2016-03718. Agency Information Collection Activities; Proposed Collection; Comment Request; Extension

AGENCY:

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

ACTION:

Notice.

SUMMARY:

The FTC intends to ask the Office of Management and Budget (“OMB”) to extend for an additional three years the current Paperwork Reduction Act (“PRA”) clearance for the FTC's enforcement of the information collection requirements in its regulation “Duties of Furnishers of Information to Consumer Reporting Agencies” (“Information Furnishers Rule”), which applies to certain motor vehicle dealers, and its shared enforcement with the Consumer Financial Protection Bureau (“CFPB”) of the furnisher provisions (subpart E) of the CFPB's Regulation V regarding other entities. That clearance expires on August 31, 2016.

DATES:

Comments must be filed by April 25, 2016.

ADDRESSES:

Interested parties may file a comment online or on paper, by following the instructions in the Request for Comment part of the SUPPLEMENTARY INFORMATION section below. Write “Information Furnishers Rule, PRA Comment, P135407,” on your comment and file your comment online at https://ftcpublic.commentworks.com/​ftc/​infofurnishersrulepra,, by following the instructions on the web-based form. If you prefer to file your comment on paper, mail your comment to the following address: Federal Trade Commission, Office of the Secretary, 600 Pennsylvania Avenue NW., Suite CC-5610 (Annex J), Washington, DC 20580, or deliver your comment to the following address: Federal Trade Commission, Office of the Secretary, Constitution Center, 400 7th Street SW., 5th Floor, Suite 5610 (Annex J), Washington, DC 20024.

FOR FURTHER INFORMATION CONTACT:

Monique Einhorn, Attorney, Division of Privacy and Identity Protection, Bureau of Consumer Protection, [phone], 600 Pennsylvania Ave. NW., CC-8232, Washington, DC 20580.

SUPPLEMENTARY INFORMATION:

On July 21, 2010, President Obama signed into law the Dodd-Frank Wall Street Reform and Consumer Protection Act (“Dodd-Frank Act”).^[1] The Dodd-Frank Act substantially changed the federal legal framework for financial services providers. Among the changes, the Dodd-Frank Act transferred to the CFPB most of the FTC's rulemaking authority for the furnisher provisions of the Fair Credit Reporting Act (“FCRA”),^[2] on July 21, 2011.^[3] For certain other portions of the FCRA, the FTC retains its rulemaking authority.^[4]

The FTC retains rulemaking authority for its Information Furnishers Rule solely for motor vehicle dealers described in section 1029(a) of the Dodd-Frank Act that are predominantly engaged in the sale and servicing of motor vehicles, the leasing and servicing of motor vehicles, or both.^[5]

In addition, the FTC retains its authority to enforce the furnisher provisions of the FCRA and the FTC and CFPB rules issued under those provisions. Thus, the FTC and CFPB have overlapping enforcement authority for many entities subject to the CFPB rule and the FTC has sole enforcement authority for the motor vehicle dealers subject to the FTC rule.

On December 21, 2011, the CFPB issued its interim final FCRA rule, including the furnisher provisions (subpart E) of CFPB's Regulation V.^[6] Contemporaneous with that issuance, the CFPB and FTC had each submitted to OMB, and received its approval for, the agencies' respective burden estimates reflecting their overlapping enforcement jurisdiction, with the FTC supplementing its estimates for the enforcement authority exclusive to it regarding the class of motor vehicle dealers noted above. The discussion below continues that analytical framework, as appropriately updated or otherwise refined for instant purposes.

Burden statement:

Under the PRA, 44 U.S.C. 3501-3521, Federal agencies must get OMB approval for each collection of information they conduct or sponsor. “Collection of information” includes agency requests or requirements to submit reports, keep records, or provide information to a third party. 44 U.S.C. 3502(3); 5 CFR 1320.3(c). The FTC is seeking clearance for its assumed share of the estimated PRA burden regarding the disclosure requirements under the FTC and CFPB Rules.

