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Donald S. Clark
Federal Register
March 15, 2011
[Federal Register: March 15, 2011 (Volume 76, Number 50)]
[Notices]
[Page 14014-14017]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr15mr11-72]
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FEDERAL TRADE COMMISSION
Public Roundtables: Protecting Consumers in the Sale and Leasing
of Motor Vehicles
AGENCY: Federal Trade Commission (FTC or Commission).
ACTION: Notice announcing public roundtables, requesting participation,
and providing opportunity for comment.
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SUMMARY: On July 21, 2010, President Obama signed the Dodd-Frank Wall
Street Reform and Consumer Protection Act (Dodd-Frank Act). Pursuant to
the Dodd-Frank Act, the FTC is authorized to prescribe rules under
Section 553 of the Administrative Procedure Act (APA) with respect to
unfair or deceptive acts or practices by motor vehicle dealers. To
explore consumer protection issues pertaining to motor vehicle sales
and leasing, the FTC is hosting a series of public roundtables in 2011.
The roundtables will be held in three to five cities around the United
States, starting in April 2011. The roundtables will provide an
opportunity for regulators, consumer advocates, industry participants,
and other interested parties to discuss consumer protection issues in
connection with motor vehicle sales and leasing. This notice addresses
various topics and questions that the Commission expects to discuss at
the first roundtable. This notice also provides an opportunity for
comment.
DATES: The first roundtable will occur on April 12, 2011. Dates for the
additional roundtables to be held in 2011 will be posted on the FTC Web
site at http://www.ftc.gov. Requests to participate as a panelist for
the first roundtable, and any written comments on roundtable topics,
must follow the instructions provided below under SUPPLEMENTARY
INFORMATION and be received by March 28, 2011, to be considered in
preparing for the roundtable.
ADDRESSES: The first roundtable will be held at Wayne State University
Law School, in Detroit, Michigan on April 12, 2011. Further information
about all of the roundtables will be posted on the FTC=s Web site at
http://www.ftc.gov. All of the roundtables will be free and open to the
public. Those who plan to attend a roundtable are encouraged to
preregister by sending an email listing their name and affiliation to
PreregisterMotorVehicleRoundtables1@ftc.gov. This information will be
used for planning purposes only. Those who wish to participate as a
panelist at a roundtable, and those who wish to submit comments, should
follow the instructions in the SUPPLEMENTARY INFORMATION section below.
Whether or not selected to participate, persons may submit written
comments on roundtable topics.
FOR FURTHER INFORMATION CONTACT: Katherine Worthman or Carole Reynolds,
Attorneys, Division of Financial Practices, Federal Trade Commission,
600 Pennsylvania Avenue, NW., Washington, DC 20580, (202) 326-3224.
SUPPLEMENTARY INFORMATION:
I. Background
Having access to a motor vehicle is essential for many consumers to
fulfill their daily obligations. However, purchasing or leasing a car
is usually a substantial expense. For many consumers, aside from
housing costs, a car purchase or lease is their most expensive
financial transaction.\1\ With prices averaging more than $28,000 for a
new vehicle and $14,000 for a used vehicle from a dealer, most
consumers seek to lease or finance the purchase of a new or used car.
Consumers may seek financing from their local bank or credit union, as
well as from the dealer selling the vehicle. Financing obtained at the
dealership, whether it is provided by a third party or directly by the
dealer, may provide benefits for many consumers such as convenience,
special manufacturer-sponsored programs, access to a variety of banks
and financial entities, or access to credit otherwise unavailable to a
buyer. Dealer-arranged financing, however, can be a complicated, opaque
process and could potentially involve unfair or deceptive practices.
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\1\ The average price of a new car sold in the U.S. is $28,966,
according to the National Automobile Dealers Association. See NADA
DATA 2010, at 2, available at http://www.nada.org/Publications/
NADADATA/2010/default (2009 data). Average used car prices range
from $8,459 (independent companies) to $14,976 (dealerships). See
NIADA Used Car Industry Report 2010, at 18, available at http://
www.niada.com/PDFs/Publications/2010IndustryReport.pdf (citing data
from the National Independent Automobile Dealers Association Report
and CNW Marketing Research), and NADA DATA 2010, at 2, respectively
(2009 data).
