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

AGENCY:

Federal Trade Commission.

ACTION:

Notice.

SUMMARY:

The information collection requirements described below will be submitted to the Office of Management and Budget (“OMB”) for review, as required by the Paperwork Reduction Act. The Federal Trade Commission (“FTC”) is seeking public comments on its proposal to extend through November 30, 2010 the current OMB clearance for information collection requirements contained in its Prescreen Opt-Out Disclosure Rule. That clearance expires on November 30, 2007.

DATES:

Comments must be filed by October 1, 2007.

ADDRESSES:

Interested parties are invited to submit written comments. Comments should refer to “Prescreen Opt-Out Disclosure Rule: FTC File No. P075417” to facilitate the organization of comments. A comment filed in paper form should include this reference both in the text and on the envelope and should be mailed or delivered, with two complete copies, to the following address: Federal Trade Commission, Room H 135 (Annex J), 600 Pennsylvania Ave., NW., Washington, DC 20580. Because paper mail in the Washington area and at the Commission is subject to delay, please consider submitting your comments in electronic form, as prescribed below. However, if the comment contains any material for which confidential treatment is requested, it must be filed in paper form, and the first page of the document must be clearly labeled “Confidential.”¹ The FTC is requesting that any comment filed in paper form be sent by courier or overnight service, if possible.

Comments filed in electronic form should be submitted by using the following weblink: https://secure.commentworks.com/ftc-PrescreenOpt-Out (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://secure.commentworks.com/ftc-PrescreenOpt-Out . If this notice appears at www.regulations.gov , you may also file an electronic comment through that Web site. The Commission will consider all comments that regulations.gov forwards to it. The FTC Act and other laws the Commission administers permit the collection of public comments to consider and use in this proceeding as appropriate. All timely and responsive public comments will be considered by the Commission and will be available to the public on the FTC website, to the extent practicable, at www.ftc.gov . As a matter of discretion, the FTC makes every effort to remove home contact information for individuals from the public comments it receives before placing those comments on the FTC website. More information, including routine uses permitted by the Privacy Act, may be found in the FTC's privacy policy at http://www.ftc.gov/ftc/privacy.htm .

FOR FURTHER INFORMATION CONTACT:

Requests for additional information should be addressed to Katherine Armstrong, Attorney, Division of Privacy and Identity Protction, Bureau of Consumer Protection, Federal Trade Commission, 600 Pennsylvania Avenue, NW., Washington, DC 20580, (202) 326-3250.

SUPPLEMENTARY INFORMATION:

Under the Paperwork Reduction Act (“PRA”), 44 U.S.C. 3501-3520, federal agencies must obtain approval from OMB for each collection of information they conduct or sponsor. “Collection of information” means agency requests or requirements that members of the public submit reports, keep records, or provide information to a third party. 44 U.S.C. 3502(3); 5 CFR 1320.3(c). As required by section 3506(c)(2)(A) of the PRA, the FTC is providing this opportunity for public comment before requesting that OMB extend the existing paperwork clearance for the information collection requirements contained in the Commission’s Prescreen Opt-Out Disclosure Rule (“Prescreen Rule” or “Rule”), 16 CFR Part 642.

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 the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology, e.g., permitting electronic submission of responses. All comments should be filed as prescribed in the ADDRESSES section above, and must be received on or before October 1, 2007.

Section 615(d) of the Fair Credit Reporting Act (“FCRA”), 15 U.S.C. 1681m(d)(1), requires any person who uses a consumer report in order to make an unsolicited firm offer of credit or insurance to the consumer to provide with each written solicitation a clear and conspicuous statement that:

Section 615(d)(1) of the FCRA, 15 U.S.C. 1681m(d)(1).

The Fair and Accurate Credit Transactions Act of 2003, Pub. L. 108-159, 117 Stat. 1952 (“FACT Act”) was signed into law on December 4, 2003. Section 213(a) of the FACT Act amended FCRA Section 615(d) to require that the statement mandated by Section 615(d) “be presented in such format and in such type size and manner as to be simple and easy to understand, as established by the Commission, by rule, in consultation with the Federal banking agencies and the National Credit Union Administration.” The Commission published the Final Rule in the Federal Register on January 31, 2005 and the Rule became effective August 1, 2005.

The Rule adopted a “layered” notice approach that requires a short, simple, and easy-to-understand statement of consumers’ opt-out rights on the first page of the prescreened solicitation, along with a longer statement containing additional details elsewhere in the solicitation. Specifically, the Rule required that a short notice be placed on the front side of the first page of the principal promotional document in the solicitation, or, if provided electronically, on the same page and in close proximity to the principal marketing message. The Rule specifies that the type size be larger than the type size of the principal text on the same page, but in no event smaller than 12-point type, or if provided by electronic means, then reasonable steps shall be taken to ensure that the type size is larger than the type size of the principal text on the same page. The Rule further provides that the long notice, that appears elsewhere in the solicitation, be in a type size that is no smaller than the type size of the principal text on the same page, but in no event smaller than 8-point type. The long notice shall begin with a heading in capital letters and underlined, and identifying the long notice as the “PRESCREEN & OPT-OUT NOTICE” in a type style that is distinct from the principal type style used on the same page and be set apart from other text on the page. The Rule also includes model notices in English and Spanish.

Burden statement:

Estimated total annual hours burden: 1,000 to 1,500 hours (rounded to the nearest thousand).

Based on public comments received in response to the Commission’s 2004 Notice of Proposed Rulemaking,² when issuing the final Rule, the Commission estimated that the annual burden to industry would be between 43,600 and 45,600 hours.³ This estimate was comprised of 500 to 750 companies each spending 8 hours to revise an existing solicitation plus 100 companies each needing an additional 396 hours to revise multiple solicitations ((500 companies x 8 burden hours + 39,600 burden hours = 43,600 burden hours); (750 companies x 8 burden hours + 39,600 burden hours = 45,600 burden hours)).⁴ The Commission further estimated that the total annual cost to industry would be between $1,157,894 and $1,213,329.⁵

The requirements of the Rule have not changed since OMB’s 2004 approval of the final Rule. The previous estimates included a one-time burden to reprogram and update systems to revise existing notices and to re-format solicitations to comply with the Rule. Because the Rule has been in effect since August 1, 2005, covered entities have already incurred the one time costs of transition to compliant notice formats. Accordingly, the annual PRA-related burden associated with the Rule is now reduced. FTC staff believes that the primary cost of continuing to comply with the Rule is limited to the legal review each entity determines is necessary to remain in compliance.

FTC staff continues to estimate that between 500 and 750 entities make prescreened solicitations. However, since no additional revision or reformatting is necessary, staff has lowered the estimate of the burden hours to approximately 2 hours (one quarter of one business day), rather than 8 hours which was the estimate to revise and reformat solicitations when the Rule was promulgated. Accordingly, the total annual burden is between 1,000 and 1,500 hours (500 to 750 entities x 2 hours of annual burden). FTC staff has assumed that in-house legal counsel will handle most of the compliance review and has applied an average hourly wage of $250/hour for their labor. Accordingly, the total cost for all affected entities would be between $250,000 and $375,000 (1000 to 1,500 burden hours x $250 per hour of legal review time).