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###### Federal Trade Commission

# AGENCY:

Federal Trade Commission.

# ACTION:

Notice. 

# SUMMARY:

The Federal Trade Commission (FTC) has submitted to the Office of Management and Budget (OMB) for review under the Paperwork Reduction Act (PRA) information collection requirements contained in its Mail or Telephone Order Merchandise Trade Regulation Rule (MTOR or “Rule”). The FTC is soliciting public comments on the proposal to extend through January 31, 2004 the current PRA clearance for information collection requirements contained in the Rule. That clearance expires on January 31, 2001.

# DATES:

Comments must be filed by January 8, 2001.

# ADDRESSES:

Send comments to the Office of Information and Regulatory Affairs, Office of Management and Budget, New Executive Office Building, Room 10202, Washington, DC 20503, ATTN: Desk Officer for the Federal Trade Commission, and to Secretary, Federal Trade Commission, Room H-159, 600 Pennsylvania Ave., NW., Washington, DC 20580. All comments should be captioned “Mail or Telephone Order Merchandise Trade Regulation Rule: Paperwork comment.”

# FOR FURTHER INFORMATION CONTACT:

Requests for additional information should be addressed to Joel N. Brewer, Attorney, Division of Enforcement, Bureau of Consumer Protection, Federal Trade Commission, Room S-4632, 601 Pennsylvania Ave., NW., Washington DC 20580.

# SUPPLEMENTARY INFORMATION:

On October 3, 2000, the FTC sought comment on the information collection requirements associated with MTOR, 16 CFR Part 435 (Control Number: 3084-0106). See 65 FR 58997. No comments were received. 

                    The Rule was promulgated in 1975 in response to consumer complaints that many merchants were failing to ship merchandise ordered by mail on time, failing to ship at all, or failing to provide prompt refunds for unshipped merchandise. The Rule took effect on February 2, 1976. A second rulemaking proceeding in 1993 demonstrated that the delayed shipment and refund problems of the mail order industry were also being experienced by consumers who ordered merchandise over the telephone. The Commission amended the Rule, effective on March 1, 1994, to include merchandise ordered by telephone, including by telefax or by computer through the use of a modem (                    *e.g.,*                     Internet sales), and the Rule was then renamed the “Mail or Telephone Order Merchandise Rule.”                

Generally, the MTOR requires a merchant to: (1) Have a reasonable basis for any express or implied shipment representation made in soliciting the sale; (2) ship within the time period promised and, if no time period is promised, within 30 days; (3) notify the consumer and obtain the consumer's consent to any delay in shipment; and (4) make prompt and full refunds when the consumer exercises a cancellation option or the merchant is unable to meet the Rule's other requirements.

The notice provisions in the Rule require a merchant who is unable to ship within the promised shipment time or 30 days to notify the consumer of a revised date and his or her right to cancel the order and obtain a prompt refund. Delays beyond the revised shipment date also trigger a notification requirement to consumers. When the Rule requires the merchant to make a refund and the consumer has paid by credit card, the Rule also requires the merchant to notify the consumer either that any charge to the consumer's charge account will be reversed or that the merchant will take no action that will result in a charge.

## Burden Statement

*Estimated total annual hours burden:*                    2,753,000 hours (rounded up to the nearest thousand).                

                    In its 1997 PRA notice and submission to OMB regarding the Rule, FTC staff estimated that 71,560 established companies each spend an average of 50 hours per year on compliance with the Rule, and that approximately 1,000 new industry entrants spend  an average of 230 hours (an industry estimate) for compliance measures associated with start-up.[1] 62 FR 63717, Dec. 2, 1997. Thus, the total estimated hours burden was 3,808,000 hours [(71,560 X 50 hours) + (1,000 X 230 hours)].                

                    No provisions in the Rule have been amended or changed in any manner since staff's 1997 PRA submission to OMB. Thus, all of the requirements relating to disclosure and notification remain the same. However, while staff's estimate of average time required by companies to comply with the Rule is unchanged, staff has reduced its estimate of total industry hours based on more current data revealing a smaller industry population. Based on 1999 Statistical Abstract data (the most current industry data  available),[2]                                          there are approximately 45,919 existing establishments subject to the Rule.                

                    Staff, however, has increased its estimate of the number of new                           ( print page 77032)                        companies that enter the market each year from 1,000 to 1,985. This, too, is based on 1999 Statistical Abstract data. Thus, the current total of affected firms consists of approximately 47,904 established and new companies.                

Accordingly, staff estimates total industry hours to comply with the MTOR is 2,752,500 hours [(45,919 X 50 hours) + (1,985 X 230 hours)].

