Rules of Practice for Adjudicative Proceedings, 21775-21795 [2016-08125]

Download as PDF Federal Register / Vol. 81, No. 71 / Wednesday, April 13, 2016 / Proposed Rules Slidell Airport, Slidell, LA, with segments extending from the 6.5-mile radius to 9.2 miles north, and 9 miles south of the airport. Airspace reconfiguration is necessary due to the decommissioning of NDBs, cancellation of NDB approaches, and implementation of RNAV procedures at the above airports. The Class E airspace area extending upward from 700 feet above the surface within a 6.8-mile radius of Homer Municipal Airport, Homer, LA, would be removed as controlled airspace is no longer needed. Controlled airspace is necessary for the safety and management of the standard instrument approach procedures for IFR operations at the airports. Class E airspace designations are published in paragraph 6005 of FAA Order 7400.9Z, dated August 6, 2015, and effective September 15, 2015, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designations listed in this document will be published subsequently in the Order. Regulatory Notices and Analyses Environmental Review jstallworth on DSK7TPTVN1PROD with PROPOSALS Aviation Administration proposes to amend 14 CFR part 71 as follows: CONSUMER PRODUCT SAFETY COMMISSION PART 71—DESIGNATION OF CLASS A, B, C, D, AND E AIRSPACE AREAS; AIR TRAFFIC SERVICE ROUTES; AND REPORTING POINTS 16 CFR Part 1025 1. The authority citation for 14 CFR part 71 continues to read as follows: ■ Authority: 49 U.S.C. 106(f), 106(g); 40103, 40113, 40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959–1963 Comp., p. 389. § 71.1 [Amended] 2. The incorporation by reference in 14 CFR 71.1 of FAA Order 7400.9Z, Airspace Designations and Reporting Points, dated August 6, 2015, and effective September 15, 2015, is amended as follows: ■ Paragraph 6005 Class E Airspace Areas Extending Upward From 700 Feet or More Above the Surface of the Earth. * * * ASW LA E5 The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current, is non-controversial and unlikely to result in adverse or negative comments. It, therefore: (1) Is not a ‘‘significant regulatory action’’ under Executive Order 12866; (2) is not a ‘‘significant rule’’ under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified that this rule, when promulgated, would not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. This proposal will be subject to an environmental analysis in accordance with FAA Order 1050.1F, ‘‘Environmental Impacts: Policies and Procedures’’ prior to any FAA final regulatory action. List of Subjects in 14 CFR Part 71 Airspace, Incorporation by reference, Navigation (air). * * De Quincy, LA [Amended] De Quincy Industrial Airpark, LA (Lat. 30°26′28″ N., long. 93°28′25″ W.) That airspace extending upward from 700 feet above the surface within a 7.5-mile radius of De Quincy Industrial Airpark. * * * ASW LA E5 * * * * Homer, LA [Removed] * ASW LA E5 * * Minden, LA [Amended] Minden-Webster Airport, LA (Lat. 32°38′46″ N., long. 93°17′53″ W.) That airspace extending upward from 700 feet above the surface within a 6.5-mile radius of Minden-Webster Airport. * * * ASW LA E5 * * Slidell, LA [Amended] Slidell Airport, LA (Lat. 30°20′47″ N., long. 89°49′15″ W.) That airspace extending upward from 700 feet above the surface within a 6.5-mile radius of Slidell Airport, and within 4.0 miles each side of the 360° bearing from the airport extending from the 6.5-mile radius to 9.2 miles north of the airport, and within 4.0 miles each side of the 180° bearing from the airport extending from the 6.5-mile radius to 9.0 miles south of the airport. Issued in Fort Worth, Texas, on April 4, 2016. Robert W. Beck, Manager, Operations Support Group, Central Service Center. [FR Doc. 2016–08393 Filed 4–12–16; 8:45 am] The Proposed Amendment BILLING CODE 4910–13–P Accordingly, pursuant to the authority delegated to me, the Federal VerDate Sep<11>2014 14:59 Apr 12, 2016 Jkt 238001 21775 PO 00000 Frm 00018 Fmt 4702 Sfmt 4702 [CPSC Docket No. 2016–0006] Rules of Practice for Adjudicative Proceedings Consumer Product Safety Commission. ACTION: Notice of proposed rulemaking. AGENCY: The United States Consumer Product Safety Commission (‘‘Commission,’’ ‘‘CPSC,’’ or ‘‘we’’) is issuing this notice of proposed rulemaking (‘‘NPR’’) to update the Commission’s Rules of Practice for Adjudicative Proceedings, (‘‘Rules of Practice’’ or ‘‘Rules’’). We are proposing to modernize the Rules of Practice to reflect changes in civil and administrative litigation since adoption of the Rules in 1980. Specifically, we propose changes to the Rules pertaining to discovery, electronic filing, the use of electronically stored information (‘‘ESI’’), and updates to the Federal Rules of Civil Procedure (‘‘Federal Rules’’), upon which our Rules are based. We also propose to update requirements for pleadings, motions, and motions for summary decisions, clarifications on the computation of time, and clarification on when amendments or supplemental pleadings require Commission approval. Additionally, we propose allowing a Presiding Officer to exercise discretion to avoid unnecessary delay or wasteful discovery and to consolidate cases in their entirety, or partially, for any purpose that serves the ends of justice. We also propose to set deadlines for the issuance of an Initial or Recommended Decision. Finally, we propose to remove outdated references to the Equal Access to Justice Act. We believe the proposed Rules will increase the efficiency of discovery, minimize the potential for delay in adjudicative proceedings, and ensure that, to the extent possible, Commission adjudicative proceedings address and resolve crucial issues of consumer product safety in a fair and impartial manner. This NPR seeks comments on the proposed changes to the Rules. DATES: Submit comments by June 13, 2016. SUMMARY: You may submit comments, identified by Docket No. CPSC 2016– 0006, electronically or in writing, by any of the following methods: Electronic Submissions: Submit electronic comments to the Federal eRulemaking Portal at: http:// ADDRESSES: E:\FR\FM\13APP1.SGM 13APP1 21776 Federal Register / Vol. 81, No. 71 / Wednesday, April 13, 2016 / Proposed Rules www.regulations.gov. Follow the instructions for submitting comments. The Commission does not accept comments submitted by electronic mail (email), except through www.regulations.gov. The Commission encourages you to submit electronic comments through the Federal eRulemaking Portal. Written Submissions: Submit written submissions by mail/hand delivery/ courier to: Office of the Secretariat, Consumer Product Safety Commission, Room 820, 4330 East West Highway, Bethesda, MD 20814; telephone (301) 504–7923. Instructions: All submissions received must include the agency name and docket number for this proposed rulemaking. All comments received may be posted without change, including any personal identifiers, contact information, or other personal information provided, to: http:// www.regulations.gov. Do not submit confidential business information, trade secret information, or other sensitive or protected information that you do not want to be available to the public. If furnished at all, such information should be submitted in writing. Docket: For access to the docket to read background documents or comments received, go to: http:// www.regulations.gov, and insert the docket number CPSC–2016–0006, into the ‘‘Search’’ box, and follow the prompts. FOR FURTHER INFORMATION CONTACT: Mary B. Murphy, Assistant General Counsel, U.S. Consumer Product Safety Commission, 4330 E. West Highway, Bethesda, MD 20814–4408; email: mmurphy@cpsc.gov telephone: (301) 504–7809. The Commission is proposing to amend the agency’s Rules of Practice for Adjudicative Proceedings. 16 CFR part 1025. The proposed rule reflects changes in civil and administrative litigation since adoption of the Rules in 1980. SUPPLEMENTARY INFORMATION: jstallworth on DSK7TPTVN1PROD with PROPOSALS Table of Contents I. Background and Statutory Authority II. Reasons for Revision of the Rules III. Section-by-Section Analysis of the Proposed Revisions of the Rules of Practice IV. Environmental Issues V. Regulatory Flexibility VI. Paperwork Reduction VII. Preemption VIII. Effective Date IX. Requests for Comments VerDate Sep<11>2014 14:59 Apr 12, 2016 Jkt 238001 I. Background and Statutory Authority a. Commission Adjudicative Proceedings The Consumer Product Safety Act (15 U.S.C. 2064(c), (d), (f); 2076(b)) (‘‘CPSA’’), the Federal Hazardous Substances Act (id. 1274) (‘‘FHSA’’), the Flammable Fabrics Act (id. 1192, 1194, 1197(b)) (‘‘FFA’’), the Poison Prevention Packaging Act (id. 1473(c)) (‘‘PPPA’’), and the Virginia Graeme Baker Pool and Spa Act, (id. 8003) (‘‘VGBA’’) authorize the Commission to initiate and conduct adjudicative proceedings related to the safety of certain consumer products, and, based on the Commission’s findings, issue orders or take other action to protect the public. Under the requirements of the cited statutes, such adjudicative proceedings must be determined on an administrative record after opportunity for a public hearing. b. Procedural Rules Requirement Under the Administrative Procedure Act (‘‘APA’’) (5 U.S.C. 500 et seq.), adjudications mandated by statute to be determined on the record after opportunity for a public hearing are subject to certain procedural requirements. These requirements include notice of the time, place and nature of the hearing, information about the legal authority under which the hearing is to be held, and information on the matters of fact and law asserted. (Id. 554(a)–(b)). The Commission adopted the Rules of Practice to govern adjudicative hearings under its enabling statutes and other administrative proceedings, as determined by the Commission. c. History of the Rules of Practice The Rules of Practice were first proposed by the Commission in 1974, for use on an interim basis. (39 FR 26848, July 23, 1974). In 1977, the Commission revised the Rules of Practice, publishing them for use on an interim basis and for public comment. (42 FR 31431 (interim rules); 42 FR 36818 (issuing correction). In 1980, after considering public comments and the Commission’s experiences with the existing interim rules, the Commission adopted the Rules of Practice. (45 FR 29215, May 1, 1980). The Commission last amended the Rules of Practice in 1982 to make them applicable to hearings required by section 15 of the FHSA (47 FR 46845, Oct. 21, 1982). On May 12, 2015, the Commission voted to direct staff to present for Commission consideration a revision of the Rules of Practice, with the goal of streamlining future adjudications and PO 00000 Frm 00019 Fmt 4702 Sfmt 4702 aligning the Rules of Practice with the Federal Rules of Civil Procedure. II. Reasons for Proposed Revision of the Rules a. Alignment With the Federal Rules of Civil Procedure Since the 1980s, when the Commission last amended the Rules of Practice, the Commission’s model, the Federal Rules, have been substantially revised. Among other things, these changes altered the pretrial process, providing new discovery standards intended to increase the speed and efficiency of litigation. Prominent among these changes were detailed rules requiring parties to cooperate in pre-discovery and pre-trial planning. For example, the Federal Rules now require an affirmative prediscovery disclosure by each party of information, documents, ESI, and other evidence that the party may use to support its claims or defenses. The Federal Rules also require participation by parties in pre-discovery and pretrial conferences, with the aim of focusing the issues to be adjudicated. Along with these changes have come new limits on formal discovery tools, including interrogatories, document requests, and depositions. In addition to proposing that our Rules of Practice follow the scope of discovery stated in Rule 26 of the Federal Rules, we are proposing to follow, with certain changes, the Federal Rules’ procedures on mandatory disclosures of information and the Federal Rules’ limits on formal discovery tools, by adhering to the Federal Rules on interrogatories, requests for documents and things, depositions, and requests for admission. We believe that changing our Rules of Practice to require affirmative prediscovery disclosure, mandate participation in pre-discovery and prehearing conferences, and impose limits on wasteful discovery practices will streamline the adjudicative process, and thereby, advance our goal of establishing expeditious and fair proceedings. Recent changes in the Federal Rules have also placed substantial focus on the discretionary powers of Presiding Officers. Under these rules, the judge or magistrate may limit or expand discovery, and on motion, or on his or her own initiative, may tailor the pace of the adjudication and the scope and length of discovery based on the issues in each case. We are proposing to follow, with appropriate changes, the Federal Rules’ emphasis on empowering the Presiding Officer to use his or her discretion to control the pace and E:\FR\FM\13APP1.SGM 13APP1 Federal Register / Vol. 81, No. 71 / Wednesday, April 13, 2016 / Proposed Rules progress of discovery. In our proposed Rules of Practice, the Presiding Officer would be an active participant in the discovery process, with powers to actively manage cases to avoid delays and forestall inefficient or wasteful discovery. The Federal Rules provide substantial guidance on the discoverability and use of ESI because, increasingly, information is stored in digital form. Our proposed Rules of Practice would largely follow the Federal Rules’ guidance on the discoverability of electronic evidence. jstallworth on DSK7TPTVN1PROD with PROPOSALS b. Increasing the Efficiency of Adjudicative Proceedings In addition to aligning our Rules of Practice with the Federal Rules, the changes we propose would increase the efficiency and decrease the burden of preparing for and litigating administrative hearings. For example, we propose to update our Rules of Practice on consolidating cases to allow the Presiding Officer to consolidate cases, fully or partially, for discovery and/or for hearing, on a party’s motion, or at the Presiding Officer’s discretion. Additional proposed changes would adapt the Rules of Practice to the general needs of administrative litigation, based on the experiences of Commission staff in adjudicative proceedings. In each case, we propose to emphasize the discretion of the Presiding Officer to facilitate quick, fair, and efficient discovery and trial of adjudicative matters. Although we would vest significant discretion in the Presiding Officer, we would, nevertheless, seek to impose timelines on the adjudicative proceeding and deadlines on the Presiding Officer, requiring initial decisions to be made within set time frames. c. Updating CPSC’s Rules of Practice To Conform to Current Administrative Practice Another important reason for updating our Rules of Practice is to clarify the process for amending complaints authorized by the Commission. We propose to update our Rules of Practice to provide clearer guidance on when amendments require Commission consideration. We also propose to revise our Rules of Practice to permit electronic filing and service of pleadings and documents and to discourage filing of paper documents. Likewise, we propose to revise the existing requirement that the Commission’s Secretariat maintain an official paper file, a practice that is cumbersome and fails to reflect significant technological advancements. VerDate Sep<11>2014 14:59 Apr 12, 2016 Jkt 238001 We also propose to revise our Rules of Practice regarding service of process to accommodate electronic service of most documents and pleadings and to recognize the use of common carriers in the delivery of paper documents. Likewise, we propose to clarify our Rules of Practice regarding motions for summary decisions, amending that section to follow more closely the Federal Rules. III. Section-by-Section Analysis of the Proposed Revisions to the Rules of Practice Subpart A—Scope of Rules, Nature of Adjudicative Proceedings, Definitions Proposed Changes to Rule § 1025.1 (Scope of Rules) The proposal would revise § 1025.1, Scope of rules, to clarify that, in addition to adjudicative proceedings related to the CPSA, the FHSA, and the FFA, the Commission also is empowered to conduct adjudications under the PPPA and the VGBA. Specifically, our proposed revision would clarify that the Commission may conduct adjudicative proceedings under Section 4(c) of the PPPA and Section 1404 of the VGBA. We propose to add appropriate references to these statutes and make additional minor changes for clarity in our Rules of Practice. In addition, the proposal would revise § 1025.1 to remove the existing statement that the Rules of Practice govern adjudicative proceedings for the assessment of civil penalties under section 20(a) of the CPSA. Pursuant to a statutory change, such actions are now litigated in U.S. District Court, rather than before the Commission. Therefore, the current language in our Rules of Practice is unnecessary and inaccurate, as is a statement on the limited scope of discovery in civil penalty cases, which we also propose to remove. We also propose new language in § 1025.1 to establish the Commission’s health and safety mission as a critical concern the Presiding Officer must take into account when establishing deadlines and managing cases. When a matter fails to proceed in a timely manner, it not only results in increased costs and uncertainty for the parties and participants, it can also undermine the agency’s statutory obligation to protect the public against unreasonable risks of injury and death associated with consumer products. The Commission expects that the Presiding Officer shall, whenever possible, and in in the interest of protecting public health and safety, expedite proceedings by setting shorter time limitations than the maximum limits imposed by the rules, PO 00000 Frm 00020 Fmt 4702 Sfmt 4702 21777 with the goal of issuing an Initial Decision within 1 year from the date of the complaint. As part of our goal of aligning the Rules of Practice with the updated Federal Rules, we also propose to add a statement to § 1025.1, indicating that, except where stated otherwise, parties shall follow the Federal Rules on certain discovery matters. We believe that following the Federal Rules on discovery matters would streamline the discovery process, and thereby introduce increased efficiencies to advance our goal of avoiding unnecessary delay. Through this change, we would redefine the scope of discovery to encompass Rule 26 of the Federal Rules, and would follow generally, with some stated exceptions discussed below, the Federal Rules’ procedures on pretrial discovery, including interrogatories (Fed. R. Civ. P. 33); production of documents, electronically stored information, and tangible things (Fed. R. Civ. P. 34); requests for admission (Fed. R. Civ. P. 36); and depositions (Fed. R. Civ. P. 30– 32). We would not follow the Federal Rules on subpoenas, which by statute, requires Commission approval. We also propose additional minor and nonsubstantive changes to the Rules of Practice for clarity. Proposed Changes to § 1025.3 (Definitions) One of our goals in revising our Rules of Practice is to update the Rules of Practice to reflect current litigation practices and advances in technology. To recognize that ESI, i.e., information created, manipulated, communicated, stored, and best utilized in digital form, or requiring the use of computer software and hardware, has become a significant part of civil discovery, we propose in new § 1025.3(e) to follow the definition of ESI in the Federal Rules. We believe this definition would provide clarity and allow parties and participants to be guided by the developing case law and scholarship on electronic discovery. We also propose several additional non-substantive changes, including a new § 1025.3(f) that would reference our rule on ex parte communications. We further propose to add a new § 1025.3(g) to clarify that references to the Federal Rules throughout this proposed rule refer to the Federal Rules of Civil Procedure. Because we propose additional paragraphs, we would also re-designate the paragraphs in this section to reflect these changes. Finally, we propose a clarified definition of CPSC’s ‘‘Secretariat’’ in current § 1025.3(n). E:\FR\FM\13APP1.SGM 13APP1 21778 Federal Register / Vol. 81, No. 71 / Wednesday, April 13, 2016 / Proposed Rules Subpart B—Pleadings, Form, Execution, Service of Documents jstallworth on DSK7TPTVN1PROD with PROPOSALS Proposed Changes to § 1025.11 (Commencement of Proceedings) Section 1025.11 sets out requirements for the filing of a complaint in an adjudicative proceeding. In § 1025.11(a), we propose revisions to reflect organizational changes within the Commission since adoption of the current Rules of Practice. Complaint Counsel would be authorized to sign a complaint following Commission approval, rather than the Assistant Executive Director for Compliance and Enforcement, as the current rule requires. Currently, § 1025.11(b)(3) requires that a complaint contain ‘‘[a] list and summary of documentary evidence supporting the charges.’’ We propose eliminating this requirement given the mandatory disclosures of evidence set forth in Federal Rule 26(a)(1)(A), which we propose following as part of § 1025.31, General provisions governing discovery, discussed below. We propose adding a new § 1025.11(d) to clarify that a Commission action to obtain a preliminary injunction from a federal district court pursuant to 15 U.S.C. 2064(g) shall not serve as the basis to stay proceedings under these rules. In light of the extensive time frame for resolving matters in adjudicative proceedings, it is the Commission’s strong expectation that if the respondent fails to agree to stop sale and distribution of a product which the Commission has reason to believe presents a substantial product hazard, Commission staff will, within a reasonable amount of time following the commencement of proceedings under this part 1025, apply to a district court of the United States for the issuance of a preliminary injunction (pursuant to 15 U.S.C. 2064(g)) to restrain the distribution in commerce of such product pending the completion the adjudicative proceedings. For this reason, and in furtherance of its mission to protect public health and safety, the Commission strongly urges the Presiding Officer to, whenever practicable, shorten the time limitations imposed by these rules and endeavor to issue an Initial Decision as soon as possible. We also propose several additional minor and non-substantive changes in grammar throughout this paragraph. VerDate Sep<11>2014 14:59 Apr 12, 2016 Jkt 238001 Proposed Changes to § 1025.13 (Amendments and Supplemental Pleadings) Section 1025.13, titled, Amendments and supplemental pleadings, currently states that the Presiding Officer may allow appropriate amendments and supplemental pleadings which do not unduly broaden the issues in the proceedings or cause undue delay. When this section was initially proposed in 1977, commenters expressed concern that granting such broad discretion risked ‘‘usurping the Commission’s function’’ to serve as the sole source of administrative litigation seeking to compel recall of consumer products. 45 FR 29 206–207 (May 1, 1980). At the time, stating that the Rules ‘‘provide adequate procedures for the parties to argue their respective positions and an adequate framework for the exercise of the broad discretion vested in the Presiding Officer,’’ the Commission concluded that, under § 1025.13, ‘‘neither the Presiding Officer nor the Commission staff is usurping the Commission function.’’ 45 FR 29208. We now believe it may be helpful to provide additional clarity. The Commission proposes to amend § 1025.13 to require that the Presiding Officer refer to the Commission any amendment that would (1) have the effect of adding to or removing from the litigation any party or count, (2) fall outside the scope of an authorized complaint, or (3) broaden staff’s authority under a complaint. Proposed Changes to § 1025.14 (Form and Filing of Documents) As an initial matter, we are proposing to revise the title of this section to Form and filing of pleadings and other documents to clarify that the requirements of this section pertain to pleadings, as well as other documents. In § 1025.14(a), we propose that all pleadings and documents shall be filed electronically with the Secretariat and the Presiding Officer, unless the Presiding Officer orders otherwise. We propose this change because the rule, as written, is outdated and does not reflect current practice for filing pleadings and evidence electronically, which has become the norm in most state and federal courts. Moreover, the current rule requires the Office of the Secretary to maintain the official file, in paper format, access to which is limited by the operational hours of the Commission. Thus, our proposed change would not only reflect current technological advances, but the change also would expand public access to the official file. The proposed rule would, however, PO 00000 Frm 00021 Fmt 4702 Sfmt 4702 allow the Presiding Officer discretion to permit exceptions to the electronic filing requirement so that paper documents may be filed if the Presiding Officer so orders. To emphasize our preference for electronic filing, we propose to omit existing language stating that documents ‘‘may be filed in person or by mail.’’ We also propose changes, consistent with our proposal on electronic filing, establishing the filing date for documents. Electronically filed documents would be deemed filed on the date of the electronic filing; however, recognizing the broad discretion afforded the Presiding Officer, we propose adding language stating that the Presiding Officer may allow alternative methods of filing, by order, and that such order shall state the applicable date on which such pleadings or documents are deemed filed. New language in proposed § 1025.14(c) would also eliminate our current requirement that three copies of pleadings be filed, a superfluous requirement in an era where digital copies are created easily. Under our proposed change, a single electronic copy must be filed with the Secretariat and the Presiding Officer; however, we propose to add language that acknowledges that the Presiding Officer may order paper filings. In § 1025.14(d), we would require that the original of each document that is filed electronically be signed electronically. Section 1025.14(e) currently anticipates filing of paper documents, and sets standards for such filings. We propose to amend this paragraph to establish requirements that address the electronic filing of pleadings and documents. In § 1025.14(e)(1), we would require an electronic address in addition to a mailing address. Section 1025.14(e)(2) would require filing electronic text documents in a format that uses 12-point font with double spacing and prints on standard lettersized paper with 1-inch margins. This paragraph also would include the requirement that electronic documents and files that cannot be readily printed, such as large spreadsheets, videos, or photographs, be identified by technical format and also include information on the program or protocol required to review the information. The font, spacing and margin requirements are consistent with Rule 32 of the Federal Rules of Appellate Procedure and Rule 102(a)(b) of the U.S. District Court for the District of Maryland. We also propose to update § 1025.14(e)(3), which currently states: E:\FR\FM\13APP1.SGM 13APP1 Federal Register / Vol. 81, No. 71 / Wednesday, April 13, 2016 / Proposed Rules jstallworth on DSK7TPTVN1PROD with PROPOSALS ‘‘[d]ocuments that fail to comply with this section may be returned by the Secretary.’’ Under the proposed § 1025.14(e)(3), documents that do not meet the filing requirements, or electronic documents that cannot be opened or read, may be returned to the filer by the Secretariat or the Presiding Officer. Lastly, we propose to add language to § 1025.14(e)(3) to allow a Presiding Officer to permit deviation from the form prescribed in this section, for good cause shown, a change that underscores our goal of vesting broad discretion in the Presiding Officer to maximize efficiency and flexibility in how an adjudication proceeds. Proposed Changes to § 1025.15 (Time) In § 1025.15(a) we would make several non-substantive changes, including a clarification of the title to make clear that the computation of time refers to days. We also would make clear that ‘‘day’’ means calendar day. We further propose to clarify the existing language to state that the day on which the event triggering the period shall not be included in the calculation of time, but each calendar day thereafter shall; and that if the last day of the time period falls on a weekend or legal holiday, the time period shall be tolled until the next day that is not a weekend or a legal holiday. We also propose to update this section to delete references to specified legal holidays in the existing rule and refer instead to the legal public holidays identified in 5 U.S.C. 6103. This revision would include Martin Luther King, Jr.’s birthday as a holiday and would allow the Rules of Practice to reflect any changes to the list of legal public holidays made in the future. We further propose to amend § 1025.15(b) to state that whenever a party is required or permitted to do an act within a prescribed period after service of a document and the Presiding Officer permits service by mail, three (3) days shall be added to the prescribed period. This amendment recognizes that while electronic service is preferred, service by mail may be allowed by order of the Presiding Officer; if such service is made by mail, three additional days would be added to the date by which the recipient must perform a subsequent action. In § 1025.15(c) regarding the extension of time limits, we propose to add language clarifying that initial decisions are decisions issued under § 1025.51 of the Rules of Practice. We also propose to add a new paragraph (d), which would be titled Stay of proceedings, to clarify that if a stay of proceedings is granted by order VerDate Sep<11>2014 14:59 Apr 12, 2016 Jkt 238001 of the Presiding Officer or Commission, the time limits specified in these rules shall be automatically tolled during the period while the stay is in effect. Proposed Changes to § 1025.16 (Service) We propose several changes to § 1025.16, titled, Service, to reflect current litigation practice and advancements in technology. First, we propose to revise § 1025.16(a) to reflect proposed changes to § 1025.14 that would require the Presiding Officer to maintain the official file for an adjudicative proceeding, if practicable. Second, our proposed § 1025.16(b) would remove subpoenas from the service requirements of this section because we address those requirements in § 1025.28(e), discussed below. We also propose a new § 1025.16(b)(1) that would allow service of a complaint, ruling, petition for interlocutory appeal, order, or decision to be made by electronic means if ordered by the Presiding Officer or by agreement of the parties. We also propose renumbering the subparagraphs of § 1025.16(b) to reflect this addition. Third, in proposed § 1025.16(b)(2), we would permit service by commercial carrier, a change that reflects common practice today. We also propose in § 1025.16(b)(3) to add ‘‘a limited liability company’’ to the list of corporate entities that may be served, and would add ‘‘entity’’ in the title of the paragraph, for clarity. We propose this change to capture the types of legal entities that exist and may be the subject of an administrative complaint. Finally, we propose to add language in new § 1025.16(b)(4) that, recognizing the preference for electronic service of documents, clarifies the circumstances in which delivery of a document to an address is appropriate. In § 1025.16(c), we would establish electronic service as the primary mode of service for other documents, unless otherwise ordered by the Presiding Officer or agreed to by the parties. Proposed changes to § 1025.16(e), which provides a form for certificates of service, and § 1025.16(f), which sets the date of service of documents, would provide for electronic filing. Consistent with the establishment of electronic filing, we propose to delete reference in § 1025.16(e) to ‘‘the original of every document,’’ and instead, require that ‘‘every document’’ be accompanied by a certificate of service. Proposed Changes to § 1025.17 (Intervention) We are proposing to revise § 1025.17(a), (b), and (c) to identify accurately the Secretariat of the Commission. We also propose to correct PO 00000 Frm 00022 Fmt 4702 Sfmt 4702 21779 a typographical error in § 1025.17(c)(5). We do not intend these changes to be substantive. Proposed Changes to § 1025.18 (Class Actions) We are proposing to revise § 1025.18(a)(1) for clarity. The general word ‘‘class’’ would be replaced with the more specific phrase ‘‘class of respondents.’’ Proposed Changes to § 1025.19 (Joinder of Proceedings) We propose to revise the title of § 1025.19, currently Joinder of proceedings, to Consolidation of proceedings because the rule, modeled on Rule 19 of the Federal Rules, actually describes consolidation, rather than joinder, a different legal concept. In addition, we propose new § 1025.19(a) to state that the Presiding Officer or the Commission may order the actions involving a common question of law or fact be consolidated for any purpose if the Presiding Officer finds that consolidation will ‘‘avoid unnecessary cost or delay.’’ This would change the current rule, which permits the Presiding Officer or the Commission to consolidate actions only ‘‘for the purpose of hearing or Commission review.’’ This proposed language expands the authority of the Presiding Officer to consolidate actions or portions of actions, as appropriate, a change that is consistent with our goal of assigning broad discretion to the Presiding Officer in the conduct of a proceeding. In practice, the current rule may lead to uncertainty about whether cases may be consolidated for limited purposes, such as discovery, where there are multiple respondents. Under the proposed rule, we make clear that the Presiding Officer may order partial consolidations on issues including, but not limited to, discovery, pretrial procedure, and/or hearing. We propose to add a new § 1025.19(b), including insertion of a title, for clarity. Subpart C—Prehearing Procedures, Motions, Interlocutory Appeals, Summary Judgments, Settlements Proposed Changes to § 1025.21 (Prehearing Conferences) We propose changes to § 1025.21, Prehearing conferences, to reflect updated procedures in the Federal Rules. Specifically, the proposed changes would require a preliminary meeting of the parties before discovery commences, followed by an initial prehearing conference with the Presiding Officer. We believe these E:\FR\FM\13APP1.SGM 13APP1 jstallworth on DSK7TPTVN1PROD with PROPOSALS 21780 Federal Register / Vol. 81, No. 71 / Wednesday, April 13, 2016 / Proposed Rules preliminary steps would streamline the process, focus the issues, and advance our goal of achieving a fair and expeditious proceeding. Under proposed § 1025.21(a), the parties would be required to conduct a preliminary meeting no later than 5 days after the answer is due by the last answering party. At the preliminary meeting, the parties would be directed to discuss the nature and basis of their claims and defenses and the possibilities for settlement or resolution of the case. The proposed change also would require parties to attempt to agree on a proposed discovery plan with a schedule for depositions of fact witnesses, the production of documents and ESI, and the timing of expert discovery. In addition, the proposed revision would require the parties to seek agreement on the scope of electronic discovery, including specified time periods for which electronic information is sought, and agree on the format in which electronic discovery would be produced. The parties also would be required to develop a preliminary time estimate for the evidentiary hearing and to attempt to reach agreement on any other matters to be determined at the prehearing conference. We believe these changes would help expedite the process by setting an earlier deadline for a meeting of the parties and by having the parties resolve issues through mutual agreement. Under proposed § 1025.21(b), which would be titled, Initial prehearing conference, we propose to modify the issues to be discussed at the prehearing conference to provide a more concise list of issues to be addressed. We believe a tailored agenda for the prehearing conference would maximize efficiency and concentrate focus on major issues. At the initial prehearing conference, the parties, with the guidance of the Presiding Officer, would address a range of issues, including their factual and legal theories, the current status of pending motions or petitions, the date for the evidentiary hearing, steps taken to preserve evidence, and the scope of anticipated discovery and a discovery plan. This list would be for illustrative purposes only and would not be intended to restrict the topics that could be discussed at the prehearing conference under the proposed revision to this section. In § 1025.21 we also propose to redesignate existing paragraph (b), Public notice, as paragraph (c), and to redesignate existing paragraph (c), Additional conferences, as paragraph (e). VerDate Sep<11>2014 14:59 Apr 12, 2016 Jkt 238001 Under proposed § 1025.21(d), the Presiding Officer would be required to enter an order setting forth the results of the initial prehearing conference, establishing a timeline for discovery, motions, and any other appropriate matters. We make this proposal to address the inadequacy of the current requirement that the Presiding Officer issue a prehearing order only after the conclusion of the final prehearing conference, a point late in the process that does not provide sufficient time for potential resolution of issues. We believe that the parties and the Presiding Officer would benefit from establishing a schedule earlier in the proceedings, and we also trust that such a schedule would clarify issues and expedite the proceedings. In addition, in § 1025.21 we propose to re-designate existing paragraph (d), Reporting, as paragraph (h), and make it consistent with our proposal in § 1025.41(a) to exclude Commissioners and their staffs from attending or viewing public hearings prior to the Presiding Officer’s initial decision. In paragraph (e), which we propose to re-designate paragraph (g), we would revise the title to be Final prehearing order, for clarity. We also propose to remove references to the format set forth in appendix I, because, as discussed below, we are proposing to delete the appendix. Under proposed § 1025.21(f), we would require a final prehearing conference as close to the evidentiary hearing as practicable. Under the current rules, it is not clear that such a conference should occur; our proposed change would make clear that such a conference would be mandatory. We believe that such a conference would benefit the parties and the Presiding Officer by focusing the issues before the hearing and resolving final evidentiary matters. Proposed Changes to § 1025.22 (Prehearing Briefs) We are proposing to revise this section to require the filing of prehearing briefs, which, under the current Rules, are discretionary. We believe that prehearing briefs should be mandatory because information contained in these briefs would set the necessary framework for the proceeding, clarifying the facts to be proven, the order of proof, and the issues to be decided. Proposed Changes to § 1025.23 (Motions) We propose to change this section to clarify rules governing the filing of motions. Under the current rule, all motions, except for disqualification PO 00000 Frm 00023 Fmt 4702 Sfmt 4702 motions, must be addressed to the Presiding Officer. Our proposed revision to § 1025.23(a) would add subpoena applications to the list of motions that would not be addressed to the Presiding Officer. We propose this change because subpoena applications follow distinct procedures set forth in § 1025.38(c), discussed below. In § 1025.23(b), we propose a minor, non-substantive clarification, changing ‘‘Secretary’’ to ‘‘Secretariat.’’ Proposed changes in § 1025.23(c) would include a revision of the title to Response and replies, which reflects our proposed addition regarding reply briefs. We also would expand the time to respond to motions from 10 days to 14 days because, in staff’s experience, 10 days does not provide adequate time to respond to a motion, particularly when weekend days are considered in the computation. We believe the addition of 4 days to respond to a motion would provide sufficient time to prepare and submit a response without burdening the process with unnecessary delay. Additionally, this paragraph would expressly permit replies, which currently are available only by leave of the Presiding Officer or the Commission. In our experience, replies are granted routinely, and this change merely recognizes that practice, eliminating the unnecessary step of seeking leave. This paragraph also would permit the Presiding Officer (or the Commission, as the case may be), to authorize the filing of additional briefs, on good cause shown, a change that reflects our belief that the broad authority to administer a proceeding should be vested with the Presiding Officer. We further propose that additional briefs, if permitted, must be filed within 5 days after service of the pleading to which the brief replies. Proposed Changes to § 1025.24 (Interlocutory Appeals) Section 1025.24 currently lists four exceptions to the general rule against interlocutory appeals. Proposed § 1025.24 would add a fifth exception, permitting interlocutory appeal where the Presiding Officer grants or denies a motion to amend a complaint under § 1025.13. The proposed revisions to § 1025.13 are intended to reiterate that only the Commission is empowered to issue administrative complaints and that any amendments cannot have that effect without Commission approval. This revision to § 1025.13 is intended to ensure that, if a party believes the Presiding Officer has improperly ruled on such an amendment without Commission approval, that party will have the opportunity to appeal that ruling immediately, without being E:\FR\FM\13APP1.SGM 13APP1 Federal Register / Vol. 81, No. 71 / Wednesday, April 13, 2016 / Proposed Rules jstallworth on DSK7TPTVN1PROD with PROPOSALS compelled to litigate a matter in order to obtain a Commission decision on whether or not that party should be in the litigation at all. We propose to revise § 1025.24(b)(1)(ii) to clarify that nature of the proceeding from which an interlocutory appeal may be filed. We propose to revise § 1025.24(b)(2) to state that the Commission may decide a petition for an interlocutory appeal based on the existing record, or the Commission may request additional briefing and oral presentation. As written, the rule currently imposes an obligation on the Commission to decide the petition or request further briefing. Our proposed change makes clear that such a binary decision is not required and that the Commission has the option of deciding the petition based on the record, or the Commission may request further briefing or oral presentation. Proposed Changes to § 1025.25 (Summary Decisions and Orders) We are proposing changes to § 1025.25(a) to align our rule more closely with Rule 56 of the Federal Rules. Under our current Rules of Practice, the movant does not have to file a statement of material facts not in dispute, nor does the respondent have to file a statement of material facts that respondent contends are in dispute. The proposed change would require that motions and oppositions to motions be accompanied by separate statements of material facts about which the movant asserts there is no dispute and about which the opposing party contends there is a genuine dispute. We believe this change will enhance efficiency because filing statements of material fact would help pinpoint the primary issues in dispute. We also propose to revise § 1025.25(a) to conform to changes we propose to § 1025.21, discussed above, to state that a summary decision motion be filed in accordance with any prehearing order issued by the Presiding Officer. The time for filing the motion would also be defined, providing that such motions to be filed up to thirty (30) days following the close of discovery. We are proposing this change because we believe this time period would afford the Presiding Officer sufficient time to carefully consider such motions, and would encourage resolution of part or all the matter well in advance of the scheduled hearing date. We also propose to revise § 1025.25(b) to require that a response to a summary decision motion be accompanied by a statement of material facts that the opposing party contends are in dispute, a change that will enhance focus on the main issues in dispute. We also propose VerDate Sep<11>2014 14:59 Apr 12, 2016 Jkt 238001 to modify § 1025.25(c) to add specific items in the record that should be considered by the Presiding Officer in resolving the motion, a change that mirrors Rule 56 of the Federal Rules. Proposed Changes to § 1025.26 (Settlements) We are proposing to revise § 1025.26(b) to clarify that motions that request that the Presiding Officer transmit a proposed consent agreement to the Commission must be filed in camera. In addition, we propose to amend this paragraph to state that offers of settlement shall be served on complaint counsel. Thus, the revised rule would ensure that complaint counsel would be apprised of any nonjointly submitted offers of settlement. Under the current rule, a party may submit any settlement offer to the Commission without notifying complaint counsel. Because we are proposing in this rule to remove the ex parte prohibition on communications in the context of settlement agreements, discussed in § 1025.68, we are proposing that complaint counsel be made aware of all such offers so that complaint counsel can communicate knowledgeably to the Commission about the substance of such offers. In § 1025.26(c)(1) through (4), we propose a number of non-substantive editorial changes. In § 1025.26(c)(5), we propose to add language that an offer of settlement should also include a list of ‘‘acts or practices that the respondent shall affirmatively undertake.’’ This addition acknowledges the authority of the Commission, after an opportunity for hearing, to order a firm to undertake certain actions pursuant to section 15(d) of the CPSA. Under current § 1025.26(d), the Presiding Officer may transmit to the Commission offers of settlement that meet the requirements of form and content set forth in § 1025.26(c). We propose to revise this paragraph to require the Presiding Officer to transmit all non-frivolous, non-duplicative settlement offers to the Commission, removing the discretion provided to the Presiding Officer in the current rule. We propose this change because we believe the Commission should review all nonfrivolous, non-duplicative settlements with the goal of advancing resolution of a matter, if possible. In addition, we propose that, to be transmitted, such an offer must comply with the requirements of § 1025.26(b), as well as § 1025.26(c). We also are proposing nonsubstantive changes in § 1025.26(e) and (g). PO 00000 Frm 00024 Fmt 4702 Sfmt 4702 21781 Subpart D—Discovery, Compulsory Process Proposed Changes to § 1025.31 (General Provisions Regarding Discovery) The Commission proposes to revise § 1025.31(a) to require parties to conduct discovery in accordance with Rule 26 of the Federal Rules, with several exceptions, discussed below. Rule 26 imposes a number of requirements, such as requiring initial disclosures, prehearing conferences, scope of discovery, and limitations on the timing, frequency and extent of discovery. Rule 26 also sets forth provisions governing discovery of material prepared in anticipation of trial, expert discovery, and requests for protective orders. Under the current rule, methods, sequence and scope of discovery are addressed in a general fashion. We believe that adopting the detailed procedures set forth in Rule 26 will achieve earlier and more meaningful coordination between the parties and will advance the efficient progress of an adjudicative proceeding. Although we intend largely to follow Rule 26, we propose to depart from Rule 26 procedures in a number of ways. Specifically, regarding the time periods for discovery, we will not follow Rule 26 guidance and will instead allow schedules to be set at the discretion of the Presiding Officer, unless a specific time frame is set forth in our rules. We expect the Presiding Officer to set appropriate timelines as the facts may dictate or the comparative complexity of a matter requires. We also expect that, whenever possible, the Presiding Officer will shorten schedules, particularly where expedited hearings would serve the public interest, or where issues do not require expert discovery or lengthy evidentiary hearings. In addition, in proposed § 1025.31(a), we would require that initial disclosure of information be produced no later than 5 days after the preliminary meeting of the parties. This proposed rule shortens the 14-day time frame for such disclosures that is afforded under the Federal Rule, a step that furthers coordination among the parties and encourages expeditious resolution of issues. We also propose that our proceedings not adhere to Rule 26 requirements that experts must produce a written report (Rule 26(a)(2)(B)) because such reports may not be practicable in adjudicative matters that proceed on an expedited schedule. We also adopt the provisions governing protective orders in Rule 26(c), but we have modified the Rule to recognize that in adjudicative proceedings under part 1025, such motions shall be made to E:\FR\FM\13APP1.SGM 13APP1 21782 Federal Register / Vol. 81, No. 71 / Wednesday, April 13, 2016 / Proposed Rules Proposed Changes to § 1025.33 (Production of Documents) Proposed Changes to § 1025.32 (Written Interrogatories to Parties) jstallworth on DSK7TPTVN1PROD with PROPOSALS and decided by the Presiding Officer. In addition, we propose that our proceedings not adhere to Rule 26(f) regarding conference timing, content, and discovery plan because such matters are governed by the proposed revisions to § 1025.21, which allow the Presiding Officer to impose deadlines and shorten time frames, as necessary. Additionally, we propose changes in newly designated § 1025.31(b), Completion of discovery, to state that the 150-day standard discovery period controls fact discovery but does not control expert discovery, which may extend beyond the 150-day limit. Moreover, our proposed revisions would vest the Presiding Officer with the discretion to establish a time frame for completion of expert discovery. We propose these changes because in our experience expert discovery is more efficient after fact discovery is completed. For less complex matters, the Presiding Officer is vested with the discretion to shorten deadlines and time frames under § 1025.21 of this Rule. Because we are following Rule 26 in large part, we are proposing to omit current paragraphs (a) through (i). We also note that, in following Rule 26, parties are not required to file discovery with the Secretariat and the Presiding Officer. Instead, parties would serve discovery responses on each other, thus relieving the Secretariat and the Presiding Officer of the burden of maintaining a voluminous amount of information. We propose to revise this section to follow, with one exception, Rule 36 of the Federal Rules (Requests for Admission). We would not follow Rule 36 regarding the award of expenses under Rule 37(a)(5) because expenses are not authorized under our Rules of Practice; rather, parties may follow the procedures set forth in § 1025.70 of the Rules of Practice. Because we propose to follow the Federal Rules, we also propose to omit § 1025.34(a) through (c). We propose to revise this section to follow Rule 33 of the Federal Rules (Interrogatories to Parties), including the number, scope, and timing of interrogatories, the requirements of answers and objections, and the option to produce business records, so that we can maximize efficiency and reduce undue delay. Under the proposed change, for example, interrogatories would be limited to 25. The current rules do not impose any limits, thereby inviting overly burdensome requests and potential abuse that could impede the progress of a matter. Adopting Rule 33 of the Federal Rules would allow the Presiding Officer to alter the limits on the frequency and extent of discovery pursuant to Rule 26(b). Because we propose to follow the Federal Rules on interrogatories, we also propose to omit § 1025.32(a) through (d) of the current rules. VerDate Sep<11>2014 14:59 Apr 12, 2016 Jkt 238001 The Commission proposes to revise the title to Production of documents, electronically stored information, and tangible things; access for inspection and other purposes, to reflect the expanded types of information covered by this section. In addition, we propose to revise this section to follow, with one exception, Rule 34 of the Federal Rules (Producing Documents, Electronically Stored Information, and Tangible Things, or Entering onto Land, for Inspection and Other Purposes). This provision governs the number, scope, and timing of information requests, the requirements of responses and objections, and Rule 34’s treatment of production of ESI. We believe this proposed change would maximize efficiency because the proposed procedure would align our discovery practice with discovery under the Federal Rules and case law interpreting the Federal Rules, and would provide specific direction on the discovery of ESI, which is not specifically addressed in our current rules. However, we propose to depart from Rule 34 regarding requests for subpoenas, and propose instead that requests for subpoenas be governed by § 1025.38 of our Rules of Practice, as discussed below. Because we propose to follow the Federal Rules for the production of documents, we also propose to omit § 1025.33(a) through (d). Proposed Changes to § 1025.34 (Requests for Admission) Proposed Changes to § 1025.35 (Depositions) For efficiency reasons and ease of practice, we propose largely to follow the Federal Rules on depositions, which are familiar to most practitioners. Specifically, the Commission proposes to revise this section to follow Rule 30 (Depositions by Oral Examination), Rule 31 (Depositions by Written Questions), and Rule 32 (Using Depositions in Court Proceedings) of the Federal Rules, with certain exceptions discussed below. We propose that requests for subpoenas PO 00000 Frm 00025 Fmt 4702 Sfmt 4702 continue to be governed by § 1025.38 of our Rules of Practice. We also propose that provisions in the Federal Rules governing award of attorney’s fees and expenses shall not apply. Because we propose to follow the Federal Rules, we also propose to omit § 1025.35(a) through (h). We propose these changes because the procedures set forth in Federal Rule 30, for example, would facilitate the noticing of depositions by the parties and encourage cooperation among the litigants during the discovery process. Under our current rule, parties are required to obtain leave of the Presiding Officer to notice all depositions, and there is no limit on the number of depositions that may be noticed. Federal Rule 30 allows parties to notice depositions without leave in most circumstances, including if the parties have stipulated to the deposition and the deposition would not result in more than 10 depositions being taken by each party. In addition, a party wishing to depose a nonparty under the current rule is required to apply for a subpoena; Federal Rule 30 has no such requirement, which will expedite the discovery process. Our current rules also do not limit the length of a deposition, which can lead to protracted and costly depositions; Federal Rule 30, however, establishes a limit on the length of a deposition, limiting depositions to one 7- hour day, unless otherwise ordered by the court. We also propose following Federal Rule 31, titled, Depositions by Written Questions, a practice not currently authorized by our Rules of Practice. We propose this addition because this discovery tool can be more efficient and less costly than an in-person deposition, and may facilitate a more streamlined use of additional discovery methods. We additionally propose following Federal Rule 32 titled, Using Depositions in Court Proceedings because the provisions of this rule address more comprehensively than § 1025.35, the appropriate uses of depositions, the objections to such use, and the form of presentation. Proposed Changes to § 1025.36 (Motions to Compel Discovery) The Commission proposes to revise this section to include a requirement that motions to compel discovery include a certification that the movant has, in good faith, conferred or attempted to confer with the person or party failing to make disclosure. This change is consistent with the requirements in the Federal Rules (see Federal Rule 37(a)(1)), and we believe this change would encourage resolution E:\FR\FM\13APP1.SGM 13APP1 Federal Register / Vol. 81, No. 71 / Wednesday, April 13, 2016 / Proposed Rules of the issues between parties, without intervention by the Presiding Officer. jstallworth on DSK7TPTVN1PROD with PROPOSALS Proposed Changes to § 1025.38 (Subpoenas) We propose to update this section to make it consistent with our proposed changes on electronic filing, discussed above, and for clarity. We would revise § 1025.38(b) to properly identify the Secretariat. In addition, we propose to amend § 1025.38(c) and (d) to clarify the content of, and application process for, subpoenas. Specifically, we propose to remove the paper filing requirement, eliminate the requirement that applications be submitted in triplicate, and delete other requirements related to paper filing. Additionally, in § 1025.38(e), we propose to allow subpoena service to nonparties, as set forth in § 1025.16(b)(2) through (5), which allows for service by a variety of means, but does not permit electronic service. Because nonparties may not have verified electronic addresses, and certification of receipt is not required, service of a subpoena by the other specified methods is more reliable. For parties, we propose allowing for service in any of the methods set forth in § 1025.16(b)(1) through (5). We believe these proposed changes would increase the efficiency of subpoena service because the revisions allow for multiple methods of service, and, in particular, permit electronic service among parties, where the parties have agreed to such methods of service or the Presiding Officer has permitted these methods of service. Additionally, § 1025.38(f) would permit, in addition to mail carrier service, return of service of subpoenas by commercial carrier, a change that reflects common practice today. We also propose to eliminate the requirement that a copy of the subpoena be returned to the Secretary. In addition to other minor and non-substantive changes in § 1025.38(g), we propose to clarify that a motion to quash or limit should be ruled on by the Commission as a time critical matter in accordance with the Commission Decision Making Procedures. Proposed Changes to § 1025.39 (Orders Requiring Witnesses To Testify or Provide Other Information and Granting Immunity). We propose deleting this section and other distinctions relating to the Flammable Fabrics Act (‘‘FFA’’) throughout these rules because they are no longer necessary in light of the Commission’s enhanced authority set forth in section 214 of the Consumer VerDate Sep<11>2014 14:59 Apr 12, 2016 Jkt 238001 Product Safety Improvement Act of 2008, which permits the Commission to take action under section 15 of the Consumer Product Safety Act for violations of that statute and any other Act enforced by the Commission. Subpart E—Hearings Proposed Changes to § 1025.41 (Hearings; General Rules) The Commission proposes to revise § 1025.41(a) to clarify that Commissioners and their staffs should not attend or view public hearings concerning matters that may become subject of review by the Commission as the appellate body. We also propose to revise § 1025.41(b) to clarify that adjudicative proceedings shall be held in one location, absent unusual circumstances. Based on staff experience and common practice in other agencies, we also propose to limit the duration of a proceeding to no more than 210 hours, absent a showing of good cause. We believe this provides ample time for the proper conduct of most hearings, but allows flexibility to alter the time frame if circumstances warrant. We propose other minor, nonsubstantive changes in § 1025.41(c) for clarity. Proposed Changes to § 1025.42 (Powers and Duties of Presiding Officer) The Commission proposes to revise § 1025.42(a)(6) to state that, in addition to procedural motions, the Presiding Officer is empowered to consider and rule on evidentiary motions and other issues, as appropriate. We propose other minor, non-substantive changes in § 1025.42(a)(3) and (b), for clarity. In proposed § 1025.42(d), we make clear that, in addition to the Commission, a Presiding Officer shall not be responsible to, or subject to the supervision of, a Commissioner or a member of a Commissioner’s staff in performance of the adjudicative function. In § 1025.42(e), we propose to clarify that the Commission shall consider a motion to disqualify the Presiding Officer only if the matter has been decided and appealed to the Commission. In addition, we propose other minor, non-substantive changes. Proposed Changes to § 1025.43 (Evidence) The Commission proposes to supplement § 1025.43(a) to provide specific examples of the ways in which the Federal Rules of Evidence may be relaxed to best serve the interests of justice. More specifically, the proposal states that evidence constituting hearsay PO 00000 Frm 00026 Fmt 4702 Sfmt 4702 21783 may be admitted if it is relevant, material, and bears satisfactory indicia or reliability so that its use is fair. In addition, we are proposing a minor, non-substantive change in § 1025.43(d)(1)(i) for uniformity. We also propose to remove an unnecessary ‘‘reserved’’ paragraph in § 1025.43(e) and re-designate paragraph (f) as paragraph (e). Proposed Changes to § 1025.44 (Expert Witnesses) The Commission proposes to revise § 1025.44(a) to align our rule on experts more closely with the standard set forth in Rule 702 of the Federal Rules of Evidence (Testimony by Expert Witnesses). We make this change to maximize efficiency by working within an evidentiary framework with which most practitioners are familiar and allowing the parties and Presiding Officer to be guided by case law interpreting the Federal Rules. We also propose revising § 1025.44(b) to make clear that the Presiding Officer has the authority to order expert testimony to be in writing and filed on the record. In addition, we propose to clarify that the Presiding Officer has the discretion to allow live testimony in lieu of a written submission. This change would be in keeping with our goal of vesting broad discretion with the Presiding Officer in the conduct of a proceeding. We propose to revise § 1025.44(c) and (d) to conform to our proposed revision in § 1025.44(b). Proposed Changes to § 1025.45 (In Camera Materials) We propose to revise § 1025.45(b) to correct typographical and grammatical errors, and to clarify the standard that applies to in camera treatment of documents and testimony. We also propose to move language related to the length of time for in camera treatment from § 1025.45(b) to § 1025.45(b)(3). Additionally, we propose adding language to § 1025.45(e) to make clear that in camera materials may not be released to the public until the order granting in camera treatment expires. We propose to revise § 1025.45(f) for clarity. Proposed Changes to § 1025.46 (Proposed Findings, Conclusions, and Order) The Commission proposes to revise this section to make the filing of posthearing briefs mandatory. Under the current rule, parties may file post hearing briefs, but are not required to do so. Because we believe the public and the Presiding Officer would benefit from E:\FR\FM\13APP1.SGM 13APP1 21784 Federal Register / Vol. 81, No. 71 / Wednesday, April 13, 2016 / Proposed Rules a concise but comprehensive summary of the matter at issue, we propose that this filing be mandatory. In addition, we propose to limit post-hearing briefs to thirty (30) pages. Currently, the rule does not impose a page limit, and we believe parties should be encouraged to file concise pleadings. We also propose to limit replies to the discretion of the Presiding Officer so that the pace of the adjudication at this juncture is not slowed unnecessarily by the filing of excessive briefing materials. We propose other non-substantive changes for clarity. Proposed Changes to § 1025.47 (Record) The Commission proposes to revise § 1025.47(a) of this section to delete the requirement for an ‘‘official court reporter of the Commission’’ because the Commission has no official court reporter. The revised language would require that a hearing shall be ‘‘recorded and transcribed by a court reporter under the supervision of the Presiding Officer.’’ We are proposing other nonsubstantive changes for clarity, including a revision to the appendix citation in the Federal Advisory Committee Act. Proposed Changes to § 1025.48 (Official Docket) The Commission proposes to revise this section to require that the official docket be maintained electronically, in keeping with changes we are proposing throughout our Rules of Practice to update our procedures to reflect advances in technology. We also propose to delete the statement that the docket would be available for inspection by the public during normal business hours as unnecessary because the docket would be available electronically. We propose other nonsubstantive changes for clarity. Proposed Changes to § 1025.49 (Fees) The Commission proposes to revise § 1025.49(a) to allow parties to modify this provision by agreement. jstallworth on DSK7TPTVN1PROD with PROPOSALS Subpart F—Decision Proposed Changes to § 1025.51 (Initial Decision) Under current § 1025.51(a), the Presiding Officer shall endeavor to file an Initial Decision within sixty (60) days after the record closes in a case, or after the filing of post-hearing briefs, whichever is later. The Commission proposes to revise § 1025.51(a) to require the Presiding Officer to file the Initial Decision within a fixed deadline of 60 days. This change is consistent with the Commission’s goal of avoiding unnecessary delay and ensuring that a VerDate Sep<11>2014 14:59 Apr 12, 2016 Jkt 238001 matter progresses in a timely manner to serve the interests of justice. The current rules impose numerous interim deadlines, but do not explicitly provide for a total time limit from complaint to Initial Decision. Staff advises that most cases will take more than 1 year for the Presiding Officer to render an Initial Decision. The Commission believes that the Presiding Officer has considerable discretion in managing cases to ensure the timely and efficient resolution of proceedings, and the Commission expects that the Presiding Officer shall endeavor to make those proceedings as swift as practicable in the interest of due process and the protection of consumer health and safety. The administrative procedures at sister agencies such as the Securities and Exchange Commission (‘‘SEC’’), the Consumer Financial Protection Bureau (‘‘CFPB’’), and the Federal Trade Commission (‘‘FTC’’) employ other practices on ways to make adjudicatory proceedings more efficient, including a fixed time limit from issuance of complaint to evidentiary hearing as required by FTC Rule 16 CFR 3.11 (Commencement of Proceedings), a fixed time limit from complaint to initial decision as required by SEC Rule, 17 CFR 201.360(a)(2) (Initial Decision of Hearing Officer) and CFPB Rule, 12 CFR 1081.400(a) (Recommended Decision of the Hearing Officer), and changes to the rules that limit the scope of discovery available to parties in administrative proceedings as has been adopted by the SEC and CFPB. The Commission seeks comment on whether CPSC should adopt similar practices. We also propose to revise § 1025.51(c) to make clear that the Commission may order that an individual, other than the Presiding Officer, may make and file an Initial Decision, if the Presiding Officer is disqualified under § 1025.42(e). We are proposing to revise § 1025.51(d) to limit the authority of the Presiding Officer to reopen the proceedings to only those circumstances ‘‘where the interests of justice so require.’’ We propose this change to emphasize the need for finality and to ensure timely disposition of a matter. Proposed Changes to § 1025.52 (Adoption of Initial Decision) We are proposing a minor, nonsubstantive change for consistency. Proposed Changes to § 1025.53 (Appeal From Initial Decision) The Commission proposes to revise the title of § 1025.53(a) to Notices of appeal, and we propose several additional changes for clarity. PO 00000 Frm 00027 Fmt 4702 Sfmt 4702 In addition, we propose to revise § 1025.53(b) to limit appeal briefs to thirty (30) pages. Currently, the rule does not impose a page limit, and we believe parties should be encouraged to file concise pleadings. We also propose to amend § 1025.53(c) to impose the same 30-page restriction on answering briefs that applies to appeal briefs. In § 1025.53(f), we would clarify that reply briefs are not required, but if filed, they shall not exceed fifteen (15) pages. Proposed Changes to § 1025.55 (Final Decision on Appeal or Review) The Commission proposes to revise § 1025.55 to remove the word ‘‘endeavor.’’ By doing so, the Commission commits to issue its final decision on appeal or review within 90 days after the filing of all briefs or after receipt of transcript of the oral argument, whichever is later. We are also proposing a minor, non-substantive change in § 1025.55(a) for clarity. Proposed Changes to § 1025.56 (Reconsideration) We are proposing minor, nonsubstantive changes for clarity and to correct a typographical error. Proposed Changes to § 1025.57 (Effective Date of Order) The Commission proposes to revise § 1025.57(a) and (b) to clarify that Commission orders in adjudicative proceedings under the CPSA or the FFA become effective upon receipt by the Respondent. In § 1025.57(b)(1), we propose an additional, non-substantive change for clarity. In § 1025.57(b)(2), we propose corrections for citation errors. Proposed Changes to § 1025.58 (Reopening of Proceedings) The Commission proposes to revise § 1025.58(c)(2) for clarity. In proposed § 1025.58(e)(2), we make clear that the Commission may direct the Presiding Officer to conduct additional hearings if the pleadings raise substantial factual issues. We are proposing this change because as written it is unclear under whose auspices such a hearing would be conducted and recognize that such a hearing should be conducted by the Presiding Officer as the finder of fact. We further propose to clarify in this section, consistent with proposed changes to § 1025.46, to state that post hearing briefs are mandatory. We propose one other non-substantive change for clarity. E:\FR\FM\13APP1.SGM 13APP1 Federal Register / Vol. 81, No. 71 / Wednesday, April 13, 2016 / Proposed Rules Subpart G—Appearances, Standards of Conduct Proposed Changes to § 1025.63 (Written Appearances) The Commission proposes to revise § 1025.63(a) and (b) to conform the requirement for the filing of a notice of appearance to our proposed electronic filing changes to § 1025.14 of the Rules of Practice. In § 1025.63(b), we propose other minor, non-substantive changes for clarity. Proposed Changes to § 1025.65 (Persons Not Attorneys) The Commission proposes to revise § 1025.65(a) for clarity. Proposed Changes to § 1025.66 (Qualifications and Standards of Conduct) The Commission proposes to revise § 1025.66(d) for clarity. jstallworth on DSK7TPTVN1PROD with PROPOSALS Proposed Changes to § 1025.67 (Restrictions as to Former Members and Employees) The Commission proposes to retitle this section to: Restrictions as to former Commission members, to align the title with the text in § 1025.67(a). We also would revise § 1025.67(a) to include additional statutory and regulatory restrictions and propose to revise § 1025.67(c) for clarity. Proposed Changes to § 1025.68 (Prohibited Ex Parte Communications) We propose to add a new § 1025.68(b) to state that, except to the extent required for disposition of ex parte matters authorized by law or by this part, ex parte prohibitions apply to a number of circumstances. Specifically, new § 1025.68(b)(1) would prohibit ex parte communications relevant to the merits of an adjudication by any interested person not employed by the CPSC to any decision maker during the pendency of a proceeding under the Rules. Under the current rule, an ex parte communication is defined as a communication concerning a matter in adjudication made to a decision-maker by any person subject to the Rules of Practice. Our proposed change, which is consistent with the APA, would broaden the ex parte prohibition to include any ‘‘interested person not employed by the Commission.’’ Additionally, new proposed § 1025.68(b)(2) would prohibit any decision maker from making an ex parte communication to any interested party not employed by the Commission. To conform new § 1025.68(c)(2)(i) and (ii) with our proposed new § 1025.68(b), we VerDate Sep<11>2014 14:59 Apr 12, 2016 Jkt 238001 would omit language in those paragraphs limiting the prohibition to persons subject to these Rules of Practice and add language tracking new § 1025.68(b). The Commission also proposes to revise § 1025.68(d) to add paragraph (d)(3) to state that ex parte prohibitions do not apply to communications by any party to the Commission concerning a proposed settlement agreement that has been transmitted to the Commission. We are proposing this change because we believe this would allow parties to communicate information to the Commission that might not otherwise be available to the Commission. We also propose changes in § 1025.68(e) to clarify that the procedures for handling prohibited ex parte communications are also available to recipients of such communications who are not employed by the Commission. We make other, nonsubstantive changes to § 1025.68(e), as well. In § 1025.68(g), we propose changes to be consistent with the proposed changes to this section discussed above, and we also propose that sanctions shall apply to any person or party who makes or causes a prohibited ex parte communication to be made. As currently drafted, the provision allowing sanctions applies only to persons subject to the Rules of Practice. We propose language that would allow sanctions to be imposed on a person who, while not a party, makes a prohibited ex parte communication and subsequently becomes a party. The proposed language, which is consistent with the adjudicative rules adopted by FTC, would authorize the Presiding Officer to impose sanctions allowed under this section, if that person later becomes a party to the proceeding. We propose other minor, nonsubstantive changes for clarity. Proposed § 1025.69 (Separation of Functions) To clarify that Commission staff charged with investigative and prosecutorial responsibilities may not advise a decision maker or otherwise participate in a decision in a proceeding, we propose to add a new § 1025.69 titled, Separation of functions, setting forth the separation of functions provisions of the APA, 5 U.S.C. 554(d). PO 00000 Frm 00028 Fmt 4702 Sfmt 4702 21785 Subpart H—Implementation of the Equal Access to Justice Act in Adjudicative Proceedings With the Commission Proposed Changes to § 1025.70 (General Provisions) The Commission proposes to revise this section to remove outdated and confusing references to the Equal Access to Justice Act (‘‘EAJA’’). As written, the rule substantially re-states EAJA requirements existing when the rule was adopted initially. Many elements of those requirements are no longer current. To avoid updating these rules each time an element of the EAJA is changed, we propose removing references to specific EAJA requirements and stating instead that the EAJA applies to certain adjudicative proceedings before the Commission. We propose stating generally that applications for fees and expenses may be made according to the EAJA, as interpreted by the federal courts and guidance provided by the U.S. Department of Justice (‘‘DOJ’’). Such interpretative case law and DOJ guidance provide ample direction for applicants, the Presiding Officer, and the Commission in the application for, and consideration of, a request for attorney’s fees and other expenses. We do not believe our proceedings warrant particularized requirements regarding EAJA and that the guidance provided by the DOJ, and as interpreted by federal courts, would be sufficient for applicants to proceed with an EAJA claim. We note too that other federal agencies, such as the CFPB, have adopted rules of practice without reference to EAJA. Because we believe DOJ and federal court guidance is sufficient, we propose to omit language in § 1025.70(a) and the entirety of § 1025.70(b) through (h). We are also proposing several minor, nonsubstantive changes for clarity. Proposed Changes to 1025.71 (Information Required From Applicant) Consistent with our goal of following DOJ and federal court guidance on EAJA, we propose omitting this section. Proposed Changes to § 1025.72 (Procedures for Considering Applications) Consistent with our goal of following DOJ and federal court guidance on EAJA, we propose omitting this section. Proposed Changes to Appendix I to Part 1025 (Suggested Form of Final Prehearing Order) We are proposing to omit this appendix, which contains a suggested E:\FR\FM\13APP1.SGM 13APP1 21786 Federal Register / Vol. 81, No. 71 / Wednesday, April 13, 2016 / Proposed Rules form for a final prehearing order, given our proposed revisions to the requirements for prehearing conferences and orders, discussed above. IV. Environmental Considerations The Commission’s regulations address whether the Commission is required to prepare an environmental assessment or an environmental impact statement. 16 CFR part 1021. These regulations provide a categorical exclusion for certain CPSC actions that normally have ‘‘little or no potential for affecting the human environment.’’ 16 CFR 1021.5(c)(l). This proposed rule falls within the categorical exclusion. V. Regulatory Flexibility Analysis Under section 603 of the Regulatory Flexibility Act (‘‘RFA’’), when the APA requires an agency to publish a general notice of proposed rulemaking, the agency must prepare an initial regulatory flexibility analysis (‘‘IRFA’’), assessing the economic impact of the proposed rule on small entities. 5 U.S.C. 603(a). As noted, the Commission is proposing to update its Rules of Practice for Adjudicative Proceedings. Although the Commission is choosing to issue the rule through notice and comment procedures, the APA does not require a proposed rule when an agency issues rules of agency procedure and practice (5 U.S.C. 553(b)). Therefore, no IRFA is required under the RFA. Moreover, the proposed rule would not establish any mandatory requirements and would not impose any obligations on small entities (or any other entity or party). jstallworth on DSK7TPTVN1PROD with PROPOSALS VI. Paperwork Reduction Act The Paperwork Reduction Act (‘‘PRA’’) establishes certain requirements when an agency conducts or sponsors a ‘‘collection of information.’’ 44 U.S.C. 3501–3520. The proposed rule would amend the Commission’s Rules of Practice to adopt modern adjudicative procedures. The proposed rule would not impose any information collection requirements. The existing Rules of Practice and the proposed revision do not require or request information from firms, but rather, explain procedures for adjudicatory hearings. Thus, the PRA is not implicated in this proposed rulemaking. VII. Executive Order 12988 (Preemption) According to Executive Order 12988 (February 5, 1996), agencies must state in clear language the preemptive effect, if any, of new regulations. Section 26 of the CPSA explains the preemptive effect of consumer product safety standards VerDate Sep<11>2014 14:59 Apr 12, 2016 Jkt 238001 issued under the CPSA. 15 U.S.C. 2075. The proposed Rules of Practice do not set consumer product safety standards. Rather, the proposed Rules of Practice is an adoption of updated rules of agency procedure and practice. Therefore, section 26 of the CPSA would not apply to this rulemaking. VIII. Effective Date In accordance with the APA’s general requirement that the effective date of a rule be at least 30 days after publication of the final rule, the Commission proposes that the effective date be 30 days after the date of publication of a final rule in the Federal Register. 5 U.S.C. 553(d). IX. Request for Comments The Commission requests comments on all aspects of the proposed rule. Comments should be submitted in accordance with the instructions in the ADDRESSES section at the beginning of this document. Written comments must be received by June 13, 2016. List of Subjects in 16 CFR Part 1025 Administrative practice and procedure, Consumer protection. For the reasons set forth in the Preamble, the Commission proposes to amend 16 CFR part 1025 to read as follows: PART 1025—RULES OF PRACTICE FOR ADJUDICATIVE PROCEEDINGS 1. The authority citation for part 1025 is revised to read as follows: ■ Authority: Authority: 15 U.S.C. 45, 1192, 1194, 1197(b), 1274, 1473(c), 2064, 2066(b), 2076, 8003. ■ 2. Revise § 1025.1 to read as follows: § 1025.1 Scope of rules. The Rules in this part govern procedures in adjudicative proceedings relating to the provisions of sections 15(c), (d), and (f) and 17(b) of the Consumer Product Safety Act (15 U.S.C. 2064(c), (d), (f); 2066(b)), section 15 of the Federal Hazardous Substances Act (15 U.S.C. 1274), sections 3 and 8(b) of the Flammable Fabrics Act (15 U.S.C. 1192, 1197(b)), section 4(c) of the Poison Prevention Packaging Act (15 U.S.C. 1473(c)), and section 1404 of the Virginia Graeme Baker Pool and Spa Act (15 U.S.C. 8003), which are required to be determined on the record after opportunity for a public hearing. This part may also be applied to such other adjudicative proceedings as the Commission, by order, shall designate. A basic intent of the Commission in the development of these Rules has been to promulgate a single set of procedural PO 00000 Frm 00029 Fmt 4702 Sfmt 4702 rules which can accommodate both simple matters and complex matters in adjudication. To accomplish this objective, broad discretion has been vested in the Presiding Officer who will hear a matter being adjudicated to allow him/her to alter time limitations and other procedural aspects of a case, as required by the complexity of the particular matter involved. A major concern of the Commission is that all matters in adjudication move forward in a timely manner, consistent with the Constitutional due process rights of all parties. Therefore, the Presiding Officer should, whenever appropriate, expedite the proceedings by setting shorter time limitations than those generally applicable under this part. For example, the time limitation for discovery, as provided in § 1025.31(d), may be shortened, consistent with the extent of discovery reasonably necessary to prepare for the hearing. Except where stated otherwise, discovery matters shall be governed by the Federal Rules of Civil Procedure. § 1025.2 [Amended] 3. Amend § 1025.2 by removing the words ‘‘these Rules’’ and adding, in their place, the words ‘‘this part’’. ■ 4. Amend § 1025.3 by: ■ a. Redesignating paragraphs (e) through (l) as paragraphs (h) through (o); ■ b. Adding new paragraphs (e), (f), and (g); and ■ c. Revising newly redesignated paragraphs (i) and (n). The additions and revisions read as follows: ■ § 1025.3 Definitions. * * * * * (e) Electronically Stored Information (‘‘ESI’’) shall have the same meaning given to such term in the Federal Rules. (f) Ex parte communication shall have the meaning set forth in § 1025.68. (g) Federal Rules means the Federal Rules of Civil Procedure. * * * * * (i) Party means any named person or any intervenor in any proceedings governed by this part. * * * * * (n) Secretary or Secretariat means the Secretariat of the Consumer Product Safety Commission. * * * * * ■ 5. Amend § 1025.11 by: ■ a. Revising paragraphs (a) and (b)(3); and ■ b. Adding paragraph (d). The revisions and addition read as follows: § 1025.11 Commencement of proceedings. (a) Notice of institution of enforcement proceedings. Any E:\FR\FM\13APP1.SGM 13APP1 Federal Register / Vol. 81, No. 71 / Wednesday, April 13, 2016 / Proposed Rules adjudicative proceedings under this part shall be commenced by the issuance of a complaint, authorized by the Commission, and signed by Complaint Counsel. (b) * * * (3) A clear and concise statement of the charges, sufficient to inform each respondent with reasonable definitiveness of the factual basis or bases of the allegations of violation or hazard. * * * * * (d) Preliminary injunction. A judicial proceeding for a preliminary injunction pursuant to 15 U.S.C. 2064(g) shall not serve as the basis to stay any proceedings under this part. ■ 6. Revise § 1025.13 to read as follows: § 1025.13 Amendments and supplemental pleadings. The Presiding Officer may allow appropriate amendments and supplemental pleadings which do not unduly broaden the issues in the proceedings or cause undue delay. If any proposed amendment or supplemental pleading would have the effect of adding or removing any persons as a respondent to the complaint or adding or removing any count, or if the Presiding Officer determines that the amendments or supplemental pleadings do not fall within the scope of an authorized complaint, broaden the authority granted staff in a complaint, unduly broaden the issues in the proceedings, or would cause undue delay, the Presiding Officer shall refer such amendments or supplemental pleadings to the Commission for decision. ■ 7. Amend § 1025.14 by revising the section heading and paragraphs (a), (c), (d)(1), and (e) to read as follows: jstallworth on DSK7TPTVN1PROD with PROPOSALS § 1025.14 Form and filing of pleadings and other documents. (a) Filing. Except as otherwise provided by order of the Presiding Officer, all pleadings and documents submitted to the Commission or the Presiding Officer shall be addressed to, and electronically filed with, the Secretariat and the Presiding Officer. Pleadings and documents filed electronically shall be deemed filed on the day of electronic filing; should the Presiding Officer permit by order an alternative method of filing, such order shall state the applicable date on which such filings are to be deemed filed. * * * * * (c) Copies. Unless otherwise ordered by the Presiding Officer, a single electronic copy must be filed with each of the Secretariat and the Presiding VerDate Sep<11>2014 14:59 Apr 12, 2016 Jkt 238001 Officer. Each copy must be clear and legible. (d) * * * (1) The original of each document filed shall be signed by a representative of record for the party or participant; or in the case of parties or participants not represented, by the party or participant; or by a partner, officer or other appropriate official of any corporation, partnership, or unincorporated association, who files an appearance on behalf of the party or participant. Documents electronically filed shall be signed electronically. * * * * * (e) Form. (1) All documents shall be dated and shall contain the electronic address, telephone number, and mailing address of the signer. (2) Electronic text documents shall be filed in a format that prints on paper approximately 81⁄2 x 11 inches in size. Print shall be in 12-point font and double spaced, and margins shall be one inch. Electronic documents and files that cannot readily be printed, such as large spreadsheets, videos, or photographs, should be identified by format and the program or protocol required to review the information. (3) Documents that fail to comply with this section may be returned by the Secretariat or Presiding Officer. Electronic documents and files that cannot be opened or read may be returned by the Secretariat or Presiding Officer. For good cause shown, the Presiding Officer may allow deviation from the form prescribed in this section. ■ 8. Revise § 1025.15 to read as follows: § 1025.15 Time. (a) Computation of days. In computing any time period specified in this part or in any order filed in a proceeding subject to this part, the day of the event triggering the period shall not be included, but each calendar day thereafter shall be included. If the last day of the time period is a Saturday, Sunday, or legal holiday, the period continues to run until the end of the next day that is not a Saturday, Sunday, or legal holiday. When the period of time prescribed or allowed is less than seven (7) days, intermediate Saturdays, Sundays, and legal holidays shall be excluded in the computation. As used in this Rule, ‘‘legal holiday’’ means any day designated as a legal public holiday in 5 U.S.C. 6103. (b) Additional time after service by mail. Whenever a party is required or permitted to do an act within a prescribed period after service of a document and the Presiding Officer permits service by mail, three (3) days shall be added to the prescribed period. PO 00000 Frm 00030 Fmt 4702 Sfmt 4702 21787 (c) Extensions. For good cause shown, the Presiding Officer may extend any time limit prescribed or allowed by this part or by order of the Commission or the Presiding Officer, except for those sections governing the filing of interlocutory appeals and appeals from initial decisions pursuant to § 1025. 13 and those sections expressly requiring Commission action. Except as otherwise provided by law, the Commission, for good cause shown, may extend any time limit prescribed by this part or by order of the Commission or the Presiding Officer. (d) Stay of proceedings. If a stay of proceedings is granted by order of the Presiding Officer or the Commission, the time limits specified in this part shall be automatically tolled during the period while the stay is in effect. ■ 9. Revise § 1025.16 to read as follows: § 1025.16 Service. (a) Mandatory service. Every document filed with the Secretariat shall be served upon all parties to any proceedings, i.e., Complaint Counsel, respondent(s), and party intervenors, as well as the Presiding Officer. Every document filed with the Secretariat or Presiding Officer shall also be served upon each participant, if the Presiding Officer or the Commission so directs. (b) Service of complaint, ruling, petition for interlocutory appeal, order, or decision. A complaint, ruling, petition for interlocutory appeal, order, or decision shall be served as follows: (1) By electronic means. Service may be made by electronic means if ordered by the Presiding Officer or otherwise agreed by the parties; (2) By registered mail, certified mail or commercial carrier. A copy of the document shall be addressed to the person, partnership, corporation or unincorporated association to be served at his/her/its residence or principal office or place of business and sent by registered mail, certified mail, or commercial carrier; (3) By delivery to an individual or entity. A copy of the document may be delivered to the person to be served; or to a member of the partnership or limited liability company to be served; or to the president, secretary, or other executive officer, or a director of the corporation or unincorporated association to be served; or to an agent authorized by appointment or by law to receive service; or (4) By delivery to an address. If the document is not to be served electronically and cannot be served in person or by mail as provided in paragraph (b)(2) or (3) of this section, a copy of the document may be left at the E:\FR\FM\13APP1.SGM 13APP1 jstallworth on DSK7TPTVN1PROD with PROPOSALS 21788 Federal Register / Vol. 81, No. 71 / Wednesday, April 13, 2016 / Proposed Rules principal office or place of business of the person, partnership, corporation, unincorporated association, or authorized agent with an officer or a managing or general agent; or it may be left with a person of suitable age and discretion residing therein, at the residence of the person or of a member of the partnership or of an executive officer, director, or agent of the corporation or unincorporated association to be served; or (5) By publication in the Federal Register. A respondent that cannot be served by any of the methods already described in this section may be served by publication in the Federal Register and such other notice as may be directed by the Presiding Officer or the Commission, where a complaint has issued in a class action pursuant to § 1025.18. (c) Service of other documents. Except as otherwise provided in paragraph (b) of this section, when service of a document starts the running of a prescribed period of time for the submission of a responsive document or the occurrence of an event, the document shall be served by electronic means unless otherwise ordered by the Presiding Officer or otherwise agreed by the parties. (d) Service on a representative. When a party has appeared by an attorney or other representative, service upon that attorney or other representative shall constitute service upon the party. (e) Certificate of service. Every document filed with the Commission and required to be served upon all parties to any proceedings, as well as participants if so directed by the Presiding Officer, shall be accompanied by a certificate of service signed by the party making service, stating that such service has been made upon each party and participant to the proceedings. Certificates of service may be in substantially the following form: I hereby certify that I have served the attached document upon all parties and participants of record in these proceedings by emailing, mailing postage prepaid, or delivering in person, a copy to each on llll. llllllllllllllllll l (Signature) For llllllllllllllll (f) Date of service. The date of service of a document shall be the date on which the document is sent electronically, deposited with the United States Postal Service, postage prepaid, or is delivered in person. § 1025.17 ■ [Amended] 10. Amend § 1025.17 by: VerDate Sep<11>2014 14:59 Apr 12, 2016 Jkt 238001 a. Removing the words ‘‘these rules’’ in paragraph (a) introductory text and adding, in their place, the words ‘‘this part’’; ■ b. Removing the word ‘‘Secretary’’ in paragraphs (a) introductory text, (b) introductory text, and (c) and adding, in its place, the word ‘‘Secretariat’’; ■ c. Removing the words ‘‘, of these rules’’ in paragraph (b)(3); and ■ d. Removing the word ‘‘peititioner’s’’ in paragraph (d)(5) and adding, in its place, the word ‘‘petitioner’s’’ . ■ 11. Amend § 1025.18 by revising paragraphs (a)(1) and (f)(4) and removing the undesignated paragraph following paragraph (f)(4) to read as follows: ■ § 1025.18 Class actions. (a) * * * (1) The class of respondents is so numerous or geographically dispersed that joinder of all members is impracticable; * * * * * (f) * * * (4) Dealing with other procedural matters. The orders may be combined with a prehearing order under § 1025.21 and may be altered or amended as may be necessary. * * * * * ■ 12. Revise § 1025.19 to read as follows: § 1025.19 Consolidation of proceedings. (a) Consolidation of actions. When actions involving a common question of law or fact are pending before the Presiding Officer, the Commission or the Presiding Officer may order a consolidated hearing of any or all the matters in issue in the actions; the Commission or the Presiding Officer may order the actions consolidated for any purpose; and the Commission or the Presiding Officer may make such orders concerning such consolidated proceedings as needed to avoid unnecessary cost or delay. (b) Motions for consolidation. A motion for consolidation may be filed by any party not later than thirty (30) days prior to the hearing. Such motion shall be served upon all parties to any proceedings in which consolidation is contemplated. The motion may include a request that the consolidated proceedings be maintained as a class action in accordance with § 1025.18. The proceedings may be consolidated to such extent and upon such terms as may be proper. Such consolidation may also be ordered upon the initiative of the Presiding Officer or the Commission. Single representatives may be designated by represented parties, PO 00000 Frm 00031 Fmt 4702 Sfmt 4702 intervenors, and participants with an identity of interests. ■ 13. Revise § 1025.21 to read as follows: § 1025.21 Prehearing conferences. (a) Preliminary meeting of the parties. As early as practicable before the prehearing scheduling conference described in paragraph (b) of this section, but in no event later than five (5) days after the answer is due to be filed by the last answering respondent, counsel for the parties shall meet to discuss the nature and basis of their claims and defenses and the possibilities for a prompt settlement or resolution of the case. The parties shall also agree, if possible, on: (1) A proposed discovery plan specifically addressing a schedule for depositions of fact witnesses, the production of documents and electronically stored information, and the timing of expert discovery. The parties’ agreement regarding electronically stored information should include the scope of and a specified time period for the exchange of such information and the format for the discovery of such information; (2) A preliminary estimate of the time required for the evidentiary hearing; and (3) Any other matters to be determined at the prehearing