[Federal Register Volume 66, Number 64 (Tuesday, April 3, 2001)]
[Rules and Regulations]
[Pages 17622-17633]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-8045]


=======================================================================
-----------------------------------------------------------------------

FEDERAL TRADE COMMISSION

16 CFR Parts 2, 3 and 4


Rules of Practice

AGENCY: Federal Trade Commission (FTC).

ACTION: Interim rules with request for comments.

-----------------------------------------------------------------------

SUMMARY: The Commission is updating and making other technical 
corrections and changes to its regulations on Organization, Procedures 
and Rules of Practice.

DATES: These rule amendments will be effective May 18, 2001. Comments 
must be received on or before May 4, 2001. These amendments will govern 
all Commission adjudicatory proceedings commenced on or after May 18, 
2001. They will also govern all pending Commission adjudicatory 
proceedings commenced before May 18, 2001 unless, in the opinion of the 
Administrative Law Judge (ALJ) or the Commission, the application of 
one or more amended rules in a particular proceeding would not be 
feasible or would work injustice.

ADDRESSES: Written comments must be submitted with 20 copies to the 
Office of the Secretary, Room 159, Federal Trade Commission, 600 
Pennsylvania Ave., NW., Washington, DC 20580.

FOR FURTHER INFORMATION CONTACT: John Graubert, Office of General 
Counsel, FTC, 600 Pennsylvania Avenue, NW., Washington, DC 20580, (202) 
326-2186, [email protected].

SUPPLEMENTARY INFORMATION: The Commission has periodically examined and 
revised its rules of practice in the interest of clarifying the rules 
and making the Commission's procedures more efficient and less 
burdensome for all parties.\1\ The Commission is further amending parts 
2, 3 and 4 of its rules, 16 CFR parts 2, 3 and 4, to update and make 
other technical clarifications, corrections, and changes to the rules, 
as follows.
---------------------------------------------------------------------------

    \1\ See, e.g., 61 FR 50640 (Sept. 26, 1996); 50 FR 41485 (Oct. 
11, 1985).
---------------------------------------------------------------------------

Reports of Compliance

    To facilitate the processing and review of compliance reports, Rule 
2.41(a) is being amended to provide (1) that an original and one copy 
of each such compliance report should be filed with the Secretary of 
the Commission, and (2) that, at the same time, one additional copy 
should 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).

Pretrial and Discovery

    Responsive Motions: Rule 3.12(a): In federal court practice, 
Federal Rule of Civil Procedure 12(a)(4) provides that the filing of a 
``motion permitted under this rule'' tolls the period for answering a 
complaint. Commission Rule 3.12(a) generally follows the federal rule 
but mentions only a motion for a more definite statement. Although 
other motions, such as motions to dismiss, are undoubtedly rare at the 
outset of FTC administrative proceedings, there is no reason to exclude 
such dispositive motions from the rule. Making Rule 3.12(a) consistent 
with Fed. R. Civ. P. 12(a)(4) will spare the parties and ALJ the 
additional inconvenience of arranging extensions of time to answer in 
individual cases where such motions are filed.
    Initial Pretrial Conferences: Rule 3.21(b): Under the Commission's 
1996 Rule amendments, the ALJs must hold a scheduling conference not 
later than seven (7) days after the last answer is filed. Although the 
1996 amendments were designed to expedite administrative litigation, 
this is one instance in which some additional time might actually make 
the proceedings more efficient. As a practical matter, particularly in 
cases when service on one or more respondents is complicated for any 
reason (e.g., overseas service), it has proved difficult to predict 
when the last answer will be filed and difficult to schedule and plan 
for a scheduling conference in this narrow seven-day window. Moreover, 
two days after the initial scheduling conference, no matter how hastily 
convened, the ALJ is required to issue a prehearing scheduling order 
based in part on the results of the conference. See Rule 3.21(c). 
Because the Commission wants the parties to exchange disclosures and 
have meaningful discussions about the proceeding before the scheduling 
conference in order to identify and attempt to narrow the issues in the 
case, which will also assist the ALJ in crafting a meaningful pretrial 
order, the Commission will make a modest enlargement of the period in 
Rule 3.21(b) from seven to fourteen (14) days.
    Adjudicative Motions: Rule 3.22: When the Commission amended the 
Part 3 Rules in 1996, it approved a change to Rule 3.22(b) to require 
``that all motions in adjudicative proceedings include the name, 
address, and telephone number of counsel, and attach a draft order 
containing the proposed relief.'' See 61 FR 50640, 50644. This language 
was inadvertently omitted from the revised Rule itself, as published in 
the Federal Register and later incorporated into the Code of Federal 
Regulation (although part of this requirement is contained in Rule 
4.2(e)(1)). In addition to making this change in Rule 3.22, the amended 
rule will also require counsel to provide a fax number and e-mail 
address, if any, along with name, address and phone number.
    Summary Decision: Rule 3.24(a)(2): The rule currently provides that 
a decision shall be rendered ``within thirty (30) days.'' For clarity, 
the Rule is being amended to specify that the decision is due within 
thirty (30) days after the opposition or any final brief ordered by the 
ALJ is filed.
    Expert Discovery: Rule 3.31(c)(4)(i): Under the Commission's 
current rule, discovery of experts is handled principally by 
interrogatory. Further discovery, including depositions, requires an 
order from the ALJ. The amended Rule, reflecting the development of 
practice in recent years under the Federal Rules of Civil Procedure, 
generally provides for disclosure of expert opinions and depositions of 
experts. Rule 3.31(c)(4)(B)(iii), regarding payment of expert fees for 
certain discovery, is deleted. The ALJ can address any issues regarding 
fees or costs under Paragraph (d) of this rule.
    Depositions: Rule 3.33(a): The amended Rule incorporates a 
provision modeled on Federal Rule of Civil Procedure 30(b)(7), which 
permits the parties to stipulate or the court to order that a 
deposition may be taken by telephone or other remote electronic means.
    Foreign Discovery: Rule 3.36: Since the 1996 amendments to the 
Rules, parties may issue subpoenas for depositions or production of 
documents without prior approval or supervision from the ALJs, except 
when the discovery request seeks information or testimony from another 
governmental agency. For discovery involving other

[[Page 17623]]

government agencies, the parties have to file a motion with the ALJ, 
who determines whether the request is reasonable in scope and whether 
the information sought cannot be reasonably obtained by other means. 
See Rule 3.36(b). For all other discovery, the parties obtain subpoena 
forms identifying the Part 3 matter at issue (but executed in blank as 
to the subpoena target) from the Secretary's office, and deliver them 
on their own. See Rule 3.34(a). These subpoenas include the seal of the 
agency, are signed by the Secretary, and bear every indication of being 
official agency documents.
    Respondents have from time to time attempted to serve such 
subpoenas abroad. To the extent the subpoenas appear to have the 
imprimatur of the Commission, an attempt to serve them on foreign 
entities outside the territorial limits of the U.S. may raise serious 
issues of Commission jurisdiction and international law.\2\ In the 
interest of limiting or avoiding conflicts with foreign authorities in 
this area, the Commission is putting foreign discovery requests back 
into the category of ALJ-supervised discovery under Sec. 3.36. Indeed, 
the tests provided in Sec. 3.36(b) provide a framework that closely 
tracks the prerequisites for foreign discovery as commonly recognized 
by treaty, custom and practice in many countries: That is, such 
discovery should only occur if a judge determines that the request is 
reasonable and that other means of obtaining the information (such as 
domestic discovery or voluntary arrangements) have been exhausted or 
are not available.\3\
---------------------------------------------------------------------------