Under section 660.3 of the FTC's Information Furnishers Rule ^[7] and section 1022.42 of the CFPB Rule,^[8] furnishers must establish and implement reasonable written policies and procedures regarding the accuracy and integrity of the information relating to consumers that they furnish to a consumer reporting agency (“CRA”).^[9] Section 660.4 of the FTC Rule and section 1022.43 of the CFPB Rule require that entities which furnish information about consumers to a CRA respond to direct disputes from consumers. These provisions also require that a furnisher notify consumers by mail or other means (if authorized by the consumer) within five business days after making a determination that a dispute is frivolous or irrelevant (“F/I dispute”).

The FTC's currently cleared burden totals, post-adjustment for the effects of the Dodd-Frank Act, are 10,607 hours with $453,297 in associated labor costs.^[10] Estimated capital/non-labor costs remain listed as $0 because Commission staff maintains its belief that the Rule imposes negligible capital or other non-labor costs, as the affected entities are already likely to have the necessary supplies and/or equipment (e.g., offices and computers) for the information collections within the Rule. The only estimates that FTC staff believes warrant revision are labor costs, for which newer outside data are available to inform them. The details that follow underlie the FTC's existing burden estimates and updated labor cost estimates.

Estimated number of respondents: 3,986 ^[11]

Section 660.3 of FTC Rule/Section 1022.42 of CFPB Rule

A. Burden Hours

Yearly recurring burden of 2 hours for training ^[12] to help ensure continued compliance regarding written policies and procedures for the accuracy and integrity of the information furnished to a CRA about consumers.

3,986 respondents × 2 hours for training = 7,972 hours

B. Labor Costs

Labor costs are derived by applying appropriate estimated hourly cost figures to the burden hours described above. The FTC assumes that respondents will use managerial and/or professional technical personnel to train company employees in order to foster continued compliance with the information collection requirements in the Information Furnishers Rule and the furnisher provisions of Regulation V.

7,972 hours × $53.38 ^[13] = $425,545

Section 660.4 of FTC Rule/Section 1022.43 of CFPB Rule

A. Burden Hours

No recurring burden other than that necessary to prepare and distribute F/I notices (estimate: 14 minutes per notice ^[14] ).

1. 21,720 F/I disputes (estimated number received by furnishers under the FTC's jurisdiction ^[15] )

2. Motor vehicle dealer furnisher “carve-out” to FTC: Assumed 4% ^[16] = 869 F/I disputes

3. 21,720 F&I disputes—869 “carve-out” = 20,851 respondents for CFPB-FTC split

a. Divided by 2 = 10,425 F/I disputes, co-jurisdiction estimate

b. CFPB: 10,425 F/I disputes

c. FTC: 869 “carve-out” + 10,425 additional F/I disputes = 11,294 F/I disputes

d. FTC: 11,294 F/I disputes × 14 minutes each = 2,635 hours

B. Labor Costs

Labor costs are derived by applying appropriate estimated hourly cost figures to the burden hours described above. The FTC assumes that respondents will use skilled administrative support personnel to provide the required F/I dispute notices to consumers.

2,635 hours × $22.24 ^[17] = $58,602

Thus, total estimated burden under the above-noted regulatory sections is 10,607 hours and $484,147.

Request for Comment: Pursuant to Section 3506(c)(2)(A) of the PRA, the FTC invites comments on: (1) Whether the disclosure requirements are necessary, including whether the information will be practically useful; (2) the accuracy of our burden estimates, including whether the methodology and assumptions used are valid; (3) how to improve the quality, utility, and clarity of the disclosure requirements; and (4) how to minimize the burden of providing the required information to consumers.

You can file a comment online or on paper. For the Commission to consider your comment, we must receive it on or before April 25, 2016. Write “Information Furnishers Rule, PRA Comment, P135407” on your comment. Your comment—including your name and your state—will be placed on the public record of this proceeding, including to the extent practicable, on the public Commission Web site, at http://www.ftc.gov/​os/​publiccomments.shtm. As a matter of discretion, the Commission tries to remove individuals' home contact information from comments before placing them on the Commission Web site.

