[Federal Register Volume 78, Number 166 (Tuesday, August 27, 2013)]
[Notices]
[Pages 52918-52921]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-20794]


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

FEDERAL TRADE COMMISSION


Agency Information Collection Activities; Proposed Collection; 
Comment Request

AGENCY: Federal Trade Commission (``FTC'' or ``Commission'').

ACTION: Notice.

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

SUMMARY: The FTC intends to ask the Office of Management and Budget 
(``OMB'') to extend through December 31, 2016, the current Paperwork 
Reduction Act (``PRA'') clearance for the FTC's enforcement of the 
information collection requirements in its Affiliate Marketing Rule (or 
``Rule''), which applies to certain motor vehicle dealers, and its 
shared enforcement with the Consumer Financial Protection Bureau 
(``CFPB'') of the provisions (subpart C) of the CFPB's Regulation V 
regarding other entities (``CFPB Rule''). The current clearance expires 
on December 31, 2013.

DATES: Comments must be filed by October 28, 2013.

ADDRESSES: Interested parties are invited to submit written comments 
electronically or in paper form by following the instructions in the 
Request for Comment part of the SUPPLEMENTARY INFORMATION section 
below. Comments in electronic form should be submitted by using the 
following weblink: https://public.commentworks.com/ftc/affiliatemarketingpra (and following the instructions on the web-based 
form). Comments filed in paper form should be mailed or delivered to 
the following address: Federal Trade Commission, Office of the 
Secretary, Room H-113 (Annex J), 600 Pennsylvania Avenue NW., 
Washington, DC 20580, in the manner detailed in the SUPPLEMENTARY 
INFORMATION section below.

FOR FURTHER INFORMATION CONTACT: Requests for additional information 
should be addressed to Steven Toporoff, Attorney, Division of Privacy 
and Identity Protection, Bureau of Consumer Protection, Federal Trade 
Commission, 600 Pennsylvania Avenue NW, NJ-8100, Washington, DC 20580, 
(202) 326-3135.

SUPPLEMENTARY INFORMATION: On July 21, 2010, President Obama signed 
into law the Dodd-Frank Wall Street Reform and Consumer Protection Act 
(``Dodd-Frank Act'').\1\ The Dodd-Frank Act substantially changed the 
federal legal framework for financial services providers. Among the 
changes, the Dodd-Frank Act transferred to the CFPB most of the FTC's 
rulemaking authority for the Affiliate Marketing provisions of the Fair 
Credit Reporting Act (``FCRA''),\2\ on July 21, 2011.\3\ For certain 
other portions of the FCRA, the FTC retains its full rulemaking 
authority.\4\
---------------------------------------------------------------------------

    \1\ Public Law 111-203, 124 Stat. 1376 (2010).
    \2\ 15 U.S.C. 1681 et seq.
    \3\ Dodd-Frank Act, at section 1061. This date was the 
``designated transfer date'' established by the Treasury Department 
under the Dodd-Frank Act. See Dep't of the Treasury, Bureau of 
Consumer Financial Protection; Designated Transfer Date, 75 FR 
57252, 57253 (Sept. 20, 2010); see also Dodd-Frank Act, at section 
1062.
    \4\ The Dodd-Frank Act does not transfer to the CFPB rulemaking 
authority for FCRA sections 615(e) (``Red Flag Guidelines and 
Regulations Required'') and 628 (``Disposal of Records''). See 15 
U.S.C. 1681s(e); Public Law 111-203, section 1088(a)(10)(E). 
Accordingly, the Commission retains full rulemaking authority for 
its ``Identity Theft Rules,'' 16 CFR part 681, and its rules 
governing ``Disposal of Consumer Report Information and Records,'' 
16 CFR part 682. See 15 U.S.C. 1681m, 1681w.
---------------------------------------------------------------------------

    The FTC retains rulemaking authority for its Affiliate Marketing 
Rule, 16 CFR 680, solely for motor vehicle dealers described in section 
1029(a) of the Dodd-Frank Act that are predominantly engaged in the 
sale and servicing of motor vehicles, the leasing and servicing of 
motor vehicles, or both.\5\
---------------------------------------------------------------------------

    \5\ See Dodd-Frank Act, at section 1029 (a), (c).
---------------------------------------------------------------------------

