80 FR 25940 - Revisions to Rules of Practice

FEDERAL TRADE COMMISSION

Federal Register Volume 80, Issue 87 (May 6, 2015)

The Commission is revising certain of its rules of practice to accommodate changes to the Commission's electronic filing system, to eliminate outdated requirements, and to improve clarity.

[Federal Register Volume 80, Number 87 (Wednesday, May 6, 2015)]
[Rules and Regulations]
[Pages 25940-25943]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2015-10517]



[[Page 25940]]

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

FEDERAL TRADE COMMISSION

16 CFR Parts 3 and 4


Revisions to Rules of Practice

AGENCY: Federal Trade Commission.

ACTION: Final rules.

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

SUMMARY: The Commission is revising certain of its rules of practice to 
accommodate changes to the Commission's electronic filing system, to 
eliminate outdated requirements, and to improve clarity.

DATES: Effective date: These rule revisions are effective on May 12, 
2015 and will govern all Commission adjudicatory proceedings that are 
commenced after that date. They will also govern all Commission 
adjudicatory proceedings that are pending on May 12, 2015, unless 
otherwise ordered by the Commission.

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

SUPPLEMENTARY INFORMATION: The Federal Trade Commission is revising 
certain rules in parts 3 and 4 of its rules of practice to reflect new 
features in the Commission's electronic filing system, eliminate 
outdated requirements for the filing and service of documents, and 
clarify the applicability of the rules.
    Because these rule revisions relate solely to agency procedure and 
practice, publication for notice and comment is not required under the 
Administrative Procedure Act. 5 U.S.C. 553(b).\1\ These rule revisions 
are effective on May 12, 2015 and will govern all Commission 
adjudicatory proceedings that are commenced after that date. They will 
also govern all Commission adjudicatory proceedings that are pending on 
May 12, 2015, unless otherwise ordered by the Commission.
---------------------------------------------------------------------------

    \1\ For this reason, the requirements of the Regulatory 
Flexibility Act are also inapplicable. 5 U.S.C. 601(2), 604(a). 
Likewise, the amendments do not modify any FTC collections of 
information within the meaning of the Paperwork Reduction Act, 44 
U.S.C. 3501 et seq.
---------------------------------------------------------------------------

I. Revisions to Miscellaneous Rules (Part 4)

Rule 4.2: Requirements as to Form, and Filing of Documents Other Than 
Correspondence

    The Commission is amending Rule 4.2(c) to specify that documents 
filed before the Commission or an Administrative Law Judge in an 
adjudicative proceeding under part 3 of the Commission's rules may be 
filed in either of two ways: In hard copy, or through the Commission's 
electronic filing system.
    Part 3 documents filed in hard copy must include a paper original, 
one paper copy, and one electronic copy in Adobe portable document 
format or other format specified by the Secretary. The Commission is 
eliminating the requirement to provide 12 paper copies for filings 
before the Commission.
    Part 3 documents filed through the electronic filing system must 
comply with the Secretary's directions for using that system. 
Additional information about the electronic filing system is available 
at https://ftcefile.gov/HomePage.aspx. Documents labeled ``In Camera'' 
or ``Confidential'' may be filed through the electronic filing system, 
although--as discussed further below--they may not be served through 
that system. Because the electronic filing system is now configured to 
accept ``In Camera'' or ``Confidential'' documents, the Commission is 
deleting the existing requirement that ``In Camera'' or 
``Confidential'' documents be filed only in hard copy and be 
accompanied by an electronic copy on a CD or DVD.
    For other documents filed with the Commission that are governed by 
Rule 4.2(d)--including petitions to quash or limit compulsory process, 
reports of compliance, and requests to reopen--the Commission is 
eliminating the existing requirement to provide 12 paper copies and a 
CD or DVD containing an electronic copy of the document. Instead, such 
documents must include a paper original, one paper copy, and one 
electronic copy in Adobe portable document format, unless otherwise 
directed by the Secretary.
    In Rule 4.2(e), the Commission is deleting an outdated exception 
for briefs filed in support of appeals from initial decisions and an 
outdated cross-reference to formatting requirements for such briefs 
under Rule 3.52(e).
    In Rule 4.2(f), the Commission is adding an explanation of the 
acceptable signature methods for documents that are filed 
electronically.
    The Commission is also making other edits throughout Rule 4.2 so 
that the Rule's requirements are format-neutral.