    \2\ See CFTC v. Nahas, 738 F.2d 487 (D.C. Cir. 1984) (district 
court lacks jurisdiction to enforce a CFTC investigative subpoena 
served on a foreign citizen in a foreign nation); FTC v. Compagnie 
de Saint-Gobain-Pont-a-Mousson, 636 F.2d 1300 (D.C. Cir. 1980) (FTC 
Act does not authorize service of subpoenas abroad by registered 
mail). These issues are less likely to arise with Civil 
Investigative Demands served at the behest of Commission staff, 
because section 20(c)(7)(b) of the FTC Act specifically provides for 
foreign service of CIDs.
    \3\ See, e.g., Revised Recommendation of the OECD Council 
Concerning Co-operation Between Member Countries on Restrictive 
Business Practices Affecting International Trade, OECD Doc. C 
(95)130 (Final) (July 1995) at Appendix para. 8(a)-(c); U.S. Dept. 
of Justice and Federal Trade Commission, Antitrust Enforcement 
Guidelines for International Operations Sec. 4.2 (April 1995).
---------------------------------------------------------------------------

    Parties seeking foreign discovery must also make a good faith 
demonstration before the ALJ that the discovery requested would be 
permitted by treaty, law, custom or practice in the country from which 
the discovery is sought and that any additional procedural requirements 
have been or will be met before the subpoena is served. This does not 
mean that the ALJs will be expected to make rulings on questions of 
foreign law. This showing, together with the other requirements of Rule 
3.36(b), will merely assist the ALJ in attempting to prevent 
unnecessary conflicts with foreign sovereigns.
    There is no comparable need at this time for rule revisions 
regarding discovery requests served within the United States that may 
require production of documents located abroad (in foreign offices of 
multinational corporations, for example). Cases arising under similar 
statutory provisions confirm that such discovery requests are 
authorized by the FTC Act and are not likely to present the same 
extraterritoriality concerns as actual service of discovery requests 
abroad.\4\
---------------------------------------------------------------------------

    \4\ See FMC v. DeSmedt, 366 F.2d 464 (2d Cir.), cert. denied, 
385 U.S. 974 (1966); accord CAB v. Deutsche Lufthansa 
Aktiengesellschaft, 591 F.2d 951 (D.C. Cir. 1979).
---------------------------------------------------------------------------

    Rule 3.36 is also being amended to add a new subsection (c), to 
make it clear that each subpoena issued pursuant to an order of the ALJ 
under Rule 3.36 shall be signed by the Secretary, but must have 
attached to it, and be served in conjunction with, a copy of the Order 
authorizing its issuance.
    Rule 3.34, the rule providing for issuance of subpoenas in blank, 
is amended to make clear that that procedure does not apply to 
discovery requests covered by Rule 3.36. Finally, the reference to 
Sec. 3.31(b)(1) in Sec. 3.36(b)(2) to Sec. 3.31(c)(1).
    Orders Compelling Witness Testimony: Rule 3.39(a): For 
completeness, this rule should specifically include Directors and 
Deputy Directors of Bureaus, Assistant Directors in the Bureau of 
Competition, Associate Directors in the Bureau of Consumer Protection, 
and Regional Directors and Assistant Regional Directors of Commission 
Regional Offices, to reflect the current organization of the Bureaus.

Filing of Documents Other Than Correspondence

    In order to facilitate the filing, receipt, and processing of 
documents submitted to the Commission, in both adjudicative and 
nonadjudicative proceedings--and to accommodate the need to secure 
electronic copies of such documents in a routine, systematic, and 
efficient manner--Rule 4.2 has been amended in a number of respects:
    Copies: Rule 4.2(c): The present Rule 4.2(c) requires the filing of 
an original and twenty (20) copies of ``all documents before the 
Commission'' and certain motions before an ALJ, and an original and ten 
(10) copies of all other documents before an ALJ. In light of the rule 
amendments regarding electronic filing, discussed below, and to reduce 
the burden of the filing process as much as possible, this rule is 
amended to require the filing of a paper original and twelve (12) 
copies of documents filed before the Commission, and the paper original 
and only one (1) paper copy of each document filed before an ALJ in an 
adjudicative proceeding. The current Rule 4.2(c) also requires the 
filing of ``an original and one copy of compliance reports'' and the 
filing of ``one (1) copy of admissions and answers thereto.'' As noted 
above, the first requirement has been transferred to Rule 2.41, which 
deals with the filing of compliance reports, and therefore need no 
longer appear in Rule 4.2(c). Similarly, the second requirement 
replicates the requirement covering admissions and answers thereto 
already set forth in Rule 3.32, and therefore need no longer appear in 
Rule 4.2(c) as well. In addition, Rule 4.2(c) currently requires 
parties filing motions to provide copies to the ALJ at the time such 
motions are filed with the Secretary. Because this requirement already 
appears in Rule 3.22, and is being added to Rule 4.4(b), it may also be 
removed from Rule 4.2(c).
    Electronic Filing: Rule 4.2: The Rule is amended in a number of 
respects to reflect current practices and technology. First, the 
amended rule requires the submission to the Commission of electronic 
copies of pleadings, motions, briefs, and all other filings in 
adjudicative proceedings--whether before the Commission or an ALJ--and 
of all other formal filings before the Commission, such as petitions to 
limit or quash and appeals from rulings thereon; requests to reopen or 
modify; and applications for approval of proposed divestitures, 
acquisitions, or similar transactions.
    The Commission notes that other agencies have had electronic filing 
requirements for many years,\5\ and that the burden of this proposal on 
the public is likely to be negligible at this point. The use of 
electronic word-processing equipment is virtually universal, certainly 
among parties appearing before the Commission. In case of extreme 
hardship, however, the Secretary is empowered to excuse a party from 
this requirement. The rule follows the format requirements used in the 
Commission's request for nominations for the Advisory Committee on 
Online Access and

[[Page 17624]]

Security, which requested that submissions be accompanied by an 
electronic copy in ASCII format, WordPerfect or Microsoft Word. See 64 
FR 71457 (Dec. 21, 1999). This covers the two most popular word-
processing programs. Documents written on other systems can be readily 
converted into one of the three requested options.
---------------------------------------------------------------------------

    \5\ See, e.g., 49 CFR 1104.3(a) (Surface Transportation Board).
---------------------------------------------------------------------------

