[Federal Register Volume 80, Number 55 (Monday, March 23, 2015)]
[Rules and Regulations]
[Pages 15157-15163]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-06406]
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FEDERAL TRADE COMMISSION
16 CFR Parts 2, 3, and 4
Revisions to Rules of Practice
AGENCY: Federal Trade Commission.
ACTION: Final rules.
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SUMMARY: The Commission is revising certain of its rules of practice to
promote fairness, flexibility and efficiency in its investigations,
studies, and adjudicative proceedings. These rule revisions include a
revision to the rule governing the status of cases in administrative
adjudication following a district court's denial of preliminary
injunctive relief in an ancillary proceeding. Other changes include
revisions to the list of Commission officials who have authority to
modify the terms and timeframe for compliance with compulsory process,
and a change to the deadline for the Commission to dispose of petitions
to limit or quash compulsory process. In addition, the Commission is
updating its procedures for accessing public records and list of exempt
Privacy Act systems.
DATES: These rule revisions are effective on March 23, 2015.
FOR FURTHER INFORMATION CONTACT: Josephine Liu, Attorney, (202) 326-
2170, Office of the General Counsel, Federal Trade Commission, 600
Pennsylvania Avenue NW., Washington, DC 20580. For information about
the revisions to 16 CFR part 4, contact G. Richard Gold, Attorney,
(202) 326-3355, Office of the General Counsel, Federal Trade
Commission, 600 Pennsylvania Avenue NW., Washington, DC 20580.
SUPPLEMENTARY INFORMATION: The Federal Trade Commission is revising
certain rules in parts 2 and 3 of its rules of practice that govern
investigations and adjudicative proceedings, and is revising other
rules in part 4 of its rules of practice.
The Commission is amending Rules 2.7 and 2.10 to provide the Office
of Policy Planning (``OPP'') Director and Deputy Directors with the
authority to modify the terms of compliance with compulsory process,
alter the meet-and-confer prerequisite, and extend the deadline for
filing a petition to limit or quash compulsory process. This change
reflects OPP's role in frequently conducting and leading studies under
section 6(b) of the FTC Act. The Commission is also revising Rule
2.10(c) to impose a 40-day deadline for disposing of petitions to limit
or quash compulsory process.
In part 3 of its Rules, the Commission is amending Rule 3.26 to
make clear that administrative litigation will be suspended if
respondents file a qualifying motion for withdrawal or dismissal after
a district court denies preliminary injunctive relief in an ancillary
proceeding brought under section 13(b) of the FTC Act. As discussed
below, the Commission will continue to follow the 1995 Policy Statement
Regarding Administrative Merger Litigation Following the Denial of a
Preliminary Injunction \1\ and consider the specific circumstances of
each case when deciding whether to pursue administrative litigation. In
addition, the Commission is revising the Part 3 rules to correct
typographical errors, ensure consistency between sections, clarify
paragraph headings, and make other technical changes.
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\1\ Administrative Litigation Following the Denial of a
Preliminary Injunction: Policy Statement, 60 FR 39741 (Aug. 3,
1995).
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In part 4 of its Rules, the Commission is revising the procedures
and contact information for accessing public records in Rule 4.9,
making a technical correction to Rule 4.11, and updating the names of
exempt Privacy Act systems in Rule 4.13.
Because these rule revisions relate solely to agency procedure and
practice, publication for notice and comment is not required under the
Administrative Procedure Act. 5 U.S.C. 553(b).\2\ These rule revisions
are effective on March 23, 2015.
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\2\ For this reason, the requirements of the Regulatory
Flexibility Act are also inapplicable. 5 U.S.C. 601(2), 604(a).
Likewise, the amendments do not modify any FTC collections of
information within the meaning of the Paperwork Reduction Act, 44
U.S.C. 3501 et seq.
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I. Revisions to Rules of Practice for Nonadjudicative Investigations
(Part 2)
In 2012, the Commission undertook an extensive revision of its
rules governing the conduct of its investigations.\3\ The Commission is
now revising certain of those rules to promote fairness, flexibility,
and efficiency in FTC investigations, which includes studies conducted
under section 6(b) of the FTC Act.
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\3\ See Rules of Practice, 77 FR 59294 (2012).
