Notice2022-26623
Agency Information Collection Activities; Proposed Collection; Comment Request; Extension
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
December 8, 2022
Issuing agencies
Federal Trade Commission
Abstract
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.
Full Text
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<title>Federal Register, Volume 87 Issue 235 (Thursday, December 8, 2022)</title>
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[Federal Register Volume 87, Number 235 (Thursday, December 8, 2022)]
[Notices]
[Pages 75271-75273]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[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 <a href="https://www.regulations.gov">https://www.regulations.gov</a> 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
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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 <a href="https://www.ftc.gov/legal-library/browse/federal-register-notices/16-cfr-part-463-motor-vehicle-dealers-trade-regulation-rule-nprm">https://www.ftc.gov/legal-library/browse/federal-register-notices/16-cfr-part-463-motor-vehicle-dealers-trade-regulation-rule-nprm</a>. 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: <a href="https://www.bls.gov/oes/current/oes_nat.htm">https://www.bls.gov/oes/current/oes_nat.htm</a>.
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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
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$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 <a href="https://www.regulations.gov">https://www.regulations.gov</a> 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 <a href="https://www.regulations.gov">https://www.regulations.gov</a>
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 <a href="https://www.regulations.gov">https://www.regulations.gov</a>, 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 <a href="http://www.regulations.gov">www.regulations.gov</a>, 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 <a href="https://www.ftc.gov/site-information/privacy-policy">https://www.ftc.gov/site-information/privacy-policy</a>.
Josephine Liu,
Assistant General Counsel for Legal Counsel.
[FR Doc. 2022-26623 Filed 12-7-22; 8:45 am]
BILLING CODE 6750-01-P
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