[Federal Register Volume 81, Number 71 (Wednesday, April 13, 2016)]
[Proposed Rules]
[Pages 21775-21795]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-08125]
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CONSUMER PRODUCT SAFETY COMMISSION
16 CFR Part 1025
[CPSC Docket No. 2016-0006]
Rules of Practice for Adjudicative Proceedings
AGENCY: Consumer Product Safety Commission.
ACTION: Notice of proposed rulemaking.
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SUMMARY: The United States Consumer Product Safety Commission
(``Commission,'' ``CPSC,'' or ``we'') is issuing this notice of
proposed rulemaking (``NPR'') to update the Commission's Rules of
Practice for Adjudicative Proceedings, (``Rules of Practice'' or
``Rules''). We are proposing to modernize the Rules of Practice to
reflect changes in civil and administrative litigation since adoption
of the Rules in 1980. Specifically, we propose changes to the Rules
pertaining to discovery, electronic filing, the use of electronically
stored information (``ESI''), and updates to the Federal Rules of Civil
Procedure (``Federal Rules''), upon which our Rules are based. We also
propose to update requirements for pleadings, motions, and motions for
summary decisions, clarifications on the computation of time, and
clarification on when amendments or supplemental pleadings require
Commission approval. Additionally, we propose allowing a Presiding
Officer to exercise discretion to avoid unnecessary delay or wasteful
discovery and to consolidate cases in their entirety, or partially, for
any purpose that serves the ends of justice. We also propose to set
deadlines for the issuance of an Initial or Recommended Decision.
Finally, we propose to remove outdated references to the Equal Access
to Justice Act. We believe the proposed Rules will increase the
efficiency of discovery, minimize the potential for delay in
adjudicative proceedings, and ensure that, to the extent possible,
Commission adjudicative proceedings address and resolve crucial issues
of consumer product safety in a fair and impartial manner. This NPR
seeks comments on the proposed changes to the Rules.
DATES: Submit comments by June 13, 2016.
ADDRESSES: You may submit comments, identified by Docket No. CPSC 2016-
0006, electronically or in writing, by any of the following methods:
Electronic Submissions: Submit electronic comments to the Federal
eRulemaking Portal at: http://
[[Page 21776]]
www.regulations.gov. Follow the instructions for submitting comments.
The Commission does not accept comments submitted by electronic mail
(email), except through www.regulations.gov. The Commission encourages
you to submit electronic comments through the Federal eRulemaking
Portal.
Written Submissions: Submit written submissions by mail/hand
delivery/courier to: Office of the Secretariat, Consumer Product Safety
Commission, Room 820, 4330 East West Highway, Bethesda, MD 20814;
telephone (301) 504-7923.
Instructions: All submissions received must include the agency name
and docket number for this proposed rulemaking. All comments received
may be posted without change, including any personal identifiers,
contact information, or other personal information provided, to: http://www.regulations.gov. Do not submit confidential business information,
trade secret information, or other sensitive or protected information
that you do not want to be available to the public. If furnished at
all, such information should be submitted in writing.
Docket: For access to the docket to read background documents or
comments received, go to: http://www.regulations.gov, and insert the
docket number CPSC-2016-0006, into the ``Search'' box, and follow the
prompts.
FOR FURTHER INFORMATION CONTACT: Mary B. Murphy, Assistant General
Counsel, U.S. Consumer Product Safety Commission, 4330 E. West Highway,
Bethesda, MD 20814-4408; email: [email protected] telephone: (301) 504-
7809.
SUPPLEMENTARY INFORMATION: The Commission is proposing to amend the
agency's Rules of Practice for Adjudicative Proceedings. 16 CFR part
1025. The proposed rule reflects changes in civil and administrative
litigation since adoption of the Rules in 1980.
Table of Contents
I. Background and Statutory Authority
II. Reasons for Revision of the Rules
III. Section-by-Section Analysis of the Proposed Revisions of the
Rules of Practice
IV. Environmental Issues
V. Regulatory Flexibility
VI. Paperwork Reduction
VII. Preemption
VIII. Effective Date
IX. Requests for Comments
I. Background and Statutory Authority
a. Commission Adjudicative Proceedings
The Consumer Product Safety Act (15 U.S.C. 2064(c), (d), (f);
2076(b)) (``CPSA''), the Federal Hazardous Substances Act (id. 1274)
(``FHSA''), the Flammable Fabrics Act (id. 1192, 1194, 1197(b))
(``FFA''), the Poison Prevention Packaging Act (id. 1473(c))
(``PPPA''), and the Virginia Graeme Baker Pool and Spa Act, (id. 8003)
(``VGBA'') authorize the Commission to initiate and conduct
adjudicative proceedings related to the safety of certain consumer
products, and, based on the Commission's findings, issue orders or take
other action to protect the public. Under the requirements of the cited
statutes, such adjudicative proceedings must be determined on an
administrative record after opportunity for a public hearing.
b. Procedural Rules Requirement
Under the Administrative Procedure Act (``APA'') (5 U.S.C. 500 et
seq.), adjudications mandated by statute to be determined on the record
after opportunity for a public hearing are subject to certain
procedural requirements. These requirements include notice of the time,
place and nature of the hearing, information about the legal authority
under which the hearing is to be held, and information on the matters
of fact and law asserted. (Id. 554(a)-(b)). The Commission adopted the
Rules of Practice to govern adjudicative hearings under its enabling
statutes and other administrative proceedings, as determined by the
Commission.
c. History of the Rules of Practice
The Rules of Practice were first proposed by the Commission in
1974, for use on an interim basis. (39 FR 26848, July 23, 1974). In
1977, the Commission revised the Rules of Practice, publishing them for
use on an interim basis and for public comment. (42 FR 31431 (interim
rules); 42 FR 36818 (issuing correction). In 1980, after considering
public comments and the Commission's experiences with the existing
interim rules, the Commission adopted the Rules of Practice. (45 FR
29215, May 1, 1980). The Commission last amended the Rules of Practice
in 1982 to make them applicable to hearings required by section 15 of
the FHSA (47 FR 46845, Oct. 21, 1982).
On May 12, 2015, the Commission voted to direct staff to present
for Commission consideration a revision of the Rules of Practice, with
the goal of streamlining future adjudications and aligning the Rules of
Practice with the Federal Rules of Civil Procedure.
II. Reasons for Proposed Revision of the Rules
a. Alignment With the Federal Rules of Civil Procedure
Since the 1980s, when the Commission last amended the Rules of
Practice, the Commission's model, the Federal Rules, have been
substantially revised. Among other things, these changes altered the
pretrial process, providing new discovery standards intended to
increase the speed and efficiency of litigation.
Prominent among these changes were detailed rules requiring parties
to cooperate in pre-discovery and pre-trial planning. For example, the
Federal Rules now require an affirmative pre-discovery disclosure by
each party of information, documents, ESI, and other evidence that the
party may use to support its claims or defenses. The Federal Rules also
require participation by parties in pre-discovery and pretrial
conferences, with the aim of focusing the issues to be adjudicated.
Along with these changes have come new limits on formal discovery
tools, including interrogatories, document requests, and depositions.
In addition to proposing that our Rules of Practice follow the scope of
discovery stated in Rule 26 of the Federal Rules, we are proposing to
follow, with certain changes, the Federal Rules' procedures on
mandatory disclosures of information and the Federal Rules' limits on
formal discovery tools, by adhering to the Federal Rules on
interrogatories, requests for documents and things, depositions, and
requests for admission. We believe that changing our Rules of Practice
to require affirmative pre-discovery disclosure, mandate participation
in pre-discovery and prehearing conferences, and impose limits on
wasteful discovery practices will streamline the adjudicative process,
and thereby, advance our goal of establishing expeditious and fair
proceedings.
Recent changes in the Federal Rules have also placed substantial
focus on the discretionary powers of Presiding Officers. Under these
rules, the judge or magistrate may limit or expand discovery, and on
motion, or on his or her own initiative, may tailor the pace of the
adjudication and the scope and length of discovery based on the issues
in each case. We are proposing to follow, with appropriate changes, the
Federal Rules' emphasis on empowering the Presiding Officer to use his
or her discretion to control the pace and
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progress of discovery. In our proposed Rules of Practice, the Presiding
Officer would be an active participant in the discovery process, with
powers to actively manage cases to avoid delays and forestall
inefficient or wasteful discovery.
The Federal Rules provide substantial guidance on the
discoverability and use of ESI because, increasingly, information is
stored in digital form. Our proposed Rules of Practice would largely
follow the Federal Rules' guidance on the discoverability of electronic
evidence.
b. Increasing the Efficiency of Adjudicative Proceedings
In addition to aligning our Rules of Practice with the Federal
Rules, the changes we propose would increase the efficiency and
decrease the burden of preparing for and litigating administrative
hearings. For example, we propose to update our Rules of Practice on
consolidating cases to allow the Presiding Officer to consolidate
cases, fully or partially, for discovery and/or for hearing, on a
party's motion, or at the Presiding Officer's discretion.
Additional proposed changes would adapt the Rules of Practice to
the general needs of administrative litigation, based on the
experiences of Commission staff in adjudicative proceedings. In each
case, we propose to emphasize the discretion of the Presiding Officer
to facilitate quick, fair, and efficient discovery and trial of
adjudicative matters. Although we would vest significant discretion in
the Presiding Officer, we would, nevertheless, seek to impose timelines
on the adjudicative proceeding and deadlines on the Presiding Officer,
requiring initial decisions to be made within set time frames.
c. Updating CPSC's Rules of Practice To Conform to Current
Administrative Practice
Another important reason for updating our Rules of Practice is to
clarify the process for amending complaints authorized by the
Commission. We propose to update our Rules of Practice to provide
clearer guidance on when amendments require Commission consideration.
We also propose to revise our Rules of Practice to permit
electronic filing and service of pleadings and documents and to
discourage filing of paper documents. Likewise, we propose to revise
the existing requirement that the Commission's Secretariat maintain an
official paper file, a practice that is cumbersome and fails to reflect
significant technological advancements. We also propose to revise our
Rules of Practice regarding service of process to accommodate
electronic service of most documents and pleadings and to recognize the
use of common carriers in the delivery of paper documents. Likewise, we
propose to clarify our Rules of Practice regarding motions for summary
decisions, amending that section to follow more closely the Federal
Rules.
III. Section-by-Section Analysis of the Proposed Revisions to the Rules
of Practice
Subpart A--Scope of Rules, Nature of Adjudicative Proceedings,
Definitions
Proposed Changes to Rule Sec. 1025.1 (Scope of Rules)
The proposal would revise Sec. 1025.1, Scope of rules, to clarify
that, in addition to adjudicative proceedings related to the CPSA, the
FHSA, and the FFA, the Commission also is empowered to conduct
adjudications under the PPPA and the VGBA. Specifically, our proposed
revision would clarify that the Commission may conduct adjudicative
proceedings under Section 4(c) of the PPPA and Section 1404 of the
VGBA. We propose to add appropriate references to these statutes and
make additional minor changes for clarity in our Rules of Practice.
In addition, the proposal would revise Sec. 1025.1 to remove the
existing statement that the Rules of Practice govern adjudicative
proceedings for the assessment of civil penalties under section 20(a)
of the CPSA. Pursuant to a statutory change, such actions are now
litigated in U.S. District Court, rather than before the Commission.
Therefore, the current language in our Rules of Practice is unnecessary
and inaccurate, as is a statement on the limited scope of discovery in
civil penalty cases, which we also propose to remove.
We also propose new language in Sec. 1025.1 to establish the
Commission's health and safety mission as a critical concern the
Presiding Officer must take into account when establishing deadlines
and managing cases. When a matter fails to proceed in a timely manner,
it not only results in increased costs and uncertainty for the parties
and participants, it can also undermine the agency's statutory
obligation to protect the public against unreasonable risks of injury
and death associated with consumer products. The Commission expects
that the Presiding Officer shall, whenever possible, and in in the
interest of protecting public health and safety, expedite proceedings
by setting shorter time limitations than the maximum limits imposed by
the rules, with the goal of issuing an Initial Decision within 1 year
from the date of the complaint.
As part of our goal of aligning the Rules of Practice with the
updated Federal Rules, we also propose to add a statement to Sec.
1025.1, indicating that, except where stated otherwise, parties shall
follow the Federal Rules on certain discovery matters. We believe that
following the Federal Rules on discovery matters would streamline the
discovery process, and thereby introduce increased efficiencies to
advance our goal of avoiding unnecessary delay. Through this change, we
would redefine the scope of discovery to encompass Rule 26 of the
Federal Rules, and would follow generally, with some stated exceptions
discussed below, the Federal Rules' procedures on pretrial discovery,
including interrogatories (Fed. R. Civ. P. 33); production of
documents, electronically stored information, and tangible things (Fed.
R. Civ. P. 34); requests for admission (Fed. R. Civ. P. 36); and
depositions (Fed. R. Civ. P. 30-32). We would not follow the Federal
Rules on subpoenas, which by statute, requires Commission approval. We
also propose additional minor and non-substantive changes to the Rules
of Practice for clarity.
Proposed Changes to Sec. 1025.3 (Definitions)
One of our goals in revising our Rules of Practice is to update the
Rules of Practice to reflect current litigation practices and advances
in technology. To recognize that ESI, i.e., information created,
manipulated, communicated, stored, and best utilized in digital form,
or requiring the use of computer software and hardware, has become a
significant part of civil discovery, we propose in new Sec. 1025.3(e)
to follow the definition of ESI in the Federal Rules. We believe this
definition would provide clarity and allow parties and participants to
be guided by the developing case law and scholarship on electronic
discovery.
We also propose several additional non-substantive changes,
including a new Sec. 1025.3(f) that would reference our rule on ex
parte communications. We further propose to add a new Sec. 1025.3(g)
to clarify that references to the Federal Rules throughout this
proposed rule refer to the Federal Rules of Civil Procedure. Because we
propose additional paragraphs, we would also re-designate the
paragraphs in this section to reflect these changes. Finally, we
propose a clarified definition of CPSC's ``Secretariat'' in current
Sec. 1025.3(n).
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Subpart B--Pleadings, Form, Execution, Service of Documents
Proposed Changes to Sec. 1025.11 (Commencement of Proceedings)
Section 1025.11 sets out requirements for the filing of a complaint
in an adjudicative proceeding. In Sec. 1025.11(a), we propose
revisions to reflect organizational changes within the Commission since
adoption of the current Rules of Practice. Complaint Counsel would be
authorized to sign a complaint following Commission approval, rather
than the Assistant Executive Director for Compliance and Enforcement,
as the current rule requires.
Currently, Sec. 1025.11(b)(3) requires that a complaint contain
``[a] list and summary of documentary evidence supporting the
charges.'' We propose eliminating this requirement given the mandatory
disclosures of evidence set forth in Federal Rule 26(a)(1)(A), which we
propose following as part of Sec. 1025.31, General provisions
governing discovery, discussed below.