    The amended rule further provides that an electronic copy of each 
public filing in an adjudicative proceeding shall be submitted to the 
Commission by e-mail, while an electronic copy of an in camera or 
otherwise confidential filing shall be submitted to the Commission on a 
diskette attached to the paper original of the filing. The amended rule 
requires certification that a paper copy with an original signature is 
being filed on the same day by other means, thus preserving the 
availability of sanctions under Rule 4.2(e). A paper copy is also still 
required because many exhibits and appendices cannot currently be 
transmitted electronically in a feasible or efficient manner.
    Second, the amended rule permits the filing of other public 
documents, such as public comments, in either paper or electronic form. 
If an electronic version is filed, it should be submitted by e-mail, 
rather than diskette. This method of filing makes the document-handling 
system more efficient and secure, eliminating problems caused by 
possible loss or mis-labeling of a diskette. Documents which contain 
nonpublic information--other than those filed formally before the 
Commission, or before an ALJ in adjudicative proceedings--must be filed 
in paper from only, and must clearly be labeled as confidential.
    The Commission's experience with electronic filing under the 
amended rules will assist in preparing for compliance with the 
Government Paperwork Elimination Act, Title XVII of Public Law 105-277 
(Oct. 21, 1998), by the Act's effective date in October 2003.
    Service: Rule 4.4: In order to assure that complaint counsel 
receive copies of pleadings as expeditiously as possible, the amended 
rule adds ``lead complaint counsel'' to the list of parties to be 
served in Rule 4.4(b). A copy must also be filed with the ALJ.
    Rules 4.4(a)(3) and 4.4(b) are expanded to provide explicitly for 
service by overnight courier.
    Secretarial Service of Complaint Counsel Documents: The current 
practice of having the Secretary serve documents filed by complaint 
counsel does not appear to be based on any rule or statutory 
requirement. This procedure adds delay and administrative burden with 
no apparent countervailing benefit. Although changing this practice 
does not require a rule change, and has been accomplished by a Notice 
to Staff and a public announcement, the requirement for a certificate 
of service in Rule 4.4(c) is now uniformly applicable to all parties--
including both complaint counsel and all respondents--as indicated by 
deletion of the phrase ``by a party respondent or intervenor'' from 
this paragraph. Also, the option of providing an ``acknowledgment of 
service'' in lieu of proof of service is rarely used, serves little 
purpose, and has been deleted.

Trials

    Evidence: Rule 3.43: In Lenox, Inc., 73 F.T.C. 578, 603-04 (1968), 
the Commission articulated its position that, because respondents are 
in the best position to determine the authenticity of documents kept in 
their own files, respondents bear the burden of producing evidence to 
rebut a presumption that documents produced from their files are 
authentic. For the same reason the Commission also adopted a rebuttable 
presumption that such documents were kept in the regular course of 
business, for purposes of admissibility. This position has been 
repeated in subsequent cases, and applied to documents produced by any 
corporation (including third parties).
    Nevertheless, in some proceedings counsel continue to raise 
objections to the authenticity of their own documents (without 
producing affirmative evidence calling authenticity into question) 
until the ALJ is forced to make a ruling enforcing the Lenox 
presumption. This practice wastes time and energy. Expressly writing 
the Lenox presumption into the rules might deter some of these 
objections.
    Accordingly, the amended rule creates a second paragraph in Rule 
3.43(b) providing that a document generated and produced by any person 
engaged in commerce is presumptively authentic, and presumptively was 
prepared and kept in the regular course of business of the person 
generating or producing the document, unless the person introduces 
evidence tending to rebut such a presumption. This rule does not apply 
to Commission records. Public records are subject to separate, specific 
rules in the Federal Rules of Evidence, see Fed. R. Evid. 803(8-10), 
and the Commission thinks it appropriate to treat Commission records 
separately as well. For example, to the extent the Lenox presumptions 
place a burden on a producing party to demonstrate that a particular 
document should not be attributed to that party, such a presumption is 
neither necessary nor appropriate in the case of the Commission. The 
Commission has made clear that it is bound only by the formal majority 
vote of the Commissioners, and not by representations of staff. See, 
e.g., In re TRW, Inc., et al., 88 F.T.C. 544, 544-45 (Interlocutory 
Order, Oct. 13, 1976).
    In camera Treatment: Rules 3.45(d) and 3.46(b) & (c): The current 
rules and practices regarding in camera treatment of evidence are 
causing a number of problems. First, parties have become extremely lax 
in complying with the existing rules regarding in camera treatment. 
Parties frequently file documents stamped ``in camera'' and assume in 
camera treatment will be maintained even though the party has neither 
sought nor obtained a ruling granting such treatment. Parties also 
routinely ignore or only partially observe the requirement that post-
trial exhibit and witness lists clearly identify which materials and 
testimony are in camera. The ALJs and the Secretary need clearer 
authority to enforce compliance with the existing rules by, among other 
sanctions, denying in camera status to or rejecting documents that do 
not comply with the rules.
    Second, the ALJs need a defined procedure for dealing with mid-
trial requests for in camera treatment that cannot be decided 
immediately because, for example, notice to a third party is required. 
The ALJs typically extend temporary protection in such cases pursuant 
to their general authority to regulate the course of the proceedings, 
but this procedure should be set forth in the rules of practice. This 
written procedure specifies, for example, how and when the issue will 
be brought back before the ALJ for a final determination. This will 
help assure that a party (or third party) in fact makes the required 
evidentiary showing to support all the in camera designations in the 
record.
    Finally, even if all the current requirements are met it is often 
difficult for Office of General Counsel staff (OGC) and the 
Commissioners' offices to ascertain what materials are legitimately 
part of the in camera record when the Commission's opinions are ready 
for release. Several additional steps described below will assist the 
Commissioners in preparing opinions for public release, while adding 
only minimal burden to the parties.
    (1) Changes to Ensure Compliance With Existing Rules: (a) Rule 3.46 
requires a party to indicate in post-trial submissions the in camera 
status of exhibits and witness testimony offered by that party and 
received into

[[Page 17625]]

evidence.\6\ This information is an invaluable aid for the ALJ and 
Commission in reviewing the evidentiary record. The parties, however, 
frequently fail to comply with these requirements. This failure impedes 
OGC's in camera review of the Commission's final opinion because staff 
must search the entire record for in camera rulings, including bench 
rulings, to determine the in camera status of evidentiary materials 
discussed in the opinion.
---------------------------------------------------------------------------

    \6\ A party's first statement of proposed findings of fact and 
conclusions of law must include both an exhibit index and a witness 
index specifying, among other things, each of that party's exhibits 
that have been accorded in camera treatment, 16 CFR 3.46(b)(7), and 
any portions of witness testimony offered by that party which the 
ALJ received in camera. Id. at 3.46(c)(4).
---------------------------------------------------------------------------