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Rules 2.7(l) and 2.10(a)(5): Officials With Authority To Modify
Compulsory Process and Extend the Deadline for Petitions To Quash
The Commission is revising Rules 2.7(l) and 2.10(a)(5) to reflect
the fact that the FTC's Office of Policy Planning frequently conducts
and leads section 6(b) studies. The Commission is amending Rule 2.7(l)
to include the Office of Policy Planning Director and Deputy Directors
among the identified Commission officials authorized to modify the
terms of compliance with orders to file special reports under section
6(b) of the FTC Act and other forms of compulsory process. Commission
rules provide that the officials designated in Rule 2.7(l) also have
the power to modify the manner and form of production of electronically
stored information (in Rule 2.7(j)), and alter the meet-and-confer
prerequisite for filing a petition to limit or quash compulsory process
(in Rule 2.7(k)). Consistent with these amendments, the Commission is
also revising Rule 2.10(a)(5) to state that the Office of Policy
Planning Director and Deputy Directors are authorized to extend the
deadline for filing a petition to limit or quash. The revised rules
will better reflect Commission practice and provide further flexibility
and efficiency for 6(b) studies and other investigations.
Rule 2.10(c): Disposition of Petitions To Limit or Quash Compulsory
Process
The Commission revised Rule 2.10 in 2012 to eliminate the two-step
procedure for rulings on petitions to limit or quash compulsory process
by requiring the full Commission to rule on the petition in the first
instance. The rule also imposed a 30-day deadline for disposition of
the petition. The Commission received no comments regarding this
provision, and adopted it as proposed, noting that if the Commission
did not meet the deadline, the petition would not be automatically
granted or denied.\4\ To enable sufficient time for full Commission
review of the merits of the petition, the Commission
[[Page 15158]]
is revising Rule 2.10(c) to impose a 40-day deadline. The extra 10 days
for Commission review do not pose a substantial hardship to recipients
of compulsory process because Rule 2.10(b) continues to provide that
the timely filing of a petition to limit or quash stays the remaining
amount of time permitted for compliance.
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\4\ 77 FR 59300.
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II. Revisions to Rules of Practice for Adjudicative Proceedings (Part
3)
Rule 3.26
Rule 3.26 sets out two procedures that facilitate Commission
consideration of whether to pursue administrative merger litigation
following judicial denial of preliminary injunctive relief in an
ancillary proceeding brought under section 13(b) of the Federal Trade
Commission Act, 15 U.S.C. 53(b).\5\ As explained further below, the
rule allows respondents to file a motion to withdraw the administrative
case from adjudication or a motion to dismiss the administrative
complaint. Such motions can only be filed within a certain time after
the district court has denied the preliminary injunction or after the
court of appeals has denied the Commission's motion for relief pending
appeal.
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\5\ Although Rule 3.26 applies to any type of administrative
litigation where the Commission has sought a preliminary injunction,
the Commission typically seeks such relief during a challenge to an
unconsummated merger, acquisition, joint venture or similar
transaction.
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In revising Rule 3.26, the Commission is also making clear it will
continue to consider the specific circumstances of each case when
deciding whether to proceed with administrative litigation, as outlined
in a 1995 Policy Statement \6\ issued in conjunction with the original
version of the rule.\7\ As discussed below, the revisions ensure that,
if respondents file either type of motion in accordance with the rule,
the administrative litigation will be suspended unless and until the
Commission rules that maintenance of the litigation would serve the
public interest. These revisions follow the approach of the original
version of the rule.
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\6\ Statement of Federal Trade Commission Policy Regarding
Administrative Merger Litigation Following the Denial of a
Preliminary Injunction, supra note 1, at 39743. The Commission
indicated in 1995 that the principles of the Policy Statement would
apply also in the context of consumer protection litigation and non-
merger competition litigation.
\7\ Administrative Litigation Following the Denial of a
Preliminary Injunction, 60 FR 39640 (Aug. 3, 1995).
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Rule 3.26, as first issued in 1995, provided that a motion for
withdrawal would generally result in an automatic withdrawal and that a
motion for dismissal would result in an automatic stay. The procedure
for a withdrawal enabled ex parte communications (otherwise prohibited
by Rule 4.7) while the matter was withdrawn from Part 3 administrative
adjudication. During this period, complaint counsel and respondents
(and third parties) could communicate informally with Commissioners to
discuss the matter without the constraints of the adjudicative rules.