We propose adding a new Sec. 1025.11(d) to clarify that a
Commission action to obtain a preliminary injunction from a federal
district court pursuant to 15 U.S.C. 2064(g) shall not serve as the
basis to stay proceedings under these rules. In light of the extensive
time frame for resolving matters in adjudicative proceedings, it is the
Commission's strong expectation that if the respondent fails to agree
to stop sale and distribution of a product which the Commission has
reason to believe presents a substantial product hazard, Commission
staff will, within a reasonable amount of time following the
commencement of proceedings under this part 1025, apply to a district
court of the United States for the issuance of a preliminary injunction
(pursuant to 15 U.S.C. 2064(g)) to restrain the distribution in
commerce of such product pending the completion the adjudicative
proceedings. For this reason, and in furtherance of its mission to
protect public health and safety, the Commission strongly urges the
Presiding Officer to, whenever practicable, shorten the time
limitations imposed by these rules and endeavor to issue an Initial
Decision as soon as possible.
We also propose several additional minor and non-substantive
changes in grammar throughout this paragraph.
Proposed Changes to Sec. 1025.13 (Amendments and Supplemental
Pleadings)
Section 1025.13, titled, Amendments and supplemental pleadings,
currently states that the Presiding Officer may allow appropriate
amendments and supplemental pleadings which do not unduly broaden the
issues in the proceedings or cause undue delay. When this section was
initially proposed in 1977, commenters expressed concern that granting
such broad discretion risked ``usurping the Commission's function'' to
serve as the sole source of administrative litigation seeking to compel
recall of consumer products. 45 FR 29 206-207 (May 1, 1980). At the
time, stating that the Rules ``provide adequate procedures for the
parties to argue their respective positions and an adequate framework
for the exercise of the broad discretion vested in the Presiding
Officer,'' the Commission concluded that, under Sec. 1025.13,
``neither the Presiding Officer nor the Commission staff is usurping
the Commission function.'' 45 FR 29208. We now believe it may be
helpful to provide additional clarity.
The Commission proposes to amend Sec. 1025.13 to require that the
Presiding Officer refer to the Commission any amendment that would (1)
have the effect of adding to or removing from the litigation any party
or count, (2) fall outside the scope of an authorized complaint, or (3)
broaden staff's authority under a complaint.
Proposed Changes to Sec. 1025.14 (Form and Filing of Documents)
As an initial matter, we are proposing to revise the title of this
section to Form and filing of pleadings and other documents to clarify
that the requirements of this section pertain to pleadings, as well as
other documents. In Sec. 1025.14(a), we propose that all pleadings and
documents shall be filed electronically with the Secretariat and the
Presiding Officer, unless the Presiding Officer orders otherwise. We
propose this change because the rule, as written, is outdated and does
not reflect current practice for filing pleadings and evidence
electronically, which has become the norm in most state and federal
courts. Moreover, the current rule requires the Office of the Secretary
to maintain the official file, in paper format, access to which is
limited by the operational hours of the Commission. Thus, our proposed
change would not only reflect current technological advances, but the
change also would expand public access to the official file. The
proposed rule would, however, allow the Presiding Officer discretion to
permit exceptions to the electronic filing requirement so that paper
documents may be filed if the Presiding Officer so orders.
To emphasize our preference for electronic filing, we propose to
omit existing language stating that documents ``may be filed in person
or by mail.'' We also propose changes, consistent with our proposal on
electronic filing, establishing the filing date for documents.
Electronically filed documents would be deemed filed on the date of the
electronic filing; however, recognizing the broad discretion afforded
the Presiding Officer, we propose adding language stating that the
Presiding Officer may allow alternative methods of filing, by order,
and that such order shall state the applicable date on which such
pleadings or documents are deemed filed.
New language in proposed Sec. 1025.14(c) would also eliminate our
current requirement that three copies of pleadings be filed, a
superfluous requirement in an era where digital copies are created
easily. Under our proposed change, a single electronic copy must be
filed with the Secretariat and the Presiding Officer; however, we
propose to add language that acknowledges that the Presiding Officer
may order paper filings.
In Sec. 1025.14(d), we would require that the original of each
document that is filed electronically be signed electronically.
Section 1025.14(e) currently anticipates filing of paper documents,
and sets standards for such filings. We propose to amend this paragraph
to establish requirements that address the electronic filing of
pleadings and documents. In Sec. 1025.14(e)(1), we would require an
electronic address in addition to a mailing address. Section
1025.14(e)(2) would require filing electronic text documents in a
format that uses 12-point font with double spacing and prints on
standard letter-sized paper with 1-inch margins. This paragraph also
would include the requirement that electronic documents and files that
cannot be readily printed, such as large spreadsheets, videos, or
photographs, be identified by technical format and also include
information on the program or protocol required to review the
information. The font, spacing and margin requirements are consistent
with Rule 32 of the Federal Rules of Appellate Procedure and Rule
102(a)(b) of the U.S. District Court for the District of Maryland.
We also propose to update Sec. 1025.14(e)(3), which currently
states:
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``[d]ocuments that fail to comply with this section may be returned by
the Secretary.'' Under the proposed Sec. 1025.14(e)(3), documents that
do not meet the filing requirements, or electronic documents that
cannot be opened or read, may be returned to the filer by the
Secretariat or the Presiding Officer. Lastly, we propose to add
language to Sec. 1025.14(e)(3) to allow a Presiding Officer to permit
deviation from the form prescribed in this section, for good cause
shown, a change that underscores our goal of vesting broad discretion
in the Presiding Officer to maximize efficiency and flexibility in how
an adjudication proceeds.
Proposed Changes to Sec. 1025.15 (Time)
In Sec. 1025.15(a) we would make several non-substantive changes,
including a clarification of the title to make clear that the
computation of time refers to days. We also would make clear that
``day'' means calendar day. We further propose to clarify the existing
language to state that the day on which the event triggering the period
shall not be included in the calculation of time, but each calendar day
thereafter shall; and that if the last day of the time period falls on
a weekend or legal holiday, the time period shall be tolled until the
next day that is not a weekend or a legal holiday. We also propose to
update this section to delete references to specified legal holidays in
the existing rule and refer instead to the legal public holidays
identified in 5 U.S.C. 6103. This revision would include Martin Luther
King, Jr.'s birthday as a holiday and would allow the Rules of Practice
to reflect any changes to the list of legal public holidays made in the
future.
We further propose to amend Sec. 1025.15(b) to state that whenever
a party is required or permitted to do an act within a prescribed
period after service of a document and the Presiding Officer permits
service by mail, three (3) days shall be added to the prescribed
period. This amendment recognizes that while electronic service is
preferred, service by mail may be allowed by order of the Presiding
Officer; if such service is made by mail, three additional days would
be added to the date by which the recipient must perform a subsequent
action.
In Sec. 1025.15(c) regarding the extension of time limits, we
propose to add language clarifying that initial decisions are decisions
issued under Sec. 1025.51 of the Rules of Practice.
We also propose to add a new paragraph (d), which would be titled
Stay of proceedings, to clarify that if a stay of proceedings is
granted by order of the Presiding Officer or Commission, the time
limits specified in these rules shall be automatically tolled during
the period while the stay is in effect.
Proposed Changes to Sec. 1025.16 (Service)
We propose several changes to Sec. 1025.16, titled, Service, to
reflect current litigation practice and advancements in technology.
First, we propose to revise Sec. 1025.16(a) to reflect proposed
changes to Sec. 1025.14 that would require the Presiding Officer to
maintain the official file for an adjudicative proceeding, if
practicable. Second, our proposed Sec. 1025.16(b) would remove
subpoenas from the service requirements of this section because we
address those requirements in Sec. 1025.28(e), discussed below. We
also propose a new Sec. 1025.16(b)(1) that would allow service of a
complaint, ruling, petition for interlocutory appeal, order, or
decision to be made by electronic means if ordered by the Presiding
Officer or by agreement of the parties. We also propose renumbering the
subparagraphs of Sec. 1025.16(b) to reflect this addition. Third, in
proposed Sec. 1025.16(b)(2), we would permit service by commercial
carrier, a change that reflects common practice today.
We also propose in Sec. 1025.16(b)(3) to add ``a limited liability
company'' to the list of corporate entities that may be served, and
would add ``entity'' in the title of the paragraph, for clarity. We
propose this change to capture the types of legal entities that exist
and may be the subject of an administrative complaint. Finally, we
propose to add language in new Sec. 1025.16(b)(4) that, recognizing
the preference for electronic service of documents, clarifies the
circumstances in which delivery of a document to an address is
appropriate.
In Sec. 1025.16(c), we would establish electronic service as the
primary mode of service for other documents, unless otherwise ordered
by the Presiding Officer or agreed to by the parties. Proposed changes
to Sec. 1025.16(e), which provides a form for certificates of service,
and Sec. 1025.16(f), which sets the date of service of documents,
would provide for electronic filing. Consistent with the establishment
of electronic filing, we propose to delete reference in Sec.
1025.16(e) to ``the original of every document,'' and instead, require
that ``every document'' be accompanied by a certificate of service.
Proposed Changes to Sec. 1025.17 (Intervention)
We are proposing to revise Sec. 1025.17(a), (b), and (c) to
identify accurately the Secretariat of the Commission. We also propose
to correct a typographical error in Sec. 1025.17(c)(5). We do not
intend these changes to be substantive.
Proposed Changes to Sec. 1025.18 (Class Actions)
We are proposing to revise Sec. 1025.18(a)(1) for clarity. The
general word ``class'' would be replaced with the more specific phrase
``class of respondents.''
Proposed Changes to Sec. 1025.19 (Joinder of Proceedings)
We propose to revise the title of Sec. 1025.19, currently Joinder
of proceedings, to Consolidation of proceedings because the rule,
modeled on Rule 19 of the Federal Rules, actually describes
consolidation, rather than joinder, a different legal concept. In
addition, we propose new Sec. 1025.19(a) to state that the Presiding
Officer or the Commission may order the actions involving a common
question of law or fact be consolidated for any purpose if the
Presiding Officer finds that consolidation will ``avoid unnecessary
cost or delay.'' This would change the current rule, which permits the
Presiding Officer or the Commission to consolidate actions only ``for
the purpose of hearing or Commission review.'' This proposed language
expands the authority of the Presiding Officer to consolidate actions
or portions of actions, as appropriate, a change that is consistent
with our goal of assigning broad discretion to the Presiding Officer in
the conduct of a proceeding. In practice, the current rule may lead to
uncertainty about whether cases may be consolidated for limited
purposes, such as discovery, where there are multiple respondents.
Under the proposed rule, we make clear that the Presiding Officer may
order partial consolidations on issues including, but not limited to,
discovery, pretrial procedure, and/or hearing.
We propose to add a new Sec. 1025.19(b), including insertion of a
title, for clarity.
Subpart C--Prehearing Procedures, Motions, Interlocutory Appeals,
Summary Judgments, Settlements
Proposed Changes to Sec. 1025.21 (Prehearing Conferences)
We propose changes to Sec. 1025.21, Prehearing conferences, to
reflect updated procedures in the Federal Rules. Specifically, the
proposed changes would require a preliminary meeting of the parties
before discovery commences, followed by an initial prehearing
conference with the Presiding Officer. We believe these
[[Page 21780]]
preliminary steps would streamline the process, focus the issues, and
advance our goal of achieving a fair and expeditious proceeding.
Under proposed Sec. 1025.21(a), the parties would be required to
conduct a preliminary meeting no later than 5 days after the answer is
due by the last answering party. At the preliminary meeting, the
parties would be directed to discuss the nature and basis of their
claims and defenses and the possibilities for settlement or resolution
of the case. The proposed change also would require parties to attempt
to agree on a proposed discovery plan with a schedule for depositions
of fact witnesses, the production of documents and ESI, and the timing
of expert discovery. In addition, the proposed revision would require
the parties to seek agreement on the scope of electronic discovery,
including specified time periods for which electronic information is
sought, and agree on the format in which electronic discovery would be
produced. The parties also would be required to develop a preliminary
time estimate for the evidentiary hearing and to attempt to reach
agreement on any other matters to be determined at the prehearing
conference. We believe these changes would help expedite the process by
setting an earlier deadline for a meeting of the parties and by having
the parties resolve issues through mutual agreement.
Under proposed Sec. 1025.21(b), which would be titled, Initial
prehearing conference, we propose to modify the issues to be discussed
at the prehearing conference to provide a more concise list of issues
to be addressed. We believe a tailored agenda for the prehearing
conference would maximize efficiency and concentrate focus on major
issues. At the initial prehearing conference, the parties, with the
guidance of the Presiding Officer, would address a range of issues,
including their factual and legal theories, the current status of
pending motions or petitions, the date for the evidentiary hearing,
steps taken to preserve evidence, and the scope of anticipated
discovery and a discovery plan. This list would be for illustrative
purposes only and would not be intended to restrict the topics that
could be discussed at the prehearing conference under the proposed
revision to this section.
In Sec. 1025.21 we also propose to re-designate existing paragraph
(b), Public notice, as paragraph (c), and to re-designate existing
paragraph (c), Additional conferences, as paragraph (e).
Under proposed Sec. 1025.21(d), the Presiding Officer would be
required to enter an order setting forth the results of the initial
prehearing conference, establishing a timeline for discovery, motions,
and any other appropriate matters. We make this proposal to address the
inadequacy of the current requirement that the Presiding Officer issue
a prehearing order only after the conclusion of the final prehearing
conference, a point late in the process that does not provide
sufficient time for potential resolution of issues. We believe that the
parties and the Presiding Officer would benefit from establishing a
schedule earlier in the proceedings, and we also trust that such a
schedule would clarify issues and expedite the proceedings. In
addition, in Sec. 1025.21 we propose to re-designate existing
paragraph (d), Reporting, as paragraph (h), and make it consistent with
our proposal in Sec. 1025.41(a) to exclude Commissioners and their
staffs from attending or viewing public hearings prior to the Presiding
Officer's initial decision. In paragraph (e), which we propose to re-
designate paragraph (g), we would revise the title to be Final
prehearing order, for clarity. We also propose to remove references to
the format set forth in appendix I, because, as discussed below, we are
proposing to delete the appendix.
Under proposed Sec. 1025.21(f), we would require a final
prehearing conference as close to the evidentiary hearing as
practicable. Under the current rules, it is not clear that such a
conference should occur; our proposed change would make clear that such
a conference would be mandatory. We believe that such a conference
would benefit the parties and the Presiding Officer by focusing the
issues before the hearing and resolving final evidentiary matters.
Proposed Changes to Sec. 1025.22 (Prehearing Briefs)
We are proposing to revise this section to require the filing of
prehearing briefs, which, under the current Rules, are discretionary.
