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

AGENCY:

Federal Trade Commission (“FTC” or “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”) (44 U.S.C. 3501-3520). The FTC is seeking public comments on its proposal to extend through January 31, 2009 the current PRA clearances for information collection requirements contained in four consumer financial regulations enforced by the Commission. Those clearances expire on January 31, 2006.

DATES:

Comments must be received on or before February 21, 2006.

ADDRESSES:

Interested parties are invited to submit written comments. Comments should refer to “Regs BEMZ: FTC File No. P054803” 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, 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, (in ASCII format, WordPerfect, or Microsoft Word) as part of or as an attachment to e-mail messages directed to the following e-mail box: paperworkcomment@ftc.gov. 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 clearly labeled “Confidential.”

All comments should additionally be submitted to: Office of Management and Budget, Attention: Desk Officer for the Federal Trade Commission. Comments should be submitted via 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 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. 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 or copies of the proposed information requirements should be addressed to Carole Reynolds, Attorney, Division of Financial Practices, Bureau of Consumer Protection, Federal Trade Commission, 600 Pennsylvania Ave., NW., Washington, DC 20580, (202) 326-3230.

SUPPLEMENTARY INFORMATION:

The four regulations covered by this notice are:

(1) Regulations promulgated under The Equal Credit Opportunity Act, 15 U.S.C. 1691 et seq. (“ECOA”) (“Regulation B”) (Control Number: 3084-0087);

(2) Regulations promulgated under The Electronic Fund Transfer Act, 15 U.S.C. 1693 et seq. (“EFTA”) (“Regulation E”) (Control Number: 3084-0085);

(3) Regulations promulgated under The Consumer Leasing Act, 15 U.S.C. 1667 et seq. (“CLA”) (“Regulation M”) (Control Number: 3084-0086);

(4) Regulations promulgated under The Truth-In-Lending Act, 15 U.S.C. 1601 et seq. (“TILA”) (“Regulation Z”) (Control Number: 3084-0088).

On September 28, 2005, the FTC sought comment on the information collection requirements associated with the regulations discussed below. See 70 FR 56696. The Commission received one comment from the National Automobile Dealers Association (“NADA”) pertaining to certain aspects of regulatory burden affecting Regulations B, M, and Z. The issues raised in the NADA comment are discussed under the applicable regulation subheadings. As required by the PRA, the FTC is providing this second opportunity for public comment before requesting that OMB extend the existing paperwork clearance for the regulations discussed herein. 44 U.S.C. 3506(c)(2)(A).

Each of these four rules impose certain recordkeeping and disclosure requirements associated with providing credit or with other financial transactions. As detailed below, FTC staff has calculated the PRA burden for each rule based on the compliance costs of entities subject to enforcement by the FTC. All of these rules require covered entities to keep certain records. As discussed below, in most instances, staff believes that these entities would generally retain these records in the normal course of business even absent the recordkeeping requirement in the rules. There is also some burden associated with ensuring that covered entities do not prematurely dispose of relevant records during the period of time required by the applicable rule.

Disclosure requirements involve both set-up and monitoring costs as well as certain transaction-specific costs. “Set-up” burden, incurred by new entrants only, includes identifying the applicable disclosure requirements, determining compliance obligations, and designing and developing compliance systems and procedures. “Monitoring” burden, incurred by all covered entities, includes reviewing and obtaining guidance on revisions to regulatory requirements, revising compliance systems and procedures as necessary, and monitoring the ongoing operation of systems and procedures to ensure continued compliance. “Transaction-related” burden refers to the effort associated with providing the various required disclosures in individual transactions. While this burden varies with the number of transactions, the figures shown for transaction-related burden in the tables that follow are estimated averages.

The actual range of compliance burden experienced by covered entities, and reflected in those averages, varies widely. Depending on the extent to which covered entities have developed computer-based systems and procedures for providing the required disclosures (and/or the extent which such entities utilize electronic transactions, communications, and/or electronic recordkeeping), and the efficacy of those systems and procedures, some entities may have little burden, while others may incur a higher burden.