    To avoid such difficulties, the Commission is amending rule 3.42(c) 
to state explicitly that the ALJ may reject written submissions that 
fail to comply with the rules in this Part, including Rule 3.46.
    (b) As noted above, parties sometimes submit material marked ``in 
camera'' even though they have never sought or obtained a ruling from 
the ALJ that such treatment is appropriate. These submitters may well 
assume that their self-designated in camera submissions will not 
thereafter be disclosed to the public. Absent an affirmative ALJ ruling 
granting such materials in camera status, however, the Commission may 
be free to place these materials on the public record, and to disclose 
them in its final opinion, without advance notification.
    Here the program may lie in part in an arguable gap in rule 
3.45(b). The Rule indicates that an order is required to withhold 
material from the public record, and provides citations to the legal 
standards on which the ALJ's ruling is to be based. But the Rule does 
not explicitly require the party seeking in camera status to make a 
motion for such an order. The requirement of a motion would seem to be 
fairly evident, if not implicit, and in fact most parties do make such 
a motion. Parties that do not, however, may avoid (intentionally or 
unintentionally) ever making the required evidentiary showing that in 
camera treatment is appropriate and obtaining a corresponding order. 
The Commission therefore is now making the requirement of a motion for 
in camera treatment explicit in rule 3.45(b). The Commission is also 
making explicit a requirement that parties who seek to use material 
obtained from a third party subject to confidentiality restrictions 
demonstrate that the third party has been given adequate notice and 
opportunity to seek protection on its own behalf. Failure to comply 
with these requirements subjects the noncomplying party to the 
additional sanctions adopted in rule 3.42(c).
    (c) Parties have also incorrectly asserted in camera status for 
pre-trial motions or other documents that are not being ``offered into 
evidence.'' The in camera rules do not apply to such documents. See 
Rule 3.45(b). Motions that seek pretrial or procedural rulings, and 
that contain confidential matter, should be handled under the 
procedures for protective orders, see Rule 3.31(d), and should not be 
confused with in camera matters. One aspect of the in camera rules that 
should equally apply in the protective order context, however, is the 
requirement that parties submit both a public (redacted) and 
confidential) version of the relevant documents. Such a requirement is 
now added to Rule 3.22(b) by adding the words ``or is subject to 
confidentiality protections pursuant to a protective order'' after ``in 
camera status pursuant to Sec. 3.45(b).'' Corresponding changes are 
made in Rules 3.22(c) and 3.45(d), (e) & (f).
    Parties must also mark their confidential filings with brackets or 
similar conspicuous markings to indicate the material for which they 
are claiming confidential treatment, so that Commission staff who use 
the confidential versions of filings in preparing or reviewing 
decisions in the litigation are aware of which material may be subject 
to protective order. This complements a similar rule change for trial 
submissions discussed below.
    (2) Provisional Rulings: The current Rule 3.45(b) fails to 
accommodate situations in which the ALJ cannot rule on in camera issues 
at the time evidence is offered. This problem arises most frequently 
when a party offers into evidence at trial third party materials 
obtained through discovery and the third party is not present to 
request in camera treatment. As a matter of practice, the ALJ will 
grant provisional in camera status so that the testimony can continue 
uninterrupted and will instruct the introducing party to notify the 
third party of the provisional grant and the need to file an 
application for in camera treatment if it wants in camera treatment 
extended beyond a temporary period.
    There is no statutory impediment to this practice.\7\ Provisional 
grants of in camera treatment, moreover, serve a useful purpose, 
allowing the case to proceed without sidebar interruptions or delays 
addressing peripheral confidentiality issues. The rule is accordingly 
amended to provide express authority for this practice and specify a 
time period--twenty (20) days--within which the party offering the 
evidence must take whatever steps are necessary to present the matter 
to the ALJ for a final ruling. This might include notifying any 
affected third party submitters and giving them the opportunity to 
appear and make the appropriate showing. If the 20-day time period 
elapses without a motion to support the in camera claim, the ALJ can 
exclude the evidence or deny in camera status as appropriate in 
particular cases.
---------------------------------------------------------------------------

    \7\ The Administrative Procedure Act (``APA''), 5 U.S.C. 551 et 
seq., empowers the ALJs, inter alia, to regulate the course of the 
hearing. Id. at section 556(c)(5); see also 16 CFR 3.42(c)(6) 
(conforming rule of practice). The APA specifies the content of an 
adjudicative record (i.e., transcript of testimony, exhibits and all 
papers and requests filed in the proceeding), and requires that it 
be made available to the parties. 5 U.S.C. 556. Under the APA, the 
only adjudicative materials that agencies must routinely make 
available for public inspection and copying are final opinions, 
including concurring and dissenting opinions, and orders in 
adjudications. Id. at section 552(a)(2). Similarly, the FTC Act 
requires only that the Commission's ``report'' stating its findings 
be served on the parties. 15 U.S.C. 45(b).
---------------------------------------------------------------------------

    (3) Aids for the Release of Commission Opinions and Formerly In 
Camera Material: There are a number of relatively small measures that 
could greatly assist the process of determining which portions of 
Commission opinions must be withheld from the public record, and, in 
turn, of putting on the public record material for which in camera or 
other confidentiality protection has expired:
    (a) Submitters of in camera material must provide, for each piece 
of such evidence and affixed to such evidence, a name and address of 
record for notification purposes in the event the Commission intends to 
release the in camera material in a final adjudicative opinion, and 
must also update this information if necessary throughout the 
proceeding. This measure should minimize unnecessary delay while staff 
attempts to determine whom to notify of a proposed release, when that 
information is not apparent from the in camera document. For summaries, 
tables and other evidentiary compilations the submitter should make 
clear which entity is to be notified with respect to each separate 
reference to in camera material.
    (b) A party or nonparty submitter must mark its in camera 
submissions, either with highlighting, brackets or some other 
conspicuous marking, to show which material is claimed to be 
confidential. In addition, each such submission should include as an

[[Page 17626]]

attachment a set of pages consisting only of those pages on which the 
highlighted, bracketed, or otherwise marked material appears. 
Individuals involved in preparing the Commission's final adjudicative 
opinion primarily rely on the complete, in camera versions of parties' 
briefs, proposed findings of fact and conclusions of law and other 
written submissions, as well as the in camera version of the ALJ's 
initial decision. It has not always been apparent from such documents, 
however, which portions of the document are actually in camera.
    In camera review would be greatly facilitated if the in camera 
portions of party submissions and the ALJ's initial decision were 
easily identifiable. Moreover, the inclusion of a separate set of pages 
consisting only of the pages on which in camera or otherwise 
confidential material appears would greatly facilitate the later 
placement of that material on the public record, once its in camera or 
otherwise confidential status has expired. Requiring the parties to 
enclose in camera excerpts in brackets, and to include such a separate 
attachment, should impose no significant additional burden, because 
they must already identify such excerpts when preparing the public 
versions of their submissions.
    (c) in camera discussions in written submissions must include 
record citations to the relevant in camera evidentiary materials and 
associated ALJ in camera rulings. OGC and Commissioners' staff 
sometimes cannot link purported in camera excerpts to a specific ALJ 
ruling granting such treatment, either because there was no such ruling 
or because the record is not sufficiently clear.
    (d) The rule provides that in camera orders lacking an expiration 
date will expire three years after issuance.\8\ Most ALJ in camera 
orders include an expiration date, as required by Rule 3.45(b)(3). 
However, in rare instances, in camera orders have been silent as to 
their duration. To avoid the undesirable result that an exhibit or 
testimony would be accorded indeterminate in camera treatment without 
adequate justification, the Commission believes an automatic, default 
expiration of in camera treatment after three years would strike an 
appropriate balance between maintaining the confidentiality of 
sensitive materials that would result in competitive injury if 
disclosed, and public access to the underlying basis for Commission 
decisions.
---------------------------------------------------------------------------

    \8\ The Commission observed in General Foods, 95 F.T.C. 352, 353 
(1980), that it ``has usually denied in camera treatment for data'' 
that is more than three years old. (citing cases). ALJs routinely 
rely on this time frame when disposing of in camera applications. 
See, e.g., International Ass'n of Conference Interpreters, 123 
F.T.C. 465, 469 (1996).
---------------------------------------------------------------------------

    Expiration of in camera treatment three years after the ALJ's 
designation would discourage blanket grants of confidentiality by 
reminding the moving parties that they bear a special burden of showing 
why in camera treatment should be accorded for any longer period of 
time. See General Foods, 95 F.T.C. at 353 & n.2 (and cases cited 
therein); see also E.I. DuPont de Nemours & Co., 1990 FTC LEXIS 134, *2 
(April 25, 1990) (applicants seeking in camera treatment must 
demonstrate ``at the outset that the need for confidentiality of the 
material is not likely to decrease over time'').
    Consent Agreement Settlements: Rule 3.25(c): As the Commission held 
in Textron, Inc., D. 9226 (April 14, 1993), the Secretary's authority 
to withdraw a matter from adjudication upon execution of a consent 
agreement by respondent and complaint counsel should apply only when 
the matter is still pending before an ALJ, not if the matter is before 
the Commission. The Rule is amended to reflect this holding by 
inserting the words ``and the matter is still pending before an 
Administrative Law Judge'' before ``the Secretary shall issue an 
order'' in Rule 3.25(c). A sentence is also added to the end of Rule 
3.25(c) providing that if the matter is pending before the Commission, 
the Commission may, on motion, in its discretion, withdraw the matter 
from adjudication in order to consider a proposed consent agreement.
    Closing the Record: Rule 3.44(c): The second sentence of Rule 
3.44(c) contains a clerical error and should read ``The Administrative 
Law Judge shall retain the discretion to permit or order correction of 
the record as provided in Sec. 3.44(b).''

