Revisions to Rules of Practice, 15157-15163 [2015-06406]

Agencies

• FEDERAL TRADE COMMISSION

[Federal Register Volume 80, Number 55 (Monday, March 23, 2015)]
[Rules and Regulations]
[Pages 15157-15163]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2015-06406]


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FEDERAL TRADE COMMISSION

16 CFR Parts 2, 3, and 4


Revisions to Rules of Practice

AGENCY: Federal Trade Commission.

ACTION: Final rules.

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SUMMARY: The Commission is revising certain of its rules of practice to 
promote fairness, flexibility and efficiency in its investigations, 
studies, and adjudicative proceedings. These rule revisions include a 
revision to the rule governing the status of cases in administrative 
adjudication following a district court's denial of preliminary 
injunctive relief in an ancillary proceeding. Other changes include 
revisions to the list of Commission officials who have authority to 
modify the terms and timeframe for compliance with compulsory process, 
and a change to the deadline for the Commission to dispose of petitions 
to limit or quash compulsory process. In addition, the Commission is 
updating its procedures for accessing public records and list of exempt 
Privacy Act systems.

DATES: These rule revisions are effective on March 23, 2015.

FOR FURTHER INFORMATION CONTACT: Josephine Liu, Attorney, (202) 326-
2170, Office of the General Counsel, Federal Trade Commission, 600 
Pennsylvania Avenue NW., Washington, DC 20580. For information about 
the revisions to 16 CFR part 4, contact G. Richard Gold, Attorney, 
(202) 326-3355, Office of the General Counsel, Federal Trade 
Commission, 600 Pennsylvania Avenue NW., Washington, DC 20580.

SUPPLEMENTARY INFORMATION: The Federal Trade Commission is revising 
certain rules in parts 2 and 3 of its rules of practice that govern 
investigations and adjudicative proceedings, and is revising other 
rules in part 4 of its rules of practice.
    The Commission is amending Rules 2.7 and 2.10 to provide the Office 
of Policy Planning (``OPP'') Director and Deputy Directors with the 
authority to modify the terms of compliance with compulsory process, 
alter the meet-and-confer prerequisite, and extend the deadline for 
filing a petition to limit or quash compulsory process. This change 
reflects OPP's role in frequently conducting and leading studies under 
section 6(b) of the FTC Act. The Commission is also revising Rule 
2.10(c) to impose a 40-day deadline for disposing of petitions to limit 
or quash compulsory process.
    In part 3 of its Rules, the Commission is amending Rule 3.26 to 
make clear that administrative litigation will be suspended if 
respondents file a qualifying motion for withdrawal or dismissal after 
a district court denies preliminary injunctive relief in an ancillary 
proceeding brought under section 13(b) of the FTC Act. As discussed 
below, the Commission will continue to follow the 1995 Policy Statement 
Regarding Administrative Merger Litigation Following the Denial of a 
Preliminary Injunction \1\ and consider the specific circumstances of 
each case when deciding whether to pursue administrative litigation. In 
addition, the Commission is revising the Part 3 rules to correct 
typographical errors, ensure consistency between sections, clarify 
paragraph headings, and make other technical changes.
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    \1\ Administrative Litigation Following the Denial of a 
Preliminary Injunction: Policy Statement, 60 FR 39741 (Aug. 3, 
1995).
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    In part 4 of its Rules, the Commission is revising the procedures 
and contact information for accessing public records in Rule 4.9, 
making a technical correction to Rule 4.11, and updating the names of 
exempt Privacy Act systems in Rule 4.13.
    Because these rule revisions relate solely to agency procedure and 
practice, publication for notice and comment is not required under the 
Administrative Procedure Act. 5 U.S.C. 553(b).\2\ These rule revisions 
are effective on March 23, 2015.
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    \2\ For this reason, the requirements of the Regulatory 
Flexibility Act are also inapplicable. 5 U.S.C. 601(2), 604(a). 
Likewise, the amendments do not modify any FTC collections of 
information within the meaning of the Paperwork Reduction Act, 44 
U.S.C. 3501 et seq.
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I. Revisions to Rules of Practice for Nonadjudicative Investigations 
(Part 2)

    In 2012, the Commission undertook an extensive revision of its 
rules governing the conduct of its investigations.\3\ The Commission is 
now revising certain of those rules to promote fairness, flexibility, 
and efficiency in FTC investigations, which includes studies conducted 
under section 6(b) of the FTC Act.
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    \3\ See Rules of Practice, 77 FR 59294 (2012).
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Rules 2.7(l) and 2.10(a)(5): Officials With Authority To Modify 
Compulsory Process and Extend the Deadline for Petitions To Quash

    The Commission is revising Rules 2.7(l) and 2.10(a)(5) to reflect 
the fact that the FTC's Office of Policy Planning frequently conducts 
and leads section 6(b) studies. The Commission is amending Rule 2.7(l) 
to include the Office of Policy Planning Director and Deputy Directors 
among the identified Commission officials authorized to modify the 
terms of compliance with orders to file special reports under section 
6(b) of the FTC Act and other forms of compulsory process. Commission 
rules provide that the officials designated in Rule 2.7(l) also have 
the power to modify the manner and form of production of electronically 
stored information (in Rule 2.7(j)), and alter the meet-and-confer 
prerequisite for filing a petition to limit or quash compulsory process 
(in Rule 2.7(k)). Consistent with these amendments, the Commission is 
also revising Rule 2.10(a)(5) to state that the Office of Policy 
Planning Director and Deputy Directors are authorized to extend the 
deadline for filing a petition to limit or quash. The revised rules 
will better reflect Commission practice and provide further flexibility 
and efficiency for 6(b) studies and other investigations.

