Federal Register / Vol. 73, No. 174 / Monday, September 8, 2008 / Notices 52049 

1 Commission Rule 4.2(d), 16 CFR 4.2(d). The 

comment must be accompanied by an explicit 

request for confidential treatment, including the 

factual and legal basis for the request, and must 

identify the specific portions of the comment to be 

withheld from the public record. The request will 

be granted or denied by the Commission’s General 

Counsel, consistent with applicable law and the 

public interest. See Commission Rule 4.9(c), 16 CFR 

4.9(c). 

2 OMB Control Number 3084-0097. 

3 73 FR 51164 (August 29, 2008). 

4 71 FR 58716, 58730-58731 (Oct. 4, 2006). 

5 Under the PRA, federal agencies must obtain 

approval from OMB for each collection of 

information they conduct or sponsor. ‘‘Collection of 

information’’ means agency requests or 

requirements that members of the public submit 

reports, keep records, or provide information to a 

third party. 44 U.S.C. 3502(3); 5 CFR 1320.3(c). 

6 When it takes effect, the prerecorded call 

amendment will provide the first ever explicit 

authorization in the TSR for sellers and 

telemarketers to place prerecorded telemarketing 

calls to consumers. The call abandonment 

prohibition of the TSR now implicitly prohibits 

such calls by requiring that all telemarketing calls 

be connected to a sales representative, rather than 

a recording, within two seconds of the completed 

greeting of the person who answers. 16 CFR 

310.4(b)(1)(iv). 

FEDERAL TRADE COMMISSION 

Information Collection Activities; 

Emergency Clearance Submission for 

Expedited OMB Review; Comment 

Request 

AGENCY: Federal Trade Commission 

(‘‘Commission’’ or ‘‘FTC’’). 

ACTION: Notice. 

SUMMARY: The information collection 

requirements described below will be 

submitted to the Office of Management 

and Budget (‘‘OMB’’) for emergency 

processing and a request for a 

temporary, 180-day grant of clearance 

pursuant to OMB’s regulations 

implementing the Paperwork Reduction 

Act (‘‘PRA’’). The Commission seeks 

public comments on the PRA burden 

analysis below for the final amendments 

to the FTC’s Telemarketing Sales Rule 

(‘‘TSR’’ or ‘‘Rule’’). 

DATES: Comments must be submitted on 

or before October 8, 2008. 

ADDRESSES: Interested parties are 

invited to submit written comments. 

Comments should refer to ‘‘TSR Final 

Amendments, PRA Comment, FTC File 

No. R411001’’ to facilitate the 

organization of comments. A comment 

filed in paper form should include this 

reference both in the text and on the 

envelope and should be mailed or 

delivered to the following address: 

Federal Trade Commission, Office of the 

Secretary, Room H-135 (Annex J), 600 

Pennsylvania Avenue, N.W., 

Washington, D.C. 20580. Because paper 

mail in the Washington area and at the 

FTC is subject to delay, please consider 

submitting your comments in electronic 

form, as prescribed below. If, however, 

the comment contains any material for 

which confidential treatment is 

requested, the comment must be filed in 

paper form, and the first page of the 

document must be clearly labeled 

‘‘Confidential.’’1

Comments filed in electronic form 

should be submitted by following the 

instructions on the web-based form at: 

(https://secure.commentworks.com/ftcTSRpra). To ensure that the 

Commission considers an electronic 

comment, you must file it on the webbased form at (https://secure.

commentworks.com/ftc-TSRpra). You 

may also visit http:// 

www.regulations.gov to read this notice, 

and may file an electronic comment 

through that website. The Commission 

will consider all comments that 

www.regulations.gov forwards to it. 

All comments should additionally be 

submitted to: Office of Management and 

Budget, Attention: Desk Officer for the 

Federal Trade Commission. Comments 

should be submitted via facsimile to 

(202) 395-6974 because U.S. Postal Mail 

is subject to lengthy delays due to 

heightened security precautions. 

The FTC Act and other laws the 

Commission administers permit the 

collection of public comments to 

consider and use in this proceeding as 

appropriate. All timely and responsive 

public comments will be considered by 

the Commission and will be available to 

the public on the FTC website, to the 

extent practicable, at www.ftc.gov. As a 

matter of discretion, the FTC makes 

every effort to remove home contact 

information for individuals from the 

public comments it receives before 

placing those comments on the FTC 

website. More information, including 

routine uses permitted by the Privacy 

Act, may be found in the FTC’s privacy 

policy at (http://www.ftc.gov/ftc/ 

privacy.shtm). 