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As the nation's consumer protection agency,\2\ the Commission is
committed to protecting consumers in connection with these financial
transactions.
[[Page 14015]]
Throughout the years, the FTC has undertaken substantial efforts to
fulfill this commitment in connection with the sale, financing, and
leasing practices of motor vehicle dealers. For example, the agency has
brought numerous enforcement actions addressing:
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\2\ The Commission currently has enforcement authority over most
non-bank entities for numerous consumer protection statutes,
including, for example, Section 5 of the Federal Trade Commission
Act (FTC Act), 15 U.S.C. 45, which broadly proscribes unfair or
deceptive acts or practices in or affecting commerce; the Truth in
Lending Act, 15 U.S.C. 1601-1666j, and the Consumer Leasing Act, 15
U.S.C. 1667-1667f, and their implementing Regulation Z, 12 CFR 226;
the Equal Credit Opportunity Act (ECOA), 15 U.S.C. 1691-1691f, and
its implementing Regulation B, 12 CFR 202; the Electronic Fund
Transfer Act, 15 U.S.C. 1693-1693r, and its implementing Regulation
E, 12 CFR 205; and the privacy provisions of the Gramm-Leach Bliley
Act, 15 U.S.C. 6801-6809. Subject to various provisions of the Dodd-
Frank Act, the Commission generally retains its enforcement
authority for these various statutes; in some instances, that
authority may be concurrent with the Bureau of Consumer Financial
Protection (CFPB).
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Deceptive advertising by motor vehicle dealers regarding
purchase, loan, or lease terms or costs, as well as add-on products;
\3\
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\3\ These matters were generally resolved by consent agreements.
See, e.g., In re Simmons Rockwell Ford Mercury, Inc., F.T.C. Dkt.
No. C-3950 (2000); In re R.N. Motors, Inc., F.T.C. Dkt. No. C-3947
(2000); In re Dunphy Nissan, Inc., F.T.C. Dkt. No. C-3924 (2000);
and In re Bill Crouch Foreign, Inc., 96 F.T.C. 111 (1980). For
additional information regarding recent FTC activities in the motor
vehicle area, see Prepared Statement of the Federal Trade Commission
on AConsumer Protection in the Used and Subprime Car Market@:
Hearing Before the House Committee on Energy and Commerce,
Subcommittee on Commerce, Trade, and Consumer Protection, Mar. 5,
2009, available at http://www.ftc.gov/opa/2009/03/autotest.shtm.
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Auto warranty issues by, among other things, enforcing the
Magnuson-Moss Warranty-Federal Trade Commission Improvement Act and its
implementing rules concerning the disclosure and pre-sale availability
of warranty terms; \4\ and
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\4\ See, e.g., In re Bob Rice Ford, Inc., 96 F.T.C. 18 (1980).
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Deceptive claims by auto warranty robocallers.\5\
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\5\ See, e.g., FTC v. Voice Touch, Inc., No. 1:09CV2929 (N.D.
Ill. 2010).
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On July 21, 2010, President Obama signed the Dodd-Frank Wall Street
Reform and Consumer Protection Act (Dodd-Frank Act).\6\ Pursuant to the
Dodd-Frank Act, the FTC is authorized to prescribe rules under Section
553 of the Administrative Procedure Act (APA) \7\ with respect to
unfair or deceptive acts or practices by motor vehicle dealers.\8\
Under Section 1029 of the Dodd-Frank Act, the Commission retains all of
its enforcement authority over motor vehicle dealers.\9\ The FTC's
authority is exclusive as to motor vehicle dealers that routinely
assign credit contracts to unaffiliated third parties,\10\ and
concurrent with the new CFPB as to dealers that do not.\11\
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\6\ Public Law 111-203, 124 Stat. 1376 (July 21, 2010) (to be
codified in scattered titles and sections of the U.S. Code).
\7\ 5 U.S.C. 553.
\8\ See Dodd-Frank Act Sec. 1029(d). The term ``motor vehicle
dealer'' refers to ``any person or resident in the United States, or
any territory of the United States, who (A) is licensed by a State,
a territory of the United States, or the District of Columbia to
engage in the sale of motor vehicles; and (B) takes title to, holds
an ownership in, or takes physical custody of motor vehicles.''
