Federal Register / Vol. 74, No. 233 / Monday, December 7, 2009 / The Regulatory Plan 64363 

1 The FTC also prepares a number of annual and 

periodic reports on the statutes it administers. 

These are not discussed in this plan. 

2 See ‘‘The President’s Identity Theft Task Force 

Report’’ at 

http://www.ftc.gov/os/2008/10/ 

081021taskforcereport.pdf. 3 The complete report is at 

http://www.ftc.gov/os/2008/12/ 

P075414ssnreport.pdf. 4 This can be found at 

http://www.ftc.gov/os/2009/02/ 

P085400behavadreport.pdf. 

FEDERAL TRADE COMMISSION (FTC) 

Statement of Regulatory Priorities 

I. REGULATORY PRIORITIES 

Background 

The Federal Trade Commission (FTC 

or Commission) is an independent 

agency charged with protecting 

American consumers from ‘‘unfair 

methods of competition’’ and ‘‘unfair or 

deceptive acts or practices’’ in the 

marketplace. The Commission strives to 

ensure that consumers benefit from a 

vigorously competitive marketplace. 

The Commission’s work is rooted in a 

belief that competition, based on 

truthful and non-misleading 

information about products and 

services, brings the best choice of 

products and services at the lowest 

prices for consumers. 

The Commission pursues its goal of 

promoting competition in the 

marketplace through two different, but 

complementary, approaches. Fraud and 

deception injure both consumers and 

honest competitors alike and undermine 

competitive markets. Through its 

consumer protection activities, the 

Commission seeks to ensure that 

consumers receive accurate, truthful, 

and non-misleading information in the 

marketplace. At the same time, for 

consumers to have a choice of products 

and services at competitive prices and 

quality, the marketplace must be free 

from anticompetitive business practices. 

Thus, the second part of the 

Commission’s basic mission—antitrust 

enforcement—is to prohibit 

anticompetitive mergers or other 

anticompetitive business practices 

without unduly interfering with the 

legitimate activities of businesses. These 

two complementary missions make the 

Commission unique insofar as it is the 

Nation’s only Federal agency to be given 

this combination of statutory authority 

to protect consumers. 

The Commission is, first and 

foremost, a law enforcement agency. It 

pursues its mandate primarily through 

case-by-case enforcement of the Federal 

Trade Commission Act and other 

statutes. In addition, the Commission is 

also charged with the responsibility of 

issuing and enforcing regulations under 

a number of statutes. Pursuant to the 

FTC Act, for example, the Commission 

currently has in place sixteen trade 

regulation rules. The Commission also 

has adopted a number of voluntary 

industry guides. Most of the regulations 

and guides pertain to consumer 

protection matters and are generally 

intended to ensure that consumers 

receive the information necessary to 

evaluate competing products and make 

informed purchasing decisions. 

Industry Self-Regulation and 

Compliance Partnerships with Industry 

The Commission vigorously protects 

consumers through a variety of tools 

including both regulatory and nonregulatory approaches. To that end, it 

has encouraged industry self-regulation, 

developed a corporate leniency policy 

for certain rule violations, and 

established compliance partnerships 

where appropriate. The Commission has 

held workshops and issued reports that 

encourage industry self-regulation and 

compliance partnerships in several 

areas. As detailed below, information 

privacy and security, the evolving 

nature of technology, consumer credit 

and finance, and health care issues 

continue to be at the forefront of the 

Commission’s consumer protection and 

competition programs. By subject area, 

we discuss the major workshops and 

reports1 the FTC has issued since the 

2008 Regulatory Plan was published. 

(a) Protecting Personal Information. 

The Commission convened a number of 

workshops in interrelated areas 

associated with protecting personal 

information, consumer privacy, and 

identity theft. They include: 

• On November 13, 2008, the FTC and 

the Southern Methodist University 

Dedman School of Law co-hosted a 

workshop on how businesses can 

secure personal information and 

protect the privacy of consumers and 

employees. The workshop was 

presented in partnership with the 

International Association of Privacy 

Professionals which provides 

guidance to businesses on data 

security, privacy, and responses to 

data breaches. 

• On March 16-17, 2009, the FTC, along 

with the Asia-Pacific Economic 

Cooperation forum and the 

Organization for Economic 

Cooperation and Development, cohosted an international conference on 

how companies can manage personal 

data security issues in a global 

information environment where data 

can be stored and accessed from 

multiple jurisdictions. 

• On April 29, 2009, the FTC held a 

workshop to help businesses 

implement data security practices to 

deter identity thieves and recognize 

telltale signs - or red flags - that 

thieves are trying to use personal 

information they have obtained. 

• Beginning December 7, 2009, the 

Commission will hold three 

roundtables to explore the privacy 

challenges posed by 21st century 

technology and business practices 

that collect and use company data. 

The goal of the roundtables is to 

determine how best to protect 

consumers while supporting 

beneficial uses of the information and 

technological innovation. 

As an outgrowth of an April 2007 

federal government strategic plan which 

contained 31 recommendations to 

address identity theft, the President’s 

Identity Task Force (co-chaired by the 

Attorney General and the FTC’s 

Chairman) released an October 2008 

report on the progress made in 

implementing the recommendations.2

The report discusses the FTC’s 

workshops, training seminars, and 

extensive outreach with public, private, 

and non-government organizations on 

preventing identity theft. Related to this, 

and following a December 2007 

workshop on the use of Social Security 

numbers, the Commission issued a 

December 2008 report ‘‘Security in 

Numbers: Social Security and Identity 

Theft: A Federal Trade Commission 

Report Providing Recommendations on 

Social Security Number Use in the 

Private Sector.’’3

As a result of a November 2007 town 

hall on issues related to online 

behavioral advertising - the practice of 

tracking an individual’s online activities 

in order to deliver advertising tailored 

to his or her interests - and how best to 

protect consumer privacy, the FTC staff 

put out for comment a set of four 

principles in December 2007. The 

principles were transparency and 

consumer control, reasonable security 

for consumer collected data, express 

consumer consent to material changes 

in privacy policy, express consumer 

consent to use of sensitive data. After 

considering the comments, the 

Commission issued a report in February 

2009, ‘‘Self-Regulatory Principles for 

Online Behavioral Advertising,’’ which 

revised and retained the principles 

governing self-regulation by 

advertisers.4


erowe on DSK5CLS3C1PROD with RULES
64364 Federal Register / Vol. 74, No. 233 / Monday, December 7, 2009 / The Regulatory Plan 

5 This is located at 

www.ftc.gov/reports/mobilemarketplace/ 

mobilemktgfinal.pdf. 6 This is at 

http://www.ftc.gov/bcp/workshops/debtcollection/ 

dcwr.pdf. 

7 The link is 

http://www.ftc.gov/os/2009/06/ 

P083901biologicsreport.pdf. 8 The link is 

www.ftc.gov/os/2009/06/ 

P062105authorizedgenericsreport.pdf. 

(b) Mobile Marketplace. In May 2008, 

the Commission held a town hall 

meeting to assess the evolving mobile 

commerce marketplace and its 

implications for consumer protection 

policies. As a result of that meeting and 

based on further review, the FTC staff 

issued an April 2009 report ‘‘Beyond 

Voice: Mapping the Mobile 

Marketplace.’’5 The report found that 

cost disclosures about mobile services 

continue to generate consumer 

complaints and that the increased use of 

smartphones to access the mobile Web 

presented unique privacy concerns, 

especially regarding children. The 

report also highlighted the need to 

monitor the impact of unwanted mobile 

text messages, malware, and spyware 

and the substantial cost to carriers (and 

potentially consumers) of blocking 

them. 