Because your comment will be made public, you are solely responsible for making sure that your comment does not include any sensitive personal information, like anyone'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. You are also solely responsible for making sure that your comment does not include any sensitive health information, like medical records or other individually identifiable health information. In addition, do not include any “[t]rade secret or any commercial or financial information which is . . . privileged or confidential” as provided in Section 6(f) of the FTC Act 15 U.S.C. 46(f), and FTC Rule 4.10(a)(2), 16 CFR 4.10(a)(2). In particular, do not include competitively sensitive information such as costs, sales statistics, inventories, formulas, patterns devices, manufacturing processes, or customer names.

If you want the Commission to give your comment confidential treatment, you must file it in paper form, with a request for confidential treatment, and you have to follow the procedure explained in FTC Rule 4.9(c).^[18] Your comment will be kept confidential only if the FTC General Counsel grants your request in accordance with the law and the public interest.

Postal mail addressed to the Commission is subject to delay due to heightened security screening. As a result, we encourage you to submit your comments online. To make sure that the Commission considers your online comment, you must file it at https://ftcpublic.commentworks.com/​ftc/​infofurnishersrulepra,, by following the instructions on the web-based form. When this Notice appears at http://www.regulations.gov/​#!home,, you also may file a comment through that Web site.

If you file your comment on paper, write “Paperwork Comment: FTC File No. P135407” on your comment and on the envelope, and mail it to the following address: Federal Trade Commission, Office of the Secretary, 600 Pennsylvania Avenue NW., Suite CC-5610 (Annex J), Washington, DC 20580, or deliver your comment to the following address: Federal Trade Commission, Office of the Secretary, Constitution Center, 400 7th Street SW., 5th Floor, Suite 5610 (Annex J), Washington, DC 20024. If possible, submit your paper comment to the Commission by courier or overnight service.

The FTC Act and other laws that 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 on or before April 25, 2016. For information on the Commission's privacy policy, including routine uses permitted by the Privacy Act, see http://www.ftc.gov/​ftc/​privacy.htm.

David C. Shonka,

Principal Deputy General Counsel.

Footnotes

1.  Pub. L. 111-203, 124 Stat. 1376 (2010).

2.  15 U.S.C. 1681 et seq.

3.  Dodd-Frank Act, § 1061. This date was the “designated transfer date” established by the Treasury Department under the Dodd-Frank Act. See Dep't of the Treasury, Bureau of Consumer Financial Protection; Designated Transfer Date, 75 FR 57252, 57253 (Sept. 20, 2010); see also Dodd-Frank Act, § 1062.

4.  The Dodd-Frank Act does not transfer to the CFPB rulemaking authority for FCRA sections 615(e) (“Red Flag Guidelines and Regulations Required”) and 628 (“Disposal of Records”). See 15 U.S.C. 1681s(e); Public Law 111-203, section 1088(a)(10)(E). Accordingly, the Commission retains full rulemaking authority for its “Identity Theft Rules,” 16 CFR part 681, and its rules governing “Disposal of Consumer Report Information and Records,” 16 CFR part 682. See 15 U.S.C. 1681m, 1681w.

5.  See Dodd-Frank Act, § 1029(a), (c).

6.  76 FR 79308 (Dec. 21, 2011).

7.  16 CFR part 660.

8.  12 CFR part 1022.

9.  The rule defines a “furnisher” as an entity that furnishes information relating to consumers to one or more CRAs for inclusion in a consumer report, but provides that an entity is not a furnisher when it: Provides information to a CRA solely to obtain a consumer report for a permissible purpose under the FCRA; is acting as a CRA as defined in section 603(f) of the FCRA; is an individual consumer to whom the furnished information pertains; or is a neighbor, friend, or associate of the consumer, or another individual with whom the consumer is acquainted or who may have knowledge about the consumer's character, general reputation, personal characteristics, or mode of living in response to a specific request from a CRA.

