07-5998. Agency Information Collection Activities: Submission for OMB Review; Joint Comment Request

AGENCIES:

Office of the Comptroller of the Currency (OCC), Treasury; Board of Governors of the Federal Reserve System (Board), the Federal Deposit Insurance Corporation (FDIC); Office of Thrift Supervision (OTS), Treasury; National Credit Union Administration (NCUA); and the Federal Trade Commission (FTC or Commission) (collectively, the Agencies).

ACTION:

Joint information collection to be submitted to OMB for review and approval under the Paperwork Reduction Act of 1995 (PRA).

SUMMARY:

Pursuant to the Paperwork Reduction Act, the OCC, FDIC, OTS, NCUA, and FTC are submitting for Office of Management and Budget (OMB) review the information collection associated with a proposed study that will use a written survey to be completed by financial institutions and other persons who are creditors or users of consumer reports. The Board has approved this information collection under its delegated authority from OMB. The Agencies will use the Survey responses to prepare the initial report to the Congress (the Report) on information sharing practices by financial institutions, creditors, or users of consumer reports with their affiliates. The Agencies are statutorily required to jointly submit the Report with any recommendations for legislative or regulatory action. To conduct the Survey, the OCC, FDIC, OTS, NCUA, and FTC first seek additional public comment regarding this notice, which is the second of two notices required by the PRA, and will seek OMB review of, and clearance for, the collection of information discussed herein.

DATES:

Comments must be submitted on or before January 9, 2008.

FOR FURTHER INFORMATION CONTACT:

Please contact any of the individuals named below. In addition, copies of the Board's draft Survey instrument and related instructions will be made available on the Board's public Web site at: http://www.federalreserve.gov/​boarddocs/​reportforms/​review.cfm under “Recently Approved and Pending Implementation” (see entry for FR 3214e). Please contact the other agencies to request a copy of their draft Survey instrument and instructions.

OCC: Mary Gottlieb, OCC Clearance Officer, Legislative and Regulatory Activities Division, [phone], [e-mail].

Board: Kathleen Conley, Supervisory Consumer Financial Services Analyst, Division of Consumer and Community Affairs, [phone]; or Michelle Shore, Federal Reserve Clearance Officer, Division of Research and Statistics, [phone]; Telecommunications Device for the Deaf (TDD) users may call [phone].

FDIC: Richard M. Schwartz, Counsel, [phone]; or Leneta G. Gregorie, Counsel, [phone].

OTS: Ira L. Mills, OTS Clearance Officer, [phone]; or Suzanne McQueen, Consumer Regulations Analyst, Compliance and Consumer Protection Division, [phone].

NCUA: Regina M. Metz, Staff Attorney, Office of General Counsel, [phone]; or Matthew Biliouris, Program Officer, Examination and Insurance, [phone].

FTC: Sandra McCarthy, Attorney, Division of Privacy and Identity Protection, Bureau of Consumer Protection, [phone]; or Margaret Patterson, Economist, Bureau of Economics, [phone].

SUPPLEMENTARY INFORMATION:

Title: Survey of Information Sharing Practices with Affiliates (“Survey”).

Frequency of Response: Every three years.

Affected Public: Business or other for profit.

Type of Review: New collection.

OCC

OMB Number: 1557-NEW.

Form Number: N/A.

Estimated Number of Respondents: 40.

Estimated Average Time per Response: 10 hours.

Estimated Total Annual Burden: 400 hours.

Board

OMB Number: 7100-NEW.

Form Number: FR 3214e.

Estimated Number of Respondents: 60.

Estimated Average Time per Response: 10 hours.

Estimated Total Annual Burden: 600 hours.

FDIC

OMB Number: 3064-NEW.

Form Number: N/A.

Estimated Number of Respondents: 100.

Estimated Average Time per Response: 10 hours.

Estimated Total Annual Burden: 1,000 hours.