(c) Debt Collection. In October 2007, 

the Commission held a two-day 

workshop to explore how collection 

industry changes have affected 

consumers and businesses. In February 

2009, in addition to its annual report on 

the Fair Debt Collection Practices Act 

(FDCPA), the FTC issued ‘‘Collecting 

Consumer Debts: The Challenges of 

Change.’’6 The report found that major 

problems in the flow of information in 

the collection chain and recommended 

that consumers be provided better 

information on debts and their rights. 

The report also recommended that debt 

collection laws should be modernized to 

reflect changes in technology and that 

Congress authorize the FTC to issue 

rules under the FDCPA. 

The report further notes that the FTC 

lacked sufficient information on debt 

collection proceedings. On August 5-6, 

September 29-30, and December 4, 

2009, the Commission has held or will 

hold roundtables examining consumer 

protection issues involving debt 

collections, both in litigation and 

arbitration proceedings. 

(d) Health Care. On November 21, 

2008, the Commission held roundtables 

on two distinct health care issues 

involving competition and consumer 

protection issues: competition between 

health care providers based on quality 

information, and competition which 

may be provided by an abbreviated 

regulatory approval for follow-on 

biologics (FOBs). 

In June 2009, the Commission issued 

two reports on health care issues. The 

first, ‘‘Follow-On Biologic Drug 

Competition,’’7 was a result of the 

November workshop. After discussing 

the differences between FOB drugs and 

branded-generic drugs and noting that 

competition by FOBs is unlikely to be 

similar to brand-generic competition 

(substantial FOB costs, limited 

competition, lack of automatic 

substitution, FOB difficulty gaining 

market share), the report concludes that 

patent protection and market-based 

pricing will promote competition by 

FOBs and recommends legislation to 

put in place an abbreviated FDA 

approval process for FOBs. The second 

report, ‘‘Authorized Generics: An 

Interim Report,’’8 analyzes price 

reductions when authorized generic 

(AG) drugs compete with first-to-file 

generics during 180-day exclusivity and 

the impact of brand-generic patent 

litigation settlements that contain 

provisions on launching an AG drug. 

The FTC’s report was prepared in 

response to requests from Congress and 

is relevant to health care reform 

initiatives. 

(e) Competition. On February 17-19 

and May 20-21, 2009, the Commission 

hosted public workshops on resale price 

maintenance under the Sherman Act 

and the FTC Act, focusing on how best 

to distinguish resale price maintenance 

that benefits consumers from that which 

does not. The workshops discussed 

theories of economic benefits and 

harms, featured panel presentations, 

and allowed for audience questions. On 

October 17, 2008, the FTC held a 

workshop on the scope of ‘‘unfair 

methods of competition’’ in section 5 of 

the FTC Act. The Commission 

considered the history of the provision, 

FTC and court interpretations, 

contemporary business conduct, and 

issues concerning standard-setting 

organizations. 

In addition, beginning December 3, 

2009, and ending January 26, 2010, the 

Commission and the Department of 

Justice will hold a series of five joint 

public workshops to explore updating 

the guidelines used to evaluate the 

potential competitive effects of mergers 

and acquisitions. The purpose of the 

review is to consider guideline revisions 

to more accurately reflect agency 

practice and result in a more efficient 

review process. The agencies have 

requested comments on twenty 

questions related to competitive effects; 

market definition, share, and 

concentration; and the price and nonprice effects of mergers. 

(f) Intellectual Property. The 

Commission held a series of five 

hearings on the ‘‘Evolving Intellectual 

Property (IP) Marketplace.’’ The 

hearings generally focused on 

examining changes in intellectual 

property law, patent-related business 

models, and new information regarding 

the operation of the IP marketplace 

since the issuance of the FTC’s October 

2003 report, ‘‘To Promote Innovation: 

The Proper Balance of Competition and 

Patent Law and Policy.’’ 

• Overview Hearing. On December 5, 

2008, three panels provided an 

overview of developing business 

models, recent and proposed changes 

in IP remedies law, and changes in 

legal doctrines affecting the value and 

licensing of patents. 

• Remedies. On February 11-12, 2009, 

the Commission held hearings on 

damages in patent cases and recent 

changes in permanent injunction and 

willful infringement standards in the 

wake of recent court decisions. 

• Operation of IP Markets. The hearings 

on March 18-19, 2009 explored how 

different industries use patents, the 

economic and legal perspectives on IP 

and technology markets, and the 

notice role of patents. 

• Markets for Intellectual Property. This 

April 17, 2009 hearing addressed new 

business models in the IP market; 

strategies for buying, selling, and 

licensing patents; and the role of 

secondary markets. 

• Industry Focus. On May 4-5, 2009, in 

conjunction with the Berkeley Center 

for Law and Technology and the 

Berkeley Center for Competition 

Policy, the Commission considered 

how markets for patents and 

technology operate in different 

industries and how patent policy 

might be adjusted to respond to 

problems and better promote 

innovation and competition. 

In addition to these five IP hearings, 

the Commission and the Technology 

Law and Public Policy Clinic at the 

University of Washington School of Law 

hosted a ‘‘Digital Rights Management’’ 

(DRM) conference on March 25, 2009. 

The conference addressed the use of 

DRM technologies, practices which are 

expected to become more prevalent in 

U.S. markets. 


erowe on DSK5CLS3C1PROD with RULES
Federal Register / Vol. 74, No. 233 / Monday, December 7, 2009 / The Regulatory Plan 64365 

9 See Chairman William E. Kovacic, ‘‘The Federal 

Trade Commission at 100: Into Our 2nd Century - 

The Continuing Pursuit of Better Practices, A 

Report by Federal Trade Commission’’ (January 

2009), available at 

http://www.ftc.gov/os/2009/01/ftc100rpt.pdf. 

10 For the most recent report, see ‘‘Federal Trade 

Commission, Marketing Violent Entertainment to 

Children: A Fifth Follow-Up Review of Industry 

Practices in the Motion Picture, Music Recording & 

Electronic Game Industries A Report to Congress’’ 

(April 2007), available at 

www.ftc.gov/reports/violence/ 

070412MarketingViolentEChildren.pdf. 11 More information can be found at 

http://www.dontserveteens.gov/. 12 See ‘‘Marketing Food to Children and 

Adolescents: A Review of Industry Expenditures, 

Activities, and Self-Regulation’’ (July 2008), 

available at 

http://www.ftc.gov/os/2008/07/ 

P064504foodmktingreport.pdf. 

(g) Journalism and the Internet. On 

December 1-2, 2009, the FTC will host 

a two-day workshop titled ‘‘From Town 

Criers to Bloggers: How Will Journalism 

Survive the Internet Age?’’ 74 FR 51605 

(Oct. 7, 2009). The workshop will 

broadly consider the economics of 

journalism; the wide variety of new 

business and non-profit models for 

journalism; the financial, technological, 

and other challenges facing the news 

industry; and a variety of government 

policies, including antitrust, copyright, 

and tax policy, bearing on journalism. 

Witnesses will include journalists and 

representatives of news organizations, 

new media representatives, direct 

marketers, academics, and consumer 

advocates. 

(h) Other Workshops. The FTC hosted 

a ‘‘Fraud Forum’’ on February 25-26, 

2009. The first day was open to the 

public and addressed the many aspects 

of fraud today. The second day was 

open only to domestic and international 

law enforcement officials and focused 

on improving interagency coordination 

in consumer fraud cases. On March 12, 

2009, the FTC staff conducted a forum 

to gather information for an upcoming 

education campaign involving 

advertising and marketing to children. 

Then-Chairman William E. Kovacic 

also issued a report that considered 

basic questions and future directions as 

the Commission approaches its 100-year 

anniversary in 2014.9 The report was 

based on seven months of agency selfassessment and numerous consultations 

with officials in the public and private 

sector, and concluded, ‘‘The progress of 

the Federal Trade Commission in its 

modern era has built heavily upon the 

willingness of its people to assess their 

work critically and explore possibilities 

for improvement. Critical self-study and 

external consultations not only have 

helped identify paths to achieving 

greatness, but also have renewed the 

institution’s commitment to fulfill the 

destiny that Congress in 1914 wished it 

to achieve.’’ The report, the latest 

element of that tradition, seeks to 

ingrain in the agency a habit of periodic 

self-assessment to illuminate the way to 

future improvements. 