conference. (b) Initial prehearing conference. The Presiding Officer shall hold a prehearing conference not later than 50 days after publication of the complaint in the Federal Register and upon ten (10) days’ notice to all parties and participants. At the prehearing conference any or all of the following shall be considered: (1) The factual and legal theories of the parties; (2) The current status of any pending motions or petitions; (3) A proposed date for the evidentiary hearing, and a schedule of proceedings that is consistent with the date of the evidentiary hearing; (4) Steps taken to preserve evidence relevant to the issues raised by the claims and defenses; (5) The scope of anticipated discovery, any limitations on discovery, and a proposed discovery plan, including the disclosure of electronically stored information; (6) Issues that can be narrowed by agreement or by motion, suggestions to expedite the presentation of evidence at trial, and any request to bifurcate issues, claims or defenses; and (7) Other possible agreements or steps that may aid in the just and expeditious disposition of the proceeding and to avoid unnecessary cost. E:\FR\FM\13APP1.SGM 13APP1 jstallworth on DSK7TPTVN1PROD with PROPOSALS Federal Register / Vol. 81, No. 71 / Wednesday, April 13, 2016 / Proposed Rules (c) Public notice. The Presiding Officer shall cause a notice of the first prehearing conference, including a statement of the issues, to be published in the Federal Register at least ten (10) days prior to the date scheduled for the conference. (d) Prehearing scheduling order. Following the first prehearing conference, the Presiding Officer shall enter an order that sets forth the results of the conference and establishes a schedule of proceedings that will permit the evidentiary hearing to commence expeditiously, including a plan for discovery, and the production of documents and electronically stored information, dates for the submission and hearing of motions, the time and place of a final prehearing conference, and other matters as appropriate. (e) Additional conferences. Additional prehearing conferences may be convened at the discretion of the Presiding Officer, upon notice to the parties, any participants, and to the public. (f) Final prehearing conference. As close to the commencement of the evidentiary hearing as practicable, the Presiding Officer shall hold a final prehearing conference, at which time deadlines for proposed stipulations as to law, fact, or admissibility of evidence, and the exchange of exhibit and witness lists shall be established. At this conference, the Presiding Officer shall also resolve any outstanding evidentiary matters or pending motions (except motions for summary decision) and establish a final schedule for the evidentiary hearing. (g) Final prehearing order. The Presiding Officer shall issue a final prehearing order in each case after the conclusion of the final prehearing conference. The final prehearing order should contain, to the fullest extent possible at that time, all information which is necessary for controlling the course of the hearing. The Presiding Officer may require the parties to submit a jointly proposed final prehearing order. If the complexities of the issues, extent of discovery, or good cause require that the hearing commence more than 300 days past the filing of the complaint, it shall be noted in the order. (h) Reporting. Prehearing conferences shall be stenographically reported as provided in § 1025.47 and shall be open to the public (except as provided in § 1025.41(a)), unless otherwise ordered by the Presiding Officer or the Commission. ■ 14. Revise § 1025.22 introductory text to read as follows: VerDate Sep<11>2014 14:59 Apr 12, 2016 Jkt 238001 § 1025.22 Prehearing briefs. Not later than ten (10) days prior to the hearing, unless otherwise ordered by the Presiding Officer, the parties shall simultaneously serve and file prehearing briefs, which should set forth: * * * * * ■ 15. Amend § 1025.23 by: ■ a. Removing the word ‘‘Secretary’’ from paragraph (b) and adding, in its place, the word ‘‘Secretariat’’; and ■ b. Revising paragraphs (a) and (c). The revisions read as follows: § 1025.23 Motions. (a) Presentation and disposition. All motions, except disqualification motions filed under § 1025.42(e) and motions or applications related to subpoenas under § 1025.38(c), shall be addressed to the Presiding Officer, who shall rule upon them promptly, after affording an opportunity for response. * * * * * (c) Responses and replies to motions. Within fourteen (14) days after service of any written motion or petition or within such longer or shorter time as may be designated by this part or by the Presiding Officer or the Commission, any party who opposes the granting of the requested order, ruling or action may file a written response to the motion. Failure to respond to a written motion may, in the discretion of the Presiding Officer, be considered as consent to the granting of the relief sought in the motion. Replies to responses shall be filed within ten (10) days after service of the response. No additional replies or responses shall be permitted absent leave granted by the Presiding Officer or the Commission on good cause shown. Any additional replies or responses permitted by the Presiding Officer or the Commission shall be filed within five (5) days after service of the pleading to which the reply or response relates. * * * * * § 1025.24 [Amended] 16. Amend § 1025.24 by: a. Adding the words ‘‘that is the subject of a proceeding under this part’’ at the end of paragraph (b)(1)(ii); ■ b. Removing the period at the end of paragraph (b)(1)(iv) and adding a semicolon in its place; ■ c. Adding paragraph (b)(1)(v); and ■ d. Revising the last sentence of paragraph (b)(2). The addition and revision read as follows: ■ ■ § 1025.24 * PO 00000 Interlocutory appeals. * * (b) * * * Frm 00032 * Fmt 4702 * Sfmt 4702 21789 (1) * * * (v) Grants or denies a motion under § 1025.13 unless the Commission has issued a decision under § 1025.13. (2) * * * The Commission may decide the petition, or may request such further briefing or oral presentation as it deems necessary. * * * * * ■ 17. Amend § 1025.25 by revising paragraphs (a), (b), (c), and (d) to read as follows: § 1025.25 Summary decisions and orders. (a) Motion. Any party may file a motion, with a supporting memorandum, for a Summary Decision and Order in its favor upon all or any of the issues in controversy. The motion shall be accompanied by a separate and concise statement of the material facts as to which the moving party contends there is no dispute. Complaint Counsel may file such a motion at any time after thirty (30) days following issuance of a complaint, and any other party may file a motion at any time after issuance of a complaint. Any such motion by any party shall be filed in accordance with prehearing orders issued by the Presiding Officer under § 1025.21, and shall be filed no later than thirty (30) days after the close of discovery. (b) Response to motion. Any other party may, within twenty (20) days after service of the motion, file a response with a supporting memorandum accompanied by a separate and concise statement of the material facts as to which the opposing party contends a genuine dispute exists. (c) Grounds. A Summary Decision and Order shall be granted if the particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials show that there is no genuine issue as to any material fact and that the moving party is entitled to a Summary Decision and Order as a matter of law. (d) Legal effect. A Summary Decision and Order upon all the issues being adjudicated shall constitute the Initial Decision of the Presiding Officer and may be appealed to the Commission in accordance with § 1025.53. A Summary Decision, interlocutory in character, may be rendered on fewer than all issues and may not be appealed prior to issuance of the Initial Decision. * * * * * ■ 18. Revise § 1025.26 to read as follows: E:\FR\FM\13APP1.SGM 13APP1 21790 jstallworth on DSK7TPTVN1PROD with PROPOSALS § 1025.26 Federal Register / Vol. 81, No. 71 / Wednesday, April 13, 2016 / Proposed Rules Settlements. (a) Availability. Any party shall have the opportunity to submit an offer of settlement to the Presiding Officer. (b) Form. Offers of settlement shall be filed in camera in the form of a consent agreement and order, shall be signed by the respondent or respondent’s representative, and may be signed by any other party. Each offer of settlement shall be accompanied by an in camera motion requesting that the Presiding Officer transmit the proposed consent agreement and order to the Commission. The motion shall outline the substantive provisions of the proposed consent agreement, and state reasons why the consent agreement should be accepted by the Commission. Offers of settlement and accompanying motions not jointly submitted shall be served simultaneously on Complaint Counsel. (c) Contents. An offer of settlement shall contain: (1) An admission of all jurisdictional facts; (2) An express waiver of further procedural steps and of all rights to seek judicial review or otherwise to contest the validity of the Commission order; (3) A statement that the allegations of the complaint are resolved by the consent agreement and order; (4) A description of the alleged hazard, noncompliance, or violation; (5) As appropriate, a listing of the acts or practices from which the respondent shall refrain and those acts or practices that the respondent shall affirmatively undertake; and (6) As appropriate, a detailed statement of the corrective action(s) which the respondent shall undertake. In proceedings arising under Section 15 of the Consumer Product Safety Act, 15 U.S.C. 2064, this statement shall contain all the elements of a ‘‘Corrective Action Plan,’’ as outlined in the Commission’s Interpretation, Policy, and Procedure for Substantial Product Hazards, 16 CFR part 1115. (d) Transmittal. The Presiding Officer shall transmit settlement offers that meet the requirements of paragraphs (b) and (c) of this section to the Commission for its consideration unless the Presiding Officer determines the settlement offer is clearly frivolous, duplicative of offers previously made, or contrary to established Commission policy. The Presiding Officer may, but need not, recommend acceptance of offers. Any party may object to the transmittal to the Commission of an offer of settlement by filing a response opposing the motion. (e) Stay of proceedings. When an offer of settlement has been agreed to by all parties and has been transmitted to the VerDate Sep<11>2014 14:59 Apr 12, 2016 Jkt 238001 Commission, the proceedings shall be stayed until the Commission has ruled on the offer of settlement. When an offer of settlement has been made and transmitted to the Commission but has not been agreed to by all parties, the proceedings shall not be stayed pending Commission decision on the offer, unless otherwise ordered by the Presiding Officer or the Commission. (f) Commission ruling. The Commission shall rule upon all transmitted offers of settlement. If the Commission accepts the offer, the Commission shall issue an appropriate order, which shall become effective upon issuance. (g) Commission rejection. If the Commission rejects an offer of settlement, the Secretariat shall give written notice of the Commission’s decision to the parties and the Presiding Officer. If the proceedings have been stayed, the Presiding Officer shall promptly issue an order resuming the proceedings, with consideration to any modifications to the schedule necessitated by the stay. (h) Effect of rejected offer. Neither rejected offers of settlement, nor the fact of the proposal of offers of settlement are admissible in evidence. ■ 19. Revise § 1025.31 to read as follows: § 1025.31 General provisions governing discovery. (a) Unless otherwise provided by statute, the parties shall conduct discovery in accordance with and subject to Rule 26 of the Federal Rules, as specified in this part. Unless specified in paragraphs (a)(1) through (4) of this section or provided for in this part, the time frames set for all actions described in Rule 26 shall be set by the Presiding Officer. (1) Initial disclosures of information required in Federal Rule 26(a)(1)(C) shall be produced no later than 5 days after the preliminary meeting of the parties as set forth in § 1025.21(a). (2) Federal Rule 26(a)(2)(B) (Witnesses Who Must Provide a Written Report) shall not apply. (3) Federal Rule 26(c) (Protective Orders) shall apply with the following exceptions: Motions for protective orders shall be made to and decided by the Presiding Officer; Federal Rule 26(c)(3) shall not apply. (4) Federal Rule 26(f) (Conference of the Parties: Planning for Discovery) shall not apply. The conference of the parties and joint discovery planning required in Federal Rule 26(f) shall take place as set forth in § 1025.21, or as otherwise ordered by the Presiding Officer. PO 00000 Frm 00033 Fmt 4702 Sfmt 4702 (b) Completion of discovery. All nonexpert discovery shall be completed as soon as practical but in no case longer than one hundred fifty (150) days after issuance of a complaint, unless otherwise ordered by the Presiding Officer in exceptional circumstances and for good cause shown. All discovery demands shall be made and served by a date which affords the party from whom discovery is sought the full response period provided by this part. The Presiding Officer shall establish a time frame for the completion of expert discovery in accordance with § 1025.21. ■ 20. Revise § 1025.32 to read as follows: § 1025.32 parties. Written interrogatories to This section shall be governed by Rule 33 of the Federal Rules. ■ 21. Revise § 1025.33 to read as follows: § 1025.33 Production of documents, electronically stored information, and tangible things; access for inspection and other purposes. This section shall be governed by Rule 34 of the Federal Rules, with the following exception: Requests for subpoenas shall be governed by § 1025.38. ■ 22. Revise § 1025.34 to read as follows: § 1025.34 Requests for admission. This section shall be governed by Rule 36 of the Federal Rules, except that Rule 37(a)(5) award of expenses shall not apply. ■ 23. Revise § 1025.35 to read as follows: § 1025.35 Depositions. This section shall be governed by Rules 30–32 of the Federal Rules, with the following exceptions: Requests for subpoenas shall be governed by § 1025.38; and Federal Rule 37(a)(5) award of expenses shall not apply. ■ 24. Revise § 1025.36 to read as follows: § 1025.36 Motions to compel discovery. If a party fails to respond to discovery, in whole or in part, the party seeking discovery may move within twenty (20) days for an order compelling an answer, or compelling inspection or production of documents, or otherwise compelling discovery. The motion must include a certification that the movant has in good faith conferred or attempted to confer with the person or party failing to make disclosure or discovery in an effort to obtain it without action by the Presiding Officer. For purposes of this section, an evasive or incomplete response is to be E:\FR\FM\13APP1.SGM 13APP1 Federal Register / Vol. 81, No. 71 / Wednesday, April 13, 2016 / Proposed Rules treated as a failure to respond. When taking depositions, the discovering party shall continue the examination to the extent possible with respect to other areas of inquiry before moving to compel discovery. § 1025.37 [Amended] 25. Amend § 1025.37(g) by removing the words ‘‘of these rules’’. ■ 26. Revise § 1025.38 to read as follows: ■ jstallworth on DSK7TPTVN1PROD with PROPOSALS § 1025.38 Subpoenas. (a) Availability. A subpoena shall be addressed to any person not a party for the purpose of compelling attendance, testimony, and production of documents at a hearing or deposition, and may be addressed to any party for the same purposes. (b) Form. A subpoena shall identify the action with which it is connected; shall specify the person to whom it is addressed and the date, time, and place for compliance with its provisions; and shall be issued by order of the Commission and signed by the Secretariat or by the Presiding Officer. A subpoena duces tecum shall specify the books, papers, documents, or other materials or data-compilations to be produced. (c) How obtained—(1) Content of application. An application for the issuance of a subpoena, stating reasons, shall be submitted to the Presiding Officer, who shall forward the application to the Commission. (2) Procedure for application. The Commission shall rule upon the application for a subpoena ex parte, by issuing an order granting or denying the application. (d) Issuance of a subpoena. The Commission shall issue a subpoena by authorizing the Secretariat or the Presiding Officer to sign and date the approved subpoena for transmittal to the applicant for service. (e) Service of a subpoena. A subpoena issued by the Commission shall be served upon the addressee as provided in § 1025.16(b)(2) through (5) and upon all parties as provided in § 1025.16(b). (f) Return of service. A person serving a subpoena shall promptly execute a return of service, stating the date, time, and manner of service upon the addressee. If service is effected by mail or commercial carrier, the signed return receipt or proof of delivery shall accompany the return of service. In case of failure to make service, a statement of the reasons for the failure shall be made. (g) Motion to quash or limit subpoena. Within five (5) days after receipt of a subpoena, the person to whom it is directed may file a motion to quash or VerDate Sep<11>2014 14:59 Apr 12, 2016 Jkt 238001 limit the subpoena, setting forth the reasons why the subpoena should be withdrawn or why it should be limited in scope. Any such motion shall be answered within five (5) days after service and shall be ruled on by the Commission as a time critical matter, in accordance with the Commission Decision Making Procedures. The order shall specify the date, if any, for compliance with the specifications of the subpoena. (h) Consequences of failure to comply. In the event of failure by a person to comply with a subpoena, the Presiding Officer may take any of the actions enumerated in § 1025.37, or may order any other appropriate relief to compensate for the withheld testimony, documents, or other materials. If in the opinion of the Presiding Officer such relief is insufficient, the Presiding Officer shall certify to the Commission a request for judicial enforcement of the subpoena. § 1025.39 [Removed] 27. Remove § 1025.39. 28. Amend § 1025.41 by revising paragraphs (a) through (d) to read as follows: ■ ■ § 1025.41 General rules. (a) Public hearings. All hearings conducted pursuant to this part shall be public unless otherwise ordered by the Commission or the Presiding Officer, except that Commissioners and their staffs shall not attend or view public hearings concerning matters that may become subject of review by the Commission as the appellate body. (b) Prompt completion. Hearings shall proceed with all reasonable speed and, insofar as practicable with due regard to the convenience of the parties, shall be held at one location and continue without suspension until concluded, except in unusual circumstances or as otherwise provided in this part. The hearing shall be limited to no more than 210 hours; provided that the Presiding Officer, upon a showing of good cause, may extend the number of hours for the hearing. (c) Rights of parties. Every party shall have the right of timely notice and all other rights essential to a fair hearing, including, but not limited to, the right to present evidence, to conduct such cross-examination as may be necessary for a full and complete disclosure of the facts, and to be heard by objection, motion, brief, and argument. (d) Rights of participants. Every participant shall have the right to make a written or oral statement of position and to file proposed findings of fact, PO 00000 Frm 00034 Fmt 4702 Sfmt 4702 21791 conclusions of law, and a post hearing brief, in accordance with § 1025.17(b). * * * * * ■ 29. Amend § 1025.42 by: ■ a. Revising paragraphs (a)(3), (6), and (9), (b), (d), and (e)(2); and ■ b. In paragraph (e)(1), removing the word ‘‘Secretary’’ and adding, in its place, the word ‘‘Secretariat’’. The revisions read as follows: § 1025.42 Officer. Powers and duties of Presiding (a) * * * (3) To rule upon offers of proof, and receive relevant, competent, and probative evidence; * * * * * (6) To consider and rule, orally or in writing, upon all procedural, evidentiary, and other motions and issues appropriate in adjudicative proceedings; * * * * * (9) To take any action authorized by this part or the provisions of title 5, United States Code, sections 551–559. (b) Exclusion of parties by Presiding Officer. A Presiding Officer shall have the authority, for good cause stated on the record, to exclude from participation in any proceedings any party, participant, or representative who violates the requirements of § 1025.66. Any party, participant or representative so excluded may appeal to the Commission in accordance with the provisions of § 1025.24. If the representative of a party or participant is excluded, the hearing may be suspended for a reasonable time so that the party or participant may obtain another representative. * * * * * (d) Interference. In the performance of adjudicative functions, a Presiding Officer shall not be responsible to or subject to the supervision or direction of any Commissioner or any member of a Commissioner’s staff or of any officer, employee, or agent engaged in the performance of investigative or prosecuting functions for the Commission. All directions by the Commission to a Presiding Officer concerning any adjudicative proceedings shall appear on and be made a part of the record. (e) * * * (2) Whenever, for good and reasonable cause, any party considers the Presiding Officer to be disqualified to preside, or to continue to preside, in any adjudicative proceedings, that party may file with the Secretariat a motion to disqualify and remove, supported by affidavit(s) setting forth the alleged grounds for disqualification. A copy of E:\FR\FM\13APP1.SGM 13APP1 21792 Federal Register / Vol. 81, No. 71 / Wednesday, April 13, 2016 / Proposed Rules the motion and supporting affidavit(s) shall be served by the Secretariat on the Presiding Officer whose removal is sought. The Presiding Officer shall have ten (10) days to respond in writing to such motion. However, the motion shall not stay the proceedings unless otherwise ordered by the Presiding Officer or the Commission. If the Presiding Officer does not disqualify himself/herself and the matter is appealed, the Commission shall determine the validity of the grounds alleged, either directly or on the report of another Presiding Officer appointed to conduct a hearing for that purpose and, in the event of disqualification, shall take appropriate action by assigning another Presiding Officer or requesting loan of another Administrative Law Judge through the U.S. Office of Personnel Management. ■ 30. Amend § 1025.43 by: ■ a. Revising paragraphs (a) and (d)(1)(i); ■ b. Removing paragraph (e); and ■ c. Redesignating paragraph (f) as paragraph (e). The revisions read as follows: jstallworth on DSK7TPTVN1PROD with PROPOSALS § 1025.43 Evidence. (a) Applicability of Federal Rules of Evidence. Unless otherwise provided by statute or this part, the Federal Rules of Evidence shall apply to all proceedings held pursuant to this part. However, the Federal Rules of Evidence may be relaxed by the Presiding Officer if the ends of justice will be better served by so doing. Evidence that would be admissible under the Federal Rules of Evidence is admissible in a proceeding conducted pursuant to this part. Evidence that would be inadmissible under the Federal Rules of Evidence may not be deemed or ruled to be inadmissible in a proceeding conducted pursuant to this part solely on that basis. For example, evidence that constitutes hearsay may be admitted in accordance with paragraph (c) of this section, if it is relevant, material, and bears satisfactory indicia of reliability so that its use is fair. * * * * * (d) * * * (1) * * * (i) Generally known within the jurisdiction of the Commission; or * * * * * ■ 31. Revise § 1025.44 to read as follows: § 1025.44 Expert witnesses. (a) Definition. A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if: VerDate Sep<11>2014 14:59 Apr 12, 2016 Jkt 238001 (1) The expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue; (2) The testimony is based on sufficient facts or data; (3) The testimony is the product of reliable principles and methods; and (4) The expert has reliably applied the principles and methods to the facts of the case. (b) Method of presenting testimony of expert witness. In lieu of oral testimony, the Presiding Officer may order that the direct testimony of an expert witness be in writing and be filed on the record and exchanged between the parties no later than ten (10) days preceding the commencement of the hearing. Such written testimony shall be incorporated into the record and shall constitute the direct testimony of that witness. Upon a showing of good cause, the party sponsoring the expert witness may be permitted to amplify any written direct testimony during the hearing. (c) Cross-examination and redirect examination of expert witness. Crossexamination, redirect examination, and re-cross-examination of an expert witness shall proceed in due course based upon any written testimony and any oral testimony. (d) Failure to file or exchange written testimony. Failure to file or exchange written testimony of expert witnesses if required by the Presiding Officer shall deprive the sponsoring party of the use of the expert witness and of the conclusions which that witness would have presented, unless the opposing parties consent or the Presiding Officer otherwise orders in unusual circumstances. ■ 32. Amend § 1025.45 by revising paragraphs (b) introductory text, (b)(2) and (3), (e), and (f) to read as follows: § 1025.45 In camera materials. * * * * * (b) In camera treatment of documents and testimony. The Presiding Officer or the Commission may for good cause shown and based on the record, order documents or testimony offered in evidence, whether admitted or rejected, to be received and preserved in camera. The order shall include: * * * * * (2) The reasons for granting in camera treatment; and (3) The terms and conditions imposed by the Presiding Official, if any, limiting access to or use of the in camera material, including the length of time the documents or testimony will be held in camera. * * * * * PO 00000 Frm 00035 Fmt 4702 Sfmt 4702 (e) Public release of in camera materials. In camera materials constitute a part of the confidential records of the Commission and shall not be released to the public until the expiration of any order granting in camera treatment. (f) Reference to in camera materials. In the submission of proposed findings, conclusions, briefs, or other documents, all parties shall refrain from disclosing specific details of in camera materials. However, such refraining shall not preclude general references to such materials. If parties consider the inclusion of specific details of in camera materials to be necessary, those references shall be incorporated into separate proposed findings, conclusions, briefs, or other documents marked ‘‘Confidential, Contains In Camera Material,’’ which shall be filed in camera and become part of the in camera record. Documents filed in camera shall be served only on parties accorded access to the in camera materials by this part, the Presiding Officer, or the Commission. ■ 33. Revise § 1025.46 to read as follows: § 1025.46 Proposed findings, conclusions, and order. Within a reasonable time after the closing of the record and receipt of the transcript, all parties shall file, and participants may file simultaneously unless otherwise ordered by the Presiding Officer, post-hearing briefs, including proposed findings of fact and conclusions of law, as well as a proposed order. The Presiding Officer shall establish a date certain for the filing of the briefs, which shall not exceed fifty (50) days after the closing of the record except in unusual circumstances. The briefs shall be in writing and shall be served upon all parties. The briefs of all parties shall contain adequate references to the record and authorities relied upon, but shall not exceed thirty (30) pages, excluding covers, indexes, table of contents, list of citations, and list of references. Replies, if permitted by the Presiding Officer, shall be filed within fifteen (15) days of the date for the filing of briefs unless otherwise established by the Presiding Officer. ■ 34. Amend § 1025.47 by revising paragraph (a) to read as follows: § 1025.47 Record. (a) Reporting and transcription. Hearings shall be recorded and transcribed by a court reporter, under the supervision of the Presiding Officer. The original transcript shall be a part of the record of proceedings. Copies of E:\FR\FM\13APP1.SGM 13APP1 Federal Register / Vol. 81, No. 71 / Wednesday, April 13, 2016 / Proposed Rules transcripts are available from the reporter at a cost not to exceed the maximum rates fixed by contract between the Commission and the reporter. In accordance with Section 11 of the Federal Advisory Committee Act (Pub. L. 92–463, 5 U.S.C. app. section 11), copies of transcripts may be made by members of the public or by Commission personnel, when available, at the Secretariat at reproduction costs as provided in § 1025.49. * * * * * ■ 35. Revise § 1025.48 to read as follows: § 1025.48 Official docket. The official docket in any adjudicatory proceedings shall be maintained electronically by the Secretariat as set forth in § 1025.14 and shall be made available to the public. ■ 36. Amend § 1025.49 by revising paragraph (a) to read as follows: § 1025.49 Fees. (a) Fees for deponents and witnesses. Any person compelled to appear in person in response to a subpoena or notice of deposition shall be paid the same attendance and mileage fees as are paid witnesses in the courts of the United States, in accordance with title 28, United States Code, section 1821. The fees and mileage referred to in this paragraph (a) shall be paid by the party at whose instance deponents or witnesses appear. The parties may by agreement modify this provision. * * * * * ■ 37. Amend § 1025.51 by revising paragraphs (a), (c), and (d)(1) to read as follows: jstallworth on DSK7TPTVN1PROD with PROPOSALS § 1025.51 Initial decision. (a) When filed. The Presiding Officer shall endeavor to file an Initial Decision with the Commission within sixty (60) days after the closing of the record or the filing of post-hearing briefs, whichever is later. * * * * * (c) By whom made. The Initial Decision shall be made and filed by the Presiding Officer who presided over the hearing, unless otherwise ordered by the Commission due to the disqualification of the Presiding Officer pursuant to § 1025.42. (d) * * * (1) At any time prior to, or concomitant with, the filing of the Initial Decision, the Presiding Officer may reopen the proceedings for the reception of further evidence where the interests of justice so require. * * * * * VerDate Sep<11>2014 14:59 Apr 12, 2016 Jkt 238001 § 1025.52 [Amended] § 1025.56 38. Amend § 1025.52 by removing the word ‘‘Secretary’’ and adding, in its place, the word ‘‘Secretariat’’. ■ 39. Amend § 1025.53 by revising paragraphs (a), (b) introductory text, (c), and (f) to read as follows: ■ § 1025.53 Appeal from initial decision. (a) Notices of appeal. Any party may appeal an Initial Decision to the Commission by serving a notice of appeal within ten (10) days after issuance of the Initial Decision. (b) Appeal brief. An appeal is perfected by filing a brief within forty (40) days after service of the Initial Decision. The appeal brief must be served upon all parties. The brief shall not exceed thirty (30) pages, excluding covers, indexes, table of contents, list of citations, and list of references. The appeal brief shall contain, in the order indicated, the following: * * * * * (c) Answering brief. Within thirty (30) days after service of the appeal brief upon all parties, any party may file an answering brief, which shall contain a subject index, with page references, and a table of cases (alphabetically arranged), textbooks, statutes, and other material cited, with page references thereto. Such brief shall present clearly the points of fact and law relied upon in support of the reasons the party has for each position urged, with specific page references to the record and legal or other materials relied upon. An answering brief shall be subject to the same page limit as the appeal brief. * * * * * (f) Reply brief. A reply brief shall be limited to rebuttal of matters presented in answering briefs, including matters raised in cross-appeals. A reply brief may be filed and served within fourteen (14) days after service of an answering brief and shall not exceed fifteen (15) pages, excluding covers, indexes, table of contents, list of citations, and list of references. * * * * * ■ 40. Amend § 1025.55 by: ■ a. Removing the comma following the words ‘‘in addition’’ in paragraph (a); and ■ b. Revising paragraph (c). The revision reads as follows: § 1025.55 review. Final decision on appeal or * * * * * (c) Except as otherwise ordered by the Commission, the Commission shall file its Decision within ninety (90) days after the filing of all briefs or after receipt of transcript of the oral argument, whichever is later. PO 00000 Frm 00036 Fmt 4702 Sfmt 4702 21793 [Amended] 41. Amend § 1025.56 by: a. Removing the word ‘‘sevice’’ and adding, in its place, the word ‘‘service’’; and ■ b. Adding, in the last sentence, the word ‘‘Final’’ before the words ‘‘Decision or Order’’. ■ 42. Amend § 1025.57 by revising paragraph (a), removing paragraph (b), and redesignating paragraph (c) as paragraph (b) to read as follows: ■ ■ § 1025.57 Effective date of order. (a) Orders in proceedings arising under the Consumer Product Safety Act. An order of the Commission in adjudicative proceedings under this part becomes effective upon receipt by the respondent, unless otherwise ordered by the Commission. * * * * * ■ 43. Amend § 1025.58 by: ■ a. Removing paragraph (b); ■ b. Redesignating paragraphs (c) through (f) as paragraphs (b) through (e); and ■ c. Revising newly redesignated paragraphs (b)(2) and (d)(2). The revisions read as follows: § 1025.58 Reopening of proceedings. * * * * * (b) * * * (2) After effective date of order. Whenever the Commission determines that changed conditions of fact or law or the public interest may require that a Commission decision or order be altered, modified, or set aside in whole or in part, the Commission shall serve upon all parties to the original proceedings an order to show cause, stating the changes the Commission proposes to make in the decision or order and the reasons such changes are deemed necessary. Within thirty (30) days after service of an order to show cause, any party to the original proceedings may file a response. Any party not responding to the order to show cause within the time allowed shall be considered to have consented to the proposed changes. * * * * * (d) * * * (2) Factual issues. When the pleadings raise substantial factual issues, the Commission may direct the Presiding Officer to conduct such additional hearings as it deems appropriate. Upon conclusion of the hearings, and including the filing of post-hearing briefs containing proposed findings of fact and conclusions of law, as well as a proposed order, the Presiding Officer shall issue a Recommended Decision, including proposed findings and conclusions, and E:\FR\FM\13APP1.SGM 13APP1 21794 Federal Register / Vol. 81, No. 71 / Wednesday, April 13, 2016 / Proposed Rules the reasons therefor, as well as a proposed Commission order. If the Presiding Officer recommends that the Commission’s original order be reopened, the proposed order shall include appropriate provisions for the alteration, modification or setting aside of the original order. The record and the Presiding Officer’s Recommended Decision shall be certified to the Commission for final disposition of the matter. * * * * * ■ 44. Revise § 1025.63 to read as follows: § 1025.63 Written appearances. (a) Filing. Any person who appears in any proceedings shall file a written notice of appearance, stating for whom the appearance is made and the name, electronic address, mailing address, and telephone number of the person making the appearance and the date of the commencement of the appearance. The appearance shall be made a part of the record. (b) Withdrawal. Any person who has previously appeared in any proceedings may withdraw his/her appearance by filing a written notice of withdrawal of appearance with the Secretariat. The notice of withdrawal of appearance shall state the name, electronic address, mailing address, and telephone number (including area code) of the person withdrawing the appearance, for whom the appearance was made, and the effective date of the withdrawal of the appearance. Such notice of withdrawal shall be filed within five (5) days of the effective date of the withdrawal of the appearance. § 1025.65 [Amended] 45. Amend § 1025.65 by: a. Removing the word ‘‘files’’ from paragraph (a) and adding, in its place, the word ‘‘provides’’; and ■ b. Removing the word ‘‘Secretary’’ in paragraph (a) and adding, in its place, the word ‘‘Secretariat’’. ■ ■ § 1025.66 [Amended] 46. Amend § 1025.66 by removing the words ‘‘of these rules’’ from paragraph (d). ■ 47. Amend § 1025.67 by: ■ a. Revising the section heading and paragraphs (a) and (b); and ■ b. Removing the word ‘‘Secretary’’ in paragraph (c) introductory text and adding, in its place, the word ‘‘Secretariat’’. The revisions read as follows: jstallworth on DSK7TPTVN1PROD with PROPOSALS ■ § 1025.67 Restrictions as to former Commission members and employees. (a) Generally. Except as otherwise provided in paragraph (b) of this VerDate Sep<11>2014 14:59 Apr 12, 2016 Jkt 238001 not employed by the Commission, which is: (i) Written and not served on all parties; or (ii) Oral and without advance notice to all parties to the proceedings and opportunity for them to be present. (d) Permissible ex parte communications. The following communications shall not be prohibited under this section. (1) Ex parte communications authorized by statute or by this part. (See, for example, § 1025.38 which governs applications for the issuance of subpoenas.) (2) Any staff communication concerning judicial review or judicial enforcement in any matter pending before or decided by the Commission. (3) Communications by any party to the Commission concerning a proposed settlement agreement that has been transmitted to the Commission. (e) Procedures for handling prohibited ex parte communication—(1) Prohibited written ex parte communication. To the extent possible, a prohibited written ex parte communication received by any Commission employee or interested § 1025.68 Prohibited ex parte person not employed by the communications. Commission shall be forwarded to the (a) Applicability. This section is Secretariat or Presiding Officer, as applicable during the period appropriate. A prohibited written ex commencing with the date of issuance parte communication which reaches a of a complaint and ending upon final decision-maker shall be forwarded by Commission action in the matter. the decision-maker to the Secretariat or (b) Except as set forth in paragraph (d) the Presiding Officer, as appropriate. If of this section, ex parte communications the circumstances in which a prohibited in any form that are relevant to the ex parte written communication was merits of any proceedings under this made are not apparent from the part are prohibited: communication itself, a statement (1) By any interested person not describing those circumstances shall be employed by the Commission to any forwarded with the communication. decision-maker; or (2) Prohibited oral ex parte (2) By a decision maker to any communication. (i) If a prohibited oral interested person not employed by the ex parte communication is made to a Commission. decision-maker or interested person not (c) Definitions—(1) Decision-maker, as employed by the Commission, he/she used in this section, shall include: shall advise the person making the Those Commission personnel who communication that the communication render decisions in adjudicative is prohibited and shall terminate the proceedings under this part, or who discussion; and advise officials who render such (ii) The recipient of the decisions, including: communication shall forward to the (i) The Commissioners and their Secretariat or the Presiding Officer, as staffs; appropriate, a signed and dated (ii) The Administrative Law Judges statement containing such of the and their staffs; following information as is known to (iii) The General Counsel and his/her him/her. staff, unless otherwise designated by the (A) The title and docket number of the General Counsel. proceedings; (2) Ex parte communication. Any (B) The name and address of the communication concerning a matter that person making the communication and is the subject of proceedings under this his/her relationship (if any) to the part that is made by an interested parties and/or participants to the person not employed by the proceedings; (C) The date and time of the Commission to a decision-maker or by a decision-maker to an interested person communication, its duration, and the section, the post-employment restrictions applicable to former Commission members and employees, including but not limited to those referenced at 16 CFR 1030.101, 5 CFR part 2641, 18 U.S.C. 207, and, as applicable, Executive Order 13490, shall govern the activities of former Commission members and employees in adjudicative matters connected with their former duties and responsibilities. (b) Participation as witness. A former member or employee of the Commission may testify in any proceeding subject to this part concerning his/her participation in any Commission activity. This section does not constitute a waiver by the Commission of any objection provided by law to testimony that would disclose privileged or confidential material. The provisions of 18 U.S.C. 1905 prohibiting the disclosure of trade secrets also applies to testimony by former members and employees. * * * * * ■ 48. Revise § 1025.68 to read as follows: PO 00000 Frm 00037 Fmt 4702 Sfmt 4702 E:\FR\FM\13APP1.SGM 13APP1 jstallworth on DSK7TPTVN1PROD with PROPOSALS Federal Register / Vol. 81, No. 71 / Wednesday, April 13, 2016 / Proposed Rules circumstances (e.g., telephone call, personal interview, etc.) under which it was made; (D) A brief statement of the substance of the matters discussed; and (E) Whether the person making the communication persisted in doing so after being advised that the communication was prohibited. (3) Filing. All communications and statements forwarded to the Secretariat or Presiding Officer under this section shall be placed in a public file which shall be associated with, but not made a part of, the record of the proceedings to which the communication or statement pertains. (4) Service on parties. The Secretariat or the Presiding Officer, as appropriate, shall serve a copy of each communication and statement forwarded under this section on all parties to the proceedings. However, if the parties are numerous, or if the Secretary or Presiding Officer, as appropriate, determine that service of the communication or statement would be unduly burdensome, he/she, in lieu of service, may notify all parties in writing that the communication or statement has been made and filed and that it is available for inspection and copying. (5) Service on maker. The Secretariat or the Presiding Officer, as appropriate, shall forward to the person who made the prohibited ex parte communication a copy of each communication or statement filed under this section. (f) Effect of ex parte communications. No prohibited ex parte communication shall be considered as part of the record for decision unless introduced into evidence by a party to the proceedings. (g) Sanctions. A person or party who makes a prohibited ex parte communication, or who encourages or solicits another to make any such communication, may be subject to sanctions including but not limited to exclusion from the proceedings and an adverse ruling on the issue which is the subject of the prohibited communication. A person, not a party to the proceeding, who makes or causes to be made an ex parte communication prohibited by paragraph (b) of this section shall be subject to all sanctions provided in this section if such person subsequently becomes a party to the proceeding. Subpart H—Implementation of the Equal Access to Justice Act in Adjudicative Proceedings With the Commission 49. The authority citation for part 1025, subpart H, is revised to read as follows: ■ VerDate Sep<11>2014 14:59 Apr 12, 2016 Jkt 238001 Authority: 5 U.S.C. 504, 551 et seq. 50. Add § 1025.69 to subpart H to read as follows: ■ § 1025.69 Separation of functions. An employee or agent engaged in the performance of investigative or prosecuting functions for the Commission in a case, other than a Commissioner, may not, in that or a factually related case, participate or advise in the decision, recommended decision, or agency review of the recommended decision, except as witness or counsel in public proceedings. ■ 51. Revise § 1025.70 to read as follows: § 1025.70 General provisions. The Equal Access to Justice Act, 5 U.S.C. 504 (called ‘‘the EAJA’’ in this subpart), provides for the award of attorney fees and other expenses to eligible persons who are parties to certain adversary adjudicative proceedings before the Commission. Applications for such fees and expenses may be made according to the EAJA, as interpreted by the federal courts and guidance provided by the U.S. Department of Justice. 1025.71 and 1025.72 and Appendix I to Part 1025 [Removed] 52. Remove §§ 1025.71 and 1025.72 and appendix I to part 1025. ■ Dated: April 5, 2016. Todd A. Stevenson, Secretary, Consumer Product Safety Commission. [FR Doc. 2016–08125 Filed 4–12–16; 8:45 am] BILLING CODE 6355–01–P DEPARTMENT OF THE TREASURY Internal Revenue Service 21795 adjustments to rights to acquire stock. The proposed regulations also would provide additional guidance to withholding agents regarding their current withholding and information reporting obligations under chapters 3 and 4 with respect to these deemed distributions. The proposed regulations would affect corporations issuing rights to acquire stock, their shareholders and holders of these rights, and withholding agents with respect to these deemed distributions. Written or electronic comments and requests for a public hearing must be received by July 12, 2016. ADDRESSES: Send submissions to: CC:PA:LPD:PR (REG–133673–15), Room 5203, Internal Revenue Service, PO Box 7604, Ben Franklin Station, Washington, DC, 20044. Submissions may be handdelivered Monday through Friday between the hours of 8 a.m. and 4 p.m. to CC:PA:LPD:PR (REG–133673–15), Courier’s Desk, Internal Revenue Service, 1111 Constitution Avenue NW., Washington, DC, 20224 or sent electronically, via the Federal eRulemaking Portal at www.regulations.gov (indicate IRS and REG–133673–15). FOR FURTHER INFORMATION CONTACT: Concerning the proposed regulations under section 305, Maurice M. LaBrie, (202) 317–5322; concerning the proposed regulations under sections 860G, 861, 1441, 1461, 1471, and 1473, Subin Seth, (202) 317–6942; concerning the proposed regulations under section 6045B, Pamela Lew, (202) 317–7053; concerning submission of comments, contact Regina Johnson, (202) 317–6901 (not toll-free numbers). SUPPLEMENTARY INFORMATION: DATES: Background and Explanation of Provisions 1. Overview 26 CFR Part 1 [REG–133673–15] RIN 1545–BN07 Deemed Distributions Under Section 305(c) of Stock and Rights to Acquire Stock Internal Revenue Service (IRS), Treasury. ACTION: Notice of proposed rulemaking. AGENCY: This document contains proposed regulations regarding deemed distributions of stock and rights to acquire stock. The proposed regulations would resolve ambiguities concerning the amount and timing of deemed distributions that are or result from SUMMARY: PO 00000 Frm 00038 Fmt 4702 Sfmt 4702 This document contains proposed regulations that amend 26 CFR part 1 under sections 305, 860G, 861, 1441, 1461, 1471, 1473, and 6045B of the Internal Revenue Code of 1986 (Code) concerning deemed distributions that are or result from adjustments to rights to acquire stock. Final regulations under section 305 were published in the Federal Register on July 12, 1973 (TD 7281, 38 FR 18531), and amendments to those final regulations were published in the Federal Register on October 15, 1974 (TD 7329, 39 FR 36860), and in the Federal Register on December 21, 1995 (TD 8643, 60 FR 66134). Final regulations under sections 1441 and 1461 were published in the Federal E:\FR\FM\13APP1.SGM 13APP1