FOR FURTHER INFORMATION CONTACT: 

Requests for additional information or 

copies of the proposed information 

requirements for the Franchise Rule 

should be addressed to Craig Tregillus, 

Staff Attorney, Division of Marketing 

Practices, Bureau of Consumer 

Protection, Federal Trade Commission, 

Room H-238, 600 Pennsylvania Ave., 

N.W., Washington, D.C. 20580, (202) 

326-2970. 

SUPPLEMENTARY INFORMATION: 

The current OMB approval—or 

‘‘clearance’’— for the information 

collection requirements in the TSR2

expires on July 31, 2009. The OMB 

clearance, issued in 2006, does not 

encompass the new information 

collection requirements of the recent 

amendments to the TSR.3 The 

Commission now seeks OMB review 

and approval and public comment 

regarding the PRA impact of those 

amendments. 

The Commission is requesting 

expedited OMB review and emergency 

clearance because the use of normal 

clearance procedures under 5 CFR 

1320.12 will likely disrupt the 

collection of information for the earlier 

of two PRA-related amendments to the 

TSR, for which compliance will be 

enforced beginning December 1, 2008. A 

grant of 180 days clearance will provide 

the FTC added time to: (a) publish for 

public comment a Federal Register 

notice stating FTC staff estimates of 

incremental PRA burden associated 

with the final Rule amendments; (b) 

pursue thereafter under 5 CFR 1320.12 

normal clearance procedures for the 

revised Rule as a whole; (c) review of 

any public comments received for these 

respective notices; (d) prepare related 

supporting statements for OMB’s 

review. The Commission requests OMB 

approval by October 31, 2008. 

As previously proposed, the TSR 

amendments concerning prerecorded 

calls and calculation of call 

abandonment rates did not affect PRA 

burden.4 Accordingly, with no changes 

to staff’s prior estimates of PRA burden 

at that time, no OMB review and 

approval for the proposed amendments 

was sought. 

The final amendments, however, 

contain requirements that arguably 

constitute a ‘‘collection of information’’

under the PRA.5 Specifically, the final 

prerecorded call amendment expressly 

authorizes sellers and telemarketers to 

place outbound prerecorded 

telemarketing calls to consumers if: (1) 

the seller has obtained written 

agreements from those consumers to 

receive prerecorded telemarketing calls 

after a clear and conspicuous disclosure 

of the purpose of the agreement; and (2) 

the call discloses an opt-out mechanism 

at the outset of the call.6 The 

amendment will apply not only to 

prerecorded calls that are answered by 

a consumer, but also to prerecorded 

messages left on consumers’ answering 

machines or voicemail services. 

Staff continues to believe, however, 

that the amendment for calculating the 

call abandonment rate, which remains 

unchanged from the proposed 

rulemaking, will not affect the Rule’s 

PRA burden. The amendment relaxes 

the present requirement that the 

abandonment rate be calculated on a 

‘‘per day per campaign’’ basis by 

mstockstill on PROD1PC66 with NOTICES

52050 Federal Register / Vol. 73, No. 174 / Monday, September 8, 2008 / Notices 

7 69 FR 67287, 67288-62790 (Nov. 17, 2004). The 

enforcement forbearance policy has permitted such 

calls if they provide either: (1) a telephone keypad 

mechanism a consumer can use to opt-out of future 

calls from the seller, or (2) a toll-free telephone 

number a consumer can call to opt-out. In October 

2006, when the Commission proposed to require a 

prior written agreement for prerecorded calls, it also 

proposed to terminate the forbearance policy as of 

January 4, 2007, but was persuaded by several 

industry petitions to preserve the status quo until 

the conclusion of the amendment proceeding. 8 16 CFR 310.2(n) (defining an EBR); 16 CFR 

310.5(a)(3) (EBR recordkeeping requirement). 

9 16 CFR 310.5(a)(5) (written agreement 

recordkeeping requirement). 

10 We will update our population estimates in 

early 2009 when preparing our next PRA clearance 

request for the amended TSR as a whole. 

11 See 71 FR 28698 (May 17, 2006) and the 

associated May 2006 supporting statement 

submitted to OMB for the details underlying this 

estimate. 

12 This figure, derived from data provided from 

the Registry’s current contractor, is determined as 

follows: 65,768 total entities accessing the Registry 

- 933 exempt entities - 45,627 non-exempt entities 

that accessed telephone numbers solely intrastate 

(and thus not subject to the TSR) = 19,208. (This 

calculation employs the same methodology as was 

used in the 2006 clearance request.) 

