Rules of Practice, 42872-42878 [2023-12630]

Agencies

• FEDERAL TRADE COMMISSION

[Federal Register Volume 88, Number 127 (Wednesday, July 5, 2023)]
[Rules and Regulations]
[Pages 42872-42878]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-12630]


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FEDERAL TRADE COMMISSION

16 CFR Parts 0, 1, 2, 3 and 4


Rules of Practice

AGENCY: Federal Trade Commission.

ACTION: Final rules.

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SUMMARY: The Commission is amending its rules of practice to reflect 
the creation of the agency's new Office of Technology. The Commission 
is also amending, its rules of practice for adjudicative proceedings so 
that administrative law judges presiding over an administrative hearing 
render a ``recommended'' decision rather than an ``initial'' decision. 
Additionally, the Commission is amending its rules of practice to 
reflect new procedures for making Touhy and Privacy Act requests. 
Finally, the Commission is amending certain provisions in its rules of 
practice to fix misspellings and cross-references and make other 
ministerial changes.

DATES: This rule is effective on June 5, 2023. The rules of practice 
for adjudicative proceedings that were in effect before June 5, 2023 
will govern all currently pending Commission adjudicative proceedings.

FOR FURTHER INFORMATION CONTACT: Josephine Liu, (202) 326-2170, or 
Michael Lezaja, (202) 326-2661, Office of the General Counsel, Federal 
Trade Commission, 600 Pennsylvania Avenue NW, Washington, DC 20580.

SUPPLEMENTARY INFORMATION: The Federal Trade Commission is revising 
certain rules in parts 0 through 4 of its rules of practice, 16 CFR 
parts 0 through 4. These revisions fall into four categories: (1) 
revisions in parts 0 and 2 to reflect the creation of the agency's new 
Office of Technology; (2) revisions in part 3 so that the 
administrative law judge (ALJ) will issue a ``recommended'' decision 
after each administrative hearing rather than an ``initial'' decision, 
and so that each recommended decision will be subject to automatic 
Commission review; (3) revisions in part 4 to amend the procedures for 
Touhy and Privacy Act requests; and (4) revisions to parts 1 and 3 to 
make ministerial changes such as updating cross-references and fixing 
misspellings.
    Because these rule revisions relate solely to agency procedure and 
practice, publication for notice and comment is not required under the 
Administrative Procedure Act. 5 U.S.C. 553(b).\1\
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    \1\ For this reason, the requirements of the Regulatory 
Flexibility Act are also inapplicable. 5 U.S.C. 601(2), 604(a). 
Likewise, the amendments do not modify any FTC collections of 
information within the meaning of the Paperwork Reduction Act, 44 
U.S.C. 3501 et seq.
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I. Revisions to Part 0--Organization

    The Commission recently created a new Office of Technology. 
Consequently, the Commission is adding new 16 CFR 0.8(f) to include

[[Page 42873]]

information about the new Office of Technology.

II. Revisions to Part 1--General Procedures

    The Commission is revising part 1 of its rules to fix cross-
references in Sec. Sec.  1.13(b) and 1.26(b)(5), fix misspellings in 
Sec. Sec.  1.22(c) and 1.73(b)(1), correct an outdated reference to the 
``Division of Credit Practices'' in Sec.  1.71, and eliminate redundant 
use of both spelled-out numbers and Roman numerals in Sec.  1.73(b)(1).

III. Revisions to Part 2--Investigative, Settlement, and Compliance 
Procedures

    As noted above, the Commission recently created the new Office of 
Technology. The Commission is revising Sec. Sec.  2.7(l) and 2.10(a)(5) 
to add the Chief Technology Officer and Deputy Chief Technology Officer 
to the list of officials who have delegated authority to modify the 
terms of compliance with compulsory process and extend certain 
deadlines relating to compulsory process. This change will put the 
Chief Technology Officer and Deputy Chief Technology Officer on equal 
footing with other designated officials like the Director and Deputy 
Director of the Office of Policy Planning who already have this 
delegated authority.