Calculating the burden associated with the four regulations' disclosure requirements is very difficult because of the highly diverse group of affected entities. The “respondents” included in the following burden calculations consist of credit and lease advertisers, creditors, financial institutions, service providers, certain government agencies and others involved in delivering electronic fund transfers (EFTs) of government benefits, and lessors. The burden estimates represent staff's best assessment, based on its knowledge and expertise relating to the financial services industry. To derive these estimates, staff considered the wide variations in covered entities': (1) Size and location; (2) credit or lease products offered, extended, or advertised, and their particular terms; (3) types of EFTs used; (4) types and occurrences of adverse actions; (5) types of appraisal reports utilized; and (6) computer systems and electronic features of compliance operations.

The required disclosures do not impose PRA burden on some covered entities because the entities make those disclosures in the ordinary course of business. In addition, as noted above, some entities use computer-based and/or electronic means of providing the required disclosures, while others rely on methods requiring more manual effort.

The cost estimates shown below relate to labor costs and include the time necessary to train employees to be in compliance with the regulations. The applicable PRA requirements generally impose minimal capital or other non-labor costs, as affected entities usually have the necessary equipment and storage for other business purposes. Similarly, staff estimates that compliance with these rules generally entails minimal printing and copying costs beyond that associated with documenting financial transactions in the ordinary course of business.

1. Regulation B

The ECOA prohibits discrimination in the extension of credit. Regulation B, 12 CFR 202, promulgated by the Board of Governors of the Federal Reserve System (“FRB”), establishes both recordkeeping and disclosure requirements to assist consumers in understanding their rights under the ECOA and to assist in detecting unlawful discrimination. The FTC enforces the ECOA as to all creditors except those that are subject to the regulatory authority of another federal agency (such as federally chartered or insured depository institutions).

Estimated annual hours burden: 3,689,000 hours, rounded to the nearest thousand (1,436,833 recordkeeping hours + 2,251,771 disclosure hours).

Recordkeeping: In its comment, NADA states that burden estimates in the September 2005 Federal Register Notice do not account for recordkeeping of “dead deals” (i.e., customer inquiries that do not result in a vehicle sale, for example, where the customer submits a credit application at one dealership but purchases elsewhere) because these records would not be retained in the ordinary course of business. However, it is unclear that the auto dealers, or any particular auto transaction, would be covered by the aforementioned definition of “creditor” under Regulation B; a factual assessment would be necessary regarding the dealers' activities. Nonetheless, although auto dealers may or may not be covered, depending on the facts in any given situation, as discussed below, staff has increased its burden estimates to account for the possibility of additional recordkeeping costs for these items.

FTC staff estimates that Regulation B's general recordkeeping requirements affect 1,000,000 credit firms subject to the Commission's jurisdiction, at an average annual burden of 1.25 hours per firm, for a total of 1,250,000 hours. Staff also estimates that the requirement that mortgage creditors monitor information about race/national origin, sex, age, and marital status imposes a maximum burden of one minute each for approximately eleven million credit applications (based on industry data regarding the approximate number of mortgage purchase and refinance originations), for a total of 183,333 hours. Staff also estimates that recordkeeping of self-testing subject to the regulation would affect 2,500 firms, with an average annual burden of one hour per firm, for a total of 2,500 hours, and that recordkeeping of any corrective action for self-testing would affect 250 firms in a given year, with an average annual burden of four hours per firm, for a total of 1,000 hours. The total estimated recordkeeping burden is 1,436,833 hours.

Disclosure: Regulation B requires that creditors (i.e., entities that regularly participate in a credit decision, including setting the terms of the credit) provide notices whenever they take adverse action. NADA asserts that burden estimates are understated, in view of recent developments, including case law, which necessitates additional specialized compliance training. Although staff believes its estimates encompassed these matters—and such regulatory compliance training tends to involve multiple topics under Federal and state law—staff has increased its adverse action disclosure estimates to account for these issues.

Regulation B also requires entities that extend various types of mortgage credit to provide a copy of the appraisal report to applicants or to notify them of their right to a copy of the report (and thereafter provide a copy of the report, upon the applicant's request). It also requires that for accounts which spouses may use or for which they are contractually liable, creditors who report credit history must do so in a manner reflecting both spouses' participation. Further, it requires creditors that collect applicant characteristics for purposes of conducting a self-test to disclose to those applicants that providing the information is optional, that the creditor will not take the information into account in any aspect of the credit transactions, and, if applicable, that the information will be noted by visual observation or surname if the applicant chooses not to provide it.

Regulation B applies to retailers, mortgage lenders, mortgage brokers, finance companies, Internet businesses, and others. Below is staff's best estimate of burden applicable to this highly broad spectrum of covered entities.

