[Federal Register Volume 74, Number 233 (Monday, December 7, 2009)]
[Unknown Section]
[Pages 64363-64371]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: X09-281207]


[[Page 64363]]




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 non-regulatory 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 reports\1\ the FTC has issued 
since the 2008 Regulatory Plan was published.
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\1\ The FTC also prepares a number of annual and periodic reports on 
the statutes it administers. These are not discussed in this plan.
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(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:
<bullet> 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.
<bullet> On March 16-17, 2009, the FTC, along with the Asia-Pacific 
            Economic Cooperation forum and the Organization for 
            Economic Cooperation and Development, co-hosted 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.
<bullet> 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.
<bullet> 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\
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\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.
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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\
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\4\ This can be found at http://www.ftc.gov/os/2009/02/
P085400behavadreport.pdf.

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[[Page 64364]]

(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.
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\5\ This is located at www.ftc.gov/reports/mobilemarketplace/
mobilemktgfinal.pdf.
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(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.
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\6\ This is at http://www.ftc.gov/bcp/workshops/debtcollection/
dcwr.pdf.
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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.
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\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.
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(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 non-price 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.''
<bullet> 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.
<bullet> 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.
<bullet> 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.
<bullet> 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.
<bullet> 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.

[[Page 64365]]

(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 self-assessment 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.
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\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.
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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\
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\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.
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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\
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\11\ More information can be found at http://www.dontserveteens.gov/.
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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 topic\12\ 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.
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\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.
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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 self-regulation 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

[[Page 64366]]

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 foreign-based 
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.
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\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/regulatory_matters_pdf/sg_omb_final.pdf.
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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. Sec.  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\
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\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.
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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

[[Page 64367]]

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 Gramm-Leach-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 statutorily-
            required 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\
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\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.
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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

[[Page 64368]]

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 ten-year 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

[[Page 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 Hart-Scott-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

[[Page 64370]]

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 non-deceptively 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

[[Page 64371]]

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 agencies\18\ 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.
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\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.
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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 well-being 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.
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\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.
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BILLING CODE 6750-01-S