IV. Revisions to Part 3--Rules of Practice for Adjudicative Proceedings

    The Commission is revising part 3 so that the ALJ will issue a 
``recommended'' decision after each administrative hearing, rather than 
an ``initial'' decision. Under the Administrative Procedure Act, an ALJ 
who presides at the reception of evidence in an adjudicative proceeding 
can either (1) render an ``initial decision,'' or (2) ``recommend a 
decision'' to the agency and ``certify'' the ``entire record'' to the 
agency for a decision. 5 U.S.C. 557(b). When the ALJ issues an 
``initial decision,'' that ``becomes the decision of the agency without 
further proceedings'' unless a party seeks review of the initial 
decision before the agency or the agency, on its own initiative, elects 
to review the initial decision. Id. A ``recommended decision,'' by 
contrast, is issued in cases where the agency will automatically review 
the recommended decision. In evaluating the recommended decision, the 
agency may affirm the recommended decision in full or may reject the 
ALJ's recommended decision, in whole or in part, and issue its own 
decision adopting different findings of fact or conclusions of law. 
Before the agency can take action on an ALJ's recommended decision, the 
agency must provide the parties with a ``reasonable opportunity to 
submit exceptions'' to the recommended decision and ``supporting 
reasons for the exceptions.'' 5 U.S.C. 557(c). In addition, the agency 
must rule on each exception presented. Id.

Section 3.24: Summary Decisions

    In Sec.  3.24, the Commission is deleting the language about 
referring motions for summary decision to the ALJ. The granting of 
summary decision indicates that there is no genuine issue as to any 
material fact regarding liability or relief, and it results in the 
issuance of a final decision and order. Because the Commission is 
amending its rules of practice so that the ALJ will issue only 
recommended decisions, not initial decisions, the Commission is 
revising Sec.  3.24 to eliminate the ALJ's ability to rule on motions 
for summary decision. In addition, as a practical matter, the 
Commission has not referred any motions for summary decision to the ALJ 
since Sec.  3.24 was revised in 2009 to permit the Commission to 
resolve dispositive motions in the first instance unless referred by 
the Commission to the ALJ. See 74 FR 1804, 1811 (2009).

Section 3.51: Recommended Decision

    This section--previously named ``Initial decision''--is being 
renamed to reflect the ALJ's new role in issuing recommended decisions.
    The Commission is also deleting outdated language in Sec.  3.51(a) 
about the initial decision becoming the decision of the Commission 
unless a party perfects an appeal or the Commission places the case on 
its own docket for review. That language is inapplicable to recommended 
decisions, which are automatically reviewed by the Commission.
    Under the APA, when an ALJ issues a recommended decision, the ALJ 
must also ``certify'' the ``entire record'' to the agency for a 
decision. 5 U.S.C. 557(b). In new Sec.  3.51(a)(2), the Commission is 
adding language to explain what constitutes the record of the 
proceeding--i.e., the recommended decision; any transcripts from 
prehearing conferences; all hearing transcripts; all rulings; all 
exhibits; and the pleadings, motions, briefs, memoranda, and other 
supporting papers filed in connection with the proceeding. The 
Commission is also requiring the ALJ to provide an index of each 
exhibit identified but not received into evidence, to help ensure that 
the Commission does not inadvertently rely upon an exhibit that was 
never admitted.

Section 3.52: Exceptions to Recommended Decision

    Under the APA, parties must be given a ``reasonable opportunity to 
submit exceptions'' to the recommended decision and ``supporting 
reasons for the exceptions.'' 5 U.S.C. 557(c). The Commission is 
renaming Sec.  3.52--previously named ``Appeal from initial 
decision''--to be consistent with this terminology and also to 
eliminate the reference to initial decisions.
    Section 3.52(a) will continue to govern the timing of Commission 
review for cases in which the Commission sought preliminary relief in 
federal court; Sec.  3.52(b) will continue to govern the timing of 
Commission review for all other cases.
    In Sec.  3.52(b)(1), the Commission is eliminating the requirement 
that parties first file a notice of appeal and then perfect their 
appeal by filing an opening appeal brief. Under the revised rule, 
parties will file their exceptions to the recommended decision simply 
by filing an opening brief.
    In new Sec.  3.52(b)(2), the Commission is adding a paragraph to 
explain the procedures that will govern when no party files exceptions 
to the recommended decision. As stated in new Sec.  3.52(b)(2), the 
Commission may in its discretion hold oral argument within 30 days 
after the deadline for the filing of exceptions. The Commission will 
issue its final decision within 100 days after oral argument; or, if no 
oral argument is scheduled, the Commission will issue its final 
decision within 100 days after the deadline for the filing of 
exceptions.

