[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]
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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.
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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\
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\1\ See Fed. Trade Comm'n, Trade Regulation Rule on
Impersonation of Government and Businesses, https://www.regulations.gov/docket/FTC-2022-0064/comments.
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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).
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\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.
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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\
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\3\ 15 U.S.C. 57a(c)(2)(A).
\4\ Id. 57a(c)(2)(B).
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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\
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\5\ 16 CFR 1.11(b)(6).
\6\ Id. 1.11(e).
\7\ See id.
\8\ Id.
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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\
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\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.
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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\
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\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).
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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.
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\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.
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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\
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\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).
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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.
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\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.
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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.
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\25\ Id. 1.12(c).
\26\ See id.
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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
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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