Dodd-Frank Act Sec. 1029(f)(2). The term ``motor vehicle''
includes, among other things, motorcycles, motor homes, recreational
vehicle trailers, recreational boats and marine equipment, and other
vehicles titled and sold through dealers. See Dodd-Frank Act Sec.
1029(f)(1).
\9\ Dodd-Frank Act Sec. 1029(f)(1).
\10\ Id. Sec. 1029(a) and (c). Section 1029(a) of the Dodd-
Frank Act provides that, ``(e)xcept as permitted in subsection (b),
the Bureau may not exercise any rulemaking, supervisory, enforcement
or any other authority, including any authority to order
assessments, over a motor vehicle dealer that is predominantly
engaged in the sale and servicing of motor vehicles, the leasing and
servicing of motor vehicles, or both.'' Section 1029(c) provides
that ``nothing in this title, including subtitle F, shall be
construed as modifying, limiting, or superseding the operation of
any provision of Federal law, or otherwise affecting the authority
of the Board of Governors, the Federal Trade Commission, or any
other Federal agency, with respect to a person described in
subsection (a).''
\11\ Id. Sec. 1029(b)(2) (``Subsection (a) shall not apply to
any person, to the extent that such person . . . operates a line of
business--(A) that involves the extension of retail credit or retail
leases involving motor vehicles; and (B) in which--(i) the extension
of retail credit or retail leases are provided directly to
consumers; and (ii) the contract governing such extension of retail
credit or retail leases is not routinely assigned to an unaffiliated
third party finance or leasing source.''). Motor vehicle dealers
that do not routinely assign credit contracts to unaffiliated
parties often are referred to as ``buy here, pay here'' dealers.
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The Dodd-Frank Act also authorizes the FTC to prescribe rules using
APA procedures with respect to unfair or deceptive acts or practices by
motor vehicle dealers.\12\ The motor vehicle roundtables are intended
to inform the Commission regarding what consumer protection issues, if
any, exist that could be addressed through a possible rulemaking or
other initiatives.
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\12\ See id. Sec. 1029(d). Under the Dodd-Frank Act, the FTC's
APA rulemaking authority becomes effective as of the designated
``transfer date.'' See Dodd-Frank Act Sec. 1029A. The CFPB and
Department of Treasury have set July 21, 2011 as the transfer date.
See 75 FR 57252 (Sept. 20, 2010).
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II. Roundtable Goals and Topics for Comment
Consistent with the Commission's authority under the Dodd-Frank
Act, and other consumer protection statutes that it enforces,\13\ the
agency will conduct a series of roundtables to gather more information
on consumer protection issues in connection with motor vehicle sales,
financing, and leasing to assess the propriety of promulgating a rule
or conducting other initiatives. The roundtables will focus primarily
on cars (including automobiles, SUVs, and light trucks) because those
are the vehicles consumers most often use.\14\
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\13\ See supra notes 2, 8 and 10.
\14\ However, the Commission is interested in issues that
pertain to all types of motor vehicles, as defined by the Dodd-Frank
Act, and welcomes comments on all such topics. See supra note 8.
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The FTC staff is seeking public comment on a number of topics
listed below, which will be discussed at the roundtables. Of particular
interest to the FTC staff is data and empirical evidence supporting
comments provided in response to this request.
(1) What categories of motor vehicle dealers (i.e. ``franchise,''
``independent,'' and/or ``buy here, pay here'' \15\) offer credit or
leases to consumers? Do these different categories of dealers offer
different types, or terms, of credit or leasing to consumers? If so, in
what manner and under what terms?
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\15\ ``Buy here, pay here'' dealers typically provide financing
directly or through an in-house finance company. ``Buy here, pay
here'' dealerships tend to operate in the subprime credit area. In
some regions, ``lease here, pay here'' dealerships may provide
leases to consumers, through similar programs.
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(2) What types of financing and leasing are offered to consumers
today? Who are the typical consumers for each type of product?
(3) What practices involving motor vehicle dealers raise consumer
protection issues? How prevalent are these practices in the industry as
a whole or in any subset of the industry?