Section 3.53: Review of Recommended Decision in Absence of Exceptions

    The Commission is renaming this section--previously named ``Review 
of recommended decision in absence of appeal''--to be consistent with 
the terminology used elsewhere in the revised rules.
    As explained in Sec.  3.53, if no party files exceptions to the 
recommended decision, the Commission will enter an order placing the 
case on its own docket for review. The Commission's order will set 
forth the scope of such review and the issues to be considered. The 
order will also provide for the filing of briefs if appropriate.

Section 3.54: Commission Decision After Review of Recommended Decision

    The Commission is renaming this section--previously named 
``Decision on appeal or review''--to be consistent with the terminology 
used elsewhere in the revised rules.

[[Page 42874]]

    The Commission is deleting old Sec.  3.54(a). The old language 
about the powers of the Commission during an appeal from or review of 
an initial decision is no longer needed, given that the entire record 
is now being certified to the Commission for a decision.

Sections 3.1, 3.21(c)(2), 3.38(c), 3.42(c)(9), 3.46(e), 3.82(d)(3), and 
3.83(g)-(h)

    In these rules, the Commission is changing language that mentions 
``initial decisions'' so that the language instead mentions 
``recommended decisions.'' The Commission is also correcting other 
provisions that are inconsistent with the recommended decision 
procedure.

Ministerial Changes

    Finally, the Commission is eliminating redundant use of both 
spelled-out numbers and Roman numerals in Sec.  3.42(e) and (g)(2).

V. Revisions to Part 4--Miscellaneous Rules

    The Commission is revising Sec.  4.11(e) to clarify the procedures 
that apply to Touhy requests seeking records or testimony from the 
Commission Office of Inspector General, and revising its Privacy Act 
rules in Sec.  4.13 to conform with the CASES Act and implementing OMB 
guidance.

Section 4.11(e): Requests for Testimony, Pursuant to Compulsory Process 
or Otherwise, and Requests for Material Pursuant to Compulsory Process, 
in Cases or Matters to Which the Commission is Not a party

    In Sec.  4.11(e), the Commission is adding language to clarify that 
where there is a request under Sec.  4.11(e) for records or testimony 
from the Commission Office of Inspector General, the Inspector 
General--rather than the General Counsel--will consider and act upon 
these requests.

Section 4.13: Privacy Act Rules

    In Sec.  4.13(d), the Commission is clarifying when persons 
submitting written requests are required to verify their identity. This 
change complies with the requirements of the Creating Advanced 
Streamlined Electronic Services for Constituents Act of 2019 (``CASES 
Act''), Public Law 116-50, 133 Stat. 1074 (codified at 5 U.S.C. 552a 
note), and OMB M-21-04, Modernizing Access to and Consent for 
Disclosure of Records Subject to the Privacy Act (Nov. 12, 2020). Under 
the CASES Act and implementing OMB guidance, agencies must accept 
remote identity-proofing and authentication for the purposes of 
allowing an individual to request access to their records or to provide 
prior written consent authorizing disclosure of their records under the 
Privacy Act. Specifically, the changes to Sec.  4.13(d) clarify that 
persons submitting Privacy Act requests are required to verify their 
identity, and that the deciding official will require additional 
verification of a requester's identity when reasonably necessary to 
protect against improper disclosure of records.

List of Subjects

16 CFR Parts 0, 1, 2 and 3

    Administrative practice and procedure.

16 CFR Part 4

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

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

PART 0--ORGANIZATION

0
1. The authority for Part 0 continues to read as follows:

    Authority:  5 U.S.C. 552(a)(1); 15 U.S.C. 46(g).


0
2. In Sec.  0.8, revise paragraphs (d) and (e) and add paragraph (f) to 
read as follows:


Sec.  0.8  The Chair.

* * * * *
    (d) The Office of Policy Planning, which assists the Commission to 
develop and implement long-range competition and consumer protection 
policy initiatives;
    (e) The Office of Public Affairs, which furnishes information 
concerning Commission activities to news media and the public; and
    (f) The Office of Technology, which employs expertise in technology 
to strengthen and support law enforcement investigations and actions, 
advise and engage with FTC staff and the Commission on policy and 
research initiatives, and engage the public and relevant experts to 
understand trends and to advance the Commission's work.

PART 1--GENERAL PROCEDURES

0
3. The authority for subpart B of Part 1 continues to read as follows:

    Authority:  15 U.S.C. 46; 15 U.S.C. 57a; 5 U.S.C. 552; 5 U.S.C. 
601 note.


0
4. In Sec.  1.13, amend paragraph (b) introductory text by revising the 
first sentence to read as follows:


Sec.  1.13  Conduct of informal hearing by the presiding officer.