                    This is a conservative estimate. Arguably much of the estimated time burden for disclosure-related compliance would be incurred even absent the Rule. Representatives from industry trade associations and other knowledgeable individials have consistently stated that compliance with the Rule is widely regarded by direct marketers as being good business practice. The Rule's notification requirements would be voluntarily initiated by most merchants to meet consumer expectations regarding timely shipment, notification of  delay, and prompt and full refunds. Providing consumers with notice about the status of  their orders fosters consumer loyalty and encourages repeat purchases, which are important to direct marketers' success. Thus, it appears that much of the time and expense associated with Rule compliance may not constitute “burden” under the PRA [3]                                          although the above estimates account for it as such.                

In estimating PRA burden, staff considered “the total time, effort, or financial resources expended by persons to generate, maintain, retain, disclose or provide information to or for a Federal agency.” 5 CFR 1320.3(b)(1). This includes “developing, acquiring, installing, and utilizing technology and systems for the purpose of disclosing and providing information.” 5 CFR 1320.3(b)(1)(iv). Although not expressly stated in the OMB regulation implementing the PRA, the definition of burden arguably includes  upgrading and maintaining computer and other systems used to comply with a rule's requirements. Conversely, to the extent that these systems are used in the ordinary course  of business independent of the Rule, their associated upkeep would fall outside the realm of PRA “burden.”

The mail order industry has been subject to the basic provisions of the Rule since 1976 and the telephone order industry since 1994. Thus, businesses have had several years (and some have had decades) to integrate compliance systems into their business procedures. Since 1997 many businesses have upgraded the information management systems they need, in part, to comply with the Rule, and to more effectively track orders. These upgrades, however, mostly were needed to deal with growing consumer demand for merchandise resulting, in part, from increased public acceptance of making purchases over the telephone and, more recently, the Internet.

Accordingly, most companies now maintain records and provide updated order information of the kind required by the Rule in their ordinary course of business. Nevertheless, staff conservatively assumes that the time existing and new companies devote to compliance with the Rule remains the same as in 1997.

*Estimated labor costs:*                     $31,136,000, rounded to the nearest thousand.                

                    Labor costs are derived by applying appropriate hourly cost figures to the burden hours described above. According to the 1999 Statistical Abstract, average payroll for “non-store catalogue and mail order houses” and “non-store direct selling establishments” rose $0.322 per hour per year between 1991 and 1996. In 1996, average payroll was $10.34 per hour. Assuming average payroll continued to increase $0.322 per hour per year, in 1999 average payroll would have reached $11.31 per hour. Because the bulk of the burden of complying with the MTOR is borne by clerical personnel, staff believes that the average hourly payroll figure for non-store catalogue and mail order houses and non-store direct selling establishments is an appropriate measure of a direct marketer's average labor cost to comply with the Rule. Thus, the total annual labor cost to new and established businesses in 1999 for Rule compliance is approximately $31,136,000 (2,753,000 hours × $11.31/hr.). Relative to direct industry sales, this total is negligible.[4] 

*Estimated annual non-labor cost burden:*                     $0 or minimal.                

The applicable requirements impose minimal start-up costs, as businesses subject to the Rule generally have or obtain necessary equipment for other business purposes, i.e., inventory and order management, and customer relations. For the same reason, staff anticipates printing and copying costs to be minimal, especially given that telephone order merchants have increasingly turned to electronic communications to notify consumers of delay and to provide cancellation options. Staff believes that the above requirements necessitate ongoing, regular training so that covered entities stay current and have a clear understanding of federal mandates. This training, however, would be a small portion of and subsumed within the ordinary training that employees receive apart from that associated with the information collected under the Rule.

John D. Graubert,

Acting General Counsel.

# Footnotes

1.                             Most of the estimated start-up time relates to the development and installation of computer systems geared to more efficiently handle customer orders.                    
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2.                             Statistical Abstract of the United States, 119th edition, 1999, U.S. Department of Commerce, Economics and Statistics Administration.                    
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3.                             Under the OMB regulation implementing the PRA, burden is defined to exclude any effort that would be expended regardless of any regulatory requirement. 5 CFR 1320.3(b)(2).                    
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4.                             Projecting sales for “non-store catalogue and mail order houses” and “non-store direct selling establishments” (according to the 1999 Statistical Abstract) to all merchants subject to the MTOR, staff estimates that direct sales to consumers in 1999 would have been $109.45 billion. Thus, the labor cost of compliance by existing and new businesses in 1999 would have amounted to less than .03% of sales.                    
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[FR Doc. 00-31337  Filed 12-7-00; 8:45 am]

BILLING CODE 6750-01-M