    On December 21, 2011, the CFPB issued its interim final FCRA rule, 
including the affiliate marketing provisions (subpart C) of CFPB's 
Regulation V.\6\ Contemporaneous with that issuance, the CFPB and FTC

[[Page 52919]]

submitted to OMB, and received its approval for, that agency's 
respective burden estimates reflecting its overlapping enforcement 
jurisdiction with the FTC. The discussion in the Burden Statement 
below, following preliminary background information, continues that 
analytical framework of shared enforcement authority, as supplemented 
by the FTC's jurisdiction over auto motive dealers, as noted above.
---------------------------------------------------------------------------

    \6\ 76 FR 79308. Subpart C of the interim final rule became 
effective on December 30, 2011. Subpart C is codified at 12 CFR 
1022.20 et seq. Except for certain motor vehicle dealers (see supra 
note 5 and accompanying text), the disclosure and opt-out provisions 
described in the ``Background'' discussion below also pertain to 
Subpart C of Regulation V and the FTC's associated co-enforcement 
jurisdiction.
---------------------------------------------------------------------------

Background

    As mandated by section 214 of the Fair and Accurate Credit 
Transactions Act (``FACT Act''), Public Law 108-159 (Dec. 6, 2003), the 
Affiliate Marketing Rule, 16 CFR part 680, specifies disclosure 
requirements for certain affiliated companies. Except as discussed 
below, these requirements constitute ``collection[s] of information'' 
for purposes of the PRA. Specifically, the FACT Act and the FTC 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 FTC Rule generally provides that, if a 
company communicates certain information about a consumer (eligibility 
information) to an affiliate, the affiliate may not use it to make or 
send solicitations to him or her unless the consumer is given notice 
and a reasonable opportunity to opt out of such use of the information 
and s/he does not opt out.
    To minimize compliance costs and burdens for entities, particularly 
any small businesses that may be affected, the FTC Rule contains model 
disclosures and opt-out notices that may be used to satisfy the 
statutory requirements. The FTC 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 Gramm Leach Bliley Act (``GLBA'').\7\ In either event, the time 
necessary to prepare or incorporate an opt-out notice would be minimal 
because those entities could either use the model disclosure verbatim 
or base their own disclosures upon it. Moreover, verbatim adoption of 
the model notice does not constitute a PRA ``collection of 
information.'' \8\
---------------------------------------------------------------------------

    \7\ 15 U.S.C. 6801 et seq.
    \8\ ``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 1320.3(c)(2).
---------------------------------------------------------------------------

Burden Statement

    Under the PRA, 44 U.S.C. 3501-3521, federal agencies must get OMB 
approval for each collection of information they conduct or sponsor. 
``Collection of information'' includes agency requests or requirements 
to submit reports, keep records, or provide information to a third 
party. 44 U.S.C. 3502(3); 5 CFR 1320.3(c). The FTC is seeking clearance 
for its assumed share of the estimated PRA burden regarding the 
disclosure requirements under the FTC and CFPB Rules.
    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 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. As noted above, verbatim adoption of the disclosure of 
information provided by the federal government is not a ``collection of 
information'' to which to assign PRA burden estimates, and an unknown 
number of covered entities will opt to use the model disclosure 
language. Second, an uncertain, but possibly significant, number of 
entities subject to FTC jurisdiction do not have affiliates and thus 
would not be covered by section 214 of the FACT Act or the Rule. Third, 
Commission staff does not know how many companies subject to FTC 
jurisdiction under the Rule actually share eligibility information 
among affiliates and, of those, how many affiliates use such 
information to make marketing solicitations to consumers. Fourth, still 
other entities may choose to rely on the exceptions to the Rule's 
notice and opt-out requirements.\9\ Finally, the population estimates 
below to apply further calculations are based on industry data that, 
while providing tallies of business entities within industries and 
industry segments, does not identify those entities individually. Thus, 
there is no clear path to ascertain how many individual businesses have 
newly entered and departed within a given industry classification, from 
one year to the next or from one triennial PRA clearance cycle to the 
next. Accordingly, there is no ready way to quantify how many 
establishments accounted for in the data reflect those previously 
accounted for in the FTC's prior PRA analysis, i.e., entities that 
would already have experienced a declining learning curve applying the 
Rule with the passage of time. For simplicity, the FTC analysis will 
continue to treat covered entities as newly undergoing the previously 
assumed learning curve cycle, although this would effectively overstate 
estimated burden for unidentified covered entities that have remained 
in existence since OMB's most recent clearances for the FTC Rule.\10\
---------------------------------------------------------------------------

