[Title 16 CFR ]
[Code of Federal Regulations (annual edition) - January 1, 2012 Edition]
[From the U.S. Government Printing Office]
[[Page i]]
Title 16
Commercial Practices
________________________
Parts 0 to 999
Revised as of January 1, 2012
Containing a codification of documents of general
applicability and future effect
As of January 1, 2012
Published by the Office of the Federal Register
National Archives and Records Administration as a
Special Edition of the Federal Register
[[Page ii]]
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[[Page iii]]
Table of Contents
Page
Explanation................................................. v
Title 16:
Chapter I--Federal Trade Commission 3
Finding Aids:
Table of CFR Titles and Chapters........................ 737
Alphabetical List of Agencies Appearing in the CFR...... 757
List of CFR Sections Affected........................... 767
[[Page iv]]
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Cite this Code: CFR
To cite the regulations in
this volume use title,
part and section number.
Thus, 16 CFR 0.1 refers to
title 16, part 0, section
1.
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[[Page v]]
EXPLANATION
The Code of Federal Regulations is a codification of the general and
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Each volume of the Code is revised at least once each calendar year
and issued on a quarterly basis approximately as follows:
Title 1 through Title 16.................................as of January 1
Title 17 through Title 27..................................as of April 1
Title 28 through Title 41...................................as of July 1
Title 42 through Title 50................................as of October 1
The appropriate revision date is printed on the cover of each
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collection request.
[[Page vi]]
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[[Page vii]]
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Director,
Office of the Federal Register.
January 1, 2012.
[[Page ix]]
THIS TITLE
Title 16--Commercial Practices is composed of two volumes. The first
volume contains parts 0-999 and comprises chapter I--Federal Trade
Commission. The second volume containing part 1000 to end comprises
chapter II--Consumer Product Safety Commission. The contents of these
volumes represent all current regulations codified under this title of
the CFR as of January 1, 2012.
For this volume, Robert J. Sheehan,III was Chief Editor. The Code of
Federal Regulations publication program is under the direction of
Michael L. White, assisted by Ann Worley.
[[Page 1]]
TITLE 16--COMMERCIAL PRACTICES
(This book contains parts 0 to 999)
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Part
chapter i--Federal Trade Commission......................... 0
[[Page 3]]
CHAPTER I--FEDERAL TRADE COMMISSION
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SUBCHAPTER A--ORGANIZATION, PROCEDURES AND RULES OF PRACTICE
Part Page
0 Organization................................ 7
1 General procedures.......................... 11
2 Nonadjudicative procedures.................. 32
3 Rules of practice for adjudicative
proceedings............................. 47
4 Miscellaneous rules......................... 90
5 Standards of conduct........................ 121
6 Enforcement of nondiscrimination on the
basis of handicap in programs or
activities conducted by the Federal
Trade Commission........................ 126
14 Administrative interpretations, general
policy statements, and enforcement
policy statements....................... 133
16 Advisory committee management............... 136
SUBCHAPTER B--GUIDES AND TRADE PRACTICE RULES
17 Application of guides in preventing unlawful
practices............................... 143
18 Guides for the nursery industry............. 143
20 Guides for the rebuilt, reconditioned and
other used automobile parts industry.... 147
23 Guides for the jewelry, precious metals, and
pewter industries....................... 148
24 Guides for select leather and imitation
leather products........................ 161
25-227 [Reserved]
233 Guides against deceptive pricing............ 163
238 Guides against bait advertising............. 167
239 Guides for the advertising of warranties and
guarantees.............................. 168
240 Guides for advertising allowances and other
merchandising payments and services..... 170
251 Guide concerning use of the word ``free''
and similar representations............. 176
254 Guides for private vocational and distance
education schools....................... 178
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255 Guides concerning use of endorsements and
testimonials in advertising............. 181
259 Guide concerning fuel economy advertising
for new automobiles..................... 190
260 Guides for the use of environmental
marketing claims........................ 192
SUBCHAPTER C--REGULATIONS UNDER SPECIFIC ACTS OF CONGRESS
300 Rules and regulations under the Wool
Products Labeling Act of 1939........... 203
301 Rules and regulations under Fur Products
Labeling Act............................ 215
303 Rules and regulations under the Textile
Fiber Products Identification Act....... 230
304 Rules and regulations under the Hobby
Protection Act.......................... 253
305 Rule concerning disclosures regarding energy
consumption and water use of certain
home appliances and other products
required under the Energy Policy and
Conservation Act (``Appliance Labeling
Rule'')................................. 254
306 Automotive fuel ratings, certification and
posting................................. 326
307 [Reserved]
308 Trade regulation rule pursuant to the
Telephone Disclosure and Dispute
Resolution Act of 1992.................. 337
309 Labeling requirements for alternative fuels
and alternative fueled vehicles......... 348
310 Telemarketing sales rule 16 CFR part 310.... 363
311 Test procedures and labeling standards for
recycled oil............................ 376
312 Children's online privacy protection rule... 377
313 Privacy of consumer financial information... 384
314 Standards for safeguarding customer
information............................. 412
315 Contact lens rule........................... 413
316 Can-spam rule............................... 417
317 Prohibition of energy market manipulation
rule.................................... 420
318 Health breach notification rule............. 421
320 Disclosure requirements for depository
institutions lacking Federal deposit
insurance............................... 424
321 Mortgage acts and practices--Advertising.... 426
322 Mortgage assistance relief services......... 429
SUBCHAPTER D--TRADE REGULATION RULES
408 Unfair or deceptive advertising and labeling
of cigarettes in relation to the health
hazards of smoking...................... 436
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410 Deceptive advertising as to sizes of
viewable pictures shown by television
receiving sets.......................... 436
423 Care labeling of textile wearing apparel and
certain piece goods as amended.......... 436
424 Retail food store advertising and marketing
practices............................... 442
425 Use of prenotification negative option plans 443
429 Rule concerning cooling-off period for sales
made at homes or at certain other
locations............................... 445
432 Power output claims for amplifiers utilized
in home entertainment products.......... 448
433 Preservation of consumers' claims and
defenses................................ 450
435 Mail or telephone order merchandise......... 451
436 Disclosure requirements and prohibitions
concerning franchising.................. 456
437 Disclosure requirements and prohibitions
concerning business opportunities (Eff.
until 3-1-12)........................... 485
437 Business opportunity rule (Eff. 3-1-12)..... 498
444 Credit practices............................ 504
453 Funeral industry practices.................. 507
455 Used motor vehicle trade regulation rule.... 513
456 Ophthalmic practice rules (eyeglass rule)... 521
460 Labeling and advertising of home insulation. 522
SUBCHAPTER E--RULES, REGULATIONS, STATEMENT OF GENERAL POLICY OR
INTERPRETATION AND EXEMPTIONS UNDER THE FAIR PACKAGING AND LABELING ACT
500 Regulations under section 4 of the Fair
Packaging and Labeling Act.............. 530
501 Exemptions from requirements and
prohibitions under part 500............. 543
502 Regulations under section 5(c) of the Fair
Packaging and Labeling Act.............. 544
503 Statements of general policy or
interpretation.......................... 548
SUBCHAPTER F--FAIR CREDIT REPORTING ACT
600 [Reserved]
602 Fair and Accurate Credit Transactions Act of
2003.................................... 553
603 Definitions................................. 553
604 Fair Credit Reporting Act rules............. 554
610 Free annual file disclosures................ 555
611 Prohibition against circumventing treatment
as a nationwide consumer reporting
agency.................................. 555
613 Duration of active duty alerts.............. 563
614 Appropriate proof of identity............... 564
640 Duties of creditors regarding risk-based
pricing................................. 564
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641 Duties of users of consumer reports
regarding address discrepancies......... 565
642 Prescreen opt-out notice.................... 578
660 Duties of furnishers of information to
consumer reporting agencies............. 579
680 Affiliate marketing......................... 581
681 Identity theft rules........................ 585
682 Disposal of consumer report information and
records................................. 599
698 Model forms and disclosures................. 604
SUBCHAPTER G--RULES, REGULATIONS, STATEMENTS AND INTERPRETATIONS UNDER
THE MAGNUSON-MOSS WARRANTY ACT
700 Interpretations of Magnuson-Moss Warranty
Act..................................... 605
701 Disclosure of written consumer product
warranty terms and conditions........... 644
702 Pre-sale availability of written warranty
terms................................... 649
703 Informal dispute settlement procedures...... 651
SUBCHAPTER H--RULES, REGULATIONS, STATEMENTS AND INTERPRETATIONS UNDER
THE HART-SCOTT-RODINO ANTITRUST IMPROVEMENTS ACT OF 1976
801 Coverage rules.............................. 653
802 Exemption rules............................. 660
803 Transmittal rules........................... 683
SUBCHAPTER I--FAIR DEBT COLLECTION PRACTICES ACT
901 Procedures for State application for
exemption from the provisions of the Act 700
902-999 [Reserved]
Cross References: Animal and Plant Health Inspection Service, Department
of Agriculture: 9 CFR Chapter I. Commodity Futures Trading Commission:
17 CFR Chapter I. Consumer Product Safety Commission: 16 CFR Chapter
II. Securities and Exchange Commission: 17 CFR Chapter II.
Supplementary Publications: Federal Trade Commission decisions, Volumes
1-90 Index digest of volumes 1, 2, and 3 of decisions of the Federal
Trade Commission with annotation of Federal cases. Mar. 16, 1915-June
30, 1921. Statutes and decisions pertaining to the Federal Trade
Commission. 1914-1929, 1930-1938, 1939-1943, 1944-1948, 1949-1955,
1956-1960, 1961-1965, 1966-1970, 1971-1975, 1976, 1977.
[[Page 7]]
SUBCHAPTER A_ORGANIZATION, PROCEDURES AND RULES OF PRACTICE
PART 0_ORGANIZATION--Table of Contents
Sec.
0.1 The Commission.
0.2 Official address.
0.3 Hours.
0.4 Laws administered.
0.5 Laws authorizing monetary claims.
0.6 [Reserved]
0.7 Delegation of functions.
0.8 The Chairman.
0.9 Organization structure.
0.10 Office of the Executive Director.
0.11 Office of the General Counsel.
0.12 Office of the Secretary.
0.13 Office of the Inspector General.
0.14 Office of Administrative Law Judges.
0.15 [Reserved]
0.16 Bureau of Competition.
0.17 Bureau of Consumer Protection.
0.18 Bureau of Economics.
0.19 The Regional Offices.
0.20 Office of International Affairs.
Authority: 5 U.S.C. 552(a)(1); 15 U.S.C. 46(g).
Source: 41 FR 54483, Dec. 14, 1976, unless otherwise noted.
Sec. 0.1 The Commission.
The Federal Trade Commission is an independent administrative agency
which was organized in 1915 pursuant to the Federal Trade Commission Act
of 1914 (38 Stat. 717, as amended; 15 U.S.C. 41-58). It is responsible
for the administration of a variety of statutes which, in general, are
designed to promote competition and to protect the public from unfair
and deceptive acts and practices in the advertising and marketing of
goods and services. It is composed of five members appointed by the
President and confirmed by the Senate for terms of seven years.
Sec. 0.2 Official address.
The principal office of the Commission is at Washington, DC. All
communications to the Commission should be addressed to the Federal
Trade Commission, 600 Pennsylvania Avenue, NW, Washington, DC 20580,
unless otherwise specifically directed. The Commission's Web site
address is www.ftc.gov.
[63 FR 71582, Dec. 29, 1998, as amended at 65 FR 78408, Dec. 15, 2000]
Sec. 0.3 Hours.
Principal and field offices are open on each business day from 8:30
a.m. to 5 p.m.
Sec. 0.4 Laws administered.
The Commission exercises enforcement and administrative authority
under the Federal Trade Commission Act (15 U.S.C. 41-58), Clayton Act
(15 U.S.C. 12-27), Robinson-Patman Act (15 U.S.C. 13-13b, 21a), Webb-
Pomerene (Export Trade) Act (15 U.S.C. 61-66), Packers and Stockyards
Act (7 U.S.C. 181-229), Wool Products Labeling Act of 1939 (15 U.S.C.
68-68j), Lanham Trade-Mark Act (15 U.S.C. 1064), Fur Products Labeling
Act (15 U.S.C. 69-69j), Textile Fiber Products Identification Act (15
U.S.C. 70-70k), Federal Cigarette Labeling and Advertising Act (15
U.S.C. 1331-1340), Fair Packaging and Labeling Act (15 U.S.C. 1451-
1461), Truth in Lending Act (15 U.S.C. 1601-1667f), Fair Credit
Reporting Act (15 U.S.C. 1681-1681u), Fair Credit Billing Act (15 U.S.C.
1666-1666j), Equal Credit Opportunity Act (15 U.S.C. 1691-1691f), Fair
Debt Collection Practices Act (15 U.S.C. 1692-1692o), Electronic Fund
Transfer Act (15 U.S.C. 1693-1693r), Hobby Protection Act (15 U.S.C.
2101-2106), Magnuson-Moss Warranty--Federal Trade Commission Improvement
Act (15 U.S.C. 2301-2312, 45-58), Energy Policy and Conservation Act (42
U.S.C. 6201-6422, 15 U.S.C. 2008), Hart-Scott-Rodino Antitrust
Improvements Act of 1976 (15 U.S.C. 18a), Petroleum Marketing Practices
Act (15 U.S.C. 2801-2841), Comprehensive Smokeless Tobacco Health
Education Act of 1986 (15 U.S.C. 4401-4408), Telephone Disclosure and
Dispute Resolution Act of 1992 (15 U.S.C. 5701-5724), Telemarketing and
Consumer Fraud and Abuse Prevention Act (15 U.S.C. 6101-6108),
International Antitrust Enforcement Assistance Act of 1994 (15 U.S.C.
46, 57b-1, 1311-1312, 6201 & note, 6202-6212), Credit Repair
Organizations Act (15 U.S.C. 1679-1679j), Children's Online Privacy
Protection Act (15 U.S.C. 6501-6506), Identity Theft Assumption and
Deterrence Act of 1998 (18
[[Page 8]]
U.S.C. 1028 note), Gramm-Leach-Bliley Act (15 U.S.C. 6801-6809), and
other Federal statutes.
[65 FR 78408, Dec. 15, 2000]
Sec. 0.5 Laws authorizing monetary claims.
The Commission is authorized to entertain monetary claims against it
under three statutes. The Federal Tort Claims Act (28 U.S.C. 2671-2680)
provides that the United States will be liable for injury or loss of
property or personal injury or death caused by the negligent or wrongful
acts or omissions of its employees acting within the scope of their
employment or office. The Military Personnel and Civilian Employees
Claims Act of 1964 (31 U.S.C. 3701, 3721) authorizes the Commission to
compensate employees' claims for damage to or loss of personal property
incident to their service. The Equal Access to Justice Act (5 U.S.C. 504
and 28 U.S.C. 2412) provides that an eligible prevailing party other
than the United States will be awarded fees and expenses incurred in
connection with any adversary adjudicative and court proceeding, unless
the adjudicative officer finds that the agency was substantially
justified or that special circumstances make an award unjust. In
addition, eligible parties, including certain small businesses, will be
awarded fees and expenses incurred in defending against an agency demand
that is substantially in excess of the final decision of the
adjudicative officer and is unreasonable when compared with such
decision under the facts and circumstances of the case, unless the
adjudicative officer finds that the party has committed a willful
violation of law or otherwise acted in bad faith, or special
circumstances make an award unjust. Questions may be addressed to the
Office of the General Counsel, (202) 326-2462.
[63 FR 36340, July 6, 1998]
Sec. 0.6 [Reserved]
Sec. 0.7 Delegation of functions.
The Commission, under the authority provided by Reorganization Plan
No. 4 of 1961, may delegate, by published order or rule, certain of its
functions to a division of the Commission, an individual Commissioner,
an administrative law judge, or an employee or employee board, and
retains a discretionary right to review such delegated action upon its
own initiative or upon petition of a party to or an intervenor in such
action.
[65 FR 78408, Dec. 15, 2000]
Sec. 0.8 The Chairman.
The Chairman of the Commission is designated by the President, and,
subject to the general policies of the Commission, is the executive and
administrative head of the agency. He presides at meetings of and
hearings before the Commission and participates with other Commissioners
in all Commission decisions. Attached to the Office of the Chairman, and
reporting directly to him, and through him to the Commission, are the
following staff units:
(a) The Office of Public Affairs, which furnishes information
concerning Commission activities to news media and the public; and
(b) the Office of Congressional Relations, which coordinates all
liaison activities with Congress.
[50 FR 53303, Dec. 31, 1985]
Sec. 0.9 Organization structure.
The Federal Trade Commission comprises the following principal
units: Office of the Executive Director; Office of the General Counsel;
Office of the Secretary; Office of the Inspector General; Office of the
Administrative Law Judges; Office of International Affairs; Bureau of
Competition; Bureau of Consumer Protection; Bureau of Economics; and the
Regional Offices.
[72 FR 9434, Mar. 2, 2007]
Sec. 0.10 Office of the Executive Director.
The Executive Director, under the direction of the Chairman, is the
chief operating official who develops and implements management and
administrative policies, programs and directives for the Commission. The
Executive Director works closely with the Bureaus on strategic planning
and assessing the management and resource implications of any proposed
action. In addition, the Executive Director manages the Commission's
facilities and administrative
[[Page 9]]
services, financial management, information technology, and human
resources.
[65 FR 78408, Dec. 15, 2000]
Sec. 0.11 Office of the General Counsel.
The General Counsel is the Commission's chief law officer and
adviser, who renders necessary legal services to the Commission,
represents the Commission in the Federal and State courts, advises the
Commission and other agency officials and staff with respect to
questions of law and policy, including advice with respect to
legislative matters and ethics, and responds to requests and appeals
filed under the Freedom of Information and Privacy Acts and to intra-
and intergovernmental access requests.
[65 FR 78408, Dec. 15, 2000]
Sec. 0.12 Office of the Secretary.
The Secretary is responsible for the minutes of Commission meetings
and is the legal custodian of the Commission's seal, property, papers,
and records, including legal and public records. The Secretary, or in
the Secretary's absence an Acting Secretary designated by the
Commission, signs Commission orders and official correspondence. In
addition, the Secretary is responsible for the publication of all
Commission actions that appear in the Federal Register and for the
publication of Federal Trade Commission Decisions.
[65 FR 78408, Dec. 15, 2000]
Sec. 0.13 Office of the Inspector General.
The Office of Inspector General (OIG) was established within the
Federal Trade Commission in 1989 as required by the Inspector General
Act Amendments of 1988 (5 U.S.C. app. 3). The OIG promotes the economy,
efficiency and effectiveness of FTC programs and operations. To this
end, the OIG independently conducts audits and investigations to find
and prevent fraud, waste, and abuse within the agency.
[65 FR 78408, Dec. 15, 2000]
Sec. 0.14 Office of Administrative Law Judges.
Administrative law judges are officials to whom the Commission, in
accordance with law, delegates the initial performance of statutory
fact-finding functions and initial rulings on conclusions of law, to be
exercised in conformity with Commission decisions and policy directives
and with its Rules of Practice. The administrative law judges also serve
as presiding officers assigned to conduct rulemaking proceedings under
section 18(a)(1)(B) of the Federal Trade Commission Act as amended and
other rulemaking proceedings as directed. The Chief Administrative Law
Judge also serves as the Chief Presiding Officer. Administrative law
judges are appointed under the authority and subject to the prior
approval of the Office of Personnel Management.
[54 FR 19885, May 9, 1989, as amended at 65 FR 78409, Dec. 15, 2000]
Sec. 0.15 [Reserved]
Sec. 0.16 Bureau of Competition.
The Bureau is responsible for enforcing Federal antitrust and trade
regulation laws under section 5 of the Federal Trade Commission Act, the
Clayton Act, and a number of other special statutes that the Commission
is charged with enforcing. The Bureau's work aims to preserve the free
market system and assure the unfettered operation of the forces of
supply and demand. Its activities seek to ensure price competition,
quality products and services and efficient operation of the national
economy. The Bureau carries out its responsibilities by investigating
alleged law violations, and recommending to the Commission such further
action as may be appropriate. Such action may include injunctive and
other equitable relief in Federal district court, complaint and
litigation before the agency's administrative law judges, formal
nonadjudicative settlement of complaints, trade regulation rules, or
reports. The Bureau also conducts compliance investigations and
initiates proceedings for civil penalties to assure compliance with
final Commission orders dealing with competition and trade restraint
matters. The
[[Page 10]]
Bureau's activities also include business and consumer education and
staff advice on competition laws and compliance, and liaison functions
with respect to foreign antitrust and competition law enforcement
agencies and organizations, including requests for international
enforcement assistance.
[65 FR 78409, Dec. 15, 2000]
Sec. 0.17 Bureau of Consumer Protection.
The Bureau investigates unfair or deceptive acts or practices under
section 5 of the Federal Trade Commission Act as well as potential
violations of numerous special statutes which the Commission is charged
with enforcing. It prosecutes before the agency's administrative law
judges alleged violations of law after issuance of a complaint by the
Commission or obtains through negotiation consented-to orders, which
must be accepted and issued by the Commission. In consultation with the
General Counsel, the Bureau may also seek injunctive or other equitable
relief under section 13(b) of the Federal Trade Commission Act. The
Bureau participates in trade regulation rulemaking proceedings under
section 18(a)(1)(B) of the Federal Trade Commission Act and other
rulemaking proceedings under statutory authority. It investigates
compliance with final orders and trade regulation rules and seeks civil
penalties or consumer redress for their violation, as well as injunctive
and other equitable relief under section 13(b) of the Act. In addition,
the Bureau seeks to educate both consumers and the business community
about the laws it enforces, and to assist and cooperate with other
state, local, foreign, and international agencies and organizations in
consumer protection enforcement and regulatory matters. The Bureau also
maintains the agency's public reference facilities, where the public may
inspect and copy a current index of opinions, orders, statements of
policy and interpretations, staff manuals and instructions that affect
any member of the public, and other public records of the Commission.
[65 FR 78409, Dec. 15, 2000]
Sec. 0.18 Bureau of Economics.
The bureau aids and advises the Commission concerning the economic
aspects of all of its functions, and is responsible for the preparation
of various economic reports and surveys. The bureau provides economic
and statistical assistance to the enforcement bureaus in the
investigation and trial of cases.
[41 FR 54483, Dec. 14, 1976. Redesignated at 45 FR 36341, May 29, 1980,
and amended at 50 FR 53303, Dec. 31, 1985]
Sec. 0.19 The Regional Offices.
(a) These offices are investigatory arms of the Commission, and have
responsibility for investigational, trial, compliance, and consumer
educational activities as delegated by the Commission. They are under
the general supervision of the Office of the Executive Director, and
clear their activities through the appropriate operating Bureaus.
(b) The names, geographic areas of responsibility, and addresses of
the respective regional offices are as follows:
(1) Northeast Region (located in New York City, New York), covering
Connecticut, Maine, Massachusetts, New Hampshire, New Jersey, New York,
Rhode Island, Vermont, and Puerto Rico. Federal Trade Commission, One
Bowling Green, Suite 318, New York, New York 10004.
(2) Southeast Region (located in Atlanta, Georgia), covering
Alabama, Florida, Georgia, Mississippi, North Carolina, South Carolina,
and Tennessee. Federal Trade Commission, Suite 5M35, Midrise Building,
60 Forsyth Street, SW., Atlanta, Georgia 30303.
(3) East Central Region (located in Cleveland, Ohio), covering
Delaware, District of Columbia, Maryland, Michigan, Ohio, Pennsylvania,
Virginia, and West Virginia. Federal Trade Commission, Eaton Center,
Suite 200, 1111 Superior Avenue, Cleveland, Ohio 44114.
(4) Midwest Region (located in Chicago, Illinois), covering
Illinois, Indiana, Iowa, Kansas, Kentucky, Minnesota, Missouri,
Nebraska, North Dakota, South Dakota, and Wisconsin. Federal Trade
Commission, 55 East Monroe Street, Suite 1860, Chicago, Illinois 60603-
5701.
[[Page 11]]
(5) Southwest Region (located in Dallas, Texas), covering Arkansas,
Louisiana, New Mexico, Oklahoma, and Texas. Federal Trade Commission,
1999 Bryan Street, Suite 2150, Dallas, Texas 75201.
(6) Northwest Region (located in Seattle, Washington), covering
Alaska, Idaho, Montana, Oregon, Washington, and Wyoming. Federal Trade
Commission, 915 Second Avenue, Suite 2896, Seattle, Washington 98174.
(7) Western Region (located in San Francisco and Los Angeles,
California), covering Arizona, California, Colorado, Hawaii, Nevada, and
Utah.
(i) San Francisco Office: Federal Trade Commission, 901 Market
Street, Suite 570, San Francisco, California 94103.
(ii) Los Angeles Office: Federal Trade Commission, 10877 Wilshire
Boulevard, Suite 700, Los Angeles, California 90024.
(c) Each of the regional offices is supervised by a Regional
Director, who is available for conferences with attorneys, consumers,
and other members of the public on matters relating to the Commission's
activities.
[41 FR 54483, Dec. 14, 1976, as amended at 42 FR 27218, May 27, 1977; 43
FR 754, Jan. 4, 1978; 43 FR 6579, Feb. 15, 1978. Redesignated at 45 FR
36341, May 29, 1980, as amended at 50 FR 53303, Dec. 31, 1985; 63 FR
71582, Dec. 29, 1998; 64 FR 71284, Dec. 21, 1999; 65 FR 78409, Dec. 15,
2000]
Sec. 0.20 Office of International Affairs.
The Office of International Affairs (OIA) comprises international
antitrust, international consumer protection, and international
technical assistance. OIA is responsible for designing and implementing
the Commission's international program, which provides support and
advice to the Bureaus of Competition and Consumer Protection with regard
to the international aspects of investigation and prosecution of
unlawful conduct. OIA builds cooperative relationships between the
Commission and foreign authorities; works closely with Bureau personnel
to recommend agency priorities and policies and works, through bilateral
relationships and multilateral organizations, to promote those policies
internationally; and implements Commission policy and participation in
the competition and consumer protection aspects of trade fora and
negotiations, such as the U.S. inter-agency delegations negotiating
bilateral and multilateral free trade agreements. OIA works with
authorized funding sources to develop and implement competition and
consumer protection technical assistance programs.
[72 FR 9434, Mar. 2, 2007]
PART 1_GENERAL PROCEDURES--Table of Contents
Subpart A_Industry Guidance
Advisory Opinions
Sec.
1.1 Policy.
1.2 Procedure.
1.3 Advice.
1.4 Public disclosure.
Industry Guides
1.5 Purpose.
1.6 How promulgated.
Subpart B_Rules and Rulemaking Under Section 18(a)(1)(B) of the FTC Act
1.7 Scope of rules in this subpart.
1.8 Nature, authority and use of trade regulation rules.
1.9 Petitions to commence trade regulation rule proceedings.
1.10 Advance notice of proposed rulemaking.
1.11 Commencement of a rulemaking proceeding.
1.12 Final notice.
1.13 Rulemaking proceeding.
1.14 Promulgation.
1.15 Amendment or repeal of a rule.
1.16 Petition for exemption from trade regulation rule.
1.17 [Reserved]
1.18 Rulemaking record.
1.19 Modification of a rule by the Commission at the time of judicial
review.
1.20 Alternative procedures.
Subpart C_Rules Promulgated Under Authority Other Than Section
18(a)(1)(B) of the FTC Act
1.21 Scope of the rules in this subpart.
1.22 Rulemaking.
1.23 Quantity limit rules.
1.24 Rules applicable to wool, fur, and textile fiber products and rules
promulgated under the Fair Packaging and Labeling Act.
1.25 Initiation of proceedings--petitions.
1.26 Procedure.
[[Page 12]]
Subpart D [Reserved]
Subpart E_Export Trade Associations
1.41 Limited antitrust exemption.
1.42 Notice to Commission.
1.43 Recommendations.
Subpart F_Trademark Cancellation Procedure
1.51 Applications.
Subpart G_Injunctive and Condemnation Proceedings
1.61 Injunctions.
1.62 Ancillary court orders pending review.
1.63 Injunctions: Wool, fur, and textile cases.
1.64 Condemnation proceedings.
Subpart H_Administration of the Fair Credit Reporting Act
1.71 Administration.
1.72 Examination, counseling and staff advice.
1.73 Interpretations.
Subpart I_Procedures for Implementation of the National Environmental
Policy Act of 1969
1.81 Authority and incorporation of CEQ Regulations.
1.82 Declaration of policy.
1.83 Whether to commence the process for an environmental impact
statement.
1.84 Draft environmental impact statements: Availability and comment.
1.85 Final environmental impact statements.
1.86 Supplemental statements.
1.87 NEPA and agency decisionmaking.
1.88 Implementing procedures.
1.89 Effect on prior actions.
Subpart J_Economic Surveys, Investigations, and Reports
1.91 Authority and purpose.
Subpart K_Penalties for Violation of Appliance Labeling Rules
1.92 Scope.
1.93 Notice of proposed penalty.
1.94 Commission proceeding to assess civil penalty.
1.95 Procedures upon election.
1.96 Compromise of penalty.
1.97 Amount of penalty.
Subpart L_Civil Penalty Adjustments Under the Federal Civil Penalties
Inflation Adjustment Act of 1990, as Amended by the Debt Collection
Improvement Act of 1996
1.98 Adjustment of civil monetary penalty amounts.
Subpart M_Submissions Under the Small Business Regulatory Enforcement
Fairness Act
1.99 Submission of rules, guides, interpretations, and policy statements
to Congress and the Comptroller General.
Subpart N_Administrative Wage Garnishment
1.100 Administrative wage garnishment.
Authority: Sec. 6, 38 Stat. 721 (15 U.S.C. 46), unless otherwise
noted.
Source: 32 FR 8444, June 13, 1967, unless otherwise noted.
Subpart A_Industry Guidance
Advisory Opinions
Sec. 1.1 Policy.
(a) Any person, partnership, or corporation may request advice from
the Commission with respect to a course of action which the requesting
party proposes to pursue. The Commission will consider such requests for
advice and inform the requesting party of the Commission's views, where
practicable, under the following circumstances.
(1) The matter involves a substantial or novel question of fact or
law and there is no clear Commission or court precedent; or
(2) The subject matter of the request and consequent publication of
Commission advice is of significant public interest.
(b) The Commission has authorized its staff to consider all requests
for advice and to render advice, where practicable, in those
circumstances in which a Commission opinion would not be warranted.
Hypothetical questions will not be answered, and a request for advice
will ordinarily be considered inappropriate where:
[[Page 13]]
(1) The same or substantially the same course of action is under
investigation or is or has been the subject of a current proceeding
involving the Commission or another governmental agency, or
(2) An informed opinion cannot be made or could be made only after
extensive investigation, clinical study, testing, or collateral inquiry.
[44 FR 21624, Apr. 11, 1979; 44 FR 23515, Apr. 20, 1979, as amended at
54 FR 14072, Apr. 7, 1989]
Sec. 1.2 Procedure.
(a) Application. The request for advice or interpretation should be
submitted in writing (one original and two copies) to the Secretary of
the Commission and should: (1) State clearly the question(s) that the
applicant wishes resolved; (2) cite the provision of law under which the
question arises; and (3) state all facts which the applicant believes to
be material. In addition, the identity of the companies and other
persons involved should be disclosed. Letters relating to unnamed
companies or persons may not be answered. Submittal of additional facts
may be requested prior to the rendering of any advice.
(b) Compliance matters. If the request is for advice as to whether
the proposed course of action may violate an outstanding order to cease
and desist issued by the Commission, such request will be considered as
provided for in Sec. 2.41 of this chapter.
[44 FR 21624, Apr. 11, 1979, as amended at 44 FR 40638, July 12, 1979]
Sec. 1.3 Advice.
(a) On the basis of the materials submitted, as well as any other
information available, and if practicable, the Commission or its staff
will inform the requesting party of its views.
(b) Any advice given by the Commission is without prejudice to the
right of the Commission to reconsider the questions involved and, where
the public interest requires, to rescind or revoke the action. Notice of
such rescission or revocation will be given to the requesting party so
that he may discontinue the course of action taken pursuant to the
Commission's advice. The Commission will not proceed against the
requesting party with respect to any action taken in good faith reliance
upon the Commission's advice under this section, where all the relevant
facts were fully, completely, and accurately presented to the Commission
and where such action was promptly discontinued upon notification of
rescission or revocation of the Commission's approval.
(c) Advice rendered by the staff is without prejudice to the right
of the Commission later to rescind the advice and, where appropriate, to
commence an enforcement proceeding.
[44 FR 21624, Apr. 11, 1979]
Sec. 1.4 Public disclosure.
Written advice rendered pursuant to this section and requests
therefor, including names and details, will be placed in the
Commission's public record immediately after the requesting party has
received the advice, subject to any limitations on public disclosure
arising from statutory restrictions, the Commission's rules, and the
public interest. A request for confidential treatment of information
submitted in connection with the questions should be made separately.
[44 FR 21624, Apr. 11, 1979]
Industry Guides
Sec. 1.5 Purpose.
Industry guides are administrative interpretations of laws
administered by the Commission for the guidance of the public in
conducting its affairs in conformity with legal requirements. They
provide the basis for voluntary and simultaneous abandonment of unlawful
practices by members of industry. Failure to comply with the guides may
result in corrective action by the Commission under applicable statutory
provisions. Guides may relate to a practice common to many industries or
to specific practices of a particular industry.
[[Page 14]]
Sec. 1.6 How promulgated.
Industry guides \1\ are promulgated by the Commission on its own
initiative or pursuant to petition filed with the Secretary or upon
informal application therefor, by any interested person or group, when
it appears to the Commission that guidance as to the legal requirements
applicable to particular practices would be beneficial in the public
interest and would serve to bring about more widespread and equitable
observance of laws administered by the Commission. In connection with
the promulgation of industry guides, the Commission at any time may
conduct such investigations, make such studies, and hold such
conferences or hearings as it may deem appropriate. All or any part of
any such investigation, study, conference, or hearing may be conducted
under the provisions of subpart A of part 2 of this chapter.
---------------------------------------------------------------------------
\1\ In the past, certain of these have been promulgated and referred
to as trade practice rules.
---------------------------------------------------------------------------
Subpart B_Rules and Rulemaking Under Section 18(a)(1)(B) of the FTC Act
Authority: 15 U.S.C. 46; 15 U.S.C. 57a; 5 U.S.C. 552; sec. 212(a),
Pub. L. 104-121, 110 Stat. 857 (5 U.S.C. 601 note).
Sec. 1.7 Scope of rules in this subpart.
The rules in this subpart apply to and govern proceedings for the
promulgation of rules as provided in section 18(a)(1)(B) of the Federal
Trade Commission Act. Such rules shall be known as trade regulation
rules. All other rulemaking proceedings shall be governed by the rules
in subpart C, except as otherwise required by law or as otherwise
specified in this chapter.
[46 FR 26288, May, 12, 1981, as amended at 50 FR 53303, Dec. 31, 1985]
Sec. 1.8 Nature, authority and use of trade regulation rules.
(a) For the purpose of carrying out the provisions of the Federal
Trade Commission Act, the Commission is empowered to promulgate trade
regulation rules which define with specificity acts or practices which
are unfair or deceptive acts or practices in or affecting commerce. Such
rules may include requirements prescribed for the purpose of preventing
such acts or practices. A violation of a rule shall constitute an unfair
or deceptive act or practice in violation of section 5(a)(1) of that
Act, unless the Commission otherwise expressly provides in its rule.
However, the respondent in an adjudicative proceeding may show that his
conduct does not violate the rule or assert any other defense to which
he is legally entitled.
(b) The Commission at any time may conduct such investigations, make
such studies and hold such conferences as it may deem necessary. All or
any part of any such investigation may be conducted under the provisions
of subpart A of part 2 of this chapter.
[46 FR 26288, May 12, 1981]
Sec. 1.9 Petitions to commence trade regulation rule proceedings.
Trade regulation rule proceedings may be commenced by the Commission
upon its own initiative or pursuant to written petition filed with the
Secretary by any interested person stating reasonable grounds therefor.
If the Commission determines to commence a trade regulation rule
proceeding pursuant to the petition, the petitioner shall be mailed a
copy of the public notices issued under Sec. Sec. 1.10, 1.11 and 1.12.
Any person whose petition is not deemed by the Commission sufficient to
warrant commencement of a rulemaking proceeding shall be notified of
that determination and may be given an opportunity to submit additional
data.
[46 FR 26288, May, 12, 1981, as amended at 50 FR 53303, Dec. 31, 1985]
Sec. 1.10 Advance notice of proposed rulemaking.
(a) Prior to the commencement of any trade regulation rule
proceeding, the Commission shall publish in the Federal Register an
advance notice of such proposed proceeding.
(b) The advance notice shall:
(1) Contain a brief description of the area of inquiry under
consideration, the objectives which the Commission
[[Page 15]]
seeks to achieve, and possible regulatory alternatives under
consideration by the Commission; and
(2) Invite the response of interested persons with respect to such
proposed rulemaking, including any suggestions or alternative methods
for achieving such objectives.
(c) The advance notice shall be submitted to the Committee on
Commerce, Science, and Transportation of the Senate and to the Committee
on Interstate and Foreign Commerce of the House of Representatives.
(d) The Commission may, in addition to publication of the advance
notice, use such additional mechanisms as it considers useful to obtain
suggestions regarding the content of the area of inquiry before
publication of an initial notice of proposed rulemaking pursuant to
Sec. 1.11.
[46 FR 26288, May, 12, 1981, as amended at 50 FR 53303, Dec. 31, 1985]
Sec. 1.11 Commencement of a rulemaking proceeding.
(a) Initial notice. A trade regulation rule proceeding shall
commence with an initial notice of proposed rulemaking. Such notice
shall be published in the Federal Register not sooner than 30 days after
it has been submitted to the Committee on Commerce, Science, and
Transportation of the Senate and to the Committee on Interstate and
Foreign Commerce of the House of Representatives. The initial notice
shall include:
(1) The text of the proposed rule including any alternatives which
the Commission proposes to promulgate;
(2) Reference to the legal authority under which the rule is
proposed;
(3) A statement describing with particularity the reason for the
proposed rule;
(4) An invitation to all interested persons to propose issues which
meet the criteria of Sec. 1.13(d)(1)(i) for consideration in accordance
with Sec. 1.13 (d)(5) and (d)(6);
(5) An invitation to all interested persons to comment on the
proposed rule; and
(6) A statement of the manner in which the public may obtain copies
of the preliminary regulatory analysis.
(b) Preliminary regulatory analysis. Except as otherwise provided by
statute, the Commission shall, when commencing a rulemaking proceeding,
issue a preliminary regulatory analysis which shall contain:
(1) A concise statement of the need for, and the objectives of, the
proposed rule;
(2) A description of any reasonable alternatives to the proposed
rule which may accomplish the stated objective of the rule in a manner
consistent with applicable law;
(3) For the proposed rule, and for each of the alternatives
described in the analysis, a preliminary analysis of the projected
benefits and any adverse economic effects and any other effects, and of
the effectiveness of the proposed rule and each alternative in meeting
the stated objectives of the proposed rule; and
(4) The information required by the Regulatory Flexibility Act, 5
U.S.C. 601-612, and the Paperwork Reduction Act, 44 U.S.C. 3501-3520, if
applicable.
[46 FR 26288, May, 12, 1981, as amended at 50 FR 53303, Dec. 31, 1985;
63 FR 36340, July 6, 1998]
Sec. 1.12 Final notice.
A final notice of proposed rulemaking shall be published in the
Federal Register and, to the extent practicable, otherwise made
available to interested persons. The final notice shall include:
(a) Designated issues, unless there are none, which are to be
considered in accordance with Sec. 1.13 (d)(5) and (d)(6);
(b) The time and place of an informal hearing;
(c) Instructions to interested persons seeking to make oral
presentations;
(d) A requirement that interested persons who desire to avail
themselves of the procedures of Sec. 1.13 (d)(5) and (d)(6) with
respect to any issue designated in paragraph (a) of this section must
identify their interests with respect to those issues in such manner as
may be established by the presiding officer; and
(e) an incorporation by reference of the contents of the initial
notice.
[40 FR 33966, Aug. 13, 1975, as amended at 50 FR 53303, Dec. 31, 1985]
[[Page 16]]
Sec. 1.13 Rulemaking proceeding.
(a) Written comments. After commencement of a trade regulation rule
proceeding, the Commission shall accept written submissions of data,
views, and arguments on all issues of fact, law, and policy. The initial
notice shall specify the deadline for filing written comments under this
subsection.
(b) Comments proposing issues subject to the procedures of Sec.
1.13 (d)(5) and (d)(6). Interested persons may propose issues for
consideration in accordance with Sec. 1.13 (d)(5) and (d)(6) until
thirty (30) days after the close of the written comment period or such
other period as the Commission may establish in the initial notice.
(c) Presiding officer--(1) Assignment. Upon commencement of a
proposed trade regulation rule proceeding, a presiding officer shall be
appointed by the Chief Presiding Officer or, when the Commission or one
or more of its members serves as presiding officer, by the Commission.
(2) Powers of the presiding officer. The presiding officer shall be
responsible for the orderly conduct of the rulemaking proceeding and the
maintenance of the rulemaking and public records until the close of the
postrecord comment period. He shall have all powers necessary to that
end including the following:
(i) To publish a final notice in accordance with Sec. 1.12 or issue
any other public notice that may be necessary for the orderly conduct of
the rulemaking proceeding;
(ii) To designate or modify, issues for consideration in accordance
with Sec. 1.13 (d)(5) and (d)(6);
(iii) To set the time and place of the informal hearing and to
change any time periods prescribed in this subpart;
(iv) To prescribe rules or issue rulings to avoid unnecessary costs
or delay. Such rules or rulings may include, but are not limited to, the
imposition of reasonable time limits on each person's oral presentation;
and requirements that any examination; including cross-examination,
which a person may be entitled to conduct or have conducted be conducted
by the presiding officer on behalf of that person in such a manner as
the presiding officer determines to be appropriate and to be required
for a full and true disclosure with respect to any issue designated for
consideration in accordance with Sec. 1.13 (d)(5) and (d)(6);
(v) To make rules and rulings limiting the representation of
interested persons for the purpose of examination, including cross-
examination, and governing the manner in which such examination is
limited, including the selection of a representative from among a group
of persons with the same or similar interests;
(vi) To require that oral presentations at the informal hearing or
responses to written questions be under oath;
(vii) To require that oral presentations at the informal hearing be
submitted in writing in advance of presentation;
(viii) To certify questions to the Commission for its determination;
and
(ix) To rule upon all motions or petitions of interested persons,
which motions or petitions must be filed with the presiding officer
until the close of the postrecord comment period.
(3) Review of rulings by the presiding officer--(i) Review after
certification by the presiding officer. Except as otherwise provided in
paragraph (c)(3)(ii) of this section, applications for review of a
ruling will not be entertained by the Commission prior to its review of
the record pursuant to Sec. 1.14, unless the presiding officer
certifies in writing to the Commission that a ruling involves a
controlling question of law or policy as to which there is substantial
ground for difference of opinion and that an immediate review of the
ruling may materially advance the ultimate termination of the proceeding
or subsequent review will be an inadequate remedy. Within five (5) days
after a ruling by the presiding officer, any interested person may
petition the presiding officer for certification of that ruling to the
Commission. Certification of a ruling shall not stay the rulemaking
proceeding unless the presiding officer or the Commission shall so
order. Submissions to the Commission not to exceed fifteen (15) pages
may be made within ten (10) days of the presiding officer's
certification. All such filings shall be a part of the rulemaking
record. The
[[Page 17]]
Commission may thereupon, in its discretion, permit the appeal.
Commission review, if permitted, will be based on the application for
review and any additional submissions, without oral argument or further
briefs, unless otherwise ordered by the Commission.
(ii) Review without certification by the presiding officer. Within
ten (10) days after publication of the final notice, any interested
person may petition the Commission for addition, modification or
deletion of a designated issue, accompanied by a filing not to exceed
fifteen (15) pages. Additional submissions on the issue by other
interested persons, not to exceed fifteen (15) pages, may be made within
twenty (20) days of the publication of the final notice. The Commission
may thereupon, in its discretion, permit the appeal. Commission review,
if permitted, will be based on the petition and any additional
submissions, without oral argument or further briefs, unless otherwise
ordered by the Commission. A petition hereunder shall not stay the
rulemaking proceeding unless the presiding officer or the Commission
shall so order. All petitions filed under this paragraph shall be a part
of the rulemaking record. Notice of the filing of any such petition may
be obtained from the Office of the Secretary of the Commission. In the
event any designated issue is added or substantially modified by the
Commission, interested persons shall be given a further opportunity to
identify their interests with respect to those issues.
(4) Substitution of presiding officer. In the event of the
substitution of a new presiding officer for the one originally
appointed, any motion predicated upon such substitution shall be made
within five (5) days thereafter.
(5) Organization. In the performance of their rulemaking functions,
presiding officers shall be responsible to the chief presiding officer
who shall not be responsible to any other officer or employee of the
Commission.
(6) Ex parte communications. Except as required for the disposition
of ex parte matters as authorized by law, no presiding officer shall
consult any person or party with respect to any fact in issue unless
such officer gives notice and opportunity for all parties to
participate.
(d) Informal hearings. An informal hearing with the opportunity for
oral presentations on all issues shall be conducted by the presiding
officer. In addition, if an issue is designated pursuant to these rules
for consideration in accordance with Sec. 1.13(d) (5) and (6), the
informal hearing on such issues shall be conducted in accordance with
those paragraphs. For all other issues the presiding officer may in his
discretion employ, in whole or in part, the procedures of those
paragraphs.
(1) Nature of issues for consideration in accordance with Sec. 1.13
(d)(5) and (d)(6)--(i) Issues that must be considered in accordance with
Sec. 1.13(d)(5) and (d)(6). The only issues that must be designated for
consideration in accordance with paragraphs (d)(5) and (d)(6) of this
section are disputed issues of fact that are determined by the
Commission or the presiding officer to be material and necessary to
resolve.
(ii) Issues that may be considered in accordance with Sec.
1.13(d)(5) and (d)((6). The Commission and the presiding officer retain
the power to designate any other issues for consideration in accordance
with paragraphs (d)(5) and (d)(6) of this section.
(2) Addition or modification of issues for consideration in
accordance with Sec. 1.13(d)(5) and (d)(6). The presiding officer may
at any time on his own motion or pursuant to a written petition by
interested persons, add or modify any issues designated pursuant to
Sec. 1.12(a). No such petition shall be considered unless good cause is
shown why any such proposed issue was not proposed pursuant to Sec.
1.13(b).
(3) Identification of interests. Not later than twenty (20) days
after publication of the final notice each interested person who desires
to avail himself of the procedures of paragraphs (d)(5) and (d)(6) of
this section shall notify the presiding officer in writing of his
particular interest with respect to each issue designated for
consideration in accordance with those subsections. In the event that
new issues are designated, each interested person shall promptly notify
the presiding officer of his particular interest with respect to each
such issue.
[[Page 18]]
(4) Examination and cross-examination by the presiding officer. The
presiding officer may conduct any examination, including cross-
examination, to which a person may be entitled. For that purpose he may
require submission of written requests for presentation of questions to
any person making oral presentations and shall determine whether to ask
such questions or any other questions. All requests for presentation of
questions shall be placed in the rulemaking record.
(5) Examination, cross-examination, and the presentation of rebuttal
submissions by interested persons--(i) In general. The presiding officer
shall conduct or allow to be conducted examination, including cross-
examination of oral presentations and the presentation of rebuttal
submissions relevant to the issues designated for consideration in
accordance with paragraphs (d)(5) and (d)(6) of this section.
Examination, including, cross-examination, and the presentation of
rebuttal submissions, shall be allowed to the extent to which it is
appropriate and is required for a full and true disclosure with respect
to those issues. Requests for an opportunity to examine, including
cross-examine, or to present rebuttal submissions, shall be accompanied
by a specific justification therefor. In determining whether or not to
grant such requests, the presence of the following circumstances
indicate that such requests should be granted:
(A) An issue for examination including cross-examination, or the
presentation of rebuttal submissions, is an issue of specific in
contrast to legislative fact.
(B) A full and true disclosure with respect to the issue can only be
achieved through examination including cross-examination rather than
through rebuttal submissions or the presentation of additional oral
submissions.
(C) Circumstantial guarantees of the trustworthiness of a
presentation do not exist.
(D) The particular presentation is required for the resolution of a
designated issue.
(ii) Selection of representatives for cross-examination. After
consideration of the information supplied in response to the final
notice, the presiding officer shall identify groups of persons with the
same or similar interests in the proceeding. Any such group may be
required to select a single representative for the purpose of
examination, including cross-examination. If a group is unable to select
a representative then the presiding officer may select a representative
of each such group.
(iii) Inability to select representative for examination, including
cross-examination. No person shall be denied the opportunity to conduct
or have conducted, examination, including cross-examination, under
paragraph (d)(5)(i) of this section if he is a member of a group as
described in paragraph (d)(5)(ii) of this section and is unable to agree
upon group representation with other group members after a good faith
effort to do so and seeks to present substantial and relevant issues
which will not be adequately presented by the group representative. In
that event he shall be allowed to conduct or have conducted any
examination, including cross-examination, to which he is entitled on
issues designated for consideration in accordance with paragraphs (d)(5)
and (d)(6) of this section and which affect his particular interest.
(6) Requests to compel the attendance of persons or the production
of documents or to obtain responses to written questions. During the
course of the rulemaking proceeding, the presiding officer shall
entertain requests from the Commission's staff or any interested person
to compel the attendance of persons or the production of documents or to
obtain responses to written questions. Requests to compel the attendance
of persons or the production of documents or to obtain responses to
written questions shall contain a statement showing the general
relevancy of the material, information or presentation, and the
reasonableness of the scope of the request, together with a showing that
such material, information or presentation is not available by voluntary
methods and cannot be obtained through examination, including cross-
examination, of oral presentations or the presentation of rebuttal
submissions, and is appropriate and required
[[Page 19]]
for a full and true disclosure with respect to the issues designated for
consideration in accordance with paragraphs (d)(5) and (d)(6) of this
section. If the presiding officer determines that a request should be
granted, he shall transmit his determination to the Commission which
shall determine whether to issue a civil investigative demand under
Sec. 2.7(b). Information received in response to such a demand may be
disclosed in the rulemaking proceeding subject to an in camera order
under Sec. 1.18(b).
(e) Written transcript. A verbatim transcript shall be made of the
informal hearing which transcript shall be placed in the rulemaking
record.
(f) Staff recommendations. The staff shall make recommendations to
the Commission in a report on the rulemaking record. Such report shall
contain its analysis of the record and its recommendations as to the
form of the final rule.
(g) Recommended decision. After publication of the staff report, the
presiding officer shall make a recommended decision based upon his or
her findings and conclusions as to all relevant and material evidence,
and taking into account the staff report. The recommended decision shall
be made by the presiding officer who presided over the rulemaking
proceeding except that such recommended decision may be made by another
officer if the officer who presided over the proceeding is no longer
available to the Commission.
(h) Postrecord comment. The staff report and the presiding officer's
recommended decision shall be the subject of public comment for a period
to be prescribed by the presiding officer at the time the recommended
decision is placed in the rulemaking record. The comment period shall be
no less than sixty (60) days. The comments shall be confined to
information already in the record and may include requests for review by
the Commission of determinations made by the presiding officer.
(i) Commission review of the rulemaking record. The Commission shall
review the rulemaking record to determine what form of rule, if any, it
should promulgate. During this review process, the Commission may allow
persons who have previously participated in the proceeding to make oral
presentations to the Commission, unless it determines with respect to
that proceeding that such presentations would not significantly assist
it in its deliberations. Presentations shall be confined to information
already in the rulemaking record. Requests to participate in an oral
presentation must be received by the Commission no later than the close
of the comment period under Sec. 1.13(h). The identity of the
participants and the format of such presentations will be announced in
advance by the Office of Public Information in the Commisison's Weekly
Calendar and Notice of ``Sunshine'' Meetings and in accordance with the
applicable provisions of 5 U.S.C. 552(b) and Sec. 4.15 of the
Commission's Rules of Practice. Such presentations will be transcribed
verbatim or summarized at the discretion of the Commission and a copy of
the transcript or summary and copies of any written communications and
summaries of any oral communications relating to such presentations
shall be placed on the rulemaking record.