13 Staff assumes that telemarketers that make 

prerecorded calls download telephone numbers 

listed on the Registry rather than conduct online 

searches as the latter may consume considerably 

more time. Other telemarketers not placing the 

high-volume of automated prerecorded calls may 

elect to search online, rather than to download. 

14 Although telemarketers that place prerecorded 

telemarketing calls on behalf of sellers must capture 

and transmit to the seller any requests they receive 

to place a consumer’s telephone number on the 

seller’s entity-specific do-not-call list, this de 

minimis obligation extends both to live and 

prerecorded telemarketing calls, and was accounted 

for in the 2006 estimates. Moreover, software that 

automates this process for prerecorded calls is 

widely available and in use. 

15 If it is not feasible to obtain a written 

agreement at the point of sale after the written 

agreement requirement takes effect, sellers could, 

for example, obtain a customer’s email address and 

request an agreement via email to receive 

prerecorded calls. 

permitting, but not requiring, its 

calculation over a 30-day period as 

requested by the industry. Sellers and 

telemarketers already have established 

automated recordkeeping systems to 

document their compliance with the 

current standard. The amendment likely 

will reduce their overall compliance 

burden because it relaxes the current 

requirement. The current ‘‘per day’’

requirement has forced telemarketers to 

turn off their predictive dialers on many 

occasions when unexpected spikes in 

call abandonment rates occur late in the 

day, and thereby has prevented 

realization of the cost savings that 

predictive dialers provide. 

The prerecorded call amendment will 

take effect in two stages. A requirement 

that prerecorded calls provide an 

automated interactive keypress or voiceactivated opt-out mechanism will take 

effect December 1, 2008, but the 

prohibition on placing calls that deliver 

prerecorded messages without the prior 

express written agreement of the 

recipient to receive such calls will not 

take effect until September 1, 2009. 

The written agreement requirement of 

the prerecorded call amendment will 

substitute the means of compliance 

under the Commission’s forbearance 

policy7 and the recordkeeping 

requirements of the TSR—which now 

require a record of an established 

business relationship (‘‘EBR’’)8—with a 

record of a consumer’s agreement to 

receive prerecorded calls.9 This 

substitution should not materially 

change the TSR’s recordkeeping burden. 

While there will be some initial burden 

in converting from EBR records to 

agreement records, the Commission has 

taken two additional steps designed to 

reduce that burden significantly. First, 

the Commission will accept agreements 

obtained pursuant to the Electronic 

Signatures In Global and National 

Commerce Act, Pub. L. No. 106-229, 114 

Stat. 464 (2000) (codified at 15 U.S.C. 

7001 et seq.) (‘‘E-SIGN Act’’), including 

the use by consumers of a keypress on 

a telephone keypad. Second, the 

Commission has provided a phase-in 

that defers the written agreement 

requirement until September 1, 2009, 

during which time sellers may continue 

to place low-cost prerecorded calls to 

their EBR customers that could include 

a request for agreement to receive 

prerecorded calls in the future with a 

simple keypress. 

The FTC invites comments on: (1) 

whether the proposed collection of 

information is necessary for the proper 

performance of the functions of the 

agency, including whether the 

information will have practical utility; 

(2) the accuracy of the agency’s estimate 

of the burden of the proposed collection 

of information, including the validity of 

the methodology and assumptions used; 

(3) ways to enhance the quality, utility, 

and clarity of the information to be 

collected; and (4) ways to minimize the 

burden of the collection of information 

on those who are to respond, including 

through the use of appropriate 

automated, electronic, mechanical, or 

other technological collection 

techniques or other forms of information 

technology, e.g., permitting electronic 

submission of responses. 

Estimated incremental annual hours 

burden: 82,865 hours 

When the FTC last sought renewed 

PRA clearance for the Rule, staff 

estimates were based on data from the 

FTC’s Do-Not-Call Registry (‘‘Registry’’). 

The most recent full-year data then 

available was for the period from 3/1/05 

- 2/28/06. In order to focus strictly on 

the incremental PRA burdens posed by 

the final Rule amendments, we use data 

for the same time period in this burden 

analysis.10 To obtain figures for sellers 

only, however (because only they, not 

telemarketers, will have new 

compliance obligations attributable to 

the final amendments), we have 

analyzed the 2006 data in greater detail. 