(4) Do motor vehicle dealers engage in ``yo-yo financing?'' \16\ If
so, please describe in detail how such a transaction occurs. Do these
practices occur in leasing? How prevalent are these practices in the
industry as a whole or in any subset of the industry? What types of
entities are involved, and what role does each play? What types of
consumers are impacted by these practices, and how? What are the costs
and/or benefits to consumers of these practices? What are the
incentives or benefits to dealers for engaging in these practices? Do
consumers understand when they purchase and finance a car that there
may be circumstances in which the financing terms, and monthly
payments, could change? Is yo-yo financing sometimes combined with a
practice whereby the dealer has sold the consumer's trade-in before the
consumer learns of the higher interest and/or payments from the dealer?
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\16\ In many states, a dealer may deliver a vehicle to a
consumer pending approval of the consumer's financing (a practice
known as ``spot delivery''). In general terms, ``yo-yo financing''
refers to a spot delivery in which the dealer apprises a consumer
that the dealer has secured or expects to secure a particular
interest rate and other terms for financing the sale. Days after the
consumer has signed the purchase or credit documents and driven home
in the newly purchased motor vehicle, the dealer contacts the
consumer with information that the financing ``fell through'' and
the consumer must return to the dealership. Upon the consumer's
return, the consumer learns he or she now must pay a higher interest
rate and higher monthly payments to finance the purchase.
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(5) Do finance companies provide incentives or payments to motor
vehicle dealers in exchange for consumers receiving more expensive
credit? Does this practice occur in leasing? How prevalent is this
practice in the industry
[[Page 14016]]
as a whole or in any subset of the industry? How does this practice
work? What types of entities are involved, and what role does each
play? What types of consumers are impacted by this practice and how?
What are the costs and/or benefits of this practice? Do consumers
understand this practice, and to what extent does it affect consumers'
decisions to purchase and finance a motor vehicle? Is this an issue
unique to the sale and financing of motor vehicles, or are there other
industries where sellers may have incentives of which buyers are
unaware and that may be contrary to buyers' interests? If not, should
the sale and financing of motor vehicles be treated differently from
other industries, and why?
(6) Do motor vehicle dealers misrepresent credit or lease terms to
consumers? How prevalent is this practice in the industry as a whole or
in any subset of the industry? What types of terms do dealers
misrepresent and in what circumstances? Are other entities involved in
these practices, and if so, which entities?
(7) Do motor vehicle dealers charge interest rate mark-ups or up-
front charges to consumers for credit or leases about which consumers
are unaware? How prevalent is this practice in the industry as a whole
or in any subset of the industry? How does this occur? Do consumers
understand that dealer financing may include dealer mark-ups in
addition to the cost of the credit or lease, and to what extent does
this practice affect consumers' decisions to purchase and finance a
motor vehicle? Is this an issue unique to the sale and financing of
motor vehicles or are there other industries where sellers charge mark-
ups of which buyers are unaware and that may be contrary to buyers'
interests? If not, should the sale and financing of motor vehicles be
treated differently from other industries, and why?
(8) Is substantial negative equity from a prior purchase, or money
owed on a prior lease, frequently rolled into consumers' next vehicle
purchases or leases? \17\ What are the costs and/or benefits of this
practice? How prevalent is this practice in the industry as a whole or
in any subset of the industry? How does this occur? Do consumers
understand when negative equity is rolled into the credit package of a
newly purchased and financed vehicle?
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\17\ In this situation, a consumer may seek to trade in a
vehicle for which the consumer owes more than the vehicle is worth.
The dealer may accept the trade-in, but will include the negative
equity (the amount owed) for the trade-in in the credit package for
the newly-purchased vehicle, with or without further explanation to
the consumer. This process can result in the consumer being in
another ``upside-down'' credit situation and owing higher monthly
payments.
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(9) Do motor vehicle dealers engage in credit or lease packing,
such as by including amounts for credit insurance, guaranteed
automobile protection (``GAP''), or other add-ons into payment amounts
or other terms quoted to consumers? \18\ How prevalent is this practice
in the industry as a whole or in any subset of the industry? How does
this occur? Do consumers understand this practice?