Rule 2.10(c): Disposition of Petitions To Limit or Quash Compulsory 
Process

    The Commission revised Rule 2.10 in 2012 to eliminate the two-step 
procedure for rulings on petitions to limit or quash compulsory process 
by requiring the full Commission to rule on the petition in the first 
instance. The rule also imposed a 30-day deadline for disposition of 
the petition. The Commission received no comments regarding this 
provision, and adopted it as proposed, noting that if the Commission 
did not meet the deadline, the petition would not be automatically 
granted or denied.\4\ To enable sufficient time for full Commission 
review of the merits of the petition, the Commission

[[Page 15158]]

is revising Rule 2.10(c) to impose a 40-day deadline. The extra 10 days 
for Commission review do not pose a substantial hardship to recipients 
of compulsory process because Rule 2.10(b) continues to provide that 
the timely filing of a petition to limit or quash stays the remaining 
amount of time permitted for compliance.
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    \4\ 77 FR 59300.
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II. Revisions to Rules of Practice for Adjudicative Proceedings (Part 
3)

Rule 3.26

    Rule 3.26 sets out two procedures that facilitate Commission 
consideration of whether to pursue administrative merger litigation 
following judicial denial of preliminary injunctive relief in an 
ancillary proceeding brought under section 13(b) of the Federal Trade 
Commission Act, 15 U.S.C. 53(b).\5\ As explained further below, the 
rule allows respondents to file a motion to withdraw the administrative 
case from adjudication or a motion to dismiss the administrative 
complaint. Such motions can only be filed within a certain time after 
the district court has denied the preliminary injunction or after the 
court of appeals has denied the Commission's motion for relief pending 
appeal.
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    \5\ Although Rule 3.26 applies to any type of administrative 
litigation where the Commission has sought a preliminary injunction, 
the Commission typically seeks such relief during a challenge to an 
unconsummated merger, acquisition, joint venture or similar 
transaction.
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    In revising Rule 3.26, the Commission is also making clear it will 
continue to consider the specific circumstances of each case when 
deciding whether to proceed with administrative litigation, as outlined 
in a 1995 Policy Statement \6\ issued in conjunction with the original 
version of the rule.\7\ As discussed below, the revisions ensure that, 
if respondents file either type of motion in accordance with the rule, 
the administrative litigation will be suspended unless and until the 
Commission rules that maintenance of the litigation would serve the 
public interest. These revisions follow the approach of the original 
version of the rule.
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    \6\ Statement of Federal Trade Commission Policy Regarding 
Administrative Merger Litigation Following the Denial of a 
Preliminary Injunction, supra note 1, at 39743. The Commission 
indicated in 1995 that the principles of the Policy Statement would 
apply also in the context of consumer protection litigation and non-
merger competition litigation.
    \7\ Administrative Litigation Following the Denial of a 
Preliminary Injunction, 60 FR 39640 (Aug. 3, 1995).
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    Rule 3.26, as first issued in 1995, provided that a motion for 
withdrawal would generally result in an automatic withdrawal and that a 
motion for dismissal would result in an automatic stay. The procedure 
for a withdrawal enabled ex parte communications (otherwise prohibited 
by Rule 4.7) while the matter was withdrawn from Part 3 administrative 
adjudication. During this period, complaint counsel and respondents 
(and third parties) could communicate informally with Commissioners to 
discuss the matter without the constraints of the adjudicative rules. 
In addition, because such communications would not be on the record of 
the administrative proceeding, counsel could discuss the case without 
concern that their statements might compromise their litigation 
position if the case were returned to adjudication.
    The alternative procedure in the 1995 Rule provided for an 
automatic stay of the adjudication if a respondent filed a motion to 
dismiss the administrative complaint and to brief the matter on the 
public record. The ex parte restrictions remained in place.
    Because of the long delays that often resulted from the filing of 
motions under the 1995 Rule, the Commission revised the rule in 
2009.\8\ The 2009 rule continued to allow respondents to file either 
type of motion but no longer provided that such a motion would result 
in an automatic withdrawal or an automatic stay. Although it was 
revising the 1995 rule, the Commission indicated, however, that it 
would continue to adhere to the case-by-case approach articulated in 
the 1995 Policy Statement in determining whether to continue with 
administrative litigation challenging a merger after a district court 
had denied preliminary injunctive relief. In addition, the Commission 
authorized motions under Rule 3.26 to be filed at an earlier time 
following the district court's denial of preliminary injunctive relief 
and required the Commission to dispose of such motions within 30 days.
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    \8\ Rules of Practice, 74 FR 1804, 1811-12 (Jan. 13, 2009).
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    Since 2009, the Commission has continued to be guided by the 1995 
Policy Statement when determining whether to proceed with 
administrative litigation. For example, in Laboratory Corporation of 
America, the district court denied the Commission's request for 
preliminary injunctive relief, the respondents then moved to withdraw 
the matter from administrative adjudication, and the Commission granted 
the respondents' motion for withdrawal six days after it was filed.\9\ 
Less than a month later, after carefully considering the factors 
outlined in the Policy Statement, the Commission voted unanimously to 
end the administrative litigation.\10\ The Policy Statement will 
continue to guide the Commission in the future.
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    \9\ See Order Withdrawing Matter from Adjudication Pursuant to 
Rule 3.26(c) of the Commission Rules of Practice, In re Lab. Corp. 
of Am., Docket No. 9345, https://www.ftc.gov/sites/default/files/documents/cases/2011/03/110324labcorpcommorder.pdf (Mar. 23, 2011). 
In Phoebe Putney, the other merger matter since the 2009 rule change 
in which the Commission lost a motion for preliminary injunction, 
the respondents did not invoke Rule 3.26. Rather, the Commission 
granted an unopposed motion to stay the Part 3 proceedings after the 
Eleventh Circuit granted an injunction pending appeal; and the 
Commission subsequently lifted its stay after prevailing in the 
Supreme Court. See Order Granting Respondents' Unopposed Motion to 
Stay Proceeding, In re Phoebe Putney Health Sys., Inc., Docket No. 
9348, https://www.ftc.gov/system/files/documents/cases/130222ccnoa_0.pdf (July 15, 2011); Order Granting Complaint 
Counsel's Motion to Lift Stay, In re Phoebe Putney Health Sys., 
Inc., Docket No. 9348, https://www.ftc.gov/sites/default/files/documents/cases/2013/03/130314phoebeordermotion.pdf (Mar. 14, 2013).
    \10\ See Statement of Commissioners Leibowitz, Kovacic, and 
Ramirez, In re Lab. Corp. of Am., Docket No. 9345, https://www.ftc.gov/system/files/documents/public_statements/568671/110422labcorpcommstmt.pdf (Apr. 21, 2011); Concurring Statement of 
Commissioner Brill, In re Lab. Corp. of Am., Docket No. 9345, https://www.ftc.gov/system/files/documents/public_statements/568681/110422labcorpstmtbrill.pdf (Apr. 21, 2011).
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    The Commission has now decided to return to the automatic 
mechanisms in the 1995 rule. The new rule now provides for an automatic 
withdrawal or automatic stay, depending on the type of motion filed. 
Because the Commission is retaining the deadlines in the 2009 rule for 
the filing of motions and specifying deadlines for Commission 
determinations of the motions, an automatic withdrawal or stay is not 
likely to disrupt the resolution of the matter.
    First, respondents may move to have the administrative case 
withdrawn from adjudication. The Commission is retaining the provision 
in the 2009 rule that motions for withdrawal can be filed jointly or 
separately, so long as all of the respondents agree to seek withdrawal. 
The administrative case will automatically be withdrawn two days after 
the motion is filed, unless complaint counsel files an objection 
asserting that the procedural requirements have not been satisfied,\11\ 
in which case the Commission will