In seeking the 2006 clearance, staff 

estimated that 15,000 telemarketing 

entities (sellers and the telemarketers 

that serve them) were subject to the 

Rule.11 New Registry data for the period 

3/1/05 - 2/28/06 that we believe is more 

accurate shows that the total number of 

telemarketing entities subject to the TSR 

is 19,208.12 Of that total, there were 

4,393 sellers and also 2,635 

telemarketers with independent access 

to the Registry that downloaded 

telephone numbers from more than one 

state (to avoid TSR violations by 

automated ‘‘scrubbing’’ of the numbers 

on the Registry from their calling 

lists).13 The number of sellers subject to 

the TSR, therefore, is 16,573 (19,208 

telemarketing entities - 2,635 

telemarketers =16,573 sellers). 

Recordkeeping: Under the 

amendment, no prerecorded call may be 

placed by or on behalf of a seller unless 

the seller has obtained a written 

agreement from the person called to 

receive such calls. Thus, the 

recordkeeping obligations of the 

prerecorded call amendment fall on 

sellers rather than telemarketers.14

In view of the phase-in and the 

amendment’s clarification allowing 

written agreements to be created and 

maintained electronically pursuant to 

the E-SIGN Act, any initial burden 

caused by the transition from EBR 

records to written agreement records 

should not be material. Once the 

necessary systems and procedures are in 

place, any ongoing incremental burden 

to create and retain electronic records of 

agreements by new customers to receive 

prerecorded calls should be minimal.15

Staff estimates that each of the 16,573 

sellers subject to the prerecorded call 

amendment will require approximately 

1 hour to prepare and maintain records 

required by the amendment; thus, 

16,573 total recordkeeping hours. This 

reflects a one-time modification of 

existing customer databases to include 

an additional field to record consumer 

agreements. 

Disclosure: Staff estimates that the 

16,573 sellers will require, on average, 

4 hours each—66,292 hours 

cumulatively—to implement the 

incremental disclosure requirements 

posed by the final rule amendments. 

mstockstill on PROD1PC66 with NOTICES

Federal Register / Vol. 73, No. 174 / Monday, September 8, 2008 / Notices 52051 

16 During the one-year phase-in before the written 

agreement requirement takes effect, the Commission 

will permit sellers to use prerecorded message calls 

made to existing customers to secure their 

agreements to receive prerecorded calls by pressing 

a key on their telephone keypad. Once a script is 

written and recorded, it can be used in all calls 

made by or on behalf of the seller to obtain the 

required agreements. Sellers will be able to include 

the request for the agreement in their regular 

prerecorded calls, thus making the time necessary 

to request the required agreements, and the cost of 

doing so, de minimis during the year-long phasein that will overlap with the final year of the current 

PRA clearance. 

17 This figure includes both the minimal time 

required to create the electronic form and the time 

to encode it in HTML for the seller’s website. 

18 As previously noted, the Commission has 

provided suggested language for this purpose that 

should minimize the time required to modify any 

paper disclosures. 

19 47 CFR 64.1200(b)(2) (requiring disclosure of 

a telephone number ‘‘[d]uring or after the message’’

that consumers who receive a prerecorded message 

call can use to assert a company-specific do-not-call 

request). 

20 This cost is derived from the median hourly 

wage from the 2006 National Occupational 

Employment and Wage Estimates by the Bureau of 

Labor Statistics for management occupations. See 

(http://www.bls.gov/oes/current/oes_nat.htm#b11- 

0000). 

21 This cost is derived from the median hourly 

wage for lawyers from the ‘‘National Compensation 

Survey: Occupational Wages in the United States, 

June 2006,’’ Table 2. See (http://www.stats.bls.gov/ 

ncs/ocs/sp/ncbl0910.pdf). 

22 See, e.g., Comment by IAC/InterActiveCorp & 

HSN LLC (December 18,2006), at 3, available at 

(http://www.ftc.gov/os/comments/tsrrevisedcall

abandon/525547-00600.pdf.) 

This estimate is comprised of the 

following tasks: (1) one-time creation, 

recording, and implementation of a brief 

telephone script requesting a 

consumer’s agreement via a telephone 

keypad response;16 (2) modify or create 

electronic forms or agreements for use 

in emails to consumers or on a 

website;17 (3) one-time revision of any 

existing paper forms (e.g., credit card or 

loyalty club forms, or printed consumer 

contracts) to include a request for the 

consumer’s agreement to receive 

prerecorded calls;18 and (4) legal 

consultation, if needed, regarding 

compliance. 

Any remaining time needed to make 

the required opt-out disclosure for all 

prerecorded calls would pose no greater 

time increment, and arguably less, than 

a similar, pre-existing Federal 

Communications Commission 

disclosure provision that has been in 

effect since 1993.19 In any event, 

because this disclosure applies only to 

prerecorded calls, which are fully 

automated, no additional manpower 

hours would be expended in its 

delivery. 