In other areas, like the entertainment 

industry, the Commission has 

encouraged industry groups to improve 

their self-regulatory programs to 

discourage the marketing to children of 

movies, games, and music that the 

industries’ rating or labeling systems say 

are inappropriate for children or 

warrant parental caution due to their 

violent content. The motion picture, 

electronic game and music industries 

have each established self-regulatory 

systems that rate or label products in an 

effort to help parents seeking to limit 

their children’s exposure to violent 

materials. Since 1999, the Commission 

has issued six reports on these three 

industries, examining the industries’ 

compliance with their own voluntary 

marketing guidelines.10

Staff is currently working on the 

development of a mall intercept study of 

parental awareness and use of rating 

information on movie DVDs and on a 

telephone survey on parental awareness 

and attitudes toward the marketing and 

sale of Unrated ‘‘Director’s Cut’’ DVDs. 

The results of this research will be 

reported in the Commission’s seventh 

media violence report, with an 

anticipated release in the Fall of 2009. 

Regarding advertising for alcoholic 

products, the Commission plans to issue 

each year orders requiring two to four 

suppliers to provide information about 

advertising and marketing practices and 

compliance with self-regulatory 

guidelines. In June 2009, the 

Commission issued orders pursuant to 

FTC Act Section 6(b) to three alcohol 

companies, asking for information about 

advertising and marketing practices. In 

the coming year, FTC will review the 

companies’ responses to the orders in 

light of the provisions of the alcohol 

industry self-regulatory codes. The FTC 

will continue to monitor advertising and 

marketing efforts by other industry 

members. It will also continue to 

promote the ‘‘We Don’t Serve Teens’’ 

consumer education program, 

supporting the legal drinking age.11

The Commission will continue to 

examine issues related to food 

marketing to youth. In July 2008, the 

Commission published a report to 

Congress on this topic12 based on the 

responses of 44 members of the food 

and beverage industry to Special Orders 

issued by the Commission in 2007 

under Section 6(b) of the FTC Act. The 

Commission’s report found that, in 

2006, the surveyed companies spent 

more than $1.6 billion in youth-directed 

marketing, often employing a variety of 

integrated techniques such as traditional 

media, digital- and Internet-based 

platforms, packaging and in-store 

marketing, and cross-promotions with 

media and entertainment companies 

including the use of licensed characters. 

Among the report recommendations 

were that food companies adopt 

meaningful nutrition-based standards 

for marketing products to children and 

that companies define ‘‘marketing to 

children’’ to encompass the full 

spectrum of advertising and 

promotional techniques. After receipt of 

2009 data from the companies during 

2010, the Commission intends to 

conduct a follow-up study to assess the 

extent to which recommendations from 

the 2008 report have been implemented 

and whether additional measures are 

needed. 

The Commission is also spearheading 

an Interagency Working Group on Food 

Marketed to Children, made up of 

members of the FTC, the Food and Drug 

Administration, the Centers for Disease 

Control and Prevention, and the 

Department of Agriculture. The working 

group was established in response to a 

provision in the FY 2009 Omnibus 

Appropriations Act (H.R. 1105) and is 

charged with conducting a study and 

developing recommendations for 

nutritional standards for foods marketed 

to children ages 17 and under. Findings 

and recommendations will be submitted 

in a report to Congress by July 2010. 

Additionally, in the industry selfregulation area, the Commission 

continues to apply the Textile Corporate 

Leniency Policy Statement for minor 

and inadvertent violations of the Textile 

or Wool Rules that are self-reported by 

the company. 67 FR 71566 (Dec. 2, 

2002). Generally, the purpose of the 

Textile Corporate Leniency Policy is to 

help increase overall compliance with 

the rules while also minimizing the 

burden on business of correcting 

(through relabeling) inadvertent labeling 

errors that are not likely to cause injury 

to consumers. Since the Textile 

Corporate Leniency Program was 

announced, 160 companies have been 

granted ‘‘leniency’’ for self-reported 

minor violations of FTC textile 

regulations. 

Finally, the Commission also has 

engaged industry in compliance 

partnerships in at least two areas 


erowe on DSK5CLS3C1PROD with RULES
64366 Federal Register / Vol. 74, No. 233 / Monday, December 7, 2009 / The Regulatory Plan 

13 See ‘‘Review of the Application of EU and US 

Regulatory Impact Assessment Guidelines on the 

Analysis of Impacts on International Trade and 

Investment’’ (May 2008), available at 

http://www.whitehouse.gov/omb/assets/ 

regulatorylmatterslpdf/sglomblfinal.pdf. 

14 See 

http://www.ftc.gov/os/statutes/usajump.shtm. 15 The Made in USA Enforcement Statement does 

not cover products specifically subject to the 

country-of-origin labeling requirements of the 

Textile Fiber Products Identification Act, the Wool 

Products Labeling Act, the Fur Products Labeling 

Act, or the American Automobile Labeling Act. 

involving the funeral and franchise 

industries. Specifically, the 

Commission’s Funeral Rule Offender 

Program, conducted in partnership with 

the National Funeral Directors 

Association, is designed to educate 

funeral home operators found in 

violation of the requirements of the 

Funeral Rule, 16 CFR 453, so that they 

can meet the rule’s disclosure 

requirements. Nearly 300 funeral homes 

have participated in the program since 

its inception in 1996. In addition, the 

Commission established the Franchise 

Rule Alternative Law Enforcement 

Program in partnership with the 

International Franchise Association 

(IFA), a nonprofit organization that 

represents both franchisors and 

franchisees. This program is designed to 

assist franchisors found to have a minor 

or technical violation of the Franchise 

Rule, 16 CFR 436, in complying with 

the rule. Violations involving fraud or 

other section 5 violations are not 

candidates for referral to the program. 

The IFA teaches the franchisor how to 

comply with the rule and monitors its 

business for a period of years. Where 

appropriate, the program offers 

franchisees the opportunity to mediate 

claims arising from the law violations. 

Since December 1998, twenty-one 

companies have agreed to participate in 

the program. 

Rulemakings that Have International 

Effects 

The OMB has requested that agencies 

discuss the international effects of their 

rulemakings in the regulatory plan 

narrative per the recommendation of the 

OMB Secretariat General of the 

European Commission joint report to 

the U.S.-European Union (EU) High 

Level Regulatory Cooperation Forum 

And Transatlantic Economic Council 

(TEC).13 The Commission has statutory 

authority and implementing regulatory 

authority to prevent unfair or deceptive 

acts or practices in commerce among the 

states or with foreign nations. The 

Commission’s Rules apply to foreignbased corporations doing business in 

the United States. As explained below, 

to the extent that foreign companies do 

business in the United States or their 

conduct from outside causes or is likely 

to cause reasonably foreseeable injury 

within the United States, these foreign 

entities are required to comply with the 

applicable statutes and rules. 