[[Page 15159]]

decide whether to withdraw the case from adjudication.
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    \11\ As the Commission noted in 1995, the procedural 
requirements might not be satisfied if the Rule 3.26 motion is filed 
untimely, or if there is a question as to whether a particular court 
order constitutes a denial of preliminary injunctive relief. 60 FR 
39640 n.3. Rule 3.26 is intended for situations where the court 
refuses to grant the Commission any form of preliminary relief. If, 
for example, the court denies the Commission's request for a 
preliminary injunction halting a proposed merger but nonetheless 
imposes a ``hold separate'' order, Rule 3.26 would not be available.
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    Second, any respondent may file a motion for dismissal that will be 
briefed on the public record. The administrative case will 
automatically be stayed until 7 days after the Commission rules on the 
motion for dismissal, and all deadlines established by the rules will 
be tolled for the amount of time the proceeding is stayed.
    As noted above, the Commission is retaining the 2009 rule's timing 
requirements for such motions but simplifying the wording in Rule 
3.26(b). If the Commission does not file a motion with the court of 
appeals for relief pending appeal within 7 days following the district 
court's denial of a preliminary injunction, the Rule 3.26 motion must 
be filed within 14 days after the denial of the preliminary injunction. 
If the Commission files a motion with the court of appeals for relief 
pending appeal, the Rule 3.26 motion must be filed within 14 days 
after, but no earlier than, denial by the court of appeals of the 
Commission's motion for relief pending appeal.
    In addition, in order to expedite these proceedings, the Commission 
is specifying deadlines for deciding motions under Rule 3.26. If 
respondents file a motion for withdrawal under Rule 3.26(c) and 
complaint counsel files an objection, the Commission must rule on the 
motion within 10 days of the objection. If respondents file a motion 
for dismissal under Rule 3.26(d), the Commission is retaining the 
requirement of the current rule that the Commission decide such motions 
within 30 days.
    The Commission is retaining current Rule 3.26(e), which sets out 
the requirements for memoranda filed in support of or in opposition to 
these motions, and retaining with minor changes Rule 3.26(f), which 
sets out the requirements for filings that contain in camera materials.
    Finally, the Commission is making one other, minor modification to 
the rule: the timeframe for complaint counsel to respond to motions for 
dismissal has been shortened from 14 days to 7 days.