Appeals

    Scope of review: Rule 3.51(c)(3): Rule 3.51(c)(3) provides that the 
initial decision of an ALJ ``shall be supported by reliable, probative 
and substantial evidence.'' The term ``substantial evidence'' in this 
rule is meant to refer to the standard for agency decisions in section 
556(d) of the Administrative Procedure Act, which deals with the 
quantum of evidence (in most cases a preponderance) needed to support 
findings of fact.\9\ The phrase in this context should not be confused 
with the ``substantial evidence'' standard for judicial review of 
agency action, which is more deferential and may not require support by 
a ``preponderance'' of the evidence.\10\
---------------------------------------------------------------------------

    \9\ See Steadman v. SEC, 450 U.S. 91, 98 (1981).
    \10\ See Cellular Tel. Co. v. Town of Oyster Bay, 166 F. 3d 490, 
492, 494 (2d. Cir. 1999); but cf. Standard Oil Co. of California, 84 
F.T.C. 1401, 1446-47 (1974) (initial decision incorrectly applying 
appellate review standard to complaint counsel's case).
---------------------------------------------------------------------------

    Removing the ``substantial evidence'' language from Sec. 3.51(c)(3) 
should help eliminate such confusion. The parties' burdens of proof are 
still clearly governed by the case law and both section 556(d) of the 
APA and Commission Rule 3.43(a). Also, the Rule is streamlined by 
consolidating the remainder of subsection (c)(3) into subsection 
(c)(1), which also deals with the content of initial decisions.
    Form of Briefs: Rules 3.52 and 4.2: The Commission has a 
longstanding interest, as no doubt other parties do as well, in trying 
to make briefs clearer and more concise. Much time and paper has also 
been spent trying to address outdated typeface and format rules.\11\ 
The complexity of the typical Part 3 case makes it very difficult to 
impose rigid rules that would limit and simplify briefs. The Commission 
is attempting to address these concerns, however, by adopting three 
changes to conform the Commission's rules more closely to the Federal 
Rules of Appellate Procedure and the local rules of many federal 
circuit courts:
---------------------------------------------------------------------------

    \11\ Several parties have filed special pleadings seeking relief 
from the requirements of or otherwise complaining about the typeface 
requirements. See, e.g., Motion for an Extension of 30 Days to File 
Appeal Brief and for Leave to Use Alternate Typeface, In re Summit 
Technology &VISX, Inc., Docket No. 9286 (June 28, 1999); Order 
Granting Permission to File Brief in Times New Roman, 12-Point Type, 
Toys-``R''-Us, Inc.,  Docket No. 9278 (Dec. 9, 1997); Order Denying 
Complaint Counsel's Motion To Require Respondents To File Brief 
Complying With Rule 3.52(e), Id. (Nov. 12, 1997).
---------------------------------------------------------------------------

    1. Specification that the present requirement of a ``concise 
statement of the case'' in Rule 3.52(b)(2) means a concise summary of 
argument and concise statement of facts, following the model of Federal 
Rule of Appellate Procedure 28(a)(6)-(8) and (b);
    2. The outmoded typeface, paper size, margin and page limit 
provisions of Rule 3.52 are eliminated and replaced with word count 
limitations, as the Federal Rules of Appellate Procedure currently 
provide; and
    3. The rule now specifically provides that requests for extensions 
of the word limit are disfavored and will not be granted absent 
compelling circumstances.
    The first amendment is intended to encourage parties to organize 
and present their arguments clearly and cogently. Although Rule 3.52(b) 
does presently require a ``concise statement of the case,'' as well as 
a ``specification

[[Page 17627]]

of the questions intended to be urged,'' the FRAP standards are 
somewhat more specific and are widely understood by the bar. 
Specifically referring to and incorporating these standards should lead 
to more uniform, concise and comprehensible briefs.
    The word count limitations provide a simple, easily enforceable 
standard for the length of briefs. They give the parties an incentive 
to make their briefs legible, avoiding devices such as smaller fonts, 
excessive single-space footnotes or shaving of margins and spacing to 
get under a page limit. Consistent with the practice in most appellate 
courts, the rule excludes the cover, table of contents, table of 
authorities, glossaries, and appendices containing only sections of 
statutes or regulations, and the attachments required by Rule 3.45(e), 
if any, as well as the ``proposed form of order,'' but includes 
footnotes and all other citations. The parties would be required to 
certify that their submission complies with the applicable word count.
    The conversion from page to word counts also provides an 
opportunity to reconsider the appropriate length for briefs filed with 
the Commission. Our present limit of 90 pages for a typewritten brief 
is higher than several of our sister agencies, such as the SEC (60 
pages) or CFTC (50 pages), but lower than the FERC (100 pages). The 
Federal Rules of Appellate Procedure impose a general limitation of 30 
pages or 14,000 words for principal briefs. Views on the appropriate 
page limits differ: some point to the complexity of recent Part 3 cases 
and the extent of the Commission's de novo review authority and say a 
90 page brief is virtually unavoidable; others say that whatever the 
complexity of a case, effective advocacy requires stating the case in 
many fewer pages.
    Although it is true that the Commission's Part 3 cases tend to be 
complex, concerns about the length of briefs are more compelling. The 
Commission accordingly sets the limit at 75 pages for principal briefs, 
which converts to 18,750 words using the D.C. Circuit standard of 
approximately 250 words per page. The page limitations for other briefs 
are reduced by a comparable amount.
    The page limitations for briefs in cross appeals merit particular 
scrutiny. Under the present rules, by filing a cross-appeal a party 
more than doubles the number of pages to which that party is entitled--
from 90 to 205 pages. In contrast, under the Federal Rules of Appellate 
Procedure, a party filing a cross appeal is permitted one additional 
15-page brief, a fifty-percent increase in pages. The new word limits 
for cross appeals are as follows:

Appellant's opening brief--18,750 words (75 pages)
Appellee/cross appellant's answering brief--26,250 words (105 pages)
Appellant's reply--18,750 words (75 pages)
Reply of cross-appellant--11,250 words (45 pages)

    This system still leaves each party with an equal number of pages, 
as in the current rule, but cuts the total number of pages by the 
equivalent of 110 pages.