In addition, because such communications would not be on the record of
the administrative proceeding, counsel could discuss the case without
concern that their statements might compromise their litigation
position if the case were returned to adjudication.
The alternative procedure in the 1995 Rule provided for an
automatic stay of the adjudication if a respondent filed a motion to
dismiss the administrative complaint and to brief the matter on the
public record. The ex parte restrictions remained in place.
Because of the long delays that often resulted from the filing of
motions under the 1995 Rule, the Commission revised the rule in
2009.\8\ The 2009 rule continued to allow respondents to file either
type of motion but no longer provided that such a motion would result
in an automatic withdrawal or an automatic stay. Although it was
revising the 1995 rule, the Commission indicated, however, that it
would continue to adhere to the case-by-case approach articulated in
the 1995 Policy Statement in determining whether to continue with
administrative litigation challenging a merger after a district court
had denied preliminary injunctive relief. In addition, the Commission
authorized motions under Rule 3.26 to be filed at an earlier time
following the district court's denial of preliminary injunctive relief
and required the Commission to dispose of such motions within 30 days.
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\8\ Rules of Practice, 74 FR 1804, 1811-12 (Jan. 13, 2009).
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Since 2009, the Commission has continued to be guided by the 1995
Policy Statement when determining whether to proceed with
administrative litigation. For example, in Laboratory Corporation of
America, the district court denied the Commission's request for
preliminary injunctive relief, the respondents then moved to withdraw
the matter from administrative adjudication, and the Commission granted
the respondents' motion for withdrawal six days after it was filed.\9\
Less than a month later, after carefully considering the factors
outlined in the Policy Statement, the Commission voted unanimously to
end the administrative litigation.\10\ The Policy Statement will
continue to guide the Commission in the future.
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\9\ See Order Withdrawing Matter from Adjudication Pursuant to
Rule 3.26(c) of the Commission Rules of Practice, In re Lab. Corp.
of Am., Docket No. 9345, https://www.ftc.gov/sites/default/files/documents/cases/2011/03/110324labcorpcommorder.pdf (Mar. 23, 2011).
In Phoebe Putney, the other merger matter since the 2009 rule change
in which the Commission lost a motion for preliminary injunction,
the respondents did not invoke Rule 3.26. Rather, the Commission
granted an unopposed motion to stay the Part 3 proceedings after the
Eleventh Circuit granted an injunction pending appeal; and the
Commission subsequently lifted its stay after prevailing in the
Supreme Court. See Order Granting Respondents' Unopposed Motion to
Stay Proceeding, In re Phoebe Putney Health Sys., Inc., Docket No.
9348, https://www.ftc.gov/system/files/documents/cases/130222ccnoa_0.pdf (July 15, 2011); Order Granting Complaint
Counsel's Motion to Lift Stay, In re Phoebe Putney Health Sys.,
Inc., Docket No. 9348, https://www.ftc.gov/sites/default/files/documents/cases/2013/03/130314phoebeordermotion.pdf (Mar. 14, 2013).
\10\ See Statement of Commissioners Leibowitz, Kovacic, and
Ramirez, In re Lab. Corp. of Am., Docket No. 9345, http://www.ftc.gov/system/files/documents/public_statements/568671/110422labcorpcommstmt.pdf (Apr. 21, 2011); Concurring Statement of
Commissioner Brill, In re Lab. Corp. of Am., Docket No. 9345, http://www.ftc.gov/system/files/documents/public_statements/568681/110422labcorpstmtbrill.pdf (Apr. 21, 2011).
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The Commission has now decided to return to the automatic
mechanisms in the 1995 rule. The new rule now provides for an automatic
withdrawal or automatic stay, depending on the type of motion filed.
Because the Commission is retaining the deadlines in the 2009 rule for
the filing of motions and specifying deadlines for Commission
determinations of the motions, an automatic withdrawal or stay is not
likely to disrupt the resolution of the matter.