    \9\ Exceptions include, for example, having a preexisting 
business relationship with a consumer, using information in response 
to a communication initiated by the consumer, and solicitations 
authorized or requested by the consumer.
    \10\ On December 21, 2010, OMB granted three-year clearance for 
the Rule through December 31, 2013 under Control No. 3084-0131. On 
February 3, 2012, OMB additionally approved under that control 
number FTC adjustments submitted on December 9, 2011 to reflect the 
effects of the Dodd-Frank Act, but the latter approval retained the 
previously accorded clearance expiration of December 31, 2013.
---------------------------------------------------------------------------

    As in the past, FTC staff's estimates assume a higher burden will 
be incurred during the first year of a prospective OMB three-year 
clearance, with a lesser burden for each of the subsequent two years 
because 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.
    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.\11\ 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 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.
---------------------------------------------------------------------------

    \11\ No clerical time was included in staff's burden analysis 
for GLBA entities as the notice would likely be combined with 
existing GLBA notices.
---------------------------------------------------------------------------

A. Non-GLBA Entities

    Based, in part, on industry data regarding the number of businesses 
under various industry codes, staff estimates that 1,174,347 non-GLBA 
entities under FTC jurisdiction have affiliates and would be affected 
by the

[[Page 52920]]

Rule.\12\ 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 Rule. Thus, an estimated 234,869 non-GLBA business families may 
send the affiliate marketing notice.
---------------------------------------------------------------------------

    \12\ This estimate is derived from an analysis of a database of 
U.S. businesses based on June 2013 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). See http://www.naics.com/search.htm. This 
estimate excludes businesses not subject to FTC jurisdiction and 
businesses that do not use data or information subject to the rule. 
To the resulting sub-total (7,111,026), staff applies a continuing 
assumed rate of affiliation of 16.75 percent, see 75 FR 43526, 43528 
n. 6 (July 26, 2010), reduced by a continuing estimate of 100,000 
entities subject to the Commission's GLBA privacy notice 
regulations, see id., applied to the same assumed rate of 
affiliation. The net total is 1,174,347.
---------------------------------------------------------------------------

    Staff also estimates that non-GLBA entities under the jurisdiction 
of the FTC would each incur 14 hours of burden during the prospective 
requested three-year PRA clearance period, comprised of a projected 7 
hours of managerial time, 2 hours of technical time, and 5 hours of 
clerical assistance.
    Based on the above, total burden for non-GLBA entities during the 
prospective three-year clearance period would be approximately 
3,288,166 hours, cumulatively. Associated labor cost would total 
$123,353,199.\13\ These estimates include the start-up burden and 
attendant costs, such as determining compliance obligations. Non-GLBA 
entities, however, 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 1,096,055 hours and $41,117,733 
in labor costs.
---------------------------------------------------------------------------

    \13\ The associated labor cost is based on the labor cost burden 
per notice by adding the hourly mean private sector wages for 
managerial, technical, and clerical work and multiplying that sum by 
the estimated number of hours. The classifications used are 
``Management Occupations'' for managerial employees, ``Computer and 
Mathematical Science Occupations'' for technical staff, and ``Office 
and Administrative Support'' for clerical workers. See OCCUPATIONAL 
EMPLOYMENT AND WAGES --MAY 2012, U.S. Department of Labor released 
March 29, 2013, Table 1 (``National employment and wage data from 
the Occupational Employment Statistics survey by occupation, May 
2012''): http://www.bls.gov/news.release/pdf/ocwage.pdf. The 
respective private sector hourly wages for these classifications are 
$52.20, $38.55, and $16.54. Estimated hours spent for each labor 
category are 7, 2, and 5, respectively. Multiplying each 
occupation's hourly wage by the associated time estimate, labor cost 
burden per notice equals $525.20. This subtotal is then multiplied 
by the estimated number of non-GLB business families projected to 
send the affiliate marketing notice (234,869) to determine 
cumulative labor cost burden for non-GLBA entities ($123,353,199).
---------------------------------------------------------------------------