We believe that prehearing briefs should be mandatory because
information contained in these briefs would set the necessary framework
for the proceeding, clarifying the facts to be proven, the order of
proof, and the issues to be decided.
Proposed Changes to Sec. 1025.23 (Motions)
We propose to change this section to clarify rules governing the
filing of motions. Under the current rule, all motions, except for
disqualification motions, must be addressed to the Presiding Officer.
Our proposed revision to Sec. 1025.23(a) would add subpoena
applications to the list of motions that would not be addressed to the
Presiding Officer. We propose this change because subpoena applications
follow distinct procedures set forth in Sec. 1025.38(c), discussed
below. In Sec. 1025.23(b), we propose a minor, non-substantive
clarification, changing ``Secretary'' to ``Secretariat.'' Proposed
changes in Sec. 1025.23(c) would include a revision of the title to
Response and replies, which reflects our proposed addition regarding
reply briefs. We also would expand the time to respond to motions from
10 days to 14 days because, in staff's experience, 10 days does not
provide adequate time to respond to a motion, particularly when weekend
days are considered in the computation. We believe the addition of 4
days to respond to a motion would provide sufficient time to prepare
and submit a response without burdening the process with unnecessary
delay. Additionally, this paragraph would expressly permit replies,
which currently are available only by leave of the Presiding Officer or
the Commission. In our experience, replies are granted routinely, and
this change merely recognizes that practice, eliminating the
unnecessary step of seeking leave. This paragraph also would permit the
Presiding Officer (or the Commission, as the case may be), to authorize
the filing of additional briefs, on good cause shown, a change that
reflects our belief that the broad authority to administer a proceeding
should be vested with the Presiding Officer. We further propose that
additional briefs, if permitted, must be filed within 5 days after
service of the pleading to which the brief replies.
Proposed Changes to Sec. 1025.24 (Interlocutory Appeals)
Section 1025.24 currently lists four exceptions to the general rule
against interlocutory appeals. Proposed Sec. 1025.24 would add a fifth
exception, permitting interlocutory appeal where the Presiding Officer
grants or denies a motion to amend a complaint under Sec. 1025.13. The
proposed revisions to Sec. 1025.13 are intended to reiterate that only
the Commission is empowered to issue administrative complaints and that
any amendments cannot have that effect without Commission approval.
This revision to Sec. 1025.13 is intended to ensure that, if a party
believes the Presiding Officer has improperly ruled on such an
amendment without Commission approval, that party will have the
opportunity to appeal that ruling immediately, without being
[[Page 21781]]
compelled to litigate a matter in order to obtain a Commission decision
on whether or not that party should be in the litigation at all.
We propose to revise Sec. 1025.24(b)(1)(ii) to clarify that nature
of the proceeding from which an interlocutory appeal may be filed. We
propose to revise Sec. 1025.24(b)(2) to state that the Commission may
decide a petition for an interlocutory appeal based on the existing
record, or the Commission may request additional briefing and oral
presentation. As written, the rule currently imposes an obligation on
the Commission to decide the petition or request further briefing. Our
proposed change makes clear that such a binary decision is not required
and that the Commission has the option of deciding the petition based
on the record, or the Commission may request further briefing or oral
presentation.
Proposed Changes to Sec. 1025.25 (Summary Decisions and Orders)
We are proposing changes to Sec. 1025.25(a) to align our rule more
closely with Rule 56 of the Federal Rules. Under our current Rules of
Practice, the movant does not have to file a statement of material
facts not in dispute, nor does the respondent have to file a statement
of material facts that respondent contends are in dispute. The proposed
change would require that motions and oppositions to motions be
accompanied by separate statements of material facts about which the
movant asserts there is no dispute and about which the opposing party
contends there is a genuine dispute. We believe this change will
enhance efficiency because filing statements of material fact would
help pinpoint the primary issues in dispute. We also propose to revise
Sec. 1025.25(a) to conform to changes we propose to Sec. 1025.21,
discussed above, to state that a summary decision motion be filed in
accordance with any prehearing order issued by the Presiding Officer.
The time for filing the motion would also be defined, providing that
such motions to be filed up to thirty (30) days following the close of
discovery. We are proposing this change because we believe this time
period would afford the Presiding Officer sufficient time to carefully
consider such motions, and would encourage resolution of part or all
the matter well in advance of the scheduled hearing date.
We also propose to revise Sec. 1025.25(b) to require that a
response to a summary decision motion be accompanied by a statement of
material facts that the opposing party contends are in dispute, a
change that will enhance focus on the main issues in dispute. We also
propose to modify Sec. 1025.25(c) to add specific items in the record
that should be considered by the Presiding Officer in resolving the
motion, a change that mirrors Rule 56 of the Federal Rules.
Proposed Changes to Sec. 1025.26 (Settlements)
We are proposing to revise Sec. 1025.26(b) to clarify that motions
that request that the Presiding Officer transmit a proposed consent
agreement to the Commission must be filed in camera. In addition, we
propose to amend this paragraph to state that offers of settlement
shall be served on complaint counsel. Thus, the revised rule would
ensure that complaint counsel would be apprised of any non-jointly
submitted offers of settlement. Under the current rule, a party may
submit any settlement offer to the Commission without notifying
complaint counsel. Because we are proposing in this rule to remove the
ex parte prohibition on communications in the context of settlement
agreements, discussed in Sec. 1025.68, we are proposing that complaint
counsel be made aware of all such offers so that complaint counsel can
communicate knowledgeably to the Commission about the substance of such
offers.
In Sec. 1025.26(c)(1) through (4), we propose a number of non-
substantive editorial changes. In Sec. 1025.26(c)(5), we propose to
add language that an offer of settlement should also include a list of
``acts or practices that the respondent shall affirmatively
undertake.'' This addition acknowledges the authority of the
Commission, after an opportunity for hearing, to order a firm to
undertake certain actions pursuant to section 15(d) of the CPSA.
Under current Sec. 1025.26(d), the Presiding Officer may transmit
to the Commission offers of settlement that meet the requirements of
form and content set forth in Sec. 1025.26(c). We propose to revise
this paragraph to require the Presiding Officer to transmit all non-
frivolous, non-duplicative settlement offers to the Commission,
removing the discretion provided to the Presiding Officer in the
current rule. We propose this change because we believe the Commission
should review all non-frivolous, non-duplicative settlements with the
goal of advancing resolution of a matter, if possible. In addition, we
propose that, to be transmitted, such an offer must comply with the
requirements of Sec. 1025.26(b), as well as Sec. 1025.26(c).
We also are proposing non-substantive changes in Sec. 1025.26(e)
and (g).
Subpart D--Discovery, Compulsory Process
Proposed Changes to Sec. 1025.31 (General Provisions Regarding
Discovery)
The Commission proposes to revise Sec. 1025.31(a) to require
parties to conduct discovery in accordance with Rule 26 of the Federal
Rules, with several exceptions, discussed below. Rule 26 imposes a
number of requirements, such as requiring initial disclosures,
prehearing conferences, scope of discovery, and limitations on the
timing, frequency and extent of discovery. Rule 26 also sets forth
provisions governing discovery of material prepared in anticipation of
trial, expert discovery, and requests for protective orders. Under the
current rule, methods, sequence and scope of discovery are addressed in
a general fashion. We believe that adopting the detailed procedures set
forth in Rule 26 will achieve earlier and more meaningful coordination
between the parties and will advance the efficient progress of an
adjudicative proceeding.
Although we intend largely to follow Rule 26, we propose to depart
from Rule 26 procedures in a number of ways. Specifically, regarding
the time periods for discovery, we will not follow Rule 26 guidance and
will instead allow schedules to be set at the discretion of the
Presiding Officer, unless a specific time frame is set forth in our
rules. We expect the Presiding Officer to set appropriate timelines as
the facts may dictate or the comparative complexity of a matter
requires. We also expect that, whenever possible, the Presiding Officer
will shorten schedules, particularly where expedited hearings would
serve the public interest, or where issues do not require expert
discovery or lengthy evidentiary hearings.
In addition, in proposed Sec. 1025.31(a), we would require that
initial disclosure of information be produced no later than 5 days
after the preliminary meeting of the parties. This proposed rule
shortens the 14-day time frame for such disclosures that is afforded
under the Federal Rule, a step that furthers coordination among the
parties and encourages expeditious resolution of issues. We also
propose that our proceedings not adhere to Rule 26 requirements that
experts must produce a written report (Rule 26(a)(2)(B)) because such
reports may not be practicable in adjudicative matters that proceed on
an expedited schedule. We also adopt the provisions governing
protective orders in Rule 26(c), but we have modified the Rule to
recognize that in adjudicative proceedings under part 1025, such
motions shall be made to
[[Page 21782]]
and decided by the Presiding Officer. In addition, we propose that our
proceedings not adhere to Rule 26(f) regarding conference timing,
content, and discovery plan because such matters are governed by the
proposed revisions to Sec. 1025.21, which allow the Presiding Officer
to impose deadlines and shorten time frames, as necessary.
Additionally, we propose changes in newly designated Sec.
1025.31(b), Completion of discovery, to state that the 150-day standard
discovery period controls fact discovery but does not control expert
discovery, which may extend beyond the 150-day limit. Moreover, our
proposed revisions would vest the Presiding Officer with the discretion
to establish a time frame for completion of expert discovery. We
propose these changes because in our experience expert discovery is
more efficient after fact discovery is completed. For less complex
matters, the Presiding Officer is vested with the discretion to shorten
deadlines and time frames under Sec. 1025.21 of this Rule. Because we
are following Rule 26 in large part, we are proposing to omit current
paragraphs (a) through (i). We also note that, in following Rule 26,
parties are not required to file discovery with the Secretariat and the
Presiding Officer. Instead, parties would serve discovery responses on
each other, thus relieving the Secretariat and the Presiding Officer of
the burden of maintaining a voluminous amount of information.
Proposed Changes to Sec. 1025.32 (Written Interrogatories to Parties)
We propose to revise this section to follow Rule 33 of the Federal
Rules (Interrogatories to Parties), including the number, scope, and
timing of interrogatories, the requirements of answers and objections,
and the option to produce business records, so that we can maximize
efficiency and reduce undue delay. Under the proposed change, for
example, interrogatories would be limited to 25. The current rules do
not impose any limits, thereby inviting overly burdensome requests and
potential abuse that could impede the progress of a matter. Adopting
Rule 33 of the Federal Rules would allow the Presiding Officer to alter
the limits on the frequency and extent of discovery pursuant to Rule
26(b).
Because we propose to follow the Federal Rules on interrogatories,
we also propose to omit Sec. 1025.32(a) through (d) of the current
rules.
Proposed Changes to Sec. 1025.33 (Production of Documents)
The Commission proposes to revise the title to Production of
documents, electronically stored information, and tangible things;
access for inspection and other purposes, to reflect the expanded types
of information covered by this section. In addition, we propose to
revise this section to follow, with one exception, Rule 34 of the
Federal Rules (Producing Documents, Electronically Stored Information,
and Tangible Things, or Entering onto Land, for Inspection and Other
Purposes). This provision governs the number, scope, and timing of
information requests, the requirements of responses and objections, and
Rule 34's treatment of production of ESI. We believe this proposed
change would maximize efficiency because the proposed procedure would
align our discovery practice with discovery under the Federal Rules and
case law interpreting the Federal Rules, and would provide specific
direction on the discovery of ESI, which is not specifically addressed
in our current rules. However, we propose to depart from Rule 34
regarding requests for subpoenas, and propose instead that requests for
subpoenas be governed by Sec. 1025.38 of our Rules of Practice, as
discussed below. Because we propose to follow the Federal Rules for the
production of documents, we also propose to omit Sec. 1025.33(a)
through (d).
Proposed Changes to Sec. 1025.34 (Requests for Admission)
We propose to revise this section to follow, with one exception,
Rule 36 of the Federal Rules (Requests for Admission). We would not
follow Rule 36 regarding the award of expenses under Rule 37(a)(5)
because expenses are not authorized under our Rules of Practice;
rather, parties may follow the procedures set forth in Sec. 1025.70 of
the Rules of Practice. Because we propose to follow the Federal Rules,
we also propose to omit Sec. 1025.34(a) through (c).
Proposed Changes to Sec. 1025.35 (Depositions)
For efficiency reasons and ease of practice, we propose largely to
follow the Federal Rules on depositions, which are familiar to most
practitioners. Specifically, the Commission proposes to revise this
section to follow Rule 30 (Depositions by Oral Examination), Rule 31
(Depositions by Written Questions), and Rule 32 (Using Depositions in
Court Proceedings) of the Federal Rules, with certain exceptions
discussed below. We propose that requests for subpoenas continue to be
governed by Sec. 1025.38 of our Rules of Practice. We also propose
that provisions in the Federal Rules governing award of attorney's fees
and expenses shall not apply. Because we propose to follow the Federal
Rules, we also propose to omit Sec. 1025.35(a) through (h).
We propose these changes because the procedures set forth in
Federal Rule 30, for example, would facilitate the noticing of
depositions by the parties and encourage cooperation among the
litigants during the discovery process. Under our current rule, parties
are required to obtain leave of the Presiding Officer to notice all
depositions, and there is no limit on the number of depositions that
may be noticed. Federal Rule 30 allows parties to notice depositions
without leave in most circumstances, including if the parties have
stipulated to the deposition and the deposition would not result in
more than 10 depositions being taken by each party. In addition, a
party wishing to depose a nonparty under the current rule is required
to apply for a subpoena; Federal Rule 30 has no such requirement, which
will expedite the discovery process. Our current rules also do not
limit the length of a deposition, which can lead to protracted and
costly depositions; Federal Rule 30, however, establishes a limit on
the length of a deposition, limiting depositions to one 7- hour day,
unless otherwise ordered by the court.
We also propose following Federal Rule 31, titled, Depositions by
Written Questions, a practice not currently authorized by our Rules of
Practice. We propose this addition because this discovery tool can be
more efficient and less costly than an in-person deposition, and may
facilitate a more streamlined use of additional discovery methods. We
additionally propose following Federal Rule 32 titled, Using
Depositions in Court Proceedings because the provisions of this rule
address more comprehensively than Sec. 1025.35, the appropriate uses
of depositions, the objections to such use, and the form of
presentation.
Proposed Changes to Sec. 1025.36 (Motions to Compel Discovery)
The Commission proposes to revise this section to include a
requirement that motions to compel discovery include a certification
that the movant has, in good faith, conferred or attempted to confer
with the person or party failing to make disclosure. This change is
consistent with the requirements in the Federal Rules (see Federal Rule
37(a)(1)), and we believe this change would encourage resolution
[[Page 21783]]
of the issues between parties, without intervention by the Presiding
Officer.
Proposed Changes to Sec. 1025.38 (Subpoenas)
We propose to update this section to make it consistent with our
proposed changes on electronic filing, discussed above, and for
clarity.
