[Federal Register Volume 81, Number 157 (Monday, August 15, 2016)]
[Notices]
[Pages 54088-54091]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-19226]


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FEDERAL TRADE COMMISSION


Agency Information Collection Activities; Proposed Collection; 
Comment Request

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

ACTION: Notice.

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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 FTC 
is seeking public comments on its proposal to extend for an additional 
three years the current PRA clearance for 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 January 31, 
2017.

DATES: Comments must be filed by October 14, 2016.

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. Write ``Affiliate Marketing Disclosure Rule, PRA Comment: FTC 
File No. P0105411'' on your comment, and file your comment online at 
https://ftcpublic.commentworks.com/ftc/affiliatemarketingpra, by 
following the instructions on the web-based form. If you prefer to file 
your comment on paper, mail your comment to the following address: 
Federal Trade Commission, Office of the Secretary, 600 Pennsylvania 
Avenue NW., Suite CC-5610 (Annex J), Washington, DC 20580, or deliver 
your comment to the following address: Federal Trade Commission, Office 
of the Secretary, Constitution Center, 400 7th Street SW., 5th Floor, 
Suite 5610 (Annex J), Washington, DC 20024.

FOR FURTHER INFORMATION CONTACT: Requests for additional information 
should be addressed to Ruth Yodaiken, Attorney, Division of Privacy and 
Identity Protection, Bureau of Consumer Protection, Federal Trade 
Commission,

[[Page 54089]]

600 Pennsylvania Avenue NW., Room CC-8232, Washington, DC 20580, (202) 
326-2127.

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\
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    \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,'' 
CFR part 682. See 15 U.S.C. 1681m, 1681w.
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    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\
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    \5\ See Dodd-Frank Act, at section 1029 (a), (c).
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    Regulation V subpart C does not affect the pre-existing 
requirements of the FCRA. Additionally, the FTC shares enforcement 
authority with the CFPB for provisions of Regulation V subpart C that 
apply to entities other than those specified above. Thus, for that 
remainder, the FTC and CFPB have overlapping enforcement authority.
    As an analytical framework to estimate PRA burden in the ``Burden 
Statement'' below, the FTC estimates burden pertaining to respondents 
over which both agencies have shared enforcement authority, divides the 
resulting total by one-half to reflect the FTC's shared jurisdiction, 
and add to the resulting subtotal the incremental estimated burden 
regarding the motor vehicle dealers described above over which the FTC 
retains exclusive enforcement (and rulemaking) authority.

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'').\6\ 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.'' \7\
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    \6\ 15 U.S.C. 6801 et seq.
    \7\ ``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).
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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.\8\ 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

[[Page 54090]]

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.\9\
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    \8\ 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.
    \9\ On January 16, 2014, OMB granted three-year clearance for 
the Rule through January 31, 2017.
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    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.\10\ 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.
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    \10\ No clerical time was included in staff's burden analysis 
for GLBA entities as the notice would likely be combined with 
existing GLBA notices.
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A. Non-GLBA Entities