Technical Changes to Other Part 3 Rules

    The Commission is making a number of non-substantive changes to the 
part 3 rules to correct typographical errors, ensure consistency in the 
terminology and the requirements in different sections of the rules, 
clarify paragraph headings, and delete or restore material that was 
inadvertently retained or deleted when the Commission last amended the 
rules in 2011.
    Rule 3.22(a) is being amended to clarify that Rule 3.22(a) does not 
govern the presentation and timing requirements for motions under Rule 
3.26. Similarly, Rule 3.22(b) is being revised to reflect the fact 
that, under the Commission's rules, the filing of certain motions 
automatically stays the proceedings. In particular, motions under Rule 
3.26(d) as revised by this notice and some motions under existing Rule 
3.25(c) will result in automatic stays. For the same reasons, the 
Commission is amending Rule 3.41(f) by adding a cross-reference to Rule 
3.26, to make clear that Rule 3.41(f) does not govern in situations 
where Rule 3.26 applies.
    Rule 3.23(b) is being amended to clarify that a party opposing 
interlocutory review may file an answer to both (1) the initial request 
for determination that is filed with the ALJ, and (2) the subsequent 
application for review that is filed with the Commission. Existing Rule 
3.23(b) could create confusion about whether the first type of answer 
is permitted, because the rule does not expressly authorize answers to 
initial requests but nonetheless mentions the deadline for filing such 
answers.
    The general discovery provisions were previously amended in 2009 to 
prohibit filing discovery materials with the Secretary, except in 
certain circumstances. See 16 CFR 3.31(h). To ensure consistency with 
the 2009 amendment, the Commission is now (1) eliminating the 
requirement in Rule 3.32(a) and (b) that requests for admissions and 
responses thereto be filed with the Secretary, and (2) revising the 
paragraph heading for Rule 3.33(c)(2) and clarifying the text of that 
paragraph. The Commission is also eliminating redundant text for two 
numbers mentioned in Rule 3.32(a) and (b), as well as correcting a 
typographical error in the last sentence of Rule 3.32(b).
    To maintain consistency in how the terms ``prehearing'' and 
``subpoenas'' are used throughout the part 3 rules, the Commission is 
revising Rules 3.35(b)(2) and 3.42(c)(2).
    The Commission is revising Rule 3.45(e) to reflect the fact that 
the parties who submit documents containing in camera or confidential 
information must comply with all of the Commission's rules governing 
the filing and service of documents--including those located in 16 CFR 
part 4--not just with the Commission's part 3 rules. In addition, Rule 
3.45(f) is being revised to delete two sentences that were 
inadvertently not deleted when the Commission amended the rule in 2011. 
Similarly, Rule 3.52(a)(2) is being revised to restore a clause that 
was inadvertently deleted after the 2011 amendments.
    In Rule 3.46(c)(4), an erroneous reference to the public or 
nonpublic status of each ``exhibit'' in the witness index is being 
replaced with ``witness testimony.''

III. Revisions to Miscellaneous Rules (Part 4)

Rule 4.9: The Public Record

    The Commission's public record regulation, 16 CFR 4.9, sets out 
procedures and contact information for accessing public record 
materials. The Commission is amending Rule 4.9(a)(1), (2), (3), (4), 
and 10(viii), 16 CFR 4.9(a)(1), (2), (3), (4), and (10)(viii), to 
reflect updates to these procedures and contact information. The 
revised rule states that these materials are available either 
electronically at the FTC's Web site, www.ftc.gov, or for older 
materials not on the Web site, through telephonic requests with the 
FTC's Reading Room at (202) 326-2222, extension 2.
    Under the prior policy, the FTC's Consumer Response Center (CRC) 
maintained an in-person physical reading room at the Headquarters 
building, where members of the public could inspect records and file 
public record requests. Once requests were received, the CRC worked 
with the Commission's Records and Filings Office, which researched 
public record requests, retrieved documents from storage, and provided 
them to CRC staff and authorized contractors to distribute to the 
requestors to review and make copies in the physical reading room.
    The CRC no longer maintains a physical reading room. To obtain a 
copy of any public records not available on the agency's Web site, 
members of the public can call the Reading Room, which is now staffed 
by the FTC's Library.

Rule 4.11: Disclosure Requests

    The Commission is amending Rule 4.11(a)(1)(i)(F) to conform with 
recent changes made to Rule 4.8(d)(3), which granted Freedom of 
Information Act requesters twenty calendar days to respond to 
Commission notification when there was no fee agreement for processing 
a request and the estimated costs exceed $25.\12\
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    \12\ See 79 FR 15680, 15685 (Mar. 21, 2014). The Commission is 
also amending Rule 4.11(a)(1)(i)(A) to make a minor grammatical 
change.
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Rule 4.13: Privacy Act Rules

    The Commission is making technical corrections and updates to its 
Privacy Act rules at 16 CFR 4.13(m). Paragraph

[[Page 15160]]

