[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should be repealed.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