Agencies

[Federal Register Volume 81, Number 71 (Wednesday, April 13, 2016)]
[Proposed Rules]
[Pages 21775-21795]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-08125]


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CONSUMER PRODUCT SAFETY COMMISSION

16 CFR Part 1025

[CPSC Docket No. 2016-0006]


Rules of Practice for Adjudicative Proceedings

AGENCY: Consumer Product Safety Commission.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The United States Consumer Product Safety Commission 
(``Commission,'' ``CPSC,'' or ``we'') is issuing this notice of 
proposed rulemaking (``NPR'') to update the Commission's Rules of 
Practice for Adjudicative Proceedings, (``Rules of Practice'' or 
``Rules''). We are proposing to modernize the Rules of Practice to 
reflect changes in civil and administrative litigation since adoption 
of the Rules in 1980. Specifically, we propose changes to the Rules 
pertaining to discovery, electronic filing, the use of electronically 
stored information (``ESI''), and updates to the Federal Rules of Civil 
Procedure (``Federal Rules''), upon which our Rules are based. We also 
propose to update requirements for pleadings, motions, and motions for 
summary decisions, clarifications on the computation of time, and 
clarification on when amendments or supplemental pleadings require 
Commission approval. Additionally, we propose allowing a Presiding 
Officer to exercise discretion to avoid unnecessary delay or wasteful 
discovery and to consolidate cases in their entirety, or partially, for 
any purpose that serves the ends of justice. We also propose to set 
deadlines for the issuance of an Initial or Recommended Decision. 
Finally, we propose to remove outdated references to the Equal Access 
to Justice Act. We believe the proposed Rules will increase the 
efficiency of discovery, minimize the potential for delay in 
adjudicative proceedings, and ensure that, to the extent possible, 
Commission adjudicative proceedings address and resolve crucial issues 
of consumer product safety in a fair and impartial manner. This NPR 
seeks comments on the proposed changes to the Rules.

