘‘duplicate conditions 440, 455 (1989). at the time of the sale . . .’’ Thorson at 1. 2015. 53 Notice of Proposed Rulemaking, 50 FR at 57 Section 553 of the Administrative Procedure FOR FURTHER INFORMATION CONTACT: 43230. See also Id. at 43225 (‘‘the Rule could Act, 5 U.S.C. 553(b)(3)(B), provides that, when an Katherine Liberty, Office of the General produce benefits by saving shoppers an extra trip agency for good cause finds that notice and public Counsel, Federal Energy Regulatory back to the same store or to another store to procedure are impracticable, unnecessary, or purchase the advertised item (the ‘trip gain’).’’); contrary to the public interest, the agency may issue Commission, 888 First Street NE., Rule Amendment, 54 FR at 35459 (the Rule benefits a final rule without providing notice and an Washington, DC 20426, (202) 502– consumers ‘‘through the avoidance of trip losses opportunity for public comment. The Commission 6491, [email protected]. (‘the trip gain’), which are losses that result from has determined that there is good cause for making Gordon Wagner, Office of the General the expense of wasted trips to retail outlets for this technical correction final without prior advertised items that are unavailable.’’); Id. at 35463 opportunity for comment, because this is merely a Counsel, Federal Energy Regulatory (‘‘Savings that have been realized by consumers technical change to correct a typographical error Commission, 888 First Street NE., [from the Rule] are principally the result of and is not a substantive change. Washington, DC 20426, (202) 502– reduction in the number of unsuccessful trips made 58 This will harmonize the Rule with the 8947, [email protected]. to purchase items that are not in stock.’’). Commission’s normal practice, which is not to 54 Cosser, Dexter, Lewis, Wright, Ickes, Heiser, publish dissents in the Code of Federal Regulations. Howard Wheeler, Office of Energy Cummings, John K, Rasley. The dissents will remain available to the public at Projects, Federal Energy Regulatory 55 Cummings, Boyd, Thorson, Ickes. 54 FR 35468. Commission, 888 First Street NE.,

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