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transaction with the adoption of 

mitigation measures. 

Authorizations and Mitigations 

27. In what instances would granting 

a temporary authorization to engage in 

an otherwise prohibited transaction 

under a proposed rule be necessary and 

in the interest of the United States to 

avoid supply chain disruptions or other 

unintended consequences? 

28. What review criteria should BIS 

implement when considering an 

application for a temporary 

authorization? 

29. What specific standards, 

mitigation measures, or cybersecurity 

best practices should BIS consider when 

evaluating the appropriateness of a 

requested authorization? 

30. Are there any U.S. government 

models, such as the Office of Foreign 

Assets Control’s sanctions programs or 

the Export Administration Regulations, 

that this program should consider 

emulating in granting authorizations? 

Economic Impact 

31. What economic impacts to U.S. 

businesses or the public, if any, might 

be associated with the regulation of 

ICTS integral to CVs contemplated by 

this ANPRM? If responding from 

outside the United States, what 

economic impacts to local businesses 

and the public, if any, might be 

associated with regulations of ICTS 

integral to CVs? 

32. What, if any, anticompetitive 

effects may result from regulation of 

ICTS that is integral to CVs as 

contemplated by this ANPRM? And 

what, if anything, can be done to 

mitigate the anticompetitive effects of 

regulation of ICTS? 

33. What types of U.S. businesses or 

firms (e.g., small businesses) would 

likely be most impacted by the program 

contemplated in this ANPRM? If 

responding from outside the United 

States, what types of local businesses or 

firms (e.g., small businesses) would 

likely be most impacted by the program 

contemplated in this ANPRM? 

34. What actions can BIS take, or 

provisions could it add to any proposed 

regulations, to minimize potential costs 

borne by U.S. businesses or the public? 

If responding from outside the United 

States, what actions can BIS take, or 

what provisions could it add to any 

proposed regulations, to minimize 

potential costs borne by local businesses 

or the public? 

35. What new due diligence, 

compliance, and recordkeeping controls 

will U.S. persons anticipate needing to 

undertake to comply with any proposed 

regulations regarding ICTS integral to 

CVs that are designed, developed, 

manufactured, or supplied by persons 

owned by, controlled by, or subject to 

the jurisdiction or direction of 15 CFR 

7.4 entities? 

Elizabeth L.D. Cannon, 

Executive Director, Office of Information and 

Communications Technology and Services. 

[FR Doc. 2024–04382 Filed 2–29–24; 8:45 am] 

BILLING CODE 3510–33–P 

FEDERAL TRADE COMMISSION 

16 CFR Part 461 

RIN 3084–AB71 

Trade Regulation Rule on 

Impersonation of Government and 

Businesses 

AGENCY: Federal Trade Commission. 

ACTION: Supplemental notice of 

proposed rulemaking; request for public 

comment. 

SUMMARY: The Federal Trade 

Commission (FTC or Commission) 

requests public comment on its proposal 

to amend the trade regulation rule 

entitled Rule on Impersonation of 

Government and Businesses 

(Impersonation Rule or Rule) to revise 

the title of the Rule, add a prohibition 

on the impersonation of individuals, 

and extend liability for violations of the 

Rule to parties who provide goods and 

services with knowledge or reason to 

know that those goods or services will 

be used in impersonations of the kind 

that are themselves unlawful under the 

Rule. The Commission believes these 

changes are necessary and such 

impersonation is prevalent, based on all 

comments it received on the Rule and 

other information discussed in this 

document. The Commission now 

solicits written comment, data, and 

arguments concerning the utility and 

scope of the proposed revisions to the 

Impersonation Rule. 

DATES: Comments must be received on 

or before April 30, 2024. 

ADDRESSES: Interested parties may file a 

comment online or on paper by 

following the instructions in the 

Comment Submissions part of the 

SUPPLEMENTARY INFORMATION section 

below. Write ‘‘Impersonation SNPRM, 

R207000’’ on your comment and file 

your comment online at https://

www.regulations.gov. If you prefer to 

file your comment on paper, mail your 

comment to the following address: 

Federal Trade Commission, Office of the 

Secretary, 600 Pennsylvania Avenue 

NW, Mail Stop H–144 (Annex I), 

Washington, DC 20580. 

FOR FURTHER INFORMATION CONTACT: 

Claire Wack, cwack@ftc.gov, (202–326– 

2836). 

SUPPLEMENTARY INFORMATION: The 

Commission invites interested parties to 

submit data, views, and arguments on 

the proposed amendments to the 

Impersonation Rule and, specifically, on 

the questions set forth in Section VIII of 

this supplementary notice of proposed 

rulemaking (‘‘SNPRM’’). The comment 

period will remain open until April 30, 

2024. To the extent practicable, all 

comments will be available on the 

public record and posted at the docket 

for this rulemaking on https://

www.regulations.gov. 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). 

Any request for an informal hearing 

must be submitted as a written comment 

within the comment period and must 

include: (1) a request to make an oral 

submission, if desired; (2) a statement 

identifying the person’s interests in the 

proceeding; and (3) any proposals to 

add disputed issues of material fact that 

need to be resolved during the hearing. 

See 16 CFR 1.11(e). Any comment 

requesting an informal hearing should 

also include a statement explaining why 

an informal hearing is warranted and a 

summary of any anticipated oral or 

documentary testimony. If the comment 

identifies disputed issues of material 

fact, the comment should include 

evidence supporting such assertions. If 

the Commission schedules an informal 

hearing, either on its own initiative or 

in response to request by an interested 

party, the FTC will publish a separate 

document notifying the public pursuant 

to 16 CFR 1.12(a) (‘‘initial notice of 

informal hearing’’). 

I. Background 

A. Trade Regulation Rule on 

Impersonation of Government and 

Business 

Published elsewhere in this issue of 

the Federal Register is the 

Commission’s final Trade Regulation 

Rule entitled ‘‘Rule on Impersonation of 

Government and Business,’’ 

promulgated under the authority of 

section 18 of the FTC Act, 15 U.S.C. 

57a(b)(2); the provisions of Part 1, 

Subpart B, of the Commission’s Rules of 

Practice, 16 CFR 1.7–1.20; and the 

Administrative Procedure Act 

(‘‘Impersonation Rule’’ or ‘‘Rule’’). This 

authority permits the Commission to 

promulgate, modify, or repeal trade 

regulation rules that define with 

specificity acts or practices that are 

unfair or deceptive in or affecting 


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commerce within the meaning of 

section 5(a)(1) of the FTC Act, 15 U.S.C. 

45(a)(1). 

Promulgation of this Rule followed 

publication of an Advance Notice of 

Proposed Rulemaking (ANPR) on 

December 23, 2021,1 and a Notice of 

Proposed Rulemaking on October 17, 

2022 (NPRM).2 On March 30, 2023, the 

Commission published an Initial Notice 

of Informal Hearing,3 and on May 4, 

2023, Chief Administrative Law Judge 

D. Michael Chappell presided over the 

informal hearing,4 which was viewable 

live from the Commission’s website, 

https://www.ftc.gov. Because there were 

no disputed issues of material fact to 

resolve, the informal hearing included 

no cross examination or rebuttal 

submissions, and the presiding officer 

made no recommended decision. 

B. Need for a Supplemental Notice of 

Proposed Rulemaking as to 

Impersonation of Individuals and 

Liability for Provision of Goods and 

Services Used in Impersonation Scams 

Based on the comments in response to 

the ANPR, NPRM, Notice of Informal 

Hearing, and Informal Hearing, as well 

as the Commission’s history of 

enforcement and reports to the 

Commission from consumers and other 

sources, as discussed in Section V 

below, the Commission has reason to 

believe the deceptive or unfair 

impersonation of individuals and other 

parties not currently addressed by the 

Impersonation Rule is prevalent and 

taking comments on additional 

proposed provisions is in the public 

interest. 

Additionally, as stated in the 

Statement of Basis and Purpose for the 

Rule, Question 6 of the NPRM asked for 

comments on whether the final rule 

should contain a prohibition against 

providing the means and 

instrumentalities for violations against 

government or business impersonation.5

As summarized in this document, the 

Commission received more than 20 

comments that expressly addressed this 

question, and many of the sentiments 

reflected in these comments were also 

echoed by several commenters that 

presented oral statements at the 

Informal Hearing.6 Based upon the 

comments received in connection with 

the proposed provision regarding means 

and instrumentalities, the Commission 

decided that the specific provision 

warranted further analysis and 

consideration, and the Commission 

declined to adopt what was then 

proposed 16 CFR 461.4. Instead, the 

Commission stated it would continue to 

consider the issue, including soliciting 

additional comment. This SNPRM 

discusses the comments the 

Commission received on this proposed 

section. It also discusses how the 

comments submitted in response to the 

Commission’s earlier requests for 

comment informed the Commission’s 

current proposals to (1) rename the 

Impersonation Rule the ‘‘Rule on 

Impersonation of Government, 

Businesses, and Individuals;’’ (2) 

include a definition of ‘‘individual’’ in 

the Rule; (3) amend the Rule to include 

a prohibition of impersonation of 

individuals; and (4) extend liability to 

parties who provide goods and services 

with knowledge or reason to know that 

those goods or services will be used in 

impersonations of the kind that are 

themselves unlawful under the Rule, as 

amended. The Commission also poses 

specific questions for comment. Finally, 

the SNPRM provides the proposed 

amended text of the Rule. 

II. Summary of Comments to ANPR 

The Commission published the ANPR 

on December 23, 2021, and took 

comments for 60 days. The Commission 

invited the public to comment on any 

issues or concerns the public believes 

are relevant or appropriate to the 

Commission’s consideration of the 

proposed rule and also posed 13 

specific questions for the public.7

Relevant to this SNPRM, the 

Commission solicited public comment 

on the prevalence and methods of 

impersonation of individuals or entities 

other than governments and businesses 

in interstate commerce and whether and 

how individuals and entities provide 

the means and instrumentalities used in 

the impersonation of government, 

businesses, and individuals.8

The Commission received 164 timely 

and unique comments in response to the 

ANPR, which are publicly available on 

this rulemaking’s docket at https://

www.regulations.gov/docket/FTC-2021- 

0077/comments.9 No commenter 

expressed the view that the Commission 

should not commence this rulemaking. 

Most comments—140—came from 

individual consumers. Ten comments 

were submitted by businesses,10 11 by 

trade associations,11 and three by 

government agencies.12

A. Comments About the Impersonation 

of Individuals 

Seven commenters discussed the 

significant impact of impersonation of 

individuals or parties other than 

government or businesses. NAAG stated 

that State consumer protection agencies 

receive thousands of complaints 

annually regarding imposter scams that 

do not fit into government or business 

impersonation, for example grandparent 

or romance scams, and that ‘‘data from 

state consumer protection agencies 

suggests that these scams are only 

becoming more common.’’ 13 WMC 

Global, a cybersecurity company, listed 

executive impersonation, public figure 

impersonation, and political 

impersonation as categories of 

individual impersonation of which it is 

aware.14 It identified Short Message 

Services (‘‘SMS’’), email, social media, 

and voice calls as primary methods used 

by impersonators in contacting 

consumers.15

In addition to those categories of 

impersonation of individuals, multiple 

individual commenters recounted their 

personal experience with impersonation 

of real or fictitious individuals. One 

individual commenter reported 

receiving a call from an individual 

falsely posing as her grandson and 

requesting bail money and stated, ‘‘it is 

very easy to give them a lot of money 

because they [ ] sound so true and 

reliable and all that and they are just 

taking money from elderly people hand 

over fist.’’ 16 Another consumer, 

identified as a victim to a romance 

scam, stated ‘‘I feel like nothing can be 

trusted anymore on the internet and 

victims are left picking up their pieces 

of their life and there is zero 

accountability in catching these 

crooks.’’ 17

B. Comments About the Means and 

Instrumentalities of Impersonation 

Six commenters addressed the 

Commission’s questions regarding 

individuals or entities that provide the 

means and instrumentalities for 

impersonators to conduct such 

practices, and the goods and services 

those individuals or entities provide. 