(m) sets out systems of records that are exempt from certain Privacy 
Act provisions. The exempt systems contain:
    (1) Investigatory materials maintained by an agency component in 
connection with any activity relating to criminal law enforcement, 
exempt under subsection (j)(2) of the Privacy Act (see paragraph (m)(1) 
of the rules);
    (2) investigatory materials compiled for law enforcement purposes, 
exempt under subsection (k)(2) of the Privacy Act (see paragraph (m)(2) 
of the rules); or
    (3) investigatory materials compiled to determine suitability, 
eligibility, or qualifications for Federal civilian employment, 
military service, Federal contracts, or access to classified 
information, but only where disclosure would reveal the identity of a 
confidential source of information, exempt under subsection (k)(5) of 
the Privacy Act (see paragraph (m)(3) of the rules).
    These Privacy Act systems are exempted from certain Privacy Act 
restrictions and procedural requirements (e.g., access by the subject 
individual) due to the investigatory nature of the records contained in 
those systems. As permitted by the Privacy Act, these exemptions help 
ensure that the Commission may efficiently and effectively perform 
investigations and other authorized duties and activities. In this 
case, the Commission is updating the names and numbering of the exempt 
Privacy Act systems to conform them to the current system names in the 
system of records notices (SORNs) previously published for these exempt 
systems by the FTC.\13\ The revised rule also lists certain FTC 
personnel-related Privacy Act systems that are exempt under Government-
wide SORNs published by the Office of Personnel Management and 
Department of Labor but were inadvertently omitted from the list of 
exempt systems in the FTC's Privacy Act rule.\14\ These amendments to 
the agency's Privacy Act rules are purely technical and are not 
intended to expand or modify the substantive coverage or applicability 
of the Privacy Act exemptions to the FTC's Privacy Act systems or the 
records they contain.
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    \13\ The current SORNs for all 40 FTC Privacy Act systems of 
records are posted on the FTC public Web site, at https://www.ftc.gov/about-ftc/foia/foia-reading-rooms/privacy-act-systems.
    \14\ These systems are II-3--Worker's Compensation--FTC, II-4--
Employment Application-Related Records--FTC, and II-6--
Discrimination Complaint System--FTC.
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List of Subjects

16 CFR Parts 2 and 3

    Administrative practice and procedure.

16 CFR Part 4

    Administrative practice and procedure, Freedom of information, 
Public record.

    For the reasons set forth in the preamble, the Federal Trade 
Commission amends title 16, chapter I, subchapter A of the Code of 
Federal Regulations as follows:

PART 2--NONADJUDICATIVE PROCEDURES

0
1. The authority citation for part 2 continues to read as follows:

    Authority: 15 U.S.C. 46, unless otherwise noted.


0
2. Amend Sec.  2.7 by revising paragraph (l) to read as follows:


Sec.  2.7  Compulsory process in investigations.

* * * * *
    (l) Delegations. The Directors of the Bureaus of Competition, 
Consumer Protection, and Economics and the Office of Policy Planning, 
their Deputy Directors, the Assistant Directors of the Bureaus of 
Competition and Economics, the Associate Directors of the Bureau of 
Consumer Protection, the Regional Directors, and the Assistant Regional 
Directors are all authorized to modify and, in writing, approve the 
terms of compliance with all compulsory process, including subpoenas, 
CIDs, reporting programs, orders requiring reports, answers to 
questions, and orders requiring access. If a recipient of compulsory 
process has demonstrated satisfactory progress toward compliance, a 
Commission official identified in this paragraph may, at his or her 
discretion, extend the time for compliance with Commission compulsory 
process. The subpoena power conferred by section 329 of the Energy 
Policy and Conservation Act (42 U.S.C. 6299) and section 5 of the Webb-
Pomerene (Export Trade) Act (15 U.S.C. 65) are specifically included 
within this delegation of authority.
0
3. Amend Sec.  2.10 by revising paragraphs (a)(5) and (c) to read as 
follows:


Sec.  2.10  Petitions to limit or quash Commission compulsory process.

    (a) * * *
    (5) Extensions of time. The Directors of the Bureaus of 
Competition, Consumer Protection, and Economics and the Office of 
Policy Planning, their Deputy Directors, the Assistant Directors of the 
Bureaus of Competition and Economics, the Associate Directors of the 
Bureau of Consumer Protection, the Regional Directors, and the 
Assistant Regional Directors are delegated, without power of 
redelegation, the authority to rule upon requests for extensions of 
time within which to file petitions to limit or quash Commission 
compulsory process.
* * * * *
    (c) Disposition and review. The Commission will issue an order 
ruling on a petition to limit or quash within 40 days after the 
petition is filed with the Secretary. The order may be served on the 
petitioner via email, facsimile, or any other method reasonably 
calculated to provide notice to the petitioner of the order.
* * * * *

PART 3--RULES OF PRACTICE FOR ADJUDICATIVE PROCEEDINGS

0
4. The authority citation for part 3 continues to read as follows:

    Authority: 15 U.S.C. 46, unless otherwise noted.


0
5. Amend Sec.  3.22 by revising the first three sentences of paragraph 
(a) and paragraph (b) to read as follows:


Sec.  3.22  Motions.

    (a) Presentation and disposition. Motions filed under Sec.  4.17 of 
this chapter shall be directly referred to and ruled on by the 
Commission. Motions to dismiss filed before the evidentiary hearing 
(other than motions to dismiss under Sec.  3.26(d)), motions to strike, 
and motions for summary decision shall be directly referred to the 
Commission and shall be ruled on by the Commission unless the 
Commission in its discretion refers the motion to the Administrative 
Law Judge. Except as otherwise provided by an applicable rule, motions 
not referred to the Administrative Law Judge shall be ruled on by the 
Commission within 45 days of the filing of the last-filed answer or 
reply to the motion, if any, unless the Commission determines there is 
good cause to extend the deadline. * * *
    (b) Proceedings not stayed. A motion under consideration by the 
Commission shall not stay proceedings before the Administrative Law 
Judge unless the Commission so orders or unless otherwise provided by 
an applicable rule.
* * * * *

0
6. Amend Sec.  3.23 by revising paragraph (b) to read as follows:

[[Page 15161]]

Sec.  3.23  Interlocutory appeals.