First, respondents may move to have the administrative case
withdrawn from adjudication. The Commission is retaining the provision
in the 2009 rule that motions for withdrawal can be filed jointly or
separately, so long as all of the respondents agree to seek withdrawal.
The administrative case will automatically be withdrawn two days after
the motion is filed, unless complaint counsel files an objection
asserting that the procedural requirements have not been satisfied,\11\
in which case the Commission will
[[Page 15159]]
decide whether to withdraw the case from adjudication.
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\11\ As the Commission noted in 1995, the procedural
requirements might not be satisfied if the Rule 3.26 motion is filed
untimely, or if there is a question as to whether a particular court
order constitutes a denial of preliminary injunctive relief. 60 FR
39640 n.3. Rule 3.26 is intended for situations where the court
refuses to grant the Commission any form of preliminary relief. If,
for example, the court denies the Commission's request for a
preliminary injunction halting a proposed merger but nonetheless
imposes a ``hold separate'' order, Rule 3.26 would not be available.
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Second, any respondent may file a motion for dismissal that will be
briefed on the public record. The administrative case will
automatically be stayed until 7 days after the Commission rules on the
motion for dismissal, and all deadlines established by the rules will
be tolled for the amount of time the proceeding is stayed.
As noted above, the Commission is retaining the 2009 rule's timing
requirements for such motions but simplifying the wording in Rule
3.26(b). If the Commission does not file a motion with the court of
appeals for relief pending appeal within 7 days following the district
court's denial of a preliminary injunction, the Rule 3.26 motion must
be filed within 14 days after the denial of the preliminary injunction.
If the Commission files a motion with the court of appeals for relief
pending appeal, the Rule 3.26 motion must be filed within 14 days
after, but no earlier than, denial by the court of appeals of the
Commission's motion for relief pending appeal.
In addition, in order to expedite these proceedings, the Commission
is specifying deadlines for deciding motions under Rule 3.26. If
respondents file a motion for withdrawal under Rule 3.26(c) and
complaint counsel files an objection, the Commission must rule on the
motion within 10 days of the objection. If respondents file a motion
for dismissal under Rule 3.26(d), the Commission is retaining the
requirement of the current rule that the Commission decide such motions
within 30 days.
The Commission is retaining current Rule 3.26(e), which sets out
the requirements for memoranda filed in support of or in opposition to
these motions, and retaining with minor changes Rule 3.26(f), which
sets out the requirements for filings that contain in camera materials.
Finally, the Commission is making one other, minor modification to
the rule: the timeframe for complaint counsel to respond to motions for
dismissal has been shortened from 14 days to 7 days.
Technical Changes to Other Part 3 Rules
The Commission is making a number of non-substantive changes to the
part 3 rules to correct typographical errors, ensure consistency in the
terminology and the requirements in different sections of the rules,
clarify paragraph headings, and delete or restore material that was
inadvertently retained or deleted when the Commission last amended the
rules in 2011.
Rule 3.22(a) is being amended to clarify that Rule 3.22(a) does not
govern the presentation and timing requirements for motions under Rule
3.26. Similarly, Rule 3.22(b) is being revised to reflect the fact
that, under the Commission's rules, the filing of certain motions
automatically stays the proceedings. In particular, motions under Rule
3.26(d) as revised by this notice and some motions under existing Rule
3.25(c) will result in automatic stays. For the same reasons, the
Commission is amending Rule 3.41(f) by adding a cross-reference to Rule
3.26, to make clear that Rule 3.41(f) does not govern in situations
where Rule 3.26 applies.
Rule 3.23(b) is being amended to clarify that a party opposing
interlocutory review may file an answer to both (1) the initial request
for determination that is filed with the ALJ, and (2) the subsequent
application for review that is filed with the Commission. Existing Rule
3.23(b) could create confusion about whether the first type of answer
is permitted, because the rule does not expressly authorize answers to
initial requests but nonetheless mentions the deadline for filing such
answers.
The general discovery provisions were previously amended in 2009 to
prohibit filing discovery materials with the Secretary, except in
certain circumstances. See 16 CFR 3.31(h). To ensure consistency with
the 2009 amendment, the Commission is now (1) eliminating the
requirement in Rule 3.32(a) and (b) that requests for admissions and
responses thereto be filed with the Secretary, and (2) revising the
paragraph heading for Rule 3.33(c)(2) and clarifying the text of that
paragraph. The Commission is also eliminating redundant text for two
numbers mentioned in Rule 3.32(a) and (b), as well as correcting a
typographical error in the last sentence of Rule 3.32(b).