NAAG asserted impersonators ‘‘often 

use other companies’ products and 

services to execute their scams,’’ such as 

‘‘marketing companies, call centers, 

attorneys, third-party mailing services, 

payment processors, lead list providers, 

remote offices . . . [d]ating websites, 

and social media . . . .’’ 18 It also 

addressed the Commission’s question 

regarding the circumstances under 

which the provision of means and 

instrumentalities should be considered 

deceptive or unfair, opining that ‘‘when 

an entity provides substantial assistance 

or support to impersonators and knows 

or should have known that their 

products [or] services are being used in 

a fraudulent impersonation scheme, that 

company could also be held liable 

under the proposed impersonation 

rule.’’ 19

Apple, Inc., submitted a comment 

urging the Commission to adopt a rule 

targeting bad actors and their 


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‘‘facilitators’’ that are engaging in 

impersonation fraud without stifling 

legitimate business activity.20 Apple 

stated that impersonators who have 

obtained stolen gift cards use gray 

markets 21 to sell the items purchased 

with those cards, making it harder for 

consumers to detect the fraud.22 Apple 

stated that gray markets are primary 

‘‘means and instrumentalities’’ that 

impersonators use to conduct their 

scams.23

Microsoft stated that scammers 

typically rely on payment processors to 

receive money from victims of 

impersonation scams.24 They also 

utilize affiliate marketing services to 

advertise to consumers through 

malicious ads and pop-up windows.25

Erik M. Pelton & Associates 

(‘‘EMP&A’’), a trademark law firm in 

Virginia, identified several types of 

entities that may provide the means and 

instrumentalities for trademark 

scammers, including landlords 

providing office space, mail services, 

the U.S. Postal Service, ‘‘various banks 

and payment processing services,’’ and 

domain registrars and website hosting 

services that host bad actors’ websites.26

EMP&A also stated that provision of 

these goods and services ‘‘should be 

considered deceptive or unfair 

following a procedure for putting 

service providers on notice of the fact 

that they are unwittingly enabling 

scammers . . . If scammers are denied 

these means and instrumentalities, it 

will become difficult for the scams to be 

profitable and hopefully they will cease 

operation.’’ 27

USTelecom, a trade association 

representing the broadband technology 

industry, recommended liability for 

‘‘individuals or entities that provide the 

means and instrumentalities for 

impersonators . . . such as how the FTC 

has used the [Telemarketing Sales Rule] 

against robocall enablers,’’ but noted 

that the proposed rule ‘‘should make 

clear that liability . . . requires proof of 

knowledge of such fraud or conscious 

avoidance of it, consistent with FTC 

precedent and [Telemarketing Sales 

Rule] and Section 5 jurisprudence.’’ 28

Somos, Inc., which manages registry 

databases for the telecommunications 

industry, similarly encouraged the 

‘‘[p]rosecution of . . . those knowingly 

aiding and abetting’’ impersonated tollfree numbers.’’ 29

III. Summary of Comments to NPRM 

The Commission published the NPRM 

on October 17, 2022.30 In the NPRM, the 

Commission concluded that there is 

reason to believe that impersonation of 

government, businesses, and their 

officials or agents is prevalent.31 The 

Commission identified no disputed 

issues of material fact based on the 

comment record; explained its 

considerations in developing the 

proposed rule; solicited additional 

public comment thereon, including 

posing specific questions designed to 

assist the public in submitting 

comment; and provided interested 

parties the opportunity to request to 

present their positions orally at an 

informal hearing.32 Finally, the NPRM 

set out the Commission’s proposed 

regulatory text. 

The Commission received 78 

comments in response to the NPRM 

from a diverse group of individuals, 

industry groups and trade associations, 

consumer organizations, and 

government agencies.33 The majority of 

comments generally supported the rule 

as proposed in the NPRM, but some 

comments raised concerns and 

recommended specific modifications or 

additions to the proposed rule. 

A. Comments About Individual 

Impersonations 

The Commission received six 

comments in response to the NPRM that 

specifically addressed the 

impersonation of individuals or entities 

other than government and businesses. 

A group of Rutgers Law School students 

urged inclusion of a prohibition on 

impersonation of individuals and cited 

an Elder Fraud Report issued by the 

Federal Bureau of Investigation, stating 

that ‘‘victims over 60 of confidence 

fraud and romance scams have steadily 

increased by approximately 30% since 

2019.’’ 34 AIM, the European Brands 

Association, and the Recording Industry 

Association of America (‘‘RIAA’’), also 

provided comment in support of 

inclusion of a prohibition on 

impersonating individuals.35 The 

American Association of Retired 

Persons (‘‘AARP’’) strongly urged the 

inclusion of a prohibition on 

impersonation of individuals or entities 

other than governments and businesses, 

noting that romance scams, which ‘‘rely 

on the criminal making the target 

believe they are in a trusted love 

relationship to steal from them,’’ 

resulted in losses reported to AARP of 

over $500 million in 2021 (which the 

AARP believed to be ‘‘a vast 

undercount’’ of harm).36 AARP 

additionally stated that its Fraud Watch 

Helpline received more than 100,000 

calls ‘‘ranging from targets who report 

scams they avoided, consumers trying to 

determine if something is legitimate, 

and from victims and their family 

members.’’ 37

The Electronic Privacy Information 

Center and other consumer and privacy 

advocacy organizations strongly urged 

the Commission to include 

impersonations of individuals in the 

rule.38 The Electronic Privacy 

Information Center noted that ‘‘the 

actual number of reported losses from 

romance and other familial scams are 

not as high as those reported to be 

caused by the government and business 

imposters,’’ but because of the ‘‘personal 

nature’’ of individual impersonation 

scams, ‘‘it is highly likely that many 

fewer victims of these scams actually 

make reports to government and other 

agencies about the devastating losses 

they have suffered.’’ 39 Finally, NCTA— 

The internet and Television Association 

(‘‘NCTA’’) noted that its member 

companies ‘‘have seen an increase in 

sophisticated ‘RES IP’ scams to 

impersonate customers online and route 

traffic through their home networks and 

residential IP addresses.’’ 40

B. Comments About the Means and 

Instrumentalities of Impersonation 

Twenty-two comments expressly 

addressed Question 6 of the NPRM, 

which asked whether the final rule 

should contain a prohibition against 

providing the means and 

instrumentalities for violations against 

government or business 

impersonation.41 Most of the 

commenters expressed support for the 

inclusion of a means and 

instrumentalities provision, some with 

modification, while two expressed 

concerns with the inclusion of such a 

prohibition. 

Of the commenters supporting 

inclusion of a means and 

instrumentalities prohibition, three of 

the commenters encouraged the 

Commission to finalize the text of the 

proposed rule without modification.42

These comments argued that inclusion 

of means and instrumentalities liability 

would help combat impersonation 

schemes perpetrated by foreign-based 

scammers that are outside of U.S. court 

jurisdiction but obtain services from 

U.S.-based entities such as payment 

processors and internet service 

providers.43

Most commenters who addressed 

Question 6 of the NPRM expressed their 

support for means and instrumentalities 

liability but recommended certain 

modifications. Some expressed concerns 

that the proposed language could be 

read too broadly.44 Others expressed 

concern that without a specific scienter 

or knowledge requirement, the proposed 

provision runs the risk of imposing 

strict liability against third parties who 

supply goods or services with no 

knowledge that those goods or services 

would be used in the commission of 


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unlawful impersonations.45

Accordingly, several commenters urged 

the Commission to clarify the scope of 

means and instrumentalities liability or 

explicitly include a knowledge 

requirement in the final rule 

provision.46

For example, the Consumer 

Technology Association (‘‘CTA’’), a 

trade association representing the U.S. 

consumer technology industry, stated 

that the Commission’s explanation and 

examples of the ‘‘means and 

instrumentalities’’ provision in the 

NPRM, which seem to limit its 

applicability, are ‘‘not squarely reflected 

in the text of the proposed rule.’’ 47 CTA 

urged the FTC to limit the bounds of 

‘‘means and instrumentalities’’ in the 

text of the rule ‘‘to entities that have 

knowledge or consciously avoid 

knowing that they are making 

representations being used to commit 

impersonation fraud.’’ 48 Somos, in its 

comment, supported the inclusion of a 

means and instrumentalities provision, 

but added that ‘‘those involved must 

knowingly be aiding and abetting the 

impersonation fraud.’’ 49

USTelecom urged the Commission to 

‘‘adjust the proposed language in § 461.4 

to codify the requirement that the 

person has knowledge or reason to 

expect it is providing the means and 

instrumentalities’’ (emphasis in 

original).50 USTelecom argued that such 

modification would ‘‘help to avoid 

confusion about the new rule’s scope 

and application with regards to 

intermediaries that, by no fault of their 

own and by nature of the services they 

offer, were unintentional conduits for 

impersonation fraud.’’ 51 EMP&A 

similarly stated that it supported adding 

‘‘that the party must have known or 

should have known that it was 

providing a means or instrumentality to 

facilitate a scam’’ because without such 

modification ‘‘parties could be held 

liable even if they had no intention to 

facilitate the scam.’’ 52

The American Bar Association 

Section of Intellectual Property Law 

argued that ‘‘there should be an explicit 

requirement that parties at least knew or 

should have known that they were 

providing the means or 

instrumentalities’’ for unlawful 

impersonation, and suggested that the 

Commission could ‘‘explicitly include 

the language referenced in the [NPRM] 

from Shell Oil Co., 128 F.T.C. 749 

(1999)—acting with ‘knowledge or 

reason to expect that consumers may 

possibly be deceived as a result.’ ’’ 53

CTIA, an industry group that represents 

the U.S. wireless communications 

industry, argued that the NPRM would 

make liable parties ‘‘providing means 

and instrumentalities to another entity 

only where the resulting fraud is a 

predictable consequence of those 

actions’’ and that ‘‘the proposed rule 

will appropriately target those actors 

with malicious intent, while avoiding 

‘unduly burdening or stifling legitimate 

business activities,’ or punishing ‘an 

innocent entity whose ordinary course 

of work brought it—unknowingly—into 

contact with a bad actor.’ ’’ 54

Other commenters argued that 

inclusion of a scienter requirement is a 

necessary but insufficient modification 

of the proposed language to impose 

means and instrumentalities liability. 

