Federal Register / Vol. 62, No. 64 / Thursday, April 3, 1997 / Proposed Rules 15865

1Advertising of Ophthalmic Goods and Services,

Statement of Basis and Purpose and Final Trade

Continued

comments submitted will be available

for examination in the Rules Docket

both before and after the closing date for

comments. A report summarizing each

substantive public contact with the FAA

personnel concerned with this

rulemaking will be filed in the docket.

Availability of NPRMs

Any person may obtain a copy of this

Notice of Proposed Rulemaking (NPRM)

by submitting a request to the Office of

the Assistant Chief Counsel, AEA–7,

F.A.A. Eastern Region, Federal Building

#111, John F. Kennedy International

Airport, Jamaica, NY 11430.

Communications must identify the

notice number of this NPRM. Persons

interested in being placed on a mailing

list for future NPRMs should also

request a copy of Advisory Circular No.

11–2A, which describes the application

procedure.

The Proposal

The FAA is considering an

amendment to Part 71 of the Federal

Aviation Regulations (14 CFR part 71) to

establish Class E airspace extending

upward from 700 feet above the surface

(AGL) at Zelienople, PA. A GPS RWY 35

SIAP has been developed for Zelienople

Municipal Airport. Additional

controlled airspace extending upward

from 700 feet above the surface (AGL) is

needed to accommodate this SIAP and

for IFR operations at the airport. The

area would be depicted on appropriate

aeronautical charts. Class E airspace

designations for airspace extending

upward from 700 feet above the surface

are published in Paragraph 6005 of FAA

Order 7400.9D, dated September 4,

1996, and effective September 16, 1996,

which is incorporated by reference in 14

CFR 71.1. The Class E airspace

designation listed in this document

would be published subsequently in the

Order.

The FAA has determined that this

proposed regulation only involves an

established body of technical

regulations for which frequent and

routine amendments are necessary to

keep them operationally current.

Therefore, this proposed regulation—(1)

is not a ‘‘significant regulatory action’’

under Executive Order 12866; (2) is not

a ‘‘significant rule’’ under DOT

Regulatory Policies and Procedures (44

FR 11034; February 26, 1979); and (3)

does not warrant preparation of a

regulatory evaluation as the anticipated

impact is so minimal. Since this is a

routine matter that would only affect air

traffic procedures and air navigation, it

is certified that this proposed rule

would not have a significant economic

impact on a substantial number of small

entities under the criteria of the

Regulatory Flexibility Act.

List of Subjects in 14 CFR Part 71

Airspace, Incorporation by reference,

Navigation (air).

The Proposed Amendment

In consideration of the foregoing, the

Federal Aviation Administration

proposes to amend 14 CFR part 71 as

follows:

PART 71—[AMENDED]

1. The authority citation for Part 71

continues to read as follows:

Authority: 49 U.S.C. 106(g), 40103, 40113,

40120; E.O. 10854; 24 FR 9565, 3 CFR, 1959–

1963 Comp., p. 389; 14 CFR 11.69.

2. The incorporation by reference in

14 CFR 71.1 of the Federal Aviation

Administration Order 7400.9D, dated

September 4, 1996, and effective

September 16, 1996, is proposed to be

amended as follows:

Paragraph 6005 Class E airspace areas

extending upward from 700 feet or more

above the surface of the earth.

* * * * *

AEA PA E5 Zelienople, PA [New]

Zelienople Municipal Airport, PA

(Lat. 40°48′06′′ N., long. 80°09′38′′ W.)

That airspace extending upward from 700

feet above the surface within a 6-mile radius

of Zelienople Municipal Airport, excluding

the portions that coincides with the Butler,

PA, and Beaver Falls, PA Class E airspace

areas.

* * * * *

Issued in Jamaica, New York, on March 5,

1997.

John S. Walker,

Manager, Air Traffic Division, Eastern Region.

[FR Doc. 97–8503 Filed 4–2–97; 8:45 am]

BILLING CODE 4910–13–M

FEDERAL TRADE COMMISSION

16 CFR Part 456

Ophthalmic Practice Rules: Request

for Comments

AGENCY: Federal Trade Commission.