We would revise Sec. 1025.38(b) to properly identify the
Secretariat. In addition, we propose to amend Sec. 1025.38(c) and (d)
to clarify the content of, and application process for, subpoenas.
Specifically, we propose to remove the paper filing requirement,
eliminate the requirement that applications be submitted in triplicate,
and delete other requirements related to paper filing.
Additionally, in Sec. 1025.38(e), we propose to allow subpoena
service to nonparties, as set forth in Sec. 1025.16(b)(2) through (5),
which allows for service by a variety of means, but does not permit
electronic service. Because nonparties may not have verified electronic
addresses, and certification of receipt is not required, service of a
subpoena by the other specified methods is more reliable. For parties,
we propose allowing for service in any of the methods set forth in
Sec. 1025.16(b)(1) through (5). We believe these proposed changes
would increase the efficiency of subpoena service because the revisions
allow for multiple methods of service, and, in particular, permit
electronic service among parties, where the parties have agreed to such
methods of service or the Presiding Officer has permitted these methods
of service. Additionally, Sec. 1025.38(f) would permit, in addition to
mail carrier service, return of service of subpoenas by commercial
carrier, a change that reflects common practice today. We also propose
to eliminate the requirement that a copy of the subpoena be returned to
the Secretary. In addition to other minor and non-substantive changes
in Sec. 1025.38(g), we propose to clarify that a motion to quash or
limit should be ruled on by the Commission as a time critical matter in
accordance with the Commission Decision Making Procedures.
Proposed Changes to Sec. 1025.39 (Orders Requiring Witnesses To
Testify or Provide Other Information and Granting Immunity).
We propose deleting this section and other distinctions relating to
the Flammable Fabrics Act (``FFA'') throughout these rules because they
are no longer necessary in light of the Commission's enhanced authority
set forth in section 214 of the Consumer Product Safety Improvement Act
of 2008, which permits the Commission to take action under section 15
of the Consumer Product Safety Act for violations of that statute and
any other Act enforced by the Commission.
Subpart E--Hearings
Proposed Changes to Sec. 1025.41 (Hearings; General Rules)
The Commission proposes to revise Sec. 1025.41(a) to clarify that
Commissioners and their staffs should not attend or view public
hearings concerning matters that may become subject of review by the
Commission as the appellate body. We also propose to revise Sec.
1025.41(b) to clarify that adjudicative proceedings shall be held in
one location, absent unusual circumstances. Based on staff experience
and common practice in other agencies, we also propose to limit the
duration of a proceeding to no more than 210 hours, absent a showing of
good cause. We believe this provides ample time for the proper conduct
of most hearings, but allows flexibility to alter the time frame if
circumstances warrant. We propose other minor, non-substantive changes
in Sec. 1025.41(c) for clarity.
Proposed Changes to Sec. 1025.42 (Powers and Duties of Presiding
Officer)
The Commission proposes to revise Sec. 1025.42(a)(6) to state
that, in addition to procedural motions, the Presiding Officer is
empowered to consider and rule on evidentiary motions and other issues,
as appropriate. We propose other minor, non-substantive changes in
Sec. 1025.42(a)(3) and (b), for clarity. In proposed Sec. 1025.42(d),
we make clear that, in addition to the Commission, a Presiding Officer
shall not be responsible to, or subject to the supervision of, a
Commissioner or a member of a Commissioner's staff in performance of
the adjudicative function.
In Sec. 1025.42(e), we propose to clarify that the Commission
shall consider a motion to disqualify the Presiding Officer only if the
matter has been decided and appealed to the Commission. In addition, we
propose other minor, non-substantive changes.
Proposed Changes to Sec. 1025.43 (Evidence)
The Commission proposes to supplement Sec. 1025.43(a) to provide
specific examples of the ways in which the Federal Rules of Evidence
may be relaxed to best serve the interests of justice. More
specifically, the proposal states that evidence constituting hearsay
may be admitted if it is relevant, material, and bears satisfactory
indicia or reliability so that its use is fair. In addition, we are
proposing a minor, non-substantive change in Sec. 1025.43(d)(1)(i) for
uniformity. We also propose to remove an unnecessary ``reserved''
paragraph in Sec. 1025.43(e) and re-designate paragraph (f) as
paragraph (e).
Proposed Changes to Sec. 1025.44 (Expert Witnesses)
The Commission proposes to revise Sec. 1025.44(a) to align our
rule on experts more closely with the standard set forth in Rule 702 of
the Federal Rules of Evidence (Testimony by Expert Witnesses). We make
this change to maximize efficiency by working within an evidentiary
framework with which most practitioners are familiar and allowing the
parties and Presiding Officer to be guided by case law interpreting the
Federal Rules.
We also propose revising Sec. 1025.44(b) to make clear that the
Presiding Officer has the authority to order expert testimony to be in
writing and filed on the record. In addition, we propose to clarify
that the Presiding Officer has the discretion to allow live testimony
in lieu of a written submission. This change would be in keeping with
our goal of vesting broad discretion with the Presiding Officer in the
conduct of a proceeding.
We propose to revise Sec. 1025.44(c) and (d) to conform to our
proposed revision in Sec. 1025.44(b).
Proposed Changes to Sec. 1025.45 (In Camera Materials)
We propose to revise Sec. 1025.45(b) to correct typographical and
grammatical errors, and to clarify the standard that applies to in
camera treatment of documents and testimony. We also propose to move
language related to the length of time for in camera treatment from
Sec. 1025.45(b) to Sec. 1025.45(b)(3). Additionally, we propose
adding language to Sec. 1025.45(e) to make clear that in camera
materials may not be released to the public until the order granting in
camera treatment expires. We propose to revise Sec. 1025.45(f) for
clarity.
Proposed Changes to Sec. 1025.46 (Proposed Findings, Conclusions, and
Order)
The Commission proposes to revise this section to make the filing
of post-hearing briefs mandatory. Under the current rule, parties may
file post hearing briefs, but are not required to do so. Because we
believe the public and the Presiding Officer would benefit from
[[Page 21784]]
a concise but comprehensive summary of the matter at issue, we propose
that this filing be mandatory. In addition, we propose to limit post-
hearing briefs to thirty (30) pages. Currently, the rule does not
impose a page limit, and we believe parties should be encouraged to
file concise pleadings. We also propose to limit replies to the
discretion of the Presiding Officer so that the pace of the
adjudication at this juncture is not slowed unnecessarily by the filing
of excessive briefing materials. We propose other non-substantive
changes for clarity.
Proposed Changes to Sec. 1025.47 (Record)
The Commission proposes to revise Sec. 1025.47(a) of this section
to delete the requirement for an ``official court reporter of the
Commission'' because the Commission has no official court reporter. The
revised language would require that a hearing shall be ``recorded and
transcribed by a court reporter under the supervision of the Presiding
Officer.'' We are proposing other non-substantive changes for clarity,
including a revision to the appendix citation in the Federal Advisory
Committee Act.
Proposed Changes to Sec. 1025.48 (Official Docket)
The Commission proposes to revise this section to require that the
official docket be maintained electronically, in keeping with changes
we are proposing throughout our Rules of Practice to update our
procedures to reflect advances in technology. We also propose to delete
the statement that the docket would be available for inspection by the
public during normal business hours as unnecessary because the docket
would be available electronically. We propose other non-substantive
changes for clarity.
Proposed Changes to Sec. 1025.49 (Fees)
The Commission proposes to revise Sec. 1025.49(a) to allow parties
to modify this provision by agreement.
Subpart F--Decision
Proposed Changes to Sec. 1025.51 (Initial Decision)
Under current Sec. 1025.51(a), the Presiding Officer shall
endeavor to file an Initial Decision within sixty (60) days after the
record closes in a case, or after the filing of post-hearing briefs,
whichever is later. The Commission proposes to revise Sec. 1025.51(a)
to require the Presiding Officer to file the Initial Decision within a
fixed deadline of 60 days. This change is consistent with the
Commission's goal of avoiding unnecessary delay and ensuring that a
matter progresses in a timely manner to serve the interests of justice.
The current rules impose numerous interim deadlines, but do not
explicitly provide for a total time limit from complaint to Initial
Decision. Staff advises that most cases will take more than 1 year for
the Presiding Officer to render an Initial Decision. The Commission
believes that the Presiding Officer has considerable discretion in
managing cases to ensure the timely and efficient resolution of
proceedings, and the Commission expects that the Presiding Officer
shall endeavor to make those proceedings as swift as practicable in the
interest of due process and the protection of consumer health and
safety.
The administrative procedures at sister agencies such as the
Securities and Exchange Commission (``SEC''), the Consumer Financial
Protection Bureau (``CFPB''), and the Federal Trade Commission
(``FTC'') employ other practices on ways to make adjudicatory
proceedings more efficient, including a fixed time limit from issuance
of complaint to evidentiary hearing as required by FTC Rule 16 CFR 3.11
(Commencement of Proceedings), a fixed time limit from complaint to
initial decision as required by SEC Rule, 17 CFR 201.360(a)(2) (Initial
Decision of Hearing Officer) and CFPB Rule, 12 CFR 1081.400(a)
(Recommended Decision of the Hearing Officer), and changes to the rules
that limit the scope of discovery available to parties in
administrative proceedings as has been adopted by the SEC and CFPB. The
Commission seeks comment on whether CPSC should adopt similar
practices.
We also propose to revise Sec. 1025.51(c) to make clear that the
Commission may order that an individual, other than the Presiding
Officer, may make and file an Initial Decision, if the Presiding
Officer is disqualified under Sec. 1025.42(e).
We are proposing to revise Sec. 1025.51(d) to limit the authority
of the Presiding Officer to reopen the proceedings to only those
circumstances ``where the interests of justice so require.'' We propose
this change to emphasize the need for finality and to ensure timely
disposition of a matter.
Proposed Changes to Sec. 1025.52 (Adoption of Initial Decision)
We are proposing a minor, non-substantive change for consistency.
Proposed Changes to Sec. 1025.53 (Appeal From Initial Decision)
The Commission proposes to revise the title of Sec. 1025.53(a) to
Notices of appeal, and we propose several additional changes for
clarity.
In addition, we propose to revise Sec. 1025.53(b) to limit appeal
briefs to thirty (30) pages. Currently, the rule does not impose a page
limit, and we believe parties should be encouraged to file concise
pleadings. We also propose to amend Sec. 1025.53(c) to impose the same
30-page restriction on answering briefs that applies to appeal briefs.
In Sec. 1025.53(f), we would clarify that reply briefs are not
required, but if filed, they shall not exceed fifteen (15) pages.
Proposed Changes to Sec. 1025.55 (Final Decision on Appeal or Review)
The Commission proposes to revise Sec. 1025.55 to remove the word
``endeavor.'' By doing so, the Commission commits to issue its final
decision on appeal or review within 90 days after the filing of all
briefs or after receipt of transcript of the oral argument, whichever
is later. We are also proposing a minor, non-substantive change in
Sec. 1025.55(a) for clarity.
Proposed Changes to Sec. 1025.56 (Reconsideration)
We are proposing minor, non-substantive changes for clarity and to
correct a typographical error.
Proposed Changes to Sec. 1025.57 (Effective Date of Order)
The Commission proposes to revise Sec. 1025.57(a) and (b) to
clarify that Commission orders in adjudicative proceedings under the
CPSA or the FFA become effective upon receipt by the Respondent.
In Sec. 1025.57(b)(1), we propose an additional, non-substantive
change for clarity. In Sec. 1025.57(b)(2), we propose corrections for
citation errors.
Proposed Changes to Sec. 1025.58 (Reopening of Proceedings)
The Commission proposes to revise Sec. 1025.58(c)(2) for clarity.
In proposed Sec. 1025.58(e)(2), we make clear that the Commission
may direct the Presiding Officer to conduct additional hearings if the
pleadings raise substantial factual issues. We are proposing this
change because as written it is unclear under whose auspices such a
hearing would be conducted and recognize that such a hearing should be
conducted by the Presiding Officer as the finder of fact. We further
propose to clarify in this section, consistent with proposed changes to
Sec. 1025.46, to state that post hearing briefs are mandatory. We
propose one other non-substantive change for clarity.
[[Page 21785]]
Subpart G--Appearances, Standards of Conduct
Proposed Changes to Sec. 1025.63 (Written Appearances)
The Commission proposes to revise Sec. 1025.63(a) and (b) to
conform the requirement for the filing of a notice of appearance to our
proposed electronic filing changes to Sec. 1025.14 of the Rules of
Practice.
In Sec. 1025.63(b), we propose other minor, non-substantive
changes for clarity.
Proposed Changes to Sec. 1025.65 (Persons Not Attorneys)
The Commission proposes to revise Sec. 1025.65(a) for clarity.
Proposed Changes to Sec. 1025.66 (Qualifications and Standards of
Conduct)
The Commission proposes to revise Sec. 1025.66(d) for clarity.
Proposed Changes to Sec. 1025.67 (Restrictions as to Former Members
and Employees)
The Commission proposes to retitle this section to: Restrictions as
to former Commission members, to align the title with the text in Sec.
1025.67(a). We also would revise Sec. 1025.67(a) to include additional
statutory and regulatory restrictions and propose to revise Sec.
1025.67(c) for clarity.
Proposed Changes to Sec. 1025.68 (Prohibited Ex Parte Communications)
We propose to add a new Sec. 1025.68(b) to state that, except to
the extent required for disposition of ex parte matters authorized by
law or by this part, ex parte prohibitions apply to a number of
circumstances. Specifically, new Sec. 1025.68(b)(1) would prohibit ex
parte communications relevant to the merits of an adjudication by any
interested person not employed by the CPSC to any decision maker during
the pendency of a proceeding under the Rules. Under the current rule,
an ex parte communication is defined as a communication concerning a
matter in adjudication made to a decision-maker by any person subject
to the Rules of Practice. Our proposed change, which is consistent with
the APA, would broaden the ex parte prohibition to include any
``interested person not employed by the Commission.'' Additionally, new
proposed Sec. 1025.68(b)(2) would prohibit any decision maker from
making an ex parte communication to any interested party not employed
by the Commission. To conform new Sec. 1025.68(c)(2)(i) and (ii) with
our proposed new Sec. 1025.68(b), we would omit language in those
paragraphs limiting the prohibition to persons subject to these Rules
of Practice and add language tracking new Sec. 1025.68(b).
The Commission also proposes to revise Sec. 1025.68(d) to add
paragraph (d)(3) to state that ex parte prohibitions do not apply to
communications by any party to the Commission concerning a proposed
settlement agreement that has been transmitted to the Commission. We
are proposing this change because we believe this would allow parties
to communicate information to the Commission that might not otherwise
be available to the Commission.
We also propose changes in Sec. 1025.68(e) to clarify that the
procedures for handling prohibited ex parte communications are also
available to recipients of such communications who are not employed by
the Commission. We make other, non-substantive changes to Sec.