[40 FR 33966, Aug. 13, 1975, as amended at 43 FR 39084, Sept. 1, 1978;
45 36341, May 29, 1980; 45 FR 78628, Nov. 26, 1980; 46 FR 14888, Mar. 3,
1981; 46 FR 26288, May 12, 1981; 50 FR 53303, Dec. 31, 1985; 54 FR
19886, May 9, 1989]
Sec. 1.14 Promulgation.
(a) The Commission, after review of the rulemaking record, may
issue, modify, or decline to issue any rule. Where it believes that it
should have further information or additional views of interested
persons, it may withhold final action pending the receipt of such
additional information or views. If it determines not to issue a rule,
it may adopt and publish an explanation for not doing so.
(1) Statement of Basis and Purpose. If the Commission determines to
promulgate a rule, it shall adopt a Statement of Basis and Purpose to
accompany the rule which shall include:
(i) A statement as to the prevalence of the acts or practices
treated by the rule;
(ii) A statement as to the manner and context in which such acts or
practices are unfair or deceptive;
(iii) A statement as to the economic effect of the rule, taking into
account
[[Page 20]]
the effect on small businesses and consumers;
(iv) a statement as to the effect of the rule on state and local
laws; and
(v) A statement of the manner in which the public may obtain copies
of the final regulatory analysis.
(2) Final regulatory analysis. Except as otherwise provided by
statute, if the Commission determines to promulgate a final rule, it
shall issue a final regulatory analysis relating to the final rule. Each
final regulatory analysis shall contain:
(i) A concise statement of the need for, and the objectives of, the
final rule;
(ii) A description of any alternatives to the final rule which were
considered by the Commission;
(iii) An analysis of the projected benefits and any adverse economic
effects and any other effects of the final rule;
(iv) An explanation of the reasons for the determination of the
Commission that the final rule will attain its objectives in a manner
consistent with applicable law and the reasons the particular
alternative was chosen;
(v) A summary of any significant issues raised by the comments
submitted during the public comment period in response to the
preliminary regulatory analysis, and a summary of the assessment by the
Commission of such issues; and
(vi) The information required by the Regulatory Flexibility Act, 5
U.S.C. 601-612, and the Paperwork Reduction Act, 44 U.S.C. 3501-3520, if
applicable.
(3) Small entity compliance guide. For each rule for which the
Commission must prepare a final regulatory flexibility analysis, the
Commission will publish one or more guides to assist small entities in
complying with the rule. Such guides will be designated as ``small
entity compliance guides.''
(b) In the event the Commission determines, upon its review of the
rulemaking record, to propose a revised rule for further proceedings in
accordance with this subpart, such proceedings, including the
opportunity of interested persons to avail themselves of the procedures
of Sec. 1.13 (d)(5) and (d)(6), shall be limited to those portions of
the revised rule, the subjects and issues of which were not
substantially the subject of comment in response to a previous notice of
proposed rulemaking.
(c) The final rule and Statement of Basis and Purpose shall be
published in the Federal Register. A rule issued under this subpart
shall be deemed promulgated at 3 p.m. Eastern Standard Time on the
fourth day after the date on which the final rule and Statement of Basis
and Purpose are published in the Federal Register. In the event such day
is a Saturday, Sunday or national holiday, then the rule is deemed
promulgated at 3 p.m. Eastern Standard Time on the following business
day.
[40 FR 33966, Aug. 13, 1975, as amended at 46 FR 26289, May 12, 1981; 50
FR 53304, Dec. 31, 1985; 63 FR 36340, July 6, 1998]
Sec. 1.15 Amendment or repeal of a rule.
(a) Substantive amendment or repeal of a rule. The procedures for
substantive amendment to or repeal of a rule are the same as for the
issuance thereof.
(b) Nonsubstantive amendment of a rule. The Commission may make a
nonsubstantive amendment to a rule by announcing the amendment in the
Federal Register.
[46 FR 26289, May 12, 1981]
Sec. 1.16 Petition for exemption from trade regulation rule.
Any person to whom a rule would otherwise apply may petition the
Commission for an exemption from such rule. The procedures for
determining such a petition shall be those of subpart C of these rules.
[40 FR 33966, Aug. 13, 1975]
Sec. 1.17 [Reserved]
Sec. 1.18 Rulemaking record.
(a) Definition. For purposes of these rules the term rulemaking
record includes the rule, its Statement of Basis and Purpose, the
verbatim transcripts of the informal hearing, written submissions, the
recommended decision of the presiding officer, and the staff
recommendations as well as any public comment thereon, verbatim
transcripts or summaries of oral presentations to the Commission any
communications
[[Page 21]]
placed on the rulemaking record pursuant to Sec. 1.18c and any other
information which the Commission considers relevant to the rule.
(b) Public availability. The rulemaking record shall be publicly
available except when the presiding officer, for good cause shown,
determines that it is in the public interest to allow any submission to
be received in camera subject to the provisions of Sec. 4.11 of this
chapter.
(c) Communications to Commissioners and Commissioners' personal
staffs--(1) Communications by outside parties. Except as otherwise
provided in this subpart or by the Commission, after the Commission
votes to issue an initial notice of proposed rulemaking, comment on the
proposed rule should be directed to the presiding officer pursuant to
Sec. 1.13. Communications with respect to the merits of that proceeding
from any outside party to any Commissioner or Commissioner advisor shall
be subject to the following treatment:
(i) Written communications. Written communications, including
written communications from members of Congress, received within the
period for acceptance of initial written comments shall be forwarded
promptly to the presiding officer for placement on the rulemaking
record. Written communications received after the time period for
acceptance of initial written comments but prior to any other deadline
for the acceptance of written submissions will be forwarded promptly to
the presiding officer, who will determine whether such communications
comply with the applicable requirements for written submissions at that
stage of the proceeding. Communications that comply with such
requirements will be promptly placed on the rulemaking record.
Noncomplying communications and all communications received after the
time periods for acceptance of written submissions will be placed
promptly on the public record.
(ii) Oral communications. Oral communications are permitted only
when advance notice of such oral communications is published by the
Commission's Office of Public Information in its Weekly Calendar and
Notice of ``Sunshine'' Meetings and when such oral communications are
transcribed verbatim or summarized at the discretion of the Commissioner
or Commissioner advisor to whom such oral communications are made and
are promptly placed on the rulemaking record together with any written
communications and summaries of any oral communications relating to such
oral communications. Transcripts or summaries of oral communications
which occur after the time period for acceptance of initial written
comments but prior to any other deadline for the acceptance of written
submissions will be forwarded promptly to the presiding officer together
with any written communications and summaries of any oral communications
relating to such oral communications. The presiding officer will
determine whether such oral communications comply with the applicable
requirements for written submissions at that stage of the proceeding.
Transcripts or summaries of oral communications that comply with such
requirements will be promptly placed on the rulemaking record together
with any written communications and summaries of any oral communications
relating to such oral communications. Transcripts or summaries of
noncomplying oral communications will be promptly placed on the public
record together with any written communications and summaries of any
oral communications relating to such oral communications. No oral
communications are permitted subsequent to the close of the postrecord
comment period, except as provided in Sec. 1.13(i). If an oral
communication does otherwise occur, the Commissioner or Commissioner
advisor will promptly place on the public record either a transcript of
the communication or a memorandum setting forth the contents of the
communication and the circumstances thereof; such transcript or
memorandum will not be part of the rulemaking record.
(iii) Congressional communications. The provisions of paragraph
(c)(1)(ii) of this section do not apply to communications from members
of Congress. Memoranda prepared by the Commissioner or Commissioner
advisor setting forth the contents of any oral congressional
communications will be placed
[[Page 22]]
on the public record. If the communication occurs within the initial
comment period and is transcribed verbatim or summarized, the transcript
or summary will be promptly placed on the rulemaking record. A
transcript or summary of any oral communication which occurs after the
time period for acceptance of initial written comments but prior to any
other deadline for the acceptance of written submissions will be
forwarded promptly to the presiding officer, who will determine whether
such oral communication complies with the applicable requirements for
written submissions at that stage of the proceeding. Transcripts or
summaries of oral communications that comply with such requirements will
be promptly placed on the rulemaking record. Transcripts or summaries of
noncomplying oral communications will be placed promptly on the public
record.
(2) Communications by certain officers, employees, and agents of the
Commission. Any officer, employee, or agent of the Commission with
investigative or other responsibility relating to any rulemaking
proceeding within any operating bureau of the Commission is prohibited
from communicating or causing to be communicated to any Commissioner or
to the personal staff of any Commissioner any fact which is relevant to
the merits of such proceeding and which is not on the rulemaking record
of such proceeding, unless such communication is made available to the
public and is included in the rulemaking record. The provisions of this
subsection shall not apply to any communication to the extent such
communication is required for the disposition of ex parte matters as
authorized by law.
(Sec. 6(g), 38 Stat. 721 (15 U.S.C. 46), 80 Stat. 383, as amended (5
U.S.C. 552))
[42 FR 43974, Sept. 1, 1977, as amended at 42 FR 60563, Nov. 28, 1977;
44 FR 16368, Mar. 19, 1979; 44 FR 21005, Apr. 9, 1979; 45 FR 78628, Nov.
26, 1980; 50 FR 53304, Dec. 31, 1985]
Sec. 1.19 Modification of a rule by the Commission at the time of judicial
review.
In the event that a reviewing court determines under section
18(e)(2) of the Federal Trade Commission Act, to allow further
submissions and presentations on the rule, the Commission may modify or
set aside its rule or make a new rule by reason of the additional
submissions and presentations. Such modified or new rule shall then be
filed with the court together with an appropriate Statement of Basis and
Purpose and the return of such submissions and presentations.
[40 FR 33966, Aug. 13, 1975, as amended at 50 FR 53304, Dec. 31, 1985]
Sec. 1.20 Alternative procedures.
If the Commission determines at the commencement of a rulemaking
proceeding to employ procedures other than those established in the
remainder of this subpart, it may do so by announcing those procedures
in the Federal Register notice commencing the rulemaking proceeding.
[43 FR 35683, Aug. 11, 1978]
Subpart C_Rules Promulgated Under Authority Other Than Section
18(a)(1)(B) of the FTC Act
Authority: 15 U.S.C. 46; 5 U.S.C. 552; Sec. 212(a), Pub. L. 104-121,
110 Stat. 857 (5 U.S.C. 601 note).
Sec. 1.21 Scope of the rules in this subpart.
This subpart sets forth procedures for the promulgation of rules
under authority other than section 18(a)(1)(B) of the FTC Act except as
otherwise required by law or otherwise specified in the rules of this
chapter. This subpart does not apply to the promulgation of industry
guides, general statements of policy, rules of agency organization,
procedure, or practice, or rules governed by subpart B of this part.
[50 FR 53304, Dec. 31, 1985]
Sec. 1.22 Rulemaking.
(a) Nature and authority. For the purpose of carrying out the
provisions of the statutes administered by it, the Commission is
empowered to promulgate rules and regulations applicable to unlawful
trade practices. Such rules and regulations express the experience and
judgment of the Commission, based
[[Page 23]]
on facts of which it has knowledge derived from studies, reports,
investigations, hearings, and other proceedings, or within official
notice, concerning the substantive requirements of the statutes which it
administers.
(b) Scope. Rules may cover all applications of a particular
statutory provision and may be nationwide in effect, or they may be
limited to particular areas or industries or to particular product or
geographic markets, as may be appropriate.
(c) Use of rules in adjudicative proceedings. When a rule is
relevant to any issue involved in an ajudicative 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.
[40 FR 15232, Apr. 4, 1975]
Sec. 1.23 Quantity limit rules.
Quantity limit rules are authorized by section 2(a) of the Clayton
Act, as amended by the Robinson-Patman Act. These rules have the force
and effect of law.
[32 FR 8444, June 13, 1967. Redesignated at 40 FR 15232, Apr. 4, 1975]
Sec. 1.24 Rules applicable to wool, fur, and textile fiber products and rules
promulgated under the Fair Packaging and Labeling Act.
Rules having the force and effect of law are authorized under
section 6 of the Wool Products Labeling Act of 1939, section 8 of the
Fur Products Labeling Act, section 7 of the Textile Fiber Products
Identification Act, and sections 4, 5, and 6 of the Fair Packaging and
Labeling Act.
[40 FR 15233, Apr. 4, 1975]
Sec. 1.25 Initiation of proceedings--petitions.
Proceedings for the issuance of rules or regulations, including
proceedings for exemption of products or classes of products from
statutory requirements, may be commenced by the Commission upon its own
initiative or pursuant to petition filed with the Secretary by any
interested person or group stating reasonable grounds therefor. Anyone
whose petition is not deemed by the Commission sufficient to warrant the
holding of a rulemaking proceeding will be promptly notified of that
determination and given an opportunity to submit additional data.
Procedures for the amendment or repeal of a rule or regulation are the
same as for the issuance thereof.
[32 FR 8444, June 13, 1967. Redesignated at 40 FR 15232, Apr. 4, 1975]
Sec. 1.26 Procedure.
(a) Investigations and conferences. In connection with any
rulemaking proceeding, the Commission at any time may conduct such
investigations, make such studies, and hold such conferences as it may
deem necessary. All or any part of any such investigation may be
conducted under the provisions of subpart A of part 2 of this chapter.
(b) Notice. General notice of proposed rulemaking will be published
in the Federal Register and, to the extent practicable, otherwise made
available to interested persons except when the Commission for good
cause finds that notice and public procedure relating to the rule are
impractical, unnecessary or contrary to the public interest and
incorporates such finding and a brief statement of the reasons therefor
in the rule. If the rulemaking proceeding was instituted pursuant to
petition, a copy of the notice will be served on the petitioner. Such
notice will include:
(1) A statement of the time, place, and nature of the public
proceedings;
(2) Reference to the authority under which the rule is proposed;
(3) Either the terms or substance of the proposed rule or
description of the subjects and issues involved;
(4) An opportunity for interested persons to participate in the
proceeding through the submission of written data, views, or arguments;
and(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)(2),
[[Page 24]]
adapted in such form as may be appropriate to the circumstances of the
particular proceeding.
(c) Oral hearings. Oral hearing on a proposed rule may be held
within the discretion of the Commission, unless otherwise expressly
required by law. Any such hearing will be conducted by the Commission, a
member thereof, or a member of the Commission's staff. At the hearing
interested persons may appear and express their views as to the proposed
rule and may suggest such amendments, revisions, and additions thereto
as they may consider desirable and appropriate. The presiding officer
may impose reasonable limitations upon the length of time allotted to
any person. If by reason of the limitations imposed the person cannot
complete the presentation of his suggestions, he may within twenty-four
(24) hours file a written statement covering those relevant matters
which he did not orally present.
(d) Promulgation of rules or orders. The Commission, after
consideration of all relevant matters of fact, law, policy, and
discretion, including all relevant matters presented by interested
persons in the proceeding, will adopt and publish in the Federal
Register an appropriate rule or order, together with a concise general
statement of its basis and purpose and any necessary findings, or will
give other appropriate public notice of disposition of the proceeding.
The Federal Register publication will contain the information required
by the Paperwork Reduction Act, 44 U.S.C. 3501-3520, and the Regulatory
Flexibility Act, 5 U.S.C. 601-612, if applicable. For each rule for
which the Commission must prepare a final regulatory flexibility
analysis, the Commission will publish one or more guides to assist small
entities in complying with the rule. Such guides will be designated as
``small entity compliance guides.''
(e) Effective date of rules. Except as provided in paragraphs (f)
and (g) of this section, the effective date of any rule, or of the
amendment, suspension, or repeal of any rule will be as specified in a
notice published in the Federal Register, which date will be not less
than thirty (30) days after the date of such publication unless an
earlier effective date is specified by the Commission upon good cause
found and published with the rule.
(f) Effective date of rules and orders under Fair Packaging and
Labeling Act. The effective date of any rule or order under the Fair
Packaging and Labeling Act will be as specified by order published in
the Federal Register, but shall not be prior to the day following the
last day on which objections may be filed under paragraph (g) of this
section.
(g) Objections and request for hearing under Fair Packaging and
Labeling Act. On or before the thirtieth (30th) day after the date of
publication of an order in the Federal Register pursuant to paragraph
(f) of this section, any person who will be adversely affected by the
order if placed in effect may file objections thereto with the Secretary
of the Commission, specifying with particularity the provisions of the
order deemed objectionable, stating the grounds therefor, and requesting
a public hearing upon such objections. Objections will be deemed
sufficient to warrant the holding of a public hearing only:
(1) If they establish that the objector will be adversely affected
by the order;
(2) If they specify with particularity the provisions of the order
to which objection is taken; and
(3) If they are supported by reasonable grounds which, if valid and
factually supported, may be adequate to justify the relief sought.
Anyone who files objections which are not deemed by the Commission
sufficient to warrant the holding of a public hearing will be promptly
notified of that determination. As soon as practicable after the time
for filing objections has expired, the Commission will publish a notice
in the Federal Register specifying those parts of the order which have
been stayed by the filing of objections or, if no objections sufficient
to warrant the holding of a hearing have been filed, stating that fact.
[32 FR 8444, June 13, 1967. Redesignated at 40 FR 15232, Apr. 4, 1975,
as amended at 44 FR 16368, Mar. 19, 1979; 50 FR 53304, Dec. 31, 1985; 63
FR 36340, July 6, 1998]
Subpart D [Reserved]
[[Page 25]]
Subpart E_Export Trade Associations
Sec. 1.41 Limited antitrust exemption.
The Export Trade Act authorizes the organization and operation of
export trade associations, and extends to them certain limited
exemptions from the Sherman Act and the Clayton Act. It also extends the
jurisdiction of the Commission under the Federal Trade Commission Act to
unfair methods of competition used in export trade against competitors
engaged in export trade, even though the acts constituting such unfair
methods are done without the territorial jurisdiction of the United
States.
Sec. 1.42 Notice to Commission.
To obtain the exemptions afforded by the Act, an export trade
association is required to file with the Commission, within thirty (30)
days after its creation, a verified written statement setting forth the
location of its offices and places of business, names, and addresses of
its officers, stockholders, or members, and copies of its documents of
incorporation or association. On the first day of January of each year
thereafter, each association must file a like statement and, when
required by the Commission to do so, must furnish to the Commission
detailed information as to its organization, business, conduct,
practices, management, and relation to other associations, corporations,
partnerships, and individuals.
Sec. 1.43 Recommendations.
Whenever the Commission has reason to believe that an association
has violated the prohibitions of section 2 of the Act, it may conduct an
investigation. If, after investigation, it concludes that the law has
been violated, it may make to such association recommendations for the
readjustment of its business. If the association fails to comply with
the recommendations, the Commission will refer its findings and
recommendations to the Attorney General for appropriate action.
Subpart F_Trademark Cancellation Procedure
Sec. 1.51 Applications.
Applications for the institution of proceedings for the cancellation
of registration of trade, service, or certification marks under the
Trade-Mark Act of 1946 may be filed with the Secretary of the
Commission. Such applications shall be in writing, signed by or in
behalf of the applicant, and should identify the registration concerned
and contain a short and simple statement of the facts constituting the
alleged basis for cancellation, the name and address of the applicant,
together with all relevant and available information. If, after
consideration of the application, or upon its own initiative, the
Commission concludes that cancellation of the mark may be warranted, it
will institute a proceeding before the Commissioner of Patents for
cancellation of the registration.
Subpart G_Injunctive and Condemnation Proceedings
Sec. 1.61 Injunctions.
In those cases where the Commission has reason to believe that it
would be to the interest of the public, the Commission will apply to the
courts for injunctive relief, pursuant to the authority granted in
section 13 of the Federal Trade Commission Act.
[40 FR 15233, Apr. 4, 1975]
Sec. 1.62 Ancillary court orders pending review.
Where petition for review of an order to cease and desist has been
filed in a U.S. court of appeals, the Commission may apply to the court
for issuance of such writs as are ancillary to its jurisdiction or are
necessary in its judgment to prevent injury to the public or to
competitors pendente lite.
Sec. 1.63 Injunctions: Wool, fur, and textile cases.
In those cases arising under the Wool Products Labeling Act of 1939,
Fur Products Labeling Act, and Textile Fiber Products Identification
Act, where it appears to the Commission that it would be to the public
interest
[[Page 26]]
for it to do so, the Commission will apply to the courts for injunctive
relief, pursuant to the authority granted in such Acts.
[32 FR 8444, June 13, 1967, as amended at 41 FR 4814, Feb. 2, 1976]
Sec. 1.64 Condemnation proceedings.
In those cases arising under the Wool Products Labeling Act of 1939
and Fur Products Labeling Act, and where it appears to the Commission
that the public interest requires such action, the Commission will apply
to the courts for condemnation, pursuant to the authority granted in
such Acts.
[32 FR 8444, June 13, 1967, as amended at 41 FR 4814, Feb. 2, 1976]
Subpart H_Administration of the Fair Credit Reporting Act
Authority: 84 Stat. 1128, 15 U.S.C. 1681 et seq.
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 Credit Practices.
Any interested person may obtain copies of the Act and these procedures
and rules of practice upon request to the Secretary of the Commission,
Washington, DC 20580.
[36 FR 9293, May 22, 1971, as amended at 36 FR 18788, Sept. 22, 1971; 38
FR 32438, Nov. 26, 1973; 46 FR 26290, May 12, 1981]
Sec. 1.72 Examination, counseling and staff advice.
The Commission maintains a staff to carry out on-the-scene
examination of records and procedures utilized to comply with the Fair
Credit Reporting Act and to carry out industry counseling. Requests for
staff interpretation of the Fair Credit Reporting Act should be directed
to the Division of Credit Practices, Bureau of Consumer Protection. Such
interpretations represent informal staff opinion which is advisory in
nature and is not binding upon the Commission as to any action it may
take in the matter. Administrative action to effect correction of minor
infractions on a voluntary basis is taken in those cases where such
procedure is believed adequate to effect immediate compliance and
protect the public interest.
[36 FR 9293, May 22, 1971, as amended at 36 FR 18788, Sept. 22, 1971; 38
FR 32438, Nov. 26, 1973; 46 FR 26290, May 12, 1981]
Sec. 1.73 Interpretations.
(a) Nature and purpose. (1) The Commission issues and causes to be
published in the Federal Register interpretations of the provisions of
the Fair Credit Reporting Act on its own initiative or pursuant to the
application of any person when it appears to the Commission that
guidance as to the legal requirements of the Act would be in the public
interest and would serve to bring about more widespread and equitable
observance of the Act.
(2) The interpretations are not substantive rules and do not have
the force or effect of statutory provisions. They are guidelines
intended as clarification of the Fair Credit Reporting Act, and, like
industry guides, are advisory in nature. They represent the Commission's
view as to what a particular provision of the Fair Credit Reporting Act
means for the guidance of the public in conducting its affairs in
conformity with that Act, and they provide the basis for voluntary and
simultaneous abandonment of unlawful practices by members of industry.
Failure to comply with such interpretations may result in corrective
action by the Commission under applicable statutory provisions.
(b) Procedure. (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 thirty (30) days of public notice thereof. The
proposed
[[Page 27]]
interpretation will automatically become final after the expiration of
sixty (60) days from the date of public notice thereof, unless upon
consideration of written comments submitted as hereinabove provided, the
Commission determine to rescind, revoke, modify, or withdraw the
proposed interpretation, in which event notification of such
determination will be published in the Federal Register.
(2) The issuance of such interpretations is within the discretion of
the Commission and the Commission at any time may conduct such
investigations and hold such conferences or hearings as it may deem
appropriate. Any interpretation issued pursuant to this chapter is
without prejudice to the right of the Commission to reconsider the
interpretation, and where the public interest requires, to rescind,
revoke, modify, or withdraw the interpretation, in which event
notification of such action will be published in the Federal Register.
(c) Applicability of interpretations. Interpretations issued
pursuant to this subpart may cover all applications of a particular
statutory provision, or they may be limited in application to a
particular industry, as appropriate.
[36 FR 9293, May 22, 1971]
Subpart I_Procedures for Implementation of the National Environmental
Policy Act of 1969
Authority: 15 U.S.C. 46(g), 42 U.S.C. 4321 et seq.
Source: 47 FR 3096, Jan. 22, 1982, unless otherwise noted.
Sec. 1.81 Authority and incorporation of CEQ Regulations.
This subpart is issued pursuant to 102(2) of the National
Environmental Policy Act of 1969 (NEPA), as amended (42 U.S.C. 4321 et
seq.). Pursuant to Executive Order 11514 (March 5, 1970, as amended by
Executive Order 11991, May 24, 1977) and the Environmental Quality
Improvement Act of 1980, as amended (42 U.S.C. 4371 et seq.) the Council
on Environmental Quality (CEQ) has issued comprehensive regulations for
implementing the procedural provisions of NEPA (40 CFR parts 1500
through 1508) (``CEQ Regulations''). Although it is the Commission's
position that these regulations are not binding on it, the Commission's
policy is to comply fully with the CEQ Regulations unless it determines
in a particular instance or for a category of actions that compliance
would not be consistent with the requirements of law. With this caveat,
the Commission incorporates into this subpart the CEQ Regulations. The
following are supplementary definitions and procedures to be applied in
conjunction with the CEQ Regulations.
[47 FR 3096, Jan. 22, 1982, as amended at 50 FR 53304, Dec. 31, 1985]
Sec. 1.82 Declaration of policy.
(a) Except for actions which are not subject to the requirements of
section 102(2)(C) of NEPA, no Commission proposal for a major action
significantly affecting the quality of the human environment will be
instituted unless an environmental impact statement has been prepared
for consideration in the decisionmaking. All relevant environmental
documents, comments, and responses as provided in this subpart shall
accompany such proposal through all review processes. ``Major actions,
significantly affecting the quality of the human environment'' referred
to in this subpart ``do not include bringing judicial or administrative
civil or criminal enforcement actions'' CEQ Regulation (40 CFR
1508.18(a)). In the event that the Commission in an administrative
enforcement proceeding actively contemplates the adoption of standards
or a form of relief which it determines may have a significant effect on
the environment, the Commission will, when consistent with the
requirements of law, provide for the preparation of an environmental
assessment or an environmental impact statement or such other action as
will permit the Commission to assess alternatives with a view toward
avoiding or minimizing any adverse effect upon the environment.
(b) No Commission proposal for legislation significantly affecting
the quality of the human environment and concerning a subject matter in
which the Commission has primary responsibility will be submitted to
Congress without
[[Page 28]]
an accompanying environmental impact statement.
(c) When the Commission finds that emergency action is necessary and
an environmental impact statement cannot be prepared in conformance with
the CEQ Regulations, the Commission will consult with CEQ about
alternative arrangements in accordance with CEQ Regulation (40 CFR
1506.11).
Sec. 1.83 Whether to commence the process for an environmental impact
statement.
(a) The Bureau responsible for submitting a proposed rule, guide, or
proposal for legislation to the Commission for agency action shall,
after consultation with the Office of the General Counsel, initially
determine whether or not the proposal is one which requires an
environmental impact statement. Except for matters where the
environmental effects, if any, would appear to be either (1) clearly
significant and therefore the decision is made to prepare an
environmental impact statement, or (2) so uncertain that environmental
analysis would be based on speculation, the Bureau should normally
prepare an ``environmental assessment'' CEQ Regulation (40 CFR 1508.9)
for purposes of providing sufficient evidence and analysis for
determining whether to prepare an environmental impact statement or a
finding of no significant impact. The Bureau should involve
environmental agencies to the extent practicable in preparing an
assessment. An environmental assessment shall be made available to the
public when the proposed action is made public along with any ensuing
environmental impact statement or finding of no significant impact.
(b) If the Bureau determines that the proposal is one which requires
an environmental impact statement, it shall commence the ``scoping
process'' CEQ Regulation (40 CFR 1501.7) except that the impact
statement which is part of a proposal for legislation need not go
through a scoping process but shall conform to CEQ Regulation (40 CFR
1506.8). As soon as practicable after its decision to prepare an
environmental impact statement and before the scoping process, the
Bureau shall publish a notice of intent as provided in CEQ Regulations
(40 CFR 1501.7 and 1508.22).
(c) If, on the basis of an environmental assessment, the
determination is made not to prepare a statement, a finding of ``no
significant impact'' shall be made in accordance with CEQ Regulation (40
CFR 1508.3) and shall be made available to the public as specified in
CEQ Regulation (40 CFR 1506.6).
Sec. 1.84 Draft environmental impact statements: Availability and comment.
Except for proposals for legislation, environmental impact
statements shall be prepared in two stages: Draft statement and final
statement.
(a) Proposed rules or guides. (1) An environmental impact statement,
if deemed necessary, shall be in draft form at the time a proposed rule
or guide is published in the Federal Register and shall accompany the
proposal throughout the decisionmaking process.
(2) The major decision points with respect to rules and guides are:
(i) Preliminary formulation of a staff proposal;
(ii) The time the proposal is initially published in the Federal
Register as a Commission proposal;
(iii) Presiding officer's report (in trade regulation rule
proceedings);
(iv) Submission to the Commission of the staff report or
recommendation for final action on the proposed guide or rule;
(v) Final decision by the Commission. The decision on whether or not
to prepare an environmental impact statement should occur at point
(a)(2)(i) of this section. The publication of any draft impact statement
should occur at point (a)(2)(ii) of this section. The publication of the
final environmental impact statement should occur at point (a)(2)(iv) of
this section.
(b) Legislative proposals. In legislative matters, a legislative
environmental impact statement shall be prepared in accordance with CEQ
Regulation (40 CFR 1506.8).
(c) In rule or guide proceedings the draft environmental impact
statement shall be prepared in accordance with CEQ Regulation (40 CFR
1502.9) and shall be placed in the public record to
[[Page 29]]
which it pertains; in legislative matters, the legislative impact
statement shall be placed in a public record to be established,
containing the legislative report to which it pertains; these will be
available to the public through the Office of the Secretary and will be
published in full with the appropriate proposed rule, guide, or
legislative report; such statements shall also be filed with the
Environmental Protection Agency's (EPA) Office of Environmental Review
(CEQ Regulation (40 CFR 1506.9)) for listing in the weekly Federal
Register Notice of draft environmental impact statements, and shall be
circulated, in accordance with CEQ Regulations (40 CFR 1502.19, 1506.6)
to appropriate federal, state and local agencies.
(d) Forty-five (45) days will be allowed for comment on the draft
environmental impact statement, calculated from the date of publication
in the EPA's weekly Federal Register list of draft environmental impact
statements. The Commission may in its discretion grant such longer
period as the complexity of the issues may warrant.
Sec. 1.85 Final environmental impact statements.
(a) After the close of the comment period, the Bureau responsible
for the matter will consider the comments received on the draft
environmental impact statement and will put the draft statement into
final form in accordance with the requirements of CEQ Regulation (40 CFR
1502.9(b)), attaching the comments received (or summaries if response
was exceptionally voluminous).
(b) Upon Bureau approval of the final environmental impact statement
the final statement will be
(1) Filed with the EPA;
(2) Forwarded to all parties which commented on the draft
environmental impact statement and to other interested parties, if
practicable;
(3) Placed in the public record of the proposed rule or guide
proceeding or legislative matter to which it pertains;
(4) Distributed in any other way which the Bureau in consultation
with CEQ deems appropriate.
(c) In rule and guide proceedings, at least thirty (30) days will be
allowed for comment on the final environmental impact statement,
calculated from the date of publication in the EPA's weekly Federal
Register list of final environmental impact statements. In no event will
a final rule or guide be promulgated prior to ninety (90) days after
notice of the draft environmental impact statement, except where
emergency action makes such time period impossible.
Sec. 1.86 Supplemental statements.
Except for proposals for legislation, as provided in CEQ Regulation
(40 CFR 1502.9(c)), the Commission shall publish supplements to either
draft or final environmental statements if:
(a) The Commission makes substantial changes in the proposed action
that are relevant to environmental concerns; or
(b) There are significant new circumstances or information relevant
to environmental concerns and bearing on the proposed action and its
impacts. In the course of a trade regulation rule proceeding, the
supplement will be placed in the rulemaking record.
Sec. 1.87 NEPA and agency decisionmaking.
In its final decision on the proposed action or, if appropriate, in
its recommendation to Congress, the Commission shall consider all the
alternatives in the environmental impact statement and other relevant
environmental documents and shall prepare a concise statement which, in
accordance with CEQ Regulation Sec. 1505.2, shall:
(a) Identify all alternatives considered by the Commission in
reaching its decision or recommendation, specifying the alternatives
which were considered to be environmentally preferable;
(b) State whether all practicable means to avoid or minimize
environmental harm from the alternative selected have been adopted, and
if not, why they were not.
Sec. 1.88 Implementing procedures.
(a) The General Counsel is designated the official responsible for
coordinating the Commission's efforts to improve environmental quality.
He will
[[Page 30]]
provide assistance to the staff in determining when an environmental
impact statement is needed and in its preparation.
(b) The Commission will determine finally whether an action complies
with NEPA.
(c) The Directors of the Bureaus of Consumer Protection and
Competition will supplement these procedures for their Bureaus to assure
that every proposed rule and guide is reviewed to assess the need for an
environmental impact statement and that, where need exists, an
environmental impact statement is developed to assure timely
consideration of environmental factors.
(d) The General Counsel will establish procedures to assure that
every legislative proposal on a matter for which the Commission has
primary responsibility is reviewed to assess the need for an
environmental impact statement and that, where need exists, and
environmental impact statement is developed to assure timely
consideration of environmental factors.
(e) Parties seeking information or status reports on environmental
impact statements and other elements of the NEPA process, should contact
the Assistant General Counsel for Litigation and Environmental Policy.
Sec. 1.89 Effect on prior actions.
It is the policy of the Commission to apply these procedures to the
fullest extent possible to proceedings which are already in progress.
Subpart J_Economic Surveys, Investigations and Reports
Sec. 1.91 Authority and purpose.
General and special economic surveys, investigations, and reports
are made by the Bureau of Economics under the authority of the various
laws which the Federal Trade Commission administers. The Commission may
in any such survey or investigation invoke any or all of the compulsory
processes authorized by law.
[32 FR 8444, June 13, 1967. Redesignated at 40 FR 15233, Apr. 4, 1975]
Subpart K_Penalties for Violation of Appliance Labeling Rules
Source: 45 FR 67318, Oct. 10, 1980, unless otherwise noted.
Sec. 1.92 Scope.
The rules in this subpart apply to and govern proceedings for the
assessment of civil penalties for the violation of section 332 of the
Energy Policy and Conservation Act, 42 U.S.C. 6302, and the Commission's
Rules on Labeling and Advertising of Consumer Appliances, 16 CFR part
305, promulgated under sections 324 and 326 of the Energy Policy and
Conservation Act, 42 U.S.C. 6294 and 6296.
Sec. 1.93 Notice of proposed penalty.
(a) Notice. Before issuing an order assessing a civil penalty under
this subpart against any person, the Commission shall provide to such
person notice of the proposed penalty. This notice shall:
(1) Inform such person of the opportunity to elect in writing within
30 days of receipt of the notice of proposed penalty to have procedures
of Sec. 1.95 (in lieu of those of Sec. 1.94) apply with respect to
such assessment; and
(2) Include a copy of a proposed complaint conforming to the
provision of Sec. 3.11(b) (1) and (2) of the Commission's Rules of
Practice, or a statement of the material facts constituting the alleged
violation and the legal basis for the proposed penalty; and
(3) Include the amount of the proposed penalty; and
(4) Include a statement of the procedural rules that the Commission
will follow if respondent elects to proceed under Sec. 1.94 unless the
Commission chooses to follow subparts B, C, D, E, and F of part 3 of
this chapter.
(b) Election. Within 30 days of receipt of the notice of proposed
penalty, the respondent shall, if it wishes to elect to have the
procedures of Sec. 1.95 apply, notify the Commission of the election in
writing. The notification, to be filed in accordance with Sec. 4.2 of
this chapter, may include any factual or legal reasons for which the
proposed assessment order should not issue, should be reduced in amount,
or should otherwise be modified.
[[Page 31]]
Sec. 1.94 Commission proceeding to assess civil penalty.
If the respondent fails to elect to have the procedures of Sec.
1.95 apply, the Commission shall determine whether to issue a complaint
and thereby commence an adjudicative proceeding in conformance with
section 333(d)(2)(A) of the Energy Policy and Conservation Act, 42
U.S.C. 6303(d)(2)(A). If the Commission votes to issue a complaint, the
proceeding shall be conducted in accordance with subparts B, C, D, E and
F of part 3 of this chapter, unless otherwise ordered in the notice of
proposed penalty. In assessing a penalty, the Commission shall take into
account the factors listed in Sec. 1.97.
Sec. 1.95 Procedures upon election.
(a) After receipt of the notification of election to apply the
procedures of this section pursuant to Sec. 1.93, the Commission shall
promptly assess such penalty as it deems appropriate, in accordance with
Sec. 1.97.
(b) If the civil penalty has not been paid within 60 calendar days
after the assessment order has been issued under paragraph (a) of this
section, the General Counsel, unless otherwise directed, shall institute
an action in the appropriate district court of the United States for an
order enforcing the assessment of the civil penalty.
(c) Any election to have this section apply may not be revoked
except with the consent of the Commission.
Sec. 1.96 Compromise of penalty.
The Commission may compromise any penalty or proposed penalty at any
time, with leave of court when necessary, taking into account the nature
and degree of violation and the impact of a penalty upon a particular
respondent.
Sec. 1.97 Amount of penalty.
All penalties assessed under this subchapter shall be in the amount
per violation as described in section 333(a) of the Energy Policy and
Conservation Act, 42 U.S.C. 6303(a), adjusted for inflation pursuant to
Sec. 1.98, unless the Commission otherwise directs. In considering the
amount of penalty, the Commission shall take into account:
(a) Respondent's size and ability to pay;
(b) Respondent's good faith;
(c) Any history of previous violations;
(d) The deterrent effect of the penalty action;
(e) The length of time involved before the Commission was made aware
of the violation;
(f) The gravity of the violation, including the amount of harm to
consumers and the public caused by the violation; and
(g) Such other matters as justice may require.
[32 FR 8444, June 13, 1967, as amended at 61 FR 54548, Oct. 21, 1996]
Subpart L_Civil Penalty Adjustments Under the Federal Civil Penalties
Inflation Adjustment Act of 1990, as Amended by the Debt Collection
Improvement Act of 1996
Authority: 28 U.S.C. 2461 note.
Source: 61 FR 54549, Oct. 21, 1996, unless otherwise noted.
Sec. 1.98 Adjustment of civil monetary penalty amounts.
This section makes inflation adjustments in the dollar amounts of
civil monetary penalties provided by law within the Commission's
jurisdiction. The following civil penalty amounts apply to violations
occurring after February 9, 2009.
(a) Section 7A(g)(1) of the Clayton Act, 15 U.S.C. 18a(g)(1)--
$16,000;
(b) Section 11(l) of the Clayton Act, 15 U.S.C. 21(l)--$7,500;
(c) Section 5(l) of the FTC Act, 15 U.S.C. 45(l)--$16,000;
(d) Section 5(m)(1)(A) of the FTC Act, 15 U.S.C. 45(m)(1)(A)--
$16,000;
(e) Section 5(m)(1)(B) of the FTC Act, 15 U.S.C. 45(m)(1)(B)--
$16,000;
(f) Section 10 of the FTC Act, 15 U.S.C. 50--$110;
(g) Section 5 of the Webb-Pomerene (Export Trade) Act, 15 U.S.C.
65--$110;
(h) Section 6(b) of the Wool Products Labeling Act, 15 U.S.C.
68d(b)--$110;
(i) Section 3(e) of the Fur Products Labeling Act, 15 U.S.C.
69a(e)--$110;
[[Page 32]]
(j) Section 8(d)(2) of the Fur Products Labeling Act, 15 U.S.C.
69f(d)(2)--$110;
(k) Section 333(a) of the Energy Policy and Conservation Act, 42
U.S.C. 6303(a)--$110;
(l) Sections 525(a) and (b) of the Energy Policy and Conservation
Act, 42 U.S.C. 6395(a) and (b), respectively--$7,500 and $16,000,
respectively;
(m) Section 621(a)(2) of the Fair Credit Reporting Act, 15 U.S.C.
1681s(a)(2)--$3,500; and
(n) Civil monetary penalties authorized by reference to the Federal
Trade Commission Act under any other provision of law within the
jurisdiction of the Commission--refer to the amounts set forth in
paragraphs (c), (d), (e) and (f) of this section, as applicable.
[65 FR 69666, Nov. 20, 2000, as amended at 69 FR 76612, Dec. 22, 2004;
74 FR 858, Jan. 9, 2009]
Subpart M_Submissions Under the Small Business Regulatory Enforcement
Fairness Act
Authority: 5 U.S.C. 801-804.
Sec. 1.99 Submission of rules, guides, interpretations, and policy statements
to Congress and the Comptroller General.
Whenever the Commission issues or substantively amends a rule or
industry guide or formally adopts an interpretation or policy statement
that constitutes a ``rule'' within the meaning of 5 U.S.C. 804(3), a
copy of the final rule, guide, interpretation or statement, together
with a concise description, the proposed effective date, and a statement
of whether the rule, guide, interpretation or statement is a ``major
rule'' within the meaning of 5 U.S.C. 804(2), will be transmitted to
each House of Congress and to the Comptroller General. The material
transmitted to the Comptroller General will also include any additional
relevant information required by 5 U.S.C. 801(a)(1)(B). This provision
generally applies to rules issued or substantively amended pursuant to
Sec. 1.14(c), Sec. 1.15(a), Sec. 1.19, or Sec. 1.26(d); industry
guides issued pursuant to Sec. 1.6; interpretations and policy
statements formally adopted by the Commission; and any rule of agency
organization, practice or procedure that substantially affects the
rights or obligations of non-agency parties.
[63 FR 36340, July 8, 1998]
Subpart N_Administrative Wage Garnishment
Sec. 1.100 Administrative wage garnishment.
(a) General. The Commission may use administrative wage garnishment
for debts, including those referred to Financial Management Service,
Department of Treasury, for cross-servicing. Regulations in 31 CFR
285.11 govern the collection of delinquent nontax debts owed to federal
agencies through administrative garnishment of non-Federal wages.
Whenever the Financial Management Service collects such a debt for the
Commission using administrative wage garnishment, the statutory
administrative requirements in 31 CFR 285.11 will govern.
(b) Hearing official. Any hearing required to establish the
Commission's right to collect a debt through administrative wage
garnishment shall be conducted by a qualified individual selected at the
discretion of the Chairman of the Commission, as specified in 31 CFR
285.11.
[75 FR 68418, Nov. 8, 2010]
PART 2_NONADJUDICATIVE PROCEDURES--Table of Contents
Subpart A_Inquiries; Investigations; Compulsory Processes
Sec.
2.1 How initiated.
2.2 Request for Commission action.
2.3 Policy as to private controversies.
2.4 Investigational policy.
2.5 By whom conducted.
2.6 Notification of purpose.
2.7 Compulsory process in investigations.
2.8 Investigational hearings.
2.8A Withholding requested material.
2.9 Rights of witnesses in investigations.
2.10 Depositions.
2.11 Orders requiring access.
2.12 Reports.
2.13 Noncompliance with compulsory processes.
2.14 Disposition.
2.15 Orders requiring witnesses to testify or provide other information
and granting immunity.
[[Page 33]]
2.16 Custodians.
2.17 Statutory delays of notifications and prohibitions of disclosure.
Subpart B_Petitions Filed Under Section 7A of the Clayton Act, as
Amended, for Review of Requests for Additional Information or
Documentary Material
2.20 Petitions for review of requests for additional information or
documentary material.
Subpart C_Consent Order Procedure
2.31 Opportunity to submit a proposed consent order.
2.32 Agreement.
2.33 Compliance procedure.
2.34 Disposition.
Subpart D_Reports of Compliance
2.41 General compliance obligations and specific obligations regarding
acquisitions and divestitures.
Subpart E_Requests To Reopen
2.51 Requests to reopen.
Authority: 15 U.S.C. 46, unless otherwise noted.
Subpart A_Inquiries; Investigations; Compulsory Processes
Sec. 2.1 How initiated.
Commission investigations and inquiries may be originated upon the
request of the President, Congress, governmental agencies, or the
Attorney General; upon referrals by the courts; upon complaint by
members of the public; or by the Commission upon its own initiative. The
Commission has delegated to the Director, Deputy Directors, and
Assistant Directors of the Bureau of Competition, the Director, Deputy
Directors, and Associate Directors of the Bureau of Consumer Protection
and, the Regional Directors and Assistant Regional Directors of the
Commission's regional offices, without power of redelegation, limited
authority to initiate investigations. The Director of the Bureau of
Competition has also been delegated, without power of redelegation,
authority to open investigations in response to requests pursuant to an
agreement under the International Antitrust Enforcement Assistance Act,
15 U.S.C. 6201 et seq., if the requests do not ask the Commission to use
process. Before responding to such a request, the Bureau Director shall
transmit the proposed response to the Secretary and the Secretary shall
notify the Commission of the proposed response. If no Commissioner
objects within three days following the Commission's receipt of such
notification, the Secretary shall inform the Bureau Director that he or
she may proceed.
[48 FR 41374, Sept. 15, 1983, as amended at 50 FR 53304, Dec. 31, 1985;
65 FR 67259, Nov. 9, 2000]
Sec. 2.2 Request for Commission action.
(a) Any individual, partnership, corporation, association, or
organization may request the Commission to institute an investigation in
respect to any matter over which the Commission has jurisdiction.
(b) Such request should be in the form of a signed statement setting
forth the alleged violation of law with such supporting information as
is available, and the name and address of the person or persons
complained of. No forms or formal procedures are required.
(c) The person making the request is not regarded as a party to any
proceeding which might result from the investigation.
(d) It is the general Commission policy not to publish or divulge
the name of an applicant or complaining party except as required by law
or by the Commission's rules. Where a complaint is by a consumer or
consumer representative concerning a specific consumer product or
service, the Commission, in the course of a referral of the complaint or
of an investigation, may disclose the identity of the complainant or
complainants. In referring any such consumer complaint, the Commission
specifically retains its right to take such action as it deems
appropriate in the public interest and under any of the statutes which
it administers.
[32 FR 8446, June 13, 1967, as amended at 35 FR 10146, June 20, 1970]
Sec. 2.3 Policy as to private controversies.
The Commission acts only in the public interest and does not
initiate an
[[Page 34]]
investigation or take other action when the alleged violation of law is
merely a matter of private controversy and does not tend adversely to
affect the public.
[32 FR 8446, June 13, 1967]
Sec. 2.4 Investigational policy.
The Commission encourages voluntary cooperation in its
investigations. Where the public interest requires, however, the
Commission may, in any matter under investigation adopt a resolution
authorizing the use of any or all of the compulsory processes provided
for by law.
[45 FR 36341, May 29, 1980]
Sec. 2.5 By whom conducted.
Inquiries and investigations are conducted under the various
statutes administered by the Commission by Commission representatives
designated and duly authorized for the purpose. Such representatives are
``examiners'' or ``Commission investigators'' within the meaning of the
Federal Trade Commission Act and are authorized to exercise and perform
the duties of their office in accordance with the laws of the United
States and the regulations of the Commission. Included among such duties
is the administration of oaths and affirmations in any matter under
investigation by the Commission.
[45 FR 36341, May 29, 1980]
Sec. 2.6 Notification of purpose.
Any person under investigation compelled or requested to furnish
information or documentary evidence shall be advised of the purpose and
scope of the investigation and of the nature of the conduct constituting
the alleged violation which is under investigation and the provisions of
law applicable to such violation.
[46 FR 26290, May 12, 1981; 46 FR 27634, May 21, 1981]
Sec. 2.7 Compulsory process in investigations.
(a) In general. The Commission or any member thereof may, pursuant
to a Commission resolution, issue a subpoena or a civil investigative
demand directing the person named therein to appear before a designated
representative at a designated time and place to testify or to produce
documentary evidence, or both, or, in the case of a civil investigative
demand, to provide a written report or answers to questions relating to
any matter under investigation by the Commission. Material for which a
civil investigative demand has been issued shall be made available for
inspection and copying at the principal place of business of the person
or at such other place or in such other manner as the person and the
custodian designated pursuant to Sec. 2.16 agree.
(b) Civil investigative demands. Civil investigative demands shall
be the only form of compulsory process issued in investigations with
respect to unfair or deceptive acts or practices within the meaning of
FTC Act section 5(a)(1).
(1) Civil investigative demands for the production of documentary
material shall describe each class of material to be produced with such
definiteness and certainty as to permit such material to be fairly
identified, prescribe a return date or dates which will provide a
reasonable period of time within which the material so demanded may be
assembled and made available for inspection and copying or reproduction,
and identify the custodian to whom such material shall be made
available. Production of documentary material in response to a civil
investigative demand shall be made in accordance with the procedures
prescribed by section 20(c)(11) of the Federal Trade Commission Act.
(2) Civil investigative demands for tangible things will describe
each class of tangible things to be produced with such definiteness and
certainty as to permit such things to be fairly identified, prescribe a
return date or dates which will provide a reasonable period of time
within which the things so demanded may be assembled and submitted, and
identify the custodian to whom such things shall be submitted.
Submission of tangible things in response to a civil investigative
demand shall be made in accordance with the procedures prescribed by
section 20(c)(12) of the Federal Trade Commission Act.
(3) Civil investigative demands for written reports or answers to
questions
[[Page 35]]
shall propound with definiteness and certainty the reports to be
produced or the questions to be answered, prescribe a date or dates at
which time written reports or answers to questions shall be submitted,
and identify the custodian to whom such reports or answers shall be
submitted. Response to a civil investigative demand for a written report
or answers to questions shall be made in accordance with the procedures
prescribed by section 20(c)(13) of the Federal Trade Commission Act.
(4) Civil investigative demands for the giving of oral testimony
shall prescribe a date, time, and place at which oral testimony shall be
commenced, and identify a Commission investigator who shall conduct the
investigation and the custodian to whom the transcript of such
investigation shall be submitted. Oral testimony in response to a civil
investigative demand shall be taken in accordance with the procedures
prescribed by section 20(c)(14) of the Federal Trade Commission Act.
(c) The Bureau Director, Deputy Directors and Assistant Directors of
the Bureaus of Competition and Economics, the Director, Deputy Directors
and Associate Directors of the Bureau of Consumer Protection, Regional
Directors, and Assistant Regional Directors, are authorized to negotiate
and approve the terms of satisfactory compliance with subpoenas and
civil investigative demands and, for good cause shown, may extend the
time prescribed for compliance. Specifically, the subpoena power
conferred by Section 329 of the Energy Policy and Conservation Act (42
U.S.C. 6299) is included within this delegation.
(d) Petitions to limit or quash--(1) General. Any petition to limit
or quash any investigational subpoena or civil investigative demand
shall be filed with the Secretary of the Commission within twenty (20)
days after service of the subpoena or civil investigative demand, or, if
the return date is less than twenty (20) days after service, prior to
the return date. Such petition shall set forth all assertions of
privilege or other factual and legal objections to the subpoena or civil
investigative demand, including all appropriate arguments, affidavits
and other supporting documentation.
(2) Statement. Each petition shall be accompanied by a signed
statement representing that counsel for the petitioner has conferred
with counsel for the Commission in an effort in good faith to resolve by
agreement the issues raised by the petition and has been unable to reach
such an agreement. If some of the matters in controversy have been
resolved by agreement, the statement shall specify the matters so
resolved and the matters remaining unresolved. The statement shall
recite the date, time, and place of each such conference between
counsel, and the names of all parties participating in each such
conference.
(3) Extensions of time. Bureau Directors, Deputy Directors, and
Assistant Directors in the Bureaus of Competition and Economics, the
Bureau Director, Deputy Directors and Associate Directors in the Bureau
of Consumer Protection, Regional Directors and Assistant Regional
Directors are delegated, without power of redelegation, the authority to
rule upon requests for extensions of time within which to file such
petitions.
(4) Disposition. A Commissioner, to be designated by the Chairman,
is delegated, without power of redelegation, the authority to rule upon
petitions to limit or quash an investigational subpoena or civil
investigative demand, but the designated Commissioner may, in his or her
sole discretion, refer a petition to the full Commission for
determination.
(e) Stay of compliance period. The timely filing of a petition to
limit or quash any investigational subpoena or civil investigative
demand shall stay the time permitted for compliance with the portion
challenged. If the petition is denied in whole or in part, the ruling
will specify a new return date.
(f) Review. Any petitioner, within three days after service of a
ruling by the designated Commissioner denying all or a portion of the
relief requested in its petition, may file with the Secretary of the
Commission a request that the full Commission review the ruling. The
timely filing of such a request shall not stay the return date specified
in the ruling, unless otherwise specified by the Commission.
