[Federal Register Volume 88, Number 61 (Thursday, March 30, 2023)]
[Proposed Rules]
[Pages 19024-19026]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-06537]


=======================================================================
-----------------------------------------------------------------------

FEDERAL TRADE COMMISSION

16 CFR Part 461

RIN 3084-AB71


Trade Regulation Rule on Impersonation of Government and 
Businesses

AGENCY: Federal Trade Commission.

ACTION: Initial notice of informal hearing; final notice of informal 
hearing; request for public comment and speakers.

-----------------------------------------------------------------------

SUMMARY: The Federal Trade Commission has proposed a trade regulation 
rule entitled ``Rule on Impersonation of Government and Businesses,'' 
which would prohibit the impersonation of government, businesses, or 
their officials. In response to the notice of proposed rulemaking, a 
commenter requested an informal hearing. The informal hearing will be 
conducted virtually on May 4, 2023, at 1 p.m. Eastern Time, and the 
presiding officer will be the Commission's Chief Administrative Law 
Judge, D. Michael Chappell.

DATES: Requests to speak at the informal hearing and any documentary 
submissions must be received by April 14, 2023. The informal hearing 
will be conducted virtually at 1 p.m. eastern time on May 4, 2023.

ADDRESSES: Interested parties may file a documentary submission online 
or on paper by following the instructions in the Submissions part of 
the SUPPLEMENTARY INFORMATION section below. Write ``Impersonation 
Informal Hearing, R207000'' on your documentary submission and file it 
online at https://www.regulations.gov.

FOR FURTHER INFORMATION CONTACT: Christopher E. Brown, [email protected], 
202-326-2825.

SUPPLEMENTARY INFORMATION: Following public comment on an advance 
notice of proposed rulemaking, 86 FR 72901, December 23, 2021, the 
Federal Trade Commission (``Commission'' or ``FTC'') proposed a Trade 
Regulation Rule on Impersonation of Government and Businesses as 
described in a notice of proposed rulemaking (``NPRM''), 87 FR 62741, 
October 17, 2022. Comments on the NPRM were accepted for 60 days, and 
78 comments were posted to the docket at https://www.regulations.gov.\1\
---------------------------------------------------------------------------

    \1\ See Fed. Trade Comm'n, Trade Regulation Rule on 
Impersonation of Government and Businesses, https://www.regulations.gov/docket/FTC-2022-0064/comments.
---------------------------------------------------------------------------

I. The Request for an Informal Hearing

    As the NPRM noted, if ``interested parties request to present their 
position orally, the Commission will hold an informal hearing, as 
specified in section 18(c) of the FTC Act, 15 U.S.C. 57a(c).'' \2\ The 
opportunity to make an oral statement at an informal hearing is 
afforded by section 18 of the Federal Trade Commission Act, 15 U.S.C. 
57a, and reflected in the Commission's Rules of Practice, 16 CFR 
1.11(e).
---------------------------------------------------------------------------

    \2\ Fed. Trade Comm'n, Notice of Proposed Rulemaking: Trade 
Regulation Rule on Impersonation of Government and Businesses, 87 FR 
62741, 62741 (Oct. 17, 2022), https://www.federalregister.gov/documents/2022/10/17/2022-21289/trade-regulation-rule-on-impersonation-of-government-and-businesses.
---------------------------------------------------------------------------

    The FTC Act provides that ``an interested person is entitled to 
present his position orally or by documentary submission (or both).'' 
\3\ It also provides that, ``if the Commission determines that there 
are disputed issues of material fact it is necessary to resolve,'' then 
an interested person is further entitled ``to present such rebuttal 
submissions and to conduct . . . cross-examination.'' \4\
---------------------------------------------------------------------------

    \3\ 15 U.S.C. 57a(c)(2)(A).
    \4\ Id. 57a(c)(2)(B).
---------------------------------------------------------------------------

    The Commission's Rules of Practice elaborate on how an interested 
person makes such a request. First, any NPRM issued under section 18 of 
the FTC Act must include an ``explanation of the opportunity for an 
informal hearing and instructions for submissions relating to such a 
hearing.'' \5\ Second, the ``Commission will provide an opportunity for 
an informal hearing if an interested person requests to present their 
position orally.'' \6\ The Commission can also hold an informal hearing 
on its own initiative.\7\ Third, any request for an informal hearing 
``must include: (1) A request to make an oral submission, if desired; 
(2) A statement identifying the interested person's interests in the 
proceeding; and (3) Any proposals to add disputed issues of material 
fact beyond those identified in the notice.'' \8\
---------------------------------------------------------------------------