1025.68(e), as well.
In Sec. 1025.68(g), we propose changes to be consistent with the
proposed changes to this section discussed above, and we also propose
that sanctions shall apply to any person or party who makes or causes a
prohibited ex parte communication to be made. As currently drafted, the
provision allowing sanctions applies only to persons subject to the
Rules of Practice. We propose language that would allow sanctions to be
imposed on a person who, while not a party, makes a prohibited ex parte
communication and subsequently becomes a party. The proposed language,
which is consistent with the adjudicative rules adopted by FTC, would
authorize the Presiding Officer to impose sanctions allowed under this
section, if that person later becomes a party to the proceeding.
We propose other minor, non-substantive changes for clarity.
Proposed Sec. 1025.69 (Separation of Functions)
To clarify that Commission staff charged with investigative and
prosecutorial responsibilities may not advise a decision maker or
otherwise participate in a decision in a proceeding, we propose to add
a new Sec. 1025.69 titled, Separation of functions, setting forth the
separation of functions provisions of the APA, 5 U.S.C. 554(d).
Subpart H--Implementation of the Equal Access to Justice Act in
Adjudicative Proceedings With the Commission
Proposed Changes to Sec. 1025.70 (General Provisions)
The Commission proposes to revise this section to remove outdated
and confusing references to the Equal Access to Justice Act (``EAJA'').
As written, the rule substantially re-states EAJA requirements existing
when the rule was adopted initially. Many elements of those
requirements are no longer current. To avoid updating these rules each
time an element of the EAJA is changed, we propose removing references
to specific EAJA requirements and stating instead that the EAJA applies
to certain adjudicative proceedings before the Commission. We propose
stating generally that applications for fees and expenses may be made
according to the EAJA, as interpreted by the federal courts and
guidance provided by the U.S. Department of Justice (``DOJ''). Such
interpretative case law and DOJ guidance provide ample direction for
applicants, the Presiding Officer, and the Commission in the
application for, and consideration of, a request for attorney's fees
and other expenses. We do not believe our proceedings warrant
particularized requirements regarding EAJA and that the guidance
provided by the DOJ, and as interpreted by federal courts, would be
sufficient for applicants to proceed with an EAJA claim. We note too
that other federal agencies, such as the CFPB, have adopted rules of
practice without reference to EAJA. Because we believe DOJ and federal
court guidance is sufficient, we propose to omit language in Sec.
1025.70(a) and the entirety of Sec. 1025.70(b) through (h). We are
also proposing several minor, non-substantive changes for clarity.
Proposed Changes to 1025.71 (Information Required From Applicant)
Consistent with our goal of following DOJ and federal court
guidance on EAJA, we propose omitting this section.
Proposed Changes to Sec. 1025.72 (Procedures for Considering
Applications)
Consistent with our goal of following DOJ and federal court
guidance on EAJA, we propose omitting this section.
Proposed Changes to Appendix I to Part 1025 (Suggested Form of Final
Prehearing Order)
We are proposing to omit this appendix, which contains a suggested
[[Page 21786]]
form for a final prehearing order, given our proposed revisions to the
requirements for prehearing conferences and orders, discussed above.
IV. Environmental Considerations
The Commission's regulations address whether the Commission is
required to prepare an environmental assessment or an environmental
impact statement. 16 CFR part 1021. These regulations provide a
categorical exclusion for certain CPSC actions that normally have
``little or no potential for affecting the human environment.'' 16 CFR
1021.5(c)(l). This proposed rule falls within the categorical
exclusion.
V. Regulatory Flexibility Analysis
Under section 603 of the Regulatory Flexibility Act (``RFA''), when
the APA requires an agency to publish a general notice of proposed
rulemaking, the agency must prepare an initial regulatory flexibility
analysis (``IRFA''), assessing the economic impact of the proposed rule
on small entities. 5 U.S.C. 603(a). As noted, the Commission is
proposing to update its Rules of Practice for Adjudicative Proceedings.
Although the Commission is choosing to issue the rule through notice
and comment procedures, the APA does not require a proposed rule when
an agency issues rules of agency procedure and practice (5 U.S.C.
553(b)). Therefore, no IRFA is required under the RFA. Moreover, the
proposed rule would not establish any mandatory requirements and would
not impose any obligations on small entities (or any other entity or
party).
VI. Paperwork Reduction Act
The Paperwork Reduction Act (``PRA'') establishes certain
requirements when an agency conducts or sponsors a ``collection of
information.'' 44 U.S.C. 3501-3520. The proposed rule would amend the
Commission's Rules of Practice to adopt modern adjudicative procedures.
The proposed rule would not impose any information collection
requirements. The existing Rules of Practice and the proposed revision
do not require or request information from firms, but rather, explain
procedures for adjudicatory hearings. Thus, the PRA is not implicated
in this proposed rulemaking.
VII. Executive Order 12988 (Preemption)
According to Executive Order 12988 (February 5, 1996), agencies
must state in clear language the preemptive effect, if any, of new
regulations. Section 26 of the CPSA explains the preemptive effect of
consumer product safety standards issued under the CPSA. 15 U.S.C.
2075. The proposed Rules of Practice do not set consumer product safety
standards. Rather, the proposed Rules of Practice is an adoption of
updated rules of agency procedure and practice. Therefore, section 26
of the CPSA would not apply to this rulemaking.
VIII. Effective Date
In accordance with the APA's general requirement that the effective
date of a rule be at least 30 days after publication of the final rule,
the Commission proposes that the effective date be 30 days after the
date of publication of a final rule in the Federal Register. 5 U.S.C.
553(d).
IX. Request for Comments
The Commission requests comments on all aspects of the proposed
rule. Comments should be submitted in accordance with the instructions
in the ADDRESSES section at the beginning of this document. Written
comments must be received by June 13, 2016.
List of Subjects in 16 CFR Part 1025
Administrative practice and procedure, Consumer protection.
For the reasons set forth in the Preamble, the Commission proposes
to amend 16 CFR part 1025 to read as follows:
PART 1025--RULES OF PRACTICE FOR ADJUDICATIVE PROCEEDINGS
0
1. The authority citation for part 1025 is revised to read as follows:
Authority: Authority: 15 U.S.C. 45, 1192, 1194, 1197(b), 1274,
1473(c), 2064, 2066(b), 2076, 8003.
0
2. Revise Sec. 1025.1 to read as follows:
Sec. 1025.1 Scope of rules.
The Rules in this part govern procedures in adjudicative
proceedings relating to the provisions of sections 15(c), (d), and (f)
and 17(b) of the Consumer Product Safety Act (15 U.S.C. 2064(c), (d),
(f); 2066(b)), section 15 of the Federal Hazardous Substances Act (15
U.S.C. 1274), sections 3 and 8(b) of the Flammable Fabrics Act (15
U.S.C. 1192, 1197(b)), section 4(c) of the Poison Prevention Packaging
Act (15 U.S.C. 1473(c)), and section 1404 of the Virginia Graeme Baker
Pool and Spa Act (15 U.S.C. 8003), which are required to be determined
on the record after opportunity for a public hearing. This part may
also be applied to such other adjudicative proceedings as the
Commission, by order, shall designate. A basic intent of the Commission
in the development of these Rules has been to promulgate a single set
of procedural rules which can accommodate both simple matters and
complex matters in adjudication. To accomplish this objective, broad
discretion has been vested in the Presiding Officer who will hear a
matter being adjudicated to allow him/her to alter time limitations and
other procedural aspects of a case, as required by the complexity of
the particular matter involved. A major concern of the Commission is
that all matters in adjudication move forward in a timely manner,
consistent with the Constitutional due process rights of all parties.
Therefore, the Presiding Officer should, whenever appropriate, expedite
the proceedings by setting shorter time limitations than those
generally applicable under this part. For example, the time limitation
for discovery, as provided in Sec. 1025.31(d), may be shortened,
consistent with the extent of discovery reasonably necessary to prepare
for the hearing. Except where stated otherwise, discovery matters shall
be governed by the Federal Rules of Civil Procedure.
Sec. 1025.2 [Amended]
0
3. Amend Sec. 1025.2 by removing the words ``these Rules'' and adding,
in their place, the words ``this part''.
0
4. Amend Sec. 1025.3 by:
0
a. Redesignating paragraphs (e) through (l) as paragraphs (h) through
(o);
0
b. Adding new paragraphs (e), (f), and (g); and
0
c. Revising newly redesignated paragraphs (i) and (n).
The additions and revisions read as follows:
Sec. 1025.3 Definitions.
* * * * *
(e) Electronically Stored Information (``ESI'') shall have the same
meaning given to such term in the Federal Rules.
(f) Ex parte communication shall have the meaning set forth in
Sec. 1025.68.
(g) Federal Rules means the Federal Rules of Civil Procedure.
* * * * *
(i) Party means any named person or any intervenor in any
proceedings governed by this part.
* * * * *
(n) Secretary or Secretariat means the Secretariat of the Consumer
Product Safety Commission.
* * * * *
0
5. Amend Sec. 1025.11 by:
0
a. Revising paragraphs (a) and (b)(3); and
0
b. Adding paragraph (d).
The revisions and addition read as follows:
Sec. 1025.11 Commencement of proceedings.
(a) Notice of institution of enforcement proceedings. Any
[[Page 21787]]
adjudicative proceedings under this part shall be commenced by the
issuance of a complaint, authorized by the Commission, and signed by
Complaint Counsel.
(b) * * *
(3) A clear and concise statement of the charges, sufficient to
inform each respondent with reasonable definitiveness of the factual
basis or bases of the allegations of violation or hazard.
* * * * *
(d) Preliminary injunction. A judicial proceeding for a preliminary
injunction pursuant to 15 U.S.C. 2064(g) shall not serve as the basis
to stay any proceedings under this part.
0
6. Revise Sec. 1025.13 to read as follows:
Sec. 1025.13 Amendments and supplemental pleadings.
The Presiding Officer may allow appropriate amendments and
supplemental pleadings which do not unduly broaden the issues in the
proceedings or cause undue delay. If any proposed amendment or
supplemental pleading would have the effect of adding or removing any
persons as a respondent to the complaint or adding or removing any
count, or if the Presiding Officer determines that the amendments or
supplemental pleadings do not fall within the scope of an authorized
complaint, broaden the authority granted staff in a complaint, unduly
broaden the issues in the proceedings, or would cause undue delay, the
Presiding Officer shall refer such amendments or supplemental pleadings
to the Commission for decision.
0
7. Amend Sec. 1025.14 by revising the section heading and paragraphs
(a), (c), (d)(1), and (e) to read as follows:
Sec. 1025.14 Form and filing of pleadings and other documents.
(a) Filing. Except as otherwise provided by order of the Presiding
Officer, all pleadings and documents submitted to the Commission or the
Presiding Officer shall be addressed to, and electronically filed with,
the Secretariat and the Presiding Officer. Pleadings and documents
filed electronically shall be deemed filed on the day of electronic
filing; should the Presiding Officer permit by order an alternative
method of filing, such order shall state the applicable date on which
such filings are to be deemed filed.
* * * * *
(c) Copies. Unless otherwise ordered by the Presiding Officer, a
single electronic copy must be filed with each of the Secretariat and
the Presiding Officer. Each copy must be clear and legible.
(d) * * *
(1) The original of each document filed shall be signed by a
representative of record for the party or participant; or in the case
of parties or participants not represented, by the party or
participant; or by a partner, officer or other appropriate official of
any corporation, partnership, or unincorporated association, who files
an appearance on behalf of the party or participant. Documents
electronically filed shall be signed electronically.
* * * * *
(e) Form. (1) All documents shall be dated and shall contain the
electronic address, telephone number, and mailing address of the
signer.
(2) Electronic text documents shall be filed in a format that
prints on paper approximately 8\1/2\ x 11 inches in size. Print shall
be in 12-point font and double spaced, and margins shall be one inch.
Electronic documents and files that cannot readily be printed, such as
large spreadsheets, videos, or photographs, should be identified by
format and the program or protocol required to review the information.
(3) Documents that fail to comply with this section may be returned
by the Secretariat or Presiding Officer. Electronic documents and files
that cannot be opened or read may be returned by the Secretariat or
Presiding Officer. For good cause shown, the Presiding Officer may
allow deviation from the form prescribed in this section.
0
8. Revise Sec. 1025.15 to read as follows:
Sec. 1025.15 Time.
(a) Computation of days. In computing any time period specified in
this part or in any order filed in a proceeding subject to this part,
the day of the event triggering the period shall not be included, but
each calendar day thereafter shall be included. If the last day of the
time period is a Saturday, Sunday, or legal holiday, the period
continues to run until the end of the next day that is not a Saturday,
Sunday, or legal holiday. When the period of time prescribed or allowed
is less than seven (7) days, intermediate Saturdays, Sundays, and legal
holidays shall be excluded in the computation. As used in this Rule,
``legal holiday'' means any day designated as a legal public holiday in
5 U.S.C. 6103.
(b) Additional time after service by mail. Whenever a party is
required or permitted to do an act within a prescribed period after
service of a document and the Presiding Officer permits service by
mail, three (3) days shall be added to the prescribed period.
(c) Extensions. For good cause shown, the Presiding Officer may
extend any time limit prescribed or allowed by this part or by order of
the Commission or the Presiding Officer, except for those sections
governing the filing of interlocutory appeals and appeals from initial
decisions pursuant to Sec. 1025. 13 and those sections expressly
requiring Commission action. Except as otherwise provided by law, the
Commission, for good cause shown, may extend any time limit prescribed
by this part or by order of the Commission or the Presiding Officer.
(d) Stay of proceedings. If a stay of proceedings is granted by
order of the Presiding Officer or the Commission, the time limits
specified in this part shall be automatically tolled during the period
while the stay is in effect.
0
9. Revise Sec. 1025.16 to read as follows:
Sec. 1025.16 Service.
(a) Mandatory service. Every document filed with the Secretariat
shall be served upon all parties to any proceedings, i.e., Complaint
Counsel, respondent(s), and party intervenors, as well as the Presiding
Officer. Every document filed with the Secretariat or Presiding Officer
shall also be served upon each participant, if the Presiding Officer or
the Commission so directs.