ACTION: Request for public comments.

SUMMARY: The Federal Trade

Commission (the ‘‘Commission’’) is

requesting public comments on its

Trade Regulation Rule entitled

Ophthalmic Practice Rules, which

requires eye care practitioners to release

eyeglass prescriptions to their patients

(‘‘Prescription Release Rule’’), 16 CFR

Part 456. The Commission is soliciting

comments about the overall costs and

benefits of the rule and its overall

regulatory and economic impact as part

of its systematic review of all current

Commission regulations and guides.

The Commission is further requesting

comment on several issues relating to

specific provisions of the rule. All

interested persons are hereby given

notice of the opportunity to submit

written data, views, and arguments

concerning the rule.

DATES: Written comments must be

submitted on or before June 2, 1997.

ADDRESSES: Written comments should

be identified as ‘‘16 CFR Part 456

Comment’’ and sent to Secretary,

Federal Trade Commission, Room 159,

Washington, DC 20580.

FOR FURTHER INFORMATION CONTACT:

Renee Kinscheck, Attorney, Federal

Trade Commission, Bureau of Consumer

Protection, Washington, DC 20580, (202)

326–3283; Federal Trade Commission,

room 200, Washington, DC 20580; email address: RKinscheck@ftc.gov.

SUPPLEMENTARY INFORMATION: The

Commission has determined, as part of

its oversight responsibilities, to review

rules and guides periodically. These

reviews will seek information about the

costs and benefits of the Commission’s

rules and guides and their regulatory

and economic impact. The information

obtained will assist the Commission in

identifying rules and guides that

warrant modification or rescission. The

Commission is also seeking comment on

several issues specific to the

Prescription Release Rule, including:

whether the Commission should modify

or eliminate the prescription release

requirement; whether, if it is retained,

this provision should be changed to

require that an eyeglass prescription be

given to a patient only if the patient

requests it, rather than in every

instance, or whether this provision

should be modified in some other way;

and whether any changes should be

made to § 456.2(d)’s prohibition on the

use of certain waivers or disclaimers of

liability. The Commission seeks

comment on the costs and benefits of

such proposed changes.

Part A—Background Information

The Commission promulgated the

Prescription Release Rule in 1978 based

on a finding that many consumers were

being deterred from comparison

shopping for eyeglasses because eye

care practitioners refused to release

prescriptions, even when requested to

do so, or charged an additional fee for

release of a prescription.1
15866 Federal Register / Vol. 62, No. 64 / Thursday, April 3, 1997 / Proposed Rules

Regulation Rule, 43 FR 23992, 23998 (June 2, 1978)

(hereinafter ‘‘1978 Statement of Basis and

Purpose’’). In addition, the Commission found that

some practitioners refused to conduct an

examination unless the patient agreed to purchase

eyeglasses from the practitioner or included

potentially intimidating disclaimers of liability on

the prescription itself. Id.

2An optometrist or ophthalmologist, however,

may withhold the eyeglass prescription if the

patient has not paid for the eye examination in full

if the optometrist or ophthalmologist would have

required immediate payment if the examination

revealed that no ophthalmic goods, such as

eyeglasses, were required.

3Trade Regulation Rule; Ophthalmic Practice

Rules, Final Trade Regulation Rule, 54 FR 10285,

10299 (March 13, 1989) (hereinafter ‘‘1989

Statement of Basis and Purpose’’). The

Commission’s interpretation of this provision was

originally set forth at 43 FR 46296–46297 (October

6, 1978).

4Statement of Basis and Purpose, 54 FR at 10302,

citing, Ophthalmic Practice Rules, State Restrictions

on Commercial Practice, ‘‘Eyeglasses II,’’ Report of

the Staff of the Federal Trade Commission, October

1986, at pp. 251–52.

5Ophthalmic Practice Rules; Proposed Trade

Regulation Rule; Notice of Proposed Rulemaking,

50 FR 598, 602–03 (January 4, 1985). The

Commission also asked whether: (1) the rule should

be repealed altogether; (2) the rule should be

extended to require optometrists and

ophthalmologists to provide a duplicate copy of a

prescription to a patient who lost or misplaced the

original; and (3) the rule should require dispensers

to return the prescription after filling the

prescription. Id.