    \5\ 16 CFR 1.11(b)(6).
    \6\ Id. 1.11(e).
    \7\ See id.
    \8\ Id.
---------------------------------------------------------------------------

    One comment, timely submitted by William MacLeod, makes such a 
request: ``I request an opportunity for interested parties to air their 
concerns at a hearing.'' \9\ Mr. MacLeod does not

[[Page 19025]]

expressly request to make an oral submission,\10\ but that requirement 
in the Rules of Practice is conditional (``if desired''), and the 
Commission will welcome an oral statement from him and from any other 
interested persons who request to make one in the manner described 
below. Mr. MacLeod identifies his interests in the proceeding as 
desiring that ``additional analysis'' will aid in developing ``an 
appropriately tailored rule.'' He states that his views ``are those of 
the author and do not necessarily reflect the views of'' anyone 
else.\11\ Mr. MacLeod discusses issues relating to the language of the 
proposed rule and the applicable legal standard. He does not raise or 
propose to add any disputed issues of material fact.\12\
---------------------------------------------------------------------------

    \9\ William MacLeod, Cmt. on NPRM, at 2 (Dec. 16, 2022), https://www.regulations.gov/comment/FTC-2022-0064-0078.
    \10\ See generally id.
    \11\ Id. at 2.
    \12\ See generally id.
---------------------------------------------------------------------------

    The Commission finds that Mr. MacLeod's comment represents an 
``adequate request'' \13\ and therefore will hold an informal hearing 
as described below.\14\ Because of Mr. MacLeod's explicit request and 
the Commission's resulting obligation to hold an informal hearing, the 
Commission issues this ``initial notice of informal hearing.'' 16 CFR 
1.12(a). Under the Commission's Rules of Practice, initial notices of 
informal hearing contain: the designation of the presiding officer; the 
time and place of the informal hearing; the ``final list of disputed 
issues of material fact necessary to be resolved during the hearing, if 
any''; a list of interested persons who will make oral presentations; 
and certain other determinations when there are designated issues of 
material fact.\15\
---------------------------------------------------------------------------

    \13\ NPRM, 87 FR at 42747.
    \14\ Because this is the first section 18 rulemaking held in 
several decades and comes after the first NPRM for a section 18 rule 
since the Commission's July 2021 streamlining of its Rules of 
Practice, 86 FR 38542, it may be useful to stress a few points. Any 
request for an informal hearing should identify any disputed issues 
of material fact, need not be long, and should identify the 
requester's interests in the proceeding. The Commission reserves the 
right to decline any request for participation that fails to 
disclose the requester's identity and interest in the proceeding. 
Lawyers and others who act on behalf of clients or other individuals 
or entities should expressly identify those whom they are 
representing with an interest in the proceeding--or disclaim, as Mr. 
MacLeod did, that they are acting on behalf of any client. The 
request does not need to be made by a lawyer or with any special 
degree of formality. It is useful, although not required, to 
describe why the requesters think the informal hearing is warranted, 
how they would participate, and a summary of their expected 
testimony. A comment from Americans for Prosperity Foundation stated 
that the Commission ``should'' hold an informal hearing. While this 
language falls short of an explicit request, the Commission may 
elect on its own initiative to hold an informal hearing, and 
therefore, finds American Prosperity Foundation's comment as further 
support to hold such a hearing in this matter. Ams. for Prosperity 
Found., Cmt. on NPRM, at 8 (Dec. 16, 2022), https://www.regulations.gov/comment/FTC-2022-0064-0062 (``For the foregoing 
reasons, the FTC should hold an informal public hearing soliciting 
additional public input, extend the comment period for at least 
another 30 days, and substantially revise its proposed rule to 
ensure the final Impersonation Rule complies with the Constitution, 
Section 5, and the Deception Statement.'').
    \15\ 16 CFR 1.12(a)(3).
---------------------------------------------------------------------------