[[Page 36]]
(g) Public disclosure. All petitions to limit or quash
investigational subpoenas or civil investigative demands and the
responses thereto are part of the public records of the Commission,
except for information exempt from disclosure under Sec. 4.10(a) of
this chapter.
[45 FR 36342, May 29, 1980, as amended at 46 FR 26290, May 12, 1981; 48
FR 41375, Sept. 15, 1983; 49 FR 6089, Feb. 17, 1984; 50 FR 42672, Oct.
22, 1985; 60 FR 37747, July 21, 1995]
Sec. 2.8 Investigational hearings.
(a) Investigational hearings, as distinguished from hearings in
adjudicative proceedings, may be conducted in the course of any
investigation undertaken by the Commission, including rulemaking
proceedings under subpart B of part 1 of this chapter, inquiries
initiated for the purpose of determining whether or not a respondent is
complying with an order of the Commission or the manner in which decrees
in suits brought by the United States under the antitrust laws are being
carried out, the development of facts in cases referred by the courts to
the Commission as a master in chancery, and investigations made under
section 5 of the Export Trade Act.
(b) Investigational hearings shall be conducted by any Commission
member, examiner, attorney, investigator, or other person duly
designated under the FTC Act, for the purpose of hearing the testimony
of witnesses and receiving documents and other data relating to any
subject under investigation. Such hearings shall be stenographically
reported and a transcript thereof shall be made a part of the record of
the investigation.
(c) Unless otherwise ordered by the Commission, investigational
hearings shall not be public. In investigational hearings conducted
pursuant to a civil investigative demand for the giving of oral
testimony, the Commission investigators shall exclude from the hearing
room all other persons except the person being examined, his counsel,
the officer before whom the testimony is to be taken, and the
stenographer recording such testimony. A copy of the transcript shall
promptly be forwarded by the Commission investigator to the custodian
designated in Sec. 2.16.
[32 FR 8446, June 13, 1967, as amended at 45 FR 36342, May 29, 1980; 61
FR 50645, Sept. 26, 1996]
Sec. 2.8A Withholding requested material.
(a) Any person withholding material responsive to an investigational
subpoena or civil investigative demand issued pursuant to Sec. 2.7, an
access order issued pursuant to Sec. 2.11, an order to file a report
issued pursuant to Sec. 2.12, or any other request for production of
material issued under this part, shall assert a claim of privilege or
any similar claim not later than the date set for the production of
material. Such person shall, if so directed in the subpoena, civil
investigative demand or other request for production, submit, together
with such claim, a schedule of the items withheld which states
individually as to each such item the type, specific subject matter, and
date of the item; the names, addresses, positions, and organizations of
all authors and recipients of the item; and the specific grounds for
claiming that the item is privileged.
(b) A person withholding material solely for reasons described in
Sec. 2.8A(a) shall comply with the requirements of that subsection in
lieu of filing a motion to limit or quash compulsory process.
(Sec. 5, 38 Stat. 719 as amended (15 U.S.C. 45))
[44 FR 54042, Sept. 18, 1979, as amended at 45 FR 36342, May 29, 1980]
Sec. 2.9 Rights of witnesses in investigations.
(a) Any person compelled to submit data to the Commission or to
testify in an investigational hearing shall be entitled to retain a copy
or, on payment of lawfully prescribed costs, procure a copy of any
document submitted by him and of his own testimony as stenographically
reported, except that in a nonpublic hearing the witness may for good
cause be limited to inspection of the official transcript of his
testimony. Where the investigational hearing has
[[Page 37]]
been conducted pursuant to a civil investigative demand issued under
section 20 of the Federal Trade Commission Act, upon completion of
transcription of the testimony of the witness, the witness shall be
offered an opportunity to read the transcript of his testimony. Any
changes in form or substance which the witness desires to make shall be
entered and identified upon the transcript by the Commission
investigator with a statement of the reasons given by the witness for
making such changes. The transcript shall then be signed by the witness
unless the witnesss cannot be found, is ill, waives in writing his right
to signature or refuses to sign. If the transcript is not signed by the
witness within thirty days of his being afforded a reasonable
opportunity to review it, the Commission investigator shall take the
actions prescribed by section 20(c)(12)(E)(ii) of the Federal Trade
Commission Act.
(b) Any witness compelled to appear in person in an investigational
hearing may be accompanied, represented, and advised by counsel as
follows:
(1) Counsel for a witness may advise the witness, in confidence and
upon the initiative of either counsel or the witness, with respect to
any question asked of the witness. If the witness refuses to answer a
question, then counsel may briefly state on the record if he has advised
the witness not to answer the question and the legal grounds for such
refusal.
(2) Where it is claimed that the testimony or other evidence sought
from a witness is outside the scope of the investigation, or that the
witness is privileged to refuse to answer a question or to produce other
evidence, the witness or counsel for the witness may object on the
record to the question or requirement and may state briefly and
precisely the ground therefor. The witness and his counsel shall not
otherwise object to or refuse to answer any question, and they shall not
otherwise interrupt the oral examination.
(3) Any objections made under the rules in this part will be treated
as continuing objections and preserved throughout the further course of
the hearing without the necessity for repeating them as to any similar
line of inquiry. Cumulative objections are unnecessary. Repetition of
the grounds for any objection will not be allowed.
(4) Counsel for a witness may not, for any purpose or to any extent
not allowed by paragraphs (b) (1) and (2) of this section, interrupt the
examination of the witness by making any objections or statements on the
record. Petitions challenging the Commission's authority to conduct the
investigation or the sufficiency or legality of the subpoena or civil
investigative demand must have been addressed to the Commission in
advance of the hearing. Copies of such petitions may be filed as part of
the record of the investigation with the person conducting the
investigational hearing, but no arguments in support thereof will be
allowed at the hearing.
(5) Following completion of the examination of a witness, counsel
for the witness may on the record request the person conducting the
investigational hearing to permit the witness of clarify any of his or
her answers. The grant or denial of such request shall be within the
sole discretion of the person conducting the hearing.
(6) The person conducting the hearing shall take all necessary
action to regulate the course of the hearing to avoid delay and to
prevent or restrain disorderly, dilatory, obstructionist, or
contumacious conduct, or contemptuous language. Such person shall, for
reasons stated on the record, immediately report to the Commission any
instances where an attorney has allegedly refused to comply with his or
her directions, or has allegedly engaged in disorderly, dilatory,
obstructionist, or contumacious conduct, or contemptuous language in the
course of the hearing. The Commission, acting pursuant to Sec. 4.1(e)
of this chapter, will thereupon take such further action, if any, as the
circumstances warrant, including suspension or disbarment of the
attorney from further practice before the Commission or exclusion from
further participation in the particular investigation.
(18 U.S.C. 6002, 6004)
[32 FR 8446, June 13, 1967, as amended at 45 FR 36343, May 29, 1980; 45
FR 39244, June 10, 1980; 46 FR 26290, May 12, 1981; 50 FR 53304, Dec.
31, 1985; 61 FR 50645, Sept. 26, 1996]
[[Page 38]]
Sec. 2.10 Depositions.
In investigations other than those conducted under section 20 of the
Federal Trade Commission Act, the Commission may order testimony to be
taken by deposition at any stage of such investigation. Such depositions
may be taken before any person having power to administer oaths who may
be designated by the Commission. The testimony shall be reduced to
writing by the person taking the deposition, or under his direction, and
shall then be subscribed to by the deponent. Any person may be compelled
to appear and be deposed and to produce documentary evidence in the same
manner as witnesses may be compelled to appear and testify and produce
documentary evidence as provided in Sec. Sec. 2.7 through 2.9.
[45 FR 36343, May 29, 1980, as amended at 50 FR 53304, Dec. 31, 1985]
Sec. 2.11 Orders requiring access.
(a) In investigations other than those conducted under section 20 of
the Federal Trade Commission Act, the Commission may issue an order
requiring any person, partnership or corporation being investigated to
grant access to files for the purpose of examination and the right to
copy any documentary evidence. The Directors, Deputy Directors and
Assistant Directors of the Bureaus of Competition and Economics, the
Director, Deputy Directors and Associate Directors of the Bureau of
Consumer Protection, the Regional Directors, and Assistant Regional
Directors of the Commission's regional offices, pursuant to delegation
of authority by the Commission, without power of redelegation, are
authorized, for good cause shown, to extend the time prescribed for
compliance with orders requiring access issued during the investigation
of any matter.
(b) Any petition to limit or quash an order requiring access shall
be filed with the Secretary of the Commission within twenty (20) days
after service of the order, or, if the date for compliance is less than
twenty (20) days after service of the order, then before the return
date. Such petition shall set forth all assertions of privilege or other
factual and legal objections to the order requiring access, including
all appropriate arguments, affidavits and other supporting
documentation. All petitions to limit or quash orders requiring access
shall be ruled upon by the Commission itself, but the above-designated
Directors, Deputy Directors, Assistant Directors, Associate Directors,
Regional Directors and Assistant Regional Directors are delegated,
without power of redelegation, the authority to rule upon motions for
extensions of time within which to file petitions to limit or quash
orders requiring access.
(c) The timely filing of any petition to limit or quash such an
order shall stay the requirement of compliance if the Commission has not
ruled upon the motion by the date of compliance. If it rules on or
subsequent to the date required for compliance and its ruling denies the
petition in whole or in part, the Commission shall specify a new date of
compliance.
(d) All petitions to limit or quash orders requiring access, and the
Commission's responses thereto, are part of the public records of the
Commission, except for information exempt from disclosure under Sec.
4.10(a) of this chapter.
[46 FR 26290, May 12, 1981, as amended at 48 FR 41375, Sept. 15, 1983]
Sec. 2.12 Reports.
(a) In investigations other than those covered by section 20 of the
Federal Trade Commission Act the Commission may issue an order requiring
a person, partnership, or corporation to file a report or answers in
writing to specific questions relating to any matter under
investigation, study or survey, or under any of the Commission's
reporting programs.
(b) The Directors, Deputy Directors and Assistant Directors of the
Bureaus of Competition and Economics, the Director, Deputy Directors and
Associate Directors of the Bureau of Consumer Protection, and the
Regional Directors and Assistant Regional Directors of the Commission's
regional offices, pursuant to delegation of authority by the Commission,
without power of redelegation, are authorized, for good cause shown, to
extend the time prescribed for compliance with orders requiring reports
or answers to questions issued
[[Page 39]]
during the investigation, study or survey of any matter or in connection
with any of the Commission's reporting programs.
(c) Any petition to limit or quash an order requiring a report or
answer to specific questions shall be filed with the Secretary of the
Commission within twenty (20) days after service of the order, or, if
the date for compliance is less than twenty (20) days after service of
the order, then before the return date. Such petition shall set forth
all assertions of privilege or other factual and legal objections to the
order requiring a report or answer to specific questions, including all
appropriate arguments, affidavits and other supporting documentation.
All petitions to limit or quash orders requiring reports or answers to
questions shall be ruled upon by the Commission itself, but the above-
designated Directors, Deputy Directors, Assistant Directors, Associate
Directors, Regional Directors and Assistant Regional Directors are
delegated, without power of redelegation, the authority to rule upon
motions for extensions of time within which to file petitions to limit
or quash orders requiring reports or answers to questions.
(d) Except as otherwise provided by the Commission, the timely
filing of any petition to limit or quash such an order shall stay the
requirement of return on the portion challenged if the Commission has
not ruled upon the petition by the return date. If it rules on or
subsequent to the return date and its ruling denies the petition in
whole or in part, the Commission shall specify a new return date.
(e) All petitions to limit or quash orders requiring a report or
answers to specific questions, and the Commission's responses thereto,
are part of the public records of the Commission, except for information
exempt from disclosure under Sec. 4.10(a) of this chapter.
[41 FR 54485, Dec. 14, 1976, as amended at 45 FR 36343, May 29, 1980; 46
FR 26290, May 12, 1981; 48 FR 41375, Sept. 15, 1983; 50 FR 53304, Dec.
31, 1985]
Sec. 2.13 Noncompliance with compulsory processes.
(a) In cases of failure to comply with Commission compulsory
processes, appropriate action may be initiated by the Commission or the
Attorney General, including actions for enforcement, forfeiture, or
penalties or criminal actions.
(b) The General Counsel, pursuant to delegation of authority by the
Commission, without power of redelegation, is authorized:
(1) To institute, on behalf of the Commission, an enforcement
proceeding in connection with the failure or refusal of a person,
partnership, or corporation to comply with, or to obey, a subpoena, or
civil investigative demand if the return date or any extension thereof
has passed;
(2) To approve and have prepared and issued, in the name of the
Commission when deemed appropriate by the General Counsel, a notice of
default in connection with the failure of a person, partnership, or
corporation to timely file a report pursuant to section 6(b) of the
Federal Trade Commission Act, if the return date or any extension
thereof has passed;
(3) To institute, on behalf of the Commission, an enforcement
proceeding and to request, on behalf of the Commission, the institution,
when deemed appropriate by the General Counsel, of a civil action in
connection with the failure of a person, partnership, or corporation to
timely file a report pursuant to an order under section 6(b) of the
Federal Trade Commission Act, if the return date or any extension
thereof has passed; and
(4) To seek civil contempt in cases where a court order enforcing
compulsory process has been violated.
[41 FR 54485, Dec. 14, 1976, as amended at 45 FR 39244, June 10, 1980;
50 FR 53304, Dec. 31, 1985]
Sec. 2.14 Disposition.
(a) When the facts disclosed by an investigation indicate that
corrective action is warranted, and the matter is not subject to a
consent settlement pursuant to subpart C of this part, further
proceedings may be instituted pursuant to the provisions of part 3 of
this chapter.
(b) When the facts disclosed by an investigation indicate that
corrective action is not necessary or warranted in the public interest,
the investigational
[[Page 40]]
file will be closed. The matter may be further investigated at any time
if circumstances so warrant.
(c) The Commission has delegated to the Director, Deputy Directors,
and Assistant Directors of the Bureau of Competition, the Director,
Deputy Directors and Associate Directors of the Bureau of Consumer
Protection, and Regional Directors, without power of redelegation,
limited authority to close investigations.
[32 FR 8446, June 13, 1967, as amended at 42 FR 42195, Aug. 22, 1977; 48
FR 41375, Sept. 15, 1983; 50 FR 53304, Dec. 31, 1985]
Sec. 2.15 Orders requiring witnesses to testify or provide other information
and granting immunity.
(a) The Bureau Director, Deputy Directors, and Assistant Directors
in the Bureaus of Competition and Economics, the Bureau Director, Deputy
Directors and Associate Directors of the Bureau of Consumer Protection,
Regional Directors and Assistant Regional Directors are hereby
authorized to request, through the Commission's liaison officer,
approval from the Attorney General for the issuance of an order
requiring a witness to testify or provide other information granting
immunity under title 18, section 6002, of the United States Code.
(b) The Commission retains the right to review the exercise of any
of the functions delegated under paragraph (a) of this section. Appeals
to the Commission from an order requiring a witness to testify or
provide other information will be entertained by the Commission only
upon a showing that a substantial question is involved, the
determination of which is essential to serve the interests of justice.
Such appeals shall be made on the record and shall be in the form of a
brief not to exceed fifteen (15) pages in length and shall be filed
within five (5) days after notice of the complained of action. The
appeal shall not operate to suspend the hearing unless otherwise
determined by the person conducting the hearing or ordered by the
Commission.
(18 U.S.C. 6002, 6004)
[37 FR 5016, Mar. 9, 1972, as amended at 48 FR 41375, Sept. 15, 1983; 61
FR 50645, Sept. 26, 1996]
Sec. 2.16 Custodians.
(a) Designation. The Commission shall designate a custodian and one
or more deputy custodians for material to be delivered pursuant to
compulsory process in an investigation, a purpose of which is to
determine whether any person may have violated any provision of the laws
administered by the Commission. The custodian shall have the powers and
duties prescribed by section 21 of the FTC Act. Deputy custodians may
perform all of the duties assigned to custodians. The appropriate Bureau
Directors, Deputy Directors, Associate Directors in the Bureau of
Consumer Protection, Assistant Directors in the Bureau of Competition,
Regional Directors or Assistant Regional Directors shall take the action
required by section 21(b)(7) of the FTC Act if it is necessary to
replace a custodian or deputy custodian.
(b) Copying of custodial documents. The custodian designated
pursuant to section 21 of the Federal Trade Commission Act (subject to
the general supervision of the Executive Director) may, from among the
material submitted, select the material the copying of which is
necessary or appropriate for the official use of the Commission, and
shall determine, the number of copies of any such material that are to
be reproduced. Copies of material in the physical possession of the
custodian may be reproduced by or under the authority of an employee of
the Commission designated by the custodian.
(c) Material produced pursuant to the Federal Trade Commission Act,
while in the custody of the custodian, shall be for the official use of
the Commission in accordance with the Act; but such material shall upon
reasonable notice to the custodian be made available for examination by
the person who produced such material, or his duly authorized
representative, during regular office hours established for the
Commission.
[45 FR 36343, May 29, 1980, as amended at 46 FR 26291, May 12, 1981; 48
FR 41376, Sept. 15, 1983; 50 FR 53305, Dec. 31, 1985]
Sec. 2.17 Statutory delays of notifications and prohibitions of disclosure.
Upon authorization by the Commissioner who issues compulsory process
[[Page 41]]
pursuant to Sec. 2.7(a) or, alternatively, upon authorization by the
General Counsel, Commission attorneys may seek to delay notifications or
prohibit disclosures pursuant to the Right to Financial Privacy Act (12
U.S.C. 3409), the Electronic Communications Privacy Act (18 U.S.C.
2705), or section 7 of the U.S. SAFE WEB Act (15 U.S.C. 57b-2a).
[76 FR 54691, Sept. 2, 2011]
Subpart B_Petitions Filed Under Section 7A of the Clayton Act, as
Amended, for Review of Requests for Additional Information or
Documentary Material
Authority: 15 U.S.C. 18a(d), (e).
Sec. 2.20 Petitions for review of requests for additional information or
documentary material.
(a) For purposes of this section, ``second request'' refers to a
request for additional information or documentary material issued under
16 CFR 803.20.
(b) Second request procedures--(1) Notice. Every request for
additional information or documentary material issued under 16 CFR
803.20 shall inform the recipient(s) of the request that the recipient
has a right to discuss modifications or clarifications of the request
with an authorized representative of the Commission. The request shall
identify the name and telephone number of at least one such
representative.
(2) Second request conference. An authorized representative of the
Commission shall invite the recipient to discuss the request for
additional information or documentary material soon after the request is
issued. At the conference, the authorized representative shall discuss
the competitive issues raised by the proposed transaction, to the extent
then known, and confer with the recipient about the most effective way
to obtain information and documents relating to the competitive issues
raised. The conference will ordinarily take place within 5 business days
of issuance of the request, unless the recipient declines the invitation
or requests a later date.
(3) Modification of requests. The authorized representative shall
modify the request for additional information or documentary material,
or recommend such modification to the responsible Assistant Director of
the Bureau of Competition, if he or she determines that a less
burdensome request would be consistent with the needs of the
investigation. A request for additional information or documentary
material may be modified only in writing signed by the authorized
representative.
(4) Review of request decisions. (i) If the recipient of a request
for additional information or documentary material believes that
compliance with portions of the request should not be required and the
recipient has exhausted reasonable efforts to obtain clarifications or
modifications of the request from an authorized representative, the
recipient may petition the General Counsel to consider and rule on
unresolved issues. Such petition shall be submitted by letter to the
General Counsel with a copy to the authorized representative who
participated in the second request conference held under paragraph
(b)(3) of this section. The petition shall not, without leave of the
General Counsel, exceed 500 words, excluding any cover, table of
contents, table of authorities, glossaries, proposed form of relief and
any appendices containing only sections of statutes or regulations, and
shall address petitioner's efforts to obtain modification from the
authorized representative.
(ii) Within 2 business days after receiving such a petition, the
General Counsel shall set a date for a conference with the petitioner
and the authorized representative.
(iii) Such conference shall take place within 7 business days after
the General Counsel receives the petition, unless the request recipient
agrees to a later date or declines to attend a conference.
(iv) Not later than 3 business days before the date of the
conference, the petitioner and the authorized representative may each
submit memoranda regarding the issues presented in the petition. Such
memoranda shall not, without leave of the General Counsel, exceed 1250
words, excluding any cover,
[[Page 42]]
table of contents, table of authorities, glossaries, proposed form of
relief and appendices containing only sections of statutes or
regulations. Such memoranda shall be delivered to counsel for the other
participants on the same day they are delivered to the General Counsel.
(v) The petitioner's memorandum shall include a concise statement of
reasons why the request should be modified, together with proposed
modifications, or a concise explanation why the recipient believes it
has substantially complied with the request for additional information
or documentary material.
(vi) The authorized representative's memorandum shall include a
concise statement of reasons why the petitioner's proposed modifications
are inappropriate or a concise statement of the reasons why the
representative believes that the petitioner has not substantially
complied with the request for additional information and documentary
material.
(vii) The General Counsel shall advise the petitioner and the
authorized representative of his or her decision within 3 business days
following the conference.
[66 FR 8721, Feb. 1, 2001]
Subpart C_Consent Order Procedure
Sec. 2.31 Opportunity to submit a proposed consent order.
(a) Where time, the nature of the proceeding, and the public
interest permit, any individual, partnership, or corporation being
investigated shall be afforded the opportunity to submit through the
operating Bureau or Regional Office having responsibility in the matter
a proposal for disposition of the matter in the form of a consent order
agreement executed by the party being investigated and complying with
the requirements of Sec. 2.32, for consideration by the Commission in
connection with a proposed complaint submitted by the Commission's
staff.
(b) After a complaint has been issued, the consent order procedure
described in this part will not be available except as provided in Sec.
3.25(b).
[40 FR 15235, Apr. 4, 1975]
Sec. 2.32 Agreement.
Every agreement in settlement of a Commission complaint shall
contain, in addition to an appropriate proposed order, either an
admission of the proposed findings of fact and conclusions of law
submitted simultaneously by the Commission's staff or an admission of
all jurisdictional facts and an express waiver of the requirement that
the Commission's decision contain a statement of findings of fact and
conclusions of law. Every agreement also shall waive further procedural
steps and all rights to seek judicial review or otherwise to challenge
or contest the validity of the order. In addition, where appropriate,
every agreement in settlement of a Commission complaint challenging the
lawfulness of a proposed merger or acquisition shall also contain a
hold-separate or asset-maintenance order. The agreement may state that
the signing thereof is for settlement purposes only and does not
constitute an admission by any party that the law has been violated as
alleged in the complaint. Every agreement shall provide that:
(a) The complaint may be used in construing the terms of the order;
(b) No agreement, understanding, representation, or interpretation
not contained in the order or the aforementioned agreement may be used
to vary or to contradict the terms of the order;
(c) The order will have the same force and effect and may be
altered, modified or set aside in the same manner provided by statute
for Commission orders issued on a litigated or stipulated record;
(d) Except as provided by order of the Commission, any order issued
pursuant to the agreement will become final upon service;
(e) The agreement will not become a part of the public record unless
and until it is accepted by the Commission; and
(f) If the Commission accepts the agreement, further proceedings
will be governed by Sec. 2.34.
[64 FR 46268, Aug. 25, 1999]
[[Page 43]]
Sec. 2.33 Compliance procedure.
The Commission may in its discretion require that a proposed
agreement containing an order to cease and desist be accompanied by an
initial report signed by the respondent setting forth in precise detail
the manner in which the respondent will comply with the order when and
if entered. Such report will not become part of the public record unless
and until the accompanying agreement and order are accepted by the
Commission. At the time any such report is submitted a respondent may
request confidentiality for any portion thereof with a precise showing
of justification therefor as set out in Sec. 4.9(c) and the General
Counsel or the General Counsel's designee will dispose of such requests
in accordance with that section.
[63 FR 32977, June 17, 1998]
Sec. 2.34 Disposition.
(a) Acceptance of proposed consent agreement. The Commission may
accept or refuse to accept a proposed consent agreement. Except as
otherwise provided in paragraph (c) of this section, acceptance does not
constitute final approval, but it serves as the basis for further
actions leading to final disposition of the matter.
(b) Effectiveness of hold-separate or asset-maintenance order.
Following acceptance of a consent agreement, the Commission will, if it
deems a hold-separate or asset-maintenance order appropriate, issue a
complaint and such an order as agreed to by the parties. Such order will
be final upon service. The issuance of a complaint under this paragraph
will neither commence an adjudicatory proceeding subject to part 3 of
this chapter nor subject the consent agreement proceeding to the
prohibitions specified in Sec. 4.7 of this chapter.
(c) Public comment. Promptly after its acceptance of the consent
agreement, the Commission will place the order contained in the consent
agreement, the complaint, and the consent agreement on the public record
for a period of 30 days, or such other period as the Commission may
specify, for the receipt of comments or views from any interested
person. At the same time, the Commission will place on the public record
an explanation of the provisions of the order and the relief to be
obtained thereby and any other information that it believes may help
interested persons understand the order. The Commission also will
publish the explanation in the Federal Register. The Commission retains
the discretion to issue a complaint and a Final Decision and Order,
incorporating the order contained in a consent agreement, in appropriate
cases before seeking public comment. Unless directed otherwise by the
Commission, such Decision and Order will be final upon service.
(d) Comment on initial compliance report. If respondents have filed
an initial report of compliance pursuant to Sec. 2.33, the Commission
will place that report on the public record, except for portions, if
any, granted confidential treatment pursuant to Sec. 4.9(c) of this
chapter, with the complaint, the order, and the consent agreement.
(e) Action following comment period. (1) Following the comment
period, on the basis of comments received or otherwise, the Commission
may either withdraw its acceptance of the agreement and so notify
respondents, in which event it will take such other action as it may
consider appropriate, or issue and serve its complaint in such form as
the circumstances may require and its decision in disposition of the
proceeding.
(2) The Commission, following the comment period, may determine, on
the basis of the comments or otherwise, that a Final Decision and Order
that was issued in advance of the comment period should be modified.
Absent agreement by respondents to the modifications, the Commission may
initiate a proceeding to reopen and modify the decision and order in
accordance with Sec. 3.72(b) of this chapter or commence a new
administrative proceeding by issuing a complaint in accordance with
Sec. 3.11 of this chapter.
[64 FR 46269, Aug. 25, 1999]
[[Page 44]]
Subpart D_Reports of Compliance
Sec. 2.41 General compliance obligations and specific obligations regarding
acquisitions and divestitures.
(a) In every proceeding in which the Commission has issued an order
pursuant to the provisions of section 5 of the Federal Trade Commission
Act or section 11 of the Clayton Act, as amended, and except as
otherwise specifically provided in any such order, each respondent named
in such order shall file with the Commission, within sixty (60) days
after service thereof, or within such other time as may be provided by
the order or the rules in this chapter, a report in writing, signed by
the respondent, setting forth in detail the manner and form of his
compliance with the order, and shall thereafter file with the Commission
such further signed, written reports of compliance as it may require. An
original and one copy of each such report shall be filed with the
Secretary of the Commission, and one copy of each such report shall be
filed with the Associate Director for Enforcement in the Bureau of
Consumer Protection (for consumer protection orders) or with the
Assistant Director for Compliance in the Bureau of Competition (for
competition orders). Reports of compliance shall be under oath if so
requested. Where the order prohibits the use of a false advertisement of
a food, drug, device, or cosmetic which may be injurious to health
because of results from its use under the conditions prescribed in the
advertisement, or under such conditions as are customary or usual, or if
the use of such advertisement is with intent to defraud or mislead, or
in any other case where the circumstances so warrant, the order may
provide for an interim report stating whether and how respondents intend
to comply to be filed within ten (10) days after service of the order.
Neither the filing of an application for stay pursuant to Sec. 3.56,
nor the filing of a petition for judicial review, shall operate to
postpone the time for filing a compliance report under the order or this
section. If the Commission, or a court, determines to grant a stay of an
order, or portion thereof, pending judicial review, or if any order
provision is automatically stayed by statute, no compliance report shall
be due as to those portions of the order that are stayed unless ordered
by the court. Thereafter, as to orders, or portions thereof, that are
stayed, the time for filing a report of compliance shall begin to run de
novo from the final judicial determination, except that if no petition
for certiorari has been filed following affirmance of the order of the
Commission by a court of appeals, the compliance report shall be due the
day following the date on which the time expires for the filing of such
petition. Staff of the Bureaus of Competition and Consumer Protection
will review such reports of compliance and may advise each respondent
whether the staff intends to recommend that the Commission take any
enforcement action. The Commission may, however, institute proceedings,
including certification of facts to the Attorney General pursuant to the
provisions of section 5(l) of the Federal Trade Commission Act (15
U.S.C. 45(l)) and section 11(1) of the Clayton Act, as amended (15
U.S.C. 21(1)), to enforce compliance with an order, without advising a
respondent whether the actions set forth in a report of compliance
evidence compliance with the Commission's order or without prior notice
of any kind to a respondent.
(b) The Commission has delegated to the Director, the Deputy
Directors, and the Assistant Director for Compliance of the Bureau of
Competition, and to the Director, the Deputy Directors, and the
Associate Director for Enforcement of the Bureau of Consumer Protection
the authority to monitor compliance reports and to open and close
compliance investigations. With respect to any compliance matter which
has received previous Commission consideration as to compliance or in
which the Commission or any Commissioner has expressed an interest, any
matter proposed to be closed by reason of expense of investigation or
testing, or any matter involving substantial questions as to the public
interest, Commission policy or statutory construction, the Bureaus shall
submit an analysis to the Commission regarding their intended actions.
[[Page 45]]
(c) The Commission has delegated to the Director, Deputy Directors,
and Assistant Directors of the Bureau of Competition and to the
Director, Deputy Directors, and Associate Directors of the Bureau of
Consumer Protection, and to the Regional Directors, the authority, for
good cause shown, to extend the time within which reports of compliance
with orders to cease and desist may be filed. It is to be noted,
however, that an extension of time within which a report of compliance
may be filed, or the filing of a report which does not evidence full
compliance with the order, does not in any circumstances suspend or
relieve a respondent from his obligation under the law with respect to
compliance with such order. An order of the Commission to cease and
desist becomes final on the date and under the conditions provided in
the Federal Trade Commission Act and the Clayton Act. Any person,
partnership or corporation against which an order to cease and desist
has been issued who is not in full compliance with such order on and
after the date provided in these statutes for the order to become final
is in violation of such order and is subject to an immediate action for
civil penalties. The authority under this paragraph may not be
redelegated, except that the Associate Director for Enforcement in the
Bureau of Consumer Protection and the Assistant Director for Compliance
in the Bureau of Competition may each name a designee under this
paragraph.
(d) Any respondent subject to a Commission order may request advice
from the Commission as to whether a proposed course of action, if
pursued by it, will constitute compliance with such order. The request
for advice should be submitted in writing to the Secretary of the
Commission and should include full and complete information regarding
the proposed course of action. On the basis of the facts submitted, as
well as other information available to the Commission, the Commission
will inform the respondent whether or not the proposed course of action,
if pursued, would constitute compliance with its order. A request
ordinarily will be considered inappropriate for such advice:
(1) Where the course of action is already being followed by the
requesting party;
(2) Where the same or substantially the same course of action is
under investigation or is or has been the subject of a current
proceeding, order, or decree initiated or obtained by the Commission or
another governmental agency; or
(3) Where the proposed course of action or its effects may be such
that an informed decision thereon cannot be made or could be made only
after extensive investigation, clinical study, testing or collateral
inquiry.
Furthermore, the filing of a request for advice under this paragraph
does not in any circumstances suspend or relieve a respondent from his
obligation under the law with respect to his compliance with the order.
He must in any event be in full compliance on and after the date the
order becomes final as prescribed by statute referred to in paragraph
(b) of this section. Advice to respondents under this paragraph will be
published by the Commission in the same manner and subject to the same
restrictions and considerations as advisory opinions under Sec. 1.4 of
this chapter.
(e) The Commission may at any time reconsider any advice given under
this section and, where the public interest requires, rescind or revoke
its prior advice. In such event the respondent will be given notice of
the Commission's intent to revoke or rescind and will be given an
opportunity to submit its views to the Commission. The Commission will
not proceed against a respondent for violation of an order with respect
to any action which was taken in good faith reliance upon the
Commission's advice under this section, where all relevant facts were
fully, completely, and accurately presented to the Commission and where
such action was promptly discontinued upon notification of rescission or
revocation of the Commission's advice.
(f)(1) All applications for approval of proposed divestitures,
acquisitions, or similar transactions subject to Commission review under
outstanding orders (including modifications to previously approved
transactions) shall
[[Page 46]]
fully describe the terms of the transaction or modification and shall
set forth why the transaction or modification merits Commission
approval. Such applications will be placed on the public record,
together with any additional applicant submissions that the Commission
directs be placed on the public record. The Director of the Bureau of
Competition is delegated authority to direct such placement.
(2) The Commission will receive public comment on a prior approval
application submitted pursuant to paragraphs (f)(1) or (5) of this
section for thirty (30) days. During the comment period, any person may
file formal written objections or comments with the Secretary of the
Commission, and such objections or comments shall be placed on the
public record. In appropriate cases, the Commission may shorten,
eliminate, extend, or reopen a comment period.
(3) Responses to applications under this section, together with a
statement of supporting reasons, will be published when made, together
with responses to any public comments filed under this section.
(4) Persons submitting information that is subject to public record
disclosure under this section may request confidential treatment for
that information or portions thereof in accordance with Sec. 4.9(c) and
the General Counsel or the General Counsel's designee will dispose of
such requests in accordance with that section. Nothing in this section
requires that confidentiality requests be resolved prior to, or
contemporaneously with, the disposition of the application.
(5)(i) Any application to modify either:
(A) An agreement that has been approved by the Commission pursuant
to paragraph (f) of this section, or
(B) An agreement incorporated by reference into a final order of the
Commission issued in connection with a merger, acquisition, or similar
transaction shall be subject to review and approval in the manner
described in paragraphs (f)(1) through (4) of this section, except as
provided in paragraph (f)(5)(ii) of this section.
(ii) If the application establishes that the proposed modification
is purely ministerial, or unlikely under any plausible facts to affect
achieving the remedial purposes of the order at issue, the Commission
has delegated to the Director, Deputy Directors, and Assistant Director
for Compliance of the Bureau of Competition, without power of
redelegation, for good cause shown, the authority.
(A) To waive the approval requirement of paragraph (f)(5)(i) of this
section; and
(B) To shorten, eliminate, extend or reopen the comment period
pursuant to paragraph (f)(2) of this section.
(iii) Any agreement containing a modification approved, or for which
the approval requirement is waived, pursuant to this paragraph (f)(5),
shall be subject to any outstanding Commission order to the same extent
as was the original agreement.
[32 FR 8449, June 13, 1967]
Editorial Note: For Federal Register citations affecting Sec. 2.41,
see the List of CFR Sections Affected, which appears in the Finding Aids
section of the printed volume and at www.fdsys.gov.
Subpart E_Requests To Reopen
Sec. 2.51 Requests to reopen.
(a) Scope. Any person, partnership, or corporation subject to a
Commission decision containing a rule or order which has become
effective, or an order to cease and desist which has become final, may
file with the Secretary a request that the Commission reopen the
proceeding to consider whether the rule or order, including any
affirmative relief provision contained therein, should be altered,
modified, or set aside in whole or in part.
(b) Contents. A request under this section shall contain a
satisfactory showing that changed conditions of law or fact require the
rule or order to be altered, modified or set aside, in whole or in part,
or that the public interest so requires.
(1) This requirement shall not be deemed satisfied if a request is
merely conclusory or otherwise fails to set forth by affidavit(s)
specific facts demonstrating in detail:
(i) The nature of the changed conditions and the reasons why they
require
[[Page 47]]
the requested modifications of the rule or order; or
(ii) The reasons why the public interest would be served by the
modification.
(2) Each affidavit shall set forth facts that would be admissible in
evidence and shall show that the affiant is competent to testify to the
matters stated therein. All information and material that the requester
wishes the Commission to consider shall be contained in the request at
the time of filing.
(c) Opportunity for public comment. A request under this section
shall be placed on the public record except for material exempt from
public disclosure under rule 4.10(a). Unless the Commission determines
that earlier disposition is necessary, the request shall remain on the
public record for thirty (30) days after a press release on the request
is issued. Bureau Directors are authorized to publish a notice in the
Federal Register announcing the receipt of a request to reopen at their
discretion. The public is invited to comment on the request while it is
on the public record.
(d) Determination. After the period for public comments on a request
under this section has expired and no later than one hundred and twenty
(120) days after the date of the filing of the request, the Commission
shall determine whether the request complies with paragraph (b) of this
section and whether the proceeding shall be reopened and the rule or
order should be altered, modified, or set aside as requested. In doing
so, the Commission may, in its discretion, issue an order reopening the
proceeding and modifying the rule or order as requested, issue an order
to show cause pursuant to Sec. 3.72, or take such other action as is
appropriate: Provided, however, That any action under Sec. 3.72 or
otherwise shall be concluded within the specified 120-day period.
(Sec. 6(g), 38 Stat. 721 (15 U.S.C. 46(g)); 80 Stat. 383, as amended, 81
Stat. 54 (5 U.S.C. 552))
[45 FR 36344, May 29, 1980, as amended at 46 FR 26291, May 12, 1981; 47
FR 33251, Aug. 2, 1982; 50 FR 53305, Dec. 31, 1985; 53 FR 40868, Oct.
19, 1988; 65 FR 50637, Aug. 21, 2000]
PART 3_RULES OF PRACTICE FOR ADJUDICATIVE PROCEEDINGS--Table of Contents
Subpart A_Scope of Rules; Nature of Adjudicative Proceedings
Sec.
3.1 Scope of the rules in this part; expedition of proceedings.
3.2 Nature of adjudicative proceedings.
Subpart B_Pleadings
3.11 Commencement of proceedings.
3.12 Answer.
3.13 Adjudicative hearing on issues arising in rulemaking proceedings
under the Fair Packaging and Labeling Act.
3.14 Intervention.
3.15 Amendments and supplemental pleadings.
Subpart C_Prehearing Procedures; Motions; Interlocutory Appeals; Summary
Decisions
3.21 Prehearing procedures.
3.22 Motions.
3.23 Interlocutory appeals.
3.24 Summary decisions.
3.25 Consent agreement settlements.
3.26 Motions following denial of preliminary injunctive relief.
Subpart D_Discovery; Compulsory Process
3.31 General discovery provisions.
3.31A Expert discovery.
3.32 Admissions.
3.33 Depositions.
3.34 Subpoenas.
3.35 Interrogatories to parties.
3.36 Applications for subpoenas for records of or appearances by certain
officials or employees of the Commission or officials or
employees of governmental agencies other than the Commission,
and subpoenas to be served in a foreign country.
3.37 Production of documents, electronically stored information, and any
tangible things; access for inspection and other purposes.
3.38 Motion for order compelling disclosure or discovery; sanctions.
3.38A Withholding requested material.
3.39 Orders requiring witnesses to testify or provide other information
and granting immunity.
3.40 Admissibility of evidence in advertising substantiation cases.
Subpart E_Hearings
3.41 General hearing rules.
3.42 Presiding officials.
3.43 Evidence.
3.44 Record.
[[Page 48]]
3.45 In camera orders.
3.46 Proposed findings, conclusions, and order.
Subpart F_Decision
3.51 Initial decision.
3.52 Appeal from initial decision.
3.53 Review of initial decision in absence of appeal.
3.54 Decision on appeal or review.
3.55 Reconsideration.
3.56 Effective date of orders; application for stay.
Subpart G [Reserved]
Subpart H_Reopening of Proceedings
3.71 Authority.
3.72 Reopening.
Subpart I_Recovery of Awards Under the Equal Access to Justice Act in
Commission Proceedings
3.81 General provisions.
3.82 Information required from applicants.
3.83 Procedures for considering applicants.
Authority: 15 U.S.C. 46, unless otherwise noted.
Source: 32 FR 8449, June 13, 1967, unless otherwise noted.
Subpart A_Scope of Rules; Nature of Adjudicative Proceedings
Sec. 3.1 Scope of the rules in this part; expedition of proceedings.
The rules in this part govern procedure in formal adjudicative
proceedings. To the extent practicable and consistent with requirements
of law, the Commission's policy is to conduct such proceedings
expeditiously. In the conduct of such proceedings the Administrative Law
Judge and counsel for all parties shall make every effort at each stage
of a proceeding to avoid delay. In the event of a scheduling conflict
between a proceeding in which the Commission also has sought or is
seeking relief under Section 13(b) of the FTC Act, 15 U.S.C. 53(b), and
another proceeding, the proceeding in which the Commission also has
sought or is seeking relief under Section 13(b) shall take precedence.
The Commission, at any time, or the Administrative Law Judge at any time
prior to the filing of his or her initial decision, may, with the
consent of the parties, shorten any time limit prescribed by these Rules
of Practice.
[74 FR 20208, May 1, 2009]
Sec. 3.2 Nature of adjudicative proceedings.
Adjudicative proceedings are those formal proceedings conducted
under one or more of the statutes administered by the Commission which
are required by statute to be determined on the record after opportunity
for an agency hearing. The term includes hearings upon objections to
orders relating to the promulgation, amendment, or repeal of rules under
sections 4, 5 and 6 of the Fair Packaging and Labeling Act, but does not
include rulemaking proceedings up to the time when the Commission
determines under Sec. 1.26(g) of this chapter that objections
sufficient to warrant the holding of a public hearing have been filed.
The term also includes proceedings for the assessment of civil penalties
pursuant to Sec. 1.94 of this chapter. The term does not include other
proceedings such as negotiations for and Commission consideration of the
entry of consent orders; investigational hearings as distinguished from
proceedings after the issuance of a complaint; requests for extensions
of time to comply with final orders or other proceedings involving
compliance with final orders; proceedings for the promulgation of
industry guides or trade regulation rules; or the promulgation of
substantive rules and regulations.
[74 FR 1820, Jan. 13, 2009]
Subpart B_Pleadings
Sec. 3.11 Commencement of proceedings.
(a) Complaint. Except as provided in Sec. 3.13, an adjudicative
proceeding is commenced when an affirmative vote is taken by the
Commission to issue a complaint.
(b) Form of complaint. The Commission's complaint shall contain the
following:
(1) Recital of the legal authority and jurisdiction for institution
of the proceeding, with specific designation of the statutory provisions
alleged to have been violated;
[[Page 49]]
(2) A clear and concise factual statement sufficient to inform each
respondent with reasonable definiteness of the type of acts or practices
alleged to be in violation of the law;
(3) Where practical, a form of order which the Commission has reason
to believe should issue if the facts are found to be as alleged in the
complaint; and
(4) Notice of the specific date, time and place for the evidentiary
hearing. Unless a different date is determined by the Commission, the
date of the evidentiary hearing shall be 5 months from the date of the
administrative complaint in a proceeding in which the Commission, in an
ancillary proceeding, has sought or is seeking relief pursuant to
Section 13(b) of the FTC Act, 15 U.S.C. 53(b), and 8 months from the
date of issuance of the administrative complaint in all other
proceedings.
[74 FR 1820, Jan. 13, 2009]
Sec. 3.12 Answer.
(a) Time for filing. A respondent shall file an answer within 14
days after being served with the complaint.
(b) Content of answer. An answer shall conform to the following:
(1) If allegations of complaint are contested. An answer in which
the allegations of a complaint are contested shall contain:
(i) A concise statement of the facts constituting each ground of
defense;
(ii) Specific admission, denial, or explanation of each fact alleged
in the complaint or, if the respondent is without knowledge thereof, a
statement to that effect. Allegations of a complaint not thus answered
shall be deemed to have been admitted.
(2) If allegations of complaint are admitted. If the respondent
elects not to contest the allegations of fact set forth in the
complaint, the answer shall consist of a statement that the respondent
admits all of the material allegations to be true. Such an answer shall
constitute a waiver of hearings as to the facts alleged in the
complaint, and together with the complaint will provide a record basis
on which the Commission shall issue a final decision containing
appropriate findings and conclusions and a final order disposing of the
proceeding. In such an answer, the respondent may, however, reserve the
right to submit proposed findings of fact and conclusions of law under
Sec. 3.46.
(c) Default. Failure of the respondent to file an answer within the
time provided shall be deemed to constitute a waiver of the respondent's
right to appear and contest the allegations of the complaint and to
authorize the Commission, without further notice to the respondent, to
find the facts to be as alleged in the complaint and to enter a final
decision containing appropriate findings and conclusions and a final
order disposing of the proceeding.
[74 FR 1820, Jan. 13, 2009]
Sec. 3.13 Adjudicative hearing on issues arising in rulemaking proceedings
under the Fair Packaging and Labeling Act.
(a) Notice of hearing. When the Commission, acting under Sec.
1.26(g) of this chapter, determines that objections which have been
filed are sufficient to warrant the holding of an adjudicative hearing
in rulemaking proceedings under the Fair Packaging and Labeling Act, or
when the Commission otherwise determines that the holding of such a
hearing would be in the public interest, a hearing will be held before
an Administrative Law Judge for the purpose of receiving evidence
relevant and material to the issues raised by such objections or other
issues specified by the Commission. In such case the Commission will
publish a notice in the Federal Register containing a statement of:
(1) The provisions of the rule or order to which objections have
been filed;
(2) The issues raised by the objections or the issues on which the
Commission wishes to receive evidence;
(3) The time and place for hearing, the time to be at least thirty
(30) days after publication of the notice; and
(4) The time within which, and the conditions under which, any
person who petitioned for issuance, amendment, or repeal of the rule or
order, or any person who filed objections sufficient to warrant the
holding of the hearing, or any other interested person, may file notice
of intention to participate in the proceeding.
(b) Parties. Any person who petitions for issuance, amendment, or
repeal of a
[[Page 50]]
rule or order, and any person who files objections sufficient to warrant
the holding of a hearing, and who files timely notice of intention to
participate, shall be regarded as a party and shall be individually
served with any pleadings filed in the proceeding. Upon written
application to the Administrative Law Judge and a showing of good cause,
any interested person may be designated by the Administrative Law Judge
as a party.
[32 FR 8449, June 13, 1967, as amended at 40 FR 33969, Aug. 13, 1975]
Sec. 3.14 Intervention.
(a) Any individual, partnership, unincorporated association, or
corporation desiring to intervene in an adjudicative proceeding shall
make written application in the form of a motion setting forth the basis
therefor. Such application shall have attached to it a certificate
showing service thereof upon each party to the proceeding in accordance
with the provisions of Sec. 4.4(b) of this chapter. A similar
certificate shall be attached to the answer filed by any party, other
than counsel in support of the complaint, showing service of such answer
upon the applicant. The Administrative Law Judge or the Commission may
by order permit the intervention to such extent and upon such terms as
are provided by law or as otherwise may be deemed proper.
(b) In an adjudicative proceeding where the complaint states that
divestiture relief is contemplated, the labor organization[s]
representing employees of the respondent[s] may intervene as a matter of
right. Applications for such intervention are to be made in accordance
with the procedures set forth in paragraph (a) of this section and must
be filed within 60 days of the issuance of the complaint. Intervention
as a matter of right shall be limited to the issue of the effect, if
any, of proposed remedies on employment, with full rights of
participation in the proceeding concerning this issue. This paragraph
does not affect a labor organization's ability to petition for leave to
intervene pursuant to Sec. 3.14(a).
[32 FR 8449, June 13, 1967, as amended at 46 FR 20979, Apr. 8, 1981]
Sec. 3.15 Amendments and supplemental pleadings.
(a) Amendments--(1) By leave. If and whenever determination of a
controversy on the merits will be facilitated thereby, the
Administrative Law Judge may, upon such conditions as are necessary to
avoid prejudicing the public interest and the rights of the parties,
allow appropriate amendments to pleadings or notice of hearing:
Provided, however, That a motion for amendment of a complaint or notice
may be allowed by the Administrative Law Judge only if the amendment is
reasonably within the scope of the original complaint or notice. Motions
for other amendments of complaints or notices shall be certified to the
Commission.
(2) Conformance to evidence. When issues not raised by the pleadings
or notice of hearing but reasonably within the scope of the original
complaint or notice of hearing are tried by express or implied consent
of the parties, they shall be treated in all respects as if they had
been raised in the pleadings or notice of hearing; and such amendments
of the pleadings or notice as may be necessary to make them conform to
the evidence and to raise such issues shall be allowed at any time.
(b) Supplemental pleadings. The Administrative Law Judge may, upon
reasonable notice and such terms as are just, permit service of a
supplemental pleading or notice setting forth transactions, occurrences,
or events which have happened since the date of the pleading or notice
sought to be supplemented and which are relevant to any of the issues
involved.
Subpart C_Prehearing Procedures; Motions; Interlocutory Appeals; Summary
Decisions
Sec. 3.21 Prehearing procedures.
(a) Meeting of the parties before scheduling conference. As early as
practicable before the prehearing scheduling conference described in
paragraph (b) of this section, but in any event no later than 5 days
after the answer is filed by the last answering respondent, counsel for
the parties shall meet to discuss the nature and basis of their claims
[[Page 51]]
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
pursuant to Sec. 3.31A. The parties' agreement regarding electronically
stored information should include the scope of and a specified time
period for the exchange of such information that is subject to
Sec. Sec. 3.31(b)(2), 3.31(c), and 3.37(a), and the format for the
disclosure of such information, consistent with Sec. Sec. 3.31(c)(3)
and 3.37(c);
(2) A preliminary estimate of the time required for the evidentiary
hearing; and
(3) Any other matters to be determined at the scheduling conference.
(b) Scheduling conference. Not later than 10 days after the answer
is filed by the last answering respondent, the Administrative Law Judge
shall hold a scheduling conference. At the scheduling conference,
counsel for the parties shall be prepared to address:
(1) Their factual and legal theories;
(2) The current status of any pending motions;
(3) A schedule of proceedings that is consistent with the date of
the evidentiary hearing set by the Commission;
(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.
(c) Prehearing scheduling order. (1) Not later than 2 days after the
scheduling conference, the Administrative Law Judge 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 on
the date set by the Commission, including a plan of discovery that
addresses the deposition of fact witnesses, timing of expert discovery,
and the production of documents and electronically stored information,
dates for the submission and hearing of motions, the specific method by
which exhibits shall be numbered or otherwise identified and marked for
the record, and the time and place of a final prehearing conference. The
Commission may, upon a showing of good cause, order a later date for the
evidentiary hearing than the one specified in the complaint.
(2) The Administrative Law Judge may, upon a showing of good cause,
grant a motion to extend any deadline or time specified in this
scheduling order other than the date of the evidentiary hearing. Such
motion shall set forth the total period of extensions, if any,
previously obtained by the moving party. 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 an initial decision in a timely manner. The Administrative Law
Judge shall not rule on ex parte motions to extend the deadlines
specified in the scheduling order, or modify such deadlines solely upon
stipulation or agreement of counsel.
(d) Meeting prior to final prehearing conference. Counsel for the
parties shall meet before the final prehearing conference described in
paragraph (e) of this section to discuss the matters set forth therein
in preparation for the conference.
(e) Final prehearing conference. As close to the commencement of the
evidentiary hearing as practicable, the Administrative Law Judge shall
hold a final prehearing conference, which counsel shall attend in
person, to submit any proposed stipulations as to law, fact, or
admissibility of evidence, exchange exhibit and witness lists, and
designate testimony to be presented by
[[Page 52]]
deposition. At this conference, the Administrative Law Judge shall also
resolve any outstanding evidentiary matters or pending motions (except
motions for summary decision) and establish a final schedule for the
evidentiary hearing.
(f) Additional prehearing conferences and orders. The Administrative
Law Judge shall hold additional prehearing and status conferences or
enter additional orders as may be needed to ensure the just and
expeditious disposition of the proceeding and to avoid unnecessary cost.
Such conferences shall be held in person to the extent practicable.
(g) Public access and reporting. Prehearing conferences shall be
public unless the Administrative Law Judge determines in his or her
discretion that the conference (or any part thereof) shall be closed to
the public. The Administrative Law Judge shall have discretion to
determine whether a prehearing conference shall be stenographically
reported.
[74 FR 1820, Jan. 13, 2009]
Sec. 3.22 Motions.
(a) Presentation and disposition. Motions filed under Sec. 3.26 or
Sec. 4.17 shall be directly referred to and ruled on by the Commission.