Miscellaneous Matters

    The Office of the Secretary: Two other additions to the Rules will 
assist the smooth functioning of the Office of the Secretary. First, in 
addition to the ``Rule 11''-type authority already in the Rule, the 
Secretary should have the same authority as most court clerks to reject 
documents for filing that fail to comply with Commission rules, such as 
the failure to attach proof of service to a filing in an adjudicative 
proceeding, as required by Rule 4.4(c). Such authority is now placed in 
a new Rule 4.2(g).
    Second, the Commission is formally promulgating a 5:00 rule--that 
is, that documents must be received by the Secretary's office before 
5:00 p.m. Eastern time to be deemed filed that day. Any documents 
received at the agency after 5:00 p.m. will be deemed filed the 
following day. This rule, added as Rule 4.3(d), will be consistent with 
our current general practice, and with Rule 0.3, which provides that 
the offices of the Commission are open each business day from 8:30 a.m. 
to 5 p.m.
    The public record and nonpublic materials: The Commission is 
amending Rule 4.9, which describes the public record of the Commission, 
to implement portions of the Muhammed Ali Boxing Reform Act, Public Law 
106-210, 114 Stat. 321 (2000) (to be codified at 15 U.S.C. 6301 note, 
6307a-6307h). That statute provides, inter alia, that professional 
boxing sanctioning organizations \12\ must file with the Commission, no 
later than January 31 of each year, the following information: (1) A 
complete description of the organization's ratings criteria, policies, 
and general sanctioning fee schedule; (2) the organization's bylaws; 
(3) the appeals procedures that a boxer may use to challenge his 
rating; and (4) the names and business addresses of all organization 
officials who vote on the boxers' ratings.\13\ The Act also requires 
the Commission to make such filings ``available to the public.'' \14\ 
The Commission is therefore amending Rule 4.9 by adding a new 
Sec. 4.9(b)(10)(xiii) to provide that such filings are part of its 
public record. In addition, the Commission will routinely place such 
filings on its web site, www.ftc.gov, along with the statement that the 
Commission has not reviewed or approved the filings.
---------------------------------------------------------------------------

    \12\ The statute defines a ``sanctioning organization'' as an 
organization that ``sanctions professional boxing matches in the 
United States; (A) between boxers who are residents of different 
states; or (B) that are advertised, otherwise promoted, or broadcast 
(including closed circuit television) in interstate commerce.'' 
Section 7(a)(14), 114 Stat. at 328.
    \13\ Section 11(d), 114 Stat. at 323 (codified at 15 U.S.C. 
6307c). In lieu of filing such information with the Commission, 
sanctioning organizations may instead disclose it on a web site, so 
long as the web site is readily accessible to the general public 
using generally available search engines, and so long as the site 
contains all of the above information. Id. at 324.
    \14\ 114 Stat. at 324.
---------------------------------------------------------------------------

    Finally, Rule 4.10(g), which provides a procedure whereby the 
Commission may disclose certain confidential material in Commission 
administrative or court proceedings only after notice to the submitter, 
is amended by clarifying in subsection (1) that a person or entity that 
submits material voluntarily in lieu of process must designate such 
material as confidential in order to gain the protections of this Rule.
    The Administrative Procedure Act does not require prior public 
notice and comment on these amendments because they relate solely to 
rules of agency, organization, procedure or practice. 5 U.S.C. 
553(b)(A). For this reason, the Regulatory Flexibility Act also does 
not require an initial or final regulatory flexibility analysis. See 5 
U.S.C. 603, 604. To the extent these amendments relate to agency 
information collection activities, they are exempt from review under 
the Paperwork Reduction Act. See 44 U.S.C. 3518(c); 5 CFR 1320.4 
(collections during the conduct of civil or administrative proceedings 
or investigations). The Commission nevertheless welcomes comment on 
these amendments and will consider further revision, if appropriate.

List of Subjects

16 CFR Part 2

    Administration practice and procedure, Investigations, Reporting 
and Recordkeeping Requirements.

16 CFR Part 3

    Administration practice and procedure, Claims, Equal Access to 
Justice, Lawyers.

[[Page 17628]]

16 CFR Part 4

    Administration practice and procedure, Freedom of Information Act, 
Privacy Act, Sunshine Act.

    For the reasons set forth in the preamble, the Federal Trade 
Commission amends Title 16, Chapter I, Subchapter A, of the Code of 
Federal Regulations, as follows:

PART 2--NONADJUDICATIVE PROCEDURES

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

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

    2. Amend Sec. 2.41(a) to add a new second sentence to read as 
follows:


Sec. 2.41  Reports of compliance.

    (a) * * * 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). * * *

PART 3--RULES OF PRACTICE FOR ADJUDICATIVE PROCEEDINGS

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

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

    4. Revise Sec. 3.12(a) to read as follows:


Sec. 3.12  Answer.

    (a) Time for filing. A respondent shall file an answer within 
twenty (20) days after being served with the complaint; Provided, 
however, That the filing of a motion permitted under these Rules shall 
alter this period of time as follows, unless a different time is fixed 
by the Administrative Law Judge:
    (1) If the motion is denied, the answer shall be filed within ten 
(10) days after service of the order or denial or thirty (30) days 
after service of the complaint, whichever is later;
    (2) If a motion for more definite statement of the charges is 
granted, in whole or in part, the more definite statement of the 
charges shall be filed within ten (10) days after service of the order 
granting the motion and the answer shall be filed within ten (10) days 
after service of the more definite statement of the charges.
* * * * *

    5. Amend Sec. 3.21 by revising the first sentence of paragraph (b) 
to read as follows:


Sec. 3.21  Prehearing procedures.

* * * * *
    (b) Scheduling conference. Not later than fourteen (14) days after 
the answer is filed by the last answering respondent, the 
Administrative Law Judge shall hold a scheduling conference * * *
* * * * *

    6. Amend Sec. 3.22 by revising paragraph (b) and the second 
sentence of paragraph (c) to read as follows:


Sec. 3.22  Motions.

* * * * *
    (b) Content. All written motions shall state the particular order, 
ruling, or action desired and the grounds therefor. They 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 two 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(c) 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.
    (c) Answers. * * * 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 two versions of the 
answer in accordance with the procedures set forth in Sec. 3.45(e). * * 
*
* * * * *

    7. Amend Sec. 3.24 by revising the fourth and fifth sentences of 
paragraph (a)(2) as follows:


Sec. 3.24  Summary decisions.

    (a) * * * (2) * * * 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 two versions of the 
document in accordance with the procedures set forth in Sec. 3.45(e). 
The decision sought by the moving party shall be rendered within thirty 
(30) days after the opposition or any final brief ordered by the 
Administrative Law Judge is filed, if the pleadings and any 
depositions, answers to interrogatories, admissions on file, and 
affidavits show that there is no genuine issue as to any material fact 
and that the moving party is entitled to such decision as a matter of 
law.* * *
* * * * *

    8. Amend Sec. 3.25 by revising paragraph (c) as follows:


Sec. 3.25  Consent agreement settlements.

* * * * *
    (c) If the proposed consent agreement accompanying the motion has 
also been executed by complaint counsel, including the appropriate 
Bureau Director, and the matter is still 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 the matter is pending before the Commission, the Commission 
in its discretion may, on motion, issue an order withdrawing from 
adjudication those portions of the matter that a proposed consent 
agreement would resolve for the purpose of considering the proposed 
consent agreement.
* * * * *

    9.-10. Amend Sec. 3.31 as follows:
    a. By adding the following paragraph (b)(3),
    b. Revising paragraph (c)(4)(i) introductory text, and
    c. Removing paragraph (c)(4)(iii).
    The addition and revision read as follows:


Sec. 3.31  General provisions.