DATES: Submit comments by June 13, 2016.

ADDRESSES: You may submit comments, identified by Docket No. CPSC 2016-
0006, electronically or in writing, by any of the following methods:
    Electronic Submissions: Submit electronic comments to the Federal 
eRulemaking Portal at: http://

[[Page 21776]]

www.regulations.gov. Follow the instructions for submitting comments. 
The Commission does not accept comments submitted by electronic mail 
(email), except through www.regulations.gov. The Commission encourages 
you to submit electronic comments through the Federal eRulemaking 
Portal.
    Written Submissions: Submit written submissions by mail/hand 
delivery/courier to: Office of the Secretariat, Consumer Product Safety 
Commission, Room 820, 4330 East West Highway, Bethesda, MD 20814; 
telephone (301) 504-7923.
    Instructions: All submissions received must include the agency name 
and docket number for this proposed rulemaking. All comments received 
may be posted without change, including any personal identifiers, 
contact information, or other personal information provided, to: http://www.regulations.gov. Do not submit confidential business information, 
trade secret information, or other sensitive or protected information 
that you do not want to be available to the public. If furnished at 
all, such information should be submitted in writing.
    Docket: For access to the docket to read background documents or 
comments received, go to: http://www.regulations.gov, and insert the 
docket number CPSC-2016-0006, into the ``Search'' box, and follow the 
prompts.

FOR FURTHER INFORMATION CONTACT: Mary B. Murphy, Assistant General 
Counsel, U.S. Consumer Product Safety Commission, 4330 E. West Highway, 
Bethesda, MD 20814-4408; email: mmurphy@cpsc.gov telephone: (301) 504-
7809.

SUPPLEMENTARY INFORMATION: The Commission is proposing to amend the 
agency's Rules of Practice for Adjudicative Proceedings. 16 CFR part 
1025. The proposed rule reflects changes in civil and administrative 
litigation since adoption of the Rules in 1980.

Table of Contents

I. Background and Statutory Authority
II. Reasons for Revision of the Rules
III. Section-by-Section Analysis of the Proposed Revisions of the 
Rules of Practice
IV. Environmental Issues
V. Regulatory Flexibility
VI. Paperwork Reduction
VII. Preemption
VIII. Effective Date
IX. Requests for Comments

I. Background and Statutory Authority

a. Commission Adjudicative Proceedings

    The Consumer Product Safety Act (15 U.S.C. 2064(c), (d), (f); 
2076(b)) (``CPSA''), the Federal Hazardous Substances Act (id. 1274) 
(``FHSA''), the Flammable Fabrics Act (id. 1192, 1194, 1197(b)) 
(``FFA''), the Poison Prevention Packaging Act (id. 1473(c)) 
(``PPPA''), and the Virginia Graeme Baker Pool and Spa Act, (id. 8003) 
(``VGBA'') authorize the Commission to initiate and conduct 
adjudicative proceedings related to the safety of certain consumer 
products, and, based on the Commission's findings, issue orders or take 
other action to protect the public. Under the requirements of the cited 
statutes, such adjudicative proceedings must be determined on an 
administrative record after opportunity for a public hearing.

b. Procedural Rules Requirement

    Under the Administrative Procedure Act (``APA'') (5 U.S.C. 500 et 
seq.), adjudications mandated by statute to be determined on the record 
after opportunity for a public hearing are subject to certain 
procedural requirements. These requirements include notice of the time, 
place and nature of the hearing, information about the legal authority 
under which the hearing is to be held, and information on the matters 
of fact and law asserted. (Id. 554(a)-(b)). The Commission adopted the 
Rules of Practice to govern adjudicative hearings under its enabling 
statutes and other administrative proceedings, as determined by the 
Commission.

c. History of the Rules of Practice

    The Rules of Practice were first proposed by the Commission in 
1974, for use on an interim basis. (39 FR 26848, July 23, 1974). In 
1977, the Commission revised the Rules of Practice, publishing them for 
use on an interim basis and for public comment. (42 FR 31431 (interim 
rules); 42 FR 36818 (issuing correction). In 1980, after considering 
public comments and the Commission's experiences with the existing 
interim rules, the Commission adopted the Rules of Practice. (45 FR 
29215, May 1, 1980). The Commission last amended the Rules of Practice 
in 1982 to make them applicable to hearings required by section 15 of 
the FHSA (47 FR 46845, Oct. 21, 1982).
    On May 12, 2015, the Commission voted to direct staff to present 
for Commission consideration a revision of the Rules of Practice, with 
the goal of streamlining future adjudications and aligning the Rules of 
Practice with the Federal Rules of Civil Procedure.

II. Reasons for Proposed Revision of the Rules

a. Alignment With the Federal Rules of Civil Procedure

    Since the 1980s, when the Commission last amended the Rules of 
Practice, the Commission's model, the Federal Rules, have been 
substantially revised. Among other things, these changes altered the 
pretrial process, providing new discovery standards intended to 
increase the speed and efficiency of litigation.
    Prominent among these changes were detailed rules requiring parties 
to cooperate in pre-discovery and pre-trial planning. For example, the 
Federal Rules now require an affirmative pre-discovery disclosure by 
each party of information, documents, ESI, and other evidence that the 
party may use to support its claims or defenses. The Federal Rules also 
require participation by parties in pre-discovery and pretrial 
conferences, with the aim of focusing the issues to be adjudicated. 
Along with these changes have come new limits on formal discovery 
tools, including interrogatories, document requests, and depositions. 
In addition to proposing that our Rules of Practice follow the scope of 
discovery stated in Rule 26 of the Federal Rules, we are proposing to 
follow, with certain changes, the Federal Rules' procedures on 
mandatory disclosures of information and the Federal Rules' limits on 
formal discovery tools, by adhering to the Federal Rules on 
interrogatories, requests for documents and things, depositions, and 
requests for admission. We believe that changing our Rules of Practice 
to require affirmative pre-discovery disclosure, mandate participation 
in pre-discovery and prehearing conferences, and impose limits on 
wasteful discovery practices will streamline the adjudicative process, 
and thereby, advance our goal of establishing expeditious and fair 
proceedings.
    Recent changes in the Federal Rules have also placed substantial 
focus on the discretionary powers of Presiding Officers. Under these 
rules, the judge or magistrate may limit or expand discovery, and on 
motion, or on his or her own initiative, may tailor the pace of the 
adjudication and the scope and length of discovery based on the issues 
in each case. We are proposing to follow, with appropriate changes, the 
Federal Rules' emphasis on empowering the Presiding Officer to use his 
or her discretion to control the pace and

[[Page 21777]]

progress of discovery. In our proposed Rules of Practice, the Presiding 
Officer would be an active participant in the discovery process, with 
powers to actively manage cases to avoid delays and forestall 
inefficient or wasteful discovery.
    The Federal Rules provide substantial guidance on the 
discoverability and use of ESI because, increasingly, information is 
stored in digital form. Our proposed Rules of Practice would largely 
follow the Federal Rules' guidance on the discoverability of electronic 
evidence.

b. Increasing the Efficiency of Adjudicative Proceedings

    In addition to aligning our Rules of Practice with the Federal 
Rules, the changes we propose would increase the efficiency and 
decrease the burden of preparing for and litigating administrative 
hearings. For example, we propose to update our Rules of Practice on 
consolidating cases to allow the Presiding Officer to consolidate 
cases, fully or partially, for discovery and/or for hearing, on a 
party's motion, or at the Presiding Officer's discretion.
    Additional proposed changes would adapt the Rules of Practice to 
the general needs of administrative litigation, based on the 
experiences of Commission staff in adjudicative proceedings. In each 
case, we propose to emphasize the discretion of the Presiding Officer 
to facilitate quick, fair, and efficient discovery and trial of 
adjudicative matters. Although we would vest significant discretion in 
the Presiding Officer, we would, nevertheless, seek to impose timelines 
on the adjudicative proceeding and deadlines on the Presiding Officer, 
requiring initial decisions to be made within set time frames.

c. Updating CPSC's Rules of Practice To Conform to Current 
Administrative Practice

    Another important reason for updating our Rules of Practice is to 
clarify the process for amending complaints authorized by the 
Commission. We propose to update our Rules of Practice to provide 
clearer guidance on when amendments require Commission consideration.
    We also propose to revise our Rules of Practice to permit 
electronic filing and service of pleadings and documents and to 
discourage filing of paper documents. Likewise, we propose to revise 
the existing requirement that the Commission's Secretariat maintain an 
official paper file, a practice that is cumbersome and fails to reflect 
significant technological advancements. We also propose to revise our 
Rules of Practice regarding service of process to accommodate 
electronic service of most documents and pleadings and to recognize the 
use of common carriers in the delivery of paper documents. Likewise, we 
propose to clarify our Rules of Practice regarding motions for summary 
decisions, amending that section to follow more closely the Federal 
Rules.

III. Section-by-Section Analysis of the Proposed Revisions to the Rules 
of Practice

Subpart A--Scope of Rules, Nature of Adjudicative Proceedings, 
Definitions

Proposed Changes to Rule Sec.  1025.1 (Scope of Rules)

    The proposal would revise Sec.  1025.1, Scope of rules, to clarify 
that, in addition to adjudicative proceedings related to the CPSA, the 
FHSA, and the FFA, the Commission also is empowered to conduct 
adjudications under the PPPA and the VGBA. Specifically, our proposed 
revision would clarify that the Commission may conduct adjudicative 
proceedings under Section 4(c) of the PPPA and Section 1404 of the 
VGBA. We propose to add appropriate references to these statutes and 
make additional minor changes for clarity in our Rules of Practice.
    In addition, the proposal would revise Sec.  1025.1 to remove the 
existing statement that the Rules of Practice govern adjudicative 
proceedings for the assessment of civil penalties under section 20(a) 
of the CPSA. Pursuant to a statutory change, such actions are now 
litigated in U.S. District Court, rather than before the Commission. 
Therefore, the current language in our Rules of Practice is unnecessary 
and inaccurate, as is a statement on the limited scope of discovery in 
civil penalty cases, which we also propose to remove.
    We also propose new language in Sec.  1025.1 to establish the 
Commission's health and safety mission as a critical concern the 
Presiding Officer must take into account when establishing deadlines 
and managing cases. When a matter fails to proceed in a timely manner, 
it not only results in increased costs and uncertainty for the parties 
and participants, it can also undermine the agency's statutory 
obligation to protect the public against unreasonable risks of injury 
and death associated with consumer products. The Commission expects 
that the Presiding Officer shall, whenever possible, and in in the 
interest of protecting public health and safety, expedite proceedings 
by setting shorter time limitations than the maximum limits imposed by 
the rules, with the goal of issuing an Initial Decision within 1 year 
from the date of the complaint.
    As part of our goal of aligning the Rules of Practice with the 
updated Federal Rules, we also propose to add a statement to Sec.  
1025.1, indicating that, except where stated otherwise, parties shall 
follow the Federal Rules on certain discovery matters. We believe that 
following the Federal Rules on discovery matters would streamline the 
discovery process, and thereby introduce increased efficiencies to 
advance our goal of avoiding unnecessary delay. Through this change, we 
would redefine the scope of discovery to encompass Rule 26 of the 
Federal Rules, and would follow generally, with some stated exceptions 
discussed below, the Federal Rules' procedures on pretrial discovery, 
including interrogatories (Fed. R. Civ. P. 33); production of 
documents, electronically stored information, and tangible things (Fed. 
R. Civ. P. 34); requests for admission (Fed. R. Civ. P. 36); and 
depositions (Fed. R. Civ. P. 30-32). We would not follow the Federal 
Rules on subpoenas, which by statute, requires Commission approval. We 
also propose additional minor and non-substantive changes to the Rules 
of Practice for clarity.

Proposed Changes to Sec.  1025.3 (Definitions)

    One of our goals in revising our Rules of Practice is to update the 
Rules of Practice to reflect current litigation practices and advances 
in technology. To recognize that ESI, i.e., information created, 
manipulated, communicated, stored, and best utilized in digital form, 
or requiring the use of computer software and hardware, has become a 
significant part of civil discovery, we propose in new Sec.  1025.3(e) 
to follow the definition of ESI in the Federal Rules. We believe this 
definition would provide clarity and allow parties and participants to 
be guided by the developing case law and scholarship on electronic 
discovery.
    We also propose several additional non-substantive changes, 
including a new Sec.  1025.3(f) that would reference our rule on ex 
parte communications. We further propose to add a new Sec.  1025.3(g) 
to clarify that references to the Federal Rules throughout this 
proposed rule refer to the Federal Rules of Civil Procedure. Because we 
propose additional paragraphs, we would also re-designate the 
paragraphs in this section to reflect these changes. Finally, we 
propose a clarified definition of CPSC's ``Secretariat'' in current 
Sec.  1025.3(n).

[[Page 21778]]

Subpart B--Pleadings, Form, Execution, Service of Documents

Proposed Changes to Sec.  1025.11 (Commencement of Proceedings)

    Section 1025.11 sets out requirements for the filing of a complaint 
in an adjudicative proceeding. In Sec.  1025.11(a), we propose 
revisions to reflect organizational changes within the Commission since 
adoption of the current Rules of Practice. Complaint Counsel would be 
authorized to sign a complaint following Commission approval, rather 
than the Assistant Executive Director for Compliance and Enforcement, 
as the current rule requires.
    Currently, Sec.  1025.11(b)(3) requires that a complaint contain 
``[a] list and summary of documentary evidence supporting the 
charges.'' We propose eliminating this requirement given the mandatory 
disclosures of evidence set forth in Federal Rule 26(a)(1)(A), which we 
propose following as part of Sec.  1025.31, General provisions 
governing discovery, discussed below.
    We propose adding a new Sec.  1025.11(d) to clarify that a 
Commission action to obtain a preliminary injunction from a federal 
district court pursuant to 15 U.S.C. 2064(g) shall not serve as the 
basis to stay proceedings under these rules. In light of the extensive 
time frame for resolving matters in adjudicative proceedings, it is the 
Commission's strong expectation that if the respondent fails to agree 
to stop sale and distribution of a product which the Commission has 
reason to believe presents a substantial product hazard, Commission 
staff will, within a reasonable amount of time following the 
commencement of proceedings under this part 1025, apply to a district 
court of the United States for the issuance of a preliminary injunction 
(pursuant to 15 U.S.C. 2064(g)) to restrain the distribution in 
commerce of such product pending the completion the adjudicative 
proceedings. For this reason, and in furtherance of its mission to 
protect public health and safety, the Commission strongly urges the 
Presiding Officer to, whenever practicable, shorten the time 
limitations imposed by these rules and endeavor to issue an Initial 
Decision as soon as possible.
    We also propose several additional minor and non-substantive 
changes in grammar throughout this paragraph.

Proposed Changes to Sec.  1025.13 (Amendments and Supplemental 
Pleadings)

    Section 1025.13, titled, Amendments and supplemental pleadings, 
currently states that the Presiding Officer may allow appropriate 
amendments and supplemental pleadings which do not unduly broaden the 
issues in the proceedings or cause undue delay. When this section was 
initially proposed in 1977, commenters expressed concern that granting 
such broad discretion risked ``usurping the Commission's function'' to 
serve as the sole source of administrative litigation seeking to compel 
recall of consumer products. 45 FR 29 206-207 (May 1, 1980). At the 
time, stating that the Rules ``provide adequate procedures for the 
parties to argue their respective positions and an adequate framework 
for the exercise of the broad discretion vested in the Presiding 
Officer,'' the Commission concluded that, under Sec.  1025.13, 
``neither the Presiding Officer nor the Commission staff is usurping 
the Commission function.'' 45 FR 29208. We now believe it may be 
helpful to provide additional clarity.
    The Commission proposes to amend Sec.  1025.13 to require that the 
Presiding Officer refer to the Commission any amendment that would (1) 
have the effect of adding to or removing from the litigation any party 
or count, (2) fall outside the scope of an authorized complaint, or (3) 
broaden staff's authority under a complaint.

Proposed Changes to Sec.  1025.14 (Form and Filing of Documents)

    As an initial matter, we are proposing to revise the title of this 
section to Form and filing of pleadings and other documents to clarify 
that the requirements of this section pertain to pleadings, as well as 
other documents. In Sec.  1025.14(a), we propose that all pleadings and 
documents shall be filed electronically with the Secretariat and the 
Presiding Officer, unless the Presiding Officer orders otherwise. We 
propose this change because the rule, as written, is outdated and does 
not reflect current practice for filing pleadings and evidence 
electronically, which has become the norm in most state and federal 
courts. Moreover, the current rule requires the Office of the Secretary 
to maintain the official file, in paper format, access to which is 
limited by the operational hours of the Commission. Thus, our proposed 
change would not only reflect current technological advances, but the 
change also would expand public access to the official file. The 
proposed rule would, however, allow the Presiding Officer discretion to 
permit exceptions to the electronic filing requirement so that paper 
documents may be filed if the Presiding Officer so orders.
    To emphasize our preference for electronic filing, we propose to 
omit existing language stating that documents ``may be filed in person 
or by mail.'' We also propose changes, consistent with our proposal on 
electronic filing, establishing the filing date for documents. 
Electronically filed documents would be deemed filed on the date of the 
electronic filing; however, recognizing the broad discretion afforded 
the Presiding Officer, we propose adding language stating that the 
Presiding Officer may allow alternative methods of filing, by order, 
and that such order shall state the applicable date on which such 
pleadings or documents are deemed filed.
    New language in proposed Sec.  1025.14(c) would also eliminate our 
current requirement that three copies of pleadings be filed, a 
superfluous requirement in an era where digital copies are created 
easily. Under our proposed change, a single electronic copy must be 
filed with the Secretariat and the Presiding Officer; however, we 
propose to add language that acknowledges that the Presiding Officer 
may order paper filings.
    In Sec.  1025.14(d), we would require that the original of each 
document that is filed electronically be signed electronically.
    Section 1025.14(e) currently anticipates filing of paper documents, 
and sets standards for such filings. We propose to amend this paragraph 
to establish requirements that address the electronic filing of 
pleadings and documents. In Sec.  1025.14(e)(1), we would require an 
electronic address in addition to a mailing address. Section 
1025.14(e)(2) would require filing electronic text documents in a 
format that uses 12-point font with double spacing and prints on 
standard letter-sized paper with 1-inch margins. This paragraph also 
would include the requirement that electronic documents and files that 
cannot be readily printed, such as large spreadsheets, videos, or 
photographs, be identified by technical format and also include 
information on the program or protocol required to review the 
information. The font, spacing and margin requirements are consistent 
with Rule 32 of the Federal Rules of Appellate Procedure and Rule 
102(a)(b) of the U.S. District Court for the District of Maryland.
    We also propose to update Sec.  1025.14(e)(3), which currently 
states:

[[Page 21779]]

``[d]ocuments that fail to comply with this section may be returned by 
the Secretary.'' Under the proposed Sec.  1025.14(e)(3), documents that 
do not meet the filing requirements, or electronic documents that 
cannot be opened or read, may be returned to the filer by the 
Secretariat or the Presiding Officer. Lastly, we propose to add 
language to Sec.  1025.14(e)(3) to allow a Presiding Officer to permit 
deviation from the form prescribed in this section, for good cause 
shown, a change that underscores our goal of vesting broad discretion 
in the Presiding Officer to maximize efficiency and flexibility in how 
an adjudication proceeds.

Proposed Changes to Sec.  1025.15 (Time)

    In Sec.  1025.15(a) we would make several non-substantive changes, 
including a clarification of the title to make clear that the 
computation of time refers to days. We also would make clear that 
``day'' means calendar day. We further propose to clarify the existing 
language to state that the day on which the event triggering the period 
shall not be included in the calculation of time, but each calendar day 
thereafter shall; and that if the last day of the time period falls on 
a weekend or legal holiday, the time period shall be tolled until the 
next day that is not a weekend or a legal holiday. We also propose to 
update this section to delete references to specified legal holidays in 
the existing rule and refer instead to the legal public holidays 
identified in 5 U.S.C. 6103. This revision would include Martin Luther 
King, Jr.'s birthday as a holiday and would allow the Rules of Practice 
to reflect any changes to the list of legal public holidays made in the 
future.
    We further propose to amend Sec.  1025.15(b) to state that whenever 
a party is required or permitted to do an act within a prescribed 
period after service of a document and the Presiding Officer permits 
service by mail, three (3) days shall be added to the prescribed 
period. This amendment recognizes that while electronic service is 
preferred, service by mail may be allowed by order of the Presiding 
Officer; if such service is made by mail, three additional days would 
be added to the date by which the recipient must perform a subsequent 
action.
    In Sec.  1025.15(c) regarding the extension of time limits, we 
propose to add language clarifying that initial decisions are decisions 
issued under Sec.  1025.51 of the Rules of Practice.
    We also propose to add a new paragraph (d), which would be titled 
Stay of proceedings, to clarify that if a stay of proceedings is 
granted by order of the Presiding Officer or Commission, the time 
limits specified in these rules shall be automatically tolled during 
the period while the stay is in effect.

Proposed Changes to Sec.  1025.16 (Service)

    We propose several changes to Sec.  1025.16, titled, Service, to 
reflect current litigation practice and advancements in technology. 
First, we propose to revise Sec.  1025.16(a) to reflect proposed 
changes to Sec.  1025.14 that would require the Presiding Officer to 
maintain the official file for an adjudicative proceeding, if 
practicable. Second, our proposed Sec.  1025.16(b) would remove 
subpoenas from the service requirements of this section because we 
address those requirements in Sec.  1025.28(e), discussed below. We 
also propose a new Sec.  1025.16(b)(1) that would allow service of a 
complaint, ruling, petition for interlocutory appeal, order, or 
decision to be made by electronic means if ordered by the Presiding 
Officer or by agreement of the parties. We also propose renumbering the 
subparagraphs of Sec.  1025.16(b) to reflect this addition. Third, in 
proposed Sec.  1025.16(b)(2), we would permit service by commercial 
carrier, a change that reflects common practice today.
    We also propose in Sec.  1025.16(b)(3) to add ``a limited liability 
company'' to the list of corporate entities that may be served, and 
would add ``entity'' in the title of the paragraph, for clarity. We 
propose this change to capture the types of legal entities that exist 
and may be the subject of an administrative complaint. Finally, we 
propose to add language in new Sec.  1025.16(b)(4) that, recognizing 
the preference for electronic service of documents, clarifies the 
circumstances in which delivery of a document to an address is 
appropriate.
    In Sec.  1025.16(c), we would establish electronic service as the 
primary mode of service for other documents, unless otherwise ordered 
by the Presiding Officer or agreed to by the parties. Proposed changes 
to Sec.  1025.16(e), which provides a form for certificates of service, 
and Sec.  1025.16(f), which sets the date of service of documents, 
would provide for electronic filing. Consistent with the establishment 
of electronic filing, we propose to delete reference in Sec.  
1025.16(e) to ``the original of every document,'' and instead, require 
that ``every document'' be accompanied by a certificate of service.

Proposed Changes to Sec.  1025.17 (Intervention)

    We are proposing to revise Sec.  1025.17(a), (b), and (c) to 
identify accurately the Secretariat of the Commission. We also propose 
to correct a typographical error in Sec.  1025.17(c)(5). We do not 
intend these changes to be substantive.

Proposed Changes to Sec.  1025.18 (Class Actions)

    We are proposing to revise Sec.  1025.18(a)(1) for clarity. The 
general word ``class'' would be replaced with the more specific phrase 
``class of respondents.''

Proposed Changes to Sec.  1025.19 (Joinder of Proceedings)

    We propose to revise the title of Sec.  1025.19, currently Joinder 
of proceedings, to Consolidation of proceedings because the rule, 
modeled on Rule 19 of the Federal Rules, actually describes 
consolidation, rather than joinder, a different legal concept. In 
addition, we propose new Sec.  1025.19(a) to state that the Presiding 
Officer or the Commission may order the actions involving a common 
question of law or fact be consolidated for any purpose if the 
Presiding Officer finds that consolidation will ``avoid unnecessary 
cost or delay.'' This would change the current rule, which permits the 
Presiding Officer or the Commission to consolidate actions only ``for 
the purpose of hearing or Commission review.'' This proposed language 
expands the authority of the Presiding Officer to consolidate actions 
or portions of actions, as appropriate, a change that is consistent 
with our goal of assigning broad discretion to the Presiding Officer in 
the conduct of a proceeding. In practice, the current rule may lead to 
uncertainty about whether cases may be consolidated for limited 
purposes, such as discovery, where there are multiple respondents. 
Under the proposed rule, we make clear that the Presiding Officer may 
order partial consolidations on issues including, but not limited to, 
discovery, pretrial procedure, and/or hearing.
    We propose to add a new Sec.  1025.19(b), including insertion of a 
title, for clarity.

Subpart C--Prehearing Procedures, Motions, Interlocutory Appeals, 
Summary Judgments, Settlements

Proposed Changes to Sec.  1025.21 (Prehearing Conferences)

    We propose changes to Sec.  1025.21, Prehearing conferences, to 
reflect updated procedures in the Federal Rules. Specifically, the 
proposed changes would require a preliminary meeting of the parties 
before discovery commences, followed by an initial prehearing 
conference with the Presiding Officer. We believe these

[[Page 21780]]

preliminary steps would streamline the process, focus the issues, and 
advance our goal of achieving a fair and expeditious proceeding.
    Under proposed Sec.  1025.21(a), the parties would be required to 
conduct a preliminary meeting no later than 5 days after the answer is 
due by the last answering party. At the preliminary meeting, the 
parties would be directed to discuss the nature and basis of their 
claims and defenses and the possibilities for settlement or resolution 
of the case. The proposed change also would require parties to attempt 
to agree on a proposed discovery plan with a schedule for depositions 
of fact witnesses, the production of documents and ESI, and the timing 
of expert discovery. In addition, the proposed revision would require 
the parties to seek agreement on the scope of electronic discovery, 
including specified time periods for which electronic information is 
sought, and agree on the format in which electronic discovery would be 
produced. The parties also would be required to develop a preliminary 
time estimate for the evidentiary hearing and to attempt to reach 
agreement on any other matters to be determined at the prehearing 
conference. We believe these changes would help expedite the process by 
setting an earlier deadline for a meeting of the parties and by having 
the parties resolve issues through mutual agreement.
    Under proposed Sec.  1025.21(b), which would be titled, Initial 
prehearing conference, we propose to modify the issues to be discussed 
at the prehearing conference to provide a more concise list of issues 
to be addressed. We believe a tailored agenda for the prehearing 
conference would maximize efficiency and concentrate focus on major 
issues. At the initial prehearing conference, the parties, with the 
guidance of the Presiding Officer, would address a range of issues, 
including their factual and legal theories, the current status of 
pending motions or petitions, the date for the evidentiary hearing, 
steps taken to preserve evidence, and the scope of anticipated 
discovery and a discovery plan. This list would be for illustrative 
purposes only and would not be intended to restrict the topics that 
could be discussed at the prehearing conference under the proposed 
revision to this section.
    In Sec.  1025.21 we also propose to re-designate existing paragraph 
(b), Public notice, as paragraph (c), and to re-designate existing 
paragraph (c), Additional conferences, as paragraph (e).
    Under proposed Sec.  1025.21(d), the Presiding Officer would be 
required to enter an order setting forth the results of the initial 
prehearing conference, establishing a timeline for discovery, motions, 
and any other appropriate matters. We make this proposal to address the 
inadequacy of the current requirement that the Presiding Officer issue 
a prehearing order only after the conclusion of the final prehearing 
conference, a point late in the process that does not provide 
sufficient time for potential resolution of issues. We believe that the 
parties and the Presiding Officer would benefit from establishing a 
schedule earlier in the proceedings, and we also trust that such a 
schedule would clarify issues and expedite the proceedings. In 
addition, in Sec.  1025.21 we propose to re-designate existing 
paragraph (d), Reporting, as paragraph (h), and make it consistent with 
our proposal in Sec.  1025.41(a) to exclude Commissioners and their 
staffs from attending or viewing public hearings prior to the Presiding 
Officer's initial decision. In paragraph (e), which we propose to re-
designate paragraph (g), we would revise the title to be Final 
prehearing order, for clarity. We also propose to remove references to 
the format set forth in appendix I, because, as discussed below, we are 
proposing to delete the appendix.
    Under proposed Sec.  1025.21(f), we would require a final 
prehearing conference as close to the evidentiary hearing as 
practicable. Under the current rules, it is not clear that such a 
conference should occur; our proposed change would make clear that such 
a conference would be mandatory. We believe that such a conference 
would benefit the parties and the Presiding Officer by focusing the 
issues before the hearing and resolving final evidentiary matters.