B. GLBA Entities

    Entities that are subject to the Commission's GLBA privacy notice 
regulation already provide privacy notices to their customers.\14\ 
Because the FACT Act and the Rule contemplate that the 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 Rule 
provides a model.\15\ Staff further estimates that 3,350 GLBA entities 
under FTC jurisdiction would be affected,\16\ so that the total burden 
for GLBA entities during the first year of the clearance period would 
approximate 20,100 hours (3,350 x 6) and $1,003,493 in associated labor 
costs.\17\
---------------------------------------------------------------------------

    \14\ 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.
    \15\ As stated above, no clerical time is included in the 
estimate because the notice likely would be combined with existing 
GLBA notices.
    \16\ Based on the previously stated estimates of 100,000 GLBA 
business entities at an assumed rate of affiliation of 16.75 percent 
(16,750), divided by the presumed ratio of 5 businesses per family, 
this yields a total of 3,350 GLBA business families subject to the 
Rule.
    \17\ 3,350 GLBA families x [$52.20 x 5 hours) + ($38.55 x 1 
hour)] = $1,003,493.
---------------------------------------------------------------------------

    Allowing for increased familiarity with procedure, the PRA 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 (3,350 x 4) and $653,753 in labor 
costs in each of the ensuing two years.\18\ Thus, averaged over the 
three-year clearance period, the estimated annual burden for GLBA 
entities is 15,633 hours and $770,333 in labor costs.
---------------------------------------------------------------------------

    \18\ 3,350 GLBA families x [($52.20 x 3 hours) + ($38.55 x 1 
hours)] = $653,753.
---------------------------------------------------------------------------

    The cumulative average annual burden for both non-GLBA and GLBA for 
the prospective three-year clearance period is 1,111,688 burden hours 
and $41,888,066 in labor costs. 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.

C. FTC Share of Burden

    560,179 hours; $20,771,941, labor costs.
    To calculate the total burden attributed to the FTC, staff first 
deducted from the total annual burden hours those hours attributed to 
motor vehicle dealers, which are in the exclusive jurisdiction of the 
FTC. Staff estimates that there are 60,959 motor vehicle dealerships 
subject to the Rule.\19\ Of these, staff estimates that 10% are non-
GLBA entities (6,096), and 90% are GLBA entities (54,863). Applying an 
assumed rate of affiliation of 16.75%, staff estimates that there are 
102 non-GLBA and 9,190 GLBA motor vehicle dealerships affiliate 
families. Staff further assumes there are an average of 5 businesses 
per family or affiliated relationship, leaving approximately 20 non-
GLBA and 1,838 GLBA families, respectively.
---------------------------------------------------------------------------

    \19\ This figure consists, in part, of 55,417 car dealers per 
NADA (franchise/new cars) (http://www.nada.org/Publications/NADADATA/2011/default) and NIADA data (independents/used cars) 
(http://www.usedcarnews.com/news/2963-niada-survey-shows-more-action-online), respectively, for 2011, multiplied by an added 
factor of 1.10 to cover for an unknown quantity of additional motor 
vehicle dealer types (motorcycles, boats, other recreational 
vehicles) also covered within the definition of motor vehicle dealer 
under section 1029(a) of the Dodd-Frank Act. This leaves a total of 
60,959 motor vehicle dealers subject to the Rule.
---------------------------------------------------------------------------

    Staff further estimates that non-GLBA business families will spend 
14 hours in the first year and 0 hours thereafter to comply with the 
Rule, while GLBA business families will spend 6 hours in the first 
year, and 4 hours in each of the following two years. The cumulative 
average annual burden is 8,670 hours.\20\
---------------------------------------------------------------------------

    \20\ 20 non-GLBA families x 4.666667 hours = 93 hours; 1,838 
GLBA families x 4.666667 hours = 8,577 hours.
---------------------------------------------------------------------------

    To calculate the FTC's total shared burden hours, staff deducted 
from the total burden hours (1,111,688 hours) those attributed to motor 
vehicle dealerships (8,670), leaving a total of 1,103,108 hours to 
split between the CFPB and the FTC. The resulting shared burden for the 
CFPB is half that amount, or 551,509 hours. To calculate the total 
burden hours for the FTC, staff added the burden hours associated with 
motor vehicle dealers (8,670 hours), resulting in a total burden of 
560,179 hours.
    Staff used the same approach to estimate the shared costs for the 
FTC. Staff estimated the costs attributed to motor vehicle dealers as 
follows: Non-GLBA business families have $3,501