* * * * *
    (b) Initial disclosures.* * *
    (3) In addition to the disclosures required by paragraphs (b)(1) 
and (2), of this section, the parties shall disclose to each other the 
identity of any person who may be used at trial to present evidence as 
an expert. Except as otherwise stipulated or directed by the 
Administrative Law Judge, this disclosure shall, with respect to a 
witness who is retained or specially employed to provide to a witness 
who is retained or specially employed to provide expert testimony in 
the case or whose duties as an employee of the party regularly involve 
giving expert testimony, be accompanied by a written report prepared 
and signed by the witness. The report shall contain a complete 
statement of all opinions to be expressed and the basis and reasons

[[Page 17629]]

therefor; the data 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 
ten 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 four years. These 
disclosures shall be made at the times and in the sequence directed by 
the Administrative Law Judge. In the absence of other directions from 
the Administrative Law Judge or stipulation by the parties, the 
disclosures shall be made at least 90 days before the trial date or the 
date the case is to be ready for trial or, if the evidence is intended 
solely to contradict or rebut proposed expert testimony on the same 
subject matter identified by another party under this paragraph, within 
30 days after the disclosure made by the other party.
* * * * *
    (c) * * *
    (4) Hearing Preparation: Experts. (i) A party may depose any person 
who has been identified as an expert whose opinions may be presented at 
trial. If a report from the expert is required under Sec. 3.31(b)(3), 
the deposition shall not be conducted until after the report is 
provided.
* * * * *

    11. Amend Sec. 3.33 by adding a sentence to the end of paragraph 
(a) to read as follows:


Sec. 3.33  Depositions.

    (a) In general. * * * 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.
* * * * *

    12. Amend Sec. 3.34 by revising the heading and last sentence of 
paragraph (c) to read as follows:


Sec. 3.34  Subpoenas.

* * * * *
    (c) Motions to quash; limitation on subpoenas subject to Sec. 3.36. 
* * * Nothing in paragraphs (a) and (b) of this section authorizes the 
issuance of subpoenas requiring the appearance of, or the production of 
documents in the possession, custody, or control of, an official or 
employee of a governmental agency other than the Commission, or 
subpoenas to be served in a foreign country, which may be authorized 
only in accordance with Sec. 3.36.

    13. Revise Sec. 3.36 to read as follows:


Sec. 3.36  Applications for subpoenas for records, or appearances by 
officials or employees, of governmental agencies other than the 
Commission, and subpoenas to be served in a foreign country.

    (a) Forms. 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 subpoena requiring access to documents or other tangible 
things, for the purposes described in Sec. 3.37(a), in the possession, 
custody, or control 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 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 satisfy the same requirements for a 
subpoena under Sec. 3.34 or a request for production or access under 
Sec. 3.37, together with a specific 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) The information or material sought cannot reasonably be 
obtained by other means; and
    (4) With respect to subpoenas to be served in a foreign country, 
that the party seeking discovery 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 is sought and that any 
additional procedural requirements have been or will be met before the 
subpoena is served.
    (c) Execution. If an ALJ 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.

    14. Amend Sec. 3.39 by revising the first sentence of paragraph 
(a), introducing text to read as follows:


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 dependent to testify or provide other 
information and granting immunity under 18 U.S.C. 6002, Directors and 
Deputy Directors of Bureaus, Assistant Directors in the Bureau of 
Competition, Associate Directors in the Bureau of Consumer Protection, 
and Regional Directors and Assistant Regional Directors of Commission 
Regional Offices having responsibility for presenting evidence in 
support of the complaint are authorized to determine: * * *

    15. Amend Sec. 3.42 as follows:
    a. Removes the ``and'' at the end of paragraph (c)(10);
    b. Redesignating present paragraph (c)(11) as paragraph (c)(12) and
    c. adding new paragraph (c)(11) the additional reads as follows:


Sec. 3.42  Presiding officials.

* * * * *
    (c) * * *
    (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
* * * * *

    16. Amend Sec. 3.43 by revising paragraph (b) to read as follows:


Sec. 3.34  Evidence.

* * * * *
    (b) Admissibility; exclusion of relevant evidence; mode and order 
of interrogation and presentation. (1) 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 by considerations of undue delay, waste of time, or 
needless presentations of cumulative evidence. 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

[[Page 17630]]

    (iii) Protect witnesses from harassment or undue embarrassment.
    (2) 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. See Lenox, Inc., 73 F.T.C. 578, 
603-04 (1968.
* * * * *
    17. Amend Sec. 3.44 by revising the last sentence of paragraph (c) 
to read as follows:


Sec. 3.44  Record.

* * * * *
    (c) Closing of the hearing record. * * * The Administrative Law 
Judge shall retain the discretion to permit or order correction of the 
record as provided in Sec. 3.44(b).
* * * * *

    18. Revise Sec. 3.45 to read as follows:


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 ten (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 
may 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 treatment. This finding 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 in treatment; 
and
    (3) A statement of the reasons for the date on which in camera 
treatment will expire. Such 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 three 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.
    (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 finds, 
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 two versions of the document. A complete version shall be marked 
``In Camera'' or ``Subject to Protective Order,'' as appropriate, on 
the first page and shall be filed with the Secretary and served by the 
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 ALJ 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 the 
first page and omitting the in camera and confidential information and 
attachment that appear in the complete version, shall be filed with the 
Secretary within five (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

[[Page 17631]]

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 two versions of the ruling or 
recommendation. A complete version shall be marked ``In Camera'' or 
``Subject to Protective Order,'' as appropriate, on the first 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 five (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 twenty (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.

    19. Amend Sec. 3.46 by revising the last sentence of paragraph 
(b)(7) and the last sentence of paragraph (c)(4) to read as follows:


Sec. 3.46  Proposed findings, conclusions and order.

* * * * *
    (b) * * *
    (7) * * * A statement whether the exhibit has been accorded in 
camera treatment, and a citation to the in camera ruling. * * *
    (c) * * *
    (4) * * * A statement identifying any portion of the witness' 
testimony that was received in camera, and a citation to the in camera 
ruling.
* * * * *

    20. Amend Sec. 3.51 by removing paragraph (c)(3) and adding a 
sentence to the beginning of paragraph (c)(1) to read as follows:


Sec. 3.51  Initial decision.

* * * * *
    (c) Content. (1) An initial decision shall be based on a 
consideration of the whole record relevant to the issues decided, and 
shall be supported by reliable and probative evidence. * * *
* * * * *

    21. Revise Sec. 3.52 to read as follows:


Sec. 3.52  Appeal from initial decision.