6 1989 Statement of Basis and Purpose, 54 FR at

10303. The Commission did modify the definition

of ‘‘prescription’’ to eliminate confusion. This term

was, and is, defined as those specifications

necessary to obtain lenses for eyeglasses. Thus,

under the rule, the prescription that is released to

the patient need only contain the data on the

refractive status of the patient’s eyes and any

information, such as the date or signature of the

examining optometrist or ophthalmologist, that

state law requires in a legally fillable eyeglasses

prescription. In 1989, the Commission deleted from

the definition all references to contact lenses. This

change was intended to end the confusion

generated by the prior definition concerning the

obligation of optometrists and ophthalmologists to

place the phrase ‘‘OK for contact lenses’’ (or similar

words) on prescriptions. No such obligation exists

under the rule. 1989 Statement of Basis and

Purpose, 54 FR at 10299. The change also helped

to eliminate confusion over whether the rule

requires the release of a contact lens prescription.

7 1989 Statement of Basis and Purpose, 54 FR at

10303. With respect to the other questions raised in

the NPR, the Commission concluded that there was

no substantial evidence to show either that

practitioners refused to release duplicate copies of

prescriptions to patients who lost or misplaced

their original copies or that eyeglass dispensers

refused to return prescriptions to patients after

filling the prescription. Thus, it concluded that

rulemaking in these areas would be inappropriate.

Id.

8The survey consisted of telephone interviews of

2037 consumers selected from a random digit

dialing probability sample of all households in the

United States. These consumers were initially asked

whether they had worn contact lenses within the

past year. Two hundred and fifty of the 2037

consumers contacted by interviewers

(approximately 10.5%) had worn contact lenses

within the past year. These consumers were asked

the remaining questions in the survey concerning

their ability to obtain their contact lens

prescription.

The rule requires an optometrist or

ophthalmologist to provide the patient

with a copy of the patient’s eyeglass

prescription immediately after the eye

examination is completed at no extra

cost.2 (§ 456.2 (a) and (c).) It also

prohibits optometrists and

ophthalmologists from conditioning the

availability of an eye examination, as

defined in the rule, on a requirement

that the patient agrees to purchase

ophthalmic goods from the optometrist

or ophthalmologist. (§ 456.2(b).)