For example, NCTA argued that 

‘‘liability requires both providing 

deceptive means and instrumentalities, 

e.g., providing false or misleading 

claims or counterfeit items, and actual 

knowledge that the deceptive 

representations or goods will be used to 

commit impersonation violations.’’ 55

Likewise, the Messaging, Malware and 

Mobile Anti-Abuse Working Group 

(‘‘M3AAWG’’) advocated that, in 

addition to a ‘‘knowledge or reason-toknow test,’’ primary liability under the 

NPRM’s proposed § 461.4 should also 

require that the provision of such means 

and instrumentalities be done willfully 

or in bad faith, and with clear intent and 

specific knowledge.56

A few commenters urged the 

Commission to adopt a final rule that 

explicitly recognizes specific or defined 

‘‘means and instrumentality’’ violations 

perpetrated in connection with 

impersonation frauds, such as the use of 

legal process documents,57 manipulated 

media technologies (i.e., deepfakes),58 or 

failure to disclose WHOIS data.59

Two commenters expressed broad 

concerns with the proposed language of 

the means and instrumentalities 

prohibition in the NPRM. First, the 

Americans for Prosperity Foundation 

(‘‘AFPF’’) stated that the proposed rule, 

as drafted, ‘‘fails to provide regulated 

parties with constitutionally adequate 

notice of required or prohibited 

conduct, particularly with respect to the 

proposed ‘means and instrumentalities’ 

prohibition.’’ 60 AFPF argued that the 

proposed provision as proposed is 

untethered to the Commission’s 

authority under section 5 as, in AFPF’s 

view, it neither required the 

Commission to prove any of the 

elements of deception nor contained a 

scienter requirement.61 AFPF suggested 

that the Commission ‘‘not only tether 

violations to Section 5’s text . . . , but 

also define with specificity the universe 

of prohibited conduct . . . [and] also 

revise the proposed rule to make clear 

that only conduct that a reasonable 

person would know is fraudulent or 

dishonest may be subject to civil 

penalties.’’ AFPF requested a 

supplemental NPRM or an additional 30 

days of comment and additionally 

requested the Commission hold an 

informal public hearing to receive 

additional public input.62 Second, 

William MacLeod cited concerns that 

the proposed rule left ‘‘unresolved 

questions of how the Commission 

would apply’’ the proposed means and 

instrumentalities provision.63 Mr. 

MacLeod stated his belief that the 

rulemaking process would benefit from 

‘‘an opportunity for interested parties to 

exchange ideas’’ and accordingly 

requested a hearing.64

IV. Summary of Comments in Response 

to Notice of Hearing and Statements at 

Hearing 

On March 30, 2023, the Commission 

published an Initial Notice of Informal 

Hearing.65 In response to the Notice of 

Informal Hearing, the Commission 

received 28 comments, which are 

publicly available on this rulemaking’s 

docket at https://www.regulations.gov/ 

docket/FTC-2023-0030/comments, 

including 13 requests to make oral 

statements.66 One comment in response 

to the Notice of Informal Hearing was 

relevant to this SNPRM, and eight 

commenters at the informal hearing 

provided testimony relevant to this 

SNPRM. 

The American Bankers Association 

urged adoption of the means and 

instrumentalities provision without 

requesting any modifications.67

However, the other commenters who 

addressed the means and 

instrumentalities provision expressed 

concern that the proposed language in 

the NPRM did not explain the 

circumstances under which the 

Commission would apply that 

prohibition. Some suggested alternative 

language imposing a scienter 

requirement to narrow the scope of this 

provision.68


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In addition to his request to make an 

oral statement at the hearing, William 

MacLeod expressed in his comment to 

the Notice of Informal Hearing his 

concern that the proposed means and 

instrumentalities prohibition in the 

NPRM did not include any knowledge 

standard and requested that the final 

rule ‘‘explain the definitions and 

limitations of [means and 

instrumentalities] as the Commission 

intends to apply it.’’ 69 In his oral 

testimony at the informal hearing, Mr. 

MacLeod reiterated his request for 

further clarification that ‘‘providing the 

means and instrumentalities doesn’t 

. . . automatically expose everyone 

involved, from the actors to the ISPs to 

civil penalties. People unaware of a 

fraud should not face massive liability 

for it.’’ 70

The CTA expressed strong support for 

the NPRM but also concern that the 

prohibition on providing means and 

instrumentalities did not ‘‘include a 

knowledge requirement and could be 

misinterpreted to impose strict liability’’ 

on unwitting third parties.71 USTelecom 

requested that the Commission clarify 

‘‘that liability for providing the means 

and instrumentalities of the illegal 

impersonation only attaches when a 

person has knowledge or reason to 

expect it is providing such a means and 

instrumentalities,’’ so there is no 

confusion regarding the liability of 

‘‘unknowingly unintentional conduits 

for impersonation fraud.’’ 72 Neil 

Chilson, a senior research fellow at the 

Center for Growth and Opportunity at 

Utah State University, also requested 

that the prohibition against providing 

means and instrumentalities include a 

knowledge requirement for liability.73

The Voice on the Net Coalition 

(‘‘VON’’), an internet communication 

trade association, urged that the means 

and instrumentalities provision be 

modified to require knowledge before 

liability is imposed.74 VON further 

asserted that the ‘‘liability standard 

should be based on knowledge and the 

lack of action to prevent fraudulent 

activity by upstream providers or 

customers.’’ 75 INCOMPAS, which 

represents communications and 

technology companies offering 

broadband video and data offerings, also 

urged a liability standard ‘‘based on 

knowledge and the lack of action to 

prevent fraudulent activity by upstream 

providers for customers.’’ 76 NCTA 

urged the Commission to ‘‘explicitly 

incorporate the fundamental elements of 

both actual knowledge and deception’’ 

into any final rule imposing means and 

instrumentalities liability.77 NCTA also 

urged that the final rule’s application of 

means and instrumentalities liability 

only apply where ‘‘inherently deceptive 

means and instrumentalities’’ are 

provided.78

V. Reasons for the Proposed 

Amendments to the Impersonation Rule 

The Commission believes the 

proposed amendments set out in this 

SNPRM will improve its ability to 

combat impersonation fraud and could 

provide significant benefits to those 

harmed by impersonators, while 

strengthening deterrence against such 

fraud in the first instance. Further, the 

Rule as amended would not impose new 

burdens on honest individuals or 

businesses. 

A. Need for and Objectives of the 

Proposed Amendments to the 

Impersonation Rule 

The Commission’s objective for 

proposing these amendments to the 

Rule is to more effectively and 

efficiently redress consumers harmed by 

impersonation schemes and to more 

effectively address the types of unlawful 

impersonation affecting consumers. 

1. Accessing Monetary Relief 

The Commission described in the 

ANPR and summarized in the NPRM 

how the 2021 U.S. Supreme Court 

decision in AMG 79 changed the legal 

landscape and made it significantly 

more difficult for the Commission to 

obtain monetary relief, including 

consumer redress.80 Post-AMG, the 

Commission must rely in large part on 

section 19 of the FTC Act, which 

provides two paths for consumer 

redress. On the first path, following 

issuance of a complaint by the 

Commission, agency staff must litigate 

the case before an Administrative Law 

Judge through the agency’s 

administrative process, leading to the 

Commission’s issuance of a Final 

Decision.81 Following any 

reconsideration of the Commission’s 

final decision and any subsequent 

appeal to a federal Court of Appeals, the 

Commission must then file a new case 

in federal district court and establish 

that the defendant engaged in 

fraudulent or dishonest conduct.82 With 

a rule in effect, the Commission may 

avail itself of the second, shorter, path 

and directly seek consumer redress 

through a federal court action.83 Thus, 

this SNPRM’s proposed amendments 

covering impersonation of individuals 84

and those who with knowledge provide 

the means and instrumentalities to 

others to engage in impersonation of 

business, government, or individuals 

would allow the Commission to proceed 

more efficiently and effectively to 

protect consumers and obtain monetary 

relief. Because the Commission can seek 

civil penalties for rule violations, the 

proposed rule also should achieve better 

deterrence against bad actors.85

2. Impersonation of Individuals and 

Other Entities Not Covered by 

Government and Businesses 

Impersonation Rule 

This SNPRM proposes to prohibit the 

deceptive impersonation of individuals 

and would address conduct that is 

prevalent and harmful.86 Extending the 

Rule to cover impersonation of 

individuals, real or fictitious, will allow 

the Commission to more effectively 

remedy harm caused to consumers by 

romance scams, e.g., scammers posing 

as individuals interested in a romantic 

relationship to extract money or 

sensitive information from consumers.87

The SNPRM also would provide a way 

to remedy other relationship-based 

scams, such as grandparent scams 

where scammers pose as a grandchild in 

need of immediate financial assistance 

in an attempt to extract money from the 

consumers.88

Since issuance of the ANPR in 

December 2021, the FTC has received 

thousands to tens of thousands of 

complaints each quarter from 

consumers concerning romance scams 

or family and friend impersonations.89

According to data from complaints 

submitted to the Commission, the 

median dollar loss of consumers 

targeted by romance or family and 

friend impersonation ranged from 

$1,850 to $2,400 and $614 to $800, 

respectively, in the quarters since 

publication of the ANPR.90 These types 

of impersonation scams have a 

significant impact on older consumers 

as well. As noted in the Commission’s 

2021–2022 ‘‘Protecting Older 

Consumers’’ report, in 2021, the highest 

aggregate dollar losses reported by older 

adults were in the romance scam 

category, with a total reported loss of 

$213 million.91 Further, the individual 

losses caused by romance scams are 

outsized compared to other types of 

scams reported by older consumers, 

including other impersonation scams: 

the reported individual dollar loss by 

adults age 60 and over for romance 

scams was $5,100, compared to $658 for 

all fraud reports by consumers in that 

age group.92 In the Commission’s 2022– 

2023 ‘‘Protecting Older Consumers’’ 

report, the Commission found that 

‘‘[r]eported losses to romance scams by 

older adults increased 13%, topping the 

record levels seen in 2021.’’ 93

The revisions regarding 

impersonation of individuals proposed 

in this SNPRM will allow the 


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Commission to more effectively redress 

and protect consumers targeted by 

impersonation scams. Further, the 

SNPRM is designed to deter the 

perpetrators of such scams by exposing 

them to greater and more immediate 

monetary liability, including civil 

penalties. 

3. Means and Instrumentalities 

The SNPRM’s proposed means and 

instrumentalities provision 94 would 

allow the Commission to more fully 

provide redress for those consumers 

who have been targeted by any 

impersonation scam where a party knew 

or had reason to know that the goods 

and services they provided will be used 

for the purpose of impersonations in 

violation of the Rule. The Commission 

took into consideration those comments 

in response to the NPRM that urged the 

proposed means and instrumentalities 

provision be revised to include a 

knowledge component and clarify the 

scope of the provision. Accordingly, this 

SNPRM proposes § 461.5, ‘‘Provision of 

Goods or Services for Unlawful 

Impersonation Prohibited,’’ to clarify 

that ‘‘means and instrumentalities’’ 

liability attaches where a party provides 

goods and services used in 

impersonation in violation of the 

Impersonation Rule, and where that 

party has knowledge or reason to know 

that the goods or services the party 

provides will be used in impersonations 

of the kind that are themselves unlawful 

under the Rule.95 As with other Rule 

provisions this SNPRM’s proposed 

§ 461.5 is designed to deter the 

perpetrators of such scams by exposing 

them to greater and more immediate 

monetary liability, including civil 

penalties.96

B. Overview and Scope of Proposed 

Amendments to the Impersonation Rule 

The Commission proposes four 

revisions to the Impersonation Rule in 

this SNPRM. Each proposed revision 

will be discussed in order. First, 

because amendment of the Rule as 

proposed by the SNPRM would prohibit 

impersonation of individuals as well as 

businesses and government, the SNPRM 

proposes to change the title of the Rule 

to read ‘‘Rule on Impersonation of 

Government, Businesses, and 

Individuals.’’ Second, this SNPRM 

proposes to add a definition of 

‘‘Individual’’ in § 461.1 to mean ‘‘a 

person, entity, or party, whether real or 

fictitious, other than those that 

constitute a business or government 

under this Part.’’ The Commission 

proposes this definition of ‘‘individual’’ 

to make clear the type of impersonation 

that is prohibited by § 461.4. 