Motions to dismiss filed before the evidentiary hearing, motions to
strike, and motions for summary decision shall be directly referred to
the Commission and shall be ruled on by the Commission unless the
Commission in its discretion refers the motion to the Administrative Law
Judge. Motions not referred to the Administrative Law Judge shall be
ruled on by the Commission within 45 days of the filing of the last-
filed answer or reply to the motion, if any, unless the Commission
determines there is good cause to extend the deadline. If the Commission
refers the motion to the Administrative Law Judge, it may set a deadline
for the ruling by the Administrative Law Judge, and a party may seek
review of the ruling of the Administrative Law Judge in accordance with
Sec. 3.23. During the time a proceeding is before an Administrative Law
Judge, all other motions shall be addressed to and decided by the
Administrative Law Judge, if within his or her authority. The
Administrative Law Judge shall certify to the Commission a motion to
disqualify filed under Sec. 3.42(g) if the Administrative Law Judge
does not disqualify himself or herself within 10 days. The
Administrative Law Judge shall certify to the Commission forthwith any
other motion upon which he or she has no authority to rule. Rulings
containing information granted in camera status pursuant to Sec. 3.45
shall be filed in accordance with Sec. 3.45(f). When a motion to
dismiss is made at the close of the evidence offered in support of the
complaint based upon an alleged failure to establish a prima facie case,
the Administrative Law Judge shall defer ruling thereon until
immediately after all evidence has been received and the hearing record
is closed. All written motions shall be filed with the Secretary of the
Commission, and all motions addressed to the Commission shall be in
writing. The moving party shall also provide a copy of its motion to the
Administrative Law Judge at the time the motion is filed with the
Secretary.
(b) Proceedings not stayed. A motion under consideration by the
Commission shall not stay proceedings before the Administrative Law
Judge unless the Commission so orders.
(c) Content. All written motions shall state the particular order,
ruling, or action desired and the grounds therefor. Memoranda in support
of, or in opposition to, any dispositive motion shall not exceed 10,000
words. Memoranda in support of, or in opposition to, any other motion
shall not exceed 2,500 words. Any reply in support of a dispositive
motion shall not exceed 5,000 words and any reply in support of any
other motion authorized by the Administrative Law Judge or the
Commission shall not exceed 1,250 words. These word count limitations
include headings, footnotes, and quotations, but do not include the
cover, table of contents, table of citations or authorities, glossaries,
statements with respect to oral argument, any addendums containing
statutes, rules or regulations, any certificates of counsel, proposed
form of order, and any attachment required by Sec. 3.45(e). Documents
that fail to comply with these provisions shall
[[Page 53]]
not be filed with the Secretary. Motions must also include the name,
address, telephone number, fax number, and e-mail address (if any) of
counsel and attach a draft order containing the proposed relief. If a
party includes in a motion 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 motion in accordance with the procedures set forth in
Sec. 3.45(e). The party shall mark its confidential filings with
brackets or similar conspicuous markings to indicate the material for
which it is claiming confidential treatment. The time period specified
by Sec. 3.22(d) within which an opposing party may file an answer will
begin to run upon service on that opposing party of the confidential
version of the motion.
(d) Responses. Within 10 days after service of any written motion,
or within such longer or shorter time as may be designated by the
Administrative Law Judge or the Commission, the opposing party shall
answer or shall be deemed to have consented to the granting of the
relief asked for in the motion. If an opposing party includes in an
answer 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 opposing party shall file 2 versions of the answer
in accordance with the procedures set forth in Sec. 3.45(e). The moving
party shall have no right to reply, except for dispositive motions or as
otherwise permitted by the Administrative Law Judge or the Commission.
Reply and surreply briefs to motions other than dispositive motions
shall be permitted only in circumstances where the parties wish to draw
the Administrative Law Judge's or the Commission's attention to recent
important developments or controlling authority that could not have been
raised earlier in the party's principal brief. The reply may be
conditionally filed with the motion seeking leave to reply. Any reply
with respect to a dispositive motion, or any permitted reply to any
other motion, shall be filed within 5 days after service of the last
answer to that motion.
(e) Rulings on motions. Unless otherwise provided by a relevant
rule, the Administrative Law Judge shall rule on motions within 14 days
after the filing of all motion papers authorized by this section. The
Commission, for good cause, may extend the time allowed for a ruling.
(f) Motions for extensions. The Administrative Law Judge or the
Commission may waive the requirements of this section as to motions for
extensions of time; however, the Administrative Law Judge shall have no
authority to rule on ex parte motions for extensions of time.
(g) Statement. Each motion to quash filed pursuant to Sec. 3.34(c),
each motion to compel or determine sufficiency pursuant to Sec.
3.38(a), each motion for sanctions pursuant to Sec. 3.38(b), and each
motion for enforcement pursuant to Sec. 3.38(c) shall be accompanied by
a signed statement representing that counsel for the moving party has
conferred with opposing counsel in an effort in good faith to resolve by
agreement the issues raised by the motion and has been unable to reach
such an agreement. If some of the matters in controversy have been
resolved by agreement, the statement shall specify the matters so
resolved and the matters remaining unresolved. The statement shall
recite the date, time, and place of each such conference between
counsel, and the names of all parties participating in each such
conference. Unless otherwise ordered by the Administrative Law Judge,
the statement required by this rule must be filed only with the first
motion concerning compliance with the discovery demand at issue.
[74 FR 1821, Jan. 13, 2009]
Sec. 3.23 Interlocutory appeals.
(a) Appeals without a determination by the Administrative Law Judge.
(1) The Commission may, in its discretion, entertain interlocutory
appeals where a ruling of the Administrative Law Judge:
(i) Requires the disclosure of records of the Commission or another
governmental agency or the appearance of an official or employee of the
Commission or another governmental agency pursuant to Sec. 3.36, if
such appeal is based
[[Page 54]]
solely on a claim of privilege: Provided, that the Administrative Law
Judge shall stay until further order of the Commission the effectiveness
of any ruling, whether or not appeal is sought, that requires the
disclosure of nonpublic Commission minutes, Commissioner circulations,
or similar documents prepared by the Commission, an individual
Commissioner, or the Office of the General Counsel;
(ii) Suspends an attorney from participation in a particular
proceeding pursuant to Sec. 3.42(d); or
(iii) Grants or denies an application for intervention pursuant to
the provisions of Sec. 3.14.
(2) Appeal from such rulings may be sought by filing with the
Commission an application for review within 3 days after notice of the
Administrative Law Judge's ruling. An answer may be filed within 3 days
after the application for review is filed. The Commission upon its own
motion may enter an order staying compliance with a discovery demand
authorized by the Administrative Law Judge pursuant to Sec. 3.36 or
placing the matter on the Commission's docket for review. Any order
placing the matter on the Commission's docket for review will set forth
the scope of the review and the issues which will be considered and will
make provision for the filing of memoranda of law if deemed appropriate
by the Commission.
(b) Other interlocutory appeals. A party may request the
Administrative Law Judge to determine that a ruling involves a
controlling question of law or policy as to which there is substantial
ground for difference of opinion and that an immediate appeal from the
ruling may materially advance the ultimate termination of the litigation
or subsequent review will be an inadequate remedy. An answer may be
filed within 3 days after the application for review is filed. The
Administrative Law Judge shall issue a ruling on the request for
determination within 3 days of the deadline for filing an answer. The
party may file an application for review with the Commission within 1
day after notice that the Administrative Law Judge has issued the
requested determination or 1 day after the deadline has passed for the
Administrative Law Judge to issue a ruling on the request for
determination and the Administrative Law Judge has not issued his or her
ruling.
(c) The application for review shall attach the ruling from which
appeal is being taken and any other portions of the record on which the
moving party relies. Neither the application for review nor the answer
shall exceed 2,500 words. This word count limitation includes headings,
footnotes, and quotations, but does not include the cover, table of
contents, table of citations or authorities, glossaries, statements with
respect to oral argument, any addendums containing statutes, rules or
regulations, any certificates of counsel, proposed form of order, and
any attachment required by Sec. 3.45(e). The Commission may order
additional briefing on the application.
(d) Ruling on application for review. Within 3 days after the
deadline for filing an answer, the Commission will determine whether to
grant the application for review. The denial of an application shall not
constitute a ruling on the merits of the ruling that is the subject of
the application.
(e) Proceedings not stayed. An application for review and appeal
hereunder shall not stay proceedings before the Administrative Law Judge
unless the Judge or the Commission shall so order.
[74 FR 1822, Jan. 13, 2009]
Sec. 3.24 Summary decisions.
(a) Procedure. (1) Any party may move, with or without supporting
affidavits, for a summary decision in the party's favor upon all or any
part of the issues being adjudicated. 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 genuine issue for trial. Counsel in
support of the complaint may so move at any time after 20 days following
issuance of the complaint and any respondent may so move at any time
after issuance of the complaint. Any such motion by any party, however,
shall be filed in accordance with the scheduling order issued pursuant
to Sec. 3.21, but in any case at least 30 days before the date fixed
for the hearing.
[[Page 55]]
(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 (or, when appropriate, the
Administrative Law Judge) determines that there is no genuine issue as
to any material fact regarding liability or relief, it shall issue a
final decision and order. In the event that the motion has been referred
to the Administrative Law Judge, such determination by the
Administrative Law Judge shall constitute his or her initial decision
and shall conform to the procedures set forth in Sec. 3.51(c). 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 (or, when
appropriate, the Administrative Law Judge) 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 (or, when
appropriate, the Administrative Law Judge) 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 (or, when appropriate, the Administrative Law
Judge) 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) Affidavits filed in bad faith. (1) Should it appear to the
satisfaction of the Commission (or, when appropriate, the Administrative
Law Judge) 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 (or, when appropriate,
the Administrative Law Judge) shall enter a determination to that effect
upon the record.
(2) If upon consideration of all relevant facts attending the
submission of any affidavit covered by paragraph (b)(1) of this section,
the Commission (or, when appropriate, the Administrative Law Judge)
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). If the
Administrative Law Judge to whom the Commission has referred a motion
for summary decision concludes, upon consideration of all the relevant
facts attending the submission of any affidavit covered by paragraph
(b)(1) of this section, that the matter should be certified to the
Commission for consideration of disciplinary action against an attorney,
including reprimand, suspension or disbarment, the Administrative Law
Judge shall certify the matter,
[[Page 56]]
with his or her findings and recommendations, to the Commission for its
consideration of disciplinary action in the manner provided by the
Commission's rules. If the Commission has addressed the motion directly,
it may consider such disciplinary action without a certification by the
Administrative Law Judge.
[74 FR 1822, Jan. 13, 2009]
Sec. 3.25 Consent agreement settlements.
(a) The Administrative Law Judge may, in his or her discretion and
without suspension of prehearing procedures, hold conferences for the
purpose of supervising negotiations for the settlement of the case, in
whole or in part, by way of consent agreement.
(b) A proposal to settle a matter in adjudication by consent shall
be submitted by way of a motion to withdraw the matter from adjudication
for the purpose of considering a proposed settlement. Such motion shall
be filed with the Secretary of the Commission, as provided in Sec. 4.2.
Any such motion shall be accompanied by a consent proposal; the proposal
itself, however, shall not be placed on the public record unless and
until it is accepted by the Commission as provided herein. If the
consent proposal affects only some of the respondents or resolves only
some of the charges in adjudication, the motion required by this
paragraph shall so state and shall specify the portions of the matter
that the proposal would resolve.
(c) If a consent agreement accompanying the motion has been executed
by one or more respondents and by complaint counsel, has been approved
by the appropriate Bureau Director, and conforms to Sec. 2.32, and the
matter is pending before an Administrative Law Judge, the Secretary
shall issue an order withdrawing from adjudication those portions of the
matter that the proposal would resolve and all proceedings before the
Administrative Law Judge shall be stayed with respect to such portions,
pending a determination by the Commission pursuant to paragraph (f) of
this section. If a consent proposal is not in the form of a consent
agreement executed by a respondent, does not otherwise conform to Sec.
2.32, or has not been executed by complaint counsel, and the matter is
pending before the Administrative Law Judge, he or she shall certify the
motion and proposal to the Commission upon a written determination that
there is a reasonable possibility of settlement. The certification may
be accompanied by a recommendation to the Commission as to the
disposition of the motion. The Administrative Law Judge shall make a
determination as to whether to certify the motion within 5 days after
the filing of the motion. The filing of a motion under paragraph (b) of
this section and certification thereof to the Commission shall not stay
proceedings before the Administrative Law Judge unless the Commission
shall so order. Upon certification of such motion, the Commission in its
discretion may issue an order withdrawing from adjudication those
portions of the matter that the proposal would resolve for the purpose
of considering the consent proposal.
(d) If the matter is no longer pending before the Administrative Law
Judge, the Commission in its discretion may, upon motion filed under
paragraph (b) of this section, issue an order withdrawing from
adjudication those portions of the matter that the proposal would
resolve for the purpose of considering the consent proposal. Such order
may issue whether or not the consent proposal is in the form of a
consent agreement executed by a respondent, otherwise conforms to Sec.
2.32, or has been executed by complaint counsel.
(e) The Commission will treat those portions of a matter withdrawn
from adjudication pursuant to paragraphs (c) or (d) of this section as
being in a nonadjudicative status. Portions not so withdrawn shall
remain in an adjudicative status.
(f) After some or all of the allegations in a matter have been
withdrawn from adjudication, the Commission may accept a proposed
consent agreement, reject it and return the matter or affected portions
thereof to adjudication for further proceedings, or take such other
action as it may deem appropriate. If an agreement is accepted, it will
be disposed of as provided in
[[Page 57]]
Sec. 2.34 of this chapter, except that if, following the public comment
period provided for in Sec. 2.34, the Commission decides, based on
comments received or otherwise, to withdraw its acceptance of the
agreement, it will so notify the parties and will return to adjudication
any portions of the matter previously withdrawn from adjudication for
further proceedings or take such other action it considers appropriate.
(g) This rule will not preclude the settlement of the case by
regular adjudicatory process through the filing of an admission answer
or submission of the case to the Administrative Law Judge on a
stipulation of facts and an agreed order.
[74 FR 20208, May 1, 2009]
Sec. 3.26 Motions following denial of preliminary injunctive relief.
(a) This section sets forth two procedures by which respondents may
obtain consideration of whether continuation of an adjudicative
proceeding is in the public interest after a court has denied
preliminary injunctive relief in a separate proceeding brought under
section 13(b) of the Federal Trade Commission Act, 15 U.S.C. 53(b), in
aid of the adjudication.
(b) A motion under this section shall be addressed to the Commission
and filed with the Secretary of the Commission. If the Commission has
filed a request for a stay, injunction, or other emergency relief
pending appeal to a court of appeals, the motion must be filed within 14
days after, but no earlier than, the court of appeals has denied the
Commission's request. In cases in which the Commission has not sought
relief from the court of appeals within 7 days following the denial of a
preliminary injunction, the motion must be filed within 14 days after
the district court has denied preliminary relief.
(c) Withdrawal from adjudication. If a court has denied preliminary
injunctive relief to the Commission in a section 13(b) proceeding
brought in aid of an adjudicative proceeding, respondents may move that
the proceeding be withdrawn from adjudication in order to consider
whether or not the public interest warrants further litigation. Such a
motion shall be filed jointly or separately by each of the respondents
in the adjudicative proceeding. Complaint counsel may file a response
within 14 days after such motion is filed. The matter will not be
withdrawn from adjudication unless the Commission so directs.
(d) Consideration on the record. Instead of a motion to withdraw the
matter from adjudication, any respondent or respondents may file a
motion under this paragraph to dismiss the administrative complaint on
the basis that the public interest does not warrant further litigation
after a court has denied preliminary injunctive relief to the
Commission. Complaint counsel may file a response within 14 days after
such motion is filed. The filing of a motion to dismiss shall not stay
the proceeding unless the Commission so directs.
(e) Form. Memoranda in support of or in opposition to such motions
shall not exceed 10,000 words. This word count limitation includes
headings, footnotes, and quotations, but does not include the cover,
table of contents, table of citations or authorities, glossaries,
statements with respect to oral argument, any addendums containing
statutes, rules or regulations, any certificates of counsel, proposed
form of order, and any attachment required by Sec. 3.45(e).
(f) In camera materials. If any filing includes materials that are
subject to confidentiality protections pursuant to an order entered in
either the proceeding under section 13(b) or in the proceeding under
this part, such materials shall be treated as in camera materials for
purposes of this paragraph and the party shall file 2 versions of the
document in accordance with the procedures set forth in Sec. 3.45(e).
The time within which complaint counsel may file an answer under this
paragraph will begin to run upon service of the in camera version of the
motion (including any supporting briefs and memoranda).
(g) Ruling by Commission. The Commission shall rule on any motion
authorized by this section within 30 days after the filing of the motion
and any memoranda in support of or in opposition to the motion.
[74 FR 1823, Jan. 13, 2009]
[[Page 58]]
Subpart D_Discovery; Compulsory Process
Sec. 3.31 General discovery provisions.
(a) Discovery methods. Parties may obtain discovery by one or more
of the following methods: Depositions upon oral examination or written
questions; written interrogatories; production of documents or things
for inspection and other purposes; and requests for admission. Except as
provided in the rules, or unless the Administrative Law Judge orders
otherwise, the frequency or sequence of these methods is not limited.
The parties shall, to the greatest extent practicable, conduct discovery
simultaneously; the fact that a party is conducting discovery shall not
operate to delay any other party's discovery. Unless all parties
expressly agree otherwise, no discovery shall take place before the
issuance of a prehearing scheduling order under Sec. 3.21(c), except
for the mandatory initial disclosures required by paragraph (b) of this
section.
(b) Mandatory initial disclosures. Complaint counsel and
respondent's counsel shall, within 5 days of receipt of a respondent's
answer to the complaint and without awaiting a discovery request,
provide to each other:
(1) The name, and, if known, the address and telephone number of
each individual likely to have discoverable information relevant to the
allegations of the Commission's complaint, to the proposed relief, or to
the defenses of the respondent, as set forth in Sec. 3.31(c)(1); and
(2) A copy of, or a description by category and location of, all
documents and electronically stored information including declarations,
transcripts of investigational hearings and depositions, and tangible
things in the possession, custody, or control of the Commission or
respondent(s) that are relevant to the allegations of the Commission's
complaint, to the proposed relief, or to the defenses of the respondent,
as set forth in Sec. 3.31(c)(1); unless such information or materials
are subject to the limitations in Sec. 3.31(c)(2), privileged as
defined in Sec. 3.31(c)(4), pertain to hearing preparation as defined
in Sec. 3.31(c)(5), pertain to experts as defined in Sec. 3.31A, or
are obtainable from some other source that is more convenient, less
burdensome, or less expensive. A party shall make its disclosures based
on the information then reasonably available to it and is not excused
from making its disclosures because it has not fully completed its
investigation.
(c) Scope of discovery. Unless otherwise limited by order of the
Administrative Law Judge or the Commission in accordance with these
rules, the scope of discovery under all the rules in this part is as
follows:
(1) In general. Parties may obtain discovery to the extent that it
may be reasonably expected to yield information relevant to the
allegations of the complaint, to the proposed relief, or to the defenses
of any respondent. Such information may include the existence,
description, nature, custody, condition, and location of any books,
documents, other tangible things, electronically stored information, and
the identity and location of persons having any knowledge of any
discoverable matter. Information may not be withheld from discovery on
grounds that the information will be inadmissible at the hearing if the
information sought appears reasonably calculated to lead to the
discovery of admissible evidence.
(2) Limitations. Complaint counsel need only search for materials
that were collected or reviewed in the course of the investigation of
the matter or prosecution of the case and that are in the possession,
custody or control of the Bureaus or Offices of the Commission that
investigated the matter, including the Bureau of Economics. The
Administrative Law Judge may authorize for good cause additional
discovery of materials in the possession, custody, or control of those
Bureaus or Offices, or authorize other discovery pursuant to Sec. 3.36.
Neither complaint counsel, respondent, nor a third party receiving a
discovery request under these rules is required to search for materials
generated and transmitted between an entity's counsel (including
counsel's legal staff or in-house counsel) and not shared with anyone
else, or between complaint counsel and non-testifying Commission
employees, unless the Administrative Law Judge determines there is good
[[Page 59]]
cause to provide such materials. The frequency or extent of use of the
discovery methods otherwise permitted under these rules shall be limited
by the Administrative Law Judge if he or she determines that:
(i) The discovery sought from a party or third party is unreasonably
cumulative or duplicative, or is obtainable from some other source that
is more convenient, less burdensome, or less expensive;
(ii) The party seeking discovery has had ample opportunity by
discovery in the action to obtain the information sought; or
(iii) The burden and expense of the proposed discovery on a party or
third party outweigh its likely benefit.
(3) Electronically stored information. A party or third party need
not provide discovery of electronically stored information from sources
that the party or third party identifies as not reasonably accessible
because of undue burden or cost. On a motion to compel discovery, the
party or third party from whom discovery is sought must show that the
information is not reasonably accessible because of undue burden or
cost. If that showing is made, the Administrative Law Judge may
nonetheless order discovery if the requesting party shows good cause,
considering the limitations of paragraph (c)(2). The Administrative Law
Judge may specify conditions for the discovery.
(4) Privilege. Discovery shall be denied or limited in order to
preserve the privilege of a witness, person, or governmental agency as
governed by the Constitution, any applicable act of Congress, or the
principles of the common law as they may be interpreted by the
Commission in the light of reason and experience.
(5) Hearing preparations: Materials. Subject to the provisions of
Sec. 3.31A, a party may obtain discovery of documents and tangible
things otherwise discoverable under paragraph (c)(1) of this section and
prepared in anticipation of litigation or for hearing by or for another
party or by or for that other party's representative (including the
party's attorney, consultant, or agent) only upon a showing that the
party seeking discovery has substantial need of the materials in the
preparation of its case and that the party is unable without undue
hardship to obtain the substantial equivalent of the materials by other
means. In ordering discovery of such materials when the required showing
has been made, the Administrative Law Judge shall protect against
disclosure of the mental impressions, conclusions, opinions, or legal
theories of an attorney or other representative of a party.
(d) Protective orders; orders to preserve evidence. In order to
protect the parties and third parties against improper use and
disclosure of confidential information, the Administrative Law Judge
shall issue a protective order as set forth in the appendix to this
section. The Administrative Law Judge may also deny discovery or make
any other order which justice requires to protect a party or other
person from annoyance, embarrassment, oppression, or undue burden or
expense, or to prevent undue delay in the proceeding. Such an order may
also be issued to preserve evidence upon a showing that there is
substantial reason to believe that such evidence would not otherwise be
available for presentation at the hearing.
(e) Supplementation of disclosures and responses. A party who has
made a mandatory initial disclosure under Sec. 3.31(b) or responded to
a request for discovery with a disclosure or response is under a duty to
supplement or correct the disclosure or response to include information
thereafter acquired if ordered by the Administrative Law Judge or in the
following circumstances:
(1) A party is under a duty to supplement at appropriate intervals
its mandatory initial disclosures under Sec. 3.31(b) if the party
learns that in some material respect the information disclosed is
incomplete or incorrect and if the additional or corrective information
has not otherwise been made known to the other parties during the
discovery process or in writing.
(2) A party is under a duty to amend in a timely manner a prior
response to an interrogatory, request for production, or request for
admission if the party learns that the response is in some material
respect incomplete or incorrect.
[[Page 60]]
(f) Stipulations. When approved by the Administrative Law Judge, the
parties may by written stipulation (1) provide that depositions may be
taken before any person, at any time or place, upon any notice, and in
any manner and when so taken may be used like other depositions, and (2)
modify the procedures provided by these rules for other methods of
discovery.
(g) Disclosure of privileged or protected information or
communications; scope of waiver; obligations of receiving party. (1)(i)
The disclosure of privileged or protected information or communications
during a part 3 proceeding or during a Commission precomplaint
investigation shall not operate as a waiver if:
(A) The disclosure is inadvertent;
(B) The holder of the privilege or protection took reasonable steps
to prevent disclosure; and
(C) The holder promptly took reasonable steps to rectify the error,
including notifying any party that received the information or
communication of the claim and the basis for it.
(ii) After being notified, the receiving party must promptly return,
sequester, or destroy the specified information and any copies it has;
must not use or disclose the information until the claim is resolved;
must take reasonable steps to retrieve the information if the party
disclosed it before being notified; and may promptly present the
information to the Administrative Law Judge under seal for a
determination of the claim. The producing party must preserve the
information until the claim is resolved.
(2) The disclosure of privileged or protected information or
communications during a part 3 proceeding or during a Commission
precomplaint investigation shall waive the privilege or protection as to
undisclosed information or communications only if:
(i) The waiver is intentional;
(ii) The disclosed and undisclosed information or communications
concern the same subject matter; and
(iii) They ought in fairness to be considered together.
(h) Restriction on filings. Unless otherwise ordered by the
Administrative Law Judge in his or her discretion, mandatory initial and
supplemental disclosures, interrogatories, depositions, requests for
documents, requests for admissions, and answers and responses thereto
shall be served upon other parties but shall not be filed with the
Office of the Secretary, the Administrative Law Judge, or otherwise
provided to the Commission, except to support or oppose a motion or to
offer as evidence.
Appendix A to Sec. 3.31: Standard Protective Order.
For the purpose of protecting the interests of the parties and third
parties in the above-captioned matter against improper use and
disclosure of confidential information submitted or produced in
connection with this matter:
IT IS HEREBY ORDERED THAT this Protective Order Governing
Confidential Material (``Protective Order'') shall govern the handling
of all Discovery Material, as hereafter defined.
1. As used in this Order, ``confidential material'' shall refer to
any document or portion thereof that contains privileged information,
competitively sensitive information, or sensitive personal information.
``Sensitive personal information'' shall refer to, but shall not be
limited to, an individual's Social Security number, taxpayer
identification number, financial account number, credit card or debit
card number, driver's license number, state-issued identification
number, passport number, date of birth (other than year), and any
sensitive health information identifiable by individual, such as an
individual's medical records. ``Document'' shall refer to any
discoverable writing, recording, transcript of oral testimony, or
electronically stored information in the possession of a party or a
third party. ``Commission'' shall refer to the Federal Trade Commission
(``FTC''), or any of its employees, agents, attorneys, and all other
persons acting on its behalf, excluding persons retained as consultants
or experts for purposes of this proceeding.
2. Any document or portion thereof submitted by a respondent or a
third party during a Federal Trade Commission investigation or during
the course of this proceeding that is entitled to confidentiality under
the Federal Trade Commission Act, or any other federal statute or
regulation, or under any federal court or Commission precedent
interpreting such statute or regulation, as well as any information that
discloses the substance of the contents of any confidential materials
derived from a document subject to this Order, shall be treated as
confidential material for purposes of this Order. The identity of a
third party submitting such confidential material shall also be treated
as confidential
[[Page 61]]
material for the purposes of this Order where the submitter has
requested such confidential treatment.
3. The parties and any third parties, in complying with informal
discovery requests, disclosure requirements, or discovery demands in
this proceeding may designate any responsive document or portion thereof
as confidential material, including documents obtained by them from
third parties pursuant to discovery or as otherwise obtained.
4. The parties, in conducting discovery from third parties, shall
provide to each third party a copy of this Order so as to inform each
such third party of his, her, or its rights herein.
5. A designation of confidentiality shall constitute a
representation in good faith and after careful determination that the
material is not reasonably believed to be already in the public domain
and that counsel believes the material so designated constitutes
confidential material as defined in Paragraph 1 of this Order.
6. Material may be designated as confidential by placing on or
affixing to the document containing such material (in such manner as
will not interfere with the legibility thereof), or if an entire folder
or box of documents is confidential by placing or affixing to that
folder or box, the designation ``CONFIDENTIAL--FTC Docket No. XXXX'' or
any other appropriate notice that identifies this proceeding, together
with an indication of the portion or portions of the document considered
to be confidential material. Confidential information contained in
electronic documents may also be designated as confidential by placing
the designation ``CONFIDENTIAL--FTC Docket No. XXXX'' or any other
appropriate notice that identifies this proceeding, on the face of the
CD or DVD or other medium on which the document is produced. Masked or
otherwise redacted copies of documents may be produced where the
portions masked or redacted contain privileged matter, provided that the
copy produced shall indicate at the appropriate point that portions have
been masked or redacted and the reasons therefor.
7. Confidential material shall be disclosed only to: (a) the
Administrative Law Judge presiding over this proceeding, personnel
assisting the Administrative Law Judge, the Commission and its
employees, and personnel retained by the Commission as experts or
consultants for this proceeding; (b) judges and other court personnel of
any court having jurisdiction over any appellate proceedings involving
this matter; (c) outside counsel of record for any respondent, their
associated attorneys and other employees of their law firm(s), provided
they are not employees of a respondent; (d) anyone retained to assist
outside counsel in the preparation or hearing of this proceeding
including consultants, provided they are not affiliated in any way with
a respondent and have signed an agreement to abide by the terms of the
protective order; and (e) any witness or deponent who may have authored
or received the information in question.
8. Disclosure of confidential material to any person described in
Paragraph 7 of this Order shall be only for the purposes of the
preparation and hearing of this proceeding, or any appeal therefrom, and
for no other purpose whatsoever, provided, however, that the Commission
may, subject to taking appropriate steps to preserve the confidentiality
of such material, use or disclose confidential material as provided by
its Rules of Practice; sections 6(f) and 21 of the Federal Trade
Commission Act; or any other legal obligation imposed upon the
Commission.
9. In the event that any confidential material is contained in any
pleading, motion, exhibit or other paper filed or to be filed with the
Secretary of the Commission, the Secretary shall be so informed by the
Party filing such papers, and such papers shall be filed in camera. To
the extent that such material was originally submitted by a third party,
the party including the materials in its papers shall immediately notify
the submitter of such inclusion. Confidential material contained in the
papers shall continue to have in camera treatment until further order of
the Administrative Law Judge, provided, however, that such papers may be
furnished to persons or entities who may receive confidential material
pursuant to Paragraphs 7 or 8. Upon or after filing any paper containing
confidential material, the filing party shall file on the public record
a duplicate copy of the paper that does not reveal confidential
material. Further, if the protection for any such material expires, a
party may file on the public record a duplicate copy which also contains
the formerly protected material.
10. If counsel plans to introduce into evidence at the hearing any
document or transcript containing confidential material produced by
another party or by a third party, they shall provide advance notice to
the other party or third party for purposes of allowing that party to
seek an order that the document or transcript be granted in camera
treatment. If that party wishes in camera treatment for the document or
transcript, the party shall file an appropriate motion with the
Administrative Law Judge within 5 days after it receives such notice.
Except where such an order is granted, all documents and transcripts
shall be part of the public record. Where in camera treatment is
granted, a duplicate copy of such document or transcript with the
confidential material deleted therefrom may be placed on the public
record.
11. If any party receives a discovery request in any investigation
or in any other proceeding or matter that may require the
[[Page 62]]
disclosure of confidential material submitted by another party or third
party, the recipient of the discovery request shall promptly notify the
submitter of receipt of such request. Unless a shorter time is mandated
by an order of a court, such notification shall be in writing and be
received by the submitter at least 10 business days before production,
and shall include a copy of this Protective Order and a cover letter
that will apprise the submitter of its rights hereunder. Nothing herein
shall be construed as requiring the recipient of the discovery request
or anyone else covered by this Order to challenge or appeal any order
requiring production of confidential material, to subject itself to any
penalties for non-compliance with any such order, or to seek any relief
from the Administrative Law Judge or the Commission. The recipient shall
not oppose the submitter's efforts to challenge the disclosure of
confidential material. In addition, nothing herein shall limit the
applicability of Rule 4.11(e) of the Commission's Rules of Practice, 16
CFR 4.11(e), to discovery requests in another proceeding that are
directed to the Commission.
12. At the time that any consultant or other person retained to
assist counsel in the preparation of this action concludes participation
in the action, such person shall return to counsel all copies of
documents or portions thereof designated confidential that are in the
possession of such person, together with all notes, memoranda or other
papers containing confidential information. At the conclusion of this
proceeding, including the exhaustion of judicial review, the parties
shall return documents obtained in this action to their submitters,
provided, however, that the Commission's obligation to return documents
shall be governed by the provisions of Rule 4.12 of the Rules of
Practice, 16 CFR 4.12.
13. The provisions of this Protective Order, insofar as they
restrict the communication and use of confidential discovery material,
shall, without written permission of the submitter or further order of
the Commission, continue to be binding after the conclusion of this
proceeding.
[74 FR 1824, Jan. 13, 2009, as amended at 74 FR 20309, May 1, 2009; 76
FR 52251, 52252, Aug. 22, 2011]
Sec. 3.31A Expert discovery.
(a) The parties shall serve each other with a list of experts they
intend to call as witnesses at the hearing not later than 1 day after
the close of fact discovery, meaning the close of discovery except for
depositions and other discovery permitted under Sec. 3.24(a)(4), and
discovery for purposes of authenticity and admissibility of exhibits.
Complaint counsel shall serve the other parties with a report prepared
by each of its expert witnesses not later than 14 days after the close
of fact discovery. Each respondent shall serve each other party with a
report prepared by each of its expert witnesses not later than 14 days
after the deadline for service of complaint counsel's expert reports.
Complaint counsel shall serve respondents with a list of any rebuttal
expert witnesses and a rebuttal report prepared by each such witness not
later than 10 days after the deadline for service of respondent's expert
reports. Aside from any information required by paragraph (c), a
rebuttal report shall be limited to rebuttal of matters set forth in a
respondent's expert reports. If material outside the scope of fair
rebuttal is presented, a respondent may file a motion not later than 5
days after the deadline for service of complaint counsel's rebuttal
reports, seeking appropriate relief with the Administrative Law Judge,
including striking all or part of the report, leave to submit a
surrebuttal report by respondent's experts, or leave to call a
surrebuttal witness and to submit a surrebuttal report by that witness.
(b) No party may call an expert witness at the hearing unless he or
she has been listed and has provided reports as required by this
section. Each side will be limited to calling at the evidentiary hearing
5 expert witnesses, including any rebuttal or surrebuttal expert
witnesses. A party may file a motion seeking leave to call additional
expert witnesses due to extraordinary circumstances.
(c) Each report shall be signed by the expert and contain a complete
statement of all opinions to be expressed and the basis and reasons
therefor; the data, materials, or other information considered by the
witness in forming the opinions; any exhibits to be used as a summary of
or support for the opinions; the qualifications of the witness,
including a list of all publications authored by the witness within the
preceding 10 years; the compensation to be paid for the study and
testimony; and a listing of any other cases in which the witness has
testified as an expert at trial or by deposition within the preceding 4
years. A rebuttal or surrebuttal report need not include any
[[Page 63]]
information already included in the initial report of the witness.
(d) A party may depose any person who has been identified as an
expert whose opinions may be presented at trial. Unless otherwise
ordered by the Administrative Law Judge, a deposition of any expert
witness shall be conducted after the disclosure of a report prepared by
the witness in accordance with paragraph (a) of this section.
Depositions of expert witnesses shall be completed not later than 65
days after the close of fact discovery. Upon motion, the Administrative
Law Judge may order further discovery by other means, subject to such
restrictions as to scope as the Administrative Law Judge may deem
appropriate.
(e) A party may not discover facts known or opinions held by an
expert who has been retained or specifically employed by another party
in anticipation of litigation or preparation for hearing and who is not
listed as a witness for the evidentiary hearing. A party may not
discover drafts of any report required by this section, regardless of
the form in which the draft is recorded, or any communications between
another party's attorney and any of that other party's testifying
experts, regardless of the form of the communications, except to the
extent that the communications:
(1) Relate to compensation for the expert's study or testimony;
(2) Identify facts or data that the other party's attorney provided
and that the expert considered in forming the opinions to be expressed;
or
(3) Identify assumptions that the other party's attorney provided
and that the expert relied on in forming the opinions to be expressed.
(f) The Administrative Law Judge may, upon a finding of good cause,
alter the pre-hearing schedule set forth in this section; provided,
however, that no such alteration shall affect the date of the
evidentiary hearing noticed in the complaint.
[74 FR 1826, Jan. 13, 2009, as amended at 76 FR 52252, Aug. 22, 2011]
Sec. 3.32 Admissions.
(a) At any time after thirty (30) days after issuance of complaint,
or after publication of notice of an adjudicative hearing in a
rulemaking proceeding under Sec. 3.13, any party may serve on any other
party a written request for admission of the truth of any matters
relevant to the pending proceeding set forth in the request that relate
to statements or opinions of fact or of the application of law to fact,
including the genuineness of any documents described in the request.
Copies of documents shall be served with the request unless they have
been or are otherwise furnished or are known to be, and in the request
are stated as being, in the possession of the other party. Each matter
of which an admission is requested shall be separately set forth. A copy
of the request shall be filed with the Secretary.
(b) The matter is admitted unless, within ten (10) days after
service of the request, or within such shorter or longer time as the
Administrative Law Judge may allow, the party to whom the request is
directed serves upon the party requesting the admission, with a copy
filed with the Secretary, a sworn written answer or objection addressed
to the matter. If objection is made, the reasons therefor shall be
stated. The answer shall specifically deny the matter or set forth in
detail the reasons why the answering party cannot truthfully admit or
deny the matter. A denial shall fairly meet the substance of the
requested admission, and when good faith requires that a party qualify
its answer or deny only a part of the matter of which an admission is
requested, the party shall specify so much of it as is true and qualify
or deny the remainder. An answering party may not give lack of
information or knowledge as a reason for failure to admit or deny unless
the party states that it has made reasonable inquiry and that the
information known to or readily obtainable by the party is insufficient
to enable it to admit or deny. A party who considers that a matter of
which an admission has been requested presents a genuine issue for trial
may not, on that ground alone, object to the request; the party may deny
the matter or set fourth reasons why the party cannot admit or deny it.
(c) Any matter admitted under this rule is conclusively established
unless
[[Page 64]]
the Administrative Law Judge on motion permits withdrawal or amendment
of the admission. The Administrative Law Judge may permit withdrawal or
amendment when the presentation of the merits of the proceeding will be
subserved thereby and the party who obtained the admission fails to
satisfy the Administrative Law Judge that withdrawal or amendment will
prejudice him in maintaining his action or defense on the merits. Any
admission made by a party under this rule is for the purpose of the
pending proceeding only and is not an admission by him for any other
purpose nor may it be used against him in any other proceeding.
[43 FR 56865, Dec. 4, 1978, as amended at 50 FR 53305, Dec. 31, 1985]
Sec. 3.33 Depositions.
(a) In general. Any party may take a deposition of any named person
or of a person or persons described with reasonable particularity,
provided that such deposition is reasonably expected to yield
information within the scope of discovery under Sec. 3.31(c)(1) and
subject to the requirements in Sec. 3.36. Such party may, by motion,
obtain from the Administrative Law Judge an order to preserve relevant
evidence upon a showing that there is substantial reason to believe that
such evidence would not otherwise be available for presentation at the
hearing. Depositions may be taken before any person having power to
administer oaths, either under the law of the United States or of the
state or other place in which the deposition is taken, who may be
designated by the party seeking the deposition, provided that such
person shall have no interest in the outcome of the proceeding. The
party seeking the deposition shall serve upon each person whose
deposition is sought and upon each party to the proceeding reasonable
notice in writing of the time and place at which it will be taken, and
the name and address of each person or persons to be examined, if known,
and if the name is not known, a description sufficient to identify them.
The parties may stipulate in writing or the Administrative Law Judge may
upon motion order that a deposition be taken by telephone or other
remote electronic means. A deposition taken by such means is deemed
taken at the place where the deponent is to answer questions.
(b) The Administrative Law Judge may rule on motion by a party that
a deposition shall not be taken upon a determination that such
deposition would not be reasonably expected to meet the scope of
discovery set forth under Sec. 3.31(c), or that the value of the
deposition would be outweighed by the considerations set forth under
Sec. 3.43(b). The fact that a witness testifies at an investigative
hearing does not preclude the deposition of that witness.
(c)(1) Notice to corporation or other organization. A party may name
as the deponent a public or private corporation, partnership,
association, governmental agency other than the Federal Trade
Commission, or any bureau or regional office of the Federal Trade
Commission, and describe with reasonable particularity the matters on
which examination is requested. The organization so named shall
designate one or more officers, directors, or managing agents, or other
persons who consent to testify on its behalf, and may set forth, for
each person designated, the matters on which he or she will testify. A
subpoena shall advise a non-party organization of its duty to make such
a designation. The persons so designated shall testify as to matters
known or reasonably available to the organization. This subsection does
not preclude taking a deposition by any other procedure authorized in
these rules.
(2) Notice to Commission. Except as provided in Sec. 3.31(h),
notices of depositions shall not be filed with the Office of the
Secretary, the Administrative Law Judge, or otherwise provided to the
Commission.
(d) Taking of deposition. Each deponent shall be duly sworn, and any
party shall have the right to question him or her. Objections to
questions or to evidence presented shall be in short form, stating the
grounds of objections relied upon. The questions propounded and the
answers thereto, together with all objections made, shall be recorded
and certified by the officer. Thereafter, upon payment of the charges
therefor, the officer shall furnish a copy of the
[[Page 65]]
deposition to the deponent and to any party.
(e) Depositions upon written questions. A party desiring to take a
deposition upon written questions shall serve them upon every other
party with a notice stating:
(1) The name and address of the person who is to answer them, and
(2) The name or descriptive title and address of the officer before
whom the deposition is to be taken.
A deposition upon written questions may be taken of a public or
private corporation, partnership, association, governmental agency other
than the Federal Trade Commission, or any bureau or regional office of
the Federal Trade Commission in accordance with the provisions of Sec.
3.33(c). Within 30 days after the notice and written questions are
served, any other party may serve cross questions upon all other
parties. Within 10 days after being served with cross questions, the
party taking the deposition may serve redirect questions upon all other
parties. Within 10 days after being served with redirect questions, any
other party may serve recross questions upon all other parties. The
content of any question shall not be disclosed to the deponent prior to
the taking of the deposition. A copy of the notice and copies of all
questions served shall be delivered by the party taking the deposition
to the officer designated in the notice, who shall proceed promptly to
take the testimony of the deponent in response to the questions and to
prepare, certify, and file or mail the deposition, attaching thereto the
copy of the notice and the questions received by him or her. When the
deposition is filed the party taking it shall promptly give notice
thereof to all other parties.
(f) Correction of deposition. A deposition may be corrected, as to
form or substance, in the manner provided by Sec. 3.44(b). Any such
deposition shall, in addition to the other required procedures, be read
to or by the deponent and signed by him or her, unless the parties by
stipulation waive the signing or the deponent is unavailable or cannot
be found or refuses to sign. If the deposition is not signed by the
deponent within 30 days of its submission or attempted submission, the
officer shall sign it and certify that the signing has been waived or
that the deponent is unavailable or that the deponent has refused to
sign, as the case may be, together with the reason for the refusal to
sign, if any has been given. The deposition may then be used as though
signed unless, on a motion to suppress under Sec. 3.33(g)(2)(iv), the
Administrative Law Judge determines that the reasons given for the
refusal to sign require rejection of the deposition in whole or in part.
In addition to and not in lieu of the procedure for formal correction of
the deposition, the deponent may enter in the record at the time of
signing a list of objections to the transcription of his or her remarks,
stating with specificity the alleged errors in the transcript.
(g) Objections; errors and irregularities--(1) Objections to
admissibility. Subject to the provisions of paragraph (g)(2) of this
section, objection may be made at the hearing to receiving in evidence
any deposition or part thereof for any reason which would require the
exclusion of the evidence if the witness were then present and
testifying.
(2) Effect of errors and irregularities in depositions--(i) As to
notice. All errors and irregularities in the notice for taking a
deposition are waived unless written objection is promptly served upon
the party giving the notice.
(ii) As to disqualification of officer. Objection to taking a
deposition because of disqualification of the officer before whom it is
to be taken is waived unless made before the taking of the deposition
begins or as soon thereafter as the disqualification becomes known or
could be discovered with reasonable diligence.
(iii) As to taking of deposition. (A) Objections to the competency
of a witness or to the competency, relevancy, or materiality of
testimony are not waived by failure to make them before or during the
taking of the deposition, unless the ground of the objection is one
which might have been obviated or removed if presented at that time.
(B) Errors and irregularities occurring at the oral examination in
the manner of taking the deposition, in the form of the questions or
answers, in the oath or affirmation, or in the conduct of parties, and
errors of any kind
[[Page 66]]
which might be obviated, removed, or cured if promptly presented, are
waived unless seasonable objection thereto is made at the taking of the
deposition.
(C) Objections to the form of written questions are waived unless
served in writing upon all parties within the time allowed for serving
the succeeding cross or other questions and within 5 days after service
of the last questions authorized.
(iv) As to completion and return of deposition. Errors and
irregularities in the manner in which the testimony is transcribed or
the deposition is prepared, signed, certified, endorsed, or otherwise
dealt with by the officer are waived unless a motion to suppress the
deposition or some part thereof is made with reasonable promptness after
such defect is or with due diligence might have been ascertained.
[74 FR 1827, Jan. 13, 2009]
Sec. 3.34 Subpoenas.
(a) Subpoenas ad testificandum. Counsel for a party may sign and
issue a subpoena, on a form provided by the Secretary, requiring a
person to appear and give testimony at the taking of a deposition to a
party requesting such subpoena or to attend and give testimony at an
adjudicative hearing.
(b) Subpoenas duces tecum; subpoenas to permit inspection of
premises. Counsel for a party may sign and issue a subpoena, on a form
provided by the Secretary, commanding a person to produce and permit
inspection and copying of designated books, documents, or tangible
things, or commanding a person to permit inspection of premises, at a
time and place therein specified. The subpoena shall specify with
reasonable particularity the material to be produced. The person
commanded by the subpoena need not appear in person at the place of
production or inspection unless commanded to appear for a deposition or
hearing pursuant to paragraph (a) of this section. As used herein, the
term ``documents'' includes written materials, electronically stored
information, and tangible things. A subpoena duces tecum may be used by
any party for purposes of discovery, for obtaining documents for use in
evidence, or for both purposes, and shall specify with reasonable
particularity the materials to be produced.
(c) Motions to quash; limitation on subpoenas. Any motion by the
subject of a subpoena to limit or quash the subpoena shall be filed
within the earlier of 10 days after service thereof or the time for
compliance therewith. Such motions shall set forth all assertions of
privilege or other factual and legal objections to the subpoena,
including all appropriate arguments, affidavits and other supporting
documentation, and shall include the statement required by Sec.
3.22(g). Nothing in paragraphs (a) and (b) of this section authorizes
the issuance of subpoenas except in accordance with Sec. Sec.
3.31(c)(2) and 3.36.
[74 FR 1828, Jan. 13, 2009]
Sec. 3.35 Interrogatories to parties.
(a) Availability; procedures for use. (1) Any party may serve upon
any other party written interrogatories, not exceeding 25 in number,
including all discrete subparts, to be answered by the party served or,
if the party served is a public or private corporation, partnership,
association or governmental agency, by any officer or agent, who shall
furnish such information as is available to the party. For this purpose,
information shall not be deemed to be available insofar as it is in the
possession of the Commissioners, the General Counsel, the office of
Administrative Law Judges, or the Secretary in his or her capacity as
custodian or recorder of any such information, or their respective
staffs.
(2) Each interrogatory shall be answered separately and fully in
writing under oath, unless it is objected to on grounds not raised and
ruled on in connection with the authorization, in which event the
reasons for objection shall be stated in lieu of an answer. The answers
are to be signed by the person making them, and the objections signed by
the attorney making them. The party upon whom the interrogatories have
been served shall serve a copy of the answers, and objections, if any,
within 30 days after the service of the interrogatories. The
Administrative Law Judge may allow a shorter or longer time.
(3) Except as provided in Sec. 3.31(h), interrogatories shall not
be filed with the
[[Page 67]]
Office of the Secretary, the Administrative Law Judge, or otherwise
provided to the Commission.
(b) Scope; use at hearing. (1) Interrogatories may relate to any
matters that can be inquired into under Sec. 3.31(c)(1), and the
answers may be used to the extent permitted by the rules of evidence.
(2) An interrogatory otherwise proper is not necessarily
objectionable merely because an answer to the interrogatory involves an
opinion or contention that relates to fact or the application of law to
fact, but such an interrogatory need not be answered until after
designated discovery has been completed, but in no case later than 3
days before the final pretrial conference.
(c) Option to produce records. Where the answer to an interrogatory
may be derived or ascertained from the records of the party upon whom
the interrogatory has been served or from an examination, audit, or
inspection of such records, or from a compilation, abstract, or summary
based thereon, and the burden of deriving or ascertaining the answer is
substantially the same for the party serving the interrogatory as for
the party served, it is a sufficient answer to such interrogatory to
specify the records from which the answer may be derived or ascertained
and to afford to the party serving the interrogatory reasonable
opportunity to examine, audit or inspect such records and to make
copies, compilations, abstracts or summaries. The specification shall
include sufficient detail to permit the interrogating party to identify
readily the individual documents from which the answer may be
ascertained.
[74 FR 1828, Jan. 13, 2009]
Sec. 3.36 Applications for subpoenas for records of or appearances by certain
officials or employees of the Commission or officials or employees of
governmental agencies other than the Commission, and subpoenas to be served in
a foreign country.
(a) Form. An application for issuance of a subpoena for the
production of documents, as defined in Sec. 3.34(b), or for the
issuance of a request requiring the production of or access to
documents, other tangible things, or electronically stored information
for the purposes described in Sec. 3.37(a), in the possession, custody,
or control of the Commissioners, the General Counsel, any Bureau or
Office not involved in the matter, the office of Administrative Law
Judges, or the Secretary in his or her capacity as custodian or recorder
of any such information, or their respective staffs, or of a
governmental agency other than the Commission or the officials or
employees of such other agency, or for the issuance of a subpoena
requiring the appearance of a Commissioner, the General Counsel, an
official of any Bureau or Office not involved in the matter, an
Administrative Law Judge, or the Secretary in his or her capacity as
custodian or recorder of any such information, or their respective
staffs, or of an official or employee of another governmental agency, or
for the issuance of a subpoena to be served in a foreign country, shall
be made in the form of a written motion filed in accordance with the
provisions of Sec. 3.22(a). No application for records pursuant to
Sec. 4.11 of this chapter or the Freedom of Information Act may be
filed with the Administrative Law Judge.
(b) Content. The motion shall make a showing that:
(1) The material sought is reasonable in scope;
(2) If for purposes of discovery, the material falls within the
limits of discovery under Sec. 3.31(c)(1), or, if for an adjudicative
hearing, the material is reasonably relevant;
(3) If for purposes of discovery, the information or material sought
cannot reasonably be obtained by other means or, if for purposes of
compelling a witness to appear at the evidentiary hearing, the movant
has a compelling need for the testimony;
(4) With respect to subpoenas to be served in a foreign country,
that the party seeking discovery or testimony has a good faith belief
that the discovery requested would be permitted by treaty, law, custom,
or practice in the country from which the discovery or testimony is
sought and that any additional procedural requirements have been or will
be met before the subpoena is served; and
[[Page 68]]
(5) If the subpoena requires access to documents or other tangible
things, it meets the requirements of Sec. 3.37.
(c) Execution. If an Administrative Law Judge issues an order
authorizing a subpoena pursuant to this section, the moving party may
forward to the Secretary a request for the authorized subpoena, with a
copy of the authorizing order attached. Each such subpoena shall be
signed by the Secretary; shall have attached to it a copy of the
authorizing order; and shall be served by the moving party only in
conjunction with a copy of the authorizing order.
[74 FR 1828, Jan. 13, 2009]
Sec. 3.37 Production of documents, electronically stored information, and any
tangible things; access for inspection and other purposes.
(a) Availability; procedures for use. Any party may serve on another
party a request: to produce and permit the party making the request, or
someone acting on the party's behalf, to inspect and copy any designated
documents or electronically stored information, as defined in Sec.
3.34(b), or to inspect and copy, test, or sample any tangible things
which are within the scope of Sec. 3.31(c)(1) and in the possession,
custody, or control of the party upon whom the request is served; or to
permit entry upon designated land or other property in the possession or
control of the party upon whom the order would be served for the purpose
of inspection and measuring, surveying, photographing, testing, or
sampling the property or any designated object or operation thereon,
within the scope of Sec. 3.31(c)(1). Each such request shall specify
with reasonable particularity the documents or things to be produced or
inspected, or the property to be entered. Each such request shall also
specify a reasonable time, place, and manner of making the production or
inspection and performing the related acts. Each request may specify the
form in which electronically stored information is to be produced, but
the requested form of electronically stored information must not be
overly burdensome or unnecessarily costly to the producing party. A
party shall make documents available as they are kept in the usual
course of business or shall organize and label them to correspond with
the categories in the request. A person not a party to the action may be
compelled to produce documents and things or to submit to an inspection
as provided in Sec. 3.34. Except as provided in Sec. 3.31(h), requests
under this section shall not be filed with the Office of the Secretary,
the Administrative Law Judge, or otherwise provided to the Commission.
