[Federal Register Volume 72, Number 97 (Monday, May 21, 2007)]
[Notices]
[Pages 28491-28493]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-9711]


=======================================================================
-----------------------------------------------------------------------

FEDERAL TRADE COMMISSION


Agency Information Collection Activities; Submission for OMB 
Review; Comment Request

AGENCY: Federal Trade Commission.

ACTION: Notice.

-----------------------------------------------------------------------

SUMMARY: The information collection requirements described below will 
be submitted to the Office of Management and Budget (``OMB'') for 
review, as required by the Paperwork Reduction Act (``PRA''). The 
Federal Trade Commission (``FTC'' or ``Commission'') is seeking public 
comments on its proposal to extend through July 31, 2010 the current 
OMB clearance for information collection requirements contained in its 
proposed Affiliate Marketing Rule (or ``proposed Rule''). That 
clearance expires on July 31, 2007.

DATES: Comments must be filed by June 20, 2007.

ADDRESSES: Interested parties are invited to submit written comments. 
Comments should refer to ``Affiliate Marketing Rule: FTC File No. 
R411006'' to facilitate the organization of comments. A comment filed 
in paper form should include this reference both in the text and on the 
envelope and should be mailed or delivered, with two complete copies, 
to the following address: Federal Trade Commission, Room H-135 (Annex 
J), 600 Pennsylvania Ave., NW., Washington, DC 20580. Because paper 
mail in the Washington area and at the Commission is subject to delay, 
please consider submitting your comments in electronic form, as 
prescribed below. However, if the comment contains any material for 
which confidential treatment is requested, it must be filed in paper 
form, and the first page of the document must be clearly labeled 
``Confidential.'' \1\
---------------------------------------------------------------------------

    \1\ Commission Rule 4.2(d), 16 CFR 4.2(d). The comment must be 
accompanied by an explicit request for confidential treatment, 
including the factual and legal basis for the request, and must 
identify the specific portions of the comment to be withheld from 
the public record. The request will be granted or denied by the 
Commission's General Counsel, consistent with applicable law and the 
public interest. See Commission Rule 4.9(c), 16 CFR 4.9(c).
---------------------------------------------------------------------------

    Comments filed in electronic form should be submitted by following 
the instructions on the web-based form at https://secure.commentworks.com/ftc-AffiliateMarketingRule. To ensure that the 
Commission considers an electronic comment, you must file it on the 
web-based form at the https://secure.commentworks.com/ftc-AffiliateMarketingRule weblink. If this notice appears at 
www.regulations.gov, you may also file an electronic comment through 
that Web site. The Commission will consider all comments that 
www.regulations.gov forwards to it.
    All comments should additionally be submitted to: Office of 
Management and Budget, Attention: Desk Officer for the Federal Trade 
Commission. Comments should be submitted via facsimile to (202) 395-
6974 because U.S. Postal Mail is subject to lengthy delays due to 
heightened security precautions.
    The FTC Act and other laws the Commission administers permit the 
collection of public comments to consider and use in this proceeding as 
appropriate. All timely and responsive public comments will be 
considered by the Commission and will be available to the public on the 
FTC Web site, to the extent practicable, at www.ftc.gov. As a matter of 
discretion, the FTC makes every effort to remove home contact 
information for individuals from the public comments it receives before 
placing those comments on the FTC Web site. More information, including 
routine uses permitted by the Privacy Act, may be found in the FTC's 
privacy policy at http://www.ftc.gov/ftc/privacy.htm.

FOR FURTHER INFORMATION CONTACT: Requests for additional information 
should be addressed to Anthony Rodriguez or Loretta Garrison, 
Attorneys, Division of Privacy and Identity Protection, Bureau of 
Consumer Protection, Federal Trade Commission, 600 Pennsylvania Avenue, 
NW., Washington, DC 20580, (202) 326-2252.

SUPPLEMENTARY INFORMATION: On February 28, 2007, the FTC sought comment 
on the information collection requirements associated with its proposed 
rule. See 72 FR 9002. No comments were received. The FTC is providing 
this second opportunity for public comment while seeking OMB approval 
to extend the existing paperwork clearance for the Rule. All comments 
should be filed as prescribed in the ADDRESSES section above, and must 
be received on or before June 20, 2007.