The Commission enforces Section 5(a) 

of the FTC Act, which provides that 

‘‘unfair or deceptive acts or practices in 

or affecting commerce ... are ... declared 

unlawful.’’ Recently, the ‘‘Undertaking 

Spam, Spyware, And Fraud 

Enforcement With Enforcers beyond 

Borders Act of 2006’’ (or the ‘‘U.S. SAFE 

WEB Act of 2006’’ or ‘‘SAFE WEB’’) 

(Pub. L. No. 109-455, codified to the 

FTC Act, 15 U.S.C. § 41 et seq.) 

amended Sec. 5(a)’s ‘‘unfair or deceptive 

acts or practices’’ to include such acts 

or practices involving foreign commerce 

that cause or are likely to cause 

reasonably foreseeable injury within the 

United States or involve material 

conduct occurring within the United 

States. This amendment expressly 

confirmed the FTC’s authority to redress 

harm in the United States caused by 

foreign actors and harm abroad caused 

by U.S. actors. This also clarified the 

factors for Commission consideration in 

establishing Trade Regulation Rules to 

remedy unfair or deceptive acts or 

practices that occur on an industry-wide 

basis. Under Section 18 of the FTC Act, 

the Commission is authorized to 

prescribe ‘‘rules which define with 

specificity acts or practices which are 

unfair or deceptive acts or practices in 

or affecting commerce’’ within the 

meaning of Section 5(a)(1) of the Act. 

Turning to specific rules and 

rulemakings and their international 

effects or of potential international 

interest, the Premerger Notification 

Rules, 16 CFR 801-803, for example, 

apply to mergers or acquisitions 

reaching a certain size threshold and 

where one or both parties are of a 

certain size. In addition, the Energy 

Independence and Security Act of 2007 

provided the Commission with 

authority to promulgate a rule 

addressing manipulation of wholesale 

prices for petroleum products and 

authorizes rule provisions prohibiting 

persons from supplying misleading or 

deceptive information or data to certain 

entities. As discussed within Final 

Actions below, the Commission 

announced a final rule on August 6, 

2009. 

For the Commission’s consumer 

protection mission, some of the rules 

currently being reviewed may have 

effects on international companies 

doing business in the United States or 

on U.S. businesses regarding their 

dealings with foreigners. These include, 

among other things, the provisions of 

the recently promulgated Health Breach 

Notification Rule, 16 CFR 318, which 

applies to foreign vendors of personal 

health records and related entities. 

Other rules that are pending or under 

review and that may have an effect on 

international commerce include: the 

Regulations under the Comprehensive 

Smokeless Tobacco Health Education 

Act of 1986, 16 CFR 307; Trade 

Regulation Rules adopted pursuant to 

the Telephone Disclosure and Dispute 

Resolution Act of 1992 (900 Number 

Rule), 16 CFR 308; Telemarketing Sales 

Act, which prohibit calls to persons 

listed on the Do-Not-Call list, 16 CFR 

310; the rulemakings on Mortgage Acts 

and Practices and Mortgage Assistance 

Relief Services, to be codified at 16 CFR 

321, 322; Power Output Claims for 

Amplifiers Used in Home Entertainment 

Systems, 16 CFR 432; and the Trade 

Regulation Rule on Mail or Telephone 

Order Merchandise, which covers 

purchases on the Internet, 16 CFR 435. 

In addition, many of the FTC Guides 

also apply to foreign entities doing 

business in the United States or are of 

interest to such foreign entities. These 

include among others: Guides for the 

Jewelry, Precious Metals, and Pewter 

Industries, 16 CFR 23; the Guides 

Concerning the Use of Endorsements 

and Testimonials in Advertising, 16 

C.F.R. 255; Guides Concerning Fuel 

Economy Advertising for New 

Automobiles, 16 CFR 259; and the 

Guides for the Use of Environmental 

Marketing Claims, 16 CFR 260. The FTC 

also issued and applies an Enforcement 

Statement on the use of Made in USA 

and other U.S. origin claims in 

advertising and labeling.14 The 

principles set forth in this enforcement 

policy statement apply to U.S. origin 

claims included in labeling, advertising, 

other promotional materials, and all 

other forms of marketing, including 

marketing through digital or electronic 

means such as the Internet or electronic 

mail.15

Rulemakings and Studies Required by 

Statute 

The Congress has enacted laws 

requiring the Commission to undertake 

rulemakings and studies. They include 

at least 15 new rulemakings and eight 

studies required by the Fair and 

Accurate Credit Transactions Act of 

2003, Pub. L. No. 108-159 (FACTA or 

the FACT Act) and the related Credit 


erowe on DSK5CLS3C1PROD with RULES
Federal Register / Vol. 74, No. 233 / Monday, December 7, 2009 / The Regulatory Plan 64367 

16 The rulemaking concerning labeling for 

biofuels was completed in 2008. 17 In addition, this act provides the Commission 

with authority to promulgate energy labeling rules 

for consumer electronics; and the Commission 

issued an ANPRM in May 2009. See Ongoing 

Reviews below. 

Card Accountability Responsibility and 

Disclosure Act of 2009, Pub. L. No. 111- 

24 (CARD Act); the rulemaking pursuant 

to the Federal Deposit Insurance 

Corporation Improvements Act of 1991, 

Pub. L. No. 102-242 (FDICIA); model 

privacy notices under the GrammLeach-Bliley Act; the rulemakings 

concerning gasoline price manipulation 

and energy labeling for lamps required 

or authorized by the Energy Security 

and Independence Act of 2007, Pub. L. 

No. 110-140; temporary breach 

notification requirements for vendors of 

personal health records under the 

American Recovery and Reinvestment 

Act of 2009, Pub. L. 111-5; and a 

rulemaking on mortgage loans pursuant 

to the Omnibus Appropriations Act of 

2009, Pub. L. No. 111-8. The Final 

Actions section below describes actions 

taken on the required rulemakings and 

studies since the 2008 Regulatory Plan 

was published. 

FACTA Rules. The Commission has 

already issued nearly all of the rules 

required by FACTA. These rules are 

codified in several parts of 16 CFR 600 

et seq. The remaining active FACTA 

rulemakings are: 

1. Credit Bureau Charge for Credit 

Scores–The Commission was required 

to determine a fair and reasonable fee 

to be charged by a consumer reporting 

agency for providing the credit score 

information required under FACTA. 

On November 8, 2004, the 

Commission issued an NPRM on 

reasonable fees for credit scores. 69 

FR 64698. The comment period ended 

on January 5, 2005. Staff reviewed the 

comments and is monitoring the 

credit score market, where prices have 

continued to remain reasonable and 

competitive. 

2. Risk Based Pricing Rule–The 

Commission jointly with the Federal 

Reserve published a risk-based 

pricing proposal for comment on May 

19, 2008. 73 FR 28966. The comment 

period ended on August 18, 2008. 

Risk-based pricing refers to the 

practice of setting or adjusting the 

price and other terms of credit offered 

or extended to a particular consumer 

to reflect the risk of nonpayment by 

that consumer. This statutorilyrequired rulemaking would address 

the form, content, time, manner, 

definitions, exceptions, and model of 

a risk-based pricing notice. The 

agencies anticipate issuing a final rule 

in December 2009. 

3. Furnisher Rules–On July 1, 2009, the 

Agencies issued furnisher accuracy 

and dispute rules which are discussed 

under Completed Actions below. On 

the same date, the Agencies also 

issued an advance notice of proposed 

rulemaking (‘‘ANPRM’’) that seeks to 

obtain information that would assist 

in determining whether it would be 

appropriate to propose an addition to 

one of the guidelines that would 

delineate the circumstances under 

which a furnisher would be expected 

to provide an account opening date, 

or any other types of information, to 

a consumer reporting agency to 

promote the integrity of the 

information. 74 FR 31529. The 

comment period closed on August 31, 

2009. 

4. Advertising Disclosure Rule for Free 

Credit Reports–Section 205 of the 

CARD Act requires the Commission to 

issue a rule to prevent deceptive 

marketing of ‘‘free credit reports.’’ On 

October 7, 2009, the Commission 

issued an NPRM to amend the Free 

Credit Reports Rule to require 

prominent disclosures in advertising 

for ‘‘free credit reports’’ and to 

address practices which interfere with 

consumers’ ability to obtain file 

disclosures from consumer reporting 

agencies. 74 FR 52915 (Oct. 15, 2009). 