Third, proposed § 461.4, 

‘‘Impersonation of Individuals 

Prohibited,’’ prohibits the 

impersonation of individuals in 

connection with commerce, as 

commerce is defined in the Federal 

Trade Commission Act (15 U.S.C. 44). 

This provision mirrors the existing 

prohibitions in §§ 461.2 and 461.3, 

prohibiting impersonation of 

government and businesses, 

respectively. Those provisions 

themselves borrowed from existing rules 

and statutory definitions.97 As detailed 

in Section V.A.2. of this document, 

consumer complaints and the 

Commission’s experience, as well as the 

comments and other evidence cited 

herein, are replete with examples of 

impersonation of individuals. The 

proposed prohibition in § 461.4 would 

cover unlawful conduct by persons who 

misrepresent that they are or are 

affiliated with an individual, as defined 

in § 461.1, including but not limited to: 

(1) calling, messaging, or otherwise 

contacting a person or entity while 

posing as an individual or affiliate 

thereof, including by identifying an 

individual by name or by implication; 

(2) sending physical mail through any 

carrier using addresses, identifying 

information, or insignia or likeness of an 

individual; (3) creating a website or 

other electronic service or social media 

account impersonating the name, 

identifying information, or insignia or 

likeness of an individual; (4) creating or 

spoofing an email address using the 

name of an individual; (5) placing 

advertisements, including dating 

profiles or personal advertisements, that 

pose as an individual or affiliate of an 

individual; and (6) using an individual’s 

identifying information, including 

likeness or insignia, on a letterhead, 

website, email, or other physical or 

digital place.98

Fourth, proposed § 461.5, ‘‘Provision 

of Goods or Services for Unlawful 

Impersonation Prohibited,’’ makes it 

unlawful to provide goods or services 

with knowledge or reason to know that 

those goods or services will be used in 

impersonations of the kind that are 

themselves unlawful under the Rule. 

The NPRM proposed a similar 

provision, which referred to ‘‘means and 

instrumentalities,’’ but lacked a 

requirement to prove ‘‘knowledge or 

reason to know.’’ This SNPRM proposes 

modified language based on comments 

to the ANPR, NPRM, the informal 

hearing and the Commission’s 

experience, which support the addition 

of the above-mentioned knowledge 

requirement. 

As described in Section III.B., above, 

many commenters expressed concern or 

requested modification of the means 

and instrumentalities provision 

proposed in the NPRM. Some 

supportive commenters stated that the 

provision could be read too broadly.99

Other commenters argued that without 

a scienter or knowledge requirement, 

the proposed rule provision runs the 

risk of imposing strict liability against 

innocent and unwitting third-party 

providers.100 Accordingly, several 

commenters urged the Commission to 

clarify the scope of means and 

instrumentalities liability or explicitly 

include a knowledge requirement in the 

final rule provision.101

The Commission has carefully 

considered the comments and all 

concerns and proposals expressed in 

them. As noted in the NPRM, some 

commenters suggested that the 

Commission impose liability on a 

broader set of actors, namely those who 

assist and facilitate violations.102 The 

Telemarketing Sales Rule (‘‘TSR’’) 

imposed assisting-and-facilitating 

liability, a form of indirect liability 

authorized by the TSR’s authorizing 

statue.103 Sections 5 and 18 of the FTC 

Act, which authorize this Rule, contain 

no such authorizing language. However, 

a long line of case law describes a form 

of direct liability for a party who, 

despite not having direct contact with 

the injured consumers, ‘‘passes on a 

false or misleading representation with 

knowledge or reason to expect that 

consumers may possibly be deceived as 

a result.’’ 104 In other words: ‘‘One who 

places in the hands of another a means 

of consummating a fraud or competing 

unfairly in violation of the Federal 

Trade Commission Act is himself guilty 

of a violation of the Act.’’ 105

Accordingly, the Commission proposes, 

in § 461.5, expressly to impose liability 

on those who provide goods or services 

with knowledge or reason to know that 

those goods or services will be used in 

impersonations of the kind that are 

themselves unlawful under the Rule. 

C. The Rulemaking Process 

The Commission can decide to 

finalize this supplemental proposed rule 

if the rulemaking record, including the 

public comments in response to this 

SNPRM, supports such a conclusion. 

The Commission may, either on its own 

initiative or in response to a 

commenter’s request, engage in 

additional processes, which are 

described in 16 CFR 1.12 and 1.13. If the 

Commission on its own initiative 

decides to conduct an informal hearing, 

or if a commenter files an adequate 

request for such a hearing, then a 

separate notice will issue under 16 CFR 

1.12(a). Based on the comment record 


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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, i.e., in response to 

data or other evidence demonstrating 

that there is a genuine, bona fide 

dispute over material facts that will 

affect the outcome of the proceeding.106

VI. Paperwork Reduction Act 

In addition to the requirements of 

section 22, the Commission must 

provide in any NPRM the ‘‘information 

required by the Regulatory Flexibility 

Act, 5 U.S.C. 601–612, and the 

Paperwork Reduction Act, 44 U.S.C. 

3501–3520, if applicable.’’ 16 CFR 

1.11(c)(4). The Paperwork Reduction 

Act requires the Commission to engage 

in additional processes and analysis if it 

proposes to engage in a ‘‘collection of 

information’’ as part of the proposed 

rule. 44 U.S.C. 3506. The Commission 

states that this SNPRM contains no 

collection of information. 

VII. Preliminary Regulatory Analysis 

Under section 22 of the FTC Act, the 

Commission, when it publishes any 

NPRM, must include a ‘‘preliminary 

regulatory analysis.’’ 15 U.S.C. 57b– 

3(b)(1). The required contents of a 

preliminary regulatory analysis are (1) 

‘‘a concise statement of the need for, 

and the objectives of, the proposed 

rule,’’ (2) ‘‘a description of any 

reasonable alternatives to the proposed 

rule which may accomplish the stated 

objective,’’ and (3) ‘‘a preliminary 

analysis of the projected benefits and 

any adverse economic effects and any 

other effects’’ for the proposed rule and 

each alternative, along with an analysis 

‘‘of the effectiveness of the proposed 

rule and each alternative in meeting the 

stated objectives of the proposed rule.’’ 

15 U.S.C. 57b–3(b)(1)(A)–(C). This 

SNPRM already provided the concise 

statement of the need for, and the 

objectives of, this proposal in Item V.A 

above. It addresses the other 

requirements below. 

A. Reasonable Alternatives and 

Anticipated Costs 

The Commission believes that the 

benefits of proceeding with these 

proposals will significantly outweigh 

the costs, but it welcomes public 

comment and data (both qualitative and 

quantitative) on any benefits and costs 

to inform a final regulatory analysis. 

Critical to the Commission’s analysis is 

that these proposed amendments to the 

Rule would allow for monetary relief to 

victims of impersonations of individuals 

and also for the imposition of civil 

penalties against violators. Such results 

will provide benefits to consumers, as 

well as to the agency and its mission, 

without imposing any costs on 

consumers. It is difficult to quantify 

with precision all the benefits that 

would arise from amending the 

Impersonation Rule to include a 

prohibition on impersonation of 

individuals, but they can be described 

qualitatively. 

Consumers have reported 152,696 

instances of family and friend 

impersonation and associated total 

losses of approximately $339 million 

from 2019 through 2023.107 For romance 

scams, from 2019 through 2023, 

consumers reported being defrauded of 

roughly $4.978 billion in 307,370 

incidents.108 In 2022, older adults 

reported a 13% increase in losses to 

romance scammers, surpassing the 

record losses reported in 2021.109

Adopting the proposed amendments 

may make some of the losses 

experienced by future victims 

recoverable through consumer redress 

and also allow for the imposition of 

civil penalties.110

While providing the means and 

instrumentalities for such scams is 

already illegal under section 5, civil 

penalties cannot be imposed without 

the proposed amendments. Adopting 

the proposed amendments may also 

have a deterrence effect on 

impersonation scams and those 

providing the means and 

instrumentalities for such scams. 

Deterring plainly illegal conduct is 

challenging. Scholarship on deterrence 

suggests that the potential severity of 

consequences, such as civil penalties, is 

less likely to influence behavior than 

the perceived likelihood of detection 

and punishment.111 Still, a rule that 

makes it less likely that impersonators 

and those providing the means and 

instrumentalities for such scams get to 

keep their ill-gotten gains and more 

likely that they have to pay civil 

penalties can have deterrence effects, 

whatever their magnitude. And the 

publicity around any eventual 

amendments to the Rule could have the 

salutary effect of complementing the 

Commission’s consumer education work 

by elevating public awareness of these 

prevalent forms of fraud, which could 

increase how often they are detected 

and reported. 

B. Regulatory Flexibility Act—Initial 

Regulatory Flexibility Analysis 

The Regulatory Flexibility Act 

requires the Commission to prepare and 

make available for public comment an 

‘‘initial regulatory flexibility analysis’’ 

(‘‘IRFA’’) in connection with any NPRM. 

5 U.S.C. 603. An IRFA requires many of 

the same components as section 22 of 

the FTC Act and the Paperwork 

Reduction Act. The IRFA must 

furthermore contain, among other 

things, ‘‘a description of and, where 

feasible, an estimate of the number of 

small entities to which the proposed 

rule will apply.’’ 5 U.S.C. 603(b)(3). This 

and other requirements do not apply, 

however, whenever ‘‘the agency certifies 

that the rule will not, if promulgated, 

have a significant economic impact on 

a substantial number of small entities.’’ 

5 U.S.C. 605(b). 

The Commission certifies that the 

SNPRM will not have a significant 

economic impact on a substantial 

number of honest, small entities, and 

this document serves as notice to the 

Small Business Administration of the 

Commission’s certification. Because the 

deceptive impersonation of individuals 

is already prohibited by section 5 of the 

FTC Act, and section 5 similarly makes 

unlawful providing the means and 

instrumentalities for a violation of 

section 5 of the Act, the SNPRM would 

not change the state of the law in terms 

of what is legal and what is illegal. 

Furthermore, the proposed amendments 

to the Rule would impose no 

recordkeeping requirement and would 

not create or impose any compliance 

costs. The main changes arise for 

entities violating section 5 through the 

impersonation of individuals and by 

providing the means and 

instrumentalities for impersonations 

that would be unlawful under the Rule 

if this SNPRM is finalized as drafted. 

Adoption of the proposed amendments 

to the Rule would make such conduct 

a Rule violation in addition to being a 

section 5 violation. Such violators 

would no longer be immune from civil 

penalties for a first offence and could be 

ordered by a federal court to pay 

significant civil penalties and to provide 

redress to their victims. Adoption of the 

proposed amendments could, therefore, 

constitute a significant economic impact 

for law violators, but it is unlikely to 

affect a substantial number of small 

entities or individuals otherwise not 

engaging in conduct prohibited by 

section 5 or the SNPRM. The 

Commission believes that the vast 

majority of small entities and 

individuals do not deceptively 

impersonate individuals or knowingly 


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provide goods and services used in 

impersonating government, businesses, 

or individuals in a manner that would 

be unlawful under the provisions set out 

in this SNPRM. Furthermore, the 

Commission does not consider those 

small entities that are violating existing 

law to be among those Congress 

protected in enacting the additional 

procedural protections for small entities 

when agencies consider rulemaking. 