* * * * *
    (b) Other interlocutory appeals. A party may request the 
Administrative Law Judge to determine that a ruling involves a 
controlling question of law or policy as to which there is substantial 
ground for difference of opinion and that an immediate appeal from the 
ruling may materially advance the ultimate termination of the 
litigation or subsequent review will be an inadequate remedy. An answer 
may be filed within 3 days after the request for determination is 
filed. The Administrative Law Judge shall issue a ruling on the request 
for determination within 3 days of the deadline for filing an answer. 
The party may file an application for review with the Commission within 
1 day after notice that the Administrative Law Judge has issued the 
requested determination or 1 day after the deadline has passed for the 
Administrative Law Judge to issue a ruling on the request for 
determination and the Administrative Law Judge has not issued his or 
her ruling. An answer may be filed within 3 days after the application 
for review is filed.
* * * * *

0
7. Revise Sec.  3.26 to read as follows:


Sec.  3.26  Motions following denial of preliminary injunctive relief.

    (a) This section sets forth two procedures by which respondents may 
obtain consideration of whether continuation of an adjudicative 
proceeding is in the public interest after a court has denied 
preliminary injunctive relief in a separate proceeding brought under 
section 13(b) of the Federal Trade Commission Act, 15 U.S.C. 53(b), in 
aid of the adjudicative proceeding.
    (b) A motion under this section shall be addressed to the 
Commission and must be filed within 14 days after, but no earlier than:
    (1) A district court has denied the Commission's request for a 
preliminary injunction, if the Commission has not filed a motion for 
relief pending appeal with the court of appeals within 7 days following 
the district court's denial of a preliminary injunction; or
    (2) A court of appeals has denied a Commission motion for relief 
pending appeal.
    (c) Withdrawal from adjudication. Following denial of court relief 
as specified in paragraph (b) of this section, respondents may move 
that the adjudicative proceeding be withdrawn from adjudication in 
order to consider whether the public interest warrants further 
litigation. Although all respondents must consent to the filing of such 
a motion, a motion under this paragraph (c) may be filed jointly or 
separately by each of the respondents in the adjudicative proceeding. 
At the time respondents file a motion under this paragraph (c), 
respondents must also electronically transmit a copy to complaint 
counsel. The Secretary shall issue an order withdrawing the matter from 
adjudication 2 days after such a motion is filed, except that, if 
complaint counsel file an objection asserting that the conditions of 
paragraph (b) of this section have not been met, the Commission shall 
decide the motion within 10 days after the objection is filed.
    (d) Consideration on the record of a motion to dismiss. (1) In lieu 
of a motion to withdraw the adjudicative proceeding from adjudication 
under paragraph (c) of this section, any respondent may file a motion 
under this paragraph to dismiss the administrative complaint on the 
basis that the public interest does not warrant further litigation 
after a court has denied preliminary injunctive relief to the 
Commission.
    (2) Stay. The filing of a motion under this paragraph (d) shall 
stay the proceeding until 7 days following the disposition of the 
motion by the Commission, and all deadlines established by these rules 
shall be tolled for the amount of time the proceeding is so stayed.
    (3) Answer. Complaint counsel may file a response within 7 days 
after such motion is filed.
    (4) Ruling by Commission. Within 30 days after the deadline for 
filing a response, the Commission shall rule on any motion under this 
paragraph (d).
    (e) Form. Memoranda in support of or in opposition to motions 
authorized by this section shall not exceed 10,000 words. This word 
count limitation includes headings, footnotes, and quotations, but does 
not include the cover, table of contents, table of citations or 
authorities, glossaries, statements with respect to oral argument, any 
addendums containing statutes, rules or regulations, any certificates 
of counsel, proposed form of order, and any attachment required by 
Sec.  3.45(e).
    (f) In camera materials. If any filing includes materials that are 
subject to confidentiality protections pursuant to an order entered in 
either the proceeding under section 13(b) or the adjudicative 
proceeding, such materials shall be treated as in camera materials for 
purposes of this paragraph and the party shall file 2 versions of the 
document in accordance with the procedures set forth in Sec.  3.45(e). 
The time within which complaint counsel may file an objection or 
response under this section will begin to run upon service of the in 
camera version of the motion (including any supporting briefs and 
memoranda).

0
8. Amend Sec.  3.32 by revising paragraphs (a) and (b) to read as 
follows:


Sec.  3.32  Admissions.

    (a) At any time after 30 days after issuance of a complaint, or 
after publication of notice of an adjudicative hearing in a rulemaking 
proceeding under Sec.  3.13, any party may serve on any other party a 
written request for admission of the truth of any matters relevant to 
the pending proceeding set forth in the request that relate to 
statements or opinions of fact or of the application of law to fact, 
including the genuineness of any documents described in the request. 
Copies of documents shall be served with the request unless they have 
been or are otherwise furnished or are known to be, and in the request 
are stated as being, in the possession of the other party. Each matter 
of which an admission is requested shall be separately set forth.
    (b) The matter is admitted unless, within 10 days after service of 
the request, or within such shorter or longer time as the 
Administrative Law Judge may allow, the party to whom the request is 
directed serves upon the party requesting the admission a sworn written 
answer or objection addressed to the matter. If objection is made, the 
reasons therefor shall be stated. The answer shall specifically deny 
the matter or set forth in detail the reasons why the answering party 
cannot truthfully admit or deny the matter. A denial shall fairly meet 
the substance of the requested admission, and when good faith requires 
that a party qualify its answer or deny only a part of the matter of 
which an admission is requested, the party shall specify so much of it 
as is true and qualify or deny the remainder. An answering party may 
not give lack of information or knowledge as a reason for failure to 
admit or deny unless the party states that it has made reasonable 
inquiry and that the information known to or readily obtainable by the 
party is insufficient to enable it to admit or deny. A party who 
considers that a matter of which an admission has been requested 
presents a genuine issue for trial may not, on that ground alone, 
object to the request; the party may deny the matter or set forth 
reasons why the party cannot admit or deny it.
* * * * *

[[Page 15162]]


0
9. Amend Sec.  3.33 by revising paragraph (c)(2) to read as follows:


Sec.  3.33  Depositions.