    Based, in part, on industry data regarding the number of businesses 
under various industry codes, staff estimates that 958,894 non-GLBA 
entities under FTC jurisdiction have affiliates and would be affected 
by the Rule.\11\ Commission staff further estimates an average of 5 
businesses per family or affiliated relationship, and believes that the 
affiliated entities will choose to send a joint notice, as permitted by 
the Rule. Thus, an estimated 191,779 non-GLBA business families may 
send the affiliate marketing notice.
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    \11\ This estimate is derived from an analysis of a database of 
U.S. businesses based on June 2015 SIC codes for businesses that 
market goods or services to consumers, which included, among others, 
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 as well as businesses that do not use 
data or information subject to the rule. To the resulting sub-total 
(5,824,739), staff applies a continuing assumed rate of affiliation 
of 16.75 percent, see 78 FR 73,192, 73,193 n.12 (Dec. 5, 2013), 
thus, 975,644 (businesses in a family tree of at least two members), 
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 958,894 
(975,644-(100,000 x 16.75%).
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    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. Non-GLBA entities, however, will give notice only 
once during the clearance period ahead. Thus, average annual burden for 
non-GLBA families during the prospective three-year clearance period 
would approximate 894,969 hours.\12\ Associated average annual labor 
cost would total $35,626,785.\13\ These estimates include the start-up 
burden and attendant costs, such as determining compliance obligations.
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    \12\ 191,779 x (14 / 3).
    \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 2015, U.S. Department of Labor, released 
March 30, 2016, Table 1 (``National employment and wage data from 
the Occupational Employment Statistics survey by occupation, May 
2015''): http://www.bls.gov/news.release/ocwage.htm. The respective 
private sector hourly wages for these classifications are $55.30, 
$41.43, and $17.47. 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 $557.31. This subtotal is then multiplied by the estimated 
number of non-GLB business families projected to send the affiliate 
marketing notice (191,779) to determine cumulative labor cost burden 
for non-GLBA entities ($106,880,354). Averaged over a three-year 
clearance period this amounts to $35,626,785 per year.
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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\ Allowing for increased 
familiarity with procedure, however, 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. Thus, average 
annual burden for GLBA families during the prospective three-year 
clearance period would approximate 15,633 hours.\17\ Associated average 
annual labor cost would total $818,059.\18\
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    \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 x (14 / 3).
    \18\ Year 1: 3,350 GLBA families x [($55.30 x 5 hours) + ($41.43 
x 1 hour)] = $1,065,066. Years 2 and 3: 3,350 GLBA families x 
[($55.30 x 3 hours) + ($41.43 x 1 hour)] = $694,556 each. 
Annualized: ($1,065,066 + $694,556 + $694,556) / 3 = $818,059.
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    Before attribution to the FTC of its apportioned share of PRA 
burden estimates, the cumulative average annual burden for both non-
GLBA and GLBA for the prospective three-year clearance period is 
910,602 burden hours and $36,444,844 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: 460,205 Hours; $18,472,938, 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 62,750 motor vehicle dealerships 
subject to the Rule.\19\ Of these, staff estimates that

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10% are non-GLBA entities (6,275), and 90% are GLBA entities (56,475). 
Applying an assumed rate of affiliation of 16.75%, staff estimates that 
there are 1,051 non-GLBA and 9,460 GLBA motor vehicle dealerships in 
affiliated families. Staff further assumes there are an average of 5 
businesses per family or affiliated relationship, leaving approximately 
210 non-GLBA and 1,892 GLBA motor vehicle dealership families, 
respectively.
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    \19\ This figure consists, in part, of 62,750 car dealers (based 
on industry data for the number of franchise/new car and 
independent/used car dealers) (81 FR 33,255 at 33,257 n9 (May 25, 
2016) (FTC Prescreen Opt-Out Rule PRA analysis).
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    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 for the non-GLBA and GLBA motor vehicle 
dealership families is 9,809 hours.\20\
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    \20\ (210 non-GLBA business families x 4.666667 average hours = 
980 hours, annualized) + (1,892 GLBA business families x 4.666667 
average hours per family = 8,829 hours, annualized) = 9,809 hours, 
annualized.
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    To calculate the FTC's total shared burden hours, staff deducted 
from overall estimated burden hours (910,602 hours) the hours 
attributed to motor vehicle dealerships (9,809 hours), leaving a total 
of 900,793 hours to split between the CFPB and the FTC. The resulting 
shared burden for the CFPB is half that amount, or 450,396 hours. To 
calculate the total burden hours apportioned to the FTC, staff added to 
the shared sub-total (450,396 hours) the hours separately attributed to 
motor vehicle dealers (9,809 hours), which yields for the FTC an 
apportioned burden estimate of 460,205 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 $35,626,785 in annualized 
labor costs,\21\ and GLBA business families have $818,059 in annualized 
labor costs,\22\ for cumulative annualized costs of $36,444,844.
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    \21\ 191,779 non-GLBA business families x combined rate of 
$557.31 (see supra note 13) / 3 = $35,626,785.
    \22\ See supra note 18.
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    To calculate, on an annualized basis, the FTC's cumulative share of 
labor cost burden, staff deducted from overall total labor costs 
($36,444,844) the labor costs attributed to motor vehicle dealerships 
($501,032), leaving a net amount of $35,943,812 to split between the 
CFPB and the FTC. The resulting shared burden for the CFPB is half that 
amount, or $17,971,906. To calculate the total burden hours for the 
FTC, staff added the costs associated with motor vehicle dealers 
($501,032), resulting in a total cost burden for the FTC of 
$18,472,938.

