E8-26882. Agency Information Collection Activities; Submission for OMB Review; Comment Request

AGENCY:

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

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 FTC is seeking public comments on its proposal to extend through January 31, 2012, the current PRA clearance for information sought through compulsory process orders to a combined ten or more of the largest cigarette manufacturers and smokeless tobacco manufacturers in order to obtain from them information including, among other things, their sales and marketing expenditures. The current clearance expires on January 31, 2009.

DATES:

Comments must be submitted on or before December 15, 2008.

ADDRESSES:

Interested parties are invited to submit written comments electronically or in paper form. Comments should refer to “Tobacco Reports: Paperwork Comment, FTC File No. P054507” 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-TobaccoReports) (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-TobaccoReports). 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.

A comment filed in paper form should include the “Tobacco Reports: Paperwork Comment, FTC File No. P054507” 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 collection requirements should be addressed to Shira Modell, Attorney, Division of Advertising Practices, Bureau of Consumer Protection, Federal Trade Commission, 600 Pennsylvania Avenue, N.W., Washington, D.C. 20580; telephone: [phone].

SUPPLEMENTARY INFORMATION:

For forty years, the Federal Trade Commission has published periodic reports containing data on domestic cigarette sales and marketing expenditures by the major U.S. cigarette manufacturers. The Commission has published comparable reports on smokeless tobacco sales and marketing expenditures since 1987. Both reports originally were issued pursuant to statutory mandates. After those statutory mandates were terminated, the Commission continued to collect and publish information obtained from the cigarette and smokeless tobacco industries pursuant to Section 6(b) of the FTC Act, 15 U.S.C. 46(b). The current PRA clearance to collect this information is valid through January 31, 2009, under OMB Control No. 3084-0134.

The FTC plans to continue sending information requests annually to the ultimate parent company of several of the largest cigarette companies and smokeless tobacco companies in the United States (“industry members”). The information requests will seek data regarding, inter alia: (1) the tobacco sales of industry members; (2) how much industry members spend advertising and promoting their tobacco products, and the specific amounts spent in each of several specified expenditure categories; (3) whether industry members are involved in the appearance of their tobacco products in television shows or movies; (4) how much industry members spend on advertising intended to reduce youth tobacco usage; (5) the events, if any, during which industry members’ tobacco brands are televised; and (6) for the cigarette industry, the tar, nicotine, and carbon monoxide ratings of their cigarettes, to the extent they possess such data. The information will again be sought using compulsory process under Section 6(b) of the FTC Act.

On August 7, 2008, the FTC sought public comment on its proposed information collection requests to the major cigarette and smokeless tobacco manufacturers. 73 FR 46006. One comment was received, which is discussed below.^[2] Pursuant to the OMB regulations that implement the PRA, 5 CFR Part 1320, the FTC is providing this second opportunity for public comment while seeking OMB approval to extend the existing paperwork clearance for the information collection requests. All comments should be filed as prescribed in the ADDRESSES section above, and must be received on or before December 15, 2008.

Comment Received:

Altria Client Services Inc. filed a comment on behalf of Philip Morris USA Inc. (“PM USA”), in which it stated that PM USA believes the FTC’s authority to collect the proposed information “should be extended given the important role that the FTC has played and should continue to play relative to these products.” The comment then referenced a separate Commission matter, noting that if the FTC were to rescind its guidance that factual statements of cigarette tar and nicotine yields based on the Cambridge Filter Method generally do not violate the FTC Act,^[3] PM USA would question the Commission’s need to continue collecting such information.

The matter referred to by PM USA is still being considered by the Commission. If the 1966 guidance is rescinded, the Commission will decide whether to continue collecting tar, nicotine, and carbon monoxide yield data to the extent the companies possess them.

Estimated annual hours burden:

The FTC staff’s estimate of the hours burden is based on the time required to respond to each information request. Although the FTC currently anticipates sending information requests to the six largest cigarette companies and the five largest smokeless tobacco companies in 2009,^[4] the burden estimate is based on up to 15 information requests being issued per year to take into account any future changes in these industries. These companies vary greatly in size, in the number of products that they sell, and in the extent and variety of their advertising and promotion. Prior input received from the industries, combined with staff’s knowledge of them, suggests that the time most companies would require to gather, organize, format, and produce their responses would range from 30 to 80 hours per information request for the smaller companies, to as much as hundreds of hours for the very largest companies. As an approximation, staff continues to assume a per company average of 180 hours for the ten largest recipients of the Commission’s information request to comply with it; cumulatively, 1,800 hours per year.^[5] Staff further estimates that for the eleventh recipient of the information request to be issued in 2009 and the four possible additional recipients, all of which would be smaller companies than the initial ten recipients, the burden should not exceed 60 hours per company or 300 hours, cumulatively. Thus, the overall estimated burden for a maximum of 15 recipients of the information request is 2,100 hours. These estimates include any time spent by separately incorporated subsidiaries and other entities affiliated with the ultimate parent company that has received the information request.

Estimated cost burden:

It is not possible to calculate with precision the labor costs associated with this data production, as they entail varying compensation levels of management and/or support staff among companies of different sizes. Financial, legal, marketing, and clerical personnel may be involved in the information collection process. Commission staff assumes that professional personnel will handle most of the tasks involved in gathering and producing responsive information, and have applied an average hourly wage of $150/hour for their combined labor. Staff’s best estimate for the total labor costs for up to 15 information requests is $315,000. Staff believes that the capital or other non-labor costs associated with the information requests are minimal. Although the information requests may necessitate that industry members maintain the requested information provided to the Commission, they should already have in place the means to compile and maintain business records.

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. That comment is available at http://www.ftc.gov/​os/​comments/​tobaccoreportspra/​index.shtm.

3. On July 14, 2008, the Commission published a Federal Register notice seeking comment on a proposal to rescind its guidance, issued in 1966, that it is generally not a violation of the FTC Act to make factual statements of the tar and nicotine yields of cigarettes when statements of such yields are supported by testing conducted pursuant to the Cambridge Filter Method. 73 FR 40,351.

4. In August 2008, the Commission issued information requests to six cigarette companies and five smokeless tobacco companies. The Commission anticipates that it will issue requests to the same number of companies in 2009.

5. 70 FR 24415 (May 9, 2005); 70 FR 62313 (Oct. 31, 2005).