VIII. Request for Comments 

Members of the public are invited to 

comment on any issues or concerns they 

believe are relevant or appropriate to the 

Commission’s consideration of the 

SNPRM. The Commission requests that 

factual data or other evidence on which 

the comments are based be submitted 

with the comments, particularly if a 

commenter intends to dispute an issue 

of fact material to this rulemaking.112 In 

addition to the issues raised above, the 

Commission solicits public comment on 

the specific questions identified below. 

These questions are designed to assist 

the public and should not be construed 

as a limitation on the issues on which 

public comment may be submitted. 

Questions 

(1) Should the Commission amend the 

Impersonation Rule to include a 

prohibition of impersonation of 

individuals? Why or why not? 

(2) Please provide comment, 

including relevant data, statistics, 

consumer complaint information, or any 

other evidence, on proposed §§ 461.4 

and 461.5. Regarding each provision, 

please include answers to the following 

questions: 

(a) How prevalent is the act or 

practice the provision seeks to address? 

(b) What is the provision’s impact 

(including any benefits and costs), if 

any, on consumers, governments, and 

businesses, both those existing and 

those yet to be started? 

(c) What alternative proposals should 

the Commission consider? 

(3) Does the Rule, if amended as 

proposed by the SNPRM, contain a 

collection of information? 

(4) Would the Rule, if amended as 

proposed by the SNPRM, have a 

significant economic impact on a 

substantial number of small entities? If 

so, how could it be modified to avoid 

a significant economic impact on a 

substantial number of small entities? 

(5) The SNPRM proposes including in 

the amended Impersonation Rule a twopart prohibition against impersonation 

of individuals in § 461.4. Is this 

prohibition clear and understandable? Is 

it ambiguous in any way? How if at all 

should it be improved? 

(6) For purposes of prohibiting 

impersonation of individuals, should 

the Commission define ‘‘individual’’ to 

mean ‘‘a person, entity, or party, 

whether real or fictitious, other than 

those that constitute a business or 

government under this part’’? Is this 

definition clear and understandable? Is 

it ambiguous in any way? How if at all 

should it be improved? 

(7) The SNPRM proposes including in 

the amended Impersonation Rule a twopart prohibition in § 461.5 against 

providing goods or services with 

knowledge or reason to know that those 

goods or services will be used to (a) 

materially and falsely pose as, directly 

or by implication, a government entity 

or officer thereof, a business or officer 

thereof, or an individual, in or affecting 

commerce as commerce is defined in 

the Federal Trade Commission Act (15 

U.S.C. 44); or (b) materially 

misrepresent, directly or by implication, 

affiliation with, including endorsement 

or sponsorship by, a government entity 

or officer thereof, a business or officer 

thereof, or an individual, in or affecting 

commerce as commerce is defined in 

the Federal Trade Commission Act (15 

U.S.C. 44). Should the Rule be revised 

to contain this prohibition against 

providing goods or services with 

knowledge or reason to know that those 

goods or services will be used to 

unlawfully impersonate a government, 

business, or individual? Why or why 

not? Is the standard ‘‘know or have 

reason to know,’’ which reflects current 

law, sufficiently clear and 

understandable? Is it ambiguous in any 

way? How, if at all, should it be 

improved? 

IX. Comment Submissions 

You can file a comment online or on 

paper. For the Commission to consider 

your comment, we must receive it on or 

before April 30, 2024. Write 

‘‘Impersonation SNPRM, R207000’’ on 

your comment. Your comment— 

including your name and your state— 

will be placed on the public record of 

this proceeding, including, to the extent 

practicable, on the website https://

www.regulations.gov. 

Because of the agency’s heightened 

security screening, postal mail 

addressed to the Commission will be 

subject to delay. We strongly encourage 

you to submit your comments online 

through the https://www.regulations.gov 

website. To ensure that the Commission 

considers your online comment, please 

follow the instructions on the webbased form. 

If you file your comment on paper, 

write ‘‘Impersonation SNPRM, 

R207000’’ on your comment and on the 

envelope, and mail your comment to the 

following address: Federal Trade 

Commission, Office of the Secretary, 

600 Pennsylvania Avenue NW, Mail 

Stop H–144 (Annex I), Washington, DC 

20580. If possible, please submit your 

paper comment to the Commission by 

overnight service. 

Because your comment will be placed 

on the public record, you are solely 

responsible for making sure that your 

comment does not include any sensitive 

or confidential information. In 

particular, your comment 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 comment does not 

include any sensitive health 

information, such as medical records or 

other individually identifiable health 

information. In addition, your comment 

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 

FTC 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. 

Comments containing material for 

which confidential treatment is 

requested must be filed in paper form, 

must be clearly labeled ‘‘Confidential,’’ 

and must comply with FTC Rule 4.9(c), 

16 CFR 4.9(c). In particular, the written 

request for confidential treatment that 

accompanies the comment must include 

the factual and legal basis for the 

request and must identify the specific 

portions of the comment to be withheld 

from the public record. See FTC Rule 

4.9(c). Your comment will be kept 

confidential only if the General Counsel 

grants your request in accordance with 

the law and the public interest. Once 

your comment has been posted publicly 

at https://www.regulations.gov—as 

legally required by FTC Rule 4.9(b), 16 

CFR 4.9(b)—we cannot redact or remove 

your comment, unless you submit a 

confidentiality request that meets the 

requirements for such treatment under 

FTC 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 and visit https://

www.regulations.gov/docket/FTC-2024- 

0019 to read a plain-language summary 

of the proposed rule. The FTC Act and 


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other laws that the Commission 

administers permit the collection of 

public comments to consider and use in 

this proceeding as appropriate. The 

Commission will consider all timely 

and responsive public comments it 

receives on or before April 30, 2024. For 

information on the Commission’s 

privacy policy, including routine uses 

permitted by the Privacy Act, see 

https://www.ftc.gov/site-information/ 

privacy-policy.

X. 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 on the 

rulemaking record. Unless the outside 

party making an oral communication is 

a member of Congress, communications 

received after the close of the publiccomment period are permitted only if 

advance notice is published in the 

Weekly Calendar and Notice of 

‘‘Sunshine’’ Meetings. 

Endnotes 

1 Fed. Trade Comm’n, ANPR: Trade 

Regulation Rule on Impersonation of Gov’t 

and Businesses, 86 FR 72901 (Dec. 23, 2021) 

(‘‘ANPR’’), https://www.federalregister.gov/ 

documents/2021/12/23/2021-27731/traderegulation-rule-on-impersonation-ofgovernment-and-businesses. 

2 Fed. Trade Comm’n, Notice of Proposed 

Rulemaking: Trade Regulation Rule on 

Impersonation of Government and 

Businesses, 87 FR 62741 (Oct. 17, 2022) 

(‘‘NPRM’’), https://www.federalregister.gov/ 

documents/2022/10/17/2022-21289/traderegulation-rule-onimpersonation-ofgovernment-and-businesses. 

3 Fed. Trade Comm’n, Initial notice of 

informal hearing; final notice of informal 

hearing; request for public comment and 

speakers, 88 FR 19024 (Mar. 30, 2023), 

https://www.federalregister.gov/documents/ 

2023/03/30/2023-06537/trade-regulationrule-on-impersonation-of-government-andbusinesses (‘‘Informal Hearing Notice’’). 

4 A copy of the transcript of the May 4, 

2023, Informal Hearing is available at https:// 

www.ftc.gov/system/files/ftc_gov/pdf/

impersonationruleinformalhearing

transcript.pdf. References to the transcript 

from the May 4, 2023, Informal Hearing are 

cited herein as: Name of commenter, May 

2023 Tr at page no. (e.g., Doe, May 2023 Tr 

at #). A copy of the transcript of the Informal 

Hearing and the comments submitted in 

response to this hearing can be found at: 

https://www.regulations.gov/docket/FTC2023-0030/document.

5 See Section III.D. of the SBP of the 

Impersonation Rule published elsewhere in 

this edition of the Federal Register; NPRM, 

87 FR at 62750. 6 See https://www.regulations.gov/docket/ 

FTC-2023-0030/comments. 7 ANPR, 86 FR 72901. 

8 Id. at 72904. 9 While the docket lists 169 comments, 

four of these were submitted by AVIXA, Inc. 

(‘‘Audio Visual and Integrated Experience 

Association,’’ collectively ‘‘AVIXA ANPR 

Cmts.’’) and two by the National Association 

of Attorneys General (‘‘NAAG,’’ collectively 

‘‘NAAG ANPR Cmts.’’), accounting for four 

total duplicates, while one comment was 

untimely filed eight months after the close of 

comments and only said ‘‘no.’’ See AVIXA 

ANPR Cmts., https://www.regulations.gov/

comment/FTC-2021-0077-0089, https://

www.regulations.gov/comment/FTC-2021- 

0077-0085, https://www.regulations.gov/ 

comment/FTC-2021-0077-0126, https://

www.regulations.gov/comment/FTC-2021- 

0077-0128; NAAG ANPR Cmts., https://

www.regulations.gov/comment/FTC-2021-

0077-0152, https://www.regulations.gov/

comment/FTC-2021-0077-0164; Lucy Chen, 

Cmt. on ANPR (Oct. 21, 2022), https://

www.regulations.gov/comment/FTC-2021-

0077-0171.

10 See Pub’rs Clearing House, Cmt. on 

ANPR (Feb. 8, 2022), https://

www.regulations.gov/comment/FTC-2021-

0077-0008; YouMail Inc., Cmt. on ANPR 

(Feb. 22, 2022), https://www.regulations.gov/

comment/FTC-2021-0077-0148; WMC Global, 

Cmt. on ANPR (Feb. 22, 2022), https://

www.regulations.gov/comment/FTC-2021-

0077-0154 (‘‘WMC ANPR Cmt.’’); DIRECTV, 

LLC, Cmt. on ANPR (Feb. 23, 2022), https:// 

www.regulations.gov/comment/FTC-2021-

0077-0167; Somos, Inc., Cmt. on ANPR (Feb. 

23, 2022), https://www.regulations.gov/ 

comment/FTC-2021-0077-0162 (‘‘Somos 

ANPR Cmt.’’); Microsoft Corp., Cmt. on 

ANPR (Feb. 22, 2022), https://

www.regulations.gov/comment/FTC-2021-

0077-0135 (‘‘Microsoft ANPR Cmt.’’); Apple, 

Inc., Cmt. on ANPR (Feb. 23, 2022), https:// 

www.regulations.gov/comment/FTC-2021-

0077-0159 (‘‘Apple ANPR Cmt.’’); Cotney 

Attorneys & Consultants, Cmt. on ANPR (Feb. 

22, 2022), https://www.regulations.gov/ 

comment/FTC-2021-0077-0140; Erik M. 

Pelton & Associations, Consultants, Cmt. on 

ANPR (Feb. 22, 2022), https://

www.regulations.gov/comment/FTC-2021-

0077-0156 (‘‘Pelton ANPR Cmt.’’); Informa 

PLC, Cmt. on ANPR (Feb. 22, 2022), https:// 

www.regulations.gov/comment/FTC-2021-

0077-0166.