II. Conduct of the Informal Hearing

    The Commission's Chief Presiding Officer designates the 
Commission's Chief Administrative Law Judge, D. Michael Chappell, to 
serve as the presiding officer of the informal hearing.\16\ Chief Judge 
Chappell will conduct the informal hearing virtually using video 
conferencing at 1 p.m. eastern time on May 4, 2023. The informal 
hearing will be available for the public to watch live from the 
Commission's website, https://www.ftc.gov, and a recording or 
transcript of the informal hearing will be placed in the rulemaking 
record.
---------------------------------------------------------------------------

    \16\ See 16 CFR 1.13(a)(1) (``the initial notice of informal 
hearing must designate a presiding officer, who will be appointed by 
the Chief Presiding Officer.''). As of this publication, the 
Commission's Chair is serving as Chief Presiding Officer under 
Commission Rule 0.8. 16 CFR 0.8.
---------------------------------------------------------------------------

    In a section 18 rulemaking proceeding, the NPRM must identify 
disputed issues of material fact, if any. After reviewing the comments, 
the Commission has identified no disputed issues of material fact 
necessary to be resolved at this informal hearing.\17\ In the NPRM, the 
Commission stated: ``Based on the comment record and existing 
prohibitions against impersonation of government and businesses under 
Section 5 of the FTC Act, the Commission does not here identify any 
disputed issues of material fact necessary to be resolved at an 
informal hearing. The Commission may still do so later, on its own 
initiative or in response to a persuasive showing from a commenter.'' 
\18\ The recent comment period did not identify any disputed issues of 
material fact. Comments about the construction and scope of the 
proposed rule raise issues of law and policy but no questions of 
``specific fact'' that might warrant cross-examination and rebuttal 
submissions.\19\ As such, the Commission remains of the view expressed 
in the NPRM that no disputed issues of material fact are necessary to 
be resolved. Because of that, the informal hearing will include no 
cross examination or rebuttal submissions.\20\ The Commission, however, 
has not determined whether, and if so in what form, to promulgate a 
final rule. Because there are no ``disputed issues of material fact'' 
to resolve at the informal hearing, the presiding officer of the 
hearing will make no recommended decision.\21\ His role is to preside 
over and ensure the orderly conduct of the informal hearing, including 
selecting the sequence in which oral statements will be heard, and then 
place the transcript and any additional written submissions received 
into the rulemaking record.\22\
---------------------------------------------------------------------------

    \17\ See 16 CFR 1.11(b)(5).
    \18\ NPRM, 87 FR at 62747.
    \19\ 16 CFR 1.12(b)(1).
    \20\ Id. 1.12(b) (``Cross-examination and rebuttal submissions 
at an informal hearing are available only to address disputed issues 
of material fact necessary to be resolved.'').
    \21\ Id. 1.13(d) (``The presiding officer's recommended decision 
will be limited to explaining the presiding officer's proposed 
resolution of disputed issues of material fact.'').
    \22\ See id. 1.13(a), (c).
---------------------------------------------------------------------------

    The Commission does not here publish a ``list of the interested 
persons who will make oral presentations'' at the informal hearing 
because no one, including Mr. MacLeod, made such a request in response 
to the NPRM.\23\ The Commission, however, elects to offer here an 
additional opportunity for interested persons to request to make oral 
statements.\24\ If no such requests are made, the presiding officer 
will state as much at the opening of the informal hearing and then 
close the hearing, placing any documentary submissions into the 
rulemaking record.
---------------------------------------------------------------------------

    \23\ Id. 1.12(a)(4).
    \24\ In the future, the Commission may limit oral statements to 
those who requested to make an oral statement in response to the 
NPRM, as provided for in the Rules of Practice.
---------------------------------------------------------------------------

    This initial notice of informal hearing also serves as the ``final 
notice of informal hearing.'' \25\ A final notice of informal hearing 
is limited in its substance to matters that arise only when the 
Commission designates disputed issues of material fact: who will 
conduct cross-examination; whether any interested persons with similar 
interests will be grouped together for such purposes; and who will make 
rebuttal submissions.\26\ Because cross-examination and submission of 
rebuttal evidence will not occur in this informal hearing, no separate 
final notice of informal hearing is necessary.
---------------------------------------------------------------------------