* * * * *
    (b) * * * If requested under Sec.  1.11(e), an informal hearing 
with the opportunity for oral presentations will be conducted by the 
presiding officer. * * *
* * * * *

0
5. The authority for subpart C of Part 1 continues to read as follows:

    Authority:  15 U.S.C. 46; 5 U.S.C. 601 note.


0
6. In Sec.  1.22, revise paragraph (c) to read as follows:


Sec.  1.22  Rulemaking.

* * * * *
    (c) Use of rules in adjudicative proceedings. When a rule is 
relevant to any issue involved in an adjudicative proceeding thereafter 
instituted, the Commission may rely upon the rule to resolve such 
issue, provided that the respondent shall have been given a fair 
hearing on the applicability of the rule to the particular case.

0
7. In Sec.  1.26, revise paragraph (b)(5) to read as follows:


Sec.  1.26  Procedure.

* * * * *
    (b) * * *
    (5) A statement setting forth such procedures for treatment of 
communications from persons not employed by the Commission to 
Commissioners or Commissioner Advisors with respect to the merits of 
the proceeding as will incorporate the requirements of Sec.  1.18(c), 
including the transcription of oral communications required by Sec.  
1.18(c)(1)(ii), adapted in such form as may be appropriate to the 
circumstances of the particular proceeding.
* * * * *

0
8. The authority for subpart H of Part 1 continues to read as follows:

    Authority:  84 Stat. 1128, 15 U.S.C. 1681 et seq.


0
9. In Sec.  1.71, revise the first sentence to read as follows:


Sec.  1.71  Administration.

    The general administration of the Fair Credit Reporting Act (Title 
VI of the Consumer Credit Protection Act of 1968; enacted October 26, 
1970; Pub. L. 91-508, 82 Stat. 146, 15 U.S.C. 1601 et seq.) is carried 
out by the Bureau of Consumer Protection, Division of Privacy and 
Identity Protection. * * *

0
10. In Sec.  1.73, revise paragraph (b)(1) to read as follows:


Sec.  1.73  Interpretations.

* * * * *

[[Page 42875]]

    (b) * * *
    (1) Requests for Commission interpretations should be submitted in 
writing to the Secretary of the Federal Trade Commission stating the 
nature of the interpretation requested and the reasons and 
justification therefor. If the request is granted, as soon as 
practicable thereafter, the Commission will publish a notice in the 
Federal Register setting forth the text of the proposed interpretation. 
Comments, views, or objections, together with the grounds therefor, 
concerning the proposed interpretation may be submitted to the 
Secretary of the Commission within 30 days of public notice thereof. 
The proposed interpretation will automatically become final after the 
expiration of 60 days from the date of public notice thereof, unless 
upon consideration of written comments submitted as hereinabove 
provided, the Commission determines to rescind, revoke, modify, or 
withdraw the proposed interpretation, in which event notification of 
such determination will be published in the Federal Register.
* * * * *

PART 2--NONADJUDICATIVE PROCEDURES

0
11. The authority for Part 2 continues to read as follows:

    Authority:  15 U.S.C. 46.


0
12. In Sec.  2.7, amend paragraph (l) by revising the first sentence to 
read as follows:


Sec.  2.7  Compulsory process in investigations.

* * * * *
    (l) * * * The Directors of the Bureaus of Competition, Consumer 
Protection, and Economics and the Office of Policy Planning, their 
Deputy Directors, the Assistant Directors of the Bureaus of Competition 
and Economics, the Associate Directors of the Bureau of Consumer 
Protection, the Regional Directors, the Assistant Regional Directors, 
the Chief Technology Officer, and the Deputy Chief Technology Officer 
are all authorized to modify and, in writing, approve the terms of 
compliance with all compulsory process, including subpoenas, CIDs, 
reporting programs, orders requiring reports, answers to questions, and 
orders requiring access. * * *

0
13. In Sec.  2.10, revise paragraph (a)(5) to read as follows:


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

    (a) * * *
    (5) Extensions of time. The Directors of the Bureaus of 
Competition, Consumer Protection, and Economics and the Office of 
Policy Planning, their Deputy Directors, the Assistant Directors of the 
Bureaus of Competition and Economics, the Associate Directors of the 
Bureau of Consumer Protection, the Regional Directors, the Assistant 
Regional Directors, the Chief Technology Officer, and the Deputy Chief 
Technology Officer are delegated, without power of redelegation, the 
authority to rule upon requests for extensions of time within which to 
file petitions to limit or quash Commission compulsory process.
* * * * *

PART 3--RULES OF PRACTICE FOR ADJUDICATIVE PROCEEDINGS

0
14. The authority for Part 3 continues to read as follows:

    Authority:  15 U.S.C. 46.