[[Page 52921]]

annualized labor costs,\21\ and GLBA business families have $422,648 
annualized labor costs,\22\ for cumulative annualized costs of 
$426,149.
---------------------------------------------------------------------------

    \21\ (20 non-GLBA families x $525.20) / 3 = $3,501.
    \22\ In the first year, GLBA families have $550,573 costs: 1,838 
x [($52.20 x 5 hours) + ($38.55 x 1 hour)] = $550,573. In each of 
the second and third years, GLBA families have $358,686 in costs: 
1,838 x [($52.20 x 3 hours) + ($38.55 x 1 hour)] = $358,686.
---------------------------------------------------------------------------

    To calculate, on an annualized basis, the FTC's cumulative share of 
labor cost burden, staff deducted from the overall total ($41,117,733) 
the labor costs attributed to motor vehicle dealerships ($426,149), 
leaving a net amount of $40,691,584 to split between the CFPB and the 
FTC. The resulting shared burden for the CFPB is half that amount, or 
$20,345,792. To calculate the total burden hours for the FTC, staff 
added the costs associated with motor vehicle dealers ($426,149), 
resulting in a total cost burden for the FTC of $20,771,941.

Request for Comment

    Interested parties are invited to submit written comments. Comments 
should refer to ``Affiliate Marketing Rule PRA'' to facilitate the 
organization of comments. Please note that your comment--including your 
name and your state--will be placed on the public record of this 
proceeding, including on the publicly accessible FTC Web site, at 
http://www.ftc.gov/os/publiccomments.shtm.
    Because comments will be made public, they should not include any 
sensitive personal information, such as any individual's Social 
Security Number; date of birth; driver's license number or other state 
identification number, or foreign country equivalent; passport number; 
financial account number; or credit or debit card number. Comments also 
should not include any sensitive health information, such as medical 
records or other individually identifiable health information. In 
addition, comments should not include ``[t]rade secret or any 
commercial or financial information which is obtained from any person 
and which is privileged or confidential'' as provided in Section 6(f) 
of the Federal Trade Commission Act (``FTC Act''), 15 U.S.C. 46(f), and 
FTC Rule 4.10(a)(2), 16 CFR 4.10(a)(2). Comments containing matter for 
which confidential treatment is requested must be filed in paper form, 
must be clearly labeled ``Confidential,'' and must comply with FTC Rule 
4.9(c).\23\
---------------------------------------------------------------------------

    \23\ 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 FTC Rule 4.9(c), 16 CFR 
4.9(c).
---------------------------------------------------------------------------

    Because paper mail addressed to the FTC is subject to delay due to 
heightened security screening, please consider submitting your comments 
in electronic form. Comments filed in electronic form should be 
submitted using the following weblink https://public.commentworks.com/ftc/affiliatemarketingpra (and following the instructions on the web-
based form). To ensure that the Commission considers an electronic 
comment, you must file it on the web-based form at the weblink https://public.commentworks.com/ftc/affiliatemarketingpra. If this Notice 
appears at www.regulations.gov/search/index.jsp, you may also file an 
electronic comment through that Web site. The Commission will consider 
all comments that regulations.gov forwards to it.
    The FTC Act and other laws that the Commission administers permit 
the collection of public comments to consider and use in this 
proceeding as appropriate. The Commission will consider all timely and 
responsive public comments that it receives, whether filed in paper or 
electronic form. Comments received will be available to the public on 
the FTC Web site, to the extent practicable, at http://www.ftc.gov/os/publiccomments.shtm. 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.shtm.
    Pursuant to Section 3506(c)(2)(A) of the PRA, the FTC invites 
comments on: (1) Whether the disclosure requirements are necessary, 
including whether the information will be practically useful; (2) the 
accuracy of our burden estimates, including whether the methodology and 
assumptions used are valid; (3) how to improve the quality, utility, 
and clarity of the disclosure requirements; and (4) how to minimize the 
burden of providing the required information to consumers. All comments 
should be filed as prescribed in the ADDRESSES section above, and must 
be received on or before October 28, 2013.

David C. Shonka,
Principal Deputy General Counsel.
[FR Doc. 2013-20794 Filed 8-26-13; 8:45 am]
BILLING CODE 6750-01-P