Rule 4.3: Time

    The Commission is amending Rule 4.3(c) so that, if a document is 
served electronically, there will be a 1-day extension for any parties 
required or permitted to respond within a prescribed period after 
service of the document. As discussed in more detail below, documents 
can now be filed through the electronically filing system until 11:59 
p.m. For documents that are electronically filed and served late at 
night, it is unrealistic to expect opposing parties to read the service 
notification until the next morning. Rule 4.3(c) therefore provides a 
1-day extension for responding to electronically served documents. 
Although the federal courts provide a 3-day extension for responding to 
electronically served documents, see Fed. R. Civ. P. 6(d), the 
Commission has decided--due to the way that time is computed under the 
Commission's rules--that a 1-day extension in Rule 4.3(c) would be more 
appropriate.
    The Commission is amending Rule 4.3(d)'s deadline for timely filing 
of documents. Although paper documents still must be received in the 
Office of the Secretary by 5:00 p.m. Eastern Time to be deemed filed 
that day, documents filed using the electronic filing system will be 
deemed timely filed as long as they are received by 11:59 p.m. Eastern 
Time. This change is consistent with Federal Rule of Civil Procedure 
6(a)(4), which similarly provides a later deadline for electronic 
filing as compared to filing by other means.

Rule 4.4: Service

    The Commission is amending Rule 4.4(a) to clarify which paragraphs 
govern which types of documents and to allow the Commission to use 
electronic delivery to serve certain types of documents in part 3 
proceedings. The provision that permits service upon counsel to be 
deemed service upon the party represented by that counsel--former Rule 
4.4(a)(4)--has been moved into a new paragraph so that it is applicable 
to all documents in Commission proceedings, not just documents served 
by the Commission. See new Rule 4.4(c).
    The Commission is amending Rule 4.4(b) to clarify that Rule 4.4(b) 
is the provision that governs service by complaint counsel, 
respondents, or third parties in adjudicative proceedings under part 3. 
The Commission is also clarifying, in new Rule 4.4(b)(1)(i), that 
service upon complaint counsel must be effected by serving lead 
complaint counsel; the Commission is eliminating the existing language 
that allowed service to be effected by instead serving the Assistant 
Director in the Bureau of Competition, the Associate Director in the 
Bureau of Consumer Protection, or the Director of the Regional Office 
of complaint counsel. In addition, Rule 4.4(b) is being revised to 
permit service by electronic delivery in accordance with new Rule 
4.4(e).
    New Rule 4.4(e) governs service by electronic delivery in part 3 
proceedings. Specifically, Rule 4.4(e)(1)

[[Page 25941]]

governs parties who have elected to be served via the Commission's 
electronic filing system. For such parties, the electronic filing 
system may be used to serve them with documents labeled ``Public,'' and 
transmission of the notice of electronic filing provided by the 
electronic filing system will satisfy the service obligations of the 
serving party. A document will be deemed served on the date that the 
notice of electronic filing is transmitted, unless the serving party 
learns that the notice of electronic filing did not reach the person to 
be served.
    ``In Camera'' or ``Confidential'' documents may not be served 
through the electronic filing system. In addition, for confidentiality 
reasons, the electronic filing system cannot be used to serve third 
parties. Third parties can use the electronic filing system to file and 
serve documents, but third parties cannot be served through the system.
    Rule 4.4(e)(2) therefore authorizes the Administrative Law Judge 
and the Secretary to allow other methods of service by electronic 
delivery, including service by email, in the following circumstances: 
For service of ``In Camera'' or ``Confidential'' documents, if the 
party to be served has not opted into service via the Commission's 
electronic filing system, if the document is to be served upon a third 
party, or if service through the electronic filing system is 
unavailable for technical reasons. If ``In Camera'' and 
``Confidential'' documents are served by electronic delivery under Rule 
4.4(e)(2), they must be encrypted prior to transit or transferred 
through a secure file transfer protocol.
    New Rule 4.4(f) contains language that was previously found in Rule 
4.4(b) and that has been moved into a new paragraph for clarity.

II. Revisions to Rules of Practice for Adjudicative Proceedings (Part 
3)

Rule 3.14: Intervention

    The Commission is amending Rule 3.14(a) to clarify that motions to 
intervene in Part 3 proceedings, as well as answers to such motions, 
must be served in accordance with Rule 4.4(b).

Rule 3.83: Procedures for Considering Applicants

    The Commission is deleting Rule 3.83(a)'s discussion of the date of 
filing for an application for an award of fees and expenses under the 
Equal Access to Justice Act, because Rule 4.3(d) governs the date of 
filing for documents filed with the Commission.

List of Subjects

16 CFR Part 3

    Administrative practice and procedure.