0
15. In Sec.  3.1, revise the last sentence to read as follows:


Sec.  3.1  Scope of the rules in this part; expedition of proceedings.

    * * * The Commission, at any time, or the Administrative Law Judge 
at any time prior to the filing of his or her recommended decision, 
may, with the consent of the parties, shorten any time limit prescribed 
by these Rules of Practice.

0
16. In Sec.  3.21, amend paragraph (c)(2), by revising the third 
sentence to read as follows:


Sec.  3.21  Prehearing procedures.

* * * * *
    (c) * * *
    (2) * * * In determining whether to grant the motion, the 
Administrative Law Judge shall consider any extensions already granted, 
the length of the proceedings to date, the complexity of the issues, 
and the need to conclude the evidentiary hearing and render a 
recommended decision in a timely manner. * * *
* * * * *

0
17. In Sec.  3.24, revise paragraphs (a)(2), (a)(3), (a)(4), (a)(5), 
(b)(1), and (b)(2) to read as follows:


Sec.  3.24  Summary decisions.

    (a) * * *
    (2) Any other party may, within 14 days after service of the 
motion, file opposing affidavits. The opposing party shall include a 
separate and concise statement of those material facts as to which the 
opposing party contends there exists a genuine issue for trial, as 
provided in Sec.  3.24(a)(3). The parties may file memoranda of law in 
support of, or in opposition to, the motion consistent with Sec.  
3.22(c). If a party includes in any such brief or memorandum 
information that has been granted in camera status pursuant to Sec.  
3.45(b) or is subject to confidentiality protections pursuant to a 
protective order, the party shall file 2 versions of the document in 
accordance with the procedures set forth in Sec.  3.45(e). If the 
Commission determines that there is no genuine issue as to any material 
fact regarding liability or relief, it shall issue a final decision and 
order. A summary decision, interlocutory in character and in compliance 
with the procedures set forth in Sec.  3.51(c), may be rendered on the 
issue of liability alone although there is a genuine issue as to 
relief.
    (3) Affidavits shall set forth such facts as would be admissible in 
evidence and shall show affirmatively that the affiant is competent to 
testify to the matters stated therein. The Commission may permit 
affidavits to be supplemented or opposed by depositions, answers to 
interrogatories, or further affidavits. When a motion for summary 
decision is made and supported as provided in this rule, a party 
opposing the motion may not rest upon the mere allegations or denials 
of his or her pleading; the response, by affidavits or as otherwise 
provided in this rule, must set forth specific facts showing that there 
is a genuine issue of material fact for trial. If no such response is 
filed, summary decision, if appropriate, shall be rendered.
    (4) Should it appear from the affidavits of a party opposing the 
motion that it cannot, for reasons stated, present by affidavit facts 
essential to justify its opposition, the Commission may deny the motion 
for summary decision or may order a continuance to permit affidavits to 
be obtained or depositions to be taken or discovery to be had or make 
such other order as is appropriate and a determination to that effect 
shall be made a matter of record.
    (5) If on motion under this rule a summary decision is not rendered 
upon the whole case or for all the relief asked and a trial is 
necessary, the Commission shall issue an order specifying the facts 
that appear without substantial controversy and directing further 
proceedings in the action. The facts so specified shall be deemed 
established.
    (b) * * *
    (1) Should it appear to the satisfaction of the Commission at any 
time that any of the affidavits presented pursuant to this rule are 
presented in bad faith, or solely for the purpose of delay, or are 
patently frivolous, the Commission shall enter a determination to that 
effect upon the record.

[[Page 42876]]

    (2) If upon consideration of all relevant facts attending the 
submission of any affidavit covered by paragraph (b)(1) of this 
section, the Commission concludes that action to suspend or remove an 
attorney from the case is warranted, it shall take action as specified 
in Sec.  3.42(d).

0
18. In Sec.  3.38, amend paragraph (c) by revising the first sentence 
to read as follows:


Sec.  3.38  Motion for order compelling disclosure or discovery; 
sanctions.