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\18\ ``Packing'' refers to a situation in which a dealer
includes ``add-ons'' in the credit package for the sale or lease of
a motor vehicle, which might be without the consumer's understanding
or at significantly inflated prices. The practice might include
quoting monthly payments with the add-on amounts automatically
rolled-into the dollar figure stated to the consumer. Such add-ons
might include charges for products and services such as: rust
proofing, undercoating, service agreements, extended warranty
packages, credit life insurance, guaranteed auto protection (GAP,
which refers to coverage for the difference between the amount the
consumer owes on the loan and the current market value of the
vehicle), and other products and services.
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(10) Do dealers include warranties, service contracts, and other
add-ons in credit or lease contracts? How prevalent is this practice in
the industry as a whole or in any subset of the industry? At what point
in the sales process are these items included in the contracts? How
does this practice occur? Do consumers understand this practice?
(11) Do consumers experience discrimination on a prohibited basis
as set forth in Section 701 of the Equal Credit Opportunity Act, 15
U.S.C. 1691, in motor vehicle financing or leasing? How prevalent is
this practice in the industry as a whole or in any subset of the
industry? Do interest rate mark-ups by motor vehicle dealers
disparately impact any groups of consumers in violation of the ECOA?
What other practices by motor vehicle dealers violate the ECOA? What
data exists to measure compliance with the ECOA by motor vehicle
dealers? What other information can motor vehicle dealers collect to
assess ECOA compliance?
(12) Do military personnel or their families face unique consumer
protection concerns when purchasing motor vehicles? What practices
cause those concerns? How prevalent are those concerns in the industry
as a whole or in any subset of the industry? Do or can these concerns
impact military readiness? What practices are involved? What steps have
motor vehicle dealers, states, and consumer groups taken to address
these practices? How successful have they been?
(13) Do motor vehicle dealers fail to pay off liens or trade-ins or
otherwise fail to transfer title at a sale? \19\ How prevalent is this
practice in the industry as a whole or in any subset of the industry?
What are the reasons for failing to pay off a lien? What problems does
this practice raise for consumers? What state laws exist to address
this practice?
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\19\ When consumers seek to purchase a vehicle, they may trade
in a prior vehicle on which amounts are still owed. The consumer may
seek to pay off the amounts owed by refinancing the outstanding
amount owed on the prior vehicle into the credit agreement for the
current vehicle being purchased. As part of the new credit
agreement, the dealer is required to pay-off the amount owed and
secure a release of the lien on the prior vehicle, so that the
consumer is no longer liable for that debt. However, a dealer may
fail to pay off the prior loan and secure a release of lien on the
prior vehicle. As a result, the consumer could become liable for two
credit agreements and two vehicles: the current one being purchased,
and the prior vehicle that the consumer thought was being paid off
but was not.
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(14) Do motor vehicle dealers use global positioning systems or
similar devices to locate and track financed and leased cars? How
prevalent is this practice in the industry as a whole or in any subset
of the industry? What problems does this practice raise for consumers?
Do consumers understand this practice? Does this practice affect
accounts in default? For those consumers who have these devices
installed on their cars, what is done with their route information? Do
service providers retain this data? How do they use it? Does this
practice raise privacy concerns? Do consumers understand that their
vehicles could be tracked, and the extent to which they are being, or
could be, tracked?
(15) How do motor vehicle auction houses operate? Do consumer
protection issues exist in connection with such auction houses? If so,
which issues?
III. Public Participation
A. Registration Information
The roundtables will involve discussion on the issues described
above by those individuals selected to be panelists. A court reporter
will be present to record the proceedings so that a transcript can be
made for the public record. The roundtables are free and open to the
public. FTC will accept pre-registration for the roundtables. Pre-
registration is not necessary to attend, but is encouraged so that
staff may better plan the event. To pre-register, please e-mail your
name and affiliation to PreregisterMotorVehicleRoundtables1@ftc.gov.
When you pre-register, the FTC collects your name, affiliation, and e-
mail address. We will use this information to estimate how many people
will attend and better understand the likely audience for the
[[Page 14017]]
roundtables, and will dispose of it following the roundtables. We may
use your e-mail address to contact you with information about the
roundtable. The FTC Act and other laws the Commission administers
permit the collection of this contact information to consider and use
for the above purposes. Under the Freedom of Information Act or other
laws, we may be required to disclose the information you provide to
outside organizations. For additional information, including routine
uses permitted by the Privacy Act, see the Commission's privacy policy
at http://www.ftc.gov/ftc/privacy.shtm.