Proposed Changes to Sec.  1025.22 (Prehearing Briefs)

    We are proposing to revise this section to require the filing of 
prehearing briefs, which, under the current Rules, are discretionary. 
We believe that prehearing briefs should be mandatory because 
information contained in these briefs would set the necessary framework 
for the proceeding, clarifying the facts to be proven, the order of 
proof, and the issues to be decided.

Proposed Changes to Sec.  1025.23 (Motions)

    We propose to change this section to clarify rules governing the 
filing of motions. Under the current rule, all motions, except for 
disqualification motions, must be addressed to the Presiding Officer. 
Our proposed revision to Sec.  1025.23(a) would add subpoena 
applications to the list of motions that would not be addressed to the 
Presiding Officer. We propose this change because subpoena applications 
follow distinct procedures set forth in Sec.  1025.38(c), discussed 
below. In Sec.  1025.23(b), we propose a minor, non-substantive 
clarification, changing ``Secretary'' to ``Secretariat.'' Proposed 
changes in Sec.  1025.23(c) would include a revision of the title to 
Response and replies, which reflects our proposed addition regarding 
reply briefs. We also would expand the time to respond to motions from 
10 days to 14 days because, in staff's experience, 10 days does not 
provide adequate time to respond to a motion, particularly when weekend 
days are considered in the computation. We believe the addition of 4 
days to respond to a motion would provide sufficient time to prepare 
and submit a response without burdening the process with unnecessary 
delay. Additionally, this paragraph would expressly permit replies, 
which currently are available only by leave of the Presiding Officer or 
the Commission. In our experience, replies are granted routinely, and 
this change merely recognizes that practice, eliminating the 
unnecessary step of seeking leave. This paragraph also would permit the 
Presiding Officer (or the Commission, as the case may be), to authorize 
the filing of additional briefs, on good cause shown, a change that 
reflects our belief that the broad authority to administer a proceeding 
should be vested with the Presiding Officer. We further propose that 
additional briefs, if permitted, must be filed within 5 days after 
service of the pleading to which the brief replies.

Proposed Changes to Sec.  1025.24 (Interlocutory Appeals)

    Section 1025.24 currently lists four exceptions to the general rule 
against interlocutory appeals. Proposed Sec.  1025.24 would add a fifth 
exception, permitting interlocutory appeal where the Presiding Officer 
grants or denies a motion to amend a complaint under Sec.  1025.13. The 
proposed revisions to Sec.  1025.13 are intended to reiterate that only 
the Commission is empowered to issue administrative complaints and that 
any amendments cannot have that effect without Commission approval. 
This revision to Sec.  1025.13 is intended to ensure that, if a party 
believes the Presiding Officer has improperly ruled on such an 
amendment without Commission approval, that party will have the 
opportunity to appeal that ruling immediately, without being

[[Page 21781]]

compelled to litigate a matter in order to obtain a Commission decision 
on whether or not that party should be in the litigation at all.
    We propose to revise Sec.  1025.24(b)(1)(ii) to clarify that nature 
of the proceeding from which an interlocutory appeal may be filed. We 
propose to revise Sec.  1025.24(b)(2) to state that the Commission may 
decide a petition for an interlocutory appeal based on the existing 
record, or the Commission may request additional briefing and oral 
presentation. As written, the rule currently imposes an obligation on 
the Commission to decide the petition or request further briefing. Our 
proposed change makes clear that such a binary decision is not required 
and that the Commission has the option of deciding the petition based 
on the record, or the Commission may request further briefing or oral 
presentation.

Proposed Changes to Sec.  1025.25 (Summary Decisions and Orders)

    We are proposing changes to Sec.  1025.25(a) to align our rule more 
closely with Rule 56 of the Federal Rules. Under our current Rules of 
Practice, the movant does not have to file a statement of material 
facts not in dispute, nor does the respondent have to file a statement 
of material facts that respondent contends are in dispute. The proposed 
change would require that motions and oppositions to motions be 
accompanied by separate statements of material facts about which the 
movant asserts there is no dispute and about which the opposing party 
contends there is a genuine dispute. We believe this change will 
enhance efficiency because filing statements of material fact would 
help pinpoint the primary issues in dispute. We also propose to revise 
Sec.  1025.25(a) to conform to changes we propose to Sec.  1025.21, 
discussed above, to state that a summary decision motion be filed in 
accordance with any prehearing order issued by the Presiding Officer. 
The time for filing the motion would also be defined, providing that 
such motions to be filed up to thirty (30) days following the close of 
discovery. We are proposing this change because we believe this time 
period would afford the Presiding Officer sufficient time to carefully 
consider such motions, and would encourage resolution of part or all 
the matter well in advance of the scheduled hearing date.
    We also propose to revise Sec.  1025.25(b) to require that a 
response to a summary decision motion be accompanied by a statement of 
material facts that the opposing party contends are in dispute, a 
change that will enhance focus on the main issues in dispute. We also 
propose to modify Sec.  1025.25(c) to add specific items in the record 
that should be considered by the Presiding Officer in resolving the 
motion, a change that mirrors Rule 56 of the Federal Rules.

Proposed Changes to Sec.  1025.26 (Settlements)

    We are proposing to revise Sec.  1025.26(b) to clarify that motions 
that request that the Presiding Officer transmit a proposed consent 
agreement to the Commission must be filed in camera. In addition, we 
propose to amend this paragraph to state that offers of settlement 
shall be served on complaint counsel. Thus, the revised rule would 
ensure that complaint counsel would be apprised of any non-jointly 
submitted offers of settlement. Under the current rule, a party may 
submit any settlement offer to the Commission without notifying 
complaint counsel. Because we are proposing in this rule to remove the 
ex parte prohibition on communications in the context of settlement 
agreements, discussed in Sec.  1025.68, we are proposing that complaint 
counsel be made aware of all such offers so that complaint counsel can 
communicate knowledgeably to the Commission about the substance of such 
offers.
    In Sec.  1025.26(c)(1) through (4), we propose a number of non-
substantive editorial changes. In Sec.  1025.26(c)(5), we propose to 
add language that an offer of settlement should also include a list of 
``acts or practices that the respondent shall affirmatively 
undertake.'' This addition acknowledges the authority of the 
Commission, after an opportunity for hearing, to order a firm to 
undertake certain actions pursuant to section 15(d) of the CPSA.
    Under current Sec.  1025.26(d), the Presiding Officer may transmit 
to the Commission offers of settlement that meet the requirements of 
form and content set forth in Sec.  1025.26(c). We propose to revise 
this paragraph to require the Presiding Officer to transmit all non-
frivolous, non-duplicative settlement offers to the Commission, 
removing the discretion provided to the Presiding Officer in the 
current rule. We propose this change because we believe the Commission 
should review all non-frivolous, non-duplicative settlements with the 
goal of advancing resolution of a matter, if possible. In addition, we 
propose that, to be transmitted, such an offer must comply with the 
requirements of Sec.  1025.26(b), as well as Sec.  1025.26(c).
    We also are proposing non-substantive changes in Sec.  1025.26(e) 
and (g).

Subpart D--Discovery, Compulsory Process

Proposed Changes to Sec.  1025.31 (General Provisions Regarding 
Discovery)

    The Commission proposes to revise Sec.  1025.31(a) to require 
parties to conduct discovery in accordance with Rule 26 of the Federal 
Rules, with several exceptions, discussed below. Rule 26 imposes a 
number of requirements, such as requiring initial disclosures, 
prehearing conferences, scope of discovery, and limitations on the 
timing, frequency and extent of discovery. Rule 26 also sets forth 
provisions governing discovery of material prepared in anticipation of 
trial, expert discovery, and requests for protective orders. Under the 
current rule, methods, sequence and scope of discovery are addressed in 
a general fashion. We believe that adopting the detailed procedures set 
forth in Rule 26 will achieve earlier and more meaningful coordination 
between the parties and will advance the efficient progress of an 
adjudicative proceeding.
    Although we intend largely to follow Rule 26, we propose to depart 
from Rule 26 procedures in a number of ways. Specifically, regarding 
the time periods for discovery, we will not follow Rule 26 guidance and 
will instead allow schedules to be set at the discretion of the 
Presiding Officer, unless a specific time frame is set forth in our 
rules. We expect the Presiding Officer to set appropriate timelines as 
the facts may dictate or the comparative complexity of a matter 
requires. We also expect that, whenever possible, the Presiding Officer 
will shorten schedules, particularly where expedited hearings would 
serve the public interest, or where issues do not require expert 
discovery or lengthy evidentiary hearings.
    In addition, in proposed Sec.  1025.31(a), we would require that 
initial disclosure of information be produced no later than 5 days 
after the preliminary meeting of the parties. This proposed rule 
shortens the 14-day time frame for such disclosures that is afforded 
under the Federal Rule, a step that furthers coordination among the 
parties and encourages expeditious resolution of issues. We also 
propose that our proceedings not adhere to Rule 26 requirements that 
experts must produce a written report (Rule 26(a)(2)(B)) because such 
reports may not be practicable in adjudicative matters that proceed on 
an expedited schedule. We also adopt the provisions governing 
protective orders in Rule 26(c), but we have modified the Rule to 
recognize that in adjudicative proceedings under part 1025, such 
motions shall be made to

[[Page 21782]]

and decided by the Presiding Officer. In addition, we propose that our 
proceedings not adhere to Rule 26(f) regarding conference timing, 
content, and discovery plan because such matters are governed by the 
proposed revisions to Sec.  1025.21, which allow the Presiding Officer 
to impose deadlines and shorten time frames, as necessary.
    Additionally, we propose changes in newly designated Sec.  
1025.31(b), Completion of discovery, to state that the 150-day standard 
discovery period controls fact discovery but does not control expert 
discovery, which may extend beyond the 150-day limit. Moreover, our 
proposed revisions would vest the Presiding Officer with the discretion 
to establish a time frame for completion of expert discovery. We 
propose these changes because in our experience expert discovery is 
more efficient after fact discovery is completed. For less complex 
matters, the Presiding Officer is vested with the discretion to shorten 
deadlines and time frames under Sec.  1025.21 of this Rule. Because we 
are following Rule 26 in large part, we are proposing to omit current 
paragraphs (a) through (i). We also note that, in following Rule 26, 
parties are not required to file discovery with the Secretariat and the 
Presiding Officer. Instead, parties would serve discovery responses on 
each other, thus relieving the Secretariat and the Presiding Officer of 
the burden of maintaining a voluminous amount of information.

Proposed Changes to Sec.  1025.32 (Written Interrogatories to Parties)

    We propose to revise this section to follow Rule 33 of the Federal 
Rules (Interrogatories to Parties), including the number, scope, and 
timing of interrogatories, the requirements of answers and objections, 
and the option to produce business records, so that we can maximize 
efficiency and reduce undue delay. Under the proposed change, for 
example, interrogatories would be limited to 25. The current rules do 
not impose any limits, thereby inviting overly burdensome requests and 
potential abuse that could impede the progress of a matter. Adopting 
Rule 33 of the Federal Rules would allow the Presiding Officer to alter 
the limits on the frequency and extent of discovery pursuant to Rule 
26(b).
    Because we propose to follow the Federal Rules on interrogatories, 
we also propose to omit Sec.  1025.32(a) through (d) of the current 
rules.

Proposed Changes to Sec.  1025.33 (Production of Documents)

    The Commission proposes to revise the title to Production of 
documents, electronically stored information, and tangible things; 
access for inspection and other purposes, to reflect the expanded types 
of information covered by this section. In addition, we propose to 
revise this section to follow, with one exception, Rule 34 of the 
Federal Rules (Producing Documents, Electronically Stored Information, 
and Tangible Things, or Entering onto Land, for Inspection and Other 
Purposes). This provision governs the number, scope, and timing of 
information requests, the requirements of responses and objections, and 
Rule 34's treatment of production of ESI. We believe this proposed 
change would maximize efficiency because the proposed procedure would 
align our discovery practice with discovery under the Federal Rules and 
case law interpreting the Federal Rules, and would provide specific 
direction on the discovery of ESI, which is not specifically addressed 
in our current rules. However, we propose to depart from Rule 34 
regarding requests for subpoenas, and propose instead that requests for 
subpoenas be governed by Sec.  1025.38 of our Rules of Practice, as 
discussed below. Because we propose to follow the Federal Rules for the 
production of documents, we also propose to omit Sec.  1025.33(a) 
through (d).

Proposed Changes to Sec.  1025.34 (Requests for Admission)

    We propose to revise this section to follow, with one exception, 
Rule 36 of the Federal Rules (Requests for Admission). We would not 
follow Rule 36 regarding the award of expenses under Rule 37(a)(5) 
because expenses are not authorized under our Rules of Practice; 
rather, parties may follow the procedures set forth in Sec.  1025.70 of 
the Rules of Practice. Because we propose to follow the Federal Rules, 
we also propose to omit Sec.  1025.34(a) through (c).

Proposed Changes to Sec.  1025.35 (Depositions)

    For efficiency reasons and ease of practice, we propose largely to 
follow the Federal Rules on depositions, which are familiar to most 
practitioners. Specifically, the Commission proposes to revise this 
section to follow Rule 30 (Depositions by Oral Examination), Rule 31 
(Depositions by Written Questions), and Rule 32 (Using Depositions in 
Court Proceedings) of the Federal Rules, with certain exceptions 
discussed below. We propose that requests for subpoenas continue to be 
governed by Sec.  1025.38 of our Rules of Practice. We also propose 
that provisions in the Federal Rules governing award of attorney's fees 
and expenses shall not apply. Because we propose to follow the Federal 
Rules, we also propose to omit Sec.  1025.35(a) through (h).
    We propose these changes because the procedures set forth in 
Federal Rule 30, for example, would facilitate the noticing of 
depositions by the parties and encourage cooperation among the 
litigants during the discovery process. Under our current rule, parties 
are required to obtain leave of the Presiding Officer to notice all 
depositions, and there is no limit on the number of depositions that 
may be noticed. Federal Rule 30 allows parties to notice depositions 
without leave in most circumstances, including if the parties have 
stipulated to the deposition and the deposition would not result in 
more than 10 depositions being taken by each party. In addition, a 
party wishing to depose a nonparty under the current rule is required 
to apply for a subpoena; Federal Rule 30 has no such requirement, which 
will expedite the discovery process. Our current rules also do not 
limit the length of a deposition, which can lead to protracted and 
costly depositions; Federal Rule 30, however, establishes a limit on 
the length of a deposition, limiting depositions to one 7- hour day, 
unless otherwise ordered by the court.
    We also propose following Federal Rule 31, titled, Depositions by 
Written Questions, a practice not currently authorized by our Rules of 
Practice. We propose this addition because this discovery tool can be 
more efficient and less costly than an in-person deposition, and may 
facilitate a more streamlined use of additional discovery methods. We 
additionally propose following Federal Rule 32 titled, Using 
Depositions in Court Proceedings because the provisions of this rule 
address more comprehensively than Sec.  1025.35, the appropriate uses 
of depositions, the objections to such use, and the form of 
presentation.

Proposed Changes to Sec.  1025.36 (Motions to Compel Discovery)

    The Commission proposes to revise this section to include a 
requirement that motions to compel discovery include a certification 
that the movant has, in good faith, conferred or attempted to confer 
with the person or party failing to make disclosure. This change is 
consistent with the requirements in the Federal Rules (see Federal Rule 
37(a)(1)), and we believe this change would encourage resolution

[[Page 21783]]

of the issues between parties, without intervention by the Presiding 
Officer.

Proposed Changes to Sec.  1025.38 (Subpoenas)

    We propose to update this section to make it consistent with our 
proposed changes on electronic filing, discussed above, and for 
clarity.
    We would revise Sec.  1025.38(b) to properly identify the 
Secretariat. In addition, we propose to amend Sec.  1025.38(c) and (d) 
to clarify the content of, and application process for, subpoenas. 
Specifically, we propose to remove the paper filing requirement, 
eliminate the requirement that applications be submitted in triplicate, 
and delete other requirements related to paper filing.
    Additionally, in Sec.  1025.38(e), we propose to allow subpoena 
service to nonparties, as set forth in Sec.  1025.16(b)(2) through (5), 
which allows for service by a variety of means, but does not permit 
electronic service. Because nonparties may not have verified electronic 
addresses, and certification of receipt is not required, service of a 
subpoena by the other specified methods is more reliable. For parties, 
we propose allowing for service in any of the methods set forth in 
Sec.  1025.16(b)(1) through (5). We believe these proposed changes 
would increase the efficiency of subpoena service because the revisions 
allow for multiple methods of service, and, in particular, permit 
electronic service among parties, where the parties have agreed to such 
methods of service or the Presiding Officer has permitted these methods 
of service. Additionally, Sec.  1025.38(f) would permit, in addition to 
mail carrier service, return of service of subpoenas by commercial 
carrier, a change that reflects common practice today. We also propose 
to eliminate the requirement that a copy of the subpoena be returned to 
the Secretary. In addition to other minor and non-substantive changes 
in Sec.  1025.38(g), we propose to clarify that a motion to quash or 
limit should be ruled on by the Commission as a time critical matter in 
accordance with the Commission Decision Making Procedures.

Proposed Changes to Sec.  1025.39 (Orders Requiring Witnesses To 
Testify or Provide Other Information and Granting Immunity).

    We propose deleting this section and other distinctions relating to 
the Flammable Fabrics Act (``FFA'') throughout these rules because they 
are no longer necessary in light of the Commission's enhanced authority 
set forth in section 214 of the Consumer Product Safety Improvement Act 
of 2008, which permits the Commission to take action under section 15 
of the Consumer Product Safety Act for violations of that statute and 
any other Act enforced by the Commission.

Subpart E--Hearings

Proposed Changes to Sec.  1025.41 (Hearings; General Rules)

    The Commission proposes to revise Sec.  1025.41(a) to clarify that 
Commissioners and their staffs should not attend or view public 
hearings concerning matters that may become subject of review by the 
Commission as the appellate body. We also propose to revise Sec.  
1025.41(b) to clarify that adjudicative proceedings shall be held in 
one location, absent unusual circumstances. Based on staff experience 
and common practice in other agencies, we also propose to limit the 
duration of a proceeding to no more than 210 hours, absent a showing of 
good cause. We believe this provides ample time for the proper conduct 
of most hearings, but allows flexibility to alter the time frame if 
circumstances warrant. We propose other minor, non-substantive changes 
in Sec.  1025.41(c) for clarity.

Proposed Changes to Sec.  1025.42 (Powers and Duties of Presiding 
Officer)

    The Commission proposes to revise Sec.  1025.42(a)(6) to state 
that, in addition to procedural motions, the Presiding Officer is 
empowered to consider and rule on evidentiary motions and other issues, 
as appropriate. We propose other minor, non-substantive changes in 
Sec.  1025.42(a)(3) and (b), for clarity. In proposed Sec.  1025.42(d), 
we make clear that, in addition to the Commission, a Presiding Officer 
shall not be responsible to, or subject to the supervision of, a 
Commissioner or a member of a Commissioner's staff in performance of 
the adjudicative function.
    In Sec.  1025.42(e), we propose to clarify that the Commission 
shall consider a motion to disqualify the Presiding Officer only if the 
matter has been decided and appealed to the Commission. In addition, we 
propose other minor, non-substantive changes.

Proposed Changes to Sec.  1025.43 (Evidence)

    The Commission proposes to supplement Sec.  1025.43(a) to provide 
specific examples of the ways in which the Federal Rules of Evidence 
may be relaxed to best serve the interests of justice. More 
specifically, the proposal states that evidence constituting hearsay 
may be admitted if it is relevant, material, and bears satisfactory 
indicia or reliability so that its use is fair. In addition, we are 
proposing a minor, non-substantive change in Sec.  1025.43(d)(1)(i) for 
uniformity. We also propose to remove an unnecessary ``reserved'' 
paragraph in Sec.  1025.43(e) and re-designate paragraph (f) as 
paragraph (e).

Proposed Changes to Sec.  1025.44 (Expert Witnesses)

    The Commission proposes to revise Sec.  1025.44(a) to align our 
rule on experts more closely with the standard set forth in Rule 702 of 
the Federal Rules of Evidence (Testimony by Expert Witnesses). We make 
this change to maximize efficiency by working within an evidentiary 
framework with which most practitioners are familiar and allowing the 
parties and Presiding Officer to be guided by case law interpreting the 
Federal Rules.
    We also propose revising Sec.  1025.44(b) to make clear that the 
Presiding Officer has the authority to order expert testimony to be in 
writing and filed on the record. In addition, we propose to clarify 
that the Presiding Officer has the discretion to allow live testimony 
in lieu of a written submission. This change would be in keeping with 
our goal of vesting broad discretion with the Presiding Officer in the 
conduct of a proceeding.
    We propose to revise Sec.  1025.44(c) and (d) to conform to our 
proposed revision in Sec.  1025.44(b).

Proposed Changes to Sec.  1025.45 (In Camera Materials)

    We propose to revise Sec.  1025.45(b) to correct typographical and 
grammatical errors, and to clarify the standard that applies to in 
camera treatment of documents and testimony. We also propose to move 
language related to the length of time for in camera treatment from 
Sec.  1025.45(b) to Sec.  1025.45(b)(3). Additionally, we propose 
adding language to Sec.  1025.45(e) to make clear that in camera 
materials may not be released to the public until the order granting in 
camera treatment expires. We propose to revise Sec.  1025.45(f) for 
clarity.

Proposed Changes to Sec.  1025.46 (Proposed Findings, Conclusions, and 
Order)

    The Commission proposes to revise this section to make the filing 
of post-hearing briefs mandatory. Under the current rule, parties may 
file post hearing briefs, but are not required to do so. Because we 
believe the public and the Presiding Officer would benefit from

[[Page 21784]]

a concise but comprehensive summary of the matter at issue, we propose 
that this filing be mandatory. In addition, we propose to limit post-
hearing briefs to thirty (30) pages. Currently, the rule does not 
impose a page limit, and we believe parties should be encouraged to 
file concise pleadings. We also propose to limit replies to the 
discretion of the Presiding Officer so that the pace of the 
adjudication at this juncture is not slowed unnecessarily by the filing 
of excessive briefing materials. We propose other non-substantive 
changes for clarity.

Proposed Changes to Sec.  1025.47 (Record)

    The Commission proposes to revise Sec.  1025.47(a) of this section 
to delete the requirement for an ``official court reporter of the 
Commission'' because the Commission has no official court reporter. The 
revised language would require that a hearing shall be ``recorded and 
transcribed by a court reporter under the supervision of the Presiding 
Officer.'' We are proposing other non-substantive changes for clarity, 
including a revision to the appendix citation in the Federal Advisory 
Committee Act.

Proposed Changes to Sec.  1025.48 (Official Docket)

    The Commission proposes to revise this section to require that the 
official docket be maintained electronically, in keeping with changes 
we are proposing throughout our Rules of Practice to update our 
procedures to reflect advances in technology. We also propose to delete 
the statement that the docket would be available for inspection by the 
public during normal business hours as unnecessary because the docket 
would be available electronically. We propose other non-substantive 
changes for clarity.

Proposed Changes to Sec.  1025.49 (Fees)

    The Commission proposes to revise Sec.  1025.49(a) to allow parties 
to modify this provision by agreement.

Subpart F--Decision

Proposed Changes to Sec.  1025.51 (Initial Decision)

    Under current Sec.  1025.51(a), the Presiding Officer shall 
endeavor to file an Initial Decision within sixty (60) days after the 
record closes in a case, or after the filing of post-hearing briefs, 
whichever is later. The Commission proposes to revise Sec.  1025.51(a) 
to require the Presiding Officer to file the Initial Decision within a 
fixed deadline of 60 days. This change is consistent with the 
Commission's goal of avoiding unnecessary delay and ensuring that a 
matter progresses in a timely manner to serve the interests of justice.
    The current rules impose numerous interim deadlines, but do not 
explicitly provide for a total time limit from complaint to Initial 
Decision. Staff advises that most cases will take more than 1 year for 
the Presiding Officer to render an Initial Decision. The Commission 
believes that the Presiding Officer has considerable discretion in 
managing cases to ensure the timely and efficient resolution of 
proceedings, and the Commission expects that the Presiding Officer 
shall endeavor to make those proceedings as swift as practicable in the 
interest of due process and the protection of consumer health and 
safety.
    The administrative procedures at sister agencies such as the 
Securities and Exchange Commission (``SEC''), the Consumer Financial 
Protection Bureau (``CFPB''), and the Federal Trade Commission 
(``FTC'') employ other practices on ways to make adjudicatory 
proceedings more efficient, including a fixed time limit from issuance 
of complaint to evidentiary hearing as required by FTC Rule 16 CFR 3.11 
(Commencement of Proceedings), a fixed time limit from complaint to 
initial decision as required by SEC Rule, 17 CFR 201.360(a)(2) (Initial 
Decision of Hearing Officer) and CFPB Rule, 12 CFR 1081.400(a) 
(Recommended Decision of the Hearing Officer), and changes to the rules 
that limit the scope of discovery available to parties in 
administrative proceedings as has been adopted by the SEC and CFPB. The 
Commission seeks comment on whether CPSC should adopt similar 
practices.
    We also propose to revise Sec.  1025.51(c) to make clear that the 
Commission may order that an individual, other than the Presiding 
Officer, may make and file an Initial Decision, if the Presiding 
Officer is disqualified under Sec.  1025.42(e).
    We are proposing to revise Sec.  1025.51(d) to limit the authority 
of the Presiding Officer to reopen the proceedings to only those 
circumstances ``where the interests of justice so require.'' We propose 
this change to emphasize the need for finality and to ensure timely 
disposition of a matter.

Proposed Changes to Sec.  1025.52 (Adoption of Initial Decision)

    We are proposing a minor, non-substantive change for consistency.

Proposed Changes to Sec.  1025.53 (Appeal From Initial Decision)

    The Commission proposes to revise the title of Sec.  1025.53(a) to 
Notices of appeal, and we propose several additional changes for 
clarity.
    In addition, we propose to revise Sec.  1025.53(b) to limit appeal 
briefs to thirty (30) pages. Currently, the rule does not impose a page 
limit, and we believe parties should be encouraged to file concise 
pleadings. We also propose to amend Sec.  1025.53(c) to impose the same 
30-page restriction on answering briefs that applies to appeal briefs. 
In Sec.  1025.53(f), we would clarify that reply briefs are not 
required, but if filed, they shall not exceed fifteen (15) pages.

Proposed Changes to Sec.  1025.55 (Final Decision on Appeal or Review)

    The Commission proposes to revise Sec.  1025.55 to remove the word 
``endeavor.'' By doing so, the Commission commits to issue its final 
decision on appeal or review within 90 days after the filing of all 
briefs or after receipt of transcript of the oral argument, whichever 
is later. We are also proposing a minor, non-substantive change in 
Sec.  1025.55(a) for clarity.

Proposed Changes to Sec.  1025.56 (Reconsideration)

    We are proposing minor, non-substantive changes for clarity and to 
correct a typographical error.

Proposed Changes to Sec.  1025.57 (Effective Date of Order)

    The Commission proposes to revise Sec.  1025.57(a) and (b) to 
clarify that Commission orders in adjudicative proceedings under the 
CPSA or the FFA become effective upon receipt by the Respondent.
    In Sec.  1025.57(b)(1), we propose an additional, non-substantive 
change for clarity. In Sec.  1025.57(b)(2), we propose corrections for 
citation errors.

Proposed Changes to Sec.  1025.58 (Reopening of Proceedings)

    The Commission proposes to revise Sec.  1025.58(c)(2) for clarity.
    In proposed Sec.  1025.58(e)(2), we make clear that the Commission 
may direct the Presiding Officer to conduct additional hearings if the 
pleadings raise substantial factual issues. We are proposing this 
change because as written it is unclear under whose auspices such a 
hearing would be conducted and recognize that such a hearing should be 
conducted by the Presiding Officer as the finder of fact. We further 
propose to clarify in this section, consistent with proposed changes to 
Sec.  1025.46, to state that post hearing briefs are mandatory. We 
propose one other non-substantive change for clarity.

[[Page 21785]]

Subpart G--Appearances, Standards of Conduct

Proposed Changes to Sec.  1025.63 (Written Appearances)

    The Commission proposes to revise Sec.  1025.63(a) and (b) to 
conform the requirement for the filing of a notice of appearance to our 
proposed electronic filing changes to Sec.  1025.14 of the Rules of 
Practice.
    In Sec.  1025.63(b), we propose other minor, non-substantive 
changes for clarity.

Proposed Changes to Sec.  1025.65 (Persons Not Attorneys)

    The Commission proposes to revise Sec.  1025.65(a) for clarity.

Proposed Changes to Sec.  1025.66 (Qualifications and Standards of 
Conduct)

    The Commission proposes to revise Sec.  1025.66(d) for clarity.

Proposed Changes to Sec.  1025.67 (Restrictions as to Former Members 
and Employees)

    The Commission proposes to retitle this section to: Restrictions as 
to former Commission members, to align the title with the text in Sec.  
1025.67(a). We also would revise Sec.  1025.67(a) to include additional 
statutory and regulatory restrictions and propose to revise Sec.  
1025.67(c) for clarity.

Proposed Changes to Sec.  1025.68 (Prohibited Ex Parte Communications)

    We propose to add a new Sec.  1025.68(b) to state that, except to 
the extent required for disposition of ex parte matters authorized by 
law or by this part, ex parte prohibitions apply to a number of 
circumstances. Specifically, new Sec.  1025.68(b)(1) would prohibit ex 
parte communications relevant to the merits of an adjudication by any 
interested person not employed by the CPSC to any decision maker during 
the pendency of a proceeding under the Rules. Under the current rule, 
an ex parte communication is defined as a communication concerning a 
matter in adjudication made to a decision-maker by any person subject 
to the Rules of Practice. Our proposed change, which is consistent with 
the APA, would broaden the ex parte prohibition to include any 
``interested person not employed by the Commission.'' Additionally, new 
proposed Sec.  1025.68(b)(2) would prohibit any decision maker from 
making an ex parte communication to any interested party not employed 
by the Commission. To conform new Sec.  1025.68(c)(2)(i) and (ii) with 
our proposed new Sec.  1025.68(b), we would omit language in those 
paragraphs limiting the prohibition to persons subject to these Rules 
of Practice and add language tracking new Sec.  1025.68(b).
    The Commission also proposes to revise Sec.  1025.68(d) to add 
paragraph (d)(3) to state that ex parte prohibitions do not apply to 
communications by any party to the Commission concerning a proposed 
settlement agreement that has been transmitted to the Commission. We 
are proposing this change because we believe this would allow parties 
to communicate information to the Commission that might not otherwise 
be available to the Commission.
    We also propose changes in Sec.  1025.68(e) to clarify that the 
procedures for handling prohibited ex parte communications are also 
available to recipients of such communications who are not employed by 
the Commission. We make other, non-substantive changes to Sec.  
1025.68(e), as well.
    In Sec.  1025.68(g), we propose changes to be consistent with the 
proposed changes to this section discussed above, and we also propose 
that sanctions shall apply to any person or party who makes or causes a 
prohibited ex parte communication to be made. As currently drafted, the 
provision allowing sanctions applies only to persons subject to the 
Rules of Practice. We propose language that would allow sanctions to be 
imposed on a person who, while not a party, makes a prohibited ex parte 
communication and subsequently becomes a party. The proposed language, 
which is consistent with the adjudicative rules adopted by FTC, would 
authorize the Presiding Officer to impose sanctions allowed under this 
section, if that person later becomes a party to the proceeding.
    We propose other minor, non-substantive changes for clarity.

