[Federal Register Volume 60, Number 180 (Monday, September 18, 1995)]
[Proposed Rules]
[Pages 48065-48067]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-23046]



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FEDERAL TRADE COMMISSION
16 CFR Part 402


Rule Concerning Deception as to Non-Prismatic and Partially 
Prismatic Instruments Being Prismatic Binoculars

AGENCY: Federal Trade Commission.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The Federal Trade Commission (``Commission'') announces the 
commencement of a rulemaking proceeding for the trade regulation rule 
concerning deception as to non-prismatic and partially prismatic 
instruments being prismatic binoculars (``Binocular Rule''), 16 CFR 
Part 402. The proceeding will address whether or not the Binocular Rule 
should be repealed. The Commission invites interested parties to submit 
written data, views, and arguments on how the Rule has affected 
consumers, businesses and others, and on whether there currently is a 
need for the Rule. This notice includes a description of the procedures 
to be followed, an invitation to submit written comments, a list of 
questions and issues upon which the Commission particularly desires 
comments, and instructions for prospective witnesses and other 
interested persons who desire to participate in the proceeding.

DATES: Written comments must be submitted on or before October 18, 
1995.
    Notifications of interest in testifying must be submitted on or 
before October 18, 1995. If interested parties request the opportunity 
to present testimony, the Commission will publish a notice in the 
Federal Register stating the time and place at which the hearings will 
be held and describing the procedures that will be followed in 
conducting the hearings. In addition to submitting a request to 
testify, interested parties who wish to present testimony must submit, 
on or before October 18, 1995, a written comment or statement that 
describes the issues on which the party wishes to testify and the 
nature of the testimony to be given.

ADDRESSES: Written comments and requests to testify should be submitted 
to Office of the Secretary, Federal Trade Commission, Room H-159, Sixth 
Street and Pennsylvania Avenue NW., Washington, DC 20580, telephone 
number (202) 326-2506. Comments and requests to testify should be 
identified as ``16 CFR Part 402--Comment--Binocular Rule'' and ``16 CFR 
Part 402--Request to Testify--Binocular Rule,'' respectively. If 
possible, submit comments both in writing and on a personal computer 
diskette in Word Perfect or other word processing format (to assist in 
processing, please identify the format and version used). Written 
comments should be submitted, when feasible and not burdensome, in five 
copies.

FOR FURTHER INFORMATION CONTACT:
Phillip Priesman, Attorney, Bureau of Consumer Protection, Division of 
Advertising Practices, Sixth Street and Pennsylvania Avenue NW., 
Washington, 

[[Page 48066]]
DC 20580, telephone number (202) 326-2484.
SUPPLEMENTARY INFORMATION:

I. Introduction

    On May 23, 1995 the Commission published an Advance Notice of 
Proposed Rulemaking (``ANPR'') seeking comment on the proposed repeal 
of the Binocular Rule, 60 FR 27240. In accordance with mandates of 
section 18 of the Federal Trade Commission Act (``FTC Act''), 15 U.S.C. 
57a, the ANPR was sent to the Chairman of the Committee on Commerce, 
Science, and Transportation, United States Senate and the Chairman of 
the Subcommittee on Commerce, Trade and Hazardous Materials, United 
States House of representatives. The ANPR comment period closed on June 
22, 1995. The Commission received one public comment.
    Pursuant to the FTC Act, 15 U.S.C. 41-58, and the Administrative 
Procedure Act, 5 U.S.C. 551-59, 701-06, by this Notice of Proposed 
Rulemaking (``NPR'') the Commission initiates a proceeding to consider 
whether the Binocular Rule should be repealed or remain in effect, and 
solicits public comments.\1\ The Commission is also interested in 
comments on whether the Rule should be streamlined or otherwise 
amended. If the Commission determines, based on the data, views and 
arguments submitted, that the Commission should consider additional 
alternatives, it will publish a supplemental notice of proposed 
rulemaking and will request public comments on those alternatives.

    \1\ In accordance with mandates of section 18 of the FTC Act, 15 
U.S.C. 57a, the Commission submitted this NPR to the Chairman of the 
Committee on Commerce, Science, and Transportation, United States 
Senate and the Chairman of the Subcommittee on Commerce, Trade and 
Hazardous Materials, United States House of Representatives, 30 days 
prior to publication of the NPR.
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    The Commission is undertaking this rulemaking proceeding as part of 
the Commission's ongoing program of evaluating trade regulation rules 
and industry guides to determine their effectiveness, impact, cost and 
need. This proceeding also responds to President Clinton's National 
Regulatory Reinvention Initiative, which, among other things, urges 
agencies to eliminate obsolete or unnecessary regulations.