Estimated annual cost burden: $74,754,000, rounded to the nearest thousand ($22,298,493 recordkeeping cost + $52,455,799 disclosure cost).

Staff calculated labor costs by applying appropriate hourly cost figures to the burden hours described above. The hourly rates used below ($32 for managerial or professional time, $21 for skilled time, and $14 for clerical time) are averages, based on current Bureau of Labor Statistics cost figures.

Recordkeeping: Staff estimates that the general recordkeeping responsibility of 1.25 hours per creditor would involve approximately 90 percent clerical time and 10 percent skilled technical time. Keeping records of race/national origin, sex, age, and marital status requires an estimated one minute of skilled technical time. Keeping records of the self-test responsibility and of any corrective actions requires an estimated one hour and four hours, respectively, of skilled technical time. As shown below, the total recordkeeping cost is $22,298,493.

Disclosure: For each notice or information item listed, staff estimates that the burden hours consist of 10 percent managerial or professional time and 90 percent skilled technical time. As shown below, the total disclosure cost is $52,455,799.

2. Regulation E

The EFTA requires accurate disclosure of the costs, terms, and rights relating to EFT services to consumers. Regulation E, 12 CFR part 205, promulgated by the FRB, establishes both recordkeeping and disclosure requirements applicable to entities providing EFT services to consumers. The FTC enforces the EFTA as to all entities providing EFT services except those that are subject to the regulatory authority of another Federal agency (such as federally chartered or insured depository institutions).

Estimated annual hours burden: 3,580,000 hours (500,000 recordkeeping hours + approximately 3,080,000 disclosure hours).

Recordkeeping: Staff estimates that Regulation E's recordkeeping requirements affect 500,000 firms offering EFT services to consumers and subject to the Commission's jurisdiction, at an average annual burden of one hour per firm, for a total of 500,000 hours.

Disclosure: Regulation E applies to financial institutions (including certain retailers and electronic commerce entities), service providers, various Federal and state agencies offering EFTs, and others. Below is staff's best estimate of burden applicable to this highly broad spectrum of covered entities.

Estimated annual cost burden: $75,418,000, rounded to the nearest thousand ($7,350,000 recordkeeping cost + $68,068,000 disclosure cost).

Staff calculated labor costs by applying appropriate hourly cost figures to the burden hours described above. The hourly rates used below ($32 for managerial time, $21 for skilled technical time, and $14 for clerical time) are averages, based on current Bureau of Labor Statistics cost figures.

Recordkeeping: For the 500,000 recordkeeping hours, staff estimates that 10 percent of the burden hours require skilled technical time and 90 percent require clerical time. As shown below, the total recordkeeping cost is $7,350,000.

Disclosure: For each notice or information item listed, staff estimates that 10 percent of the burden hours require managerial time and 90 percent require skilled technical time. As shown below, the total disclosure cost is $68,068,000.

3. Regulation M

The CLA requires accurate disclosure of the costs and terms of leases to consumers. Regulation M, 12 CFR part 213, promulgated by the FRB, establishes disclosure requirements that assist consumers in comparison shopping and in understanding the terms of leases and recordkeeping requirements that assist enforcement of the CLA. The FTC enforces the CLA as to all lessors and advertisers except those that are subject to the regulatory authority of another federal agency (such as federally chartered or insured depository institutions).

Estimated annual hours burden: 292,000 hours, rounded to the nearest thousand (150,000 recordkeeping hours + 141,667 disclosure hours).

Recordkeeping: Staff estimates that Regulation M's recordkeeping requirements affect approximately 150,000 firms leasing products to consumers and subject to the Commission's jurisdiction, at an average annual burden of one hour per firm, for a total of 150,000 hours.

Disclosure: Regulation M applies to automobile lessors (such as auto dealers, independent leasing companies, and manufacturers' captive finance companies), computer lessors (such as computer dealers and other retailers), furniture lessors, various electronic commerce lessors, and diverse types of lease advertisers, and others.

