E9-178. Agency Information Collection Activities; Submission for OMB Review; Comment Request

AGENCY:

Federal Trade Commission (“FTC” or “Commission”).

ACTION:

Notice.

SUMMARY:

The FTC is seeking public comments on its proposal to extend through February 28, 2012, the current Paperwork Reduction Act (“PRA”) clearance for information collection requirements contained in its regulations under the Fair Packaging and Labeling Act (“FPLA”). That clearance expires on February 28, 2009.

DATES:

Comments must be filed by February 9, 2009.

ADDRESSES:

Interested parties are invited to submit written comments electronically or in paper form. Comments should refer to “Fair Packaging & Labeling Regs, PRA Comments, P074200” to facilitate the organization of comments. Please note that comments will be placed on the public record of this proceeding—including on the publicly accessible FTC website, at (http://www.ftc.gov/​os/​publiccomments.shtm)—and therefore should not include any sensitive or confidential information. In particular, comments should not include any sensitive personal information, such as an individual’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. Comments also should not include any sensitive health information, such as medical records or other individually identifiable health information. In addition, comments should not include any “[t]rade secrets and commercial or financial information obtained from a person and privileged or confidential. . . .,” as provided in Section 6(f) of the FTC Act, 15 U.S.C. 46(f), and Commission Rule 4.10(a)(2), 16 CFR 4.10(a)(2). 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).^[1]

Because paper mail addressed to the FTC is subject to delay due to heightened security screening, please consider submitting your comments in electronic form. Comments filed in electronic form should be submitted by using the following weblink: (https://secure.commentworks.com/​ftc-FPLAregs) (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-FPLAregs). If this Notice appears at (http://www.regulations.gov/​search/​index.jsp), you may also file an electronic comment through that website. The Commission will consider all comments that regulations.gov forwards to it. You may also visit the FTC website at http://www.ftc.gov to read the Notice and the news release describing it.

A comment filed in paper form should include the “Fair Packaging & Labeling Regs, PRA Comments, P074200” reference both in the text and on the envelope, and should be mailed or delivered to the following address: Federal Trade Commission, Office of the Secretary, Room H-135 (Annex J), 600 Pennsylvania Avenue, NW, Washington, DC 20580. The FTC is requesting that any comment filed in paper form be sent by courier or overnight service, if possible, because U.S. postal mail in the Washington area and at the Commission is subject to delay due to heightened security precautions.

All comments should additionally be submitted to: Office of Information and Regulatory Affairs of OMB, Attention: Desk Officer for the Federal Trade Commission. Comments should be submitted via facsimile to [phone] 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. The Commission will consider all timely and responsive public comments that it receives, whether filed in paper or electronic form. Comments received will be available to the public on the FTC website, to the extent practicable, at (http://www.ftc.gov/​os/​publiccomments.shtm). As a matter of discretion, the Commission 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.shtm).

FOR FURTHER INFORMATION CONTACT:

Requests for additional information or copies of the proposed information requirements should be sent to Stephen Ecklund, Investigator, Division of Enforcement, Bureau of Consumer Protection, Federal Trade Commission, 600 Pennsylvania Ave., N.W., Washington, D.C. 20580, [phone].

SUPPLEMENTARY INFORMATION:

Under the PRA, 44 U.S.C. 3501-3521, 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 the PRA, the FTC is providing this opportunity for public comment before requesting that OMB extend the existing paperwork clearance for the regulations noted herein. 44 U.S.C. 3506(c)(2)(A).

On October 10, 2008, the Commission sought public comments concerning the proposed collection of information. See 73 FR 60286. No comments were received. Pursuant to the OMB regulations that implement the PRA (5 CFR Part 1320), the Commission is providing this second opportunity for public comment while seeking OMB clearance for the FPLA regulations. All comments should be filed as prescribed in the ADDRESSES section above, and must be received on or before February 9, 2009.