(b) Service of complaint, ruling, petition for interlocutory
appeal, order, or decision. A complaint, ruling, petition for
interlocutory appeal, order, or decision shall be served as follows:
(1) By electronic means. Service may be made by electronic means if
ordered by the Presiding Officer or otherwise agreed by the parties;
(2) By registered mail, certified mail or commercial carrier. A
copy of the document shall be addressed to the person, partnership,
corporation or unincorporated association to be served at his/her/its
residence or principal office or place of business and sent by
registered mail, certified mail, or commercial carrier;
(3) By delivery to an individual or entity. A copy of the document
may be delivered to the person to be served; or to a member of the
partnership or limited liability company to be served; or to the
president, secretary, or other executive officer, or a director of the
corporation or unincorporated association to be served; or to an agent
authorized by appointment or by law to receive service; or
(4) By delivery to an address. If the document is not to be served
electronically and cannot be served in person or by mail as provided in
paragraph (b)(2) or (3) of this section, a copy of the document may be
left at the
[[Page 21788]]
principal office or place of business of the person, partnership,
corporation, unincorporated association, or authorized agent with an
officer or a managing or general agent; or it may be left with a person
of suitable age and discretion residing therein, at the residence of
the person or of a member of the partnership or of an executive
officer, director, or agent of the corporation or unincorporated
association to be served; or
(5) By publication in the Federal Register. A respondent that
cannot be served by any of the methods already described in this
section may be served by publication in the Federal Register and such
other notice as may be directed by the Presiding Officer or the
Commission, where a complaint has issued in a class action pursuant to
Sec. 1025.18.
(c) Service of other documents. Except as otherwise provided in
paragraph (b) of this section, when service of a document starts the
running of a prescribed period of time for the submission of a
responsive document or the occurrence of an event, the document shall
be served by electronic means unless otherwise ordered by the Presiding
Officer or otherwise agreed by the parties.
(d) Service on a representative. When a party has appeared by an
attorney or other representative, service upon that attorney or other
representative shall constitute service upon the party.
(e) Certificate of service. Every document filed with the
Commission and required to be served upon all parties to any
proceedings, as well as participants if so directed by the Presiding
Officer, shall be accompanied by a certificate of service signed by the
party making service, stating that such service has been made upon each
party and participant to the proceedings. Certificates of service may
be in substantially the following form:
I hereby certify that I have served the attached document upon all
parties and participants of record in these proceedings by emailing,
mailing postage prepaid, or delivering in person, a copy to each on
____.
-----------------------------------------------------------------------
(Signature)
For--------------------------------------------------------------------
(f) Date of service. The date of service of a document shall be the
date on which the document is sent electronically, deposited with the
United States Postal Service, postage prepaid, or is delivered in
person.
Sec. 1025.17 [Amended]
0
10. Amend Sec. 1025.17 by:
0
a. Removing the words ``these rules'' in paragraph (a) introductory
text and adding, in their place, the words ``this part'';
0
b. Removing the word ``Secretary'' in paragraphs (a) introductory text,
(b) introductory text, and (c) and adding, in its place, the word
``Secretariat'';
0
c. Removing the words ``, of these rules'' in paragraph (b)(3); and
0
d. Removing the word ``peititioner's'' in paragraph (d)(5) and adding,
in its place, the word ``petitioner's'' .
0
11. Amend Sec. 1025.18 by revising paragraphs (a)(1) and (f)(4) and
removing the undesignated paragraph following paragraph (f)(4) to read
as follows:
Sec. 1025.18 Class actions.
(a) * * *
(1) The class of respondents is so numerous or geographically
dispersed that joinder of all members is impracticable;
* * * * *
(f) * * *
(4) Dealing with other procedural matters. The orders may be
combined with a prehearing order under Sec. 1025.21 and may be altered
or amended as may be necessary.
* * * * *
0
12. Revise Sec. 1025.19 to read as follows:
Sec. 1025.19 Consolidation of proceedings.
(a) Consolidation of actions. When actions involving a common
question of law or fact are pending before the Presiding Officer, the
Commission or the Presiding Officer may order a consolidated hearing of
any or all the matters in issue in the actions; the Commission or the
Presiding Officer may order the actions consolidated for any purpose;
and the Commission or the Presiding Officer may make such orders
concerning such consolidated proceedings as needed to avoid unnecessary
cost or delay.
(b) Motions for consolidation. A motion for consolidation may be
filed by any party not later than thirty (30) days prior to the
hearing. Such motion shall be served upon all parties to any
proceedings in which consolidation is contemplated. The motion may
include a request that the consolidated proceedings be maintained as a
class action in accordance with Sec. 1025.18. The proceedings may be
consolidated to such extent and upon such terms as may be proper. Such
consolidation may also be ordered upon the initiative of the Presiding
Officer or the Commission. Single representatives may be designated by
represented parties, intervenors, and participants with an identity of
interests.
0
13. Revise Sec. 1025.21 to read as follows:
Sec. 1025.21 Prehearing conferences.
(a) Preliminary meeting of the parties. As early as practicable
before the prehearing scheduling conference described in paragraph (b)
of this section, but in no event later than five (5) days after the
answer is due to be filed by the last answering respondent, counsel for
the parties shall meet to discuss the nature and basis of their claims
and defenses and the possibilities for a prompt settlement or
resolution of the case. The parties shall also agree, if possible, on:
(1) A proposed discovery plan specifically addressing a schedule
for depositions of fact witnesses, the production of documents and
electronically stored information, and the timing of expert discovery.
The parties' agreement regarding electronically stored information
should include the scope of and a specified time period for the
exchange of such information and the format for the discovery of such
information;
(2) A preliminary estimate of the time required for the evidentiary
hearing; and
(3) Any other matters to be determined at the prehearing
conference.
(b) Initial prehearing conference. The Presiding Officer shall hold
a prehearing conference not later than 50 days after publication of the
complaint in the Federal Register and upon ten (10) days' notice to all
parties and participants. At the prehearing conference any or all of
the following shall be considered:
(1) The factual and legal theories of the parties;
(2) The current status of any pending motions or petitions;
(3) A proposed date for the evidentiary hearing, and a schedule of
proceedings that is consistent with the date of the evidentiary
hearing;
(4) Steps taken to preserve evidence relevant to the issues raised
by the claims and defenses;
(5) The scope of anticipated discovery, any limitations on
discovery, and a proposed discovery plan, including the disclosure of
electronically stored information;
(6) Issues that can be narrowed by agreement or by motion,
suggestions to expedite the presentation of evidence at trial, and any
request to bifurcate issues, claims or defenses; and
(7) Other possible agreements or steps that may aid in the just and
expeditious disposition of the proceeding and to avoid unnecessary
cost.
[[Page 21789]]
(c) Public notice. The Presiding Officer shall cause a notice of
the first prehearing conference, including a statement of the issues,
to be published in the Federal Register at least ten (10) days prior to
the date scheduled for the conference.
(d) Prehearing scheduling order. Following the first prehearing
conference, the Presiding Officer shall enter an order that sets forth
the results of the conference and establishes a schedule of proceedings
that will permit the evidentiary hearing to commence expeditiously,
including a plan for discovery, and the production of documents and
electronically stored information, dates for the submission and hearing
of motions, the time and place of a final prehearing conference, and
other matters as appropriate.
(e) Additional conferences. Additional prehearing conferences may
be convened at the discretion of the Presiding Officer, upon notice to
the parties, any participants, and to the public.
(f) Final prehearing conference. As close to the commencement of
the evidentiary hearing as practicable, the Presiding Officer shall
hold a final prehearing conference, at which time deadlines for
proposed stipulations as to law, fact, or admissibility of evidence,
and the exchange of exhibit and witness lists shall be established. At
this conference, the Presiding Officer shall also resolve any
outstanding evidentiary matters or pending motions (except motions for
summary decision) and establish a final schedule for the evidentiary
hearing.
(g) Final prehearing order. The Presiding Officer shall issue a
final prehearing order in each case after the conclusion of the final
prehearing conference. The final prehearing order should contain, to
the fullest extent possible at that time, all information which is
necessary for controlling the course of the hearing. The Presiding
Officer may require the parties to submit a jointly proposed final
prehearing order. If the complexities of the issues, extent of
discovery, or good cause require that the hearing commence more than
300 days past the filing of the complaint, it shall be noted in the
order.
(h) Reporting. Prehearing conferences shall be stenographically
reported as provided in Sec. 1025.47 and shall be open to the public
(except as provided in Sec. 1025.41(a)), unless otherwise ordered by
the Presiding Officer or the Commission.
0
14. Revise Sec. 1025.22 introductory text to read as follows:
Sec. 1025.22 Prehearing briefs.
Not later than ten (10) days prior to the hearing, unless otherwise
ordered by the Presiding Officer, the parties shall simultaneously
serve and file prehearing briefs, which should set forth:
* * * * *
0
15. Amend Sec. 1025.23 by:
0
a. Removing the word ``Secretary'' from paragraph (b) and adding, in
its place, the word ``Secretariat''; and
0
b. Revising paragraphs (a) and (c).
The revisions read as follows:
Sec. 1025.23 Motions.
(a) Presentation and disposition. All motions, except
disqualification motions filed under Sec. 1025.42(e) and motions or
applications related to subpoenas under Sec. 1025.38(c), shall be
addressed to the Presiding Officer, who shall rule upon them promptly,
after affording an opportunity for response.
* * * * *
(c) Responses and replies to motions. Within fourteen (14) days
after service of any written motion or petition or within such longer
or shorter time as may be designated by this part or by the Presiding
Officer or the Commission, any party who opposes the granting of the
requested order, ruling or action may file a written response to the
motion. Failure to respond to a written motion may, in the discretion
of the Presiding Officer, be considered as consent to the granting of
the relief sought in the motion. Replies to responses shall be filed
within ten (10) days after service of the response. No additional
replies or responses shall be permitted absent leave granted by the
Presiding Officer or the Commission on good cause shown. Any additional
replies or responses permitted by the Presiding Officer or the
Commission shall be filed within five (5) days after service of the
pleading to which the reply or response relates.
* * * * *
Sec. 1025.24 [Amended]
0
16. Amend Sec. 1025.24 by:
0
a. Adding the words ``that is the subject of a proceeding under this
part'' at the end of paragraph (b)(1)(ii);
0
b. Removing the period at the end of paragraph (b)(1)(iv) and adding a
semicolon in its place;
0
c. Adding paragraph (b)(1)(v); and
0
d. Revising the last sentence of paragraph (b)(2).
The addition and revision read as follows:
Sec. 1025.24 Interlocutory appeals.
* * * * *
(b) * * *
(1) * * *
(v) Grants or denies a motion under Sec. 1025.13 unless the
Commission has issued a decision under Sec. 1025.13.
(2) * * * The Commission may decide the petition, or may request
such further briefing or oral presentation as it deems necessary.
* * * * *
0
17. Amend Sec. 1025.25 by revising paragraphs (a), (b), (c), and (d)
to read as follows:
Sec. 1025.25 Summary decisions and orders.
(a) Motion. Any party may file a motion, with a supporting
memorandum, for a Summary Decision and Order in its favor upon all or
any of the issues in controversy. The motion shall be accompanied by a
separate and concise statement of the material facts as to which the
moving party contends there is no dispute. Complaint Counsel may file
such a motion at any time after thirty (30) days following issuance of
a complaint, and any other party may file a motion at any time after
issuance of a complaint. Any such motion by any party shall be filed in
accordance with prehearing orders issued by the Presiding Officer under
Sec. 1025.21, and shall be filed no later than thirty (30) days after
the close of discovery.
(b) Response to motion. Any other party may, within twenty (20)
days after service of the motion, file a response with a supporting
memorandum accompanied by a separate and concise statement of the
material facts as to which the opposing party contends a genuine
dispute exists.
(c) Grounds. A Summary Decision and Order shall be granted if the
particular parts of materials in the record, including depositions,
documents, electronically stored information, affidavits or
declarations, stipulations (including those made for purposes of the
motion only), admissions, interrogatory answers, or other materials
show that there is no genuine issue as to any material fact and that
the moving party is entitled to a Summary Decision and Order as a
matter of law.
(d) Legal effect. A Summary Decision and Order upon all the issues
being adjudicated shall constitute the Initial Decision of the
Presiding Officer and may be appealed to the Commission in accordance
with Sec. 1025.53. A Summary Decision, interlocutory in character, may
be rendered on fewer than all issues and may not be appealed prior to
issuance of the Initial Decision.
* * * * *
0
18. Revise Sec. 1025.26 to read as follows:
[[Page 21790]]
Sec. 1025.26 Settlements.
(a) Availability. Any party shall have the opportunity to submit an
offer of settlement to the Presiding Officer.
(b) Form. Offers of settlement shall be filed in camera in the form
of a consent agreement and order, shall be signed by the respondent or
respondent's representative, and may be signed by any other party. Each
offer of settlement shall be accompanied by an in camera motion
requesting that the Presiding Officer transmit the proposed consent
agreement and order to the Commission. The motion shall outline the
substantive provisions of the proposed consent agreement, and state
reasons why the consent agreement should be accepted by the Commission.
Offers of settlement and accompanying motions not jointly submitted
shall be served simultaneously on Complaint Counsel.
(c) Contents. An offer of settlement shall contain:
(1) An admission of all jurisdictional facts;
(2) An express waiver of further procedural steps and of all rights
to seek judicial review or otherwise to contest the validity of the
Commission order;
(3) A statement that the allegations of the complaint are resolved
by the consent agreement and order;
(4) A description of the alleged hazard, noncompliance, or
violation;
(5) As appropriate, a listing of the acts or practices from which
the respondent shall refrain and those acts or practices that the
respondent shall affirmatively undertake; and
(6) As appropriate, a detailed statement of the corrective
action(s) which the respondent shall undertake. In proceedings arising
under Section 15 of the Consumer Product Safety Act, 15 U.S.C. 2064,
this statement shall contain all the elements of a ``Corrective Action
Plan,'' as outlined in the Commission's Interpretation, Policy, and
Procedure for Substantial Product Hazards, 16 CFR part 1115.
(d) Transmittal. The Presiding Officer shall transmit settlement
offers that meet the requirements of paragraphs (b) and (c) of this
section to the Commission for its consideration unless the Presiding
Officer determines the settlement offer is clearly frivolous,
duplicative of offers previously made, or contrary to established
Commission policy. The Presiding Officer may, but need not, recommend
acceptance of offers. Any party may object to the transmittal to the
Commission of an offer of settlement by filing a response opposing the
motion.
(e) Stay of proceedings. When an offer of settlement has been
agreed to by all parties and has been transmitted to the Commission,
the proceedings shall be stayed until the Commission has ruled on the
offer of settlement. When an offer of settlement has been made and
transmitted to the Commission but has not been agreed to by all
parties, the proceedings shall not be stayed pending Commission
decision on the offer, unless otherwise ordered by the Presiding
Officer or the Commission.
(f) Commission ruling. The Commission shall rule upon all
transmitted offers of settlement. If the Commission accepts the offer,
the Commission shall issue an appropriate order, which shall become
effective upon issuance.
(g) Commission rejection. If the Commission rejects an offer of
settlement, the Secretariat shall give written notice of the
Commission's decision to the parties and the Presiding Officer. If the
proceedings have been stayed, the Presiding Officer shall promptly
issue an order resuming the proceedings, with consideration to any
modifications to the schedule necessitated by the stay.