    \25\ Id. 1.12(c).
    \26\ See id.
---------------------------------------------------------------------------

III. Making an Oral Statement or Documentary Submission

    If you would like to make an oral statement, you should submit a 
comment on this rulemaking docket expressly requesting to make an oral 
statement. You must do so on or before April 14, 2023. Oral statements 
will be limited to five minutes, although they

[[Page 19026]]

may be supplemented by documentary submissions as described below. 
Transcripts of the oral statements will be placed in the rulemaking 
record. Interested persons who timely request to make an oral statement 
will be provided with instructions as to how to participate in the 
virtual hearing. Requesters who need assistance should indicate as much 
in their comment, and the Commission will endeavor to provide 
accommodations. Requesters without the computer technology necessary to 
participate in video conferencing will be able to participate in the 
informal hearing by telephone; they should indicate as much in their 
comments.
    You can also file a documentary submission online. For the 
Commission to consider your documentary submission, you must file it on 
or before April 14, 2023. Write ``Impersonation Informal Hearing, 
R207000'' on your submission. Your documentary submission--including 
your name and your state--will be placed on the public record of this 
proceeding, including on the website https://www.regulations.gov. To 
ensure that the Commission considers your online documentary 
submission, please follow the instructions on the web-based form.
    Because your documentary submission will be placed on the public 
record, you are solely responsible for making sure that it does not 
include any sensitive or confidential information. In particular, your 
documentary submission should not contain sensitive personal 
information, such as your or anyone else's Social Security number; date 
of birth; driver's license number or other state identification number 
or foreign country equivalent; passport number; financial account 
number; or credit or debit card number. You are also solely responsible 
for making sure your documentary submission does not include any 
sensitive health information, such as medical records or other 
individually identifiable health information. In addition, your 
documentary submission should not include any ``[t]rade secret or any 
commercial or financial information which . . . is privileged or 
confidential''--as provided in Section 6(f) of the FTC Act, 15 U.S.C. 
46(f), and Commission Rule 4.10(a)(2), 16 CFR 4.10(a)(2)--including, in 
particular, competitively sensitive information such as costs, sales 
statistics, inventories, formulas, patterns, devices, manufacturing 
processes, or customer names.
    Documentary submissions containing material for which confidential 
treatment is requested must be filed in paper form, must be clearly 
labeled ``Confidential,'' and must comply with Commission Rule 4.9(c), 
16 CFR 4.9(c). In particular, the written request for confidential 
treatment that accompanies the documentary submission must include the 
factual and legal basis for the request and must identify the specific 
portions to be withheld from the public record. See Commission Rule 
4.9(c). Your documentary submission will be kept confidential only if 
the General Counsel grants your request in accordance with the law and 
the public interest. Once your documentary submission has been posted 
publicly at https://www.regulations.gov--as legally required by 
Commission Rule 4.9(b), 16 CFR 4.9(b)--we cannot redact or remove it, 
unless you submit a confidentiality request that meets the requirements 
for such treatment under Commission Rule 4.9(c), and the General 
Counsel grants that request.
    Visit the FTC website to read this document and the news release 
describing it. The FTC Act and other laws that the Commission 
administers permit the collection of documentary submissions to 
consider and use in this proceeding as appropriate. The Commission will 
consider all timely and responsive documentary submissions it receives 
on or before April 14. For information on the Commission's privacy 
policy, including routine uses permitted by the Privacy Act, see 
https://www.ftc.gov/siteinformation/privacypolicy.

IV. Communications by Outside Parties to the Commissioners or Their 
Advisors

    Under Commission Rule 1.18(c)(1), 16 CFR 1.18(c)(1), the Commission 
has determined that communications with respect to the merits of this 
proceeding from any outside party to any Commissioner or Commissioner 
advisor will be subject to the following treatment: Written 
communications and summaries or transcripts of all oral communications 
must be placed in the rulemaking record. Unless the outside party 
making an oral communication is a Member of Congress, communications 
received after the close of the public-comment period are permitted 
only if advance notice is published in the Weekly Calendar and Notice 
of ``Sunshine'' Meetings.

    By direction of the Commission.
April J. Tabor,
Secretary.
[FR Doc. 2023-06537 Filed 3-29-23; 8:45 am]
BILLING CODE 6750-01-P