(b) Response; objections. No more than 30 days after receiving the
request, the response of the party upon whom the request is served shall
state, with respect to each item or category, that inspection and
related activities will be permitted as requested, unless the request is
objected to, in which event the reasons for the objection shall be
stated. If objection is made to part of an item or category, the part
shall be specified and inspection permitted of the remaining parts. The
response may state an objection to a requested form for producing
electronically stored information. If the responding party objects to a
requested form - or if no form was specified in the request - the party
must state the form it intends to use. The party submitting the request
may move for an order under Sec. 3.38(a) with respect to any objection
to or other failure to respond to the request or any part thereof, or
any failure to permit inspection as requested.
(c) Production of documents or electronically stored information.
Unless otherwise stipulated or ordered by the Administrative Law Judge,
these procedures apply to producing documents or electronically stored
information:
(i) A party must produce documents as they are kept in the usual
course of business or must organize and label them to correspond to the
categories in the request;
(ii) If a request does not specify a form for producing
electronically stored information, a party must produce it in a form in
which it is ordinarily maintained or in a reasonably usable form; and
(iii) A party need not produce the same electronically stored
information in more than one form.
[74 FR 1829, Jan. 13, 2009]
[[Page 69]]
Sec. 3.38 Motion for order compelling disclosure or discovery; sanctions.
(a) Motion for order to compel. A party may apply by motion to the
Administrative Law Judge for an order compelling disclosure or
discovery, including a determination of the sufficiency of the answers
or objections with respect to the mandatory initial disclosures required
by Sec. 3.31(b), a request for admission under Sec. 3.32, a deposition
under Sec. 3.33, an interrogatory under Sec. 3.35, or a production of
documents or things or access for inspection or other purposes under
Sec. 3.37. Any memorandum in support of such motion shall be no longer
than 2,500 words. Any response to the motion by the opposing party must
be filed within 5 days of receipt of service of the motion and shall be
no longer than 2,500 words. These word count limitations include
headings, footnotes, and quotations, but do not include the cover, table
of contents, table of citations or authorities, glossaries, statements
with respect to oral argument, any addendums containing statutes, rules
or regulations, any certificates of counsel, proposed form of order, and
any attachment required by Sec. 3.45(e). The Administrative Law Judge
shall rule on a motion to compel within 3 business days of the date in
which the response is due. Unless the Administrative Law Judge
determines that the objection is justified, the Administrative Law Judge
shall order that an initial disclosure or an answer to any requests for
admissions, documents, depositions, or interrogatories be served or
disclosure otherwise be made.
(b) If a party or an officer or agent of a party fails to comply
with any discovery obligation imposed by these rules, upon motion by the
aggrieved party, the Administrative Law Judge or the Commission, or
both, may take such action in regard thereto as is just, including but
not limited to the following:
(1) Order that any answer be amended to comply with the request,
subpoena, or order;
(2) Order that the matter be admitted or that the admission,
testimony, documents, or other evidence would have been adverse to the
party;
(3) Rule that for the purposes of the proceeding the matter or
matters concerning which the order or subpoena was issued be taken as
established adversely to the party;
(4) Rule that the party may not introduce into evidence or otherwise
rely, in support of any claim or defense, upon testimony by such party,
officer, agent, expert, or fact witness, or the documents or other
evidence, or upon any other improperly withheld or undisclosed
materials, information, witnesses, or other discovery;
(5) Rule that the party may not be heard to object to introduction
and use of secondary evidence to show what the withheld admission,
testimony, documents, or other evidence would have shown;
(6) Rule that a pleading, or part of a pleading, or a motion or
other submission by the party, concerning which the order or subpoena
was issued, be stricken, or that a decision of the proceeding be
rendered against the party, or both.
(c) Any such action may be taken by written or oral order issued in
the course of the proceeding or by inclusion in an initial decision of
the Administrative Law Judge or an order or opinion of the Commission.
It shall be the duty of parties to seek and Administrative Law Judges to
grant such of the foregoing means of relief or other appropriate relief
as may be sufficient to compensate for withheld testimony, documents, or
other evidence. If in the Administrative Law Judge's opinion such relief
would not be sufficient, or in instances where a nonparty fails to
comply with a subpoena or order, he or she shall certify to the
Commission a request that court enforcement of the subpoena or order be
sought.
[74 FR 1829, Jan. 13, 2009]
Sec. 3.38A Withholding requested material.
(a) Any person withholding material responsive to a subpoena issued
pursuant to Sec. 3.34 or Sec. 3.36, written interrogatories requested
pursuant to Sec. 3.35, a request for production or access pursuant to
Sec. 3.37, or any other request for the production of materials under
this part, shall assert a claim of privilege or any similar claim not
later than the date set for production of the material. Such person
shall, if so directed in the
[[Page 70]]
subpoena or other request for production, submit, together with such
claim, a schedule which describes the nature of the documents,
communications, or tangible things not produced or disclosed - and does
so in a manner that, without revealing information itself privileged or
protected, will enable other parties to assess the claim. The schedule
need not describe any material outside the scope of the duty to search
set forth in Sec. 3.31(c)(2) except to the extent that the
Administrative Law Judge has authorized additional discovery as provided
in that paragraph.
(b) A person withholding material for reasons described in Sec.
3.38A(a) shall comply with the requirements of that subsection in lieu
of filing a motion to limit or quash compulsory process.
(Sec. 5 of theFTC Act (15 U.S.C. 45))
[74 FR 1830, Jan. 13, 2009]
Sec. 3.39 Orders requiring witnesses to testify or provide other information
and granting immunity.
(a) Where Commission complaint counsel desire the issuance of an
order requiring a witness or deponent to testify or provide other
information and granting immunity under 18 U.S.C. 6002, Directors and
Assistant Directors of Bureaus and Regional Directors and Assistant
Regional Directors of Commission Regional Offices who supervise
complaint counsel responsible for presenting evidence in support of the
complaint are authorized to determine:
(1) That the testimony or other information sought from a witness or
deponent, or prospective witness or deponent, may be necessary to the
public interest, and
(2) That such individual has refused or is likely to refuse to
testify or provide such information on the basis of his or her privilege
against self-incrimination; and to request, through the Commission's
liaison officer, approval by the Attorney General for the issuance of
such order. Upon receipt of approval by the Attorney General (or his or
her designee), the Administrative Law Judge is authorized to issue an
order requiring the witness or deponent to testify or provide other
information and granting immunity when the witness or deponent has
invoked his or her privilege against self-incrimination and it cannot be
determined that such privilege was improperly invoked.
(b) Requests by counsel other than Commission complaint counsel for
an order requiring a witness to testify or provide other information and
granting immunity under 18 U.S.C. 6002 may be made to the Administrative
Law Judge and may be made ex parte. When such requests are made, the
Administrative Law Judge is authorized to determine:
(1) That the testimony or other information sought from a witness or
deponent, or prospective witness or deponent, may be necessary to the
public interest, and
(2) That such individual has refused or is likely to refuse to
testify or provide such information on the basis of his or her privilege
against self-incrimination; and, upon making such determinations, to
request, through the Commission's liaison officer, approval by the
Attorney General for the issuance of an order requiring a witness to
testify or provide other information and granting immunity; and, after
the Attorney General (or his or her designee) has granted such approval,
to issue such order when the witness or deponent has invoked his or her
privilege against self-incrimination and it cannot be determined that
such privilege was improperly invoked.
(18 U.S.C. 6002, 6004)
[74 FR 1830, Jan. 13, 2009]
Sec. 3.40 Admissibility of evidence in advertising substantiation cases.
(a) If a person, partnership, or corporation is required through
compulsory process under section 6, 9 or 20 of the Act issued after
October 26, 1977 to submit to the Commission substantiation in support
of an express or an implied representation contained in an
advertisement, such person, partnership or corporation shall not
thereafter be allowed, in any adjudicative proceeding in which it is
alleged that the person, partnership, or corporation lacked a reasonable
basis for the representation, and for any purpose relating to the
defense of such allegation, to introduce into the record, whether
directly or indirectly through references
[[Page 71]]
contained in documents or oral testimony, any material of any type
whatsoever that was required to be but was not timely submitted in
response to said compulsory process. Provided, however, that a person,
partnership, or corporation is not, within the meaning of this section,
required through compulsory process to submit substantiation with
respect to those portions of said compulsory process to which such
person, partnership, or corporation has raised good faith legal
objections in a timely motion pursuant to the Commission's Rules of
Practice and Procedure, until the Commission denies such motion; or if
the person, partnership, or corporation thereafter continues to refuse
to comply, until such process has been judicially enforced.
(b) The Administrative Law Judge shall, upon motion, at any stage
exclude all material that was required to be but was not timely
submitted in response to compulsory process described in paragraph (a)
of this section, or any reference to such material, unless the person,
partnership, or corporation demonstrates in a hearing, and the
Administrative Law Judge finds, that by the exercise of due diligence
the material could not have been timely submitted in response to the
compulsory process, and that the Commission was notified of the
existence of the material immediately upon its discovery. Said findings
of the Administrative Law Judge shall be in writing and shall specify
with particularity the evidence relied upon. The rules normally
governing the admissibility of evidence in Commission proceedings shall
in any event apply to any material coming within the above exception.
[42 FR 56500, Oct. 10, 1977; 42 FR 61450, Dec. 5, 1977, as amended at 45
FR 45578, July 7, 1980]
Subpart E_Hearings
Sec. 3.41 General hearing rules.
(a) Public hearings. All hearings in adjudicative proceedings shall
be public unless an in camera order is entered by the Administrative Law
Judge pursuant to Sec. 3.45(b) of this chapter or unless otherwise
ordered by the Commission.
(b) Expedition. Hearings shall proceed with all reasonable
expedition, and, insofar as practicable, shall be held at one place and
shall continue, except for brief intervals of the sort normally involved
in judicial proceedings, without suspension until concluded. The hearing
will take place on the date specified in the notice accompanying the
complaint, pursuant to Sec. 3.11(b)(4), and should be limited to no
more than 210 hours. The Commission, upon a showing of good cause, may
order a later date for the evidentiary hearing to commence or extend the
number of hours for the hearing. Consistent with the requirements of
expedition:
(1) The Administrative Law Judge may order hearings at more than one
place and may grant a reasonable recess at the end of a case-in-chief
for the purpose of discovery deferred during the prehearing procedure if
the Administrative Law Judge determines that such recess will materially
expedite the ultimate disposition of the proceeding.
(2) When actions involving a common question of law or fact are
pending before the Administrative Law Judge, the Commission or the
Administrative Law Judge may order a joint hearing of any or all the
matters in issue in the actions; the Commission or the Administrative
Law Judge may order all the actions consolidated; and the Commission or
the Administrative Law Judge may make such orders concerning proceedings
therein as may tend to avoid unnecessary costs or delay.
(3) When separate hearings will be conducive to expedition and
economy, the Commission or the Administrative Law Judge may order a
separate hearing of any claim, or of any separate issue, or of any
number of claims or issues.
(4) Each side shall be allotted no more than half of the trial time
within which to present its opening statements, in limine motions, all
arguments excluding the closing argument, direct or cross examinations,
or other evidence.
(5) Each side shall be permitted to make an opening statement that
is no more than 2 hours in duration.
(6) Each side shall be permitted to make a closing argument no later
than 5 days after the last filed proposed findings. The closing argument
shall last no longer than 2 hours.
[[Page 72]]
(c) Rights of parties. Every party, except intervenors, whose rights
are determined under Sec. 3.14, shall have the right of due notice,
cross-examination, presentation of evidence, objection, motion,
argument, and all other rights essential to a fair hearing.
(d) Adverse witnesses. An adverse party, or an officer, agent, or
employee thereof, and any witness who appears to be hostile, unwilling,
or evasive, may be interrogated by leading questions and may also be
contradicted and impeached by the party calling him or her.
(e) Requests for an order requiring a witness to testify or provide
other information and granting immunity under 18 U.S.C. 6002 shall be
disposed of in accordance with Sec. 3.39.
(f) Collateral federal court actions.The pendency of a collateral
federal court action that relates to the administrative adjudication
shall not stay the proceeding unless a court of competent jurisdiction,
or the Commission for good cause, so directs. A stay shall toll any
deadlines set by the rules.
[74 FR 1830, Jan. 13, 2009]
Sec. 3.42 Presiding officials.
(a) Who presides. Hearings in adjudicative proceedings shall be
presided over by a duly qualified Administrative Law Judge or by the
Commission or one or more members of the Commission sitting as
Administrative Law Judges; and the term Administrative Law Judge as used
in this part means and applies to the Commission or any of its members
when so sitting.
(b) How assigned. The presiding Administrative Law Judge shall be
designated by the Chief Administrative Law Judge or, when the Commission
or one or more of its members preside, by the Commission, who shall
notify the parties of the Administrative Law Judge designated.
(c) Powers and duties. Administrative Law Judges shall have the duty
to conduct fair and impartial hearings, to take all necessary action to
avoid delay in the disposition of proceedings, and to maintain order.
They shall have all powers necessary to that end, including the
following:
(1) To administer oaths and affirmations;
(2) To issue subpenas and orders requiring answers to questions;
(3) To take depositions or to cause depositions to be taken;
(4) To compel admissions, upon request of a party or on their own
initiative;
(5) To rule upon offers of proof and receive evidence;
(6) To regulate the course of the hearings and the conduct of the
parties and their counsel therein;
(7) To hold conferences for settlement, simplification of the
issues, or any other proper purpose;
(8) To consider and rule upon, as justice may require, all
procedural and other motions appropriate in an adjudicative proceeding,
including motions to open defaults;
(9) To make and file initial decisions;
(10) To certify questions to the Commission for its determination;
(11) To reject written submissions that fail to comply with rule
requirements, or deny in camera status without prejudice until a party
complies with all relevant rules; and
(12) To take any action authorized by the rules in this part or in
conformance with the provisions of the Administrative Procedure Act as
restated and incorporated in title 5, U.S.C.
(d) Suspension of attorneys by Administrative Law Judge. The
Administrative Law Judge shall have the authority, for good cause stated
on the record, to suspend or bar from participation in a particular
proceeding any attorney who shall refuse to comply with his directions,
or who shall be guilty of disorderly, dilatory, obstructionist, or
contumacious conduct, or contemptuous language in the course of such
proceeding. Any attorney so suspended or barred may appeal to the
Commission in accordance with the provisions of Sec. 3.23(a). The
appeal shall not operate to suspend the hearing unless otherwise ordered
by the Administrative Law Judge or the Commission; in the event the
hearing is not suspended, the attorney may continue to participate
therein pending disposition of the appeal.
(e) Substitution of Administrative Law Judge. In the event of the
substitution of a new Administrative Law Judge for
[[Page 73]]
the one originally designated, any motion predicated upon such
substitution shall be made within five (5) days thereafter.
(f) Interference. In the performance of their adjudicative
functions, Administrative Law Judges shall not be responsible to or
subject to the supervision or direction of any officer, employee, or
agent engaged in the performance of investigative or prosecuting
functions for the Commission, and all direction by the Commission to
Administrative Law Judges concerning any adjudicative proceedings shall
appear in and be made a part of the record.
(g) Disqualification of Administrative Law Judges. (1) When an
Administrative Law Judge deems himself disqualified to preside in a
particular proceeding, he shall withdraw therefrom by notice on the
record and shall notify the Director of Administrative Law Judges of
such withdrawal.
(2) Whenever any party shall deem the Administrative Law Judge for
any reason to be disqualified to preside, or to continue to preside, in
a particular proceeding, such party may file with the Secretary a motion
addressed to the Administrative Law Judge to disqualify and remove him,
such motion to be supported by affidavits setting forth the alleged
grounds for disqualification. If the Administrative Law Judge does not
disqualify himself within ten (10) days, he shall certify the motion to
the Commission, together with any statement he may wish to have
considered by the Commission. The Commission shall promptly determine
the validity of the grounds alleged, either directly or on the report of
another Administrative Law Judge appointed to conduct a hearing for that
purpose.
(3) Such motion shall be filed at the earliest practicable time
after the participant learns, or could reasonably have learned, of the
alleged grounds for disqualification.
(h) Failure to comply with Administrative Law Judge's directions.
Any party who refuses or fails to comply with a lawfully issued order or
direction of an Administrative Law Judge may be considered to be in
contempt of the Commission. The circumstances of any such neglect,
refusal, or failure, together with a recommendation for appropriate
action, shall be promptly certified by the Administrative Law Judge to
the Commission. The Commission may make such orders in regard thereto as
the circumstances may warrant.
[32 FR 8449, June 13, 1967, as amended at 37 FR 5609, Mar. 17, 1972; 41
FR 8340, Feb. 26, 1976; 43 FR 56868, Dec. 4, 1978; 46 FR 45750, Sept.
15, 1981; 50 FR 53306, Dec. 31, 1985; 66 FR 17629, Apr. 3, 2001]
Sec. 3.43 Evidence.
(a) Burden of proof. Counsel representing the Commission, or any
person who has filed objections sufficient to warrant the holding of an
adjudicative hearing pursuant to Sec. 3.13, shall have the burden of
proof, but the proponent of any factual proposition shall be required to
sustain the burden of proof with respect thereto.
(b) Admissibility. Relevant, material, and reliable evidence shall
be admitted. Irrelevant, immaterial, and unreliable evidence shall be
excluded. Evidence, even if relevant, may be excluded if its probative
value is substantially outweighed by the danger of unfair prejudice,
confusion of the issues, or if the evidence would be misleading, or
based on considerations of undue delay, waste of time, or needless
presentation of cumulative evidence. Evidence that constitutes hearsay
may be admitted if it is relevant, material, and bears satisfactory
indicia of reliability so that its use is fair. Hearsay is a statement,
other than one made by the declarant while testifying at the hearing,
offered in evidence to prove the truth of the matter asserted. If
otherwise meeting the standards for admissibility described in this
paragraph, depositions, investigational hearings, prior testimony in
Commission or other proceedings, expert reports, and any other form of
hearsay, shall be admissible and shall not be excluded solely on the
ground that they are or contain hearsay. However, absent the consent of
the parties, before admitting prior testimony (including expert reports)
from other proceedings where either the Commission or respondent did not
participate, except for other proceedings where the Commission and at
least one respondent did participate, the Administrative Law Judge must
[[Page 74]]
make a finding upon the motion of a party seeking the admission of such
evidence that the prior testimony would not be duplicative, would not
present unnecessary hardship to a party or delay to the proceedings, and
would aid in the determination of the matter. Statements or testimony by
a party-opponent, if relevant, shall be admitted.
(c) Admissibility of third party documents. Extrinsic evidence of
authenticity as a condition precedent to admissibility of documents
received from third parties is not required with respect to the original
or a duplicate of a domestic record of regularly conducted activity by
that third party that otherwise meets the standards of admissibility
described in paragraph (b) if accompanied by a written declaration of
its custodian or other qualified person, in a manner complying with any
Act of Congress or rule prescribed by the Supreme Court pursuant to
statutory authority, certifying that the record:
(1) Was made at or near the time of the occurrence of the matters
set forth by, or from information transmitted by, a person with
knowledge of those matters;
(2) Was kept in the course of the regularly conducted activity; and
(3) Was made by the regularly conducted activity as a regular
practice.
(d) Presentation of evidence. (1) A party is entitled to present its
case or defense by sworn oral testimony and documentary evidence, to
submit rebuttal evidence, and to conduct such cross-examination as, in
the discretion of the Commission or the Administrative Law Judge, may be
required for a full and true disclosure of the facts.
(2) The Administrative Law Judge shall exercise reasonable control
over the mode and order of interrogating witnesses and presenting
evidence so as to--
(i) Make the interrogation and presentation effective for the
ascertainment of the truth;
(ii) Avoid needless consumption of time; and
(iii) Protect witnesses from harassment or undue embarrassment.
(3) As respondents are in the best position to determine the nature
of documents generated by such respondents and which come from their own
files, the burden of proof is on the respondent to introduce evidence to
rebut a presumption that such documents are authentic and kept in the
regular course of business.
(e) Information obtained in investigations. Any documents, papers,
books, physical exhibits, or other materials or information obtained by
the Commission under any of its powers may be disclosed by counsel
representing the Commission when necessary in connection with
adjudicative proceedings and may be offered in evidence by counsel
representing the Commission in any such proceeding
(f) Official notice. ``Official notice'' may be taken of any
material fact that is not subject to reasonable dispute in that it is
either generally known within the Commission's expertise or capable of
accurate and ready determination by resort to sources whose accuracy
cannot reasonably be questioned. If official notice is requested or is
taken of a material fact not appearing in the evidence in the record,
the parties, upon timely request, shall be afforded an opportunity to
disprove such noticed fact.
(g) Objections. Objections to evidence shall timely and briefly
state the grounds relied upon, but the transcript shall not include
argument or debate thereon except as ordered by the Administrative Law
Judge. Rulings on all objections shall appear in the record.
(h) Exceptions. Formal exception to an adverse ruling is not
required.
(i) Excluded evidence. When an objection to a question propounded to
a witness is sustained, the questioner may make a specific offer of what
he or she expects to prove by the answer of the witness, or the
Administrative Law Judge may, in his or her discretion, receive and
report the evidence in full. Rejected exhibits, adequately marked for
identification, shall be retained in the record so as to be available
for consideration by any reviewing authority.
[74 FR 1831, Jan. 13, 2009, as amended at 76 FR 52252, Aug. 22, 2011]
Sec. 3.44 Record.
(a) Reporting and transcription. Hearings shall be stenographically
reported and transcribed by the official reporter
[[Page 75]]
of the Commission under the supervision of the Administrative Law Judge,
and the original transcript shall be a part of the record and the sole
official transcript. Upon a motion by any party, for good cause shown
the Administrative Law Judge may order that the live oral testimony of
all witnesses be video recorded digitally, at the expense of the moving
party, and in such cases the video recording and the written transcript
of the testimony shall be made part of the record. If a video recording
is so ordered, the moving party shall not pay or retain any person or
entity to perform such recording other than the reporter designated by
the Commission to transcribe the proceeding, except by order of the
Administrative Law Judge upon a finding of good cause. In any order
allowing for video recording by a person or entity other than the
Commission's designated reporter, the Administrative Law Judge shall
prescribe standards and procedures for the video recording to ensure
that it is a complete and accurate record of the witnesses' testimony.
Copies of the written transcript and video recording are available from
the reporter at rates not to exceed the maximum rates fixed by contract
between the Commission and the reporter. Copies of a video recording
made by a person or entity other than the reporter shall be available at
the same rates, or no more than the actual cost of duplication,
whichever is higher.
(b) Corrections. Corrections of the official transcript may be made
only when they involve errors affecting substance and then only in the
manner herein provided. Corrections ordered by the Administrative Law
Judge or agreed to in a written stipulation signed by all counsel and
parties not represented by counsel, and approved by the Administrative
Law Judge, shall be included in the record, and such stipulations,
except to the extent they are capricious or without substance, shall be
approved by the Administrative Law Judge. Corrections shall not be
ordered by the Administrative Law Judge except upon notice and
opportunity for the hearing of objections. Such corrections shall be
made by the official reporter by furnishing substitute type pages, under
the usual certificate of the reporter, for insertion in the official
record. The original uncorrected pages shall be retained in the files of
the Commission.
(c) Closing of the hearing record. Upon completion of the
evidentiary hearing, the Administrative Law Judge shall issue an order
closing the hearing record after giving the parties 3 business days to
determine if the record is complete or needs to be supplemented. The
Administrative Law Judge shall retain the discretion to permit or order
correction of the record as provided in Sec. 3.44(b).
[74 FR 1832, Jan. 13, 2009, as amended at 76 FR 52252, Aug. 22, 2011]
Sec. 3.45 In camera orders.
(a) Definition. Except as hereinafter provided, material made
subject to an in camera order will be kept confidential and not placed
on the public record of the proceeding in which it was submitted. Only
respondents, their counsel, authorized Commission personnel, and court
personnel concerned with judicial review may have access thereto,
provided that the Administrative Law Judge, the Commission and reviewing
courts may disclose such in camera material to the extent necessary for
the proper disposition of the proceeding.
(b) In camera treatment of material. A party or third party may
obtain in camera treatment for material, or portions thereof, offered
into evidence only by motion to the Administrative Law Judge. Parties
who seek to use material obtained from a third party subject to
confidentiality restrictions must demonstrate that the third party has
been given at least 10 days notice of the proposed use of such material.
Each such motion must include an attachment containing a copy of each
page of the document in question on which in camera or otherwise
confidential excerpts appear. The Administrative Law Judge shall order
that such material, whether admitted or rejected, be placed in camera
only after finding that its public disclosure will likely result in a
clearly defined, serious injury to the person, partnership, or
corporation requesting in camera
[[Page 76]]
treatment or after finding that the material constitutes sensitive
personal information. ``Sensitive personal information'' shall include,
but shall not be limited to, an individual's Social Security number,
taxpayer identification number, financial account number, credit card or
debit card number, driver's license number, state-issued identification
number, passport number, date of birth (other than year), and any
sensitive health information identifiable by individual, such as an
individual's medical records. For material other than sensitive personal
information, a finding that public disclosure will likely result in a
clearly defined, serious injury shall be based on the standard
articulated in H.P. Hood & Sons, Inc., 58 F.T.C. 1184, 1188 (1961); see
also Bristol-Myers Co., 90 F.T.C. 455, 456 (1977), which established a
three-part test that was modified by General Foods Corp., 95 F.T.C. 352,
355 (1980). The party submitting material for which in camera treatment
is sought must provide, for each piece of such evidence and affixed to
such evidence, the name and address of any person who should be notified
in the event that the Commission intends to disclose in camera
information in a final decision. No material, or portion thereof,
offered into evidence, whether admitted or rejected, may be withheld
from the public record unless it falls within the scope of an order
issued in accordance with this section, stating the date on which in
camera treatment will expire, and including:
(1) A description of the material;
(2) A statement of the reasons for granting in camera treatment; and
(3) A statement of the reasons for the date on which in camera
treatment will expire, except in the case of sensitive personal
information, which shall be accorded permanent in camera treatment
unless disclosure or an expiration date is required or provided by law.
For in camera material other than sensitive personal information, an
expiration date may not be omitted except in unusual circumstances, in
which event the order shall state with specificity the reasons why the
need for confidentiality of the material, or portion thereof at issue is
not likely to decrease over time, and any other reasons why such
material is entitled to in camera treatment for an indeterminate period.
If an in camera order is silent as to duration, without explanation,
then it will expire 3 years after its date of issuance. Material subject
to an in camera order shall be segregated from the public record and
filed in a sealed envelope, or other appropriate container, bearing the
title, the docket number of the proceeding, the notation ``In Camera
Record under Sec. 3.45,'' and the date on which in camera treatment
expires. If the Administrative Law Judge has determined that in camera
treatment should be granted for an indeterminate period, the notation
should state that fact. Parties are not required to provide documents
subject to in camera treatment, including documents obtained from third
parties, to any individual or entity other than the Administrative Law
Judge, counsel for other parties, and, during an appeal, the Commission
or a federal court.
(c) Release of in camera material. In camera material constitutes
part of the confidential records of the Commission and is subject to the
provisions of Sec. 4.11 of this chapter.
(d) Briefs and other submissions referring to in camera or
confidential information. Parties shall not disclose 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 in
the public version of proposed findings, briefs, or other documents.
This provision does not preclude references in such proposed findings,
briefs, or other documents to in camera or other confidential
information or general statements based on the content of such
information.
(e) When in camera or confidential information is included in briefs
and other submissions. If a party includes specific information that has
been granted in camera status pursuant to Sec. 3.45(b) or is subject to
confidentiality protections pursuant to a protective order in any
document filed in a proceeding under this part, the party shall file 2
versions of the document. A complete version shall be marked ``In
Camera'' or ``Subject to Protective Order,'' as appropriate, on every
page and shall be filed with the Secretary and served by the
[[Page 77]]
party on the other parties in accordance with the rules in this part.
Submitters of in camera or other confidential material should mark any
such material in the complete versions of their submissions in a
conspicuous matter, such as with highlighting or bracketing. References
to in camera or confidential material must be supported by record
citations to relevant evidentiary materials and associated
Administrative Law Judge in camera or other confidentiality rulings to
confirm that in camera or other confidential treatment is warranted for
such material. In addition, the document must include an attachment
containing a copy of each page of the document in question on which in
camera or otherwise confidential excerpts appear, and providing the name
and address of any person who should be notified of the Commission's
intent to disclose in a final decision any of the in camera or otherwise
confidential information in the document. Any time period within which
these rules allow a party to respond to a document shall run from the
date the party is served with the complete version of the document. An
expurgated version of the document, marked ``Public Record'' on every
page and omitting the in camera and confidential information and
attachment that appear in the complete version, shall be filed with the
Secretary within 5 days after the filing of the complete version, unless
the Administrative Law Judge or the Commission directs otherwise, and
shall be served by the party on the other parties in accordance with the
rules in this part. The expurgated version shall indicate any omissions
with brackets or ellipses, and its pagination and depiction of text on
each page shall be identical to that of the in camera version.
(f) When in camera or confidential information is included in
rulings or recommendations of the Administrative Law Judge. If the
Administrative Law Judge includes in any ruling or recommendation
information that has been granted in camera status pursuant to Sec.
3.45(b) or is subject to confidentiality protections pursuant to a
protective order, the Administrative Law Judge shall file 2 versions of
the ruling or recommendation. A complete version shall be marked ``In
Camera'' or ``Subject to Protective Order,'' as appropriate, on every
page and shall be served upon the parties. The complete version will be
placed in the in camera record of the proceeding. An expurgated version,
to be filed within 5 days after the filing of the complete version,
shall omit the in camera and confidential information that appears in
the complete version, shall be marked ``Public Record'' on every page,
shall be served upon the parties, and shall be included in the public
record of the proceeding. An expurgated version, to be filed within 5
days after the filing of the complete version, shall omit the in camera
and confidential information that appears in the complete version, shall
be marked ``Public Record'' on the first page, shall be served upon the
parties, and shall be included in the public record of the proceeding.
(g) Provisional in camera rulings. The Administrative Law Judge may
make a provisional grant of in camera status to materials if the showing
required in Sec. 3.45(b) cannot be made at the time the material is
offered into evidence but the Administrative Law Judge determines that
the interests of justice would be served by such a ruling. Within 20
days of such a provisional grant of in camera status, the party offering
the evidence or an interested third party must present a motion to the
Administrative Law Judge for a final ruling on whether in camera
treatment of the material is appropriate pursuant to Sec. 3.45(b). If
no such motion is filed, the Administrative Law Judge may either exclude
the evidence, deny in camera status, or take such other action as is
appropriate.
[74 FR 1832, Jan. 13, 2009, as amended at 76 FR 52253, Aug. 22, 2011]
Sec. 3.46 Proposed findings, conclusions, and order.
(a) General. Within 21 days of the closing of the hearing record,
each party may file with the Secretary for consideration of the
Administrative Law Judge proposed findings of fact, conclusions of law,
and rule or order, together with reasons therefor and briefs in support
thereof. Such proposals shall be in writing, shall be
[[Page 78]]
served upon all parties, and shall contain adequate references to the
record and authorities relied on. If a party includes in the proposals
information that has been granted in camera status pursuant to Sec.
3.45(b), the party shall file 2 versions of the proposals in accordance
with the procedures set forth in Sec. 3.45(e). Reply findings of fact,
conclusions of law, and briefs may be filed by each party within 10 days
of service of the initial proposed findings.
(b) Exhibit index. The first statement of proposed findings of fact
and conclusions of law filed by a party shall include an index listing
for each exhibit offered by the party and received in evidence:
(1) The exhibit number, followed by
(2) The exhibit's title or a brief description if the exhibit is
untitled;
(3) The transcript page at which the Administrative Law Judge ruled
on the exhibit's admissibility or a citation to any written order in
which such ruling was made;
(4) The transcript pages at which the exhibit is discussed;
(5) An identification of any other exhibit which summarizes the
contents of the listed exhibit, or of any other exhibit of which the
listed exhibit is a summary;
(6) A cross-reference, by exhibit number, to any other portions of
that document admitted as a separate exhibit on motion by any other
party; and
(7) A statement whether the exhibit has been accorded in camera
treatment, and a citation to the in camera ruling.
(c) Witness index. The first statement of proposed findings of fact
and conclusions of law filed by a party shall also include an index to
the witnesses called by that party, to include for each witness:
(1) The name of the witness;
(2) A brief identification of the witness;
(3) The transcript pages at which any testimony of the witness
appears; and
(4) A statement whether the exhibit has been accorded in camera
treatment, and a citation to the in camera ruling.
(d) Stipulated indices. As an alternative to the filing of separate
indices, the parties are encouraged to stipulate to joint exhibit and
witness indices at the time the first statement of proposed findings of
fact and conclusions of law is due to be filed.
(e) Rulings. The record shall show the Administrative Law Judge's
ruling on each proposed finding and conclusion, except when the order
disposing of the proceeding otherwise informs the parties of the action
taken.
[74 FR 1833, Jan. 13, 2009]
Subpart F_Decision
Sec. 3.51 Initial decision.
(a) When filed and when effective. The Administrative Law Judge
shall file an initial 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, 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, or within 14 days after the granting of
a motion for summary decision following a referral of such motion from
the Commission. 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. Except in cases subject
to Sec. 3.52(a), once issued, the initial decision shall become the
decision of the Commission 30 days after service thereof upon the
parties or 30 days after the filing of a timely notice of appeal,
whichever shall be later, unless a party filing such a notice shall have
perfected an appeal by the timely filing of an appeal brief or the
Commission shall have issued an order placing the case on its own docket
for review or staying the effective date of the decision.
(b) Exhaustion of administrative remedies. An initial 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 initial
decision, which is not made a part of an appeal to the Commission shall
be deemed to have been waived.
(c) Content, format for filing. (1) An initial decision shall be
based on a consideration of the whole record relevant
[[Page 79]]
to the issues decided, and shall be supported by reliable and probative
evidence. The initial decision shall include a statement of findings of
fact (with specific page references to principal supporting items of
evidence in the record) and 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 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 initial 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 an initial 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 initial decision.
(d) By whom made. The initial 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 initial
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
initial decision with respect to those issues decided pursuant to
paragraph (c)(1) of this section.
[74 FR 1834, Jan. 13, 2009]
Sec. 3.52 Appeal from initial decision.
(a) Automatic review of cases in which the Commission sought
preliminary relief in federal court; timing. For proceedings with
respect to which the Commission has sought preliminary relief in federal
court under 15 U.S.C. 53(b), the Commission will review the initial
decision without the filing of a notice of appeal.
(1) In such cases, any party may file objections to the initial
decision or order of the Administrative Law Judge by filing its opening
appeal brief, subject to the requirements in paragraph (c), within 20
days of the issuance of the initial decision. Any party may respond to
any objections filed by another party by filing an answering brief,
subject to the requirements of paragraph (d), 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), 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 within 45 days after the
deadline for the filing of any reply briefs.
(2) If no objections to the initial decision are filed, the
Commission may in its discretion hold oral argument within 10 days after
the deadline for the filing of objection, If no oral argument is
scheduled, the Commission will issue its final decision pursuant to
Sec. 3.54 within 45 days after the deadline for the filing of
objections.
(b) Review in all other cases; timing. (1) In all cases other than
those subject to paragraph (a), any party may file objections to the
initial decision or order of the Administrative Law Judge by filing a
notice of appeal with the Secretary within 10 days after service of the
initial decision. The notice shall specify the party or parties against
whom the appeal is taken and shall designate the initial decision and
order or part thereof appealed from. If a timely notice of appeal is
filed by a party, any other party may thereafter
[[Page 80]]
file a notice of appeal within 5 days after service of the first notice,
or within 10 days after service of the initial decision, whichever
period expires last.
(2) In such cases, any party filing a notice of appeal must perfect
its appeal by filing its opening appeal brief, subject to the
requirements in paragraph (c), within 30 days of the issuance of the
initial decision. Any party may respond to the opening appeal brief by
filing an answering brief, subject to the requirements of paragraph (d),
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), 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.
(c) Appeal brief. (1) The opening appeal 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 initial decision.
(2) The brief shall not, without leave of the Commission, exceed
14,000 words.
(d) Answering brief. The answering brief 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, as well as arguments in response to the appellant's
appeal brief. The answering brief shall not, without leave of the
Commission, exceed 14,000 words.
(e) Reply brief. The reply brief shall be limited to rebuttal of
matters in the answering brief and shall not, without leave of the
Commission, exceed 7,000 words. The Commission will not consider new
arguments or matters raised in reply briefs that could have been raised
earlier in the principal briefs. No further briefs may be filed except
by leave of the Commission.
(f) In camera information. If a party includes in any brief to be
filed under this section information that has been granted in camera
status pursuant to Sec. 3.45(b) or is subject to confidentiality
provisions pursuant to a protective order, the party shall file 2
versions of the brief in accordance with the procedures set forth in
Sec. 3.45(e). The time period specified by this section within which a
party may file an answering or reply brief will begin to run upon
service on the party of the in camera or confidential version of a
brief.
(g) Signature. (1) The original of each brief filed shall have a
hand-signed signature by an attorney of record for the party, or in the
case of parties not represented by counsel, by the party itself, or by a
partner if a partnership, or by an officer of the party if it is a
corporation or an unincorporated association.
(2) Signing a brief constitutes a representation by the signer that
he or she has read it; that to the best of his or her knowledge,
information, and belief, the statements made in it are true; that it is
not interposed for delay; that it complies with the applicable word
count limitation; and that to the best of his or her knowledge,
information, and belief, it complies with all the other rules in this
part. If a brief is not
[[Page 81]]
signed or is signed with intent to defeat the purpose of this section,
it may be stricken as sham and false and the proceeding may go forward
as though the brief has not been filed.
(h) Oral argument. All oral arguments shall be public unless
otherwise ordered by the Commission. Oral arguments will be held in all
cases on appeal or review to the Commission, unless the Commission
otherwise orders upon its own initiative or upon request of any party
made at the time of filing his or her brief. Oral arguments before the
Commission shall be reported stenographically, unless otherwise ordered,
and a member of the Commission absent from an oral argument may
participate in the consideration and decision of the appeal in any case
in which the oral argument is stenographically reported.
(i) Corrections in transcript of oral argument. The Commission will
entertain only joint motions of the parties requesting corrections in
the transcript of oral argument, except that the Commission will receive
a unilateral motion which recites that the parties have made a good
faith effort to stipulate to the desired corrections but have been
unable to do so. If the parties agree in part and disagree in part, they
should file a joint motion incorporating the extent of their agreement,
and, if desired, separate motions requesting those corrections to which
they have been unable to agree. The Secretary, pursuant to delegation of
authority by the Commission, is authorized to prepare and issue in the
name of the Commission a brief ``Order Correcting Transcript'' whenever
a joint motion to correct transcript is received.
(j) Briefs of amicus curiae. A brief of an amicus curiae may be
filed by leave of the Commission granted on motion with notice to the
parties or at the request of the Commission, except that such leave
shall not be required when the brief is presented by an agency or
officer of the United States; or by a State, territory, commonwealth, or
the District of Columbia, or by an agency or officer of any of them. The
brief may be conditionally filed with the motion for leave. A motion for
leave shall identify the interest of the applicant and state how a
Commission decision in the matter would affect the applicant or persons
it represents. The motion shall also state the reasons why a brief of an
amicus curiae is desirable. Except as otherwise permitted by the
Commission, an amicus curiae shall file its brief within the time
allowed the parties whose position as to affirmance or reversal the
amicus brief will support. The Commission shall grant leave for a later
filing only for cause shown, in which event it shall specify within what
period such brief must be filed. A motion for an amicus curiae to
participate in oral argument will be granted only for extraordinary
reasons. An amicus brief may be no more than one-half the maximum length
authorized by these rules for a party's principal brief.
(k) Word count limitation. The word count limitations in this
section include headings, footnotes and quotations, but do not include
the cover, table of contents, table of citations or authorities,
glossaries, statements with respect to oral argument, any addendums
containing statutes, rules or regulations, any certificates of counsel,
proposed form of order, and any attachment required by Sec. 3.45(e).
Extensions of word count limitations are disfavored, and will only be
granted where a party can make a strong showing that undue prejudice
would result from complying with the existing limit.
[74 FR 1834, Jan. 13, 2009, as amended at 76 FR 52253, Aug. 22, 2011]
Sec. 3.53 Review of initial decision in absence of appeal.
An order by the Commission placing a case on its own docket for
review 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.
Sec. 3.54 Decision on appeal or review.
(a) Upon appeal from or review of an initial decision, the
Commission will consider such parts of the record as are cited or as may
be necessary to resolve the issues presented and, in addition, will, to
the extent necessary or desirable, exercise all the powers which it
[[Page 82]]
could have exercised if it had made the initial decision.
(b) In rendering its decision, the Commission will adopt, modify, or
set aside the findings, conclusions, and rule or order contained in the
initial decision, and will include in the decision a statement of the
reasons or basis for its action and any concurring and dissenting
opinions.
(c) In those cases where the Commission believes that it should have
further information or additional views of the parties as to the form
and content of the rule or order to be issued, the Commission, in its
discretion, may withhold final action pending the receipt of such
additional information or views.
(d) The order of the Commission disposing of adjudicative hearings
under the Fair Packaging and Labeling Act will be published in the
Federal Register and, if it contains a rule or regulation, will specify
the effective date thereof, which will not be prior to the ninetieth
(90th) day after its publication unless the Commission finds that
emergency conditions exist necessitating an earlier effective date, in
which event the Commission will specify in the order its findings as to
such conditions.
Sec. 3.55 Reconsideration.
Within fourteen (14) days after completion of service of a
Commission decision, any party may file with the Commission a petition
for reconsideration of such decision, setting forth the relief desired
and the grounds in support thereof. Any petition filed under this
subsection must be confined to new questions raised by the decision or
final order and upon which the petitioner had no opportunity to argue
before the Commission. Any party desiring to oppose such a petition
shall file an answer thereto within ten (10) days after service upon him
of the petition. The filing of a petition for reconsideration shall not
operate to stay the effective date of the decision or order or to toll
the running of any statutory time period affecting such decision or
order unless specifically so ordered by the Commission.
[32 FR 8449, June 13, 1967, as amended at 61 FR 50650, Sept. 26, 1996]
Sec. 3.56 Effective date of orders; application for stay.
(a) Other than consent orders, an order to cease and desist under
section 5 of the FTC Act becomes effective upon the sixtieth day after
service, except as provided in section 5(g)(3) of the FTC Act, and
except for divestiture provisions, as provided in section 5(g)(4) of the
FTC Act.
(b) Any party subject to a cease and desist order under section 5 of
the FTC Act, other than a consent order, may apply to the Commission for
a stay of all or part of that order pending judicial review. If, within
30 days after the application was received by the Commission, the
Commission either has denied or has not acted on the application, a stay
may be sought in a court of appeals where a petition for review of the
order is pending.
(c) An application for stay shall state the reasons a stay is
warranted and the facts relied upon, and shall include supporting
affidavits or other sworn statements, and a copy of the relevant
portions of the record. The application shall address the likelihood of
the applicant's success on appeal, whether the applicant will suffer
irreparable harm if a stay is not granted, the degree of injury to other
parties if a stay is granted, and why the stay is in the public
interest.
(d) An application for stay shall be filed within 30 days of service
of the order on the party. Such application shall be served in
accordance with the provisions of Sec. 4.4(b) of this part that are
applicable to service in adjudicative proceedings. Any party opposing
the application may file an answer within 5 business days after receipt
of the application. The applicant may file a reply brief, limited to new
matters raised by the answer, within 3 business days after receipt of
the answer.
[60 FR 37748, July 21, 1995]
Subpart G [Reserved]
Subpart H_Reopening of Proceedings
Sec. 3.71 Authority.
Except while pending in a U.S. court of appeals on a petition for
review
[[Page 83]]
(after the transcript of the record has been filed) or in the U.S.
Supreme Court, a proceeding may be reopened by the Commission at any
time in accordance with Sec. 3.72. Any person subject to a Commission
decision containing a rule or order which has become effective, or an
order to cease and desist which has become final may file a request to
reopen the proceeding in accordance with Sec. 2.51.
[44 FR 40637, July 12, 1979]
Sec. 3.72 Reopening.
(a) Before statutory review. At any time prior to the expiration of
the time allowed for filing a petition for review or prior to the filing
of the transcript of the record of a proceeding in a U.S. court of
appeals pursuant to a petition for review, the Commission may upon its
own initiative and without prior notice to the parties reopen the
proceeding and enter a new decision modifying or setting aside the whole
or any part of the findings as to the facts, conclusions, rule, order,
or opinion issued by the Commission in such proceeding.
(b) After decision has become final. (1) Whenever the Commission is
of the opinion that changed conditions of fact or law or the public
interest may require that a Commission decision containing a rule or
order which has become effective, or an order to cease and desist which
has become final by reason of court affirmance or expiration of the
statutory period for court review without a petition for review having
been filed, or a Commission decision containing an order dismissing a
proceeding, should be altered, modified, or set aside in whole or in
part, the Commission will, except as provided in Sec. 2.51, serve upon
each person subject to such decision (in the case of proceedings
instituted under Sec. 3.13, such service may be by publication in the
Federal Register) an order to show cause, stating the changes it
proposes to make in the decision and the reasons they are deemed
necessary. Within thirty (30) days after service of such order to show
cause, any person served may file an answer thereto. Any person not
responding to the order within the time allowed may be deemed to have
consented to the proposed changes.
(2) Whenever an order to show cause is not opposed, or if opposed
but the pleadings do not raise issues of fact to be resolved, the
Commission, in its discretion, may decide the matter on the order to
show cause and answer thereto, if any, or it may serve upon the parties
(in the case of proceedings instituted under Sec. 3.13, such service
may be by publication in Federal Register) a notice of hearing, setting
forth the date when the cause will be heard. In such a case, the hearing
will be limited to the filing of briefs and may include oral argument
when deemed necessary by the Commission. When the pleadings raise
substantial factual issues, the Commission will direct such hearings as
it deems appropriate, including hearings for the receipt of evidence by
it or by an Administrative Law Judge. Unless otherwise ordered and
insofar as practicable, hearings before an Administrative Law Judge to
receive evidence shall be conducted in accordance with subparts B, C, D,
and E of part 3 of this chapter. Upon conclusion of hearings before an
Administrative Law Judge, the record and the Administrative Law Judge's
recommendations shall be certified to the Commission for final
disposition of the matter.
(3) Termination of existing orders--(i) Generally. Notwithstanding
the foregoing provisions of this rule, and except as provided in
paragraphs (b)(3) (ii) and (iii) of this section, an order issued by the
Commission before August 16, 1995, will be deemed, without further
notice or proceedings, to terminate 20 years from the date on which the
order was first issued, or on January 2, 1996, whichever is later.
(ii) Exception. This paragraph applies to the termination of an
order issued before August 16, 1995, where a complaint alleging a
violation of the order was or is filed (with or without an accompanying
consent decree) in federal court by the United States or the Federal
Trade Commission while the order remains in force, either on or after
August 16, 1995, or within the 20 years preceding that date. If more
than one complaint was or is filed while the order remains in force, the
relevant
[[Page 84]]
complaint for purposes of this paragraph will be the latest filed
complaint. An order subject to this paragraph will terminate 20 years
from the date on which a court complaint described in this paragraph was
or is filed, except as provided in the following sentence. If the
complaint was or is dismissed, or a federal court rules or has ruled
that the respondent did not violate any provision of the order, and the
dismissal or ruling was or is not appealed, or was or is upheld on
appeal, the order will terminate according to paragraph (b)(3)(i) of
this section as though the complaint was never filed; provided, however,
that the order will not terminate between the date that such complaint
is filed and the later of the deadline for appealing such dismissal or
ruling and the date such dismissal or ruling is upheld on appeal. The
filing of a complaint described in this paragraph will not affect the
duration of any order provision that has expired, or will expire, by its
own terms. The filing of a complaint described in this paragraph also
will not affect the duration of an order's application to any respondent
that is not named in the complaint.
(iii) Stay of Termination. Any party to an order may seek to stay,
in whole or part, the termination of the order as to that party pursuant
to paragraph (b)(3) (i) or (ii) of this section. Petitions for such
stays shall be filed in accordance with the procedures set forth in
Sec. 2.51 of these rules. Such petitions shall be filed on or before
the date on which the order would be terminated pursuant to paragraph
(b)(3) (i) or (ii) of this section. Pending the disposition of such a
petition, the order will be deemed to remain in effect without
interruption.
(iv) Orders not terminated. Nothing in Sec. 3.72(b)(3) is intended
to apply to in camera orders or other procedural or interlocutory
rulings by an Administrative Law Judge or the Commission.
[32 FR 8449, June 13, 1967, as amended at 44 FR 40637, July 12, 1979; 45
FR 21623, Apr. 2, 1980; 60 FR 58515, Nov. 28, 1995]
Subpart I_Recovery of Awards Under the Equal Access to Justice Act in
Commission Proceedings
Authority: 5 U.S.C. 504 and 5 U.S.C. 553(b).
Source: 63 FR 36341, July 6, 1998, unless otherwise noted.
Sec. 3.81 General provisions.
(a) Purpose of these rules. The Equal Access to Justice Act, 5
U.S.C. 504 (called ``the Act'' in this subpart), provides for the award
of attorney fees and other expenses to eligible individuals and entities
who are parties to adversary adjudicative proceedings under part 3 of
this title. The rules in this subpart describe the parties eligible for
awards, how to apply for awards, and the procedures and standards that
the Commission will use to make them.
(1) When an eligible party will receive an award. An eligible party
will receive an award when:
(i) It prevails in the adjudicative proceeding, unless the
Commission's position in the proceeding was substantially justified or
special circumstances make an award unjust. Whether or not the position
of the agency was substantially justified will be determined on the
basis of the administrative record as a whole that is made in the
adversary proceeding for which fees and other expenses are sought; or
(ii) The agency's demand is substantially in excess of the decision
of the adjudicative officer, and is unreasonable when compared with that
decision, under all the facts and circumstances of the case. Demand
means the express final demand made by the agency prior to initiation of
the adversary adjudication, but does not include a recitation by the
agency of the statutory penalty in the administrative complaint or
elsewhere when accompanied by an express demand for a lesser amount.
(b) When the Act applies. (1) Section 504(a)(1) of the Act applies
to any adversarial adjudicative proceeding pending before the Commission
at any time after October 1, 1981. This includes proceedings begun
before October 1, 1981, if final Commission action has not been taken
before that date.
[[Page 85]]
(2) Section 504(a)(4) applies to any adversarial adjudicative
proceeding pending before the Commission at any time on or after March
29, 1996.
(c) Proceedings covered. (1) The Act applies to all adjudicative
proceedings under part 3 of the rules of practice as defined in Sec.
3.2, except hearings relating to the promulgation, amendment, or repeal
of rules under the Fair Packaging and Labeling Act.
(2) [Reserved]
(d) Eligibility of applicants. (1) To be eligible for an award of
attorney fees and other expenses under the Act, the applicant must be a
party to the adjudicative proceeding in which it seeks an award. The
term party is defined in 5 U.S.C. 551(3). The applicant must show that
it meets all conditions of eligibility set out in this subpart.
(2) The types of eligible applicants are as follows:
(i) An individual with a net worth of not more than $2 million;
(ii) The sole owner of an unincorporated business who has a net
worth of not more than $7 million, including both personal and business
interests, and not more than 500 employees;
(iii) A charitable or other tax-exempt organization described in
section 501(c)(3) of the Internal Revenue Code (26 U.S.C. 501(c)(3))
with not more than 500 employees;
(iv) A cooperative association as defined in section 15(a) of the
Agricultural Marketing Act (12 U.S.C. 1141j(a)) with not more than 500
employees;
(v) Any other partnership, corporation, association, unit of local
government, or organization with a net worth of not more than $7 million
and not more than 500 employees; and
(vi) For purposes of receiving an award for fees and expenses for
defending against an excessive Commission demand, any small entity, as
that term is defined under 5 U.S.C. 601.
(3) Eligibility of a party shall be determined as of the date the
proceeding was initiated.
(4) An applicant who owns an unincorporated business will be
considered as an ``individual'' rather than a ``sole owner of an
unincorporated business'' if the issues on which the applicant prevails
are related primarily to personal interests rather than to business
interests.
(5) The employees of an applicant include all persons who regularly
perform services for remuneration for the applicant, under the
applicant's direction and control. Part-time employees shall be included
on a proportional basis.