* * * * *
    (c) Any such action may be taken by written or oral order issued in 
the course of the proceeding or by inclusion in a recommended decision 
of the Administrative Law Judge or an order or opinion of the 
Commission. * * *

0
19. In Sec.  3.42, revise paragraphs (c)(9) and (e) and the second 
sentence of paragraph (g)(2) to read as follows:


Sec.  3.42  Presiding officials.

* * * * *
    (c) * * *
    (9) To make and file recommended decisions;
* * * * *
    (e) Substitution of Administrative Law Judge. In the event of the 
substitution of a new Administrative Law Judge for the one originally 
designated, any motion predicated upon such substitution shall be made 
within 5 days thereafter.
* * * * *
    (g) * * *
    (2) * * * If the Administrative Law Judge does not disqualify 
himself within 10 days, he shall certify the motion to the Commission, 
together with any statement he may wish to have considered by the 
Commission. * * *
* * * * *

0
20. In Sec.  3.46, revise paragraph (e) to read as follows:


Sec.  3.46  Proposed findings, conclusions, and order.

* * * * *
    (e) Rulings. The record shall show the Administrative Law Judge's 
recommended ruling on each proposed finding and conclusion, except when 
the proposed order disposing of the proceeding otherwise informs the 
parties of the action taken.

0
21. Revise Sec.  3.51 to read as follows:


Sec.  3.51  Recommended decision.

    (a) When filed, content. (1) Filing of recommended decision. The 
Administrative Law Judge shall file a recommended decision within 70 
days after the filing of the last filed initial or reply proposed 
findings of fact, conclusions of law and order pursuant to Sec.  3.46, 
or within 85 days of the closing the hearing record pursuant to Sec.  
3.44(c) where the parties have waived the filing of proposed findings. 
The Administrative Law Judge may extend any of these time periods by up 
to 30 days for good cause. The Commission may further extend any of 
these time periods for good cause.
    (2) Certification of the record. At the same time the 
Administrative Law Judge files the recommended decision, the 
Administrative Law Judge will also certify to the Commission the record 
of the proceeding. The record must include the Administrative Law 
Judge's recommended decision; any transcripts from prehearing 
conferences; all hearing transcripts; all rulings; all exhibits; and 
the pleadings, motions, briefs, memoranda, and other supporting papers 
filed in connection with the proceeding. The Administrative Law Judge 
must also furnish to the Commission an index of each exhibit identified 
but not received in evidence.
    (b) Exhaustion of administrative remedies. A recommended decision 
shall not be considered final agency action subject to judicial review 
under 5 U.S.C. 704. Any objection to a ruling by the Administrative Law 
Judge, or to a finding, conclusion or a provision of the order in the 
recommended decision, which is not made a part of any exceptions filed 
with the Commission shall be deemed to have been waived.
    (c) Content, format for filing. (1) A recommended decision shall be 
based on a consideration of the whole record relevant to the issues 
decided, and shall be supported by reliable and probative evidence. The 
recommended decision shall include a statement of recommended findings 
of fact (with specific page references to principal supporting items of 
evidence in the record) and recommended conclusions of law, as well as 
the reasons or basis therefor, upon all the material issues of fact, 
law, or discretion presented on the record (or those designated under 
paragraph (c)(2) of this section) and an appropriate proposed rule or 
order. Rulings containing information granted in camera status pursuant 
to Sec.  3.45 shall be filed in accordance with Sec.  3.45(f).
    (2) The recommended decision shall be prepared in a common word 
processing format, such as WordPerfect or Microsoft Word, and shall be 
filed by the Administrative Law Judge with the Office of the Secretary 
in both electronic and paper versions.
    (3) When more than one claim for relief is presented in an action, 
or when multiple parties are involved, the Administrative Law Judge may 
direct the entry of a recommended decision as to one or more but fewer 
than all of the claims or parties only upon an express determination 
that there is no just reason for delay and upon an express direction 
for the entry of recommended decision.
    (d) By whom made. The recommended decision shall be made and filed 
by the Administrative Law Judge who presided over the hearings, except 
when he or she shall have become unavailable to the Commission.
    (e) Reopening of proceeding by Administrative Law Judge; 
termination of jurisdiction.
    (1) At any time from the close of the hearing record pursuant to 
Sec.  3.44(c) until the filing of his or her recommended decision, an 
Administrative Law Judge may reopen the proceeding for the reception of 
further evidence for good cause shown.
    (2) Except for the correction of clerical errors or pursuant to an 
order of remand from the Commission, the jurisdiction of the 
Administrative Law Judge is terminated upon the filing of his or her 
recommended decision with respect to those issues decided pursuant to 
paragraph (c)(1) of this section.