To maintain consistency in how the terms ``prehearing'' and
``subpoenas'' are used throughout the part 3 rules, the Commission is
revising Rules 3.35(b)(2) and 3.42(c)(2).
The Commission is revising Rule 3.45(e) to reflect the fact that
the parties who submit documents containing in camera or confidential
information must comply with all of the Commission's rules governing
the filing and service of documents--including those located in 16 CFR
part 4--not just with the Commission's part 3 rules. In addition, Rule
3.45(f) is being revised to delete two sentences that were
inadvertently not deleted when the Commission amended the rule in 2011.
Similarly, Rule 3.52(a)(2) is being revised to restore a clause that
was inadvertently deleted after the 2011 amendments.
In Rule 3.46(c)(4), an erroneous reference to the public or
nonpublic status of each ``exhibit'' in the witness index is being
replaced with ``witness testimony.''
III. Revisions to Miscellaneous Rules (Part 4)
Rule 4.9: The Public Record
The Commission's public record regulation, 16 CFR 4.9, sets out
procedures and contact information for accessing public record
materials. The Commission is amending Rule 4.9(a)(1), (2), (3), (4),
and 10(viii), 16 CFR 4.9(a)(1), (2), (3), (4), and (10)(viii), to
reflect updates to these procedures and contact information. The
revised rule states that these materials are available either
electronically at the FTC's Web site, www.ftc.gov, or for older
materials not on the Web site, through telephonic requests with the
FTC's Reading Room at (202) 326-2222, extension 2.
Under the prior policy, the FTC's Consumer Response Center (CRC)
maintained an in-person physical reading room at the Headquarters
building, where members of the public could inspect records and file
public record requests. Once requests were received, the CRC worked
with the Commission's Records and Filings Office, which researched
public record requests, retrieved documents from storage, and provided
them to CRC staff and authorized contractors to distribute to the
requestors to review and make copies in the physical reading room.
The CRC no longer maintains a physical reading room. To obtain a
copy of any public records not available on the agency's Web site,
members of the public can call the Reading Room, which is now staffed
by the FTC's Library.
Rule 4.11: Disclosure Requests
The Commission is amending Rule 4.11(a)(1)(i)(F) to conform with
recent changes made to Rule 4.8(d)(3), which granted Freedom of
Information Act requesters twenty calendar days to respond to
Commission notification when there was no fee agreement for processing
a request and the estimated costs exceed $25.\12\
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\12\ See 79 FR 15680, 15685 (Mar. 21, 2014). The Commission is
also amending Rule 4.11(a)(1)(i)(A) to make a minor grammatical
change.
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Rule 4.13: Privacy Act Rules
The Commission is making technical corrections and updates to its
Privacy Act rules at 16 CFR 4.13(m). Paragraph
[[Page 15160]]
(m) sets out systems of records that are exempt from certain Privacy
Act provisions. The exempt systems contain:
(1) Investigatory materials maintained by an agency component in
connection with any activity relating to criminal law enforcement,
exempt under subsection (j)(2) of the Privacy Act (see paragraph (m)(1)
of the rules);
(2) investigatory materials compiled for law enforcement purposes,
exempt under subsection (k)(2) of the Privacy Act (see paragraph (m)(2)
of the rules); or
(3) 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, exempt under subsection (k)(5) of
the Privacy Act (see paragraph (m)(3) of the rules).
These Privacy Act systems are exempted from certain Privacy Act
restrictions and procedural requirements (e.g., access by the subject
individual) due to the investigatory nature of the records contained in
those systems. As permitted by the Privacy Act, these exemptions help
ensure that the Commission may efficiently and effectively perform
investigations and other authorized duties and activities. In this
case, the Commission is updating the names and numbering of the exempt
Privacy Act systems to conform them to the current system names in the
system of records notices (SORNs) previously published for these exempt
systems by the FTC.\13\ The revised rule also lists certain FTC
personnel-related Privacy Act systems that are exempt under Government-
wide SORNs published by the Office of Personnel Management and
Department of Labor but were inadvertently omitted from the list of
exempt systems in the FTC's Privacy Act rule.\14\ These amendments to
the agency's Privacy Act rules are purely technical and are not
intended to expand or modify the substantive coverage or applicability
of the Privacy Act exemptions to the FTC's Privacy Act systems or the
records they contain.