(6) The net worth and number of employees of the applicant and all
of its affiliates shall be aggregated to determine eligibility. Any
individual, corporation or other entity that directly or indirectly
controls or owns a majority of the voting shares or other interest of
the applicant, or any corporation or other entity of which the applicant
directly or indirectly owns or controls a majority of the voting shares
or other interest, will be considered an affiliate for purposes of this
part, unless the Administrative Law Judge determines that such treatment
would be unjust and contrary to the purposes of the Act in light of the
actual relationship between the affiliated entities. In addition, the
Administrative Law Judge may determine that financial relationships of
the applicant other than those described in this paragraph constitute
special circumstances that would make an award unjust.
(7) An applicant that participates in a proceeding primarily on
behalf of one or more other persons or entities that would be ineligible
is not itself eligible for an award.
(e) Standards for awards. (1) For a prevailing party:
(i) A prevailing applicant will receive an award for fees and
expenses incurred after initiation of the adversary adjudication in
connection with the entire adversary adjudication, or on a substantive
portion of the adversary adjudication that is sufficiently significant
and discrete to merit treatment as a separate unit unless the position
of the agency was substantially justified. The burden of proof that an
award should not be made to an eligible prevailing applicant is on
complaint counsel, which may avoid an award by showing that its position
had a reasonable basis in law and fact.
(ii) An award to prevailing party will be reduced or denied if the
applicant has unduly or unreasonably protracted
[[Page 86]]
the proceeding or if special circumstances make an award unjust.
(2) For a party defending against an excessive demand:
(i) An eligible applicant will receive an award for fees and
expenses incurred after initiation of the adversary adjudication related
to defending against the excessive portion of a Commission demand that
is substantially in excess of the decision of the adjudicative officer
and is unreasonable when compared with that decision under all the facts
and circumstances of the case.
(ii) An award will be denied if the applicant has committed a
willful violation of law or otherwise acted in bad faith or if special
circumstances make an award unjust.
(f) Allowable fees and expenses. (1) Awards will be based on rates
customarily charged by persons engaged in the business of acting as
attorneys, agents and expert witnesses, even if the services were made
available without charge or at a reduced rate to the applicant.
(2) No award for the fee of an attorney or agent under these rules
may exceed the hourly rate specified in 5 U.S.C. 504(b)(1)(A). No award
to compensate an expert witness may exceed the highest rate at which the
Commission paid expert witnesses for similar services at the time the
fees were incurred. The appropriate rate may be obtained from the Office
of the Executive Director. However, an award may also include the
reasonable expenses of the attorney, agent, or witness as a separate
item, if the attorney, agent or witness ordinarily charges clients
separately for such expenses.
(3) In determining the reasonableness of the fee sought for an
attorney, agent or expert witness, the Administrative Law Judge shall
consider the following:
(i) If the attorney, agent or witness is in private practice, his or
her customary fee for similar services, or, if an employee of the
applicant, the fully allocated cost of the services;
(ii) The prevailing rate for similar services in the community in
which the attorney, agent or witness ordinarily performs services;
(iii) The time actually spent in the representation of the
applicant;
(iv) The time reasonably spent in light of the difficulty or
complexity of the issues in the proceeding; and
(v) Such other factors as may bear on the value of the services
provided.
(4) The reasonable cost of any study, analysis, engineering report,
test, project or similar matter prepared on behalf of a party may be
awarded, to the extent that the charge for the service does not exceed
the prevailing rate for similar services, and the study or other matter
was necessary for preparation of the applicant's case.
(5) Any award of fees or expenses under the Act is limited to fees
and expenses incurred after initiation of the adversary adjudication
and, with respect to excessive demands, the fees and expenses incurred
in defending against the excessive portion of the demand.
(g) Rulemaking on maximum rates for attorney fees. If warranted by
an increase in the cost of living or by special circumstances (such as
limited availability of attorneys qualified to handle certain types of
proceedings), the Commission may, upon its own initiative or on petition
of any interested person or group, adopt regulations providing that
attorney fees may be awarded at a rate higher than the rate specified in
5 U.S.C. 504(b)(1)(A) per hour in some or all the types of proceedings
covered by this part. Rulemaking under this provision will be in
accordance with Rules of Practice part 1, subpart C of this chapter.
Sec. 3.82 Information required from applicants.
(a) Contents of application. An application for an award of fees and
expenses under the Act shall contain the following:
(1) Identity of the applicant and the proceeding for which the award
is sought;
(2) A showing that the applicant has prevailed; or, if the applicant
has not prevailed, a showing that the Commission's demand was the final
demand before initiation of the adversary adjudication and that it was
substantially in excess of the decision of the adjudicative officer and
was unreasonable when compared with that decision;
[[Page 87]]
(3) Identification of the Commission position(s) that applicant
alleges was (were) not substantially justified; or, identification of
the Commission's demand that is alleged to be excessive and unreasonable
and an explanation as to why the demand was excessive and unreasonable;
(4) A brief description of the type and purpose of the organization
or business (unless the applicant is an individual);
(5) A statement of how the applicant meets the criteria of Sec.
3.81(d);
(6) The amount of fees and expenses incurred after the initiation of
the adjudicative proceeding or, in the case of a claim for defending
against an excessive demand, the amount of fees and expenses incurred
after the initiation of the adjudicative proceeding attributable to the
excessive portion of the demand;
(7) Any other matters the applicant wishes the Commission to
consider in determining whether and in what amount an award should be
made; and
(8) A written verification under oath or under penalty or perjury
that the information provided is true and correct accompanied by the
signature of the applicant or an authorized officer or attorney.
(b) Net worth exhibit. (1) Each applicant except a qualified tax-
exempt organization or cooperative association must provide with its
application a detailed exhibit showing the net worth of the application
and any affiliates (as defined in Sec. 3.81(d)(6)) when the proceeding
was initiated. The exhibit may be in any form convenient to the
applicant that provides full disclosure of the applicant's and its
affiliates' assets and liabilities and is sufficient to determine
whether the applicant qualifies under the standards in this part. The
Administrative Law Judge may require an applicant to file additional
information to determine its eligibility for an award.
(2) Ordinarily, the net worth exhibit will be included in the public
record of the proceeding. However, if an applicant objects to public
disclosure of information in any portion of the exhibit and believes
there are legal grounds for withholding it from disclosure, the
applicant may submit that portion of the exhibit directly to the
Administrative Law Judge in a sealed envelope labeled ``Confidential
Financial Information,'' accompanied by a motion to withhold the
information from public disclosure. The motion shall describe the
information sought to be withheld and explain, in detail, why it falls
within one or more of the specific exemptions from mandatory disclosure
under the Freedom of Information Act, 5 U.S.C. 552(b) (1) through (9),
why public disclosure of the information would adversely affect the
applicant, and why disclosure is not required in the public interest.
The material in question shall be served on complaint counsel but need
not be served on any other party to the proceeding. If the
Administrative Law Judge finds that the information should not be
withheld from disclosure, it shall be placed in the public record of the
proceeding. Otherwise, any request to inspect or copy the exhibit shall
be disposed of in accordance with Sec. 4.11.
(c) Documentation of fees and expenses. The application shall be
accompanied by full documentation of the fees and expenses incurred
after initiation of the adversary adjudication, including the cost of
any study, analysis, engineering report, test, project or similar
matter, for which an award is sought. With respect to a claim for fees
and expenses involving an excessive demand, the application shall be
accompanied by full documentation of the fees and expenses incurred
after initiation of the adversary adjudication, including the cost of
any study, analysis, engineering report, test, project or similar
matter, for which an award is sought attributable to the portion of the
demand alleged to be excessive and unreasonable. A separate itemized
statement shall be submitted for each professional firm or individual
whose services are covered by the application, showing the hours spent
in connection with the proceeding by each individual, a description of
the specific services performed, the rate at which each fee has been
computed, any expenses for which reimbursement is sought, the total
amount claimed, and the total amount paid or payable by the applicant or
by any other person or entity
[[Page 88]]
for the services provided. The Administrative Law Judge may require the
applicant to provide vouchers, receipts, or other substantiation for any
expenses claimed.
(d) When an application may be filed--(1) For a prevailing party:
(i) An application may be filed not later than 30 days after the
Commission has issued an order or otherwise taken action that results in
final disposition of the proceeding.
(ii) If review or reconsideration is sought or taken of a decision
as to which an applicant believes it has prevailed, proceedings for the
award of fees shall be stayed pending final disposition of the
underlying controversy.
(2) For a party defending against an excessive demand:
(i) An application may be filed not later than 30 days after the
Commission has issued an order or otherwise taken action that results in
final disposition of the proceeding.
(ii) If review or reconsideration is sought or taken of a decision
as to which an applicant believes the agency's demand was excessive and
unreasonable, proceedings for the award of fees and expenses shall be
stayed pending final disposition of the underlying controversy.
(3) For purposes of this subpart, final disposition means the later
of--
(i) The date that the initial decision of the Administrative Law
Judge becomes the decision of the Commission pursuant to Sec. 3.51(a);
(ii) The date that the Commission issues an order disposing of any
petitions for reconsideration of the Commission's final order in the
proceeding; or
(iii) 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.
Sec. 3.83 Procedures for considering applicants.
(a) Filing and service of documents. Any application for an award or
other pleading or document related to an application shall be filed and
served on all parties as specified in Sec. Sec. 4.2 and 4.4(b) of this
chapter, except as provided in Sec. 3.82(b)(2) for confidential
financial information. The date the Office of the Secretary of the
Commission receives the application is deemed the date of filing.
(b) Answer to application. (1) Within 30 days after service of an
application, complaint counsel may file an answer to the application.
Unless complaint counsel requests an extension of time for filing or
files a statement of intent to negotiate under paragraph (b)(2) of this
section, failure to file an answer within the 30-day period may be
treated as a consent to the award requested.
(2) If complaint counsel and the applicant believe that the issues
in the fee application can be settled, they may jointly file a statement
of their intent to negotiate a settlement. The filing of this statement
shall extend the time for filing an answer for an additional 30 days,
and further extensions may be granted by the Administrative Law Judge
upon request by complaint counsel and the applicant.
(3) The answer shall explain in detail any objections to the award
requested and identify the facts relied on in support of complaint
counsel's position. If the answer is based on any alleged facts not
already in the record of the proceeding, complaint counsel shall include
with the answer either supporting affidavits or a request for further
proceedings under paragraph (f) of this section.
(c) Reply. Within 15 days after service of an answer, the applicant
may file a reply. If the reply is based on any alleged facts not already
in the record of the proceeding, the applicant shall include with the
reply either supporting affidavits or a request for further proceedings
under paragraph (f) of this section.
(d) Comments by other parties. Any party to a proceeding other than
the applicant and complaint counsel may file comments on an application
within 30 days after it is served or on an answer within 15 days after
it is served. A commenting party may not participate further in
proceedings on the application unless the Administrative Law Judge
determines that the public interest requires such participation in order
to permit full exploration of matters in the comments.
[[Page 89]]
(e) Settlement. The applicant and complaint counsel may agree on a
proposed settlement of the award before final action on the application.
A proposed award settlement entered into in connection with a consent
agreement covering the underlying proceeding will be considered in
accordance with Sec. 3.25. The Commission may request findings of fact
or recommendations on the award settlement from the Administrative Law
Judge. A proposed award settlement entered into after the underlying
proceeding has been concluded will be considered and may be approved or
disapproved by the Administrative Law Judge subject to Commission review
under paragraph (h) of this section. If an applicant and complaint
counsel agree on a proposed settlement of an award before an application
has been filed, the application shall be filed with the proposed
settlement.
(f) Further proceedings. (1) Ordinarily, the determination of an
award will be made on the basis of the written record. However, on
request of either the applicant or complaint counsel, or on his or her
own initiative, the Administrative Law Judge may order further
proceedings, such as an informal conference, oral argument, additional
written submissions or an evidentiary hearing. Such further proceedings
shall be held only when necessary for full and fair resolution of the
issues arising from the application, and shall be conducted as promptly
as possible.
(2) A request that the Administrative Law Judge order further
proceedings under this section shall specifically identify the
information sought or the disputed issues and shall explain why the
additional proceedings are necessary to resolve the issues.
(g) Decision. The Administrative Law Judge shall issue an initial
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 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, 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 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, 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 initial decision on the fee application by filing a
notice of appeal under Sec. 3.52(a), or the Commission may decide to
review the decision on its own initiative, in accordance with Sec.
3.53. If neither the applicant nor complaint counsel seeks review and
the Commission does not take review on its own initiative, the initial
decision on the application shall become a final decision of the
Commission 30 days after it is issued. Whether to review a decision is a
matter within the discretion of the Commission. If review is taken, the
Commission will issue a final decision on the application or remand the
application to the Administrative Law Judge for further proceedings.
(i) Judicial review. Judicial review of final Commission decisions
on awards may be sought as provided in 5 U.S.C. 504(c)(2).
(j) Payment of award. An applicant seeking payment of an award shall
submit to the Secretary of the Commission a copy of the Commission's
final decision granting the award, accompanied by a statement that the
applicant will not seek review of the decision in the United States
courts. The agency will pay the amount awarded to the applicant within
60 days, unless judicial review of the award or of the underlying
decision of the adjudicative
[[Page 90]]
proceeding has been sought by the applicant or any party to the
proceeding.
[63 FR 36341, July 6, 1998, as amended at 76 FR 52253, Aug. 22, 2011]
PART 4_MISCELLANEOUS RULES--Table of Contents
Sec.
4.1 Appearances.
4.2 Requirements as to form, and filing of documents other than
correspondence.
4.3 Time.
4.4 Service.
4.5 Fees.
4.6 Cooperation with other agencies.
4.7 Ex parte communications.
4.8 Costs for obtaining Commission records.
4.9 The public record.
4.10 Nonpublic material.
4.11 Disclosure requests.
4.12 Disposition of documents submitted to the Commission.
4.13 Privacy Act rules.
4.14 Conduct of business.
4.15 Commission meetings.
4.16 Privilege against self-incrimination.
4.17 Disqualification of Commissioners.
Authority: 15 U.S.C. 46, unless otherwise noted.
Sec. 4.1 Appearances.
(a) Qualifications--(1) Attorneys--(i) U.S.-admitted. Members of the
bar of a Federal court or of the highest court of any State or Territory
of the United States are eligible to practice before the Commission.
(ii) European Community (EC)-qualified. Persons who are qualified to
practice law in a Member State of the European Community and authorized
to practice before The Commission of the European Communities in
accordance with Regulation No. 99/63/EEC are eligible to practice before
the Commission.
(iii) Any attorney desiring to appear before the Commission or an
Administrative Law Judge may be required to show to the satisfaction of
the Commission or the Administrative Law Judge his or her acceptability
to act in that capacity.
(2) Others. (i) Any individual or member of a partnership involved
in any proceeding or investigation may appear on behalf or himself or of
such partnership upon adequate identification. A corporation or
association may be represented by a bona fide officer thereof upon a
showing of adequate authorization.
(ii) At the request of counsel representing any party in an
adjudicative proceeding, the Administrative Law Judge may permit an
expert in the same discipline as an expert witness to conduct all or a
portion of the cross-examination of such witness.
(b) Restrictions as to former members and employees--(1) General
prohibition. Except as provided in this section, or otherwise
specifically authorized by the Commission, no former member or employee
(``former employee'' or ``employee'') of the Commission may communicate
to or appear before the Commission, as attorney or counsel, or otherwise
assist or advise behind-the-scenes, regarding a formal or informal
proceeding or investigation \1\ (except that a former employee who is
disqualified solely under paragraph (b)(1)(ii) or paragraph (b)(1)(iv)
of this section, is not prohibited from assisting or advising behind-
the-scenes) if:
---------------------------------------------------------------------------
\1\ It is important to note that a new ``proceeding or
investigation'' may be considered the same matter as a seemingly
separate ``proceeding or investigation'' that was pending during the
former employee's tenure. This is because a ``proceeding or
investigation'' may continue in another form or in part. In determining
whether two matters are actually the same, the Commission will consider:
the extent to which the matters involve the same or related facts,
issues, confidential information and parties; the time elapsed; and the
continuing existence of an important Federal interest. See 5 CFR
2637.201(c)(4). For example, where a former employee intends to
participate in an investigation of compliance with a Commission order,
submission of a request to reopen an order, or a proceeding with respect
to reopening an order, the matter will be considered the same as the
adjudicative proceeding or investigation that resulted in the order. A
former employee who is uncertain whether the matter in which he seeks
clearance to participate is wholly separate from any matter that was
pending during his tenure should seek advice from the General Counsel or
the General Counsel's designee before participating.
---------------------------------------------------------------------------
(i) The former employee participated personally and substantially on
behalf of the Commission in the same proceeding or investigation in
which the employee now intends to participate;
(ii) The participation would begin within two years after the
termination of the former employee's service and,
[[Page 91]]
within a period of one year prior to the employee's termination, the
proceeding or investigation was pending under the employee's official
responsibility;
(iii) Nonpublic documents or information pertaining to the
proceeding or investigation in question, and of the kind delineated in
Sec. 4.10(a), came to, or would be likely to have come to, the former
employee's attention in the course of the employee's duties, (unless
Commission staff determines that the nature of the documents or
information is such that no present advantage could thereby be derived);
or
(iv) The former employee's participation would begin within one year
after the employee's termination and, at the time of termination, the
employee was a member of the Commission or a ``senior employee'' as
defined in 18 U.S.C. 207(c).
(2) Clearance request required. Any former employee, before
participating in a Commission proceeding or investigation (see footnote
1), whether through an appearance before a Commission official or
behind-the-scenes assistance, shall file with the Secretary a request
for clearance to participate, containing the information listed in Sec.
4.1(b)(4) if:
(i) The proceeding or investigation was pending in the Commission
while the former employee served;
(ii) A proceeding or investigation from which such proceeding or
investigation directly resulted was pending during the former employee's
service; or
(iii) Nonpublic documents or information pertaining to the
proceeding or investigation in question, and of the kind delineated in
Sec. 4.10(a), came to or would likely have come to the former
employee's attention in the course of the employee's duties, and the
employee left the Commission within the previous three years.
Note: This requirement applies even to a proceeding or investigation
that had not yet been initiated formally when the former employee
terminated employment, if the employee had learned nonpublic information
relating to the subsequently initiated proceeding or investigation.
(3) Exceptions. (i) Paragraphs (b) (1) and (2) of this section do
not apply to:
(A) Making a pro se filing of any kind;
(B) Submitting a request or appeal under the Freedom of Information
Act, the Privacy Act, or the Government in the Sunshine Act;
(C) Testifying under oath (except that a former employee who is
subject to the restrictions contained in paragraph (b)(1)(i) of this
section with respect to a particular matter may not, except pursuant to
court order, serve as an expert witness for any person other than the
United States in that same matter);
(D) Submitting a statement required to be made under penalty of
perjury; or
(E) Appearing on behalf of the United States.
(ii) With the exception of subparagraph (b)(1)(iv), paragraphs (b)
(1) and (2) of this section do not apply to participating in a
Commission rulemaking proceeding, including submitting comments on a
matter on which the Commission has invited public comment.
(iii) Paragraph (b)(1)(iv) of this section does not apply to
submitting a statement based on the former employee's own special
knowledge in the particular area that is the subject of the statement,
provided that no compensation is thereby received, other than that
regularly provided by law or by Sec. 4.5 for witnesses.
(iv) Paragraph (b)(2) of this section does not apply to filing a
premerger notification form or participating in subsequent events
concerning compliance or noncompliance with Section 7A of the Clayton
Act, 15 U.S.C. 18a, or any regulation issued under that section.
(4) Request contents. Clearance requests filed pursuant to Sec.
4.1(b)(2) shall contain:
(i) The name and matter number (if known) of the proceeding or
investigation in question;
(ii) A description of the contemplated participation;
(iii) The name of the Commission office(s) or division(s) in which
the former employee was employed and the position(s) the employee
occupied;
(iv) A statement whether, while employed by the Commission, the
former employee participated in any proceeding or investigation
concerning
[[Page 92]]
the same company, individual, or industry currently involved in the
matter in question;
(v) A certification that while employed by the Commission, the
employee never participated personally and substantially in the same
matter or proceeding;
(vi) If the employee's Commission employment terminated within the
past two years, a certification that the matter was not pending under
the employee's official responsibility during any part of the one year
before the employee's termination;
(vii) If the employee's Commission employment terminated within the
past three years, either a declaration that nonpublic documents or
information pertaining to the proceeding or investigation in question,
and of the kind delineated in Sec. 4.10(a), never came to the
employee's attention, or a description of why the employee believes that
such nonpublic documents or information could not confer a present
advantage to the employee or to the employee's client in the proceeding
or investigation in question; and
(viii) A certification that the employee has read, and understands,
both the criminal conflict of interest law on post-employment activities
(18 U.S.C. 207) and this Rule in their entirety.
(5) Definitions. The following definitions apply for purposes of
this section:
(i) Behind-the-scenes participation includes any form of
professional consultation, assistance, or advice to anyone about the
proceeding or investigation in question, whether formal or informal,
oral or written, direct or indirect.
(ii) Communicate to or appear before means making any oral or
written communication to, or any formal or informal appearance before,
the Commission or any of its members or employees on behalf of any
person (except the United States) with the intent to influence.
(iii) Directly resulted from means that the proceeding or
investigation in question emanated from an earlier phase of the same
proceeding or investigation or from a directly linked, antecedent
investigation. The existence of some attenuated connection between a
proceeding or investigation that was pending during the requester's
tenure and the proceeding or investigation in question does not
constitute a direct result.
(iv) Pending under the employee's official responsibility means that
the former employee had the direct administrative or operating authority
to approve, disapprove, or otherwise direct official actions in the
proceeding or investigation, irrespective of whether the employee's
authority was intermediate or final, and whether it was exercisable
alone or only in conjunction with others.
(v) Personal and substantial participation. A former employee
participated in the proceeding or investigation personally if the
employee either participated directly or directed a subordinate in doing
so. The employee participated substantially if the involvement was
significant to the matter or reasonably appeared to be significant. A
series of peripheral involvements may be considered insubstantial, while
a single act of approving or participating in a critical step may be
considered substantial.
(vi) Present advantage. Whether exposure to nonpublic information
about the proceeding or investigation could confer a present advantage
to a former employee will be analyzed and determined on a case-by-case
basis. Relevant factors include, inter alia, the nature and age of the
information, its relation and current importance to the proceeding or
investigation in question, and the amount of time that has passed since
the employee left the Commission.
(vii) Proceeding or investigation shall be interpreted broadly and
includes an adjudicative or other proceeding; the consideration of an
application; a request for a ruling or other determination; a contract;
a claim; a controversy; an investigation; or an interpretive ruling.
(6) Advice as to whether clearance request is required. A former
employee may ask the General Counsel, either orally or in writing,
whether the employee is required to file a request for clearance to
participate in a Commission matter pursuant to paragraph (b)(2) of this
section. The General
[[Page 93]]
Counsel, or the General Counsel's designee, will make any such
determination within three business days.
(7) Deadline for determining clearance requests. By the close of the
tenth business day after the date on which the clearance request is
filed, the General Counsel, or the General Counsel's designee, will
notify the requester either that:
(i) The request for clearance has been granted;
(ii) The General Counsel or the General Counsel's designee has
decided to recommend that the Commission prohibit the requester's
participation; or
(iii) The General Counsel or the General Counsel's designee is, for
good cause, extending the period for reaching a determination on the
request by up to an additional ten business days.
(8) Participation of partners or associates of former employees. (i)
If a former employee is prohibited from participating in a proceeding or
investigation by virtue of having worked on the matter personally and
substantially while a Commission employee, no partner or legal or
business associate of that individual may participate except after
filing with the Secretary of the Commission an affidavit attesting that:
(A) The former employee will not participate in the proceeding or
investigation in any way, directly or indirectly (and describing how the
former employee will be screened from participating);
(B) The former employee will not share in any fees resulting from
the participation;
(C) Everyone who intends to participate is aware of the requirement
that the former employee be screened;
(D) The client(s) have been informed; and
(E) The matter was not brought to the participant(s) through the
active solicitation of the former employee.
(ii) If the Commission finds that the screening measures being taken
are unsatisfactory or that the matter was brought to the participant(s)
through the active solicitation of the former employee, the Commission
will notify the participant(s) to cease the representation immediately.
(9) Effect on other standards. The restrictions and procedures in
this section are intended to apply in lieu of restrictions and
procedures that may be adopted by any state or jurisdiction, insofar as
such restrictions and procedures apply to appearances or participation
in Commission proceedings or investigations. Nothing in this section
supersedes other standards of conduct applicable under paragraph (e) of
this section. Requests for advice about this section, or about any
matter related to other applicable rules and standards of ethical
conduct, shall be directed to the Office of the General Counsel.
(c) Public disclosure. Any request for clearance filed by a former
member or employee pursuant to this section, as well as any written
response, are part of the public records of the Commission, except for
information exempt from disclosure under Sec. 4.10(a) of this chapter.
Information identifying the subject of a nonpublic Commission
investigation will be redacted from any request for clearance or other
document before it is placed on the public record.
(d) Notice of appearance. Any attorney desiring to appear before the
Commission or an Administrative Law Judge on behalf of a person or party
shall file with the Secretary of the Commission a written notice of
appearance, stating the basis for eligibility under this section and
including the attorney's jurisdiction of admission/qualification,
attorney identification number, if applicable, and a statement by the
appearing attorney attesting to his/her good standing within the legal
profession. No other application shall be required for admission to
practice, and no register of attorneys will be maintained.
(e) Standards of conduct; disbarment. (1) All attorneys practicing
before the Commission shall conform to the standards of ethical conduct
required by the bars of which the attorneys are members.
(2) If for good cause shown, the Commission shall be of the opinion
that any attorney is not conforming to such standards, or that he has
been otherwise guilty of conduct warranting disciplinary action, the
Commission may issue an order requiring such attorney to show cause why
he should not be suspended or disbarred from practice
[[Page 94]]
before the Commission. The alleged offender shall be granted due
opportunity to be heard in his own defense and may be represented by
counsel. Thereafter, if warranted by the facts, the Commission may issue
against the attorney an order of reprimand, suspension, or disbarment.
[32 FR 8456, June 13, 1967, as amended at 40 FR 15235, Apr. 4, 1975; 41
FR 16453, Apr. 19, 1976; 46 FR 26295, May 12, 1981; 48 FR 44767, Sept.
30, 1983; 50 FR 50781, Dec. 12, 1985; 50 FR 53306, Dec. 31, 1985; 56 FR
44139, Sept. 27, 1991; 58 FR 40737, July 30, 1993; 63 FR 15758, Apr. 1,
1998; 64 FR 14830, Mar. 29, 1999; 66 FR 13645, Mar. 7, 2001; 66 FR
64143, Dec. 12, 2001]
Sec. 4.2 Requirements as to form, and filing of documents other than
correspondence.
(a) Filing. (1) All paper and electronic documents filed with the
Commission or with an Administrative Law Judge pursuant to part 0, part
1, part 2, or part 3 of this chapter shall be filed with the Secretary
of the Commission, except that:
(i) Documents produced in response to compulsory process issued
pursuant to part 2 or part 3 of this chapter shall instead be produced
to the custodian, deputy custodian, or other person prescribed therein,
and in the manner prescribed therein; and
(ii) Comments filed in response to a Commission request for public
comment shall instead be filed in the manner prescribed in the Federal
Register document or other Commission document containing the request
for such comment.
(2) All paper and electronic documents filed with the Commission
pursuant to parts 4-999 of this chapter shall be filed with the
Secretary of the Commission, except as otherwise provided in such part.
(b) Title and public or nonpublic status. All paper and electronic
documents filed with the Commission or with an Administrative Law Judge
pursuant to any part of this chapter shall clearly show the file or
docket number and title of the action in connection with which they are
filed. Every page of each such document shall be clearly and accurately
labeled ``Public'', ``In Camera'' or ``Confidential''.
(c) Paper and electronic copies of and service of filings before the
Commission or an Administrative Law Judge in adjudicative proceedings.
(1) Each document filed before the Commission or an Administrative Law
Judge in an adjudicative proceeding, except documents covered by Sec.
4.2(a)(1)(i), shall be filed with the Secretary of the Commission; shall
comply with the requirements of Sec. 4.2(b); and shall include a paper
original (in 12-point font with 1-inch margins), one paper copy (if
before the Administrative Law Judge) or twelve (12) paper copies (if
before the Commission), and an electronic copy in Adobe portable
document format or such other format as the Secretary may direct.
(2) If the document is labeled ``In Camera'' or ``Confidential'', it
must include as an attachment either a motion requesting in camera or
other confidential treatment, in the form prescribed by Sec. 3.45, or a
copy of a Commission, Administrative Law Judge, or federal court order
granting such treatment. The document must also include as a separate
attachment a set of only those pages of the document on which the in
camera or otherwise confidential material appears and comply with all
other requirements of Sec. 3.45 and any other applicable rules
governing in camera treatment.
(3)(i) If the document is labeled ``Public'', the electronic copy
shall be filed as the Secretary shall direct, or through such electronic
system as the Commission may provide.
(ii) If the document is labeled ``In Camera'' or ``Confidential'',
the electronic copy shall be submitted on a compact disc (CD) or digital
video disc (DVD) so labeled, which shall be physically attached to the
paper original, and shall not be transmitted to the Commission by e-mail
or any other electronic system.
(iii) Each electronic copy filed pursuant to Sec. 4.2(c)(1) shall
include a certification by the filing party that the copy is a true and
correct copy of the paper original, and that a paper copy with an
original signature is being filed with the Secretary of the Commission
on the same day by other means.
(4) Sensitive personal information, as defined in Sec. 3.45(b),
shall not be included in, and must be redacted or omitted from, filings
where the filing
[[Page 95]]
party determines that such information is not relevant or otherwise
necessary for the conduct of the proceeding.
(5) A paper copy of each document filed in accordance with this
section in an adjudicative proceeding shall be served by the party
filing the document or person acting for that party on all other parties
pursuant to Sec. 4.4, at or before the time the original is filed.
(d) Paper and electronic copies of other documents filed with the
Commission. Each paper or electronic document filed with the Commission,
and not covered by Sec. 4.2(a)(1)(i), Sec. 4.2(a)(1)(ii), or Sec.
4.2(c), shall be filed with the Secretary of the Commission, and shall
be clearly and accurately labeled as required by Sec. 4.2(b).
(1) Each such paper document shall be signed, and shall be
accompanied by an electronic copy on a compact disc (CD) or digital
video disc (DVD) in Adobe portable document format or such other format
as the Secretary shall direct.
(2) Each such document filed pursuant to Sec. 2.7(d), Sec. 2.7(f),
Sec. 2.41(f), or Sec. 2.51 shall also include twelve (12) paper copies
of the signed paper original.
(3) Each such document labeled ``Public'' may be placed on the
public record of the Commission at the time it is filed.
(4) If such a document is labeled ``Confidential'', and it is filed
pursuant to Sec. 2.7(d), Sec. 2.7(f), Sec. 2.41(f), or Sec. 2.51, it
will be rejected for filing pursuant to Sec. 4.2(g), and will not stay
compliance with any applicable obligation imposed by the Commission or
the Commission staff, unless the filer simultaneously files:
(i) An explicit request for confidential treatment that includes the
factual and legal basis for the request, identifies the specific
portions of the document to be withheld from the public record, provides
the name and address of the person(s) who should be notified in the
event the Commission determines to disclose some or all of the material
labeled ``Confidential'', and otherwise conforms to the requirements of
Sec. 4.9(c); and
(ii) A redacted public version of the document that is clearly
labeled ``Public''.
(e) Form. (1) Documents filed with the Secretary of the Commission,
other than briefs in support of appeals from initial decisions, shall be
printed, typewritten, or otherwise processed in permanent form and on
good unglazed paper. A motion or other paper filed in an adjudicative
proceeding shall contain a caption setting forth the title of the case,
the docket number, and a brief descriptive title indicating the purpose
of the paper.
(2) Briefs filed on an appeal from an initial decision shall be in
the form prescribed by Sec. 3.52(e).
(f) Signature. (1) The original of each document filed shall have a
hand signed signature by an attorney of record for the party, or in the
case of parties not represented by counsel, by the party itself, or by a
partner if a partnership, or by an officer of the party if it is a
corporation or an unincorporated association.
(2) Signing a document constitutes a representation by the signer
that he or she has read it; that to the best of his or her knowledge,
information, and belief, the statements made in it are true; that it is
not interposed for delay; and that to the best of his or her knowledge,
information, and belief, it complies with the rules in this part. If a
document is not signed or is signed with intent to defeat the purpose of
this section, it may be stricken as sham and false and the proceeding
may go forward as though the document had not been filed.
(g) Authority to reject documents for filing. The Secretary of the
Commission may reject a document for filing that fails to comply with
the Commission's rules. In cases of extreme hardship, the Secretary may
excuse compliance with a rule regarding the filing of documents if the
Secretary determines that the non-compliance would not interfere with
the functions of the Commission.
[74 FR 1835, Jan. 13, 2009, as amended at 74 FR 20209, May 1, 2009; 76
FR 52253, Aug. 22, 2011]
Sec. 4.3 Time.
(a) Computation. Computation of any period of time prescribed or
allowed by the rules in this chapter, by order of the Commission or an
Administrative
[[Page 96]]
Law Judge, or by any applicable statute, shall begin with the first
business day following that on which the act, event, or development
initiating such period of time shall have occurred. When the last day of
the period so computed is a Saturday, Sunday, or national holiday, or
other day on which the office of the Commission is closed, the period
shall run until the end of the next following business day. When such
period of time, with the intervening Saturdays, Sundays, and national
holidays counted, is seven (7) days or less, each of the Saturdays,
Sundays, and such holidays shall be excluded from the computation. When
such period of time, with the intervening Saturdays, Sundays, and
national holidays counted, exceeds seven (7) days, each of the
Saturdays, Sundays, and such holidays shall be included in the
computation.
(b) Extensions. For good cause shown, the Administrative Law Judge
may, in any proceeding before him or her: (1) Extend any time limit
prescribed or allowed by order of the Administrative Law Judge or the
Commission (if the Commission order expressly authorizes the
Administrative Law Judge to extend time periods); or (2) extend any time
limit prescribed by the rules in this chapter, except those governing
motions directed to the Commission, interlocutory appeals and initial
decisions and deadlines that the rules expressly authorize only the
Commission to extend. Except as otherwise provided by law, the
Commission, for good cause shown, may extend any time limit prescribed
by the rules in this chapter or by order of the Commission or an
Administrative Law Judge, provided, however, that in a proceeding
pending before an Administrative Law Judge, any motion on which he or
she may properly rule shall be made to the Administrative Law Judge.
Notwithstanding the above, where a motion to extend is made after the
expiration of the specified period, the motion may be considered where
the untimely filing was the result of excusable neglect.
(c) Additional time after service by mail. Whenever a party in an
adjudicative proceeding under part 3 of the rules is required or
permitted to do an act within a prescribed period after service of a
paper upon it and the paper is served by first-class mail pursuant to
Sec. 4.4(a)(3) or Sec. 4.4(b), 3 days shall be added to the prescribed
period.
(d) Date of filing. Documents must be received in the office of the
Secretary of the Commission by 5:00 p.m. Eastern time to be deemed filed
that day. Any documents received by the agency after 5:00 p.m. will be
deemed filed the following business day.
[32 FR 8456, June 13, 1967, as amended at 42 FR 30150, June 13, 1977; 50
FR 28097, July 10, 1985; 50 FR 53306, Dec. 31, 1985; 66 FR 17633, Apr.
3, 2001; 74 FR 1836, Jan. 13, 2009]
Sec. 4.4 Service.
(a) By the Commission. (1) Service of complaints, initial decisions,
final orders and other processes of the Commission under 15 U.S.C. 45
may be effected as follows:
(i) By registered or certified mail. A copy of the document shall be
addressed to the person, partnership, corporation or unincorporated
association to be served at his, her or its residence or principal
office or place of business, registered or certified, and mailed;
service under this provision is complete upon delivery of the document
by the Post Office; or
(ii) By delivery to an individual. A copy thereof may be delivered
to the person to be served, or to a member of the partnership to be
served, or to the president, secretary, or other executive officer or a
director of the corporation or unincorporated association to be served;
service under this provision is complete upon delivery as specified
herein; or
(iii) By delivery to an address. A copy thereof may be left at the
principal office or place of business of the person, partnership,
corporation, or unincorporated association, or it may be left at the
residence of the person or of a member of the partnership or of an
executive officer or director of the corporation, or unincorporated
association to be served; service under this provision is complete upon
delivery as specified herein.
(2) All other orders and notices, including subpoenas, orders
requiring access, orders to file annual and special reports, and notices
of default, may be
[[Page 97]]
served by any method reasonably certain to inform the affected person,
partnership, corporation or unincorporated association, including any
method specified in paragraph (a)(1), except that civil investigative
demands may only be served in the manner provided by section 20(c)(7) of
the FTC Act (in the case of service on a partnership, corporation,
association, or other legal entity) or section 20(c)(8) of the FTC Act
(in the case of a natural person). Service under this provision is
complete upon delivery by the Post Office or upon personal delivery.
(3) All documents served in adjudicative proceedings under the
Commission's Rules of Practice, 16 CFR part 3, other than complaints and
initial, interlocutory, and final decisions and orders, may be served by
personal delivery (including delivery by courier), or by first-class
mail, and shall be deemed served on the day of personal delivery or the
day of mailing.
(4) When a party has appeared in a proceeding by an attorney,
service on that individual of any document pertaining to the proceeding
other than a complaint shall be deemed service upon the party. However,
service of those documents specified in paragraph (a)(1) of this section
shall first be attempted in accordance with the provision of paragraphs
(a)(1) (i), (ii), and (iii) of this section.
(b) By other parties. Service of documents by parties other than the
Commission shall be by delivering copies thereof as follows: Upon the
Commission, by personal delivery (including delivery by courier) or
delivery by first-class mail to the Office of the Secretary of the
Commission and, in adjudicative proceedings under the Commission's Rules
of Practice, 16 CFR part 3, to the lead complaint counsel, the Assistant
Director in the Bureau of Competition, the Associate Director in the
Bureau of Consumer Protection, or the Director of the Regional Office of
complaint counsel, with a copy to the Administrative Law Judge. Upon a
party other than the Commission or Commission counsel, service shall be
by personal delivery (including delivery by courier) or delivery by
first-class mail with a copy to the Administrative Law Judge. If the
party is an individual or partnership, delivery shall be to such
individual or a member of the partnership; if a corporation or
unincorporated association, to an officer or agent authorized to accept
service of process therefor. Personal service includes handling the
document to be served to the individual, partner, officer, or agent;
leaving it at his or her office with a person in charge thereof; or, if
there is no one in charge or if the office is closed or if the party has
no office, leaving it at his or her dwelling house or usual place of
abode with some person of suitable age and discretion then residing
therein. Documents served in adjudicative proceedings under part 3 of
the Commission's Rules of Practice shall be deemed served on the day of
personal service or the day of mailing. All other documents shall be
deemed served on the day of personal service or on the day of delivery
by the Post Office.
(c) Proof of service. In an adjudicative proceeding under the
Commission's Rules of Practice, 16 CFR part 3, papers presented for
filing shall contain proof of service in the form of a statement of the
date and manner of service and of the names of the persons served,
certified by the person who made service. Proof of service must appear
on or be affixed to the papers filed.
[50 FR 28097, July 10, 1985, as amended at 66 FR 17633, Apr. 3, 2001; 66
FR 20527, Apr. 23, 2001]
Sec. 4.5 Fees.
(a) Deponents and witnesses. Any person compelled to appear in
person in response to subpoena shall be paid the same fees and mileage
as are paid witnesses in the courts of the United States.
(b) Presiding officers. Officers before whom depositions are taken
shall be entitled to the same fees as are paid for like services in the
courts of the United States.
(c) Responsibility. The fees and mileage referred to in this section
shall be paid by the party at whose instance deponents or witnesses
appear.
[32 FR 8456, June 13, 1967]
[[Page 98]]
Sec. 4.6 Cooperation with other agencies.
It is the policy of the Commission to cooperate with other
governmental agencies to avoid unnecessary overlapping or duplication of
regulatory functions.
[32 FR 8456, June 13, 1967]
Sec. 4.7 Ex parte communications.
(a) Definitions. For purposes of this section, ex parte
communication means an oral or written communication not on the public
record with respect to which reasonable prior notice to all parties is
not given, but it shall not include requests for status reports on any
matter or proceeding.
(b) Prohibited ex parte communications. While a proceeding is in
adjudicative status within the Commission, except to the extent required
for the disposition of ex parte matters as authorized by law:
(1) No person not employed by the Commission, and no employee or
agent of the Commission who performs investigative or prosecuting
functions in adjudicative proceedings, shall make or knowingly cause to
be made to any member of the Commission, or to the Administrative Law
Judge, or to any other employee who is or who reasonably may be expected
to be involved in the decisional process in the proceeding, an ex parte
communciation relevant to the merits of that or a factually related
proceeding; and
(2) No member of the Commission, the Administrative Law Judge, or
any other employee who is or who reasonably may be expected to be
involved in the decisional process in the proceeding, shall make or
knowingly cause to be made to any person not employed by the Commission,
or to any employee or agent of the Commission who performs investigative
or prosecuting functions in adjudicative proceedings, an ex parte
communication relevant to the merits of that or a factually related
proceeding.
(c) Procedures. A Commissioner, the Administrative Law Judge or any
other employee who is or who may reasonably be expected to be involved
in the decisional process who receives or who make or knowingly causes
to be made, a communication prohibited by paragraph (b) of this section
shall promptly provide to the Secretary of the Commission:
(1) All such written communications;
(2) Memoranda stating the substance of and circumstances of all such
oral communications; and
(3) All written responses, and memoranda stating the substance of
all oral responses, to the materials described in paragraphs (c) (1) and
(2) of this section. The Secretary shall make relevant portions of any
such materials part of the public record of the Commission, pursuant to
Sec. 4.9, and place them in the docket binder of the proceeding to
which it pertains, but they will not be considered by the Commission as
part of the record for purposes of decision unless introduced into
evidence in the proceeding. The Secretary shall also send copies of the
materials to or otherwise notify all parties to the proceeding.
(d) Sanctions. (1) Upon receipt of an ex parte communication
knowingly made or knowingly caused to be made by a party and prohibited
by paragraph (b) of this section, the Commission, Administrative Law
Judge, or other employee presiding over the proceeding may, to the
extent consistent with the interests of justice and the policy of the
underlying statutes administered by the Commission, require the party to
show cause why his claim or interest in the proceeding should not be
dismissed, denied, disregarded, or otherwise adversely affected on
account of such violation. The Commission may take such action as it
considers appropriate, including but not limited to, action under Sec.
4.1(e)(2) and 5 U.S.C. 556(d).
(2) A person, not a party to the proceeding who knowingly makes or
causes to be made an ex parte communication prohibited by paragraph (b)
of this section shall be subject to all sanctions provided herein if he
subsequently becomes a party to the proceeding.
(e) The prohibitions of this section shall apply in an adjudicative
proceeding from the time the Commission votes to issue a complaint
pursuant to Sec. 3.11, to conduct adjudicative hearings pursuant to
Sec. 3.13, or to issue an order to show cause pursuant to Sec.
3.72(b), or from the time an order by a U.S. court
[[Page 99]]
of appeals remanding a Commission decision and order for further
proceedings becomes effective, until the time the Commission votes to
enter its decision in the proceeding and the time permitted by Sec.
3.55 to seek reconsideration of that decision has elapsed. For purposes
of this section, an order of remand by a U.S. court of appeals shall be
deemed to become effective when the Commission determines not to file a
petition for a writ of certiorari, or when the time for filing such a
petition has expired without a petition having been filed, or when such
a petition has been denied. If a petition for reconsideration of a
Commission decision is filed pursuant to Sec. 3.55, the provisions of
this section shall apply until the time the Commission votes to enter an
order disposing of the petition. In addition, the prohibitions of this
section shall apply with respect to communications concerning an
application for stay filed with the Commission pursuant to Sec. 3.56
from the time that the application is filed until its disposition.
(f) The prohibitions of paragraph (b) of this section do not apply
to a communication occasioned by and concerning a nonadjudicative
function of the Commission, including such functions as the initiation,
conduct, or disposition of a separate investigation, the issuance of a
complaint, or the initiation of a rulemaking or other proceeding,
whether or not it involves a party already in an adjudicative
proceeding; preparations for judicial review of a Commission order; a
proceeding outside the scope of Sec. 3.2, including a matter in state
or federal court or before another governmental agency; a
nonadjudicative function of the Commission, including but not limited to
an obligation under Sec. 4.11 or a communication with Congress; or the
disposition of a consent settlement under Sec. 3.25 concerning some or
all of the charges involved in a complaint and executed by some or all
respondents. The Commission, at its discretion and under such
restrictions as it may deem appropriate, may disclose to the public or
to respondent(s) in a pending adjudicative proceeding a communication
made exempt by this paragraph from the prohibitions of paragraph (b) of
this section, however, when the Commission determines that the interests
of justice would be served by the disclosure. The prohibitions of
paragraph (b) of this section also do not apply to a communication
between any member of the Commission, the Administrative Law Judge, or
any other employee who is or who reasonably may be expected to be
involved in the decisional process, and any employee who has been
directed by the Commission or requested by an individual Commissioner or
Administrative Law Judge to assist in the decision of the adjudicative
proceeding. Such employee shall not, however, have performed an
investigative or prosecuting function in that or a factually related
proceeding.
[42 FR 43974, Sept. 1, 1977, as amended at 44 FR 40637, July 12, 1979;
46 FR 32435, June 23, 1981; 50 FR 53306, Dec. 31, 1985; 51 FR 36802,
Oct. 16, 1986; 57 FR 10805, Mar. 31, 1992; 60 FR 37748, July 21, 1995;
60 FR 67325, Dec. 29, 1995]
Sec. 4.8 Costs for obtaining Commission records.
(a) Definitions. For the purpose of this section:
(1) The term search includes all time spent looking, manually or by
automated means, for material that is responsive to a request, including
page-by-page or line-by-line identification of material within
documents.
(2) The term duplication refers to the process of making a copy of a
document in order to respond to a request for Commission records.
(3) The term review refers to the examination of documents located
in response to a request to determine whether any portion of such
documents may be withheld, and the reduction or other processing of
documents for disclosure. Review does not include time spent resolving
general legal or policy issues regarding the release of the document.
(4) The term direct costs means expenditures that the Commission
actually incurs in processing requests. Not included in direct costs are
overhead expenses such as costs of document review facilities or the
costs of heating or lighting such a facility or other facilities in
which records are stored. The direct costs of specific services are set
forth in Sec. 4.8(b)(6).
[[Page 100]]
(b) Fees. User fees pursuant to 31 U.S.C. 483(a) and 5 U.S.C. 552(a)
shall be charged according to this paragraph.
(1) Commercial use requesters. Commercial use requesters will be
charged for the direct costs to search for, review, and duplicate
documents. A commercial use requester is a requester who seeks
information for a use or purpose that furthers the commercial, trade, or
profit interests of the requester or the person on whose behalf the
request is made.
(2) Educational requesters, non-commercial scientific institution
requesters, and representative of the news media. Requesters in these
categories will be charged for the direct costs to duplicate documents,
excluding charges for the first 100 pages. An educational institution is
a preschool, a public or private elementary or secondary school, an
institution of graduate higher education, an institution of
undergraduate higher education, an institution of professional
education, and an institution of vocational education, which operates a
program or programs of scholarly research. A non-commercial scientific
institution is an institution that is not operated on a commercial basis
as that term is referenced in paragraph (b)(1) of this section, and that
is operated solely to conduct scientific research the results of which
are not intended to promote any particular product or industry. A
representative of the news media is any person actively gathering news
for an entity that is organized and operated to publish or broadcast
news to the public. News means information that is about current events
or that would be of current interest to the public.
(3) Other requesters. Other requesters will be charged for the
direct costs to search for and duplicate documents, except that the
first 100 pages of duplication and the first two hours of search time
shall be furnished without charge.
(4) Waiver of small charges. Notwithstanding the provisions of
paragraphs (b)(1), (2), and (3) of this section, charges will be waived
if the total chargeable fees for a request do not exceed $14.00.
(5) Materials available without charge. These provisions do not
apply to recent Commission decisions and other materials that may be
made available to all requesters without charge while supplies last.
(6) Schedule of direct costs. The following uniform schedule of fees
applies to records held by all constituent units of the Commission:
Paper Fees:
Paper copy (up to 8.5x14).
Reproduced by Commission............... $0.14 per page.
Reproduced by Requester................ 0.05 per page.
Microfiche Fees:
Film Copy--Paper to 16mm film.......... 0.04 per frame.
Fiche Copy--Paper to 105mm fiche....... 0.08 per frame.
Film Copy--Duplication of existing 100 9.50 per roll.
ft. roll of 16mm film.
Fiche Copy--Duplication of existing 0.26 per fiche.
105mm fiche.
Paper Copy--Converting existing 16mm 0.26 per page.
film to paper (Conversion by
Commission Staff).
Paper Copy--Converting existing 105mm 0.23 per page.
fiche to paper (Conversion by
Commission Staff).
Film Cassettes......................... 2.00 per cassette.
Electronic Services:
Converting paper into electronic format 2.50 per page.
(scanning).
Computer programming................... 8.00 per qtr. hour.
Other Fees:
Computer Tape.......................... 18.50 each.
Certification.......................... 10.35 each.
Express Mail........................... 3.50 for first pound and
3.67 for each additional
pound (up to $15.00).
[[Page 101]]
Search and Review Fees
Agency staff is divided into three categories: clerical, attorney/
economist, and other professional. Fees for search and review are
assessed on a quarter-hourly basis, and are determined by identifying
the category into which the staff member(s) conducting the search or
review belong(s), determining the average quarter-hourly wages of all
staff members within that category, and adding 16 percent to reflect the
cost of additional benefits accorded to government employees. The exact
fees are calculated and announced periodically and are available from
the Consumer Response Center, Federal Trade Commission, 600 Pennsylvania
Avenue, NW., Washington, DC 20580; (202) 326-2222.
(c) Information to determine fees. Each request for records shall
set forth whether the request is made for other than commercial purposes
and whether the requester is an educational institution, a noncommercial
scientific institution, or a representative of the news media. The
deciding official (as designated by the General Counsel) initially, or
the General Counsel on appeal, will use this information, any additional
information provided by the requester, and any other relevant
information to determine the appropriate fee category in which to place
the requester.
(d) Agreement to pay fees. (1) Each request that does not contain an
application for a fee waiver shall specifically indicate the requester's
willingness either:
(i) To pay, in accordance with Sec. 4.8(b) of these rules, whatever
fees may be charged for processing the request; or
(ii) A willingness to pay such fees up to a specified amount.
(2) Each request that contains an application for a fee waiver must
specifically indicate:
(i) The requester's willingness to pay, in accordance with Sec.
4.8(b) of the rules, whatever fees may be charged for processing the
request;
(ii) The requester's willingness to pay fees up to a specified
amount; or
(iii) That the requester is not willing to pay fees if the waiver is
not granted.
(3) If the agreement required by this section is absent, and if the
estimated fees exceed $25.00, the requester will be advised of the
estimated fees and the request will not be processed until the requester
agrees to pay such fees.
(e) Public interest fee waivers--(1) Procedures. A requester may
apply for a waiver of fees. The requester shall explain why a waiver is
appropriate under the standards set forth in this paragraph. The
application shall also include a statement, as provided by paragraph (d)
of this section, of whether the requester agrees to pay costs if the
waiver is denied. The deciding official (as designated by the General
Counsel) initially, or the General Counsel on appeal, will rule on
applications for fee waivers.
(2) Standards. (i) The first requirement for a fee waiver is that
disclosure will likely contribute significantly to public understanding
of the operations or activities of the government. This requirement
shall be met if:
(A) The subject matter of the requested information concerns the
operations or activities of the Federal government;
(B) The disclosure is likely to contribute to an understanding of
these operations or activities;
(C) The understanding to which disclosure is likely to contribute is
the understanding of the public at large, as opposed to the
understanding of the individual requester or a narrow segment of
interested persons; and
(D) The likely contribution to public understanding will be
significant.
(ii) The second requirement for a fee waiver is that the request not
be primarily in the commercial interest of the requester. Satisfaction
of this requirement shall be determined by considering:
(A) Whether the requester has a commercial interest that would be
furthered by the requested disclosure; and
(B) If so, whether the public interest in disclosure is outweighed
by the identified commercial interest of the requester so as to render
the disclosure primarily in the requester's commercial interest.