16 CFR Part 4

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

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

PART 3--RULES OF PRACTICE FOR ADJUDICATIVE PROCEEDINGS

0
1. The authority citation for part 3 continues to read as follows:

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


0
2. Amend Sec.  3.14 by revising paragraph (a) to read as follows:


Sec.  3.14  Intervention.

    (a) Any individual, partnership, unincorporated association, or 
corporation desiring to intervene in an adjudicative proceeding shall 
make written application in the form of a motion setting forth the 
basis therefor. Such application shall be served upon each party to the 
proceeding in accordance with the provisions of Sec.  4.4(b) of this 
chapter. The answer filed by any party shall be served upon the 
applicant in accordance with the provisions of Sec.  4.4(b). The 
Administrative Law Judge or the Commission may by order permit the 
intervention to such extent and upon such terms as are provided by law 
or as otherwise may be deemed proper.
* * * * *

0
3. Amend Sec.  3.83 by revising paragraph (a) to read as follows:


Sec.  3.83  Procedures for considering applicants.

    (a) Filing and service of documents. Any application for an award 
or other pleading or document related to an application shall be filed 
and served on all parties as specified in Sec. Sec.  4.2 and 4.4(b) of 
this chapter, except as provided in Sec.  3.82(b)(2) for confidential 
financial information.
* * * * *

PART 4--MISCELLANEOUS RULES

0
4. The authority citation for part 4 continues to read as follows:

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


0
5. Amend Sec.  4.2 by revising paragraphs (c), (d), (e), and (f) to 
read as follows:


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

* * * * *
    (c) Paper and electronic copies of filings before the Commission or 
an Administrative Law Judge in adjudicative proceedings under part 3 of 
this chapter. (1) Each document filed in an adjudicative proceeding 
under part 3, except documents covered by Sec.  4.2(a)(1)(i), shall be 
filed with the Secretary of the Commission, shall be in 12-point font 
with 1-inch margins, and shall comply with the requirements of 
Sec. Sec.  4.2(b) and (f) and 4.3(d). Documents may be filed with the 
Office of the Secretary either electronically or in hard copy.
    (i) Documents may be filed electronically by using the Office of 
the Secretary's electronic filing system and complying with the 
Secretary's directions for using that system. Documents filed 
electronically shall be in Adobe portable document format or such other 
format as the Secretary may direct.
    (ii) Documents filed in hard copy shall include a paper original, 
one paper copy, and an electronic copy in Adobe portable document 
format or such other format as the Secretary shall direct.
    (2) If the document is labeled ``In Camera'' or ``Confidential'', 
it must include as an attachment either a motion requesting in camera 
or other confidential treatment, in the form prescribed by Sec.  3.45 
of this chapter, or a copy of a Commission, Administrative Law Judge, 
or federal court order granting such treatment. The document must also 
include as a separate attachment a set of only those pages of the 
document on which the in camera or otherwise confidential material 
appears and comply with all other requirements of Sec.  3.45 and any 
other applicable rules governing in camera treatment. A document 
labeled ``In Camera'' or ``Confidential'' may be filed electronically 
using the electronic filing system.
    (3) Sensitive personal information, as defined in Sec.  3.45(b) of 
this chapter, shall not be included in, and must be redacted or omitted 
from, filings where the filing party determines that such information 
is not relevant or otherwise necessary for the conduct of the 
proceeding.
    (4) A copy of each document filed in accordance with this section 
in an adjudicative proceeding under part 3 of this chapter shall be 
served by the party filing the document or person acting for that party 
on all other parties pursuant

[[Page 25942]]