In § 456.2(d) the rule prohibits placing

on the prescription, or delivering to the

patient, any waiver or disclaimer of the

liability of the practitioner for the

accuracy of the eye examination or the

accuracy of the ophthalmic goods and

services dispensed by another seller. As

the Commission made clear in its

declaration of intent (§ 456.4), the rule

does not impose liability on an

ophthalmologist or optometrist for the

ophthalmic goods and services

dispensed by another seller pursuant to

the ophthalmologist’s or optometrist’s

prescription. By its terms, the rule

proscribes only ‘‘waivers or

disclaimers’’ of responsibility. The

Commission has interpreted this portion

of the rule to permit nondeceptive

affirmative statements concerning

responsibility. For example, a written

statement that ‘‘the person who

dispenses your eyeglasses is responsible

for their accuracy’’ would not violate

§ 456.2(d). However, such an affirmative

statement cannot be coupled with a

waiver or disclaimer of the optometrist’s

or ophthalmologist’s own liability.3

The rule requires eye care

practitioners to release copies of the

eyeglass prescriptions regardless of

whether or not the patient requests the

prescription. The Commission

promulgated this automatic release

requirement based on a finding of

‘‘consumers’ lack of awareness that the

purchase of eyeglasses need not be a

unitary process’’—i.e., the purchasing

eyeglasses can be separated from the

process of obtaining an eye exam. The

automatic release provision was thus

imposed as a remedial measure.4

In 1985, the Commission published a

Notice of Proposed Rulemaking

(hereinafter ‘‘NPR’’) that invited

comments on whether the prescription

release requirement should be modified

or repealed. Specifically, among other

questions, the Commission asked

whether: (1) the rule should be modified

to require that eyeglass prescriptions be

given to patients only in those instances

where patients request them; (2) the rule

should be modified to require eye care

practitioners only to offer, rather than

automatically give, eyeglass

prescriptions to their patients; or (3) the

rule should be extended to require the

release of contact lens prescriptions.5

In 1989, having considered the

rulemaking record, which included two

surveys and comments and testimony

offered by optometrists, opticians,

professional associations, state boards,

and consumer groups, the Commission

decided to retain the automatic release

aspect of the rule. In declining to

modify the rule, the Commission stated

that there was still significant noncompliance with the automatic release

requirement and that there continued to

be a lack of consumer awareness about

prescription rights. Accordingly, the

Commission held that it could not

conclude that the remedial automatic

release provision was no longer

needed.6

The Commission also determined not

to extend the Prescription Release Rule

to contact lens prescriptions. In making

its decision, the Commission concluded

that there was not sufficient reliable

evidence on the record to permit a

conclusion that the practice not to

release contact lens prescriptions was

prevalent. The Commission further

commented that even if the evidence on

the prevalence of refusal to release

contact lens prescriptions, and any

resulting consumer injury, were

satisfactorily documented, the

Commission would need to consider if

any countervailing benefits justified the

refusal. The Commission noted in its

Statement of Basis and Purpose that

some commenters suggested that refusal

to release contact lens prescriptions is

necessary to permit the fitter to verify

the fit of the lens because there is some

danger that the lenses may not conform

to the eye as expected. The Commission

then stated that because the evidence

was insufficient to evaluate this claim

fully, it could not reach a conclusion

that the refusal to release a contact lens

prescription in an unfair act or

practice.7

The Commission revisited the contact

lens prescription release issue in 1995,

in response to a petition for rulemaking

by a consumer in South Carolina whose

optometrist had refused to release the

consumer’s contact lens prescription.

Although the petitioner did not provide

any information or documentation

suggesting that the evidence considered

by the Commission during the previous

rulemaking proceeding had changed in

any way, the Commission, in February

1995, conducted a survey on the extent

of contact lens consumers’ ability to

obtain their contact lens prescriptions.8
Federal Register / Vol. 62, No. 64 / Thursday, April 3, 1997 / Proposed Rules 15867

9This survey has been placed on the public

record, and is available from the Commission’s

Public Reference Branch, Room, 130, Washington,

DC 20580; 202–326–2222; TTY for the hearing

impaired 202–326–2502.

10The petition and the Commission’s response

have been placed on the public record, and are

available from the Commission’s Public Reference

Branch, Room 130, Washington, DC 20580; 202–

326–2222; TTY for the hearing impaired 202–326–

2502.

The survey results suggest that most

consumers obtain a copy of their contact

lens prescription. Approximately 60%

(147/250) of those interviewees did

receive a copy of their contact lens

prescription either immediately after

their last exam or subsequently

thereafter. Moreover, the survey results

indicate that nearly all practitioners

who are requested to release the contact

lens prescription to the consumer, do

so. Approximately 92% (66/72) of those

consumers who requested a copy of

their contact lens prescription received

the prescription either immediately after

the eye examination or subsequently

thereafter.9

Based on the results of the survey as

well as the existence of industry

literature continuing to raise quality of

care issues relating to unsupervised use

of contact lenses, the Commission

denied the petition.10

Part B—Issues for Comments

The Commission solicits written

public comments on the following

questions:

1. Is there a continuing need for the

rule?

a. What benefits has the rule provided

to purchasers of eye exams and

eyeglasses, to opticians or to others

affected by the rule?

b. Has the rule imposed costs on

purchasers?

2. What changes, if any, should be

made to the rule to increase the benefits

of the rule to purchasers, opticians or to

others?

a. How would these changes affect the

costs the rule imposes on eye care

practitioners (optometrists and

ophthalmologists) subject to its

requirements?

3. What significant burdens or costs,

including costs of compliance, has the

rule imposed on eye care practitioners?

a. Has the rule provided benefits to

such practitioners?

