[Federal Register Volume 87, Number 235 (Thursday, December 8, 2022)]
[Notices]
[Pages 75271-75273]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-26623]


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FEDERAL TRADE COMMISSION


Agency Information Collection Activities; Proposed Collection; 
Comment Request; Extension

AGENCY: Federal Trade Commission.

ACTION: Notice.

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SUMMARY: The Federal Trade Commission (``FTC'' or ``Commission'') is 
seeking public comment on its proposal to extend for an additional 
three years the Office of Management and Budget clearance for 
information collection requirements of its Affiliate Marketing 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 February 28, 
2023.

DATES: Comments must be received on or before February 6, 2023.

ADDRESSES: Interested parties may file a comment online or on paper by 
following the instructions in the Request for Comments part of the 
SUPPLEMENTARY INFORMATION section below. Write ``Paperwork Reduction 
Act Comment: FTC File No. P072108'' on your comment, and file your 
comment online at https://www.regulations.gov 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: David Walko, Attorney, Division of 
Privacy and Identity Protection, Bureau of Consumer Protection, Federal 
Trade Commission, 600 Pennsylvania Avenue NW, Washington, DC 20580, 
(202) 326-2880.

SUPPLEMENTARY INFORMATION:
    Title: Affiliate Marketing Rule (16 CFR part 680).
    OMB Control Number: 3084-0131.
    Type of Review: Extension of currently approved collection.
    Background:
    As required by section 3506(c)(2)(A) of the PRA, 44 U.S.C. 
3506(c)(2)(A), the FTC is providing this opportunity for public comment 
before requesting that the Office of Management and Budget extend the 
existing clearance for the information collection requirements 
contained in the Affiliate Marketing Rule.
    The Dodd-Frank Wall Street Reform and Consumer Protection Act 
(``Dodd-Frank Act'') was enacted on July 21, 2010.\1\ 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\ The FTC retained rulemaking authority for its Affiliate 
Marketing Rule (16 CFR part 680) solely for motor vehicle dealers 
described in section 1029(a) of the Dodd-Frank Act as predominantly 
engaged in the sale and servicing of motor vehicles, the leasing and 
servicing of motor vehicles, or both.\3\ Additionally, the FTC shares 
enforcement authority with the CFPB for provisions of Regulation V 
subpart C (12 CFR 1022.20 through 1022.27) that apply to entities other 
than those specified above.\4\
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    \1\ Public Law 111-203, 124 Stat. 1376 (2010).
    \2\ 15 U.S.C. 1681 et seq.
    \3\ See Dodd-Frank Act, at section 1029 (a), (c).
    \4\ While the FTC shares enforcement authority with the Federal 
Reserve System, Commodity Futures Trading Commission, National 
Credit Union Administration, Office of the Comptroller of the 
Currency, and the Federal Deposit Insurance Corporation, for the 
Consumer Financial Protection Bureau's counterpart affiliate sharing 
rule, Regulation V (subpart C), 12 CFR 1022.20 through 1220.27, the 
CFPB has assumed 95% of the burden associated with its affiliate 
sharing rule. See Consumer Financial Protection Bureau, Agency 
Information Collection Activities: Submission for OMB Review; 
Comment Request, 85 FR 52559 (2020); CFPB Supporting Statement, Fair 
Credit Reporting Act (Regulation V) 12 CFR 1022, OMB Control Number: 
3170-0002 (2020). In addition, the CFPB has estimated that the 
burden associated with Regulation V's affiliate sharing provisions 
is de minimis.
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    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

[[Page 75272]]