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\13\ The current SORNs for all 40 FTC Privacy Act systems of
records are posted on the FTC public Web site, at http://www.ftc.gov/about-ftc/foia/foia-reading-rooms/privacy-act-systems.
\14\ These systems are II-3--Worker's Compensation--FTC, II-4--
Employment Application-Related Records--FTC, and II-6--
Discrimination Complaint System--FTC.
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List of Subjects
16 CFR Parts 2 and 3
Administrative practice and procedure.
16 CFR Part 4
Administrative practice and procedure, Freedom of information,
Public record.
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
0
1. The authority citation for part 2 continues to read as follows:
Authority: 15 U.S.C. 46, unless otherwise noted.
0
2. Amend Sec. 2.7 by revising paragraph (l) to read as follows:
Sec. 2.7 Compulsory process in investigations.
* * * * *
(l) Delegations. The Directors of the Bureaus of Competition,
Consumer Protection, and Economics and the Office of Policy Planning,
their Deputy Directors, the Assistant Directors of the Bureaus of
Competition and Economics, the Associate Directors of the Bureau of
Consumer Protection, the Regional Directors, and the Assistant Regional
Directors are all authorized to modify and, in writing, approve the
terms of compliance with all compulsory process, including subpoenas,
CIDs, reporting programs, orders requiring reports, answers to
questions, and orders requiring access. If a recipient of compulsory
process has demonstrated satisfactory progress toward compliance, a
Commission official identified in this paragraph may, at his or her
discretion, extend the time for compliance with Commission compulsory
process. The subpoena power conferred by section 329 of the Energy
Policy and Conservation Act (42 U.S.C. 6299) and section 5 of the Webb-
Pomerene (Export Trade) Act (15 U.S.C. 65) are specifically included
within this delegation of authority.
0
3. Amend Sec. 2.10 by revising paragraphs (a)(5) and (c) to read as
follows:
Sec. 2.10 Petitions to limit or quash Commission compulsory process.
(a) * * *
(5) Extensions of time. The Directors of the Bureaus of
Competition, Consumer Protection, and Economics and the Office of
Policy Planning, their Deputy Directors, the Assistant Directors of the
Bureaus of Competition and Economics, the Associate Directors of the
Bureau of Consumer Protection, the Regional Directors, and the
Assistant Regional Directors are delegated, without power of
redelegation, the authority to rule upon requests for extensions of
time within which to file petitions to limit or quash Commission
compulsory process.
* * * * *
(c) Disposition and review. The Commission will issue an order
ruling on a petition to limit or quash within 40 days after the
petition is filed with the Secretary. The order may be served on the
petitioner via email, facsimile, or any other method reasonably
calculated to provide notice to the petitioner of the order.
* * * * *
PART 3--RULES OF PRACTICE FOR ADJUDICATIVE PROCEEDINGS
0
4. The authority citation for part 3 continues to read as follows:
Authority: 15 U.S.C. 46, unless otherwise noted.
0
5. Amend Sec. 3.22 by revising the first three sentences of paragraph
(a) and paragraph (b) to read as follows:
Sec. 3.22 Motions.
(a) Presentation and disposition. Motions filed under Sec. 4.17 of
this chapter shall be directly referred to and ruled on by the
Commission. Motions to dismiss filed before the evidentiary hearing
(other than motions to dismiss under Sec. 3.26(d)), 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. Except as otherwise provided by an applicable rule, 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. * * *
(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 or unless otherwise provided by
an applicable rule.
* * * * *
0
6. Amend Sec. 3.23 by revising paragraph (b) to read as follows:
[[Page 15161]]
Sec. 3.23 Interlocutory appeals.
* * * * *
(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 request for determination 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. An answer may be filed within 3 days after the application
for review is filed.
* * * * *
0
7. Revise Sec. 3.26 to read as follows:
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 adjudicative proceeding.