to Sec.  4.4, at or before the time the original is filed.
    (d) Other documents filed with the Commission. (1) Each document 
filed with the Commission, and not covered by Sec.  4.2(a)(1)(i) or 
(ii) or Sec.  4.2(c), shall be filed with the Secretary of the 
Commission, and shall be clearly and accurately labeled as required by 
Sec.  4.2(b).
    (2) Each such document shall be signed and shall comply with the 
requirements of Sec.  4.2(f). Documents filed under this paragraph (d) 
shall include a paper original, one paper copy, and an electronic copy 
in Adobe portable document format, unless the Secretary shall otherwise 
direct.
    (3) Each such document labeled ``Public'' may be placed on the 
public record of the Commission at the time it is filed.
    (4) If such a document is labeled ``Confidential'', and it is filed 
pursuant to Sec.  2.10(a), Sec.  2.41(f), or Sec.  2.51 of this 
chapter, it will be rejected for filing pursuant to Sec.  4.2(g), and 
will not stay compliance with any applicable obligation imposed by the 
Commission or the Commission staff, unless the filer simultaneously 
files:
    (i) An explicit request for confidential treatment that includes 
the factual and legal basis for the request, identifies the specific 
portions of the document to be withheld from the public record, 
provides the name and address of the person(s) who should be notified 
in the event the Commission determines to disclose some or all of the 
material labeled ``Confidential'', and otherwise conforms to the 
requirements of Sec.  4.9(c); and
    (ii) A redacted public version of the document that is clearly 
labeled ``Public''.
    (e) Form. Paper documents filed with the Secretary of the 
Commission shall be printed, typewritten, or otherwise processed in 
permanent form and on good unglazed paper. A motion or other document 
filed in an adjudicative proceeding under part 3 of this chapter shall 
contain a caption setting forth the title of the case, the docket 
number, and a brief descriptive title indicating the purpose of the 
document.
    (f) Signature. (1) The original of each document filed shall be 
signed by an attorney of record for the filing party, or in the case of 
parties not represented by counsel, by the party itself, or by a 
partner if a partnership, or by an officer of the party if it is a 
corporation or an unincorporated association. For documents filed 
electronically using the Office of the Secretary's electronic filing 
system, documents must be signed using a scanned signature image, an 
``s/'' followed by the name of the filer using the electronic filing 
system, or another signature method as the Secretary may direct.
    (2) Signing a document constitutes a representation by the signer 
that he or she has read it; that to the best of his or her knowledge, 
information, and belief, the statements made in it are true; that it is 
not interposed for delay; and that to the best of his or her knowledge, 
information, and belief, it complies with the rules in this part. If a 
document is not signed or is signed with intent to defeat the purpose 
of this section, it may be stricken as sham and false and the 
proceeding may go forward as though the document had not been filed.
* * * * *

0
6. Amend Sec.  4.3 by revising paragraphs (c) and (d) to read as 
follows:


Sec.  4.3  Time.

* * * * *
    (c) Additional time after certain kinds of service. Whenever a 
party in an adjudicative proceeding under part 3 of this chapter is 
required or permitted to do an act within a prescribed period after 
service of a document upon it and the document is served by first-class 
mail pursuant to Sec.  4.4(a)(2) or (b), 3 days shall be added to the 
prescribed period. Whenever a party in an adjudicative proceeding under 
part 3 is required or permitted to do an act within a prescribed period 
after service of a document upon it and the document is served by 
electronic delivery pursuant to Sec.  4.4(e), 1 day shall be added to 
the prescribed period.
    (d) Date of filing. Documents permitted to be filed using the 
electronic filing system must be received by 11:59 p.m. Eastern Time to 
be deemed timely filed that day. All other documents must be received 
in the Office of the Secretary by 5:00 p.m. Eastern Time to be deemed 
filed that day, and any such document received after 5:00 p.m. Eastern 
Time will be deemed filed the following business day.

0
7. Revise Sec.  4.4 to read as follows:


Sec.  4.4  Service.

    (a) By the Commission. (1) Service of complaints, initial 
decisions, final orders and other processes of the Commission under 15 
U.S.C. 45 may be effected as follows:
    (i) By registered or certified mail. A copy of the document shall 
be addressed to the person, partnership, corporation or unincorporated 
association to be served at his, her or its residence or principal 
office or place of business, registered or certified, and mailed; 
service under this provision is complete upon delivery of the document 
by the Post Office; or
    (ii) By delivery to an individual. A copy thereof may be delivered 
to the person to be served, or to a member of the partnership to be 
served, or to the president, secretary, or other executive officer or a 
director of the corporation or unincorporated association to be served; 
service under this provision is complete upon delivery as specified 
herein; or
    (iii) By delivery to an address. A copy thereof may be left at the 
principal office or place of business of the person, partnership, 
corporation, or unincorporated association, or it may be left at the 
residence of the person or of a member of the partnership or of an 
executive officer or director of the corporation, or unincorporated 
association to be served; service under this provision is complete upon 
delivery as specified herein.
    (2) All documents served by the Commission or Administrative Law 
Judge in adjudicative proceedings under part 3 of this chapter, other 
than documents governed by paragraph (a)(1) of this section, may be 
served by personal delivery (including delivery by courier), by 
electronic delivery in accordance with Sec.  4.4(e), or by first-class 
mail. Unless otherwise specified in Sec.  4.4(e), documents shall be 
deemed served on the day of personal or electronic delivery or the day 
of mailing.
    (3) All other orders and notices, including subpoenas, orders 
requiring access, orders to file annual and special reports, and 
notices of default, may be served by any method reasonably certain to 
inform the affected person, partnership, corporation or unincorporated 
association, including any method specified in paragraph (a)(1) of this 
section, except that civil investigative demands may only be served in 
the manner provided by section 20(c)(7) of the FTC Act (in the case of 
service on a partnership, corporation, association, or other legal 
entity) or section 20(c)(8) of the FTC Act (in the case of a natural 
person). Service under this provision is complete upon delivery by the 
Post Office or upon personal delivery (including delivery by courier).
    (b) By parties or third parties in adjudicative proceedings under 
part 3 of this chapter. (1) Service of documents by complaint counsel, 
respondents, or third parties in adjudicative proceedings under part 3 
shall be by delivering copies using the following methods.
    (i) Upon complaint counsel. A copy may be served by personal 
delivery