The FPLA, 15 U.S.C. 1451-1461, was enacted to eliminate consumer deception concerning product size representations and package content information. The regulations that implement the FPLA, 16 CFR Parts 500 - 503, establish requirements for the manner and form of labeling applicable to manufacturers, packagers, and distributors of “consumer commodities.”^[2] Section 4 of the FPLA specifically requires packages or labels to be marked with: (1) A statement of identity; (2) a net quantity of contents disclosure; and (3) the name and place of business of a company that is responsible for the product.

Estimated annual hours burden: 7,570,740 total burden hours (solely relating to disclosure^[3] )

As in the past, Commission staff has used Census data^[4] to estimate the number of companies subject to the FPLA. Staff conservatively estimates^[5] that approximately 757,074 manufacturers, packagers, distributors, and retailers of consumer commodities make disclosures at an average burden of ten hours per entity, for a total disclosure burden of 7,570,740 hours.

Estimated annual cost burden: $158,985,540 (solely relating to labor costs)

The estimated annual labor cost burden associated with the FPLA disclosure requirements consists of an estimated hour of managerial and/or professional time per covered entity (at an estimated average hourly rate of $55), plus two hours of specialized clerical support^[6] (at an estimated average hourly rate of $25), and seven hours of clerical time per covered entity (at an estimated average hourly rate of $15), for a total of $158,985,540 ($210 blended labor cost per covered entity x 757,074 entities).^[7]

Total capital and start-up costs are de minimis. For many years, the packaging and labeling activities that require capital and start-up costs have been performed by covered entities in the ordinary course of business independent of the FPLA and implementing regulations. Similarly, firms provide in the ordinary course of business the information that the statute and regulations require be placed on packages and labels.

William Blumenthal

General Counsel

Footnotes

1.  FTC Rule 4.2(d), 16 CFR 4.2(d). The comment must be accompanied by an explicit request for confidential treatment, including the factual and legal basis for the request, and must identify the specific portions of the comment to be withheld from the public record. The request will be granted or denied by the Commission’s General Counsel, consistent with applicable law and the public interest. See FTC Rule 4.9(c), 16 CFR 4.9(c).

2.  “Consumer commodity” means any article, product, or commodity of any kind or class which is customarily produced or distributed for sale through retail sales agencies or instrumentalities for consumption by individuals, or use by individuals for purposes of personal care or in the performance of services ordinarily rendered within the household, and which usually is consumed or expended in the course of such consumption or use.” 16 CFR 500.2(c). For the precise scope of the term’s coverage see 16 CFR 500.2(c); 503.2; 503.5. See also (http://www.ftc.gov/​os/​statutes/​fpla/​outline.html).

3.  To the extent that the FPLA-implementing regulations require sellers of consumer commodities to keep records that substantiate “cents off,” “introductory offer,” and/or “economy size” claims, staff believes that most, if not all, of the records that sellers maintain would be kept in the ordinary course of business, regardless of the legal mandates.

4.  Staff has drawn upon the U.S. Census Bureau’s 2002 economic census, the most recent census available providing data for purposes of staff's instant estimates. See (http://www.census.gov/​econ/​census02/​guide/​SUBSUMM.HTM) and (http://www.census.gov/​prod/​ec02/​ec0231sg1.pdf) (Table 2).

5.  Although the estimates are non-rounded figures, they remain estimates as they are the sum total of projected industry codes subject to the FPLA. But, even allowing for industries that may apply, the Census data do not separately break out non-household products from household use and, accordingly, overstate what is actually subject to the FPLA.

6.  “Specialized clerical support” consists of graphic design specialists, working by computer to design the appearance and layout of product packaging, including appropriate display of the disclosures required by the FPLA regulations.

7.  Based generally on the National Compensation Survey: Occupational Earnings in the United States, 2007, U.S. Department of Labor, Bureau of Labor Statistics (August 2008) (“BLS National Compensation Survey”) (citing the mean hourly earnings for management occupations, legal occupations/lawyers, and assorted clerical positions), available at (http://www.bls.gov/​ncs/​ocs/​sp/​nctb0300.pdf). Clerical estimates are derived from the above source data, applying roughly a mid-range of mean hourly rates for potentially applicable clerical types, e.g., computer operators, data entry and information processing workers.