* * * * *
    (c) * * *
    (2) Restriction on filings. Except as provided in Sec.  3.31(h), 
notices of depositions shall not be filed with the Office of the 
Secretary or with the Administrative Law Judge, or otherwise provided 
to the Commission.
* * * * *

0
10. Amend Sec.  3.35 by revising paragraph (b)(2) to read as follows:


Sec.  3.35  Interrogatories to parties.

* * * * *
    (b) * * *
    (2) An interrogatory otherwise proper is not necessarily 
objectionable merely because an answer to the interrogatory involves an 
opinion or contention that relates to fact or the application of law to 
fact, but such an interrogatory need not be answered until after 
designated discovery has been completed, but in no case later than 3 
days before the final prehearing conference.
* * * * *

0
11. Amend Sec.  3.41 by revising paragraph (f) to read as follows:


Sec.  3.41  General hearing rules.

* * * * *
    (f) Collateral federal court actions. (1) The pendency of a 
collateral federal court action that relates to the administrative 
adjudication shall not stay the proceeding:
    (i) Unless a court of competent jurisdiction, or the Commission for 
good cause, so directs; or
    (ii) Except as provided in Sec.  3.26.
    (2) A stay shall toll any deadlines set by the rules.

0
12. Amend Sec.  3.42 by revising paragraph (c)(2) to read as follows:


Sec.  3.42  Presiding officials.

* * * * *
    (c) * * *
    (2) To issue subpoenas and orders requiring answers to questions;
* * * * *

0
13. Amend Sec.  3.45 by revising the first two sentences of paragraph 
(e) and paragraph (f) to read as follows:


Sec.  3.45  In camera orders.

* * * * *
    (e) When in camera or confidential information is included in 
briefs and other submissions. If a party includes specific information 
that has been granted in camera status pursuant to paragraph (b) of 
this section or is subject to confidentiality protections pursuant to a 
protective order in any document filed in a proceeding under this part, 
the party shall file 2 versions of the document. A complete version 
shall be marked ``In Camera'' or ``Subject to Protective Order,'' as 
appropriate, on every page and shall be filed with the Secretary and 
served by the party on the other parties in accordance with the 
Commission's rules. * * *
    (f) When in camera or confidential information is included in 
rulings or recommendations of the Administrative Law Judge. If the 
Administrative Law Judge includes in any ruling or recommendation 
information that has been granted in camera status pursuant to 
paragraph (b) of this section or is subject to confidentiality 
protections pursuant to a protective order, the Administrative Law 
Judge shall file 2 versions of the ruling or recommendation. A complete 
version shall be marked ``In Camera'' or ``Subject to Protective 
Order,'' as appropriate, on every page and shall be served upon the 
parties. The complete version will be placed in the in camera record of 
the proceeding. An expurgated version, to be filed within 5 days after 
the filing of the complete version, shall omit the in camera and 
confidential information that appears in the complete version, shall be 
marked ``Public Record'' on every page, shall be served upon the 
parties, and shall be included in the public record of the proceeding.
* * * * *

0
14. Amend Sec.  3.46 by revising paragraph (c)(4) to read as follows:


Sec.  3.46  Proposed findings, conclusions, and order.

* * * * *
    (c) * * *
    (4) A statement whether the witness testimony has been accorded in 
camera treatment, and a citation to the in camera ruling.
* * * * *

0
15. Amend Sec.  3.52 by revising paragraph (a)(2) to read as follows:


Sec.  3.52  Appeal from initial decision.

    (a) * * *
    (2) If no objections to the initial decision are filed, the 
Commission may in its discretion hold oral argument within 10 days 
after the deadline for the filing of objection, and will issue its 
final decision pursuant to Sec.  3.54 within 45 days after oral 
argument. If no oral argument is scheduled, the Commission will issue 
its final decision pursuant to Sec.  3.54 within 45 days after the 
deadline for the filing of objections.
* * * * *

PART 4--MISCELLANEOUS RULES

0
16. The authority citation for part 4 continues to read as follows:

    Authority: 15 U.S.C. 46, unless otherwise noted.


0
17. Amend Sec.  4.9 by revising paragraphs (a)(1), (2), (3), (4) 
introductory text, (4)(i) and (a)(10)(viii) to read as follows:


Sec.  4.9  The public record.

