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: https://
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: https://
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: https://
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]
=======================================================================
-----------------------------------------------------------------------
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.
-----------------------------------------------------------------------
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: https://
[[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: https://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: https://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