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

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should be repealed.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.

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,

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

ct (``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

ar-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

e: (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

ll

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.

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

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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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.

ct (``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

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