    (a) General. (1) Materials on the public record of the Commission 
are available for public inspection and copying either from the 
Commission's Web site or upon request.
    (2) Materials that are exempt from mandatory public disclosure, or 
are otherwise not available from the Commission's public record, may be 
made available only upon request under the procedures set forth in 
Sec.  4.11, or as provided in Sec. Sec.  4.10(d) through (g), 4.13, and 
4.15(b)(3), or by the Commission.
    (3) Electronic access to public records. The majority of recent 
Commission public records are available for review electronically on 
the Commission's Web site on the Internet, www.ftc.gov. Copies of 
records that the Commission is required to make available to the public 
electronically, pursuant to 5 U.S.C. 552(a)(2), may be obtained in that 
format from https://www.ftc.gov/foia/readingroom.shtm.
    (4) Requesting public records--(i) Procedures. Certain older public 
records may not be available at the FTC Web site. Any person may 
request copies of such records by contacting the FTC Reading Room by 
telephone at (202) 326-2222, extension 2. These requests shall specify 
as clearly and accurately as reasonably possible the records desired. 
For records that cannot be specified with complete clarity and 
particularity, requesters shall provide descriptions sufficient to 
enable qualified Commission personnel to locate the records sought. The 
Commission, the Supervisor of the Consumer Response Center, the General 
Counsel, or the deciding official (as designated by the General 
Counsel) may decide to provide only one copy of any public record and 
may refuse to provide copies to the requester if the records have been 
published or are publicly available at places other than the 
Commission's offices.
* * * * *
    (10) * * *
    (viii) The Commission's annual report submitted after the end of 
each fiscal year, summarizing its work during the year (with copies 
obtainable from the Superintendent of Documents, U.S.

[[Page 15163]]

Government Publishing Office, Washington, DC 20402) and any other 
annual reports made to Congress on activities of the Commission as 
required by law;
* * * * *

0
18. Amend Sec.  4.11 by revising paragraphs (a)(1)(i)(A) and (F) to 
read as follows:


Sec.  4.11  Disclosure requests.

    (a) Freedom of Information Act--(1) Initial requests--(i) Form and 
contents; time of receipt. (A) A request under the provisions of the 
Freedom of Information Act, 5 U.S.C. 552, as amended, for access to 
Commission records shall be in writing and transmitted by one of the 
following means: by mail to the following address: Freedom of 
Information Act Request, Office of the General Counsel, Federal Trade 
Commission, 600 Pennsylvania Avenue NW., Washington, DC 20580; by 
facsimile transmission to (202) 326-2477; by email message to the FOIA 
email account at foia@ftc.gov; or by the form located on the FTC's FOIA 
Web site, https://www.ftc.gov/ftc/foia.htm.
* * * * *
    (F) Failure to agree to pay fees. If a request does not include an 
agreement to pay fees, and if the requester is notified of the 
estimated costs pursuant to Sec.  4.8(d)(3), the request will be deemed 
not to have been received until the requester agrees to pay such fees. 
If a requester declines to pay fees within 20 calendar days and is not 
granted a fee waiver, the request will be denied.
* * * * *

0
19. Amend Sec.  4.13 by revising paragraph (m) to read as follows:


Sec.  4.13  Privacy Act rules.

* * * * *
    (m) Specific exemptions. (1) Pursuant to 5 U.S.C. 552a(j)(2), 
investigatory materials maintained by an agency component in connection 
with any activity relating to criminal law enforcement in the following 
systems of records are exempt from all subsections of 5 U.S.C. 552a, 
except (b), (c)(1) and (2), (e)(4)(A) through (F), (e)(6), (7), (9), 
(10), and (11), and (i), and from the provisions of this section, 
except as otherwise provided in 5 U.S.C. 552a(j)(2):
    (i) I-7--Office of Inspector General Investigative Files--FTC.
    (ii) [Reserved]
    (2) Pursuant to 5 U.S.C. 552a(k)(2), investigatory materials 
compiled for law enforcement purposes in the following systems of 
records are exempt from subsections (c)(3), (d), (e)(1), (e)(4)(G), 
(H), and (I), and (f) of 5 U.S.C. 552a, and from the provisions of this 
section, except as otherwise provided in 5 U.S.C. 552a(k)(2):
    (i) I-1--Nonpublic Investigational and Other Nonpublic Legal 
Program Records--FTC.
    (ii) I-2--Disciplinary Action Investigatory Files--FTC.
    (iii) I-4--Clearance Application and Response Files--FTC.
    (iv) I-5--Matter Management System--FTC.
    (v) I-7--Office of Inspector General Investigative Files--FTC.
    (vi) I-8--Stenographic Reporting Services Request System--FTC.
    (vii) II-3--Worker's Compensation--FTC.
    (viii) II-6--Discrimination Complaint System--FTC.
    (ix) IV-1--Consumer Information System--FTC.
    (x) V-1--Freedom of Information Act Requests and Appeals--FTC.
    (xi) V-2--Privacy Act Requests and Appeals--FTC.
    (xii) VII-6--Document Management and Retrieval System--FTC.
    (3) Pursuant to 5 U.S.C. 552a(k)(5), investigatory materials 
compiled to determine suitability, eligibility, or qualifications for 
Federal civilian employment, military service, Federal contracts, or 
access to classified information, but only where disclosure would 
reveal the identity of a confidential source of information, in the 
following systems of records are exempt from subsections (c)(3), (d), 
(e)(1), (e)(4)(G), (H), and (I), and (f) of 5 U.S.C. 552a, and from the 
provisions of this section, except as otherwise provided in 5 U.S.C. 
552a(k)(5):
    (i) II-4--Employment Application-Related Records--FTC.
    (ii) II-11--Personnel Security, Identity Management and Access 
Control Records System--FTC.

    By direction of the Commission.
Janice Podoll Frankle,
Acting Secretary.
[FR Doc. 2015-06406 Filed 3-20-15; 8:45 am]
 BILLING CODE 6750-01-P