Agency Information Collection Activities; Submission for OMB Review; Comment Request

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 (“PRA”). The Federal Trade Commission (“FTC or Commission”) is seeking public comments on its proposal to extend through September 30, 2010, the current PRA clearance for information collection requirements contained in its regulations under the Comprehensive Smokeless Tobacco Health Education Act of 1986 (“Smokeless Tobacco Act” or the “Act”). That clearance expires on September 30, 2007.

DATES:

Comments must be submitted on or before September 6, 2007 date of publication].

ADDRESSES:

Interested parties are invited to submit written comments. Comments should refer to “Smokeless Tobacco Regulations: FTC File No. R011009” 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, Office of the Secretary, Room H-135 (Annex J), 600 Pennsylvania Avenue, N.W., Washington, D.C. 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 described 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 clearing labeled “Confidential.”¹

Comments filed in electronic form should be submitted by following the instructions on the web-based form at https://secure.commentworks.com/ftc-SmokelessTobaccoRegs . To ensure that the Commission considers an electronic comment, you must file it on the web-based form at the https://secure.commentworks.com/ftc-SmokelessTobaccoRegs weblink. 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.

Comments also should be submitted to: Office of Management and Budget, ATTN: Desk Officer for the Federal Trade Commission. Comments should be submitted by facsimile to (202) 395-6974 because U.S. Postal Mail is subject to lengthy delays due to heightened security precautions.

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, whether filed in paper or electronic form, will be considered by the Commission, and will be available to the public on the FTC web site, 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 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/htm.

FOR FURTHER INFORMATION CONTACT:

Requests for additional information should be addressed to Rosemary Rosso, Senior Attorney, Division of Advertising Practices, Bureau of Consumer Protection, Federal Trade Commission, 600 Pennsylvania Avenue, N.W., Washington, D.C. 20580, (202) 326-2174.

SUPPLEMENTARY INFORMATION:

On May 16, 2007, the FTC sought comment on the information collection requirements associated with the regulations under the Act, 16 CFR Part 307 (Control Number: 3084-0082). See 72 FR 27311. No comments were received. Pursuant to the OMB regulations, 5 CFR Part 1320, that implement the PRA, 44 U.S.C. 3501-3520, the FTC is providing this second opportunity for public comment while seeking OMB approval to extend the existing paperwork clearance for the Rule. All comments should be filed as prescribed in the ADDRESSES section above, and must be received on or before September 6, 2007.

Description of the collection of information and proposed use: The Smokeless Tobacco Act requires that manufacturers, packagers, and importers of smokeless tobacco products include one of three specified health warnings on packages and in advertisements. The Act also requires that each manufacturer, packager, and importer of smokeless tobacco products submit a plan to the Commission specifying the method to rotate, display, and distribute the warning statements required to appear in advertising and labeling. The Act requires the Commission to determine whether these plans provide for rotation, display, and distribution of warnings in compliance with the Act and implementing regulations. To the best of the Commission’s knowledge, all of the affected companies have previously filed plans. However, the plan submission requirement also applies to a company that amends its plan, or to a new company that enters the market.

Burden statement:

Commission staff estimates of paperwork burden are based on its knowledge of the smokeless tobacco industry and the time companies require to prepare rotational warning plans for submission to and review by the Commission. Staff’s estimates are further informed by discussions it has had with companies filing rotational plans or their representatives during the Commission’s review of submitted plans. In estimating total annual burden hours and associated labor costs, staff considered its experience gained from the plans submitted over the past five years. Based on these factors, staff estimates that the average annual paperwork burden for the three-year clearance period sought is no more than 1,000 hours, with associated annual labor cost of no more than $203,000.

The five smokeless tobacco manufacturers that comprise the dominant share of the domestic smokeless tobacco market filed their plans with the Commission long ago. Additional annual reporting burden would occur only if a company introduces a new brand or otherwise opts to display the health warnings in a manner not previously approved. Under those circumstances, a company would need to file an amendment to its plan. Although it is not possible to predict whether any of these companies will seek to amend an existing approved plan (and possibly none will), staff conservatively assumes that each of these five smokeless tobacco companies will file one amendment per year, for a total burden of not more than 200 hours. This estimate is conservative because over the past five years, none of these companies filed amendments to their existing plans, and the Commission has not changed the relevant regulations. Commission staff believes it reasonable to assume that each of these five smokeless tobacco companies would spend no more than 40 hours to prepare an amended plan, and possibly considerably less time if the amendment was minor or applied only to one brand or brand variety.