Comments on the NPRM are due on 

November 30, 2009. 

FACTA Study on Insurance Scores. 

On March 27, 2009, the Commission 

issued Amended Orders to File a 

Special Report amending the 

compulsory process resolution dated 

May 16, 2008 titled ‘‘Resolution 

Directing Use of Compulsory Process to 

Study the Effects of Credit Scores and 

Credit-Based Insurance Scores Under 

Section 215 of the FACT Act.’’ This 

Amended Order requires certain 

insurance companies to produce 

information for a study on the use and 

effect of credit-based insurance scores 

on consumers of homeowner’s 

insurance. The Amended Orders were 

served on nine of the largest private 

providers of homeowners insurance on 

or about April 6, 2009; it is anticipated 

the insurers will have fully complied 

with the Amended Orders by the middle 

of September, 2009. Staff has begun 

reviewing the data produced by the 

insurers and is working to identify a 

sample set of data to be used for the 

study. 

FACTA Study on Credit Reports. 

Pending approval from the Office of 

Management and Budget, the FTC plans 

to conduct a national study of the 

accuracy of consumer reports in 

connection with Section 319 of the 

FACT Act. This study is a follow-up to 

the Commission’s two previous pilot 

studies that were undertaken to evaluate 

a potential design for a national study. 

Section 319 required the FTC to study 

the accuracy and completeness of 

information in consumers’ credit reports 

and to consider methods for improving 

the accuracy and completeness of such 

information. Section 319 also required 

the Commission to issue a series of 

biennial reports to Congress over a 

period of eleven years from the date of 

enactment (2003). 

FDICIA Rule. The FDICIA assigns to 

the Commission responsibilities for 

certain non-federally insured depository 

institutions (‘‘DIs’’) and private deposit 

insurers of such DIs. The FTC is 

required to prescribe by regulation or 

order, the manner and content of certain 

disclosures required of DIs that lack 

federal deposit insurance. From 1993- 

2003, the Commission was statutorily 

barred on an annual basis from 

appropriating funds for purposes of 

complying with FDICIA. The 

Consolidated Appropriations Act of 

2004 and subsequent yearly 

appropriations have not imposed the 

same funding prohibition and the 

Commission issued an NPRM on March 

16, 2005, 70 FR 12823, and a revised 

NPRM on March 14, 2009. 74 FR 10843. 

Staff is reviewing the comments on the 

revised NPRM and expects to forward a 

recommendation to the Commission by 

the end of 2009. 

Gramm-Leach-Bliley (GLB) Rule. 

Please see Final Actions for information 

about a final GLB Rule. 

Energy Security and Independence 

Act Rules. Several sections of the Energy 

Security and Independence Act of 2007 

(ESIA), require or authorize, among 

other things, that the Commission 

promulgate rules concerning gas price 

manipulation and labeling requirements 

for various categories of biodiesel fuels, 

as well as energy labeling requirements 

for certain appliances including light 

bulbs.16 The active rulemakings under 

ESIA are discussed below and, for the 

Market Manipulation Rulemaking, in 

the Final Actions section.17

Section 321 of the ESIA requires the 

Commission to conduct a rulemaking to 

consider the effectiveness of current 

energy labeling for lamps (commonly 

referred to as ‘‘light bulbs’’) and to 

consider alternative labeling 

approaches. In response to that 


erowe on DSK5CLS3C1PROD with RULES
64368 Federal Register / Vol. 74, No. 233 / Monday, December 7, 2009 / The Regulatory Plan 

directive, the Commission issued an 

ANPRM on July 17, 2008, seeking 

comments on the effectiveness of 

current labeling requirements for lamp 

packages and possible alternatives to 

those requirements. 73 FR 40988. As 

part of this effort, the Commission held 

a public roundtable meeting on 

September 15, 2008; and the comment 

period ended on September 29, 2008. 

The Commission announced an NPRM 

on October 27, 2009, seeking comments 

about proposed labeling requirements 

for light bulbs. 74 FR 57950 (Nov. 10, 

2009). Comments are due by December 

28, 2009. The Commission will take 

final action before June 2010. 

Mortgage Loans Rule. Section 626 of 

the Omnibus Appropriations Act of 

2009 directed the Commission to 

initiate a rulemaking proceeding with 

respect to mortgage loans and 

prescribed that any violation of the rule 

shall be treated as a violation of a rule 

under section 18 of the Federal Trade 

Commission Act regarding unfair or 

deceptive acts or practices. On June 1, 

2009, the Commission published an 

ANPRM in two parts: (1) Mortgage Acts 

and Practices through the life cycle of 

the mortgage loan (i.e., loan advertising, 

marketing, origination, appraisals, and 

servicing), 74 FR 26118, and (2) 

Mortgage Assistance Relief Services 

(practices of entities providing 

assistance to consumers in modifying 

mortgage loans or avoiding foreclosure), 

74 FR 26130. The comment periods for 

the ANPRMs have closed. Staff is 

reviewing the comments and expects to 

send a recommendation to the 

Commission by fall 2009 relating to 

further proposed actions. 

Please see Final Actions below for 

information about the statutorily 

required Temporary Breach Notification 

Rule. 

Ten-Year Review Program 

In 1992, the Commission 

implemented a program to review its 

rules and guides regularly. The 

Commission’s review program is 

patterned after provisions in the 

Regulatory Flexibility Act, 5 USC 601- 

612. Under the Commission’s program, 

rules have been reviewed on a ten-year 

schedule as resources permit. For many 

rules, this has resulted in more frequent 

reviews than is generally required by 

section 610 of the Regulatory Flexibility 

Act. This program is also broader than 

the review contemplated under the 

Regulatory Flexibility Act, in that it 

provides the Commission with an 

ongoing systematic approach for seeking 

information about the costs and benefits 

of its rules and guides and whether 

there are changes that could minimize 

any adverse economic effects, not just a 

‘‘significant economic impact upon a 

substantial number of small entities.’’ 5 

USC 610. The program’s goal is to 

ensure that all of the Commission’s 

rules and guides remain in the public 

interest. It complies with the Small 

Business Regulatory Enforcement Act of 

1996, Pub. L. No. 104-121. This program 

is consistent with the Administration’s 

‘‘smart’’ regulation agenda to streamline 

regulations and reporting requirements 

and section 5(a) of Executive Order 

12866, 58 FR 51735 (Sept. 30, 1993). 

As part of its continuing ten-year 

review plan, the Commission examines 

the effect of rules and guides on small 

businesses and on the marketplace in 

general. These reviews may lead to the 

revision or rescission of rules and 

guides to ensure that the Commission’s 

consumer protection and competition 

goals are achieved efficiently and at the 

least cost to business. In a number of 

instances, the Commission has 

determined that existing rules and 

guides were no longer necessary nor in 

the public interest. 

Calendar Year 2008-09 Reviews 

Most of the matters currently under 

review pertain to consumer protection 

and are intended to ensure that 

consumers receive the information 

necessary to evaluate competing 

products and make informed purchasing 

decisions. On February 5, 2009, the 

Commission published its modified tenyear schedule of review and announced 

that it would initiate the review of two 

rules and one guide during 2009: (1) the 

Automotive Fuel Ratings, Certification, 

and Posting Rule (Fuel Ratings Rule), 16 

CFR 306, (2) the Rule Concerning 

Prenotification Negative Option Plans 

(Negative Option Rule), 16 CFR 425, and 

(3) the Guides for Private Vocational 

and Distance Education Schools 

(Vocational School Guides), 16 CFR 254. 

74 FR 6129 (Feb. 5, 2009). Discussion of 

these three reviews follows. 