Proposed Sec.  1025.69 (Separation of Functions)

    To clarify that Commission staff charged with investigative and 
prosecutorial responsibilities may not advise a decision maker or 
otherwise participate in a decision in a proceeding, we propose to add 
a new Sec.  1025.69 titled, Separation of functions, setting forth the 
separation of functions provisions of the APA, 5 U.S.C. 554(d).

Subpart H--Implementation of the Equal Access to Justice Act in 
Adjudicative Proceedings With the Commission

Proposed Changes to Sec.  1025.70 (General Provisions)

    The Commission proposes to revise this section to remove outdated 
and confusing references to the Equal Access to Justice Act (``EAJA''). 
As written, the rule substantially re-states EAJA requirements existing 
when the rule was adopted initially. Many elements of those 
requirements are no longer current. To avoid updating these rules each 
time an element of the EAJA is changed, we propose removing references 
to specific EAJA requirements and stating instead that the EAJA applies 
to certain adjudicative proceedings before the Commission. We propose 
stating generally that applications for fees and expenses may be made 
according to the EAJA, as interpreted by the federal courts and 
guidance provided by the U.S. Department of Justice (``DOJ''). Such 
interpretative case law and DOJ guidance provide ample direction for 
applicants, the Presiding Officer, and the Commission in the 
application for, and consideration of, a request for attorney's fees 
and other expenses. We do not believe our proceedings warrant 
particularized requirements regarding EAJA and that the guidance 
provided by the DOJ, and as interpreted by federal courts, would be 
sufficient for applicants to proceed with an EAJA claim. We note too 
that other federal agencies, such as the CFPB, have adopted rules of 
practice without reference to EAJA. Because we believe DOJ and federal 
court guidance is sufficient, we propose to omit language in Sec.  
1025.70(a) and the entirety of Sec.  1025.70(b) through (h). We are 
also proposing several minor, non-substantive changes for clarity.

Proposed Changes to 1025.71 (Information Required From Applicant)

    Consistent with our goal of following DOJ and federal court 
guidance on EAJA, we propose omitting this section.

Proposed Changes to Sec.  1025.72 (Procedures for Considering 
Applications)

    Consistent with our goal of following DOJ and federal court 
guidance on EAJA, we propose omitting this section.

Proposed Changes to Appendix I to Part 1025 (Suggested Form of Final 
Prehearing Order)

    We are proposing to omit this appendix, which contains a suggested

[[Page 21786]]

form for a final prehearing order, given our proposed revisions to the 
requirements for prehearing conferences and orders, discussed above.

IV. Environmental Considerations

    The Commission's regulations address whether the Commission is 
required to prepare an environmental assessment or an environmental 
impact statement. 16 CFR part 1021. These regulations provide a 
categorical exclusion for certain CPSC actions that normally have 
``little or no potential for affecting the human environment.'' 16 CFR 
1021.5(c)(l). This proposed rule falls within the categorical 
exclusion.

V. Regulatory Flexibility Analysis

    Under section 603 of the Regulatory Flexibility Act (``RFA''), when 
the APA requires an agency to publish a general notice of proposed 
rulemaking, the agency must prepare an initial regulatory flexibility 
analysis (``IRFA''), assessing the economic impact of the proposed rule 
on small entities. 5 U.S.C. 603(a). As noted, the Commission is 
proposing to update its Rules of Practice for Adjudicative Proceedings. 
Although the Commission is choosing to issue the rule through notice 
and comment procedures, the APA does not require a proposed rule when 
an agency issues rules of agency procedure and practice (5 U.S.C. 
553(b)). Therefore, no IRFA is required under the RFA. Moreover, the 
proposed rule would not establish any mandatory requirements and would 
not impose any obligations on small entities (or any other entity or 
party).

VI. Paperwork Reduction Act

    The Paperwork Reduction Act (``PRA'') establishes certain 
requirements when an agency conducts or sponsors a ``collection of 
information.'' 44 U.S.C. 3501-3520. The proposed rule would amend the 
Commission's Rules of Practice to adopt modern adjudicative procedures. 
The proposed rule would not impose any information collection 
requirements. The existing Rules of Practice and the proposed revision 
do not require or request information from firms, but rather, explain 
procedures for adjudicatory hearings. Thus, the PRA is not implicated 
in this proposed rulemaking.

VII. Executive Order 12988 (Preemption)

    According to Executive Order 12988 (February 5, 1996), agencies 
must state in clear language the preemptive effect, if any, of new 
regulations. Section 26 of the CPSA explains the preemptive effect of 
consumer product safety standards issued under the CPSA. 15 U.S.C. 
2075. The proposed Rules of Practice do not set consumer product safety 
standards. Rather, the proposed Rules of Practice is an adoption of 
updated rules of agency procedure and practice. Therefore, section 26 
of the CPSA would not apply to this rulemaking.

VIII. Effective Date

    In accordance with the APA's general requirement that the effective 
date of a rule be at least 30 days after publication of the final rule, 
the Commission proposes that the effective date be 30 days after the 
date of publication of a final rule in the Federal Register. 5 U.S.C. 
553(d).

IX. Request for Comments

    The Commission requests comments on all aspects of the proposed 
rule. Comments should be submitted in accordance with the instructions 
in the ADDRESSES section at the beginning of this document. Written 
comments must be received by June 13, 2016.

List of Subjects in 16 CFR Part 1025

    Administrative practice and procedure, Consumer protection.

    For the reasons set forth in the Preamble, the Commission proposes 
to amend 16 CFR part 1025 to read as follows:

PART 1025--RULES OF PRACTICE FOR ADJUDICATIVE PROCEEDINGS

0
1. The authority citation for part 1025 is revised to read as follows:

    Authority: Authority: 15 U.S.C. 45, 1192, 1194, 1197(b), 1274, 
1473(c), 2064, 2066(b), 2076, 8003.

0
2. Revise Sec.  1025.1 to read as follows:


Sec.  1025.1  Scope of rules.

    The Rules in this part govern procedures in adjudicative 
proceedings relating to the provisions of sections 15(c), (d), and (f) 
and 17(b) of the Consumer Product Safety Act (15 U.S.C. 2064(c), (d), 
(f); 2066(b)), section 15 of the Federal Hazardous Substances Act (15 
U.S.C. 1274), sections 3 and 8(b) of the Flammable Fabrics Act (15 
U.S.C. 1192, 1197(b)), section 4(c) of the Poison Prevention Packaging 
Act (15 U.S.C. 1473(c)), and section 1404 of the Virginia Graeme Baker 
Pool and Spa Act (15 U.S.C. 8003), which are required to be determined 
on the record after opportunity for a public hearing. This part may 
also be applied to such other adjudicative proceedings as the 
Commission, by order, shall designate. A basic intent of the Commission 
in the development of these Rules has been to promulgate a single set 
of procedural rules which can accommodate both simple matters and 
complex matters in adjudication. To accomplish this objective, broad 
discretion has been vested in the Presiding Officer who will hear a 
matter being adjudicated to allow him/her to alter time limitations and 
other procedural aspects of a case, as required by the complexity of 
the particular matter involved. A major concern of the Commission is 
that all matters in adjudication move forward in a timely manner, 
consistent with the Constitutional due process rights of all parties. 
Therefore, the Presiding Officer should, whenever appropriate, expedite 
the proceedings by setting shorter time limitations than those 
generally applicable under this part. For example, the time limitation 
for discovery, as provided in Sec.  1025.31(d), may be shortened, 
consistent with the extent of discovery reasonably necessary to prepare 
for the hearing. Except where stated otherwise, discovery matters shall 
be governed by the Federal Rules of Civil Procedure.


Sec.  1025.2  [Amended]

0
3. Amend Sec.  1025.2 by removing the words ``these Rules'' and adding, 
in their place, the words ``this part''.
0
4. Amend Sec.  1025.3 by:
0
a. Redesignating paragraphs (e) through (l) as paragraphs (h) through 
(o);
0
b. Adding new paragraphs (e), (f), and (g); and
0
c. Revising newly redesignated paragraphs (i) and (n).
    The additions and revisions read as follows:


Sec.  1025.3  Definitions.

* * * * *
    (e) Electronically Stored Information (``ESI'') shall have the same 
meaning given to such term in the Federal Rules.
    (f) Ex parte communication shall have the meaning set forth in 
Sec.  1025.68.
    (g) Federal Rules means the Federal Rules of Civil Procedure.
* * * * *
    (i) Party means any named person or any intervenor in any 
proceedings governed by this part.
* * * * *
    (n) Secretary or Secretariat means the Secretariat of the Consumer 
Product Safety Commission.
* * * * *
0
5. Amend Sec.  1025.11 by:
0
a. Revising paragraphs (a) and (b)(3); and
0
b. Adding paragraph (d).
    The revisions and addition read as follows:


Sec.  1025.11  Commencement of proceedings.

    (a) Notice of institution of enforcement proceedings. Any

[[Page 21787]]

adjudicative proceedings under this part shall be commenced by the 
issuance of a complaint, authorized by the Commission, and signed by 
Complaint Counsel.
    (b) * * *
    (3) A clear and concise statement of the charges, sufficient to 
inform each respondent with reasonable definitiveness of the factual 
basis or bases of the allegations of violation or hazard.
* * * * *
    (d) Preliminary injunction. A judicial proceeding for a preliminary 
injunction pursuant to 15 U.S.C. 2064(g) shall not serve as the basis 
to stay any proceedings under this part.
0
6. Revise Sec.  1025.13 to read as follows:


Sec.  1025.13  Amendments and supplemental pleadings.

    The Presiding Officer may allow appropriate amendments and 
supplemental pleadings which do not unduly broaden the issues in the 
proceedings or cause undue delay. If any proposed amendment or 
supplemental pleading would have the effect of adding or removing any 
persons as a respondent to the complaint or adding or removing any 
count, or if the Presiding Officer determines that the amendments or 
supplemental pleadings do not fall within the scope of an authorized 
complaint, broaden the authority granted staff in a complaint, unduly 
broaden the issues in the proceedings, or would cause undue delay, the 
Presiding Officer shall refer such amendments or supplemental pleadings 
to the Commission for decision.
0
7. Amend Sec.  1025.14 by revising the section heading and paragraphs 
(a), (c), (d)(1), and (e) to read as follows:


Sec.  1025.14  Form and filing of pleadings and other documents.

    (a) Filing. Except as otherwise provided by order of the Presiding 
Officer, all pleadings and documents submitted to the Commission or the 
Presiding Officer shall be addressed to, and electronically filed with, 
the Secretariat and the Presiding Officer. Pleadings and documents 
filed electronically shall be deemed filed on the day of electronic 
filing; should the Presiding Officer permit by order an alternative 
method of filing, such order shall state the applicable date on which 
such filings are to be deemed filed.
* * * * *
    (c) Copies. Unless otherwise ordered by the Presiding Officer, a 
single electronic copy must be filed with each of the Secretariat and 
the Presiding Officer. Each copy must be clear and legible.
    (d) * * *
    (1) The original of each document filed shall be signed by a 
representative of record for the party or participant; or in the case 
of parties or participants not represented, by the party or 
participant; or by a partner, officer or other appropriate official of 
any corporation, partnership, or unincorporated association, who files 
an appearance on behalf of the party or participant. Documents 
electronically filed shall be signed electronically.
* * * * *
    (e) Form. (1) All documents shall be dated and shall contain the 
electronic address, telephone number, and mailing address of the 
signer.
    (2) Electronic text documents shall be filed in a format that 
prints on paper approximately 8\1/2\ x 11 inches in size. Print shall 
be in 12-point font and double spaced, and margins shall be one inch. 
Electronic documents and files that cannot readily be printed, such as 
large spreadsheets, videos, or photographs, should be identified by 
format and the program or protocol required to review the information.
    (3) Documents that fail to comply with this section may be returned 
by the Secretariat or Presiding Officer. Electronic documents and files 
that cannot be opened or read may be returned by the Secretariat or 
Presiding Officer. For good cause shown, the Presiding Officer may 
allow deviation from the form prescribed in this section.
0
8. Revise Sec.  1025.15 to read as follows:


Sec.  1025.15  Time.

    (a) Computation of days. In computing any time period specified in 
this part or in any order filed in a proceeding subject to this part, 
the day of the event triggering the period shall not be included, but 
each calendar day thereafter shall be included. If the last day of the 
time period is a Saturday, Sunday, or legal holiday, the period 
continues to run until the end of the next day that is not a Saturday, 
Sunday, or legal holiday. When the period of time prescribed or allowed 
is less than seven (7) days, intermediate Saturdays, Sundays, and legal 
holidays shall be excluded in the computation. As used in this Rule, 
``legal holiday'' means any day designated as a legal public holiday in 
5 U.S.C. 6103.
    (b) Additional time after service by mail. Whenever a party is 
required or permitted to do an act within a prescribed period after 
service of a document and the Presiding Officer permits service by 
mail, three (3) days shall be added to the prescribed period.
    (c) Extensions. For good cause shown, the Presiding Officer may 
extend any time limit prescribed or allowed by this part or by order of 
the Commission or the Presiding Officer, except for those sections 
governing the filing of interlocutory appeals and appeals from initial 
decisions pursuant to Sec.  1025. 13 and those sections expressly 
requiring Commission action. Except as otherwise provided by law, the 
Commission, for good cause shown, may extend any time limit prescribed 
by this part or by order of the Commission or the Presiding Officer.
    (d) Stay of proceedings. If a stay of proceedings is granted by 
order of the Presiding Officer or the Commission, the time limits 
specified in this part shall be automatically tolled during the period 
while the stay is in effect.
0
9. Revise Sec.  1025.16 to read as follows:


Sec.  1025.16  Service.

    (a) Mandatory service. Every document filed with the Secretariat 
shall be served upon all parties to any proceedings, i.e., Complaint 
Counsel, respondent(s), and party intervenors, as well as the Presiding 
Officer. Every document filed with the Secretariat or Presiding Officer 
shall also be served upon each participant, if the Presiding Officer or 
the Commission so directs.
    (b) Service of complaint, ruling, petition for interlocutory 
appeal, order, or decision. A complaint, ruling, petition for 
interlocutory appeal, order, or decision shall be served as follows:
    (1) By electronic means. Service may be made by electronic means if 
ordered by the Presiding Officer or otherwise agreed by the parties;
    (2) By registered mail, certified mail or commercial carrier. A 
copy of the document shall be addressed to the person, partnership, 
corporation or unincorporated association to be served at his/her/its 
residence or principal office or place of business and sent by 
registered mail, certified mail, or commercial carrier;
    (3) By delivery to an individual or entity. A copy of the document 
may be delivered to the person to be served; or to a member of the 
partnership or limited liability company to be served; or to the 
president, secretary, or other executive officer, or a director of the 
corporation or unincorporated association to be served; or to an agent 
authorized by appointment or by law to receive service; or
    (4) By delivery to an address. If the document is not to be served 
electronically and cannot be served in person or by mail as provided in 
paragraph (b)(2) or (3) of this section, a copy of the document may be 
left at the

[[Page 21788]]

principal office or place of business of the person, partnership, 
corporation, unincorporated association, or authorized agent with an 
officer or a managing or general agent; or it may be left with a person 
of suitable age and discretion residing therein, at the residence of 
the person or of a member of the partnership or of an executive 
officer, director, or agent of the corporation or unincorporated 
association to be served; or
    (5) By publication in the Federal Register. A respondent that 
cannot be served by any of the methods already described in this 
section may be served by publication in the Federal Register and such 
other notice as may be directed by the Presiding Officer or the 
Commission, where a complaint has issued in a class action pursuant to 
Sec.  1025.18.
    (c) Service of other documents. Except as otherwise provided in 
paragraph (b) of this section, when service of a document starts the 
running of a prescribed period of time for the submission of a 
responsive document or the occurrence of an event, the document shall 
be served by electronic means unless otherwise ordered by the Presiding 
Officer or otherwise agreed by the parties.
    (d) Service on a representative. When a party has appeared by an 
attorney or other representative, service upon that attorney or other 
representative shall constitute service upon the party.
    (e) Certificate of service. Every document filed with the 
Commission and required to be served upon all parties to any 
proceedings, as well as participants if so directed by the Presiding 
Officer, shall be accompanied by a certificate of service signed by the 
party making service, stating that such service has been made upon each 
party and participant to the proceedings. Certificates of service may 
be in substantially the following form:
    I hereby certify that I have served the attached document upon all 
parties and participants of record in these proceedings by emailing, 
mailing postage prepaid, or delivering in person, a copy to each on 
____.
-----------------------------------------------------------------------
(Signature)
For--------------------------------------------------------------------
    (f) Date of service. The date of service of a document shall be the 
date on which the document is sent electronically, deposited with the 
United States Postal Service, postage prepaid, or is delivered in 
person.


Sec.  1025.17  [Amended]

0
10. Amend Sec.  1025.17 by:
0
a. Removing the words ``these rules'' in paragraph (a) introductory 
text and adding, in their place, the words ``this part'';
0
b. Removing the word ``Secretary'' in paragraphs (a) introductory text, 
(b) introductory text, and (c) and adding, in its place, the word 
``Secretariat'';
0
c. Removing the words ``, of these rules'' in paragraph (b)(3); and
0
d. Removing the word ``peititioner's'' in paragraph (d)(5) and adding, 
in its place, the word ``petitioner's'' .
0
11. Amend Sec.  1025.18 by revising paragraphs (a)(1) and (f)(4) and 
removing the undesignated paragraph following paragraph (f)(4) to read 
as follows:


Sec.  1025.18  Class actions.

    (a) * * *
    (1) The class of respondents is so numerous or geographically 
dispersed that joinder of all members is impracticable;
* * * * *
    (f) * * *
    (4) Dealing with other procedural matters. The orders may be 
combined with a prehearing order under Sec.  1025.21 and may be altered 
or amended as may be necessary.
* * * * *
0
12. Revise Sec.  1025.19 to read as follows:


Sec.  1025.19  Consolidation of proceedings.

    (a) Consolidation of actions. When actions involving a common 
question of law or fact are pending before the Presiding Officer, the 
Commission or the Presiding Officer may order a consolidated hearing of 
any or all the matters in issue in the actions; the Commission or the 
Presiding Officer may order the actions consolidated for any purpose; 
and the Commission or the Presiding Officer may make such orders 
concerning such consolidated proceedings as needed to avoid unnecessary 
cost or delay.
    (b) Motions for consolidation. A motion for consolidation may be 
filed by any party not later than thirty (30) days prior to the 
hearing. Such motion shall be served upon all parties to any 
proceedings in which consolidation is contemplated. The motion may 
include a request that the consolidated proceedings be maintained as a 
class action in accordance with Sec.  1025.18. The proceedings may be 
consolidated to such extent and upon such terms as may be proper. Such 
consolidation may also be ordered upon the initiative of the Presiding 
Officer or the Commission. Single representatives may be designated by 
represented parties, intervenors, and participants with an identity of 
interests.
0
13. Revise Sec.  1025.21 to read as follows:


Sec.  1025.21  Prehearing conferences.

    (a) Preliminary meeting of the parties. As early as practicable 
before the prehearing scheduling conference described in paragraph (b) 
of this section, but in no event later than five (5) days after the 
answer is due to be filed by the last answering respondent, counsel for 
the parties shall meet to discuss the nature and basis of their claims 
and defenses and the possibilities for a prompt settlement or 
resolution of the case. The parties shall also agree, if possible, on:
    (1) A proposed discovery plan specifically addressing a schedule 
for depositions of fact witnesses, the production of documents and 
electronically stored information, and the timing of expert discovery. 
The parties' agreement regarding electronically stored information 
should include the scope of and a specified time period for the 
exchange of such information and the format for the discovery of such 
information;
    (2) A preliminary estimate of the time required for the evidentiary 
hearing; and
    (3) Any other matters to be determined at the prehearing 
conference.
    (b) Initial prehearing conference. The Presiding Officer shall hold 
a prehearing conference not later than 50 days after publication of the 
complaint in the Federal Register and upon ten (10) days' notice to all 
parties and participants. At the prehearing conference any or all of 
the following shall be considered:
    (1) The factual and legal theories of the parties;
    (2) The current status of any pending motions or petitions;
    (3) A proposed date for the evidentiary hearing, and a schedule of 
proceedings that is consistent with the date of the evidentiary 
hearing;
    (4) Steps taken to preserve evidence relevant to the issues raised 
by the claims and defenses;
    (5) The scope of anticipated discovery, any limitations on 
discovery, and a proposed discovery plan, including the disclosure of 
electronically stored information;
    (6) Issues that can be narrowed by agreement or by motion, 
suggestions to expedite the presentation of evidence at trial, and any 
request to bifurcate issues, claims or defenses; and
    (7) Other possible agreements or steps that may aid in the just and 
expeditious disposition of the proceeding and to avoid unnecessary 
cost.

[[Page 21789]]

    (c) Public notice. The Presiding Officer shall cause a notice of 
the first prehearing conference, including a statement of the issues, 
to be published in the Federal Register at least ten (10) days prior to 
the date scheduled for the conference.
    (d) Prehearing scheduling order. Following the first prehearing 
conference, the Presiding Officer shall enter an order that sets forth 
the results of the conference and establishes a schedule of proceedings 
that will permit the evidentiary hearing to commence expeditiously, 
including a plan for discovery, and the production of documents and 
electronically stored information, dates for the submission and hearing 
of motions, the time and place of a final prehearing conference, and 
other matters as appropriate.
    (e) Additional conferences. Additional prehearing conferences may 
be convened at the discretion of the Presiding Officer, upon notice to 
the parties, any participants, and to the public.
    (f) Final prehearing conference. As close to the commencement of 
the evidentiary hearing as practicable, the Presiding Officer shall 
hold a final prehearing conference, at which time deadlines for 
proposed stipulations as to law, fact, or admissibility of evidence, 
and the exchange of exhibit and witness lists shall be established. At 
this conference, the Presiding Officer shall also resolve any 
outstanding evidentiary matters or pending motions (except motions for 
summary decision) and establish a final schedule for the evidentiary 
hearing.
    (g) Final prehearing order. The Presiding Officer shall issue a 
final prehearing order in each case after the conclusion of the final 
prehearing conference. The final prehearing order should contain, to 
the fullest extent possible at that time, all information which is 
necessary for controlling the course of the hearing. The Presiding 
Officer may require the parties to submit a jointly proposed final 
prehearing order. If the complexities of the issues, extent of 
discovery, or good cause require that the hearing commence more than 
300 days past the filing of the complaint, it shall be noted in the 
order.
    (h) Reporting. Prehearing conferences shall be stenographically 
reported as provided in Sec.  1025.47 and shall be open to the public 
(except as provided in Sec.  1025.41(a)), unless otherwise ordered by 
the Presiding Officer or the Commission.
0
14. Revise Sec.  1025.22 introductory text to read as follows:


Sec.  1025.22  Prehearing briefs.

    Not later than ten (10) days prior to the hearing, unless otherwise 
ordered by the Presiding Officer, the parties shall simultaneously 
serve and file prehearing briefs, which should set forth:
* * * * *
0
15. Amend Sec.  1025.23 by:
0
a. Removing the word ``Secretary'' from paragraph (b) and adding, in 
its place, the word ``Secretariat''; and
0
b. Revising paragraphs (a) and (c).
    The revisions read as follows:


Sec.  1025.23  Motions.

    (a) Presentation and disposition. All motions, except 
disqualification motions filed under Sec.  1025.42(e) and motions or 
applications related to subpoenas under Sec.  1025.38(c), shall be 
addressed to the Presiding Officer, who shall rule upon them promptly, 
after affording an opportunity for response.
* * * * *
    (c) Responses and replies to motions. Within fourteen (14) days 
after service of any written motion or petition or within such longer 
or shorter time as may be designated by this part or by the Presiding 
Officer or the Commission, any party who opposes the granting of the 
requested order, ruling or action may file a written response to the 
motion. Failure to respond to a written motion may, in the discretion 
of the Presiding Officer, be considered as consent to the granting of 
the relief sought in the motion. Replies to responses shall be filed 
within ten (10) days after service of the response. No additional 
replies or responses shall be permitted absent leave granted by the 
Presiding Officer or the Commission on good cause shown. Any additional 
replies or responses permitted by the Presiding Officer or the 
Commission shall be filed within five (5) days after service of the 
pleading to which the reply or response relates.
* * * * *


Sec.  1025.24  [Amended]

0
16. Amend Sec.  1025.24 by:
0
a. Adding the words ``that is the subject of a proceeding under this 
part'' at the end of paragraph (b)(1)(ii);
0
b. Removing the period at the end of paragraph (b)(1)(iv) and adding a 
semicolon in its place;
0
c. Adding paragraph (b)(1)(v); and
0
d. Revising the last sentence of paragraph (b)(2).
    The addition and revision read as follows:


Sec.  1025.24  Interlocutory appeals.

* * * * *
    (b) * * *
    (1) * * *
    (v) Grants or denies a motion under Sec.  1025.13 unless the 
Commission has issued a decision under Sec.  1025.13.
    (2) * * * The Commission may decide the petition, or may request 
such further briefing or oral presentation as it deems necessary.
* * * * *
0
17. Amend Sec.  1025.25 by revising paragraphs (a), (b), (c), and (d) 
to read as follows:


Sec.  1025.25  Summary decisions and orders.

    (a) Motion. Any party may file a motion, with a supporting 
memorandum, for a Summary Decision and Order in its favor upon all or 
any of the issues in controversy. The motion shall be accompanied by a 
separate and concise statement of the material facts as to which the 
moving party contends there is no dispute. Complaint Counsel may file 
such a motion at any time after thirty (30) days following issuance of 
a complaint, and any other party may file a motion at any time after 
issuance of a complaint. Any such motion by any party shall be filed in 
accordance with prehearing orders issued by the Presiding Officer under 
Sec.  1025.21, and shall be filed no later than thirty (30) days after 
the close of discovery.
    (b) Response to motion. Any other party may, within twenty (20) 
days after service of the motion, file a response with a supporting 
memorandum accompanied by a separate and concise statement of the 
material facts as to which the opposing party contends a genuine 
dispute exists.
    (c) Grounds. A Summary Decision and Order shall be granted if the 
particular parts of materials in the record, including depositions, 
documents, electronically stored information, affidavits or 
declarations, stipulations (including those made for purposes of the 
motion only), admissions, interrogatory answers, or other materials 
show that there is no genuine issue as to any material fact and that 
the moving party is entitled to a Summary Decision and Order as a 
matter of law.
    (d) Legal effect. A Summary Decision and Order upon all the issues 
being adjudicated shall constitute the Initial Decision of the 
Presiding Officer and may be appealed to the Commission in accordance 
with Sec.  1025.53. A Summary Decision, interlocutory in character, may 
be rendered on fewer than all issues and may not be appealed prior to 
issuance of the Initial Decision.
* * * * *
0
18. Revise Sec.  1025.26 to read as follows:

[[Page 21790]]

Sec.  1025.26  Settlements.

    (a) Availability. Any party shall have the opportunity to submit an 
offer of settlement to the Presiding Officer.
    (b) Form. Offers of settlement shall be filed in camera in the form 
of a consent agreement and order, shall be signed by the respondent or 
respondent's representative, and may be signed by any other party. Each 
offer of settlement shall be accompanied by an in camera motion 
requesting that the Presiding Officer transmit the proposed consent 
agreement and order to the Commission. The motion shall outline the 
substantive provisions of the proposed consent agreement, and state 
reasons why the consent agreement should be accepted by the Commission. 
Offers of settlement and accompanying motions not jointly submitted 
shall be served simultaneously on Complaint Counsel.
    (c) Contents. An offer of settlement shall contain:
    (1) An admission of all jurisdictional facts;
    (2) An express waiver of further procedural steps and of all rights 
to seek judicial review or otherwise to contest the validity of the 
Commission order;
    (3) A statement that the allegations of the complaint are resolved 
by the consent agreement and order;
    (4) A description of the alleged hazard, noncompliance, or 
violation;
    (5) As appropriate, a listing of the acts or practices from which 
the respondent shall refrain and those acts or practices that the 
respondent shall affirmatively undertake; and
    (6) As appropriate, a detailed statement of the corrective 
action(s) which the respondent shall undertake. In proceedings arising 
under Section 15 of the Consumer Product Safety Act, 15 U.S.C. 2064, 
this statement shall contain all the elements of a ``Corrective Action 
Plan,'' as outlined in the Commission's Interpretation, Policy, and 
Procedure for Substantial Product Hazards, 16 CFR part 1115.
    (d) Transmittal. The Presiding Officer shall transmit settlement 
offers that meet the requirements of paragraphs (b) and (c) of this 
section to the Commission for its consideration unless the Presiding 
Officer determines the settlement offer is clearly frivolous, 
duplicative of offers previously made, or contrary to established 
Commission policy. The Presiding Officer may, but need not, recommend 
acceptance of offers. Any party may object to the transmittal to the 
Commission of an offer of settlement by filing a response opposing the 
motion.
    (e) Stay of proceedings. When an offer of settlement has been 
agreed to by all parties and has been transmitted to the Commission, 
the proceedings shall be stayed until the Commission has ruled on the 
offer of settlement. When an offer of settlement has been made and 
transmitted to the Commission but has not been agreed to by all 
parties, the proceedings shall not be stayed pending Commission 
decision on the offer, unless otherwise ordered by the Presiding 
Officer or the Commission.
    (f) Commission ruling. The Commission shall rule upon all 
transmitted offers of settlement. If the Commission accepts the offer, 
the Commission shall issue an appropriate order, which shall become 
effective upon issuance.
    (g) Commission rejection. If the Commission rejects an offer of 
settlement, the Secretariat shall give written notice of the 
Commission's decision to the parties and the Presiding Officer. If the 
proceedings have been stayed, the Presiding Officer shall promptly 
issue an order resuming the proceedings, with consideration to any 
modifications to the schedule necessitated by the stay.
    (h) Effect of rejected offer. Neither rejected offers of 
settlement, nor the fact of the proposal of offers of settlement are 
admissible in evidence.
0
19. Revise Sec.  1025.31 to read as follows:


Sec.  1025.31  General provisions governing discovery.