(b) A motion under this section shall be addressed to the
Commission and must be filed within 14 days after, but no earlier than:
(1) A district court has denied the Commission's request for a
preliminary injunction, if the Commission has not filed a motion for
relief pending appeal with the court of appeals within 7 days following
the district court's denial of a preliminary injunction; or
(2) A court of appeals has denied a Commission motion for relief
pending appeal.
(c) Withdrawal from adjudication. Following denial of court relief
as specified in paragraph (b) of this section, respondents may move
that the adjudicative proceeding be withdrawn from adjudication in
order to consider whether the public interest warrants further
litigation. Although all respondents must consent to the filing of such
a motion, a motion under this paragraph (c) may be filed jointly or
separately by each of the respondents in the adjudicative proceeding.
At the time respondents file a motion under this paragraph (c),
respondents must also electronically transmit a copy to complaint
counsel. The Secretary shall issue an order withdrawing the matter from
adjudication 2 days after such a motion is filed, except that, if
complaint counsel file an objection asserting that the conditions of
paragraph (b) of this section have not been met, the Commission shall
decide the motion within 10 days after the objection is filed.
(d) Consideration on the record of a motion to dismiss. (1) In lieu
of a motion to withdraw the adjudicative proceeding from adjudication
under paragraph (c) of this section, any respondent 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.
(2) Stay. The filing of a motion under this paragraph (d) shall
stay the proceeding until 7 days following the disposition of the
motion by the Commission, and all deadlines established by these rules
shall be tolled for the amount of time the proceeding is so stayed.
(3) Answer. Complaint counsel may file a response within 7 days
after such motion is filed.
(4) Ruling by Commission. Within 30 days after the deadline for
filing a response, the Commission shall rule on any motion under this
paragraph (d).
(e) Form. Memoranda in support of or in opposition to motions
authorized by this section 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 the adjudicative
proceeding, 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 objection or
response under this section will begin to run upon service of the in
camera version of the motion (including any supporting briefs and
memoranda).
0
8. Amend Sec. 3.32 by revising paragraphs (a) and (b) to read as
follows:
Sec. 3.32 Admissions.
(a) At any time after 30 days after issuance of a 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.
(b) The matter is admitted unless, within 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 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 forth
reasons why the party cannot admit or deny it.
* * * * *
[[Page 15162]]
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9. Amend Sec. 3.33 by revising paragraph (c)(2) to read as follows:
Sec. 3.33 Depositions.
* * * * *
(c) * * *
(2) Restriction on filings. Except as provided in Sec. 3.31(h),
notices of depositions shall not be filed with the Office of the
Secretary or with the Administrative Law Judge, or otherwise provided
to the Commission.
* * * * *
0
10. Amend Sec. 3.35 by revising paragraph (b)(2) to read as follows:
Sec. 3.35 Interrogatories to parties.
* * * * *
(b) * * *
(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 prehearing conference.
* * * * *
0
11. Amend Sec. 3.41 by revising paragraph (f) to read as follows:
Sec. 3.41 General hearing rules.
* * * * *
(f) Collateral federal court actions. (1) The pendency of a
collateral federal court action that relates to the administrative
adjudication shall not stay the proceeding:
(i) Unless a court of competent jurisdiction, or the Commission for
good cause, so directs; or
(ii) Except as provided in Sec. 3.26.
(2) A stay shall toll any deadlines set by the rules.
0
12. Amend Sec. 3.42 by revising paragraph (c)(2) to read as follows:
Sec. 3.42 Presiding officials.
* * * * *
(c) * * *
(2) To issue subpoenas and orders requiring answers to questions;
* * * * *
0
13. Amend Sec. 3.45 by revising the first two sentences of paragraph
(e) and paragraph (f) to read as follows:
Sec. 3.45 In camera orders.
* * * * *
(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 paragraph (b) of
this section 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 party on the other parties in accordance with the
Commission's rules. * * *
(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
paragraph (b) of this section 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.
* * * * *
0
14. Amend Sec. 3.46 by revising paragraph (c)(4) to read as follows:
Sec. 3.46 Proposed findings, conclusions, and order.
* * * * *
(c) * * *
(4) A statement whether the witness testimony has been accorded in
camera treatment, and a citation to the in camera ruling.