II. Background Information

    The Binocular Rule was published in final form in the Federal 
Register on June 5, 1964, and became effective on December 2, 1964. The 
Rule requires a clear and conspicuous disclosure on any advertising or 
packaging for non-prismatic or partially prismatic binoculars that the 
instruments are not fully prismatic. Fully prismatic binoculars rely on 
a prism within the instrument to reverse the visual image entering the 
lens so that it appears right-side up to the user. Other binoculars 
rely partially or entirely on mirrors to reverse the visual image. When 
the rule was promulgated, the Commission was concerned that consumers 
could be misled into believing that non-prismatic binoculars were in 
fact prismatic, absent such a disclosure.
    To prevent consumer deception, the rule proscribed the use of the 
term ``binocular'' to describe anything other than a fully prismatic 
instrument, unless the term was modified to indicate the true nature of 
the item. Under the Rule, non-prismatic instruments could be identified 
as binoculars only if they incorporated a descriptive term such as 
``binocular-nonprismatic,'' ``binocular-mirror prismatic,'' or 
``binocular-nonprismatic mirror.''
    Following publication of the ANPR, the Commission received one 
public comment regarding the Binocular Rule. The comment, from an 
importer and manufacturing company, suggested that there may be a 
continuing need for the Rule because field glasses and opera glasses, 
both of which are non-prismatic, are still advertised and sold today. 
The comment acknowledged, however, that present-day binoculars are 
fully prismatic, while the non-prismatic instruments are identified as 
either field glasses or opera glasses rather than binoculars. Thus, 
since it appears that all instruments sold as binoculars are prismatic, 
the Commission believes that the Binocular Rule may no longer be 
needed. Repeal of the Rule will also further the objectives of reducing 
obsolete government regulation.

III. Rulemaking Procedures

    The Commission finds that the public interest will be served by 
using expedited procedures in this proceeding. First, there do not 
appear to be any material issues of disputed fact to resolve in 
determining whether to repeal the Rule. Second, the use of expedited 
procedures will support the Commission's goal of eliminating obsolete 
or unnecessary regulations without an undue expenditure of resources, 
while ensuring that the public has an opportunity to submit data, views 
and arguments on whether the Commission should repeal the Rule.
    The Commission, therefore, has determined, pursuant to 16 CFR 1.20, 
to use the procedures set forth in this notice. These procedures 
include: (1) publishing this Notice of Proposed Rulemaking; (2) 
soliciting written comments on the Commission's proposal to repeal the 
Rule; (3) holding an informal hearing, if requested by interested 
parties; (4) obtaining a final recommendation from staff; and (5) 
announcing final Commission action in a notice published in the Federal 
Register.

IV. Invitation To Comment and Questions for Comment

    Interested persons are requested to submit written data, views or 
arguments on any issue of fact, law or policy they believe may be 
relevant to the Commission's decision on whether to repeal the Rule. 
The Commission requests that commenters provide representative factual 
data in support of their comments. Individual firms' experiences are 
relevant to the extent they typify industry experience in general or 
the experience of similar-sized firms. Commenters opposing the proposed 
repeal of the Rule should explain the reasons they believe the Rule is 
still needed and, if appropriate, suggest specific alternatives. 
Proposals for alternative requirements should include reasons and data 
that indicate why the alternatives would better protect consumers from 
unfair or deceptive acts or practices under section 5 of the FTC Act, 
15 U.S.C. 45.
    Although the Commission welcomes comments on any aspect of the 
proposed repeal of the Rule, the Commission is particularly interested 
in comments on questions and issues raised in this Notice. All written 
comments should state clearly the question or issue that the commenter 
is addressing.
    Before taking final action, the Commission will consider all 
written comments timely submitted to the Secretary of the Commission 
and testimony given on the record at any hearings scheduled in response 
to requests to testify. Written comments submitted will be available 
for public inspection in accordance with the Freedom of Information 
Act, 5 U.S.C. 552, and Commission regulations, on normal business days 
between the hours of 8:30 a.m. to 5:00 p.m. at the Federal Trade 
Commission, Public Reference Room, Room H-130, Federal Trade 
Commission, Sixth Street and Pennsylvania Avenue, NW., Washington, DC 
20580, telephone number (202) 326-2222.

[[Page 48067]]


Questions
    (1) Is any manufacturer currently manufacturing non-prismatic or 
partially-prismatic binoculars?
    (2) Is any individual or business entity currently marketing non-
prismatic or partially-prismatic binoculars?
    (3) Do any retail stores or suppliers still maintain stocks of non-
prismatic or partially-prismatic binoculars?
    (4) Is any manufacturer or marketer identifying non-prismatic field 
glasses or opera glasses as binoculars?
    (5) Has technology changed so that the Rule is no longer needed?
    (6) Are there any other federal or state laws or regulations, or 
private industry standards, that eliminate the need for the Rule?
    (7) What are the benefits and costs of the rule to consumers?
    (8) What are the benefits and costs of the Rule to firms subject to 
the Rule's requirements?
    (9) Should the Rule be kept in effect or should it be repealed?