4. What changes, if any, should be

made to the rule to reduce the burdens

or costs imposed on eye care

practitioners?

a. How would these changes affect the

benefits provided by the rule?

5. Does the rule overlap or conflict

with other federal, state, or local laws or

regulations?

6. Since the rule was issued, what

effects, if any, have changes in relevant

technology or economic conditions had

on the rule?

Section 456.2(a)—Prescription Release

Requirement

7. If the rule is retained, should the

Commission modify the prescription

release requirement of § 456.2(a) to

require that an eyeglass prescription be

given to a patient only if the patient

requests it, rather than in every

instance, or should this provision be

modified in some other way?

a. Are consumers generally aware of

their ability to seek and obtain their

eyeglass prescriptions?

b. To what extent are consumers able

to obtain a copy of their eyeglass

prescription if they request one?

c. To what extent would practitioners

release eyeglass prescriptions in the

absence of any federal requirement to do

so?

Section 456.2(d)—Waivers and

Disclaimers

8. Should any changes be made to

§ 456.2(d)’s prohibition on the use of

certain waivers or disclaimers of

liability, and/or the Commission

interpretation thereof?

a. What problems, if any, has the

current requirement, and/or its

interpretation, caused?

b. How could any such problems be

remedied?

Contact Lens Prescriptions

9. Should the rule be extended to

require the release of contact lens

prescriptions?

a. Are consumers able to get their

contact lens prescriptions upon request?

b. What evidence is there to show that

refusal to release contact lens

prescriptions does or does not have

benefits justifying the refusal?

Specifically, are there any significant

administrative costs incurred when

releasing contact lens prescriptions?

What evidence is there to show that

there is or is not a danger that the lenses

may not conform to the eye as expected,

thus justifying a refusal to release

contact lens prescriptions to permit the

fitter to verify the fit of the lens?

List of Subjects in 16 CFR Part 456

Advertising; Medical devices;

Ophthalmic goods and services; Trade

practices.

Authority: 15 U.S.C. 41–58.

By direction of the Commission.

Benjamin I. Berman,

Acting Secretary.

[FR Doc. 97–8494 Filed 4–2–97; 8:45 am]

BILLING CODE 6750–01–M

NATIONAL ARCHIVES AND RECORDS

ADMINISTRATION

36 CFR Part 1258

RIN 3095–AA71

NARA Reproduction Fee Schedule;

Correction

AGENCY: National Archives and Records

Administration (NARA).

ACTION: Proposed rulemaking;

correction.

SUMMARY: NARA is correcting a

typographical error in the notice of

proposed rulemaking published on

March 31, 1997, setting out the

proposed revised NARA reproduction

fee schedule. In that document, the

proposed fee for orders of additional

paper-to-paper copies placed at a

Washington, DC, facility was correctly

stated as $5 for each additional block of

20 copies in the preamble, but was

stated as $5 for each additional block of

up to 10 copies in the proposed

§ 1258.12(b)(2)(ii).

Correction

In the proposed rule published in the

Federal Register on March 31, 1997 (61

FR 15137), on page 15138, in the second

column, proposed paragraph (b)(2)(ii) of

§ 1258.12 is corrected to read as follows:

§ 1258.12 [Corrected]

* * * * *

(b) * * *

(2) * * *

(ii) All other orders placed at a

Washington, DC, area facility: $10 for

the first 1–20 copies; $5 for each

additional block of up to 20 copies.

* * * * *

Dated: April 1, 1997.

Nancy Y. Allard,

Alternate Federal Register Liaison.

[FR Doc. 97–8636 Filed 4–2–97; 8:45 am]

BILLING CODE 7515–01–P

ENVIRONMENTAL PROTECTION

AGENCY

40 CFR Part 52

[IN53–1b; FRL–5710–2]

Approval and Promulgation of State

Implementation Plan; Indiana

AGENCY: Environmental Protection

Agency (EPA).

ACTION: Proposed rule.

SUMMARY: In this action, EPA is

proposing to approve the following as

revisions to the Indiana ozone State

Implementation Plan (SIP): A rate-of-