11 See Exhibitions & Conferences 

Alliances, Cmt. on ANPR (Feb. 15, 2022), 

https://www.regulations.gov/comment/FTC2021-0077-0009; AVIXA, Inc., Cmt. on ANPR 

(Feb. 17, 2022), https://www.regulations.gov/ 

comment/FTC-2021-0077-0085 (‘‘AVIXA 

ANPR Cmt.’’); Experiential Designers & 

Producers Association, Cmt. on ANPR (Feb. 

16, 2022), https://www.regulations.gov/ 

comment/FTC-2021-0077-0073; Association 

of Equipment Manufacturers, Cmt. on ANPR 

(Feb. 23, 2022), https://www.regulations.gov/ 

comment/FTC-2021-0077-0168); The 

American Apparel & Footwear Association, 

Cmt. on ANPR (Feb. 22, 2022), https://

www.regulations.gov/comment/FTC-2021-

0077-0141; NCTA—The internet & Television 

Association, Cmt. on ANPR (Feb. 23, 2022), 

https://www.regulations.gov/comment/FTC2021-0077-0169; USTelecom, Cmt. on ANPR 

(Feb. 23, 2022), https://www.regulations.gov/ 

comment/FTC-2021-0077-0160 (‘‘USTelecom 

ANPR Cmt.’’); International Housewares 

Association, Cmt. on ANPR (Feb. 22, 2022), 

https://www.regulations.gov/comment/FTC2021-0077-0144; National Association of 

Broadcasters, Cmt. on ANPR (Feb. 22, 2022), 

https://www.regulations.gov/comment/FTC2021-0077-0146; CTIA, Cmt. on ANPR (Feb. 

23, 2022), https://www.regulations.gov/ 

comment/FTC-2021-0077-0161; Consumer 

Tech. Ass’n, Cmt. on ANPR (Feb. 17, 2022), 

https://www.regulations.gov/comment/FTC2021-0077-0091. 12 See Broward Cnty., Fla., Cmt. on ANPR 

(Feb. 16, 2022), https://www.regulations.gov/ 

comment/FTC-2021-0077-0075; NAAG, Cmt. 

on ANPR (Feb. 23, 2022), https://

www.regulations.gov/comment/FTC-2021- 

0077-0164 (‘‘NAAG ANPR Cmt.’’); Nat’l 

Ass’n of State Charity Officials (‘‘NASCO’’), 

Cmt. on ANPR, at 1 (Feb. 22, 2022), https:// 

www.regulations.gov/comment/FTC-2021- 

0077-0165. 13 NAAG ANPR Cmt. at 8. 14 WMC ANPR Cmt. at 4. 15 WMC ANPR Cmt. at 4. 16 See Barbara Lay Cmt. on ANPR (Feb. 18, 

2022), https://www.regulations.gov/ 

comment/FTC-2021-0077-0109. 17 See Mai Huynh Cmt. on ANPR (Feb. 22, 

2022), https://www.regulations.gov/ 

comment/FTC-2021-0077-0155. 18 NAAG ANPR Cmt. at 8. 19 Id. at 10. 20 Apple ANPR Cmt. 21 Gray markets ‘‘allow consumers to sell 

physical and digital goods at a discounted 

price. Impersonators who have obtained 

stolen gift card funds utilize gray markets to 

sell items purchased with those funds to 

other consumers who may be unaware of the 

fraudulent source of the items they are 

purchasing.’’ Id. 22 See id. 23 Id. 24 Microsoft ANPR Cmt. at 6. 25 See id. 26 See Pelton ANPR Cmt. at 6–7. 27 Id. at 6–7. 28 USTelecom ANPR Cmt. at 3–4. 29 Somos ANPR Cmt. at 3, 5. 30 NPRM, 87 FR 62741. 31 See id. at 62741–42. 32 Id. at 62750. 33 Fed. Trade Comm’n, Trade Regulation 

Rule on Impersonation of Government and 

Businesses, https://www.regulations.gov/ 

docket/FTC-2022-0064/comments. 34 Suhkvir Singh/Rutgers Law School 

Students, Cmt. on NPRM at 1 (Nov. 22, 2022), 

https://www.regulations.gov/comment/FTC2022-0064-0019 (internal citation omitted). 35 AIM, the European Brands Association, 

Cmt. on NPRM (Dec. 13, 2022), https://

www.regulations.gov/comment/FTC-2022- 

0064-0041 (‘‘AIM NPRM Cmt.’’); Recording 

Industry Association of America, Cmt. on 

NPRM (Dec. 16, 2022), https://

www.regulations.gov/comment/FTC-2022- 

0064-0064 (‘‘RIAA NPRM Cmt.’’). 


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Federal Register / Vol. 89, No. 42 / Friday, March 1, 2024 / Proposed Rules 15081 

36 AARP, Cmt. on NPRM at 2 (Dec. 14, 

2022), https://www.regulations.gov/ 

comment/FTC-2022-0064-0043. 37 Id. at 2. 38 Electronic Privacy Information Center, 

National Consumer Law Center, National 

Consumers League, Consumer Action, 

Consumer Federation of America, National 

Association of Consumer Advocates, and 

U.S. PIRG, Cmt. on NPRM at 5 (Dec. 16, 

2022), https://www.regulations.gov/ 

comment/FTC-2022-0064-0070 (‘‘EPIC NPRM 

Cmt.’’). 39 Id. at iv–v. 40 NCTA—The internet and Television 

Association, Cmt. on NPRM at 8 (Dec. 16, 

2022), https://www.regulations.gov/ 

comment/FTC-2022-0064-0071 (‘‘NCTA 

NPRM Cmt.’’). 41 See 87 FR 62750; see also United States 

Patent and Trademark Office, Cmt. on NPRM 

(Dec. 2, 2022), https://www.regulations.gov/ 

comment/FTC-2022-0064-0026 (‘‘USPTO 

NPRM Cmt.’’); Anonymous, Cmt. on NPRM 

(Dec. 9, 2022), https://www.regulations.gov/ 

comment/FTC-2022-0064-0033 (‘‘0033 NPRM 

Cmt.’’); AIM NPRM Cmt.; Erik M. Pelton & 

Associates, PLLC, Cmt. on NPRM (Dec. 14, 

2022), https://www.regulations.gov/ 

comment/FTC-2022-0064-0045 (‘‘Pelton 

NPRM Cmt.’’); NetChoice, Cmt. on NPRM 

(Dec. 15, 2022), https://www.regulations.gov/ 

comment/FTC-2022-0064-0053 (‘‘NetChoice 

NPRM Cmt.’’); Messaging, Malware and 

Mobile Anti-Abuse Working Group, Cmt. on 

NPRM (Dec. 15, 2022) https://

www.regulations.gov/comment/FTC-2022- 

0064-0051 (‘‘M3AAWG NPRM Cmt.’’); 

Consumer Technology Association, Cmt. on 

NPRM (Dec. 16, 2022) https://

www.regulations.gov/comment/FTC-2022- 

0064-0063 (‘‘CTA NPRM Cmt.’’); NCTA 

NPRM Cmt.; American Society of Association 

Executives, Cmt on NPRM (Dec. 16, 2022), 

https://www.regulations.gov/comment/FTC2022-0064-0057 (‘‘ASAE NPRM Cmt.’’); 

International Trademark Association, Cmt. 

on NPRM (Dec. 15, 2022) https://

www.regulations.gov/comment/FTC-2022- 

0064-0054 (‘‘INTA NPRM Cmt.’’); Somos 

NPRM Cmt.; CTIA, Cmt. on NPRM (Dec. 16, 

2022) https://www.regulations.gov/comment/ 

FTC-2022-0064-0066 (‘‘CTIA NPRM Cmt.’’); 

U.S. Copyright Office, Cmt. on NPRM (Dec. 

16, 2022) https://www.regulations.gov/ 

comment/FTC-2022-0064-0067 (‘‘USCO 

NPRM Cmt.’’); USTelecom—The Broadband 

Association, Cmt. on NPRM (Dec. 16, 2022) 

https://www.regulations.gov/comment/FTC2022-0064-0067 (‘‘USTelecom NPRM Cmt.’’); 

Exhibitions & Conference Alliance, Cmt. on 

NPRM (Dec. 16, 2022) https://

www.regulations.gov/comment/FTC-2022- 

0064-0060 (‘‘ECA NPRM Cmt.’’); RIAA NPRM 

Cmt.; American Bar Association Intellectual 

Property Law Section, Cmt. on NPRM (Dec. 

16, 2022) https://www.regulations.gov/ 

comment/FTC-2022-0064-0061 (‘‘ABA–IPL 

NPRM Cmt.’’); Americans for Prosperity 

Foundation, Cmt. on NPRM (Dec. 16, 2022) 

https://www.regulations.gov/comment/FTC2022-0064-0062 (‘‘AFPF NPRM Cmt.’’); 

ZoomInfo Technologies LLC, Cmt. on NPRM 

(Dec. 16, 2022) https://www.regulations.gov/ 

comment/FTC-2022-0064-0079 (‘‘Zoom 

NPRM Cmt.’’); American Bankers 

Association, Cmt. on NPRM (Dec. 16, 2022) 

https://www.regulations.gov/comment/FTC2022-0064-0080; Coalition for Online 

Accountability, Cmt. on NPRM (Dec. 16, 

2022) https://www.regulations.gov/comment/ 

FTC-2022-0064-0074 (‘‘COA NPRM Cmt.’’); 

William MacLeod, Cmt. on NPRM (Dec. 16, 

2022) https://www.regulations.gov/comment/ 

FTC-2022-0064-0078 (‘‘MacLeod NPRM 

Cmt.’’); Cindy Brown et. al, Cmt. on NPRM 

(Dec. 16, 2022) https://www.regulations.gov/ 

comment/FTC-2022-0064-0077 (‘‘Brown 

NPRM Cmt.’’). 42 USPTO NPRM Cmt. at 10; USCO NPRM 

Cmt. at 8; RIAA NPRM Cmt. at 3. 43 USPTO NPRM Cmt. at 10; USCO NPRM 

Cmt. at 8; RIAA NPRM Cmt. at 3. 44 0033 NPRM Cmt.; ABA–IPL NPRM Cmt. 

at 2; Zoom NPRM Cmt. at 1. 45 ABA–IPL NPRM Cmt. at 1–2; NetChoice 

NPRM Cmt. at 2; USTelecom NPRM Cmt. at 

2. 46 NetChoice NPRM Cmt. at 2; CTA NPRM 

Cmt.; ASAE NPRM Cmt. at 1; INTA NPRM 

Cmt.; Somos NPRM Cmt.; CTIA NPRM Cmt. 

at 7; USTelecom NPRM Cmt. at 2; ECA 

NPRM Cmt. at 3; ABA–IPL NPRM Cmt. at 3; 

Zoom NPRM Cmt. at 2; ABA NPRM Cmt. at 

3. 47 CTA NPRM Cmt. at 7. 48 Id.; see also ASAE NPRM Cmt. 49 Somos NPRM Cmt. at 2. 50 USTelecom NPRM Cmt. at 2. 51 USTelecom NPRM Cmt. at 2. 52 Pelton NPRM Cmt. at 3 (emphasis in 

original). 53 ABA–IPL NPRM Cmt. at 3. 54 CTIA NPRM Cmt at 7. 55 NCTA NPRM Cmt. at 2. 56 M3AAWG NPRM Cmt. at 10. 57 Brown NPRM Cmt. at 8. 58 M3AAWG NPRM Cmt. at 3. 59 COA NPRM Cmt. at 3; M3AAWG NPRM 

Cmt. at 4–5. ‘‘WHOIS data’’ is a commonly 

used internet record listing that identifies 

who owns a domain and how to contact 

them. 60 AFPF NPRM Cmt. at 2. 61 AFPF NPRM Cmt. at 5–6. 62 Id. at 8. 63 MacLeod NPRM Cmt. at 2. 64 Id. 65 Informal Hearing Notice, 88 FR 19024. 66 Because this informal hearing was the 

first held in several decades, the Commission 

allowed interested parties to request the 

opportunity to make an oral comment in 

response to the Notice of Informal Hearing as 

well as the NPRM. However, the Commission 

noted that in the future it 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. Id. 

at 19025 n.24. 67 American Bankers Association, May 

2023 Tr at 39–40. 68 See CTA, May 2023 Tr at 16; MacLeod, 

May 2023 Tr at 27; USTelecom, May 2023 Tr 

at 30; Chilson, May 2023 Tr at 34; VON, May 

2023 Tr at 36; INCOMPAS, May 2023 Tr at 

42, 44; NCTA, May 2023 Tr at 51–52. 69 William MacLeod, Cmt. on Informal 

Hearing Notice at 7 (Apr. 14, 2023) https:// 

www.regulations.gov/comment/FTC-2023- 

0030-0019. 70 MacLeod, May 2023 Tr at 27. 