(f) Unsuccessful searches. Charges may be assessed for search time
even if the agency fails to locate any responsive records or if it
locates only records
[[Page 102]]
that are determined to be exempt from disclosure.
(g) Aggregating requests. If the deciding official (as designated by
the General Counsel) initially, or the General Counsel on appeal,
reasonably believes that a requester, or a group of requesters acting in
concert, is attempting to evade an assessment of fees by dividing a
single request into a series of smaller requests, the requests may be
aggregated and fees charged accordingly.
(h) Advance payment. If the deciding official (as designated by the
General Counsel) initially, or the General Counsel on appeal, estimates
or determines that allowable charges that a requester may be required to
pay are likely to exceed $250.00, or if the requester has previously
failed to pay a fee within 30 days of the date of billing, the requester
may be required to pay some or all of the total estimated charge in
advance. Further, the requester may be required to pay all unpaid bills,
including accrued interest, prior to processing the request.
(i) Means of payment. Payment shall be made by check or money order
payable to the Treasury of the United States.
(j) Interest charges. The Commission will begin assessing interest
charges on an unpaid bill starting on the 31st day following the day on
which the bill was sent. Interest will accrue from the date of the
billing, and will be calculated at the rate prescribed in 31 U.S.C.
3717.
(k) Effect of the Debt Collection Act of 1982 (Pub. L. 97-365) The
Commission may pursue repayment, where appropriate, by employing the
provisions of the Debt Collection Act, Public Law 97-365), including
disclosure to consumer reporting agencies and use of collection
agencies.
[57 FR 10806, Mar. 31, 1992, as amended at 63 FR 45646, Aug. 26, 1998;
64 FR 3012, Jan. 20, 1999; 66 FR 64144, Dec. 12, 2001]
Sec. 4.9 The public record.
(a) General. (1) Materials on the public record of the Commission
are available for public inspection and copying either routinely or upon
request.
(2) Materials that are exempt from mandatory public disclosure, or
are otherwise not available from the Commission's public record, may be
made available for inspection and copying only upon request under the
procedures set forth in Sec. 4.11 of this part, or as provided in
Sec. Sec. 4.10 (d) through (g), 4.13, and 4.15(b)(3) of this part, or
by the Commission.
(3) Location. All of the public records of the Commission are
available for inspection at the principal office of the Commission on
each business day from 9 a.m. to 5 p.m., and copies of some of those
records are available at the regional offices on each business day from
8:30 a.m. to 5 p.m. Copies of records that the Commission is required to
make available to the public electronically, pursuant to 5 U.S.C.
552(a)(2), may be obtained in that format from the Commission's Web site
on the Internet, www.ftc.gov.
(4) Copying of public records--(i) Procedures. Reasonable facilities
for copying public records are provided at each office of the
Commission. Subject to appropriate limitations and the availability of
facilities, any person may copy public records available for inspection
at each of those offices. Further, the agency will provide copies to any
person upon request. Written requests for copies of public records shall
be addressed to the Supervisor, Consumer Response Center, and shall
specify as clearly and accurately as reasonably possible the records
desired. For records that cannot be specified with complete clarity and
particularity, requesters shall provide descriptions sufficient to
enable qualified Commission personnel to locate the records sought. In
any instance, the Commission, the Supervisor of the Consumer Response
Center, the General Counsel, the deciding official (as designated by the
General Counsel), or the official in charge of each office may prohibit
the use of Commission facilities to produce more than one copy of any
public record, and may refuse to permit the use of such facilities for
copying records that have been published or are publicly available at
places other than the offices of the Commission.
(ii) Costs; agreement to pay costs. Requesters will be charged
search and duplication costs prescribed by Rule 4.8 for requests under
this section. All requests shall include a statement of the
[[Page 103]]
information needed to determine fees, as provided by Sec. 4.8(c), and
an agreement to pay fees (or a statement that the requester will not pay
fees if a fee waiver is denied), as provided by Sec. 4.8(d). Requests
may also include an application for a fee waiver, as provided by Sec.
4.8(e). Advance payment may be required, as provided by Sec. 4.8(h).
(iii) Records for sale at another government agency. If requested
materials are available for sale at another government agency, the
requester will not be provided with copies of the materials but will be
advised to obtain them from the selling agency.
(b) Categories. Except to the extent material is confidential, as
provided in paragraph (c) of this section, the public record of the
Commission includes, but is not necessarily limited to:
(1) Commission Organization and Procedures (16 CFR part 0 and
Sec. Sec. 4.14 through 4.15, 4.17). (i) A current index of opinions,
orders, statements of policy and interpretations, administrative staff
manuals, general instructions and other public records of the
Commission;
(ii) A current record of the final votes of each member of the
Commission in all matters of public record, including matters of public
record decided by notational voting;
(iii) Descriptions of the Commission's organization, including
descriptions of where, from whom, and how the public may secure
information, submit documents or requests, and obtain copies of orders,
decisions and other materials;
(iv) Statements of the Commission's general procedures and policies
and interpretations, its nonadjudicative procedures, its rules of
practice for adjudicative proceedings, and its miscellaneous rules,
including descriptions of the nature and requirements of all formal and
informal procedures available, and
(v) Reprints of the principal laws under which the Commission
exercises enforcement or administrative responsibilities.
(2) Industry Guidance (16 CFR 1.1-1.6). (i) Any advice, advisory
opinion or response given and required to be made public under
Sec. Sec. 1.4 and 2.41 (d) or (f) of this chapter (whether by the
Commission or the staff), together with a statement of supporting
reasons;
(ii) Industry guides, digests of advisory opinions and compliance
advice believed to be of interest to the public generally and other
administrative interpretations;
(iii) Transcripts of hearings in all industry guide proceedings, as
well as written statements filed with or forwarded to the Commission in
connection with these proceedings; and
(iv) Petitions filed with the Secretary of the Commission for the
promulgation or issuance, amendment, or repeal of industry guides.
(3) Rulemaking (16 CFR 1.7 through 1.26). (i) Petitions filed with
the Secretary of the Commission for the promulgation or issuance,
amendment, or repeal of rules or regulations within the scope of
Sec. Sec. 1.7 and 1.21 of this chapter, and petitions for exemptions;
(ii) Notices and advance notices of proposed rulemaking and rules
and orders issued in rulemaking proceedings; and
(iii) Transcripts of hearings of all rulemaking proceedings, as well
as written statements filed with or forwarded to the Commission in
connection with these proceedings.
(4) Investigations (16 CFR 2.7). (i) Petitions to limit or quash
compulsory process and the rulings thereon, requests for review by the
full Commission of those rulings, and Commission rulings on such
requests; and
(ii) Closing letters in initial phase and full phase investigations.
(5) Adjudicative proceedings, stay applications, requests to reopen,
and litigated orders. (16 CFR 2.51, 3.1 through 3.24, 3.31 through 3.56,
3.71 through 3.72, 4.7)--Except for transcripts of matters heard in
camera pursuant to Sec. 3.45 and material filed in camera pursuant to
Sec. Sec. 3.22, 3.24, 3.45, 3.46, 3.51 and 3.52,
(i) The versions of pleadings and transcripts of prehearing
conferences to the extent made available under Sec. 3.21(e), motions,
certifications, orders, and the transcripts of hearings (including
public conferences), testimony, oral arguments, and other material made
a part thereof, and exhibits and material received in evidence or made a
part of the public record in adjudicative proceedings;
[[Page 104]]
(ii) Initial decisions of administrative law judges;
(iii) Orders and opinions in interlocutory matters;
(iv) Final orders and opinions in adjudications, and rulings on stay
applications, including separate statements of Commissioners;
(v) Petitions for reconsideration, and answers thereto, filed
pursuant to Sec. 3.55;
(vi) Applications for stay, answers thereto, and replies, filed
pursuant to Sec. 3.56;
(vii) Petitions, applications, pleadings, briefs, and other records
filed by the Commission with the courts in connection with adjudicative,
injunctive, enforcement, compliance, and condemnation proceedings, and
in connection with judicial review of Commission actions, and opinions
and orders of the courts in disposition thereof;
(viii) Records of ex parte communications in adjudicative
proceedings and stay applications;
(ix) Petitions to reopen proceedings and orders to determine whether
orders should be altered, modified, or set aside in accordance with
Sec. 2.51; and
(x) Decisions reopening proceedings, and orders to show cause under
Sec. 3.72.
(6) Consent agreements (16 CFR 2.31 through 2.34, 3.25). (i)
Agreements containing orders, after acceptance by the Commission
pursuant to Sec. Sec. 2.34 and 3.25(f) of this chapter;
(ii) Comments and other materials filed or placed on the public
record under Sec. Sec. 2.34 and 3.25(f) concerning proposed consent
agreements and related orders; and
(iii) Decisions and orders issued and served under Sec. Sec. 2.34
and 3.25(f), including separate statements of Commissioners.
(7) Compliance/enforcement (16 CFR 2.33, 2.41). (i) Reports of
compliance filed pursuant to the rules in this chapter or pursuant to a
provision in a Commission order and supplemental materials filed in
connection with these reports, except for reports of compliance, and
supplemental materials filed in connection with Commission orders
requiring divestitures or establishment of business enterprises of
facilities, which are confidential until the last divestiture or
establishment of a business enterprise or facility, as required by a
particular order, has been finally approved by the Commission, and staff
letters to respondents advising them that their compliance reports do
not warrant any further action. At the time each such report is
submitted the filing party may request confidential treatment in
accordance with paragraph (c) of this section and the General Counsel or
the General Counsel's designee will pass upon such request in accordance
with that paragraph;
(ii) Materials required to be made public under 16 CFR 2.41(f) in
connection with applications for approval of proposed divestitures,
acquisitions or similar transactions subject to Commission review under
outstanding orders.
(8) Access to documents and meetings (16 CFR 4.8, 4.11, 4.13, 4.15).
(i) Letters requesting access to Commission records pursuant to Sec.
4.11(a) of this chapter and the Freedom of Information Act, 5 U.S.C.
552, and letters granting or denying such requests (not including access
requests and answers thereto from the Congress or other government
agencies);
(ii) Announcements of Commission meetings as required under the
Sunshine Act, 5 U.S.C. 552b, including records of the votes to close
such meetings;
(iii) Summaries or other explanatory materials relating to matters
to be considered at open meetings made available pursuant to Sec.
4.15(b)(3)
(iv) Commission minutes of open meetings, and, to the extent they
are not exempt from mandatory public disclosure under the Sunshine Act
or the Freedom of Information Act, portions of minutes or transcripts of
closed meetings; and
(v) A guide for requesting records or information from the
Commission, including an index of all major information systems, a
description of major information and record locator systems maintained
by the Commission, and a handbook for obtaining various types and
categories of public information.
(9) Standards of conduct (16 CFR 5.5 through 5.6, 5.10 through 5.26,
5.31, 5.57 through 5.68). (i) Memoranda to staff
[[Page 105]]
elaborating or clarifying standards described in administative staff
manuals and part 5 of this subchapter.
(10) Miscellaneous (press releases, clearance requests, reports
filed by or with the Commission, continuing guaranties, registered
identification numbers). (i) Releases by the Commission's Office of
Public Affairs supplying information concerning the activities of the
Commission;
(ii) Applications under Sec. 4.1(b)(2) of this chapter for
clearance or authorization to appear or participate in a proceeding or
investigation and of the Commission's responses thereto;
(iii) Continuing guaranties filed under the Wool, Fur, and Textile
Acts;
(iv) Published reports by the staff or by the Commission on economic
surveys and investigations of general interest;
(v) Filings by the Commission or by the staff in connection with
proceedings before other federal agencies or state or local government
bodies;
(vi) Registration statements and annual reports filed with the
Commission by export trade associations, and bulletins, pamphlets, and
reports with respect to such associations released by the Commission;
(vii) The identities of holders of registered identification numbers
issued by the Commission pursuant to Sec. 1.32 of this chapter;
(viii) The Commission's annual report submitted after the end of
each fiscal year, summarizing its work during the year (available for
inspection at each of the offices of the Commission with copies
obtainable from the Superintendent of Documents, U.S. Government
Printing Office, Washington, DC 20402) and any other annual reports made
to Congress on activities of the Commission as required by law;
(ix) Records, as determined by the General Counsel or his or her
designee, that have been released in response to a request made under
the Freedom of Information Act, 5 U.S.C. 552, and which, because of the
nature of the subject matter, have become or are likely to become the
subject of subsequent requests for substantially the same records,
except where some or all of those records would be exempt from
disclosure under 5 U.S.C. 552 if requested by another party;
(x) A general index of the records referred to under paragraph
(b)(10)(ix) of this section;
(xi) Grants of early termination of waiting periods published in
accordance with the Hart-Scott-Rodino premerger notification provisions
of the Clayton Act, 15 U.S.C. 18a(b)(2);
(xii) Reports on appliance energy consumption or efficiency filed
with the Commission pursuant to Sec. 305.8 of this chapter;
(xiii) Annual filings by professional boxing sanctioning
organizations as required by the Muhammed Ali Boxing Reform Act, 15
U.S.C. 6301 note, 6307a-6307h;
(xiv) Other documents that the Commission has determined to place on
the public record; and
(xv) Every amendment, revision, substitute, or repeal of any of the
foregoing items listed in Sec. 4.9(b)(1) through (10) of this section.
(c) Confidentiality and in camera material. (1) Persons submitting
material to the Commission described in this section may designate that
material or portions of it confidential and request that it be withheld
from the public record. All requests for confidential treatment shall be
supported by a showing of justification in light of applicable statutes,
rules, orders of the Commission or its administrative law judges, orders
of the courts, or other relevant authority. The General Counsel or the
General Counsel's designee will act upon such request with due regard
for legal constraints and the public interest. No such material or
portions of material (including documents generated by the Commission or
its staff containing or reflecting such material or portions of
material) will be placed on the public record until the General Counsel
or the General Counsel's designee has ruled on the request for
confidential treatment and provided any prior notice to the submitter
required by law.
(2) Motions seeking in camera treatment of material submitted in
connection with a proceeding under part 3 of these rules, except stay
applications
[[Page 106]]
under Sec. 3.56, shall be filed with the Administrative Law Judge who
is presiding over the proceeding. Requests for confidential treatment of
material submitted in connection with a stay application shall be made
in accordance with Sec. 4.9(c)(1).
(3) To the extent that any material or portions of material
otherwise falling within paragraph (b) of this section contain
information that is not required to be made public under Sec. 4.10 of
this part, the General Counsel or the General Counsel's designee may
determine, with due regard for legal constraints and the public
interest, to withhold such materials from the public record.
[50 FR 50779, Dec. 12, 1985, as amended at 57 FR 10805, Mar. 31, 1992;
59 FR 34970, July 8, 1994; 60 FR 37749, July 21, 1995; 63 FR 18820, Apr.
16, 1998; 63 FR 32977, June 17, 1998; 63 FR 45647, Aug. 26, 1998; 64 FR
46269, Aug. 25, 1999; 66 FR 17633, Apr. 3, 2001; 66 FR 64144, Dec. 12,
2001]
Sec. 4.10 Nonpublic material.
(a) The following records and other material of the Commission are
not required to be made public pursuant to 5 U.S.C. 552.
(1) Records, except to the extent required to be disclosed under
other laws or regulations, related solely to the internal personnel
rules and practices of the Commission. This exemption applies to
internal rules or instructions to Commission personnel which must be
kept confidential in order to assure effective performance of the
functions and activities for which the Commission is responsible and
which do not affect members of the public.
(2) Trade secrets and commercial or financial information obtained
from a person and privileged or confidential. As provided in section
6(f) of the Federal Trade Commission Act, 15 U.S.C. 46(f), this
exemption applies to competitively sensitive information, such as costs
or various types of sales statistics and inventories. It includes trade
secrets in the nature of formulas, patterns, devices, and processes of
manufacture, as well as names of customers in which there is a
proprietary or highly competitive interest.
(3) Interagency or intra-agency memoranda or letters which would not
routinely be available by law to a private party in litigation with the
Commission. This exemption preserves the existing freedom of Commission
officials and employees to engage in full and frank communication with
each other and with officials and employees of other governmental
agencies. This exemption includes records of the deliberations of the
Commission except for the record of the final votes of each member of
the Commission in every agency proceeding. It includes intraagency and
interagency reports, memorandums, letters, correspondence, work papers,
and minutes of meetings, as well as staff papers prepared for use within
the Commission or between the Commission and other governmental
agencies. It also includes information scheduled for public release, but
as to which premature release would be contrary to the public interest;
(4) Personnel and medical files and similar files the disclosure of
which would constitute a clearly unwarranted invasion of personal
privacy except to the extent such files or materials must be disclosed
under other laws or regulations. This exemption applies to personnel and
medical records and similar records containing private or personal
information concerning any individual which, if disclosed to any person
other than the individual concerned or his designated legal
representative without his permission in writing, would constitute a
clearly unwarranted invasion of personal privacy. Examples of files
exempt from disclosure include, but are not limited to:
(i) The personnel records of the Commission;
(ii) Files containing reports, records or other material pertaining
to individual cases in which disciplinary or other administrative action
has been or may be taken, including records of proceedings pertaining to
the conduct or performance of duties by Commission personnel;
(5) Records or information compiled for law enforcement purposes,
but only to the extent that production of such law enforcement records
or information:
[[Page 107]]
(i) Could reasonably be expected to interfere with enforcement
proceedings;
(ii) Would deprive a person of a right to a fair trial or an
impartial adjudication;
(iii) Could reasonably be expected to constitute an unwarranted
invasion of personal privacy;
(iv) Could reasonably be expected to disclose the identity of a
confidential source, including a State, local, or foreign agency or
authority or any private institution that furnished information on a
confidential basis, and, in the case of a record or information compiled
by a criminal law enforcement authority in the course of a criminal
investigation, or by an agency conducting a lawful national security
intelligence investigation, information furnished by a confidential
source;
(v) Would disclose techniques and procedures for law enforcement
investigations or prosecutions, or would disclose guidelines for law
enforcement investigations or prosecutions if such disclosure could
reasonably be expected to risk circumvention of the law; or
(vi) Could reasonably be expected to endanger the life or physical
safety of any individual.
(6) Information contained in or related to examination, operating,
or condition reports prepared by, on behalf of, or for the use of an
agency responsible for the regulation or supervision of financial
institutions;
(7) Geological and geophysical information and data, including maps,
concerning wells; and
(8) Material, as that term is defined in section 21(a) of the
Federal Trade Commission Act, which is received by the Commission:
(i) In an investigation, a purpose of which is to determine whether
any person may have violated any provision of the laws administered by
the Commission; and
(ii) Which is provided pursuant to any compulsory process under the
Federal Trade Commission Act, 15 U.S.C. 41, et seq., or which is
provided voluntarily in place of compulsory process in such an
investigation. See section 21(f) of the Federal Trade Commission Act.
(9) Material, as that term is defined in section 21(a) of the
Federal Trade Commission Act, which is received by the Commission
pursuant to compulsory process in an investigation, a purpose of which
is to determine whether any person may have violated any provision of
the laws administered by the Commission. See section 21(b)(3)(C) of the
Federal Trade Commission Act.
(10) Such other material of the Commission as may from time to time
be designated by the Commission as confidential pursuant to statute or
Executive Order. This exempts from disclosure any information that has
been designated nonpublic pursuant to criteria and procedures prescribed
by Executive Order and that has not been subsequently declassified in
accordance with applicable procedures. The exemption also preserves the
full force and effect of statutes that restrict public access to
specific government records or material.
(11) Material in an investigation or proceeding that involves a
possible violation of criminal law, when there is reason to believe that
the subject of the investigation or proceeding is not aware of its
pendency, and disclosure of the existence of the investigation could
reasonably be expected to interfere with enforcement proceedings. When a
request is made for records under Sec. 4.11(a), the Commission may
treat the records as not subject to the requirements of the Freedom of
Information Act.
(b) With respect to information contained in transcripts of
Commission meetings, the exemptions contained in paragraph (a) of this
section, except for paragraphs (a)(3) and (a)(7) of this section, shall
apply; in addition, such information will not be made available if it is
likely to have any of the effects described in 5 U.S.C. 552b (c)(5),
(c)(9), or (c)(10).
(c) Under section 10 of the Federal Trade Commission Act, any
officer or employee of the Commission who shall make public any
information obtained by the Commission, without its authority, unless
directed by a court, shall be deemed guilty of a misdemeanor, and
[[Page 108]]
upon conviction thereof, may be punished by a fine not exceeding five
thousand dollars ($5,000), or by imprisonment not exceeding 1 year, or
by fine and imprisonment, in the discretion of the court.
(d) Except as provided in paragraphs (f) or (g) of this section or
in Sec. 4.11(b), (c), (d), (i), or (j), no material that is marked or
otherwise identified as confidential and that is within the scope of
Sec. 4.10(a)(8), and no material within the scope of Sec. 4.10(a)(9)
that is not otherwise public, will be made available without the consent
of the person who produced the material, to any individual other than a
duly authorized officer or employee of the Commission or a consultant or
contractor retained by the Commission who has agreed in writing not to
disclose the information. All other Commission records may be made
available to a requester under the procedures set forth in Sec. 4.11 or
may be disclosed by the Commission except where prohibited by law.
(e) Except as provided in paragraphs (f) or (g) of this section or
in Sec. 4.11(b), (c), (d), (i), or (j), material not within the scope
of Sec. 4.10(a)(8) or Sec. 4.10(a)(9) that is received by the
Commission and is marked or otherwise identified as confidential may be
disclosed only if it is determined that the material is not within the
scope of Sec. 4.10(a)(2), and the submitter is provided at least ten
days notice of the intent to disclose the material.
(f) Nonpublic material obtained by the Commission may be disclosed
to persons other than the submitter in connection with the taking of
oral testimony without the consent of the submitter only if the material
or transcript is not within the scope of Sec. 4.10(a)(2). If the
material is marked confidential, the submitter will be provided 10 days'
notice of the intended disclosure or will be afforded an opportunity to
seek an appropriate protective order.
(g) Material obtained by the Commission:
(1) Through compulsory process and protected by section 21(b) of the
Federal Trade Commission Act, 15 U.S.C. 57b-2(b) or voluntarily in lieu
thereof and designated by the submitter as confidential and protected by
section 21(f) of the Federal Trade Commission Act, 15 U.S.C. 57b-2(f),
and Sec. 4.10(d) of this part; or
(2) That is designated by the submitter as confidential, and
protected by section 21(c) of the Federal Trade Commission Act, 15
U.S.C. 57b-2(c), and Sec. 4.10(e) of this part; or
(3) That is confidential commercial or financial information
protected by section 6(f) of the Federal Trade Commission Act, 15 U.S.C.
46(f), and Sec. 4.10(a)(2) of this part, may be disclosed in Commission
administrative or court proceedings subject to Commission or court
protective or in camera orders as appropriate. See Sec. Sec. 1.18(b)
and 3.45.
Prior to disclosure of such material in a proceeding, the submitter will
be afforded an opportunity to seek an appropriate protective or in
camera order. All other material obtained by the Commission may be
disclosed in Commission administrative or court proceedings at the
discretion of the Commission except where prohibited by law.
(15 U.S.C. 41 et seq.)
[38 FR 1731, Jan. 18, 1973, as amended at 40 FR 7629, Feb. 21, 1975; 40
FR 23278, May 29, 1975; 42 FR 13540, Mar. 11, 1977; 46 FR 26291, May 12,
1981; 49 FR 30166, July 27, 1984; 54 FR 7399, Feb. 21, 1989; 57 FR
10807, Mar. 31, 1992; 60 FR 37749, July 21, 1995; 63 FR 38473, July 17,
1998; 65 FR 67259, Nov. 9, 2000; 66 FR 17633, Apr. 3, 2001; 72 FR 28853,
May, 23, 2007]
Sec. 4.11 Disclosure requests.
(a) Freedom of Information Act requests--(1) Initial requests--(i)
Form and contents; time of receipt. (A) A request under the provisions
of the Freedom of Information Act, 5 U.S.C. 552, as amended, for access
to Commission records shall be in writing and addressed as follows:
Freedom of Information Act Request, Office of the General Counsel,
Federal Trade Commission, 600 Pennsylvania Avenue, NW., Washington, DC
20580.
(B) Failure to mark the envelope and the request in accordance with
paragraph (a)(1)(i)(A) of this section, or the filing of a request for
expedited treatment under paragraph (a)(1)(i)(E) of this section, will
result in the request (or requests, if expedited treatment has been
requested) being treated as received on the date that the processing
[[Page 109]]
unit in the Office of General Counsel actually receives the request(s).
(C) Costs; agreement to pay costs. Requesters will be charged search
and duplication costs prescribed by Rule 4.8 for requests under this
section. All requests shall include a statement of the information
needed to determine fees, as provided by Sec. 4.8(c), and an agreement
to pay fees (or a statement that the requester will not pay fees if a
fee waiver is denied), as provided by Sec. 4.8(d). Requests may also
include an application for a fee waiver, as provided by Sec. 4.8(e). An
advance payment may be required in appropriate cases as provided by
Sec. 4.8(h).
(D) Failure to agree to pay fees. If a request does not include an
agreement to pay fees, and if the requester is notified of the estimated
costs pursuant to Rule 4.8(d)(3), the request will be deemed not to have
been received until the requester agrees to pay such fees. If a
requester declines to pay fees and is not granted a fee waiver, the
request will be denied.
(E) Expedited treatment. Requests may include an application for
expedited treatment. Where such an application is not included with an
initial request for access to records under paragraph (a)(1) of this
section, the application may be included in any appeal of that request
filed under paragraph (a)(2) of this section. Such application, which
shall be certified by the requester to be true and correct to the best
of such person's knowledge and belief, shall describe the compelling
need for expedited treatment, including an explanation as to why a
failure to obtain the requested records on an expedited basis could
reasonably be expected to pose an imminent threat to the life or
physical safety of an individual, or, with respect to a request made by
a person primarily engaged in disseminating information, an explanation
of the urgency to inform the public concerning actual or alleged Federal
Government activity. The deciding official (as designated by the General
Counsel) will, within 10 calendar days of receipt of a request for
expedited treatment, notify the requester, in writing, of the decision
to either grant or deny the request for expedited treatment, and, if the
request is denied, advise the requester that this determination may be
appealed to the General Counsel.
(F) Records for sale at another government agency. If requested
materials are available for sale at another government agency, the
requester will not be provided with copies of the materials but will be
advised to obtain them from the selling agency.
(ii) Identifiability. (A) A request for access to Commission records
must reasonably describe the records requested to enable Commission
personnel to identify and locate them with a reasonable amount of
effort. A request should be as specific as possible, and include, where
known, information regarding dates, titles, file designations, location,
and any other information which may assist the Commission in identifying
and locating the records requested.
(B) A denial of a request may state that the description required by
paragraph (a)(1)(ii)(A) of this section is insufficient to allow
identification and location of the records.
(iii) Time limit for initial determination. (A) The deciding
official (as designated by the General Counsel) will, within 20 working
days of the receipt of a request, either grant or deny, in whole or in
part, such request, unless the request has been granted expedited
treatment in accordance with this section, in which case the request
will be processed as soon as practicable.
(B) Except in exceptional circumstances as provided in paragraph
(a)(1)(iii)(C) of this section, the deciding official (as designated by
the General Counsel) may extend the time limit by not more than 10
working days if such extension is:
(1) Necessary for locating records or transferring them from
physically separate facilities; or
(2) Necessary to search for, collect, and appropriately examine a
voluminous amount of separate and distinct records which are sought in a
single or series of closely related requests; or
(3) Necessary for consultation with another agency having a
substantial interest in the determination, or for consultation among two
or more components of the Commission having substantial subject matter
interest therein.
[[Page 110]]
(C) If the deciding official (as designated by the General Counsel)
extends the time limit for initial determination pursuant to paragraph
(a)(1)(iii)(B) of this section, the requester will be notified in
accordance with 5 U.S.C. 552(a)(6)(B). In exceptional circumstances,
when the request cannot be processed within the extended time limit, the
requester will be so notified and provided an opportunity to limit the
scope of the request so that it may be processed within such time limit,
or to arrange an alternative time frame for processing the request or a
modified request. ``Exceptional'' circumstances will not include delays
resulting from a predictable workload of requests under this section.
Unwillingness to make reasonable modifications in the scope of the
request or to agree to an alternative time frame may be considered as
factors in determining whether exceptional circumstances exist and
whether the agency has exercised due diligence in responding to the
request.
(D) If the deciding official (as designated by the General Counsel)
reasonably believes that requests made by a requester, or a group of
requesters acting in concert, actually constitute a single request that
would otherwise involve unusual circumstances, as specified in paragraph
(a)(1)(iii)(B) of this section, and the requests involve clearly related
matters, those multiple requests may be aggregated.
(E) If a request is not granted within the time limits set forth in
paragraphs (a)(1)(iii) (A) and (B) of this section, the request shall be
deemed to be denied and the requesting party may appeal such denial to
the General Counsel in accordance with paragraph (a)(2) of this section.
(iv) Initial determination. (A) The deciding official (as designated
by the General Counsel) will make reasonable efforts to search, using
either manual or electronic means, for the requested records in
electronic form or format, except when such efforts would significantly
interfere with the operation of the Commission's automated information
systems. Access will be granted to requested records, or any portions
thereof, that must be made available under the Freedom of Information
Act. Access will be denied to records that are exempt under the Freedom
of Information Act, 5 U.S.C. 552(b), unless the deciding official (as
designated by the General Counsel) determines that such records fall
within a category the Commission or the General Counsel has previously
authorized to be made available to the public as a matter of policy.
Denials will set forth the reasons therefor and advise the requester
that this determination may be appealed to the General Counsel if the
requester believes either that the records are not exempt, or that the
General Counsel should exercise discretion to release such records
notwithstanding their exempt status. The deciding official (as
designated by the General Counsel) will also provide a reasonable, good-
faith estimate of the volume of any materials to which access is denied,
unless providing such an estimate would harm an interest protected by an
exemption in 5 U.S.C. 552(b) that was cited as a basis for withholding
materials.
(B) The deciding official (as designated by the General Counsel) is
deemed to be the sole official responsible for all denials of initial
requests, except denials of access to materials contained in active
investigatory files, in which case the Director or Deputy Director of
the Bureau or the Director of the Regional Office responsible for the
investigation will be the responsible official.
(C) Records to which access has been granted will be made available
to the requester in any form or format specified by the requester, if
the records are readily reproducible in that form or format, or can be
converted to that form or format with a reasonable amount of effort, and
they will remain available for inspection and copying for a period not
to exceed 30 days from date of notification to the requester unless the
requester asks for and receives the consent of the deciding official (as
designated by the General Counsel) to a longer period. Records assembled
pursuant to a request will remain available only during this period and
thereafter will be refiled. Appropriate fees may be imposed for any new
or renewed request for the same records.
[[Page 111]]
(D) If a requested record cannot be located from the information
supplied, or is known to have been destroyed or otherwise disposed of,
the requester shall be so notified.
(2) Appeals to the General Counsel from initial denials--(i) Form
and contents; time of receipt. (A)(1) If an initial request for
expedited treatment is denied, the requester, at any time before the
initial determination of the underlying request for records by the
deciding official (as designated by the General Counsel) (or, if the
request for expedited treatment was filed with any appeal filed under
paragraph (a)(2)(i)(A)(2) of this section, at any time before the
General Counsel's determination on such an appeal), may appeal the
denial of expedited treatment to the General Counsel.
(2) If an initial request for records is denied in its entirety, the
requester may, within 30 days of the date of the determination, appeal
such denial to the General Counsel. If an initial request is denied in
part, the time for appeal will not expire until 30 days after the date
of the letter notifying the requester that all records to which access
has been granted have been made available.
(3) The appeal shall be in writing and should include a copy of the
initial request and a copy of the response to that initial request, if
any. The appeal shall be addressed as follows: Freedom of Information
Act Appeal, Office of the General Counsel, Federal Trade Commission, 600
Pennsylvania Avenue, NW., Washington, DC 20580.
(B) Failure to mark the envelope and the appeal in accordance with
paragraph (a)(2)(i)(A) of this section will result in the appeal (and
any request for expedited treatment filed with that appeal) being
treated as received on the actual date of receipt by the Office of
General Counsel.
(C) Each appeal to the General Counsel which requests him to
exercise his discretion to release exempt records shall set forth the
interest of the requester in the subject matter and the purpose for
which the records will be used if the request is granted.
(ii) Time limit for appeal. (A)(1) Regarding appeals from initial
denials of a request for expedited treatment, the General Counsel will
either grant or deny the appeal expeditiously;
(2) Regarding appeals from initial denials of a request for records,
the General Counsel will, within 20 working days of the receipt of such
an appeal, either grant or deny it, in whole or in part, unless
expedited treatment has been granted in accordance with this section, in
which case the appeal will be processed as soon as practicable.
(B) The General Counsel may, by written notice to the requester in
accordance with 5 U.S.C. 552(a)(6)(B), extend the time limit for
deciding an appeal by not more than 10 working days pursuant to
paragraph (a)(1)(iii)(B) of this section, provided that the amount of
any extension utilized during the initial consideration of the request
under that paragraph will be subtracted from the amount of additional
time otherwise available. Where exceptional circumstances do not permit
the processing of the appeal within the extended time limit, the notice
and procedures set forth in paragraph (a)(1)(iii)(C) of this section
shall apply.
(iii) Determination of appeal. (A) The General Counsel has the
authority to grant or deny all appeals and to release as an exercise of
discretion records exempt from mandatory disclosure under 5 U.S.C.
552(b). In unusual or difficult cases, the General Counsel may, in his
or her sole discretion, refer an appeal to the Commission for
determination. A denial of an appeal in whole or in part will set forth
the basis for the denial; will include a reasonable, good-faith estimate
of the volume of any materials to which access is denied, unless
providing such an estimate would harm an interest protected by an
exemption in 5 U.S.C. 552(b) that was cited as a basis for withholding
materials; and will advise the requester that judicial review of the
decision is available by civil suit in the district in which the
requester resides, or has his principal place of business, or in which
the agency records are situated, or in the District of Columbia.
(B) The General Counsel shall be deemed solely responsible for all
denials of appeals, except where an appeal is denied by the Commission.
In such instances, the Commission shall be
[[Page 112]]
deemed solely responsible for the denial.
(b) Requests from congressional committees and subcommittees.
Requests from congressional committees and subcommittees for nonpublic
material shall be referred to the General Counsel for presentation to
the Commission, subject to the provisions in 5 U.S.C. 552(c) and FTC Act
21(b) that neither the Freedom of Information Act, 5 U.S.C. 552, nor the
Federal Trade Commission Act, 15 U.S.C. 41, et seq., is authority to
withhold information from Congress. Upon receipt of a request from a
congressional committee or subcommittee, notice will be given to the
submitter of any material marked confidential, or any material within
the scope of Sec. 4.10(a)(9), that is responsive to the request that
the request has been received. No other notice need be provided prior to
granting the request. The Commission will inform the committee or
subcommittee that the submitter considers such information confidential.
(c) Requests from Federal and State law enforcement agencies.
Requests from law enforcement agencies of the Federal and State
governments for nonpublic records shall be addressed to a liaison
officer, where the Commission has appointed such an officer, or if there
is none, to the General Counsel. With respect to requests under this
paragraph, the General Counsel, the General Counsel's designee, or the
appropriate liaison officer is delegated the authority to dispose of
them. Alternatively, the General Counsel may refer such requests to the
Commission for determination, except that requests must be referred to
the Commission for determination where the Bureau having the material
sought and the General Counsel do not agree on the disposition. Prior to
granting access under this section to any material submitted to the
Commission, the General Counsel, the General Counsel's designee, or the
liaison officer will obtain from the requester a certification that such
information will be maintained in confidence and will be used only for
official law enforcement purposes. The certificate will also describe
the nature of the law enforcement activity and the anticipated relevance
of the information to that activity. A copy of the certificate will be
forwarded to the submitter of the information at the time the request is
granted unless the agency requests that the submitter not be notified.
Requests for material pursuant to compulsory process, or for voluntary
testimony, in cases or matters in which the Commission is not a party
will be treated in accordance with paragraph (e) of this section.
(d) Requests from Federal and State agencies for purposes other than
law enforcement. Requests from Federal and State agencies for access to
nonpublic records for purposes not related to law enforcement should be
addressed to the General Counsel. The General Counsel or the General
Counsel's designee is delegated the authority to dispose of requests
under this paragraph. Disclosure of nonpublic information will be made
consistent with sections 6(f) and 21 of the FTC Act. Requests under this
section shall be subject to the fee and fee waiver provisions of Sec.
4.8. Requests for material pursuant to compulsory process, or for
voluntary testimony, in cases or matters in which the Commission is not
a party will be treated in accordance with paragraph (e) of this
section.
(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. (1) The
procedures specified in this section will apply to compulsory process
and requests for voluntary testimony directed to Commission employees,
except special government employees, that relate in any way to the
employees' official duties. These procedures will also apply to
compulsory process and requests for voluntary testimony directed to
former Commission employees or to current or former special government
employees of the Commission that seek nonpublic materials or information
acquired during Commission employment. The provisions of paragraph
(e)(3) of this section will also apply when requests described above are
directed to the Commission. For purposes of this section, the term
testimony includes any written or oral statement by a witness, such as
depositions, affidavits, declarations, and
[[Page 113]]
statements at a hearing or trial; the term nonpublic includes any
material or information which, under Sec. 4.10, is not required to be
made public; the term employees, except where otherwise specified,
includes special government employees and other Commission employees;
and the term special government employees includes consultants and other
employees as defined by section 202 of title 18 of the United States
Code.
(2) Any employee or former employee who is served with compulsory
process shall promptly advise the General Counsel of its service, the
nature of the material or information sought, and all relevant facts and
circumstances. This notification requirement also applies to any
employee or former employee whose testimony is sought on a voluntary
basis under the conditions set forth in paragraph (e)(1) of this
section.
(3) A party who causes compulsory process to be issued to, or who
requests testimony by, the Commission or any employee or former employee
of the Commission shall furnish a statement to the General Counsel,
unless, with respect to a request by a Federal or State agency, the
General Counsel determines, as a matter of discretion, to waive this
requirement. The statement shall set forth the party's interest in the
case or matter, the relevance of the desired testimony or material, and
a discussion of whether it is reasonably available from other sources.
If testimony is desired, the statement shall also contain a general
summary of the testimony and a discussion of whether Commission records
could be produced and used in its place. Any authorization for testimony
will be limited to the scope of the demand as summarized in such
statement.
(4) Absent authorization from the General Counsel, the employee or
former employee shall respectfully decline to produce requested material
or to disclose requested information. The refusal should be based on
this paragraph and on United States ex rel. Touhy v. Ragen, 340 U.S. 462
(1951).
(5) The General Counsel will consider and act upon compulsory
process and requests for voluntary testimony under this section with due
regard for statutory restrictions, the Commission's rules and the public
interest, taking into account such factors as the need to conserve the
time of employees for conducting official business; the need to avoid
spending the time and money of the United States for private purposes;
the need to maintain impartiality between private litigants in cases
where a substantial government interest is not involved; and the
established legal standards for determining whether justification exists
for the disclosure of confidential information and material.
(6) Invitations to testify before Congressional committees or
subcommittees or to testify before other government bodies on the
possible effects of legislative and regulatory proposals are not subject
to paragraphs (e)(1) through (5) of this section.
(f) Requests by current or former employees to use nonpublic
memoranda as writing samples shall be addressed to the General Counsel.
The General Counsel or the General Counsel's designee is delegated the
authority to dispose of such requests consistent with applicable
nondisclosure provisions, including sections 6(f) and 21 of the FTC Act.
(g) Employees are encouraged to engage in teaching, lecturing, and
writing that is not prohibited by law, Executive order, or regulation.
However, an employee shall not use information obtained as a result of
his Government employment, except to the extent that such information
has been made available to the general public or will be made available
on request, or when the General Counsel or the General Counsel's
designee gives written authorization for the use of nonpublic
information on the basis that the use is in the public interest.
(h) The General Counsel (or General Counsel's designee) may
authorize a Commission member, other Commission official, or Commission
staff to disclose an item or category of information from Commission
records not currently available to the public for routine inspection and
copying under Rule 4.9(b) where the General Counsel (or General
Counsel's designee) determines that such disclosure would facilitate the
conduct of official agency business and would not otherwise be
[[Page 114]]
prohibited by applicable law, order, or regulation. Requests for such
determinations shall be set forth in writing and, in the case of staff
requests, shall be forwarded to the General Counsel (or General
Counsel's designee) through the relevant Bureau. In unusual or difficult
cases, the General Counsel may refer the request to the Commission for
determination.
(i) The Director of the Bureau of Competition is authorized, without
power of redelegation, to respond to access requests for records and
other materials pursuant to an agreement under the International
Antitrust Enforcement Assistance Act, 15 U.S.C. 6201 et seq. Before
responding to such a request, the Bureau Director shall transmit the
proposed response to the Secretary and the Secretary shall notify the
Commission of the proposed response. If no Commissioner objects within
three days following the Commission's receipt of such notification, the
Secretary shall inform the Bureau Director that he or she may proceed.
(j)(1) The procedures specified in this section apply to disclosures
of certain records to foreign law enforcement agencies in specified
circumstances in accordance with the U.S. SAFE WEB Act of 2006. Nothing
in this section authorizes the disclosure of material obtained in
connection with the administration of the Federal antitrust laws or
foreign antitrust laws, as defined in paragraph (j)(5)(i) of this
section.
(2) Requests from foreign law enforcement agencies, as defined in
paragraph (j)(5)(ii) of this section, for nonpublic records shall be
addressed to the Director of the Office of International Affairs or the
Director's designee, who shall forward them to the General Counsel with
recommendations for disposition after obtaining any required
certification described in paragraph (j)(3) of this section and approval
of the Bureau of Consumer Protection. With respect to requests under
this paragraph, the General Counsel or the General Counsel's designee is
delegated the authority to dispose of them. Alternatively, the General
Counsel may refer such requests to the Commission for determination,
except that requests must be referred to the Commission for
determination where the Bureau of Consumer Protection or the Office of
International Affairs disagrees with the General Counsel's proposed
disposition.
(3) Access under this section to any material subject to the
disclosure restrictions in sections 6(f) or 21(b) of the FTC Act or
Sec. 4.10(d) may not be granted unless--
(i) An appropriate official of the foreign law enforcement agency
has certified, either by prior agreement or memorandum of understanding
or by other written certification, that such material will be maintained
in confidence and will be used only for official law enforcement
purposes; and
(ii)(A) The foreign law enforcement agency has set forth a bona fide
legal basis for its authority to maintain the material in confidence;
(B) The materials are to be used for purposes of investigating, or
engaging in enforcement proceedings related to, possible violations of:
(1) Foreign laws prohibiting fraudulent or deceptive commercial
practices, or other practices substantially similar to practices
prohibited by any law administered by the Commission;
(2) A law administered by the Commission, if disclosure of the
material would further a Commission investigation or enforcement
proceeding; or
(3) With the approval of the Attorney General, other foreign
criminal laws, if such foreign criminal laws are offenses defined in or
covered by a criminal mutual legal assistance treaty in force between
the government of the United States and the foreign law enforcement
agency's government;
(C) The appropriate Federal banking agency, (as defined in section
3(q) of the Federal Deposit Insurance Act (12 U.S.C. 1813(q)) or, in the
case of a Federal credit union, the National Credit Union Administration
has given its prior approval if the materials to be provided under
paragraph (j)(3)(ii)(B) of this section are requested by the foreign law
enforcement agency for the purpose of investigating, or engaging in
enforcement proceedings based on, possible violations of law by a bank,
a savings and loan institution described in section 18(f)(3) of the
Federal Trade Commission Act (15 U.S.C. 57a(f)(3)), or
[[Page 115]]
a Federal credit union described in section 18(f)(4) of the Federal
Trade Commission Act (15 U.S.C. 57a(f)(4)); and
(D) The foreign law enforcement agency is not from a foreign state
that the Secretary of State has determined, in accordance with section
6(j) of the Export Administration Act of 1979 (50 U.S.C. App. 2405(j)),
has repeatedly provided support for acts of international terrorism,
unless and until such determination is rescinded pursuant to section
6(j)(4) of that Act (50 U.S.C. App. 2405(j)(4)).
(4) A copy of the certificate described in paragraph (j)(3) of this
section will be forwarded to the submitter of the information at the
time the request is granted unless the foreign law enforcement agency
requests that the submitter not be notified.
(5) For purposes of this section:
(i) ``Federal antitrust laws'' and ``foreign antitrust laws'' are to
be interpreted as defined in paragraphs (5) and (7), respectively, of
section 12 of the International Antitrust Enforcement Assistance Act of
1994 (15 U.S.C. 6211); and
(ii) ``Foreign law enforcement agency'' is defined as:
(A) Any agency or judicial authority of a foreign government,
including a foreign state, a political subdivision of a foreign state,
or a multinational organization constituted by and comprised of foreign
states, that is vested with law enforcement or investigative authority
in civil, criminal, or administrative matters and
(B) Any multinational organization, to the extent that it is acting
on behalf of an entity described in paragraph (j)(5)(i)(A) of this
section.
(15 U.S.C. 41 et seq.)
[40 FR 7629, Feb. 21, 1975]
Editorial Note: For Federal Register citations affecting Sec. 4.11,
see the List of CFR Sections Affected, which appears in the Finding Aids
section of the printed volume and at www.fdsys.gov.
Sec. 4.12 Disposition of documents submitted to the Commission.
(a) Material submitted to the Commission. (1) Any person who has
submitted material to the Commission may obtain, on request, the return
of material submitted to the Commission which has not been received into
evidence:
(i) After the close of the proceeding in connection with which the
material was submitted; or
(ii) When no proceeding in which the material may be used has been
commenced within a reasonable time after completion of the examination
and analysis of all such material and other information assembled in the
course of the investigation.
(2) Such request shall be in writing, addressed to the custodian
designated pursuant to Sec. 2.16 or the Secretary of the Commission in
all other circumstances, and shall reasonably describe the material
requested. A request for return of material may be filed at any time,
but material will not be returned nor will commitments to return
material be undertaken prior to the time described in this paragraph.
(b) Commission-made copies of documents submitted to the Commission.
The Commission will not return to the submitter copies of documents made
by the Commission unless, upon a showing of extraordinary circumstances,
the Commission determines that return would be required in the public
interest.
(c) Disposition of material not returned. Subsequent to the time
prescribed in paragraph (a) of this section, the staff will examine all
submitted material and Commission-made copies of documents located in a
reasonable search of the Commission's files and will determine,
consistent with the Federal Records Act, 44 U.S.C. 3301, which materials
are appropriate for preservation as evidence of the organization,
functions, policies, decisions, procedures, operations, or other
activities of the Commission or because of the information value of data
in them. The Commission will dispose of all material determined not to
be appropriate for preservation in accordance with applicable
regulations of the National Archives and Records Administration.
[46 FR 26292, May 12, 1981, as amended at 60 FR 37751, July 21, 1995]
Sec. 4.13 Privacy Act rules.
(a) Purpose and scope. (1) This section is promulgated to implement
the Privacy Act of 1974 (Pub. L. 93-579, 5
[[Page 116]]
U.S.C. 552a) by establishing procedures whereby an individual can, as to
all systems of records maintained by the Commission except those set
forth in Sec. 4.13(m) as exempt from disclosure, (i) Request
notification of whether the Commission maintains a record pertaining to
him in any system of records, (ii) request access to such a record or to
an accounting of its disclosure, (iii) request that the record be
amended or corrected, and (iv) appeal an initial adverse determination
of any such request. This section also establishes those systems of
records that are specifically exempt from disclosure and from other
requirements.
(2) The procedures of this section apply only to requests by an
individual as defined in Sec. 4.13(b). Except as otherwise provided,
they govern only records containing personal information in systems of
records for which notice has been published by the Commission in the
Federal Register pursuant to section 552a(e)(4) of the Privacy Act of
1974 and which are neither exempt from the provisions of this section
nor contained in government-wide systems of personnel records for which
notice has been published in the Federal Register by the Office of
Personnel Management. Requests for notification, access, and amendment
of personnel records which are contained in a system of records for
which notice has been given by the Office of Personnel Management are
governed by the Office of Personnel Management's notices, 5 CFR part
297. Access to records which are not subject to the requirements of the
Privacy Act are governed by Sec. Sec. 4.8 through 4.11.
(b) Definitions. The following definitions apply to this section
only:
(1) Individual means a natural person who is a citizen of the United
States or an alien lawfully admitted for permanent residence.
(2) Record means any item, collection, or grouping of personal
information about an individual that is maintained by the Commission,
including, but not limited to, his education, financial transactions,
medical history, and criminal or employment history and that contains
his name, or the identifying number, symbol, or other identifying
particular assigned to the individual, such as a finger or voice print
or a photograph, but does not include information concerning
proprietorships, businesses, or corporations.
(3) System of records means a group of any records under the control
of the Commission from which information is retrieved by the name of the
individual or by some identifying number, symbol, or other identifying
particular assigned to the individual, for which notice has been
published by the Commission in the Federal Register pursuant to 5 U.S.C.
552a(e)(4).
(c) Procedures for requests pertaining to individual records in a
record system. An individual may request access to his or her records or
any information pertaining to that individual in a system of records,
and notification of whether and to whom the Commission has disclosed a
record for which an accounting of disclosures is required to be kept and
made available to the individual, using the procedures of this section.
Requests for the disclosure of records under this section or to
determine whether a system of records contains records pertaining to an
individual or to obtain an accounting of disclosures, shall be in
writing and if mailed, addressed as follows:
Privacy Act Request, Office of the General Counsel, Federal Trade
Commission, 600 Pennsylvania Avenue, NW., Washington, DC 20580.
If requests are presented in person at the Office of the General
Counsel, the individual shall be required to execute a written request.
All requests shall name the system of records that is the subject of the
request, and shall include any additional information specified in the
pertinent system notice as necessary to locate the records requested. If
the requester wants another person to accompany him or her to review the
records, the request shall so state. Nothing in this section will allow
an individual access to any information compiled in reasonable
anticipation of a civil action or proceeding.
(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) ordinarily will not be
[[Page 117]]
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) may 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.
(e) Disclosure of requested information to individuals. Within 10
working days of receipt of a request under Sec. 4.13(c), the deciding
official (as designated by the General Counsel) will acknowledge receipt
of the request. Within 30 working days of the receipt of a request under
Sec. 4.13(c), the deciding official (as designated by the General
Counsel) will inform the requester whether a system of records
containing retrievable information pertaining to the requester exists,
and if so, either that the request has been granted or that the
requested records or information is exempt from disclosure pursuant to
Sec. 4.13(m). When, for good cause shown, the deciding official (as
designated by the General Counsel) is unable to respond within 30
working days of the receipt of the request, that official will notify
the requester and inform him or her approximately when a response will
be made.
(f) Special procedures: Medical records. When the deciding official
(as designated by the General Counsel) determines that disclosure of a
medical or psychological record directly to a requesting individual
could have an adverse effect on the individual, he or she will require
the individual to designate a medical doctor to whom the record will be
transmitted.
(g) Request for correction or amendment of record. An individual to
whom access to his records or any information pertaining to him in a
system of records has been granted may request that any portion thereof
be amended or corrected because he believes it is not accurate,
relevant, timely, or complete. An initial request for correction or
amendment of a record shall be in writing whether presented in person or
by mail, and if by mail, addressed as in Sec. 4.13(c). In making a
request under this subsection, the requesting party shall state the
nature of the information in the record the individual believes to be
inaccurate, irrelevant, untimely, or incomplete, the correction or
amendment desired, and the reasons therefore.
(h) Agency review of request for correction or amendment of record.
Whether presented in person or by mail, requests under Sec. 4.13(g)
will be acknowledged by the deciding official (as designated by the
General Counsel) within 10 working days of the receipt of the request if
action on the request cannot be completed and the individual notified of
the results within that time. Thereafter, the deciding official (as
designated by the General Counsel) will promptly either make the
requested amendment or correction or inform the requester of his refusal
to make the amendment or correction, the reasons for the refusal, and
the requester's right to appeal that refusal in accordance with Sec.
4.13(i).
(i) Appeal of initial adverse agency determination. (1) If an
initial request filed under Sec. 4.13(c) or Sec. 4.13(g) is denied,
the requester may appeal that denial to the General Counsel. The appeal
shall be in writing and addressed as follows:
Privacy Act Appeal, Office of the General Counsel, Federal Trade
Commission, 600 Pennsylvania Avenue, NW., Washington, DC 20580.