(h) Effect of rejected offer. Neither rejected offers of
settlement, nor the fact of the proposal of offers of settlement are
admissible in evidence.
0
19. Revise Sec. 1025.31 to read as follows:
Sec. 1025.31 General provisions governing discovery.
(a) Unless otherwise provided by statute, the parties shall conduct
discovery in accordance with and subject to Rule 26 of the Federal
Rules, as specified in this part. Unless specified in paragraphs (a)(1)
through (4) of this section or provided for in this part, the time
frames set for all actions described in Rule 26 shall be set by the
Presiding Officer.
(1) Initial disclosures of information required in Federal Rule
26(a)(1)(C) shall be produced no later than 5 days after the
preliminary meeting of the parties as set forth in Sec. 1025.21(a).
(2) Federal Rule 26(a)(2)(B) (Witnesses Who Must Provide a Written
Report) shall not apply.
(3) Federal Rule 26(c) (Protective Orders) shall apply with the
following exceptions: Motions for protective orders shall be made to
and decided by the Presiding Officer; Federal Rule 26(c)(3) shall not
apply.
(4) Federal Rule 26(f) (Conference of the Parties: Planning for
Discovery) shall not apply. The conference of the parties and joint
discovery planning required in Federal Rule 26(f) shall take place as
set forth in Sec. 1025.21, or as otherwise ordered by the Presiding
Officer.
(b) Completion of discovery. All non-expert discovery shall be
completed as soon as practical but in no case longer than one hundred
fifty (150) days after issuance of a complaint, unless otherwise
ordered by the Presiding Officer in exceptional circumstances and for
good cause shown. All discovery demands shall be made and served by a
date which affords the party from whom discovery is sought the full
response period provided by this part. The Presiding Officer shall
establish a time frame for the completion of expert discovery in
accordance with Sec. 1025.21.
0
20. Revise Sec. 1025.32 to read as follows:
Sec. 1025.32 Written interrogatories to parties.
This section shall be governed by Rule 33 of the Federal Rules.
0
21. Revise Sec. 1025.33 to read as follows:
Sec. 1025.33 Production of documents, electronically stored
information, and tangible things; access for inspection and other
purposes.
This section shall be governed by Rule 34 of the Federal Rules,
with the following exception: Requests for subpoenas shall be governed
by Sec. 1025.38.
0
22. Revise Sec. 1025.34 to read as follows:
Sec. 1025.34 Requests for admission.
This section shall be governed by Rule 36 of the Federal Rules,
except that Rule 37(a)(5) award of expenses shall not apply.
0
23. Revise Sec. 1025.35 to read as follows:
Sec. 1025.35 Depositions.
This section shall be governed by Rules 30-32 of the Federal Rules,
with the following exceptions: Requests for subpoenas shall be governed
by Sec. 1025.38; and Federal Rule 37(a)(5) award of expenses shall not
apply.
0
24. Revise Sec. 1025.36 to read as follows:
Sec. 1025.36 Motions to compel discovery.
If a party fails to respond to discovery, in whole or in part, the
party seeking discovery may move within twenty (20) days for an order
compelling an answer, or compelling inspection or production of
documents, or otherwise compelling discovery. The motion must include a
certification that the movant has in good faith conferred or attempted
to confer with the person or party failing to make disclosure or
discovery in an effort to obtain it without action by the Presiding
Officer. For purposes of this section, an evasive or incomplete
response is to be
[[Page 21791]]
treated as a failure to respond. When taking depositions, the
discovering party shall continue the examination to the extent possible
with respect to other areas of inquiry before moving to compel
discovery.
Sec. 1025.37 [Amended]
0
25. Amend Sec. 1025.37(g) by removing the words ``of these rules''.
0
26. Revise Sec. 1025.38 to read as follows:
Sec. 1025.38 Subpoenas.
(a) Availability. A subpoena shall be addressed to any person not a
party for the purpose of compelling attendance, testimony, and
production of documents at a hearing or deposition, and may be
addressed to any party for the same purposes.
(b) Form. A subpoena shall identify the action with which it is
connected; shall specify the person to whom it is addressed and the
date, time, and place for compliance with its provisions; and shall be
issued by order of the Commission and signed by the Secretariat or by
the Presiding Officer. A subpoena duces tecum shall specify the books,
papers, documents, or other materials or data-compilations to be
produced.
(c) How obtained--(1) Content of application. An application for
the issuance of a subpoena, stating reasons, shall be submitted to the
Presiding Officer, who shall forward the application to the Commission.
(2) Procedure for application. The Commission shall rule upon the
application for a subpoena ex parte, by issuing an order granting or
denying the application.
(d) Issuance of a subpoena. The Commission shall issue a subpoena
by authorizing the Secretariat or the Presiding Officer to sign and
date the approved subpoena for transmittal to the applicant for
service.
(e) Service of a subpoena. A subpoena issued by the Commission
shall be served upon the addressee as provided in Sec. 1025.16(b)(2)
through (5) and upon all parties as provided in Sec. 1025.16(b).
(f) Return of service. A person serving a subpoena shall promptly
execute a return of service, stating the date, time, and manner of
service upon the addressee. If service is effected by mail or
commercial carrier, the signed return receipt or proof of delivery
shall accompany the return of service. In case of failure to make
service, a statement of the reasons for the failure shall be made.
(g) Motion to quash or limit subpoena. Within five (5) days after
receipt of a subpoena, the person to whom it is directed may file a
motion to quash or limit the subpoena, setting forth the reasons why
the subpoena should be withdrawn or why it should be limited in scope.
Any such motion shall be answered within five (5) days after service
and shall be ruled on by the Commission as a time critical matter, in
accordance with the Commission Decision Making Procedures. The order
shall specify the date, if any, for compliance with the specifications
of the subpoena.
(h) Consequences of failure to comply. In the event of failure by a
person to comply with a subpoena, the Presiding Officer may take any of
the actions enumerated in Sec. 1025.37, or may order any other
appropriate relief to compensate for the withheld testimony, documents,
or other materials. If in the opinion of the Presiding Officer such
relief is insufficient, the Presiding Officer shall certify to the
Commission a request for judicial enforcement of the subpoena.
Sec. 1025.39 [Removed]
0
27. Remove Sec. 1025.39.
0
28. Amend Sec. 1025.41 by revising paragraphs (a) through (d) to read
as follows:
Sec. 1025.41 General rules.
(a) Public hearings. All hearings conducted pursuant to this part
shall be public unless otherwise ordered by the Commission or the
Presiding Officer, except that Commissioners and their staffs shall not
attend or view public hearings concerning matters that may become
subject of review by the Commission as the appellate body.
(b) Prompt completion. Hearings shall proceed with all reasonable
speed and, insofar as practicable with due regard to the convenience of
the parties, shall be held at one location and continue without
suspension until concluded, except in unusual circumstances or as
otherwise provided in this part. The hearing shall be limited to no
more than 210 hours; provided that the Presiding Officer, upon a
showing of good cause, may extend the number of hours for the hearing.
(c) Rights of parties. Every party shall have the right of timely
notice and all other rights essential to a fair hearing, including, but
not limited to, the right to present evidence, to conduct such cross-
examination as may be necessary for a full and complete disclosure of
the facts, and to be heard by objection, motion, brief, and argument.
(d) Rights of participants. Every participant shall have the right
to make a written or oral statement of position and to file proposed
findings of fact, conclusions of law, and a post hearing brief, in
accordance with Sec. 1025.17(b).
* * * * *
0
29. Amend Sec. 1025.42 by:
0
a. Revising paragraphs (a)(3), (6), and (9), (b), (d), and (e)(2); and
0
b. In paragraph (e)(1), removing the word ``Secretary'' and adding, in
its place, the word ``Secretariat''.
The revisions read as follows:
Sec. 1025.42 Powers and duties of Presiding Officer.
(a) * * *
(3) To rule upon offers of proof, and receive relevant, competent,
and probative evidence;
* * * * *
(6) To consider and rule, orally or in writing, upon all
procedural, evidentiary, and other motions and issues appropriate in
adjudicative proceedings;
* * * * *
(9) To take any action authorized by this part or the provisions of
title 5, United States Code, sections 551-559.
(b) Exclusion of parties by Presiding Officer. A Presiding Officer
shall have the authority, for good cause stated on the record, to
exclude from participation in any proceedings any party, participant,
or representative who violates the requirements of Sec. 1025.66. Any
party, participant or representative so excluded may appeal to the
Commission in accordance with the provisions of Sec. 1025.24. If the
representative of a party or participant is excluded, the hearing may
be suspended for a reasonable time so that the party or participant may
obtain another representative.
* * * * *
(d) Interference. In the performance of adjudicative functions, a
Presiding Officer shall not be responsible to or subject to the
supervision or direction of any Commissioner or any member of a
Commissioner's staff or of any officer, employee, or agent engaged in
the performance of investigative or prosecuting functions for the
Commission. All directions by the Commission to a Presiding Officer
concerning any adjudicative proceedings shall appear on and be made a
part of the record.
(e) * * *
(2) Whenever, for good and reasonable cause, any party considers
the Presiding Officer to be disqualified to preside, or to continue to
preside, in any adjudicative proceedings, that party may file with the
Secretariat a motion to disqualify and remove, supported by
affidavit(s) setting forth the alleged grounds for disqualification. A
copy of
[[Page 21792]]
the motion and supporting affidavit(s) shall be served by the
Secretariat on the Presiding Officer whose removal is sought. The
Presiding Officer shall have ten (10) days to respond in writing to
such motion. However, the motion shall not stay the proceedings unless
otherwise ordered by the Presiding Officer or the Commission. If the
Presiding Officer does not disqualify himself/herself and the matter is
appealed, the Commission shall determine the validity of the grounds
alleged, either directly or on the report of another Presiding Officer
appointed to conduct a hearing for that purpose and, in the event of
disqualification, shall take appropriate action by assigning another
Presiding Officer or requesting loan of another Administrative Law
Judge through the U.S. Office of Personnel Management.
0
30. Amend Sec. 1025.43 by:
0
a. Revising paragraphs (a) and (d)(1)(i);
0
b. Removing paragraph (e); and
0
c. Redesignating paragraph (f) as paragraph (e).
The revisions read as follows:
Sec. 1025.43 Evidence.
(a) Applicability of Federal Rules of Evidence. Unless otherwise
provided by statute or this part, the Federal Rules of Evidence shall
apply to all proceedings held pursuant to this part. However, the
Federal Rules of Evidence may be relaxed by the Presiding Officer if
the ends of justice will be better served by so doing. Evidence that
would be admissible under the Federal Rules of Evidence is admissible
in a proceeding conducted pursuant to this part. Evidence that would be
inadmissible under the Federal Rules of Evidence may not be deemed or
ruled to be inadmissible in a proceeding conducted pursuant to this
part solely on that basis. For example, evidence that constitutes
hearsay may be admitted in accordance with paragraph (c) of this
section, if it is relevant, material, and bears satisfactory indicia of
reliability so that its use is fair.
* * * * *
(d) * * *
(1) * * *
(i) Generally known within the jurisdiction of the Commission; or
* * * * *
0
31. Revise Sec. 1025.44 to read as follows:
Sec. 1025.44 Expert witnesses.
(a) Definition. A witness who is qualified as an expert by
knowledge, skill, experience, training, or education may testify in the
form of an opinion or otherwise if:
(1) The expert's scientific, technical, or other specialized
knowledge will help the trier of fact to understand the evidence or to
determine a fact in issue;
(2) The testimony is based on sufficient facts or data;
(3) The testimony is the product of reliable principles and
methods; and
(4) The expert has reliably applied the principles and methods to
the facts of the case.
(b) Method of presenting testimony of expert witness. In lieu of
oral testimony, the Presiding Officer may order that the direct
testimony of an expert witness be in writing and be filed on the record
and exchanged between the parties no later than ten (10) days preceding
the commencement of the hearing. Such written testimony shall be
incorporated into the record and shall constitute the direct testimony
of that witness. Upon a showing of good cause, the party sponsoring the
expert witness may be permitted to amplify any written direct testimony
during the hearing.
(c) Cross-examination and redirect examination of expert witness.
Cross-examination, redirect examination, and re-cross-examination of an
expert witness shall proceed in due course based upon any written
testimony and any oral testimony.
(d) Failure to file or exchange written testimony. Failure to file
or exchange written testimony of expert witnesses if required by the
Presiding Officer shall deprive the sponsoring party of the use of the
expert witness and of the conclusions which that witness would have
presented, unless the opposing parties consent or the Presiding Officer
otherwise orders in unusual circumstances.
0
32. Amend Sec. 1025.45 by revising paragraphs (b) introductory text,
(b)(2) and (3), (e), and (f) to read as follows:
Sec. 1025.45 In camera materials.
* * * * *
(b) In camera treatment of documents and testimony. The Presiding
Officer or the Commission may for good cause shown and based on the
record, order documents or testimony offered in evidence, whether
admitted or rejected, to be received and preserved in camera. The order
shall include:
* * * * *
(2) The reasons for granting in camera treatment; and
(3) The terms and conditions imposed by the Presiding Official, if
any, limiting access to or use of the in camera material, including the
length of time the documents or testimony will be held in camera.
* * * * *
(e) Public release of in camera materials. In camera materials
constitute a part of the confidential records of the Commission and
shall not be released to the public until the expiration of any order
granting in camera treatment.
(f) Reference to in camera materials. In the submission of proposed
findings, conclusions, briefs, or other documents, all parties shall
refrain from disclosing specific details of in camera materials.
However, such refraining shall not preclude general references to such
materials. If parties consider the inclusion of specific details of in
camera materials to be necessary, those references shall be
incorporated into separate proposed findings, conclusions, briefs, or
other documents marked ``Confidential, Contains In Camera Material,''
which shall be filed in camera and become part of the in camera record.
Documents filed in camera shall be served only on parties accorded
access to the in camera materials by this part, the Presiding Officer,
or the Commission.
0
33. Revise Sec. 1025.46 to read as follows:
Sec. 1025.46 Proposed findings, conclusions, and order.
Within a reasonable time after the closing of the record and
receipt of the transcript, all parties shall file, and participants may
file simultaneously unless otherwise ordered by the Presiding Officer,
post-hearing briefs, including proposed findings of fact and
conclusions of law, as well as a proposed order. The Presiding Officer
shall establish a date certain for the filing of the briefs, which
shall not exceed fifty (50) days after the closing of the record except
in unusual circumstances. The briefs shall be in writing and shall be
served upon all parties. The briefs of all parties shall contain
adequate references to the record and authorities relied upon, but
shall not exceed thirty (30) pages, excluding covers, indexes, table of
contents, list of citations, and list of references. Replies, if
permitted by the Presiding Officer, shall be filed within fifteen (15)
days of the date for the filing of briefs unless otherwise established
by the Presiding Officer.