71 CTA, May 2023 Tr at 16. 72USTelecom, May 2023 Tr at 30. 73Chilson, May 2023 Tr at 34. 74 Voice on the Net Coalition, May 2023 Tr 

at 36. 75 Id. at 36. 76 INCOMPAS, May 2023 Tr at 42, 44. 77NCTA, The internet & Television Assoc., 

May 2023 Tr at 51. 78 Id. at 51–52. 79See AMG Cap. Mgmt., LLC v. FTC, 141 

S. Ct. 1341, 1352 (2021). 80See ANPR, 78 FR at 72902 & n.24 

(discussing AMG Cap. Mgmt.); NPRM, 87 FR 

at 62746. 81 In July 2023, the Commission amended 

its rules of practice for adjudicative 

proceedings. See 88 FR 42872 (July 5, 2023). 

Following those amendments, administrative 

law judges presiding over an administrative 

hearing issue a recommended decision, 

rather than an initial decision as previously 

issued. Id. at 42873. The Commission then 

automatically reviews the decision and either 

affirms in full or rejects, in whole or in part, 

and issues its own decision, which is final. 

Id. These rules changes do not impact the 

requirements under section 19. 82See 15 U.S.C. 57b(a)(2) (‘‘If the 

Commission satisfies the court that the act or 

practice to which the cease and desist order 

relates is one which a reasonable man would 

have known under the circumstances was 

dishonest or fraudulent, the court may grant 

relief.’’). 83Compare 15 U.S.C. 57b(a)(1) (rule 

violations), with id. 57b(a)(2) (section 5 

violations). 84As noted in the NPRM, the 

Commission’s Telemarketing Sales Rule, 

Mortgage Assistance Relief Services Rule, 

and R-Value Rule expressly prohibit 

deception by way of impersonation and 

allow for direct pursuit of section 19 

remedies in federal court, including civil 

penalties and consumer redress, in specific 

contexts. However, the Impersonation Rule 

does not reach individuals. 85NPRM, 87 FR at 62749. 86See, e.g., Protecting Older Consumers 

2021–2022, Federal Trade Commission at 32 

(Oct. 18, 2022), available at https://

www.ftc.gov/system/files/ftc_gov/pdf/ 

P144400OlderConsumersReportFY22.pdf. 87See, e.g., Protecting Older Consumers 

2022–2023, Federal Trade Commission (Oct. 

18, 2023) at 30–31, available at https://

www.ftc.gov/system/files/ftc_gov/pdf/ 

p144400olderadultsreportoct2023.pdf.; 

Federal Trade Commission, What to Know 

About Romance Scams (Aug. 2022), available 

at https://consumer.ftc.gov/articles/whatknow-about-romance-scams; Federal Bureau 

of Investigation, Scammers Defraud Victims 

of Millions of Dollars in New Trend in 

Romance Scams, Alert No. I–091621–PSA 

(Sept. 16, 2021), available at https://

www.ic3.gov/Media/Y2021/PSA210916. 88See, e.g., AARP, Grandparent Scams 

(updated Sept. 30, 2022), available at https:// 

www.aarp.org/money/scams-fraud/info2019/grandparent.html; Federal Trade 

Commission, Don’t Open Your Door To 

Grandparent Scams, Consumer Alert (Apr. 

13, 2021), available at https://consumer.ftc.

gov/consumer-alerts/2021/04/dont-openyour-door-grandparent-scams. 


ddrumheller on DSK120RN23PROD with PROPOSALS1
15082 Federal Register / Vol. 89, No. 42 / Friday, March 1, 2024 / Proposed Rules 

89Federal Trade Commission, Fraud 

Reports, Tableau Public, available at https:// 

public.tableau.com/app/profile/ 

federal.trade.commission/viz/FraudReports/ 

Subcategories Over Time (filtered to display: 

Complaint Source—All; Timeframe— 

Quarters; Category—Imposter Scams; View— 

Table; Year-Quarter—2022, Q1 through 2023, 

Q4 selected; Subcategory—(All)) (last visited 

February 2024). 90Federal Trade Commission, Fraud 

Reports, Tableau Public, available at https:// 

public.tableau.com/app/profile/ 

federal.trade.commission/viz/FraudReports/ 

Subcategories Over Time (filtered to display: 

Complaint Source—All; Timeframe— 

Quarters; Category—Imposter Scams; View— 

Table; Year-Quarter—2022, Q1 through 2023, 

Q4 selected; Subcategory—(All)) (last visited 

February 2024). 91Protecting Older Consumers 2021–2022, 

Federal Trade Commission (Oct. 18, 2022) at 

32, available at https://www.ftc.gov/system/ 

files/ftc_gov/pdf/P144400OlderConsumers

ReportFY22.pdf. 92 Id. at 29 n.104. 93Protecting Older Consumers 2022–2023, 

Federal Trade Commission (Oct. 18, 2023) at 

31, available at https://www.ftc.gov/system/ 

files/ftc_gov/pdf/p144400olderadults

reportoct2023.pdf. While the reported harm 

is significant, the actual amount of harm is 

likely significantly higher due to 

underreporting by consumers. Id. at 39–40. 94 ‘‘Means and instrumentalities’’ liability 

is a form of direct liability. See, e.g., FTC v. 

Magui Publishers, Inc., No. Civ. 89– 

3818RSWL(GX), 1991 WL 90895, at *14 (C.D. 

Cal. Mar. 28, 1991), aff’d, 9 F.3d 1551 (9th 

Cir. 1993) (‘‘One who places in the hands of 

another a means or instrumentalities to be 

used by another to deceive the public in 

violation of the FTC Act is directly liable for 

violating the Act.’’); Regina Corp. v. FTC, 322 

F.2d 765, 768 (3rd Cir. 1963). ‘‘Means and 

instrumentalities’’ is distinct from ‘‘aiding 

and abetting’’ liability and ‘‘assisting and 

facilitating’’ liability, both of which are 

secondary forms of liability and not available 

to the Commission in this rulemaking. See 

Andrew Smith, Multi-party liability, FTC 

Business Blog (Jan. 29, 2021), https://

www.ftc.gov/business-guidance/blog/2021/ 

01/multi-party-liability (noting various legal 

theories used by the Commission to impose 

liability on additional parties where the 

primary target’s customers, vendors, or 

business partners were also engaged in 

misconduct). The Commission observes that 

it does not always allege knowledge in 

complaints seeking to hold parties liable for 

providing the means and instrumentalities 

used in a section 5 violation. See, e.g., 

Amended Complaint for Permanent 

Injunction and Other Equitable Relief, FTC v. 

James D. Noland, Jr., et al., case no. 2:20–cv– 

00047–DWL (D. Az. Jan. 17, 2020); Complaint 

for Permanent Injunction and Other 

Equitable Relief, FTC v. Cyberspy Software, 

LLC, et al., case no. 6:08–cv–01872–GAP–GJK 

(M.D. Fl. Nov. 5, 2008); Complaint for 

Injunctive and Other Equitable Relief, FTC v. 

Five Star Auto Club, Inc., et al., case no. 99– 

civ–1693 (S.D.N.Y. March 8, 1999). 95The Commission notes that if adopted as 

final, the SNPRM’s proposed § 461.5 would 

not be the first trade regulation rule 

promulgated by the Commission that 

includes a ‘‘knew or had reason to know’’ 

requirement. For example, § 460.8 of the 

Labeling and Advertising of Home Insulation, 

R-value tolerances, prohibits nonmanufacturers of home insulation to rely on 

R-value data provided by the manufacturer 

they ‘‘know or should know’’ is false or not 

based on proper tests. 16 CFR 460.8; see also 

16 CFR 460.19(e) (non-manufacturers are 

liable only if they ‘‘know or should know 

that the manufacturer does not have a 

reasonable basis for the claim’’); 16 CFR 

436.7(d) (franchise sellers must notify 

prospective franchisees of any material 

changes ‘‘that the seller knows or should 

have known occurred’’). 96NPRM, 87 FR at 62749. 97See id. 98These examples, which are the same as 

those articulated in connection with the prior 

rules (see Section III of the Statement of Basis 

and Purposes published elsewhere in this 

issue of the Federal Register), make clear that 

the use of voice cloning for purposes of 

impersonation is covered where its use 

satisfies the Rule’s prohibitions. Audio 

deepfakes, including voice cloning, are 

generated, edited, or synthesized by artificial 

intelligence, or ‘‘AI,’’ to create fake audio that 

seems real. See Khanjani, et. al., How Deep 

are the Fakes? Focusing on Audio Deepfake: 

A Survey, available at https://arxiv.org/ftp/ 

arxiv/papers/2111/2111.14203.pdf. 99 0033 NPRM Cmt.; ABA–IPL NPRM Cmt. 

at 2; Zoom NPRM Cmt. at 1. 100ABA–IPL NPRM Cmt. at 1–2; NetChoice 

NPRM Cmt. at 2; USTelecom NPRM Cmt. at 

2; see also CTA, May 2023 Tr at 16; VON, 

May 2023 Tr at 36; ABA, May 2023 Tr at 39– 

40; INCOMPAS, May 2023 Tr at 42. 101NetChoice NPRM Cmt. at 2; CTA NPRM 

Cmt.; ASAE NPRM Cmt. 1; INTA NPRM 

Cmt.; Somos NPRM Cmt.; CTIA NPRM Cmt. 

at 7; USTelecom NPRM Cmt. at 2; ECA 

NPRM Cmt. at 3; ABA–IPL NPRM Cmt. at 3; 

Zoom NPRM Cmt. at 2; ABA NPRM Cmt. at 

3; see also CTA, May 2023 Tr at 16; 

MacLeod, May 2023 Tr at 27; USTelecom, 

May 2023 Tr at 30; Chilson, May 2023 Tr at 

34; VON, May 2023 Tr at 36; INCOMPAS, 

May 2023 Tr at 42, 44; NCTA, May 2023 Tr 

at 51–52. 102See supra, n.94, n.95. 103See 15 U.S.C. 6102(a)(2) (‘‘acts or 

practices of entities or individuals that assist 

or facilitate deceptive telemarketing’’). 104 In re Shell Oil Co., 128 F.T.C. 749, 764 

(1999) (statement of Chairman Pitofsky and 

Commissioners Anthony and Thompson, 

citing Regina Corp. v. FTC, 322 F.2d 765, 768 

(3rd Cir. 1963)). See also, e.g., FTC v. FiveStar Auto Club, 97 F. Supp. 2d 502 (S.D.N.Y. 