0
22. In Sec.  3.52, revise the section heading and paragraphs (a), (b), 
and (c) to read as follows:


Sec.  3.52  Exceptions to recommended decision.

    (a) Timing of Commission review for cases in which the Commission 
sought preliminary relief in federal court. (1) For proceedings with 
respect to which the Commission has sought preliminary relief in 
federal court under 15 U.S.C. 53(b), any party may file exceptions to 
the recommended decision or order of the Administrative Law Judge by 
filing its opening brief, subject to the requirements in paragraph (c) 
of this section, within 20 days of the issuance of the recommended 
decision. Any party may respond to any exceptions filed by another 
party by filing an answering brief, subject to the requirements of 
paragraph (d) of this section, within 20 days of service of the opening 
brief. Any party may file a reply to an answering brief, subject to the 
requirements of paragraph (e) of this section, within 5 days of service 
of the answering brief. Unless the Commission orders that there shall 
be no oral argument, it will hold oral argument within 10 days after 
the deadline for the filing of any reply briefs. The Commission will 
issue its final decision pursuant to Sec.  3.54 within 45 days after 
oral argument. If no oral argument is scheduled, the Commission will 
issue its final decision pursuant to Sec.  3.54

[[Page 42877]]

within 45 days after the deadline for the filing of any reply briefs.
    (2) If no exceptions to the recommended decision are filed, the 
Commission may in its discretion hold oral argument within 10 days 
after the deadline for the filing of exceptions, and will issue its 
final decision pursuant to Sec.  3.54 within 45 days after oral 
argument. If no oral argument is scheduled, the Commission will issue 
its final decision pursuant to Sec.  3.54 within 45 days after the 
deadline for the filing of exceptions.
    (b) Timing of Commission review in all other cases. (1) In all 
cases other than those subject to paragraph (a) of this section, any 
party may file exceptions to the recommended decision of the 
Administrative Law Judge by filing its opening brief, subject to the 
requirements in paragraph (c) of this section, within 30 days of the 
issuance of the recommended decision. Any party may respond to the 
opening brief by filing an answering brief, subject to the requirements 
of paragraph (d) of this section, within 30 days of service of the 
opening brief. Any party may file a reply to an answering brief, 
subject to the requirements of paragraph (e) of this section, within 7 
days of service of the answering brief. Unless the Commission orders 
that there shall be no oral argument, it will hold oral argument within 
15 days after the deadline for the filing of any reply briefs. The 
Commission will issue its final decision pursuant to Sec.  3.54 within 
100 days after oral argument. If no oral argument is scheduled, the 
Commission will issue its final decision pursuant to Sec.  3.54 within 
100 days after the deadline for the filing of any reply briefs.
    (2) If no exceptions to the recommended decision are filed, the 
Commission may in its discretion hold oral argument within 30 days 
after the deadline for the filing of exceptions, and will issue its 
final decision pursuant to Sec.  3.54 within 100 days after oral 
argument. If no oral argument is scheduled, the Commission will issue 
its final decision pursuant to Sec.  3.54 within 100 days after the 
deadline for the filing of exceptions.
    (c) Opening brief. (1) The opening brief shall contain, in the 
order indicated, the following:
    (i) A subject index of the matter in the brief, with page 
references, and a table of cases (alphabetically arranged), textbooks, 
statutes, and other material cited, with page references thereto;
    (ii) A concise statement of the case, which includes a statement of 
facts relevant to the issues submitted for review, and a summary of the 
argument, which must contain a succinct, clear, and accurate statement 
of the arguments made in the body of the brief, and which must not 
merely repeat the argument headings;
    (iii) A specification of the questions intended to be urged;
    (iv) The argument presenting clearly the points of fact and law 
relied upon in support of the position taken on each question, with 
specific page references to the record and the legal or other material 
relied upon; and
    (v) A proposed form of order for the Commission's consideration 
instead of the order contained in the recommended decision.
* * * * *

0
23. Revise Sec.  3.53 to read as follows:


Sec.  3.53  Review of recommended decision in absence of exceptions.

    If no party files exceptions to the recommended decision of the 
Administrative Law Judge under Sec.  3.52(a)(1) or Sec.  3.52(b)(1), 
the Commission will enter an order placing the case on its own docket 
for review. The Commission's order will set forth the scope of such 
review and the issues which will be considered and will make provision 
for the filing of briefs if deemed appropriate by the Commission.