Fuel Ratings Rule. The Fuel Ratings 

Rule sets out a uniform method for 

determining the octane rating of 

gasoline from the refiner through the 

chain of distribution to the point of 

retail sale. The rule enables consumers 

to buy gasoline with an appropriate 

octane rating for their vehicle and 

establishes standard procedures for 

determining, certifying, and posting 

octane ratings. On March 3, 2009, the 

Commission published an ANPRM and 

requested comments on the rule as part 

of its systematic periodic review of 

current rules and guides. 74 FR 9054. 

Staff anticipates that the Commission 

will issue an NPRM during December 

2009. 

Negative Option Rule. The Negative 

Option Rule governs the operation of 

prenotification subscription plans. 

Under these plans, sellers ship 

merchandise automatically to their 

subscribers and bill them for the 

merchandise within a prescribed time. 

The rule protects consumers by 

requiring the disclosure of the terms of 

membership clearly and conspicuously 

and establishes procedures for 

administering the subscription plans. 

An ANPRM was published on May 14, 

2009, 74 FR 22720, and the comment 

period ended on July 27, 2009. Several 

states, a county government agency, and 

an industry trade association filed 

requests seeking to extend the comment 

period but the requests were so close to 

the end of the comment period we could 

not extend the period. On August 7, 

2009, the Commission granted the 

requests to reopen and extended the 

comment period until October 13, 2009. 

Vocational Schools Guides. The 

Commission is seeking public 

comments on its Private Vocational and 

Distance Education Schools Guides, 

commonly known as the Vocational 

Schools Guides. 74 FR 37973 (July 30, 

2009). Issued in 1972 and most recently 

amended in 1998 to add a provision 

addressing misrepresentations related to 

post-graduation employment, the guides 

advise businesses offering vocational 

training courses – either on the school’s 

premises or through distance education, 

such as correspondence courses or the 

Internet – how to avoid unfair and 

deceptive practices in the advertising, 

marketing, or sale of their courses. The 

comment period closed on October 16, 

2009. 

Ongoing Reviews 

Since the publication of the 2008 

Regulatory Plan, the Commission has 

initiated two rulemaking proceedings 

and is continuing review of a number of 

rules and guides. The two new 

rulemaking proceedings are discussed 

first under (a) Rules, followed by the 

other rule reviews and then (b) Guides. 

(a) Rules 

Consumer Electronics Rule. The 

Commission has authority under section 

325 of the ESIA to promulgate energy 

labeling rules for consumer electronics 

(Consumer Electronics Rule). On March 

16, 2009, the Commission published an 

ANPRM seeking comments on whether 

it should require labels for consumer 


erowe on DSK5CLS3C1PROD with RULES
Federal Register / Vol. 74, No. 233 / Monday, December 7, 2009 / The Regulatory Plan 64369 

electronics, including televisions, 

computers, video recorder boxes, and 

certain other equipment; the 

disclosures, need, and format of labels; 

and appropriate test procedures. 74 FR 

11045. The comment period ended on 

May 14, 2009. Staff is currently 

reviewing the comments and anticipates 

sending a recommendation to the 

Commission by the end of 2009. 

Debt Relief Services TSR Rule. On 

July 30, 2009, the Commission approved 

an NPRM seeking comments on a 

proposal to amend the Telemarketing 

Sales Rule (TSR) to address the sale of 

debt relief services, including: for-profit 

credit counselors; debt settlement 

companies that promise to obtain 

substantially reduced, lump sum 

settlements of consumers’ debts; and 

debt negotiators that offer to obtain 

interest rate reductions or other 

concessions to lower consumers’ 

monthly payments (Debt Relief Services 

TSR Rule) 74 FR 41988 (Aug. 19, 2009). 

The proposed amendments would 

define ‘‘debt relief services,’’ to ensure 

that telemarketing transactions 

involving these services would be 

subject to the TSR, mandate certain 

disclosures, and prohibit 

misrepresentations and the request or 

receipt of payment for these services 

until services have been performed and 

documented. The comment period was 

initially set to close on October 9, 2009, 

but was extended to October 26, 2009. 

Staff held a public forum on November 

4, 2009, which afforded Commission 

staff and interested parties an 

opportunity to discuss the proposed 

amendments as well as any issues raised 

in comments in response thereto. 

Mail Order Rule. The Mail or 

Telephone Order Merchandise Rule (or 

the Mail Order Rule), 16 CFR 435, 

requires that, when sellers advertise 

merchandise, they must have a 

reasonable basis for stating or implying 

that they can ship within a certain time. 

The Commission sought comments 

about non-substantive changes to the 

rule to bring it into conformity with 

changing conditions; including 

consumers’ usage of means other than 

the telephone to access the Internet 

when ordering, consumers paying for 

merchandise by demand draft or debit 

card, and merchants using alternative 

methods to make prompt rule-required 

refunds. 72 FR 51728 (Sept. 11, 2007). 

Staff has reviewed the comments and 

anticipates sending a recommendation 

to the Commission by early 2010. 

Business Opportunity Rule. The 

proposed Business Opportunity Rule 

stems from the recently concluded 

review of the Franchise Rule, where 

staff recommended that the rule be split 

into two parts; one part addressing 

franchise issues and another part 

addressing business opportunity issues. 

After reviewing the comments from an 

NPRM, 71 FR 19054 (Apr. 12, 2006), the 

Commission issued a revised NPRM on 

March 26, 2008, that would require 

business opportunity sellers to furnish 

prospective purchasers with specific 

information that is material to the 

consumer’s decision as to whether to 

purchase a business opportunity and 

which should help the purchaser 

identify fraudulent offerings. 73 FR 

16110. The revised NPRM comment 

period ended on May 27, 2008, and the 

rebuttal comment period ended on June 

16, 2008. A public workshop was held 

on June 1, 2009, to explore changes to 

the proposed rule and a related 

comment period closed on June 30, 

2009. The Commission plans to issue a 

staff report on the Business Opportunity 

Rule in early 2010 and seek comment on 

the report. 

Hart-Scott-Rodino Rules. For the HartScott-Rodino Premerger Notification 

Rules (HSR Rules), 16 CFR 801-803, 

Bureau of Competition staff is 

continuing to review various HSR Rule 

provisions. Staff is also reviewing the 

HSR Form and anticipates sending a 

recommendation to the Commission in 

January 2010. 

Used Car Rule. The Used Motor 

Vehicle Trade Regulation Rule (Used 

Car Rule), 16 CFR 455, sets out the 

general duties of a used vehicle dealer, 

requires that a completed Buyers Guide 

be posted at all times on the side 

window of each used car a dealer offers 

for sale, and mandates disclosure of 

whether the vehicle is covered by a 

warranty, and if so, the type and 

duration of the warranty coverage, or 

whether the vehicle is being sold ‘‘as is 

- no warranty.’’ The Commission 

published a notice seeking public 

comments on the effectiveness and 

impact of the rule. 73 FR 42285 (July 21, 

2008). The notice seeks comments on a 

range of issues including, among others, 

whether a bilingual Buyers Guide would 

be useful or practicable, as well as what 

form such a Buyers Guide should take. 

Second, the notice seeks comments on 

possible changes to the Buyers Guide 

that reflect new warranty products such 

as certified used car warranties, that 

have become increasingly popular since 

the rule was last reviewed. Finally, the 

notice seeks comments on other issues 

including the continuing need for the 

rule and its economic impact, the effect 

of the rule on deception in the used car 

market, and the rule’s interaction with 

other regulations. The comment period 

ended on September 19, 2008, and staff 

anticipates sending its recommendation 

to the Commission during fall 2009. 

Amplifier Rule. The Amplifier Rule, 

16 CFR 432, assists consumers in 

purchasing by standardizing the 

measurement and disclosure of various 

performance attributes of power 

amplification equipment for home 

entertainment purposes. The rule makes 

it an unfair or deceptive act or practice 

for manufacturers and sellers of sound 

power amplification equipment for 

home entertainment purposes to fail to 

disclose certain performance 

information in connection with direct or 

indirect representations of power 

output, power band, frequency or 

distortion characteristics. The rule also 

sets out standard test conditions for 

performing the measurements that 

support the required performance 

disclosures. On February 27, 2008, the 

Commission published a request for 

comments including a number of 

specific issues related to changes in 

technology and products. 73 FR 10403. 