2000); FTC v. Magui Publishers, Inc., No. Civ. 

89–3818RSWL(GX), 1991 WL 90895, at *14 

(C.D. Cal. Mar. 28, 1991), aff’d, 9 F.3d 1551 

(9th Cir. 1993); supra n.94. 105C. Howard Hunt Pen Co. v. FTC, 197 

F.2d 273, 281 (3d Cir. 1952). See also supra 

n.94. 106 In the context of an informal hearing, 

‘‘disputed’’ and ‘‘material’’ are given the 

same meaning as in the standard for 

summary judgment. See Fed. Trade Comm’n, 

Initial notice of informal hearing; final notice 

of informal hearing; list of Hearing 

Participants; requests for submissions from 

Hearing Participants, 88 FR 85525, 85527 

(Dec. 8, 2023), https://www.federalregister.

gov/documents/2023/12/08/2023-26946/ 

negative-option-rule (citing H.R. REP. No. 

93–1107, 93d Cong., 2d Sess., reprinted in 

[1974] U.S. CODE CONG. & AD. NEWS 7702, 

7728; Anderson v. Liberty Lobby, Inc., 477 

U.S. 242, 248 (1986); Matsushita Elec. Indus. 

Co. v. Zenith Radio Corp., 475 U.S. 574, 586 

(1986)). 107Federal Trade Commission, Fraud 

Reports, Tableau Public, available at https:// 

public.tableau.com/app/profile/ 

federal.trade.commission/viz/FraudReports/ 

Subcategories Over Time (filtered to display: 

Complaint Source—All; Timeframe—Years; 

Category—Imposter Scams; View—Table; 

Subcategory—(All)) (last visited February 

2024). 108Federal Trade Commission, Fraud 

Reports, Tableau Public, available at https:// 

public.tableau.com/app/profile/ 

federal.trade.commission/viz/FraudReports/ 

Subcategories Over Time (filtered to display: 

Complaint Source—All; Timeframe—Years; 

Category—Imposter Scams; View—Table; 

Subcategory—(All)) (last visited February 

2024). 109Protecting Older Consumers 2022–2023, 

Federal Trade Commission (Oct. 18, 2023), 

available at https://www.ftc.gov/system/files/ 

ftc_gov/pdf/p144400olderadults

reportoct2023.pdf. 110While such relief could also be obtained 

with an existing rule, such as the TSR if 

applicable, by no means do all impersonation 

scams implicate an existing rule, and there is 

no reason to expect them all to do so in the 

future. 111See, e.g., Aaron Chalfin & Justin 

McCrary, Criminal Deterrence: A Review of 

the Literature, 55 J. Econ. Lit. 5 (2017), 

https://doi.org/10.1257/jel.20141147 

(reviewing twenty years of studies, albeit in 

criminal rather than civil context, and 

finding stronger evidence for deterrent effect 

of perceived risk of detection than for 

severity of punishment). 112See supra n.106 and accompanying text. 

List of Subjects in 16 CFR Part 461 

Consumer protection, Impersonation, 

Trade Practices. 

Accordingly, the Federal Trade 

Commission proposes to amend 16 CFR 

part 461 as follows: 

PART 461—RULE ON 

IMPERSONATION OF GOVERNMENT, 

BUSINESSES, AND INDIVIDUALS 

■ 1. The authority citation for part 461 

continues to read as follows: 

Authority: 15 U.S.C. 41 through 58. 

■ 2. Revise the heading of part 461 to 

read as set forth above. 

■ 3. In § 461.1, add the definition of 

‘‘individual’’ in alphabetical order to 

read as follows: 

§ 461.1 Definitions. 

* * * * * 


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Federal Register / Vol. 89, No. 42 / Friday, March 1, 2024 / Proposed Rules 15083 

1 17 CFR 145.9. The Commission’s regulations 

referred to in this release are found at 17 CFR 

chapter I (2022), available on the Commission’s 

website at https://www.cftc.gov/LawRegulation/ 

CommodityExchangeAct/index.htm. 

2See Registration of Foreign Boards of Trade, 

Final Rule, 76 FR 80674 (Dec. 23, 2011); 17 CFR 

part 48. ‘‘Direct access’’ is defined as an explicit 

grant of authority by a foreign board of trade to an 

identified member or other participant located in 

the United States to enter trades directly into the 

trade matching system of the foreign board of trade. 

CEA section 4(b)(1)(A), 7 U.S.C. 6(b)(1)(A); 17 CFR 

48.2(c). 

3See Sec. 738, Dodd-Frank Wall Street Reform 

and Consumer Protection Act, Public Law 111–203, 

Continued 

Individual means a person, entity, or 

party, whether real or fictitious, other 

than those that constitute a business or 

government under this Part. 

* * * * * 

■ 4. Add § 461.4 to read as follows: 

§ 461.4 Impersonation of Individuals 

Prohibited. 

It is a violation of this part, and an 

unfair or deceptive act or practice to: 

(a) materially and falsely pose as, 

directly or by implication, an 

individual, in or affecting commerce as 

commerce is defined in the Federal 

Trade Commission Act (15 U.S.C. 44); or 

(b) materially misrepresent, directly 

or by implication, affiliation with, 

including endorsement or sponsorship 

by, an individual, in or affecting 

commerce as commerce is defined in 

the Federal Trade Commission Act (15 

U.S.C. 44). 

■ 5. Add § 461.5 to read as follows: 

§ 461.5 Means and Instrumentalities: 

Provision of Goods or Services for Unlawful 

Impersonation Prohibited. 

It is a violation of this part, and an 

unfair or deceptive act or practice to 

provide goods or services with 

knowledge or reason to know that those 

goods or services will be used to: 

(a) materially and falsely pose as, 

directly or by implication, a government 

entity or officer thereof, a business or 

officer thereof, or an individual, in or 

affecting commerce as commerce is 

defined in the Federal Trade 

Commission Act (15 U.S.C. 44); or 

(b) materially misrepresent, directly 

or by implication, affiliation with, 

including endorsement or sponsorship 

by, a government entity or officer 

thereof, a business or officer thereof, or 

an individual, in or affecting commerce 

as commerce is defined in the Federal 

Trade Commission Act (15 U.S.C. 44). 

By direction of the Commission. 

April J. Tabor, 

Secretary. 

[FR Doc. 2024–03793 Filed 2–29–24; 8:45 am] 

BILLING CODE 6750–01–P 

COMMODITY FUTURES TRADING 

COMMISSION 

17 CFR Part 48 

RIN 3038–AF37 

Foreign Boards of Trade 

AGENCY: Commodity Futures Trading 

Commission. 

ACTION: Notice of proposed rulemaking. 

SUMMARY: The Commodity Futures 

Trading Commission (CFTC or 

Commission) is proposing to amend its 

regulations to permit a foreign board of 

trade (FBOT) registered with the 

Commission to provide direct access to 

its electronic trading and order 

matching system to an identified 

member or other participant located in 

the United States and registered with 

the Commission as an introducing 

broker (IB) for submission of customer 

orders to the FBOT’s trading system for 

execution. The Commission is also 

proposing to establish a procedure for 

an FBOT to request revocation of its 

registration, and to remove certain 

outdated references to ‘‘existing noaction relief.’’ 

DATES: Comments must be received on 

or before April 22, 2024. 

ADDRESSES: You may submit comments, 

identified by ‘‘Foreign Boards of Trade’’ 

and RIN 3038–AF37, by any of the 

following methods: 

• CFTC Comments Portal: https://

comments.cftc.gov. Select the ‘‘Submit 

Comments’’ link for this rulemaking and 

follow the instructions on the Public 

Comment Form. 

• Mail: Send to Christopher 

Kirkpatrick, Secretary of the 

Commission, Commodity Futures 

Trading Commission, Three Lafayette 

Center, 1155 21st Street NW, 

Washington, DC 20581. 

• Hand Delivery/Courier: Follow the 

same instruction as for Mail, above. 

Please submit your comments using 

only one of these methods. Submissions 

through the CFTC Comments Portal are 

encouraged. 

All comments must be submitted in 

English or, if not, accompanied by an 

English translation. Comments will be 

posted as received to https://comments.

cftc.gov. You should submit only 

information that you wish to make 

available publicly. If you wish the 

Commission to consider information 

that you believe is exempt from 

disclosure under the Freedom of 

Information Act (FOIA), a petition for 

confidential treatment of the exempt 

information may be submitted according 

to the procedures established in section 

145.9 of the Commission’s regulations.1

The Commission reserves the right, 

but shall have no obligation, to review, 

pre-screen, filter, redact, refuse or 

remove any or all of your submission 

from https://comments.cftc.gov that it 

may deem to be inappropriate for 

publication, such as obscene language. 

All submissions that have been redacted 

or removed that contain comments on 

the merits of this proposed rule will be 

retained in the public comment file and 

will be considered as required under the 

Administrative Procedure Act (APA) 

and other applicable laws, and may be 

accessible under FOIA. 

FOR FURTHER INFORMATION CONTACT: 

Alexandros Stamoulis, Associate 

Director, Division of Market Oversight, 

Commodity Futures Trading 

Commission, (646) 746–9792, 

astamoulis@cftc.gov, 290 Broadway, 6th 

Floor, New York, NY 10007; Roger 

Smith, Associate Chief Counsel, 

Division of Market Oversight, 

Commodity Futures Trading 

Commission, (202) 418–5344, rsmith@

cftc.gov, 77 West Jackson Blvd., Suite 

800, Chicago, IL 60604; Maura Dundon, 

Special Counsel, (202) 418–5286, 

mdundon@cftc.gov, Commodity Futures 

Trading Commission, Division of 

Market Oversight, Three Lafayette 

Centre, 1151 21st Street NW, 

Washington, DC 20581. 

SUPPLEMENTARY INFORMATION: 

Table of Contents 

I. Background 

II. The Proposed Amendments 

A. Section 48.4—Registration Eligibility 

and Scope 

B. Section 48.8—Conditions of Registration 

C. Section 48.9—Revocation of Registration 

D. Section 48.6—Foreign Boards of Trade 

Providing Direct Access Pursuant to 

Existing No-Action Relief 

III. Related Matters 

A. Regulatory Flexibility Act 

B. Paperwork Reduction Act 

C. Cost Benefit Considerations 

I. Background 

Under part 48 of the Commission’s 

regulations, an FBOT must be registered 

with the Commission in order to 

provide its members or other 

participants located in the United States 

with direct access to its electronic 

trading and order matching system.2

Part 48 is authorized by section 738 of 

the Dodd-Frank Act, which amended 

section 4(b) of the Commodity Exchange 

Act (CEA), to provide that the 

Commission may adopt rules and 

regulations requiring FBOTs that wish 

to provide U.S. persons with direct 

access to register with the Commission.3


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