Request for Comment

    You can file a comment online or on paper. For the Commission to 
consider your comment, we must receive it on or before October 14, 
2016. Write ``Affiliate Marketing Disclosure Rule, PRA Comment: FTC 
File No. P0105411'' on your comment. Your comment, including your name 
and your state--will be placed on the public record of this proceeding, 
including, to the extent practicable, on the public Commission Web 
site, at http://www.ftc.gov/os/publiccomments.shtm. As a matter of 
discretion, the Commission tries to remove individuals' home contact 
information from comments before placing them on the Commission Web 
site.
    Because your comment will be made public, you are solely 
responsible for making sure that your comment doesn't include any 
sensitive personal information, like anyone'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. You are also solely 
responsible for making sure that your comment doesn't include any 
sensitive health information, like medical records or other 
individually identifiable health information. In addition, don't 
include any ``[t]rade secret or any commercial or financial information 
which is . . . privileged or confidential,'' as provided in Section 
6(f) of the FTC Act, 15 U.S.C. 46(f), and FTC Rule 4.10(a)(2), 16 CFR 
4.10(a)(2). In particular, don't include competitively sensitive 
information such as costs, sales statistics, inventories, formulas, 
patterns, devices, manufacturing processes, or customer names.
    If you want the Commission to give your comment confidential 
treatment, you must file it in paper form, with a request for 
confidential treatment, and you have to follow the procedure explained 
in FTC Rule 4.9(c), 16 CFR 4.9(c).\23\ Your comment will be kept 
confidential only if the FTC General Counsel grants your request in 
accordance with the law and the public interest.
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    \23\ In particular, the written request for confidential 
treatment that accompanies the comment must include the actual and 
legal basis for the request, and must identify the specific portions 
of the comment to be withheld from the public record. See FTC Rule 
4.9(c), 16 CFR 4.9(c).
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    Postal mail addressed to the Commission is subject to delay due to 
heightened security screening. As a result, we encourage you to submit 
your comments online. To make sure that the Commission considers your 
online comment, you must file it at https://public.commentworks.com/ftc/affiliatemarketingpra by following the instructions on the web-
based form. If this Notice appears at http://www.regulations.gov/#!home, you also may file a comment through that Web site.
    If you file your comment on paper, write ``Affiliate Marketing 
Disclosure Rule, PRA Comment: FTC File No. P0105411'' on your comment, 
and on the envelope, and mail or deliver it to the following address: 
Federal Trade Commission, Office of the Secretary, 600 Pennsylvania 
Avenue NW., Suite CC-5610 (Annex J), Washington, DC 20580, or deliver 
your comment to the following address: Federal Trade Commission, Office 
of the Secretary, Constitution Center, 400 7th Street SW., 5th Floor, 
Suite 5610 (Annex J), Washington, DC 20024. If possible, submit your 
paper comment to the Commission by courier or overnight service.
    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 on or before October 14, 
2016. For information on the Commission's privacy policy, including 
routine uses permitted by the Privacy Act, see http://www.ftc.gov/ftc/privacy.htm.

David C. Shonka,
Acting General Counsel.
[FR Doc. 2016-19226 Filed 8-12-16; 8:45 am]
BILLING CODE 6750-01-P