Within 30 working days of the receipt of the appeal, the General Counsel
will notify the requester of the disposition of that appeal, except that
the General Counsel may extend the 30-day period for good cause, in
which case, the General Counsel will advise the requester of the
approximate date on which review will be completed. In unusual or
difficult cases, the General Counsel may, in his or her sole discretion,
refer an appeal to the Commission for determination.
(2)(i) If the General Counsel refuses to amend or correct the record
in accordance with a request under Sec. 4.13(g),
[[Page 118]]
the General Counsel will notify the requester of that decision and
inform the requester of the right to file with the deciding official (as
designated by the General Counsel) a concise statement setting forth the
reasons for the requester's disagreement with the General Counsel's
determination and the fact that the requester's statement will be
treated as set forth in paragraph (i)(2)(ii) of this section. The
General Counsel will also inform the requester that judicial review of
the decision is available by a civil suit in the district in which the
requester resides, or has his principal place of business, or in which
the agency records are situated, or in the District of Columbia.
(ii) If the individual files a statement disagreeing with the
General Counsel's determination not to amend or correct a record, such
disagreement will be clearly noted in the record involved and the
individual's statement will be made available to anyone to whom the
record has been disclosed after September 27, 1975, or is subsequently
disclosed together with, if the General Counsel deems it appropriate, a
brief statement of his or her reasons for declining to amend the record.
(j) Disclosure of record to person other than the individual to whom
it pertains. Except as provided by 5 U.S.C. 552a(b), the written request
or prior written consent of the individual to whom a record pertains, or
of his parent if a minor, or legal guardian if incompetent, shall be
required before such record is disclosed. If the individual elects to
inspect a record in person and desires to be accompanied by another
person, the deciding official (as designated by the General Counsel) may
require the individual to furnish a signed statement authorizing
disclosure of his or her record in the presence of the accompanying
named person.
(k) Fees. No fees will be charged for searching for a record,
reviewing it, or for copies of records made by the Commission for its
own purposes incident to granting access to a requester. Copies of
records to which access has been granted under this section may be
obtained by the requester from the deciding official (as designated by
the General Counsel) on payment of the reproduction fees provided in
Sec. 4.8(b)(6).
(l) Penalties. Section 552a(i)(3) of the Privacy Act, 5 U.S.C.
552a(i)(3), makes it a misdemeanor, subject to a maximum fine of $5,000,
to knowingly and willfully request or obtain any record concerning an
individual under false pretenses. Sections 552a(i) (1) and (2) of the
Privacy Act, 5 U.S.C. 552a(i) (1) and (2), provide penalties for
violations by agency employees of the Privacy Act or regulations
established thereunder. Title 18 U.S.C. 1001, Crimes and Criminal
Procedures, makes it a criminal offense, subject to a maximum fine of
$10,000 or imprisonment for not more than 5 years or both, to knowingly
and willfully make or cause to be made any false or fraudulent
statements or representations in any matter within the jurisdiction of
any agency of the United States.
(m) Specific exemptions. (1) Pursuant to 5 U.S.C. 552a(j)(2),
investigatory materials maintained by an agency component in connection
with any activity relating to criminal law enforcement in the following
systems of records are exempt from all subsections of 5 U.S.C. 552a,
except (b), (c) (1) and (2), (e)(4) (A) through (F), (e) (6), (7), (9),
(10), and (11), and (i), and from the provisions of this section, except
as otherwise provided in 5 U.S.C. 552a(j)(2):
Office of Inspector General Investigative Files--FTC
(2) Pursuant to 5 U.S.C. 552a(k)(2), investigatory materials
compiled for law enforcement purposes in the following systems of
records are exempt from subsections (c)(3), (d), (e)(1), (e)(4)(G), (H),
and (I), and (f) of 5 U.S.C. 552a, and from the provisions of this
section, except as otherwise provided in 5 U.S.C. 552a(k)(2):
Investigational, Legal, and Public Records--FTC
Disciplinary Action Investigatory Files--FTC
Clearance to Participate Applications and the Commission's Responses
Thereto, and Related Documents--FTC
Management Information System--FTC
Office of the Secretary Control and Reporting System--FTC
Office of Inspector General Investigative Files--FTC
Stenographic Reporting Service Requests--FTC
Identity Theft Complaint Management System--FTC
[[Page 119]]
Freedom of Information Act Requests and Appeals--FTC
Privacy Act Requests and Appeals--FTC
Information Retrieval and Indexing System--FTC
(3) Pursuant to 5 U.S.C. 552a(k)(5), investigatory materials
compiled to determine suitability, eligibility, or qualifications for
Federal civilian employment, military service, Federal contracts, or
access to classified information, but only where disclosure would reveal
the identity of a confidential source of information, in the following
systems of records are exempt from subsections (c)(3), (d), (e)(1),
(e)(4) (G), (H), and (I), and (f) of 5 U.S.C. 552a, and from the
provisions of this section, except as otherwise provided in 5 U.S.C.
552a(k)(5):
Personnel Security File--FTC
[40 FR 40780, Sept. 3, 1975, as amended at 46 FR 26292, May 12, 1981; 48
FR 4280, Jan. 31, 1983; 55 FR 37700, Sept. 13, 1990; 55 FR 38801, Sept.
21, 1990; 57 FR 10808, Mar. 31, 1992; 58 FR 7047, Feb. 4, 1993; 63 FR
45648, Aug. 26, 1998; 64 FR 3014, Jan. 20, 1999; 64 FR 69397, Dec. 13,
1999; 66 FR 64144, Dec. 12, 2001; 67 FR 123, Jan. 2, 2002]
Sec. 4.14 Conduct of business.
(a) Matters before the Commission for consideration may be resolved
either at a meeting under Sec. 4.15 or by written circulation. Any
Commissioner may direct that a matter presented for consideration be
placed on the agenda of a Commission meeting.
(b) A majority of the members of the Commission in office and not
recused from participating in a matter (by virtue of 18 U.S.C. 208 or
otherwise) constitutes a quorum for the transaction of business in that
matter.
(c) Any Commission action, either at a meeting or by written
circulation, may be taken only with the affirmative concurrence of a
majority of the participating Commissioners, except where a greater
majority is required by statute or rule or where the action is taken
pursuant to a valid delegation of authority. No Commissioner may
delegate the authority to determine his or her vote in any matter
requiring Commission action, but authority to report a Commissioner's
vote on a particular matter resolved either by written circulation, or
at a meeting held in the Commissioner's absence, may be vested in a
member of the Commissioner's staff.
[42 FR 13540, Mar. 11, 1977, as amended at 50 FR 53306, Dec. 31, 1985;
70 FR 53297, Sept. 8, 2005]
Sec. 4.15 Commission meetings.
(a) In general. (1) Meetings of the Commission, as defined in 5
U.S.C. 552b(a)(2), are held at the principal office of the Commission,
unless otherwise directed.
(2) Initial announcements of meetings. For each meeting, the
Commission shall announce:
(i) The time, place and subject matter of the meeting,
(ii) Whether the meeting will be open or closed to the public, and
(iii) The name and phone number of the official who will respond to
requests for information about the meeting.
Such announcement shall be made at least one week before the meeting
except that where the agency determines pursuant to 5 U.S.C. 552b(e)(1)
to call the meeting on less than one week's notice, or where the agency
determines to close the meeting pursuant to paragraph (c)(2) of this
section, the announcement shall be made at the earliest practicable
time.
(3) Announcements of changes in meetings. Following the announcement
of a meeting, any change in the time, place or subject matter will be
announced at the earliest practicable time, and, except with respect to
meetings closed under paragraph (c)(2) of this section, any change in
the subject matter or decision to open or close a meeting shall be made
only as provided in 5 U.S.C. 552b(e)(2).
(4) Deletions from announcements. The requirements of paragraphs
(a)(2) and (a)(3) of this section do not require the disclosure of any
information pertaining to a portion of a closed meeting where such
disclosure is likely to concern a matter within the scope of 5 U.S.C.
552b(c).
(5) Dissemination of notices. Notices required under paragraphs
(a)(2) and (a)(3) of this section will be posted at the principal office
of the Commission,
[[Page 120]]
recorded on a telephone message device, and, except as to notices of
meetings closed under paragraph (c)(2) of this section, submitted to the
Federal Register for publication. In addition, notices issued under
paragraph (a)(2) of this section one week in advance of the meeting will
be sent to all persons and organizations who have requested inclusion on
a meeting notice mailing list, and will be issued as a press release to
interested media.
(b) Open meetings. (1) Commission meetings shall be open to public
observation unless the Commission determines that portions may be closed
pursuant to 5 U.S.C. 552b(c).
(2) Any person whose interest may be directly affected if a portion
of a meeting is open, may request that the Commission close that portion
for any of the reasons described in 5 U.S.C. 552b(c). The Commission
shall vote on such requests if at least one member desires to do so.
Such requests shall be in writing, filed at the earliest practicable
time, and describe how the matters to be discussed will have any of the
effects enumerated in 5 U.S.C. 552b(c). Requests shall be addressed as
follows:
Closed Meeting Request, Office of the General Counsel, Federal Trade
Commission, 6th Street and Pennsylvania Avenue NW., Washington, DC
20580.
(3) The Commissioner to whom a matter has been assigned for
presentation to the Commission shall have the authority to make
available to the public, prior to consideration of that matter at an
open meeting, material sufficient to inform the public of the issues
likely to be discussed in connection with that matter.
(c) Closed meetings. (1) Whenever the Commission votes to close a
meeting or series of meetings under these rules, it shall make publicly
available within one day notices both of such vote and the General
Counsel's determination regarding certification under 5 U.S.C.
552b(f)(1). Such determination by the General Counsel shall be made
prior to the Commission vote to close a meeting or series of meetings.
Further, except with respect to meetings closed under paragraph (c)(2)
of this section, the Commission shall make publicly available within one
day a full written explanation of its action in closing any meeting, and
a list specifying the names and affiliations of all persons expected to
attend, except Commission employees and consultants and any stenographer
or court reporter attending for the sole purpose of preparing a verbatim
transcript. All Commission employees and consultants may attend
nonadjudicative portions of any closed meeting and members of
Commissioners' personal staffs, the General Counsel and his staff, and
the Secretary and his staff may attend the adjudicative portions of any
closed meeting except to the extent the notice of a particular closed
meeting otherwise specifically provides. Stenographers or court
reporters may attend any closed meeting at which their services are
required by the Commission.
(2) If a Commission meeting, or portions thereof, may be closed
pursuant to 5 U.S.C. 552b(c)(10), the Commission may, by vote recorded
at the beginning of the meeting, or portion thereof, close the portion
or portions of the meeting so exempt.
(3) Closed meeting transcripts or minutes required by 5 U.S.C.
552b(f)(1) will be released to the public insofar as they contain
information that either is not exempt from disclosure under 5 U.S.C.
552b(c), or, although exempt, should be disclosed in the public
interest. The Commission will determine whether to release, in whole or
in part, the minutes of its executive sessions to consider oral
arguments. With regard to all other closed meetings, the General Counsel
or the General Counsel's designee shall determine, in accordance with
Sec. 4.9(c), which portions of the transcripts or minutes may be
released.
(d) The presiding officer shall be responsible for preserving order
and decorum at meetings and shall have all powers necessary to that end.
[42 FR 13541, Mar. 11, 1977; 42 FR 15409, Mar. 22, 1977, as amended at
42 FR 62912, Dec. 14, 1977: 43 FR 1937, Jan. 13, 1978; 43 FR 35684, Aug.
11, 1978; 63 FR 32978, June 17, 1998]
Sec. 4.16 Privilege against self-incrimination.
Section 2.11 of Pub. L. 91-462 specifically repeals paragraph 7 of
section 9 of the Federal Trade Commission Act.
[[Page 121]]
Title 18, section 6002, of the United States Code provides that whenever
a witness refuses, on the basis of his privilege against self-
incrimination, to testify or provide other information in a proceeding
before or ancillary to:
(a) A court or grand jury of the United States,
(b) An agency of the United States, or
(c) Either House of Congress, a joint committee of the two Houses,
or a committee or a subcommittee of either House, and the person
presiding over the proceeding communicates to the witness an order
issued under section 6004, the witness may not refuse to comply with the
order on the basis of his privilege against self-incrimination; but no
testimony or other information compelled under the order (or any
information directly or indirectly derived from such testimony or other
information) may be used against the witness in any criminal case,
except a prosecution for perjury, giving a false statement, or otherwise
failing to comply with the order. Title 18, section 6004, of the United
States Code provides that:
(1) In the case of any individual who has been or who may be called
to testify or provide other information at any proceeding before an
agency of the United States, the agency may, with the approval of the
Attorney General, issue, in accordance with subsection (b) of section
6004, an order requiring the individual to give testimony or provide
other information which he refused to give or provide on the basis of
his privilege against self-incrimination, such order to become effective
as provided in title 18, section 6002, of the United States Code;
(2) An agency of the United States may issue an order under
subsection (a) of section 6004 only if in its judgment
(i) The testimony or other information from such individual may be
necessary to the public interest; and
(ii) Such individual has refused or is likely to refuse to testify
or provide other information on the basis of his privilege against self-
incrimination.
(18 U.S.C. 6002, 6004)
[37 FR 5017, Mar. 9, 1972. Redesignated at 45 FR 36345, May 29, 1980]
Sec. 4.17 Disqualification of Commissioners.
(a) Applicability. This section applies to all motions seeking the
disqualification of a Commissioner from any adjudicative or rulemaking
proceeding.
(b) Procedures. (1) Whenever any participant in a proceeding shall
deem a Commissioner for any reason to be disqualified from participation
in that proceeding, such participant may file with the Secretary a
motion to the Commission to disqualify the Commissioner, such motion to
be supported by affidavits and other information setting forth with
particularity the alleged grounds for disqualification.
(2) Such motion shall be filed at the earliest practicable time
after the participant learns, or could reasonably have learned, of the
alleged grounds for disqualification.
(3)(i) Such motion shall be addressed in the first instance by the
Commissioner whose disqualification is sought.
(ii) In the event such Commissioner declines to recuse himself or
herself from further participation in the proceeding, the Commission
shall determine the motion without the participation of such
Commissioner.
(c) Standards. Such motion shall be determined in accordance with
legal standards applicable to the proceeding in which such motion is
filed.
(15 U.S.C. 46(g))
[46 FR 45750, Sept. 15, 1981]
PART 5_STANDARDS OF CONDUCT--Table of Contents
Subpart A_Employee Conduct Standards and Financial Conflicts of Interest
Sec.
5.1 Cross-reference to executive branch-wide regulations.
5.2 Exemption of insubstantial financial conflicts.
Subpart B_Financial Disclosure Requirements
5.10 Cross-reference to executive branch-wide regulations.
[[Page 122]]
Subparts C-D [Reserved]
Subpart E_Disciplinary Actions Concerning Postemployment Conflict of
Interest
5.51 Scope and applicability.
5.52 Nonpublic proceedings.
5.53 Initiation of investigation.
5.54 Referral to the Office of Government Ethics and to the Department
of Justice.
5.55 Conduct of investigation.
5.56 Disposition.
5.57 Order to show cause.
5.58 Answer and request for a hearing.
5.59 Presiding official.
5.60 Scheduling of hearing.
5.61 Prehearing procedures; motions; interlocutory appeals; summary
decision; discovery; compulsory process.
5.62 Hearing rights of respondent.
5.63 Evidence; transcript; in camera orders; proposed findings of fact
and conclusions of law.
5.64 Initial decision.
5.65 Review of initial decision.
5.66 Commission decision and reconsideration.
5.67 Sanctions.
5.68 Judicial review.
Authority: 5 U.S.C. 7301; 5 U.S.C. App. (Ethics in Government Act of
1978); 15 U.S.C. 46(g); E.O. 12674, 54 FR 15159, 3 CFR, 1989 Comp., p.
215, as modified by E.O. 12731, 55 FR 42547, 3 CFR, 1990 Comp., p. 306;
5 CFR part 2635, unless otherwise noted.
Source: 32 FR 13272, Sept. 20, 1967, unless otherwise noted.
Redesignated at 41 FR 54483, Dec. 14, 1976.
Subpart A_Employee Conduct Standards and Financial Conflicts of Interest
Sec. 5.1 Cross-reference to executive branch-wide regulations.
Commissioners and employees, including special government employees,
of the Federal Trade Commission (FTC) are subject to and should refer to
the ``Standards of Ethical Conduct for Employees of the Executive
Branch'' at 5 CFR part 2635 (``executive branch-wide Standards of
Conduct'') and to the FTC regulations at 5 CFR 5701 that supplement the
executive branch-wide Standards of Conduct.
[58 FR 15764, Mar. 24, 1993, as amended at 64 FR 42594, Aug. 5, 1999]
Sec. 5.2 Exemption of insubstantial financial conflicts.
(a) An employee or special Government employee will not be subject
to remedial or disciplinary action or to criminal prosecution under 18
U.S.C. 208(a), if he makes a full disclosure in writing to the official
responsible for his appointment of the nature and circumstances of the
particular matter involved and of his conflicting financial interest
relating thereto, and receives in advance a written determination made
by such official that the interest is not so substantial as to be deemed
likely to affect the integrity of the services which the Government may
expect from the employee or special Government employee.
(b) For the purposes of paragraph (a) of this section, the
``official responsible for appointment'' shall be the Executive Director
in all cases where the employee is classified at grade GS-15 or below,
or at a comparable pay level, except that each Commissioner shall be the
``official responsible for appointment'' of advisors in the
Commissioner's immediate office.
(c) In all other cases, the Chairman shall be the ``official
responsible for appointment.''
(d) Pursuant to 5 CFR part 2640, certain financial interests are
exempted from the provisions of 18 U.S.C. 208(a) as being too remote too
inconsequential to affect the integrity of an employee's services.
[58 FR 15764, Mar. 24, 1993, as amended at 63 FR 35130, June 29, 1998]
Subpart B_Financial Disclosure Requirements
Sec. 5.10 Cross-reference to executive branch-wide regulations.
Commissioners and employees, including special government employees,
of the Federal Trade Commission are subject to and should refer to the
executive branch-wide financial disclosure regulations at 5 CFR part
2634, and to the procedures for filing and review of financial
disclosure reports found in Chapter 3 of the FTC Administrative Manual.
[58 FR 15765, Mar. 24, 1993]
[[Page 123]]
Subparts C-D [Reserved]
Subpart E_Disciplinary Actions Concerning Postemployment Conflict of
Interest
Authority: 15 U.S.C. 41 et seq.
Source: 46 FR 26050, May 11, 1981, unless otherwise noted.
Sec. 5.51 Scope and applicability.
These regulations establish procedures for investigating and
determining alleged violations of 18 U.S.C. 207 (postemployment
restrictions applicable to federal employees) or regulations issued by
the Office of Government Ethics, set forth in 5 CFR parts 2637 and 2641,
reflecting the views of the Office of Government Ethics and the
Department of Justice as to the requirements of 18 U.S.C. 207.
[58 FR 15765, Mar. 24, 1993]
Sec. 5.52 Nonpublic proceedings.
Any investigation or proceedings held under this part shall be
nonpublic unless the respondent specifically requests otherwise, except
to the extent required by the Freedom of Information Act (5 U.S.C. 552)
or by the Sunshine Act (5 U.S.C. 552b). However, the presiding
official's initial decision and any final decision of the Commission
shall be placed on the public record, except that information may be
designated in camera in accordance with Sec. 3.45 of the Commission's
Rules of Practice.
Sec. 5.53 Initiation of investigation.
(a) Investigations under this part may be initiated upon the
submission by any person of a written statement to the Secretary setting
forth sufficient information to indicate a possible violation of 18
U.S.C. 207 or by the Commission on its own initiative when a possible
violation is indicated by information within the Commission's
possession.
(b) At the direction of the Commission, the General Counsel shall
investigate any alleged violation of 18 U.S.C. 207.
Sec. 5.54 Referral to the Office of Government Ethics and to the Department
of Justice.
(a) The General Counsel shall make a preliminary determination of
whether the matter appears frivolous and, if not, shall expeditiously
transmit any available information to the Director of the Office of
Government Ethics and to the Criminal Division, Department of Justice.
(b) Unless the Department of Justice communicates to the Commission
that it does not intend to initiate criminal prosecution, the General
Counsel shall coordinate any investigation or proceeding under this part
with the Department of Justice in order to avoid prejudicing criminal
proceedings.
Sec. 5.55 Conduct of investigation.
(a) The General Counsel may (1) exercise the authority granted in
Sec. 2.5 of the Commission's Rules of Practice to administer oaths and
affirmations; and (2) conduct investigational hearings pursuant to part
2 of these rules. He may also recommend that the Commission issue
compulsory process in connection with an investigation under this
section.
(b) Witnesses in investigations shall have the rights set forth in
Sec. 2.9 of the Commission's Rules of Practice.
Sec. 5.56 Disposition.
(a) Upon the conclusion of an investigation under this part, the
General Counsel shall forward to the Commission a summary of the facts
disclosed by the investigation along with a recommendation as to whether
the Commission should issue an order to show cause pursuant to Sec.
5.57.
(b) When the former government employee involved is an attorney, the
General Counsel shall also recommend whether the matter should be
referred to the disciplinary committee of the bar(s) of which the
attorney is a member.
Sec. 5.57 Order to show cause.
(a) Upon a Commission determination that there exists reasonable
cause to believe a former government employee has violated 18 U.S.C.
207, the
[[Page 124]]
Commission may issue an order requiring the former employee to show
cause why sanctions should not be imposed.
(b) The show cause order shall contain:
(1) The statutory provisions alleged to have been violated and a
clear and concise description of the acts of the former employee that
are alleged to constitute the violation;
(2) Notice of the respondent's right to submit an answer and request
a hearing, and the time and manner in which the request is to be made;
and
(3) A statement of the sanctions that may be imposed pursuant to
Sec. 5.67 of this part.
(c) Subsequent to the issuance of an order to show cause, any
communications to or from the Commission or any member of the Commission
shall be governed by the ex parte provisions of Sec. 4.7 of the
Commission's Rules of Practice. 16 CFR 4.7.
Sec. 5.58 Answer and request for a hearing.
(a) An answer and request for a hearing must be filed with the
Secretary of the Commission within thirty (30) days after service of the
order to show cause.
(b) In the absence of good cause shown, failure to file an answer
and request for a hearing within the specified time limit:
(1) Will be deemed a waiver of the respondent's right to contest the
allegations of the show cause order or request a hearing and
(2) Shall authorize the Commission to find the facts to be as
alleged in the show cause order and enter a final decision providing for
the imposition of such sanctions specified in Sec. 5.67 as the
Commission deems appropriate.
(c) An answer shall contain (1) a concise statement of the facts or
law constituting each ground of defense and (2) specific admission,
denial, or explanation of each fact alleged in the show cause order or,
if the respondent is without knowledge thereof, a statement to that
effect. Any allegations of a complaint not answered in this manner will
be deemed admitted.
(d) Hearings shall be deemed waived as to any facts in the show
cause order that are specifically admitted or deemed to be admitted as a
result of respondent's failure to deny them. Those portions of
respondent's answer, together with the show cause order, will provide a
record basis for initial decision by the Administrative Law Judge or for
final decision by the Commission.
(e) If all material factual allegations of the show cause order are
specifically admitted or have been deemed admitted in accordance with
paragraph (c) of this section, the Commission will decide the matter on
the basis of the allegations set forth in the show cause order and
respondent's answer.
Sec. 5.59 Presiding official.
(a) Upon the receipt of an answer and request for a hearing, the
Secretary shall refer the matter to the Chief Administrative Law Judge,
who shall appoint an Administrative Law Judge to preside over the
hearing and shall notify the respondent and the General Counsel as to
the person selected.
(b) The powers and duties of the presiding official shall be as set
forth in Sec. 3.42(b) through (h) of the Commission's Rules of
Practice.
Sec. 5.60 Scheduling of hearing.
The presiding official shall fix the date, time and place of the
hearing. The hearing shall not be scheduled earlier than fifteen days
after receipt of the respondent's answer and request for a hearing. In
fixing the time, date and place of the hearing, the presiding official
shall give due regard to the respondent's need for adequate time to
prepare a defense and an expeditious resolution of allegations that may
be damaging to his or her reputation.
Sec. 5.61 Prehearing procedures; motions; interlocutory appeals; summary
decision; discovery; compulsory process.
Because of the nature of the issues involved in proceedings under
this part, the Commission anticipates that extensive motions, prehearing
proceedings and discovery will not be required in most cases. For this
reason, detailed procedures will not be established under this part.
However, to the extent deemed warranted by the presiding official,
prehearing conferences,
[[Page 125]]
motions, interlocutory appeals, summary decisions, discovery and
compulsory process shall be permitted and shall be governed, where
appropriate, by the provisions set forth in subparts C and D, part 3, of
the Commission's Rules of Practice.
Sec. 5.62 Hearing rights of respondent.
In any hearing under this subpart, the respondent shall have the
right:
(a) To be represented by counsel;
(b) To present and cross-examine witnesses and submit evidence;
(c) To present objections, motions, and arguments, oral or written;
and
(d) To obtain a transcript of the proceedings on request.
Sec. 5.63 Evidence; transcript; in camera orders; proposed findings of fact
and conclusions of law.
Sections 3.43, 3.44, 3.45, and 3.46 of the Commission's Rules of
Practice shall govern, respectively, the receipt and objections to
admissibility of evidence, the transcript of the hearing, in camera
orders and the submission and consideration of proposed findings of fact
and conclusions of law except that (a) a copy of the hearing transcript
shall be provided the respondent; and (b) the Commission has the burden
of establishing, by a preponderance of the evidence on the record as a
whole, the allegations stated in the order to show cause.
Sec. 5.64 Initial decision.
Section 3.51 of the Commission's Rules of Practice shall govern the
initial decision in proceedings under this subpart, except that the
determination of the Administrative Law Judge must be supported by a
preponderance of the evidence.
Sec. 5.65 Review of initial decision.
Appeals from the initial decision of the Administrative Law Judge or
review by the Commission in the absence of an appeal shall be governed
by Sec. Sec. 3.52 and 3.53 of the Commission's Rules of Practice except
that oral arguments shall be nonpublic subject to the exceptions stated
in Sec. 3.52 of this part.
Sec. 5.66 Commission decision and reconsideration.
The Commission's decision and any reconsideration or reopening of
the proceeding shall be governed by Sec. Sec. 2.51, 3.54, 3.55, 3.71
and 3.72 of the Commission's Rules of Practice, except that (a) if the
initial decision is modified or reversed, the Commission shall specify
such findings of fact and conclusions of law as are different from those
of the presiding official; and (b) references therein to ``court of
appeals'' shall be deemed for purposes of proceedings under this part to
refer to ``district court.''
Sec. 5.67 Sanctions.
In the case of any respondent who fails to request a hearing after
receiving adequate notice of the allegations pursuant to Sec. 5.57 or
who is found in the Commission's final decision to have violated 18
U.S.C. 207 (a), (b), or (c), the Commission may order such disciplinary
action as it deems warranted, including:
(a) Reprimand;
(b) Suspension from participating in a particular matter or matters
before the Commission; or
(c) Prohibiting the respondent from making, with the intent to
influence, any formal or informal appearance before, or any oral or
written communication to, the Commission or its staff on any matter or
business on behalf of any other person (except the United States) for a
period not to exceed five (5) years.
Sec. 5.68 Judicial review.
A respondent against whom the Commission has issued an order
imposing disciplinary action under this part may seek judicial review of
the Commission's determination in an appropriate United States District
Court by filing a petition for such review within sixty (60) days of
receipt of notice of the Commission's final decision.
[[Page 126]]
PART 6_ENFORCEMENT OF NONDISCRIMINATION ON THE BASIS OF HANDICAP IN PROGRAMS
OR ACTIVITIES CONDUCTED BY THE FEDERAL TRADE COMMISSION--Table of Contents
Sec.
6.101 Purpose.
6.102 Application.
6.103 Definitions.
6.104-6.109 [Reserved]
6.110 Self-evaluation.
6.111 Notice.
6.112-6.129 [Reserved]
6.130 General prohibitions against discrimination.
6.131-6.139 [Reserved]
6.140 Employment.
6.141-6.148 [Reserved]
6.149 Program accessibility: Discrimination prohibited.
6.150 Program accessibility: Existing facilities.
6.151 Program accessibility: New construction and alterations.
6.152 Program accessibility: Electronic and information technology.
6.153-6.159 [Reserved]
6.160 Communications.
6.161-6.169 [Reserved]
6.170 Compliance procedures.
6.171-6.999 [Reserved]
Authority: 29 U.S.C. 794, 794d.
Source: 52 FR 45628, Dec. 1, 1987, unless otherwise noted.
Sec. 6.101 Purpose.
This part effectuates section 119 of the Rehabilitation,
Comprehensive Services, and Developmental Disabilities Amendments of
1978, which amended section 504 of the Rehabilitation Act of 1973 to
prohibit discrimination on the basis of handicap in programs or
activities conducted by Executive agencies or the United States Postal
Service. This part also implements section 508 of the Rehabilitation Act
of 1973, as amended, with respect to the accessibility of electronic and
information technology developed, procured, maintained, or used by the
agency.
[52 FR 45628, Dec. 1, 1987, as amended at 66 FR 51863, Oct. 11, 2001]
Sec. 6.102 Application.
This part applies to all programs or activities conducted by the
Commission except for programs or activities conducted outside the
United States that do not involve individuals with handicaps in the
United States.
Sec. 6.103 Definitions.
For purposes of this part, the term--
Auxiliary aids means services or devices that enable persons with
impaired sensory, manual, or speaking skills to have an equal
opportunity to participate in, and to enjoy the benefits of, programs or
activities conducted by the Commission. For example, auxiliary aids
useful for persons with impaired vision include readers, Brailled
materials, audio recordings, and other similar services and devices.
Auxiliary aids useful for persons with impaired hearing include
telephone handset amplifiers, telephones compatible with hearing aids,
telecommunication devices for deaf persons (TDD's), interpreters,
notetakers, written materials, and other similar services and devices.
Commission means the Federal Trade Commission.
Complete complaint means a written statement that contains the
complainant's name and address and describes the Commission's alleged
discriminatory action in sufficient detail to inform the Commission of
the nature and date of the alleged violation of section 504. It shall be
signed by the complainant or by someone authorized to do so on his or
her behalf. Complaints filed on behalf of classes or third parties shall
describe or identify (by name, if possible) the alleged victims of
discrimination.
Electronic and information technology includes information
technology and any equipment or interconnected system or subsystem of
equipment that is used in the creation, conversion, or duplication of
data or information. The term includes, but is not limited to,
telecommunications products (such as telephones), information kiosks and
transaction machines, World Wide Web sites, multimedia, and office
equipment such as copiers and fax machines.
[[Page 127]]
The term does not include any equipment that contains embedded
information technology that is used as an integral part of the product,
but the principal function of which is not the acquisition, storage,
manipulation, management, movement, control, display, switching,
interchange, transmission, or reception of data or information. For
example, HVAC (heating, ventilation, and air conditioning) equipment
such as thermostats or temperature control devices, and medical
equipment where information technology is integral to its operation are
not electronic and information technology.
Facility means all or any portion of buildings, structures,
equipment, roads, walks, parking lots, rolling stock or other
conveyances, or other real or personal property.
Individual with handicaps means any person who has a physical or
mental impairment that substantially limits one or more major life
activities, has a record of such an impairment, or is regarded as having
such an impairment. As used in this definition, the phrase:
(1) Physical or mental impairment includes--
(i) Any physiological disorder or condition, cosmetic disfigurement,
or anatomical loss affecting one or more of the following body systems:
Neurological; musculoskeletal; special sense organs; respiratory,
including speech organs; cardiovascular; reproductive; digestive;
genitourinary; hemic and lymphatic; skin; and endocrine; or
(ii) Any mental or psychological disorder, such as mental
retardation, organic brain syndrome, emotional or mental illness, and
specific learning disabilities. The term physical or mental impairment
includes, but is not limited to, such diseases and conditions as
orthopedic, visual, speech, and hearing impairments, cerebral palsy,
epilepsy, muscular dystrophy, multiple sclerosis, cancer, heart disease,
diabetes, mental retardation, emotional illness, and drug addiction and
alcoholism.
(2) Major life activities includes functions such as caring for
one's self, performing manual tasks, walking, seeing, hearing, speaking,
breathing, learning, and working.
(3) Has a record of such an impairment means has a history of, or
has been misclassified as having, a mental or physical impairment that
substantially limits one or more major life activities.
(4) Is regarded as having an impairment means--
(i) Has a physical or mental impairment that does not substantially
limit major life activities but is treated by the Commission as
constituting such a limitation;
(ii) Has a physical or mental impairment that substantially limits
major life activities only as a result of the attitudes of others toward
such impairment; or
(iii) Has none of the impairments defined in paragraph (1) of this
definition but is treated by the Commission as having such an
impairment.
Information technology means any equipment or interconnected system
or subsystem of equipment that is used in the automatic acquisition,
storage, manipulation, management, movement, control, display,
switching, interchange, transmission, or reception of data or
information. The term ``information technology'' includes computers,
ancillary equipment, software, firmware and similar procedures, services
(including support services), and related resources.
Qualified individual with handicaps means--
(1) With respect to any Commission program or activity under which a
person is required to perform services or to achieve a level of
accomplishment, an individual with handicaps who meets the essential
eligibility requirements and who can achieve the purpose of the program
or activity without modifications in the program or activity that the
Commission can demonstrate would result in a fundamental alteration in
its nature; and
(2) With respect to any other program or activity, an individual
with handicaps who meets the essential eligibility requirements for
participation in, or receipt of benefits from, that program or activity.
(3) Qualified handicapped person as that term is defined for
purposes of employment in 29 CFR 1613.702 (f), which is made applicable
to this part by Sec. 6.140.
[[Page 128]]
Section 504 means section 504 of the Rehabilitation Act of 1973
(Pub. L. 93-112, 87 Stat. 394 (29 U.S.C. 794)), as amended by the
Rehabilitation Act Amendments of 1974 (Pub. L. 93-516, 88 Stat. 1617);
the Rehabilitation, Comprehensive Services, and Developmental
Disabilities Amendments of 1978 (Pub. L. 95-602, 92 Stat. 2955) and the
Rehabilitation Act Amendments of 1986 (Pub. L. 99-506, 100 Stat. 1810).
As used in this part, section 504 applies only to programs or activities
conducted by Executive agencies and not to federally assisted programs.
Section 508 means section 508 of the Rehabilitation Act of 1973, as
amended.
[52 FR 45628, Dec. 1, 1987, as amended at 66 FR 51863, Oct. 11, 2001]
Sec. Sec. 6.104-6.109 [Reserved]
Sec. 6.110 Self-evaluation.
(a) The Commission shall, by February 1, 1989, evaluate its current
policies and practices, and the effects thereof, that do not or may not
meet the requirements of this part, and, to the extent modification of
any such policies and practices is required, the Commission shall
proceed to make the necessary modifications.
(b) The Commission shall provide an opportunity to interested
persons, including individuals with handicaps or organizations
representing individuals with handicaps, to participate in the self-
evaluation process by submitting comments (both oral and written).
(c) The Commission shall, for at least three years following
completion of the self-evaluation required under paragraph (a) of this
section, maintain on file and make available for public inspection:
(1) A description of areas examined and any problems identified, and
(2) A description of any modifications made.
Sec. 6.111 Notice.
The Commission shall make available to employees, applicants,
participants, beneficiaries, and other interested persons such
information regarding the provisions of this part and its applicability
to the programs or activities conducted by the Commission, and make such
information available to them in such manner as the Chairman or his or
her designee finds necessary to apprise such persons of the protections
against discrimination assured to them by section 504 and this
regulation.
Sec. Sec. 6.112-6.129 [Reserved]
Sec. 6.130 General prohibitions against discrimination.
(a) No qualified individual with handicaps shall, on the basis of
handicap, be excluded from participation in, be denied the benefits of,
or otherwise be subjected to discrimination under any program or
activity conducted by the Commission.
(b)(1) The Commission, in providing any aid, benefit, or service,
may not, directly or through contractual, licensing, or other
arrangements, on the basis of handicap--
(i) Deny a qualified individual with handicaps the opportunity to
participate in or benefit from the aid, benefit, or service;
(ii) Afford a qualified individual with handicaps an opportunity to
participate in or benefit from the aid, benefit, or service that is not
equal to that afforded others;
(iii) Provide a qualified individual with handicaps with an aid,
benefit, or service that is not as effective in affording equal
opportunity to obtain the same result, to gain the same benefit, or to
reach the same level of achievement as that provided to others;
(iv) Provide different or separate aid, benefits, or services to
individuals with handicaps or to any class of individuals with handicaps
than is provided to others unless such action is necessary to provide
qualified individuals with handicaps with aid, benefits, or services
that are as effective as those provided to others;
(v) Deny a qualified individual with handicaps the opportunity to
participate as a member of planning or advisory boards; or
(vi) Otherwise limit a qualified individual with handicaps in the
enjoyment of any right, privilege, advantage, or opportunity enjoyed by
others receiving the aid, benefit, or service.
(2) The Commission may not deny a qualified individual with
handicaps the
[[Page 129]]
opportunity to participate in programs or activities that are not
separate or different, despite the existence of permissibly separate or
different programs or activities.
(3) The Commission may not, directly or through contractual or other
arrangements, utilize criteria or methods of administration the purpose
or effect of which would--
(i) Subject qualified individuals with handicaps to discrimination
on the basis of handicap; or
(ii) Defeat or substantially impair accomplishment of the objectives
of a program or activity with respect to individuals with handicaps.
(4) The Commission may not, in determining the site or location of a
facility, make selections the purpose or effect of which would--
(i) Exclude individuals with handicaps from, deny them the benefits
of, or otherwise subject them to discrimination under any program or
activity conducted by the Commission; or
(ii) Defeat or substantially impair the accomplishment of the
objectives of a program or activity with respect to individuals with
handicaps.
(5) The Commission, in the selection of procurement contractors, may
not use criteria that subject qualified individuals with handicaps to
discrimination on the basis of handicap.
(c) The exclusion of nonhandicapped persons from the benefits of a
program limited by Federal statute or Executive order to individuals
with handicaps or the exclusion of a specific class of individuals with
handicaps from a program limited by Federal statute or Executive order
to a different class of individuals with handicaps is not prohibited by
this part.
(d) The Commission shall administer programs and activities in the
most integrated setting appropriate to the needs of qualified
individuals with handicaps.
Sec. Sec. 6.131-6.139 [Reserved]
Sec. 6.140 Employment.
No qualified individual with handicaps shall, on the basis of
handicap, be subjected to discrimination in employment under any program
or activity conducted by the Commission. The definitions, requirements
and procedures of section 501 of the Rehabilitation Act of 1973 (29
U.S.C. 791), as established by the Equal Employment Opportunity
Commission in 29 CFR part 1613, shall apply to employment in federally
conducted programs or activities.
Sec. Sec. 6.141-6.148 [Reserved]
Sec. 6.149 Program accessibility: Discrimination prohibited.
Except as otherwise provided in Sec. 6.150, no qualified
individuals with handicaps shall, because the Commission's facilities
are inaccessible to or unusable by individuals with handicaps, be denied
the benefits of, be excluded from participation in, or otherwise be
subjected to discrimination under any program or activity conducted by
the Commission.
Sec. 6.150 Program accessibility: Existing facilities.
(a) General. The Commission shall operate each program or activity
so that the program or activity, when viewed in its entirety, is readily
accessible to and usable by individuals with handicaps. This paragraph
does not--
(1) Necessarily require the Commission to make each of its existing
facilities accessible to and usable by individuals with handicaps, or
(2) Require the Commission to take any action that it can
demonstrate would result in a fundamental alteration in the nature of a
program or activity or in undue financial and administrative burdens. In
those circumstances where Commission personnel believe that the proposed
action would fundamentally alter the program or activity or would result
in undue financial and administrative burdens, the Commission has the
burden of proving that compliance with Sec. 6.150(a) would result in
such alteration or burdens. The decision that compliance would result in
such alteration or burdens must be made by the Chairman or his or her
designee after considering all Commission resources available for use in
the funding and operation of the conducted program or activity, and must
be accompanied by a written statement of the reasons for reaching
[[Page 130]]
that conclusion. If an action would result in such an alteration or such
burdens, the Commission shall take any other action that would not
result in such an alteration or such burdens, but would, nevertheless,
ensure that individuals with handicaps receive the benefits and services
of the program or activity.
(b) Methods. The Commission may comply with the requirements of this
section through such means as redesign of equipment, reassignment of
services to accessible buildings, assignment of aides to beneficiaries,
home visits, delivery of services at alternate accessible sites,
alteration of existing facilities and construction of new facilities,
use of accessible rolling stock, or any methods that result in making
its programs or activities readily accessible to and usable by
individuals with handicaps. The Commission is not required to make
structural changes in existing facilities where other methods are
effective in achieving compliance with this section. The Commission, in
making alterations to existing buildings, shall meet accessibility
requirements to the extent compelled by the Architectural Barriers Act
of 1968, as amended (42 U.S.C. 4151-4157) and any regulations
implementing it. In choosing among available methods for meeting the
requirements of this section, the Commission shall give priority to
those methods that offer programs and activities to qualified
individuals with handicaps in the most integrated setting appropriate.
(c) Time period for compliance. The Commission shall comply with the
obligations established under this section by April 1, 1988, except that
where structural changes in facilities are undertaken, such changes
shall be made by February 1, 1991, but in any event as expeditiously as
possible.
(d) Transition plan. In the event that structural changes to
facilities will be undertaken to achieve program accessibility, the
Commission shall develop, by August 1, 1988, a transition plan setting
forth the steps necessary to complete such changes. The Commission shall
provide an opportunity to interested persons, including individuals with
handicaps or organizations representing individuals with handicaps, to
participate in the development of the transition plan by submitting
comments (both oral and written). A copy of the transition plan shall be
made available for public inspection. The plan shall, at a minimum--
(1) Identify physical obstacles in the Commission's facilities that
limit the accessibility of its programs or activities to individuals
with handicaps;
(2) Describe in detail the methods that will be used to make the
facilities accessible;
(3) Specify the schedule for taking the steps necessary to achieve
compliance with this section and, if the time period of the transition
plan is longer than one year, identify steps that will be taken during
each year of the transition period;
(4) Indicate the official responsible for implementation of the
plan; and
(5) Identify the persons or groups with whose assistance the plan
was prepared.
Sec. 6.151 Program accessibility: New construction and alterations.
Each building or part of a building that is constructed or altered
by, on behalf of, or for the use of the Commission shall be designed,
constructed, or altered so as to be readily accessible to and usable by
individuals with handicaps. The definitions, requirements, and standards
of the Architectural Barriers Act (42 U.S.C. 4151-4157), as established
in 41 CFR 101-19.600 to 101-19.607, apply to buildings covered by this
section.
Sec. 6.152 Program accessibility: Electronic and information technology.
(a) When developing, procuring, maintaining, or using electronic and
information technology, the Commission shall ensure, unless an undue
burden would be imposed on the agency, that the electronic and
information technology allows, regardless of the type of medium of the
technology:
(1) Individuals with disabilities who are employees to have access
to and use of information and data that is comparable to the access to
and use of the information and data by employees who are not individuals
with disabilities; and
[[Page 131]]
(2) Individuals with disabilities who are members of the public
seeking information or services from the Commission to have access to
and use of information and data that is comparable to the access to and
use of the information and data by members of the public who are not
individuals with disabilities.
(b) When the development, procurement, maintenance, or use of
electronic and information technology that meets the standards published
by the Architectural and Transportation Barriers Compliance Board
pursuant to section 508(a)(2) of the Rehabilitation Act of 1973, as
amended, would impose an undue burden on the Commission, the Commission
shall provide individuals with disabilities covered by paragraph (a) of
this section with the information and data involved by an alternative
means of access that allows such individuals to use the information and
data.
(c) This section shall not apply to any matter legally exempted by
section 508, by the standards referenced in paragraph (b) of this
section, or by other applicable law or regulation. Nothing in this
section shall be construed to limit any right, remedy, or procedure
otherwise available under any provision of federal law (including
sections 501 through 505 of the Rehabilitation Act of 1973, as amended)
that provides greater or equal protection for the rights of individuals
with disabilities than section 508.
[66 FR 51863, Oct. 11, 2001]
Sec. Sec. 6.153-6.159 [Reserved]
Sec. 6.160 Communications.
(a) The Commission shall take appropriate steps to ensure effective
communication with applicants, participants, personnel of other Federal
entities, and members of the public.
(1) The Commission shall furnish appropriate auxiliary aids where
necessary to afford an individual with handicaps an equal opportunity to
participate in, and enjoy the benefits of, a program or activity
conducted by the Commission.
(i) In determining what type of auxiliary aid is necessary, the
Commission shall give primary consideration to the requests of the
individual with handicaps.
(ii) The Commission need not provide individually prescribed
devices, readers for personal use or study, or other devices of a
personal nature.
(2) Where the Commission communicates with applicants and
beneficiaries by telephone, telecommunication devices for deaf persons
(TDD's), or equally effective telecommunication systems shall be used.
(b) The Commission shall ensure that interested persons, including
persons with impaired vision or hearing, can obtain information as to
the existence and location of accessible services, activities, and
facilities.
(c) The Commission shall provide signs at a primary entrance to each
of its inaccessible facilities, directing users to a location at which
they can obtain information about accessible facilities. The
international symbol for accessibility shall be used at each primary
entrance of an accessible facility.
(d) This section does not require the Commission to take any action
that it can demonstrate would result in a fundamental alteration in the
nature of a program or activity, or in undue financial and
administrative burdens. In those circumstances where Commission
personnel believe that the proposed action would fundamentally alter the
program or activity or would result in undue financial and
administrative burdens, the Commission has the burden of proving that
compliance with Sec. 6.160 would result in such alteration or burdens.
The decision that compliance would result in such alteration or burdens
must be made by the Chairman or his or her designee after considering
all Commission resources available for use in the funding and operation
of the conducted program or activity, and must be accompanied by a
written statement of the reasons for reaching that conclusion. If an
action required to comply with this section would result in such an
alteration or such burdens, the Commission shall take any other action
that would not result in such an alteration or burdens but would
nevertheless ensure that, to
[[Page 132]]
the maximum extent possible, individuals with handicaps receive the
benefits and services of the program or activity.
Sec. Sec. 6.161-6.169 [Reserved]
Sec. 6.170 Compliance procedures.
(a) Except as provided in paragraph (b) of this section, this
section applies to all allegations of discrimination on the basis of
handicap in programs or activities conducted by the Commission.
(b) The Commission shall process complaints alleging violations of
section 504 with respect to employment according to the procedures
established by the Equal Employment Opportunity Commission in 29 CFR
part 1613 pursuant to section 501 of the Rehabilitation Act of 1973 (29
U.S.C. 791). The Commission shall apply the same procedures to process
complaints alleging violations of section 508. Complaints alleging a
violation of section 508 may not be filed with respect to any exempted
matters as described in Sec. 6.152(c) of this chapter, and may be filed
only with respect to electronic and information technology procured by
the Commission on or after June 21, 2001.
(c) Responsibility for implementation and operation of this section
is vested in the Director of Equal Employment Opportunity.
(d)(1) A complete complaint under this section may be filed by any
person who believes that he or she or any specific class of persons of
which he or she is a member has been subjected to discrimination
prohibited by this part. The complaint may also be filed by an
authorized representative of any such person.
(2) The complaint must be filed within 180 days of the alleged act
of discrimination unless the Director of Equal Employment Opportunity
extends the time period for good cause.
(3) The complaint must be addressed to the Director of Equal
Employment Opportunity, Federal Trade Commission, 600 Pennsylvania
Avenue, NW., Washington, DC 20580.
(e) If the Director of Equal Employment Opportunity receives a
complaint over which the Commission does not have jurisdiction, he or
she shall promptly notify the complainant and shall make reasonable
efforts to refer the complaint to the appropriate Government entity.
(f) The Director of Equal Employment Opportunity shall notify the
Architectural and Transportation Barriers Compliance Board upon receipt
of any complaint alleging that a building or facility that is subject to
the Architectural Barriers Act of 1968, as amended (42 U.S.C. 4151-4157)
is not readily accessible to and usable by individuals with handicaps.
(g)(1) The Director of Equal Employment Opportunity shall accept and
investigate a complete complaint that is filed in accordance with
paragraph (d) of this section and over which the Commission has
jurisdiction.
(2) If the Director of Equal Employment Opportunity receives a
complaint that is not complete (see Sec. 6.103), he or she shall,
within 30 days thereafter, notify the complainant that additional
information is needed. If the complainant fails to complete the
complaint within 30 days of the date of the Director's notice, the
Director of Equal Employment Opportunity may dismiss the complaint
without prejudice.
(h) Within 180 days of the receipt of a complete complaint over
which the Commission has jurisdiction, the Director of Equal Employment
Opportunity shall notify the complainant of the results of the
investigation in a letter containing--
(1) Findings of fact and conclusions of law;
(2) A description of a remedy for each violation found; and
(3) A notice of the right to appeal to the Commission's General
Counsel.
(i)(1) An appeal under this section must be filed within 90 days of
the complainant's receipt of the letter under paragraph (h) of this
section unless the General Counsel extends the time period for good
cause.
(2) The appeal must be addressed to the General Counsel, Federal
Trade Commission, 600 Pennsylvania Avenue, NW., Washington, DC 20580.
(3) The appeal shall specify the questions raised by the appeal and
the arguments on the points of fact and law relied upon in support of
the position
[[Page 133]]
taken on each question; and it shall include copies of the complaint
filed under paragraph (d) of this section and the letter by the Director
of Equal Employment Opportunity under paragraph (h) of this section as
well as any other material relied upon in support of the appeal.
(j) The General Counsel shall notify the complainant of the results
of the appeal within 60 days of the receipt of the appeal. If the
General Counsel determines that additional information is needed from
the complainant, the General Counsel shall have 60 days from the date of
receipt of the additional information to make a final determination on
the appeal. The General Counsel may submit the appeal to the Commission
for final determination provided that any final determination of the
appeal is made by the Commission within the 60-day period specified by
this paragraph.
(k) The time limits specified by paragraphs (h) and (j) of this
section may be extended by the Chairman for good cause.
(l) The Commission may delegate its authority for conducting
complaint investigations to other Federal agencies, except that the
authority for making the final determination may not be delegated.
[52 FR 45628, Dec. 1, 1987, as amended at 66 FR 51864, Oct. 11, 2001]
Sec. Sec. 6.171-6.999 [Reserved]
PART 14_ADMINISTRATIVE INTERPRETATIONS, GENERAL POLICY STATEMENTS, AND
ENFORCEMENT POLICY STATEMENTS--Table of Contents
Sec.
14.9 Requirements concerning clear and conspicuous disclosures in
foreign language advertising and sales materials.
14.12 Use of secret coding in marketing research.
14.15 In regard to comparative advertising.
14.16 Interpretation of Truth-in-Lending Orders consistent with
amendments to the Truth-in-Lending Act and Regulation Z.
Authority: 15 U.S.C. 41-58.
Sec. 14.9 Requirements concerning clear and conspicuous disclosures in
foreign language advertising and sales materials.
The Federal Trade Commission has noted that, with increasing
intensity, advertisers are making special efforts to reach foreign
language-speaking consumers. As part of this special effort,
advertisements, brochures and sales documents are being printed in
foreign languages. In recent years the Commission has issued various
cease-and-desist orders as well as rules, guides and other statements,
which require affirmative disclosures in connection with certain kinds
of representations and business activities. Generally, these disclosures
are required to be ``clear and conspicuous.'' Because questions have
arisen as to the meaning and application of the phrase ``clear and
conspicuous'' with respect to foreign language advertisements and sales
materials, the Commission deems it appropriate to set forth the
following enforcement policy statement:
(a) Where cease-and-desist orders as well as rules, guides and other
statements require ``clear and conspicuous'' disclosure of certain
information in an advertisement or sales material in a newspaper,
magazine, periodical, or other publication that is not in English, the
disclosure shall appear in the predominant language of the publication
in which the advertisement or sales material appears. In the case of any
other advertisement or sales material, the disclosure shall appear in
the language of the target audience (ordinarily the language principally
used in the advertisement or sales material).
(b) Any respondent who fails to comply with this requirement may be
the subject of a civil penalty or other law enforcement proceeding for
violating the terms of a Commission cease-and-desist order or rule.
(Sec. 5, 38 Stat. 719, as amended; 15 U.S.C. 45)
[38 FR 21494, Aug. 9, 1973, as amended at 63 FR 34808, June 26, 1998]