0
34. Amend Sec. 1025.47 by revising paragraph (a) to read as follows:
Sec. 1025.47 Record.
(a) Reporting and transcription. Hearings shall be recorded and
transcribed by a court reporter, under the supervision of the Presiding
Officer. The original transcript shall be a part of the record of
proceedings. Copies of
[[Page 21793]]
transcripts are available from the reporter at a cost not to exceed the
maximum rates fixed by contract between the Commission and the
reporter. In accordance with Section 11 of the Federal Advisory
Committee Act (Pub. L. 92-463, 5 U.S.C. app. section 11), copies of
transcripts may be made by members of the public or by Commission
personnel, when available, at the Secretariat at reproduction costs as
provided in Sec. 1025.49.
* * * * *
0
35. Revise Sec. 1025.48 to read as follows:
Sec. 1025.48 Official docket.
The official docket in any adjudicatory proceedings shall be
maintained electronically by the Secretariat as set forth in Sec.
1025.14 and shall be made available to the public.
0
36. Amend Sec. 1025.49 by revising paragraph (a) to read as follows:
Sec. 1025.49 Fees.
(a) Fees for deponents and witnesses. Any person compelled to
appear in person in response to a subpoena or notice of deposition
shall be paid the same attendance and mileage fees as are paid
witnesses in the courts of the United States, in accordance with title
28, United States Code, section 1821. The fees and mileage referred to
in this paragraph (a) shall be paid by the party at whose instance
deponents or witnesses appear. The parties may by agreement modify this
provision.
* * * * *
0
37. Amend Sec. 1025.51 by revising paragraphs (a), (c), and (d)(1) to
read as follows:
Sec. 1025.51 Initial decision.
(a) When filed. The Presiding Officer shall endeavor to file an
Initial Decision with the Commission within sixty (60) days after the
closing of the record or the filing of post-hearing briefs, whichever
is later.
* * * * *
(c) By whom made. The Initial Decision shall be made and filed by
the Presiding Officer who presided over the hearing, unless otherwise
ordered by the Commission due to the disqualification of the Presiding
Officer pursuant to Sec. 1025.42.
(d) * * *
(1) At any time prior to, or concomitant with, the filing of the
Initial Decision, the Presiding Officer may reopen the proceedings for
the reception of further evidence where the interests of justice so
require.
* * * * *
Sec. 1025.52 [Amended]
0
38. Amend Sec. 1025.52 by removing the word ``Secretary'' and adding,
in its place, the word ``Secretariat''.
0
39. Amend Sec. 1025.53 by revising paragraphs (a), (b) introductory
text, (c), and (f) to read as follows:
Sec. 1025.53 Appeal from initial decision.
(a) Notices of appeal. Any party may appeal an Initial Decision to
the Commission by serving a notice of appeal within ten (10) days after
issuance of the Initial Decision.
(b) Appeal brief. An appeal is perfected by filing a brief within
forty (40) days after service of the Initial Decision. The appeal brief
must be served upon all parties. The brief shall not exceed thirty (30)
pages, excluding covers, indexes, table of contents, list of citations,
and list of references. The appeal brief shall contain, in the order
indicated, the following:
* * * * *
(c) Answering brief. Within thirty (30) days after service of the
appeal brief upon all parties, any party may file an answering brief,
which shall contain a subject index, with page references, and a table
of cases (alphabetically arranged), textbooks, statutes, and other
material cited, with page references thereto. Such brief shall present
clearly the points of fact and law relied upon in support of the
reasons the party has for each position urged, with specific page
references to the record and legal or other materials relied upon. An
answering brief shall be subject to the same page limit as the appeal
brief.
* * * * *
(f) Reply brief. A reply brief shall be limited to rebuttal of
matters presented in answering briefs, including matters raised in
cross-appeals. A reply brief may be filed and served within fourteen
(14) days after service of an answering brief and shall not exceed
fifteen (15) pages, excluding covers, indexes, table of contents, list
of citations, and list of references.
* * * * *
0
40. Amend Sec. 1025.55 by:
0
a. Removing the comma following the words ``in addition'' in paragraph
(a); and
0
b. Revising paragraph (c).
The revision reads as follows:
Sec. 1025.55 Final decision on appeal or review.
* * * * *
(c) Except as otherwise ordered by the Commission, the Commission
shall file its Decision within ninety (90) days after the filing of all
briefs or after receipt of transcript of the oral argument, whichever
is later.
Sec. 1025.56 [Amended]
0
41. Amend Sec. 1025.56 by:
0
a. Removing the word ``sevice'' and adding, in its place, the word
``service''; and
0
b. Adding, in the last sentence, the word ``Final'' before the words
``Decision or Order''.
0
42. Amend Sec. 1025.57 by revising paragraph (a), removing paragraph
(b), and redesignating paragraph (c) as paragraph (b) to read as
follows:
Sec. 1025.57 Effective date of order.
(a) Orders in proceedings arising under the Consumer Product Safety
Act. An order of the Commission in adjudicative proceedings under this
part becomes effective upon receipt by the respondent, unless otherwise
ordered by the Commission.
* * * * *
0
43. Amend Sec. 1025.58 by:
0
a. Removing paragraph (b);
0
b. Redesignating paragraphs (c) through (f) as paragraphs (b) through
(e); and
0
c. Revising newly redesignated paragraphs (b)(2) and (d)(2).
The revisions read as follows:
Sec. 1025.58 Reopening of proceedings.
* * * * *
(b) * * *
(2) After effective date of order. Whenever the Commission
determines that changed conditions of fact or law or the public
interest may require that a Commission decision or order be altered,
modified, or set aside in whole or in part, the Commission shall serve
upon all parties to the original proceedings an order to show cause,
stating the changes the Commission proposes to make in the decision or
order and the reasons such changes are deemed necessary. Within thirty
(30) days after service of an order to show cause, any party to the
original proceedings may file a response. Any party not responding to
the order to show cause within the time allowed shall be considered to
have consented to the proposed changes.
* * * * *
(d) * * *
(2) Factual issues. When the pleadings raise substantial factual
issues, the Commission may direct the Presiding Officer to conduct such
additional hearings as it deems appropriate. Upon conclusion of the
hearings, and including the filing of post-hearing briefs containing
proposed findings of fact and conclusions of law, as well as a proposed
order, the Presiding Officer shall issue a Recommended Decision,
including proposed findings and conclusions, and
[[Page 21794]]
the reasons therefor, as well as a proposed Commission order. If the
Presiding Officer recommends that the Commission's original order be
reopened, the proposed order shall include appropriate provisions for
the alteration, modification or setting aside of the original order.
The record and the Presiding Officer's Recommended Decision shall be
certified to the Commission for final disposition of the matter.
* * * * *
0
44. Revise Sec. 1025.63 to read as follows:
Sec. 1025.63 Written appearances.
(a) Filing. Any person who appears in any proceedings shall file a
written notice of appearance, stating for whom the appearance is made
and the name, electronic address, mailing address, and telephone number
of the person making the appearance and the date of the commencement of
the appearance. The appearance shall be made a part of the record.
(b) Withdrawal. Any person who has previously appeared in any
proceedings may withdraw his/her appearance by filing a written notice
of withdrawal of appearance with the Secretariat. The notice of
withdrawal of appearance shall state the name, electronic address,
mailing address, and telephone number (including area code) of the
person withdrawing the appearance, for whom the appearance was made,
and the effective date of the withdrawal of the appearance. Such notice
of withdrawal shall be filed within five (5) days of the effective date
of the withdrawal of the appearance.
Sec. 1025.65 [Amended]
0
45. Amend Sec. 1025.65 by:
0
a. Removing the word ``files'' from paragraph (a) and adding, in its
place, the word ``provides''; and
0
b. Removing the word ``Secretary'' in paragraph (a) and adding, in its
place, the word ``Secretariat''.
Sec. 1025.66 [Amended]
0
46. Amend Sec. 1025.66 by removing the words ``of these rules'' from
paragraph (d).
0
47. Amend Sec. 1025.67 by:
0
a. Revising the section heading and paragraphs (a) and (b); and
0
b. Removing the word ``Secretary'' in paragraph (c) introductory text
and adding, in its place, the word ``Secretariat''.
The revisions read as follows:
Sec. 1025.67 Restrictions as to former Commission members and
employees.
(a) Generally. Except as otherwise provided in paragraph (b) of
this section, the post-employment restrictions applicable to former
Commission members and employees, including but not limited to those
referenced at 16 CFR 1030.101, 5 CFR part 2641, 18 U.S.C. 207, and, as
applicable, Executive Order 13490, shall govern the activities of
former Commission members and employees in adjudicative matters
connected with their former duties and responsibilities.
(b) Participation as witness. A former member or employee of the
Commission may testify in any proceeding subject to this part
concerning his/her participation in any Commission activity. This
section does not constitute a waiver by the Commission of any objection
provided by law to testimony that would disclose privileged or
confidential material. The provisions of 18 U.S.C. 1905 prohibiting the
disclosure of trade secrets also applies to testimony by former members
and employees.
* * * * *
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48. Revise Sec. 1025.68 to read as follows:
Sec. 1025.68 Prohibited ex parte communications.
(a) Applicability. This section is applicable during the period
commencing with the date of issuance of a complaint and ending upon
final Commission action in the matter.
(b) Except as set forth in paragraph (d) of this section, ex parte
communications in any form that are relevant to the merits of any
proceedings under this part are prohibited:
(1) By any interested person not employed by the Commission to any
decision-maker; or
(2) By a decision maker to any interested person not employed by
the Commission.
(c) Definitions--(1) Decision-maker, as used in this section, shall
include: Those Commission personnel who render decisions in
adjudicative proceedings under this part, or who advise officials who
render such decisions, including:
(i) The Commissioners and their staffs;
(ii) The Administrative Law Judges and their staffs;
(iii) The General Counsel and his/her staff, unless otherwise
designated by the General Counsel.
(2) Ex parte communication. Any communication concerning a matter
that is the subject of proceedings under this part that is made by an
interested person not employed by the Commission to a decision-maker or
by a decision-maker to an interested person not employed by the
Commission, which is:
(i) Written and not served on all parties; or
(ii) Oral and without advance notice to all parties to the
proceedings and opportunity for them to be present.
(d) Permissible ex parte communications. The following
communications shall not be prohibited under this section.
(1) Ex parte communications authorized by statute or by this part.
(See, for example, Sec. 1025.38 which governs applications for the
issuance of subpoenas.)
(2) Any staff communication concerning judicial review or judicial
enforcement in any matter pending before or decided by the Commission.
(3) Communications by any party to the Commission concerning a
proposed settlement agreement that has been transmitted to the
Commission.
(e) Procedures for handling prohibited ex parte communication--(1)
Prohibited written ex parte communication. To the extent possible, a
prohibited written ex parte communication received by any Commission
employee or interested person not employed by the Commission shall be
forwarded to the Secretariat or Presiding Officer, as appropriate. A
prohibited written ex parte communication which reaches a decision-
maker shall be forwarded by the decision-maker to the Secretariat or
the Presiding Officer, as appropriate. If the circumstances in which a
prohibited ex parte written communication was made are not apparent
from the communication itself, a statement describing those
circumstances shall be forwarded with the communication.
(2) Prohibited oral ex parte communication. (i) If a prohibited
oral ex parte communication is made to a decision-maker or interested
person not employed by the Commission, he/she shall advise the person
making the communication that the communication is prohibited and shall
terminate the discussion; and
(ii) The recipient of the communication shall forward to the
Secretariat or the Presiding Officer, as appropriate, a signed and
dated statement containing such of the following information as is
known to him/her.
(A) The title and docket number of the proceedings;
(B) The name and address of the person making the communication and
his/her relationship (if any) to the parties and/or participants to the
proceedings;
(C) The date and time of the communication, its duration, and the
[[Page 21795]]
circumstances (e.g., telephone call, personal interview, etc.) under
which it was made;
(D) A brief statement of the substance of the matters discussed;
and
(E) Whether the person making the communication persisted in doing
so after being advised that the communication was prohibited.
(3) Filing. All communications and statements forwarded to the
Secretariat or Presiding Officer under this section shall be placed in
a public file which shall be associated with, but not made a part of,
the record of the proceedings to which the communication or statement
pertains.
(4) Service on parties. The Secretariat or the Presiding Officer,
as appropriate, shall serve a copy of each communication and statement
forwarded under this section on all parties to the proceedings.
However, if the parties are numerous, or if the Secretary or Presiding
Officer, as appropriate, determine that service of the communication or
statement would be unduly burdensome, he/she, in lieu of service, may
notify all parties in writing that the communication or statement has
been made and filed and that it is available for inspection and
copying.
(5) Service on maker. The Secretariat or the Presiding Officer, as
appropriate, shall forward to the person who made the prohibited ex
parte communication a copy of each communication or statement filed
under this section.
(f) Effect of ex parte communications. No prohibited ex parte
communication shall be considered as part of the record for decision
unless introduced into evidence by a party to the proceedings.
(g) Sanctions. A person or party who makes a prohibited ex parte
communication, or who encourages or solicits another to make any such
communication, may be subject to sanctions including but not limited to
exclusion from the proceedings and an adverse ruling on the issue which
is the subject of the prohibited communication. A person, not a party
to the proceeding, who makes or causes to be made an ex parte
communication prohibited by paragraph (b) of this section shall be
subject to all sanctions provided in this section if such person
subsequently becomes a party to the proceeding.
Subpart H--Implementation of the Equal Access to Justice Act in
Adjudicative Proceedings With the Commission
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49. The authority citation for part 1025, subpart H, is revised to read
as follows:
Authority: 5 U.S.C. 504, 551 et seq.
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50. Add Sec. 1025.69 to subpart H to read as follows:
Sec. 1025.69 Separation of functions.
An employee or agent engaged in the performance of investigative or
prosecuting functions for the Commission in a case, other than a
Commissioner, may not, in that or a factually related case, participate
or advise in the decision, recommended decision, or agency review of
the recommended decision, except as witness or counsel in public
proceedings.
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51. Revise Sec. 1025.70 to read as follows:
Sec. 1025.70 General provisions.
The Equal Access to Justice Act, 5 U.S.C. 504 (called ``the EAJA''
in this subpart), provides for the award of attorney fees and other
expenses to eligible persons who are parties to certain adversary
adjudicative proceedings before the Commission. Applications for such
fees and expenses may be made according to the EAJA, as interpreted by
the federal courts and guidance provided by the U.S. Department of
Justice.
1025.71 and 1025.72 and Appendix I to Part 1025 [Removed]
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52. Remove Sec. Sec. 1025.71 and 1025.72 and appendix I to part 1025.
Dated: April 5, 2016.
Todd A. Stevenson,
Secretary, Consumer Product Safety Commission.
[FR Doc. 2016-08125 Filed 4-12-16; 8:45 am]
BILLING CODE 6355-01-P