OTS

OMB Number: 1550-NEW.

Form Number: N/A.

Estimated Number of Respondents: 30.

Estimated Average Time per Response: 10 hours.

Estimated Total Annual Burden: 300 hours.

NCUA

OMB Number: 3133-NEW.

Form Number: N/A.

Estimated Number of Respondents: 50.

Estimated Average Time per Response: 10 hours.

Estimated Total Annual Burden: 500 hours.

FTC

OMB Number: 3084-NEW.

Form Number: N/A.

Estimated Number of Respondents: 20.

Estimated Average Time per Response: 10 hours.

Estimated Total Annual Burden: 200 hours.

General Description of Report

This information collection is voluntary for financial institution respondents and authorized pursuant to 12 U.S.C. 481 and 484 (national banks); 12 U.S.C. 248(a)(1) (state member banks); 12 U.S.C. 1463 and 1464 (savings associations); 12 U.S.C. 1766(a) and 1789(a) (credit unions); and 12 U.S.C. 1819(a) (Eighth) (state non-member banks and state branches of any foreign bank). The FTC's authority to collect this information is 15 U.S.C. 46(b). Under this section, the FTC may issue compulsory process to persons, partnerships, and corporations from which it seeks to collect information. Confidentiality will be determined on a case-by-case basis under applicable Federal law. Confidentiality for respondents under the FTC's jurisdiction will be protected in accordance with the Federal Trade Commission Act, 15 U.S.C. 41 et seq. (“FTC Act”), and the FTC's Rules of Practice.

Abstract

The Agencies will gather information by means of a survey to be completed by financial institutions and other persons that are creditors or users of consumer reports (“respondents”).^[1] The Agencies will use the Survey responses to prepare the Report on the information sharing practices by financial institutions, creditors, or users of consumer reports with their affiliates. The Agencies are required to jointly submit the Report together with any recommendations for legislative or regulatory action, pursuant to Section 214(e) of the Fair and Accurate Credit Transactions Act of 2003 (“FACT Act” or the “Act”) Pub. L. 108-159, 117 Stat. 1952.

Summary of Comments

On August 31, 2006, pursuant to the PRA, 44 U.S.C. 3501-3521, the Agencies published a notice in the Federal Register (71 FR 51888) requesting public comment for 60 days on a proposed information collection concerning the Survey. The comment period for this notice expired on October 30, 2006. The Agencies received five comment letters from four trade associations and one individual. Currently, the OCC, FDIC, OTS, NCUA, and FTC are soliciting comment on the implementation of the proposed information collection. The Board has approved this information collection under its delegated authority from OMB.

Survey Methodology

One commenter requested that the Agencies describe the methods they would use to conduct the Survey and the methods they would use to analyze the results. Each Agency will conduct a non-statistical, qualitative survey of a limited number of regulated entities under its supervision.

Commenters also requested clarification as to: (i) Which institution or affiliate in an organization would be asked to respond to the Survey and (ii) whether that respondent would be asked to provide information regarding not only the sharing of information with, but also the receipt of information from, its affiliates.

Respondents will not be asked to provide data regarding information sharing practices on a combined basis for it, its affiliates, and its corporate parent; rather the Survey will ask only about sharing for that particular respondent.^[2] The Agencies note that the Survey will focus on a respondent's general practices and will ask a respondent to provide information not only about its sharing of information with its affiliates, but also about its receipt of information from its affiliates.

Survey Information

Some commenters stated that the Survey should include definitions and instructions. The commenters also noted that the draft Survey assumes that an organization has only one policy on information sharing practices with all affiliates, when in fact such practices might vary by affiliate, by product, or by state. For example, one commenter noted that the draft did not take into account numerous variations in affiliate sharing practices within a single firm and, as a result, in many cases, the response options provided were inapplicable, inaccurate, or incomplete.