* * * * *
0
15. Amend Sec. 3.52 by revising paragraph (a)(2) to read as follows:
Sec. 3.52 Appeal from initial decision.
(a) * * *
(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, and will issue its
final decision pursuant to Sec. 3.54 within 45 days after oral
argument. If no oral argument is scheduled, the Commission will issue
its final decision pursuant to Sec. 3.54 within 45 days after the
deadline for the filing of objections.
* * * * *
PART 4--MISCELLANEOUS RULES
0
16. The authority citation for part 4 continues to read as follows:
Authority: 15 U.S.C. 46, unless otherwise noted.
0
17. Amend Sec. 4.9 by revising paragraphs (a)(1), (2), (3), (4)
introductory text, (4)(i) and (a)(10)(viii) to read as follows:
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 from the
Commission's Web site 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 only upon request under the procedures set forth in
Sec. 4.11, or as provided in Sec. Sec. 4.10(d) through (g), 4.13, and
4.15(b)(3), or by the Commission.
(3) Electronic access to public records. The majority of recent
Commission public records are available for review electronically on
the Commission's Web site on the Internet, www.ftc.gov. 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 http://www.ftc.gov/foia/readingroom.shtm.
(4) Requesting public records--(i) Procedures. Certain older public
records may not be available at the FTC Web site. Any person may
request copies of such records by contacting the FTC Reading Room by
telephone at (202) 326-2222, extension 2. These requests 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. The
Commission, the Supervisor of the Consumer Response Center, the General
Counsel, or the deciding official (as designated by the General
Counsel) may decide to provide only one copy of any public record and
may refuse to provide copies to the requester if the records have been
published or are publicly available at places other than the
Commission's offices.
* * * * *
(10) * * *
(viii) The Commission's annual report submitted after the end of
each fiscal year, summarizing its work during the year (with copies
obtainable from the Superintendent of Documents, U.S.
[[Page 15163]]
Government Publishing Office, Washington, DC 20402) and any other
annual reports made to Congress on activities of the Commission as
required by law;
* * * * *
0
18. Amend Sec. 4.11 by revising paragraphs (a)(1)(i)(A) and (F) to
read as follows:
Sec. 4.11 Disclosure requests.
(a) Freedom of Information Act--(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 transmitted by one of the
following means: by mail to the following address: Freedom of
Information Act Request, Office of the General Counsel, Federal Trade
Commission, 600 Pennsylvania Avenue NW., Washington, DC 20580; by
facsimile transmission to (202) 326-2477; by email message to the FOIA
email account at [email protected]; or by the form located on the FTC's FOIA
Web site, https://www.ftc.gov/ftc/foia.htm.
* * * * *
(F) 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 Sec. 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 within 20 calendar days and is not
granted a fee waiver, the request will be denied.
* * * * *
0
19. Amend Sec. 4.13 by revising paragraph (m) to read as follows:
Sec. 4.13 Privacy Act rules.
* * * * *
(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):
(i) I-7--Office of Inspector General Investigative Files--FTC.
(ii) [Reserved]
(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):
(i) I-1--Nonpublic Investigational and Other Nonpublic Legal
Program Records--FTC.
(ii) I-2--Disciplinary Action Investigatory Files--FTC.
(iii) I-4--Clearance Application and Response Files--FTC.
(iv) I-5--Matter Management System--FTC.
(v) I-7--Office of Inspector General Investigative Files--FTC.
(vi) I-8--Stenographic Reporting Services Request System--FTC.
(vii) II-3--Worker's Compensation--FTC.
(viii) II-6--Discrimination Complaint System--FTC.
(ix) IV-1--Consumer Information System--FTC.
(x) V-1--Freedom of Information Act Requests and Appeals--FTC.
(xi) V-2--Privacy Act Requests and Appeals--FTC.
(xii) VII-6--Document Management and Retrieval 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):
(i) II-4--Employment Application-Related Records--FTC.
(ii) II-11--Personnel Security, Identity Management and Access
Control Records System--FTC.
By direction of the Commission.
Janice Podoll Frankle,
Acting Secretary.
[FR Doc. 2015-06406 Filed 3-20-15; 8:45 am]
BILLING CODE 6750-01-P