As aforementioned, NADA asserts that burden estimates are understated, in view of recent developments, including case law, which necessitates additional specialized compliance training. Although staff believes its estimates encompassed these matters—and, as noted above, such regulatory compliance training tends to involve multiple topics under Federal and state law—staff has increased its burden estimates pertaining to auto leases to account for these issues. Additionally, NADA asserts that estimates are understated due to printing and copying costs associated with providing Regulation M disclosures on lease agreements and retention of paper records. However, these contracts, and the specific lease terms, serve a dual purpose of providing contractual provisions as well as regulatory information; the material is generally part of the agreement under state law. Moreover, Regulation M does not mandate paper record retention: it permits companies to use electronic and other nonpaper forms of record retention. As more dealers shift to such other formats, any such costs should decrease or be eliminated. Staff believes, therefore, that additional increases based on this consideration are not appropriate. Accordingly, below is staff's best estimate of burden applicable to this highly broad spectrum of covered entities.

Estimated annual cost burden: $5,456,000, rounded to the nearest thousand ($2,205,000 recordkeeping cost + $3,251,255 disclosure cost).

Staff calculated labor costs by applying appropriate hourly cost figures to the burden hours described above. The hourly rates used below ($32 for managerial or professional time, $21 for skilled technical time, and $14 for clerical time) are averages, based on current Bureau of Labor Statistics cost figures.

Recordkeeping: For the 150,000 recordkeeping hours, staff estimates that 10 percent of the burden hours require skilled technical time and 90 percent require clerical time. As shown below, the total recordkeeping cost is $2,205,000.

Disclosure: For each notice or information item listed, staff estimates that 10 percent of the burden hours require managerial or professional time and 90 percent require skilled technical time. As shown below, the total disclosure cost is $3,251,255.

4. Regulation Z

The TILA was enacted to foster comparison credit shopping and informed credit decision making by requiring accurate disclosure of the costs and terms of credit to consumers. Regulation Z, 12 CFR part 226, promulgated by the FRB, establishes both recordkeeping and disclosure requirements to assist consumers and the enforcement of the TILA. The FTC enforces the TILA as to all creditors and advertisers except those that are subject to the regulatory authority of another Federal agency (such as federally chartered or insured depository institutions).

Estimated annual hours burden: 17,639,000 hours, rounded to the nearest thousand (1,000,000 recordkeeping hours + 16,639,165 disclosure hours).

Recordkeeping: FTC staff estimates that Regulation Z's recordkeeping requirements affect approximately 1,000,000 firms offering credit and subject to the Commission's jurisdiction, at an average annual burden of one hour per firm, for a total of 1,000,000 hours.

Disclosure: Regulation Z disclosure requirements pertain to open-end and closed-end credit. The Regulation applies to retailers (such as department stores, appliance stores, discount retailers, medical-dental service providers, home improvement sellers, and electronic commerce retail operators); mortgage companies; finance companies; credit advertisers; auto dealerships; student loan companies; home fuel or power services (for furnaces, stoves, microwaves, and other heating, cooling or residential power equipment); credit advertisers; and others.

NADA asserts that the burden estimates for closed end credit disclosures are understated in view of recent developments including case law, which necessitates additional specialized compliance training. As noted, although staff believes its estimates encompassed these matters—and such regulatory compliance training tends to involve multiple topics under federal and state law—staff has increased its estimates pertaining to closed-end credit disclosures to account for these issues. Additionally, NADA asserts that estimates are understated due to printing and copying costs associated with providing Regulation Z disclosures on retail installment contracts. However, these contracts, and the specific credit terms, serve a dual purpose of providing contractual provisions as well as regulatory information; the material is generally part of the agreement under state law. Staff believes, therefore, that additional increases based on this consideration are, therefore, not appropriate. Accordingly, below is staff's best estimate of burden applicable to this highly broad spectrum of covered entities.

Estimated annual cost burden: $397,471,000, rounded to the nearest thousand ($14,700,000 recordkeeping cost + $382,770,530 disclosure cost).

Staff calculated labor costs by applying appropriate hourly cost figures to the burden hours described above. The hourly rates used below ($32 for managerial or professional time, $21 for skilled technical time, and $14 for clerical time) are averages, based on current Bureau of Labor Statistics cost figures.

Recordkeeping: For the 1,000,000 recordkeeping hours, staff estimates that 10 percent of the burden hours require skilled technical time and 90 percent require clerical time. As shown below, the total recordkeeping cost is $14,700,000.

Disclosure: For each notice or information item listed, staff estimates that 10 percent of the burden hours require managerial or professional time and 90 percent require skilled technical time. As shown below, the total disclosure cost is $382,770,530.