    (a) Unless otherwise provided by statute, the parties shall conduct 
discovery in accordance with and subject to Rule 26 of the Federal 
Rules, as specified in this part. Unless specified in paragraphs (a)(1) 
through (4) of this section or provided for in this part, the time 
frames set for all actions described in Rule 26 shall be set by the 
Presiding Officer.
    (1) Initial disclosures of information required in Federal Rule 
26(a)(1)(C) shall be produced no later than 5 days after the 
preliminary meeting of the parties as set forth in Sec.  1025.21(a).
    (2) Federal Rule 26(a)(2)(B) (Witnesses Who Must Provide a Written 
Report) shall not apply.
    (3) Federal Rule 26(c) (Protective Orders) shall apply with the 
following exceptions: Motions for protective orders shall be made to 
and decided by the Presiding Officer; Federal Rule 26(c)(3) shall not 
apply.
    (4) Federal Rule 26(f) (Conference of the Parties: Planning for 
Discovery) shall not apply. The conference of the parties and joint 
discovery planning required in Federal Rule 26(f) shall take place as 
set forth in Sec.  1025.21, or as otherwise ordered by the Presiding 
Officer.
    (b) Completion of discovery. All non-expert discovery shall be 
completed as soon as practical but in no case longer than one hundred 
fifty (150) days after issuance of a complaint, unless otherwise 
ordered by the Presiding Officer in exceptional circumstances and for 
good cause shown. All discovery demands shall be made and served by a 
date which affords the party from whom discovery is sought the full 
response period provided by this part. The Presiding Officer shall 
establish a time frame for the completion of expert discovery in 
accordance with Sec.  1025.21.
0
20. Revise Sec.  1025.32 to read as follows:


Sec.  1025.32  Written interrogatories to parties.

    This section shall be governed by Rule 33 of the Federal Rules.
0
21. Revise Sec.  1025.33 to read as follows:


Sec.  1025.33  Production of documents, electronically stored 
information, and tangible things; access for inspection and other 
purposes.

    This section shall be governed by Rule 34 of the Federal Rules, 
with the following exception: Requests for subpoenas shall be governed 
by Sec.  1025.38.
0
22. Revise Sec.  1025.34 to read as follows:


Sec.  1025.34  Requests for admission.

    This section shall be governed by Rule 36 of the Federal Rules, 
except that Rule 37(a)(5) award of expenses shall not apply.
0
23. Revise Sec.  1025.35 to read as follows:


Sec.  1025.35  Depositions.

    This section shall be governed by Rules 30-32 of the Federal Rules, 
with the following exceptions: Requests for subpoenas shall be governed 
by Sec.  1025.38; and Federal Rule 37(a)(5) award of expenses shall not 
apply.
0
24. Revise Sec.  1025.36 to read as follows:


Sec.  1025.36  Motions to compel discovery.

    If a party fails to respond to discovery, in whole or in part, the 
party seeking discovery may move within twenty (20) days for an order 
compelling an answer, or compelling inspection or production of 
documents, or otherwise compelling discovery. The motion must include a 
certification that the movant has in good faith conferred or attempted 
to confer with the person or party failing to make disclosure or 
discovery in an effort to obtain it without action by the Presiding 
Officer. For purposes of this section, an evasive or incomplete 
response is to be

[[Page 21791]]

treated as a failure to respond. When taking depositions, the 
discovering party shall continue the examination to the extent possible 
with respect to other areas of inquiry before moving to compel 
discovery.


Sec.  1025.37  [Amended]

0
25. Amend Sec.  1025.37(g) by removing the words ``of these rules''.
0
26. Revise Sec.  1025.38 to read as follows:


Sec.  1025.38  Subpoenas.

    (a) Availability. A subpoena shall be addressed to any person not a 
party for the purpose of compelling attendance, testimony, and 
production of documents at a hearing or deposition, and may be 
addressed to any party for the same purposes.
    (b) Form. A subpoena shall identify the action with which it is 
connected; shall specify the person to whom it is addressed and the 
date, time, and place for compliance with its provisions; and shall be 
issued by order of the Commission and signed by the Secretariat or by 
the Presiding Officer. A subpoena duces tecum shall specify the books, 
papers, documents, or other materials or data-compilations to be 
produced.
    (c) How obtained--(1) Content of application. An application for 
the issuance of a subpoena, stating reasons, shall be submitted to the 
Presiding Officer, who shall forward the application to the Commission.
    (2) Procedure for application. The Commission shall rule upon the 
application for a subpoena ex parte, by issuing an order granting or 
denying the application.
    (d) Issuance of a subpoena. The Commission shall issue a subpoena 
by authorizing the Secretariat or the Presiding Officer to sign and 
date the approved subpoena for transmittal to the applicant for 
service.
    (e) Service of a subpoena. A subpoena issued by the Commission 
shall be served upon the addressee as provided in Sec.  1025.16(b)(2) 
through (5) and upon all parties as provided in Sec.  1025.16(b).
    (f) Return of service. A person serving a subpoena shall promptly 
execute a return of service, stating the date, time, and manner of 
service upon the addressee. If service is effected by mail or 
commercial carrier, the signed return receipt or proof of delivery 
shall accompany the return of service. In case of failure to make 
service, a statement of the reasons for the failure shall be made.
    (g) Motion to quash or limit subpoena. Within five (5) days after 
receipt of a subpoena, the person to whom it is directed may file a 
motion to quash or limit the subpoena, setting forth the reasons why 
the subpoena should be withdrawn or why it should be limited in scope. 
Any such motion shall be answered within five (5) days after service 
and shall be ruled on by the Commission as a time critical matter, in 
accordance with the Commission Decision Making Procedures. The order 
shall specify the date, if any, for compliance with the specifications 
of the subpoena.
    (h) Consequences of failure to comply. In the event of failure by a 
person to comply with a subpoena, the Presiding Officer may take any of 
the actions enumerated in Sec.  1025.37, or may order any other 
appropriate relief to compensate for the withheld testimony, documents, 
or other materials. If in the opinion of the Presiding Officer such 
relief is insufficient, the Presiding Officer shall certify to the 
Commission a request for judicial enforcement of the subpoena.


Sec.  1025.39  [Removed]

0
27. Remove Sec.  1025.39.
0
28. Amend Sec.  1025.41 by revising paragraphs (a) through (d) to read 
as follows:


Sec.  1025.41  General rules.

    (a) Public hearings. All hearings conducted pursuant to this part 
shall be public unless otherwise ordered by the Commission or the 
Presiding Officer, except that Commissioners and their staffs shall not 
attend or view public hearings concerning matters that may become 
subject of review by the Commission as the appellate body.
    (b) Prompt completion. Hearings shall proceed with all reasonable 
speed and, insofar as practicable with due regard to the convenience of 
the parties, shall be held at one location and continue without 
suspension until concluded, except in unusual circumstances or as 
otherwise provided in this part. The hearing shall be limited to no 
more than 210 hours; provided that the Presiding Officer, upon a 
showing of good cause, may extend the number of hours for the hearing.
    (c) Rights of parties. Every party shall have the right of timely 
notice and all other rights essential to a fair hearing, including, but 
not limited to, the right to present evidence, to conduct such cross-
examination as may be necessary for a full and complete disclosure of 
the facts, and to be heard by objection, motion, brief, and argument.
    (d) Rights of participants. Every participant shall have the right 
to make a written or oral statement of position and to file proposed 
findings of fact, conclusions of law, and a post hearing brief, in 
accordance with Sec.  1025.17(b).
* * * * *
0
29. Amend Sec.  1025.42 by:
0
a. Revising paragraphs (a)(3), (6), and (9), (b), (d), and (e)(2); and
0
b. In paragraph (e)(1), removing the word ``Secretary'' and adding, in 
its place, the word ``Secretariat''.
    The revisions read as follows:


Sec.  1025.42  Powers and duties of Presiding Officer.

    (a) * * *
    (3) To rule upon offers of proof, and receive relevant, competent, 
and probative evidence;
* * * * *
    (6) To consider and rule, orally or in writing, upon all 
procedural, evidentiary, and other motions and issues appropriate in 
adjudicative proceedings;
* * * * *
    (9) To take any action authorized by this part or the provisions of 
title 5, United States Code, sections 551-559.
    (b) Exclusion of parties by Presiding Officer. A Presiding Officer 
shall have the authority, for good cause stated on the record, to 
exclude from participation in any proceedings any party, participant, 
or representative who violates the requirements of Sec.  1025.66. Any 
party, participant or representative so excluded may appeal to the 
Commission in accordance with the provisions of Sec.  1025.24. If the 
representative of a party or participant is excluded, the hearing may 
be suspended for a reasonable time so that the party or participant may 
obtain another representative.
* * * * *
    (d) Interference. In the performance of adjudicative functions, a 
Presiding Officer shall not be responsible to or subject to the 
supervision or direction of any Commissioner or any member of a 
Commissioner's staff or of any officer, employee, or agent engaged in 
the performance of investigative or prosecuting functions for the 
Commission. All directions by the Commission to a Presiding Officer 
concerning any adjudicative proceedings shall appear on and be made a 
part of the record.
    (e) * * *
    (2) Whenever, for good and reasonable cause, any party considers 
the Presiding Officer to be disqualified to preside, or to continue to 
preside, in any adjudicative proceedings, that party may file with the 
Secretariat a motion to disqualify and remove, supported by 
affidavit(s) setting forth the alleged grounds for disqualification. A 
copy of

[[Page 21792]]

the motion and supporting affidavit(s) shall be served by the 
Secretariat on the Presiding Officer whose removal is sought. The 
Presiding Officer shall have ten (10) days to respond in writing to 
such motion. However, the motion shall not stay the proceedings unless 
otherwise ordered by the Presiding Officer or the Commission. If the 
Presiding Officer does not disqualify himself/herself and the matter is 
appealed, the Commission shall determine the validity of the grounds 
alleged, either directly or on the report of another Presiding Officer 
appointed to conduct a hearing for that purpose and, in the event of 
disqualification, shall take appropriate action by assigning another 
Presiding Officer or requesting loan of another Administrative Law 
Judge through the U.S. Office of Personnel Management.
0
30. Amend Sec.  1025.43 by:
0
a. Revising paragraphs (a) and (d)(1)(i);
0
b. Removing paragraph (e); and
0
c. Redesignating paragraph (f) as paragraph (e).
    The revisions read as follows:


Sec.  1025.43  Evidence.

    (a) Applicability of Federal Rules of Evidence. Unless otherwise 
provided by statute or this part, the Federal Rules of Evidence shall 
apply to all proceedings held pursuant to this part. However, the 
Federal Rules of Evidence may be relaxed by the Presiding Officer if 
the ends of justice will be better served by so doing. Evidence that 
would be admissible under the Federal Rules of Evidence is admissible 
in a proceeding conducted pursuant to this part. Evidence that would be 
inadmissible under the Federal Rules of Evidence may not be deemed or 
ruled to be inadmissible in a proceeding conducted pursuant to this 
part solely on that basis. For example, evidence that constitutes 
hearsay may be admitted in accordance with paragraph (c) of this 
section, if it is relevant, material, and bears satisfactory indicia of 
reliability so that its use is fair.
* * * * *
    (d) * * *
    (1) * * *
    (i) Generally known within the jurisdiction of the Commission; or
* * * * *
0
31. Revise Sec.  1025.44 to read as follows:


Sec.  1025.44  Expert witnesses.

    (a) Definition. A witness who is qualified as an expert by 
knowledge, skill, experience, training, or education may testify in the 
form of an opinion or otherwise if:
    (1) The expert's scientific, technical, or other specialized 
knowledge will help the trier of fact to understand the evidence or to 
determine a fact in issue;
    (2) The testimony is based on sufficient facts or data;
    (3) The testimony is the product of reliable principles and 
methods; and
    (4) The expert has reliably applied the principles and methods to 
the facts of the case.
    (b) Method of presenting testimony of expert witness. In lieu of 
oral testimony, the Presiding Officer may order that the direct 
testimony of an expert witness be in writing and be filed on the record 
and exchanged between the parties no later than ten (10) days preceding 
the commencement of the hearing. Such written testimony shall be 
incorporated into the record and shall constitute the direct testimony 
of that witness. Upon a showing of good cause, the party sponsoring the 
expert witness may be permitted to amplify any written direct testimony 
during the hearing.
    (c) Cross-examination and redirect examination of expert witness. 
Cross-examination, redirect examination, and re-cross-examination of an 
expert witness shall proceed in due course based upon any written 
testimony and any oral testimony.
    (d) Failure to file or exchange written testimony. Failure to file 
or exchange written testimony of expert witnesses if required by the 
Presiding Officer shall deprive the sponsoring party of the use of the 
expert witness and of the conclusions which that witness would have 
presented, unless the opposing parties consent or the Presiding Officer 
otherwise orders in unusual circumstances.
0
32. Amend Sec.  1025.45 by revising paragraphs (b) introductory text, 
(b)(2) and (3), (e), and (f) to read as follows:


Sec.  1025.45  In camera materials.

* * * * *
    (b) In camera treatment of documents and testimony. The Presiding 
Officer or the Commission may for good cause shown and based on the 
record, order documents or testimony offered in evidence, whether 
admitted or rejected, to be received and preserved in camera. The order 
shall include:
* * * * *
    (2) The reasons for granting in camera treatment; and
    (3) The terms and conditions imposed by the Presiding Official, if 
any, limiting access to or use of the in camera material, including the 
length of time the documents or testimony will be held in camera.
* * * * *
    (e) Public release of in camera materials. In camera materials 
constitute a part of the confidential records of the Commission and 
shall not be released to the public until the expiration of any order 
granting in camera treatment.
    (f) Reference to in camera materials. In the submission of proposed 
findings, conclusions, briefs, or other documents, all parties shall 
refrain from disclosing specific details of in camera materials. 
However, such refraining shall not preclude general references to such 
materials. If parties consider the inclusion of specific details of in 
camera materials to be necessary, those references shall be 
incorporated into separate proposed findings, conclusions, briefs, or 
other documents marked ``Confidential, Contains In Camera Material,'' 
which shall be filed in camera and become part of the in camera record. 
Documents filed in camera shall be served only on parties accorded 
access to the in camera materials by this part, the Presiding Officer, 
or the Commission.
0
33. Revise Sec.  1025.46 to read as follows:


Sec.  1025.46  Proposed findings, conclusions, and order.

    Within a reasonable time after the closing of the record and 
receipt of the transcript, all parties shall file, and participants may 
file simultaneously unless otherwise ordered by the Presiding Officer, 
post-hearing briefs, including proposed findings of fact and 
conclusions of law, as well as a proposed order. The Presiding Officer 
shall establish a date certain for the filing of the briefs, which 
shall not exceed fifty (50) days after the closing of the record except 
in unusual circumstances. The briefs shall be in writing and shall be 
served upon all parties. The briefs of all parties shall contain 
adequate references to the record and authorities relied upon, but 
shall not exceed thirty (30) pages, excluding covers, indexes, table of 
contents, list of citations, and list of references. Replies, if 
permitted by the Presiding Officer, shall be filed within fifteen (15) 
days of the date for the filing of briefs unless otherwise established 
by the Presiding Officer.
0
34. Amend Sec.  1025.47 by revising paragraph (a) to read as follows:


Sec.  1025.47  Record.

    (a) Reporting and transcription. Hearings shall be recorded and 
transcribed by a court reporter, under the supervision of the Presiding 
Officer. The original transcript shall be a part of the record of 
proceedings. Copies of

[[Page 21793]]

transcripts are available from the reporter at a cost not to exceed the 
maximum rates fixed by contract between the Commission and the 
reporter. In accordance with Section 11 of the Federal Advisory 
Committee Act (Pub. L. 92-463, 5 U.S.C. app. section 11), copies of 
transcripts may be made by members of the public or by Commission 
personnel, when available, at the Secretariat at reproduction costs as 
provided in Sec.  1025.49.
* * * * *
0
35. Revise Sec.  1025.48 to read as follows:


Sec.  1025.48  Official docket.

    The official docket in any adjudicatory proceedings shall be 
maintained electronically by the Secretariat as set forth in Sec.  
1025.14 and shall be made available to the public.
0
36. Amend Sec.  1025.49 by revising paragraph (a) to read as follows:


Sec.  1025.49  Fees.

    (a) Fees for deponents and witnesses. Any person compelled to 
appear in person in response to a subpoena or notice of deposition 
shall be paid the same attendance and mileage fees as are paid 
witnesses in the courts of the United States, in accordance with title 
28, United States Code, section 1821. The fees and mileage referred to 
in this paragraph (a) shall be paid by the party at whose instance 
deponents or witnesses appear. The parties may by agreement modify this 
provision.
* * * * *
0
37. Amend Sec.  1025.51 by revising paragraphs (a), (c), and (d)(1) to 
read as follows:


Sec.  1025.51  Initial decision.

    (a) When filed. The Presiding Officer shall endeavor to file an 
Initial Decision with the Commission within sixty (60) days after the 
closing of the record or the filing of post-hearing briefs, whichever 
is later.
* * * * *
    (c) By whom made. The Initial Decision shall be made and filed by 
the Presiding Officer who presided over the hearing, unless otherwise 
ordered by the Commission due to the disqualification of the Presiding 
Officer pursuant to Sec.  1025.42.
    (d) * * *
    (1) At any time prior to, or concomitant with, the filing of the 
Initial Decision, the Presiding Officer may reopen the proceedings for 
the reception of further evidence where the interests of justice so 
require.
* * * * *


Sec.  1025.52  [Amended]

0
38. Amend Sec.  1025.52 by removing the word ``Secretary'' and adding, 
in its place, the word ``Secretariat''.
0
39. Amend Sec.  1025.53 by revising paragraphs (a), (b) introductory 
text, (c), and (f) to read as follows:


Sec.  1025.53  Appeal from initial decision.

    (a) Notices of appeal. Any party may appeal an Initial Decision to 
the Commission by serving a notice of appeal within ten (10) days after 
issuance of the Initial Decision.
    (b) Appeal brief. An appeal is perfected by filing a brief within 
forty (40) days after service of the Initial Decision. The appeal brief 
must be served upon all parties. The brief shall not exceed thirty (30) 
pages, excluding covers, indexes, table of contents, list of citations, 
and list of references. The appeal brief shall contain, in the order 
indicated, the following:
* * * * *
    (c) Answering brief. Within thirty (30) days after service of the 
appeal brief upon all parties, any party may file an answering brief, 
which shall contain a subject index, with page references, and a table 
of cases (alphabetically arranged), textbooks, statutes, and other 
material cited, with page references thereto. Such brief shall present 
clearly the points of fact and law relied upon in support of the 
reasons the party has for each position urged, with specific page 
references to the record and legal or other materials relied upon. An 
answering brief shall be subject to the same page limit as the appeal 
brief.
* * * * *
    (f) Reply brief. A reply brief shall be limited to rebuttal of 
matters presented in answering briefs, including matters raised in 
cross-appeals. A reply brief may be filed and served within fourteen 
(14) days after service of an answering brief and shall not exceed 
fifteen (15) pages, excluding covers, indexes, table of contents, list 
of citations, and list of references.
* * * * *
0
40. Amend Sec.  1025.55 by:
0
a. Removing the comma following the words ``in addition'' in paragraph 
(a); and
0
b. Revising paragraph (c).
    The revision reads as follows:


Sec.  1025.55  Final decision on appeal or review.

* * * * *
    (c) Except as otherwise ordered by the Commission, the Commission 
shall file its Decision within ninety (90) days after the filing of all 
briefs or after receipt of transcript of the oral argument, whichever 
is later.


Sec.  1025.56  [Amended]

0
41. Amend Sec.  1025.56 by:
0
a. Removing the word ``sevice'' and adding, in its place, the word 
``service''; and
0
b. Adding, in the last sentence, the word ``Final'' before the words 
``Decision or Order''.
0
42. Amend Sec.  1025.57 by revising paragraph (a), removing paragraph 
(b), and redesignating paragraph (c) as paragraph (b) to read as 
follows:


Sec.  1025.57  Effective date of order.

    (a) Orders in proceedings arising under the Consumer Product Safety 
Act. An order of the Commission in adjudicative proceedings under this 
part becomes effective upon receipt by the respondent, unless otherwise 
ordered by the Commission.
* * * * *
0
43. Amend Sec.  1025.58 by:
0
a. Removing paragraph (b);
0
b. Redesignating paragraphs (c) through (f) as paragraphs (b) through 
(e); and
0
c. Revising newly redesignated paragraphs (b)(2) and (d)(2).
    The revisions read as follows:


Sec.  1025.58  Reopening of proceedings.

* * * * *
    (b) * * *
    (2) After effective date of order. Whenever the Commission 
determines that changed conditions of fact or law or the public 
interest may require that a Commission decision or order be altered, 
modified, or set aside in whole or in part, the Commission shall serve 
upon all parties to the original proceedings an order to show cause, 
stating the changes the Commission proposes to make in the decision or 
order and the reasons such changes are deemed necessary. Within thirty 
(30) days after service of an order to show cause, any party to the 
original proceedings may file a response. Any party not responding to 
the order to show cause within the time allowed shall be considered to 
have consented to the proposed changes.
* * * * *
    (d) * * *
    (2) Factual issues. When the pleadings raise substantial factual 
issues, the Commission may direct the Presiding Officer to conduct such 
additional hearings as it deems appropriate. Upon conclusion of the 
hearings, and including the filing of post-hearing briefs containing 
proposed findings of fact and conclusions of law, as well as a proposed 
order, the Presiding Officer shall issue a Recommended Decision, 
including proposed findings and conclusions, and

[[Page 21794]]

the reasons therefor, as well as a proposed Commission order. If the 
Presiding Officer recommends that the Commission's original order be 
reopened, the proposed order shall include appropriate provisions for 
the alteration, modification or setting aside of the original order. 
The record and the Presiding Officer's Recommended Decision shall be 
certified to the Commission for final disposition of the matter.
* * * * *
0
44. Revise Sec.  1025.63 to read as follows:


Sec.  1025.63  Written appearances.

    (a) Filing. Any person who appears in any proceedings shall file a 
written notice of appearance, stating for whom the appearance is made 
and the name, electronic address, mailing address, and telephone number 
of the person making the appearance and the date of the commencement of 
the appearance. The appearance shall be made a part of the record.
    (b) Withdrawal. Any person who has previously appeared in any 
proceedings may withdraw his/her appearance by filing a written notice 
of withdrawal of appearance with the Secretariat. The notice of 
withdrawal of appearance shall state the name, electronic address, 
mailing address, and telephone number (including area code) of the 
person withdrawing the appearance, for whom the appearance was made, 
and the effective date of the withdrawal of the appearance. Such notice 
of withdrawal shall be filed within five (5) days of the effective date 
of the withdrawal of the appearance.


Sec.  1025.65  [Amended]

0
45. Amend Sec.  1025.65 by:
0
a. Removing the word ``files'' from paragraph (a) and adding, in its 
place, the word ``provides''; and
0
b. Removing the word ``Secretary'' in paragraph (a) and adding, in its 
place, the word ``Secretariat''.


Sec.  1025.66  [Amended]

0
46. Amend Sec.  1025.66 by removing the words ``of these rules'' from 
paragraph (d).
0
47. Amend Sec.  1025.67 by:
0
a. Revising the section heading and paragraphs (a) and (b); and
0
b. Removing the word ``Secretary'' in paragraph (c) introductory text 
and adding, in its place, the word ``Secretariat''.
    The revisions read as follows:


Sec.  1025.67  Restrictions as to former Commission members and 
employees.

    (a) Generally. Except as otherwise provided in paragraph (b) of 
this section, the post-employment restrictions applicable to former 
Commission members and employees, including but not limited to those 
referenced at 16 CFR 1030.101, 5 CFR part 2641, 18 U.S.C. 207, and, as 
applicable, Executive Order 13490, shall govern the activities of 
former Commission members and employees in adjudicative matters 
connected with their former duties and responsibilities.
    (b) Participation as witness. A former member or employee of the 
Commission may testify in any proceeding subject to this part 
concerning his/her participation in any Commission activity. This 
section does not constitute a waiver by the Commission of any objection 
provided by law to testimony that would disclose privileged or 
confidential material. The provisions of 18 U.S.C. 1905 prohibiting the 
disclosure of trade secrets also applies to testimony by former members 
and employees.
* * * * *
0
48. Revise Sec.  1025.68 to read as follows:


Sec.  1025.68  Prohibited ex parte communications.

    (a) Applicability. This section is applicable during the period 
commencing with the date of issuance of a complaint and ending upon 
final Commission action in the matter.
    (b) Except as set forth in paragraph (d) of this section, ex parte 
communications in any form that are relevant to the merits of any 
proceedings under this part are prohibited:
    (1) By any interested person not employed by the Commission to any 
decision-maker; or
    (2) By a decision maker to any interested person not employed by 
the Commission.
    (c) Definitions--(1) Decision-maker, as used in this section, shall 
include: Those Commission personnel who render decisions in 
adjudicative proceedings under this part, or who advise officials who 
render such decisions, including:
    (i) The Commissioners and their staffs;
    (ii) The Administrative Law Judges and their staffs;
    (iii) The General Counsel and his/her staff, unless otherwise 
designated by the General Counsel.
    (2) Ex parte communication. Any communication concerning a matter 
that is the subject of proceedings under this part that is made by an 
interested person not employed by the Commission to a decision-maker or 
by a decision-maker to an interested person not employed by the 
Commission, which is:
    (i) Written and not served on all parties; or
    (ii) Oral and without advance notice to all parties to the 
proceedings and opportunity for them to be present.
    (d) Permissible ex parte communications. The following 
communications shall not be prohibited under this section.
    (1) Ex parte communications authorized by statute or by this part. 
(See, for example, Sec.  1025.38 which governs applications for the 
issuance of subpoenas.)
    (2) Any staff communication concerning judicial review or judicial 
enforcement in any matter pending before or decided by the Commission.
    (3) Communications by any party to the Commission concerning a 
proposed settlement agreement that has been transmitted to the 
Commission.
    (e) Procedures for handling prohibited ex parte communication--(1) 
Prohibited written ex parte communication. To the extent possible, a 
prohibited written ex parte communication received by any Commission 
employee or interested person not employed by the Commission shall be 
forwarded to the Secretariat or Presiding Officer, as appropriate. A 
prohibited written ex parte communication which reaches a decision-
maker shall be forwarded by the decision-maker to the Secretariat or 
the Presiding Officer, as appropriate. If the circumstances in which a 
prohibited ex parte written communication was made are not apparent 
from the communication itself, a statement describing those 
circumstances shall be forwarded with the communication.
    (2) Prohibited oral ex parte communication. (i) If a prohibited 
oral ex parte communication is made to a decision-maker or interested 
person not employed by the Commission, he/she shall advise the person 
making the communication that the communication is prohibited and shall 
terminate the discussion; and
    (ii) The recipient of the communication shall forward to the 
Secretariat or the Presiding Officer, as appropriate, a signed and 
dated statement containing such of the following information as is 
known to him/her.
    (A) The title and docket number of the proceedings;
    (B) The name and address of the person making the communication and 
his/her relationship (if any) to the parties and/or participants to the 
proceedings;
    (C) The date and time of the communication, its duration, and the

[[Page 21795]]

circumstances (e.g., telephone call, personal interview, etc.) under 
which it was made;
    (D) A brief statement of the substance of the matters discussed; 
and
    (E) Whether the person making the communication persisted in doing 
so after being advised that the communication was prohibited.
    (3) Filing. All communications and statements forwarded to the 
Secretariat or Presiding Officer under this section shall be placed in 
a public file which shall be associated with, but not made a part of, 
the record of the proceedings to which the communication or statement 
pertains.
    (4) Service on parties. The Secretariat or the Presiding Officer, 
as appropriate, shall serve a copy of each communication and statement 
forwarded under this section on all parties to the proceedings. 
However, if the parties are numerous, or if the Secretary or Presiding 
Officer, as appropriate, determine that service of the communication or 
statement would be unduly burdensome, he/she, in lieu of service, may 
notify all parties in writing that the communication or statement has 
been made and filed and that it is available for inspection and 
copying.
    (5) Service on maker. The Secretariat or the Presiding Officer, as 
appropriate, shall forward to the person who made the prohibited ex 
parte communication a copy of each communication or statement filed 
under this section.
    (f) Effect of ex parte communications. No prohibited ex parte 
communication shall be considered as part of the record for decision 
unless introduced into evidence by a party to the proceedings.
    (g) Sanctions. A person or party who makes a prohibited ex parte 
communication, or who encourages or solicits another to make any such 
communication, may be subject to sanctions including but not limited to 
exclusion from the proceedings and an adverse ruling on the issue which 
is the subject of the prohibited communication. A person, not a party 
to the proceeding, who makes or causes to be made an ex parte 
communication prohibited by paragraph (b) of this section shall be 
subject to all sanctions provided in this section if such person 
subsequently becomes a party to the proceeding.

Subpart H--Implementation of the Equal Access to Justice Act in 
Adjudicative Proceedings With the Commission

0
49. The authority citation for part 1025, subpart H, is revised to read 
as follows:

    Authority:  5 U.S.C. 504, 551 et seq.

0
50. Add Sec.  1025.69 to subpart H to read as follows:


Sec.  1025.69  Separation of functions.

    An employee or agent engaged in the performance of investigative or 
prosecuting functions for the Commission in a case, other than a 
Commissioner, may not, in that or a factually related case, participate 
or advise in the decision, recommended decision, or agency review of 
the recommended decision, except as witness or counsel in public 
proceedings.
0
51. Revise Sec.  1025.70 to read as follows:


Sec.  1025.70  General provisions.

    The Equal Access to Justice Act, 5 U.S.C. 504 (called ``the EAJA'' 
in this subpart), provides for the award of attorney fees and other 
expenses to eligible persons who are parties to certain adversary 
adjudicative proceedings before the Commission. Applications for such 
fees and expenses may be made according to the EAJA, as interpreted by 
the federal courts and guidance provided by the U.S. Department of 
Justice.


1025.71 and 1025.72 and Appendix I to Part 1025  [Removed]

0
52. Remove Sec. Sec.  1025.71 and 1025.72 and appendix I to part 1025.

    Dated: April 5, 2016.
Todd A. Stevenson,
Secretary, Consumer Product Safety Commission.
[FR Doc. 2016-08125 Filed 4-12-16; 8:45 am]
 BILLING CODE 6355-01-P