[[Page 25943]]

(including delivery by courier), by electronic delivery in accordance 
with Sec.  4.4(e), or by first-class mail to the lead complaint 
counsel, with a copy to the Administrative Law Judge.
    (ii) Upon a party other than complaint counsel or upon a third 
party. A copy may be served by personal delivery (including delivery by 
courier), by electronic delivery in accordance with Sec.  4.4(e), or by 
first-class mail, with a copy to the Administrative Law Judge. If the 
party is an individual or partnership, delivery shall be to such 
individual or a member of the partnership; if a corporation or 
unincorporated association, to an officer or agent authorized to accept 
service of process therefor. Personal delivery includes handing the 
document to be served to the individual, partner, officer, or agent; 
leaving it at his or her office with a person in charge thereof; or, if 
there is no one in charge or if the office is closed or if the party 
has no office, leaving it at his or her dwelling house or usual place 
of abode with some person of suitable age and discretion then residing 
therein.
    (2) Unless otherwise specified in Sec.  4.4(e), documents served in 
adjudicative proceedings under part 3 shall be deemed served on the day 
of personal delivery (including delivery by courier), the day of 
electronic delivery, or the day of mailing.
    (c) Service upon counsel. When counsel has appeared in a proceeding 
on behalf of a party, service upon such counsel of any document, other 
than a complaint, shall be deemed service upon the party. However, 
service of those documents specified in paragraph (a)(1) of this 
section shall be in accordance with paragraphs (a)(1)(i), (ii), and 
(iii) of this section.
    (d) Proof of service. In an adjudicative proceeding under part 3, 
documents presented for filing shall contain proof of service in the 
form of a statement of the date and manner of service and of the names 
of the persons served, certified by the person who made service. Proof 
of service must appear on or be affixed to the documents filed.
    (e) Service by electronic delivery in an adjudicative proceeding 
under part 3 of this chapter--(1) Service through the electronic filing 
system. A party may elect, for documents labeled ``Public'' pursuant to 
Sec.  4.2(b), to be served via the electronic filing system provided by 
the Office of the Secretary. The electronic filing system cannot be 
used to serve third parties. For parties that have elected to be served 
via the electronic filing system:
    (i) Service of documents labeled ``Public'' pursuant to Sec.  
4.2(b) may be effected through the electronic filing system;
    (ii) Each such party thereby agrees that, for any document served 
through the electronic filing system, transmission of the notice of 
electronic filing provided by the electronic filing system shall 
satisfy the service obligations of the serving party; and
    (iii) A document served via the electronic filing system shall be 
deemed served on the date the notice of electronic filing is 
transmitted, unless the serving party learns that the notice of 
electronic filing did not reach the person to be served.
    (2) Service by other methods of electronic delivery. (i) In the 
following circumstances, service by other methods of electronic 
delivery (including service by email) may be effected as the 
Administrative Law Judge and the Secretary may direct:
    (A) The document to be served is labeled ``In Camera'' or 
``Confidential'' pursuant to Sec.  4.2(b);
    (B) The party to be served has not elected to be served via the 
electronic filing system;
    (C) The document is to be served upon a third party; or
    (D) Service under paragraph (e)(1) of this section is unavailable 
for technical reasons.
    (ii) If documents labeled ``In Camera'' or ``Confidential'' are 
being served under this paragraph (e)(2), the documents must be 
encrypted prior to transit or must be transferred through a secure file 
transfer protocol. Service of a document under this paragraph (e)(2) 
shall be complete upon transmission by the serving party, unless the 
serving party learns that the document did not reach the person to be 
served.
    (f) Service of process upon the Commission. Documents served upon 
the Commission may be served by personal delivery (including delivery 
by courier) or by first-class mail to the Office of the Secretary of 
the Commission.

    By direction of the Commission.
Donald S. Clark,
Secretary.
[FR Doc. 2015-10517 Filed 5-5-15; 8:45 am]
 BILLING CODE 6750-01-P