The comment period ended on May 12, 

2008, and staff anticipates sending a 

recommendation to the Commission by 

fall 2009. 

Cooling-Off Rule. The Cooling-Off 

Rule requires that a consumer be given 

a three-day right to cancel certain sales 

greater than $25.00 that occur at a place 

other than a seller’s place of business. 

The rule also requires a seller to notify 

buyers orally of the right to cancel; to 

provide buyers with a dated receipt or 

copy of the contract containing the 

name and address of the seller and 

notice of cancellation rights; and to 

provide buyers with forms which buyers 

may use to cancel the contract. An 

ANPRM seeking comment was 

published on April 21, 2009. 74 FR 

18170. The comment period was 

supposed to close on June 22, 2009, but 

was extended to September 25, 2009. 74 

FR 36972 (July 27, 2009). Staff is 

reviewing the comments and expects to 

prepare a recommendation for the 

Commission during the early part of 

2010. 

Smokeless Tobacco Regulations. The 

Commission’s review of the Regulations 

Under the Comprehensive Smokeless 

Tobacco Health Education Act of 1986 

(Smokeless Tobacco Regulations), 16 

CFR 307, is ongoing. The Smokeless 

Tobacco Regulations govern the format 

and display of statutorily-mandated 

health warnings on all packages and 

advertisements for smokeless tobacco. 

Staff anticipates Commission action 


erowe on DSK5CLS3C1PROD with RULES
64370 Federal Register / Vol. 74, No. 233 / Monday, December 7, 2009 / The Regulatory Plan 

regarding review of this rule by early 

2010. 

Pay-Per-Call Rule. The Commission’s 

review of the Pay-Per-Call Rule, 16 CFR 

308, is continuing. The Commission has 

held workshops to discuss proposed 

amendments to this rule, including 

provisions to combat telephone bill 

‘‘cramming’’ – inserting unauthorized 

charges on consumers’ phone bills – and 

other abuses in the sale of products and 

services that are billed to the telephone 

including voicemail, 900-number 

services, and other telephone based 

information and entertainment services. 

The most recent workshop focused on 

the use of 800 and other toll-free 

numbers to offer pay-per-call services, 

the scope of the rule, the dispute 

resolution process, the requirements for 

a pre-subscription agreement, and the 

need for obtaining express authorization 

from consumers before placing charges 

on their telephone bills. The review 

record has remained open to encourage 

additional comments on expansion of 

the rule’s coverage. Staff anticipates 

forwarding its recommendation to the 

Commission by December 2010. 

(b) Guides 

Fuel Economy Guide. The Fuel 

Economy Guide for new automobiles, 16 

CFR 259, was adopted in 1975 to 

prevent deceptive fuel economy 

advertising and to facilitate the use of 

fuel economy information in 

advertising. As part of its regular review 

of all rules and guides, the Commission 

issued a request for comments on May 

9, 2007, on whether to retain or amend 

the guide. 72 FR 72328. The 

Commission sought comments on, 

among other things, whether there is a 

continuing need for the guide and, if so, 

what changes should be made to it, if 

any, in light of Environmental 

Protection Agency amendments to fuel 

economy labeling requirements for 

automobiles. On April 28, 2009, the 

Commission published proposed 

amendments to the Guide. The deadline 

for comments was June 16, 2009. Staff 

is reviewing the comments and expects 

to make a recommendation by the end 

of 2009. 

Jewelry, Precious Metals and Pewter 

Guides. After issuing a staff advisory 

opinion indicating that the 

Commission’s current Guides for 

Jewelry, Precious Metals and Pewter 

Industries, 16 CFR 23, did not address 

descriptions of new platinum alloy 

products, the Commission issued a 

Request for Public Comments on 

whether the platinum section of the 

Guides for Jewelry, Precious Metals and 

Pewter Industries, should be amended 

to provide guidance on how to nondeceptively mark or describe products 

containing between 500 and 850 parts 

per thousand (ppt) pure platinum and 

no other platinum group metals. 70 FR 

38834 (July 6, 2005). After reviewing the 

comments, the Commission issued a 

notice seeking comment on proposals to 

amend the platinum section of the 

Guides to address the new platinum 

alloys. 73 FR 10190 (Feb. 26, 2008). The 

extended comment period ended 

August 25, 2008. Staff expects that the 

Commission will amend the Guides 

during late 2009 to provide that 

marketers may non-deceptively mark 

and describe an alloy of platinum and 

non-precious metals consisting of at 

least 500 parts per thousand (ppt), but 

less than 850 ppt, pure platinum and 

less than 950 ppt total platinum group 

metals (PGM) as ‘‘platinum,’’ provided 

they make certain disclosures. 

Green Guides. The Commission 

previously announced that it would 

review the Green Guides, 16 CFR 260. 

73 FR 66091 (Nov. 27, 2007). The Green 

Guides outline general principles that 

apply to all environmental marketing 

claims and provide guidance regarding 

specific environmental claims. The 

Commission sought comment on the 

need for the guides and their economic 

impact, the effect of the guides on the 

accuracy of various environmental 

claims, and the interaction of the guides 

with other environmental marketing 

regulations. As part of its review, during 

2008, the Commission held workshops 

and received comments in three specific 

areas: 1) carbon offsets and renewable 

energy certificates (Jan. 8, 2008); 2) 

environmental packaging claims and 

green packaging (April 30, 2008); and 3) 

developments in green building and 

textiles claims and consumer perception 

of such claims (July 15, 2008). Staff is 

reviewing the comments the 

Commission has received and is 

conducting consumer research. 

FCRA Commentary. Finally, the 

Commission anticipates issuing a notice 

requesting comments on the Statement 

of General Policy or Interpretations 

under the Fair Credit Reporting Act 

(also known as FCRA Commentary) by 

the middle of 2010. 

Final Actions 

Since the publication of the 2008 

Regulatory Plan, the Commission has 

issued the following final rules: 

Call Abandonment TSR Amendments. 

The Commission issued a final rule 

implementing proposed Call 

Abandonment amendments to the TSR. 

73 FR 51164 (Aug. 29, 2008). The 

amendments expressly prohibited 

telemarketing sales calls that deliver 

prerecorded messages, whether 

answered in person by a consumer or by 

an answering machine or voicemail 

service, unless the seller has previously 

obtained the recipient’s signed, written 

agreement to receive such calls. The 

amendments also changed the method 

for measuring the maximum allowable 

call abandonment rate in the call 

abandonment safe harbor provision 

from ‘‘3 percent per day per calling 

campaign’’ to ‘‘3 percent per 30-day 

period per calling campaign.’’ The 

Commission also ended its temporary 

policy during the rulemaking of 

forbearing from bringing enforcement 

actions against sellers and telemarketers 

who placed prerecorded calls that meet 

certain specified conditions that would 

be inconsistent with the new 

requirements. There was a phase-in of 

various effective dates, with the last one 

being the provision requiring 

permission from consumers to receive 

such calls, which became effective 

September 1, 2009. 