Rule (``Rule'') requires covered entities to provide consumers with 
notice and an opportunity to opt out of the use of certain information 
before sending marketing solicitations. The 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 the consumer unless the consumer is 
given notice and a reasonable opportunity to opt out of such use of the 
information and does not opt out.
    To minimize compliance costs and burdens for entities, particularly 
any small businesses that may be affected, the Rule contains model 
disclosures and opt-out notices that may be used to satisfy the 
statutory requirements. The Rule also gives covered entities 
flexibility to satisfy the notice and opt-out requirement. Covered 
entities may send the consumer a free-standing opt-out notice to 
satisfy the Rule's requirements or add the opt-out notice to 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'').\5\ As a result, the time necessary to 
prepare or incorporate an opt-out notice is likely to be minimal 
because covered entities may 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.'' \6\ The Rule also provides that affiliated companies may 
send a joint disclosure to consumers, thereby eliminating the need for 
each affiliate to send a separate disclosure. Staff anticipates that 
affiliated entities will choose to send a joint notice, which will 
reduce the number of notices required under the Rule.
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    \5\ 15 U.S.C. 6801 et seq.
    \6\ ``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, the FTC is requesting that OMB 
renew the clearance (OMB Control Number 3084-0131) for the information 
collection burden associated with the Rule. Staff estimates that there 
are approximately 46,525 franchise/new car and independent/used car 
dealers in the U.S.\7\ Applying an estimated rate of affiliation of 
16.75%, staff estimates that there are approximately 7,793 motor 
vehicle dealerships in affiliated families that may be subject to the 
Rule's affiliate sharing obligations. Staff further estimates an 
average of five businesses per family or affiliated relationship, and 
anticipates that affiliated entities will choose to send a joint notice 
as permitted by the Rule. Therefore, staff estimates that approximately 
1,559 business families would be subject to the Rule.
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    \7\ See Notice of Proposed Rulemaking Motor Vehicle Dealers 
Trade Regulation Rule, 87 FR 42012, 42031 (July 13, 2022), available 
at https://www.ftc.gov/legal-library/browse/federal-register-notices/16-cfr-part-463-motor-vehicle-dealers-trade-regulation-rule-nprm. This figure is based on estimates made by the U.S. Census 
Bureau. See U.S. Census Bureau, All Sectors: County Business 
Patterns, including ZIP Code Business Patterns, by Legal Form of 
Organization and Employment Size Class for the U.S., States, and 
Selected Geographies: 2019, https://data.census.gov/cedsci/
table?q=CBP2019.CB1900CBP&n=44111%3A44112&tid=CBP2019.CB1900CBP&hideP
review=true&nkd=EMPSZES~001,LFO~001 (listing 21,427 establishments 
for ``new car dealers,'' NAICS code 44111, and 25,098 establishments 
for ``used car dealers,'' NAICS code 44112).
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    Staff assumes that all or nearly all motor vehicles subject to the 
Rule's provisions are also subject to the Commission's Privacy of 
Consumer Financial Information Rule under the Gramm-Leach-Bliley Act 
(16 CFR part 313) (``Privacy Rule''). Entities that are subject to the 
Commission's GLBA Privacy Rule already provide privacy notices to their 
customers. Absent an exception, financial institutions must provide an 
initial privacy notice at the time the customer relationship is 
established and then annually so long as the relationship continues. 15 
U.S.C. 6803. Staff's estimates assume that in all or nearly all cases 
covered institutions will choose to incorporate the affiliate marketing 
opt-out notice into the initial and annual GLBA privacy notices. In 
2015, Congress, as part of the FAST Act, amended the GLBA to provide an 
exception under which financial institutions that meet certain 
conditions are not required to provide annual notices to customers.\8\ 
Staff seeks comment on how the use of this exception by institutions 
that are required to provide an affiliate marketing notice will impact 
the burden estimates for these entities. Institutions that claim the 
FAST Act exemption and forego sending required annual privacy notices 
in some years will nonetheless be required to send a separate affiliate 
marketing notice to comply with their obligations under the Rule.
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    \8\ Fixing America's Surface Transportation Act (``FAST Act''), 
Public Law 114-94, 129 Stat. 1312, section 75001 (Dec. 4, 2015) 
(amending 15 U.S.C. 6803 to exempt financial institutions from the 
annual notice requirement if they meet certain criteria, and if they 
have not changed their policies and practices with regard to 
disclosing nonpublic personal information from the policies and 
practices that were disclosed in the most recent disclosure sent to 
consumers).
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    Staff estimates that the 1,559 covered motor vehicle business 
families will spend on average about 5 hours per year to comply with 
the Affiliate Sharing Rule beyond their separate obligations under the 
Privacy Rule, yielding a total annual hours of burden of 7,795 hours. 
Staff's estimates take into account the time necessary to determine 
compliance obligations; create the notice and opt-out, in either paper 
or electronic form; and disseminate the notice and opt-out. Staff's 
estimates presume that the availability of model disclosures and opt-
out notices will simplify the compliance review and implementation 
processes, thereby significantly reducing the compliance burden.
    Staff estimates the associated labor cost 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 private 
sector hourly wages for these classifications are $59.31, $48.01, and 
$20.88, respectively.\9\ Estimated hours spent for each category are 2, 
2, and 1, respectively. Multiplying each occupation's hourly wage by 
the associated time estimate, yields the annual labor cost burden per 
respondent which is then multiplied by the estimated number of 
respondents to determine the cumulative annual labor cost burden: 
$367,176 per year.
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    \9\ 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 National Occupational Employment 
and Wage Estimates--May 2021, U.S. Bureau of Labor Statistics, 
released March 31, 2022: https://www.bls.gov/oes/current/oes_nat.htm.