B. Requests To Participate as a Panelist
The format will consist of a roundtable with participation by
panelists selected by FTC staff. FTC staff will identify and invite
persons with relevant expertise to participate in the roundtables. In
addition, the FTC staff may invite other persons to participate who
submit requests in response to the Federal Register notice. Persons
seeking to participate as panelists in the roundtables must notify the
FTC in writing of their interest in participating on or before March
28, 2011. Requests to participate filed in an electronic form should be
submitted by e-mail to: MotorVehicleRoundtables1@ftc.gov. Emails should
be captioned ``Motor Vehicle Roundtables--Request to Participate,
Project No. P104811.''
A request to participate as a panelist filed in paper form should
also include the reference ``Motor Vehicle Roundtables, Project No.
P104811'' both in the text of the comment and on the envelope, and
should be mailed or delivered to the following address: Federal Trade
Commission, Office of the Secretary, Room H-113 (Annex V), 600
Pennsylvania Avenue, NW., Washington, DC 20580. The FTC is requesting
that requests to participate filed in paper form be sent by courier or
overnight service, if possible, because U.S. postal mail in the
Washington, DC area and at the Commission is subject to delay due to
heightened security precautions.
C. Comments
Interested parties are invited to submit written comments
electronically or in paper form on the topics to be discussed at the
roundtable. Submission of comments should be captioned ``Motor Vehicle
Roundtables--Comment, Project No. P104811.'' Please note that your
comment--including your name and your state--will be placed on the
public record of this proceeding, including on the publicly accessible
FTC Web site, at http://www.ftc.gov/os/publiccomments.shtm.
Because comments will be made public, they should not include any
sensitive personal information, such as any individual'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. Comments also
should not include any sensitive health information, such as medical
records or other individually identifiable health information. In
addition, comments should not include any ``[t]rade secrets and
commercial or financial information obtained from a person and
privileged or confidential,'' as provided in Section 6(f) of the FTC
Act, 15 U.S.C. 46(f), and Commission Rule 4.10(a)(2), 16 CFR
4.10(a)(2). 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).\20\
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\20\ The comment must be accompanied by an explicit request for
confidential treatment, including the factual and legal basis for
the request, and must identify the specific portions of the comment
to be withheld from the public record. The request will be granted
or denied by the Commission's General Counsel, consistent with
applicable law and the public interest. See 16 CFR 4.9(c).
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Because paper mail addressed to the FTC is subject to delay due to
heightened security screening, please consider submitting your comments
in electronic form. Comments filed in electronic form should be
submitted at https://ftcpublic.commentworks.com/ftc/
motorvehicleroundtables1 following the instructions on the web-based
form. If this Notice appears at http://www.regulations.gov/search/
index.jsp, you may also file an electronic comment through that
website. The Commission will consider all comments forwarded to it by
regulations.gov. You may also visit the FTC Web site at http://
www.ftc.gov to read the Notice and the news release describing it.
A comment filed in paper form should include the reference ``Motor
Vehicle Roundtables, Project No. 104811'' both in the text of the
comment and on the envelope, and should be mailed or delivered to the
following address: Federal Trade Commission, Office of the Secretary,
Room H-113 (Annex V), 600 Pennsylvania Avenue, NW., Washington, DC
20580. The FTC is requesting that comments filed in paper form be sent
by courier or overnight service, if possible, because U.S. postal mail
in the Washington, DC area and at the Commission is subject to delay
due to heightened security precautions.
The FTC Act and other laws the Commission administers permit the
collection of public comments to consider and use in this proceeding as
appropriate. The Commission will consider all timely and responsive
public comments it receives, whether filed in paper or electronic form.
Comments received will be available to the public on the FTC website,
to the extent practicable, at http://www.ftc.gov/os/publics.htm. As a
matter of discretion, the Commission makes every effort to remove home
contact information of individuals before their comments are placed on
the FTC Web site. More information, including routine uses permitted by
the Privacy Act, may be found in the FTC's privacy policy, at http://
www.ftc.gov/ftc/privacy.shtm.
By direction of the Commission.
Donald S. Clark,
Secretary.
[FR Doc. 2011-5873 Filed 3-14-11; 8:45 am]
BILLING CODE 6750-01-P
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