Market Manipulation Rule. Section 

811 of the ESIA prohibits any 

manipulative or deceptive device or 

contrivance in connection with the 

wholesale purchase, or sale of crude oil, 

gasoline, or other petroleum distillate in 

contravention of rules or regulations the 

Commission may prescribe (Market 

Manipulation Rule). Section 813 

specifies the methods of enforcing such 

a rule. The Commission announced an 

ANPRM requesting comments on the 

manner in which it should carry out its 

responsibilities to promulgate 

regulations under these sections. 73 FR 

25614 (May 7, 2008). After considering 

the comments, the Commission issued 

an NPRM on August 19, 2008, 73 FR 

53393, and held a workshop on 

November 6, 2008. The Commission 

issued a revised NPRM on April 22, 

2009, 74 FR 18304; and the comment 

period on the revised NPRM ended on 

May 20, 2009. On August 6, 2009, the 

Commission announced a final rule that 

prohibits fraud or deceit in wholesale 

markets for petroleum products, and 

intentional omissions of material 

information that are likely to distort 

market conditions for any such product. 

74 FR 40686 (Aug. 12, 2009). The rule 

was effective on November 4, 2009. On 

November 13, 2009, the FTC issued its 

Compliance Guide for these Petroleum 

Market Manipulation Regulations. The 

Guide answers commonly asked 

questions and examines various 

scenarios to help those trading in 

wholesale petroleum markets comply 


erowe on DSK5CLS3C1PROD with RULES
Federal Register / Vol. 74, No. 233 / Monday, December 7, 2009 / The Regulatory Plan 64371 

18 The agencies are the Board of Governors of the 

Federal Reserve System, the Federal Deposit 

Insurance Corporation, the Office of the 

Comptroller of the Currency, the Office of Thrift 

Supervision, the National Credit Union 

Administration, the Securities and Exchange 

Commission, and the Commodity Futures Trading 

Corporation. 

19 Section 3(f) of the Executive Order defines a 

regulatory action to be ‘‘significant’’ if it is likely 

to result in a rule that may: (1) Have an annual 

effect on the economy of $100 million or more or 

adversely affect in a material way the economy, a 

sector of the economy, productivity, competition, 

jobs, the environment, public health or safety, or 

State, local, or tribal governments or communities; 

(2) Create a serious inconsistency or otherwise 

interfere with an action taken or planned by another 

agency; (3) Materially alter the budgetary impact of 

entitlements, grants, user fees, or loan programs or 

the rights and obligations of recipients thereof; or 

(4) Raise novel legal or policy issues arising out of 

legal mandates, the President’s priorities, or the 

principles set forth in this Executive Order. 

with the regulations. The Guide is 

available on the FTC’s Web site at: 

www.ftc.gov/ftc/oilgas/rules.htm. 

Health Breach Notification Rule. 

Section 13407 of the American Recovery 

and Reinvestment Act of 2009 required 

the Commission to issue rules requiring 

vendors of personal health records and 

third parties that offer products or 

services through the web sites of 

vendors to notify individuals when the 

security of their individually 

identifiable health information is 

breached. The Commission published 

an NPRM on April 20, 2009 (74 FR 

17914), seeking comments. The 

Commission announced the final rule 

on August 17, 2009. 74 FR 42962 (Aug. 

25, 2009). 

FACTA Furnisher Rule. The 

Commission also published one final 

rule mandated by FACTA, the Furnisher 

Rule. The Commission is required, in 

coordination with the banking agencies 

and National Credit Union 

Administration, to issue guidelines and 

rules concerning the accuracy of 

information furnished to consumer 

reporting agencies, and rules relating to 

the ability of consumers to dispute 

information directly with furnishers of 

information. The Commission and the 

other agencies published final rules on 

July 1, 2009. 74 FR 31484. 

Endorsements and Testimonials in 

Advertising Guides. On January 16, 

2007, the Commission requested public 

comments on the overall costs, benefits, 

and regulatory and economic impact of 

its Guides Concerning the Use of 

Endorsements and Testimonials in 

Advertising, 16 CFR 255. The 

Commission also released consumer 

research it commissioned regarding the 

messages conveyed by consumer 

endorsements, and sought comment 

both on this research and upon several 

other specific endorsement-related 

issues. 72 FR 2214 (Jan. 18, 2007). After 

reviewing the comments, the 

Commission proposed changes to the 

guides and requested public comments. 

73 FR 72374 (Nov. 28, 2008). The 

proposed revisions address consumer 

endorsements, expert endorsements, 

endorsement by organizations, and 

disclosure of material connections 

between advertisers and endorsers. On 

the issue of consumer endorsements, the 

proposed revisions explain that when 

ads using consumer testimonials convey 

that the endorser’s experience is 

representative of what consumers will 

generally achieve and the advertiser 

does not possess adequate 

substantiation for this representation, 

the advertiser should clearly and 

conspicuously disclose the results 

consumers actually can expect to 

achieve. The initial comment period 

ended on January 30, 2009, but was 

subsequently extended to March 2, 

2009. 74 FR 5810 (Feb. 2, 2009). On 

October 5, 2009, the Commission 

announced it would retain a revised 

version of the guides, effective on 

December 1, 2009. 74 FR 53124 (Oct. 15, 

2009). 

Gramm-Leach-Bliley Rule. Pursuant to 

Section 728 of the Financial Services 

Relief Act of 2006, P. L. No.109-351, 

which added section 503(e) to the 

Gramm-Leach-Bliley Act (or GLB Act), 

the Commission together with seven 

other federal agencies18 is directed to 

propose a model form that may be used 

at the option of financial institutions for 

the privacy notices required under GLB. 

The 2006 amendment provided that the 

agencies must propose the model form 

within 280 days after enactment, or by 

April 11, 2007. On March 29, 2007, the 

GLB agencies issued an NPRM 

proposing as the model form the 

prototype privacy notice developed 

during the consumer testing research 

project undertaken by first six, and then 

seven, of these agencies. 72 FR 14940. 

On November 17, 2009, the Agencies 

announced a model privacy form that 

financial institutions may rely on as a 

safe harbor to provide disclosures under 

the privacy rules. In addition, the 

Agencies other than the SEC are 

eliminating the safe harbor permitted for 

notices based on the Sample Clauses 

currently contained in the privacy rules 

if the notice is provided after December 

31, 2010. 

Summary 

In both content and process, the FTC’s 

ongoing and proposed regulatory 

actions are consistent with the 

President’s priorities. The actions under 

consideration inform and protect 

consumers and reduce the regulatory 

burdens on businesses. The Commission 

will continue working toward these 

goals. The Commission’s ten-year 

review program is patterned after 

provisions in the Regulatory Flexibility 

Act and complies with the Small 

Business Regulatory Enforcement 

Fairness Act of 1996. The Commission’s 

ten-year program also is consistent with 

section 5(a) of E.O. 12866, which directs 

executive branch agencies to develop a 

plan to reevaluate periodically all of 

their significant existing regulations. 58 

FR 51735 (Sept. 30, 1993). In addition, 

the final rules issued by the 

Commission continue to be consistent 

with the President’s Statement of 

Regulatory Philosophy and Principles, 

Executive Order 12866, section 1(a), 

which directs agencies to promulgate 

only such regulations as are, inter alia, 

required by law or are made necessary 

by compelling public need, such as 

material failures of private markets to 

protect or improve the health and safety 

of the public. 

The Commission continues to identify 

and weigh the costs and benefits of 

proposed actions and possible 

alternative actions, and to receive the 

broadest practicable array of comment 

from affected consumers, businesses, 

and the public at large. In sum, the 

Commission’s regulatory actions are 

aimed at efficiently and fairly promoting 

the ability of ‘‘private markets to protect 

or improve the health and safety of the 

public, the environment, or the wellbeing of the American people.’’ E.O. 

12866, section 1. 

II. REGULATORY ACTIONS 

The Commission has one proposed 

rule that would be a ‘‘significant 

regulatory action’’ under the definition 

in Executive Order 12866.19 This is the 

FACTA Risk Based Pricing Final Rule, 

which staff anticipates being approved 

by the Commission during early 2010. 

There is further information about this 

under the prior heading of Rulemakings 

and Studies Required by Statute. 

BILLING CODE 6750–01–S 


erowe on DSK5CLS3C1PROD with RULES