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                                                                                                   Approx. total
         Hourly wage and labor category              Hours per     Total hourly      Number of     annual labor
                                                    respondent      labor cost      respondents        costs
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$59.31 Management Employees.....................               2         $118.62           1,559        $184,929
$48.01 Technical Staff..........................               2           96.02  ..............         149,695

[[Page 75273]]

 
$20.88 Clerical Workers.........................               1           20.88  ..............          32,552
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                                                  ..............  ..............  ..............         367,176
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    Because the FACT Act and the Rule contemplate that the affiliate 
marketing notice can be included in the GLBA notices, the capital and 
non-labor cost burden on regulated entities would be greatly reduced. 
Covered entities typically already provide notices to their customers 
so there are no new capital or non-labor costs, as the Affiliate 
Marketing notice may be consolidated into their annual privacy notice. 
Thus, staff estimates that any capital or non-labor costs associated 
with compliance for these entities are de minimis.

Request for Comments

    Pursuant to section 3506(c)(2)(A) of the PRA, the FTC invites 
comments on: (1) whether the proposed collection of information is 
necessary for the proper performance of the functions of the agency, 
including whether the information will have practical utility; (2) the 
accuracy of the agency's estimate of the burden of the proposed 
collection of information, including the validity of the methodology 
and assumptions used; (3) ways to enhance the quality, utility, and 
clarity of the information to be collected; and (4) ways to minimize 
the burden of maintaining records and providing disclosures to 
consumers. All comments must be received on or before February 6, 2023.
    You can file a comment online or on paper. For the FTC to consider 
your comment, we must receive it on or before February 6, 2023. Write 
``Paperwork Reduction Act Comment: FTC File No. P072108'' on your 
comment. Your comment--including your name and your state--will be 
placed on the public record of this proceeding, including the https://www.regulations.gov website.
    Due to the public health emergency in response to the COVID-19 
outbreak and the agency's heightened security screening, postal mail 
addressed to the Commission will be subject to delay. We encourage you 
to submit your comments online through the https://www.regulations.gov 
website.
    If you prefer to file your comment on paper, write ``Paperwork 
Reduction Act Comment: FTC File No. P072108'' on your comment and on 
the envelope, and 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. If possible, submit your paper 
comment to the Commission by courier or overnight service.
    Because your comment will become publicly available at https://www.regulations.gov, you are solely responsible for making sure that 
your comment does not include any sensitive or confidential 
information. In particular, your comment should not include any 
sensitive personal information, such as your or anyone else'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 does not include 
any sensitive health information, such as medical records or other 
individually identifiable health information. In addition, your comment 
should not include any ``trade secret or any commercial or financial 
information which . . . . is privileged or confidential''--as provided 
by 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)--including in particular competitively 
sensitive information such as costs, sales statistics, inventories, 
formulas, patterns, devices, manufacturing processes, or customer 
names.
    Comments containing material 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). In particular, 
the written request for confidential treatment that accompanies the 
comment must include the factual 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). Your comment will be kept 
confidential only if the General Counsel grants your request in 
accordance with the law and the public interest. Once your comment has 
been posted publicly at www.regulations.gov, we cannot redact or remove 
your comment unless you submit a confidentiality request that meets the 
requirements for such treatment under FTC Rule 4.9(c), and the General 
Counsel grants that request.
    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 February 6, 
2023. For information on the Commission's privacy policy, including 
routine uses permitted by the Privacy Act, see https://www.ftc.gov/site-information/privacy-policy.

Josephine Liu,
Assistant General Counsel for Legal Counsel.
[FR Doc. 2022-26623 Filed 12-7-22; 8:45 am]
BILLING CODE 6750-01-P