V. Requests for Public Hearings

    Because there does not appear to be any dispute as to the material 
facts or issues raised by this proceeding and because written comments 
appear adequate to present the views of all interested parties, a 
public hearing has not been scheduled. If any person would like to 
present testimony at a public hearing, he or she should follow the 
procedures set forth in the DATES and ADDRESSES section of this notice.

VI. Preliminary Regulatory Analysis

    The Regulatory Flexibility Act (``FRA'') 5 U.S.C. 601-11, requires 
an analysis of the anticipated impact of the proposed repeal of the 
Rule on small business.\2\ The analysis must contain, as applicable, a 
description of the reasons why action is being considered, the 
objectives of and legal basis for the proposed action, the class and 
number of small entities affected, the projected reporting, 
recordkeeping and other compliance requirements being proposed, any 
existing federal rules which may duplicate, overlap or conflict with 
the proposed action, and any significant alternatives to the proposed 
action, any significant alternatives to the proposed action that 
accomplish its objectives and, at the same time, minimize its impact on 
small entities.

    \2\ Section 22 of the FTC Act, 15 U.S.C. 57b-3, also requires 
the Commission to perform ``regulatory impact analyses'' of a 
proposed rule, but only if the rule will have certain 
`'significant'' economic or regulatory effects. The Commission has 
determined that a preliminary regulatory analysis is not required by 
section 22 in this proceeding because the Commission has no reason 
to believe that repealing the Rule will have a ``significant' 
economic or regulatory impact, either beneficial or detrimental, 
upon persons subject to the Rule or upon consumers.
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    A description of the reasons why action is being considered and the 
objectives of the proposed repeal of the Rule have been explained 
elsewhere in this Notice. Repeal of the Rule would appear to have 
little or no effect on any small business. The Commission is not aware 
of any existing federal laws or regulations that would conflict with 
repeal of the Rule.
    In light of these reasons, the Commission certifies, pursuant to 
section 605 of RFA, 5 U.S.C. 605, that if the Commission determines to 
repeal the Rule that action will not have a significant impact on a 
substantial number of small entities. To ensure that no substantial 
economic impact is being overlooked, however, the Commission requests 
comments on this issue. After reviewing any comments received, the 
Commission will determine whether it is necessary to prepare a final 
regulatory flexibility analysis.
VII. Paperwork Reduction Act

    The Binocular Rule does not impose ``information collection 
requirements'' under the Paperwork Reduction Act (``PRA''), 44 U.S.C. 
3501 et seq. The Rule, however, does contain a disclosure requirement, 
which calls for a clear and conspicuous disclosure on any advertising 
or packaging for non-prismatic or partially prismatic binoculars that 
the instruments are not fully prismatic.\3\ Accordingly, repeal of the 
Rule would eliminate any burdens on the public imposed by those 
disclosure requirements.

    \3\ Under amendments to the PRA in the Paperwork Reduction Act 
of 1995 (Pub. L. 104-13, 109 Stat. 163, to be codified at 44 U.S.C. 
3501-20), which will become effective on October 1, 1995, these 
third-party disclosures may constitute a ``collection of 
information'' for which OMB Clearance must be sought.
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VIII. Additional Information for Interested Persons

A. Motions or Petitions

    Any motions or petitions in connection with this proceeding must be 
filed with the Secretary of the Commission.

B. Communications by Outside Parties to Commissioners or Their Advisors

    Pursuant to Rule 1.18(c) of the Commission's Rules of Practice, 16 
CFR 1.18(c), communications with respect to the merits of this 
proceeding from any outside party to any Commissioner or Commissioner's 
advisor during the course of this rulemaking shall be subject to the 
following treatment. Written communications, including written 
communications from members of Congress, shall be forwarded promptly to 
the Secretary for placement on the public record. Oral communications, 
not including oral communications from members of Congress, are 
permitted only when such oral communications are transcribed verbatim 
or summarized at the discretion of the Commissioner or Commissioner's 
advisor to whom such oral communications are made, and are promptly 
placed on the public record, together with any written communications 
relating to such oral communications. Memoranda prepared by a 
Commissioner or Commissioner's advisor setting forth the contents of 
any oral communications from members of Congress shall be placed 
promptly on the public record. If the communication with a member of 
Congress is transcribed verbatim or summarized, the transcript or 
summary will be placed promptly on the public record.

List of Subjects in 16 CFR Part 402

    Binoculars, Trade practices.

    Authority: 15 U.S.C. 41-58.

    By direction of the Commission.
Donald S. Clark,
Secretary.
[FR Doc. 95-23046 Filed 9-15-95; 8:45 am]
BILLING CODE 6750-01-M