One commenter suggested the Survey include definitions of important terms, such as affiliate, consumer, customer, personally identifiable transaction or experience information, and purposes related to employment or hiring, because some of these are terms of art with which Survey respondents will be unfamiliar.

In many cases where commenters specified the need for specific definitions or instructions, the Agencies have incorporated such suggestions. Additional space will be provided on the Survey instrument for supplemental responses, such as information on varying practices by affiliate or state.

A commenter noted that questions do not specify the time frame to be used for completing the Survey, and asked if the Agencies intend to capture a snapshot. The instructions will be specific and direct respondents to provide information on their current information sharing practices with affiliates.

Some commenters suggested collecting additional information, such as information to determine whether the perceived risks of information sharing (for example, increased level of identity theft) in fact exist. Commenters noted that the Survey should focus on the underlying purpose for affiliate sharing practices. One commenter suggested the primary purpose for which companies share information with affiliates is to provide benefits to consumers, including providing them with an array of products and services at as low a cost as possible. In general, the Agencies will limit the Survey to the information that section 214(e) of the FACT Act requires to be included in the Report. For that reason, the Agencies do not plan to collect other information, such as data regarding the benefits, or perceived risks of information sharing with affiliates.

Confidential and Voluntary Status

Commenters indicated that the Agencies should guarantee confidential treatment to respondents, in all cases and not merely provide it on a case-by-case basis, in order to encourage voluntary and informative responses. In addition, some commenters noted that certain requested survey information is proprietary (e.g., the percentage of customers that opt out and the use of shared information for underwriting) and thus should receive confidential treatment. Finally, while commenters commended the financial regulatory agencies for conducting a voluntary survey, they asked that the FTC also conduct a voluntary survey instead of using its compulsory authority to gather information.

In cases where questions of confidentiality arise, as mentioned in the initial notice, the Agencies will grant confidential treatment on a case-by-case basis under applicable Federal law. Responses to survey questions that institutions are already required to publicly disclose would not be protected from disclosure under the Freedom of Information Act, 5 U.S.C. 552 (FOIA). However, it is possible that some information collected on this Survey may be exempt from disclosure. To the extent an institution can establish the potential for substantial competitive harm, those responses would be protected by FOIA Exemption 4, 5 U.S.C. 552(b)(4) (exempting from disclosure “trade secrets and commercial or financial information obtained from a person and privileged and confidential”). Further, section 6(f) of the FTC Act, 15 U.S.C. 46(f), bars the Commission from publicly disclosing trade secrets or confidential commercial or financial information it receives from persons pursuant to, among other methods, special orders authorized by section 6(b) of the FTC Act.

In the event of a FOIA request for information, an Agency may claim Exemption 4 or other protections to the extent legally permissible as a basis for withholding the information. OTS will follow Treasury Department Rule, which is 31 CFR 1.6 contained in the Department's rule on Disclosure of Records. If the Commission has determined that the information does not constitute trade secrets or confidential commercial or financial information under FTC Act section 6(f), a respondent who designates a submission as confidential is entitled to 10 days' advance notice of any anticipated public disclosure by the Commission under section 21(c) of the FTC Act, 15 U.S.C. 57b-2(c). The FTC Act and the Commission's rules authorize disclosure of nonpublic material in limited circumstances (e.g., official requests by Congress, requests from other agencies for law enforcement purposes, or administrative or judicial proceedings). Even in those limited contexts, however, the Commission's rules may afford protections to the submitter, such as advance notice to seek a protective order in litigation. See 15 U.S.C. 57b-2; 16 CFR 4.9-4.11.

In the case of surveys administered by the financial regulatory agencies, the Agencies believe the ongoing supervisory relationships that these agencies have with supervised institutions will help to facilitate a high level of voluntary responses. In contrast, the FTC does not have the same type of supervisory relationships with its regulated entities; therefore, the FTC may elect to use compulsory authority to obtain information that will be necessary for preparation of the Report should its entities choose not to participate voluntarily.