[[Page 28492]]

    The Affiliate Marketing Rule, 16 CFR Part 680, was proposed by the 
FTC under section 214 of the Fair and Accurate Credit Transactions Act 
(``FACT Act''), Pub. L. No. 108-159 (December 6, 2003). The FACT Act 
amended the Fair Credit Reporting Act, 15 U.S.C. 1681 et seq., which 
was enacted to enable consumers to protect the privacy of their 
consumer credit information. As mandated by the FACT Act, the proposed 
Rule specifies disclosure requirements for certain affiliate companies 
subject to the Commission's jurisdiction. Except as discussed below, 
these requirements constitute ``collections of information'' for 
purposes of the PRA. Specifically, the FACT Act and the proposed Rule 
require covered entities to provide consumers with notice and an 
opportunity to opt out of the use of certain information before sending 
marketing solicitations. The proposed Rule generally provides that, if 
a company communicates certain information about a consumer 
(``eligibility information'') to an affiliate, the affiliate may not 
use that information to make or send solicitations to the consumer 
unless the consumer is given notice and a reasonable opportunity to opt 
out of such use of the information and the consumer does not opt out.
    To minimize compliance costs and burdens for entities, particularly 
any small businesses that may be affected, the proposed Rule contains 
model disclosures and opt-out notices that may be used to satisfy the 
statutory requirements. The proposed Rule also gives covered entities 
flexibility to satisfy the notice and opt-out requirement by sending 
the consumer a free-standing opt-out notice or by adding the opt-out 
notice to the privacy notices already provided to consumers, such as 
those provided in accordance with the provisions of Title V, subtitle A 
of the GLBA. For covered entities that choose to prepare a free-
standing opt-out notice, the time necessary to prepare it would be 
minimal because those entities could simply use the model disclosure. 
For covered entities that choose to incorporate the model opt-out 
notice into their GLBA privacy notices the time necessary to do so also 
would be minimal. Arguably, verbatim adoption of the model notice would 
not even be a PRA ``collection of information.'' \2\
---------------------------------------------------------------------------

    \2\ ``The public disclosure of information originally supplied 
by the Federal government to the recipient for purpose of disclosure 
to the public is not included within [the definition of collection 
of information]'' 5 CFR 1320(c)(2).
---------------------------------------------------------------------------

Burden Statement

    Except where otherwise specifically noted, staff's estimates of 
burden are based on its knowledge of the consumer credit industries and 
knowledge of the entities over which the Commission has jurisdiction. 
This said, estimating PRA burden of the proposed Rule's disclosure 
requirements is difficult given the highly diverse group of affected 
entities that may use certain eligibility information shared by their 
affiliates to send marketing notices to consumers.
    The estimates provided in this burden statement may well overstate 
actual burden. First, an uncertain but possibly significant number of 
entities subject to the FTC's jurisdiction do not have affiliates and 
would thus not be covered by section 214 of the FACT Act or the 
proposed Rule. Second, Commission staff does not know how many 
companies subject to the FTC's jurisdiction under the proposed rule 
actually share eligibility information among affiliates and, of those, 
how many affiliates use such information to make marketing 
solicitations to consumers. Third, staff considered the wide variations 
in covered entities and the fact that, in some instances, covered 
entities may make the required disclosures in the ordinary course of 
business, apart from the FACT Act Rule, voluntarily as a service to 
their customers. Finally, still other entities may choose to rely on 
the exceptions to the proposed Rule's notice and opt-out 
requirements.\3\
---------------------------------------------------------------------------

    \3\ Exceptions include, for example, having a preexisting 
business relationship with a consumer, using information in response 
to a communication initiated by the consumer or to solicitations 
authorized or requested by the consumer.
---------------------------------------------------------------------------

    Staff's estimates assume a higher burden will be incurred during 
the first year of the OMB clearance period with a lesser burden for 
each of the subsequent two years, since the opt-out notice to consumers 
is required to be given only once. Institutions may provide for an 
indefinite period for the opt-out or they may time limit it, but for no 
less than five years. Given this minimum time period, Commission staff 
did not estimate burden for preparing and distributing extension 
notices by entities that limit the duration of the opt-out time period. 
The relevant PRA time frame for burden calculation is three years from 
renewed OMB clearance, and the five-year notice period will not begin 
until this proposed Rule becomes final.
    Staff's labor cost estimates take into account: Managerial and 
professional time for reviewing internal policies and determining 
compliance obligations; technical time for creating the notice and opt-
out, in either paper or electronic form; and clerical time for 
disseminating the notice and opt-out.\4\ In addition, staff's cost 
estimates presume that the availability of model disclosures and opt-
out notices will simplify the compliance review and implementation 
processes, thereby significantly reducing the cost of compliance. 
Moreover, the proposed Rule gives entities considerable flexibility to 
determine the scope and duration of the opt-out. Indeed, this 
flexibility permits entities to send a single joint notice on behalf of 
all of its affiliates.
---------------------------------------------------------------------------

    \4\ No clerical time was included in staff's burden analysis for 
GLBA entities as the notice would likely be combined with existing 
GLBA notices.
---------------------------------------------------------------------------

    Estimated total average annual hours burden: 1,105,000 hours, 
rounded.
    Staff estimates that approximately 1.17 million (rounded) non-GLBA 
entities under the jurisdiction of the FTC have affiliates and would be 
affected by the proposed Rule.\5\ Staff further estimates that there 
are an average of 5 businesses per family or affiliated relationship, 
and that the affiliated entities will choose to send a joint notice, as 
permitted by the proposed Rule. Thus an estimated 233,400 (rounded) 
non-GLBA entities may send the new affiliate marketing notice. Staff 
also estimates that non-GLBA entities under the jurisdiction of the FTC 
would each incur 14 hours of burden during the three-year clearance 
period, comprised of a projected 7 hours of managerial time, 2 hours of 
technical time, and 5 hours of clerical assistance.
---------------------------------------------------------------------------