Commission staff also estimates that over the requested three-year clearance period up to four smokeless tobacco manufacturers, packagers, or importers will file an initial plan that includes rotational schemes for both packaging and advertising, for an additional burden of no more than 240 hours. This estimate is conservative because over the past five years, only four initial plans with both packaging and advertising schemes have been filed with the FTC. When the regulations were first proposed in 1986, representatives of the Smokeless Tobacco Council, Inc. indicated that the six companies it represented would require approximately 700 to 800 hours in total (133 hours each) to complete the initial required plans, involving multiple brands, multiple brand varieties, and multiple forms of both packaging and advertising. The four initial plans submitted over the past five years are considerably less complex. Each of these plans involves only one or two brands or brand varieties, with more limited types of advertising and packaging. In addition, three of the four companies submitting plans had prior familiarity with the preparation of rotational warning plans. Further, increased computerization and improvements in electronic communication over the past 20 years have decreased the time needed for the preparation and drafting of rotational warning plans. Staff estimates that it would require no more than 60 hours to prepare such an initial plan, and that four initial plans will be submitted.

Staff anticipates that over the next three years, up to four smokeless tobacco manufacturers, packagers, or importers may submit initial plans covering packaging alone, for an additional burden of no more than 160 hours. Over the past five years, the Commission has received four such plans. Because each of the plans involved only a single brand, a single form of packaging, and no advertising, the estimated time to prepare the plans is very modest. Staff anticipates that the companies that submit initial plans covering packaging alone will spend no more than 40 hours each to prepare the plans, and possibly considerably less. This estimate is conservative. Like other estimates stated herein, this is based on the total number of plans submitted to the FTC over the past five years, rather than annually.

Finally, staff estimates that over the next three years, up to four amendments will be filed by companies other than the five largest smokeless tobacco manufacturers. Over the past five years, the Commission has received four such plans. Each of the amendments involved very modest changes to the existing plans. Staff estimates that four companies submitting similar amended plans will spend no more than 20 to 40 hours each to prepare the amendments, for an additional burden estimate of no more than 160 hours. As above, this is conservatively based on the total number of plans submitted to the FTC over the past five years, rather than annually.

Estimated total annual hours burden: 1,000 hours

Based on these assumptions, the total annual hours should not exceed 1,000 hours. [(5 companies x 40 hours each) + (4 companies x 60 hours each) + (4 companies x 40 hours each) + (4 companies x 40 hours each) = 760 total hours, rounded to one thousand hours]

Estimated labor costs: $203,000

The total annualized labor cost to these companies should not exceed $203,000. This is based on the assumption that management or attorneys will account for 80% of the estimated 1,000 hours required to draft initial or amended plans, at an hourly rate of $250 per hour, and that clerical support will account for the remaining time (20%) at an hourly rate of $15. [Management and attorneys’ time (1,000 hours x 0.80 x $250 = $200,000) + clerical time (1,000 hours x 0.20 x $15 = $3,000) = $203,000]

Estimated annual non-labor cost burden: $0 or minimal

The applicable requirements impose minimal start-up costs. The companies may keep copies of their plans to ensure that labeling and advertising complies with the requirements of the Smokeless Tobacco Act. Such recordkeeping would require the use of office supplies, e.g., file folders and paper, all of which the companies should have on hand in the ordinary course of their business.

While companies submitting initial plans may incur one-time capital expenditures for equipment used to print package labels in order to include the statutory health warnings or to prepare acetates for advertising, the warnings themselves disclose information completely supplied by the federal government. As such, the disclosure does not constitute a “collection of information” as it is defined in the regulations implementing the PRA, nor, by extension, do the financial resources expended in relation to it constitute paperwork “burden.” See 5 CFR 1320.3(c)(2). Moreover, any expenditures relating to the statutory health warning requirements would likely be minimal in any event. For companies that have already submitted approved plans, there are no capital expenditures. After the Commission approves a plan for the rotation and display of the warnings required by the Smokeless Tobacco Act, the companies are required to make additional submissions to the Commission only if they choose to change the way they display the warnings. Once companies have prepared the artwork for printing the required warnings on package labels, there are no additional start-up costs associated with the display of the warnings on packaging. Similarly, once companies have prepared artwork and possibly acetates for the display of the warnings in advertising, there are no additional start-up costs associated with printing the warnings in those materials.