Burden Estimates

Commenters indicated that a respondent would likely need significantly more time than 10 hours to collect and organize information to produce responses, in part due to items in the Board's draft Survey that they believed were unclear. Commenters expressed concern that the time necessary to respond to the Survey would exceed the Agencies' estimates if the answers to the Survey were to be based on an organization's historical information sharing practices or the information sharing practices for multiple entities and/or multiple lines of business that exist throughout a complex organization.

The Agencies believe that the final Survey instructions, with expanded definitions and a clarification that respondents should report only on current, not historical, practices will focus the responses such that the burden estimate of 10 hours per institution is reasonable.

Pre-Survey Testing

Commenters recommended that the Agencies consult institutions for their suggestions on re-crafting the questions to capture a more meaningful representation of affiliate sharing practices and to reduce burden on respondents. In response to these comments, the Board, on behalf of the other agencies, conducted testing (through telephone interviews) with three financial institutions. In general, the test institutions indicated that the draft Survey would not cause undue burden on respondents. In addition, the test institutions provided feedback on the format, instructions, and content of the Survey. As a result, the Agencies have modified the final Survey instrument and instructions.

Request for Comment

Comments on the foregoing, including comments regarding the necessity and practical utility of the proposed collection of information, the accuracy of the Agencies' estimates, and ways to enhance the quality, utility, and clarity of the information sought may be directed to the agencies as set out below.

OCC: Communications Division, Office of the Comptroller of the Currency, Public Information Room, Mailstop 1-5, Attention: 1557-NEW, 250 E Street, SW., Washington, DC 20219. In addition, comments may be sent by fax to [phone], or by electronic mail to [e-mail]. You may personally inspect and photocopy comments at the OCC's Public Information Room, 250 E Street, SW., Washington, DC. For security reasons, the OCC requires that visitors make an appointment to inspect comments. You may do so by calling [phone]. Upon arrival, visitors will be required to present valid government-issued photo identification and submit to security screening in order to inspect and photocopy comments.

FDIC: Written comments should identify “Survey of Information Sharing Practices with Affiliates,” as the subject and be submitted by any of the following methods:

• Agency Web site: http://www.fdic.gov/​regulations/​laws/​federal/​propose.html.
• Federal eRulemaking Portal: http://www.regulations.gov. Follow the instructions for submitting comments.

E-mail: [e-mail].

• Mail: Robert E. Feldman, Executive Secretary, Attention: Comments, FDIC, 550 17th Street, NW., Washington, DC 20429.
• Hand Delivery/Courier: Guard station at the rear of the 550 17th Street Building (located on F Street) on business days between 7 a.m. and 5 p.m.

Comments may be inspected and photocopied in the FDIC Public Information Center, Room E-1002, 3501 North Fairfax Drive, Arlington, VA 22226, between 9 a.m. and 4:30 p.m. on business days.

OTS: You may submit comments, identified by “Survey of Information Sharing Practices with Affiliates (1550-NEW),” by any of the following methods:

• E-mail: [e-mail]. Please include “Survey of Information Sharing Practices with Affiliates (1550-NEW)” in the subject line of the message and include your name and telephone number in the message.
• Fax: [phone].
• Mail: Information Collection Comments, Chief Counsel's Office, Office of Thrift Supervision, 1700 G Street, NW., Washington, DC 20552, Attention: “Survey of Information Sharing Practices with Affiliates (1550-NEW).”
• Hand Delivery/Courier: Guard's Desk, East Lobby Entrance, 1700 G Street, NW., from 9 a.m. to 4 p.m. on business days, Attention: Information Collection Comments, Chief Counsel's Office, “Survey of Information Sharing Practices with Affiliates (1550-NEW).”