    (a) Who may file; notice of intention. Any party to a proceeding 
may appeal an initial decision to the Commission by filing a notice of 
appeal with the Secretary within ten (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 file a notice of 
appeal within five (5) days after service of the first notice, or 
within ten (10) days after service of the initial decision, whichever 
period expires last.
    (b) Appeal brief. The appeal shall be in the form of a brief, filed 
within thirty (30) days after service of the initial decision, and 
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 
18,750 words, including all footnotes and other substantive matter but 
excluding the cover, table of contents, table of authorities, 
glossaries, proposed form of order, appendices containing only sections 
of statutes or regulations, and any attachment required by 
Sec. 3.45(e).
    (c) Answering brief. Within thirty (30) days after service of the 
appeal brief, the appellee may file an answering brief, which shall 
contain a subject index, with page references, and a table of cases 
(alphabetically arranged), textbooks, statutes, and other material 
cited, with page references thereto, as well as arguments in response 
to the appellant's appeal brief. However, if the appellee is also 
cross-appealing, its answering brief shall also contain its arguments 
as to any issues the party is raising on cross-appeal, including the 
points of fact and law relied upon in support of its position on each 
question, with specific page references to the record and legal or 
other material on which the party relies in support of its cross-
appeal, and a proposed form of order for the Commission's consideration 
instead of the order contained in the initial decision. If the appellee 
does not cross-appeal, its answering brief shall not, without leave of 
the Commission, exceed 18,750 words. If the appellee cross-appeals, its 
brief in answer and on cross-appeal shall not, without leave of the 
Commission, exceed 26,250 words. The word count limitations of this 
paragraph include all footnotes and other substantive matter but 
exclude the cover, table of contents, table of authorities, glossaries, 
proposed form of order, appendices containing only sections of statutes 
or regulations, and any attachment required by Sec. 3.45(e).
    (d) Reply brief. Within seven (7) days after service of the 
appellee's answering brief, the appellant may file a reply brief, which 
shall be limited to rebuttal of matters in the answering brief and 
shall not, without leave of the Commission, exceed 18,750 words. If the 
appellee has cross-appealed, any party who is the subject of the cross-
appeal may, within thirty (30) days after service of such appellee's 
brief, file a reply brief, which shall be limited to rebuttal of 
matters in the appellee's brief and shall not, without leave of the 
Commission, exceed 18,750 words. The appellee who has cross-appealed 
may, within seven (7) days after service of a reply to its cross-
appeal, file an additional brief, which shall be limited to rebuttal of 
matters in the reply to its cross-appeal and shall not, without leave 
of the Commission, exceed 11,250 words. The word count limitations of 
this paragraph include all footnotes and other substantive matter but 
exclude the cover, table of contents, table of authorities, glossaries, 
proposed form of order, appendices containing only sections of statutes 
or regulations, and any attachment required by Sec. 3.45(e). No further 
briefs may be filed except by leave of the Commission.

[[Page 17632]]

    (e) 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, that party shall file two 
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.
    (f) 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 brief, 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 the other rules in this part. 
If a brief is not signed or is signed with intent to defeat and 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.
    (g) Designation of appellant and appellee in cases involving cross-
appeals. In a case involving an appeal by complaint counsel and one or 
more respondents, any respondent who has filed a timely notice of 
appeal and as to whom the Administrative Law Judge has issued an order 
to cease and desist shall be deemed an appellant for purposes of 
paragraphs (b), (c), and (d) of this section. In a case in which the 
Administrative Law Judge has dismissed the complaint as to all 
respondents, complaint counsel shall be deemed the appellant for 
purposes of paragraphs (b), (c), and (d) of this section.
    (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 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 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. The purpose of oral argument is 
to emphasize and clarify the written argument appearing in the briefs 
and to answer questions. Reading at length from the briefs or other 
texts is not favored.
    (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 field 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.
    (k) Extension of word count limitation. Extensions of word count 
limitation 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.

PART 4--MISCELLANEOUS RULES

    22. Revise the authority citation for Part 4 to read as follows:

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

    23. Revise Sec. 4.2 to read as follows:


Sec. 4.2  Requirements as to form, and filing of documents other than 
correspondence.

    (a) Filing. (1) Except as otherwise provided, all documents 
submitted to the Commission, including those addressed to the 
Administrative Law Judge, shall be filed with the Secretary of the 
Commission; Provided, however, That informal applications or requests 
may be submitted directly to the official in charge of any Bureau, 
Division, or Office of the Commission, or to the Administrative Law 
Judge.
    (2) Documents submitted to the Commission in response to a Civil 
Investigative Demand under section 20 of the FTC Act shall be filed 
with the custodian or deputy custodian named in the demand.
    (b) Title. Documents shall clearly show the file or docket number 
and title of the action in connection with which they are filed.
    (c) Paper and electronic copies of and service of filings before 
the Commission, and of filings before an ALJ in adjudicative 
proceedings. (1) Except as otherwise provided, each document filed 
before the Commission, whether in an adjudicative or a nonadjudicative 
proceeding, shall be filed the Secretary of the Commission, and shall 
include a paper original, twelve (12) paper copies, and an electronic 
copy (in ASCII format, WordPerfect, or Microsoft Word). Except as 
otherwise provided, each document filed by a party in an adjudicative 
proceeding before an ALJ shall be filed with the Secretary of the 
Commission, and shall include a paper original, one (1) paper copy and 
an electronic copy (in ASCII format, WordPerfect, or Microsoft Word).
    (2) The first page of the paper original of each such document 
shall be clearly labeled either public, or in camera or confidential. 
If the document is labeled in camera or confidential, it must include 
as an attachment either a motion requesting in camera or otherwise 
confidential treatment, in the form prescribed by Sec. 3.45(b), or a 
copy of a Commission, ALJ, or federal court order granting such 
treatment. The document must also include as a separate attachment a 
set of only those pages of document on which the in

[[Page 17633]]

camera or otherwise confidential material appears.
    (3) The electronic copy of each such public document shall be filed 
by e-mail, as the Secretary shall direct, in a manner that is 
consistent with technical standards, if any, that the Judicial 
Conference of the United States establishes, except that the electronic 
copy of each such document containing in camera or otherwise 
confidential material shall be placed on a diskette so labeled, which 
shall be physically attached to the paper original, and not transmitted 
by e-mail. The electronic copy of all documents 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) A paper copy of each such document 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 paper original is filed.
    (d) Paper and electronic copies of all other documents filed with 
the Commission. Except as otherwise provided, each document to which 
paragraph (c) of this section does not apply, such as public comments 
in Commission proceedings, may be filed with the Commission in either 
paper or electronic form. If such a document contains nonpublic 
information, it must be filed in paper form with the Secretary of the 
Commission, and the first page of the document must be clearly labeled 
confidential. If the document does not contain any nonpublic 
information, it may instead be filed in electronic form (in ASCII 
format, WordPerfect, or Microsoft Word) by e-mail, as the Commission or 
the Secretary may direct.
    (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 proceedings 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 or 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 this 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 purposed 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 
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.

    24. Amend Sec. 4.3 by adding new paragraph (d) to read as follows:


Sec. 4.3  Time.

* * * * *
    (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.

    25. Amend Sec. 4.4 by revising paragraph (a)(3), by revising the 
first and second sentences of paragraph (b) and by revising paragraph 
(c) to read as follows:


Sec. 4.4  Service.

    (a) * * *
    (3) All documents served in adjudicative proceedings under the 
Commissions' 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 the personal 
delivery or the day of mailing.
* * * * *
    (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, that 
Assistant Director in the Bureau of Competition, the Associate Director 
in the Bureau of Consumer Protection, or the Director of the Regional 
Office of compliant 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. * * *
    (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.

    26. Amend Sec. 4.9 by redesignating current paragraphs 
(b)(10)(xiii) and (b)(10)(xiv) as paragraph (b)(10)(xiv) and 
(b)(10)(xv) and adding a new paragraph (b)(10)(xiii) to read as 
follows:


Sec. 4.9  The Public Record.

* * * * *
    (b) Categories * * *
    (10) Miscellaneous * * *
    (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;
* * * * *

    27. Amend Sec. 4.10 by revising paragraph (g)(1) to read as 
follows:


Sec. 4.10  Nonpublic material.

* * * * *
    (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
* * * * *

    Dated: Approved by the Commission on March 27, 2001.

    By direction of the Commission.
Donald S. Clark,
Secretary.
[FR Doc. 01-8045 Filed 4-2-01; 8:45 am]
BILLING CODE 6750-01-M