Other: The revised standard for 

measuring the three percent call 

abandonment rate will not impose any 

new or affect any existing reporting, 

recordkeeping or third-party disclosure 

requirements within the meaning of the 

PRA. The amendment relaxes the 

present requirement that the 

abandonment rate be calculated on a 

‘‘per day per campaign’’ basis by 

permitting, but not requiring, its 

calculation over a 30-day period as 

requested by the industry. Sellers and 

telemarketers already have established 

automated recordkeeping systems to 

document their compliance with the 

current standard. The proposed 

amendment likely will reduce their 

overall compliance burden because it 

relaxes the current requirement. The 

current ‘‘per day’’ requirement has 

forced telemarketers to turn off their 

predictive dialers on many occasions 

when unexpected spikes in call 

abandonment rates occur late in the day, 

and thereby prevented realization of the 

cost savings that predictive dialers 

provide. 

Estimated incremental labor cost 

burden: $3,488,000, rounded 

Recordkeeping: As indicated above, 

staff estimates that existing sellers 

making use of prerecorded calls will 

require 16,753 hours, cumulatively, to 

comply with the amendment’s 

recordkeeping requirements during the 

final year of the current PRA clearance. 

Staff assumes that the aforementioned 

tasks will be performed by managerial 

and/or professional technical personnel, 

at an hourly rate of $38.93.20

Accordingly, incremental labor cost in 

the final year of the current clearance 

would be $652,194. 

Disclosure: Staff estimates that 

approximately 75% of the disclosurerelated tasks previously noted would be 

performed by managerial and/or 

professional technical personnel, again, 

at an hourly rate of $38.93, with 25% 

allocable to legal staff, at an hourly rate 

of $54.35.21

Thus, of the 66,292 total estimated 

disclosure burden hours, 49,719 hours 

would be attributable to managerial 

and/or professional technical personnel, 

with the remaining 16,573 hours 

attributable to legal staff. This yields 

$1,935,561 and $900,743, respectively, 

in labor cost—in total, $2,836,304. 

Cumulatively, for recordkeeping and 

disclosure, labor cost would total 

$3,488,498 for the final year of the 

current clearance. 

Other than the initial recordkeeping 

costs, the amendment’s written 

agreement requirement will impose de 

minimis costs, as discussed above. The 

one possible exception that might arise 

involves credit card or loyalty program 

agreements that retailers revise to 

request agreements from consumers to 

receive prerecorded calls. Retailers 

might have to replace any existing 

supplies of such agreements. Staff 

believes, however, that the one-year 

phase-in of the written agreement 

requirement will allow retailers to 

exhaust existing supplies of any such 

preprinted forms, so that no material 

additional cost would be incurred to 

print revised forms. 

Similarly, staff has no reason to 

believe that the amendment’s 

requirement of an automated interactive 

opt-out mechanism will impose other 

than de minimis costs, for the reasons 

discussed above. The industry 

comments on the amendment uniformly 

support the view that automated 

interactive keypress technologies are 

now affordable, cost-effective, and 

widely available.22 Moreover, most, if 

not all of the industry telemarketers 

who commented, including many small 

business telemarketers, said they are 

currently using interactive keypress 

mechanisms. Thus, it does not appear 

that this requirement will impose any 

material capital or other non-labor costs 

on telemarketers. 

David C. Shonka 

Acting General Counsel 

[FR Doc. E8–20775 Filed 9–8–08; 8:45 am] 

BILLING CODE 6750–01–S 

DEPARTMENT OF HEALTH AND 

HUMAN SERVICES 

Office of the National Coordinator for 

Health Information Technology; 

American Health Information 

Community Meeting 

ACTION: Meeting Announcement. 

SUMMARY: This notice announces the 

meeting date for the 24th meeting of the 

American Health Information 

Community in accordance with the 

Federal Advisory Committee Act (Pub. 

L. 92–463, 5 U.S.C., App.) The 

American Health Information 

Community will advise the Secretary 

and recommend specific actions to 

achieve a common interoperability 

framework for health information 

technology (IT). 

Meeting Date: September 23, 2008, 

from 8:30 a.m. to 3 p.m. (Eastern). 

ADDRESSES: Hubert H. Humphrey 

building (200 Independence Avenue, 

SW., Washington, DC 20201), The Great 

Hall/Lobby. 

SUPPLEMENTARY INFORMATION: The 

meeting will include a demonstration of 

the Nationwide Health Information 

Network (NHIN); an update on the AHIC 

mstockstill on PROD1PC66 with NOTICES