Instructions: All comments received will be posted without change to http://www.ots.treas.gov/​pagehtml.cfm?​catNumber=​67&​an=​1,, including any personal information provided. Docket: For access to the docket to read comments received, go to http://www.ots.treas.gov/​pagehtml.cfm?​catNumber=​67&​an=​1. In addition, you may inspect comments at the Public Reading Room, 1700 G Street, NW., by appointment. To make an appointment for access, call [phone], send an e-mail to [e-mail], or send a facsimile transmission to [phone]. (Prior notice identifying the materials you will be requesting will assist us in serving you.) We schedule appointments on business days between 10 a.m. and 4 p.m. In most cases, appointments will be available the next business day following the date we receive a request.

NCUA: You may submit comments by any of the following methods (please send comments by one method only):

• Federal eRulemaking Portal: http://www.regulations.gov. Follow the instructions for submitting comments.
• NCUA Web Site: http://www.ncua.gov/​RegulationsOpinionsLaws/​proposedregs/​proposedregs.html. Follow the instructions for submitting comments.
• E-mail: Address to [e-mail]. Include “[Your name] Comments on FACT Act 214(e) Study,” in the e-mail subject line.
• Fax: [phone]. Use the subject line described above for e-mail.
• Mail: Address to Neil McNamara, Deputy Chief Information Officer, National Credit Union Administration, 1775 Duke Street, Alexandria, VA 22314-3428.
• Hand Delivery/Courier: Same as mail address.

FTC: Comments should refer to “Affiliate Sharing Study: FTC File No. P064802” and may be submitted by any of the following methods. However, if a given 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.”^[3] A copy of each comment should additionally be submitted via facsimile to [phone] and addressed to: Office of Management and Budget, Attention: Desk Officer for the Federal Trade Commission.

• E-mail: Comments filed in electronic form should be submitted as part of or as an attachment to e-mail messages directed to the following e-mail box: <[e-mail]>. To ensure that the Commission considers an electronic comment, you must send it to the above e-mail box.
• Federal eRulemaking Portal: If this notice appears at http://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.
• Mail or Hand Delivery: A comment filed in paper form should include “Affiliate Sharing Study: FTC File No. P064802” 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, 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 above. The FTC is requesting that any comment filed in paper form be sent by courier or overnight service, if possible.

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 http://www.ftc.gov/​os/​publiccomments.htm. 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.

Additionally, you should send a copy of your comments to [Agency] Desk Officer, [OMB No.], by mail to U.S. Office of Management and Budget, 725 17th Street, NW., #10235, Washington, DC 20503, or by fax to [phone].

Comments submitted in response to this notice will be shared among the Agencies. All comments will become a matter of public record. Written comments should address the accuracy of the burden estimates and ways to minimize burden including the use of automated collection techniques or the use of other forms of information technology as well as other relevant aspects of the information collection request.

Dated: November 26, 2007.

Stuart Feldstein,

Assistant Director, Legislative and Regulatory Activities Division, Office of the Comptroller of the Currency.

Board of Governors of the Federal Reserve System, December 4, 2007.

Jennifer J. Johnson,

Secretary of the Board.

Dated at Washington, DC, this 27th day of November, 2007.

Federal Deposit Insurance Corporation.

Robert E. Feldman,

Executive Secretary.

Dated at Washington, DC, this 29th day of November, 2007.

Deborah Dakin,

Senior Deputy Chief Counsel, Office of Thrift Supervision.

Dated at Washington, DC, this 28th day of November, 2007.

By the National Credit Union Administration on November 28, 2007.

Mary F. Rupp,

Secretary of the Board.

Dated at Washington, DC, this twenty-eighth day of November, 2007.

Federal Trade Commission.

By direction of the Commission.

Donald S. Clark,

Secretary.

Footnotes

1.  See section 214(e) of the FACT Act for a description of the type of information that will be collected.

2.  The OCC, however, because of the way some national banks are structured, may collect information from a single respondent regarding more than one affiliated national bank.

3.  Commission 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 Commission Rule 4.9(c), 16 CFR 4.9(c).