0
24. Amend Sec.  3.54 by:
0
a. Revising the section heading;
0
b. Revising paragraph (a);
0
c. Removing paragraph (b);
0
d. Redesignating paragraphs (c) and (d) as paragraphs (b) and (c).
    The revisions read as follows:


Sec.  3.54  Commission decision after review of recommended decision.

    (a) In rendering its decision, the Commission will adopt, modify, 
or set aside the recommended findings, recommended conclusions, and 
proposed rule or order contained in the recommended decision, and will 
include in the decision a statement of the reasons or basis for its 
action and any concurring and dissenting opinions.
* * * * *

0
25. The authority for subpart I of Part 3 continues to read as follows:

    Authority:  5 U.S.C. 504 and 5 U.S.C. 553(b).


0
26. In Sec.  3.82, revise paragraph (d)(3) to read as follows:


Sec.  3.82  Information required from applicants.

* * * * *
    (d) * * *
    (3) For purposes of this subpart, final disposition means the later 
of--
    (i) The date that the Commission issues an order disposing of any 
petitions for reconsideration of the Commission's final order in the 
proceeding; or
    (ii) The date that the Commission issues a final order or any other 
final resolution of a proceeding, such as a consent agreement, 
settlement or voluntary dismissal, which is not subject to a petition 
for reconsideration.

0
27. In Sec.  3.83, revise paragraphs (g) and (h) to read as follows:


Sec.  3.83  Procedures for considering applicants.

* * * * *
    (g) Decision. The Administrative Law Judge shall issue a 
recommended decision on the application within 30 days after closing 
proceedings on the application.
    (1) For a decision involving a prevailing party: The decision shall 
include written recommended findings and conclusions on the applicant's 
eligibility and status as a prevailing party, and an explanation of the 
reasons for any difference between the amount requested and the amount 
awarded. The decision shall also include, if at issue, recommended 
findings on whether the agency's position was substantially justified, 
whether the applicant unduly protracted the proceedings, or whether 
special circumstances make an award unjust.
    (2) For a decision involving an excessive agency demand: The 
decision shall include written recommended findings and conclusions on 
the applicant's eligibility and an explanation of the reasons why the 
agency's demand was or was not determined to be substantially in excess 
of the decision of the adjudicative officer and was or was not 
unreasonable when compared with that decision. That decision shall be 
based upon all the facts and circumstances of the case. The decision 
shall also include, if at issue, recommended findings on whether the 
applicant has committed a willful violation of law or otherwise acted 
in bad faith, or whether special circumstances make an award unjust.
    (h) Agency review. Either the applicant or complaint counsel may 
seek review of the recommended decision on the fee application by 
filing exceptions under Sec.  3.52(a)(1), or the Commission may decide 
to review the decision on its own initiative, in accordance with Sec.  
3.53. The Commission will issue a final decision on the application or 
remand the application to the Administrative Law Judge for further 
proceedings.
* * * * *

[[Page 42878]]

PART 4--MISCELLANEOUS RULES

0
28. The authority for Part 4 continues to read as follows:

    Authority:  15 U.S.C. 46.


0
29. Amend Sec.  4.11(e)(1) by adding a sentence to the end of the 
paragraph to read as follows:


Sec.  4.11  Disclosure requests.

* * * * *
    (e) * * *
    (1) * * * Where a demand is made for Commission Office of Inspector 
General (``OIG'') records or OIG employee testimony, the term 
``Inspector General'' will be substituted in this paragraph (e) for the 
term ``General Counsel.''
* * * * *

0
30. In Sec.  4.13, revise paragraph (d) to read as follows:


Sec.  4.13  Privacy Act rules.

* * * * *
    (d) Times, places, and requirements for identification of 
individuals making requests. Verification of identity of persons making 
written requests to the deciding official (as designated by the General 
Counsel) will be required. The signature on such requests will be 
deemed a certification by the signatory that he or she is the 
individual to whom the record pertains or is the parent or guardian of 
a minor or the legal guardian of the individual to whom the record 
pertains. The deciding official (as designated by the General Counsel) 
will require additional verification of a requester's identity when 
such information is reasonably necessary to assure that records are not 
improperly disclosed; provided, however, that no verification of 
identity will be required if the records sought are publicly available 
under the Freedom of Information Act.
* * * * *

    By direction of the Commission.
April J. Tabor,
Secretary.
[FR Doc. 2023-12630 Filed 7-3-23; 8:45 am]
BILLING CODE 6750-01-P