10.  OMB Control No. 3084-0144.

11.  Given the broad scope of furnishers, it is difficult to determine precisely the number of them that are subject to the FTC's jurisdiction. Nonetheless, Commission staff estimated that the regulations affect approximately 6,133 such furnishers. See 74 FR 31484, 31505 n. 56 (July 1, 2009 FTC and Federal financial agencies final rules). It is equally difficult to determine precisely the number of motor vehicle dealers that furnish information related to consumers to a CRA for inclusion in a consumer report. For purposes of estimating its motor vehicle dealer furnisher carve-out, the FTC has assumed that 30% of the 6,133 furnishers, or 1,840 furnishers, constitute the number of motor vehicle dealers over which the FTC retains exclusive jurisdiction under the Dodd-Frank Act. To derive this 30% estimate, Commission staff divided an estimated number of car dealers—55,417 (based on industry data for the number of franchise/new car and independent/used car dealers) by 199,500 (Commission staff's PRA estimate of the number of entities that extend credit to consumers subject to FTC jurisdiction under the FCRA, pre-Dodd-Frank, for the Risk-Based Pricing regulations, as detailed at 75 FR 2724, 2748 n.18 (Jan. 15, 2010)). This came out to 28%. Staff increased this amount to 30% to account for other motor vehicle dealer types (motorbikes, boats, other recreational) also covered within the definition of “motor vehicle dealer” under section 1029(a) of the Dodd-Frank Act. The resulting apportionment for motor vehicle dealers was subtracted from the base figure (6,133) to determine the net amount (4,293) subject to 50:50 apportionment (approximately 2,146 each) between the FTC and CFPB. Thus, 1,840 motor vehicle dealers + 2,146 other entities = 3,986 respondents for the FTC's burden calculations.

12.  74 FR at 31505.

13.  http://www.bls.gov/​news.release/​ocwage.nr0.htm: “Occupational Employment and Wages—May 2014,” Bureau of Labor Statistics, U.S. Department of Labor, released March 25, 2015, Table 1 (“National employment and wage data from the Occupational Employment Statistics survey by occupation, May 2014) (hereinafter, “BLS Table 1”). See mean hourly wage for “Training and Development Managers.”

14.  74 FR at 31505.

15.  Id. at 31506 n. 58.

16.  FTC staff believes that 4% is a reasonable estimate based on recent data. See “Key Dimensions and Processes in the U.S. Credit Reporting System: A review of how the nation's largest credit bureaus handle consumer data,” December 2012, pp. 14, 29, 31, 34. The CFPB report noted that almost 40% of all consumer disputes at the nationwide CRAs, on average, can be linked to collections. It stated that collection trade lines generate significantly higher numbers of consumer disputes than other types of trade lines—specifically, four times higher than auto. These figures seem to suggest that almost 10% of all consumer disputes at the nationwide CRAs, on average, can be linked to auto. When the FTC issued its final Rule, FTC staff estimated that 40% of direct disputes would result in the sending of F/I dispute notices. See 74 FR 31506 n.58. The FTC's estimate of 4% is based on taking forty percent of the 10% of all consumer disputes at the nationwide CRAs, on average, linked to auto loans.

17.  The revised figure is an averaging of Bureau of Labor Statistics mean hourly wages for potentially analogous employee types: First-line supervisors of office and administrative support workers ($26.15); accounting and auditing clerks ($18.30); brokerage clerks ($24.10); eligibility interviewers, government programs ($20.41). See BLS Table 1. This averages out to $22.24 per hour, rounded.

18.  In particular, the written request for confidential treatment that accompanies the comment must include the factual and legal basis for the request, and must identify the specific portions of the comment to be withheld from the public record. See FTC Rule 4.9(c), 16 CFR 4.9(c).