    \5\ This estimate is derived from an analysis of a database of 
U.S. businesses based on SIC codes for businesses that market goods 
or services to consumers, which included the following industries: 
transportation services; communication; electric, gas, and sanitary 
services; retail trade; finance, insurance, and real estate; and 
services (excluding business services and engineering, management 
services). This estimate excludes businesses not subject to the 
FTC's jurisdiction as well as businesses that do not use data or 
information subject to the rule.
---------------------------------------------------------------------------

    Based on the above, total burden for non-GLBA entities during the 
prospective three-year clearance period would be approximately 
3,268,000 hours and associated labor cost approximately $92,247,000, 
rounded.\6\

[[Page 28493]]

These estimates include the start-up burden and attendant costs, such 
as determining compliance obligations. However, non-GLBA entities will 
give notice only once during the clearance period ahead. Thus, averaged 
over that three-year period, the estimated annual burden for non-GLBA 
entities is 1,089,000 hours and $30,749,000 in labor costs, rounded.\7\
---------------------------------------------------------------------------

    \6\ The hourly rates are based on average annual Bureau of Labor 
Statistics National Compensation Survey data, June 2005 (with 2005 
as the most recent whole year information available at the BLS Web 
site). http://www.bls.gov/ncs/ocs/sp/ncbl0832.pdf (Table 1.1), and 
further adjusted by a multiplier of 1.06426, a compounding for 
approximate wage inflation for 2005 and 2006, based on the BLS 
Employment Cost Index. The dollar total above is derived from the 
estimated 7 hours of managerial labor at $34.21 per hour; 2 hours of 
technical labor at $29.80 per hour; and 5 hours of clerical labor at 
$14.44 per hour--a combined $371.27--multiplied by 1.06426 (a 
combined $395.13)--for the estimated 233,400+ non-GLBA business 
families subject to the proposed Rule.
    \7\ 3,268,000 hours / 3 = 1,089,000; $92,247,000 / 3 = 
$30,749,000.
---------------------------------------------------------------------------

    Entities that are subject to the Commission's GLBA privacy notice 
regulation already provide privacy notices to their customers.\8\ 
Because the FACT Act and the proposed Rule contemplate that the new 
affiliate marketing notice can be included in the GLBA notices, the 
burden on GLBA regulated entities would be greatly reduced. 
Accordingly, the GLBA entities would incur 6 hours of burden during the 
first year of the clearance period, comprised of a projected 5 hours of 
managerial time and 1 hour of technical time to execute the notice, 
given that the proposed Rule provides a model.\9\ Staff also estimates 
that 3,350 GLBA entities under the FTC's jurisdiction would be 
affected, so that the total burden for GLBA entities during the first 
year of the clearance period would approximate 20,000 hours and 
$716,000 in associated labor costs.\10\ Allowing for increased 
familiarity with procedure, the paperwork burden in ensuing years would 
decline, with GLBA entities each incurring an estimated 4 hours of 
annual burden (3 hours of managerial time and 1 hour of technical time) 
during the remaining two years of the clearance, amounting to 13,400 
hours and $472,000 in labor costs in each of the ensuing two years. 
Thus, averaged over the three-year clearance period, the estimated 
annual burden for GLBA entities is 15,600 hours and $553,000 in labor 
costs.
---------------------------------------------------------------------------

    \8\ Financial institutions must provide a privacy notice at the 
time the customer relationship is established and then annually so 
long as the relationship continues. Staff's estimates assume that 
the affiliate marketing opt-out will be incorporated in the 
institution's initial and annual notices.
    \9\ As stated above, no clerical time is included in the 
estimate because the notice likely would be combined with existing 
GLBA notices.
    \10\ 3,350 GLBA entities x [($34.20 x 5 hours) + ($29.80 x 1 
hour)] x 1.06426 wage multiplier (see note 6).
---------------------------------------------------------------------------

    Cumulatively for both GLBA and non-GLBA entities, the average 
annual burden over the prospective three-year clearance period, 
rounded, is approximately 1,105,000 burden hours and $31,302,000 in 
labor costs, rounded. GLBA entities are already providing notices to 
their customers so there are no new capital or non-labor costs, as this 
notice may be consolidated into their current notices. For non-GLBA 
entities, the rule provides for simple and concise model forms that 
institutions may use to comply. Thus, any capital or non-labor costs 
associated with compliance for these entities are negligible.

William Blumenthal,
General Counsel.
 [FR Doc. E7-9711 Filed 5-18-07; 8:45 am]
BILLING CODE 6750-01-P